State of North Carolina s113

STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF HOKE 01 DHR 2329

TAMMY BALDWIN, ) Petitioner, ) ) v. ) ) DECISION DEPARTMENT OF HEALTH AND ) HUMAN SERVICES, DIVISION OF ) FACILITY SERVICES, ) Respondent. )

This matter was heard before Fred G. Morrison Jr., Senior Administrative Law Judge, on April 8, 2002 in Fayetteville, North Carolina and on August 14, 2002 in Lumberton, North Carolina.

APPEARANCES

For Petitioner: Tammy Baldwin, pro se 289 Northwoods Drive Raeford, North Carolina 28376

For Respondent: Jane L. Oliver Assistant Attorney General N.C. Department of Justice Post Office Box 629 Raleigh, North Carolina 27602-0629

ISSUES

Whether Respondent failed to use proper procedure, failed to act as required by law or rule or otherwise substantially prejudiced Petitioner’s rights when it determined that:

(1) on or about August 14, 2001, Petitioner abused W.F., a resident of a health care facility, by escorting the resident to his bedroom accompanied by another staff member, closing the door, hitting the resident on his shoulder and thigh with her fist and kicking the resident on his foot in retaliation for the resident’s drinking another staff member’s soda; and

(2) on or about September 1, 2001, Petitioner abused J.A., a resident of a health care facility by throwing a shoe at the resident, hitting the resident on the leg in an effort to stop the resident from hitting himself in the groin.

-1- Respondent concedes that there was insufficient evidence presented at the hearing to support the substantiation of the allegation that Petitioner abused W.F. on or about August 14, 2001. APPLICABLE STATUTES AND RULES

N.C. Gen. Stat. § 131E-256 N.C. Gen. Stat. § 150B-23 et seq. 10 NCAC 3B.1001

EXHIBITS

The following exhibits were admitted into evidence without objection: Respondent’s Exhibits 1, 2A-2C, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19.

FINDINGS OF FACT

Based upon the exhibits admitted into evidence and the sworn testimony of the witnesses, the undersigned makes the following findings:

1. From December 1998 to September 2001, Petitioner was employed as a habilitation technician at Forest House in Lumberton, North Carolina.

2. Forest House is a residential facility for developmentally disabled adults. As such, Forest House is a “health care facility” as that term is defined in statutes.

3. Petitioner received extensive training while working as a habilitation technician at Forest House. Petitioner received “core training” which included documentation, incident reports, standard first aid and CPR. She also received instruction in areas such as communicating with individuals with disabilities, protective intervention techniques, and medication administration. Finally, through her employment, Petitioner received annual training in resident rights and staff responsibilities. Petitioner’s training covered various forms of abuse including mental and physical abuse. Petitioner was also instructed that the law prohibits using corporal punishment on individuals who are receiving treatment or habilitation for mental disabilities.

4. During the period that Petitioner worked at Forest House, there were three developmentally disabled adults living there. One of the residents was J.A. Petitioner was often assigned to provide care to J.A. and did so in an appropriate manner. J.A. was seventy years old in the summer of 2001. He has severe mental retardation, schizoaffective disorder and depression. J.A. functions at the level of a five-year-old. He has primitive communication skills. He is able to experience pain. J.A. has lived in institutions since he was fifteen years old. J.A. is strong for his age, but is also fragile. He is somewhat stooped in posture due to osteoporosis.

5. On September 2, 2001, Petitioner worked a double shift - from 8:00 a.m. to 12:00 a.m. - at Forest House. Petitioner was caring for J.A. that day. Another habilitation technician,

-2- Velma Purcell, was also working. Ms. Purcell had just finished her training and orientation and had started working as a habilitation technician at Forest House only the day before. She, too, was working a double shift.

6. At one point during the day, Petitioner was in the living room with J.A. and Ms. Purcell. J.A. started hitting himself in the groin area near his genitals. This was something J.A. often did. Petitioner took off her sandal and threw it at J.A. to get him to stop hitting himself. As the sandal was thrown at him, J.A. put his hands up in front of his face. The sandal hit J.A. in the upper thigh area, but did no injury. J.A. flinched. Petitioner then made J.A. get up and bring the sandal to her. Petitioner did not intend to harm J. A.

