State of North Carolina s76

STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF DARE 04 DHR 1652

THIS MATTER coming on to be heard and being heard by the undersigned Administrative Law Judge on the 22nd day of February, 2005 in Elizabeth City, North Carolina, upon Petitioner’s Petition for a contested case hearing. Upon the hearing of the evidence presented, the undersigned Administrative Law Judge makes the following Findings of Fact:

1.  This matter is before the court on Petitioner’s Petition for a contested case hearing, filed on the 13th day of October 2004.

2.  All parties properly were served and all parties properly were notified of the hearing.

3.  Petitioner was present in court and represented by Branch W. Vincent, III, Attorney at Law.

4.  Respondent was present in court and represented by Robert L. Outten, Attorney at Law.

5.  Petitioner was terminated from her employment with Respondent on April 27, 2004.

6.  Petitioner’s Petition is to appeal her termination.

7.  Petitioner was employed by the Dare County Department of Social Services as an in-home service aide, and in this capacity provided in-home health care to her sister, Pansy Midgett (hereinafter “Midgett”).

8.  On April 20, 2004, Respondent received a report alleging that Petitioner had handcuffed Midgett to her bed in an effort to control Ms. Midgett’s behavior.

9.  Respondent referred the report to the Currituck County Department of Social Services for investigation.

10.  During the Currituck County Department of Social Services’ investigation, Petitioner admitted that she handcuffed Midgett to the bed, showed the investigator the handcuffs that were used, and subsequently admitted the handcuffing incident to other representatives of the Dare County Department of Social Services.

11.  On April 27, 2004, Petitioner’s employment with Respondent was terminated for unacceptable personal conduct, conduct for which no in-home aide should be expected to be warned against in advance, conduct unbecoming to an employee of the Dare County Department of Social Services, and conduct which constituted a willful mistreatment of a client of the Dare County Department of Social Services.

12.  On May 7, 2004, the Currituck County Department of Social Services substantiated the allegations and found that the conduct of Petitioner constituted abuse.

13.  Petitioner was advised of her appeal rights under the Dare County Department of Social Services Personnel Policies and exercised those rights.

14.  Petitioner, in open court, stipulated that all terms of the Personnel Policy had been met.

15.  At all levels of internal review, the termination was upheld and the Dare County Department of Social Services Board also upheld the termination.

16.  There are no policies, guidelines or other instruction available which would authorize the use of handcuffs to restrain a client for which the Dare County Department of Social Services provides services.

17.  Restraint of a client only is permitted if restraint is a part of the Care Plan for the client. There was no restraint permitted in the Care Plan for Pansy Midgett and the handcuffing of Ms. Midgett violated the Care Plan and put Ms. Midgett in danger.

18.  That an in-home aide only may restrain a patient upon the order of a doctor or nurse and even in those events, with the supervision of a nurse. There were no doctor’s orders authorizing the handcuffing of Ms. Midgett.

19.  Petitioner presented no evidence at the hearing of this matter.

Based upon the foregoing Findings of Fact, the undersigned concludes as a matter of law that:

1.  Petitioner, Maude Gibbs, did abuse a client of the Dare County Department of Social Services in that she unreasonably confined Midgett to her bed with the use of handcuffs.

2.  That Petitioner’s conduct in confining Midgett to her bed with handcuffs constitutes unacceptable personal conduct, conduct for which no in-home aide should expect to be warned against in advance, conduct unbecoming to an employee of the Dare County Department of Social Services, and conduct which is willful mistreatment of a client of the Dare County Department of Social Services.

WHEREFORE, based upon the foregoing Findings of Fact and Conclusions of Law, it is ordered, adjudged and decreed that the April 27, 2004 termination of Petitioner by Respondent was in compliance with the terms and conditions of the Dare County Department of Social Services Personnel Policy and with the applicable provisions of the North Carolina State Personnel Act and as such, the said termination is upheld.

ORDER

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, N.C. 27699-6714, in accordance with North Carolina General Statute 150B-36(b).

NOTICE

The State Personnel Commission will issue an advisory opinion to the Director of the Dare County Department of Social Services. G.S. 150B-23(a). The Director of the Dare County Department of Social Services will make the final decision in this contested case.

The agency making the final decision in this contested case is required to give each party an opportunity to file exceptions to this decision and to present written arguments to those in the agency who will make the final decision. G.S. 150B-36(a).

The agency is required by G.S. 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 12th day of April, 2005.

______

Beecher R. Gray

Administrative Law Judge

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