STATE OF NORTH CAROLINAIN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF CLEVELAND01 DHR 1772

ARCHIE KELLY MCNEILLY,)

Petitioner,)

)

vs.)

)DECISION

N.C. DEPARTMENT OF HEALTH)

AND HUMAN SERVICES, DIVISION)

OF FACILITY SERVICES,)

Respondent.)

This Nurse Aide Registry Case coming on to be heard and being heard before Beecher R. Gray, Administrative Law Judge, and the Petitioner being represented by Fred A. Flowers of the Cleveland County Bar and the Respondent being represented by Jane L. Oliver, Assistant Attorney General; the North Carolina Department of Health and Human Services, Division of Facility Services, as Respondent herein, has previously notified the Petitioner of its intent to place a finding on the Nurse Aide Registry and the Healthcare Personnel Registry as follows:

On or about July 25, 2001, Archie McNeilly, a Nurse Aide, abused a resident (JD) by hitting him while providing care resulting in injuries to the resident.

That following notice of the intent of Respondent to place the foregoing into the Nurse Aide Registry and Healthcare Personnel Registry, the Petitioner, in apt time and in accordance with law, applied for this hearing. The Department of Health and Human Services, Division of Facility Services, by and through their attorney and witnesses, presented evidence contending the same to be in substantiation of the charge set forth above; that at the close of all of the Department’s evidence, the attorney for Petitioner moved that the action be dismissed for reason that the Department failed to present sufficient credible evidence from which the Court could find by the greater weight of the evidence that the Petitioner committed the alleged abusive acts.

ISSUE

Whether Petitioner Archie McNeilly, a Nurse Aide, abused a resident, J.D., by striking him while providing personal care, resulting in injuries to the resident.

FINDINGS OF FACT

  1. The parties received notice of hearing by certified mail more than ten (10) days prior to the hearing and each stipulated on the record that notice was proper.
  1. Petitioner Archie McNeilly is a resident of Cleveland County North Carolina who worked as a Certified Nurse Assistant (CNA) at the White Oak Manor Nursing Home in Shelby, North Carolina from April 2,000 until he left employment in July, 2001.
  1. Prior to working in White Oak Manor, Petitioner was a CNA for approximately six (6) years at Broughton Hospital in Morganton, North Carolina.
  1. Petitioner was working the 3 p.m. to 11 p.m. shift on July 25, 2001 at White Oak Manor. Resident J.D. was one of the residents assigned to Petitioner on the night of July 25, 2001. Petitioner was not working on his usual hall that night and never had worked with J.D. Petitioner testified that he was putting J. D. to bed on a floor mattress when J.D. became irritated and began to curse at Petitioner. Petitioner testified that J.D. kicked him as he was leaning over to work on J.D., causing him to lose his balance and fall onto J.D.
  1. Petitioner is approximately six feet tall and weighs 300 pounds, the same approximate height and weight he was on July 25, 2001.
  1. CNA Jeff Black also was working on J.D.’s hall on the night of July 15, 2001. CNA Black heard a noise as he passed by J.D.’s room and stepped inside to see if there were a problem. He observed Petitioner rising from a kneeling position to a standing position. Petitioner stated that everything was alright but that he accidentally had twisted J.D.’s leg. CNA Black testified that J.D. previously had struck him when agitated. In his written statement to investigators, CNA Black stated that J.D. never had struck at him or hit him.
  1. CNA Black observed a black eye on J.D. the next day and took J.D. to the Director of Nurses and a social worker. J.D. reported that the big, fat, tall dude hit him with his fist and curved part of his wrist, also twisting his ankle and hurting his arm.
  1. Jean Carter, a registered nurse with White Oak Manor, established through her testimony that J.D. often falls and that White Oak Manor had instituted one-on-one supervision with J.D. and placed his mattress on the floor to prevent falls. Resident J.D. has both short and long term memory loss and is sometimes confused.
  1. Various versions of what happened on the night of July 25, 2001 were introduced into evidence at the hearing of this case. Registered Nurse Investigator, Barbara Powell obtained statements from numerous persons on duty that night and the resident J.D. CNA Karen Hopper gave a statement indicating that she was outside J.D.’s room that night along with Petitioner and CNA Sharon Thurman when they heard J.D. scream. The three of them went into J.D.’s room, according to CNA Hopper’s statement, and found him waking up from a bad dream saying “get him, he’s going to kill me”. This version was supported by CNA Thurman and Licensed Practical Nurse Patricia Farley who also was on duty on J.D.’s hall that night. LPN Farley observed J.D.’s black eye the next day and heard him state that men had tried to kill him.
  1. Resident J.D. testified during the hearing of this case. He testified that Petitioner had hit him in his right eye and had twisted his arm but had left no marks or injuries, except for his eye. J.D. insisted in his testimony that he first met Petitioner some five years earlier at a cleaners in Shelby. He testified that he was in a rough part of Shelby known as the knot when Petitioner hit him, twisted his leg, and twisted his arm. He further stated that he reported the assault by Petitioner in the knot to the police. J.D. gave no testimony that Petitioner struck him or assaulted him in any way in his room in White Oak Manor on or about July 25, 2001.
  1. Jean Carter was the director of nurses (DON) at White Oak Manor on July 25, 2001. She testified that J.D. sometimes referred to his unit at White Oak Manor as the knob but that he sometimes was disoriented as to place, though he was aware of his immediate surroundings. DON Carter confronted Petitioner on July 26, 2001 about J.D.’s black eye. Petitioner at first stated that he did not know what she was talking about but then said that he had fallen onto J.D. during the process of putting him to bed. DON Carter asked Petitioner immediately to take a drug screening which Petitioner refused, saying that he would give a urine specimen the next day but not on the present day. DON Carter insisted on the drug screening and Petition asked whether he could just quit, and did in fact quit, stating that he wished to keep his license clean so that he could work in some other facility. Petitioner was not charged by officials at White Oak Manor with being impaired at work or with using any drugs or alcohol while on duty.
  1. Mandy Johnson was a social worker who worked with J.D. before and on or about July 25, 2001 at White Oak Manor. She never heard J.D. call his unit the knob, although he did at times refer to his room as his house. J.D. previously lived with his wife in a house on Peach Street in Shelby, an area not in the area known as the knot.

CONCLUSIONS OF LAW

The Court concludes as a matter of law that sufficient credible evidence was not offered by the Respondent to prove pursuant to law and by the greater weight of the evidence that Petitioner committed the acts of abuse that have been reported. Respondent erred in substantiating the allegation of abuse against the Petitioner because there is insufficient evidence to support Respondent’s conclusion.

Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned makes the following:

DECISION

That Respondent’s decision to place a finding of abuse at Petitioner’s name on the Nurse Aide Registry and on the Health Care Personnel Registry, depriving Petitioner of the ability to work as a CNA in a Medicare or Medicaid supported facility, is not supported by a preponderance of substantial evidence and should be reversed.

ORDER

It hereby is ordered that the agency serve a copy of the final decision on the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, N.C. 27699-6714, in accordance with North Carolina General Statute 150B-36(b).

NOTICE

The decision of the Administrative Law Judge in this contested case will be reviewed by the agency making the final decision according to the standards found in G.S. 150B-36(b)(b1) and (b2). The agency making the final decision is required to give each party an opportunity to file exceptions to the decision of the Administrative Law Judge and to present written argument to those in the agency who will make the final decision. G.S. 150B-36(a).

The agency that will make the final decision in this contested case is the North Carolina Department of Health and Human Resources, Division of Facility Services.

This the 7th day of February, 2002.

______

Beecher R. Gray

Administrative Law Judge

1