STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF LENOIR 02 DHR 0748

CLINITA FAYE HOOKER, )

Petitioner, )

)

v. ) DECISION

)

NORTH CAROLINA DEPARTMENT )

OF HEALTH AND HUMAN SERVICES, )

DIVISION OF FACILITY SERVICES, )

Respondent. )

On September 18, 2002, Administrative Law Judge Melissa Lassiter heard this contested case in New Bern, North Carolina.

APPEARANCES

Petitioner: Clinita Faye Hooker

Pro Se

149 Remus IV & Keaira Drive

Kinston, NC 28504

For Respondent: Wendy L. Greene

Associate Attorney General

North Carolina Department of Justice

P.O. Box 629

Raleigh, NC 27602

ISSUES

1. Whether Respondent substantially prejudiced Petitioner’s rights by substantiating the allegation that Petitioner abused CR, a resident of Nova Behavioral Healthcare Corp., in Kinston, North Carolina on February 6, 2002, by hitting the resident in the neck with her arm knocking him to the ground, by putting the resident’s boot in his mouth, and by forcing the resident to make inappropriate comments before Petitioner would return the boots to the resident?

2. Whether Respondent substantially prejudiced Petitioner’s rights by substantiating the allegation that Petitioner neglected resident CR on February 6, 2002, by failing to document or report to her supervisor that other residents had kicked resident CR kicked in the face, and by failing to see that resident CR received a medical evaluation for his injury?

APPLICABLE STATUTES AND RULES

N.C. Gen. Stat. § 131E-256

N.C. Gen. Stat. §150B-23

42 CFR § 488.301

10 NCAC 3B.1001

EXHIBITS

Respondent’s Exhibits 1-10, 13, 14, 23-27

Respondent’s Exhibit 16 was admitted with modification.

FINDINGS OF FACT

In making the Findings of Fact, the undersigned has weighed all the evidence, and 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. After careful consideration of the sworn witness 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. Nova Behavioral Healthcare Corp., (hereinafter “Nova”) is a Level III residential facility for children with behavioral and emotional problems located in Kinston, North Carolina.

2. In August 2001, Nova hired Petitioner as a behavioral technician. Later, at a date unknown to Petitioner, Petitioner became a lead behavioral technician. Petitioner was an employee of Nova for six months. ( T pp. 13, 14, 15, 17 - 20, 133)

3. Petitioner’s job description required, among other things, that she interact positively with residents; conduct training, intervention, and counseling in accordance with day treatment plans; and monitor and report client behavior and operational problems to the Day Services Coordinator. (T pp 24, 142,143; Resp Exh 1, 3) Petitioner’s reporting duties included completing daily notes on the morning and afternoon activities of the residents, and completing incident and accident reports as needed. Nova required behavioral technicians to submit both types of reports on the day that the activities or incidents happened. (T pp. 13, 14, 15, 17 - 20, 133)

4. As a Nova employee, Petitioner received on-the-job training on how to interact with residents and how to timely submit reports. Specifically, Nova trained Petitioner on the definitions of abuse and neglect, and gave Petitioner a copy of Nova’s policy on abuse and neglect. Petitioner signed a copy of such policy upon receipt. Through this training, Petitioner understood the importance of reporting abuse or neglect of residents.

In addition, Nova staff taught Petitioner the proper method of controlling residents when they “act out.” That is, when a resident acted out, Petitioner was trained to counsel and calm down the resident who was acting out, and if necessary, apply standing and sitting therapeutic holds, or PIC (Preventive Intervention and Control) holds. Nova also trained Petitioner to administer first aid to residents. (T pp. 15, 16, 145; Exhibit 2)

5. In February 2002, Petitioner was assigned to work in Nova’s residential home called Ackerman House. Resident CR is a mentally retarded adolescent who lived in Ackerman House. While Petitioner generally found CR easy to get along with, Petitioner also observed that CR sometimes exhibited self-injurious behaviors, and threw objects. (T p. 26)

