512 A.2d 59 | Pa. Commw. Ct. | 1986
Opinion by
Before this court are two petitions for review filed by Pine Haven Residential Home (Pine Haven). Pine Haven petitions for review of an order of the Director of the Office of Hearings and Appeals of the Department of Public Welfare (Department), which sustained the Departments revocation of Pine Havens Personal Care Boarding Home license. Pine Haven also petitions for review of an order of the Executive Deputy Secretary, which modified the prior order by adding a provision barring Pine Haven from reapplying for a license. By this courts order, dated July 9, 1985, Pine Havens two petitions for review were consolidated. We affirm the order of the Director of the Office of Hearings and
Upon a routinely scheduled inspection of Pine Haven, the Department found a number of deficiencies of the Personal Care Boarding Home regulations, and requested a plan of correction within fifteen days. Although no such plan was provided, the Department issued Pine Haven a thirty day provisional license to operate until such a plan of correction was provided. On June 25, 1984, upon failure to submit such a plan, Pine Haven was notified that its license to operate was revoked. On July 19, 1984, Pine Haven submitted a proposed plan of corrective action, and filed its appeal of the revocation with the Department.
Following a hearing, the Director of the Office of Hearings and Appeals adopted the hearing officers recommendation and sustained the revocation of Pine Havens license. Both Pine Haven and the Department requested reconsideration of that decision. The Executive Deputy Secretary of the Department granted the Departments request for reconsideration and ordered that Pine Haven be barred from reapplying for a license.
Pine Haven contends that the findings of the hearing officer are not supported by substantial evidence, and requests this court to reverse both orders, and reinstate its license. Pine Haven further contends that the Executive Deputy Secretary was without authority to modify the order of the Director of the Office of Hearings and Appeals, and that the Executive Deputy Secretary did not act on the requests for reconsideration in a timely fashion. Thus, Pine Haven requests, in the alternative, that the order of the Executive Deputy Secretary be stricken, and that the order of the Director of the Office of Hearings and Appeals be reinstated.
Under the Departments regulations, a certificate of compliance may be denied or revoked when, upon inspection, it is found that the facility does not comply with the Departments program licensure or approval regulations. 55 Pa. Code §20.71(a)(2). In addition, a certificate of compliance may be denied or revoked for failure to submit an acceptable plan to correct noncompliance items, 55 Pa. Code §20.71(a)(3), for gross incompetence, negligence, or misconduct in operating the facility, 55 Pa. Code §20.71(a)(6), or for fraud or deceit in attempting to obtain a certificate of compliance. 55 Pa. Code §20.71(a)(7).
In this case, upon inspection, the Department found various deficiencies, such as bathroom tiles needing to be replaced, food menus not posted, insufficient clothes closet space, inadequate staffing, inadequate record keeping regarding the dispensing of medication, the use of unsuitable residents as staff persons, i.e., night watchmen, and failure to submit a plan of correction. Thus, the Department based its refusal to grant Pine Haven a license renewal on noncompliance with the regulations, fraud and deceit in obtaining a license, and gross incompetence, neglect and misconduct.
The hearing officer found that two residents were employed as night watchmen. They were required to make hourly rounds during the night to check if other residents needed service. Pine Haven contended that neither was a personal care resident, but simply resided
The hearing officers determination that staff was not actually present at the facility to provide service is supported by substantial evidence. Also, the findings of dirty conditions in the bathrooms, bedrooms, and closets, and the failure to post accurate menus are supported by substantial evidence, as are the findings of gross incompetence and neglect.
Moreover, Pine Haven did not submit a plan of correction until July 19, 1984. This is sufficient, in itself, for revocation. The hearing officers finding that Pine Haven did not keep daily written records of all staff schedules was amply supported by substantial evidence. Any one of the above violations would be sufficient grounds for refusal to issue a license. See Colonial Gardens Nursing Home, Inc. v. Department of Health, 34 Pa. Commonwealth Ct. 131, 382 A.2d 1273 (1978). Accordingly, we affirm the order of the Director of the Office of Hearings and Appeals, which sustained the revocation of Pine Havens license.
We agree with Pine Haven that the Executive Deputy Secretary did not act timely on the requests for reconsideration. Pine Haven requested reconsideration of the order of the Director of the Office of Hearings and Appeals on January 30, 1985. The Department requested reconsideration of that order on February 4, 1985. On May 9, 1985, the Executive Deputy Secretary granted the Departments request for reconsideration, and ordered that Pine Haven be barred from reapplying for a license. A petition for reconsideration must be acted on by the Department within thirty days of its
Order
Now, June 3, 1986, the order of the Director of the Office of Hearings and Appeals of the Department of Public Welfare in the above-captioned matter, dated January 21, 1985, is affirmed. The order of the Executive Deputy Secretary of the Department of Public Welfare in the above-captioned matter, dated May 9, 1985, is null and void.
