COUNTY OF FORSYTH / IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
10 DHR 2870
Shelia D. Gaskins,
Petitioner,
v.
DHS Health Care Registry,
Respondent. / )
)
) DECISION
)
)
THIS MATTER came on for hearing before the undersigned, Selina M. Brooks, Administrative Law Judge, on September 29, 2010 in High Point, North Carolina.
APPEARANCES
Petitioner: Shelia D. Gaskins, pro se
2616 Ludwig Street
Winston Salem, NC 27107
For Respondent: Vaughn S. Monroe
Assistant Attorney General
North Carolina Department of Justice
P.O. Box 629
Raleigh, NC 27602-0629
ISSUE
Whether Respondent otherwise substantially prejudiced Petitioner’s rights and failed to act as required by law or rule when Respondent substantiated the allegations that Petitioner abused a resident of Magnolia Creek Assisted Living in Winston-Salem, NC and entered a finding of abuse by Petitioner in the Health Care Personnel Registry.
APPLICABLE STATUTES AND RULES
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 exhibit 1 and 2 were admitted into the record
Respondent’s exhibits 1through 8 were admitted into the record
WITNESSES
Shelia D. Gaskins
Annette Bodenheimer (Petitioner’s Supervisor)
Rasheka Handy (Petitioner’s Co-Worker)
Jeanne Goss (HCPR 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, Shelia D. Gaskins, was employed as a health care personnel at Magnolia Creek Assisted Living in Winston-Salem, NC. Magnolia Creek Assisted Living is a residential care facility and therefore subject to N.C. Gen. Stat. § 131E-256.
2. As part of Petitioner’s job, she is to assist residents at the facility. One aspect of this assistance would be clearing dishes and silverware from the eating area after the residents have completed their meals as well as providing any assistance needed during the meal.
3. Petitioner had received many hours of in-service training and yearly updates in Resident’s Rights. She presented evidence of this training at the hearing. P. Ex. 2
4. A report was received from Magnolia Creek Assisted Living by the Health Care Personnel Registry Investigations Branch on March 10, 2010. It was alleged that Annette Bodenheimer (Medication Tech Supervisor) and Rasheka Handy (Personal Care Assistant) witnessed Petitioner slap R.V., a resident of Magnolia Creek, on the forehead.
5. R.V. suffers from Alzheimer’s Dementia with behavioral disturbance. R.V. was 73 years old at the time of the incident.
6. The Petitioner was removing silverware and plates from the cafeteria while R.V. was present in the cafeteria. As Petitioner went to remove R.V.’s plate, he protested and asked for more food. R.V. did this repeatedly and Petitioner became frustrated and slapped R.V. on the forehead.
7. These events were witnessed by two employees of Magnolia Creek, Annette Bodenheimer and Rasheka Handy.
8. Bodenheimer testified that right after meal time that her, Ms. Handy, and Petitioner were near the cafeteria. She was sitting at the table next to where R.V. was seated and assisting another resident. R. Ex. 3
9. Bodenheimer saw Petitioner become frustrated with R.V.’s continual request for more food and slap R.V. across the forehead. The slap was loud enough to be clearly heard and left a red mark on R.V.’s forehead. R. Ex. 3
10. Bodenheimer talked to Petitioner about the incident because she was Petitioner’s supervisor. During the conversation, the Petitioner became upset and walked away. Bodenheimer then reported the incident to her supervisor, Lucia Cooper. Bodenheimer left work for the day shortly afterwards due to a family emergency. R. Ex. 3
11. Rasheka Handy also witnessed Petitioner slapping R.V. Bodenheimer was walking into the cafeteria, assisting another resident when she saw Petitioner standing over R.V. Petitioner appeared to be irritated with R.V. who was doing his usual thing of requesting more food at the end of the meal when Petitioner slapped R.V. R. Ex. 4
12. Handy could clearly hear the slap and it left a red mark on R.V.’s forehead. R.V. appeared to be in shock immediately after the slap took place. Ms. Handy talked to Bodenheimer about what they witnessed. R. Ex. 4
13. After the incident was reported, Dennis Rainy, Administrator of Magnolia Creek, completed a 24 hour report and hired North Carolina Project Lifesaver to do an independent investigation. The investigation substantiated a finding of abuse by Petitioner and a 5 day report was completed. The findings were also relayed to the Healthcare Personnel Registry (hereinafter “HCPR”). R. Ex. 5
14. The HCPR investigates allegations of abuse, neglect and other allegations against health care personnel in certain residential facilities. If the allegation is substantiated, the employee will be listed on a permanent file. The HCPR covers numerous licensed facilities in North Carolina that provides direct, hands-on patient care. Accordingly, the health care personnel at Magnolia Creek are covered by the registry.
15. At all times relevant to this incident, Jeanne Goss was employed as an investigator for the HCPR. She is charged with investigating allegations against health care personnel in the Winston-Salem region of North Carolina. Accordingly, the Magnolia Creek was in her region and she received the complaint against Petitioner.
16. After Ms. Goss received the complaint against Petitioner, she determined it needed further investigation. She sent a letter to the Petitioner advising that an investigation would be conducted.
17. Ms. Goss interviewed the accused, witnesses and other staff. She also reviewed petitioner’s personnel file and R.V.’s medical records. Lastly, she conducted an onsite visit of the facility and reviewed all relevant documentation. R. Exs. 1, 2 and 7
18. Ms Goss concluded that the Petitioner abused R.V. on February 18, 2010 by willfully hitting the resident resulting in physical harm. R. Ex. 6
19. Petitioner was notified by letter that the finding of abuse would be listed against her in the Health Care Personnel Registry. Petitioner was further notified of her right to appeal. R. Ex. 8
20. On or about February 18, 2010, Petitioner, health care personnel, abused Resident R.V. by slapping the resident on the forehead.
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 are subject to a finding by the Department that they abused a resident in a health care facility or who have been accused of abusing a resident if the Department has screened the allegation and determined that an investigation is warranted.
4. As a health care personnel working in a residential care facility, Petitioner is subject to the provisions of N.C. Gen. Stat. §131E-256.
5. Magnolia Creek Assisted Living is a health care facility as defined in N.C. Gen. Stat. § 131E-256(b).
6. “Abuse means the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain, or mental anguish.” 42 CFR § 488.301.
7. Petitioner abused R.V. by slapping him and willfully inflicting him with physical harm, pain or mental anguish.
8. Respondent's decision to substantiate the allegations of abuse against the Petitioner is supported by a preponderance of the evidence. Therefore, Respondent did not substantially prejudice Petitioner’s rights or fail to act as required by law or rule by placing substantiated findings of abuse against Petitioner’s name on the Health Care Personnel Registry.
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 abuse next to 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 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 21st day of October 2010.
______
Selina M. Brooks
Administrative Law Judge