STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF PITT 08 DHR 2556

Rickey Floyd, )

)

Petitioner, )

)

vs. )

)

)

Department of Health Human Services, ) DECISION

Division of Health Service Regulation, )

Health Care Personnel Registry, )

)

Respondent. )

THIS MATTER came on for hearing before the undersigned, Beecher R. Gray Administrative Law Judge, on January 22, 2009, in Nashville, 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 deprived Petitioner of property when Respondent notified Petitioner of its intent to enter his name with a finding of finding of neglect in the Nurse Aide Registry and the Health Care Personnel Registry based upon a substantiation of the following allegation:

On or about April 19, 2008, Petitioner a nurse aide and health care personnel, employed at a long term skilled care nursing facility, Golden Living Center, in Greenville, North Carolina, neglected a Resident, (TP), by failing to supervise the resident in the shower, and by moving the resident prior to having the Resident (TP) assessed by the nurse, resulting in physical harm.

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

PETITIONER’S WITNESSES

None

RESPONDENT’S WITNESSES

Rickey Floyd

Rose Marie Williamson

EXHIBITS

Respondent’s Exhibits 1-17 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. The parties stipulated on the record that each party received notice of the hearing more than 15 days prior to the hearing and the parties had no objection to amending the caption of the case to correctly name the Respondent as set forth above.

2. At all times relevant to this matter Golden Living Center in Greenville, North Carolina was a long term skilled care nursing care facility, and therefore subject to N.C. Gen. Stat. § 131E-255 and N.C. Gen. Stat. § 131E-256.

3. At all times relevant to this matter Petitioner, Rickey Floyd, was employed at Golden Living Center as a nurse aide and therefore was subject to N.C. Gen. Stat. § 131E-255 and N.C. Gen. Stat. § 131E-256.

4. At all times relevant to this matter, Resident TP was a resident at Golden Living Center. Resident TP was a 79 year old male with the following primary diagnoses: dementia; Alzheimer’s disease; diabetes mellitus, type II with complications; hypertension; psoriatic arthritis; osteoporosis; and history of lumbar laminectomy and left hip fracture.

5. During the relevant time, although Resident TP was alert and verbal, he was disoriented, had marked concentration deficit, impaired short term and long term memory, and impaired cognitive skills. Resident TP used a wheelchair for locomotion, and needed assistance with ambulation and transfers because he was unsteady. In addition, Resident TP had wandering behaviors and was at risk for falls, propensities which Petitioner was aware of.

6. Petitioner was hired to work at Golden Living Center on October 21, 1997. He had training on his duties, patient abuse and neglect, and patient’s rights when he was hired and during facility in-services.

7. Under N.C. Gen Stat. §131E-256, Respondent is responsible for investigating allegations of resident abuse, neglect, misappropriation of property, diversion of drugs, fraud by a nurse aide or health care personnel.

8. Respondent received a 24 Hour Initial Report from Golden Living Center dated April 21, 2008. The initial report completed by Constance Aytch, Director of Nursing, alleged that Petitioner briefly left Resident TP unattended in the shower room, Resident TP was found on the floor, and Resident TP was found to have a fractured hip when taken to the emergency department.

9. Respondent received a 5 Working Day Report from Golden Living Center dated April 22, 2008. The report completed by Constance Aytch, Director of Nursing, alleged that on or about, April 19, 2008, when Petitioner left Resident TP in the shower room, Resident TP was injured as a result of an accidental fall.

10. Pamela Anderson, RN, (“Anderson”) is a Regional Supervisor with the Health Care Personnel Registry. Health Care Personnel Registry nurse investigators are charged with investigating allegations against nurse aides and health care personnel. Accordingly, Anderson received the allegation reports from Golden Living Center. On May 20, 2008, Anderson determined that the allegation needed additional investigation.

11. By letter dated May 20, 2008, Anderson notified Petitioner that Respondent would be investigating the allegation that he had neglected a Resident at Golden Living Center on or about April 19, 2008, and that his name would be listed on the Health Care Personnel Registry pending investigation of the allegation. The letter gave notice of appeal rights.

12. Rose Marie Williamson, RN, (“Williamson”) is a nurse investigator with the Health Care Personnel Registry. Anderson assigned Williamson to investigate the allegation that Petitioner had neglected a Resident at Golden Living Center on or about April 19, 2008.

13. Williamson conducted an investigation, and gathered information from the following sources: an on-site visit to the facility; interviews with Petitioner, witnesses, and staff; a review of Petitioner’s personnel file; a review of Resident TP’s medical records; and, a review of the facility investigation and documentation.

14. Williamson reviewed Resident TP’s file to gain an understanding of his physical and mental condition at the time of the incident. Williamson was not able to interview Resident TP due to documented short term memory deficits, Alzheimer’s disease, dementia, and disorientation.

15. Williamson reviewed facility protocols, policies, procedures, and training materials to determine the expectations of personnel. The facility’s Bath/Shower Policy states, “Never leave the resident alone in the shower room.” In addition, the facility’s policy is that all nurse aides shall have a resident who has fallen evaluated by a nurse before moving the resident. After reviewing the facility protocols, policies, procedures, and training materials along with Petitioner’s personnel file, Williamson determined that Petitioner had the requisite training and had demonstrated the skills necessary to perform his job as a nurse aide at the facility.

16. Williamson considered the credibility and consistency of the information she gathered. There was no substantial conflict in the factual information gathered during the investigation.

