9
STATE OF NORTH CAROLINACOUNTY OF MECKLENBURG / IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
10 DHR 2623
Jennifer Baines,
Petitioner,
vs.
Department of Health and Human Services, Division of Health Service Regulation,
Respondent. / )
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)
) DECISION
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)
THIS MATTER came on for hearing on October 4, 2010, before Administrative Law Judge Selina M. Brooks in Charlotte, North Carolina.
PROTECTIVE ORDER
Any information related to the juveniles, including their names, mentioned in this proceeding shall be considered confidential and is used for the sole purpose of findings in this proceeding alone and is not properly disclosed in any other setting or hearing.
APPEARANCES
For Petitioner: Carnell Johnson, Esq.
Johnson & Nicholson, PLLC
5500 Executive Center Drive, Suite 238
Charlotte, NC 28212
For Respondent: Vaughn S. Monroe
Assistant Attorney General
N.C. Department of Justice
P.O. Box 629
Raleigh, NC 27602-0629
ISSUE
Whether the Health Care Personnel Registry’s (“HCPR”) decision to substantiate a finding of neglect against Petitioner pursuant to N.C. Gen. Stat. § 131E-256(i) was arbitrary and capricious, a failure to use proper procedure, or in error of law?
APPLICABLE LAW
The statute establishing the Health Care Personnel Registry states, in pertinent part, that:
(i) In the case of a finding of neglect under subdivision (1) of subsection (a) of this section, the Department shall establish a procedure to permit health care personnel to petition the Department to have his or her name removed from the registry upon a determination that:
(1) The employment and personal history of the health care personnel does not reflect a pattern of abusive behavior or neglect;
(1a) The health care personnel’s name was added to the registry for a single finding of neglect;
(2) The neglect involved in the original finding was a singular occurrence; and
(3) The petition for removal is submitted after the expiration of the one-year period which began on the date the petitioner’s name was added to the registry under subdivision (1) of subsection (a) of this section.
N.C. Gen. Stat. § 131E-256
The applicable rule concerning Personnel Requirements states, in pertinent part, that:
(b) All facilities shall ensure that the director, each staff member or any other person who provides care or services to clients on behalf of the facility: … (4) has no substantiated findings of abuse or neglect listed on the North Carolina Health Care Personnel Registry.
10A NCAC 27G .0202
EXHIBITS ADMITTED INTO EVIDENCE
For Petitioner: Exhibit P1
For Respondent: Exhibits 1-10, 12 and 14
WITNESSES
For Petitioner: Jennifer Baines, on her own behalf
For Respondent: Kamesha Harris, Residential Manager
Tamika Tatum, Clinical Therapist
Matthew Dillworth, Clinical Director and Risk Manager
Lawrencette McSwain, HCPR Investigator
ON THE BASIS of careful consideration of the sworn testimony of witnesses presented at the hearing, documents received and admitted into evidence, and the entire record in this proceeding, the Undersigned makes the following 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 interest, bias or prejudice the witness may have; the opportunity of the witness to see, hear, know, and remember the facts or occurrences about which the witness testified; whether the testimony of the witness is reasonable; and whether such testimony is consistent with all other believable evidence in the case. In the absence of a transcript of the hearing, the Undersigned listened to audiotapes of the hearing to confirm her recollection of the testimony.
FINDINGS OF FACT
1. In May 2008, Petitioner was hired as a Mental Health Technician (“MHT”) at the Keys of the Carolinas (“the Keys”) in Charlotte, North Carolina. One of her duties was to supervise residents of the facility. R. Ex. 3, pp. 20-22
2. Petitioner attended the “new hire” training sessions for new employees at the Keys which included some sex offender and gender-specific topics. R. Ex. 4
3. The Keys has a Manual which contains “Policy and Procedure 6.4 Supervision” which states that “[c]lients will be in the supervision of staff personnel at all times.… During program hours, staff will maintain line of sight supervision on all clients.” P. Ex. P1
4. There is no further explanation or definition within the Manual for “line of sight supervision” except for policy related to residents under suicide precautions which is not applicable here.
