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Dep't of Community Affairs, Division of Codes and Standards, Bureau of Rooming and Boarding House Standards v. Eden House

May 1, 2009

DEPARTMENT OF COMMUNITY AFFAIRS, DIVISION OF CODES AND STANDARDS, BUREAU OF ROOMING AND BOARDING HOUSE STANDARDS, PETITIONER-RESPONDENT,
v.
EDEN HOUSE, INC., RESPONDENT-APPELLANT.



On appeal from a Final Agency Decision of the Department of Community Affairs, Division of Codes and Standards, Docket Nos. X00048, X00021, X00036, X04081 and X04129.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 23, 2009

Before Judges Carchman, R. B. Coleman and Sabatino.

Eden House, Inc. ("Eden House"), formerly a for-profit Residential Health Care Facility ("RHCF"), appeals a final agency decision of the Acting Commissioner of the Department of Community Affairs ("DCA") revoking appellant's license to operate the RHCF and imposing various fines and penalties. The Acting Commissioner's decision sustained detailed findings by an Administrative Law Judge ("ALJ"), issued after lengthy hearings, concluding that Eden House had persistently violated numerous State regulations at its facility and that the administrative sanctions sought by the State were justified. We affirm.

I.

The underlying facts that emerged at the administrative hearings principally arose out of State inspections of Eden House dating back to 1999. Although the record is extensive, we summarize the facts pertinent to our review.

Eden House, owned and operated by Harold Katz, is a for-profit corporation. It owns a four-story building in East Orange that housed, at times, as many as eighty residents. On that site, Eden House operated an RHCF for people with psychiatric conditions, pursuant to a license originally issued by the Department of Health and Senior Services ("DOH")*fn1 under the Healthcare Facilities Planning Act ("HCFPA"), N.J.S.A. 26:2H-1 to -26. The residents were mainly, perhaps exclusively, low-income persons. Eden House's main source of funding was through its residents' supplemental security income ("SSI"), a significant portion of which was assigned to the facility.

Pursuant to Eden House's licensing as an RHCF, the DOH periodically surveyed Eden House to ensure that the license requirements were being met. To that end, the DOH conducted inspections of Eden House relevant to this appeal on January 13 and 21, 1999; June 1999;*fn2 February 7 through 9, 2000; May 15 and 16, 2000; August 1 and 2, 2000; July 19 through 21, 2004; and October 29, 2004.

During the January 1999 inspection and the re-inspection in June 1999, the DOH found several deficiencies. It observed that Eden House was failing to meet minimum staffing requirements. In addition, the DOH found that several Eden House residents were not being provided with the required initial screening by a healthcare professional. As a result, Eden House was assessed a penalty of $3,000. Eden House appealed that discrete penalty. The contested matter was heard by ALJ Margaret M. Monaco, who found that the penalty was appropriate and therefore sustained the DOH's assessment. Eden House paid that $3,000 penalty without any further appeal.

The second set of relevant inspections took place in February 2000. During these inspections, the DOH found that Eden House was not providing the required minimum hours of resident supervision. In particular, such supervision was not provided on January 8, 9, 22, 29, and 30, 2000, in violation of N.J.A.C. 8:43-4.1(c) and N.J.A.C. 8:43-6.1. In addition, the DOH found that Eden House had failed to provide the level of nursing care per resident (.20 hours per week) mandated by N.J.A.C. 8:43-9.1(e). Specifically, the DOH found that at the time of the inspection in February 2000, a nurse had not visited the facility at all during the preceding two weeks. Additionally, the documentation available to the DOH did not substantiate whether any nurse had visited Eden House between December 22, 1999, and January 3, 2000.

The DOH also determined in February 2000 that Eden House failed to comply with N.J.A.C. 8:43-9.2(c), (d), (e), and (f), regulations which require a nurse to provide updates to each resident's physician, a nursing assessment, and monitoring notes. DOH specifically found that at least six residents did not receive any such assessments, and that in some instances no follow-ups to residents had been provided.

As a result of these citations from February 2000, Eden House was assessed a $6,000 fine, an amount which reflected a doubling of penalties for repeat violations of the same regulations.*fn3

In May 2000, the DOH conducted a re-inspection of Eden House to determine whether the February 2000 deficiencies still existed. During that re-inspection, the DOH found that Eden House failed to provide the minimum number of on-duty employees required by N.J.A.C. 8:43-4.1(c). Specifically, the DOH found that from April 28 through May 15, 2000, Eden House lacked adequate staffing. The DOH also found that (1) Eden House failed to provide patients with an initial nurse's assessment; and (2) several patients lacked documentation as to the reasons for their admission. Moreover, Eden House had not provided follow-up monitoring or correspondence with the patients' doctors. Additionally, the DOH could not complete its daily census of residents in May 2000, due to Eden House's inadequate record-keeping.

Based on this May 2000 re-inspection, Eden House was assessed a $6,000 penalty, an amount that reflected a tripling of some of the fines for repeat violations of the same nature as those identified in the 1999 inspections.*fn4

The DOH conducted further inspections of Eden House from July 31 through August 2, 2000. On this occasion, the DOH found that Eden House had failed to update the designated physician when a change of a resident's medical circumstances occurred, as required by N.J.A.C. 8:43-9.2(c) and (e). The DOH also found that one female resident had lost significant weight, and the resident's physician was not informed. The DOH additionally found that the resident, who had very few teeth, was being served food that she could not chew.