17. Petitioner worked the morning shift at Golden Living Center on April 19, 2008, and was assigned to provide assistance to Resident TP. Before breakfast, Petitioner took Resident TP by wheelchair to the Rehab area shower room. Petitioner assisted Resident TP from his wheelchair to the seat in the tub, assisted resident TP with his shower and assisted TP in drying off. Petitioner realized that he did not have TP’s pull-ups (adult incontinence garment). Resident TP was sitting in the shower chair inside the tub. There were no other staff or residents in the Rehab shower area at this time. Petitioner left Resident TP unattended while he left the Rehab shower room and went to Resident TP’s room to get the pull-ups.

18. Twanna Hill, RN, was working the morning shift at Golden Living Center on April 19, 2008. As Nurse Hill was approaching the Rehab area restroom, she heard a voice calling out. When she looked in the Rehab shower area, she saw Resident TP on the floor in the shower room. Nurse Hill went for assistance.

19. Jan Hardee, LPN, was working the morning shift on Resident TP’s hall at Golden Living Center on April 19, 2008. Nurse. Hill located Nurse Hardee, and told her that a resident was on the Rehab shower floor.

20. Petitioner returned to the Rehab shower area after getting a pull-up from Resident TP’s room, and found Resident TP on the Rehab shower floor. Petitioner was scared. Petitioner assisted Resident TP up off the floor and put him in his wheelchair.

21. When Nurse Hill and Nurse Hardee arrived at the Rehab shower area, the room was empty. The nurses then went into the hall, and saw Petitioner wheeling Resident TP toward his room. The nurses approached Petitioner and Resident TP, and Petitioner immediately told Nurse Hardee that Resident TP had fallen in the shower when he left him unattended.

22. Resident TP was assessed, and complained of right hip pain. Resident TP was transported to the emergency department and admitted to Pitt Memorial Hospital where he was diagnosed with a fractured right hip. Resident TP had surgery to repair the fracture, and returned to Golden Living center on April 23, 2008.

23. Williamson completed an Investigation Conclusion Report and substantiated the allegation that Petitioner neglected Resident TP by failing to supervise the resident in the shower, and by moving the resident prior to having the resident assessed by the nurse, resulting in physical harm.

24. Petitioner was notified by letter dated October 8, 2008, that the allegation of neglect was substantiated. Attached to the letter were the Entries of Finding, which are the substantiated findings as they will appear on the Nurse Aide Registry and the Health Care Personnel Registry. The letter also notified Petitioner of his appeal rights.

25. Petitioner timely filed a petition for contested case with the Office of Administrative Hearings contesting the listing of the allegation of neglect on the Nurse Aide Registry and the Health Care Personnel Registry. Petitioner challenges the substantiated findings, saying that he did not intend to cause Resident TP any harm.

26. Petitioner acknowledges that he failed to follow facility policy and used poor judgment when he left Resident TP unattended in the shower. Petitioner says that he told Resident TP to wait right there while he went to get the pull ups. Petitioner, however, knew that Resident TP was at risk for falls because of his dementia and unsteadiness, and that it was not safe to leave him unattended.

27. Petitioner acknowledged under oath that he failed to follow facility policy and used poor judgment when he assisted Resident TP up from the floor and into his wheelchair prior to notifying a nurse that Resident TP had fallen and needed to be assessed. Petitioner says that he felt he could not leave Resident TP again when he found Resident TP on the floor. Although there were other options available, Petitioner chose to move Resident TP prior to assessment by the nurse.

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. Petitioner has the burden of proof. See Overcash v. N.C. Dep’t of Env’t & Natural Res., 179 N.C. App. 697, 699, 635 S.E.2d 442, 444-45 (2206).

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

4. “Neglect” is the failure to provide goods and services necessary to avoid physical harm, mental anguish or mental illness. 10A N.C.A.C. 13O.0101, 42 CFR § 488.301.

5. On April 19, 2008, Petitioner neglected Resident TP in that Resident TP suffered physical harm as a direct result of Petitioner failing to supervise the resident in the shower and moving the resident prior to having the resident assessed by the nurse.

6. Petitioner failed to demonstrate that Respondent substantially prejudiced Petitioner’s rights, 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 his name with a finding of neglect in the Nurse Aide Registry and the Health Care Personnel Registry, and there is sufficient evidence to support Respondent’s conclusion that Petitioner neglected Resident TP.

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 at Petitioner’s name on the Nurse Aide Registry and the Health Care Personnel Registry is supported by the evidence and is AFFIRMED.

It is recommended that, should Petitioner choose to petition for removal of his name from the registry after expiration of the one-year period in accordance with N.C. Gen. Stat. § 131E-256(i), the petition for removal expeditiously be considered, and further, if consistent with governing laws, rules, and regulations, that the one year period begin on the date the pending allegation of neglect was listed by Petitioner’s name on the registry.

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.

In accordance with N.C. Gen. Stat. § 150B-36 the Agency shall adopt each finding of fact contained in the Administrative Law Judge’s decision unless the finding is clearly contrary to the preponderance of the admissible evidence. For each finding of fact not adopted by the agency, the agency shall set forth separately and in detail the reasons for not adopting the finding of fact and the evidence in the record relied upon by the agency in not adopting the finding of fact. For each new finding of fact made by the agency that is not contained in the Administrative Law Judge’s decision, the agency shall set forth separately and in detail the evidence in the record relied upon by the agency in making the finding of fact.

This the 28th day of January, 2009.

______

Beecher R. Gray

Administrative Law Judge

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