STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF VANCE 00 DHR 1017

AUDREY E. ALSTON, )

Petitioner, )

)

v. )

) RECOMMENDED DECISION

NORTH CAROLINA DEPARTMENT )

OF HEALTH AND HUMAN SERVICES, )

DIVISION OF FACILITY SERVICES, )

Respondent. )

This matter was heard before Beecher R. Gray, Administrative Law Judge, on April 20, 2001 in Oxford, North Carolina.

APPEARANCES

Audrey E. Alston

PO Box 5018

Henderson, NC 27536

Pro se Petitioner

June S. Ferrell

Assistant Attorney General,

North Carolina Department of Justice

PO Box 629

Raleigh, NC 27602

Counsel for Respondent

ISSUE

Whether Respondent:

1. otherwise substantially prejudiced Petitioner’s rights; or

2. acted erroneously;

when Respondent notified Petitioner of its intent to enter a finding enter a finding of abuse by Petitioner of a health care facility resident in the Health Care Personnel Registry.

APPLICABLE STATUTES AND RULES

N.C. GEN. STAT. § 131E-256

N.C. GEN. STAT. § 150B-23

10 NCAC 3B .1001(1)

EXHIBITS

The following exhibits were admitted into evidence:

1. Respondent’s Exhibit #1 Statement of Petitioner dated May 22, 2000

2. Respondent’s Exhibit #2 HCPR Interview of Petitioner dated July 11, 2000

3. Respondent’s Exhibit #3 Letter to Petitioner from Respondent dated September 19, 2000

4. Respondent’s Exhibit #4 Statement of Linda Morris dated May 22, 2000

5. Respondent’s Exhibit #5 Statement of Charlie Taborn dated May 22, 2000

6. Respondent’s Exhibit #6 Individual Program Plan for Resident D.K.

7. Respondent’s Exhibit #7 Advocacy Services Reference Data Report dated May 25, 2000

8. Respondent’s Exhibit #8 HCPR Investigative Conclusion

Based upon the documents filed in this matter, exhibits admitted into evidence and the sworn testimony of the witnesses, the undersigned makes the following:

FINDINGS OF FACT

1. At all times relevant to this contested case, Petitioner was employed as a Health Care Technician I in Meadowview Cottage at Murdoch Center in Butner, North Carolina. Tr pp 8-9, l. 6-5.

2. Murdoch Center is a state operated health care facility.

3. At all times relevant to this contested case, Cathy Brinkman was employed as the Division Director of Meadowview Cottage at Murdoch Center. Tr p 48, l. 9-24.

4. At all times relevant to this contested case, Linda Morris was employed as a Youth Program Assistant II in Meadowview Cottage at Murdoch Center. Tr pp 28-29, l. 3-24.

5. At all times relevant to this contested case hearing, Charlie Taborn was employed as the Third-Shift Supervisor in Meadowview Cottage at Murdoch Center. Tr p 39, l. 7-24.

6. At all times relevant to this contested case hearing, Roosevelt Ettson was employed as a health care worker in Meadowview Cottage at Murdoch Center. Tr p 71, l. 11-18.

7. When Petitioner reported to work on April 23, 2000, she was sick. Tr pp 9-12, l. 6-9.

8. On or about April 23, 2000, Resident D.K. had gotten out of her bed and was disturbing her roommate. Petitioner entered D.K.’s room to provide care to her. Petitioner placed D.K. back into her bed and then restrained her by tying her arm to the bed with a sheet. Tr pp 9-13, l. 6-14.

9. Petitioner’s physical condition worsened and she had to leave work early. Tr pp 9-13, l. 6-14.

10. On the evening of April 23, 2000, Petitioner and Ms. Morris were assigned to provide care to the female residents in Meadowview Cottage. Initially, Ms. Morris was assigned to handle the general duties and Petitioner was to provide direct resident care. After Petitioner left work, Ms. Morris assumed the direct resident care duties. Tr pp 30-32, l. 9-9.

11. While making rounds, Ms. Morris went into D.K.’s room. D.K. was asleep. When Ms. Morris removed D.K.’s cover, she found D.K.’s right arm tied to the bed rail with a sheet. Ms. Morris was unable to untie the sheet; however, Mr. Ettson untied D.K. Tr pp 32-34, l. 6-2; p 73, l. 20.

