ADMINISTRATIVE HEARINGS
COUNTY OF STANLY / 11 DHR 9776
DWIGHT DUNCAN, / )))))))))) / DECISION
Petitioner,
v.
NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, DIVISION OF HEALTH SERVICE REGULATION, HEALTH CARE
PERSONNEL REGISTRY,
Respondent
.
.
THIS MATTER came on for hearing before the undersigned, Selina M. Brooks, Administrative Law Judge, on January 11 and January 19, 2011, in Charlotte, North Carolina.
APPEARANCES
For Petitioner: Kirk J. Angel
The Angel Law Firm, PLLC
Post Office Box 692
6471 Morehead Rd.
Harrisburg, NC 28075
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 six residents of Monarch in Albemarle, NC 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
Petitioner’s exhibits 1-2, 14-16, 18-19, 21-22, 28-30, 32, 35 were admitted into the record.
Respondent’s exhibits 1-4, 11-17, 19-31, 33, 36, 39, 41, 44, 47-52, 55-56 were admitted into the record.
WITNESSES
Dwight Duncan (petitioner)
Karen Smith (co-worker)
Whitney Benson (co-worker)
Aeon Cantora Branham Ewing (supervisor)
Amanda Nicholson (supervisor)
Sheila Brown (supervisor)
Kathy Moshman (HCPR Nurse 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, Dwight Duncan, was a Developmental Specialist at Monarch - A Unique Perspective (“Monarch”) in Albemarle, North Carolina. Monarch is a health care facility and therefore subject to N.C. Gen. Stats. §131E-255 and §131E-256. (T p. 66; Resp’t. Ex. 14)
2. Petitioner was trained on client rights including abuse, neglect of residents and vehicle operations. Petitioner was also trained and made aware of facility personnel policies relating to patient safety, and transportation. (T. pp. 68-69, 71-73; Resp’t. Exs.15, 18)
3. Petitioner is aware that he is required to follow facility safety procedures. Petitioner is also aware of Monarch’s prohibition on using cell phones while driving; ensuring passengers are belted into their seats; and not speeding. (T pp. 66-67, 73, 79; Resp’t Ex. 14)
4. As part of his position at Monarch, Petitioner’s job duties included transporting residents and maintaining a safe working environment for residents. (T. p. 68)
5. Petitioner was one of two day shift staff members assigned to transport Resident MW and five other residents in a Monarch passenger van on March 15, 2011. Petitioner was the driver. As the driver, Petitioner was responsible for ensuring all residents were secured in their seats prior to driving and at all times. Monarch’s transportation policy requires that all passengers traveling in vehicles operated under Monarch’s corporate business shall follow North Carolina’s seatbelt laws. This policy specifies under NC law, seatbelt use is mandatory and all drivers, front seat passengers, and back seat passengers must wear seatbelts. (T. pp. 73, 75-77; Resp’t. Exs. 4, 24)
6. At all times relevant to this proceeding, Residents MW, AL, DSL, JL, AA and RD have been residents of Monarch. The residents are taken on Meals on Wheels runs as part of their developmental plans. (T. pp. 17-18, 75; Resp’t Exs. 24, 52)
7. Petitioner has worked with the Residents in the past. Petitioner was trained on the residents’ behaviors. Petitioner was also aware that residents had to be secured prior to transport. (T. pp. 67-73; Resp’t Exs. 14-17, 24)
8. Cherye Melton (“Melton”) was the other day shift staff member assigned to assist with transport on March 15, 2011. At all times relevant to this proceeding, Melton has been a Developmental Specialist with Monarch. During transport, Melton was jointly responsible for making sure the residents in the van were secured in their seats. (T. pp. 73-75; Resp’t. Ex. 13)
9. Karen Smith (“Smith”) was shadowing Petitioner and Melton on March 15, 2011. Petitioner and Melton were supposed to be training Smith on how to perform her job duties on this date. At all times relevant to this proceeding, Smith was an employee of Monarch in Albemarle, North Carolina. On March 15, 2011 Smith had finished orientation and on her second day around residents. (T. pp. 78, 88, 92, 113; Resp’t. Exs. 29)
10. After all the residents were in the van, Smith noticed the residents were not buckled into their seatbelts and asked Petitioner why the residents were not buckled. Petitioner responded that the residents would take the seatbelts off. Melton did not respond. (T. pp. 76, 87, 113-114; Resp’t Ex. 27)
11. During the trip, Petitioner drove and Melton sat in the front seat. Smith was seated directly behind Melton. Smith was seated in a position where she could see the speed at which Petitioner was operating the vehicle. (T. pp. 87, 115, 132, 148; Resp’t. Exs. 12, 27, 28, 29)
12. Smith observed Petitioner speeding while driving the van throughout the trip. Based on Smith’s observations, Petitioner exceeded posted speed limits in the areas they were driving. (T. pp. 114, 120-121, 128; Resp’t. Exs. 27, 28, 29)
13. Smith also saw Petitioner using his personal cell phone for the majority of the trip. Smith overheard Petitioner discussing an upcoming weekend trip. (T. pp. 115-116, 120-121, 129; Resp’t. Exs. 27, 29)
14. During the course of the Meals on Wheels trip Petitioner got lost a number of times. Petitioner used his cell phone to call for directions. Smith observed Melton using her cell phone for personal calls and as a GPS. (T. pp. 116-117; Resp’t. Ex. 29)
