This Is a Health Care Personnel Registry Case

STATE OF NORTH CAROLINAIN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF JONES01 DHR 1663

JOYCE JEANETTE JONES,)

Petitioner)

)

v.) DECISION

)

DEPARTMENT OF HEALTH AND )

HUMAN SERVICES, DIVISION )

OF FACILITY SERVICES,)

Respondent)

THIS MATTER came on for hearing before the undersigned Administrative Law Judge, James L. Conner II on June 27, 2002. Both parties submitted numerous witnesses and exhibits to the court, and the court considered all testimony of the parties’ witnesses, the arguments, and the exhibits entered in making the Decision in this case. Respondent submitted proposed Findings of Fact and Conclusions of Law on August 22, 2002. Petitioner submitted proposed Findings of Fact and Conclusions of Law on or about October 3, 2002.

APPEARANCES

Petitioner:David E. Gurganus

Voerman & Gurganus

50 Shoreline Drive

Post Office Box 12485

New Bern, North Carolina 28561-2485

Respondent:Jane L. Oliver

Assistant Attorney General

NC Department of Justice

Post Office Box 629

Raleigh, NC 27602-0629

PROCEDURAL BACKGROUND

1.On or about October 15, 2001, the petitioner herein filed a Petition for Contested Case Hearing in the Office of Administrative Hearings alleging she had been falsely accused of physically abusing a client by the name of G.M. at her place of employment, Caswell Center. Petitioner was notified of the entry of her name by certified mail on or about September 21, 2001. The Petition was timely.

2.A Notice of Contested Case and Assignment pursuant to N.C.G.S. §150B-23, 33(b)(4) was entered on October 22, 2001 by the Honorable Julian Mann, III, Chief Administrative Law Judge. Simultaneously entered was an Order for Prehearing Statements.

3.A Scheduling Order was entered by Judge Mann as well as an Order Extending Time to File Prehearing Statements on October 22, 2001, and November 20, 2001 respectively.

4.Respondent filed its Prehearing Statement on or about November 21, 2001. Petitioner filed her Prehearing Statement on or about November 29, 2001. Petitioner simultaneously filed a Motion to Amend Caption on or about November 29, 2001.

5.On December 3, 2001, Judge Mann entered an Order that the Respondent respond to Petitioner’s Motion to Amend Caption. On December 18, 2001, Petitioner’s Motion to Amend Caption was granted by Judge Mann.

6.The matter was originally scheduled for trial during the week of February 18, 2002, at the Craven County Courthouse in New Bern, North Carolina. On or about January 30, 2002, Petitioner’s counsel filed a Motion to Continue as a result of counsel being out of state. Respondent filed a response on or about January 31, 2002 and did not object to continuing the hearing and an Order of Continuance and Reassignment was entered by Judge Mann on February 4, 2002 continuing the matter to the week beginning March 18, 2002 in New Bern, North Carolina. Furthermore, Judge Mann ordered that the Honorable James L. Conner II be assigned to preside in any further proceedings in the case.

7.Notice of Hearing was filed on or about February 20, 2002 giving notice that the instant case was set for hearing on Wednesday, March 18, 2002 at 9:00 a.m. at the Craven County Courthouse in New Bern, North Carolina. During the hearing, Petitioner and Respondent presented to the Court testimony of witnesses and exhibits. However, as a result of the inability of the Lenoir County Sheriff’s Department to serve a number of Petitioner’s witnesses with subpoenas, the matter was continued by the undersigned until June 27, 2002. On that date, the remaining evidence was presented to the court and closing arguments took place. Thereafter, the undersigned gave the parties thirty (30) days after receipt of the transcript to present to the court Findings of Fact and Conclusions of Law.

ISSUES

1.Did the Respondent substantially prejudice Petitioner’s rights, exceed its authority and/or jurisdiction, act erroneously, fail to use proper procedure, act arbitrarily or capriciously, and/or fail to act as required by law when it notified petitioner that respondent intended to enter a finding of abuse of a resident of Caswell Center against Petitioner?

2.Was there enough evidence to find petitioner abused a client and for the Health Care Personnel Registry, pursuant to N.C.G.S. §131E-256 to place her name as an abuser on the Registry?

FINDINGS OF FACT

Based upon the record presented in this case, including all testimony and exhibits presented to the court, the court makes the following Findings of Fact:

1.The Petitioner herein, Joyce Jeanette Jones, is a Developmental Technician II at Caswell Center in Kinston, North Carolina. Ms. Jones’ job responsibilities are to assign staff to their duties, make client/doctor appointments, perform shopping tasks for clients, assess clients in self-help care skills and/or to assign the staff to assess self-care skills. Moreover, the Petitioner filled out time sheets, wrote HAB notes and objectives for clients and attended individual HAB team meetings.

2.From 1990 until February 1, 2002, Ms. Jones worked in Bryum IV, Division 9. Since February 1, 2002, Ms. Jones has been working in Birchwood A as a result of her request to be moved to another area in Caswell.

