STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF CHOWAN 03 DHR 1485

______

DAISY MARIE WATFORD, )

)

Petitioner, )

)

v.  ) DECISION

)

NORTH CAROLINA DEPARTMENT )

OF HEALTH AND HUMAN SERVICES, )

DIVISION OF FACILITY SERVICES, )

)

Respondent. )

______

THIS MATTER came on for hearing before the undersigned Beryl E. Wade, Administrative Law Judge, on January 21, 2004, in Elizabeth City, North Carolina.

APPEARANCES

Petitioner: Daisy Marie Watford

94 Chowan Court

Edenton, NC 27932

Pro Se

For Respondent: Wendy L. Greene

Assistant Attorney General

North Carolina Department of Justice

P.O. Box 629

Raleigh, NC 27602

ISSUE

Whether Respondent deprived Petitioner of property, otherwise substantially prejudiced her rights, acted erroneously, acted arbitrarily or capriciously, or failed to act as required by law or rule when it substantiated the allegation that Petitioner abused MSW, a resident of Primetime of Edenton in Edenton, North Carolina on or about April 10, 2003, by making the resident shower against her will, hitting the resident on the leg, and causing the resident to feel bad and upset.


APPLICABLE STATUTES AND RULES

N.C. Gen. Stat. § 131E-256

N.C. Gen. Stat. §150B-23

42 CFR § 488.301

10 NCAC 3B.1001

EXHIBITS

Respondent’s exhibits 1, 2, 3, 5, 6, 7, 8, 10, 11,12, 13, 14, 15, 17 were admitted. Respondent’s exhibits 6, 7, 8, and 11 were redacted.

FINDINGS OF FACT

In making the Findings of Fact, the undersigned has weighed all the evidence, and 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. After careful consideration of the sworn witness testimony presented at the hearing, the documents and exhibits admitted into evidence, and the entire record in this proceeding, the undersigned makes the following Findings of Fact:

1. Primetime of Edenton (hereinafter “Primetime”), is a rest home in Edenton, North Carolina, and therefore subject to N.C. Gen. Stat. § 151E-256. (T p. 10)

2. At all times relevant to this matter, Petitioner was a certified nurse assistant employed by Primetime to distribute medications and generally take care of its residents. Petitioner worked at Primetime for about one year. Her official titles were Supervisor, Medicine Technician, or Med Tech, and certified nurse assistant. Petitioner left Primetime in April of 2003. Her position at that time was supervisor and med tech. (T pp. 7, 8, 13, 21)

3. Petitioner was trained to be a Certified Nurse Aide, (“CNA”) at Britthaven of Edenton, a nursing home, and had been a nurse aide for a little under two years at the time of the incident in question in this matter. She took a class on how to administer medication at a school in Ahoskie, North Carolina. (T pp. 9, 13)

4. As a CNA, Petitioner took care of the Primetime residents by helping them with activities such as bathing and feeding. As a med tech Petitioner was responsible for making sure the residents got their medicines on time. As supervisor, Petitioner monitored the nurse aides to assure the residents were being cared for properly. (T pp. 12, 13, 14)

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5. Petitioner was trained on resident rights and received documents on that subject on November 12, 20001, when she was hired. She understood that residents must be treated with dignity and respect, and that they are to be free of mental and physical abuse. Petitioner knows that speaking harshly to or yelling at residents is also abusive, and that forcing a resident to take a shower against her wishes is a violation of that residents rights. She received another training on residents’ rights on April 14, 2002. In addition, Ms. Darnell, the supervisor at Primetime, often talked to Petitioner about residents’ rights. (T pp. 16-19, 46, 47)

6. At all times relevant to this matter, MSW was an “A “wing resident of Primetime. At the time of the hearing of this matter, MSW was 39 years old. Petitioner had worked with MSW before the incident at issue in this matter. (T pp. 20, 59)

7. On April 10, 2003, Petitioner worked second shift, from 3:00 p.m. to 11:00 p.m. Her principal responsibilities were to distribute medicines and supervise four nurse assistants and two medicine technicians. Petitioner was assigned to work in the “B” wing of Primetime, which is a typical assignment for her. (T pp. 20 - 23)

