COUNTY OF MECKLENBURG / IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
11 DHR 2709
Danielle Whitman,
Petitioner,
v.
North Carolina Department of Health and Human Service Regulations,
Respondent. / )
)
)
) DECISION
)
)
THIS MATTER came on for hearing before the undersigned, Selina M. Brooks, Administrative Law Judge, on July 6, 2011, in Charlotte, North Carolina.
APPEARANCES
Petitioner: Danielle Whitman
2216 Gooseberry Rd.
Charlotte, North Carolina 28208
For Respondent: Josephine N. Tetteh
Assistant Attorney General
North Carolina Department of Justice
9001 Mail Service Center
Raleigh, NC 27699-9001
ISSUE
Whether Respondent otherwise substantially prejudiced Petitioner’s rights and failed to act as required by law or rule when Respondent substantiated the allegation that Petitioner neglected a resident of Community Alternatives Program-ResCare in Charlotte, North Carolina and entered findings of neglect by Petitioner’s name in the Health Care Personnel Registry.
APPLICABLE STATUTES AND RULES
N.C. Gen. Stat. § 131E-255
N.C. Gen. Stat. § 131E-256
N.C. Gen. Stat. §150B-23
42 CFR § 488.301
10A N.C.A.C. 13O.0101
EXHIBITS
Respondent’s exhibits 1 - 10, 14 - 15, 19 – 21, 24 – 29, 31 – 32, 34 - 41 were admitted into the record.
WITNESSES
Danielle Whitman
Chris Dalton (supervisor)
Athena Foreman (HCPR Investigator)
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. At all times relevant to this matter Petitioner, Danielle Whitman, was a house manager at Community Alternatives Program-ResCare (“ResCare”) in Charlotte, North Carolina. ResCare is a health care facility and therefore subject to N.C. Gen. Stats. §131E-255 and §131E-256. (T p. 11)
2. Petitioner was trained on abuse and neglect of patients. Petitioner was also aware of facility policies relating to patient safety and precautions. Petitioner trained other staff members on their responsibilities, including the importance of making sure that all residents were properly secured during transportation. (T. pp. 11-14; Resp’t. Exs. 1, 2, 4)
3. Petitioner is aware that it is neglect to transport a resident improperly; fail to follow facility safety procedures; and to fail to immediately report cases of actual or suspected neglect. (T p. 13; Resp’t Ex. 1)
4. Petitioner was one of two day shift staff members assigned to transport Resident DS and three other residents in a ResCare van on November 29, 2010. Petitioner was the driver. As the driver, Petitioner was supposed to do a pre-drive walk around the van. ResCare’s “pre-drive walk around” includes ensuring seat belts and wheel chair restraints are in proper working order. (T pp. 14-15, 35; Resp’t. Ex. 3)
5. At all times relevant to this proceeding, Resident DS has been a resident of ResCare. Resident DS was admitted to the facility with the following diagnoses: profound mental retardation; microcephaly; GERD; Hypertension; Spastic Quadriparesis; Contractures; Anemia; and blindness in the left eye. Resident DS has a wheelchair prescription, is wheelchair-bound and non-verbal. (T pp. 45, 48; Resp’t Exs. 36, 37, 38, 39)
6. Petitioner has worked with Resident DS in the past. Petitioner was aware of Resident DS’s wheelchair prescription and that Resident DS is non-verbal. Petitioner was also aware that she was supposed to ensure that Resident DS was properly buckled into her seat prior to transport. (T pp. 16, 35, 53; Resp’t Exs. 8, 9)
7. Shalondia Pressley (“Pressley”) was the other day shift staff member assigned to assist with transport on November 29, 2010. At all times relevant to this proceeding, Pressley has been a Direct Support Staff with ResCare. During transport, Pressley was responsible for making sure the three other residents in the van were secured in their seats. (T p. 14; Resp’t. Exs. 23, 26)
8. Petitioner and Pressley took the residents on several trips during the morning of November 29, 2010. At lunch time, Petitioner and Pressley took the residents to a local restaurant where they all ate lunch. (T pp. 16-17; Resp’t. Exs. 8, 9, 25, 26)
9. Following lunch, Petitioner took Resident DS and another resident to the van. (T p. 17) Petitioner did not secure the seatbelt around DS. (Test. Of Petitioner)
10. Petitioner, Pressley and the residents returned to the facility a few minutes after two (2) p.m. Petitioner pulled in and explained to Pressley that she had to take her (Petitioner’s) daughter to an appointment, and requested that Pressley stay on the van with the residents until the second shift staff came on to relieve Pressley. (T. pp. 18-19, 25; Resp’t. Exs. 25, 26)
11. Angela Jordan (“Jordan”) was assigned to drive the residents on the second shift on November 29, 2010. Jordan came to the van and received a report from Pressley on how the day had gone. At all times relevant to this proceeding, Jordan was an employee of ResCare. (T. pp. 34, 39; Resp’t. Exs. 14, 15, 26)
12. Pressley exited from the van and went into the facility to clock out. Jordan stayed outside on the van waiting for Cyonna Hallums to exit the building. At all times relevant to this proceeding, Hallums was an employee of ResCare. After Hallums entered the ResCare van, Jordan pulled away. (Resp’t. Exs. 14, 15, 25)
13. Approximately twenty (20) minutes later, Pressley received a call from Jordan informing Pressley that Resident DS had fallen out of her seat, and asking Pressley who had buckled in Resident DS. (Resp’t. Ex. 25)
