STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF GUILFORD 10 DHR 5395

Wilma Goins,
Petitioner,
vs.
Dept of Health and Human Services, Div of Health Service Regulation,
Respondent. / )
))
)
)) / DECISION

THIS MATTER came on for hearing on January 18, 2011, before Administrative Law Judge Selina M. Brooks in High Point, North Carolina.

APPEARANCES

For Petitioner: Wilma R. Goins, pro se

4569 Worthing Chase Dr

Greensboro, NC 27406

For Respondent: Bethany Burgon

Assistant Attorney General

N.C. Department of Justice

P.O. Box 629

Raleigh, NC 27602-0629

ISSUE

Whether the Health Care Personnel Registry’s (“HCPR”) decision to substantiate a finding of abuse against Petitioner pursuant to N.C. Gen. Stat. § 131E-256(i) was arbitrary and capricious, a failure to use proper procedure, or in error of law?

APPLICABLE LAW

The statute establishing the Health Care Personnel Registry states, in pertinent part, that:

(i) 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 health care personnel does not reflect a pattern of abusive behavior or neglect;

(1a) The health care personnel’s name was added to the registry for a single finding of 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 one-year 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

The applicable rule concerning Personnel Requirements states, in pertinent part, that:

(b) All facilities shall ensure that the director, each staff member or any other person who provides care or services to clients on behalf of the facility: … (4) has no substantiated findings of abuse or neglect listed on the North Carolina Health Care Personnel Registry.

10A NCAC 27G .0202

PREHEARING MOTION

Prior to the hearing, Respondent filed a Motion To Admit Interview Statements pursuant to N.C. Gen Stat. § 150B-41 and N.C. Rules of Evidence § 8C-1, rule 804(a)(3)&(4) and 804(b)(5). Petitioner did not submit a response. After discussion with the parties on the record on the first day of hearing, the Undersigned granted this motion.

EXHIBITS ADMITTED INTO EVIDENCE

For Petitioner: Exhibit P1

For Respondent: Exhibits 1-10, 13-21

Redactions in Exhibits:

After the hearing, the Undersigned observed that Petitioner’s Exhibit P1 contained the full legal name of Valerie, the alleged victim herein. The Undersigned has redacted Valerie’s middle and last names from this document.

After the hearing, the Undersigned observed that Respondent’s Exhibit 6, page 13, concerned an incident involving another resident and is unrelated to the allegations contained in this contested case. The Undersigned has redacted this information from page 13.

WITNESSES

For Petitioner: Wilma R. Goins, on her own behalf

Corporal Todd E. Riddle, Guilford County Sheriff’s Office

Henry L. Wooten, President, Quality Life Services, Inc.

For Respondent: Nancy Gore, Qualified Professional

Linda Greninger, Nurse Practitioner

Wilma R. Goins, Petitioner

Shara Bennett Williamson, Lead Program Assistant

Gwen Yvette Flowers, Assistant Program Director

Michael John Gore, Health Coordinator, LPN

Stella Haynes, HCPR Regional Supervisor, RN and BSN

ON THE BASIS of careful consideration of the sworn testimony of witnesses presented at the hearing, documents received and admitted into evidence, and the entire record in this proceeding, the Undersigned makes the following 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 interest, bias or prejudice the witness may have; the opportunity of the witness to see, hear, know, and remember the facts or occurrences about which the witness testified; whether the testimony of the witness is reasonable; and whether such testimony is consistent with all other believable evidence in the case. In the absence of a transcript of the hearing, the Undersigned listened to audiotapes of the hearing to confirm her recollection of the testimony.

