STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF DURHAM 04 DHR 1394
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SONA EKOKO MUKWELLE, )
)
Petitioner, )
)
- )
) DECISION
HEALTH CARE PERSONNEL )
REGISTRY SECTION (NURSE AIDE I), )
)
Respondent. )
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THIS MATTER came on for hearing before the undersigned James L. Conner, II, Administrative Law Judge, the 16th day of December in Raleigh, North Carolina.
APPEARANCES
Petitioner: Sona Ekoko Mukwelle, pro se
6403-205 Monterrey Creek Drive
Durham, NC 27713
For Respondent: Wendy L. Greene
Assistant Attorney General
North Carolina Department of Justice
9001 Mail Service Center
Raleigh, NC 27699-9001
ISSUE
Whether Respondent substantially prejudiced Petitioner’s rights when it substantiated the allegation that on or about April 13, 2004, Petitioner abused Brian Center of Durham resident CC by slapping the resident on the side of her head, abused resident EC by hitting the resident’s hands with his fists, and abused resident GB by hitting the resident on the side of his head while cursing at the resident.
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
10 NCAC 3B.1001
EXHIBITS
Respondent’s exhibits 1 - 10, 12, 14, 16, 17, and 18 were admitted.
FINDINGS OF FACT
In making the Findings of Fact, the undersigned has weighed all the evidence, and 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. After careful consideration of the sworn witness testimony presented at the hearing, the exhibit admitted into evidence, and the entire record in this proceeding, the undersigned makes the following Findings of Fact:
1. The Brian Center of Durham (“Brian Center”) is a nursing home in Durham, North Carolina, and therefore subject to N.C. Gen. Stat. §§ 151E-255, 256. (Resp. Exh. 14)
2. At all times relevant to this matter, Petitioner was a nursing assistant at the Brian Center. He worked during the second shift, which began at 3:00 pm and ended at 11:00 p.m. (T pp. 18,19)
3. At all times relevant to this matter Veronica Lloyd was a nurse assistant at the Brian Center. She began to work there in April 2004, and only remained for approximately one month before she resigned. Ms. Lloyd worked the second shift. (T pp. 81, 83, 110,111)
4. At all times relevant to this matter Linda Fleshman was the staffing coordinator for the Brian Center. (T p. 106)
5. At all times relevant to this matter Patricia Miller was the acting director of nurses at the Brian Center. (T pp. 120, 121)
6. At all times relevant to this matter Vickie O’Quinn was the director of nurses at the Brian Center. Ms. O’Quinn is second-in-command at the Brian Center and is responsible for monitoring staff and investigating allegations of abuse. (T p. 133)
7. Petitioner knows that resident abuse is prohibited. He understands that abuse of residents can be categorized as either physical or verbal. When he was hired at the Brian Center, Petitioner was given an orientation, which included details about the facility’s abuse prohibition, and the fact that witnessed abuse must be reported. In addition, Petitioner was provided information regarding the residents’ right to be treated with respect and dignity, and free from physical restraint. Petitioner was taught to calmly talk to combative residents to get them to comply. (T pp. 21-24,26, 27, 41; Resp. Exhs. 1, 2, 3, 4)
8. Petitioner was responsible for providing care for the residents under his care, which included, among others, feeding them and making sure they were clean. (T pp. 24, 25; Resp. Exh. 1)
9. At all times relevant to this matter, CC was a resident of the Brain Center. Petitioner regularly worked with CC, who is mobile with her wheelchair, and has both physical and mental problems. CC uses her wheelchair to travel throughout the facility. When she did this, Petitioner would only look for CC if it was time for some particular activity, such as mealtime. However to Petitioner’s knowledge, CC did not bother other residents when she wandered to other parts of the facility. (T pp. 31-35)
10. At all times relevant to this matter EC was resident of the Brian Center. Petitioner was not typically assigned to work with EC, but did work with him at times. EC has had both legs amputated, and needs a wheelchair with a belt to prevent him from falling over. EC was resistant to getting his briefs changed. Although he cannot speak, EC would hold onto the side rail of his bed with his hands and move his legs up and down in protest of getting his briefs changed. (T pp. 36, 37, 38, 90)
11. At all times relevant to this matter GB was a resident of the Brian Center. GB was not mobile. Petitioner worked with GB. He found GB to be combative to getting his briefs changed. (T pp. 39- 41)
12. On April 13, 2004, Petitioner was asked to come to work to fill in for the aide originally scheduled to work the second shift. Petitioner remembers arriving at work at 4:00 p.m. He was assigned to work on the 200 hallway of the Brian Center. Petitioner worked on that hallway with two other aides, Justice Barnes, and Veronica Lloyd. Petitioner was assigned to work rooms 203 through 207. (T pp. 43-47; Resp. Exh. 8)
13. During that evening, when Ms. Lloyd needed help changing some of the heavier residents she would ask Petitioner for help. (T pp. 85, 86)
