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COLONIAL GARDENS NURSING HOME v. COMMONWEALTH PENNSYLVANIA (03/02/78)

decided: March 2, 1978.

COLONIAL GARDENS NURSING HOME, INC., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF HEALTH, RESPONDENT; ERWIN CARNER, ED. D. ET AL., INTERVENORS



Appeal from the Order of the Department of Health in case of In the Matter of Colonial Gardens Nursing Home, dated July 7, 1977.

COUNSEL

Lester J. Schaffer, with him Marvin Comisky, Sheryl L. Auerbach, Lawrence S. Rosenwald, and, of counsel, Blank, Rome, Klaus & Comisky, for petitioner.

John G. Knorr, III, with him Jennifer A. Stiller, and Jeffrey B. Schwartz, for respondent.

Elias S. Cohen, with him Vincent J. Cohen, and Michael Churchill, for intervenors.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Rogers, Blatt and DiSalle. Opinion by President Judge Bowman.

Author: Bowman

[ 34 Pa. Commw. Page 133]

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 case, 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.*fn1 By letter dated May 28, 1976, Colonial was informed of the alleged deficiencies, given a copy of the written report detailing the violations, ordered to submit a plan of correction within ten days, and informed that a three month provisional license was being recommended by

[ 34 Pa. Commw. Page 134]

    the surveyors.*fn2 Upon receipt of the surveyors' report and a three month provisional license recommendation, the Department's Director of the Office of Quality Assurance ordered a resurvey of Colonial, which resurvey was conducted on June 1 and 2, 1976. During this resurvey, the violations observed in May were rechecked. A large number of these previously reported violations had not yet been corrected. Additionally, it was observed that certain medical records which had been examined in May appeared to have been altered. Based upon this resurvey, the surveyors recommended non-renewal of Colonial's license. On June 18, 1976, the Department's Director of the Office of Quality Assurance issued an order to show cause why the Department should not refuse to renew Colonial's license to operate. Hearing upon this matter commenced on September 20, 1976, before a presiding officer appointed by the Secretary of Health, and concluded after thirty-eight days of the testimony spanning a period of six months. On July 7, 1977, the Department adopted the Preliminary Report of the presiding officer, with certain exceptions, and issued its order refusing to renew Colonial's license.

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).*fn3 Section 1026(b) sets forth five reasons, any one of which, standing alone, is sufficient grounds for refusal

[ 34 Pa. Commw. Page 135]

    to issue a license. The Department's decision not to renew Colonial's license was based upon two of the reasons set forth in Section 1026(b): to wit, "(1) [v]violation of or non-compliance with the provisions of this act or of regulations pursuant thereto"; and "(2) [f]raud or deceit in obtaining or attempting to obtain a license." With regard to the reasons for refusal to renew its license, Colonial's argument before this Court was directed exclusively to the insufficiency of evidence to sustain the finding of fraud in attempting to obtain a license. Since we find substantial evidence in the record to support the finding of fraud in attempting to obtain a ...


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