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STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF WAKE 04 DHR 1116

PATRICIA LOWE TILLER, )

Petitioner, )

)

v. )

) DECISION

WAKE COUNTY HUMAN SERVICES, )

DEPARTMENT OF HEALTH & )

HUMAN SERVICES, DIVISION OF )

FACILITY SERVICES, )

Respondent. )

This contested case was heard before Beecher R. Gray, Administrative Law Judge, in

Raleigh, North Carolina on January 19, 2006 and January 27, 2006.

APPEARANCES

Petitioner: William Woodward Webb

The Edmisten & Webb Law Firm

133 Fayetteville Street Mall

Suite 300

Raleigh, NC 27601

Respondent: June Ferrell

Assistant Attorney General

North Carolina Department of Justice

9001 Mail Service Center

Raleigh, NC 27699-9001

ISSUE

Whether Respondent substantially prejudiced Petitioner’s rights, exceeded its authority or jurisdiction, acted erroneously, failed to use proper procedure, acted arbitrarily or capriciously, and/or failed to act as required by law or rule when it listed Petitioner’s name on the North Carolina Health Care Personnel Registry (hereinafter “NCPR”) pursuant to N.C. Gen. Stat. § 131 E-256 for misappropriation of a resident’s property at Autumn Green Adult Care Home in Holly Springs, North Carolina.

APPLICABLE STATUES AND RULES

N.C. Gen. Stat. § 131 E-256

N.C. Gen. Stat. § 150B-23

10A N.C.A.C. 130.0101

EXHIBITS

For Petitioner: 1 through 5

For Respondent: 1 through 13

FINDINGS OF FACT

In making the Findings of Fact, the undersigned has weighed all the evidence and assessed the credibility of the witnesses. The undersigned has taken into account the appropriate factors for judging credibility of witnesses, including but not limited to the demeanor of the witness and any interests, bias, or prejudice the witness may have. Further, the undersigned carefully has considered 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. After careful consideration of the sworn testimony presented at the hearing, the documents and exhibits admitted into evidence, and the entire record in this proceeding, the undersigned makes the following FINDINGS OF FACT:

1. The parties received notice of hearing by certified mail more than 15 days prior to the hearing and each stipulated on the record that notice was proper.

2. Petitioner, Patricia L. Tiller is the owner/administrator of the Autumn Green Adult Care Home (hereinafter “Autumn Green”) located in Holly Springs, North Carolina. Autumn Green has been licensed by Respondent for up to 6 residents.

3. At all times relevant to this matter, J.H. was a resident of Autumn Green.

4. By letter dated June 29, 2004 Respondent notified Petitioner that it had substantiated an allegation of misappropriation of resident property at Autumn Green and, consequently, was listing her name on the HCPR under N.C. Gen. Stat. § 131 E-256.

5. On May 22, 2003 Teshona Bouie, an employee of the Wake County Department of Social Services and guardian of J.H., called Petitioner to request that she come by her office to pick up gift cards for use by J.H. in lieu of Two Thousand Dollars ($2,000.00) J.H. had received as part of a divorce settlement and was required to “spend down” in order to retain Medicaid eligibility. J.H. was adjudicated incompetent in 1998 and according to Ms. Bouie could not be trusted to handle cash.

6. J.H. was asked by Ms. Bouie which stores she wanted gift cards for and identified Best Buy as one of those stores. Ms. Bouie gave Petitioner gift cards for six (6) stores including a Six Hundred Dollar ($600.00) gift card for Best Buy. Pursuant to instructions given by Ms. Bouie, Petitioner and J.H. were to save all receipts for purchases made with the gift cards and to send them to Ms. Bouie in envelopes addressed to her.

7. On May 22, 2003 J.H. directed Petitioner’s husband, Demetrius Tiller, to go buy Patricia a clothes dryer for use at Autumn Green. Mr. Tiller went to Best Buy and purchased a clothes dryer using J.H.’s gift card. It is undisputed that J.H. caused the purchase of the clothes dryer by Mr. Tiller as a surprise gift for Petitioner. Moreover, there was no evidence adduced that Petitioner was even aware of the purchase of the clothes dryer prior to its appearance at Autumn Green on May 22, 2003.