6. On February 6, 2002, Petitioner was working at the Ackerman House. Melvin Phillips, another Nova behavior technician at Ackerman House, also worked at Ackerman House that same day. At approximately 3:20 to 3:30 pm that day, Petitioner, Mr. Phillips, and the Ackerman House residents returned to the house from day treatment. Most residents walked into the Ackerman house. Mr. Phillips and resident Stephanie Bonsack remained outside in the yard, talking beside Mr. Phillips’ car. While Phillips and Bonsack were talking, Petitioner stepped onto the back porch to smoke a cigarette. CR walked out of the house, and began walking toward the road. When Petitioner saw CR walking down the path, she went to him, and, without resistance from CR, walked CR up the path toward the Ackerman House. (T pp. 28, 88)

7. When Petitioner and CR returned to the house, CR began kicking Petitioner’s car. Petitioner told CR to stop kicking her car. CR did as he was asked. CR picked up a piece of fence post, approximately three and a half feet long, and threw the fence post at Petitioner. CR was upset. Petitioner restrained CR by holding CR’s hands, and forced CR to lie on the ground. Petitioner kneeled down on the ground with CR, and restrained him there for a short time, until he was calm enough to be released. (T pp. 29, 32, 33, 35, 88, 89)

8. When Petitioner released CR, CR stood up, but became upset again. CR picked up the fence post a second time and threw it at Petitioner. Petitioner deflected the piece of fence so that it hit a van parked in the yard. Petitioner “clotheslined” CR by sticking her arm straight out, so that Petitioner’s arm hit CR in the neck while CR was walking. CR fell to the ground. CR was very upset about being “clotheslined.” (T pp. 35, 115, 119, 128)

9. Petitioner put CR in a therapeutic hold, whereby CR was lying face down on the ground with his hands crossed in front of him. Petitioner stood at CR’s head, holding his hands against his body. CR was wearing new boots that day. Melvin Phillips removed CR’s new boots. (T pp. 41, 90, 94)

10. While CR laid on the ground in the therapeutic hold, other residents of Ackerman House came outside, and began teasing him. CR cursed at the other children. Resident Jeannie A. kicked CR “good” in the mouth, while Petitioner continued to restrain CR on the ground in the therapeutic hold. The other children also kicked at CR. CR wanted his new boots back. Petitioner told CR that he would have to go back into the house if he wanted to get his boots back. (T pp. 35, 38-40, 89 - 94, 99, 100, 117, 118)

11. CR’s mouth was bleeding after being kicked. It looked as if “his mouth had been busted.” (T p. 96)

12. Petitioner allowed CR to stand up and return to the house. Mr. Phillips followed CR into the house, and asked CR him if he was O.K. Mr. Phillips returned CR’s boots to CR, and left for the day. (T p. 105)

13. Ms. Bonsack also walked back into the Ackerman house. As she heard people laughing in the living room, she walked to that room to see what was going on. (T pp. 114, 115, 119, 128)

14. When she arrived in the living room, Ms. Bonsack saw Petitioner stick CR’s boot in his mouth and say to him “eat your boot.” Petitioner then told CR to say that his “mother was a crossed eyed b-i-t- - [bitch],” and that his “mother sucked his pussy.” CR hesitated. Petitioner told him that if he wanted his boots back, he had to say those things. CR eventually repeated the phrases. All but one of the Ackerman residents were in the living room when Petitioner made CR repeat these debasing comments. After CR repeated the phrases, Ms. Bonsack left the living room. The last thing she heard Petitioner make CR repeat was “your mother sucked your - (indicating) - last night.” (T pp. 119 - 121, 125, 126)

15. Although Ms. Bonsack had disagreements with Petitioner before February 6, 2002, she basically had an amicable relationship with Petitioner. Previously, Ms. Bonsack had heard Petitioner and other staff members at Ackerman House say similar things to CR as Petitioner said to CR on February 6, 2000. However, no one had ever made CR repeat the phrases himself, or stuck a boot in CR’s mouth. Although Petitioner had in the past said similar things to CR, she had always done so in a joking manner. Nevertheless, on February 6, 2002, Petitioner wasn’t laughing when she made the statements to CR, but was acting in a more serious manner. (T pp. 127, 129, 130)