14 At approximately 8:30 or 9:00 a.m., Ms. Lloyd asked Petitioner to help her with resident GB. GB was lying down in his bed. As they changed GB, and after Petitioner had removed GB’s brief, Petitioner began to roughly clean GB’s bottom, which was already red. Petitioner told GB “FU” when GB tried to tell Petitioner that he was hurting him. GB began to swing at Petitioner. (T pp. 48-50, 86-88)
15. On April 13, 2004 Ms. Lloyd also worked with Petitioner to provide care to resident EC. As Ms. Lloyd and Petitioner changed EC’s brief that evening, Petitioner lifted up EC’s bottom in the manner adults use to change infants or young children. EC held onto the side bed rail. Ms. Lloyd saw Petitioner repeatedly hit EC’s hand with a fist to get EC to release the bed rail so they could continue to change him. EC let go of the bed rail. (T pp. 89, 91, 92; Resp. Exh. 9)
16. Also on April 13, 2004, as Ms. Lloyd and Petitioner were in GB’s room feeding GB, resident CC wandered into the room in her wheelchair. As CC entered the room, Petitioner pulled the chair into the room, out of view of the nurse’s station, hit CC on the side of her head with the palm of his hand, and pushed her back out into the hallway. CC began to whine and hold her hands in a posture to protect herself from being hit in the head again. (T pp. 93, 94; Resp. Exh. 9)
17. During the morning of April 14, 2004, Ms. Lloyd called the facility to report what she had seen Petitioner do to the residents. She spoke to Linda Fleshman and Patricia Miller. Ms. Fleshman remembers that Ms. Lloyd told her she was upset and had not been able to sleep. (T pp. 95, 96, 108: Resp. Exh. 9)
18. During the afternoon of April 14, 2004, Patricia Miller, acting director of nursing, met with Ms. Lloyd about the incidents involving Petitioner and the residents. Ms. Lloyd was tearful during their meeting and expressed fear and concern. (T pp. 122, 123; Resp. Exh. 11)
19. When Petitioner arrived for work later that day, Ms. Miller asked him to clock out and leave the facility pending an investigation into allegations of abuse. (T pp. 123, 124)
20. On April 13 and 14, 2004 Vickie O’Quinn, assistant director of nurses, was on medical leave. She received a report of the allegations of abuse against Petitioner because someone telephoned her at her home. When she returned to work on Monday April 19, 2004, she also received a verbal report on the facility investigation, and a draft 5-Working Day report the facility is required to forward to Respondent. Ms. O’Quinn completed the facility investigation. She spoke to the Petitioner in person, interviewed residents on the 200 hallway. The Brian Center substantiated the allegations against Petitioner. (T pp. 134, 135; Resp. Exh. 14)
21. At all times relevant to this matter, Chery Guinan was the Health Care Personnel Registry/Nurse Aide Registry assigned to investigate allegations in Durham. Ms. Guinan received report on and investigated the allegations of abuse against Petitioner. (T p. 149; Resp. Exh. 14)
22. Ms. Guinan informed Petitioner that there would be an investigation, and reviewed the residents’ medical records, staff time sheets, and the facility documents on the incident along with Petitioner’s personnel file, and spoke to people who would have had any knowledge of the incident. Ms. Guinan interviewed Ms. Lloyd, Ms. Fleshman, attempted to speak to the residents, and spoke to Petitioner. Through her review of the residents’ medical records, Ms. Guinan discovered that the protocol to deal with resistant behaviors from all three residents, (EC, CC, and GB), was to continue to speak to them, repeat the request, give them time to respond, be patient and calm, particularly with resident CC, and redirect. During her interview with Ms. Lloyd, Ms. Guinan observed her demeanor and concluded that Ms. Lloyd was still upset about what she had witnessed. (T pp. 149-157)
23. Abuse is the willful infliction of injury, unreasonable confinement, intimidation or punishment with resulting physical harm, pain or mental anguish. Petitioner failed to follow the protocols for those residents, and the residents’s reactions were indications of harm to them. Ms. Guinan substantiated the allegations that Petitioner abused EC, CC, and GB by hitting them and cursing at GB. (T pp. 158-159; Resp. Exh. 16)
24. Ms. Guinan sent Petitioner notice that the investigation resulted in substantiated findings of abuse. (Resp. Exh. 17)
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 nursing assistant working in a nursing home, Petitioner is subject to the provisions of N.C. Gen. Stat. §§ 131E-255, 246.
4. “Abuse” is defined as “the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish.” 10 NCAC 3B.1001; 42 CFR Part 488.301.
5. On or about April 13, 2004, Petitioner Sona Ekoko Mukwelle abused Brian Center of Durham resident CC by slapping the resident on the side of her head, abused resident EC by hitting the resident’s hands with his fists, and abused resident GB by hitting the resident on the side of his head while cursing at the resident.
6. In substantiating the allegations of abuse, Respondent did not prejudice Petitioner’s rights because the greater weight of the evidence supports the substantiations.
DECISION
Based on the foregoing Findings of Fact and Conclusions of Law, the Respondent’s decision to place findings of abuse at Petitioner’s name on the Nurse Aide Registry and Health Care Personnel Registry is 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 25th day of April, 2005.
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James L. Conner, II
Administrative Law Judge
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