STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF GUILFORD 01 DHR 1016
Dannette Byrd, )
Petitioner, )
)
vs. ) DECISION
)
Community Innovations, )
HEALTH CARE PERSONNEL REGISTRY, )
Respondent. )
This matter was heard before Beryl E. Wade, Administrative Law Judge, on November 7, 2001, in High Point, North Carolina.
APPEARANCES
For Petitioner: Dannette Byrd, pro se
Greensboro, North Carolina
For Respondent: Jane L. Oliver
Assistant Attorney General
Raleigh, North Carolina
ISSUES
Whether Respondent failed to use proper procedure or otherwise substantially prejudiced Petitioner’s rights when Respondent determined that, on or about April 20, 2001, Petitioner, a health care personnel, neglected J.F.., a resident of Community Innovations in Greensboro, North Carolina, by failing to report that the resident had fallen; and, by failing to obtain medical attention for the resident.
APPLICABLE STATUTES AND RULES
N.C. Gen. Stat. § 131E-256
N.C. Gen. Stat. § 150B-23
42 CFR § 488.335(d)(1)
10 NCAC 3B.1001
FINDINGS OF FACT
Based upon stipulation of the parties, the undersigned makes the following findings:
1. Petitioner was employed at Community Innovations from February 23, 1998 to April 27, 2001. Initially, Petitioner was hired as a habilitation technician and, in October 1999, she was promoted to Assistant Program Manager.
2. Community Innovations operates residential care facilities for individuals with developmental disabilities. As such, Community Innovations is a health care agency, as specified in N.C. Gen. Stat. §§ 131E-256(b)(8).
3. Petitioner worked at Friendway House which is a group home operated by Community Innovations in Greensboro, North Carolina. Six adults who are dually diagnosed with mental retardation and autism live at the group home. As Assistant Program Manager, Petitioner continued to provide direct care to residents. She was also responsible for ensuring that care was provided to the residents in accordance with the program standards and that the Program Manager and the Qualified Mental Retardation Professionals were informed whenever there were problems, concerns or questions about the health and welfare of the residents.
4. Through her employment at Community Innovations, Petitioner was taught to contact the on-call nurse whenever a client appeared to be injured. Petitioner was also trained to complete an incident report to document the injury and to note the nurse’s response, any treatment and the outcome. Petitioner had also been told that, if she was unsure whether a situation required reporting, she should contact the Program Manager.
5. On Friday, April 20, 2001, Petitioner worked the 3:00 p.m. to 11:00 p.m. shift at Friendway House. Saye Flomo, a habilitation technician who was still in orientation, was working with Petitioner.
6. At approximately 10:30 p.m., Petitioner was outside taking a break. She heard a commotion and yelling from inside the house. Petitioner went into the house and found a resident, J.F., on his side on the floor near the front door. J.F. was yelling and moaning as if he was in pain. J.F. was trying to get another resident, R.S. away from him. Earlier that evening, R.S. had been aggressive with other residents and had been throwing things.
7. Petitioner instructed Saye Flomo to keep R.S. away from J.F. J.F. was not able to stand up on his own. Petitioner tried to help J.F. to stand up and he kept saying, “No, no.” Petitioner tried to lift J.F, but was unable to get him to stand. Petitioner asked Mr. Flomo to help her to lift J.F.
8. Petitioner and Mr. Flomo lifted J.F. off the floor and transferred him to a couch. While J.F. was sitting on the couch, Petitioner examined J.F.’s legs for flexibility by bending and stretching J.F.’s legs. J.F. could bend his legs but he cried out “no” as Petitioner examined him and tried to move Petitioner’s hand away from his leg. Petitioner did not see any swelling and did not see any bones sticking out. J.F. continued to yell “no” while Petitioner checked him.
9. Because J.F. could not stand or walk on his own, Petitioner and Mr. Flomo placed J.F. in a chair with wheels and pushed J.F. to his room. Petitioner then helped J.F. into bed and monitored J.F. until the end of the shift. Petitioner asked Mr. Flomo to monitor R.S.
10. Petitioner did not report J.F.’s fall to the on-call nurse that evening and she did not fill out an incident report to document the fall. Petitioner mistakenly assumed that Mr. Flomo had completed an incident report.
