This contested case was heard before the Honorable Beryl E. Wade, Administrative Law Judge, in Morganton, North Carolina on February 10, 2005.
APPEARANCES
Petitioner:Mr. J. Elliott Field, Esq.
3329 Commonwealth Avenue
Charlotte, NC 28205
Respondent:N. Morgan Whitney, Jr.
Assistant Attorney General
North Carolina Department of Justice
9001 Mail Service Center
Raleigh, NC 27699-9001
ISSUE
Whether Respondent deprived the Petitioner of property, or otherwise substantially prejudiced the Petitioner's rights, exceeded its authority or jurisdiction, acted erroneously, failed to use proper procedure, acted arbitrarily or capriciously, and/or failed to act as required by law or rule, when it substantiated the following allegation of abuse against the Petitioner and decided to list Petitioner on the Health Care Personnel and/or Nurse Aide Registries:
"On or about 8/21/2003, Li “Louise” Lai-Fong, health care personnel, neglected a resident, (AW) by leaving resident on “high tub” unsupervised." (Resp. Ex. 16)
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. 13O.0101
EXHIBITS
For Petitioner: none offered.
For Respondent: 1-9, 14-18, 21, 22.
FINDINGS OF FACT
In making the Findings of Fact, the undersigned has weighed all the evidence and assessed the credibility of the witnesses. The undersigned has taken into account the appropriate factors for judging credibility of witnesses, including but not limited to the demeanor of the witness, any interests, bias, or prejudice the witness may have. Further, the undersigned has carefully considered 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 followingFINDINGS OF FACT:
1.Western Carolina Center, now known as the J. Iverson Riddle Developmental Center, (hereinafter the “Home”) is an ICF/MR facility located in Morganton, North Carolina. The Home employs “DD Trainer I’s” to assist with the hands on care of its residents. (Resp. Ex. 1, 2)
2.The Petitioner worked for the home in the capacity of a DD Trainer I and provided hands on care for the residents.
3.At all times relevant to this case, A.W. was a resident of the Home. A.W. is a 25 year old female who suffers from profound mental retardation, spastic quadriplegia, and a poorly controlled seizure disorder. At the time of the allegation, A.W. was having approximately 150 seizures per month. A.W. is non-ambulatory and requires total care. (T. pp 29-30, Resp. Ex. 4, 21)
4.On August 21, 2003, between 8:00 p.m. and 9:00 p.m., the Petitioner was preparing to take A.W. to the bathing area to give A.W. a bath. (T pp. 20, 59)
5.The bathing area is a smaller room located inside one of the dayrooms at the Home. There is a doorway to the dayroom on either side of the bathing area. These doorways were open at all times relevant to this allegation. There are two entrances to the bathing area, one on each side of the room. Each entrance is located about eight (8) feet from each dayroom doorway. The bathing area entrances are both approximately eight (8) feet from the high tub. When the curtain is retracted, it is possible to see into the bathing area from the hallway. (T pp. 13, 22, Resp. Ex. 22)
6.The high tub is essentially a shallow bathtub that is approximately three feet above a hard, tile floor. The sides of the tub are only 3 to 5 inches high. (T. pp. 10-11, 23, Resp. Ex. 14,
7.The Home had a well-documented bathing procedure which clearly stated that “People who have seizures should not be left alone in the bathing area. All people who live at WCC need to be supervised during bathing.” (Resp. Ex. 18) The Petitioner had been properly trained in the bathing procedure. (T pp. 33-37, Resp. Ex. 17).
8.Prior to the incident that led to the allegation, Linda King, a certified nursing assistant working at the home, saw the Petitioner in the dayroom putting A.W. onto the lift to take her into the bathing area. (T. pp. 9-10)
9.Petitioner proceeded to the bathing area and transferred A.W. to the high tub. Petitioner then waited for the nurse to come because one of the nurses must perform a procedure on A.W. to drain her bladder, prior to her bath. (T. pp. 21, 59, Resp. Ex. 8, 9)
10.After approximately five (5) minutes of waiting for the nurse, the Petitioner left A.W. on the high tub and left the bathing area to go find the nurse. (T pp. 59, Resp. Ex. 8, 9)
- Petitioner walked to the dayroom doorway located on the right hand side of the bathing area. Petitioner looked up and down the hallway. (T pp. 11, 59-60, Resp. Ex. 8, 9)
- At the same time, Linda King, was approaching from the Petitioner’s right side from an adjoining hallway. She saw the Petitioner standing in the dayroom doorway, looking up and down the hall. Ms. King knew that the Petitioner had taken A.W. to the bathing area, but she could not see A.W., because the curtain had been pulled closed. Ms. King told the Petitioner to get back into the bathing area. Petitioner said she was looking for the nurse. Ms. King then told the Petitioner she shouldn’t leave A.W. alone and called for the nurse. (T. pp. 12-15, Resp. Ex. 5, 6)
- Cathy Arney, the nurse, heard the conversation between Ms. King and the Petitioner. She went to the bathing area to see what was needed. As she approached, she saw the Petitioner returning to the bathing area. A.W. was on the high tub, but the Petitioner was still several feet away. (T. pp. 20-21, Resp. Ex. 7)
- This incident was reported to the Respondent; the Respondent determined that an investigation was in order; and properly notified the Petitioner that an investigation was going to take place. (T pp. 44-45, Resp. Ex. 3)
- The Respondent investigated this allegation and determined that sufficient facts existed to support the allegation that, "On or about 8/21/2003, Li “Louise” Lai-Fong, a health care personnel, neglected a resident, (AW) by leaving resident on “high tub” unsupervised.” The Respondent substantiated the allegation and properly notified the Petitioner of its intention to place this finding on the Health Care Personnel and/or Nurse Aide Registries. (T. pp. 45-58, Resp. Ex. 1-9, 14-18, 21, 22).
