STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF GREENE 09 DHR 5062

Shenetta Mumford,
Petitioner,
vs.
Health Care Registry,
Respondent. / )
))
)))) / DECISION

THIS MATTER came on for hearing before Beecher R. Gray, Administrative Law Judge, on January 19, 2010 in Greenville, North Carolina.

APPEARANCES

For Petitioner: Shenetta Mumford, appearing pro se

For Respondent: Juanita B. Twyford

Assistant Attorney General

North Carolina Department of Justice

9001 Mail Service Center

Raleigh, NC 27699-9001

Prior to the commencement of the hearing, Petitioner made a Motion to Continue the hearing over the objection of Respondent. Petitioner requested the motion because her witness, Loudell Champion, notified her on the morning of the hearing that she could not attend the hearing because of recent illness. Respondent agreed not to object on the basis of hearsay to Petitioner’s testimony concerning statements attributed to Loudell Champion so long as Respondent’s interview of Loudell Champion was admitted into evidence. The Motion to Continue was denied.

ISSUE

Whether Respondent has substantially prejudiced Petitioner’s rights and acted erroneously, failed to use proper procedure, acted arbitrarily or capriciously, or failed to act as required by law when Respondent notified Petitioner of its intent to enter her name with a finding of abuse in the Nurse Aide Registry and Health Care Personnel Registry based upon a substantiation of the following allegation:

On or about July 21, 2009 - July 22, 2009, Petitioner a nurse aide, employed at a skilled nursing facility, Britthaven of Snow Hill in Snow Hill, North Carolina, abused a Resident (KH) by willfully grabbing the resident’s legs and shaking them, resulting in physical harm and mental anguish to Resident KH that lasted in excess of five days.

APPLICABLE STATUTES AND RULES

N.C. Gen. Stat. § 131E-255

N.C. Gen. Stat. § 131E-256

N.C. Gen. Stat. §150B-23

42 CFR § 488.301

10A N.C.A.C. 13O.0101

PETITIONER’S WITNESSES

None

RESPONDENT’S WITNESSES

Petitioner

Frank Hall

Mittie Lewis

Kathy Pridgen

Rose Marie Williamson

EXHIBITS

Respondent’s Exhibits 1-18 were admitted

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 evidence presented, the undersigned makes the following:

FINDINGS OF FACT

1. The parties received notice of hearing by certified mail more than 15 days prior to the hearing and each stipulated on the record that notice was proper.

2. At all times relevant to this matter Britthaven of Snow Hill in Snow Hill, North Carolina was a long-term nursing care facility, and therefore subject to N.C. Gen. Stat. § 131E-256.

3. At all times relevant to this matter Petitioner Shenetta Mumford was employed at Britthaven of Snow Hill as a certified nursing assistant (CNA) and therefore was subject to N.C. Gen. Stat. § 131E-255 and N.C. Gen. Stat. § 131E-256.

4. At all times relevant to this matter, Resident KH was a resident on the 400 Hall at Britthaven of Snow Hill in Snow Hill, NC. Resident KH was a 69 year old female with the following diagnoses: Atypical Chest Pain; Hypertension; Diabetes Mellitus, Type II; Obstructive Sleep Apnea; Autoimmune Pancytopenia, stable; Morbid Obesity; Hypothyroidism; Gastroesaphageal Reflux Disease, chronic and stable; Peripheral Neuropathy; Back pain, chronic; Hyperlipidemia; Lower Extremity Venous Insufficiency, chronic and stable; Anemia, chronic and stable.

5. Petitioner was hired to work at Britthaven of Snow Hill on January 2, 2007. She completed orientation and training, including training in Abuse/Neglect and Resident’s Rights during her employment. Her duties included turning patients, passing out supplies, and answering call bells.

