STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF WILSON 03 DHR 2450
______
ANTONIA MARIE COLLINS, )
)
Petitioner, )
)
- )
) DECISION
DEPARTMENT OF HEALTH AND HUMAN )
SERVICES, DIVISION OF FACILITY )
SERVICES, )
Respondent. )
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This contested case came on for hearing before Julian Mann, III, Chief Administrative Law Judge, on April 22, 23, and June 7, 2004 in the Office of Administrative Hearings, Raleigh, North Carolina.
APPEARANCES
Petitioner: Elizabeth Krabill
John R. Keller
Legal Aid of North Carolina, Inc.
P.O. Box 2688
Wilson, North Carolina 27894
For Respondent: Wendy L. Greene
Assistant Attorney General
North Carolina Department of Justice
P.O. Box 629
Raleigh, NC 27602-0629
ISSUE
Whether Respondent acted erroneously, arbitrarily or capriciously when substantiated the allegation that on or about September 2, 2003, Petitioner abused resident RE by slapping RE on the cheek causing a reddened area, and by threatening to kill RE.
APPLICABLE STATUTES AND RULES
N.C. Gen. Stat. § 131E-255, 256
N.C. Gen. Stat. §150B-23
42 CFR § 488.301
10 NCAC 3B.1001
EXHIBITS
Respondent’s exhibits 1 - 17, and 19 - 23 were admitted. Petitioner’s exhibits 1 - 15 admitted.
BASED UPON careful consideration of the sworn testimony of the witnesses presented at the hearing and the admissible exhibits, 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 evidence, the undersigned makes the following:
FINDINGS OF FACT
1. At all times relevant to this contested case Petitioner was a certified nurse aide (“CNA”) at the Brian Center of Wilson (“Brian Center”), in Wilson, North Carolina. Petitioner is a resident of Wilson County and the Brian Center is a nursing home and therefore subject to N.C. Gen. Stat. §255, 256. (T p. 72, 77, 147, 525)
2. Petitioner was trained at Wayne Community College and finished her CNA training in September 1999. She began to work for the Brian Center in April 2001. Petitioner attended an orientation and in-service training sessions at the Brian Center. She has been trained on resident rights and abuse of resident. Petitioner understands that Brian Center abuse policy prohibits calling residents names, and denying residents their rights, such as the right to eat and use the bathroom, and that failure to abide by the Brain Center’s abuse policy results in termination. It is also Petitioner’s understanding that residents have the right to be given what they ask for when they ask. She knows that calling a resident a name or threatening a resident is verbal abuse, and pushing, hitting, or slapping a resident is considered to be physical abuse. Petitioner also recognizes that residents are entitled to dignity. Providing residents privacy in the bathroom and respecting them generally are what Petitioner understood to be her duty in regards to resident dignity. (T pp. 72, 73, 74, 86-88; Resp. Exh. 1)
3. At the Brian Center, Petitioner’s shift began at 7:00 a.m. and ended at 3:00 p.m. Petitioner’s duties included bathing and showering residents, preparing them for breakfast and appointments. She also helped residents with their hair, makeup and snacks. (T p. 76, 526)
4. Petitioner was taught to deal with agitated residents by first trying to calm them by speaking calmly and then to call a nurse or other supervisor if she could not calm the resident. For resistant residents Petitioner was taught to report immediately to a nurse to avoid a confrontation. If a resident hoarded items that were not harmful or problematic, Petitioner was taught to not bother the residents belongings. If a resident hoarded items that could, for example, cause infection, Petitioner would attempt to remove it, or call a supervisor if the resident fussed about it. (T pp. 89 - 93)
5. RE is approximately a 73 year old woman from Lucama, North Carolina. RE is Caucasian, slightly mentally retarded, and somewhat child-like. She has dementia and schizophrenia but is physically stable and is able to read some newspapers; she has a subscription. She has lived at the Brian Center for about 9 years. Petitioner worked with RE for approximately six months, at least three times per week. Petitioner mainly helped RE with her bath, and reminded her to attend activities or go to lunch. RE was pleasant and able to hold a conversation. She is also protective of her belongings. She sometimes uses racial slurs to describe African Americans when she is upset. She may call them “nigger.” RE used racial slurs when she was talking about someone who was not present. No one at the Brian Center inhibited, dissuaded or admonished RE for using this term. (T pp. 78, 79,80, 83, 122, 174, 175, 176, 178, 179 228, 251)
