STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF PITT 00 DHR 1586

JACQUELINE A. ALEXANDER, )

Petitioner, )

)

v. )

) RECOMMENDED DECISION

DEPARTMENT OF HEALTH AND )

HUMAN SERVICES, DIVISION OF )

FACILITY SERVICES, )

Respondent. )

This matter was heard before Beecher R. Gray, Administrative Law Judge, on May 1, 2001 in Greenville, North Carolina.

APPEARANCES

Evan G. Lewis

Pamlico Sound Legal Services

PO Box 7283

Greenville, NC 27834

Counsel for 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;

2. acted erroneously;

3. failed to use proper procedure; or

4. failed to act as required by law or rule

when Respondent notified Petitioner of its intent to 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. Petitioner’s Exhibit #1 Medical Progress Notes for Resident R.R.

2. Petitioner’s Exhibit #2 Psychological Evaluation for Resident R.R.

3. Respondent’s Exhibit #1 Statement of Petitioner dated January 19, 2000

4. Respondent’s Exhibit #2 HCPR Interview of Petitioner dated September 9, 2000

5. Respondent’s Exhibit #3 Incident Location Sketch dated September 28, 2000

6. Respondent’s Exhibit #4 Letter to Petitioner from Respondent dated October 24, 2000

7. Respondent’s Exhibit #5 Statement of Stacy M. Garnett dated September 18, 2000

8. Respondent’s Exhibit #6 Abuse Investigation #11 dated January 28, 2000

9. Respondent’s Exhibit #7 Nurse Aide and Health Care Personnel Reporting Guideline

10. Respondent’s Exhibit #8 HCPR Interview of Stacy Garnett dated September 18, 2000

11. Respondent’s Exhibit #9 Incident Report Form dated January 18, 2000

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12. Respondent’s Exhibit #10 HCPR Interview of Angela T. Cohen dated September 18, 2000

13. Respondent’s Exhibit #11 Client Abuse/Neglect/Mistreatment Policy of Skill Creations

14. Respondent’s Exhibit # 12 Investigative Conclusion dated October 6, 2000

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 Habilitation Technician at Skill Creations in Winterville, North Carolina. Tr pp 5-6, l. 14-15.

2. Skill Creations is an intermediate care facility for the mentally retarded.

3. At all times relevant to this contested case, Stacy Garnett was employed as the Director of Skill Creations. Ms. Garnett is a Qualified Mental Retardation Professional. Tr p 31, l. 10-21.

4. At all times relevant to this contested case, Angela Cohen was employed as nurse at Skill Creations. Tr pp 65, l. 14-22.

5. At all times relevant to this contested case hearing, Debra Brown was employed at Skill Creations. Ms. Brown has no personal knowledge of the incident that occurred on January 18, 2000 between Petitioner and Resident R.R. Tr pp 96-98, l. 1-5.

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6. On January 18, 2000, Resident R.R. exhibited a behavior in the living room area of Skill Creations. He cursed, yelled, screamed, threw himself on the floor and attempted to attack an employee of Skill Creations. After Petitioner was unsuccessful in calming down Resident R.R., she, along with two of her co-workers, Pleshette Marshall and Celestine Patrick, carried Resident R.R. to his bedroom. They sat him on the floor; he continued to scream and kick. Again, Petitioner tried to get Resident R.R. to calm down. Petitioner and her co-workers picked up Resident R.R. and placed him in his rocking chair. After Resident R.R. was placed in the rocking chair, he continued to scream. He then pulled his shirt over his head and put it in his mouth. Tr pp 6-9, l. 13-3; p 11, l. 3-8.

7. When Ms. Garnett heard the commotion, she concluded her telephone conversation and proceeded to Resident R.R.’s room. As she was walking down the hallway towards Resident R.R.’s room, she observed him sitting in the rocking chair with his head bent in a downward manner. As Ms. Garnett approached the room, she saw Petitioner holding R.R.’s head down and heard her say, “Take it off, take it off, RR.” Petitioner then hit Resident R.R. on his back with a closed fist. Tr pp 35-39, l. 6-1; R.Exs. 5, 6, 7 and 8.

8. Ms. Garnett entered the room and inquired about what was going on. She asked Petitioner to leave the room. She then examined Resident R.R.’s back. There was a red mark at the top of his back in the same location that she had just observed Petitioner strike the resident. Tr p 38, l. 10-17; pp 39-42, l. 21-2.

9. At the request of Ms. Garnett, Ms. Cohen examined Resident R.R. She observed a red mark on the back of his neck which was in the same location as previously described by Ms. Garnett. The red mark was approximately five to six centimeters in length and four centimeters in width. Tr p 42, l. 3-15; pp 67-68, l. 10-11; p 69-70, l. 15-5; R.Exs. 9 and 10.

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10. Petitioner denied hitting Resident R.R. with a closed fist. She testified that Resident R.R. smacked himself on the side of his head near his ear. Further she testified that she used a physical prompt in which she tapped Resident R.R. lightly with two fingers on the right side of his head. She stated that Resident R.R. hit himself in the same location as she applied the physical prompt. Tr pp 10-3, l. 10-2; pp 21-22, l. 7-16; R.Exs. 1 and 2.

11. On behalf of Skill Creations, Ms. Garnett conducted an in-house investigation into the allegation of abuse of R.R. by Petitioner. Ms. Garnett reported the allegation of abuse to Health Care Personnel Registry Section, Division of Facility Services, NC Department of Health and Human Services. Tr pp 42-46, l.3-13; R.Exs. 6 and 7.

12. Pamela Anderson, a nurse investigator with Respondent, screened the report submitted by Skill Creations with respect to the allegation of abuse of R.R. by Petitioner and concluded that the allegation warranted an investigation. Tr pp 84-86, l. 5-16.

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

14. By letter dated October 24, 2000, Respondent notified Petitioner that the Department had substantiated an allegation of abuse of Resident R.R. 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. 4.

15. The definition of abuse applicable to the incident that occurred on or about January 18, 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:

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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. Skill Creations is an intermediate care facility for the mentally retarded as defined in N.C. Gen. Stat. § 131E-256(b)(8).

6. On January 18, 2000, Petitioner abused Resident R.R. when she struck him on the base of his neck with her closed fist.

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 28th day of June, 2001.

______

Beecher R. Gray

Administrative Law Judge

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