STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF DURHAM 10 DHR 0558

ALTERNATIVE LIFE PROGRAMS INC. )

MARCHELL F GUNTER )

Petitioner, )

)

v. ) DECISION

)

DEPARTMENT OF HEALTH )

AND HUMAN SERVICES )

Respondent. )

THIS MATTER came on for hearing on September 1 and 2, 2010, before the Honorable Joe L. Webster, Administrative Law Judge, in Raleigh, North Carolina. The Petitioner was pro se. The Respondent was represented by Jane R. Thompson, Assistant Attorney General.

EXHIBITS

For Petitioner: Exhibits 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13a, 13b, 14 and 15 admitted

For Respondent: Exhibits 1-41 admitted

WITNESSES

For Petitioner:

Rita Bland

Syria Blackwell

Jane Whitfield

Jacquelyn Taylor

Yolanda Mitchell

Chelce Johnson

For Resondent:

Lori Davis

Jallenta Plummer

Linda Plummer

Tashiba McCoy

ISSUE

Whether the Respondent properly revoked Alternative Life Programs, Inc.’s maternity home license based on a lack of compliance with maternity home licensing rules.

FINDINGS OF FACT

1. Petitioner is the Executive Director of Alternative Life Programs, Inc. (ALP), an umbrella organization with three licenses from the Respondent. ALP was licensed through the Division of Health Service Regulation for a Level 3 group home on Kent Street in Durham. ALP no longer has that license. ALP was also issued a maternity home license and a child placing agency license by the Respondent’s Division of Social Services. ALP has had a maternity home license since 2004. It was renewed in 2006 and again in June 2008 for a two year period.

2. On February 16, 2010, the Respondent sent ALP a Notice of Administrative Action, revoking ALP’s maternity home license for non-compliance with licensing rules, citing nineteen rule violations. Petitioner filed a petition for contested case hearing. A hearing was originally scheduled for June 28, 2010, but was rescheduled at the request of the Petitioner.

3. The program consultant for ALP from the Division’s Regulatory and Licensing Services has been Lori Davis. Her supervisor is Rita Bland. Ms. Davis made an onsite visit to ALP in May and June 2008 prior to the last renewal of the maternity home license. ALP was licensed for three maternity home residents in each of its two homes, Fayetteville Road and Manford Road, both in Durham. ALP places clients 18 or over in the Fayetteville Road home and clients under 18 in the Manford Road home, although licensing regulations do not require separate facilities by age.

4. ALP receives $59.00 per day for residents who receive State Maternity Home funding. Residents who are also in the custody of a county DSS receive a higher funding rate.

5. During the 2008 relicensure process, Ms. Davis found rule violations around record keeping and asked ALP to address these in a Corrective Action Plan (CAP). This CAP was approved on 7/24/08. Respondent’s Exhibit 1. Ms. Davis and Ms. Bland made an onsite visit to ALP on 12/10/08 and found improvement in the maternity home records. However, two areas of concern were documented in a 12/12/08 letter – the need for ALP to update all policies and procedures by 1/31/09 to comply with October 2008 rule changes and the need to thoroughly evaluate maternity home admissions for clients with serious emotional or mental health problems to make sure their needs could be met. Respondent’s Exhibit 2.

6. In May 2009 Ms. Davis received a report of inadequate food at the Fayetteville Road home. She made an unannounced visit on 5/18/09 and found an inadequate food supply and lack of proper menus. A rule change in July 2009 required maternity home staff to be present at all times when clients were present. On an unannounced visit on 8/27/09, Ms Davis found one resident present with no staff in the home. On that same date she conducted a record review at the ALP office and found numerous rule violations in client and staff records.

7. During a 9/03/09 unannounced visit to the Manford Road home, Ms. Davis found a Cumberland DSS foster child, MW, who had come to the home from a Level 3 facility that could no longer keep her because she had to be off her medications during her pregnancy. She was also on juvenile court probation for indecent liberties with a minor and yet had been left alone with a staff member’s small child. Ms. Davis required a safety plan for the resident before she left that day.

8. A CAP was approved on 10/5/09 to address rule violations from the August and September visits and record reviews. While that CAP was in the approval process, ALP was asked to suspend further maternity home admissions because of the scope of violations and the continuing lack of updated policies and procedures.

