STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF WAKE 00 DHR 0754 &1127

CHARLOTTE A. WITHERS, )

Petitioner, )

)

v. )

) RECOMMENDED DECISION

NORTH CAROLINA DEPARTMENT OF )

HEALTH AND HUMAN SERVICES )

DIVISION OF FACILITY SERVICES, )

Respondent. )

This matter was heard before Beecher R. Gray, Administrative Law Judge, on January 24, 2001, in Raleigh, North Carolina.

APPEARANCES

Pro se Petitioner

June S. Ferrell

Assistant Attorney General,

North Carolina Department of Justice

PO Box 629

Raleigh, NC 27602

Counsel for Respondent

ISSUE

Whether Respondent

1. otherwise substantially prejudiced Petitioner’s rights,

2. acted erroneously;

3. failed to use proper procedure;

4. acted arbitrarily or capriciously; or

5. failed to act as required by law or rule when Respondent notified Petitioner of its intent to enter findings of abuse by Petitioner of nursing home residents in the Nurse Aide Registry and the Health Care Personnel Registry.

APPLICABLE STATUTES AND RULES

N.C. GEN. STAT. §§ 131E-255 and -256

N.C. GEN. STAT. § 150B-23

10 NCAC 3B .1001(1)

EXHIBITS

The following exhibits were admitted into evidence:

1. Respondent’s Exhibit #1 Statement of Petitioner

2. Respondent’s Exhibit #2 HCPR Interview of Petitioner, dated July 5, 2000

3. Respondent’s Exhibit #3 Report for Record, dated July 17, 2000

4. Respondent’s Exhibit #4 Letter to Petitioner from Respondent, dated May 11, 2000

5. Respondent’s Exhibit #5 Letter to Petitioner from Respondent, dated August 10, 2000

6. Respondent’s Exhibit #6 HCPR Interview of Pam Herbin, dated June 28, 2000

7. Respondent’s Exhibit #7 HCPR Interview of Pam Herbin, dated June 28, 2000

8. Respondent’s Exhibit #8 HCPR Interview of Pam Herbin, dated June 28, 2000

9. Respondent’s Exhibit #10 Grievance Report concerning Resident C.B.

10. Respondent’s Exhibit #11 Grievance Report concerning Resident M.L.

11. Respondent’s Exhibit #12 Grievance Report concerning Resident M.D.

12. Respondent’s Exhibit #17 Investigative Conclusion concerning Resident C.B.

13. Respondent’s Exhibit #18 Investigative Conclusion concerning Resident M.L.

14. Respondent’s Exhibit #19 Investigative Conclusion concerning Resident M.D.

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15. Respondent’s Exhibit #20 Investigative Conclusion concerning Resident V.A.

Based upon the documents filed in this matter, exhibits admitted into evidence and the sworn testimony of the witnesses, the undersigned makes the following:

FINDINGS OF FACT

1. At all times relevant to this matter, Petitioner, a certified nurse’s assistant (hereinafter “CNA”), was employed as a health care personnel. Tr pp. 10-11, l. 11-1.

2. At all times relevant to this matter, Petitioner was employed at White Oak Manor in Burlington, NC. While employed at White Oak Manor, Petitioner worked as a CNA. Tr pp. 10-11, l. 11-4.

3. White Oak Manor is a skilled nursing facility.

4. At all times relevant to this matter, Pam Herbin was employed as a laundry worker at White Oak Manor. Tr p. 38, l. 7-13.

5. At all times relevant to this matter, Teresa Cook was employed either as the director of nursing or as a R.N. supervisor at White Oak Manor. Tr p. 58, l. 6-21.

6. At all times relevant to this matter, Mary Bolt was employed as a social work consultant at White Oak Manor. Tr p. 65, l. 6-12.

7. At all times relevant to this matter, Debbie Ridgeway was employed as the resident assessment coordinator nurse at White Oak Manor. Tr p. 72, l. 13-22.

8. At all times relevant to this matter, Sharon Rollinson was employed as a social worker at White Oak Manor. Tr pp. 75-76, l. 23-2.

9. Ms. Herbin observed Petitioner providing care to C.B., a nursing home resident. While Petitioner was attempting to change C.B., Petitioner tugged roughly on the pad, causing C.B.’s leg to hit the bed rail. C.B. responded by saying, “Ow.” Tr pp. 42-44, l. 3-8; R.Ex 6.

10. Although Ms. Herbin could not recall the exact date of the incident involving C.B., Ms. Herbin stated that the incident occurred before March of 2000. R.Ex. 6.

