THIS MATTER was heard before the undersigned Augustus B. Elkins II, Administrative Law Judge, in Durham, North Carolina on August 27, 2004. Proposed findings of fact and conclusions of law were submitted by Respondent on November 19, 2004. Petitioner submitted no proposals and the record was closed November 19, 2004.

APPEARANCES

Petitioner: Pro Se

Respondent: N. Morgan Whitney, Jr.

Assistant Attorney General

North Carolina Department of Justice

9001 Mail Services Center

Raleigh, NC 27699-9001

ISSUE

Whether Respondent deprived the Petitioner of property, or otherwise substantially prejudiced the Petitioner's rights, and exceeded its authority or jurisdiction, acted erroneously, failed to use proper procedure, acted arbitrarily or capriciously, and/or failed to act as required by law or rule, when it substantiated the following allegations of abuse and decided to list Petitioner on the Health Care Personnel and/or Nurse Aide Registries:

1. "On or about 10/07/2003, Chinedu Akamelu, a nurse aide, abused resident, WN, by speaking rudely to the resident and making the resident wait for services." (R. Ex. 13)

2. "On or about 10/07/2003, Chinedu Akamelu, a nurse aide, abused resident, KT, by speaking rudely to the resident and making the resident wait for services." (R. Ex. 13)

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

For Petitioner: 1, 2.

For Respondent: 1-4, 7-9, 11-13, 19, 21-23.

BASED UPON careful consideration of the sworn testimony of the witnesses presented at the hearings, the documents and exhibits received and admitted into evidence, 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.

FINDINGS OF FACT

1. IHS (Integrated Health Services) of Durham is a nursing home located in Durham, North Carolina. In order to provide services to its residents the Home employs Certified Nursing Assistants (CNA’s).

2. On October 7, 2003, Petitioner was present in the home and working there in the capacity of a CNA.

3. On October 7, 2003, W.N. was a resident of the home. W.N. had been diagnosed with Diabetes Mellitus – Type 2, Osteomylitis, Hypertension, Prolonged Ileus, Retinopathy, Neuropathy, gastroparesis and Oglivei’s Syndrome. W.N. was also recovering from a Kidney Transplant operation. As of January 14, 2004, W.N. was alert and oriented as to person, place and time. (Resp. Ex. 7, 8)

4. On October 7, 2003, K.T. was a resident of the home. K.T. had been diagnosed with Lymphadenitis, below knee amputation, failure to thrive, a urinary tract infection and was obese. K.T. had been discharged from the home before Respondent investigated. K.T. was not interviewed by Respondent. (Resp. Ex. 9) K.T. was alert and oriented. (T. p. 27)

5. On October 7, 2003, Denice Davis was employed by the Division of Facility Services of the North Carolina Department of Health and Human Services. At that time she was working as a facility survey consultant and she was the team leader on an individual survey team. As a surveyor she was charged with the responsibility of conducting annual surveys in long term care facilities to verify that those facilities were in compliance with state and federal regulations. She was also charged with investigating complaints in those facilities. On this date she was conducting a scheduled survey. Simultaneously, and unbeknownst to the home, she was investigating a complaint regarding the quality of care services at the home. (T. pp. 16-17, Resp. Ex. 21)

6. During her survey, Ms. Denice Davis talked to several patients on the first floor of the home. One of those residents was K.T. K.T. revealed to Ms. Davis that she had been treated rudely by a staff member on the 3 p.m. to 11 p.m. (2nd) shift. K.T. also revealed that the same staff member had told her that she wouldn’t be helped to the bedside commode because she was just too big to work with. K.T. said that she had not reported this incident to anyone at the home. (T. pp. 19-22, Resp. Ex. 21)

7. Ms. Denice Davis decided to observe K.T. and the care she was receiving on 2nd shift. She arrived at K.T.’s room at 3:10 p.m. K.T. reported that she had pushed her call bell approximately 25 minutes earlier because she needed assistance to get to the bedside commode and/or use her bedpan. After another 15 minutes, Ms. Davis asked K.T. to ring her call bell again. Ms. Davis went into the hallway to see if anyone would respond. A CNA by the name of “Destiny” responded, entered the room and said that she had to go get the Hoyer Lift, and that she would be back. (T. pp. 22-23, Resp. Ex. 21)

