State of North Carolina s71

STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF WAKE 02 DHR 0091

URSULA PHILOMENA NWAPA, ) Petitioner, ) ) v. ) DECISION ) NORTH CAROLINA DEPARTMENT OF ) HEALTH AND HUMAN SERVICES, ) Respondent. )

This matter was heard before Beryl E. Wade, Administrative Law Judge, on October 3, 2002, in Raleigh, North Carolina.

APPEARANCES

Martin L. Kaplan Attorney at Law PO Box 99655 Raleigh, NC 27624-9655 Counsel for Petitioner

June S. Ferrell Assistant Attorney General, North Carolina Department of Justice PO Box 629 Raleigh, NC 27602 Counsel for Respondent

Whether Respondent

1. acted erroneously; or

2. failed to use proper procedure when Respondent notified Petitioner of its intent to enter a finding of abuse by Petitioner of an assisted living facility resident in the Health Care Personnel Registry.

APPLICABLE STATUTES AND RULES N.C. GEN. STAT. §§ 131E-256 N.C. GEN. STAT. § 150B-23 10 NCAC 3B .1001(1)

-1- EXHIBITS

The following exhibits were admitted into evidence:

1. Respondent’s Exhibit #1 Typed Letter from Ursula Nwapa to Office of Administrative Hearings, dated December 7, 2001

2. Respondent’s Exhibit #2 HCPR Interview of Petitioner, dated December 7, 2001

3. Respondent’s Exhibit #3 HCPR Letter to Petitioner dated December 17, 2001

4. Respondent’s Exhibit #4 HCPR Interview of Sabally Bubacarr, dated October 18, 2001

5. Respondent’s Exhibit #5 Clare Bridge Cottage Floor Plan, dated October 18, 2001

6. Respondent’s Exhibit #6 Handwritten Statement of Sabally Bubacarr, dated October 18, 2001

7. Respondent’s Exhibit #7 Handwritten Sketch by Sabally Bubacarr

8. Respondent’s Exhibit #8 HCPR Interview of Ronnetta Newton, dated November 8, 2001

9. Respondent’s Exhibit #9 HCPR Additional Notes of Jackie King’s Statement

10. Respondent’s Exhibit #11 HCPR Interview of Victoria Ibikunle, dated October 23, 2001

11. Respondent’s Exhibit #12 Handwritten Statement of Victoria Ibikunle, dated August 28, 2001

12. Respondent’s Exhibit #13 Additional Notes of Victoria Ibikunle’s Statement dated November 8, 2001

13. Respondent’s Exhibit #14 Handwritten Statement of Ronnetta Newton, dated August 28, 2001

14. Respondent’s Exhibit #15 HCPR Investigative Conclusion, dated December 1, 2001

15. Respondent’s Exhibit #16 Alterra’s Resident Log on Resident M.H.

Based upon the documents filed in this matter, exhibits admitted into evidence and the sworn testimony of the witnesses, the undersigned makes the following:

STIPULATION

-2- At the hearing the parties orally stipulated as follows: That all documents provided during discovery are genuine, and if relevant, and material, may be received into evidence without further identification or proof.

FINDINGS OF FACT

1. At all times relevant to this matter, Petitioner, a certified nurse’s assistant (hereinafter “CNA”), was employed as a health care personnel. Tr pp 9-10.

2. At all times relevant to this matter, Petitioner was employed at Alterra Clare Bridge Cottage (hereinafter “Clare Bridge”) in Raleigh, NC. While employed at Clare Bridge, Petitioner worked as a CNA. Tr pp 13-14.

3. Clare Bridge Cottage is an assisted living facility that provides to care to demented residents. Tr p 197.

4. At all times relevant to this matter, Ronnetta P. Newton was employed as a resident assistant at Clare Bridge. Tr pp 130-131.

5. At all times relevant to this matter, Victoria Ibikunle was employed as a CNA at Clare Bridge. Additionally, Ms. Ibikunle was designated as a Supervisor-in-Charge (hereinafter “SIC”). Tr pp 147-150.

6. At all times relevant to this matter, Teon Davis was employed as an LPN at Clare Bridge. Tr pp 197-202.

7. At all times relevant to this matter, Jacqueline King was employed as a CNA at Clare Bridge. Additionally, Ms. King was designated as an SIC. Tr pp 214-215.

