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STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF WAYNE 05 DHR 2108

Yavonka Renee Vann
Petitioner
vs.
N. C. Department of Health and Human Services, Division of Facility Services
Respondent / )
))
))))
) / DECISION

THIS MATTER came on for hearing before the undersigned, Beecher R. Gray, Administrative Law Judge, on May 1, 2006, in Goldsboro, North Carolina.

APPEARANCES

For Petitioner: John R. Keller

LEGAL AID OF NORTH CAROLINA, INC.

Post Office Box 2688

Wilson, North Carolina 27894

For Respondent: Bethany Burgon

Assistant Attorney General

N.C. DEPARTMENT OF JUSTICE

9001 Mail Service Center

Raleigh, NC 27699-9001

ISSUE

Whether Respondent otherwise substantially prejudiced Petitioner’s rights, acted erroneously, arbitrarily or capriciously when Respondent notified Petitioner of its intent to enter a finding of abuse and neglect by Petitioner of a resident of Brian Center in the Nurse Aide Registry and Health Care Personnel Registry.

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

EXHIBITS

1. Petitioner’s exhibits 2-12 were admitted into the record.

2. Respondent’s exhibits 1-4, 9-11, 16-19 and 21-23 were admitted into the record.

3. Respondent’s exhibits 5-7 were admitted into the record, not for the truth of the matter asserted.

4. Respondent’s exhibits 12-14 were admitted into the record with qualification only to be used to establish compliance with procedural reporting requirements.

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 sworn testimony of witnesses, the undersigned makes the following:

FINDINGS OF FACT

1. The parties received notice of hearing by certified mail more than 15 days prior to the hearing.

2. At all times relevant to this matter Petitioner, Yavonka Renee Vann, was employed as a Nurse Aide at the Brian Center in Goldsboro, North Carolina, a nursing home and therefore subject to N.C. Gen. Stat. § 131E-256. (Resp. Exh. 19)

3. At all times relevant to this matter, Petitioner was a certified nursing aide (“CNA”) and therefore subject to N.C. Gen. Stat. § 131E-255. Petitioner received her CNA training from Wayne Community College in North Carolina. (T. p. 161)

4. At all times relevant, Petitioner understood that residents of the Brian Center have rights such as the right to be free from abuse and neglect. Petitioner was taught about resident’s rights and abuse during her CNA training in 1999. (T. pp. 210-211; Resp. Exh. 21-22)

5. Respondent alleges that on or about June 1, 2005, Petitioner, a Nurse Aide, abused a resident (HE) by throwing the resident’s legs on the bed causing mental anguish and pain and neglected resident (HE) by throwing away (HE)’s meal tray and snacks before (HE) had eaten her food. (Resp. Exh. 19)

6. On the morning of June 1, 2005, Petitioner was working on the 400 hall of the Brian Center. Resident HE resided in room 404 of the 400 hall. Petitioner was responsible for Resident HE the morning of the incident. (T pp. 42-43)

7. As Petitioner was attempting to transfer Resident HE to the bed an incident occurred leading to a grievance/complaint filed by another staff member. At the time, Resident HE was an 81-year-old female requiring total dependence for bodily transfers. Resident HE was diagnosed with degenerative arthritis of the right knee, diabetes, hypertension, anemia, difficulty walking, depression, CVA, PVD, and osteoporosis. (T. pp. 56 & 63; Resp. Exhs. 7 & 18)

8. At the time of the incident, Greg Goode (“Goode”) and Teresa Toler-Blackman (“Toler”) were employed at the Brian Center. Goode was the Administrator and his duties were to oversee the entire operation of the facility. Toler was employed as the Director of Nursing. (T. p. 65, lines 23-24, p. 96, line 19)

9. After the incident, Toler was notified and she completed the required paperwork for an allegation of abuse which included the 24-Hour Initial Report and the 5-Day Working Report. Toler turned the reports over to the Nurse Aide and Health Care Personnel Registry. (T. p. 98 & 100; Resp. Exh. 12 & 13)

10. Goode conducted an investigation. Goode asked Craig DeCarlo (“DeCarlo”) to make a written statement of his account of the incident. DeCarlo was helping Petitioner transfer Resident HE when the incident of abuse occurred. (T. pp. 40-41)

11. In his statement, DeCarlo stated, “The above CNA [Petitioner] was seen venting her personal frustrations out against a resident while assisting me in a bed transfer. The CNA jammed her finger against the bed rail and appeared to break her fingernail. As I began to position the resident in her bed, the CNA reached for her lower extremities and threw it into the bed with an angry attitude.” DeCarlo adopted this statement during his testimony at trial. (T. pp. 42-43 & 56; Resp. Exh. 3)

12. DeCarlo testified that he voiced his displeasure to Petitioner regarding Petitioner’s rough handling of Resident HE’s legs during the incident. DeCarlo testified that although he believed Petitioner was a good aide, he had a duty to report incidents of abuse. (T. p. 44)

