State of North Carolina s88

STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF PENDER 09 DHR 6166

June Rae Crittenden, ) Petitioner, ) ) vs. ) DECISION )

Health Care Registry Section ) Department of Health & Human Services, )

Respondent. )

THIS MATTER came on for hearing before the undersigned, Donald W. Overby, Administrative Law Judge, on March 11, 2010, in Boliva, North Carolina.

APPEARANCES

For Petitioner: pro se

For Respondent: Juanita B. Twyford Assistant Attorney General North Carolina Department of Justice 9001 Mail Service Center Raleigh, NC 27699-9001

Whether Respondent substantially prejudiced Petitioner’s rights; and acted erroneously, failed to use proper procedure, acted arbitrarily or capriciously, or failed to act as required by law when Respondent notified Petitioner of its intent to enter her name with a finding of neglect in the Nurse Aide Registry and the Health Care Personnel Registry based upon a substantiation of the following allegation:

On or about April 14, 2009, Petitioner, a nurse aide, employed at a nursing facility, Huntington Health Care in Burgaw, North Carolina, neglected a Resident, (WF), by transferring him improperly, resulting in a fractured right elbow.

APPLICABLE STATUTES AND RULES N.C. Gen. Stat. § 131E-255 N.C. Gen. Stat. § 131E-256 N.C. Gen. Stat. §150B-23 42 CFR § 488.301 10A N.C.A.C. 13O.0101

PETITIONER’S WITNESSES Petitioner

RESPONDENT’S WITNESSES Petitioner Shirley Anderson

EXHIBITS Petitioner Exhibits 1-18 were admitted

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 evidence presented, the undersigned makes the following:

FINDINGS OF FACT

1. At all times relevant to this matter Huntington Health Care in Burgaw, North Carolina was a nursing care facility, and therefore subject to N.C. Gen. Stat. § 131E-255 and N.C. Gen. Stat. § 131E-256.

2. At all times relevant to this matter Petitioner, June Rae Crittenden, was employed at Huntington Health Care as a nurse aide, and was therefore subject to N.C. Gen. Stat. § 131E- 255 and N.C. Gen. Stat. § 131E-256.

3. Petitioner was hired to work at Huntington Health Care on October 1, 2004. She had training on her job duties and patient’s rights when she was hired. She had over thirty years of experience as a nurse’s aide without incident.

4. At all times relevant to this matter, Resident WF was a resident at Huntington Health Care. Resident WF was a 44 year old male with the following diagnoses: hypertension; hypokalemia repleted; deep vein thrombosis; GI prophylaxis; left CVA w/ rt. hemiparesis; chronic pain; depression; anemia; cocaine abuse; hypomagnesia; affective disorder.

5. During the relevant time, Resident WF had a communication deficit related to expressive aphasia secondary to middle cerebral infarct.

2 6. According to his care plan dated October 9, 2008 and updated April 3, 2009, Resident WF required extensive assistance with most all activities of daily living. Resident WF’s care plan documented that Resident WF had a potential for injury/falls related to decreased mobility and poor balance. In accordance with Resident WF’s care plan, a two person extensive assistance was required to transfer Resident WF.

7. On October 31, 2005, Petitioner signed Huntington Health Care’s Transferring Acknowledgment. This document provides, “I understand that residents are to be transferred according to their individualized plan of care. This facility uses the ‘Transfer Stars’ which are located at the head of the resident’s beds.”

8. Respondent received a 5 Working Day Report from Huntington Health Care dated April 22, 2009, alleging that Petitioner improperly transferred resident WF on April 14, 2009, resulting in fracture of resident’s right arm. Findings of the facility investigation were attached to the report.

9. Pursuant to N.C. Gen Stat. §131E-256, Respondent is responsible for investigating allegations of resident abuse, neglect, misappropriation of property, diversion of drugs, fraud by a nurse aide or health care personnel.

10. Shirley Anderson, RN, (“Anderson”) is an investigator with the Health Care Personnel Registry. Health Care Personnel Registry nurse investigators are charged with investigating allegations against nurse aides and health care personnel. Accordingly, Anderson received the allegation report from Huntington Health Care. On April 28, 2009, Anderson determined that the allegation warranted investigation by the Health Care Personnel Registry.

11. By letter dated April 28, 2009, Anderson notified Petitioner that Respondent would be investigating the allegation she had neglected a resident at Huntington Health Care, and that her name would be listed on the Health Care Personnel Registry pending investigation of the allegation. The letter gave notice of appeal rights.

