STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF PITT 09 DHR 4710

Ashley D Bass, )

Petitioner, )

)

vs. )

) DECISION

Division of Health Service Regulation )

Dept of Health & Human Svcs )

Health Care Personnel Investigations Program, )

Respondent. )

THIS MATTER came on for hearing before the undersigned, Joe L. Webster, Administrative Law Judge, on December 17, 2009, in Halifax, North Carolina.

APPEARANCES

For Petitioner: pro se

For Respondent: Juanita B. Twyford

Assistant Attorney General

North Carolina Department of Justice

9001 Mail Service Center

Raleigh, NC 27699-9001

ISSUE

Whether Respondent substantially prejudiced Petitioner’s rights; and acted erroneously, failed to use proper procedure, acted arbitrarily or capriciously, or failed to act as required by law when Respondent notified Petitioner of its intent to enter her name with a finding of finding of neglect in the Health Care Personnel Registry based upon a substantiation of the following allegation:

On or about January 3, 2009, Petitioner a health care personnel, employed with CAP Agency, in Greenville, North Carolina, neglected a consumer, (RM), by failing to provide incontinence care to RM resulting in physical harm.

APPLICABLE STATUTES AND RULES

N.C. Gen. Stat. § 131E-255

N.C. Gen. Stat. § 131E-256

N.C. Gen. Stat. §150B-23

42 CFR § 488.301

10A N.C.A.C. 13O.0101

PETITIONER’S WITNESSES

Petitioner

RESPONDENT’S WITNESSES

Petitioner

Sean Kenney

Julie Brinson

Rose Marie Williamson

EXHIBITS

Respondent’s Exhibits 1- 10 and 14-15 were admitted

BASED UPON careful consideration of the sworn testimony of the witnesses presented at the hearing and the entire record in this proceeding, the Undersigned makes the following findings of fact. In making the findings of fact, the Undersigned has weighed all the evidence and has assessed the credibility of the witnesses by taking into account the appropriate factors for judging credibility, including but not limited to the demeanor of the witness, any interests, bias, or prejudice the witness may have, the opportunity of the witness to see, hear, know or remember the facts or occurrences about which the witness testified, whether the testimony of the witness is reasonable, and whether the testimony is consistent with all other believable evidence in the case. From the evidence presented, the undersigned makes the following:

FINDINGS OF FACT

1. At all times relevant to this matter Consumer RM (RM), was a six year old little boy who lived with his parents in Greenville, North Carolina.

2. RM has received therapy since he was 14 months old, and was diagnosed with Autistic Disorder when he was four years old.

3. Due to RM’s clinical condition, he has special needs and qualifies for case management services.

4. Eastern Carolina Case Management (“ECCM”) provides targeted case management for individuals with a mental retardation or developmental diagnosis. At all times relevant to this matter, ECCM provided case management services to RM. One role of a targeted case management is to refer and link a consumer with habilitative one-on-one services.

5. A Small Miracle Inc, (“ASM”) in Greenville, North Carolina is a Community Assistance Program (“CAP’) agency. ASM is a provider of one-on-one habilitative services.

6. ECCM linked RM to ASM for one-on-one habilitative services. At all times relevant to this matter, ASM provided Community Alternative Program services to RM. ASM staff participated in the development of RM’s Person Centered Plan (“PCP”), and provided intervention services aimed at assisting RM to achieve the goals identified in his plan.

7. Petitioner, Ashley Bass, was employed by ASM as a habilitation technician on or about August 20, 2008, and was therefore subject to N.C. Gen. Stat. § N.C. Gen. Stat. § 131E-256. As a habilitation technician, Petitioner provided respite care for consumers and assisted them in achieving the goals of their PCP. While employed with ASM, Petitioner participated in numerous in-service trainings, including, Client Rights, Abuse/Neglect, Person-Centered Planning, Goals/Outcomes, Daily Care, Behavior Concerns, and Developmental Disabilities.

8. Petitioner was assigned to work with RM in August 2008, and reviewed his PCP. Petitioner spent time with RM in his home and in the community to work with him on achieving his goals. Generally, Petitioner spent time several hours with RM on Tuesdays and Thursdays, and every other Saturday.

