COUNTY OF FORSYTH / IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
03 DHR 0927
KIMBERLY ROBERTS,
Petitioner,
v.
NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, DIVISION OF FACILITY SERVICES,
Respondent. / )
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) DECISION
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This contested case was heard before administrative law judge Beecher R. Gray in High Point, North Carolina on August 07, 2003. A decision in favor of Petitioner was rendered at the conclusion of the evidence and arguments by the parties.
APPEARANCES
Petitioner: Kimberly Roberts, appearing pro se
Respondent: Jane L. Oliver, Assistant Attorney General
Morgan Whitney, Assistant Attorney General
ISSUE
Whether Respondent’s decision to enter a finding of neglect against Petitioner in the Health Care Personnel Register for an incident occurring on March 07, 2003 at Meadowbrook Manor in Clemmons, North Carolina is supported by the evidence.
FINDINGS OF FACT
1. The parties received notice of hearing by certified mail more than fifteen (15) days prior to the hearing and each stipulated on the record that notice was proper.
2. Petitioner began her employment as a Certified Nurse Assistant (CNA) with Meadowbrook Manor in January 2003. Petitioner was trained by Meadowbrook in various topics, including patient rights and the use of mechanical lifts for nonambulatory patients.
3. On March 07, 2003, Petitioner was approached in or near the dining room by Andre Green, a fourteen year CNA also working for Meadowbrook. Andre Green asked Petitioner to come into the room of resident R.S. to help him get her brief (diaper) changed because she was about to go to a doctor’s appointment. Andre Green indicated to Petitioner that the lift pad was under R.S. but situated in a manner such that he could not attach the lift to the pad to lift her. Petitioner went into R.S.’s room for the purpose of changing the diaper on R.S.
4. Resident R.S. was sitting in a gerichair and was rolled from the dining room into her room by Andre Green. He raised the bedrail on R.S.’s bed so that she could have something to hold onto and assist him in getting her up into a standing position so that Petitioner could change her soiled diaper. R.S.’s charts reflect that she was under orders for no weight bearing on her left leg because of an earlier fracture. R.S. was classified as a total lift patient, meaning that she had to be lifted from place to place by means of a mechanical lift which both CNA’s were trained to use. There was a total lift sticker (TL) on R.S.’s door near the nameplate and a hand lettered sign on her bed indicating that she was a TL patient. Her plan of care specified that she was to be lifted with a mechanical lift and not to place weight on her left leg.
5. Andre Green took R.S. by the right arm as she grasped the bed rail and pulled with her left arm and stood up. The evidence is not clear as to whether Petitioner ever successfully changed R.S.’s diaper before she began to fall. Andre attempted to stabilize R.S. with his knee under her buttocks, but was unsuccessful. R.S. collapsed onto the floor, breaking her right femur. The evidence is clear from the testimony of both Andre Green and Petitioner that Petitioner played no part in the attempt to get R.S. into a standing position. Petitioner acknowledges that she could have tried to stop Andre Green from standing R.S. up and could have attempted to go and get the mechanical lift and insist that Andre Green use it. R.S. was a patient being cared for on this date by Andre Green.
6. The statements by both Andre Green and Petitioner during the course of the ensuing investigation and this hearing have been consistent that Petitioner did not physically participate in the attempt to have R.S. stand up.
7. Following an internal investigation and an investigation by Respondent, Petitioner was notified by letter dated May 19, 2003 that Respondent was entering a finding in the Nurse Aide Registry and Health Care Personnel Registry that stated:
On or about 3/7/03, Kimberly Diane Roberts, a nurse aide, neglected resident R.S. by assisting another nurse aide in standing the resident up without the use of a mechanical lift as directed in the resident’s plan of care, resulting in the resident falling and receiving a right fractured femur.
CONCLUSIONS OF LAW
1. The parties properly are before the Office of Administrative Hearings.
2. The charge against Petitioner that she assisted another nurse aide in standing up resident R.S. without the use of a mechanical lift is not supported by the evidence and should be stricken from the Nurse Aide and Health Care Personnel Registers and dismissed.
DECISION
Based upon the foregoing findings of fact and conclusions of law, the finding entered into the Health Care Personnel and Nurse Aide Registers that Petitioner committed neglect against patient R.S. on March 07, 2003 by assisting another nurse aide in standing R.S. up without the use of a mechanical lift, as required by her care plan, is not supported by the evidence and hereby is dismissed.
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, N.C. 27699-6714, in accordance with North Carolina General Statute 150B-36(b).
NOTICE
The decision of the Administrative Law Judge in this contested case will be reviewed by the agency making the final decision according to the standards found in G.S. 150B036(b)(b1) and (b2). The agency making the final decision is required to give each party an opportunity to file exceptions to the decision of the Administrative Law Judge and to present written argument to those in the agency who will make the final decision. G.S. 150B-36(a).
The agency that will make the final decision in this contested case is the North Carolina Department of Health and Human Service, Division of Facility Services.
This the _____ day of August, 2003.
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Beecher R. Gray
Administrative Law Judge
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