Second, the DOH found in the July/August 2000 inspection that Eden House had failed to provide adequate supervision of residents during their self-administration of medication. Moreover, Eden House's records failed to include information relating to instances where residents had failed, or had refused, to take their medication.

Third, the DOH found that the residents' medications were not being stored in a locked storage area, as required by N.J.A.C. 8:43-10.3. In one instance, the DOH found fifteen pills kept in an unlabeled container. This was in violation of N.J.A.C. 8:43-10.1, which requires that prescription drugs be kept in their original containers.

Fourth, Eden House had failed to ensure that all of its employees had received a two-step Mantoux tuberculin skin test, in violation of N.J.A.C. 8:43-16.4(a).

Fifth, the DOH found that Eden House had failed to ensure that its menus adequately addressed the residents' nutritional needs, as required by N.J.A.C. 8:43-8.3(a)(1). For example, the food list for one patient, who had been medically prescribed an 1800-calorie diet, did not reflect that calorie restriction. Moreover, Eden House did not have an 1800-calorie diet on its menu. Another resident's dietary requirement (for reduced salt) was not noted on the dietary list. Similarly, "no added salt" diets prescribed to two other residents were not specified on the menu.

Finally, the DOH discovered in the July/August 2000 inspection numerous deficiencies related to sanitary conditions, in violation of N.J.A.C. 8:43-8.2(f).*fn5 The DOH specifically identified the following:

* Flies in the kitchen and dining room;

* Water damage on the wall in the dining room;

* No soap at the hand-washing sink;

* Water-stained ceiling tiles;

* A freezer that failed to store food at zero degrees Celsius;

* Floor damage in the kitchen;

* Soil buildup on the silverware and food service cart;

* Lack of sanitation-agent kit;

* Heavily soiled pots in the clean storage area;

* A hole in the wall behind the freezers;

* Three pounds of contaminated margarine;

* Rodent droppings on a shelf near food; and

* Dried food residue on a covered slicing machine For these assorted violations uncovered during the July/August 2000 inspections, Eden House was assessed $9,250 in penalties. This was a combined amount that reflected both fines for new violations, as well as a tripling of fines for repeat violations.*fn6

The DOH conducted another inspection of Eden House from July 19 through 21, 2004. During this inspection, the DOH found that Eden House failed to ensure that residents had adequate and clean beds, pillows, chairs, reading lights, storage, bed linens, washcloths and towels, and windows with shades, as required by N.J.A.C. 8:43-7.3(a)(1) through (8). The DOH noted that twenty-six patient rooms had violations of that particular provision. The agency specifically found that some rooms had soiled bedding, torn bedding, torn pillows, soiled pillows, missing chairs, missing window shades, broken light fixtures, missing bed frames, soiled box springs, collapsed beds, and bed bugs.

In addition, the DOH inspectors observed in July 2004 that the security alarm system for the facility did not work and had been non-functioning for some time, in violation of N.J.A.C. 8:43-15.1. The DOH also found that there was significant rodent and roach infestation. The DOH learned that extermination services were only provided to the common areas on site, despite the prevalence of infestation problems in other areas. One resident showed a DOH representative that he had been bitten by bed bugs.

Moreover, the DOH observed flies and roaches throughout the facility. Rooms 102, 201, 202, 205, 211, 212, 301, 302, 303, 304, 306, 307, 310, 311, and 313 all exhibited such infestation. Mouse droppings were found in rooms 203, 206, 304, 308 and 310. The inspectors also observed mouse holes in several of those rooms. In room 207, black mold was found in the patient's closet. In room 208, the wall above the patient's bed was water-damaged. The inspectors also found mold and residue throughout the bathrooms on the second and third floors. Some rooms were also missing soap and toilet paper.

As a result of these numerous deficiencies, Eden House was assessed $12,500 in penalties*fn7 by letter dated August 11, 2004. The letter informed Eden House that its new patient admissions had to be curtailed, and that it must implement a Directed Plan of Correction ("DPOC"), as formulated by the agency. Specifically, the DPOC required Eden House to obtain the services of: (1) an exterminator; (3) a housekeeping contractor; (3) a security system contractor; and (4) a building contractor, by no later than August 18, 2004. Eden House responded in a letter dated August 13, 2004, requesting an extension of time to achieve compliance. An extension was granted, but only for those items that were not included in the DPOC.

In an attempt to comply with the DPOC, Eden House entered into a contract with an electrical contractor, Affiliated Electrical Services, Inc., on August 20, 2004; with John Standish Perrin, a building contractor; and with Tri-City Peoples, a housekeeping service, on August 19, 2004. However, when the DOH determined that the conditions on site were still deficient as of September 23, 2004, the agency learned that Tri-City had yet to undertake any cleaning services because Eden House was attempting to negotiate a better contract. Moreover, the DOH also learned that Perrin had never been paid a retainer for his services and that he also had yet to do any work at Eden House.

The last inspection the DOH conducted at Eden House took place on October 29, 2004. On this particular review, the DOH found that the facility's housekeeping, security system, and building contractor deficiencies had not been remedied. The ...


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