COUNTY OF IREDELL / IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
11 DHR 01955
Julie Sadowski
Petitioner,
v.
Department of Health and Human Services
Division of Health Service Regulation Respondent. / )
)
)
)
)
)
)
) / DECISION
THIS MATTER came on for hearing before the undersigned on December 8, 2011, in Lenoir, North Carolina.
APPEARANCES
For Petitioner: Samuel Winthrop, Esq.
Winthrop and Winthrop
P O Box 964
Statesville, NC 28687
For Respondent: Josephine N. Tetteh
Assistant Attorney General
North Carolina Department of Justice
9001 Mail Service Center
Raleigh, NC 27699-9001
ISSUE
Whether Respondent otherwise substantially prejudiced Petitioner’s rights and failed to act as required by law or rule when Respondent substantiated the allegation that Petitioner neglected two residents of Barium Springs Living in Statesville, North Carolina, and entered findings of neglect by Petitioner’s name in the 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
Respondent’s Exhibits 1- 34, 36, 37, 38 were admitted into the record. Exhibit 35 was admitted for illustrative purposes.
Petitioner’s Exhibits 1-3 were admitted.
WITNESSES
Julie Sadwoski
Kathryn Woods (co-worker)
Nevarre Lackey (co-worker)
Kristina Johns (supervisor)
Cynthia Haynes (HCPR Nurse Investigator)
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, or lack thereof, 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 and other evidence, the undersigned makes the following:
FINDINGS OF FACT
1. At all times relevant to this matter Petitioner, Julie Sadowski, was an overnight awake professional individual family teacher (“IFT”) at Barium Springs Home for Children (Barium Springs) in Statesville, North Carolina. Barium Springs is a residential care facility and therefore subject to N.C. Gen. Stats. §131E-255 and §131E-256. (T. pp. 11, 207; Resp’t Ex. 1)
2. Petitioner was trained for her position at Barium Springs. Petitioner’s training included client rights. Petitioner also was trained on facility policies and procedures such as safety of staff and youth, and supervision of clients. Petitioner is aware of Barium Springs’ Psychiatric Residential Treatment Facility policy and procedure, including the population served. (T. pp. 12-14, 16-17, 19-20, 163; Resp’t Exs. 2, 4-9)
3. Petitioner’s job responsibilities included providing adequate monitoring; knowing where clients are at all times; and providing safety for clients. (T. pp. 12-13, 68-69; Resp’t Ex. 1)
4. Petitioner was one of three staff members who worked the night shift on September 26, 2010. Petitioner was assigned to one of three checklists, Checklist B. Responsibilities for Checklist B include bed checks every fifteen (15) minutes, and supervision for residents in rooms 4, 5, and 6. (T. p. 20; Resp’t Exs. 10, 15)
5. Kathryn Woods (“Woods”) was one of the other two staff members working with Petitioner on September 26, 2010. At all times relevant to this proceeding, Woods was an employee of Barium Springs in Statesville, North Carolina. Woods was assigned to one of the other checklists. (T. pp. 128-130; Resp’t Ex. 23)
6. Nevarre Lackey (“Lackey”) was one of the other two staff members working with Petitioner on September 26, 2010. At all times relevant to this proceeding, Lackey was an employee of Barium Springs in Statesville, North Carolina. Lackey was assigned to checklist C. Responsibilities for Checklist C included paperwork. Lackey was Lead IFT for the shift. (T. pp. 82-84, 105; Resp’t Ex. 17)
7. During the shift, Petitioner and Lackey heard a knock from resident SM. Petitioner was vacuuming at the time and Lackey was sitting at a table doing paperwork. Petitioner answered the knock and allowed Resident SM out of his room so he could go to the bathroom. (T. pp. 21-23, 84-85; Resp’t Ex. 22A)
8. At all times relevant to this proceeding, Resident SM was an adolescent resident of the PRTF at Barium Springs. Resident SM’s diagnoses include psychotic disorder; major Depressive Disorder; Oppositional Defiant Disorder; Conduct Disorder, and ADHD. (T. p. 155; Resp’t Exs. 33, 36)
9. Resident SM asked Petitioner for permission to use the bathroom, and Petitioner agreed. Resident SM returned to his bedroom and grabbed a white blanket, which he proceeded to throw in the laundry basket. Resident SM then requested a washcloth from Petitioner. (T. pp. 23-24, 86; Resp’t Ex. 15)
10. After Petitioner gave Resident SM the washcloth, Petitioner turned away and returned to her vacuuming. (T. pp. 24, 90; Resp’t Exs. 36, 38)
11. Petitioner has worked with Resident SM in the past. (T. p. 22; Resp’t Ex. 36)
12. Petitioner finished vacuuming. Petitioner returned to the hallway a few minutes later to check on Resident SM. Petitioner asked Lackey if Resident SM had come out yet, and Lackey indicated she had not seen Resident SM come out. (T. pp. 25, 91; Resp’t Ex. 15)
13. As it had been a few minutes since Resident SM went into the bathroom, Petitioner knocked on the bathroom, to see if Resident SM was fine. Petitioner did not receive a response. (Resp’t Ex. 15)
14. At that point, Petitioner requested assistance from Lackey. Both Petitioner and Lackey knocked on the bathroom door and did not receive a response from Resident SM. After knocking on the bathroom door again, Petitioner and Lackey entered the bathroom. Resident SM was not in the bathroom. (T. pp. 25, 30, 92-93; Resp’t Ex. 15)
