State of North Carolina s49

STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF GUILFORD 11 DHR 13857

Estella White,
Petitioner,
vs.
Department of Health and Human Services,
Division of Health Service Regulation,
Respondent, / )
))
)
)))) / DECISION

THIS MATTER came on for hearing before the undersigned, Beecher R. Gray, Administrative Law Judge, on February 1, 2012, in High Point, North Carolina. Respondent filed a Proposed Decision on March 8, 2012.

APPEARANCES

Petitioner: Estella White, appearing pro se

506 Everett Lane, Apt. A

High Point, North Carolina 27262

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 Petitioner’s rights and failed to act as required by law or rule when Respondent substantiated the allegation that Petitioner neglected a resident of Libertywood Nursing Center in Thomasville, NC and entered findings of neglect by Petitioner’s name in the Health Care Personnel Registry and Nurse Aide 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 – 19 were admitted into the record.

WITNESSES

Estella White

Felicia Skeen

Kelli Grimster (supervisor)

Linda Waugh (HCPR Investigator)

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 and documentary evidence admitted, 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.  At all times relevant to this matter Petitioner, Estella White, was a nurse aide at Libertywood Nursing Center (“Libertywood”) in Thomasville, North Carolina. Libertywood is a health care facility and therefore subject to N.C. Gen. Stats. § 131E-255 and § 131E-256. (T pp. 6-8)

3.  Petitioner was trained regarding her duties, resident’s rights, abuse, and neglect of patients. Petitioner was trained on moving and positioning, including how to transfer residents. Petitioner was trained on and is able to demonstrate the ability to locate and explain the Resident’s care plan. Petitioner also was aware of facility policies relating to patient safety and precautions. (T pp. 7, 12, 14-15, 29; R. Exs. 1, 2, 3, 4)

4.  Petitioner is aware that it is neglect to transfer a resident improperly; to fail to follow facility safety procedures; and to fail to immediately report cases of actual or suspected neglect. (R. Exs. 1, 4)

5.  Petitioner worked at Libertywood on the weekends, specifically on July 17, 2011 and July 24, 2011 during the 7:00 p.m. to 7:00 a.m. shift, and was assigned to care for Resident MT. Petitioner had been assigned to work with Resident MT for about one year. Petitioner was aware of Resident MT’s Activities of Daily Living (“ADL”) book and read Resident MT’s care plan which indicated MT was to be transferred using a mechanical lift, also called a “Hoyer Lift”. Petitioner had used a mechanical lift in the past to transfer Resident MT. (T pp. 7-11, 30-31, 36; R. Exs. 4, 11, 12)

6.  At all times relevant to this matter, Resident MT was a resident of Libertywood. Resident MT was admitted to the facility with the following diagnoses: Dementia, Asthma, COPD, OA, Anxiety, and Depression. Resident MT was dependent on staff for all ADL’s. MT required transfer by means of a mechanical lift while utilizing two people for safety and prevention of falls. In addition, Resident MT was on non-weight bearing status as her lower extremities were contracted. (T pp. 30-31; R. Exs. 10, 12, 14)

7.  At all times relevant to this matter, Felicia Skeen was employed at Libertywood as a certified nursing assistant (CNA). CNA Skeen was working at Libertywood the weekends of July 17, 2011 and July 24, 2011 during the 7:00 p.m. to 7:00 a.m. shift. CNA Skeen was not assigned to work with Resident MT and CNA Skeen had not worked with Resident MT before. (T pp. 18-19, 36; R. Ex. 5)

8.  On or about July 17, 2011, Petitioner was in Resident MT’s room when CNA Skeen knocked on the door and asked Petitioner if she needed any help. Petitioner replied that CNA Skeen could help her with Resident MT. CNA Skeen asked Petitioner if Resident MT needed to be transferred using a mechanical lift and Petitioner said no. (T pp. 8-9, 20; R. Exs. 4, 5)

9.  Petitioner got on one side of Resident MT and CNA Skeen got on the other side of Resident MT. (R. Ex. 4) Petitioner and CNA Skeen transferred Resident MT from a chair to her bed by lifting Resident MT under her arms and pivoting her to the side of the bed. (T pp. 9-10, 21; R. Exs. 4, 5)

10.  Petitioner thought if there were two people it would be okay to lift Resident MT that way. Petitioner testified, “I just really wasn’t thinking” in regards to not using the mechanical lift to transfer Resident MT. (T p. 10; R. Ex. 4)

11.  CNA Skeen noticed Resident MT had blood on the sock on her left foot after transferring Resident MT to her bed. Petitioner and CAN Skeen called for a nurse to come to the room to take care of Resident MT’s foot. (T pp. 12, 21; R. Exs. 4, 5)

12.  On July 17, 2011, the facility filled out an incident report to document the blood and laceration on Resident MT’s left foot. The incident report states “CNA reported it must have happened during the transfer from chair to bed.” (R. Ex. 6)

13.  On July 25, 2011, Resident MT’s family reported observing an abrasion on Resident MT’s left shin. The facility filled out an incident report to document the skin abrasion on Resident MT’s left shin. Resident MT received treatment for the skin abrasion on her left shin on July 25, 2011. (T pp. 32-33; R. Exs. 6, 7, 14, 15)

