STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF WAYNE 00 DHR 1310

MILDRED WILLIS, )

Petitioner, )

)

v. )

) RECOMMENDED DECISION

AVANTE OF WILSON, )

N.C. DEPARTMENT OF HEALTH AND )

HUMAN SERVICES, )

Respondent. )

This matter was heard before James L. Conner, II, Administrative Law Judge, on December 1, 2000, in New Bern, North Carolina.

APPEARANCES

For Petitioner: Mildred Willis, pro se

Fremont, North Carolina

For Respondent: Jane L. Oliver, Assistant Attorney General

Raleigh, North Carolina

ISSUES

Whether Respondent acted erroneously, failed to use proper procedure, or acted arbitrarily or capriciously when it determined that, on or about January 23, 2000, Petitioner, a nurse aide, neglected a resident, Y.J., of Avante of Wilson, a nursing facility, by: (1) refusing to provide the resident with a bed pan, telling the resident to void in her diaper rather than giving the resident assistance with the bed pan, (2) telling the resident not to use the call light, and (3) not providing water to the resident when the resident requested it.

APPLICABLE STATUTES AND RULES

N.C. Gen. Stat. § 131E-255 and § 131E-256

N.C. Gen. Stat. § 150B-23

42 CFR § 483.156

42 CFR § 488.335(d)(1)

10 NCAC 3B.1001

EXHIBITS

The following exhibits were admitted into evidence without objection: Petitioner’s Exhibits 1, 2, and 3; Respondent’s Exhibits 1, 2, 3, 5, 6, 7, 8, 9, 15, 16, and 17.

FINDINGS OF FACT

Based upon the exhibits admitted into evidence and the sworn testimony of the witnesses, the undersigned makes the following findings:

1. Petitioner was employed as a nurse aide at Avante of Wilson in Wilson, North Carolina from August 1999 through January 2000. (T p 7)

2. Avante of Wilson is a long-term care facility which provides both skilled nursing level and rehabilitative care. (T p 47)

3. Petitioner received training to become a nurse aide at Wayne Community College in 1999. Petitioner’s training included instruction in resident care and resident rights. Petitioner was aware that the residents of nursing facilities have the right to be free from abuse and neglect and that residents have a right to request assistance when assistance is needed. Petitioner received additional training through her employment at Avante of Wilson. During her employee orientation, Petitioner viewed instruction videos which covered the proper way to care for residents and the facility’s policy on resident rights. Petitioner was also given a copy of the federal law on resident rights and was given an opportunity to read the list of rights and to ask questions. (T pp 8-12, 91-93; Resp Exh 1)

4. On January 22, 2000, Petitioner worked the 3:00 p.m. to 11:00 p.m. shift at Avante of Wilson. Petitioner was assigned to provide care to the resident, Y.J. (T pp 12-13; Resp Exh 2)

5. Y.J., who had worked as a nurse aide at one time, had end-stage renal disease and received dialysis three times a week. Y.J. also suffered from cardiac problems. Y.J. was alert and oriented with no memory or cognition problems. She had been admitted to Avante for short-term rehabilitation following hospitalization. Upon admission, Y.J. was very weak: she needed assistance with bathing, dressing, and moving about, although she could feed herself with some assistance. The purpose of the admission was to restore Y.J.’s strength so that she could return home. Also, Y.J. was receiving treatment for a stage II decubitis ulcer. Y.J. had a very supportive husband and family who visited her often. (T pp 17, 32, 48-49, 51, 53-55)

6. Towards the end of Petitioner’s shift on January 22, 2000, shortly before 11:00 p.m., Sandra Hamilton, another nurse aide working at the facility, walked onto to Y.J.’s hall to do a spot check. Ms. Hamilton was beginning her shift on that hall and she was checking to make sure that the staff on the earlier shift had done everything that they were supposed to have done. (T pp 17, 23-24; Resp Exh 5)

7. As Ms. Hamilton was walking down the hall, she heard Y.J. say, “I’m tired of it. I’ve been wet and dirty all night. You keep saying that you’re coming back and you haven’t come back. You told me you were going to dry me up earlier.” (T pp 24-25; Resp Exh 5)

8. Ms. Hamilton went to Y.J.’s room and stood in the doorway. She asked, “What’s wrong? What’s going on?” Y.J. said that she had diarrhea and that she had been waiting all night to get cleaned up and changed. Petitioner, who was standing at the foot of Y.J.’s bed, said, “No, you have not been waiting” and “My time is up.” Ms. Hamilton told Petitioner that she could not leave because she had five more minutes to work in her shift. Petitioner told Ms. Hamilton that she was not going to clean Y.J. and that Ms. Hamilton should clean her because she was coming on duty. Ms. Hamilton told Petitioner that, if Petitioner left, Ms. Hamilton would have to report her. Y.J. stated that she had to eat dinner in her dirty diaper. Dinner was customarily served to the residents between 5:30 p.m. and 6:00 p.m. (T pp 14, 26, 29, 37-38, 41-43, 81; Resp Exh 5 and 6)

9. Y.J. told Ms. Hamilton that, earlier in the shift, Petitioner had refused to give her anything to drink when Y.J. had asked for some water. Y.J. said that Petitioner had even taken Y.J.’s water pitcher away and had placed it out of Y.J.’s reach. Y.J. said that Petitioner had told her to turn around to look at the snow. When Y.J. turned back, her water pitcher was gone. Petitioner responded by saying to Y.J., “You are a liar.” Y.J. said, “I did ask for some water and you did not give me any.” Y.J. speculated that Petitioner did not want Y.J. to have any water because she might have to urinate more frequently. Ms. Hamilton saw that the pitcher was not on the bedside table where it was supposed to be but was in a cubbyhole beyond Y.J.’s reach. (T pp 26, 29, 37-38, 41-43, 81; Resp Exh 5 and 6)