8. At all times relevant to this matter, Sabally Bubacarr was employed as a CNA at Clare Bridge. Tr pp 227-228.

9. At all times relevant to this matter, Ronwixziv Barreiro was a former co-worker of Petitioner. Ms. Barreiro was never employed by Clare Bridge and had no personal knowledge of the alleged incident that occurred at Clare Bridge on August 26, 2001. Tr pp 302-305.

10. At all times relevant to this matter, Sarah Flowers, RN, was employed as a Nurse Investigator with Respondent. Tr p 296.

11. At all times relevant to this matter, Resident M.H. resided at Clare Bridge. M.H. was a very nice, quiet person. M.H. had a diagnosis of Alzheimer’s disease. As a result of the Alzheimer’s disease, M.H. was no longer able to communicate. M.H. spent most of her time walking around the facility or sitting in the day room in a recliner while she watched television. M.H. often slept in the recliner. M.H. had no history of combative or aggressive behavior. Tr pp 18, 48-56, 132-134, 151-155, 229-230; R.Exs. 2, 4, 8, 9 and 11.

-3- 12. On August 26, 2001, Ms. Newton worked from 7:00 a.m. to 3:00 p.m. During the shift, Ms. Newton observed M.H. walking about the facility unassisted. As she was leaving work, Ms. Newton saw M.H. standing by one of the exit doors. Ms. Newton hugged M.H. and then left the facility. Ms. Newton testified that she was unaware of any altercation that occurred between M.H. and any other resident on August 26, 2001. In fact, the only problem that M.H. had during her shift was loose bowels. Tr pp 131, 134-137; R.Exs. 8 and 14.

13. On August 26, 2001, Ms. Ibikunle worked as the SIC at Clare Bridge from 7:00 a.m. until 11:00 p.m. During her shift, Ms. Ibikunle observed M.H. walking about the facility unassisted. Ms. Ibikunle testified that she was unaware of any altercation that occurred between M.H. and any other resident on August 26, 2001. In fact the only problem that M.H. had during her shift was loose bowels. Tr pp 150-155, 40-49; R.Exs. 11, 12 and 13.

14. Between the hours of 3:00 p.m. and 11:00 p.m., Ms. Ibikunle supervised two CNAs, one of whom was Mr. Bubacarr. At 11:00 p.m., Petitioner replaced Ms. Ibikunle as the SIC. Petitioner worked from 11:00 p.m. on August 26 until 7:00 a.m. on August 27, 2001. Tr pp 16- 19, 150-151, 158-160; R.Exs. 1, 2, 11, 12 and 13.

15. Petitioner arrived at Clare Bridge at 11:00 p.m. Upon arrival, Petitioner and Ms. Ibikunle proceeded to the nurse’s station where they counted the medications. Ms. Ibikunle gave Petitioner the shift report. Around 11:15 p.m., Ms. Ibikunle’s son arrived to take her home and she left shortly thereafter. When Ms. Ibikunle left work, M.H. was sitting in the recliner in the living room. Ms. Ibikunle was unaware of any injury that had occurred to M.H. on August 26, 2001. In fact, during her shift, M.H. was walking around the facility and nothing was wrong with her. Tr pp 16-17, 158-160, 167-168; R.Exs. 1, 2, 11, 12 and 13.

16. Although Mr. Bubacarr was scheduled to work from 3:00 p.m. until 11:00 p.m. on August 26, 2001, he was asked to work the 11:00 p.m. until 7:00 a.m. on August 26-27, 2001. During the 11:00 p.m. to 7:00 a.m. shift, Petitioner provided care to the female residents and Mr. Bubacarr provided care to the male residents. Tr pp 29-30, 226-229, 233; R.Exs. 1, 2, 4 and 6.

17. At 11:00, Mr. Bubacarr was seated in the living room on the C Hall folding clothes. M.H. was seated near him in the recliner; she was watching television. At other times during the evening, Mr. Bubacarr observed M.H. walking around the facility unassisted. At one point, M.H. returned to the living room and sat down in the chair. Mr. Bubacarr put a cover over her and put the recliner up. While Mr. Bubacarr was folding clothes, Petitioner approached M.H., called her by her name and, in a very loud tone of voice, said to her, “Come on. Let me go and change you.” M.H. had a frightened look on her face and she grabbed the arms of the chair. When M.H. did not comply with Petitioner’s instructions, Petitioner grabbed M.H. by the arm and pulled M.H. towards the footrest of the recliner causing M.H. to slide down and fall out of the chair. Petitioner then forced M.H. down the hallway and into her room. Mr. Bubacarr observed Petitioner close the door to M.H.’s room. Mr. Bubacarr left the C Hall and went to B Hall to check on his residents. Later that evening as Mr. Bubacarr was returning to C Hall, he observed Petitioner and M.H. coming out of M.H.’s room. M.H. was using another resident’s

-4- walker and she was limping. Petitioner returned M.H. to the living room and seated her in the recliner. M.H. looked very frightened. During the remainder of the shift, M.H. winced and grimaced with pain. Tr pp 231-245; R.Ex. 4.

