State of North Carolina s81

STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF ONSLOW 07 DHR 0016

) MARGARET BERNICE CHARLES, ) Petitioner, ) ) v. ) DECISION ) HEALTH CARE PERSONNEL REGISTRY, ) Respondent, ) )

THIS MATTER came on for hearing before the undersigned, Fred G. Morrison Jr., Senior Administrative Law Judge, on May 18, 2007, in Surf City, North Carolina.

APPEARANCES

Petitioner: Margaret Bernice Charles 107 Carriage Drive Jacksonville, NC 27407

For Respondent: Bethany A. Burgon Assistant Attorney General North Carolina Department of Justice 9001 Mail Service Center Raleigh, NC 27699-9001

Whether Respondent substantially prejudiced Petitioner’s rights, exceeded its authority or jurisdiction, acted erroneously, failed to use proper procedure, acted arbitrarily or capriciously, or failed to acted as required by law or rule when it entered a finding of neglect by Petitioner in the Health Care Personnel Registry.

APPLICABLE STATUTES AND RULES

Official notice is taken of the following statutes and rules applicable to this case:

N.C. Gen. Stat. § 131E-256 N.C. Gen. Stat. §150B-23 42 CFR § 488.301 10A N.C.A.C. 130.0101

1 WITNESS FOR PETITIONER

Margaret B. Charles

WITNESSES FOR RESPONDENT

Margaret B. Charles Beverly Houston Donna Abruzzo Cawana Wilson Pamela Anderson

EXHIBITS RECEIVED INTO EVIDENCE

Petitioner

Respondent

Exhibits 1-17 were admitted into the record.

Based upon careful consideration of the sworn testimony presented at the hearing and the entire record in this proceeding, the undersigned makes the following:

FINDINGS OF FACT

1. At all times relevant to this matter Petitioner, Margaret Bernice Charles, was the administrator and owner of Charles Family Care Home in Jacksonville, North Carolina, a home health care facility for the physically and mentally disabled and therefore subject to N.C. Gen. Stat. § 131E-256.

2. Petitioner operated Charles Family Care Home for twenty years. At first, she just took care of Resident DW and her mother. She later added on other residents. Her duties centered on taking care of the residents by providing hands-on care for their needs.

3. Resident DW was non-ambulatory and total care dependent except with eating. Petitioner was responsible for Resident DW’s activities of daily living including making sure she was adequately moved, positioned, and exercised.

4. At all times relevant to this matter, Beverly Houston (“Houston”), was employed as a survey consultant for the Department of Human Services, Division of Facility Services. Houston is charged with conducting annual on site surveys to make sure family home care administrators, workers, and assisted living facilities are following the rules.

2 5. Houston went to conduct her annual survey with Charles Family Care Home on August 29, 2006. Houston became concerned when Petitioner did not change Resident DW’s diaper. Resident DW had been sitting in a wheelchair partially dressed for numerous hours.

6. Houston waited to see if Petitioner would change the diaper but finally had to ask her to make the change Petitioner was hesitant to remove the incontinent garment. Houston asked her three times to remove the diaper before Petitioner finally did. The garment was soiled with urine and feces.

7. When the diaper was finally removed, Houston had the opportunity to inspect Resident DW. Resident DW had five decubitus ulcers (bed sores) on her buttocks and sacral area. She had decubitus ulcers on her right elbow and bilateral heel which were covered with eschar (black, dead tissue).

8. Houston examined Petitioner’s records for Resident DW and determined there was no documentation of the condition she had discovered after inspecting Resident DW. Houston informed Petitioner that she needed to take Resident DW to a doctor and that a physician needed to be made aware of her condition.

9. Houston issued a Statement of Deficiency for Charles Family Care Home. She cited twelve Type B violations. Six of the violations involved the failure to adequately care for Resident DW.

10. A Type A violation poses a direct threat to the health and wellness of the resident. A Type B violation may pose a threat or risk. Houston issued Type B violations because the ulcers were still treatable if there was an intervention.

11. At all times relative to this matter, Donna Abruzzo (“Abruzzo’) was employed by 3HC (“3HC”) Home Health and Hospice Care. 3HC provides supportive care to people with medical needs in a home. 3HC provided support to Charles Family Care Home.

12. Petitioner contacted 3HC about Resident DW’s condition on September 13, 2006, which was two weeks after Houston told Petitioner to get help for Resident DW. A nurse from 3HC went out to access Resident DW on September 14, 2006. The nurse presented a document with information for treatment of her pressure ulcers. The nurse explained her concerns with Resident DW’s ulcers and how to care for and dress the wounds to Petitioner.

13. Abruzzo went to Charles Family Care Home to do a follow-up visit on September 19, 2006. The ulcers were much worse then what had been charted five days before. Abruzzo noticed that the ulcers were in the traditional pressure areas that are caused from not being turned or repositioned. There were no dressings on the decubitus ulcers and Resident DW had two insects in her clothing.

3 14. Abruzzo reviewed the wound care with Petitioner and had Petitioner assist her with performing the wound care. She was concerned about the severity and worsening of Resident DW’s condition. Petitioner assured Abruzzo she could care for Resident DW. Abruzzo left Charles Family Care Home, but immediately contacted Colleen Bradley (“Bradley”), RN Case Manager with 3HC, and explained her concerns about the situation.

