STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF HERTFORD 11 DHR 04473
Crystal Lashay Eason,Petitioner,
vs.
North Carolina Department of Health and Human Services, Division of Health Service Regulation, Health Care Personnel Registry Section,
Respondent. / )
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THIS MATTER came on for hearing before Beecher R. Gray, Administrative Law Judge, on July 17, 2011, in Windsor, North Carolina.
APPEARANCES
For Petitioner: Crystal Eason
Post Office Box 745
Winton, NC 27986
For Respondent: Josephine N. Tetteh
Assistant Attorney General North Carolina Department of Justice
114 W. Edenton Street
Raleigh, NC 27699-9001
ISSUE
Whether the Health Care Personnel Registry failed to use proper procedures or otherwise failed to act as required by law under the provisions of N.C. Gen. Stat. § 131E-256(i), et. seq., in denying Petitioner’s petition to have her name removed from the Health Care Personnel Registry as a person who has been found to have neglected a patient.
APPLICABLE STATUTES AND RULES
N.C. Gen. Stat. § 131E-256
N.C. Gen. Stat. §150B-23
42 C.F.R. § 488.301
10 N.C.A.C. 13O.0101
EXHIBITS
Respondent’s exhibits 1 through 15 were admitted into the record.
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 sworn testimony of witnesses, the undersigned makes the following:
FINDINGS OF FACT
1. The parties received notice of hearing by certified mail more than 15 days prior to the hearing and each stipulated on the record that notice was proper.
2. N.C. Gen. Stat. § 131E-256(a)(1)(a) requires the Health Care Personnel Registry (“HCPR”) to maintain a registry containing the names of all health care personnel working in health care facilities in North Carolina who have been subject to findings of neglect of a resident.
3. Neglect is defined in 42 CFR Part 488.301 as the failure to provide goods and services necessary to avoid physical harm, mental anguish, or mental illness. It is the obligation of the HCPR to protect the health and safety of residents.
4. A petitioner may request removal of listings of neglect from the HCPR. In order to remove a finding of neglect against a name, the petitioner is required to demonstrate compliance with the provisions of N.C. Gen. Stat. § 131E-256(i) which provides:
In the case of a finding of neglect under subdivision (1) of subsection (a) of this section, the Department shall establish a procedure to permit health care personnel to petition the Department to have his or her name removed from the registry upon a determination that:
(1) The employment and personal history of the nurse aid does not reflect a pattern of abusive behavior or neglect;
(2) The neglect involved in the original finding was a singular occurrence; and
(3) The petition for removal is submitted after the expiration of the oneyear period which began on the date the petitioner's name was added to the registry under subdivision (1) of subsection (a) of this section.
N.C. Gen. Stat. § 131E-256(i) (2011) (emphasis added)
5. The HCPR established a policy and procedure to permit health care personnel with a finding of neglect to petition to have his or her name removed from the registry. (Resp’t. Ex. 2) The policy and procedure contain the following requirement:
1. An individual with a finding of neglect listed in the North Carolina Nurse Aide I Registry or Health Care Personnel Registry, may petition the Department for removal of the listed finding unless one of the following applies:
3) an individual with more than one finding on the NC Nurse Aide I or Health Care Personnel Registries will not be eligible for removal of the listed neglect finding.
(Resp’t. Ex. 2) (emphasis added)
6. Petitioner’s name was placed on the HCPR on April 15, 2004. The nature of the allegation for the entry of finding into the HCPR states, “On or about 11/13/03, Crystal Eason, a Health Care Personnel, neglected a resident (JD) by failing to adequately monitor the resident resulting in injury and mental anguish. (Resp’t. Ex. 3)
7. By letter dated July 12, 2006, Petitioner requested that her name be removed from the Health Care Personnel Registry. (T. p. 9; Resp’t. Ex. 4)
8. At all times relevant to this matter, Debra T. Hockaday (“Hockaday”) was employed as an investigator for the Health Care Personnel Registry (“HCPR”) and specifically conducted the investigation concerning Petitioner’s request for the neglect removal. (T. pp. 13, 15)
9. By letter dated July 19, 2006, the HCPR notified Petitioner of the statutory requirements which must be met in order to have Petitioner’s name removed from the Registry, and what documentation would be required. (T. pp. 9, 16-17; Resp’t. Ex. 5)
10. A second letter, dated March 5, 2008, notified Petitioner that she had not fulfilled the statutory requirements for the requested documentation and needed to provide her employment history; a letter of recommendation from a current supervisor on company letterhead; two letters from past supervisors in health care facilities on company letterhead; current certified criminal record checks; and three signed letters of personal recommendation from non-family members. (T. pp. 17-18; Resp’t. Ex. 7)
11. A third letter, dated December 3, 2010, notified Petitioner again of the need for the necessary documentation in order to process her application. (T. pp. 18-19; Resp’t. Ex. 8)
12. Investigator Hockaday eventually obtained the necessary documentation for Petitioner’s request. The documents were reviewed once all the correct information was received by the Health Care Personnel Registry. (T. pp. 19-20)
13. While working at Val’s Home Care, Petitioner received a documented warning on May 23, 2008 for not notifying the agency of her absence during working hours from a home being staffed by her. Petitioner was taking care of a CAP resident in his home at the time. Petitioner admitted in the document that she was away from the home and stated that the resident’s family had agreed to take care of the resident while Petitioner was away from the home. Petitioner signed the disciplinary record. (T. pp. 21-23, 32; Resp’t. Ex. 13)
14. Ethel Valentine appeared and was called as a witness by Petitioner. Ethel Valentine was the wife of the patient allegedly left alone in the Val’s Home Care incident on or about May 23, 2008. Ethel Valentine testified that Petitioner never left her husband alone; that the nurse referred to in Respondent’s documentation about the investigation of this incident never came to her home as alleged in the documentation; and that she personally was home at that time and knows first hand that her husband was not left alone.