11. Ms. Herbin entered M.L.’s room and found M.L. heavily soiled and on the floor. Petitioner entered M.L.’s room and said to the resident, “You done did this _ _ _ _ again. You get your _ _ _ up and help me clean this _ _ _ _ . I just changed you.” Tr pp. 45-48, l. 10-3; R.Ex. 7.

12. Although Ms. Herbin could not recall the exact date of the incident involving M.L., Ms. Herbin stated that the incident occurred around March of 2000. R.Ex. 7

13. One evening, Ms. Herbin entered M.D.’s room and found her on the floor. Ms. Herbin called out to Petitioner. Petitioner entered the room and proceeded to get M.D. off the floor and back into her bed. Petitioner stated to M.D.. “Get your lazy _ _ _ up.” Once M.D. was in her bed, Petitioner roughly jerked the wet pad from underneath M.D. causing her to hit side rail of the bed. M.D. groaned. Tr pp. 48-52, l. 23-22; R.Ex. 8.

14. Ms. Herbin could not recall when the incident involving M.D. occurred. R.Ex. 8.

15. On or about April 10, 2000, Ms. Herbin reported her observations of Petitioner to Ms. Bolt and Ms. Cook. Tr pp. 52-53, l. 23-14; R.Exs. 10, 11 and 12.

16. One morning between January and April of 2000, V.A. reported to Ms. Ridgeway that Petitioner had been mean to her on the previous evening. V.A. was upset. Ms. Ridgeway did not recall the specifics of the incident except that it concerned a bedpan. Ms. Ridgeway reported the incident to the director of nursing. Tr pp. 73-75, l. 23-3; R.Ex. 16.

17. White Oak Manor’s grievance committee was comprised of Ms. Rollinson, Zenobia Johnson and Amy Franklin. The committee conducted the in-house investigation with respect to the allegations of abuse by Petitioner against nursing home residents, C.B., M.L. and M.D. Tr pp. 34-35, l. 7-2; pp. 39-40, l. 12-17; pp. 51-52, l. 9-13; pp. 65-68, l. 17-5.

18. With respect to C.B., Petitioner testified that she did not recall ever being in C.B.’s room while Ms. Herbin was also in the room; that she might recall having pulled the pad from underneath C.B. causing her leg to hit the bed rail; and that she might recall that C.B. responded by saying, “Ow.” Tr pp. 15-16, l. 5-12.

19. With respect to M.L., Petitioner testified that she remembered joking with M.L. one night after she had an incontinent episode; that she might have said something like, “Well, you’ve done it again, didn’t you?”; that on the night the above-described incident occurred, Ms. Herbin came through M.L.’s room. Petitioner denied having made the statements, “You done did this _ _ _ _ again. You get your _ _ _ up and help me clean this _ _ _ _ . I just changed you.” Tr pp. 16-18, l. 24-18.

20. With respect to M.D., Petitioner denied that Ms. Herbin ever called her to M.D.’s room; that although Petitioner may have been in M.D.’s room at the same time as Ms. Herbin, Petitioner denied that Ms. Herbin was in the room at the time M.D. was on the floor; and that she recalled helping M.D. off the floor. Petitioner testified that she said, “You’re too big for me to be pulling on you by myself like this.”; however, Petitioner denied having made the statement, “You are too damn big for me to be pulling you up like this.” Petitioner also denied that she jerked on M.D.’s pad causing M.D. to hit the bed rail. Tr pp. 19-22; l. 20-7.

21. With respect to V.A., Petitioner testified that she recalled an incident in which she removed a bedpan from underneath V.A. in such a manner that it possibly caused V.A. to hit the bed rail. Petitioner stated she had no recollection of an incident in which after V.A. was unable to urinate, she became mad at V.A.; V.A. turned away from her and began to cry and she began to hit V.A. in the arm with her fist. Although Petitioner denied the above-described incident, Petitioner testified that when she began to awake V.A. the next morning, she apologized to V.A. by stating, “If I done anything to you or offended you in any kind of way, I’m sorry.” Petitioner testified that she was not aware of anything that she had done for which she needed to apologize. Tr pp. 23-26, l. 1-4.

22. Upon completion of the investigation, Ms. Rollinson forwarded the investigation to Respondent for review. Tr p. 78, l. 6-15.

