STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF BURKE 01 DHR 0883

Wendy Nicole Smith Pearson )

Petitioner )

)

vs. ) DECISION

)

North Carolina DHHS (Health Care )

Personnell Registry Section) )

Respondent )

This matter was heard before Dolores O. Smith, Administrative Law Judge, on November 6, 2001, in Newton, North Carolina.

APPEARANCES

For Petitioner: Phyllis A. Palmieri

Law Office of Phyllis A. Palmieri & Associates

Attorneys at Law

216 E. Concord Street

Morganton, North Carolina 28655

For Respondent: Jane L. Oliver

Assistant Attorney General

N.C. Department of Justice

PO Box 629

Raleigh, North Carolina 27602-0629

ISSUES

Did Respondent err when it determined that, on or about March 1, 2001, Petitioner, a health care technician, abused S.H., a resident of a health care facility, by slapping the resident on the cheek?

STATUTES AND RULES AT ISSUE

N.C. Gen. Stat. § 131E-256

N.C. Gen. Stat. § 150B-23

10 NCAC 3B.1001

EXHIBITS

The following exhibits were admitted into evidence: Petitioner’s Exhibits 1, 2, 3, 5, 7, 13, 14, 15, 16, 17, 19, 20, 21, 23; Respondent’s Exhibits 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, and 13. Petitioner’s Exhibit 4 was admitted for the limited purpose of showing that it was part of Western Carolina Center’s investigative file but not for the truth of the matters asserted therein. Petitioner’s Exhibit 8 was admitted for the limited purpose of showing that Western Carolina Center made a report to the Health Care Personnel Registry but not for the truth of the matters asserted therein.

STIPULATIONS ON WEBSITE ACCESS

The Parties, by and through their counsel, sought and were granted leave of Court to submit stipulations concerning access to reports substantiated by the Respondent, including the process for access to details concerning the basis of the report, and access to substantiated charges which are on appeal, such as Petitioner’s. The resultant stipulations are as follows:

1. During the telephone conference, Ms. Helen Slocum confirmed that no information is available on the website without entering the social security number of the person about whom information is sought.

2. Pending and substantiated complaints are accessible on the website with use of the subject’s social security number.

3. The website will then provide categories into which the pending or substantiated charge falls, such as abuse. There is no breakdown into the more specific categories of abuse which were discussed at the hearing.

4. In order to receive more specific information, the person making the inquiry must contact the Registry at 919-715-0562. A social security number must be provided to obtain information.

5. The caller is given a five choice menu, one of which is to speak directly to a representative. If the caller speaks directly to a representative, and asks for all material in the file, the caller will receive specific information about a pending or substantiated charge, including any rebuttal from the person against whom the charges were made.

STIPULATIONS OF FACT

At the outset of the hearing, the parties entered into the following stipulations:

1. The parties stipulated to the authenticity of the exhibits offered by both the Petitioner and the Respondent.

2. Petitioner Wendy Pearson was employed from July 1994 to March 2001, at the Western Carolina Center as a Developmental Disability Trainer I Technician.

3. Petitioner received PIC training in the area of abuse and neglect.

4. Carolyn Pearson was Petitioner’s supervisor from January of 1998 to September of 1998, except for a two month period in which Ms. Pearson was on medical leave. Ms. Pearson again hired Petitioner to work for her in March of 2001 after Petitioner left Western Carolina Center.

5. Petitioner was a good employee at the center, with a good record. There are no prior incidents or allegations of abuse against Petitioner.

Based upon the documents filed in this matter, the exhibits admitted into evidence and the sworn testimony of the witnesses, the undersigned makes the following:

FINDINGS OF FACT

1. Petitioner was employed as a full-time health care technician/developmental disability trainer at Western Carolina Center in Morganton, North Carolina from July 19, 1994 to March 6, 2001.

2. Western Carolina Center is a State-operated residential facility for the mentally retarded and, as such, is a health care facility, as specified in N.C. Gen. Stat. § 131E-256(b)(7).

