COUNTY OF BUNCOMBE
______
MECCA L. STEWART, )
Petitioner, )
)
v. )
)
DEPT. OF HEALTH AND HUMAN )
SERVICES, DIV. OF FACILITY )
SERVICES, )
Respondent. )
______/ IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
04 DHR 0213
DECISION
THIS MATTER was heard before the undersigned Augustus B. Elkins II, Administrative Law Judge (ALJ), on October 4, 2004, January 11, 2005, and May 3, 2005, in Morganton, North Carolina, and Asheville, North Carolina.
APPEARANCES
For Petitioner: Robin L. Jacobs, Pisgah Legal Services
Asheville, North Carolina
For Respondent: N. Morgan Whitney, Jr., Assistant Attorney General
Raleigh, North Carolina
ISSUES
Whether Petitioner, Mecca Stewart, a Nurse Aide, committed fraud against her employer, the facility Unique Care, Inc., or abuse or fraud against a patient for whom she was providing services; and consequently whether Respondent acted erroneously when Respondent substantiated a findings of fraud and abuse by Petitioner, and notified Petitioner of its intent to enter a findings of fraud and abuse by Petitioner in the Nurse Aide Registry and the Health Care Personnel Registry.
WITNESSES
Petitioner: Mecca Stewart, CNA
Patricia Greer
Billy June Stewart
Jeanne Vanderzee
Respondent: Barbara Powell, R.N.
E.W.
C.W.
APPLICABLE STATUTES, RULES & LEGAL PRECEDENT
N.C. Gen. Stat. § 131E-255
N.C. Gen. Stat. §131E-256
N.C. Gen. Stat. §§ 150B-22 through 150B-38
42 C.F.R. § 488.301
10 NCAC 3B.1001
10 NCAC 3H.2001, .2210
N.C. Gen. Stat. § 8C-1 (North Carolina Rules of Evidence)
North Carolina Common Law re: Civil Fraud
EXHIBITS
The Following exhibits were admitted into evidence without objection:
1. Respondent’s Exhibit #1 – 24 Hour Initial Report, dated December 22, 2003;
2. Respondent’s Exhibit #3 – Letter to Petitioner from HCPR Nurse Investigator
Barbara Powell, dated January 15, 2004;
3. Respondent’s Exhibit #4 – HCPR Investigation , Resident Information re EW, dated March 11, 2004;
4. Respondent’s Exhibit #7 – HCPR Investigation , Resident Information re CW, dated March 11, 2004;
5. Respondent’s Exhibit #24 -- Letter to Petitioner from HCPR Nurse Investigator
Barbara Powell, dated March 17, 2004;
6. Petitioner’s Exhibit #1 – “Best CNA of the Year” certificate, signed by EW, undated;
7. Petitioner’s Exhibit #2 – Activity Time Logs and Client Service Deviation Reports for Mecca Stewart, re: client EW, dating from June 30, 2003 to December 19, 2003;
8. Petitioner’s Exhibit #4 – Activity Time Logs and Client Service Deviation Reports for Mecca Stewart, re: client CW, dating from June 30, 2003 to December 19, 2003.