8. While Ms. Davis was in the hallway, Petitioner entered the room. Petitioner was talking to K.T. and told K.T. that she was “just too big” for her to help. K.T. was telling Petitioner that it had just been “too long” and that she “had to go.” Petitioner then saw Ms. Denice Davis standing in the doorway. Petitioner then said, “I just got here. I didn’t refuse to help you.” Ms. Davis described Petitioner’s demeanor as “stern and harsh.” (T. pp. 23-24, Resp. Ex. 21)

9. Shortly thereafter Destiny returned with the Hoyer lift. Petitioner and Destiny then helped K.T. go to the bathroom. When Petitioner and Destiny had finished with K.T. and changed her, K.T. said to Ms. Denice Davis, “Yes, now you see what I’m talking about.” (T. pp. 24-25, 28, Resp. Ex. 21)

10. On October 9, 2004, Ms. Denice Davis returned to the home and had a conversation with K.T. wherein she said that the Administrator of the home had been in the day before, talked about what happened with the Petitioner on October 7 and informed her that the Petitioner had been suspended. In this same conversation K.T. revealed that the incident made her feel “bad” but that she was happy she would not have to “put up with that CNA anymore.” (T. pp. 25-26, Resp. Ex. 21)

11. Ms. Denice Davis determined from her investigation that K.T. was alert and oriented; that what K.T. had told her was reliable. Ms. Davis did not cite the home for any violations because they had no foreknowledge of Petitioner’s behavior and that once Ms. Davis told the home what had happened, the home responded appropriately by notifying the Respondent and suspending the Petitioner. (T. p. 27)

12. According to the home’s records, and the testimony of Sara Davis, the current Administrator of the home, the decision to terminate Petitioner’s employment was made on October 10, 2003. Collen Maxwell, the Administrator at the home in October 2003 began the investigation by meeting with Petitioner on October 7, 2003 between 4 and 4:30 p.m. and told Petitioner that she was being suspended pending the facility investigation. Petitioner refused to sign the form. During the home’s investigation the nature of the current allegations and two prior incidents with Petitioner were taken into account. Those prior incidents were: 1) On July 28-29, 2003 Petitioner had refused to provide a patient with a urinal and 2) On September 9, 2003 Petitioner swatted a resident on the cheek causing that resident to lose balance and fall backwards. The home substantiated its investigation based on interviews with the residents, Ms. Denice Davis and the wife of W.N. The decision was made to terminate Petitioner’s employment and Petitioner was called on October 10, 2003 to come to the home for that purpose but Petitioner was unable to come to the home until October 15. Petitioner’s employment was terminated on that date. (T. pp. 103-07, 109-110, Resp. Ex. 1, 19, 22, 23)

13. Respondent’s investigator, Ms. Cheryl Guinan, RN, testified and summarized the findings of her investigation. She reviewed the medical records of both K.T. and W.N. She interviewed resident W.N. but was unable to interview K.T. because she had been discharged from the home at the time of the onsite investigation. (T. pp. 43-47, Resp. Ex. 7-9)

14. Respondent’s interview with resident W.N. revealed that he had problems with one particular CNA, whom he described as a “fat, tall, African woman.” W.N. revealed that he had been made to wait for a urinal and that by the time she brought it to him he said, “I think I had wet myself by then.” (Resp. Ex. 8) W.N. was a kidney transplant patient and had been hospitalized for kidney failure shortly before this incident. (T. pp. 48-49, 51-52, 61, Resp. Ex. 7)

15. Ms. Guinan did interview the Petitioner by telephone on January 13, 2004. Petitioner told Ms Guinan that she did not know there was a problem at the home until she received the pending notice letter from the Respondent. Petitioner revealed that sometime in October, 2003 she received a call from the home informing her that she had been laid off because the home had “too much staff.” She also denied having had a meeting with or any other contact with, the home after the phone call wherein she was told that she was laid off. (T. pp. 53-58, Resp. Ex. 11)