13. Mr. DeCarlo testified that Petitioner broke her fingernail and it gave her an angry attitude. Mr. DeCarlo stated that she was frustrated with the fingernail and it put her over the edge. (T. pp. 44, 54 & 57)

14. DeCarlo was a credible witness. He had no interest in the case and his testimony was consistent with his prior statement. (T. p. 232)

15. Petitioner was suspended by the Brian Center, pending investigation by the Department of Health and Human Services (“DHHS”), Health Care Personnel Registry (“HCPR”) regarding the abuse allegation. (Resp. Exh. 10)

16. The HCPR Investigator, Pamela Anderson (“Anderson”), is a registered nurse with a bachelor of science in nursing from East Carolina University. From July 25, 2005 through October 24, 2005 Anderson conducted an investigation of the neglect and abuse allegations of Resident HE. (T. p. 121; Resp. Exh. 17)

17. Anderson’s duties are to investigate allegations against health care personnel from all types of health care facilities. Anderson is charged with investigations in the northeast region of the state. (T. pp. 121-123)

18. Anderson conducted the investigation and substantiated the allegations by interviewing witnesses, administrators and directors, and reviewing statements from witnesses, personnel files, and medical records. (T. pp. 124-125)

19. Anderson interviewed Petitioner about the incident. Petitioner stated that she tore off her fingernail and quickly slid Resident HE’s legs back on the middle of the bed. DeCarlo told her what she had done was abuse. DeCarlo said Petitioner threw Resident HE’s legs and she told him she did not. (Pet. Exh. 2)

20. Anderson contacted DeCarlo to obtain a statement on the incident of abuse. DeCarlo told Anderson to use his written account of the incident for his statement. Anderson made a determination that Mr. DeCarlo was an eyewitness and that he voiced an accurate understanding of what happened. (T. pp. 124-126)

21. Abuse is the willful infliction of injury, unreasonable confinement, intimidation or punishment resulting in resulting physical harm, pain, or mental anguish. (T. p. 120)

22. Resident HE alleged that Petitioner threw away her snacks and removed her breakfast tray before she was done eating on June 1, 2005. Petitioner did attend to Resident HE during the breakfast and morning hours on June 1, 2005. Petitioner did not throw away Resident HE's snacks or remove the breakfast tray before she was done eating. (T. p. 232; Resp. Exh. 17)

23. By letter dated November 14, 2005, Anderson informed Petitioner that the abuse and neglect allegations were substantiated and would be filed with the Nurse Aide Registry and the Health Care Personnel Registry. The letter informed Petitioner of her appeal rights. (Resp. Exh. 19)

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

3. As a CNA working as a nurse aide in a nursing home, Petitioner is a health care personnel and is subject to the provisions of N.C. Gen. Stat. §§ 131E-255 and 131E-256.

4. “Abuse” is the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain, or mental anguish. 10A N.C.A.C. 13O.0101, 42 CFR § 488.301.

5. On June 1, 2005, Petitioner abused Resident HE in that Petitioner caused pain to resident’s legs, and caused mental anguish, when she attempted to transfer the resident.

6. Because it is the obligation of the State to protect the health and safety of residents in residential care facilities, instances of abuse are presumed to cause physical harm, pain or mental anguish. Allen v. N.C. DHHS, 155 N.C. App. 77, 85, 573 S.E.2d 565, 570 (2002).

7. Respondent did not act erroneously, arbitrarily, capriciously or otherwise prejudice Petitioner’s rights because there is substantial evidence to support Respondent’s conclusion that Petitioner abused Resident HE.

8. Respondent did act erroneously, arbitrarily, capriciously or otherwise prejudice Petitioner’s rights because there is no substantial evidence to support Respondent’s conclusion that Petitioner neglected Resident HE concerning the feeding of snacks or breakfast tray on June 1, 2005, to HE by Petitioner.

DECISION

Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby determines that Respondent’s decision to place a finding of abuse and Petitioner’s name on the Nurse Aide Registry and Health Care Personnel Registry is supported by the evidence and is AFFIRMED.

Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby determines that Respondent’s decision to place a finding of neglect and Petitioner’s name on the Nurse Aide Registry and Health Care Personnel Registry is not supported by the evidence and is REVERSED.

NOTICE

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.

The Agency is required to give each party an opportunity to file exceptions to the recommended decision and to present written arguments to those in the Agency who will make the final decision. 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.

In accordance with N.C. Gen. Stat. § 150B-36 the Agency shall adopt each finding of fact contained in the Administrative Law Judge’s decision unless the finding is clearly contrary to the preponderance of the admissible evidence. For each finding of fact not adopted by the agency, the agency shall set forth separately and in detail the reasons for not adopting the finding of fact and the evidence in the record relied upon by the agency in not adopting the finding of fact. For each new finding of fact made by the agency that is not contained in the Administrative Law Judge’s decision, the agency shall set forth separately and in detail the evidence in the record relied upon by the agency in making the finding of fact.

This the 12th day of July, 2006.

______

Beecher R. Gray

Administrative Law Judge