15. Bradley made an unannounced visit to Charles Family Care Home the next day which was September 20, 2006. Petitioner and Resident DW were not at the home. Bradley contacted Resident DW’s doctor about the situation and made a call to Onslow County Adult Protective Services. Bradley called Onslow Memorial Hospital and found out that Resident DW had been admitted.

16. At all times relative to this matter, Cawana Wilson (“Wilson”) was employed as a Social Worker III in the area of Adult Services by the Onslow Department of Social Services. Wilson, as one of the main Adult Protective Service workers, is charged with conducting site visits to assess situations where there are reports of possible abuse, neglect, or exploitations.

17. Earlier in the day on September 20, 2006, Wilson of Adult Services, and Ranada Cooper (“Cooper”) of Adult Care Specialists, made a visit to Charles Family Care Home. The purpose of their visit was to investigate an anonymous complaint received by the Onslow County Department of Social Services regarding the condition of Charles Family Care Home.

18. Upon their arrival, Wilson and Cooper found Petitioner coming out of the house with Resident DW in a wheelchair. They asked Petitioner were she was going and she explained they were going to the doctor for blood work. Petitioner did not mention the ulcers or explain Resident DW’s condition at this time.

19. Wilson and Cooper made Petitioner take Resident DW back into the house. They observed Resident DW’s body. The decubitus in the sacral area was large enough to fit a fist into it. Wilson told Petitioner she needed to call 911. Petitioner would not call 911, so Cooper finally made the call.

20. Resident DW was transported to the Onslow County Memorial Hospital on September 20, 2006. The reasons for admission were multiple decubitus ulcers and sepsis (a systematic infection that goes through the bloodstream and causes illness). Resident DW’s condition did not improve and she expired on October 10, 2006.

21. The Department of Social Services for Onslow County conducted an investigation into the care provided by Petitioner to Resident DW. They confirmed caretaker neglect and substantiated the need for Protective Services. During the course of the investigation, Resident DW’s doctor was contacted. He said that he had not been made aware of the decubitus ulcers on Resident DW’s buttocks area.

4 22. Cooper made an unannounced visit to Charles Family Care Home to deliver the Complaint Investigation Report and Corrective Action on December 5, 2006. No one was home and the house was vacated. Petitioner had been evicted. She took the remaining residents with her to stay at a hotel. Cooper revoked Petitioner’s license to operate a home health care facility on January 16, 2007.

23. At all times relevant to this matter, Pamela Anderson (“Anderson”) was a nurse investigator with the Health Care Personnel Registry. Anderson is charged with investigating allegations against health care personnel in the northeastern region of North Carolina. Accordingly, she received and investigated the allegation that Petitioner had neglected Resident DW at Charles Family Home Care.

24. Anderson received the complaint from Wilson. Wilson was concerned with Charles Family Care Home because there was a non-ambulatory resident with a stage IV decubitus ulcer in her sacral region, there was spoiled food in the refrigerator, and there was a quadriplegic resident sleeping in the non-ventilated garage.

25. Anderson reviewed documents forwarded to her from 3HC, Onslow County Department of Social Services, and Onslow County Memorial Hospital. She also conducted her own investigation and interviewed the people involved with the incident. Anderson concluded her investigation and substantiated the allegation of neglect.

26. Neglect is the “failure to provide goods and services necessary to prevent physical harm, mental anguish and mental illness.”

27. Anderson substantiated the allegation of neglect against Petitioner. Anderson found that the Petitioner neglected Resident DW by failing to provide adequate care needed for the decubitus ulcers. In this instance, such gross neglect of an otherwise treatable condition resulted in the exacerbation of Resident DW’s condition, which later became so severe that hospitalization was required for treatment.

28. Petitioner was notified by letter that a finding of neglect would be listed against her name in the Health Care Personnel Registry. Attached to the letter was the Entry of Finding, which is the exact substantiated finding as it will appear on the Health Care Personnel Registry. The letter also notified Petitioner of her appeal rights.

29. Petitioner has expressed the desire to open another home health care facility if her name is cleared and removed from the Health Care Personnel Registry.

Based upon the foregoing Findings of Fact, the undersigned 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.

5 2. All parties have been correctly designated and there is no question as to misjoinder or nonjoinder.

3. Petitioner, as a Support Assistant working in a residential care facility, is a health care personnel and is subject to the provisions of N.C. Gen. Stat. § 131E-256.

4. “ Neglect” is defined as “a failure to provide goods and services necessary to avoid physical harm, mental anguish or mental illness.” 10A N.C.A.C. 130.0101, 42 CFR 488.301.

5. On or about 9/20/2006, Petitioner, health care personnel, neglected Resident DW by failing to turn and reposition the total care resident to prevent pressure sores and failing to properly perform wound care to the resident’s decubitus ulcers resulting in Resident DW experiencing physical harm as evidenced by multiple decubitus ranging from stage II to stage IV on Resident DW’s sacral/buttocks, right elbow, bilateral heels, and left foot and Resident DW being hospitalized at Onslow Memorial Hospital for treatment of these decubitus ulcers.

6. Respondent did not act erroneously; there is sufficient evidence in the record to support Respondent’s conclusion that Petitioner neglected Resident DW.

DECISION

Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby determines that Respondent’s decision to place a finding of neglect by Petitioner’s name on the Health Care Personnel Registry should be UPHELD.

ORDER AND 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 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.

6 This the 10th day of July, 2007.

______Fred Morrison Jr. Senior Administrative Law Judge