STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF MECKLENBURG 11 DHR 2443

Koisey Lorlu Dahn,
Petitioner,
vs.
NC Dept of Health and Human Services,
Div of Health Service Regulation,
Respondent. / )
))
)
)
) / DECISION

THIS MATTER came on for hearing before the undersigned, Selina M. Brooks, Administrative Law Judge, on July 14, 2011, in Charlotte, North Carolina.

APPEARANCES

Petitioner: Koisey Dahn

4667-Apt. 2 Perth Court

Charlotte, NC 28215

For Respondent: Josephine N. Tetteh

Assistant Attorney General

North Carolina Department of Justice

9001 Mail Service Center

Raleigh, NC 27699-9001

ISSUE

Whether Respondent otherwise substantially prejudiced Petitioners rights and failed to act as required by law or rule when Respondent substantiated the allegation that Petitioner neglected a resident of Southminster Embrace Home Care in Charlotte, NC and entered findings of neglect by Petitioner’s name in the Health Care Personnel Registry.

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

EXHIBITS

Respondent’s exhibits 1 – 7, 9 – 27 were admitted into the record.

WITNESSES

Koisey Dahn (Petitioner)

Aisatou Sillah (co-worker)

Nancy Boateng (co-worker)

Mr. C. (husband of resident SC)

Marites Garcia (supervisor)

Lawrencette McSwain (HCPR Investigator)

BASED UPON careful consideration of the sworn testimony of the witnesses presented at the hearing 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 sworn testimony of witnesses, the undersigned makes the following:

FINDINGS OF FACT

1. At all times relevant to this matter Petitioner, Koisey Dahn, was an in-home aide at Southminster Embrace Home Care (“Southminster”) in Charlotte, North Carolina. Southminster is a home care facility and therefore subject to N.C. Gen. Stats. §131E-255 and §131E-256. (T. pp. 11, 120)

2. Petitioner was aware of her job responsibilities. Petitioner was also trained on residents’ rights and responsibilities. (Resp’t Exs. 2 – 5)

3. Petitioner is aware that it is neglect to leave a resident in an unsafe position and situation. (T. p. 20)

4. Petitioner was assigned to provide home care for Resident SC on January 11, 2011 in Resident SC’s apartment. (T. p. 21)

5. At all times relevant to this proceeding, Resident SC has been a resident of Southminster. Resident SC was admitted to the facility with the following diagnoses: seizure disorder; left hemiparesis secondary to previous right CVA associated with intracranial aneurysm hypertension. Resident SC also has a history of left hip fracture post failed left total hip replacement; depression and a history of left humerus fracture. Resident SC is chair-bound and uses a motorized recliner which is operated by a remote control. (T. pp. 74, 93 – 95, 99 - 100; Resp’t Exs. 18, 26)

6. Resident SC has a history of altering the position of her recliner by using her remote control. The facility approach, expectation and training in such circumstances is to adjust the recliner for Resident SC and keep the remote control out of her reach. (T. p. 105; Resp’t Ex. 26)

7. Petitioner has worked with Resident SC in the past. Petitioner is aware that Resident SC can operate the remote control on her chair. (T. pp. 28, 34; Resp’t Ex. 7)

8. While taking care of Resident SC on January 11, 2011, Resident SC repeatedly tried to get out of her recliner. Petitioner was able to calm Resident SC down until she fell asleep. (T. pp. 22, 28 - 30; Resp’t Ex. 6)

9. After Resident SC fell asleep Petitioner took her lunch break a few steps away from Resident SC. Resident SC’s recliner was in a laid back position at the time. (T. pp. 23, 25, 27 – 30, 107; Resp’t Exs. 6, 7, 17)

11. Resident SC woke up from her nap a few minutes later and operated the remote control for her recliner. Resident SC fell out of her recliner. (T. p. 24)

12. Resident SC’s husband, CC, rushed to the living room after hearing a loud bang. At all times relevant to this proceeding, Mr. C was living in the same apartment as Resident SC. When Mr. C got to the living room, Resident SC was on the floor of the living room. Resident SC’s recliner was in an upright position. (T. pp. 25, 30, 37 – 38, 40, 42 - 43; Resp’t Ex. 9)

13. At all times relevant to this proceeding, Viscount was a nurse manager at Southminster. Judy Viscount (“Viscount”) received the page for emergency assistance and went to Resident SC’s apartment. When Viscount arrived, she observed Resident SC’s recliner in a full upright position and Resident SC on the floor bleeding. (T. p. 51-53, 55; Resp’t Exs. 10 - 12)

14. Marites Garcia (“Garcia”) received information regarding Resident SC’s fall on January 12, 2011, and re-assessed Resident SC. At all times relevant to this proceeding, Garcia has been employed as Director of Home Care at Southminster, in Charlotte, North Carolina. (T. pp. 85 – 88)

15. Garcia filled out the 24-Hour Initial Report and sent the form to the Health Care Personnel Registry (“HCPR”). Garcia also conducted a facility investigation which included speaking to Petitioner. (T. pp. 89 - 92; Resp’t Ex. 13)