18. Petitioner questioned Mr. Bubacarr about an alleged altercation between M.H. and another resident. Petitioner told Mr. Bubacarr that someone had told her that M.H. and another resident had been fighting earlier. Mr. Bubacarr informed Petitioner that he had no knowledge of any altercation involving M.H. and any other resident during the prior shift when he had worked. Tr pp 42-43, 244; R.Exs. 1, 2, 4 and 6.

19. Petitioner testified that, when she reported to work, Ms. Ibikunle informed her that M.H. and her roommate, H.K., had been fighting. She stated that she first saw M.H., between 11:00 p.m. and 12:00 a.m., sitting in the recliner, sleeping. Next, she saw M.H. when Petitioner did her rounds at 12:00. At this time, Petitioner opened M.H.’s pants to check her for wetness. Throughout the night as Petitioner walked through the facility, she saw M.H. sleeping in the recliner. Petitioner testified that she again checked M.H. at 2:00 a.m. and 4:00 a.m. . At approximately 5:20 a.m., Petitioner woke M.H. and told her that it was time to get cleaned up. When Petitioner attempted to get M.H. up, Petitioner noticed that M.H. was stooping towards her. Petitioner then returned M.H. to the recliner and got a walker. With the aid of the walker, Petitioner took M.H. to her room and cleaned and dressed her. Petitioner stated that although M.H. did not say anything, she could tell that something was wrong from the expression on M.H.’s face. Next, Petitioner stated that she approached Mr. Bubacarr and questioned him about M.H.’s condition. Petitioner claimed that she called M.H.’s doctor, the facility nurse and Ms. Ibikunle. She also claimed to have completed an incident report on M.H. Tr pp 34-48; R.Exs. 1 and 2.

20. Shortly thereafter, Ms. King reported to work. She was scheduled to work as the SIC on the 7:00 a.m. to 3:00 p.m. shift at Clare Bridge on August 27, 2001. Petitioner explained that M.H. could not walk and that she had tried, unsuccessfully, to call the doctor and the nurse. Ms. King intervened and informed Petitioner that it was too early in the day to call the doctor’s office and that she would handle it. Petitioner acted nervous and fidgety. Petitioner informed Ms. King that M.H. and H.K. had fought on August 26th. Ms. King responded in disbelief to Petitioner’s explanation because it was out of character for either M.H. or H.K. to fight. Tr pp 214-218; R.Ex 9.

21. Ms. King notified Matt Cross, the resident director of Clare Bridge, of M.H.’s condition. Mr. Cross contacted Ms. Davis and asked her to examined M.H. Ms. King and Ms. Davis entered M.H.’s room and assess M.H. M.H. was in bed; her knee was swollen, there was a skin tear on her arm and she could not walk. M.H. was transported to the hospital. She was diagnosed as having a broken hip. Tr pp 216-218, 198-202; R.Ex. 16. 22. Petitioner testified that on August 27th, Sarah Jacobs, the director at Clare Bridge, called her and told her not to report to work. Ms. Jacobs informed Petitioner that she was suspended from work because of what had happened to M.H. Tr pp 56-57; R.Exs. 1 and 2.

23. On August 27th, Petitioner telephoned Ms. Ibikunle at her second job at Rex Hospital and

-5- questioned her about the fight between M.H. and H.K. Petitioner stated that Ms. Ibikunle informed her that she had said M.H. and H.K. had loose B.M. earlier that day. Petitioner responded by telling Ms. Ibikunle that she was coming to Rex to talk to her face-to-face. Tr pp 56-61; R.Exs. 1, 2, 11 and 12.

24. Petitioner stated that she confronted Ms. Ibikunle about what had happened to M.H. and that Ms. Ibikunle stated that M.H. had been fighting with residents, Mr. C. and Mr. T. Tr pp 62- 63.

25. When Petitioner came to see Ms. Ibikunle at Rex Hospital, Ms. Ibikunle was unaware of M.H.’s injury. Ms. Ibikunle became aware of M.H.’s condition when Mr. Cross telephoned her at Rex Hospital. Ms. Ibikunle testified that Mr. Cross called her on the day after Petitioner visited her at Rex Hospital. Tr pp 167-168, 183-185; R.Exs. 1, 2, 11 and 12.