3. Petitioner quit her job after another staff member reported that Petitioner had slapped a resident and the facility began an investigation into the allegation. Petitioner quit her job because she did not want to get fired.

4. Petitioner’s job as a technician/trainer required that she provide basic care for the residents. The types of care provided included assistance with hygiene, toileting and feeding. Petitioner was also responsible for helping to ensure the safety of the residents; assisting residents in daily activities; and helping the residents to development basic self-care skills, such as hand-washing and dressing.

5. Petitioner received training to become a health care technician/developmental disability trainer when she was first hired at Western Carolina Center. Petitioner participated in a month-long training course that covered such topics as how to provide basic care and how to deal with resident behaviors, including problem behaviors such as aggression, self-abuse and non-compliance. Petitioner intends to advance her training into the area of registered nursing. Petitioner has had “good” to “very good” evaluations and had been called “an asset to Spruce Cottage”.

6. When a resident is non-compliant or resistant to staff direction, the staff is supposed to give the resident verbal prompts to obtain compliance.

7. In March, 2001, Petitioner worked in Spruce Cottage at Western Carolina Center. The residents of Spruce Cottage are profoundly mentally retarded adults. Petitioner worked with the thirteen female residents who lived in Spruce Cottage.

8. In March, 2001, Petitioner was working the 3:00 p.m. to 11:00 p.m. shift with two other trainers. Each trainer was primarily responsible for four residents, but the staff routinely worked together to help each other out.

9. S.H. was a resident of Spruce Cottage in March, 2001. S.H. is profoundly mentally retarded. She is in her forties and has lived all of her adult life at Western Carolina Center. S.H. is unable to verbally communicate. She uses body language to agree or to disagree. She typically keeps to herself and spends most of her time sitting in a chair or lying on the daybed in one of the dayrooms. S.H. frequently tries to touch other people and occasionally S.H. strikes people.

10. S.H. does not seek attention from staff and prefers to be alone. However, S.H. is easily upset, particularly when the staff asks her to do something or when she needs help from staff. When S.H. gets upset, she often drops down to the floor. The staff repeats their instruction or request to S.H. to get her to comply. It usually takes S.H. several minutes to comply, but S.H. will usually comply when she’s ready.

11. S.H. has struck staff members in the past and she can be physically difficult to manage. S.H. has slapped Petitioner in the face and has pulled Petitioner to the floor. On one occasion, S.H. kicked Petitioner causing her to fall and hurt her wrist.

12. On March 1, 2001, Petitioner was on duty along with two other trainers, Mary Beach and Delrita Johnson.

13. After supper, at approximately 5:45 p.m., Ms. Johnson, who was in the dayroom, saw S.H. coming down the hall.

14. Ms. Johnson offered to help S.H. to the bathroom and S.H. became upset. Petitioner came over and offered to help Ms. Johnson get S.H. to the bathroom. They helped S.H. to the toilet stall. When S.H. came out of the stall, her overalls were down to her waist and her shirt was pulled up so that her chest was bare.

15. Petitioner and Ms. Johnson attempted to get S.H. dressed. S.H. did not want to put her clothes on and she fell to the floor just inside the bathroom door. S.H. was lying with her head towards the bathroom door which was curtained. Petitioner and Ms. Johnson asked S.H. to stand up, but she refused. S.H. then “had one of her moments” and rolled around on the floor, moaned and cried out, and stuck her left hand in her pants, which was a typical behavior for S.H.

16. Petitioner and Ms. Johnson stood beside S.H. for a minute to see if S.H. would get up. Petitioner was standing near S.H.’s left shoulder and Ms. Johnson was standing on S.H.’s right side near S.H.’s feet.

17. Two or three more times, the staff asked S.H. to get up. Petitioner was leaning over S.H.

18. While she was doing so, Joan Ziegel, an occupational therapist, opened the curtain to the bathroom.

19. At that moment, Petitioner slapped S.H. on the left side of her face.

20. Both Ms. Ziegel, who was standing at S.H.’s head approximately two feet away from Petitioner, and Ms. Johnson, who was at S.H.’s feet, heard the slap.

