STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF ROBESON 01 DHR 1440

01 DHR 2314

(withdrawn at hearing)

MADOLYN D. SAMPSON )

SAMPSON RETIREMENT HOME #4, )

Petitioner, )

)

vs. ) DECISION

)

NORTH CAROLINA DEPARTMENT )

OF HEALTH AND HUMAN SERVICES, )

DIVISION OF FACILITY SERVICES, )

Respondent. )

THIS MATTER was heard before Augustus B. Elkins II, Administrative Law Judge on January 14, 2002 in the Old County Courthouse in Fayetteville, North Carolina.

APPEARANCES

For Petitioner: Madolyn D. Sampson, pro se

For Respondent: M. A. Kelly Chambers,

Assistant Attorney General

ISSUE

Whether Respondent: (1) exceeded its authority or jurisdiction; (2) acted erroneously; (3) failed to use proper procedure; (4) acted arbitrarily or capriciously; or (5) failed to act as required by law or rule; when it assessed a $3,000 administrative penalty against Petitioner pursuant to N.C. Gen. Stat. § 131D-34.

BURDEN OF PROOF

The burden of proof rests upon Petitioner.

APPLICABLE STATUTES AND RULES

N.C. Gen. Stat. §§ 131D-21 and –34

10 N.C.A.C. 42C .2302

10 N.C.A.C. 42D .1702

WITNESSES

For Petitioner: Madolyn D. Sampson, testified on her own behalf. (T. p. 19)

For Respondent:

1. Mollie Williams, Robeson County DSS Adult Home Specialist (T. p. 60);

2. Catherine Baker, Robeson County DSS Adult Home Specialist Supervisor (T. p. 160);

3. Fennie Oxendine, Robeson County DSS Adult Home Specialist (T. p. 187);

4. Audrey Lovett, Robeson County DSS Enhanced Personal Care Case Manager (T. p.195) ;

5. Anteasha Farrell, Adult Care Home Licensure Section Dietician (T. p. 219);

6. James B. Upchurch, Adult Care Home Licensure Section Chief (T. p. 227).

EXHIBITS

The following exhibits were admitted into the record:

Petitioner’s Exhibit 1 Form No. FL-2 (T. pp. 19-20, 36)

Petitioner’s Exhibit 2 Hospital Discharge Summary (T. pp. 19-20, 36)

Petitioner’s Exhibit 3 Letter from Dr. Robin Taylor (admitted for the limited purpose of showing that Petitioner received a letter from Dr. Taylor) (T. pp. 20-21, 24, 36)

Petitioner’s Exhibit 5 Documentation from Wilmington Radiology (T. pp. 28-30, 36).

Petitioner’s Exhibit 6 Resident Care Plan (T. pp. 31-32, 36)

Petitioner’s Exhibit 7 Pharmacist’s Drug Review (T. pp. 31-33, 36)

Petitioner’s Exhibit 8 Case Manager’s Decision Notice (T. pp. 34-36)

Petitioner’s Exhibit 9 Complaint Investigation Report (T. pp. 35-36)

Respondent’s Exhibit 1 Agency File, pp. 1-56 (T. pp. 283-84)

Respondent’s Exhibit 2 January 1, 2000 Care Plan for Resident H.L. and

March 14, 2000 Case Manager’s Decision Notice (T. pp. 283-84)

BASED UPON careful consideration of the sworn testimony of the witnesses presented at the hearing, the documents and exhibits received and admitted into evidence, 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 official documents in the file, sworn testimony of the witnesses, and other competent and admissible evidence, it is found as a fact that:

FINDINGS OF FACT

1. The North Carolina Department of Health and Human Services, Division of Facility Services, Adult Care Home Licensure Section (“ACHL Section) regulates adult care home facilities in the State of North Carolina. (T. p. 228)

2. The Robeson County Department of Social Services (“DSS”) investigates complaints against adult care home facilities in Robeson County. (T. pp. 60-62). The Robeson County DSS conducts its investigations pursuant to the protocols set out in the Division of Facility Services’ “Red Book.” (T. pp. 271-74). The Division of Facility Services (“DFS”) distributes the Red Book to all county Departments of Social Services and to adult care homes upon request. (T. p. 272).