12. Petitioner admitted that she tied D.K.’s arm to the bed; however, Petitioner testified that she tied D.K. to the bed to protect D.K. Tr p 22, l. 5-20.

13. Neither Ms. Morris nor Mr. Ettson observed any behavior by D.K. that would have required intervention by the staff in order to protect D.K. Tr p 33, l. 21-24; pp 73-74, l. 12-11.

14. At Murdoch Center, a resident may not be restrained unless there is a physician’s order for such restraint. On April 23, 2000, there was no physician’s order which would have authorized Petitioner to confine D.K. to her bed. Tr p 19, l. 2-12; p 26, l. 2-22; p 53, l. 2-6; p 55, l. 4-8.

15. Mr. Taborn reported the alleged abuse to Ms. Brinkman. On behalf of Murdoch Center, Ms. Brinkman and Maureen Crews, a resident advocate at Murdoch Center, conducted an in-house investigation into the allegation of abuse of D.K. by Petitioner. Ms. Crews reported the allegation of abuse to Health Care Personnel Registry Section , Division of Facility Services, NC Department of Health and Human Services. Tr pp 45-46, l. 19-2; p 49, l. 5-12; p 57, l. 7-10.

16. Barbara Powell, a nurse investigator with Respondent, screened the report submitted by Murdoch Center with respect to the allegation of abuse of D.K. by Petitioner and concluded that the allegation warranted an investigation. Tr pp 61-62, l. 22-21.

17. Ms. Powell investigated and substantiated the allegation of abuse against Petitioner. Tr p 67, l. 11-22.

18. By letter dated September 19, 2000, and sent via certified mail on the same date, Respondent notified Petitioner that the Department had substantiated an allegation of abuse of Resident D.K. by Petitioner and that the substantiated finding would be entered into the Health Care Personnel Registry. The letter also notified Petitioner of her right to contest the entry of the substantiated finding of abuse in the Health Care Personnel Registry. R.Ex. 3.

19. The definition of abuse applicable to the incident that occurred on or about April 23, 2000, pursuant to 10 NCAC 3B .1001(1) is as follows:

(1) “Abuse” means the willful infliction of injury, unreasonable confinement, intimidation or punishment with resulting physical harm, pain, or mental anguish.

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. The North Carolina Department of Health and Human Services, Division of Facility Services, Health Care Personnel Registry Section is required by N.C. Gen. Stat. § 131E-256 to maintain a Registry that contains the names of all health care personnel working in health care facilities who have a substantiated finding of resident abuse, resident neglect, misappropriation of resident property, misappropriation of facility property, diversion of resident drugs, diversion of facility drugs, fraud against a resident or fraud against a facility.

4. As a health care personnel, Petitioner is subject to the provisions of N.C. Gen. Stat. § 131E-256.

5. Murdoch Center is a state operated health care facility as defined in N.C. Gen. Stat. §131E-256(b)(7).

6. On or about April 23, 2000, Petitioner abused Resident D.K. when Petitioner restrained her in the bed by tying her right arm to the bed with a sheet.

7. Respondent did not err in substantiating the finding of abuse against Petitioner.

RECOMMENDED DECISION

That the North Carolina Department of Health and Human Services, Division of Facility Services, Health Care Personnel Registry Section did not err when it notified Petitioner of its intent to enter a substantiated finding of abuse against the Petitioner in the Health Care Personnel Registry.

ORDER

It is hereby ordered that the agency serve a copy of the FINAL DECISION on the Office of Administrative Hearings, 6714 Mail Services Center, Raleigh, NC 27699-6714, in accordance with N.C. Gen. Stat. § 150B-36(b).

NOTICE

The Agency making the final decision in this contested case is required to give each party an opportunity to file exceptions to this recommended decision and to present written arguments to those in the agency who will make the final decisions. 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.

The agency that will make the final decision in this contested case is the North Carolina Department of Health and Human Services, Division of Facility Services.

This the 14th day of June, 2001.

______

Beecher R. Gray

Administrative Law Judge

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