8. At about 7:00 p.m. that evening Petitioner approached MSW while she was sitting in the living room and began to discuss bathing with MSW. Specifically, Petitioner told MSW some women take more than one bath per day. MSW was not scheduled for a bath that night. MSW told Petitioner that she had already had her bath. Petitioner and MSW were alone in the living room during that conversation. (T p. 27 - 29, 34)

9. MSW knew she wasn’t supposed to shower in the evening because Martha gives her a shower in the mornings before she goes to school. Petitioner told MSW she had to take a shower because she was “smelling.” MSW denied that she was smelly, but felt mad and angry that Petitioner had told her she was. (T p. 52, 51, 52, 53)

10. Petitioner took MSW to her room to get some clothes to wear after the shower, then walked her to the shower room. Malisia Rodgers, CNA, Med Tech, was in the vicinity of the shower rooms. Once in the shower, Petitioner washed the upper part of MSW’s body, including chest and back, and then let MSW wash her lower part and privates herself. (T pp. 35, 39, 40, 67)

11. When MSW was in the bathroom with Petitioner she hollered “help” in an attempt to get the other aides to come. Petitioner hollered at MSW to open her legs. (T pp. 53, 54)

12. When Petitioner left the bathroom, she asked Malisia Rodgers if she had heard what she had been saying in the shower. Petitioner had repeatedly and in a loud voice told MSW to open her legs. She herself believed that her voice might have sounded mean. (T pp. 42 - 44)

13. After the shower, Petitioner dried MSW off and dressed her. MSW was the sole resident Petitioner bathed since becoming a supervisor. (T pp. 32, 45)

14. When MSW was dressed and back in her bed, her legs hurt from being pushed apart by Petitioner. The nurse aides assigned to night shift came in to check on MSW and told her that she needed to tell someone that someone had “done something” to her. The next day MSW told Ms. Darnell, Administrator, and Martha Tann, and some people on another shift, which made her feel better. (T p. 56, line 15, 57)

15. MSW likes to take her showers in the morning, not at night. (T p. 57)

16. At all times relevant to this matter, Peggy Holley was a nurse assistant at Primetime. She was trained at College of the Albemarle, and had been a nurse assistant since April 2002. Ms. Holley worked second shift. She has known the Petitioner for over 10 years because they lived in the same neighborhood, and because they worked together. She knows MSW because she has been assigned to work with her at Primetime. Ms. Holley has never bathed MSW during the second shift. (T pp. 10 - 64)

17. On April 10, 2003, Ms. Holley worked during the second shift on the “A” wing of Primetime, and was assigned to provide care to MSW. Ms. Holley finds that MSW was capable of doing many things on her own, except that she requires some assistance putting on her nightclothes. (T p. 63)

18. That evening, Ms. Holley was at the front desk, 15 - 20 feet from the living room, when she heard MSW tell Petitioner that Martha gave her showers. Petitioner then told MSW that she needed to shower because she smelled. Petitioner then left the living room and proceeded down the hallway to pass out medications. While Petitioner was away, MSW rambled about not wanting a shower, and how Martha showers her. When Petitioner returned to the living room, Ms. Holley heard MSW continue to tell Petitioner that she didn’t want to take a shower. (T pp. 64, 65, 66)

19. When Petitioner led MSW out of the living room, MSW did not want to go. Ms. Holley asked Petitioner if she wanted her to shower MSW. Petitioner told Ms. Holley that she would do it herself. Ms. Holley remained at the front desk with another staff member, Felicia, who later she brought MSW’s yelling to Ms. Holley’s attention. MSW was yelling from the shower, 125 feet away. (T pp. 66, 67, 68; Resp. Exh. 3)

20. From her position at the front desk, Ms. Holley heard Petitioner in the shower telling MSW to open her legs. Ms. Holley saw Petitioner and MSW leave the bathroom and begin to walk toward MSW’s room. She met them in the hallway, and accompanied MSW back to her room herself. Ms. Holley put MSW to bed. Later that evening, while Petitioner was occupied with something else, Ms. Holley went back to check on MSW in her room. She entered the room from another connecting room, to avoid being seen going in. She then called another Med Tech about what had happened. The other Med Tech told her she would talk to the Administrator about it. (T pp. 67 - 72)

