STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF FORSYTH 02 DHR 1751

QUEEN ESTHER HAMPTON FANT,
Petitioner,
v.
NC DEPARTMENT OF HEALTH AND HUMAN SERVICES, DIVISION OF FACILITY SERVICES, Health Care Personnel Registry Section,
Respondent. / )
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DECISION

THE ABOVE-ENTITLED MATTER was heard before the undersigned Augustus B. Elkins II, Administrative Law Judge, on December 18, 2002 in High Point, North Carolina. This case was heard after Petitioner, pursuant to N.C.G.S. § 150B and N.C.G.S. § 131E, filed a petition with the Office of Administrative Hearings for a contested case hearing.

APPEARANCES

For Petitioner: William B. Gibson

Attorney and Counselor at Law

331 High Street

Winston-Salem, North Carolina 27101

For Respondent: Jane L. Oliver, Assistant Attorney General

N.C. Department of Justice

Post Office Box 629

Raleigh, North Carolina 27602-0629

ISSUE

Whether Respondent acted erroneously, failed to use proper procedure, acted arbitrarily and capriciously or otherwise substantially prejudiced Petitioner’s right when it determined that, on or about July 2, 2002, Petitioner, a nurse aide, abused S.H., a resident of a nursing facility, by extending her right hand in a fist near the resident’s face and saying to the resident, “If you don’t shut up. I’m going to bust you in the head.”

APPLICABLE STATUTES AND RULES

N.C. Gen. Stat. §§ 131E–255 and -256

N.C. Gen. Stat. § 150B-23

42 CFR § 488.301

10 NCAC 3B.1001

EXHIBITS

The following exhibits were admitted into evidence:

Petitioner’s Exhibits 1 and 2;

Respondent’s Exhibits 1, 3, 4, 5, 6, 7, 9, 10, 11, 12, 13 and 14.

BASED UPON careful consideration of the sworn testimony of the witnesses presented at the hearing, the documents and exhibits received and admitted into evidence, 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.

FINDINGS OF FACT

1. From October 22, 2001 to July 9, 2002, and at all times relevant to this contested case, Petitioner Queen Esther Hampton Fant, a certified nurse aide (hereinafter “CNA”), was employed as a health care personnel by Arbor Acres in Winston-Salem, North Carolina. (T.p. 20).

2. Arbor Acres is a nursing home facility licensed by the State of North Carolina and as such is a health care facility as defined in N.C.G.S. 131E-256(b)(6). Arbor Acres is a continuing care facility which provides long-term residential care for the elderly, including those who have Alzheimer’s disease or other forms of dementia. Arbor Acres offers several levels of care, including assisted living levels I and II and skilled nursing care. (T pp 20, 146-47).

3. At all times relevant to this matter, Julie Hairston was employed as a CNA at Arbor Acres. (T.p. 90). At all times relevant to this matter, Ruth Paige was employed as a Charge Nurse at Arbor Acres. (T.p. 132.). At all times relevant to this matter, Valorie Jennett was employed as the Assistant Director of Nurses at Arbor Acres. (T.p. 145).

4. By the beginning of July, 2002, Ms. Fant had been involved in patient care for more than twenty of the previous thirty years. (T.p. 21). Ms. Fant enjoyed working with patients in the Alzheimer’s Unit, and she considered Arbor Acres to be a friendly, pleasant place in which to work. (T.pp.21-22).

5. Petitioner received training to become a certified nurse aide at Forsyth Technical College. Her training covered topics such as how to care for residents, how to approach residents, and how to deal with combative residents. Petitioner had been trained to talk calmly and gently to all residents. Petitioner had been trained that, if she needed any assistance with a combative or agitated resident, she should get assistance from the supervising nurse. Through her training, Petitioner understood that she should talk calmly to residents with dementia. Petitioner was aware that residents with dementia are more likely than others to have behavior problems. In her training, Petitioner had been trained not to yell at, hit, push or pull a resident. Petitioner had also been trained that both verbal and physical threats of harm to residents constitute abuse. Petitioner testified unequivocally that the act of balling one’s fist at a resident’s face while saying, “If you don’t shut up, I’m going to bust you in the head,” is resident abuse. (T pp 20, 31-32, 37-44).

