State of North Carolina s14

STATE OF NORTH CAROLINA

COUNTY OF WAYNE

IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

09 DHR 3766

8

8

Kevin Summers,

Petitioner,

v.

Department of Health and Human Services, Division of Health Service Regulation, Health Care Personnel Registry,

Respondent.

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DECISION

8

THIS MATTER came for hearing before the Honorable Donald W. Overby, Administrative Law Judge presiding, on May 18, 2010 in Goldsboro, North Carolina.

APPEARANCES

For Petitioner: Kevin Summers, pro se

130 Jesse Jackson Street

La Grange, North Carolina 28551

For Respondent: Bethany A. Burgon

Assistant Attorney General

North Carolina Department of Justice

P.O. Box 629

Raleigh, NC 27602-0629

ISSUE

Whether Respondent otherwise substantially prejudiced Petitioner’s rights and acted erroneously when Respondent substantiated the allegation that on or about January 23, 2009 Kevin Summers, a Health Care Personnel, abused a resident WK by willfully fighting with WK resulting in physical harm.

APPLICABLE STATUTES AND RULES

N.C. Gen. Stat. § 131D-2.1

N.C. Gen. Stat. §150B-23

N.C. Gen. Stat. § 131E-256

42 CFR § 488.301

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

EXHIBITS

Respondent’s exhibits 1-18, 20-23 were admitted into the record.

WITNESSES

Kevin Summers

Donna Flow

Regina Dickerson

James Corey Dickerson

Pamela Anderson

LaTonya Gardner Summers

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 sworn testimony of witnesses, the undersigned makes the following:

FINDINGS OF FACT

1. At all times relevant to this matter Petitioner, Kevin Summers, was employed with the Edwar Group (“Edwar”) as a third shift, Habilitation Technician at the Peele Street Home (“Peele Street”) and therefore subject to N.C. Gen. Stat. § 131E-256.

2. Petitioner was trained by Edwar. He was aware of clients’ rights and particularly their right to be free of abuse. Petitioner knew that fighting with a resident resulting in physical harm to the resident was abuse. Petitioner was trained in de-escalation, verbal prompts, and NCI hold techniques.

3. Petitioner was the habilitation technician on the third shift from 11 p.m. to 7 a.m. Peele Street is a group home that provides community-based services and in-home aide services to residents with diagnoses of Mental Retardation and Developmentally Disabled. Peele Street currently has four clients living in the home.

4. Petitioner had eleven years of experience in health care. Petitioner was trained on how to care for these types of residents. Petitioner had been at this particular home only three weeks, and there is no evidence that he had been familiarized with the residents, their course of treatment, their person centered plans and/or any particular issues the residents may have, and in particular resident WK. Petitioner is six feet tall and weighs two hundred and twenty-five pounds.

5. Resident WK is 37 years old and resides in Peele Street. Resident WK has been diagnosed with moderate mental retardation. Resident WK is high functioning, responds to verbal prompts, and is not known to be aggressive with others. Resident WK is roughly 6’2 and weighs around two hundred and fifty pounds. During the day, Resident WK is picked up by a van to go to work at Wayne Opportunity.

6. On January 23, 2009, Petitioner was on duty working the third shift at Peele Street. The night before, Petitioner was asked to get a resident up early for a doctor’s appointment. That morning, Petitioner woke up the residents and was going back and forth between residents giving out medicine and making breakfast. Resident WK did not want breakfast and instead sat in a chair in the living room. Petitioner went back to getting the other resident ready for his doctor’s appointment. During this time, Petitioner stated that Resident WK looked at him funny and let out a loud laugh. Petitioner returned to the kitchen and Resident WK let out another loud laugh.

7. Resident J joined Resident WK in the living room and asked him what was so funny. Resident WK let out another loud laugh. Petitioner left the kitchen and returned to the living room to work on paperwork. Shortly thereafter, Resident WK got up from the chair and went over to the door and opened it to wait for the van to pick him up to take him to work.

8. At Peele Street, there is a sign posted that states, “Doors and windows must be shut when the heat and air is on.” Petitioner asked Resident WK to close the door while he waited for his ride. Resident WK did not close the door. Instead, Resident J came over to Resident WK and Resident WK pulled out his wallet and began saying, “I got money, I got money.”

9. Petitioner again asked Resident WK to close the door. Resident WK repeated saying, “I got money, I got money.” Petitioner walked over to Resident WK by the door and asked him to move out of the way so that he could shut the door. When resident WK did not move, Petitioner pulled Resident WK’s jacket sleeve to move him out of the way and a struggle ensued. Petitioner and Resident WK fell over the coffee table onto the floor where they struggled for approximately thirty seconds.

10. During the struggle, they got up off the floor and continued to struggle and at some point hit the wall behind where the television sits. There is discrepancy as to whether or not the television was in place at the time of the struggle. It is inconceivable that the TV could have remained in place and intact with these two large men struggling with each other to the extent that a sizeable hole was knocked in the wall directly behind where the TV would sit. The size of the hole is not consistent with only someone’s head being forced through the sheetrock, but is more consistent with more of an individual or individuals’ bodies hitting the wall. Resident WK’s head may have been responsible in part for the hole in the wall above the television. Petitioner contends that the struggle lasted approximately ten minutes but that is more likely than not an over statement of the actual amount of time.

11. Donna Flow (“Flow”) is employed by Edwar as a Residential Service Manager and she supervises Peele Street. On January 23, 2009, Flow arrived at Peele Street at approximately 7:45 a.m. Flow was not present when the incident occurred. When she arrived, she heard Resident J shouting, “Fight, Fight” and found Petitioner pinning Resident WK on the floor. Resident WK was saying, “Let me up. Let me up.”

