State of North Carolina s42

STATE OF NORTH CAROLINA

COUNTY OF LENOIR

IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

05 DHR 0773

SHEILA E. BRIGGS,

Petitioner,

MS. SATANA T. DEBERRY, GENERAL COUNSEL DEPARTMENT OF HEALTH AND HUMAN SERVICES

Respondent.

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DECISION

THIS MATTER came on for hearing before the undersigned, Beecher Gray, Administrative Law Judge, on February 17, 2006, in Kinston, North Carolina.

APPEARANCES

Petitioner: Shelia E. Briggs

1739 US Highway 258 North

Kinston, NC 28504

For 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 arbitrarily or capriciously when it notified Petitioner of its intent to enter two findings of abuse by Petitioner in the Health Care Personnel Registry as follows:

On or about January 9, 2004, Shelia Briggs, a Health Care Personnel, abused a resident LS by hitting the resident with her fists and by kicking the resident.

On or about January 9, 2004, Shelia Briggs, a Health Care Personnel, abused a resident KN by pushing the resident away from her car, and by hitting the resident several times with the car door.

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 - 7, 9, 10, 12, 13, 15, 17, 19, 21, 23, 25 and 27-29

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, Shelia Briggs, was a Health Care Personnel employed at Nova Behavioral Health (“Nova”) in Kinston, North Carolina. Therefore, Petitioner is subject to N.C. Gen. Stat. §131E-256. (T p . 9; Resp. Exhibit 27)

2. Nova is a residential facility with a home-like setting for children with dysfunctional home environments. Petitioner’s duties were to assist the children with hygiene, taking care of the facility and preparing for school. (T p. 10)

3. Petitioner has been taught about resident abuse and understands that clients have the right to be free from abuse. She understands that abuse includes acts such as slapping and shoving. (T. pp. 12-13, 14-16; Resp. Exhibit 1-3)

4. Petitioner was trained in North Carolina Intervention (“NCI”), defense techniques for dealing with aggressive clients. First, staff members are to use verbal prompts to de-escalate the client’s aggressive behavior. Then, they are to enlist the help of another staff member to bring the child under control. Finally, if nothing else works they are to block any attempt by a client to hit them. (T. p. 11-13, 16-17, 96; Resp. Exhibit 4)

5. On January 9, 2004, Petitioner was scheduled to work from 4:30 p.m. to 11:00 p.m. There were three staff members working that shift and seven clients. (T. pp. 17-18; Resp. Exhibit 4)

6. After dinner, a client, DN, became upset with another staff member, Stephanie. After DN went into the kitchen, all the staff members and clients went into the kitchen with her. DN began pouring condiments such as hot sauce, vinegar and spices onto the floor. (T. pp. 24; Resp. Exhibit 4)

7. After staff asked DN to stop the behavior, she went to the staff office and kicked the door in. Petitioner was standing by her when she kicked the door in and followed her into the office. DN picked up the base of the telephone but Petitioner had the receiver so DN threw the phone down and went back into the kitchen. (T p. 26-27; Resp. Exhibit 4)

8. Petitioner tried to dial out for help but was unable to do so because someone had picked up the extension in the kitchen. She attempted to use her cell phone to call 911 but the operator could not hear her because of the noise in the home. (T. p 27; Resp. Exhibit 4)

9. Another client, LS began throwing things at Petitioner. LS was approximately eight feet away from Petitioner and Stephanie was between Petitioner and LS. Petitioner was on the other side of the desk in the office when LS came towards Petitioner and Petitioner hit LS with her fist. (T. pp. 28-30; Resp. Exhibit 4, 6)

10. Petitioner did not try to intervene verbally by saying something like, “Don’t come near me.” Petitioner did not call any of the other staff members to help her although Stephanie was close by. (T. pp. 30-31)

11. LS had not threatened Petitioner at all during the entire evening. Petitioner does not remember if LS raised her hands in any way. (T. p. 30-31, 36)

12. Stephanie grabbed LS and put her in the kitchen but LS came back into the office. As she came back toward Petitioner, Petitioner “punched” LS again and kicked her away with her foot. (T. p. 31, 33; Resp. Exhibit 4, 6)

13. LS landed on Stephanie and Stephanie grabbed LS again and put her in the kitchen. Petitioner left the home through the office door. (T. p. 31-32, 33)

14. Petitioner went to her car but one of the children was standing against the door. Petitioner unlocked the door with the automatic key lock and “took the child from behind her neck,” told her to move and “pushed her far away from the door.” When Petitioner got into the car, the child pushed her door closed so Petitioner locked the car door. (T. p. 32; Resp. Exhibit 4, 6)

15. Petitioner drove down the street slowly with the kids following her. As she drove, she received a call from the operator at 911. Petitioner went onto the main highway and parked there until she saw the kids coming at which time she drove approximately 1/4 mile and turned into someone’s driveway. From this position, she called her supervisor. (T. pp. 35-36; Resp. Exhibit 4, 6)

16. Petitioner’s supervisor instructed her to go home and wait by the phone. She did not return to work at Nova. (T. p. 35-36; Resp. Exhibit 4)