8. Whether the clothes dryer was put in a storage bin, as Petitioner, her husband and nephew testified or whether it was actually used at Autumn Green, as others asserted, cannot be determined from the evidence presented nor is it dispositive of a decision as to whether Petitioner misappropriated J.H.’s property.

9. Ms. Sharon Moore, a nurse investigator with the HCPR, conducted an investigation into the circumstances surrounding the purchase of the clothes dryer. The investigation included a personal interview with J.H. on June 2, 2004. Ms. Moore confirmed that J.H.’s intent was for the clothes dryer to be a gift for Petitioner. Ms. Moore also testified that during the interview J.H. had a “very clear thought process” and that J.H. was “clear, calm, and her memory was good” or words to that affect. Ms. Moore also testified that she gave J.H. credence when she interviewed her.

10. It is additionally undisputed that Petitioner assisted J.H. in the purchase of a laptop computer and in learning how to operate it while she was a resident of Autumn Green.

11. While it is a matter of fact that J.H. had been adjudicated incompetent in 1998, it is also true that Respondent and others involved in J.H.’s affairs certainly treated her as competent in, for example, deciding on how to spend Two Thousand Dollars ($2,000.00) with gift cards, entrusting her to mail gift card receipts to the Wake County Department of Social Services and placing credibility in her interview statements. J.H. cannot be considered competent one minute and not competent the next depending on the whim of Respondent’s agents and employees.

12. J.H.’s intent was clearly and indisputably to purchase, or cause the purchase of, the clothes dryer as a surprise gift for Petitioner.

13. Petitioner was unaware of the intended purchase or indeed the actual purchase of the clothes dryer.

14. According to the HCPR definitions at 10 A NCAC 130.0101 “‘Misappropriation of resident property’ means the deliberate misplacement, exploitation, or wrongful temporary or permanent use of a patient’s belongings or money without the patient/resident’s consent.”

CONCLUSIONS OF LAW

1. The parties are properly before the Office of Administrative Hearings.

2. Respondent properly notified Petitioner of its intended action and her appeal rights.

3. Petitioner has established by a preponderance of the evidence that she did not engage in “misappropriation” of J.H.’s belongings or money as that term is defined in the HCPR definitions at 10 A NCAC 130.0101 for the reason that the purchase of the clothes dryer was motivated and effected by the clear, unimpaired intent of J.H. to purchase the clothes dryer as a gift for Petitioner. Not only was the purchase made with J.H.’s consent, it was apparently made at her insistence.

4. J.H. was legally able and competent to receive, manage and administer her property at the time that the clothes dryer was purchased and, thereafter, she was de facto competent when she was interviewed by the HCPR investigator and questioned as to the circumstances surrounding the purchase of the clothes dryer.

5. Because Petitioner did not misappropriate J.H.’s belongings or money, listing her on the HCPR pursuant to N.C. Gen. Stat. § 131 E-256 was erroneous and contrary to law or rule, and, hence, her listing should be rescinded.

DECISION

Based upon the foregoing findings of fact and conclusion of law it is hereby ORDERED that Respondent’s decision to list Petitioner on the HCPR is REVERSED.

ORDER

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative Hearings, 6714 Mail Services Center, Raleigh, N.C. 27699‑6714, in accordance with N.C.G.S. § 150B‑36(b).

NOTICE

The agency making the final decision in this contested case is required to give each party an opportunity to file exceptions to Decision and to present written arguments to those in the agency who will consider this Decision. N.C.G.S. § 150B‑36(a).

The agency is required by N.C.G.S. § 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. The agency that will make the final decision in this contested case is the North Carolina Department of Health and Human Services.

This the 16th day of February, 2006.

______________________________

Beecher R. Gray

Administrative Law Judge