6. A January 2003 Resident Assessment Protocol - an annual evaluation to address resident medical needs - found that “RE is an alert and oriented resident who has good short and long-term memory. She has some difficulty with decision making and new situations. She has a diagnosis of schizophrenia that is well-controlled with her medications. She is able to hold a conversation and is able to make her needs known to the staff.“ (T p. 244; Resp. Exh. 22)
7. RE has accused African American staff at the Brian Center of stealing her money, magazines or newspapers, and taking her clothes. RE hoarded clothing and papers. She does not accuse the staff by their names. Although RE becomes agitated when an aide moves her clothes or other belongings, her agitation typically lasts only until the time it takes for the aide to leave the room. Other than Petitioner, RE had never accused any African American of hitting her. (T pp. 84, 85, 92, 120, 142, 153, 179)
8. According to her care plan, RE had a history of refusing to bathe. (Tp. 302)
9. RE often touches her forehead and temple by placing her hand on her chin and left cheek. However, most staff have never seen any red marks on RE’s face as a result of that nervous habit, and in fact has never seen red marks on RE’s face at all. RE’s videotaped deposition shows her touching her face. During the deposition RE did not develop any handprints on her face. (T pp. 285, 286; RE Depo. Videotape Respondent’s Exh. #23)
10. Petitioner worked with RE for six months. During that time RE never called Petitioner by her name. RE referred to Petitioner as “hey girl.” RE has never directly addressed Petitioner using a racial slur, nor has she called her using the term “black girl.”(T pp. 81, 82, 83)
11. Willie (“Buddy”) Carson Head was the maintenance supervisor at the Brian Center. He has worked at the Brian Center for 14 years, beginning when the building opened. Mr. Head’s shift starts at 6:30 a.m. His work takes him all over the building. (T pp. 146, 147)
12. Dawn Mitchum has been a registered nurse for eighteen (18) years. At the time of the hearing, Ms. Mitchum had been working in nursing homes for approximately eight years, and at the Brian Center for two and a half years. At the time of the hearing Ms. Mitchum was the Minimum Data Set Coordinator. On September 2, 2003, she was the Director of Nursing. She knew the petitioner because she was her supervisor. (T pp. 168, 169, 172, 173)
13. Dan Cotten has been the administrator of the Brian Center since 1990. He has been licensed as an administrator since 1977. Mr. Cotten sees RE just about everyday at work. Every now and again, RE tells MR. Cotten that some of her clothing, money or other personal item are missing. She does not generally identify a perpetrator by name, but would rather just say “they.” When informed of such allegations Mr. Cotten would have someone investigate to determine whether or not the allegations are valid. (T pp. 254, 255, 256)
14. Stefanie Xan Knopick was a licensed practical nurse at the Brian Center. Ms. Knopick knows both Petitioner and RE through her work at the Brian Center, which began in December, 2002. Ms. Knopick testified that she was responsible for giving RE morning medications, one of which was for agitation. Ms. Knopick found that RE was often agitated in the morning. (T pp. 277, 280, 281, 293)
15. Linda Jordan was the activities director at the Brian Center. Her shift begins at 9:00 a.m. and ends at 5:00 p.m., Monday through Friday. She does entertaining activities with all of the residents in the facility. Ms. Jordan knows RE because she is in contact with her on a daily basis. RE participates in all activities that do not interfere with her afternoon soap operas. RE calls Ms. Jordan “Linda,” as she calls some African American CNAs by their names. (T pp. 304, 305, 306, 336)
