STATE OF NORTH CAROLINA

COUNTY OF ROBESON


IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

10 DHR 05653

______

6

IVY KEARNEY,

Petitioner,

v.

N.C. DEPARTMENT OF HEALTH AND HUMAN SERVICES, DIVISION OF HEALTH SERVICE REGULATION,

Respondent.

))))))))))

)

DECISION

6

______

THIS MATTER came for hearing before the undersigned, Melissa Owens Lassiter, Administrative Law Judge presiding, on December 14, 2011, at the Cumberland County Detention Center, 204 Gillespie Street, Fayetteville, North Carolina.

APPEARANCES

For Petitioner: Ivy Kearney, pro se

Post Office Box 741

Fair Bluff, NC 28439

For Respondent: Derek L. Hunter

Assistant Attorney General

North Carolina Department of Justice

Post Office Box 629

Raleigh, NC 27602-0629

ISSUE

Whether Respondent substantially prejudiced Petitioner’s rights and acted erroneously when Respondent substantiated the allegation that Petitioner neglected a resident (B.E.) of Family Alternatives, Inc./Bladen Group Home #1 in Bladenboro, North Carolina, by failing to use the proper techniques when dealing with an uncooperative resident, resulting in injury to the resident, and listed said finding on the North Carolina Health Care Personnel Registry (“HCPR”)?

APPLICABLE STATUTES AND RULES

N.C. Gen. Stat. § 131E-256

N.C. Gen. Stat. § 150B-1, et seq.

42 CFR § 488.301

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

EXHIBITS ADMITTED INTO RECORD

Petitioner did not admit any exhibits into the record.

Respondent’s Exhibits 1 – 19 were admitted into the record.

WITNESSES

For Petitioner: None

For Respondent:

Joni Thomas, MSW (Residential Coordinator, Bladen Group Home #1)

Ivy Kearney (Petitioner)

Margaret Martin, RN (Investigator, Health Care Personnel Registry)

FINDINGS OF FACT

After careful consideration of the witnesses’ sworn testimony at hearing, the entire record in this proceeding, and after weighing all the evidence and assessing the credibility of the witnesses, the undersigned finds as follows:

1. At all times relevant to this matter, Ivy Kearney (“Petitioner”) was an unlicensed health care personnel—namely, a Residential Support Specialist—at Family Alternatives, Inc./Bladen Group Home #1 in Bladenboro, North Carolina. As an unlicensed health care personnel, Petitioner is subject to the purview of N.C.G.S. § 131E-256.

2. Bladen Group Home #1 is a residential facility, as defined in N.C. Gen. Stat. § 122C-3(14)(e), and is therefore subject to N.C. Gen. Stat. § 131E-256.

3. Petitioner’s duties as a residential support specialist included, among other things, assisting in providing direct care to residents, cooking, cleaning, and administering medications. (Resp. Exhs. 4 and 17)

4. Petitioner received training in abuse, neglect, clients’ rights, and North Carolina Intervention (NCI), among other things, and received a copy of Bladen Group Home’s policies regarding clients’ rights, and harm, abuse, or exploitation. (Resp. Exhs. 5, 6, and 8)

5. Pursuant to Petitioner’s training and Bladen Group Home’s policy on clients’ rights, at a minimum, a resident has the right to accept or refuse services and/or treatment. (Resp. Exh. 8)

6. At all times relevant to this matter, B.E. was a 62-year-old female resident of Bladen Group Home #1, with primary diagnoses of schizoaffective disorder (bipolar type) and mild mental retardation. (Resp. Exh. 11)

7. On May 29, 2010, Petitioner was preparing to take the five (5) residents of Bladen Group Home #1 on an outing to the park after dinner to exercise. Accordingly, Petitioner instructed B.E. to get dressed for said outing. (Resp. Exhs. 13 – 17)

8. The other residents boarded the facility’s van to go to the park. However, B.E. refused to go to the park, and retreated to her bedroom. When Petitioner entered B.E.’s bedroom, B.E. was lying on the bed. Petitioner attempted to force B.E. to leave the room by grabbing B.E. by the forearm, and pulling her to a sitting position. B.E. and Petitioner struggled. B.E. was eventually able to break free from Petitioner, and ran outside the facility. (Resp. Exhs. 15 and 17)

9. When B.E. reached the outside porch of the facility, she wrapped her arms around the railing of the porch so that she would not have to go to the park. Upon reaching the porch, Petitioner grabbed B.E. by the arms, and struggled with B.E. in an attempt to pry B.E.’s arms from around the porch railing. After successfully releasing B.E.’s grasp from the railing, Petitioner grabbed B.E. by her right arm, and led her in the direction of the van. (Resp. Exhs. 13 – 15, and 17)

10. B.E. acquiesced, boarded the facility’s van, and accompanied Petitioner and the other residents to the park. (Resp. Exhs. 14 – 17)

11. As a result of Petitioner’s use of force on B.E., B.E. suffered bruises to her right arm and left hand. (Resp. Exhs. 1, 2, and 13 – 17)

12. The procedure for intervening with a combative resident at Bladen Group Home #1 was to call the Group Home Manager. Petitioner did not call the Group Home Manager to intervene with B.E. (Resp. Exh. 14)

13. After conducting an internal investigation, Joni Thomas (“Thomas”), Residential Coordinator for Bladen Group Home #1, substantiated a finding of resident abuse against Petitioner. Petitioner was terminated from employment, and a report regarding the incident was submitted to the HCPR. (Resp. Exhs. 1, 2, and 9)

14. Petitioner acknowledged that it was B.E.’s right to refuse to go to the park. Petitioner admitted that she violated the policies and procedures of Bladen Group Home #1 and B.E.’s rights by using physical force to compel B.E. to go to the park. Petitioner expressed remorse for her actions and the harm she caused to B.E.