5. In the “new hire” trainings attended by Petitioner, “line of sight” was described as “knowing where your kids are” and “seeing or being able to move to see them.” Testimony of Petitioner
6. Petitioner understood that “line of sight” “means to know where all of your clients are and to be able to see the majority of them. … You can usually see where their roommate is but you have to move to see the other resident.” R. Ex. 6, p 29
7. Petitioner described how line of sight supervision was maintained on a unit: One to two residents were assigned to a bedroom. The MHT would be assigned three residents in bedrooms on opposite sides of the hallway. During the evening and night shifts, the MHT would sit in the hallway between the two bedrooms to supervise the residents. The MHT was not required to be able to see all three residents at any given moment. If one resident was out of sight in a bedroom but the other resident was within eyesight in the same bedroom, then both residents were considered to be within the MHT’s line of sight and proper supervision maintained. Testimony of Petitioner
8. The Residential Manager supervises the MHTs.
9. When she was interviewed by the HCPR investigator on March 23, 2010, the Residential Manager signed a statement that defined “line of sight” as “you are able to see the clients in your view at all times.” R. Ex. 10, p. 39
10. At the hearing on October 4, 2010, the Residential Manager expressed confusion over the meaning of “line of sight” supervision and testified that she did not know the definition for the phrase “line of sight”. Testimony of Harris
11. In July 2009, Petitioner was assigned to the Key South Unit (“Key South”), a unit for sexually aggressive male youth, ages 12 to 17 years of age.
12. Petitioner received no specific training in preparation for working with sex offenders or sexually aggressive youth.
13. The Keys does not offer any specific training for staff assigned to Key South.
14. The staff to patient ratio for Key South was two MHTs to six patients. It was the practice to assign three specifically named residents to one MHT for supervision, but the MHTs would assist each other in maintaining line of sight on all six of the residents. R. Ex. 5
15. On July 27, 2009, after dinner, the Petitioner and three other MHTs escorted the residents from the dining area back to Key South and were responsible for their supervision after arrival on the unit.
16. At his request, Petitioner escorted resident J.M. to the hygiene supply closet in Key South to collect hygiene boxes. Petitioner unlocked the closet for J.M. and left him near the closet. Resident R.C. was not near the closet at that time.
17. Petitioner walked back down the hallway to where her assigned residents were located so that she could maintain line of sight supervision of her assigned residents.
18. At that time, two other MHTs had been specifically assigned to maintain line of sight supervision of J.M. and R.C. R. Ex. 5
19. None of the four MHTs on Key South, including Petitioner, maintained J.M. and R.C. within eyesight while J.M. and R.C. were at the hygiene supply closet.
20. The Clinical Director for the Keys is also the Risk Manager. He testified that his responsibilities include supervision of clinical staff and “ensuring that incidents are reported to the state as required.” Testimony of Dillworth
21. On July 28, 2010, a staff member advised the Clinical Director that a patient had written a note alleging an incident on Key South the previous evening.