16. Lisa Billups, LPN, was a staff nurse at the Brian Center. She left the Brian Center in 2002. While there, she worked the 7:00 p.m. to 7:00 a.m. shift. Ms. Billups knew the petitioner and RE. She has heard RE accuse staff of taking her clothes and newspapers. During the time that Ms. Billups worked at the Brian Center she saw RE resist taking baths and showers, and would claim that she had already taken one to get out of bathing. (T pp. 341, 342, 343, 344, 345)
17. On September 2, 2003, Petitioner was assigned to work with RE. Petitioner went to RE’s room, and seeing that she was already up, decided to bathe her before tending to her roommate. RE was seated in her chair dressed in her nightclothes with her hand cupped beneath her chin. Petitioner found that there were dirty clothes in RE’s closet. RE became upset when Petitioner started to go through her closet. She told Petitioner to not touch her clothes. Petitioner told RE that she would send the clothes to the laundry, and they would be sent back to her. Petitioner testified that RE eventually acquiesced and let Petitioner remove the dirty clothes. Petitioner testified that when RE did not want Petitioner to remove her dirty clothes, Petitioner would get a nurse, who would remove the clothes. (T pp. 95 -97, 98, 100, 101)
18. RE was not scheduled to take a shower. Instead, she was to be washed at the sink in her room. To do so, Petitioner had to remove all of RE’s clothing and help RE wash at the sink. Petitioner testified that RE wanted to wash up, and her demeanor was normal during the bath, and that RE talked to her, stuttering and repeating things over and over. Petitioner said that it takes her about 30 minutes to take care of RE in the morning, and that when she left RE was “somewhat calm,” but RE’s eyebrows were wrinkled. (T pp. 100 - 105, 106 line 23, 107, 120; Resp. Exh. 4)
19 On May 24, 2004, eight months after the incident in question, RE remembered being slapped by Petitioner. RE said that she was in her room about to take her bath when a black woman slapped her and said she was going to kill her, and that the woman who did this lost her job. RE did not remember the name of the woman who had slapped her, but she remembered that the woman had four children. She was slapped right before the woman was to going to give her a shower. RE indicated that she was hit on her cheek and that it did not make her feel good to have that happen. She testified that she told Linda Jordan and “that good looking one” what had happened to her. RE testified that before this incident, no one else at the Brian Center had ever slapped her. RE stated that the person who slapped her did actually bathe her. RE said that on the day of the deposition a nice black woman helped her shower and wash her hair. (RE Dep. T pp. 11, 12, 13, 14, 15 line 15, 17, 19, 20, 21, 44)
20. Buddy Head knows RE and speaks to her at least once a day when he makes his morning rounds between 8:00 and 9:00 a.m. He estimates that he has known RE for approximately seven or eight years, since she began to live at the Brian Center. To Mr. Head’s knowledge, RE had never accused staff of hitting or threatening her. On September 2, 2003, Mr. Head saw RE as he made his rounds. (T pp. 148, 149, 153)
21. When Mr. Head arrived at RE’s room, he found RE seated in her recliner and crying. In the seven to eight years that Mr. Head knew RE, he had never seen her crying. He went into the room and sat on the side of RE’s bed. Mr. Head saw a red hand and fingerprint marks on RE’s face. He asked her what was wrong and RE asked to call her sister. Mr. Head again asked RE what was wrong. RE told him that she had been slapped and threatened because she did not want to take her bath that morning. (T pp. 149. 150, 151, 155, 159; Resp. Exh. 7)
22. After Petitioner had left RE’s room, she went to work in a room two doors down from RE’s, but during the course of her work she walked up and down the hallway and passed by RE’s room. (T pp. 108, 109, 110)
23. Mr. Head was still in RE’s room. He asked RE who had slapped and threatened her. Two black CNA’s passed by RE’s open door. RE did not accuse them of having done anything to her. Petitioner walked by RE’s door two times. Each time Petitioner walked by RE told Mr. Head that she was the person who had threatened and slapped RE. (T pp. 151, 152, 153, 164, 165)
24. Mr. Head left RE’s room to report to Dawn Mitchum the allegation that Petitioner had slapped and threatened to kill a resident. (T p. 173)