3. Sampson’s Retirement Home No. 4 is an adult care home facility with a licensed capacity of 12 adult care home beds. (T. p. 45). Sampson’s Retirement Home No. 4 is located at 941 Goins Road in Pembroke in Robeson County, North Carolina. (T. p. 63)

4. Petitioner, Madolyn D. Sampson, has operated Sampson’s Retirement Home No. 4 since 1985. (T. p. 36). Petitioners, Madolyn D. Sampson, her husband, Clifton Sampson, Jr., and her daughter, Lesia Hammonds, are all licensed adult care home administrators. (T. p. 45)

5. H.L. was a resident of Sampson’s Retirement Home No. 4 on June 28, 2000. (T. pp. 48, 67) (Resp. Ex. 1, pp. 7-8)

6. The North Carolina General Assembly created an Adult Care Home Residents’ Bill of Rights at Article 3 of Chapter 131D of the North Carolina General Statutes. (T. p. 238). The Bill of Rights specifies that an adult care home resident has a right: to receive care and services which are adequate, appropriate, and in compliance with relevant federal and State laws and rules and regulations . . . [and] to be free of mental and physical abuse, neglect, and exploitation. N.C. Gen. Stat. § 131D-21 (2) and (4) (T. p. 238).

7. The Adult Care Home Residents’ Bill of Rights authorizes the Department of Health and Human Services to impose administrative penalties for violations of the provisions of N.C. Gen. Stat. § 131D-21 and applicable federal and State laws, rules, and regulations. N.C. Gen. Stat. § 131D-34. (T. pp. 232-33). A Penalty Review Committee was created by the North Carolina General Assembly to review administrative penalties assessed pursuant to N.C. Gen. Stat. § 131D-34. N.C. Gen. Stat. § 131D-34 (h). (T. p. 239)

8. A "Type A Violation" is a violation by a facility of the adult care home licensure law that “results in death or serious physical harm, or results in substantial risk that death or serious physical harm will occur.” N.C. Gen. Stat. § 131D-34 (a) (1). (T. p. 232)

9. The Adult Care Home Residents’ Bill of Rights provides that: The Department shall impose a civil penalty in an amount not less than five hundred dollars ($500.00) nor more than ten thousand dollars ($10,000) for each Type A Violation in facilities licensed for 10 or more beds. N.C. Gen. Stat. § 131D-34 (a) (1). (T. p. 260)

The June 28, 2000 Choking Incident

10. On June 28, 2000, H.L. was eating his evening meal, which consisted of a sandwich, chicken noodle soup, peaches, and milk. (T. pp. 18, 37, 73). The sandwich consisted of thin-sliced luncheon meat between two slices of bread spread with mayonnaise. (T. pp. 73-74). H.L. was eating in the dining area. (T. p. 72). H.L. stood up and walked toward the kitchen door, with a glass of milk in his hand. (T. pp. 37, 72). He was choking and turning blue. (T. p. 72)

11. A staff member was in the kitchen. (T. p. 72). One employee began to perform the Heimlich maneuver on H.L. while another employee went for help. (T. pp. 37-38, 72)

12. When Petitioner and her daughter arrived on the scene, H.L. had lost consciousness and was on the floor. (T. p. 38). Petitioner began to administer CPR to H.L. while her daughter called 911. (T. p. 38). Petitioner and her daughter continued to administer CPR to H.L. for about 20 minutes, until the ambulance arrived. (T. p. 38).

13. The ambulance took H.L. to Southeastern Regional Medical Center. (T. p. 85).

14. Petitioner was subsequently discharged from Southeastern Regional Medical Center to Sunbridge Nursing Home, where he was placed on a tube-feeding regimen. (T. pp. 85, 237)

The Robeson County DSS Investigation

15. Robeson County DSS Adult Home Specialists Mollie Williams and Fennie Oxendine investigated the incident the next day. (T. pp. 40, 68). They interviewed Petitioner, Petitioner’s daughter, and the facility employee identified by the initials B.L. (T. p. 71). They also reviewed facility records. (T. p. 71). Ms. Williams made several unsuccessful attempts to talk with H.L.’s physician, Dr. Robin Taylor. (T. pp. 123-24). Ms. Williams completed her written investigation report on July, 10, 2000. (T. pp. 71, 191) (Resp. Ex. 1, pp. 12-14)

16. By letter dated July 18, 2000, Ms. Williams notified Petitioner that an administrative penalty might be imposed against Petitioner and gave Petitioner the opportunity to submit additional information and to request a conference with the DSS Adult Services Unit. (T. p. 126) (Resp. Ex. 1, p. 15)

17. By letter dated July 25, 2000, Petitioner gave DSS a written statement of the reasons she believed an administrative penalty was unwarranted. (Resp. Ex. 1, p. 16)

18. By letter dated September 14, 2000, the Robeson County DSS informed Petitioner that, after discussing the incident with DFS, it had decided to recommend the assessment of an administrative penalty. (Resp. Ex. 1, p. 17). Copies of the Robeson County DSS’s administrative penalty proposal and directed plan of correction were enclosed with the letter. (Resp. Ex. 18-22)

