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MILLER HOME v. COMMONWEALTH PENNSYLVANIA (01/20/89)

decided: January 20, 1989.

MILLER HOME, INC., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, RESPONDENT



Appeal from the Order of the Department of Public Welfare in the case of Appeal of: Miller Home, Inc., File No. 34-87-002.

COUNSEL

Harold R. Berk, with him, Caroline C. Rubin, Harold R. Berk Associates, for appellant.

Andrew A. Coates, with him, Howard Ulan, Assistant Counsel, for respondent.

Judge Smith, and Senior Judges Kalish and Narick, sitting as a panel of three. Opinion by Senior Judge Narick. Judge MacPhail did not participate in the decision in this case.

Author: Narick

[ 124 Pa. Commw. Page 199]

Miller Home, Inc. (Miller) appeals an order of the Pennsylvania Department of Public Welfare, Office of Mental Health, Personal Homes Division (Department) revoking Miller's license to operate a personal care home.

Miller is a personal care home located at 3214 Baring Street, Philadelphia, Pennsylvania, which applied for and obtained a license to operate pursuant to Article X of the Public Welfare Code (Code)*fn1 and 55 Pa. Code § 26.20. Miller has 34 residents. The Department revoked the regular license of Miller and issued a provisional license due to violations of Regulation No. 2-30-82a (Medication-Follow Prescription) and other medication violations discovered by the Department during an inspection on March 5, 1986.*fn2 The Department sent inspectors to Miller's home unannounced on June 17, 1986,*fn3 and October 28, 1986,*fn4 and repeat violations of

[ 124 Pa. Commw. Page 200]

    the same regulation were noted and cited together with violations of additional regulations. Repeatedly the enrolled provider*fn5 represented in writing that corrections had been made, yet the same or similar medication violations were found on subsequent inspections.*fn6 On the last of the series of inspections, October 28, 1986, the highest number of medication violations were found. (Exhibit C-6.)

In November of 1986, Miller was managed by Barbara Reese (Reese). Reese had a son, Gilbert Reese, who lived with her at the home. On certain shifts during October and November when an employee was absent, Gilbert Reese was requested by Reese to act as a substitute and perform the responsibilities of the absent employee. On or about November 7, 1986, Gilbert Reese punched resident Joyce Tymes resulting in her hospitalization for broken bones around the eye. The Department found that Gilbert Reese, on prior occasions, had other, less physical, altercations with residents of the facility which required police intervention on two occasions.*fn7 Reese subsequently resigned as manager of Miller. Lieberman, had no personal knowledge of the incident that occurred between Gilbert Reese and Joyce Tymes. (Adjudication Finding of Fact No. 6.)

By letter dated December 17, 1986,*fn8 the Department revoked Miller's license pursuant to Section 1026(b)(1)

[ 124 Pa. Commw. Page 201]

    and (5) of the Code, 62 P.S. § 1026(b)(1) and (5).*fn9 The Department found that Miller's repeated failure to comply with the Plan of Correction and to correct noncompliance items was also a violation of 55 Pa. Code § 20.71(a)(3) and (4). Miller filed a timely appeal and a hearing was held on March 18, 1987, at which Miller offered testimony regarding subsequent efforts to correct the violations. On November 6, 1987, the Department ...


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