16. Following her investigation, Garcia sent the 5-Working Day Report to the HCPR. (T. p. 89; Resp’t Ex. 16)

17. At all times relevant to this matter, Lawrencette McSwain (“McSwain”) was an investigator with the Health Care Personnel Registry. McSwain is charged with investigating allegations against health care personnel in Mecklenburg County, North Carolina. Accordingly, she received and investigated the allegation that Petitioner had neglected Resident SC at Southminster. (T. pp. 116 - 117, 120 - 122 ; Resp’t Ex. 26)

18. McSwain reviewed the facility documents and conducted her own investigation which included interviewing people involved with the incident. (T. pp. 120 - 122; Resp’t Ex. 26)

19. McSwain found several inconsistencies in Petitioner’s statements including the following:

a.  Petitioner gave two different accounts of where she was at the time of Resident SC’s fall.

i.  Petitioner first said she was sitting at the dining room table across from Resident SC. Petitioner then indicated that she was not at the dining room table on the day of Resident SC’s fall.

ii.  Petitioner next said she was sitting in a chair in the living room next to Resident SC’s chair. Petitioner denied hearing the motor running when Resident SC operated her recliner.

b.  Petitioner was aware that Resident SC could change the position of her recliner with the remote control and did not take away the remote control. Nancy Boateng (“Boateng”) and Aisatou Sillah (“Sillah”), two other facility aides who worked with Resident SC and were trained with Petitioner, always took Resident SC’s recliner remote control away when taking care of Resident SC or while taking a break.

c.  Petitioner gave inconsistent statements to Garcia. For instance, Petitioner indicated the television in the living room was on at the time of the incident, but Mr. C contradicted this information.

d.  Petitioner denied receiving a care plan for Resident SC. However, Boateng and Sillah both indicated they had been trained with Petitioner, and had all been made aware of Resident SC’s care plan. Resident SC’s care plan was kept in a notebook with other forms which aides had to document daily.

e.  Petitioner indicated Mr. C put Resident SC’s recliner into a reclining position following Resident SC’s fall. However, this information was contradicted by Nurse Viscount and Mr. C.

(T. pp. 64 – 68, 74 – 81, 92, 102, 103, 127 – 129, 131; Resp’t Exs. 23, 26)

20. McSwain measured the distance for each place Petitioner said she was sitting, and found that Petitioner was within a reasonable distance to hear or see the motorized recliner. (T. pp. 122 – 127, 134 - 135; Resp’t Ex. 26).

21. Following the conclusions of her investigation, McSwain documented her findings and notified Petitioner of her decision to substantiate the allegation of neglect. (T. pp. 130, 135 - 136; Resp’t Exs. 26, 27). A letter was sent to Petitioner notifying her of Respondent’s intent to enter a finding of neglect into the Health Care Personnel Registry. (Resp’t Ex. 27)

22. Neglect is the “failure to provide goods and services necessary to prevent physical harm, mental anguish and mental illness.” (T. p. 130; Resp’t Ex. 26)

Based upon the foregoing Findings of Fact, the undersigned Administrative Law Judge makes the following:

CONCLUSIONS OF LAW

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. All parties have been correctly designated and there is no question as to misjoinder or nonjoinder.

3. As a nursing assistant working in an adult care facility, Petitioner is a health care personnel and is subject to the provisions of N.C. Gen. Stat. § 131E-256.

4. “Neglect” is defined as a “failure to provide goods and services necessary to avoid physical harm, mental anguish or mental illness.”

6. On or about January 11, 2011, Koisey Dahn, a Health Care Personnel, neglected a resident (SC) by failing to assure the resident’s safety resulting in a fall and physical harm to the resident.

7. Respondent did not act erroneously because there is sufficient evidence to support Respondent’s conclusion that Petitioner neglected Resident SC.

DECISION

Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby determines that Respondent’s decision to place a finding of neglect by Petitioner’s name on the Health Care Personnel Registry should be UPHELD.

NOTICE

The Agency that will make the final decision in this contested case is the North Carolina Department of Health and Human Resources, Division of Health Service Regulation.

The Agency is required to give each party an opportunity to file exceptions to the recommended decision and to present written arguments to those in the Agency who will make the final decision. N.C. Gen. Stat. § 150-36(a). The Agency is required by N.C. Gen. Stat. § 150B-36(b) to serve a copy of the final decision on all parties and to furnish a copy to the parties’ attorney of record and to the Office of Administrative Hearings.

In accordance with N.C. Gen. Stat. § 150B-36 the Agency shall adopt each finding of fact contained in the Administrative Law Judge’s decision unless the finding is clearly contrary to the preponderance of the admissible evidence. For each finding of fact not adopted by the agency, the agency shall set forth separately and in detail the reasons for not adopting the finding of fact and the evidence in the record relied upon by the agency in not adopting the finding of fact. For each new finding of fact made by the agency that is not contained in the Administrative Law Judge’s decision, the agency shall set forth separately and in detail the evidence in the record relied upon by the agency in making the finding of fact.

This the 8th day of September, 2011.

______

Selina M. Brooks

Administrative Law Judge