12. Anderson conducted an investigation, and gathered information from the following sources: an on-site visit to the facility; interviews with Petitioner, witnesses, and staff; a review of Petitioner’s personnel file; a review of Resident WF’s medical records; and, a review of the facility records and documentation.

13. Anderson reviewed Resident WF’s file to gain an understanding of his physical and mental condition at the time of the incident. Anderson observed Resident WF in his room at Huntington Health Care on August 10, 2009, but was unable to interview Resident WF due to documented short term memory deficits and expressive aphasia.

14. Anderson reviewed facility protocols, policies, procedures, and training materials to determine the expectations of personnel. After reviewing the facility protocols, policies, procedures, and training materials along with Petitioner’s personnel file, Anderson determined that Petitioner had the requisite training and had demonstrated the skills necessary to perform her job as a nurse aide at the facility.

3 15. After considering the credibility and consistency of the information she gathered during the course of her investigation, Anderson completed an Investigation Conclusion Report with findings substantiating the allegation that Petitioner neglected Resident WF by failing to properly transfer Resident WF, resulting in a fractured right elbow.

16. Petitioner was notified by letter dated October 13, 2009, that the allegation of neglect was substantiated. Attached to the letter were the Entries of Finding, which are the substantiated findings as they will appear on the Nurse Aide Registry and the Health Care Personnel Registry. The letter also notified Petitioner of her appeal rights.

17. Petitioner timely filed a petition for contested case with the Office of Administrative Hearings contesting the listing of the allegation of neglect on the Nurse Aide Registry and the Health Care Personnel Registry. Petitioner challenges the substantiated findings, saying that it was poor judgment on her part to attempt to transfer Resident WF without assistance but he was anxious and if she had not intervened he would have potentially suffered more harm.

18. There is no substantial conflict in the evidence regarding Petitioner’s attempt to transfer Resident WF. On April 14, 2009, at about 9:30-10:00 p.m., Petitioner went to Resident WF’s room. Petitioner was sitting in his chair, and Petitioner could tell that Resident WF wanted to go to bed. Petitioner recalls that when she told Resident WF to wait because she needed to get some help, Resident WF appeared to get more agitated and started yelling. He was not belted into his wheel chair and was capable of raising himself and possibly falling. Petitioner told herself, “I can do this.” Petitioner then placed Resident WF’s wheelchair by his bed and put her gait belt around Petitioner’s waist. Petitioner stood Resident WF up, and when she went to pivot him around, his body weight shifted. Resident WF was taller than Petitioner, and Petitioner could see that Resident WF was going to fall. Petitioner guided Resident WF to the floor, and after he was down, she immediately went for help.

19. Kembrya Ellis, LPN, responded with Petitioner and Resident WF was still in the same location where Petitioner had left him on the floor. Petitioner reported that Resident WF was smiling when she and Ms. Ellis were assessing him while he was sitting on the floor. Resident WF was thoroughly assessed by Nurse Kembrya Ellis immediately after the incident on the evening of April 14, 2009, and there was no obvious sign of injury at that time. There was no bruising or redness. She repeatedly asked Resident WF if there was pain to which he responded “no.” Nurse Ellis also assessed Resident WF the next morning after other CNA’s had gotten him out of bed and into his wheel chair. There were no complaints of pain or discomfort in the morning of April 15, 2009.

20. According to the written Nurses Notes required by the facility, there were no complaints of pain or discomfort during the morning of April 15, 2009. There are repeated notes that he was “in and out” to smoke that morning. He was pleasant and cooperative that morning. The Nurses Notes make no reference to any incident concerning Resident WF, including the one for which Petitioner was investigated, and note no injury until the afternoon of April 15, 2009.

4 21. Resident WF complained of pain in his right arm approximately 4:00 p.m. on the afternoon of April 15, 2009, and his right arm was swollen and bruised. Resident WF was transported to Pender Memorial Hospital. Resident WF was diagnosed with a supracondylar fracture of the lower end of the right humerus bone just above the elbow joint. Resident WF returned to Huntington Health Care with a soft cast on his right arm on the night of April 15, 2009. Resident WF had follow-up orthopedic doctor visits on April 16 and 17, 2009. An order was written for Resident WF to have Oxycodone 5mg. every four hours as needed for pain.