6. Petitioner worked third shift (11:00 p.m. to 7:00 a.m.) on the Special Care Unit where the residents with dementia resided. Petitioner was responsible for assisting the residents during her shift. Each of the residents has a resident care plan that the nursing staff is required to read. Petitioner testified that she would just ask the nurse what type of assistance was needed by the residents. According to Petitioner, the residents did not require a lot of care on third shift. Petitioner was required to check the residents every two hours. (T pp 37, 54-58, 90, 161; Resp Exh 1).

7. On the evening of July 2, 2002, Ms. Hairston, a newly hired employee (T.p. 90, 110), was receiving on-the-job orientation training from Petitioner. (T.pp. 23, 25, 93). Ms. Hairston had worked previously as a nurse aide, but Petitioner was orienting her to the residents on the unit and to unit procedures. S.H. is a resident on the Special Care Unit. S.H. is approximately ninety-eight years old and is diagnosed with dementia and osteoarthritis. She is a small-framed woman who weighs between one hundred and one hundred ten pounds. S.H. can communicate her wants and needs to the staff through words and gestures. She can ask for food and tell the staff when she is hungry or thirsty. She is not able to get out of bed without assistance and cannot walk on her own. S.H. needs the assistance of a wheelchair and often talked about going home (T.pp. 58). S.H. often stays in bed and talks to herself. On occasion, S.H. gets frustrated and yells out. In July 2002, Petitioner had worked with S.H. for approximately eight months and was familiar with her behavior. (T pp 22-26, 31, 52-53, 57-61, 69, 90-91, 121, 141-42, 146; Resp Exh 1, 3, 6).

8. Early in the shift, one of the male residents, C.M., went into S.H.’s room. C.M. went into the closet of S.H.’s roommate and started trying on clothes. S.H. started yelling, “Get him out of my room. I don’t want him in here. He’s not supposed to be in my room.” The two aides heard patient S.H. yelling loudly from her room, a behavior which S.H. (and other residents on the Unit) had displayed on previous occasions. (T.pp. 23-24, 43-44). Petitioner and Ms. Hairston went to the room and escorted C.M. back to his room, but S.H. continued to yell. Petitioner and Ms. Hairston went back to S.H.’s room. In the company of Ms. Hairston, Ms. Fant entered S.H.’s room and, as was her custom, asked S.H. what was the problem. Petitioner tried to calm S.H. down and assure S.H. that “Everything is going to be all right.” (T.pp. 24, 39-40, 42, 61, 94.). S.H. quieted down, which was this resident’s typical reaction, although S.H. would often “start back up” as soon as Ms. Fant would leave the room. (T.p. 25, 62). After S.H. quieted down, the two aides left the room. (T pp 63, 94; Resp Exh 3).

9. Petitioner and Ms. Hairston continued making rounds with the other residents. S.H. started yelling, again. The two aides went into S.H.’s room several times to try to calm S.H. down. S.H. would stay quiet for a little while but would then start yelling, again. Ms. Hairston went in the room a couple of times by herself. The last time both Petitioner and Ms. Hairston went into S.H.’s room because of yelling, S.H. was lying in bed. Petitioner “bent over, put one hand on S.H.’s shoulder, rared (sic) the other fist back and said, ‘If you do not shut up, I’m going to bust you in the head,” to where S.H. literally pulled back.” S.H. reacted by clinching her eyes shut and pulling her head back into her pillow. Ms. Hairston testified that Petitioner spoke in a loud and mean voice and that S.H. was scared. She stated Petitioner’s fist was balled up approximately one foot from S.H.’s face. S.H. immediately became quiet and remained quiet the rest of the night. (T pp 24-25, 60-6, 94-97, 103, 112, Resp Exh 5, 6).