9. In October 2009 Ms Davis received pictures of a staff person at Fayetteville Road apparently asleep during work hours. An unannounced visit to Manford Road home on 10/26/09 found continued menu rule violations. There were also concerns that residents were responsible for providing their own food and were being told to apply for food stamps. On that same date, Ms. Davis and Ms. Bland met with some members of the ALP board, including Marchell Gunter and three others. The board was concerned about an unannounced visit by Ms. Davis to an ALP foster home, but did not express concern about the maternity homes. Ms. Davis and Ms. Bland were told that ALP staff should be present for any future record reviews and that a disgruntled employee was “out of get” Ms. Gunter.

10. Ms. Davis attempted to meet with Ms. Gunter in December 2009, but was not able to set up a meeting with her until 1/28/10. Prior to that meeting Ms. Davis learned from a county DSS of a child protective services investigation into a physical argument on 11/24/09 between the staff person at the Manford Road home and client MW, who had come from the Level 3 facility. Respondent is required by rule to be notified of any CPS reports within 72 hours.

11. Attending the 1/28/10 meeting were Ms. Davis, Ms. Taylor, an ALP social worker, Ms. Gunter, and Ms. Bland. They discussed the updated policies and procedures Ms. Gunter had sent to Ms. Davis in November and December 2009, which were not adequate or complete. They reviewed the previous CAP dealing with food and menu issues and the health of a staff member who had been photographed asleep in the maternity home. The CAP had not been completed, and Ms. Gunter agreed to complete all corrective action by 2/02/10, except the doctor’s statement regarding the staff person’s fitness to work, which would be completed by 2/19/09. Based on the history of continuing unresolved rule violations, Ms. Gunter was informed that Ms. Davis and Ms. Bland would recommend revocation of her maternity home license.

12. Ms. Gunter did not complete the corrective action due on 2/02/10 until 2/23/10 when she sent a proposed CAP on menu and food issues, which did not adequately address the rule violations.

13. Ms. Davis, Ms. Bland and their supervisor, Bob Hensley, discussed ALP’s maternity license and determined that the level of rule violations and lack of timely or complete corrective action that had been present since the last relicensing in June 2008 and had escalated since May 2009 was unacceptable, posing a risk to current and future residents. A Notice of Administrative Action revoking ALP’s maternity home license was sent on 2/16/10.

14. Maternity home rules require that meal menus be prepared a week in advance by, or in consultation with, a licensed dietician or nutritionist. 10A NCAC 70K .0204(i). Adequate food must always be provided. 10A NCAC 70K .0207(b)(4). These rules became an issue in May 2009 when Respondent received a complaint of lack of sufficient food at the Fayetteville Road home. During her unannounced visit on 5/18/09, Ms. Davis found very little food in the home, but was told Ms. Gunter would be going food shopping the next day. The only menus present had been developed by the staff and residents. Ms. Gunter responded in a 6/19/09 letter, Respondent’s Exhibit 3, that ALP did not use the services of a dietician, that she thought “the WIC program covers the issue of nutrition fully.”

15. Tabisha McCoy, a former ALP employee, contacted Pat Tapp at the Lincoln Center about appropriate menus and was given a brochure called “Tips for a Healthy Pregnancy.” Ms. McCoy told Ms. Gunter to follow up with Ms. Tapp for help with menus. When contacted by Ms. Davis, Ms. Tapp responded on 6/25/09 that her only contact with ALP consisted of providing the brochure. During another unannounced visit on 8/27/09, Ms. Davis again found very little food at the Fayetteville Road home, the bacon was gray, and meat in the freezer looked freezer burned. There were no fresh vegetables or fruit, although the staff person, Ms. Whitfield, had a fresh fruit basket for her personal use. No menus were present. On 8/17/09 Ms. Gunter had stated she met with dietician Sheila White 8/10/09, and she would work with ALP. Respondent’s Exhibit 5. Respondent never received confirmation from Ms. White. On 9/2/09 Ms. Gunter faxed menus from womansday.com and another unknown source without the name of a consulting dietician. Respondent’s Exhibit 6.