FINDINGS OF FACT

1. Petitioner is employed by Quality Life Services, Inc. as a provider of residential services.

2. Valerie is a recipient of residential services.

3. Henry Wooten is the Chief Executive Officer of Quality Life Services, Inc. and Petitioner’s employer. He has known Valerie since about 2000-01. Testimony of Wooten

4. Petitioner has known Valerie and her mother since 1997. Valerie has resided in Petitioner’s home at her mother’s request since 2003 because her mother had Lou Gehrig’s disease and knew that she could not properly care for Valerie. R Ex 3

5. Valerie began attending the adult day treatment program at the Adult Center for Enrichment (ACE) at River Landing in November 2009. R Ex 5 ACE had concerns that it was not a proper placement for Valerie because it was not familiar with caring for people with her diagnoses. ACE had previously treated only Alzheimer’s patients. At the time of the alleged incident, approximately 25-30% of the ACE patients shared similar diagnoses with Valerie. Testimony of Flowers; R Ex 9 p 2-3

6. ACE staff had to learn the best way to communicate with Valerie and Petitioner so that Valerie would not be upset, such as a daily logbook and sticker reward system. They tried different types of behavior modification because Valerie would stand up in the middle of a group and start screaming. Testimony of Flowers

7. It was reported to ACE that Valerie had a history of lying. Testimony of Petitioner, Flowers Wooten; R Ex 3 and 9

8. Valerie had a history of making allegations against Petitioner to ACE staff. These allegations did not make sense and Valerie would say she did not want to live with Petitioner and that she wanted to live with her family. R Ex 8, p 2; and see R Ex 9

9. On Sunday, June 6, 2010, Valerie dressed herself for church. She realized her skirt was too big and asked Petitioner to pin it. Petitioner pinned the waistband of her skirt with a safety pin. Testimony of Petitioner. R Ex 3 and 4

10. Petitioner did not observe any signs that Valerie might be upset or that anything was wrong on June 6, 2010 or the morning of June 7, 2010 before Valerie went to ACE. Testimony of Petitioner; R Ex 3

11. Shara Williamson is employed as Lead Program Assistant at ACE at River Landing. On June 7, 2010, Valerie told Ms. Williamson that Petitioner had “strangled” or “choked” her because she had put on the wrong skirt. Ms. Williamson believed this allegation because Valerie told it several times that day. Ms. Williamson looked at Valerie’s neck and saw marks on her neck that were “different than her usual eczema areas.” R Ex 6, 7, & 8

12. Gwen Flowers is employed as Assistant Program Director at ACE at River Landing. Valerie repeated her story to Ms. Flowers who saw “3 roundish bruises” on her neck that did not look like eczema. She had never heard Valerie give details in prior allegations. Ms. Flowers took photographs but they were not clear. Testimony of Flowers

13. Michael Gore is employed as a Health Coordinator at ACE at River Landing. Valerie told Mr. Gore that Petitioner “choked” her. He testified that she repeated her allegations when she saw the interest her allegations were receiving from staff. Testimony of Gore

14.  Mr. Gore was the only medical person to examine Valerie’s neck.

15.  Mr. Gore observed “marks [that] looked like fingerprints” on Valerie’s neck. “The skin wasn’t broken, and it wasn’t really bruised, there were just marks, there. Sort of like the top layer of skin had been scratched off. But you could see the indentation, like pressure had been applied.” R 11 p 1

16. After Petitioner made these allegations on June 7, 2010, she was placed in a new residential setting. Testimony of Flowers

17. On June 7, 2010, Petitioner was told by someone at ACE that Valerie had made allegations of abuse against her. R Ex 4

18. Linda Greninger is employed by the Guilford Center as a psychiatric mental health nurse practitioner. She sees Valerie about every three months. Testimony of Greninger

19. Valerie has been diagnosed with intermittent explosive disorder, psychotic disorder NOS, mild mental retardation, and personality disorder NOS. R Ex 13

20. Valerie showed some signs of “deterioration” on June 9, 2010. Ms. Greninger asked the mental status questions from the MD Progress Note form. She testified that “I did not observe signs or symptoms of disorders”. She testified that she conducted a mental status exam, but could not state to what degree Valerie was developmentally disabled and how that may or may not have affected her statement of the allegations. Testimony of Greninger; R Ex 13

21. Valerie has eczema, a skin condition that makes her sensitive on her upper back, upper chest, upper torso, around her neck, and some on her face. Testimony of Petitioner, Flowers & Michael Gore; R Ex 3