17. At all times relevant to this incident, Sheree Hill was a habilitation technician at Nova. (T. p. 28)

18. Ms. Hill saw Petitioner hit LS and wrote it in her statement for the facility. (T. p. 52; Resp. Exh. 10, 12)

19. Ms. Hill had been trained in dealing with aggressive clients. She was taught that it was never appropriate to hit a client; instead she was to try talking with them, put them in a therapeutic hold and if necessary, to block them. (T. pp. 53-54; Resp. Exh. 10)

20. Petitioner never called out to Ms. Hill to ask her for help. Ms. Hill never saw Ms. Briggs make any attempt to calm LS verbally. (T. pp.54)

21. Ms. Hill observed Petitioner push KN when Petitioner went to her car. As Petitioner shut the car door, it hit KN. (T. p. 57, 61-62)

22. Ms. Hill followed LS who was walking down the middle of the highway behind Petitioner. When Ms. Hill coaxed LS to the side of the road, LS was “crying and fussing.” Ms. Hill convinced LS to walk with her back to the home. (T pp. 59-60, 62)

23. At all times relevant to this incident, Stephanie Roach was employed at Nova as a habilitation technician. (T pp. 65-67)

24. Ms. Roach observed Petitioner his LS and LS hit Petitioner. She did not see Petitioner attempt to place LS in a therapeutic hold or block LS. (T pp. 69-70)

25. Ms. Roach hold also been taught that it is never appropriate to hit a client. She was instructed to try to intervene verbally first, then if the client gets physical block them and finally, if nothing else works, to place them in a therapeutic hold. (T pp. 71-73)

26. When Petitioner ran outside, Ms. Roach stayed inside with two of the girls and did not see the incident outside. The girls she stayed with were upset because they observed a staff member, Petitioner, hit a client. (T. p. 72)

27. At all times relevant to this incident, Rebecca Buck was a nurse investigator with the Division of Facility Services, Health Care Personnel Registry. Ms. Buck is charged with investigating allegations against health care personnel in the northeastern area of North Carolina and Lenoir County. Accordingly, she received and investigated the allegation that Petitioner had abused a resident Nova. (T pp. 75-76; Respondent Exh. 27)

28. Ms. Buck screened the allegation in for investigation and conducted the investigation in April 2005. Ms. Buck interviewed Petitioner, Ms. Roach, Ms. Hill, and clients LS, KN, SW, CC, DH, KK (T pp. 77, 79, 80-81, 82-83, 84, 85; Respondent Exh. 4, 7, 10, 13, 15, 17, 19, 21, 23, 25)

29. Ms. Buck reviewed the statements the facility took after the incident, the facility conclusion of their investigation, Petitioner’s personnel file and training records and the medical records of each of the clients. (T. pp. 89-90)

30. Ms. Buck concluded that Petitioner abused LS by hitting her and kicking her and that Petitioner abused KN by pulling her away from the car door. Ms. Buck wrote a final report documenting her conclusion. (T. p. 90; Respondent Exh. 28)

31. Abuse is the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting pain or mental anguish. Ms. Buck substantiated the allegation of abuse against Petitioner because Petitioner’s willful acts were witnessed by several staff and clients. Petitioner admitted to the acts in her statement to the facility, her written statement and her interview with the Ms. Buck. The action was willful and was intimidating and punishing. A hit with a fist results in physical pain and mental anguish was described by both clients involved. (T pp. 91; Respondent Exh. 28)

32. Ms. Buck took into account the events that happened in the home that evening and the confusion it caused. However, two witnesses observed Petitioner hit LS and shove KN yet neither felt threatened by the clients. (T p. 92)

33. Petitioner was notified by letter that a finding of abuse would be listed against her name in the Health Care Personnel Registry. Attached to the letter was the Entry of Finding, which is the exact substantiated finding as it will appear on the Health Care Personnel Registry. (T pp. 92; Resp. Exhibit 29)

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 Health Care Personnel working in a residential care facility, Petitioner is subject to the provisions of N.C. Gen. Stat. § 131E-256.

4. “Abuse” is defined as “the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish.” 42 C.F.R. 488.301, 10A N.C.A.C. 13O.0101.

5. Petitioner has the burden of proving that Respondent acted outside its authority pursuant to N.C. Gen. Stat. § 150B-23(a). Holly Ridge Assocs., LLC v. N.C. Dep't of Env't & Natural Res., 2006 N.C. App. LEXIS 581 (2006).

6. Petitioner did not meet its burden of proving that Respondent acted erroneously and arbitrarily or capriciously when it notified Petitioner of its intent to enter the following finding of abuse by Petitioner in the Health Care Personnel Registry:

On or about January 9, 2004, Shelia Briggs, a Health Care Personnel, abused a resident LS by hitting the resident with her fists and by kicking the resident.

7. There is not substantial evidence in the record to support the following finding of abuse on the Health Care Personnel Registry:

On or about January 9, 2004, Shelia Briggs, a Health Care Personnel, abused a resident KN by pushing the resident away from her car, and by hitting the resident several times with the car door.

DECISION

Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby determines that Respondent’s decision to place the following finding of abuse at Petitioner’s name on the Health Care Personnel Registry, should be UPHELD:

On or about January 9, 2004, Shelia Briggs, a Health Care Personnel, abused a resident LS by hitting the resident with her fists and by kicking the resident.

On or about January 9, 2004, Shelia Briggs, a Health Care Personnel, abused a resident KN by pushing the resident away from her car, and by hitting the resident several times with the car door.

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.