STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF ANSON 01 DHR 1593

LASONYA JEAN CLARK, )

Petitioner, )

)

v. ) DECISION

)

NORTH CAROLINA DEPARTMENT )

OF HEALTH AND HUMAN SERVICES, )

DIVISION OF FACILITY SERVICES, )

HEALTH CARE PERSONNEL )

REGISTRY SECTION, )

Respondent. )

This matter was heard before Beecher R. Gray, Administrative Law Judge, on December 11, 2001, in Wadesboro, North Carolina.

APPEARANCES

Brian P. Brauns

Attorney at Law

PO Box 1018

Wadesboro, NC 28170

Counsel for Petitioner

June S. Ferrell

Assistant Attorney General,

North Carolina Department of Justice

PO Box 629

Raleigh, NC 27602

Counsel for Respondent

ISSUE

Whether Respondent

1. otherwise substantially prejudiced Petitioner’s rights;

2. acted erroneously;

3. failed to use proper procedure; or

4. failed to act as required by law or rule

when Respondent notified Petitioner of its intent to enter a finding of neglect by Petitioner of a nursing home resident in the Nurse Aide Registry and the Health Care Personnel Registry.

APPLICABLE STATUTES AND RULES

N.C. GEN. STAT. §§ 131E-255 and -256

N.C. GEN. STAT. § 150B-23

10 NCAC 3B .1001(10)

EXHIBITS

The following exhibits were admitted into evidence:

1. Respondent’s Exhibit #1 Letter to Petitioner from Respondent dated September 21, 2001

2. Respondent’s Exhibit #2 Handwritten Statement of Petitioner

3. Respondent’s Exhibit #3 HCPR Interview of Petitioner

4. Respondent’s Exhibit #4 HCPR Interview of Mae Burns

5. Respondent’s Exhibit #10 Handwritten Statement of Felicia Smith

6. Respondent’s Exhibit #11 HCPR Interview of Felicia Smith

Based upon the documents filed in this matter, exhibits admitted into evidence and the sworn testimony of the witnesses, the undersigned makes the following:

FINDINGS OF FACT

1. At all times relevant to this matter, Petitioner, a certified nurse’s assistant (hereinafter “CNA”), was employed as a health care personnel at Heritage Hills Nursing Home (hereinafter “Heritage Hills”) in Wadesboro, NC. Tr pp 7-8.

2. Heritage Hills is a skilled nursing facility. Tr pp 89-90.

3. At all times relevant to this matter, Mae Burns was a resident of Heritage Hills. Ms. Burns is incontinent of bowel and bladder, suffers from partial paralysis and is confined to a wheelchair. Tr pp 8, 12, 47, 92-93.

4. At all times relevant to this matter, Felicia Smith was employed as a Licensed Practical Nurse at Heritage Hills. Tr p 60.

5. At all times relevant to this matter, Marie Curran was employed as the Social Services Director at Heritage Hills. Tr p 82.

6. At all times relevant to this matter, Catherine Gaddy was employed as a CNA II at Heritage Hills. Tr p 99.

7. At all times relevant to this matter, Patricia Epps was employed as a HCPR Nurse Investigator with Respondent. Tr pp 88-89.

8. Ms. Burns routinely ate supper in the dining room between five and six o’clock p.m. Upon returning to her room, she would seek assistance to the bathroom and have her diaper changed. On June 20, 2001, between five thirty and six o’clock p.m., Ms. Burns was seated in the doorway of her room in her wheelchair. When Petitioner came out of the room across the hall from Ms. Burns, Ms. Burns requested that Petitioner take her to the bathroom and change her diaper. Petitioner did not respond to Ms. Burns and proceeded to walk down the hall. Tr pp 48-50, 54, 58; Resp Exh 4.

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9. Around eight o’clock p. m., Petitioner entered Ms. Burns’ room at which time she changed Ms. Burns’ diaper. As Petitioner changed Ms. Burns’ diaper, Ms. Burns explained to Petitioner that she needed cream applied to her buttocks. Petitioner yelled at Ms. Burns, “ I don’t get my orders from nurses. I only follow the doctor.” Tr pp 50-51; Resp Exh 4.

10. On June 20, 2001, Ms. Smith passed out the evening medications. At approximately seven o’clock p.m., Ms. Smith entered Ms. Burns’ room for the purpose of giving Ms. Burns her medication. Ms. Burns immediately told Ms. Smith about Petitioner’s refusal to take her to the bathroom. Ms. Smith reassured Ms. Burns that everything would be fine and that she would speak with Petitioner about the incident. Tr pp 55, 61; Resp Exh 10, 11.

11. Ms. Smith approached Petitioner and expressed her concerns about Ms. Burns. Petitioner informed Ms. Smith that she could not continue to get Ms. Burns up every two hours. Petitioner stated, “ She’s putting a strain on my back and I can’t keep doing this.” Ms. Smith denied that Petitioner had discussed R.M. with her. Tr p 62; Resp Exh 10, 11.