9. One of RM’s goals was to be completely toilet trained. When Petitioner first started to work with RM, he had just accomplished the goal of being toilet trained. However, within a couple of months, RM regressed and began soiling his underwear. Because of his regression, it was necessary to again implement interventions to assist RM in achieving the goal of being completely toilet trained. Encouraging RM to use the toilet at intervals throughout the day, and watching for physical signs that he needed to go the bathroom were supportive interventions identified for RM’s worker. The plan provided that the worker should know that RM will periodically have accidents during the day. According to the plan, if RM had an accident, the worker was to tell RM that “accidents happen,” educate him on the fact that he needs to inform someone when he needs to go to the bathroom, and assist RM with cleaning up.

10. On or about Saturday, January 3, 2009, RM was left in the sole care of Petitioner for about four to five hours. During this time, Petitioner had prompted RM to use the toilet at intervals. Nevertheless, RM soiled his pants while they were playing a game and asked Petitioner to clean him. Petitioner told RM that big boys don’t go the bathroom in their pants. Petitioner then cleaned RM and changed his pants.

11. When RM’s mother returned to the home on January 3, 2009, Petitioner told RM’s mother that RM had an accident in his pants. Petitioner then left RM’s home.

12. Petitioner returned to RM’s home on Tuesday, January 6, 2009. Late that afternoon, RM’s father came home and told Petitioner that he and RM’s mother were very upset about her care of RM on the previous Saturday. Specifically, RM’s father told her that he did not appreciate her leaving RM in soiled pants. Petitioner was surprised by the father’s accusations, and left RM’s home.

13. Petitioner telephoned Julie Brinson, ASM Assistant Program Director, when she left RM’s home. Petitioner told Ms. Brinson that RM’s father told her that he was upset that Petitioner had not changed RM immediately after he soiled his pants. Petitioner told Ms. Brinson that she did not want to be in RM’s home anymore, and asked to be removed from the case.

14. On Wednesday, January 7, 2009, Ms. Brinson telephoned RM’s mother. Ms. Brinson told RM’s mother what Petitioner reported to her by telephone the previous evening, and advised her that Petitioner asked to be moved from RM’s case.

15. After speaking with RM’s mother, Ms. Brinson notified Amy Thomas, ASM Program Director, that RM’s mother reported that Petitioner told her that RM had pooped in his pants, and because they were potty training him she talked to RM before changing him and left him in the dirty pants for 30 minutes. RM’s mother further reported that RM’s bottom was raw and sensitive that evening and there was fecal matter between his buttocks. When Ms. Brinson inquired of RM’s mother why she had not reported this incident at the time, the mother replied that she and her husband decided to handle it themselves.

16. Ms. Brinson and Ms. Thomas discussed the reported incident with Sean Kenny, EECM Clinical Director, and Jamie Marcum, ECCM Director of Mental Retardation/Developmental Disabilities Services. ASM and ECCM made a decision that Petitioner would no longer work with RM. ASM and ECCM planned to further investigate the incident.

17. Ms. Brinson and Ms. Thomas scheduled a time to go the home to see RM, take photographs of his buttocks, and talk with his parents the same afternoon she spoke with RM’s mother on the telephone. However, they were unable to keep that appointment because RM’s mother said she did not want them to come to the home.

18. The next day, on January 8, 2009, Mr. Kenny and Ms. Marcum went to RM’s home to follow up on the report and ensure that RM was safe. Mr. Kenny talked with RM’s mother and father about the incident on January 3, 2009. Mr. Kenny talked with RM, but did not go into details when questioning him. RM did not say anything that led Mr. Kenny to believe that RM recalled the incident. Mr. Kenny did observe RM’s bare buttocks, but did not see a rash or sign of injury.

19. On January 9, 2009, Petitioner met with Ms. Brinson to discuss the incident. Petitioner told Ms. Brinson that on January 3, 2009, RM came to her and told her that he had pooped in his pants. Petitioner said that she explained to RM that big boys don’t do that for a period of 3-5 minutes, and then she changed him. According to Ms. Brinson, at that time Petitioner did admit that she told RM’s mother that she left RM in the soiled diaper for 30 minutes, but that she had embellished the time out of frustration.

