STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF WASHINGTON 05 DHR 0461

MARIA SHANTE HOLLEY,

Petitioner,

v.

N.C. DEPARTMENT OF HEALTH AND HUMAN SERVICES, DFS,

Respondent.


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DECISION

THIS MATTER came on for hearing before the undersigned, Beryl Wade, Administrative Law Judge, on May 18, 2005, in Elizabeth City, North Carolina.

APPEARANCES

Petitioner: Maria Shante Holley

121 Luvera Street

Plymouth, North Carolina 27962

For Respondent: Susan K. Hackney

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, exceeded its authority or jurisdiction, acted erroneously, failed to use proper procedure, acted arbitrarily or capriciously, or 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 Health Care Personnel Registry:

On or about June 15, 2004, Petitioner, a Nurse Aide, abused a resident (JS) by yelling and screaming at the resident for giving her son a cigarette, causing the resident to be upset and embarrassed.

APPLICABLE STATUTES AND RULES

N.C. Gen. Stat. § 131E-255

N.C. Gen. Stat. § 131E-256

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N.C. Gen. Stat. §150B-23

42 CFR § 488.301

10A N.C.A.C. 13O.0101

EXHIBITS

Respondent’s exhibits 1-18 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. At all times relevant to this matter Petitioner, Maria Holley, was a Nurse Aide employed at Plumblee Nursing Center in Plymouth, North Carolina, a residential nursing facility for the elderly, and therefore subject to N.C. Gen. Stat. §131E-255 and §131E-256. (T pp. 7-8)

2. Petitioner worked at Plumblee Nursing Center for ten years. Her duties centered around caring for the residents by taking care of their needs. (T p.8)

3. Petitioner understands that residents have rights. Nurse Aides at Plumblee Nursing Center are required to “[p]rovide resident care and treatment in a safe manner and with respect for residents’ rights at all times.” (T. pp. 9-10, 15; Resp. Exhibit 3)

4. Petitioner has been taught about resident abuse. She understands that abuse can be verbal or physical, and that a Nurse Aide must never abuse a resident. (T. pp. 10-11; Resp. Exhibit 6)

5. At all times relevant to this incident, James Smith was a resident at Plumblee Nursing Center. At the time of the allegation he was seventy two years old. He has a history of polio, mental retardation, and dementia. He is documented as alert and oriented but has some short term memory problems. He can communicate verbally and understands what is said to him. (T. p. 27-28; Resp. Exhibit 17)

6. Barbara Roa testified that in June 2004 she observed Petitioner with Mr. Smith at Plumblee Nursing Center. Petitioner came into the dining room very upset because her son had smoked a cigarette that Mr. Smith had given to him. Petitioner pointed her finger in Mr. Smith’s face and yelled at him. Mr. Smith quit eating after the incident. (T. pp. 22-23)

7. Mr. Smith testified that when Petitioner’s son asked him for a cigarette he gave one to him. When Petitioner confronted him it “worried” and upset him. (T p. 29)

8. At all times relevant to this matter, Kathy Boyd was employed at Plumblee Nursing Center in staff development and education. In addition to training Petitioner on abuse and neglect, she trained Petitioner on how to prevent someone from abusing a resident when she was under stress. She also provided one-on-one training for Petitioner after Petitioner was accused of abuse in a separate incident. (T. pp. 34-44; Resp. Exhibits 1, 2, 7, 8, 9, 10)

9. At all times relevant to this matter, Rebecca Buck was an investigator with the Nurse Aide Registry/Health Care Personnel Registry. Ms. Buck is charged with investigating allegations against health care personnel in the northeastern area of North Carolina. Accordingly, she received and investigated the allegation that Petitioner had abused a resident at Plumblee Nursing Center. (T pp. 45-46)

10. In the course of investigating Petitioner on two separate incidents, Ms. Buck reviewed Petitioner’s personnel file. She noticed a written warning to Petitioner for the incident involving Mr. Smith that had not been reported to the Health Care Personnel Registry. (T pp. 46-48)

11. Petitioner’s personnel file also contained an e-mail that had been sent to the facility, informing them of the incident between Mr. Smith and Petitioner. (T pp. 47, Resp. Exhibit 11)

12. Ms. Buck reviewed Petitioner’s personnel files and training records as well as the resident files of Mr. Smith. In addition, she interviewed the people involved.

13. During Ms. Buck’s interview of Mr. Smith, he recalled the incident and told her it made him feel embarrassed because Petitioner had yelled at him in front of everybody. (T. pp. 54-55)

14. Ms. Buck substantiated the allegation of abuse against Petitioner because Petitioner’s willful verbal abuse was intimidating and punishing to Mr. Smith and resulted in mental anguish. (T pp. 57)

15. In coming to her conclusion, Ms. Buck examined Petitioner’s training and background concluding that she understood resident abuse. She also found that when she spoke with Mr. Smith, months after the incident, he would hang his head and mumble, “I don’t know, I don’t know.” From his body language and the distress in his voice and his words, Ms. Buck concluded that Mr. Smith suffered mental anguish from the incident. (T p. 57-58; Resp. Exhibit 17)

16. Petitioner was notified by letter that a finding of abuse would be listed against her name in the Health Care Personnel Registry. Attached to the letter was the Entry of Finding, which is the exact substantiated finding as it will appear on the Health Care Personnel Registry. (T pp. 59; Resp. Exhibit 18)

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 working in a residential 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. “Abuse” is defined as “the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish.” 42 C.F.R. 488.301, 10A N.C.A.C. 13O.0101.

5. On or about June 15, 2004, Petitioner abused resident James Smith in that Petitioner yelled oat him for giving her son a cigarette, causing the resident to be upset and embarrassed.

6. Respondent did not act erroneously because there is sufficient evidence to support Respondent’s conclusion that Petitioner abused James Smith.

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 abuse at 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 13th day of July, 2005.

______Beryl Wade

Administrative Law Judge

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