15. At all times relevant to this proceeding, Whitney Benson (“Benson”) and Jennifer Gaddy (“Gaddy”) were employees of Monarch in Albemarle, North Carolina. Benson and Gaddy received missed calls from Petitioner on March 15, 2011. (T. pp. 156-157; Resp’t. Exs. 25-26)
16. During the trip Petitioner was on his cell phone waiting for a call or text from Gaddy and Benson. Petitioner did not put any resident in their seatbelt. Petitioner did not see Melton attempt to put any resident in their seatbelt. (T. pp. 88-91; Resp’t Ex. 23)
17. At some point during the trip, Smith heard a thud and turned around to see Resident MW on the floor of the van. Smith alerted Petitioner who pulled over. When Smith was unable to help Resident MW back into his seat, Petitioner helped put Resident MW back into his seat. (T. pp. 114, 116-117; Resp’t. Exs. 28, 29)
18. On March 16, 2011, Smith contacted Amanda Nicholson (“Nicholson”) and informed her of her observations. At all times relevant to this proceeding, Nicholson was the Quality Management Coordinator at Monarch in Albemarle, North Carolina. (T. pp. 138-140, 198-199; Pet’r Ex. 15; Resp’t. Exs. 27, 30-31)
19. Nicholson notified her supervisor. At all times relevant to this proceeding, Sheila Brown (“Brown”) was the Qualified Professional at Monarch in Albemarle, North Carolina. (T. pp. 200, 226-227; Resp’t Ex. 49)
20. After becoming aware of this information, Brown filled out an incident response improvement system report (IRIS) which was sent to the Health Care Personnel Registry (“HCPR”). The facility immediately began an investigation. As part of the facility investigation, multiple statements were taken from Petitioner, Melton, and Smith. Resident DSL was also interviewed. (T. pp. 83, 228-238, 240-241; Resp’t. Exs. 11-12, 22-23, 27-28, 33, 39, 41, 44, 47-49)
21. Following the investigation, Brown made recommendations for corrective action. Petitioner was terminated by Monarch for failing to adhere to policy in transporting the Residents. (T. pp. 239-240; Resp’t. Exs. 48-49)
22. At all times relevant to this matter, Kathy Moshman (“Nurse Investigator Moshman”) was a nurse investigator with the Health Care Personnel Registry. As a nurse investigator, Nurse Investigator Moshman is charged with investigating allegations against health care personnel in the South Central Region of North Carolina, including Stanly County. Accordingly, she received and investigated the allegation that Petitioner had neglected the Residents at Monarch. (T. pp. 276-278)
23. Nurse Investigator Moshman reviewed facility documents and conducted her own investigation which included interviewing people involved with the incident and investigation; reviewing the Residents’ medical documentation; Petitioner’s personnel file; and reviewing the facility’s policies. (T. p. 280-286; Resp’t. Exs. 1- 4, 13, 17, 24-26, 29, 31, 48-52)
24. Nurse Investigator Moshman found inconsistencies in Petitioner’s statements: Petitioner initially indicated that all the residents were seated on the van and buckled in. Petitioner then indicated that he saw Residents S, J and A buckled in, and Residents M, E, A, R and J had to be buckled in by staff. Petitioner next stated that before leaving Monarch, Smith asked him if all the residents needed to have their seatbelts fastened. Petitioner indicated that the person not driving was responsible for making sure seatbelts were fastened, however, Petitioner stated that he saw Melton sitting by him in the passenger seat not doing anything. Petitioner also said it was not normal practice to put the person shadowing in the back but did not question the seating when he saw Melton in the front and Smith in the back. Finally, after stating that the role of the person shadowing was to be taught how to do seatbelts, report falls, and facility cell phone policy, Petitioner did not show Smith how to fasten seatbelts, report falls, and used his cell phone. (T. pp. 301-302, 304-306; Resp’t Exs. 24, 55)
25. Based on her review of all the information, Nurse Investigator Moshman concluded that contrary to facility policy and the precautions in place at the time to ensure the Residents’ safety, Petitioner did not ensure that the Residents were properly belted into their seats before driving and during driving. Nurse Investigator Moshman documented her conclusions in an investigation conclusion report. (T. pp. 307-310; Resp’t. Ex. 55)
26. Following the conclusions of her investigation, Nurse Investigator Moshman notified Petitioner of her decision to substantiate the allegation of neglect. (T. p. 313; Resp’t. Ex. 56)
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 developmental specialist 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 March 15, 2011, Dwight Duncan, a Health Care Personnel, neglected six (6) residents by failing to follow safety procedures or policies (fasten the seatbelts, speeding and talking on the cell phone while driving) resulting in potential for serious physical harm.
6. Respondent did not act erroneously because there is sufficient evidence to support Respondent’s conclusion that Petitioner neglected six Residents.
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 Health Service Regulation.
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.