STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF FORSYTH 09 DHR 6347

Elizabeth Ann Holt, )

Petitioner, )

)

vs. ) DECISION

)

Department of Health and Human Services, )

Division of Health Service Regulation, )

Respondent. )

THIS MATTER came on for hearing before the undersigned, Selina M. Brooks, Administrative Law Judge, on March 26, 2010, in High Point, North Carolina.

APPEARANCES

For Petitioner: pro se

For Respondent: Juanita B. Twyford

Assistant Attorney General

North Carolina Department of Justice

9001 Mail Service Center

Raleigh, NC 27699-9001

ISSUE

Whether Respondent has substantially prejudiced Petitioner’s rights; and acted erroneously, failed to use proper procedure, acted arbitrarily or capriciously, or failed to act as required by law when Respondent notified Petitioner of its intent to enter her name with a finding of abuse in the Health Care Personnel Registry based upon a substantiation of the following allegation:

On or about July 29, 2009, Petitioner, a health care personnel, employed at an adult care facility, Forest Heights Senior Living in Winston-Salem, North Carolina, abused a Resident, (WC), by hitting the resident’s left arm two times with a closed fist, resulting in injury to the resident.

APPLICABLE STATUTES AND RULES

N.C. Gen. Stat. § 131E-256

N.C. Gen. Stat. §150B-23

42 CFR § 488.301

10A N.C.A.C. 130.0101

PETITIONER’S WITNESSES

Petitioner

RESPONDENT’S WITNESSES

Petitioner

Mindi Alexander

Lacie Powell

Jeanne Goss

EXHIBITS

Respondent’s Exhibits 1-10 were admitted

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 evidence presented, the undersigned makes the following:

FINDINGS OF FACT

1. At all times relevant to this matter, Forest Heights Senior Living in Winston-Salem, NC was an adult care facility, and therefore subject to N.C. Gen. Stat. § 131E-256.

2. At all times relevant to this matter Petitioner, Elizabeth Ann Holt, was employed at Forest Heights Senior Living as a nurse aide and was therefore a health care personnel subject to N.C. Gen. Stat. § 131E-256.

3. At all times relevant to this matter, Resident WC was a resident at Forest Heights Senior Living.

4. Pursuant to N.C. Gen Stat. §131E-256, the Department of Health and Human Services is responsible for investigating allegations of resident abuse, neglect, misappropriation of property, diversion of drugs, fraud by a nurse aide or health care personnel.

5. On August 5, 2009, Respondent received a 5-Working Day Report from Forest Heights Senior Living alleging that on or about 12:00 p.m. on July 29, 2009, Petitioner abused Resident WC by hitting the resident on the left arm two times with a closed fist resulting in bruising above the left elbow. R. Ex. 1

6. Jeanne Goss, RN, (“Goss”) is an investigator with the Health Care Personnel Registry. Goss is charged with investigating allegations against health care personnel. Accordingly, she received the allegation report that Petitioner abused Resident WC. On September 3, 2009, Goss determined that the allegation needed additional investigation. R. Ex. 2

7. By letter dated September 3, 2009, Goss notified Petitioner that Respondent would be investigating the allegation she abused a resident at Forest Heights Senior Living, and that her name would be listed on the Health Care Personnel Registry pending investigation of the allegation. The letter gave notice of appeal rights. R. Ex. 3

8. Goss conducted an investigation from September 9, 2008 through November 5, 2009. During the investigation, Goss visited the facility, interviewed witnesses, reviewed Resident WC’s medical record, reviewed Petitioner’s personnel file, and reviewed the facility investigation and documentation.

9. Goss reviewed Resident WC’s medical record to gain an understanding of his physical and mental condition at the time of the incident. Resident WC was admitted to Forest Heights Senior Living on April 2, 2008. During the relevant time, Resident WC was a 78 year old male with multiple diagnoses, including: Alzheimer’s disease; Diabetes Mellitus; Dementia; Hypertension; Hypothyroidism; Early Macular Degeneration; and Normal pressure hydrocephalus. Resident WC was alert, but disoriented and frequently confused with poor memory and judgment. Because of an unsteady gait, Resident WC had been identified as high risk for falls. R. Ex. 4

10. Goss reviewed facility protocols, policies, procedures, and training materials to determine the expectations of personnel. After reviewing these documents and Petitioner’s personnel file, Goss determined that Petitioner had the requisite training to perform her job as a nurse aide at the facility. Petitioner was hired to work at Forest Heights Senior Living on September 17, 2007. She was provided with orientation training and in-service training during her employment, including resident rights and dementia care.

11. Goss reviewed Petitioner’s personnel file and learned that Petitioner’s performance evaluation dated November 17, 2008, documented an overall “satisfactory” rating with a comment that Petitioner needs to work on communication/people skills. A disciplinary action for verbal abuse to a resident dated February 18, 2009 was also included in the file. According to the document, Petitioner was heard yelling at a male resident in the dining room loudly enough that another staff member in the hallway heard Petitioner say, “I won’t let a man hit me.” In her written response, Petitioner said that a resident had his hand on her throat and, “What was I supposed to do, just stand there with his arm on my throat?” A termination notice dated August 5, 2009 was also included in the file. The form listed the reason for Petitioner’s termination from employment as resident abuse with a comment that Petitioner admitted hitting a resident. R. Ex. 5

12. Goss observed Resident WC walking in the hallway of the facility on September 29, 2009. Although Resident WC was alert and appropriate, Goss determined that she would not be able to interview him about the incident subject of the investigation due to his dementia. Resident WC was unable to recall that his wife had just visited 5 minutes prior to Goss’s introduction, and he was unable to answer any of her questions. When Resident WC attempted to speak, he stammered and seemed unable to find the words to respond.