The following exhibits were admitted into evidence either in part or for limited purposes:
1. Respondent’s Exhibit #2 – NC DHHS 5-Day Working Report, dated December 26, 2003 -- admitted solely as evidence that a report was made, but excepting inadmissible hearsay statements of Unique Care Services Manager Cheryl Reynolds contained therein for purposes of proving the truth of the facts asserted;
2. Respondent’s Exhibit #5 – HCPR Interview record of interview of EW, dated March 11, 2004 -- admitted as evidence that the interview took place and as to the agency action taken in response by HCPR Nurse Investigator Barbara Powell, and for corroborative and impeachment purposes, but excepting hearsay statements of EW contained therein for purposes of proving the truth of the facts asserted;
3. Respondent’s Exhibit #8 – HCPR Interview record of interview of CW, dated March 11, 2004 -- admitted as evidence that the interview took place and as to the agency action taken in response by HCPR Nurse Investigator Barbara Powell, and for corroborative and impeachment purposes, but excepting hearsay statements of CW contained therein for purposes of proving the truth of the facts asserted;
4. Respondent’s Exhibit #9 – HCPR Interview record of interview of Eva Taylor, dated March 11, 2004 -- admitted as evidence that the interview took place and as to the agency action taken in response by HCPR Nurse Investigator Barbara Powell, but excepting hearsay statements of Ms. Taylor contained therein for purposes of proving the truth of the facts asserted;
5. Respondent’s Exhibit #11 – HCPR Interview record of interview of Cheryl Reynolds, dated March 11, 2004 -- admitted as evidence that the interview took place and as to the agency action taken in response by HCPR Nurse Investigator Barbara Powell, but excepting hearsay statements of Ms. Reynolds contained therein for purposes of proving the truth of the facts asserted;
6. Respondent’s Exhibit #13 – HCPR Interview record of interview of Patricia Greer, dated March 11, 2004 -- admitted as evidence that the interview took place and as to the agency action taken in response by HCPR Nurse Investigator Barbara Powell, but excepting hearsay statements of Ms. Greer contained therein for purposes of proving the truth of the facts asserted;
7. Respondent’s Exhibit #15 -- Letter to Petitioner from HCPR Nurse Investigator
Barbara Powell, dated March 11, 2004 – admitted without objection from Petitioner, but with request by Administrative Law Judge to provide a complete copy of the exhibit as part of the document (down the left side) was cut off and the document otherwise appeared to be incomplete;
8. Respondent’s Exhibit #16 -- HCPR Interview record of interview of Mecca Stewart, Petitioner, dated March 11, 2004 -- admitted as evidence that the interview took place, as to the agency action taken in response by HCPR Nurse Investigator Barbara Powell, and for corroborative or impeachment purposes, but excepting hearsay statements of Ms. Stewart contained therein for purposes of proving the truth of the facts asserted;
9. Respondent’s Exhibit #23 – HCPR Investigation Report, dated March 17, 2004 -- admitted as evidence of its preparation and use by the investigator, and of action taken by the investigator and the nature of the final conclusion, but excluding the hearsay statements of Barbara Powell, Mecca Stewart, Cheryl Reynolds, Eva Taylor, Patricia Greer, EW and CW, for purposes of proving the truth of the facts asserted.
BASED UPON careful consideration of the sworn testimony of the witnesses presented at the hearing, the documents and exhibits received and admitted into evidence, and the entire record in this proceeding, the Undersigned makes the following findings of fact. In make 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 judgment of credibility, including but not limited to the demeanor of the witnesses, any interests, bias, or prejudice a witness may have, the opportunity of the witness to see, hear, know or remember the facts or occurrences about which the witnesses testified, whether the testimony of the witness is reasonable, whether the testimony is consistent with all other believable evidence in the case.
FINDINGS OF FACTS
1. Petitioner was employed as a certified nursing assistant (CNA) at Unique Care, Inc., in Asheville, North Carolina, serving clients EW and CW, from at least January 2000 and at all times relevant to this action.
2. Unique Care, Inc. is a home care agency that provides in-home aide services.
3. Petitioner was licensed as a CNA in1987, and worked as a CNA from then until December 2003. Petitioner began working for Unique Care, Inc. in January 2000, and was assigned to work as an in-home aide with a husband and wife, EW and CW.
4. Petitioner’s job responsibilities working as a CNA at Unique Care for EW and CW included cleaning, doing laundry, cooking, shopping, personal care and showers for both EW and CW, taking them to appointments, and assisting EW in and out of bed.
5. Petitioner’s hours while working with EW and CW were consecutive shifts consisting at first of twelve eight hour days with two days off in between, and changing in October 2002 when CW got sick to four eleven hour days per week, Monday through Thursday, from 9:00 a.m. to 8:00 p.m.
6. CW has cerebral palsy and seizures. EW, CW, and CW’s mother, Patricia Greer, testified that CW had a history of hopelessness or depression, for which she had been medicated. CW also testified about hospitalizations due to depression and suicidal behavior in 2002.
7. Patricia Greer testified at the hearing and was found to be a credible witness. Greer testified that she is CW’s mother, and resides in, and is resident manager of the apartment complex where EW and CW live.
8. Greer stated that CW has been dependent on others for care for at least fifteen years. Greer further testified that CW’s health was worse, including additional stress and seizures, during 2003. Greer testified that CW’s doctor believed the cause could be menopause. Greer confirmed a history of depression with EW, and suicidal behavior. Petitioner also testified regarding CW’s depression, especially following seizures, including two hospitalizations in early 2003 for same, and described CW’s expressed feelings of lack of control due to the seizures.
