State of North Carolina s33

STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF NEW HANOVER 05 DHR 0462

PAMELA PYLANT JONES, ) ) Petitioner, ) ) v. ) DECISION ) N.C. DEPARTMENT OF HEALTH AND ) HUMAN SERVICES, DIVISION OF ) FACILITY SERVICES, ) ) Respondent.

THIS CAUSE, coming on to be heard and being heard before the Honorable James L. Conner, II, Administrative Law Judge presiding over the 12 May 2005 hearing on the petition herein at 1121 N. Lake Park Boulevard, Carolina Beach, New Hanover County, North Carolina. Petitioner submitted her proposed decision on December 1, 2005.

Both parties were present and represented by counsel, Charles M. Lineberry, Jr. of the New Hanover County Bar for the Petitioner, and N. Morgan Whitney, Jr. for the NC Department of Justice for the Respondent.

Whether Respondent substantially prejudiced Petitioner’s rights when it substantiated allegations that on or about October 29 and November 9 2004, Petitioner abused Cornelia Nixon Davis Health Care residents MP and ND.

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 10 NCAC 3B.1001

EXHIBITS

Petitioner’s Exhibits 1 through 8 were admitted.

Respondent’s Exhibits 1 – 6; pages 1&2 of Exhibit 7; 8-12; 14-21; pages 1 & 2 of Exhibit 22; and 23-25 were admitted. 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 exhibit admitted into evidence, and the entire record in this proceeding, the undersigned makes the following Findings of Fact:

1. Petitioner is a citizen and resident of New Hanover County, North Carolina.

2. Respondent is the Division of Facility Services, the Health Care Personnel Registry Section of the North Carolina Department of Health and Human Services, charged with maintaining the Nurse Aide Registry and the Health Care Personnel Registry.

3. In October 2004, Petitioner was a Nurse Aide employed by Cornelia Nixon Davis Health Care in Wilmington, North Carolina.

4. During her employment, allegations were made against Petitioner by a co-worker, Heidi Crenshaw, as follows:

a. That on or about 29 October 2004, Petitioner abused a resident (MP) by “popping” her on the side of her ace with an open hand. Crenshaw alleged that, while she and Petitioner were attempting to get MP into bed, MP became resistant and slapped Crenshaw, whereupon Petitioner responded by slapping MP in the face. Crenshaw also testified that, at the time of the event, it did not make a sound, nor was she sure if it had happened at all until she took time to reflect upon it.

b. That on or about 9 November 2004, Petitioner abused a resident (ND) by hitting her in the back of the head with her fist. Crenshaw alleged that she and Petitioner were attempting to transfer NS, who was annoyed with the process, from her wheelchair into her bed. Crenshaw alleged that Petitioner his ND in the back of the head with her fist. Crenshaw testified that the strike did not cause ND’s head to move. Crenshaw also alleged that Petitioner as not angry at the residents, but merely aggravated by their behavior.

5. Respondent conducted an investigation of the allegations from 10 December 2004 until 27 January 2005. The evidence supporting the allegations consisted of an interview with a witness and reviewing the facility documentation.

6. After conducting its investigation, Respondent substantiated the allegations of abuse. Upon substantiating allegations of abuse, Respondent made an Entry of Finding in both cases against Petitioner in the Nurse Aide I Registry and Health Care Personnel Registry. 7. At the hearing of this matter, Petitioner testified that any contact between her and the residents which might be construed as abusive either did not occur or was accidental.

8. While both Crenshaw, a young and inexperienced nurse aide, and Petitioner, a CNA with more than 23 years experience, appeared to the court to be highly credible witnesses, the allegations against Petitioner were inconsistent with Petitioner’s service background, employment history and experience, having received the “Caring Spirit Nominee – employee of the Month” award in February 2004 and again in July 2004, the “Team Member of the Month – August 2004”, the “Perfect Attendance Award” in February 2004, among other accolades from her employer. In light thereof, Petitioner’s testimony that the conduct, however perceived by others, was accidental and not intentional was more credible and therefore acceptable.

9. There is not evidence that Petitioner intended to or willfully abused, nor willfully inflicted injury, nor unreasonably willfully confined, nor willfully intimidated or willfully punished either resident.

10. Any contact between Petitioner and resident MP’s face did not make a sound. Crenshaw was not even sure if it had occurred at all until she reflected upon it. Any contact between Petitioner and resident ND’s head did not cause her head to move.

11. There was not contact between Petitioner and either resident that might have been construed as abuse which resulted in either resident suffering physical harm of injury, nor was there any evidence that either resident cried out of became teary eyed or indicated they had suffered any emotional response to such alleged contact which reasonably would have caused mental anguish.

Based upon the foregoing FINDINGS OF FACT, the court makes the following:

CONCLUSIONS OF LAW

1. The court has jurisdiction of the parties and of the subject matter of this action, and the matter is properly before the court.

2. “Abuse” is defined by 42 CFR, Part 888, Subpart E as “the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain, or mental anguish.”

3. The North Carolina Department of Health and Human Services, Division of Facility Services, Health Care Personnel Registry Section is required by N.C. Gen. Stat. §§ 131E-255 to maintain a Registry that contains the names of all nurse aides working in nursing homes who are subject to a finding by the Department that they abused a nursing home resident.

4. As a certified nurse aide, Petitioner is subject to the provisions of N.C.G.S. § 131E-255.

5. The North Carolina Department of Health and Human Services, Division of Facility Services, Health Care Personnel Registry Section is required by N.C. Gen. Stat. §§ 131E-256 to maintain a Registry that contains the names of all health care personnel 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.

6. As a health care personnel, petitioner is subject to the provisions of N.C.G.S. § 131E-256.

7. Cornelia Nixon Davis Health Care, a nursing home, is a health care facility as defined in N.C.G.S. § 131E-256(b)(6).

8. Petitioner did not physically abuse either resident MP or ND. Furthermore, there is not objective evidence to support the allegations of abuse in that the conduct complained of, in light of the testimony of the one making the allegations, does not rise to the level of abuse. The contact was neither intentional nor willful and there is no objective evidence that the residents suffered any pain of suffered any injury.

9. Respondent erred in substantiating the findings of abuse against Petitioner in both cases.

10. Respondent’s finding of abuse against Petitioner was not properly listed in the Nurse Aide I Registry and the Health Care Personnel Registry, and should be corrected.

DECISION

Based on the foregoing FINDINGS OF FACT and CONCLUSIONS OF LAW, IT IS ORDERED that the Petition filed herein be granted, and that the Entry of Findings made by Respondent to the Nurse Aide I Registry and the Health Care Personnel Registry be set aside in both cases.

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 decision of the Administrative Law Judge in this contested case will be reviewed by the agency making the final decision according to the standards found in G.S. 150B-36(b)(b1) and (b2). The agency making the final decision is required to give each party an opportunity to file exceptions to the decision of the Administrative Law Judge and to present written argument to those in the agency who will make the final decision. G.S. 150B-36(a). The agency that will make the final decision in this contested case is the North Carolina Department of Environment and Natural Resources. This the 6th day of January 2006.

______James L. Conner, II Administrative Law Judge