13. Goss interviewed Mindi Alexandra, Executive Director of Forest Heights Senior Living on September 29, 2009. Ms. Alexandra confirmed that she received a report that Petitioner hit WC’s left arm two times with a closed fist in the Memory Care dining room at lunch time on July 29, 2009, and that Resident WC had two bruises on his left upper arm. Ms. Alexandra conducted a facility investigation. Ms. Alexandra assessed Resident WC and saw two bruises on his left arm just above his elbow consistent with a closed fist. These bruises were larger than the small bruises resulting from insulin injections. After she completed her investigation, she substantiated the allegation of resident abuse and terminated Petitioner. R. Ex. 7

14. Goss interviewed Lacie Powell, nurse aide at Forest Heights Senior Living on September 29, 2009. Ms. Powell confirmed that she was in the Memory Care dining room on July 29, 2009, and witnessed an incident involving Petitioner and Resident WC. Ms. Powell recalled that Petitioner yanked Resident WC’s chair aggressively, and this angered Resident WC. Ms. Powell described Resident WC hitting at Petitioner and punching Petitioner in the stomach area. Ms. Powell remembered that she went over to Resident WC, held his arms down, and talked to him to calm him down. Ms. Powell explained that while she was standing by Resident WC attempting to calm him down, Petitioner reached around her to hit Resident WC’s left arm just above his elbow two times with her fist. Ms. Powell reported that when she told Petitioner that she couldn’t do that, Petitioner backed up and stood to the side. Ms. Powell said that when she told Resident WC to get up, he walked down the hallway. Ms. Powell said that she and Petitioner then cleaned up the dining room. R. Ex. 8

15. Goss interviewed Petitioner by telephone, at the request of Petitioner, on October 1, 2009. Petitioner reported that Resident WC became upset with her after lunch one day the end of July in the Memory Care dining room. Petitioner said Resident WC had already eaten 3 plates of food and then took a fork out of another’s hand to eat that resident’s food. Petitioner said when she told resident WC he couldn’t do that, Resident WC hit her. Petitioner maintained that she put Resident WC’s hands down in his lap, and when she let go, he hit her in the face. Petitioner claimed that this caught her off guard, and she reacted by tapping Resident WC on the shoulder. Petitioner remembered Ms. Powell saying, “No, Elizabeth.” When asked if she hit Resident WC’s left arm with her closed fist, Petitioner responded, “I tapped WC on the shoulder. Well, my hand was closed, but I just tapped him – not hard enough to make a mark.” R. Ex. 6

16. Goss considered the credibility and consistency of the information she gathered during her investigation. Goss completed an Investigation Conclusion Report substantiating the allegation that Petitioner abused Resident WC by hitting the resident’s left arm two times with a closed fist, resulting in injury to the resident. R. Ex. 9

17. Goss notified Petitioner by letter dated November 5, 2009, that the allegation of abuse was substantiated. Attached to the letter was the Entry of Finding, which is the substantiated finding as it will appear on the Health Care Personnel Registry. The letter also notified Petitioner of her appeal rights. R. Ex. 10

18. Petitioner timely filed a petition for contested case with the Office of Administrative Hearings contesting the substantiation of the allegation of abuse and the listing of the finding on the Health Care Personnel Registry.

19. Petitioner challenges the Health Care Personnel Registry substantiated finding, saying that she did not abuse Resident WC.

20. There is no dispute that an incident involving Petitioner and Resident WC occurred in the Memory Care dining room after lunch on or about July 29, 2009. Petitioner even acknowledges hitting Resident WC. However, Petitioner contends that she just reacted when Resident WC hit her, and she did not hit him hard enough to cause bruising. Petitioner denies that Resident WC had any marks on his arm the next day after the incident.

21. When working with dementia residents, it is essential that health care staff appropriately intervene to deescalate a potentially volatile situation. Given the impaired judgment of a dementia resident, it is unrealistic for health care staff to expect the demented resident to react appropriately in any given situation. Nevertheless, it is imperative that health care staff respond in a calm assertive manner when redirecting a resident with dementia, rather than in an aggressive intimidating manner. Petitioner had previously been counseled for responding in a verbally inappropriate manner to this particular resident.

22. Ms. Powell’s eye-witness account of the incident between Petitioner and Resident WC is credible. Although Ms. Powell did not immediately report the incident to her supervisor, she explained that initially she was shocked and simply could not believe that Petitioner had hit Resident WC. Further, Ms. Powell did not want to cause problems in her working relationship with Petitioner. After she thought about the incident, Ms. Powell said she knew she had to report what she had observed.

23. No other plausible explanation is given for the two bruises Ms. Alexandra identified on Resident WC’s left arm just above the elbow, and the two bruises were consistent with marks left by a closed fist. These bruises further support Ms. Powell’s account of the incident. In addition, in a signed statement provided to Ms. Alexandra on August 3, 2009, Petitioner admits, “I punched him in the arm,” while demonstrating a balled up fist to the left arm. Petitioner further admitted that she did not remember hitting him more than once, “but I probably could have, because I was crying and mad.”

24. There is substantial evidence to support substantiation of the allegation that on or about July 29, 2009, Petitioner a health care personnel, employed at an adult care facility, Forest Heights Senior Living in Winston-Salem, North Carolina, abused a Resident, (WC), by hitting the resident’s left arm two times with a closed fist, resulting in injury to the resident.

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