9. Petitioner testified that she was supervised by direct observation by a nursing supervisor every three or four months. She testified that these visits lasted between 1½ and 2 hours, and that for part of the time, the supervisors would be alone with EW or CW while she continued working. Petitioner testified that she was told she was doing a good job and never received any complaints.
10. EW and CW admitted that they never made any complaints to the nurse supervisors when they performed supervisory visits to their home, nor to any of the other CNAs providing services for him and CW.
Fraud against Unique Care
11. EW testified that Unique Care called him one day in November or December 2003 at approximately 8:30 a.m. to see if Petitioner had arrived. EW testified that they did so for five days, between 8:00a.m. and 10:00 a.m. EW testified that Unique Care had not asked him to call them, and that he never spoke to a person from Unique Care in person that week. However, EW stated to Investigator Powell that he was told to call Cheryl Reynolds, and did so daily for the same time period. EW further testified that he could not recall specifically when Petitioner arrived, or what chores were done, but that another CNA, Eva Taylor, walked his dog for him before Petitioner arrived.
12. Petitioner’s employment was terminated due to alleged fraud on her time reports on or about December 22, 2003. Petitioner testified that EW told her over coffee the following Sunday, that Cheryl Reynolds had required them to sign a statement prepared by her against Petitioner, under threat of losing their care.
13. Petitioner received a letter dated January 15, 2004, informing her of an investigation to be conducted on allegations of fraud against a resident at Unique Care, Inc., and fraud against the facility itself.
14. Petitioner consistently denied having reported in late for work on December 8, 2003. Other alleged witnesses regarding Petitioner’s timekeeping, that were originally interviewed by the investigator, Services Manager Cheryl Reynolds, and CNA Eva Taylor did not testify.
15. Barbara Powell, R.N., an investigator for the Health Care Personnel Registry, was assigned to investigate the allegation of abuse against Petitioner. On March 11, 2004, Powell interviewed: Petitioner; Cheryl Reynolds, Unique Care’s Service Manager; Eva Taylor, a Unique Care CNA who worked for a neighbor of EW and CW; Patricia Greer, CW’s mother; and EW and CW. Powell also visited Unique Care and reviewed Petitioner’s personnel file and EW and CW’s medical records. Powell did not interview any other CNAs who were regularly working with EW and CW at that time, or any neighbors of EW and CW.
16. Powell interviewed Petitioner on March 11, 2004. During her interview, Petitioner was only questioned about December 8, 2003. Petitioner was not made aware of any additional allegations with regard to fraud against the facility, and was not questioned with regard to whether she had been paid for that time period.
17. No evidence was presented as to whether Unique Care paid Petitioner for any time that she allegedly did not work during the week of December 8, 2003.
18. EW and CW testified that Petitioner began to leave for several hours of most days, from about 12:00 noon until 3:00 p.m. EW testified that Petitioner would go to the store to get things they did not need, and would refuse to purchase specific name brands that they wanted. CW admitted that they did not complain to anyone, nor did they return any items Petitioner purchased for them. EW made inconsistent statements as to whether Petitioner left without telling anyone where she was going, or left with the explanation of grocery shopping.
19. Petitioner testified regarding daily errands for EW and CW, as part of her job responsibilities to shop for groceries and pick up prescriptions. Petitioner testified this was a requirement on their care plans as PRN, meaning “as needed.” Petitioner testified neither EW nor CW complained to her regarding the grocery purchases. Both Greer and Jeanne Vanderzee confirmed seeing Petitioner return to the apartment with groceries regularly.
20. Powell acknowledged discrepancies in the statements made by Unique Care employee CNA Eva Taylor, regarding what times or days she observed Petitioner arrive late for work. Powell relied in part on Taylor’s statement in determining whether or not Petitioner had been repeatedly late for work. Powell admitted that she assumed Taylor observed Petitioner on a daily basis. Powell admitted that she did not know the extent of Taylor’s personal observations. No direct credible evidence was presented to show when or if Taylor actually observed Petitioner arrive late for work on any occasion. Petitioner testified that during times when Taylor was working on a same day as Petitioner, Taylor’s shift started over an hour later than Petitioner’s, up until December 2003.