3.Throughout Ms. Jones’ employment with the Caswell Center, she has received extensive training on caring for the clients, as well as extensive training in abuse, neglect and exploitation. Petitioner, as a result of her training, was well aware that she had the duty of reporting any activity which she suspected to be abusive. This included physical abuse as well as mental abuse.

4.Santina Philyaw made the accusation that is the subject of this contested case. Ms. Philyaw was a Temporary Developmental Technician I at Caswell Center from April 11 to April 30, 2000.

5.Ms. Philyaw alleged that the following happened on April 20, 2000, with Ms. Philyaw the only witness besides the alleged participants. Petitioner and Ms. Philyaw were in the back activity room and G.M. was in his bedroom which was directly off the activity room. G.M. ran out of his bedroom. Petitioner reached up and grabbed G.M. around his throat and neck – not his shirt – and pushed him back against a table. Petitioner pushed G.M. so that his back was bent and he could not move. Petitioner instructed Ms. Philyaw to leave and told her that she would handle it.

6.The client, G.M., is a muscularly built adult male who stands approximately 5'8" tall. G.M. is very strong and is severely mentally retarded. G.M. suffers from severe autism and has a tendency to run throughout the entirety of Caswell’s campus. Furthermore, G.M. has the ability to move very heavy objects as a result of his strength, and he does so when he feels they are in the wrong place. This, and his tendency to crawl into dumpsters after things, tend to cause him to be scratched and bruised. G.M. is unable to communicate verbally. His mode of communication consists of grabbing a person’s arm and directing her to where he wants to go. Grabbing an unsuspected person’s arm has caused some people considerable alarm.

7.One cannot physically restrain G.M. as a result of his physical stature and strength, and gentle persuasion consisting of pointing or touching gestures is used to re-direct G.M. Moreover, as a result of G.M.’s activities, he injures himself, which is denoted by the staff on his visual body check sheets. G.M. also has a tendency to wave his hands and beat his ears thereby causing his ears to be cauliflowered.

8.Later on the evening of April 20, 2000, Ms. Philyaw gave G.M. his bath. She filled out a body check form on which she noted “Three scratches on right side, acts like it hurts. Scratch on right ear.” She also marked on the body outlines on the form the three scratches as being just above elbow height on the side of G.M.’s body. (Resp. Exh. 9)

9.In her testimony at the hearing of this matter, Ms. Philyaw claimed that G.M. had “three fingernail welts on his neck” when she bathed him April 20, 2000. (Tr. p 70) In her statement to investigators, she said G.M. “had fingernail whelps [sic] on both sides of his neck. I knew Joyce [Petitioner] had done it. I marked it in the red book on the body check sheet.” (Res. Exh. 10)

10.In fact, Ms. Philyaw did not note any welts on G.M.’s neck on the body check sheet, despite the obvious care she took in noting the scratches on his side and despite her testimony that she was distraught over the alleged incident between Petitioner and G.M. With regard to the scratches on G.M.’s side, Ms. Philyaw reported that “I have no idea how that happened.” (Resp. Exh. 9, 10)

11.Ms. Philyaw’s testimony is not credible. Her varying stories about what welts she found, and where they were on G.M.’s body, coupled with her failure to note neck welts on the body check sheet, render her testimony so fraught with inconsistency as to be probative of nothing. As for the body welts she did note on the chart, there is nothing in her story of Petitioner’s encounter with G.M. that would account for them. In addition, Ms. Philyaw’s testimony depicting Petitioner as a horrible Nurse Ratchet figure who caused the clients to cringe upon her mere approach was contradicted by every other witness in the case, including Petitioner’s supervisors and a former subordinate who now works at another hospital in another city. This excessively negative and extreme testimony, apparently untrue, casts a poor light on the remainder of Ms. Philyaw’s testimony.

12.Santina Philyaw reported her allegations of Ms. Jones’ alleged abusive behavior and Ms. Jones received a disciplinary statement from her supervisor, Dianne Dudley. The disciplinary statement consisted of a team of three people consisting of Deborah Martin, Marty Unruh, and Dianne Dudley. In that disciplinary statement no mention was made other than conclusory accusations of physical abuse and all that was stated was Ms. Jones was immediately ordered to refrain from using any kind of inappropriate language in the presence of or referring to individuals served by certain names. No mention was made for Ms. Jones to cease physically abusing clients. Thereafter, Ms. Jones timely appealed, in accordance with the Caswell Center’s appeal policy, and filed a Step II Grievance under DHHS Directive 33, requesting the removal of a written warning dated July 12, 2000.

