Petitioner: Joy Rhyne Webb, Esq

STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF ROWAN 04 DHR 1135

PHYLLIS BRYANT DUREN, ) Petitioner, ) ) v. ) N.C. DEPARTMENT OF HEALTH AND ) DECISION HUMAN SERVICES, DIVISION OF ) FACILITY SERVICES, ) Respondent. ) )

This contested case was heard before the Honorable James L. Conner, II, Administrative Law Judge, in High Point, North Carolina on October 29, 2004. Petitioner filed her Proposed Decision on January 14, 2005, and Respondent filed its Proposed Decision on January 19, 2005.

APPEARANCES

Petitioner: Joy Rhyne Webb, Esq. Browne, Flebotte, Wilson, Horn & Webb, PLLC P.O. Box 2247 Durham, NC 27702

Respondent: N. Morgan Whitney, Jr. Assistant Attorney General North Carolina Department of Justice 9001 Mail Services Center Raleigh, NC 27699-9001

Whether Respondent deprived the Petitioner of property, or otherwise substantially prejudiced the Petitioner's rights, and exceeded its authority or jurisdiction, acted erroneously, failed to use proper procedure, acted arbitrarily or capriciously, and/or failed to act as required by law or rule, when it substantiated the following allegations of neglect and decided to list Petitioner on the Health Care Personnel and/or Nurse Aide Registries:

“On or about 3/20/2004, Phyllis Duren, a Health Care Personnel, neglected a resident (L.H.) by failing to call Emergency Medical Services or to notify her supervisor when the resident was in need of Emergency Medical Services, and failing to do follow up checks with the resident to assess his condition, which resulted in a delay of the resident receiving needed medical attention.” (Resp. Ex. 22) APPLICABLE STATUTES AND RULES

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

EXHIBITS

For Petitioner: 4 and 5. For Respondent: 1-5, 9-15, 17, 19-22.

FINDINGS OF FACT

In making the Findings of Fact, the undersigned has weighed all the evidence and assessed the credibility of the witnesses. The undersigned has taken into account the appropriate factors for judging credibility of witnesses, including but not limited to the demeanor of the witness, any interests, bias, or prejudice the witness may have. Further, the undersigned has carefully considered 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. Bethamy Retirement Center (hereinafter “the Home”) is an assisted living facility located in Spencer, North Carolina. In order to provide services to its residents the Home employs Medical Technicians (Med Techs). (Resp. Ex. 1, 2) The Court notes that in the Transcript of this hearing “Bethamy” was consistently misspelled as “Bethany.” Both refer to the Home.

2. On March 20, 2004, Petitioner was present in the Home and working there in the capacity of a Med Tech. (Resp. Ex. 1, 2; T. pp. 133, 137)

3. On March 20, 2004, L.H. was a resident of the Home. L.H. had been diagnosed with recent pneumonia, congestive heart failure, hypertension, anxiety, depression, hypercholesterolemia, chronic back pain, coronary artery disease, rheumatic heart disease, hyperlipidemia and arthritis. (Resp. Ex. 5; T. pp.)

4. On March 20, 2004, the following persons were working in the Home:

2 a. Tim Johnson, maintenance (Resp. Ex. 11; T. p. 37) b. Judy Bowman, housekeeper (Resp. Ex. 12) c. Elizabeth “Sissy” Eason, cook (Resp. Ex. 14; T. p. 79) d. Felicia McLeave, PCA/CNA (Resp. Ex. 12; T. p. 52)

5. On March 20, 2004, Susan Morris was the Administrator/Owner of the Home. (Resp. Ex. 15; T. p. 10)

6. On March 20, 2004, Sue Johnson was a Supervisor in Charge (SIC) employed by the Home and lived in a house immediately adjacent to the Home. (Resp. Ex. 17; T. pp. 69-70)

7. Petitioner arrived at work on March 20, 2004 and worked first shift from 7:00 a.m. until 3:00 p.m. (T. pp. 54, 137, 141)

8. Petitioner was frustrated because she was the only nurse aide and/or health care personnel who was present that morning. (T. p. 137)

9. She administered medications to patients and eventually came to L.H.’s room. When she got to him she noted that, “ . . .he was really sick. He was sick.” Petitioner also testified, “his head was real swollen.” She went on to testify that she told him “he didn’t look well” and asked him “could he please let me call the – you know, the ambulance.” L.H. responded, “No, get out of my room. Give me my medicine and leave.” Petitioner left the room. (T. pp. 137-38)