26. Ms. Ibikunle denied that she had never told Petitioner that M.H. had been in a fight with anyone on August 26th. She maintained that M.H. and H.K. experienced loose stools on that day. Ms. Newton’s testimony supported Ms. Ibikunle’s testimony. Tr pp 135-136, 150-153, 160-167; R.Exs. 8, 11, 12, 13 and 14.

27. Ms. Newton testified that after August 26th, Petitioner called her at home on multiple occasions. The first time Petitioner called Ms. Newton, she accused Ms. Newton and Ms. Ibikunle of hurting M.H. Tr pp 137-140; R.Exs. 8 and 14.

28. Mr. Bubacarr had started working at Clare Bridge in February, 2001. This was also his first job as a care-giver. Prior to August 26-27, 2001, Mr. Bubacarr had never witnessed resident abuse. Although he had been trained with respect to the policies and procedures of Clare Bridge, Mr. Bubacarr could not recall any specific training with respect to resident abuse. Tr pp 245- 247; 286-287.

29. Mr. Bubacarr understood that he was required to report abuse to his supervisor. On August 26-27, 2001, Petitioner supervised him. He testified that, since Petitioner, his supervisor, was aware that she had abused M.H., he thought he had no additional responsibility to report the abuse of M.H. He expected Petitioner to handle the matter. Tr pp 245-246, 286-287.

30. Mr. Cross conducted the in-house investigation with respect to the allegation of abuse by Petitioner. Upon completion of the investigation, Mr. Cross forwarded the facility’s investigation to Respondent for review.

31. Ms. Flowers investigated and substantiated the allegation of abuse by Petitioner against resident, M.H. Tr p 296; R.Exs. 3 and 15.

32. Ms. King was a credible witness. She had no interest in the outcome of the case and her testimony was consistent with her prior statements.

33. Ms. Newton was a credible witness. She had no interest in the outcome of the case and

-6- her testimony was consistent with her prior statements.

34. Ms. Ibikunle was a credible witness. She had no interest in the outcome of the case and her testimony was consistent with her prior statements.

35. Mr. Bubacarr was a credible witness. He had no interest in the outcome of the case and his testimony was consistent with his prior statements.

36. By letter, sent via certified mail, on December 17, 2001, Respondent notified Petitioner that the Department had substantiated the allegation of abuse against Petitioner and that the substantiated finding would be entered into the Health Care Personnel Registry. The letter also notified Petitioner of her right to contest the entry of the substantiated finding of abuse in the Nurse Aide Registry and the Health Care Personnel Registry. R.Ex. 3.

37. ‘"Abuse" is defined by 42 CFR Part 488 Subpart E which is incorporated by reference, including subsequent amendments. . . .’ 10 NCAC 3B .1001(1). Abuse is defined in 42 CFR 488.301 as follows:

“ Abuse” means the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish.

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. 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 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 have a substantiated finding of resident abuse, resident neglect, misappropriation of resident property, misappropriation of facility property, diversion of resident drugs, diversion of facility drugs, fraud against a resident or fraud against a facility.

4. As a health care personnel, Petitioner is subject to the provisions of N.C. Gen. Stat. § 131E-256.

5. Alterra Clare Bridge Cottage, an assisted living facility, is a health care facility as defined in N.C. Gen. Stat. § 131E-256(b).

-7- 6. On August 26, 2001, Petitioner abused M.H. when she pulled the resident from a recliner onto the floor and drug the resident on the floor. As a result of Petitioner’s actions, L.G. suffered a broken hip which required medical treatment.

7. Respondent did not err in substantiating the finding of abuse against Petitioner of the assisted living resident, M.H.

RECOMMENDED DECISION

That the North Carolina Department of Health and Human Services, Division of Facility Services, Health Care Personnel Registry Section did not err when it notified Petitioner of its intent to enter a substantiated finding of abuse against Petitioner of an assisted living facility resident, M.H. in the Health Care Personnel Registry.

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, NC 27699-6714, in accordance with N.C. Gen. Stat. § 150B-36(b).

NOTICE

The Agency making the final decision in this contested case is required to give each party an opportunity to file exceptions to this recommended decision and to present written arguments to those in the agency who will make the final decisions. 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.

The agency that will make the final decision in this contested case is the North Carolina Department of Health and Human Services, Division of Facility Services.

This the 18th day of December, 2002.

______Beryl E. Wade Administrative Law Judge