State of North Carolina s88

STATE OF NORTH CAROLINA

COUNTY OF GUILFORD

IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

08 DHR 2444

JASPER TYSON,

Petitioner,

DEPARTMENT OF HEALTH AND HUMAN SERVICES, DIVISION OF HEALTH SERVICE REGULATION, HEALTH CARE

PERSONNEL REGISTRY,

Respondent.

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DECISION

THIS MATTER came for hearing before the undersigned, J. Randall May, Administrative Law Judge, on February 24, 2009 in the Guilford County Courthouse in High Point, North Carolina.

APPEARANCES

For Petitioner: Jasper Tyson, pro se

1120 Nathan Hunt Drive

High Point, NC 27260

For Respondent: Bethany A. Burgon

Assistant Attorney General

North Carolina Department of Justice

9001 Mail Service Center

Raleigh, NC 27699-9001

ISSUE

Whether Respondent otherwise substantially prejudiced Petitioner’s rights and acted erroneously when Respondent substantiated the allegation that on or about March 23, 2008, Jonathon Smith, a Health Care Personnel, abused a resident (A.B.) by biting the resident resulting in abrasions and bruising.

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

Respondent’s exhibits 1-21 were admitted into the record.

WITNESSES

Jasper Tyson

Della Brown

Kelle O’Neill

Shannon Rubush

Susan Mauck

Sharron O’Sullivan

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 and the admitted evidence, or the lack thereof, the undersigned makes the following:

FINDINGS OF FACT

1. At all times relevant to this matter Petitioner, Jasper Tyson, was employed as a mental health counselor working on the Acute Unit at Old Vineyard Health Services (“Old Vineyard”) and therefore subject to N.C. Gen. Stat. § 131E-256. (T. pp. 22-23; Resp. Exh. 3)

2. Petitioner has a master’s degree and over ten years experience in the mental health profession. Petitioner received training in Clients’ Rights and knows that hitting is abuse. (Resp. Exhs. 1, 3-4; T. p. 23)

3. Petitioner received training at Old Vineyard. He learned how to deal with the client for seclusion and restraint. He was also trained on how to approach the client and respecting the client’s boundaries. (Resp. Exh.3)

5. Resident XA was ten years old at the time of the incident. He is an African American male with episodic mood disorder. (Resp. Exh. 10)

6. On July 7, 2008 Petitioner was with Resident XA and four or five other children in the dayroom at Old Vineyard around 7:00pm. Petitioner and Resident XA got into an argument about the volume of the television. (T. p. 24; Resp. Exh. 10)

7. Petitioner slapped Resident XA on the left side of the face leaving a red hand print on Resident XA’s cheek. Resident XA started yelling, “You hit me, you hit me.” (T. p. 34; Resp. Exh. 10)

8. Della Brown (“Brown”) is also employed as a mental health counselor on the Acute Unit at Old Vineyard. She was working the evening of July 7, 2008. Brown witnessed the altercation between Petitioner and Resident XA. (T. pp. 38-39; Resp. Exhs. 5-6)

9. Brown witnessed Resident XA throw a pencil on the floor. Petitioner and Resident XA were arguing with each other. Petitioner responded to Resident XA with an (T. pp. 40-41; Resp. Exhs. 5-6)

10. Brown was trained with Petitioner at Old Vineyard. They were not trained to handle the residents the way Petitioner handled Resident XA. They were told that there was zero tolerance for physical abuse towards a resident (T. p. 42)

11. Kelle O’Neill (“O’Neill”) is employed as a mental health counselor with the adolescent girls at Old Vineyard. She was working the evening of July 7, 2008. O’Neill heard Resident XA yelling “You’re not supposed to hit me” from down the hall. (T. pp. 52-53; Resp. Exh. 8)

12. O’Neill went to the dayroom to check on the situation. When she entered she heard Petitioner say, “If you don’t sit down and shut up, I’ll smack you again.” O’Neill removed Resident XA from the room. (T. p. 54-55, Resp. Exh. 8)

13. O’Neill took Resident XA to the “quiet room” and assured him that he was with a safe adult. O’Neill took a closer look and Resident XA and viewed a handprint on his left cheek. (T. pp. 55-56; Resp. Exh. 8)

14. Shannon Rubush (“Rubush”) is a staff and a charge nurse on the Acute Unit at Old Vineyard. Petitioner told Rubush that he hit someone. Rubush told him to fill out an Incident Report. Rubush then went into the quiet room. Resident XA told him that Petitioner had hit him. Rubush saw a handprint on Resident XA’s face. (T. pp. 59-60; Resp. Exh. 9)

15. Petitioner started an Incident Report. Cheryl Buteaux (Buteaux”), the Nurse Supervisor, talked to Petitioner. He told her he had hit Resident XA. Buteaux took Petitioner’s badge and keys and told him to go home. She finished filling out the Incident Report. (Resp. Exhs. 10 & 17)