13.Mr. Mike Moseley, Caswell Director, heard the grievance and ascertained there was insufficient evidence to support the allegations of abuse and removed the letter of warning from Ms. Jones’ file. Mr. Moseley clearly stated that if he even suspected an individual of abusing a client, they would be removed from their position. Mr. Moseley testified that he had known Ms. Jones for quite some time and never heard any complaints concerning her abusing clients. If he believed she was abusing clients, she would have been removed from her position and not allowed to continue to work at Caswell Center.

14.Thereafter, a Rebecca Buck of the Health Care Registry was called in to investigate the allegations in March or May of 2001. Ms. Buck interviewed Beverly Vincent, the Assistant Director, as well as Santina Philyaw, Sam Moss and Marty Unruh. Ms. Buck also interviewed Ms. Jones. Throughout the interview and the decision process, Ms. Buck was never provided with a body check sheet and based her decision that abuse had taken place, which eventually was reported to the Health Care Registry, purely on the testimony of Santina Philyaw. Santina Philyaw told Ms. Buck that Ms. Jones grabbed G.M. by the throat and left red marks on G.M.’s throat. However, when Ms. Buck and petitioner was provided with a copy of a body check sheet, there was no indication of any red marks on G.M.’s throat. All that was denoted on the check sheet were three scratches on G.M’s right side and a scratch on his ear. Ms. Buck admitted that a person of G.M.’s type easily could have injured himself and the injuries recorded on the body check sheet could have happened elsewhere. The only evidence available to support Ms. Buck’s finding of abuse on behalf of petitioner herein, were conclusory assertions levied against Ms. Jones by Santina Philyaw.

15.Testimony by Dorn Dockum, a former worker at Caswell Center, Bryum IV, Division 9, corroborated Ms. Jones’ contentions she had never abused anyone. In fact, Ms. Dockum testified that she had worked with G.M. on a number of occasions and that G.M. was a loving individual who cared for Ms. Jones. Most importantly, Ms. Dockum testified that Ms. Jones followed the proper procedure concerning the restraint of an individual when Dockum was violently attacked by a client and Ms. Jones had to restrain that individual. According to Ms. Dockum, Ms. Jones restrained the individual in accordance with Caswell’s policies so Ms. Dockum could escape potential life threatening injuries.

16.Other co-workers of Ms. Jones at Bryum IV, Division 9, at the time of the alleged incident consisting of Sheila Graham, Adam Judkins, and Robin Clark, testified on behalf of Ms. Jones. All individuals stated they had never seen Ms. Jones abuse a client either physically or verbally and that the clients were very amenable to Ms. Jones. All the foregoing witnesses further corroborated Ms. Jones’ position that G.M. was a “runner,” and he frequently injured himself, and could not be re-directed by physical persuasion. All of Ms. Jones’ witnesses clearly stated Ms. Jones never abused any client. In fact, the clients regarded Ms. Jones as a motherly figure.

17.None of Respondent’s witnesses other than Ms. Philyaw ever stated they saw Ms. Jones physically or verbally abuse a client. In fact, Tracy Merritt, Bryum IV Supervisor, stated her office was in Bryum IV and she had a daily interaction with clients. Ms. Merritt also stated she had never seen Ms. Jones abuse any of the clients.

18.Robin Clark, a Developmental Technician at Caswell Center since March 15, 2000, testified that she, another staff member, and G.M. all got scratched up when the two staff members tried to get G.M. out of a dumpster where he was trying to retrieve a couch. Shelia Graham, a Caswell Center employee for nearly three years, testified that when she tried standing in front of G.M. to block him from leaving, G.M. moved her aside “like I was a piece of paper.” Ms. Graham is a stout woman. She also testified that G.M. ran across campus, pulled a picnic table and its attached benches back across campus, and was scratched, sweaty, and had wet himself as a result of that activity. Adam Judkins, who has worked at Caswell Center since March 1999, testified that he had scars on both shins from trying to stop G.M. from dragging a picnic table. On another occasion, G.M. injured himself moving another picnic table off a construction site.

CONCLUSIONS OF LAW

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

1.The Office of Administrative Hearings has jurisdiction over the parties and the subject matter of this action 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 health care personnel working in a health facility, Petitioner is subject to the provisions of N.C. Gen. Stat. § 131E-256.

4.The definition of abuse applicable to the incidents occurring on April 20, 2000, pursuant to 10 NCAC 3H.2001, is as follows:

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

5.Had the confrontation between Petitioner and G.M. occurred as described by Ms. Philyaw, resulting in the injuries described verbally by Ms. Philyaw, it would have constituted abuse under the definition.

6.However, there is insufficient evidence supporting Ms. Philyaw’s story and Respondent’s disputed conclusion based on that story. Therefore, Respondent erred in substantiating the allegation of abuse against Petitioner.

Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned makes the following:

DECISION

Respondent’s decision to place a finding of abuse at Petitioner’s name in the Health Care Personnel Registry is REVERSED.

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 N.C.G.S. §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. 150B-36(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 Department of Health and Human Services.

This the 15th day of November, 2002.

______

James L. Conner, II

Administrative Law Judge

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