16. In her interview, Petitioner stated that she had not had any prior disciplinary issues while employed at the home. Ms. Guinan confronted the Petitioner with the fact that she, Ms. Guinan, had investigated four (4) allegations against the Petitioner. Petitioner then recalled those incidents. None of these prior allegations were substantiated. (T. pp. 55-56, Resp. Ex. 11)

17. Ms. Guinan testified that she substantiated the current allegations of abuse against the Petitioner based upon her interview with the Petitioner, facility records and the interview with W.N. Ms. Guinan was clear that the denial of services, i.e. helping these residents go to the bathroom was abuse in that Petitioner willfully refused to provide that service to W.N. and K.T. Ms. Guinan also noted the many inconsistencies in Petitioner’s story and its stark contradiction to facility records. (T. pp. 60-67, Resp. Ex. 12)

18. At the hearing of this matter Petitioner testified that she had responded to K.T.’s call light and that when she arrived at the room she explained to K.T. that, “Look, I cannot do you by myself because I will have to go and get somebody to help me out.” Petitioner also testified that she told K.T., that “There is no way I can do you by myself; I still have to go and get somebody to help me out.” Petitioner indicated that K.T. seemed “annoyed” that she, the Petitioner, had to go. (T. pp. 77-78)

19. Petitioner also testified, “after everything … the DON called me. Said that K.T. was annoyed that the CNA was saying that I do something to upset her (K.T.). I didn’t do anything to upset her. I didn’t say anything bad to her.” Petitioner went on to testify “So they said that I will leave. I was gone.” Later, Petitioner stated that she got a call that she was being let go because the home was “downsizing.” (T. pp. 79-80)

20. Petitioner testified that she applied for, and began receiving unemployment in the amount of $119.00 per week. She further testified that she would not have gotten unemployment if she had been terminated. (T. pp. 80-81)

21. Petitioner testified that she was “called back” to the home around the 11th or 12th of October and was given a Certificate of Appreciation. Upon cross-examination, Petitioner testified that she was called back to the home on October 14th or 15th. (T. pp. 82, 93-94)

22. Petitioner testified that she did not tell Ms. Guinan in her interview that on October 7, she had told K.T. that she needed to get the Hoyer lift and that she would be right back. (T. pp. 95-96)

23. Petitioner denied that she had been terminated from the home and testified that the previous incidents did not involve her, but another CNA. (T. pp. 83-86, 117-118) Petitioner also denied that she did not recall any problems with W.N. (T. p. 97)

BASED UPON the foregoing findings of fact and upon the preponderance or greater weight of the evidence in the whole record, the Undersigned makes the following

CONCLUSIONS OF LAW

1. The parties are properly before the Office of Administrative Hearings and have stipulated that Notice of this hearing was timely.

2. The North Carolina Department of Health and Human Services, Division of Facility Services, Health Care Personnel Registry Section is required by N.C. Gen. Stat. § 131E-255 and -256 to maintain a Registry that contains the names of all health care personnel working in health care facilities against whom a finding of abuse, neglect, or misappropriation of resident and/or facility property has been substantiated.

3. 42 CFR 488.301 states that, “Abuse means the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish.”

4. IHS of Durham is a nursing facility as defined in N.C. Gen. Stat. § 131E-255. In order to provide these services to its residents the Home employs CNA’s which are subject to the provisions of N.C. Gen. Stat. § 131E-255.

5. Petitioner is a CNA and is subject to the provisions of N.C. Gen. Stat. § 131E-255.

6. Petitioner’s testimony is not credible. Specifically, this Court finds that:

a. Petitioner’s testimony regarding the incident with K.T. is in stark contrast to the testimony of Ms. Denice Davis, the surveyor for the Division of Facility Services. The Undersigned finds that Ms. Davis’ account of the incident convincing.