11. Petitioner did document R.S.’s aggressive behavior in his direct care notes but she did not report J.F.’s fall in J.F.’s direct care notes. She mistakenly assumed that her co-worker had done that, too.
12. The next day, Petitioner called the home to see how J.F. was doing. She was told that J.F. refused to get out of bed. Petitioner worked again on Sunday and she called the Program Manager, Patrina Jones, to tell her about J.F.’s fall. Ms. Jones instructed petitioner to call the on-call nurse.
13. Petitioner paged the on-call nurse but there was a problem with the page. It took some time but the nurse eventually was able to identify the page and she called the group home. Upon being told of Petitioner’s fall and his condition, the nurse recommended that J.F. be taken to the hospital for evaluation. At the hospital, J.F. was diagnosed as having a broken right hip.
14. Petitioner’s employment at Community Innovations was terminated as a result of her failure to report J.F.’s fall to the on-call nurse and her failure to complete an incident report.
15. Rosemary Harrell, R.N., a nurse investigator for the Health Care Personnel Registry, was assigned to investigate the allegation of neglect against Petitioner. Ms. Harrell visited the facility to review J.F.’s treatment records and Petitioner’s personnel file. She also interviewed Petitioner, Saye Flomo, Patrina Jones, Sherry Jackson, who was the Qualified Mental Retardation Professional, and others. As a result of the investigation, Ms. Harrell concluded that Petitioner had neglected J.F. by failing to report his fall and by failing to obtain medical treatment for J.F.
16. Petitioner was notified by letter, dated August 3, 2001, that Respondent had substantiated the allegation of neglect and that Respondent intended to list the finding of neglect on the Health Care Personnel Registry.
17. Petitioner appealed Respondent’s decision and appeared at the hearing. During a pre-trial conference, Petitioner admitted the facts as set forth above. However, Petitioner expressed concern that she had been treated more harshly by the facility than other care-givers, including Saye Flomo, who were involved in J.F.’s care. Under these circumstances, Petitioner agreed to stipulate to the facts in the case. She also indicated that she would like to submit a rebuttal statement and to apply to have the listing of neglect removed at a later time. The regional manager for Community Innovations indicated that she would be willing to write a letter of recommendation for Petitioner if she applies to have the listing removed.
18. During the process of entering into stipulations and before the undersigned Administrative Law Judge, as well as during the facility’s investigation, Petitioner responded to the allegation of neglect with honesty and sincere remorse. Petitioner has acknowledged her mistake from the very beginning and has expressed sincere remorse for her actions. Petitioner acknowledged that she had mistakenly assumed that J.F. was not injured because he often had problems walking and would stay in bed due to tendonitis in his feet. Petitioner admits that, in failing to contact the nurse to report the fall, she made a bad judgment call. She expressed sorrow at such failure and stated that she will have to live with regret as a result of her mistake for the rest of her life.
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. As a habilitation aide and assistant program manager working in a resident care facility, Petitioner is subject to the provisions of N.C. Gen. Stat. § 131E-256.
4. “Neglect” is defined by 42 CFR Part 488.301 to means the “failure to provide goods and services necessary to avoid physical harm, mental anguish, or mental illness,” as is incorporated by reference in the definition found at 10 NCAC 3B.1001(10).
5. On August 20, 2001, while employed as assistant program manager at Friendway House in Greensboro, North Carolina, Petitioner neglected J.F., a resident, by failing to report that the resident had fallen and, in so doing, failing to obtain medical treatment for the resident.
6. Respondent did not err in substantiating the allegation of neglect against Petitioner because there is sufficient evidence to support Respondent’s conclusion.
Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned makes the following:
DECISION
That the Respondent’s decision to place a finding of neglect at Petitioner’s name in the Health Care Personnel Registry be upheld. The undersigned strongly recommends that, should Petitioner apply to have the listing of neglect removed at the appropriate time, the listing be removed from the Health Care Personnel Registry.
NOTICE
The agency that will make the final decision in this contested case is the North Carolina Department of Health and Human Resources, Division of Facility Services.
The agency is required to give each party an opportunity to file exceptions to this 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.
This the 20th day of November, 2001.
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Beryl E. Wade
Administrative Law Judge
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