15. The HCPR investigates allegations against unlicensed health care personnel working in health care facilities in North Carolina. The allegations investigated by HCPR include, but are not limited to, abuse, and neglect. With the exception of a finding of a single instance of neglect, substantiated findings against health care personnel are permanently listed on the HCPR. N.C.G.S. § 131E-256.

16. Upon receipt of the allegations against Petitioner by Bladen Group Home #1, Margaret Martin (“Martin”), Investigator for HCPR, determined that the matter required further investigation.

17.  After making this determination, Ms. Martin informed Petitioner, by certified letter dated August 27, 2010, that an investigation would be conducted regarding the allegation that Petitioner had abused and neglected B.E. (Resp. Exh. 3)

18. At all times relevant to this matter, Martin, a Registered Nurse, was employed as an investigator for the HCPR. She is charged with investigating allegations, including abuse, and neglect, against unlicensed health care personnel in Bladen County, North Carolina. Martin conducted the investigation into the allegation against Petitioner.

19. As a part of her investigation, Martin visited Bladen Group Home #1, reviewed Petitioner’s personnel file and B.E.’s medical records., and interviewed Thomas, B.E., Petitioner, and Resident J.W., among others. (Resp. Exhs. 12 and 18)

20. Based on her investigation, Martin determined that Petitioner neglected B.E. by failing to use the proper techniques when dealing with an uncooperative B.E., resulting in physical injury to B.E. Accordingly, Martin substantiated the allegation of neglect against Petitioner and notified Petitioner of same by certified letter dated January 12, 2011. (Resp. Exhs. 18 and 19)

21. At the contested case hearing, Petitioner acknowledged that she admitted to Investigator Martin that she used force to make resident BE get on the van. Petitioner acknowledged that the force she used could have caused bruises on BE. Petitioner apologized, but explained that she did not maliciously intend to hurt BE. She takes the residents of Bladen Group Home # 1 to her mother’s home every third Sunday to eat. She treats everyone the same way. She loves her job, and wants to pursue a career in this field.

CONCLUSIONS OF LAW

Based upon the foregoing Findings of Fact, the undersigned Administrative Law Judge concludes:

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. Pursuant to N.C. Gen. Stat. § 131E-256, the North Carolina Department of Health and Human Services (“Department”) is required to establish and maintain a health care personnel registry that contains the names of all unlicensed health care personnel working in health care facilities in North Carolina who are subject to a finding by the Department that they, among other things, abused or neglected a resident in a health care facility, or have been accused of such an act if the Department has screened the allegation and determined that an investigation is warranted.

4. Bladen Group Home #1 is a residential facility as defined in N.C. Gen. Stat. § 122C-3(14)(e), and is therefore subject to N.C. Gen. Stat. § 131E-256.

5. As an unlicensed health care personnel employed by a residential facility, Petitioner is also subject to the purview of N.C. Gen. Stat. § 131E-256.

6. “Neglect” means the failure to provide goods and services necessary to avoid physical harm, mental anguish, or mental illness. 10A N.C.A.C. 13O .0101(10); 42 CFR § 488.301.

7. The preponderance of the admissible evidence in the record shows that Petitioner neglected B.E. by failing to use the proper techniques when dealing with an uncooperative B.E., resulting in physical injury to B.E. Therefore, Respondent’s action to substantiate the allegation of neglect against Petitioner is supported by a preponderance of the evidence.

8. Petitioner failed to meet her burden to prove that Respondent substantially prejudiced Petitioner’s rights and acted erroneously when Respondent substantiated the allegation that Petitioner neglected a resident (B.E.) of Family Alternatives, Inc./Bladen Group Home #1 in Bladenboro, North Carolina; to wit, Petitioner failed to prove that Respondent failed to use the proper techniques when dealing with an uncooperative resident, resulting in physical injury to the resident, and by listing said finding on the North Carolina Health Care Personnel Registry.

9. Pursuant to N.C. Gen. Stat. § 131E-256(i) and (j), Petitioner may petition Respondent to remove the finding of neglect by Petitioner’s name after one year from the entry of such finding.

DECISION

Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby determines that Respondent’s decision to list the substantiated finding of neglect against Petitioner on the North Carolina 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 Services, Division of Health Service Regulation. The Agency is required to give each party an opportunity to file exceptions to the recommended decision by the Administrative Law Judge and to present written arguments to those in the Agency who will make the final decision. N.C.G.S. § 150-36(a). The Agency is required to serve a copy of the final decision on all parties and to furnish a copy to the parties’ attorneys of record and to the Office of Administrative Hearings. N.C.G.S. § 150B-36(b3).

In accordance with N.C.G.S. § 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 20th day of February, 2012.

______

Melissa Owens Lassiter

Administrative Law Judge

6

6