22. On June 9, 2010, Ms. Greninger completed the MD Progress Note stating that Valerie complained “staff put hands around her neck”. In the comments section, she noted a change in medication but made no notes about marks on her neck, a skin condition, or treatment for a skin condition. R Ex 13

23. Testimony was unclear whether Valerie had long-standing darker areas of skin in the neck area that could be mistaken for eczema or bruising. Testimony of Petitioner Wooten; and see R Ex 17 p 2

24. Testimony concerning whether Valerie had any signs of eczema, scratchiness or bruising on her neck on June 7, 2010 when she made the allegations was inconsistent. See Testimony of Flowers, Michael Gore & Williamson

25. The testimony concerning the existence of marks and, generally, concerning eczema, skin condition or skin discoloration on Valerie’s neck on June 7, 2010 was not conclusive.

26. Valerie rode a bus from Petitioner’s home to ACE in the morning and rode a bus from ACE to Petitioner’s home in the afternoon on a daily basis.

27. Every morning, Petitioner arrived at ACE angry. Testimony of Williamson

28. Every afternoon, Petitioner would be upset before she left ACE to ride the return bus to Petitioner’s home. Testimony of Michael Gore & Williamson

29. Petitioner’s attitude toward afternoon transportation changed after she changed residence and her day treatment program. Testimony of Flowers & Michael Gore If Valerie was picked up from ACE by her residential providers then Valerie’s attitude was positive. If Valerie was picked up by the bus, then her attitude was negative. Testimony of Michael Gore

30. Nancy Kaprov Gore is employed as a family support specialist at ACE at River Landing.

31. Valerie’s attitude toward transportation was one reason she was moved to a new day treatment program. Testimony of Nancy Gore

32. No investigation was conducted to determine the cause of Valerie’s angry behavior toward the morning or afternoon bus. Testimony of Williamson & Michael Gore

33. The allegations were reported by ACE on June 14, 2010 and again on a different form on June 18, 2010 because the State was in the process of instituting a new reporting system. R Ex 6, 7 & 8 Testimony of Nancy Gore

34. An investigation conducted by Quality Life Services determined the allegations were unsubstantiated based upon inconsistent statements made by Valerie. Testimony of Wooten

35. Stella Haynes is a regional supervisor for the HCPR and was the HCPR investigator for Valerie’s allegations.

36. On July 8, 2010, the HCPR investigator interviewed Petitioner and Valerie. R Ex 8 16

37. When interviewed by the HCPR investigator on July 8, 2010, Valerie stated that Petitioner that treated her bad only one time and “choked” her. The investigator noted that Valerie’s skin looked dry on her face, neck and left arm, and her “left arm was very dry, had areas looking like a rash under the skin.” R Ex 16 p 2

38. On July 28, 2010, the HCPR investigator interviewed Williamson, Flowers and Michael Gore. R Ex 8, 9 & 10

39. The HCPR investigator interviewed Valerie a second time on July 29, 2010. On this day, she said Petitioner “choked” her and that Petitioner “got mad” because she had pinned her skirt. R Ex 17

40. The HCPR investigator substantiated the allegations based upon staff assessment of the allegation and because she “did not think [Valerie] could maintain consistency if it was a lie.” Testimony of Haynes

41. The HCPR investigator prepared a transcript of her interviews of Valerie. R Ex 16 17 The transcripts were admitted in lieu of testimony by Valerie on the basis of her “mild mental retardation and [she] lacks the memory to recall the incident.” Respondent’s Motion To Admit Interview Statements.

42. The HCPR investigator felt that Quality Life Services had not conducted a thorough investigation and referred the allegations to the Guilford County Sheriff’s Office. Testimony of Haynes

43. Todd Riddle is employed as a corporal with the Guilford County Sheriff’s Office. Corporal Riddle conducted an investigation in September 2010. While Corporal Riddle was interviewing Valerie, she threatened and pushed staff at ACE. He determined that the allegations were not “prosecutable” because the initial investigation found the allegations unsubstantiated because of inconsistent statements made by Valerie. Testimony of Riddle