6. On July 30, 2009, the facility social worker, Amber Wolfe, was conducting routine interviews with alert and oriented residents on the 400 Hall to gather information from the residents about their care and to determine if the residents had any concerns. Social Worker Wolfe asked Resident KH how the staff treats her. Resident KH responded that some staff treat her real nice and some treat her ugly. Resident KH said that a tall skinny black girl with short hair on the 11-7 shift bruised her leg by squeezing them about a week earlier. Resident KH identified the staff by saying she called one of the men “granddaddy.” Resident KH reported that she did tell her daughter, but was scared to tell anyone because she thought she would get in trouble. Social WorkerWolfe reported this information to Frank Hall, Administrator of the facility.

7. Administrator Hall has been the Administrator at Britthaven of Snow Hill since April 30, 2008. He has worked in nursing homes since 1999 and in the human services field since 1970. Administrator Hall manages the facility and provides in-service training to the employees.

8. When Social Worker Wolfe informed him about her interview with Resident KH on the afternoon of July 30, 2009, he asked Rita Campbell, RN, to accompany him to Resident KH’s room. Resident KH told Administrator Hall that a staff person grabbed her legs and shook them about a week earlier on a Tuesday at about 2:00 a.m. before she went to the hospital on July 24, 2009. Resident KH did not know the staff person’s name, but described her as tall with short, reddish brown kinky hair. Resident KH said that the staff person called the man across the hall “granddaddy.” Resident KH said that the staff person wears tight-fitting jeans and she thought she might wear glasses, but was not sure. Resident KH said the staff person had worked with her since she had been at the facility, and described her as always having an ugly attitude. Resident KH told Administrator Hall that she was scared of the staff person. Resident KH showed Administrator Hall and RN Campbell her legs. Resident KH added that the staff person did not cause all the bruising on her legs as some of the bruising was due to phlebitis. Using the information provided by Resident KH, RN Campbell completed a Resident Incident Statement dated July 30, 2009. RN Campbell described greenish bruising 2 cm. x 2 cm. on Resident KH’s lower right leg, and dime size greenish bruising on the sides of Resident KH’s left lower leg. Administrator Hall documented the interview with Resident KH in a narrative dated July 30, 2009.

9. Hope Vick, the Director of Nursing (DON), interviewed Resident KH later in the day on July 30, 2009. Resident KH told DON Vick that when she pressed her call bell two days before she went to the hospital, the CNA came into her room and told her that she was not going to be bothered with her mess tonight. Resident KH then told DON Vick that the CNA grabbed her legs and began shaking them. Resident KH told DON Vick that she hollered, and the CNA stopped. Resident KH said that the CNA told her that she did not like to change her diaper because she stank. She described the CNA as a skinny black girl with kinky hair. DON Vick described seeing two bruises on Resident KH’s right lower leg and one on the left leg. DON Vick said the bruises on the right looked like fingertip prints. DON Vick documented a summary of the information provided by Resident KH on July 30, 2009.

10. Administrator Hall interviewed a number of staff at Britthaven of Snow Hill regarding Resident KH’s allegation, including: Petitioner; Gaynelle Suggs, CNA; Mittie Lewis, CNA; and Ron Whitley, LPN. Each of these staff provided Administrator Hall with a written statement. Specifically, Petitioner denied shaking Resident KH’s legs. Administrator Hall also interview Resident KH again on August 3, 2009. The information provided by Resident KH during this interview was consistent with the information she provided to Social Worker Wolfe on July 30, 2009, to Administrator Hall and RNCampbell on July 30, 2009, and to DON Vick on July 30, 2009.

11. After considering all of the information gathered, Administrator Hall substantiated the allegation that Petitioner abused Resident KH during the July 21-22, 2009 night shift by grabbing and shaking Resident KH’s legs resulting in bruising. Administrator Hall based this substantiation on the following: Resident KH was consistent in her account of the incident; LPN Whitley recalled seeing discoloration on Resident KH’s legs prior to her discharge to the hospital on July 24, 2009; Petitioner worked the night shift on July 21-22, 2009, and was assigned to Resident KH; Petitioner fit the description given by Resident KH; bruising in Resident KH’s legs was consistent with the account she provided; and there was no other plausible explanation for the bruising. Petitioner was terminated from her employment with Britthaven of Snow Hill as a result of the substantiation of abuse by the facility.