23. Eileen McMorrow, Nurse Investigator with the Health Care Personnel Registry Section, investigated and substantiated allegations of abuse by Petitioner against the nursing home residents, C.B., M.L., M.D. and V.A. Tr p. 92, l. 3-16; pp. 96-120, l. 11-15; R.Exs. 17, 18, 19 and 20.

24. By letter, sent via certified mail, on August 10, 2000, Respondent notified Petitioner that the Department had substantiated allegations of abuse against Petitioner and that the substantiated findings would be entered into the Nurse Aide Registry and the Health Care Personnel Registry. The letter also notified Petitioner of her right to contest the entry of the substantiated finding of abuse in the Nurse Aide Registry and the Health Care Personnel Registry. Tr pp. 115-120, l. 1-15; R.Ex. 5.

25. ‘"Abuse" is defined by 42 CFR Part 488 Subpart E which is incorporated by reference, including subsequent amendments. . . .’ 10 NCAC 3B .1001(1). Abuse is defined in 42 CFR 488.301 as follows:

“Abuse” means the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish.

26. The North Carolina Department of Health and Human Services, Division of Facility Services, Health Care Personnel Registry Section is required by N.C. Gen. Stat. § 131E-256 to maintain a Registry that contains the names of all health care personnel working in health care facilities who have a substantiated finding of resident abuse, resident neglect, misappropriation of resident property, misappropriation of facility property, diversion of resident drugs, diversion of facility drugs, fraud against a resident or fraud against a facility.

27. As a nurse aide, Petitioner is subject to the provisions of N.C. Gen. Stat. § 131E-255.

Based upon the foregoing Findings of Fact, the undersigned Administrative Law Judge makes the following:

CONCLUSIONS OF LAW

1. The Office of Administrative Hearings has jurisdiction over the parties and the subject matter pursuant to Chapters 131E and 150B of the North Carolina General Statutes.

2. All parties have been correctly designated and there is no question as to misjoinder or nonjoinder.

3. The North Carolina Department of Health and Human Services, Division of Facility Services, Health Care Personnel Registry Section is required by N.C. Gen. Stat. § 131E-255 to maintain a Registry that contains the names of all nurse aides working in nursing facilities who have a substantiated finding of resident abuse, resident neglect, or misappropriation of resident property.

4. White Oak Manor, a nursing home, is a health care facility as defined in N.C. Gen. Stat. § 131E-256(b)(6).

5. As a health care personnel, Petitioner is subject to the provisions of N.C. Gen. Stat. § 131E-256.

6. Sometime prior to March of 2000, Petitioner abused C.B. when Petitioner tugged roughly on the wet pad underneath C.B. causing C.B.’s leg to hit the bed rail.

7. Sometime in March of 2000, Petitioner abused M.L. when Petitioner stated to M.L. in a harsh manner, “You done did this _ _ _ _ again. You get your _ _ _ up and help me clean this _ _ _ _ . I just changed you.”

8. Petitioner abused M.D. when Petitioner stated to M.D., “Get your lazy _ _ _ up.”; and when Petitioner roughly jerked the wet pad from underneath M.D. causing her to hit side rail of the bed.

9. Respondent did not err in substantiating the findings of abuse against Petitioner of the nursing home residents, C.B., M.L. and M.D.

10. Respondent erred in substantiating the finding of abuse against Petitioner of the nursing home resident, V.A.

RECOMMENDED DECISION

That the North Carolina Department of Health and Human Services, Division of Facility Services, Health Care Personnel Registry Section did not err when it notified Petitioner of its intent to enter substantiated findings of abuse against Petitioner of the nursing home residents, C.B., M.L. and M.D. in the Nurse Aide Registry and the Health Care Personnel Registry and did err when it notified Petitioner of its intent to enter a substantiated finding of abuse against Petitioner of the nursing home resident, V.A. in the Nurse Aide Registry and the Health Care Personnel Registry.

ORDER

It is hereby ordered that the agency serve a copy of the FINAL DECISION on the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-6714, in accordance with N.C. Gen. Stat. § 150B-36(b).

NOTICE

The Agency making the final decision in this contested case is required to give each party an opportunity to file exceptions to this recommended decision and to present written arguments to those in the agency who will make the final decisions. N.C. Gen. Stat. § 150-36(a).

The Agency is required by N.C. Gen. Stat. § 150B-36(b) to serve a copy of the final decision on all parties and to furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings.

The agency that will make the final decision in this contested case is the North Carolina Department of Health and Human Services, Division of Facility Services.

This the 15th day of March, 2001.

______

Beecher R. Gray

Administrative Law Judge

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