22. The Clinical Director conducted an internal investigation and viewed the security videotapes for the previous evening. There are two security cameras on Key South with a view of the closet and hallway, and he watched videotapes from both cameras. He saw patients J.M. and R.C. engage in oral sexual activity in the hygiene supply closet. R. Ex. 9, p. 34
23. On July 28, 2010, the Clinical Therapist was told that residents J.M. and R.C. had engaged in sexual activity in the hygiene supply closet on July 27, 2009. At the request of the Clinical Director, she viewed videotape footage for the incident and saw residents J.M. and R.C. engage in oral sexual activity. Testimony of Tatum
24. On July 29, 2010, the Clinical Therapist held individual sessions with J.M. and with R.C. to discuss the incident. Both residents indicated that the sexual activity was consensual. R. Ex. 8
25. On July 30, 2009, Petitioner first learned that residents J.M. and R.C. had engaged in sexual activity while the Petitioner was on duty on July 27, 2009 when she was given an Employee Corrective Action Report. Testimony of Petitioner
26. The Employee Corrective Action Report states that the corrective action is a final written warning for violations of “Policy and Procedure 6.4 … staff will maintain line of sight supervision on all clients.” R. Ex. 2
27. All four MHTs, including Petitioner, on duty on Key South during the evening of July 27, 2009 were disciplined for “monitoring and supervision issue” and not for neglect. Testimony of Dillworth
28. The Clinical Director did not think the incident was reportable as neglect to the HCPR because the sexual activity was consensual and the participants were over 16 years old. Testimony of Dillworth and R. Ex. 9, p. 35
29. Security videotape is automatically erased every 30 days. A duplicate copy of a security videotape would not be made unless the videotape recorded a “severe” incident. Testimony of Dillworth
30. The Clinical Director did not think the incident was reportable or severe so that a duplicate copy of the security videotapes was not made. Testimony of Dillworth
31. Subsequently, the security videotapes for July 27, 2009 were automatically erased.
32. During an on-site visit and record/file review of another matter on March 9, 2010, the HCPR investigator discovered the Corrective Action Report for Petitioner for the July 27, 2009 incident. Testimony of McSwain
33. The HCPR investigator discussed the failure to report the incident with the Clinical Director and the Compliance Officer for the Keys. R. Ex. 1
34. According to the Clinical Director, the 5-Working Day Report was not completed because “it was a facility misunderstanding” and “we did not see lack of supervision as neglect.” Testimony of Dillworth and R. Ex. 1, p. 4. “[A]ll of us in Administration … did not view this initially back then as meeting the definition of neglect by staff.” R. Ex. 9, p. 35
35. The Keys has a Manual that contains “Policy and Procedure 5.5 … 4. Neglect … is … [f]ailure to provide adequate supervision… .” R. Ex. 3, p. 14
36. At the hearing, the Clinical Director blamed the Compliance Officer for the failure to report the incident to the HCPR in July 2009. Testimony of Dillworth
37. After the HCPR investigator clarified the definition of neglect, an investigation was conducted by the Keys, and a 5-Working Day Report was completed and sent to the HCPR on March 11, 2010 by a Compliance Officer.
38. The Keys substantiated the allegation of neglect against all four MHTs. R. Ex. 1 The 5-Working Day Report substantiates a finding of neglect of two residents by Petitioner. R. Ex. 12
39. After receiving the 5-Working Day Report, the HCPR investigator conducted her own investigation. Because there were no security videotapes of the incident, the HCPR investigator relied upon documentation, particularly the Residential Manager’s notes from her review of the original security videotapes, and statements made by staff members during interviews held on March 23, 2010, nine months after the incident. Testimony of McSwain and R. Ex. 1, p. 10
40. The HCPR investigator did not substantiate the allegations of neglect of J.M. and R.C. against the three other MHTs who were also responsible for supervising residents on Key South at the time of the incident. Testimony of McSwain
41. The HCPR investigator did not substantiate the allegations of neglect of J.M. and R.C. against either of the two MHTs who were specifically assigned to provide line of sight supervision of J.M. and R.C. Testimony of McSwain
42. The HCPR investigator substantiated the allegations of neglect of J.M. and R.C. against Petitioner. Testimony of McSwain
43. Petitioner was notified of the entry of these findings on the Health Care Personnel Registry by letter dated April 12, 2010. R. Ex. 13 Petitioner contested these substantiated findings by filing a Petition For Contested Case Hearing with the Office of Administrative Hearings.
44. At the hearing, the testimony of the Residential Manager was confused, contradicted statements made during the investigation, and contained factual errors. Testimony of Harris