STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF GUILFORD 04 DHR 2286
MAXINE L. FRONEYBERGER, )
Petitioner, )
)
v. )
) DECISION
DEPARTMENT OF HUMAN HEALTH AND )
HUMAN SERVICES, DIVISION OF FACILITY )
SERVICES, HEALTH CARE PERSONNEL )
REGISTRY SECTION, )
Respondent )
This matter was heard before Sammie Chess Jr., Administrative Law Judge, on March 28, 2005, in High Point, North Carolina.
APPEARANCES
Judy Jackson N. Morgan Whitney, Jr.
Quick & Jackson, P.A. Assistant Attorney General
1491 National Highway N.C. Department of Justice
Thomasville, NC 27360 P.O. Box 629
Counsel for Petitioner Raleigh, NC 27602-0629
Counsel for Respondent
Susan M. Fradenburg
Smith Moore, L.L.P.
Counsel for witnesses from Wesley Long Nursing Center
ISSUE
Whether the agency otherwise substantially prejudiced Petitioner’s rights, acted erroneously; and acted arbitrarily when it notified Petitioner by letter dated November 17, 2004, that Respondent intended to enter a finding that Petitioner neglected a resident of Wesley Long Nursing Center in Jamestown in the Nurse Aide Registry and Health Care Personnel Registry,
APPLICABLE STATUTES AND RULES
N.C. Gen.Stat.§ 131E-255, 256 and 150B-23
EXHIBITS
The following exhibits were admitted into evidence without objection:
Portions of the Agency file relevant to this matter, Respondent’s exhibits 1 through 9 were offered and received into evidence without objection. Petitioner’s exhibits 1 through 3 and 10 through 14 were offered and received into evidence without objection.
Based upon the documents filed in this matter, exhibits admitted into evidence and the sworn testimony of the witnesses, the undersigned make the following:
FINDINGS OF FACT
1. At all times relevant to this matter, Petitioner, a Certified Nursing Assistant (CNA), was employed by Wesley Long Nursing Center.
2. On or about June 16, 2004, Wesley Long Nursing Center submitted a 24-Hour Initial Report to Respondent indicating that resident, LM sustained a fall from a Hoyer Lift on June 16, 2004, while in the care of Petitioner. Possible equipment failure was allegation.
3. On or about June 23, 2004, Wesley Long Nursing Center submitted a 5-Working Day Report to Respondent alleging questionable resident neglect by Petitioner which led to resident LM falling from the Hoyer Lift.
4. Respondent assigned an investigator, Jean Miller-Levette, RN, MS, to screen the allegation.
5. Neglect is defined by 42 CFR 301 as the failure to provide goods and services necessary to avoid physical harm, pain, or mental anguish.
6. At the completion of her investigation, Ms. Miller-Levette found that the allegation of neglect against the Petitioner was unsubstantiated and informed Petitioner of this in a letter dated September 24, 2004.
7. Upon re-evaluation of the facts, Ms. Miller-Levette found that the allegation of neglect against Petitioner was substantiated and informed Petitioner of this in a letter dated November 17, 2004.
8. Sandra Pate, administrator for Wesley Long Hospital, testified that Petitioner is an excellent employee.
9. There was no standard operating procedure established by Wesley Long or the manufacturer of the lift, regarding a specific way to operate the lift.
10. The lift has been taken out of service.
11. The record does not indicate by a preponderance of the evidence that Petitioner was negligent in her care of the patient, L.M.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, the undersigned Administrative Law Judge finds the following:
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. 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. § 131 to maintain a registry that contains the names of all health care personnel working in facilities who have been accused of neglecting a resident if Respondent has screened and determined that an investigation is warranted.
3. As a health care personnel, Petitioner is subject to the provisions of N.C. §131E-256.
4. Respondent substantially prejudiced Petitioner’s rights by acting erroneously and in an arbitrary manner when it notified Petitioner by letter dated November 17, 2004, that Respondent intended to enter a finding that Petitioner neglected a resident of Wesley Long Nursing Center in Jamestown in the Nurse Aide Registry and Health Care Personnel Registry.
DECISION
Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned finds that Petitioner’s claim for relief, namely that her name not be entered in the Nurse Aide Registry and the Health Care Personnel Registry should be and the same is hereby affirmed. Petitioner has shown by a preponderance of the evidence that Respondent acted erroneously.
ORDER
It is hereby ordered that the Agency serve a copy of the Final Decision on the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-6714 in accordance with N.C. Gen. Stat. § 150B-36(b).
NOTICE
The decision of the Administrative Law Judge in this contested case will be reviewed by the agency making the final decision according to the standards found in G.S. 150B-36(b),(b1) and (b2). The agency making the final decision is required to give each party an opportunity to file exceptions to the decision of the Administrative Law Judge and to present written argument to those in the agency who will make the final decision. G.S. 150B-36(a).
The Agency that will make the final decision in this contested case is the North Carolina Department of Health and Human Services, Division of Facility Services.
This the 25th day of August, 2005.
______
Sammie Chess, Jr.
Administrative Law Judge
A copy of the foregoing was mailed to:
Judy Jackson
QUICK & JACKSON, P.A.
1491 National Highway
Thomasville, NC 27360
ATTORNEY FOR PETITIONER
N. Morgan Whitney, Jr.
Assistant Attorney General
N.C. Department of Justice
P.O. Box 629
Raleigh, NC 27602-0629
ATTORNEY FOR RESPONDENT
This the day of August, 2005.
______
Office of Administrative Hearings
6714 Mail Service Center
Raleigh, N.C. 27699-6714
919/733-2698
Fax: 919/733-3407