12. Administrator Hall completed an Allegation Report documenting the facility’s substantiation of abuse against Petitioner and sent the report to the Health Care Personnel Registry on August 3, 2009.

13. Under N.C. Gen Stat. §131E-256, the Department of Health and Human Services is responsible for investigating allegations of resident abuse, neglect, misappropriation of property, diversion of drugs, or fraud by a nurse aide or health care personnel.

14. Nancy Gregory, RN, an investigator with the Health Care Personnel Registry, determined on August 31, 2009 that the allegation report from Britthaven of Snow Hill should be investigated by the Health Care Personnel Registry.

15. By letter dated August 31, 2009, Investigator Gregory notified Petitioner that Respondent would be investigating the allegation that she had abused a Resident at Britthaven of Snow Hill, and that her name would be listed on the Health Care Personnel Registry pending investigation of the allegation. The letter gave notice of appeal rights.

16. Petitioner timely filed a petition for contested case with the Office of Administrative Hearings contesting the listing of the allegation of abuse on the Health Care Personnel Registry.

17. Because of administrative case load redistribution, Investigator Gregory transferred the investigation of the allegation against Petitioner to Rose Marie Williamson, RN. As an investigator with the Health Care Personnel Registry, Investigator Williamson is charged with investigating allegations against nurse aides and health care personnel.

18. Investigator Williamson conducted an investigation from August 31, 2009 through December 8, 2009. During the investigation, she interviewed Resident KH, Petitioner, staff, and a family member of Resident KH. In addition, the investigation included: a review of Resident KH’s record; a review of Petitioner’s personnel file; a review of the facility investigation; a review of facility documentation; and a facility on-site investigation.

19. Investigator Williamson reviewed the information gathered during the course of the investigation, and substantiated the allegation that on or about July 21-22, 2009, Petitioner abused Resident KH by willfully grabbing the resident’s legs and shaking them, resulting in physical harm and mental anguish to the resident that lasted in excess of 5 days. Investigator Williamson completed an Investigation Conclusion Report documenting evidence supporting the decision dated December 8, 2009.

20. Petitioner was notified by letter dated December 9, 2009, that the allegation of abuse was substantiated. Attached to the letter were the Entries of Finding, which are the substantiated findings as they will appear on the Nurse Aide Registry and the Health Care Personnel Registry. The letter also notified Petitioner of her appeal rights.

21. Petitioner challenges the Health Care Personnel Registry substantiated findings, contending that she did not abuse Resident KH.

22. Petitioner worked from 11:00 p.m. to 7:00 a.m. on July 21-22, 2009. She recalls answering KH’s call light requesting juice or snacks 3-5 times during the shift. Petitioner denies grabbing or shaking Resident KH’s legs. According to Petitioner, Resident KH always had a lot of bruises, but she does not recall seeing any new bruises on Resident KH during the evening.

23. While Petitioner denies grabbing or shaking Resident KH’s legs, the denial is not consistent with the credible evidence.

24. Resident KH was consistent in her account of the incident. On November 24, 2009, when Investigator Williamson interviewed Resident KH her account of the incident was consistent with the information she provided Social Worker Wolfe on July 30, 2009, to Administrator Hall and RN Campbell on July 30, 2009, to DON Vick on July 30, 2009, and to Administrator Hall on August 3, 2009. Medical documentation and information gathered from staff and family confirm that Resident KH was alert and oriented at the time of the incident. Petitioner had no history of making false accusations against staff, and there is no evidence that Resident KH had any reason to make a false accusation against Petitioner. Each time Resident KH was interviewed about the incident, she said she said she was afraid to report the incident because she was afraid of Petitioner. Therefore, it is reasonable that Resident KH immediately did not report the incident.