21. Ms. Johnson and Petitioner got S.H. up and Ms. Ziegel said that she would be back at 6:00 p.m. to pick up one of the other residents for a class. She then left the bathroom.

22. After Ms. Ziegel left, Petitioner said that she was sorry. Ms. Johnson and Petitioner then dressed S.H. and took her to the dayroom.

23. Ms. Ziegel was upset about what she had seen and did not know what to do. When she got home that night, the incident continued to distress her.

24. The following day, Ms. Ziegel reported to Jolee Harney, the advocate for the Spruce Home residents, that she had seen Petitioner slap S.H.

25. That afternoon, Ms. Ziegel wrote a statement relating what she had witnessed, and then met with Ms. Harney and Cheryl Elliott, the home manager of Spruce. Later, Ms. Ziegel met with Bob Ritz, the neighborhood coordinator, Lana Gilliam, the director of resident advocacy services, Cheryl Elliott, Joann Seng, the director of occupational therapy, and Nancy Hunter, the director of human resources.

26. The team questioned Ms. Ziegel about the delay in her report. They reviewed the reporting requirements and counseled Ms. Ziegel about the need to report mistreatment immediately.

27. When Delrita Johnson arrived at work on March 2, 2001, she was asked to go to Holly Hall. There, she met with Lana Gilliam and was asked what had happened the evening before.

28. Ms. Johnson, who had not spoken with Joan Ziegel at any time since the incident, independently reported that she had seen Petitioner slap S.H. She also said that “the lady who picks up K.P.,” that is, Joan Ziegel, came in and saw what happened.

29. Ms. Johnson said that she had not known what to do and that she “did not want to get [Petitioner] in any kind [of] trouble.” She was informally counseled concerning the facility’s requirement that resident abuse be reported immediately.

30. The investigation team then interviewed Petitioner. During her interview, Petitioner said that she had changed S.H. two or three times during her shift on March 1, 2001. She denied slapping S.H. She did not say that S.H. was slapping at her or that she was trying to perform a block to prevent S.H. from hitting her, even though the team asked Petitioner whether anything happened that could have been misunderstood.

31. On March 7, 2001, the investigative team concluded that Petitioner had physically abused S.H. by slapping her.

32. They then reported the allegation of abuse and the results of their own investigation to the Health Care Personnel Registry.

33. Subsequently, Barbara Powell, R.N., a nurse investigator for the Health Care Personnel Registry, investigated the allegation of abuse against Petitioner.

34. Ms. Powell visited Western Carolina Center where she reviewed S.H.’s treatment records and Petitioner’s personnel file. She interviewed Joan Ziegel and Delrita Johnson and observed S.H. She also looked at the bathroom area where the incident had occurred. Ms. Powell then interviewed Petitioner by telephone.

35. Based upon the information gathered in her investigation, the Health Care Personnel Registry concluded that Petitioner abused S.H. by slapping her in the face.

36. The Health Care Personnel Registry notified Petitioner by letter, dated June 21, 2001, that it had substantiated the allegation of abuse and that it intended to list a finding of abuse on the Health Care Personnel Registry.

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 technician/developmental disabilities trainer working in a health care facility, Petitioner is subject to the provisions of N.C. Gen. Stat. § 131E-256.

4. “Abuse” is defined by 42 CFR Part 488.301 to mean: “the willful infliction of injury, unreasonable confinement, intimidation or punishment which results in physical harm, pain, or mental anguish,” as is incorporated by reference in the definition found at 10 NCAC 3B.1001(1).

5. On March 2001, while employed as a health care technician/developmental disabilities trainer at Western Carolina Center in Morganton, North Carolina, Petitioner physically abused S.H., who is profoundly mentally retarded, by slapping the resident on the face.