STATE OF NORTH CAROLINA

COUNTY OF LENOIR

IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

06 DHR 0023

Keith L. Mallory Jr.,

Petitioner,

v.

N.C. Department of Health and Human Services, Division of Facility Services,

Respondent.

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DECISION

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THIS MATTER came on for hearing before the undersigned, Beryl E. Wade, Administrative Law Judge, on August 16, 2006, in Kinston, North Carolina.

APPEARANCES

Petitioner: Keith L. Mallory, Jr.

1116 Candlewood Drive

Kinston, NC 28501

Respondent: Susan K. Hackney

Assistant Attorney General

North Carolina Department of Justice

9001 Mail Service Center

Raleigh, NC 27699-9001

ISSUE

Whether Respondent acted erroneously and otherwise substantially prejudiced Petitioner’s rights when it notified Petitioner that Respondent intended to enter a finding of abuse on the Health Care Personnel Registry.

APPLICABLE STATUTES AND RULES

N.C. Gen. Stat. § 131E-256

N.C. Gen. Stat. §150B-23

42 CFR § 488.301

10A N.C.A.C. 13O.0101

EXHIBITS

Respondent’s exhibits 1-2, 4-5, 8-12, and 16-27 were admitted into the record.

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. At all times relevant to this matter Petitioner, Keith L. Mallory, Jr. was employed as a habilitation technician at Nova Behavioral Healthcare, Inc. (Nova) in Kinston North Carolina, a mental health group home and therefore subject to N.C. Gen. Stat. § 131E-256. (T. p. 16; Resp. Exh. 22, 23)

2. Petitioner was trained on abuse and neglect while at Nova. (T. pp. 17, 19, 21; Resp. Exh. 2)

3. Petitioner was approximately 6’2” tall and weighed about 300 pounds at the time of the incident.

4. Petitioner also received North Carolina Intervention (NCI) training while at Nova. NCI is a technique used in crisis situations to prevent further incidents. (T. p. 18, 21)

5. NCI requires that when a resident is noncompliant, a health care worker should first use verbal prompts. (T. p. 26, 95-96)

6. When staff members become frustrated with a resident, they are to talk to another staff member and switch off to prevent any altercations. Often a different staff member can change the resident’s behavior. (T p. 27-28; Resp. Exh. 12)

7. At all times relevant to this matter, Duwanda Conway was employed at Nova as a habilitation technician. (T. p. 80-81)

8. At all times relevant to this matter, Carl Cox was employed at Nova as a habilitation technician. (T. p. 119)

9. On the evening of November 3, 2005, Petitioner was working in Nova’s Shackleford Group Home. That evening there were three staff members, Petitioner, Ms. Conway and Mr. Cox, on duty. There were about seven or eight residents at the group home that evening. (T. pp. 29, 84, 123)

10. Petitioner had worked with resident CH for approximately three months. CH was approximately 5’10” tall and weighted approximately 175 pounds. CH had a history of elopement and he had problems with physical aggression, property destruction and inappropriate verbalization. (T. pp. 28-29, 82)

11. Ms. Conway had worked with CH for three or four months prior to the incident. She was not aware of CH making any false accusations against staff members. (T. p. 82-83; Resp. Exh. 12)

12. During the evening of November 3, 2005, CH had a snack of ice cream. After he finished he took his bowl to the kitchen and put it in the sink. Petitioner asked CH to wash out the dish. CH said, “No,” then took the bowl, rinsed it out and put it in the cupboard. (T. pp. 30-31, 36, 70)

14. When this exchange took place, Petitioner was sitting in the family room on the sofa near the TV and the fireplace. Petitioner could see CH from where he was sitting. (T. p. 32; Resp. Exh. 1, 5)

15. Ms. Conway was on duty the night on the evening of November 3, 2005. Ms. Conway was sitting at the desk by the fireplace in the family room documenting things in the logbook. (T. p. 84-85; Resp. Exh. 1)

16. RW, another resident, was at the desk in the breakfast area talking on the telephone with his mother. (T. p. 34, 74, 90-91, 114; Resp. Ex. 1, 9)

17. Petitioner explained to CH that the dished needed to be washed, not just rinsed. CH refused to clean the bowl, saying, “It’s just ice cream.” (T. p. 34, 37, 70-71, 86; Resp. Exh. 11, 12)

18. Another resident, LP, overheard CH’s remarks and he and CH got into an argument. Mr. Cox, separated LP and CH and then took LP into the dining room. (T. p. 37, 38, 71, 87, 124; Resp. Exh. 1)

19. CH returned to the family room and sat down on the sofa near the opening to the kitchen, across the room from Petitioner. (T. p. 39; Resp. Exh. 5)

20. Petitioner walked over to where CH was sitting. (T. p. 40, 73, 87; Resp. Exh. 5)

21. Ms. Conway saw Mr. Mallory lean over to grab CH who was still sitting on the couch. She turned her head and when she turned back she saw CH falling. CH’s feet were off the ground and his body was parallel to the floor. Ms. Conway saw CH hit the floor, head first. (T. pp. 88-90, 97, 101-102, 105, 106; Resp. Exh. 11, 12)

22. When CH’s head hit the floor, it made a loud noise. (T. pp. 55, 90, 124-125; Resp. Exp. 9)

23. CH began yelling and screaming and holding his head. He kept saying, “You dropped me on my f------head.” (T. pp. 55, 57, 91, 92, 126, 129; Resp. Exh. 8, 9, 11).