10. At approximately 8:30 a.m., Petitioner spoke to Tim Johnson and asked him, “Go and see if you can get him to let you call the ambulance because he looks very bad.” (T. pp. 40- 41, 139)

11. Tim Johnson went to L.H.’s room and spoke with him. L.H. seemed “okay” to him. Though L.H. did seem like “he was sort of in and out of it,” Petitioner had said L.H. probably had too much morphine and Johnson attributed L.H.’s condition to that. (T. pp. 40-41)

12. After Petitioner finished the meds pass between 9:00 a.m. and 9:30 a.m. she decided that she was going to quit her job. She left the Home. (T. pp. 140-41) Petitioner asserted that she told everyone working in the Home that she was going to leave. (Resp. Ex. 9, 10; T. p. 140)

13. Sometime between 9:30 and 10:00 a.m., Judy Bowman went into L.H.’s room to clean. She found L.H. lying on his bed and he was, “real white and swelled up.” She tried to talk to him but he wouldn’t respond. He also seemed to be having trouble breathing. She left the room to go get help. (Resp. Ex. 12; T. p. 45-46)

14. Ms. Bowman first found Mr. Johnson and asked if he had seen Phyllis, the Petitioner. Ms. Bowman told Mr. Johnson that L.H. needed medical attention and that they needed to find the Petitioner. Ms. Bowman also found Felicia McLeave, and told her the same. Mr. Johnson returned to the room with Felicia McLeave. L.H. was disoriented; he did not know

3 his date of birth or his age. L.H. was described as talking “out of his head.” L.H. was “swollen” and “turning blue.” Mr. Johnson radioed Susan Morris, the Administrator, on his Nextel phone. Ms. Morris directed them to call EMS immediately. (Resp. Ex. 11, 13; T. pp. 35-38, 40, 45, 48)

15. EMS arrived and took L.H. to the hospital. He was diagnosed as having pneumonia and congestive heart failure. He was admitted to the Intensive Care Unit and stayed in the hospital for five days. Pneumonia is a condition that can exacerbate congestive heart failure. (T. pp. 24, 116-17, 131)

16. Ms. Bowman had seen the Petitioner earlier that morning. The Petitioner had mentioned something about leaving or quitting. Ms. Bowman said that it was not unusual for the Petitioner to get aggravated and talk about quitting. Ms. Bowman did not take her seriously. (Resp. Ex. 12; T. p. 46-47)

17. Petitioner never told Susan Morris, Tim Johnson, Judy Bowman, Felicia McLeave or Sue Johnson that she was quitting her job and leaving the Home. (Resp. Ex. 11, 12, 13; T. pp. 12, 40, 52, 71)

18. Tim Johnson, Judy Bowman and Felicia McLeave all stated that if there was a medical problem on a weekend they knew they should call Susan Morris. (Resp. Ex. 11, 12, 13; T. pp. 40, 50, 55)

19. Petitioner’s witness, Vicki Medrano was formerly employed by the Home, testified that if an emergency arose, the Med Tech was the first person that should be notified, then the Supervisor in Charge. Further, if no one was there, Susan Morris was the person to call, though she was sometimes difficult to reach. Ms. Medrano knew this even though she had not worked at the Home in several months (T. pp. 171-73)

20. Petitioner repeatedly testified that she did not call EMS because L.H. had the “right to refuse” and that his right to refuse was to be given more weight than her opinion that L.H. was in need of hospitalization. (T. pp. 135-36, 153-54)

21. The Home’s “Personnel Policy Manual” has a section entitled “Plans for Sudden Illness, Accident, or Death.” It is brief, and states in pertinent part as follows:

THE SUPERVISOR IN CHARGE OR RELIEF PERSON WILL MAKE THE FOLLOWING DECISIONS

Call the physician listed on the Resident Register (DSS-1865). If necessary, call medical rescue: 911

(Resp. Ex. 20)

22. Petitioner was neither the “Supervisor in Charge” nor the “Relief Person.”

23. There was no medical professional at the Home on the day in question: no doctor, no registered nurse, not even an LPN. Petitioner, who had Personal Care Assistant training and a

4 certificate allowing her to administer patient medications, was the de facto person in charge that morning.