14.  At all times relevant to this proceeding, Kelli Grimster has been employed as the Director of Nursing (“DON”) at Libertywood. When there is an allegation of patient neglect, DON Grimster receives notice of that allegation. (T pp. 25-26; R. Ex. 9)

15.  DON Grimster received notice of two incidents in regards to Resident MT. The first incident occurred on July 17, 2011 and indicated Resident MT received a laceration on her left foot. The second incident occurred on July 25, 2011 and indicated Resident MT had a skin abrasion on her left shin. The employees involved in the two incidents were listed as Petitioner and CNA Skeen. (T pp. 26-27; R. Exs. 6, 9)

16.  After receiving the report involving Petitioner and Resident MT, DON Grimster began an investigation into the incidents. As part of the facility’s investigation, DON Grimster contacted Petitioner and CNA Skeen to discuss the two incidents. The facility’s investigation revealed a correlation between the laceration to Resident MT’s left foot and the skin abrasion on her left shin. During her interview with Petitioner, DON Grimster asked Petitioner how she transferred Resident MT the day of the first incident. Petitioner replied that she lifted Resident MT under her arms instead of using the mechanical lift even though she knew she was supposed to use the lift to transfer Resident MT. Petitioner also told DON Grimster that she did not know how the laceration to Resident MT’s foot occurred. (T pp. 28, 33-35; R. Exs. 6, 7, 9)

17.  Following the investigation, DON Grimster determined that Petitioner did not follow the facility’s transfer policy or Resident MT’s care plan which required Petitioner to use a mechanical lift to transfer Resident MT which resulted in injury to Resident MT. As a result, Petitioner was terminated from Libertywood’s employment on July 25, 2011. (T pp. 33, 36; R. Exs. 4, 9, 11, 12)

18.  The facility filled out a 5-Working Day Report and submitted it to the Health Care Personnel Registry (“HCPR”) (T p. 33; R. Ex. 8)

19.  At all times relevant to this matter, Linda Waugh was a nurse investigator with the Health Care Personnel Registry. As a nurse investigator, she is charged with investigating allegations against health care personnel in the Central Northern Region of North Carolina. Accordingly, Investigator Waugh received and investigated the allegation that Petitioner had neglected Resident MT at Libertywood. (T pp. 38-40; R. Ex. 18)

20.  Investigator Waugh reviewed facility documents and conducted her own investigation which included interviewing people involved with the incident and investigation; reviewing Resident MT’s medical documentation; reviewing the facility’s policies; and reviewing Petitioner’s time card. (T p. 42; R. Exs. 1-3, 13-18)

21.  As part of the HCPR investigation, Investigator Waugh interviewed Petitioner, CNA Skeen, and DON Grimster about the two incidents. Based on the interviews, Investigator Waugh found that their statements regarding the incident were similar in content. Petitioner, CNA Skeen, and DON Grimster all stated that they knew a mechanical lift was supposed to be used to transfer Resident MT, but that Petitioner did not use the mechanical lift to transfer the Resident, resulting the Resident’s injury. (T pp. 42-45; R. Ex. 18)

22.  Based on her review of all the information, Investigator Waugh concluded that, contrary to facility policy and the precautions in place at the time to ensure Resident MT’s safety, Petitioner failed to use a mechanical lift to transfer Resident MT from a chair to her bed, resulting in a laceration to Resident MT’s left foot and a skin abrasion to Resident MT’s left shin. The following includes the reasons for Investigator Waugh’s conclusion:

1.  Resident MT’s care plan stated the Resident was to be transferred using a mechanical lift (2+ assist) for safety and prevention of falls.

2.  Resident MT’s ADL book stated the Resident “is a hoyer lift now as of 5-15-10.”

3.  Petitioner stated she was aware that Resident MT was to be transferred using a mechanical lift because the information was in Resident MT’s care plan and ADL book.

4.  Petitioner stated she had used the mechanical lift in the past when transferring Resident MT.

5.  Petitioner admitted to transferring Resident MT by lifting her under her arms which is an improper lift technique.

23.  Investigator Waugh documented her conclusions in an investigation conclusion report. (T pp. 45, 47; R. Ex. 18)

24.  Investigator Waugh also determined that Petitioner worked on July 24, 2011 because Petitioner’s time card was punched. (T pp. 47-48)

25.  Judicial notice was taken that July 24, 2011 fell on a weekend. (T p. 48)

26.  Following the conclusions of her investigation, Investigator Waugh notified Petitioner of her decision to substantiate the allegation of neglect. (T pp. 48-49; R. Ex. 19)

27.  Neglect is the “failure to provide goods and services necessary to prevent physical harm, mental anguish, and mental illness.” (T p. 47; R. Ex. 18)

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 under chapters 131E and 150B of the North Carolina General Statutes.

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

3.  As a nurse aide working in a health care facility, Petitioner is a health care personnel and is subject to the provisions of N.C. Gen. Stat. § 131E-255 and § 131E-256.

4.  On or about July 24, 2011, Estella White, a Health Care Personnel, neglected a resident (MT) by failing to transfer the Resident utilizing the required mechanical lift, resulting in the Resident sustaining an injury.

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

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 is supported by the evidence and is AFFIRMED.

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.