7. Ms. Purcell did not say anything even though she considered what Petitioner had done to be abuse. She knew she was supposed to report incidents of abuse. She says she kept quiet because she was new and felt inferior. She was also going through some difficulties in her personal life and wanted to keep her job at Forest house. Ms. Purcell saw Petitioner throw her shoe at J.A. a couple of times during that first week. Ms. Purcell told Rosemary Gordon what she had seen. Ms. Gordon had started working at Forest House that summer and she, too, was relatively new.

8. Ms. Gordon stated that she had also seen Petitioner and another staff member, Brenda McQueen, throw a sandal at J.A. to get him to stop hitting himself in the groin area.

9. Ms. Gordon later called Charlotte Hope, the program manager, to complain about abusive treatment by another staff person, at which time she did not mention the above incidents. She later met with Ms. Hope and other managers of the facility and reported what she had observed Petitioner do. Ms. Purcell was also interviewed and she reported what she had seen. Rosemary Gordon and Velma Purcell were later fired from their jobs at Forest house as a result of their failure to report abuse in a timely manner. Both of them appealed the terminations and were reinstated.

10. North, Inc., which operated Forest House, investigated the allegations that were reported by Ms. Purcell and Ms. Gordon. After completing its investigation, North terminated Petitioner’s employment on the grounds that she had abused W.F. and J.A. (Respondent concedes that it did not prove abuse against W.F.). North reported the allegations and the conclusions of its investigation to the Health Care Personnel Registry.

11. Catherine Allen, R.N., a nurse investigator for the Health Care Personnel Registry, was assigned to investigate the allegations against Petitioner. She visited Forest House and observed the residents and reviewed their treatment records. She reviewed Petitioner’s personnel file, including her training records and job description, and the policies of North, Inc., She interviewed W.F., Petitioner, Brenda McQueen, Charlotte Hope, Velma Purcell, Rosemary Gordon, and several other staff members at Forest House. She tried to interview J.A. but found no substantiation from him because he would not verbalize anything with her. Ms. Allen concluded that Petitioner had abused J.A. by throwing her shoe at him to try to get him to stop hitting himself in the groin area. Ms. Allen relied primarily on the statements of Ms. Gordon and Ms. Purcell.

-3- 12. Respondent notified Petitioner that the Health Care Personnel Registry had substantiated two allegations of abuse against her and that Respondent intended to list the findings in the Health Care Personnel Registry. Petitioner then requested this hearing.

13. Petitioner testified that she did not have a problem with either Rosemary Gordon or Velma Purcell. She also knew of no reason why either of them would make allegations against her. She strongly denies ever abusing any resident under her care.

14. Velma Purcell and Rosemary Gordon were questionable witnesses because they did not immediately report their allegations and lacked specificity as to dates and times. No sandal or shoe was introduced as evidence and no corroboration was obtained from J.A. who was not injured Rosemary Gordon was known for telling lies and creating discord among staff.

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 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 been found, after investigation, to have abused a resident of a health care facility.

4. As a habilitation technician working in a residential facility for developmentally disabled adults, Petitioner is subject to the provisions of N.C. Gen. Stat. § 131E-256.

5. “Abuse” is defined to mean: “the willful infliction of injury, unreasonable confinement, intimidation or punishment with resulting physical harm, pain or mental anguish.” 10 NCAC 3B.1001; 42 CFR Part 488.301.

6. Petitioner’s throwing a sandal at J. A. in order to make him stop hitting himself in the groin area does not constitute willful abuse as defined above. Her intent was apparently to distract him and make him stop an action that could be harmful to himself. Certainly, more appropriate intervention could have been used by Petitioner to curtail J.A.’s negative behavior. Her lapse in judgment is not sufficient to bar her from work which she otherwise did well.

Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned makes the following:

-4- DECISION

That the Respondent’s decision to list in the Registry Petitioner’s name and the finding that she abused J.A. by throwing her sandal at him be reversed.

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 this 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.

This the 16th day of October, 2002.

______Fred G. Morrison Jr. Senior Administrative Law Judge