12. Petitioner had pinned Resident WK by leaning his upper body onto W’s upper body with his forearms extended across WK’s chest holding his arm. Petitioner was not using an approved hold technique.

13. Flow observed Resident WK had a gash over his eye and it was bleeding. Flow cleaned the cut with water. Flow has never seen Resident WK be aggressive with a person. She explained that he might stop talking to you if he is upset but he does not hit.

14. Flow asked Petitioner to let Resident WK get up. She was able to get Resident WK to calm down. Flow took Resident WK to the back of the house to clean the gash over his eyebrow, and she asked Petitioner to go into her office until she got the situation under control.

15. When Flow first arrived at Peele Street the morning of January 23, 2009, she noticed a hole in the wall above the television that had not been there before. Flow stated that she noticed that the television and television stand in front of the hole were turned a little bit while the rest of the furniture in the living room had been pushed around.

16. At her first available opportunity, Flow called Mr. James Corey Dickerson (“Dickerson”), the director and part owner of Edwar, to report the incident. It is Dickerson’s duty to report allegations of abuse and to perform the internal investigation regarding alleged abuse. Flow filled out the initial incident report regarding the alleged abuse of Resident WK.

17. On January 23, 2009, Dickerson arrived at Peele Street at approximately 8:00 a.m. The first thing he noticed was the hole in the wall above the television. Dickerson asked Petitioner to wait for him in Flow’s office while he spoke with Resident WK in the living room. Dickerson described Resident WK as a happy go lucky person who laughs all the time. He has never been restrained in the 12 years Dickerson has worked with him or had an altercation with a staff member.

18. Dickerson talked to Resident WK about the alleged abuse. Resident WK immediately began to cry. It took Resident WK about ten minutes to pull himself together. He told Dickerson that Petitioner asked him to move away from the door. And he didn’t so Petitioner pulled his arm. He said they began to tussle and Petitioner started to choke him and banged his head into the wall. Resident WK showed Dickerson where Petitioner banged his head into the wall. Dickerson has worked with Resident WK for 12 years. Resident WK has not made an allegation of abuse before this incident.

19. Dickerson then interviewed Petitioner about the alleged abuse. Petitioner told him he couldn’t remember anything about the incident except that he asked Resident WK to move from the doorway twice. Petitioner said he then pulled Resident WK’s jacket sleeve and they began to tussle. Dickerson asked Petitioner to meet with him at Edwar’s Corporate Office later that day.

20. The nurse employed by Edwar, Regina Dickerson, was called to Peele Street to administer first aid to Resident WK. Mrs. Dickerson is the wife of Mr. James Corey Dickerson, the director and part owner of Edwar. When she arrived, Resident WK had a two-inch gash above his left eyebrow and minor swelling around the gash. The nurse asked Resident WK if he wanted to go to the hospital. He said “no” so she dressed the wound at the home. Regina Dickerson was not asked to see Petitioner about any injuries since Petitioner was not present when she arrived.

21. Dickerson interviewed Petitioner later as part of his internal investigation into the alleged abuse. Petitioner wrote a detailed statement about the events of the morning and leading up to the fight but he said he could not remember details of the struggle. Petitioner did not seem to be mad but was nervous.

22. Dickerson completed his internal investigation regarding the alleged abuse and substantiated the allegation that Petitioner abused Resident WK based on the physical evidence and the statements. Petitioner was placed on administrative leave and terminated on January 30, 2009 as a result of the internal investigation. Dickerson sent the 24-Hour Initial report and 5-Working Day Report to the Health Care Personnel Registry (“HCPR”).

23. At all times relevant to this incident, Rose Marie Williamson (“Williamson”) was employed as an investigator for the HCPR. She is charged with investigating allegations against health care personnel in the northeastern region of North Carolina. Accordingly, Peele Street was in her region and she received and investigated the complaint that Petitioner had abused Resident WK. Due to a medical illness, Williamson was not able to testify during the hearing on May 19, 2010, and therefore was not subject to examination and cross-examination about the accuracy of her investigation and reports. Pamela Anderson, her supervisor, testified in her absence after reviewing the case. Anderson did not prepare the documentation nor conduct the interviews.

24. As part of the investigation, Williamson interviewed Petitioner, Resident WK, Flow, Regina Dickerson, and Dickerson. She also reviewed the resident’s medical records and the personnel file of the accused staff member, and she took into account the internal investigation conducted by the facility.

25. During the on-site investigation interviews, Resident WK was willing to speak about how he liked living at Peele Street and that he liked his job. When asked about Petitioner, Resident WK identified Petitioner as the person that banged his head into the wall and as the person that gave him a scar over his left eye. Resident WK said that he was standing in the door and Petitioner told him to get out of the door. He said Petitioner grabbed him when he was waiting for his van to come. Resident WK tried to remember more details but he explained that it was hard because it had been a long time. Williamson took pictures of the area where the struggle occurred and the hole in the wall.

26. Flow testified that Resident WK is highly functioning. He would be able to tell you what happened in a situation. She did not believe he would be able to remember the details of the incident at the time of the trial. Dickerson also testified that in his opinion Resident WK would not have been able to remember far enough aback to testify at the hearing. He does have the ability to recall a situation after it happens but cannot give very detailed descriptions.

27. Williamson’s interview of Resident WK was approximately six weeks after the date of the incident. The further removed he is from an occurrence, the less likely he is to remember it, especially in any amount of detail. Resident WK’s recounting of the incident for Williamson was consistent with what he related to Dickerson immediately after the incident.