16. Susan Mauck (“Mauck”), the Director of Quality for Old Vineyard, conducted the internal investigation for the allegation of abuse against Petitioner. Mauck substantiated the allegation and recommended immediate termination. (T. pp. 61-62; 64-66; Resp. Exh. 13)

17. Mauck filled out the Employee Corrective Action Report and terminated Petitioner. She sent the 24-Hour Initial Report and the 5-Working Day Report to the Health Care Personnel Registry (“HCPR”) documenting the investigation and decision. (T. p. 63; Resp. Exhs. 11-12; 14)

18. The HCPR investigates allegations of abuse, neglect and other allegations against health care personnel in health care facilities. If the allegation is substantiated, the employee will be listed on a file. The HCPR covers most licensed facility in North Carolina that provides patient care. Accordingly, health care personnel at Old Vineyard are covered by the registry. (T. pp. 70-72)

19. Ginny Martin (“Martin”) was employed as an investigator for the HCPR. She was charged with investigating allegations against health care personnel in the central region of North Carolina. Accordingly, Old Vineyard was in her region and she received the complaint that Petitioner had abused Resident AB (T. p. 71)

20. After the complaint against Petitioner was received, it was determined it needed further investigation. Martin went on medical leave so the complaint was re-assigned to Sharon O’Sullivan (“O’Sullivan) for investigation. O’Sullivan is an investigator for the HCPR. (T. p. 71)

21. As part of the investigation, O’Sullivan interviewed Resident XA, Brown, Rubush and Buteaux. She also reviewed the resident’s records and took into account the DSS investigation and the internal investigation conducted by the facility. (T. p. 76; Resp. Exhs. 6, 9, 17-18)

22. O’Sullivan did not interview Petitioner as part of this investigation. She talked to him by phone and mailed him a letter offering him the opportunity to give a statement. Petitioner mailed a letter to the HCPR as his statement. Petitioner admitted he had physical contact with the resident in his letter. (T. pp. 75-76; Resp. Exhs. 1, 15)

23. O’Sullivan took Petitioner’s statement into consideration and viewed all the information together. O’Sullivan concluded that Petitioner abused Resident XA. O’Sullivan wrote an investigation report which documented the conclusion. (T. pp. 77; Resp. Exh. 20)

24. Abuse is defined as the “willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain, or mental anguish. O’Sullivan determined Petitioner abused Resident XA by willfully slapping the resident in the face causing physical harm. (T. p. 77-78; Resp. Exh. 20)

25. Petitioner was notified by letter that a finding of abuse would be listed against him name in the Health Care Personnel Registry. Petitioner was further notified of his right to appeal. (T. p. 79; Resp. Exh. 21)

26. This matter came for hearing before the undersigned, J. Randall May, Administrative Law Judge, on February 24, 2009 in the Guilford County Courthouse in High Point, North Carolina.

27. Petitioner stated that he slapped Resident XA as a reflex from being stabbed by a pencil. (T. p. 32) Brown testified that she did not see Resident XA contact Petitioner with a pencil. (T. p. 40) Petitioner was not stabbed by the resident. If Petitioner was stabbed by the resident he should not react by slapping.

Based upon the foregoing Findings of Fact, the undersigned Administrative Law Judge makes the following:

CONCLUSIONS OF LAW

The North Carolina Office of Administrative Hearings has jurisdiction over the parties and subject matter of this contested case pursuant to N.C. Gen. Stat.§ 150B-23 et seq. All necessary parties have been joined and have received proper notice of the hearing in this matter. To the extent that the Findings of Fact contain Conclusions of Law, or that the Conclusions of law are Findings of Fact, they should be so considered without regard to the given labels.

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 Health Service Regulation, Health Care Personnel Registry Section is required by N.C. Gen. Stat. § 131E-255 and N.C. Gen. Stat. § 131E-256 to maintain a Registry that contains the names of all health care personnel and nurse aides 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 mental health counselor in a residential care facility, Petitioner is subject to the provisions of N.C. Gen. Stat. § 131E-256.

5. Old Vineyard Health Services is a health care facility as defined in N.C. Gen. Stat. § 131E-255(c) and N.C. Gen. Stat. § 131E-256(b).

6. “Abuse” is the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain, or mental anguish. 10A N.C.A.C. 13O.0101, 42 CFR § 488.301.

7. On or about July 7, 2008, Petitioner willfully injured, punished and intimidated Resident XA by slapping the resident resulting in physical harm.

8. Respondent's decision to substantiate this allegation of abuse against the Petitioner is supported by a preponderance of the evidence. Therefore, Respondent did not substantially prejudice Petitioner’s rights, act erroneously, arbitrarily or capriciously by placing a substantiated finding of abuse against Petitioner’s name on the Health Care Personnel Registry.

Based on the foregoing Findings of Fact and Conclusions of Law, the Undersigned makes the following:

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 at 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 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 May, 2009.

______J. Randall May

Administrative Law Judge