15. During her employment at WE Family Home Care, Petitioner was referred to take care of a family member of a pastor. While working private duty, Petitioner left an elderly resident alone for two (2) to three (3) hours during the night. As a result, Petitioner was not allowed to resume care. Petitioner testified that there was no “binding contract” between her and the family. (T. pp. 10, 22-23; Resp’t. Ex. 12)
16. In previous investigations, the HCPR has considered a pattern to be something that has occurred more than once. Under that interpretation, two occurrences would be a pattern. (Winter McCotter v. NCDHHS, DFS, HCPR, 07 DHR 0167) This interpretation is consistent with the HCPR’s application and interpretation of its policies and procedures. (T. pp. 41-42)
17. The 2008 private duty incident from the referral by WE Family Home Care demonstrated neglect by showing that Petitioner ignored her responsibility to supervise and ensure the safety of the client. With the April 2004 neglect already listed in the HCPR, this 2008 private duty incident became the second incident in Respondent’s consideration of whether, under its current interpretation, a pattern of neglect arises from petitioner’s employment and personal history. (T. pp. 23, 25-26)
18. Debra T. Hockaday summarized the documentation for the Health Care Personnel Registry on April 7, 2011 in a document entitled Neglect Review of Request to Remove Neglect Finding from the HCPR for Crystal L. Eason. (T. p. 23; Resp’t. Ex. 14)
19. Petitioner has continued to work in healthcare for seven years, despite the listing of her name on the HCPR. (T. pp. 12, 23-25 & 46; Resp’t. Ex. 10)
20. By letter dated April 8, 2011, the HCPR notified Petitioner that she had not met the State requirements for removal of the 2004 neglect finding on the HCPR. (T. p. 26; Resp’t. Ex. 15)
21. Under N.C. Gen. Stat. § 131E-256(d) and (d1), Health Care Personnel who wish to contest findings under N.C. Gen. Stat. § 131E-256(a)(1) can appeal by filing a petition for a contested case hearing within 30 days of the mailing of the written notice of the HCPR’s intent to place the findings in the registry.
Based upon the foregoing Findings of Fact, the Undersigned 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. All parties correctly have been designated and there is no question as to misjoinder or nonjoinder.
3. As a Health Care Personnel working in a residential care facility at the time the incident occurred, Petitioner was subject to the provisions of N.C. Gen. Stat. § 131E-256.
4. Black’s Law Dictionary defines a “pattern” as a series of acts that are recognizably consistent. Webster’s Dictionary defines a “series” as a number of things or events of the same kind occurring in a row or following one after the other in succession. (Webster’s II Dictionary, 2nd Edition 1999)
5. Petitioner has displayed, through her employment and personal histories, a pattern of neglectful behavior, as defined in G.S. 131E-256 and Respondent’s current policies and procedures on removal, which does not ensure that she has the ability to provide goods and services necessary to avoid physical harm, mental anguish, or mental illness. Petitioner’s request for removal does not meet the requirements of G.S. 131E-256(i) and the eligibility requirements of the HCPR’s policies and procedures. Therefore, Respondent properly denied Petitioner’s request for the removal of neglect findings listed against her name in the HCPR.
Based on the foregoing Findings of Fact and Conclusions of Law, the Undersigned makes the following:
DECISION
Respondent’s decision to deny Petitioner’s request to have findings of neglect removed from the Health Care Personnel Registry is supported by the evidence and is AFFIRMED.
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 each party’s 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 12th day of August, 2011.
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Beecher R. Gray
Administrative Law Judge
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