19. By letter dated September 21, 2000, Petitioner asked to meet with the Robeson County DSS. (Resp. Ex. 1, p. 24)

20. The Robeson County DSS met with Petitioner on December 12, 2000. (T. p. 92) (Resp. Ex. 1, pp. 25-26)

21. As a consequence of the meeting, the Robeson County DSS amended one of its findings. (T. pp. 93, 95) (Resp. Ex. 1, pp. 25-26) The Robeson County DSS nevertheless concluded that an administrative penalty should be assessed against the facility. (T. p. 93) (Resp. Ex. 1, pp. 25-26)

22. The Robeson County DSS forwarded its recommendation to the ACHL Section by means of a Negative Action Proposal dated February 12, 2001. (T. p. 94) (Resp. Ex. 1, pp. 27-29)

Review by the Adult Care Home Licensure Section and the Penalty Review Committee

23. Ms. Ellen Walls, ACHL Section Assistant Chief, reviews all Negative Action Proposals: (a) to determine whether an administrative penalty is warranted; (b) to determine whether a particular violation is a Type A or B violation; and (c) to recommend a penalty amount. (T. p. 232)

24. Ms. Walls determined that H.L. had not received adequate care and services, in violation of N.C. Gen. Stat. § 131D-21 (2), and that he had been neglected, in violation of N.C. Gen. Stat. § 131D-21 (3). She also concluded that Petitioner had failed to provide H.L. with a required therapeutic diet, in violation of 10 N.C.A.C. 42D .1702, which refers to and incorporates 10 N.C.A.C. 42C .2302. (T. p. 235-36). She determined that the violation was a Type A-2 violation and recommended the assessment of an administrative penalty in the amount of $3,000. (T. p. 233, 235) (Resp. Ex. 1, pp. 32-34). Ms. Wall documented her conclusions in a Penalty Proposal Summary Sheet dated April 19, 2001. (T. p. 233) (Resp. Ex. 1, p. 34)

25. By letter dated April 26, 2001, Ms. Wall notified Petitioner that the Penalty Review Committee (“PRC”), established by N.C. Gen. Stat. § 131D-34, would consider the imposition of an administrative penalty against Petitioner at its July 12, 2001 meeting. (T. p. 239) (Resp. Ex. 1, pp 32-33) The letter informed Petitioner of her right to submit additional information to the PRC and to attend the PRC meeting. (T. p. 243) (Resp. Ex. 1, pp. 32-33). Copies of the county’s Negative Action Proposal and Ellen Wall’s summary were attached to the letter. (T. p. 241-42) (Resp. Ex. 1, p. 240)

26. By letter dated May 9, 2001, Petitioner set out the reasons she believed an administrative penalty was not warranted. (T. p. 247) ( Resp. Ex. 1, p. 35)

27. The PRC considered the agency’s penalty recommendation at its July 12, 2001 meeting. (T. p. 99). Madolyn D. Sampson and Clifton Sampson, Jr. attended the PRC meeting but did not speak. (T. pp. 101, 248-49) (Resp. Ex. 1, p. 38). Catherine Baker, Mollie Williams, and Fennie Oxendine attended the PRC meeting on behalf of the Robeson County DSS. Ms. Williams answered a question directed to her by a member of the committee but said nothing else. (T. pp. 100-01, 248-49) (Resp. Ex. 1, p. 38)

28. The PRC recommended that a $3,000 Type-A penalty be assessed against Petitioner by a vote of 5-0. (T. p. 248) (Resp. Ex. 1, p. 39)

29. James B. Upchurch, ACHL Section Chief, adopted the PRC’s recommendation. (T. p. 252). By letter dated August 14, 2001, Mr. Upchurch notified Petitioner that the agency had assessed a $3,000 administrative penalty against Petitioner. (T. p. 264) (Resp. Ex. 1, 36-37). Copies of the Robeson County DSS’s September 14, 2000 Negative Action Proposal and the PRC’s recommendation were attached to the notice and were incorporated therein by reference. (T. p. 265) (Resp. Ex. 1, pp. 36)

The Basis of the Penalty

30. Petitioner knew that H.L. ate too fast. (T. p. 19, 31, 73, 192-93, 237) and that H.L. put too much food in his mouth. (T. p. 19, 31, 73, 237). Further, Petitioner knew that H.L. “pocketed” food in his mouth, i.e. that he held it in his mouth. (T. p. 192-93). Moreover, Petitioner knew that H.L. had already choked two or three times while at Sampson’s Retirement Home No. 4. (T. pp. 19, 36, 72, 151, 192-93, 254-55)

31. On July 28, 1999, Petitioner’s daughter and co-administrator, Lesia Hammonds, asked a visiting home health nurse what should be done about H.L.’s choking problem. (T. p. 41, 75). The nurse recommended that the facility have an upper GI exam performed. (T. pp. 41, 75). This recommendation was entered into H.L.’s order sheet. (T. p. 123) (Resp. Ex. 1, p. 42)