16. On 10/10/09 Ms. Davis heard from nutritionist Mary Groce that she had been contacted by Ms. Gunter about preparing menus, but there was no confirmation that consultation actually took place. On 10/15/09 Ms Gunter provided another one week menu and listed Rosemary Everett’s name as ALP’s dietician. The same day Ms. Davis asked for confirmation that Ms. Everett was now approving menus for ALP. Respondent’s Exhibit 7. She did not hear from Ms. Everett until 2/15/10 when she received a faxed letter from Ms. Everette, a Head Start nutritionist, stating, “I am writing to acknowledge my assistance in formulating menus for Ms. Gunter for her clients.” Two menus were attached to the letter. One appeared to be the same Woman’s Day menus with added words, such as “milk.” Ms. Everette said the menus had also been reviewed by a registered dietician, but supplied no name, and did not indicate for how long she had been consulting with ALP. Moreover, the letter was received nine months after the original menu violations were brought to Ms. Gunter’s attention. Respondent’s Exhibit 12.

17. There were no menus posted when Ms. Davis made another unannounced visit on 10/26/09. Neither Tabisha McCoy, an ALP employee from April 2008 to August 2009, nor Chelce Johnson, a maternity home resident at Fayetteville Street home from 5/28/09 to Labor Day weekend 2009, ever saw menus posted at either home and never saw menus approved by a dietician or nutritionist. In addition, both Ms. McCoy and Ms. Johnson observed insufficient food in the maternity homes. If a resident’s WIC vouchers ran out before the end of the month, she would not have milk, juice, or cheese until new vouchers arrived. Ms. Johnson was told she would have to provide her own food and was told to go to Durham DSS to apply for food stamps. When Ms. Davis challenged this practice, Ms. Gunter stated that Ms. Taylor, the ALP social worker, did not have her approval to write the letter, Respondent’s Exhibit 8, that Ms. Johnson must help with her own food.

18. Effective July 1, 2009, each maternity home must have direct care staff present when any resident is present. 10A NCAC 70K .0201(c). No staff was present with resident Chelce Johnson at the Fayetteville Road home during an unannounced visit by Ms. Davis on 8/27/09. Ms. Johnson was told she should leave during the day after Ms. Whitfield left around 8 am and not return until Ms. Love reported for work around 2pm. If Chelce was in the home during those hours, she was unsupervised. On 8/27/09, Ms Taylor arrived at the home about 45 minutes after Ms. Davis, stating she was the direct care staff and had been held up at a school meeting. She had never been designated as direct care staff to Ms. Davis prior to that date, and Ms. Johnson had never seen her act as direct care staff. Ms Taylor testified at the hearing that she became aware of the 7/01/09 rule change regarding staffing when discussing it with Ms. Davis on 8/27/09.

19. In October 2009 Ms. Johnson took pictures with her cell phone of Ms. Whitfield asleep with her head on the kitchen table and while behind the wheel of a car, as well as standing at the kitchen counter. These pictures were taken in the evening before Chelce was supposed to be in her room for the night. Ms Gunter was shown these pictures and acknowledged that Ms. Whitfield had health issues that affected her ability to stay awake during work hours. Ms. McCoy also observed Ms. Whitfield sleeping during work hours and was concerned that she would not drive the residents at night or in bad weather. Respondent asked that ALP provide a doctor’s statement that Ms. Whitfield was fit to perform her job as direct care staff and that the doctor first be given her job description and written concerns regarding her sleeping while on duty. Respondent’s Exhibit 7 (CAP). Ms. Whitfield testified she took a copy of her job description to her appointment, but could not confirm that any written description of her sleep problems was given to the doctor, and the doctor’s report does not mention sleep issues. Respondent’s Exhibit 15. Ms. Whitfield was not seen by a doctor until February 2010.

20. On August 27, 2009, Ms. Davis reviewed the personnel file for Syria Blackwell, the only direct care staff at Manford Road home, for compliance with 10A NCAC 70F .0206 and .0207 and found numerous violations. Ms. Blackwell was hired in January 2009 without a valid driver’s license and drove residents from January 2009 until May 2009. A criminal record check showing she had been cited for driving with license revoked in September 2008 was in her file, but there was no documentation that Ms. Gunter had determined why the license was revoked. And Ms. Gunter relied on Ms. Blackwell’s unsupported statement that her license was actually valid until May 2009 in allowing her to drive until then. Respondent’s Exhibits 16-20. Although Ms. Gunter stated Ms. Blackwell did not drive after May 2009, Ms. McCoy observed her driving residents until Ms. McCoy left in August 2009.