12. On June 20, 2001 between nine o’clock and nine fifteen p.m., Ms. Gaddy entered Ms. Burns’ room for the purpose of performing a treatment to Ms. Burns. When Ms. Gaddy entered the room, Ms. Burns was lying in her bed, very upset, agitated and shaking. Ms. Burns proceeded to tell Ms. Gaddy about the incident with Petitioner. Ms. Gaddy reassured Ms. Burns, tried to calm her down and told Ms. Burns that she would discuss the matter with the nurse. Ms. Gaddy denied that Petitioner had discussed R.M. with her. Tr pp 98-101.

13. Petitioner testified that Ms. Burns’ call bell came on around seven o’clock p.m.; however, she was unable to respond immediately because another resident, R.M., was confused and attempting to get out of her bed. Petitioner stated that she went to the dining room and informed Ms. Smith and Ms. Gaddy of the problem that she was having with R.M. and that Ms. Burns had hollered at her. Petitioner further stated that she returned to Ms. Burns’ room around seven fifteen p.m. at which time she changed Ms. Burns’ diaper. Petitioner denied that she had complained to Ms. Smith about her back. Tr pp 9-12, 15-16, 18, 22-26, 29-36, 42-46, 105-106, 110-111; Resp Exh 2, 3.

14. Both Ms. Smith and Ms. Gaddy denied that Petitioner had discussed R.M. with either of them. Tr pp 62, 102-103.

15. Ms. Burns was a credible witness. She had no apparent interest in the outcome of the case and her testimony was consistent with her prior statements.

16. Ms. Smith was a credible witness. She had no apparent interest in the outcome of the case and her testimony was consistent with her prior statements.

17. Ms. Curran was a credible witness. She had no apparent interest in the outcome of the case and her testimony was consistent with her prior statements.

18. Ms. Gaddy was a credible witness. She had no apparent interest in the outcome of the case and her testimony was consistent with her prior statements.

19. On behalf of Heritage Hills, Ms. Curran conducted the in-house investigation with respect to the allegation of neglect by Petitioner of the nursing home resident, Ms. Burns. Tr pp 83-85.

20. Upon completion of the investigation, Ms. Curran forwarded the investigation to Respondent. Tr pp 84-86.

21. Ms. Epps investigated and substantiated the allegation of neglect by Petitioner of the nursing home resident, Ms. Burns. Tr pp 89-94.

22. By letter, sent via certified mail, on September 21, 2001, Respondent notified Petitioner that the Department had substantiated the allegation of neglect against Petitioner and that the substantiated finding would be entered into the Nurse Aide Registry and the Health Care Personnel Registry. The letter also notified Petitioner of her right to contest the entry of the substantiated findings of neglect in the Nurse Aide Registry and the Health Care Personnel Registry. Resp Exh 1.

23. ‘"Neglect" is defined by 42 CFR Part 488 Subpart E which is incorporated by reference, including subsequent amendments. . . .’ 10 NCAC 3B .1001(10). Neglect is defined in 42 CFR 488.301 as follows:

“Neglect” means failure to provide goods and services necessary to avoid physical harm, mental anguish, or mental illness.

24. 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 to maintain a Registry that contains the names of all nurse aides working in nursing facilities who have a substantiated finding of resident abuse, resident neglect, or misappropriation of resident property.

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25. 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-256 to maintain a Registry that contains the names of all health care personnel working in health care facilities who have a substantiated finding of resident abuse, resident neglect, misappropriation of resident property, misappropriation of facility property, diversion of resident drugs, diversion of facility drugs or fraud against a resident or the facility.

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 pursuant to Chapters 131E and 150B of the North Carolina General Statutes.

2. All parties have been correctly designated and there is no question as to misjoinder or nonjoinder.

3. As a nurse aide, Petitioner is subject to the provisions of N.C. Gen. Stat. § 131E-255.

4. Heritage Hills Nursing Home, a nursing home, is a health care facility as defined in N.C. Gen. Stat. § 131E-256(b)(6).

5. As a health care personnel, Petitioner is subject to the provisions of N.C. Gen. Stat. § 131E-256.

6. On June 20, 2001, Petitioner neglected Mae Burns by refusing to take Ms. Burns to the bathroom in a timely manner.

7. Respondent did not err in substantiating the finding of neglect committed by the Petitioner.

DECISION

That the North Carolina Department of Health and Human Services, Division of Facility Services, Health Care Personnel Registry Section did not err when it notified Petitioner of its intent to enter a substantiated finding of neglect by Petitioner in the Nurse Aide Registry and the Health Care Personnel Registry.

ORDER

It is hereby ordered that the agency serve a copy of the FINAL DECISION on the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-6714, in accordance with N.C. Gen. Stat. § 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 Services, Division of Facility Services.

This the 18th day of February, 2002.

______

Beecher R. Gray

Administrative Law Judge

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