14. Pressley explained to Jordan that Petitioner had buckled Resident DS in. Pressley asked Jordan to contact Petitioner. (Resp’t. Exs. 25, 26)
15. On her way home from the facility, Petitioner noticed the ResCare van pulled into a Jiffy Lube. Petitioner pulled over to find out what was happening. Petitioner was informed by Jordan and Hallums that Resident DS had fallen and vomited her lunch. (T. pp. 19-20; Resp’t. Exs. 8, 9)
16. ResCare Qualified Professional, Robert Ratchford (“Ratchford”) received a call from Petitioner regarding Resident DS’s fall from her wheelchair at approximately 5:35 p.m. Ratchford notified facility nurse, Pat Sharer (“Sharer”). At all times relevant to this proceeding Ratchford and Sharer have been employees of ResCare. (T. pp. 30, 33; Resp’t. Ex. 32)
17. Ratchford contacted the various employees involved and also notified Chris Dalton (“Dalton”). At all times relevant to this proceeding, Dalton has been an operations manager at ResCare in Charlotte, North Carolina. (T. p. 29)
18. After becoming aware of this information, Dalton filled out an incident response improvement system report (IRIS) which was sent to the Health Care Personnel Registry (“HCPR”) and contacted DSS. The facility immediately began an investigation. As part of the facility investigation, statements were taken from Petitioner, Pressley, Hallums, Jordan and Sharer. (T. pp. 32-33, 50; Resp’t. Ex. 27)
19. Dalton ordered an evaluation of Resident DS for injuries in which it was determined that Resident DS had received a right brow edematous and bruising as a result of her fall. (T. pp. 38, 48-49; Resp’t. Exs. 28, 29, 32)
20. Following the investigation, Dalton made recommendations for corrective action. Petitioner was terminated by ResCare for failing to adhere to policy in transporting Resident DS. A review of the van tiedowns on November 30, 2010 showed they were working properly. (T. pp. 49-50, 52; Resp’t. Exs. 10, 34)
21. At all times relevant to this matter, Athena Foreman (“Foreman”) was an investigator with the Health Care Personnel Registry. As an investigator, Foreman is charged with investigating allegations against health care personnel in the South Central Region of North Carolina, including Mecklenburg County. Accordingly, she received and investigated the allegation that Petitioner had neglected Resident DS at ResCare. (T. pp. 86-87; Resp’t. Ex. 40)
22. Foreman reviewed facility documents and conducted her own investigation which included interviewing people involved with the incident and investigation; reviewing Resident DS’s medical documentation; and reviewing the facility’s policies. (T. p. 90; Resp’t. Ex. 40)
23. Foreman found an inconsistency in Petitioner’s statement: Petitioner initially indicated that she could not use the van belt to secure Resident DS because Resident DS had on a coat. When asked why she did not remove the coat, however, Petitioner stated that she did not think of it. (T. pp. 90, 94, 98-99; Resp’t. Ex. 40)
24. Based on her review of all the information, Foreman concluded that contrary to facility policy and the precautions in place at the time to ensure Resident DS’s safety, Petitioner did not conduct a proper pre-drive walk around of the ResCare van; and did not secure Resident DS appropriately. The following include the reasons for Foreman’s conclusion:
a. Petitioner admitted to being the driver.
b. Petitioner admitted to not using the van belt to secure Resident DS in the van on November 29, 2010.
c. Petitioner admitted she was the last person to buckle Resident DS in prior to her fall.
d. Petitioner stated that she was responsible for training other staff members on the transportation of residents.
25. Foreman documented her conclusions in an investigation conclusion report. (T. pp. 14, 17-18, 24-25, 35, 75; Resp’t. Ex. 40)
26. Following the conclusions of her investigation, Foreman notified Petitioner of her decision to substantiate the allegation of neglect. (T. p. 101; Resp’t. Ex. 41)
27. Neglect is the “failure to provide goods and services necessary to prevent physical harm, mental anguish and mental illness.” (Resp’t. Ex. 40)
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 house manager working in a health care facility, Petitioner is a health care personnel and is subject to the provisions of N.C. Gen. Stat. § 131E-255 and § 131E-256.
4. “Neglect” is defined as “a failure to provide goods and services necessary to avoid physical harm, mental anguish or mental illness.” 10A NCAC 13O.0101, 42 CFR §488.301
5. On or about November 29, 2010, Danielle Whitman, a Health Care Personnel, neglected a resident (DS) by failing to secure the resident in her wheelchair and van allowing the resident to fall on the floor of the van resulting in an injury.
6. Respondent did not act erroneously because there is sufficient evidence to support Respondent’s conclusion that Petitioner neglected Resident DS.
RECOMMENDED DECISION
Based on the foregoing Findings of Fact and Conclusions of Law, the Undersigned hereby determines that Respondent’s decision to place a finding of neglect by Petitioner’s name on the Health Care Personnel Registry should be 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 8th day of August, 2011.
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Selina M. Brooks
Administrative Law Judge