20. Pursuant to N.C. Gen Stat. §131E-256, Respondent is responsible for investigating allegations of resident abuse, neglect, misappropriation of property, diversion of drugs, fraud by a nurse aide or health care personnel.

21. Respondent received 24 Hour Initial Report and a 5 Working Day Report from ASM. The allegation of neglect was that that Petitioner had been accused of not changing RM’s diaper in a timely manner causing a rash and bleeding sores.

22. Rose Marie Williamson, RN, (“Williamson”) is an investigator with the Health Care Personnel Registry. Health Care Personnel Registry nurse investigators are charged with investigating allegations against nurse aides and health care personnel. Accordingly, Williamson received the allegation reports from ASM. On February 2, 2009, Williamson determined that the allegation needed additional investigation.

23. By letter dated February 2, 2009, Williamson notified Petitioner that Respondent would be investigating the allegation she had neglected a resident at ASM on or about January 3, 2009, and that her name would be listed on the Health Care Personnel Registry pending investigation of the allegation. The letter gave notice of appeal rights.

24. Williamson conducted an investigation, and gathered information from the following sources: an on-site visit to ASM and ECCM; interviews with Petitioner and witnesses; a review of Petitioner’s personnel file; a review of RM’s records; and, a review of the facility documentation.

25. Williamson reviewed RM’s file to gain an understanding of his physical and mental condition at the time of the incident. Williamson was not able to interview RM due to documented disabilities.

26. Williamson reviewed facility protocols, policies, procedures, and training materials to determine the expectations of personnel. After reviewing the facility protocols, policies, procedures, and training materials along with Petitioner’s personnel file, Williamson determined that Petitioner had the requisite training and had demonstrated the skills necessary to perform her job as a habilitation technician with ASM. Petitioner had experience caring for developmentally challenged children. Petitioner had received in-service trainings related to client rights and client specific training. In addition, Petitioner was familiar with RM’s PCP. Based on these trainings, Petitioner would have the information needed to understand the nature of the Autism diagnosis, and the need to consistently implement appropriate strategies to assist in achieving identified goals. Petitioner knew that one of RM’s goals was to be completely toilet trained, and she knew that intervention methods to assist in achieving this goal included, encouraging RM to use the toilet at regular intervals throughout the day, praising RM for using the toilet, and singing and reading to RM to make the toileting experience comfortable for RM. Furthermore, she knew that if RM did soil himself, he was to be told that accidents happen, remind him to tell someone when he needed to use the toilet, and assist him in cleaning up.

27. Williamson considered the credibility and consistency of the information she gathered. Williamson completed an Investigation Conclusion Report and substantiated the allegation that Petitioner neglected RM by failing to provide incontinence care resulting in physical harm.

28. Petitioner was notified by letter dated July 16, 2009, that the allegation of neglect was substantiated. Attached to the letter were the Entries of Finding, which are the substantiated findings as they will appear on the Health Care Personnel Registry. The letter also notified Petitioner of his appeal rights.

29. Petitioner timely filed a petition for contested case with the Office of Administrative Hearings contesting the listing of the allegation of neglect on the Health Care Personnel Registry. Petitioner challenges the substantiated findings, saying that she did not neglect RM.

30. Following appropriate procedure, Williamson completed a thorough investigation as required by law. However, based upon the evidence at the hearing, there is insufficient evidence to uphold the substantiation of neglect.

31. Even though RM’s parents did not facilitate investigation of the alleged incident by ASM by choosing not to immediately report the alleged incident to ASM or ECCM and by refusing to allow ASM to go to the home on January 7, 2009, RM’s mother was willing to meet with Williamson during her investigation. Although RM’s mother made herself available to Williamson for an interview, the parents made it clear that they did not wish to pursue investigation of the alleged incident. RM’s mother even put the desire to cease investigation of the incident in writing. Moreover, Respondent served subpoenas to appear and testify at the hearing on RM’s mother and father, but they did not appear.