- Petitioner testified that she had spoken with Cathy Arney, the nurse, before she took A.W. to the bathing area and that the nurse had told her, to go ahead and put A.W. on the tub and that she would be there shortly. (T. p. 59) She further testified that after put A.W. on the tub, she waited about five minutes for the nurse. When the nurse didn’t come, she left the bathing area to find the nurse. Petitioner stated that she went out to the dayroom door that opens into the hallway. (T pp. 59-60)
- The Petitioner admitted that she left A.W. on the high tub for no more than ten (10) seconds. (T p. 67, Resp. Ex. 9, 10) She also admitted that she walked about five or six (5 or 6) feet away from her.
- A.W. was left on the high tub for at least ten (10) seconds while the Petitioner walked approximately 16 to 20 feet, out to the dayroom doorway. Petitioner looked up and down the hall trying to find the nurse.
- Based upon the location of the dayroom doorway and the fact that the Petitioner had her back to the bathing area entrance, A.W. was out of the Petitioner’s line of sight for several seconds.
CONCLUSIONS OF LAW
1.The parties are properly before the Office of Administrative Hearings. This Court has jurisdiction over the parties and the subject matter of this contested case. The parties were give timely notice of this hearing.
2.The North Carolina Department of Health and Human Services, Division of Facility Services, Health Care Personnel Registry Section is required by N.C. Gen. Stat. § 131E-255 and -256 to maintain a Registry that contains the names of all nurse aides and/or health care personnel working in health care facilities against whom a finding of abuse, neglect, or misappropriation of resident and/or facility property has been substantiated.
3.Western Carolina Center is a state operated facility as defined in N.C. Gen. Stat. § 131E-256.
4.Petitioner was working at the Home in the capacity of a DD Trainer I; was providing hands on care to residents; and therefore, was subject to the provisions of N.C. Gen. Stat. § 131E-255 and/or -256.
5.Respondent had the authority to investigate and substantiate this allegation pursuant to N.C. Gen. Stat. § 131E-255 and/or -256.
6.Respondent used the proper definition of “neglect” as defined in 10A N.C.A.C. 13O.0101 and 42 CFR 488.301 which states that, “Neglect means failure to provide goods and services necessary to avoid physical harm, mental anguish, or mental illness.”
7.Since the Petitioner admitted to having left A.W. on the high tub for approximately 10 seconds, the only issue this Court must decide is whether that act constituted “neglect” as defined in conclusion of law no. 6. This Court finds by a preponderance of the evidence that the Petitioner neglected A.W.
8.Petitioner failed to provide “goods and services” to A.W. when Petitioner left A.W. on the high tub and walked several feet away from her. The service that the Petitioner was to provide was simply staying with A.W. at all times while she was on the high tub.
9.Petitioner had been properly trained in bathing procedures and knew that she must stay with A.W. at all times. Petitioner knew that this service was necessary in the event A.W. had a seizure or otherwise moved in a manner that could cause her to fall out of the high tub.
10.The “goods and services” defined in conclusion of law no. 7 above were “necessary” to protect A.W. from “physical harm.” The entire purpose of the Home’s bathing procedures was to prevent residents from falling out of the high tub by keeping at least one person with a resident at all times. Clearly, a three (3) foot fall (onto a tile floor) would result in physical harm to a resident.
11.It was absolutely vital that the Petitioner stay with A.W. at all times due to her poorly controlled seizure disorder. Had A.W. experienced a seizure on the high tub, A.W. may possibly have fallen out of the high tub. The fall would have resulted in physical harm to A.W.
12.Petitioner’s testimony that she was looking for the nurse is an insufficient reason to justify leaving a seizure prone adult resident on the high tub, unattended, for any period of time.
13.Respondent properly substantiated the allegation of neglect against the Petitioner and properly notified her of same.
DECISION
BASED UPON THE FOREGOING FINDINGS OF FACT AND CONCLUSIONS OF LAW the undersigned hereby determines that Respondent's substantiation of and decision to list this allegation of abuse against the Petitioner in the Nurse Aid and/or the Health Care Personnel Registries is UPHELD.
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 Facility Services.
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 24th day of June, 2005.
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Beryl E. Wade
Administrative Law Judge