10. Petitioner and Ms. Hairston left the room and continued taking care of the patients. Ms. Hairston wasn’t comfortable with Petitioner’s actions but stated she “didn’t know how to handle the situation.” Ms. Hairston did not report Petitioner for abuse. She knew that what Petitioner had done was wrong but she was uncomfortable because she did not understand the chain of command. She questioned whether verbal abuse was equal to physical abuse. Ms. Hairston did not report abuse for several days, between July 2 and approximately July 8. (T pp 96-97, 99, 110, 113-15).

11. For the next few days, Ms. Fant continued to orient Ms. Hairston (T.p. 26), and she felt the two of them had enjoyed working with each other. (T.pp. 30, 62). Ms. Hairston did not confront Petitioner about what she had done. (T pp 99-100)

12. On July 8, 2002, Ms. Hairston was working third shift on the 600 hall with Ruth Paige, R.N., a third shift charge nurse at Arbor Acres. During conversation while taking a break. Ms. Hairston told Ms. Paige that she had witnessed resident abuse at Arbor Acres. Ms. Paige told Ms. Hairston that she had a duty to report any abuse which she was aware of. Ms. Hairston told Ms. Paige that she had witnessed Petitioner threaten S.H. on July 2, 2002. Ms. Hairston said that Petitioner had pulled her fist back and said, “If you don’t shut up, I’m going to bust you in the head.” Ms. Paige noted that Ms. Hairston reported that S.H. had gotten quiet in response to Petitioner’s threat. Ms. Hairston asked Ms. Paige whether her identity as the person who reported the abuse could be kept confidential. (T pp 98, 132-35, 140-41; Resp Exh 7).

13. Ms. Hairston also alleged that Ms. Fant had told her that from time to time the aide would have to “pop” a patient named D.T. to get her to stop taking her diaper off. (T.p. 118-119). Hairston made a similar allegation about patient R.F. (T.p. 119). Ms. Hairston then alleged that Ms. Fant had stated her refusal to fill the patients’ water pitchers with ice (T.p. 120), and had refused to check on a patient named J.P. every hour. (T.p. 120).

14. Ms. Paige immediately telephoned the office of Valerie Jennett, R.N., the Assistant Director of Nursing at Arbor Acres. Ms. Paige left a voice message in which she relayed the allegations which Ms. Hairston had made. Ms. Paige also went to Ms. Jennett’s office to discuss the allegations before leaving the facility that morning. Ms. Paige conceded that, other than what she was told by Ms. Hairston, she knows nothing from her direct perception as to what happened between Ms. Fant and patient S.H. (T.p. 142, 144). Ms. Paige also indicated under oath that she had never observed firsthand any undesirable behavior by Ms. Fant. (T.p. 142).

15. Ms. Jennett conducted the facility’s investigation into the allegation that Petitioner abused S.H. On July 8, 2002, Ms. Jennett questioned all the employees who had worked on the East Wing of the facility on third shift on July 1, 2002. Ms. Jennett questioned, among others, Petitioner and Ms. Hairston in her office. Ms. Hairston admitted that she was the person who had reported the abuse and told Ms. Jennett what she had witnessed. Ms. Jennett asked Ms. Hairston to write a statement describing what had happened. Ms. Hairston wrote a statement. Ms. Jennett then called Petitioner to tell her that she was being suspended pending the facility’s investigation into an allegation that she had abused a resident. Petitioner called Ms. Jennett the next day to see if she should come in to work and Ms. Jennett informed her that her employment was being terminated on the grounds that she had abused a resident. Petitioner asked how to appeal her termination and Ms. Jennett told Petitioner her appeal should be filed with the Human Resources department. (T pp 35-36, 65-66, 79-80, 82, 101-02, 133, 139, 145, 147-51, 153-54, 157, 160; Resp Exh 5, 7, 9).

16. Throughout the entire process, Ms. Fant, who is left-handed (T.p. 206), consistently denied making the threatening statement and actions reported by Ms. Hairston, or of knowing of anyone who had recently abused any of the residents at Arbor Acres. (T.pp. 22-23, 35, 66). Ms. Fant also denied making the alleged statements about having to “pop” D.T. and R.F. (T.pp. 27-28, 65), and about refusing to fill patients’ water pitchers (T.pp. 28, 64), or refusing to check on a patient named J.P. every hour. (T.p. 30, 65).