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21. At all times relevant to this matter Malisia Rodgers was a CNA I, II and Med Tech. She had been a Med Tech at Primetime of Edenton for one year and two months at the time of the hearing of this matter. She had been a nurse aide for 13 years. She has known Petitioner for four to five years because they had worked together at another facility. She knows MSW because she has worked with her at Primetime. (T pp. 75, 76, 77)

22. When Ms. Rodgers arrives at work she is assigned to a certain area of the facility. While assigned to one area, she will not provide services to residents in another wing. (T p. 76)

23. On April 10, 2003, Ms. Rodgers worked the second shift and was assigned to work on the “A” hall of Primetime. She heard Petitioner tell MSW that she had to take a shower. Ms. Rodgers asked Petitioner why MSW had to be bathed. Petitioner responded that MSW smelled. Ms. Rodgers did not smell an odor about MSW. (T pp. 77, 78)

24. Ms. Rodgers asked MSW if she wanted a shower. MSW said no. Ms. Rodgers again asked Petitioner why she was giving MSW a shower, and Petitioner again responded that she needed one, and further that she, Petitioner, was the Supervisor-in-Charge. ( T pp. 78, 79)

25. When Petitioner and MSW went into the bathroom and closed the door, Ms. Rodgers approached the door and pushed it slightly open. She heard Petitioner tell MSW three times in a loud voice to open her legs. When MSW was back in her room Ms. Rodgers checked on her. (T pp. 80 - 82)

26. At all times relevant to this matter, Felicia Sharpe was a CNA and Med Tech at Primetime. She was trained at the College of the Albemarle and had been at CNA for eleven years, with one year of service at Primetime at the time of the hearing. (T p. 85)

27. On April 10, 2003, Ms. Sharpe worked second shift, and was assigned to the “B” hallway. When Ms. Sharpe was at the front desk she heard Petitioner tell MSW to open her legs. Ms. Sharpe thought it strange that Petitioner bathed MSW because she and another aide were available to do it. The next day, MSW asked Ms. Sharpe why she hadn’t come to help her. She had not heard MSW yelling. (T pp. 86, 88, 89)

28. At all times relevant to this matter, Martha Tann was a transportation aide at Primetime. She has been at Primetime for approximately 17 years. She is responsible for transporting residents wherever they need to go. There are also a few residents Ms. Tann is responsible for bathing. She gives MSW showers on Mondays, Wednesdays and Fridays. Ms. Tann washes MSW’s back and hair. MSW washes the rest of her body herself. (T p. 91)

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29. Ms. Tann finds that MSW enjoys her showers in the morning. She gave her a shower on April 11, 2003. That morning, MSW told Ms. Tann that she was mad because Petitioner had made her shower the night before because, according to Petitioner, MSW smelled. (T pp. 92, 93)

30. At all times relevant to this matter, Rebecca Buck was an Investigator of the Health Care Personnel Registry/Nurse Aide Registry. Ms. Buck received a report on and was assigned to conduct the investigation of the allegation of abuse against Petitioner. Ms. Buck is a registered nurse and had been an Investigator with the Health Care Personnel Registry for three and a half years, at the time of the hearing. (T p. 100)

31. To conduct the investigation, Ms. Buck reviewed facility documents, including medical records, personnel records, and any documents gathered during the facility’s investigation. She also interviewed witnesses, MSW, Petitioner, and other facility staff. (T pp. 105, 106

32. After completing the investigation, Ms. Buck concluded that on April 10, 2003, Petitioner forced MSW to take a shower against her wishes. She also concluded that Petitioner hit MSW on the legs and knees. Ms. Buck noted that MSW had been consistent in her recount of the incident. (T p. 107)

33. Abuse is the willful infliction of punishment, intimidation or unreasonable confinement causing pain, mental anguish or physical harm. Ms. Buck found that Petitioner’s actions constituted intimidation and unreasonable confinement, causing mental anguish to MSW. In addition MSW reported that it had hurt her when Petitioner hit her on the legs. (T pp. 107, 108)

34. By letter dated July 23, 2003, the HCPR notified Petitioner of its substantiated findings of abuse, and of its intent to list the finding on the Health Care Registry. (T pp. 109, 110; Resp. Exh. 17)