22. To justify her decision to transfer Resident WF without assistance, Petitioner reports that Resident WF was anxious and wanted to go to bed. Petitioner contends that when she told him to wait because she had to get help, Resident WF became more anxious, appeared to get more agitated and started yelling. He was not belted into his wheel chair and was capable of raising himself and possibly falling. She decided to go ahead and attempt the transfer. Petitioner speculates that something worse may have happened if she made Resident WF wait while she found someone to assist her with the transfer.

23. Petitioner was an experienced care giver, was accountable for providing care consistent with Huntington Health Care’s policies and procedures, and was responsible for providing safe care for the residents.

24. Petitioner admits that Resident WF had two stars over his bed, and the two stars indicated that Resident WF required a two person assist transfer. Petitioner candidly admits that when she attempted to transfer Resident WF without assistance, she used poor judgment and she should have known better.

25. Notwithstanding Petitioner’s admission that she used poor judgment when she chose to transfer Resident WF without assistance, Petitioner maintains that she did not cause injury to Resident WF. Petitioner denies that Resident WF hit the floor in a manner that would have caused injury. Rather, Petitioner described lowering Resident WF to the floor in a controlled manner when she realized she could not safely transfer him onto the bed by herself. Furthermore, Petitioner emphasizes that Resident WF did not complain of pain at the time of the incident and there was no sign of injury when the nurse checked him at the time of the incident. The Incident Report prepared by Nurse Ellis on the day of the incident states the “type of occurrence” as “lowered to floor.” “Fall/slip” was another choice for the report. Nurse Ellis also noted “none” for the type of injury.

26. Petitioner opines that Resident WF may have caused the injury to his arm. Petitioner testified that Resident WF frequently propelled his wheelchair through the backdoor of the facility to get outside to smoke. The Nurses Notes confirm that he went in and out of the facility often to smoke. Resident WF would kick open the door with his foot and use his arms to push through the door. Petitioner is partially paralyzed on the same side as his injured arm. Petitioner suspects he may have injured his elbow by hitting it against the door frame as he rolled through the door. Such an injury would be consistent with the reported nurses notes and lack of injury or pain until the afternoon of April 15, 2009.

5 27. Petitioner was forthcoming and credible in her account of the incident. She has worked as a nurse aide for some thirty years without incident. When she realized she was not able to transfer Resident WF safely by herself, she lowered him to the floor. Rather that cover- up her failure to comply with the transfer policy, she immediately reported the incident to the nurse. She has candidly and consistently admitted that she used poor judgment, but has denied that Resident WF was injured when she lowered him to the floor. Her account is bolstered by the nurse’s documentation at the time confirming that Resident WF did not complain of pain and there was no sign of injury. Furthermore, Petitioner gives a plausible explanation for the cause of Resident WF’s injury when she describes the manner in which he exits the building unescorted to smoke.

28. While petitioner used poor judgment when she attempted to transfer Resident WF without assistance, there is insufficient evidence to support a finding of neglect and that WF’s fractured elbow was a result of the improper transfer.

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. Petitioner has the burden of proof. See Overcash v. N.C. Dep’t of Env’t & Natural Res., 179 N.C. App. 697, 699, 635 S.E.2d 442, 444-45 (2006).

3. As a nurse aide working in a long term nursing facility, Petitioner is a nurse aide and a health care personnel subject to the provisions of N.C. Gen. Stat. § 131E-255 and N.C. Gen. Stat. § 131E-256.

4. “Neglect” is the failure to provide goods and services necessary to avoid physical harm, mental anguish or mental illness. 10A N.C.A.C. 13O.0101, 42 CFR § 488.301.

5. Petitioner demonstrated that Respondent substantially prejudiced Petitioner’s rights and acted erroneously when Respondent notified Petitioner of its intent to enter her name with a finding of finding of neglect in the Nurse Aide Registry and the Health Care Personnel Registry, and there is insufficient evidence to support Respondent’s conclusion that on or about April 14, 2009, Petitioner, a nurse aide, employed at a nursing facility, Huntington Health Care in Burgaw, North Carolina, neglected a Resident, (WF), by improperly transferring the resident, resulting in a fractured right elbow.

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 neglect at Petitioner’s name on the Nurse Aide Registry and the Health Care Personnel Registry should be REVERSED.

6 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 Health Service Regulation.

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 29th day of March, 2010.

______Donald W. Overby Administrative Law Judge