10. Ms. Hamilton offered to help Petitioner and suggested that they clean and change Y.J. together. Petitioner left the room and Ms. Hamilton prepared to clean Y.J. She got a washcloth and towels and a clean gown and linens. After Petitioner left the room, Y.J. stated, “I can’t take it. I’ll be so glad when I die.” She had tears in her eyes and began to cry. Ms. Hamilton assured Y.J. that it would be okay. Ms. Hamilton told Y.J. that she would make sure she got cleaned up. Y.J. asked Ms. Hamilton not to leave her alone with Petitioner and said that Petitioner acted differently when no one else was around. (T pp 46-27, 35, 83-85; Resp Exh 5 and 6)

11. Petitioner returned to the room but acted as if she was in a hurry as the aides began to clean and change Y.J. together. Y.J. was still crying. Ms. Hamilton pulled the covers back and saw that Ms. Hamilton was wet with urine and stool. Ms. Hamilton described Y.J. as being “in a puddle of feces.” She had stool between her legs and up her back. The top sheet was saturated. Ms. Hamilton could tell by the way the sheets looked that the feces and urine were not fresh but had been there for a while. Y.J. had already stated that she had had to eat supper while she in a dirty diaper. The aides changed Y.J. and Petitioner left. (T pp 27-31, 35, 37; Resp Exh 5 and 6)

12. Ms. Hamilton reported to Ann Mullins, R.N., the night supervisor, that Y.J. was very upset and crying. Ms. Hamilton explained that Y.J. was upset because she had been left in her urine and stool and because she had been told not to ring her call bell for ten minutes until the next shift came on duty. Ms. Mullins immediately went to Y.J.’s room to find out what had happened. Y.J. was crying. She told Ms. Mullins that she had been trying to get help that evening and that she could not get any assistance. She said that she had been wet and dirty and that she could not get a drink of water. Y.J. also said that she was afraid of Petitioner and that she did not want Petitioner to ever come back into her room. Ms. Mullins assured Y.J. that, if Petitioner worked again, she would be given a different assignment. (T pp 32, 50-52; Resp Exh 5, 8 and 9)

13. Ms. Mullins was very angry and sad about the way Y.J. had been treated. She testified that this incident was one of the worst things she had experienced in fifteen years of nursing. Ms. Mullins also testified that standard protocol requires that nurse aides check residents every two hours to see if the resident is wet or soiled. If a nurse aide finds that a resident is wet or soiled, the resident must be cleaned and changed immediately absent some overriding emergency. This standard of care is intended to protect residents’ dignity as well as hygiene. Also, if a resident is wet for too long the skin may break down. Urine and feces can cause infection if the skin is already broken. (T pp 58, 72-74)

14. Hope Barnes, R.N., the Director of Nursing at Avante of Wilson, conducted the facility’s investigation by questioning the individuals involved, including Petitioner. Petitioner was discharged as a result of the facility’s investigation. (T pp 19, 93-101)

15. Avante of Wilson reported the incident to the Division of Facility Services, Health Care Personnel Registry. Monica Teasley was the investigator for the Health Care Personnel Registry who was assigned to investigate the allegation that Petitioner neglected Y.J. Ms. Teasley visited the facility and interviewed Petitioner, Sandra Hamilton, and Ann Mullins. She also reviewed the medical records of Y.J. (T pp 103-04; Resp Exh 3, 5, 6, 8 and 9)

16. As a result of her investigation, Ms. Teasley concluded that Petitioner neglected Y.J. by failing to change Y.J. in a timely manner, by leaving Y.J. in her urine and feces for a period of time, by telling Y.J. not to use the call light, and by refusing to give Y.J. water upon Y.J.’s request. (T pp 103-04; Resp Exh 15 and 16)

17. Ms. Teasley notified Petitioner by letter, dated August 16, 2000, that Respondent had substantiated the allegation of neglect and that Respondent intended to list a finding of neglect on the Nurse Aide Registry and Health Care Personnel Registry. (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 nurse aide working in a nursing facility, Petitioner is subject to the provisions of N.C. Gen. Stat. §§ 131E-255 and -256.

4. “Neglect” is defined by 42 CFR Part 488.301 to mean: “failure to provide goods and services necessary to avoid physical harm, mental anguish, or mental illness.”

5. On January 22, 2000, Petitioner, while employed as a nurse aide at Avante of Wilson in Wilson, North Carolina, neglected a resident, Y.J., by failing to change and clean the resident in a timely manner, by leaving the resident for a period of time in her diaper which was wet with urine and feces, by instructing the resident not to use her call bell until the next shift and by failing to give the resident water when the resident asked for water to drink.

6. Respondent did not err in substantiating the allegation of abuse against Petitioner because there is sufficient evidence to support Respondent’s conclusion.

Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned makes the following:

RECOMMENDED DECISION

That the Respondent’s decision to place a finding of neglect at Petitioner’s name in the Nurse Aide Registry and the Health Care Personnel Registry 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 Facility Services.

The agency 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 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.

This the 16th day of February, 2001.

______

James L. Conner, II

Administrative Law Judge