24. Petitioner testified that she did not know whom she was to call in the case of a medical emergency. (Resp. Ex. 9, 10, 20; T. pp. 151, 159-161)

25. Petitioner admitted that the patients in the Home were her responsibility and that she did not check back in on L.H. before she quit. (T. p. 156)

CONCLUSIONS OF LAW

1. The parties are properly before the Office of Administrative Hearings and have stipulated that Notice of this hearing was timely. The parties further stipulate that there are no known reasons why the undersigned should recuse himself of hearing this matter.

2. 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 and -256 to maintain a Registry that contains the names of all nurse aides and/or health care personnel working in nursing facilities and/or health care facilities against whom a finding of abuse, neglect of a resident or misappropriation of resident and/or facility property has been substantiated.

3. The Respondent uses the definition of neglect found in 42 CFR 488.301 which states that, “Neglect means failure to provide goods and services necessary to avoid physical harm, mental anguish, or mental illness.”

4. Bethamy Retirement Center is a “nursing facility” as defined in N.C. Gen. Stat. § 131E-255 and is also a “health care facility” as defined in N.C. Gen. Stat. § 131E-256. In order to provide these services to its residents the Home employs Med Techs, who are “health care personnel” subject to the provisions of N.C. Gen. Stat. § 131E-256.

5. Petitioner is a Med Tech and is subject to the provisions of N.C. Gen. Stat. § 131E-256.

6. Petitioner left the Home on March 20, 2004 without notifying anyone in the chain of command that L.H. was sick and needed immediate medical attention. (T. p. 209)

7. Petitioner correctly made the determination that L.H. was sick and needed emergency care. Petitioner’s failure to call EMS delayed that care. Petitioner’s failure to notify anyone in charge at the facility that she was quitting and that L.H. was sick further delayed the necessary emergency care.

8. Petitioner’s contention that patients have the right to refuse care has merit. Respondent frequently brings cases before this court in which a health care worker is charged with abuse for attempting to force upon a patient something he or she has refused. The fact that the Personnel Policy Manual explicitly reserves the right to call 911 to the Supervisor in Charge also bears on the question of what Petitioner was required to do. Finally, the complete absence

5 of medical professionals from the facility is troubling, as is the lack of clear channels of access to medical professionals for Petitioner, the most senior paraprofessional on duty that morning.

9. The facility bears a great deal of responsibility for the situation that is the subject of this case.

10. However, even in that somewhat confusing context, Petitioner should not have simply left the facility, not to return, knowing a patient was in medical distress. There were a number of courses of action she could have taken. First, she could have called an ambulance. The patient could still have refused care when the ambulance arrived, but at least qualified emergency responders with clear channels of communication to medical professionals would have been on the scene and could have dealt with the right-to-refuse issues. Second, she could have found the supervisor’s phone number and called her. Third, she could have walked next door to alert Sue Johnson to the situation. Finally, at the very least, before departing she could have alerted the other paraprofessional, Felicia McCleave, of L.H.’s condition and that she was quitting and leaving.

11. I cannot accept Respondent’s contention that Petitioner clearly should have called an ambulance, despite her training in the patient’s right to refuse, despite the patient’s clear refusal, and despite the Personnel Policy Manual’s clear reservation of the power to call 911 to the Supervisor in Charge.

12. However, Petitioner’s failure to alert anyone other than the maintenance man to L.H.’s condition, while being clear in her own mind that his condition was serious, before permanently departing the facility was neglect.

13. Petitioner failed to provide goods and services (i.e. a phone call to EMS and/or the Supervisor in Charge at the Home) to L.H.

14. L.H.’s medical condition (i.e. congestive heart failure coupled with undiagnosed pneumonia) was one that certainly would have resulted in harm if not treated. Therefore, emergency medical treatment was necessary to avoid such harm.

15. Sufficient evidence existed to support the Respondent’s decision to substantiate the above allegation of neglect.

DECISION

BASED UPON THE FOREGOING FINDINGS OF FACT AND CONCLUSIONS OF LAW the undersigned hereby determines that Respondent's substantiation of and decision to list the aforementioned allegations of neglect in the Nurse Aid and/or the Health Care Personnel Registries is UPHELD.

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).

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 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.

This the 4th day of March, 2005.

______James L. Conner, II Administrative Law Judge