15. Petitioner and Lackey proceeded to look in Resident SM’s bedroom, and did not find him in there. Petitioner and Lackey began to look in other residents’ rooms. (T. pp. 25, 93; Resp’t Ex. 15)
16. During Petitioner and Lackey’s search, Woods walked out of the office and inquired about what was going on. Woods proceeded to assist by doing checks on Hallway 1. (T. pp. 26, 93, 131; Resp’t Ex. 18)
17. Petitioner and Lackey looked in another resident’s room and still did not find Resident SM. When Petitioner looked in the next room, Resident NA’s room, they found Resident SM there. (T. pp. 26-27, 93-94; Resp’t Ex. 15)
18. At all times relevant to this proceeding, Resident NA was a resident of the PRTF at Barium Springs. Resident NA’s diagnoses include ADHD, ODD, and Mood Disorder. (T. p. 156; Resp’t Exs. 34, 36)
19. When Petitioner and Lackey entered Resident NA’s room, they found Resident NA in bed and Resident SM lying on the floor between Resident NA’s bed and the wall. (T. p. 27, 94; Resp’t Exs. 12, 15, 16)
20. Woods returned to Hallway 2 and saw Petitioner and Lackey in Resident NA’s room directing Resident SM to return to Resident SM’s bedroom. After finding out what happened, Woods left and immediately notified the consultant on call, Sarah Dillon (“Dillon”). (T. pp. 27, 95, 131; Resp’t Ex. 23)
21. During a therapy session on September 28, 2010, Resident NA told his therapist that Resident SM had sexually assaulted him while Resident SM was in Resident NA’s room on September 26, 2010. (T. p. 151; Resp’t Ex. 25)
22. Kristina Johns (“Johns”) received a report about the incident. At all times relevant to this proceeding, Johns was the Regional Director for Barium Springs in Statesville, North Carolina. (T. pp. 148-149; Resp’t Exs. 26, 31)
23. Johns contacted the Division for Social Services and the police, and filed a 24-hour report with the Health Care Personnel Registry (“HCPR”). Johns then began a facility investigation. (T. pp. 149-150, 158; Resp’t Exs. 26, 27)
24. As part of her investigation, Johns spoke to various staff members including Petitioner, Lackey, and Woods. Johns also reviewed facility video footage. (T. p. 150-154; Resp’t Exs. 26, 29, 30)
25. At the conclusion of the facility investigation, Johns submitted her results on the 5-day Working Report to the HCPR. Johns also completed a facility report. (T. pp. 158, 160; Resp’t Ex. 28)
26. Facility policy and expectation in existence at the time of the incident required Petitioner to keep her eyes on a resident at all times. (T. pp. 163, 167; Resp’t Exs. 3, 30, 31)
27. At all times relevant to this matter, Cindy Haynes (“Nurse Investigator Haynes”) was an investigator with the Health Care Personnel Registry. Nurse Investigator Haynes is charged with investigating allegations against health care personnel in the Iredell, Rowan, Durham, and Person counties of North Carolina. Accordingly, she received and investigated the allegation that Petitioner had neglected Residents NA and SM at Barium Springs. (T. pp. 203-205; Resp’t Exs. 27-28, 36)
28. Nurse Investigator Haynes independently reviewed the facility documents and conducted her own investigation, which included interviewing people involved with the incident and reviewing the facility video footage. Nurse Investigator Haynes also obtained photographs. (T. pp. 207-208, 214; Resp’t Exs. 15, 17, 23, 29, 36, 38)
29. In reviewing the facility video documentation, Nurse Investigator Haynes found inconsistencies in Petitioner’s statement. (T. p. 223; Resp’t Exs. 36, 38)
30. Following the conclusions of her investigation, Nurse Investigator Haynes notified Petitioner of her decision to substantiate the allegation of neglect. (T. p. 226; Resp’t Ex. 37).
31. Neglect is the “failure to provide goods and services necessary to prevent physical harm, mental anguish, and mental illness”. (T. p. 224; Resp’t Ex. 36)
BASED UPON THE FOREGOING Findings of Fact, the undersigned 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 an individual family teacher working in a residential treatment facility, Petitioner is a health care personnel and is subject to the provisions of N.C. Gen. Stat. § 131E-255 and § 131E-256.
4. “Neglect” is defined as “a failure to provide goods and services necessary to avoid physical harm, mental anguish, or mental illness”.
5. On or about September 26, 2010, Julie Sadowski, a Health Care Personnel, neglected two residents (NA and SM) by failing to monitor adequately the residents, which allowed SM to assault NA.
6. Respondent did not act erroneously because there is sufficient evidence to support Respondent’s conclusion that Petitioner neglected Residents SM and NA.
DECISION
In rendering this decision, it is very apparent that the Petitioner is a well-trained, skilled, and conscientious worker. Through Petitioner’s testimony, the undersigned could also feel her empathy for the victim in this case. However, the video referenced in the Findings of Fact, offers irrefutable proof of the finding of neglect. The Petitioner did not overcome its burden and, therefore, 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 by Petitioner’s name on the Nurse Aide Registry and 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 Health Service Regulation.
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 3rd day of April, 2012.
J. Randall May
Administrative Law Judge
6