16. On February 6, 2002, Petitioner completed her daily data sheets. On CR’s data sheet for February 6, 2002, Petitioner wrote that during 2:30 to 3:45 pm period, CR was “enroute to group home,” had his snack, and watched TV. Petitioner failed to mention that CR had attempted to elope (run away), that he had been on the ground, or that he had been kicked in the mouth. Petitioner also failed to file a Protective/Restrictive Intervention Report, documenting the fact that she had placed CR in a therapeutic hold. Neither did Petitioner seek medical attention for CR, nor tell anyone else that he might require medical attention. (T pp 58, 59, 66; Resp Exh 8)

17. Ms. Bonsack did not discuss what she had seen on February 6, 2002, with anyone until February 11, 2002. On February 11, 2002, Nova administrative staff asked Bonsack to write a confidential statement as part of its investigation. (T p. 124)

18. On February 11, 2002, at the Nova administration building in Kinston, NC, resident Jeannie A., told Nova General Manager Susan Pierce about what had happened at the Ackerman House on February 6, 2002. Ms. Pierce asked Jeannie A. to write a confidential statement describing what happened, and enlisted the help of Nova staff members Marcus Perry and Lorie Friedland in obtaining statements from the other Ackerman House residents. Ackerman residents Stephanie Bonsack, Mandy G., and Shameka W. were separately questioned. All three residents reported what they had witnessed, and wrote confidential statements when asked by the Nova staff members.

Ms. Pierce compared these separate statements for consistency. The fact that all of the residents had a similar recollection of the events lent credibility to Jeannie A’s statement. Ms. Pierce then instructed Marcus Perry to search for any incident reports that were filed about the February 6, 2002 event, and to contact the local Department of Social Services, CR’s legal guardian, and CR’s area program. Marcus Perry continued Nova’s investigation of the incident, reporting back to Ms. Pierce. (T pp. 136 -41,153)

19. Nova Corp suspended Petitioner during the investigation, because of the credibility of the resident’s stories, and because of the seriousness of the allegations. The Department of Social Services of Craven County substantiated the allegation of neglect of CR by Petitioner based on the February 6, 2002 incidents. Nova Corp subsequently fired Petitioner. (T pp. 141, 142)

20. Nova Corp reported the allegation of abuse to the Health Care Personnel Registry (‘HCPR”). Nurse Investigator Rebecca Buck was assigned to conduct the HCPR investigation of the abuse allegation. Ms. Buck is a registered nurse, with a Bachelor of Science in nursing, and a Master’s degree. Ms. Buck is also a certified investigator through the Council for Licensure and Enforcement and Regulation, and has been conducting investigations for HCPR for two years. (T pp. 158, 159)

21. Ms. Buck verified that HCPR had jurisdiction over the allegation, and “screened in” the allegation by determining there was sufficient evidence to warrant an investigation into the abuse allegation. Having thus “screened in” the allegation, Ms. Buck notified Petitioner and Nova that she would be conducting the investigation. Buck reviewed Petitioner’s personnel and training records, the incident reports, and CR’s file and care plan. She visited the site of the incident, and reviewed the confidential statements written by the residents. Ms. Buck also interviewed Petitioner, Susan Pierce, Marcus Perry, Shirley Reddick, a residential manager at Nova Corp, Melvin Phillips, behavioral techs Crystal Armani and Michelle Nobles, and Ackerman House manager Sabrina Edwards. Ms. Buck interviewed residents Stephanie Bonsack, Mandy, Jeremy, Patrick, and Shameka. CR was unresponsive when Ms Buck tried to interview him. (T pp. 160-165)

22. After completing the investigation, Ms. Buck concluded that:

(1) On February 6, 2002, Petitioner had abused resident CR by hitting CR in the neck with her arm knocking CR on the ground, by hitting CR in the head while he was on the ground, by putting CR’s boot in this mouth, and by verbally abusing CR, causing him mental anguish by forcing CR to make inappropriate remarks before Petitioner would five CR’s boots back to him.

(2) On February 6, 2002, Petitioner neglected CR as Petitioner was responsible for CR that afternoon, she allowed CR to be injured by other residents, and failed to document the incident in accordance with Nova Corps policy. Lastly, Petitioner failed to notify her supervisor of the incident with CR, did not seek medical care for him, and neglected to provide first aid for his mouth injury. (T pp. 165-167)