34 Pa. Commw. 131 | Pa. Commw. Ct. | 1978
Opinion by
Before us is a petition for review by Colonial Gardens Nursing Home, Inc. (Colonial) in the nature of an appeal from an order of the Department of Health (Department) which, inter alia, refused to renew the license of Colonial to operate a skilled nursing facility. After sedulous examination of the weighty record in this ease, we affirm the Department’s order.
The events which culminated in this petition began in May, 1976. Colonial’s license to operate a nursing home was to have expired on May 14, 1976. On May 3, 4 and 5, 1976, four duly authorized field representatives (surveyors) of the Department surveyed the Colonial facility to evaluate its compliance with Department regulations in order to make a recommendation regarding Colonial’s impending license renewal. Surveys such as this are routinely scheduled whenever a nursing home license is about to .expire. "While at Colonial the surveyors discovered a series of violations of Department regulations.
The applicable statutory provisions governing refusal to issue a license to nursing homes are found in Section 1026(b) of the Public Welfare Code, Act of June 13, 1967, P.L. 31, as amended, 62 P.S. §1026(b).
Our scope of review in this case is established by Section 44 of the Administrative Agency Law.
The presiding officer concluded that “Colonial Gardens committed fraud and deceit in attempting to obtain a license in that it altered medical records of patients to intentionally misrepresent either that records were properly kept or that treatment was properly provided.”
We have reviewed the testimony of the Department’s witnesses regarding each of these medical records and we have examined the exhibits themselves: a blood pressure chart; several documents labelled “Nurse’s Notes”; and several documents entitled “Doctor’s Orders and Progress Notes.” We have also reviewed the testimony of Colonial’s witnesses regarding these same exhibits. While the testimony offered by Colonial tends to negate a finding of alteration, the evidence presented by the Department clearly supports such a finding, and is, we believe, such evidence as a reasonable mind would accept as adequate to support the finding of alteration.
As in any case where there is conflicting testimony, the issue is reduced to one of credibility. As this Court previously has stated, “[credibility and weight to be accorded the evidence are a determination solely within the discretion of the fact finder.” Insurance Department v. The Pennsylvania Coal Mining Association, supra at 360, 363 A.2d at 828. The presiding officer in this case, referring specifically to the Department witnesses testifying about the alterations, found that these witnesses “were very well qualified, sincere, knowledgeable in their field and credible.” We cannot, as an appellate court, even if we were so inclined, supplant the fact-finder’s evaluation of witness
We turn now to the other issues raised by Colonial. Colonial argues that the patients at Colonial have been denied due process of the law because, without notice or an opportunity to be heard, the Department has determined that they must be relocated. We decline to address this issue because we find nothing in the record to indicate that Colonial raised this issue below. See Section 42 of the Administrative Agency Law, 71 P.S. §1710.42. See also Pa. R.A.P. 1551(a).
Colonial argues that it has been unconstitutionally deprived of equal protection of the law because the Department has “singled it out as the initial target of a new program” launched against Commonwealth nursing homes. Since we find no “intentional discrimination in the enforcement of the law” by the Department in this proceeding, we reject Colonial’s argument. Commonwealth v. Barnes & Tucker Co., 455 Pa. 392, 416 n.14, 319 A.2d 871, 884 n.14 (1974); see also Kroger Co. v. O’Hara Township, 243 Pa. Superior Ct. 479, 482, 366 A.2d 254, 256 (1976).
Colonial next argues that the Department failed to give it proper notice of the violations observed at the facility and failed to give it a reasonable time within which to correct such violations prior to deciding not to renew Colonial’s license. We believe that the Department’s letter of May 28, 1976 and the detailed, fifteen page enclosure, listing the deficiencies observed by the Department and citing applicable regulation numbers, satisfies the written notice requirements of Section 1026(a) of the Public Welfare Code, 62 P.S. §1026(a). This written notice was received by Colonial on May 29, 1976. This same notice requested Colonial to “[e] liter your plan of correction beside each deficiency listed, including estimated date of corree
Colonial also argues that the presiding officer erred in permitting the Department to introduce evidence of Colonial’s past (i.e., pre-1976) violations of Department regulations. Inasmuch as the presiding officer specifically stated in his Preliminary Report that “the past violations were only relevant insofar as they reflect on the good faith of Colonial Cardens in its requests for further opportunities to comply,” and in light of the presiding officer’s express recognition “that Colonial Cardens’ license could only be denied based upon violations as set forth in the Order to Show Cause . . .” we find no prejudice resulting to Colonial as a result of the admission of this evidence.
Finally, we find no merit in Colonial’s argument that the presiding officer and the Department erred in imposing sanctions against Colonial without considering improvements allegedly implemented at the facility subsequent to June, 1976. Colonial has cited no legal authority for its premise that there is any duty upon the Department to make such consideration subsequent to the issuance of an order to show cause. Moreover, the finding of fraud in attempting to obtain a license would not be vitiated, even if Colonial had corrected each of the numerous violations of regulations with which it was additionally charged.
Accordingly, we affirm the order of the Department.
Order
Now, March 2, 1978, the order of the Department of Health is hereby affirmed.
Thirty-two deficiencies were listed, ranging from the rather minor — the inside of the door of the ice machine was broken — to the more serious — improper handling of medications; deficient staffing of nursing services; food not being served under sanitary conditions.
Colonial received this information on May 29, 1976. Colonial’s plan of correction, dated June 15, 1976, was not received by the Department until June 24, 1976, six days after the Department’s order to show cause was issued.
The functions, powers and duties of the Department of Public Welfare with regard to licensing were transferred to the Department, of Health by Section 1 of the Reorganization Plan No. 2 of 1973, 71 P.S. §755-2.
We note that twenty-two of the twenty-five “Conclusions of Law” enunciated in the presiding officer’s Preliminary Keport as well as a substantial portion of the “Discussion” section, are devoted to Colonial’s violations of Department regulations.
Act of June 4, 1945, P.L. 1388, as amended, 71 P.S. §1710.44.
Since Department regulations establish procedures to be followed in the keeping of patient medical records, see 28 Pa. Code §§211.7-211.12, and since the finding of a violation of these regulations could, in and of itself, result in refusal to issue a license, see 62 P.S. §1026(b)(1), we believe that the alteration of medical records during the course of a licensure survey in order to produce the appearance of compliance with regulations constitutes fraud or deceit in attempting to obtain a license.