24. Mr. Cox rushed into the room and found CH on the floor rubbing his head and screaming. CH had a hematoma, a “goose egg,” on the crown of his head, almost at the top of his head. He also had a small mark on his back and on his shoulder. Mr. Cox got ice to put on CH’s head. (T. pp. 92, 126, 129-130, 131, 154; Resp. Exh. 8, 9, 12)

25. Mr. Conway heard RW screaming and saying, “I saw you do it.” (T. p. 134)

26.  Kim Manning, a registered nurse for Nova, examined CH the next day, November 4, 2005. She found a lump on CH’s head which she described as the size of an egg, split in half lengthwise and placed on the head. The lump was located at the crown of CH’s head, the area where the hair grows in a “little swirl.”

27. Ms. Manning did not believe the injury could have occurred from CH tripping and hitting his head on the floor. She believed the injury was consistent with receiving a blow of some sort to the head. (T. p. 163)

28. At all times relevant to this matter, Shirley Reddick was the qualified professional for Nova. Her duties included clinical supervision over client care and staff supervision. Ms. Reddick was in charge of the facility investigation of the incident. (T. p. 166; Resp. Exh. 18)

29. Ms. Reddick interviewed Petitioner, CH, Duwanda Conway, RW, Carl Cox and the supervisor in charge that night. After she completed her investigation, she substantiated inappropriate intervention based on the account of the incident she received from the witnesses. She concluded CH had been dropped from a high distance from the ground. (T. pp. 168-174, 175, 177, 187, 191, 192; Resp. Exh. 18)

30. During her conversation with CH, Ms. Reddick transcribed his statement, read it back to him and after he read the statement, CH signed it. She also transcribed RW’s statement which he signed after reading over it. Both statements were consistent with what the boys told her that day. (T. pp. 179-181, 197-200; Resp Ex. 19, 20)

31. Ms. Reddick reported the allegation to the Department of Social Services (DSS). DSS substantiated the allegation of abuse. (T. p. 177, 217; Resp. Exp. 21)

32. The incident was reported to the Health Care Personnel Registry on the 24-hour report. (Resp. Exh. 22)

33. At all times relevant to this matter, Pamela Anderson was an investigator with the Health Care Personnel Registry. Ms. Anderson is charged with investigating allegations against health care personnel in the northeast area of North Carolina. Accordingly, she received and investigated the allegation that Petitioner had abused a resident at Nova. (T. p.206-207)

34. Ms. Anderson received the 24-hour report and the 5-working day report from Nova. After reviewing the reports she determined that the incident needed investigation. (T. p. 207; Resp. Exh. 22, 23)

35. As part of her investigation, Ms. Anderson interviewed Petitioner. He denied picking up CH and dropping him on his head. (T. p. 211,; Resp. Exh. 4)

36. Ms. Anderson interviewed CH and found him to be a credible witness. His account of the incident was consistent with what he had said during the facility investigation and the DSS investigation. CH’s care plan showed that he should be verbally redirected and that the only time an NCI intervention should be used was if CH was attempting to harm himself or others. (T. p. 214, 216)

37. As part of her investigation, Ms. Anderson also reviewed Petitioner’s personnel file, the facility investigation documents and all of their statements. She also reviewed the documentation from Lenoir County DSS. She interviewed CH, Shirley Reddick, Carl Cox, Duwanda Conway, Lisa Edwards, Lisa Wooten, Sabrina Edwards, CH and Petitioner. (T. p. 216)

38. Ms. Anderson spoke with the surveyor from the Division of Facility Services Mental Health Section (DFS). DFS conducted an investigation and completed a complaint survey after interviewing CH, Carl Cox, Duwanda Conway and others. The complaint survey documented CH’s account of the incident just as he told Ms. Anderson. DFS’s interview with RW also corroborates his statement to Ms. Anderson and the facility. (T. pp. 219-221; Resp. Exh. 27)

39. Ms. Anderson concluded that Petitioner abused CH by dropping him on his head which resulted in injury to his head and mental anguish. CH’s injuries were not consistent with Petitioner’s account of the incident. The injuries were consistent with being dropped from a distance. She recorded her conclusions in a report. (T. p. 223, 232-233; Resp. Exh. 25)

40. Abuse is the willful infliction of injury, unreasonable confinement, intimidation or punishment with resulting physical harm, pain, or mental anguish. (T. p. 224)

41. Ms. Anderson found there was willful infliction of injury resulting in the hematoma on CH’s head, bruise on his shoulder and mental anguish. (T. p. 224)

42. Petitioner was notified by letter that a finding of abuse would be listed against his name in the Health Care Personnel Registry. (T. p. 225; Resp. Exh. 26)

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 technician in a mental health group home, Petitioner is a health care personnel and is subject to the provisions of N.C. Gen. Stat. § 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 November 3, 2005, Petitioner abused resident CH by dropping the resident on his head on the floor resulting in the resident hitting his head and left shoulder. This resulted in CH experiencing physical harm and mental anguish.

6. Respondent did not act erroneously and did not otherwise substantially prejudiced Petitioner’s rights when it notified Petitioner that Respondent intended to enter a finding of abuse on the Health Care Personnel Registry.

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 at Petitioner’s name on the Health Care Personnel Registry should be UPHELD.

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 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.

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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.