State of North Carolina s115

IN THE OFFICE OF ADMINISTRATIVE HEARINGS 08 DHR 2151

JONATHON SMITH, ) Petitioner, ) ) v. ) ) DECISION DEPARTMENT OF HEALTH AND ) HUMAN SERVICES, DIVISION OF ) HEALTH SERVICE REGULATION, ) HEALTH CARE PERSONNEL REGISTRY, ) Respondent. ) )

THIS MATTER came for hearing before the undersigned, J. Randall May, Administrative Law Judge, on January 29, 2009, in High Point, North Carolina.

APPEARANCES

For Petitioner: Cory A. Williams, Esq. Cloud, Navarro, & Williams, PLLC 1821 Skyway Drive, Suite 102 Monroe, NC 28110

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

EXHIBITS

Petitioner’s Exhibits 1-3 and Respondent’s Exhibits 1-9 were admitted into the record.

Whether Respondent otherwise substantially prejudiced Petitioner’s rights and acted erroneously when Respondent substantiated the allegation that on or about March 23, 2008, Jonathon Smith, a Health Care Personnel, abused a resident (A.B.) by biting the resident resulting in abrasions and bruising.

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. 13O.0101

BASED UPON careful consideration of the sworn testimony of the witnesses presented at the hearing and the entire record in this proceeding, the Undersigned makes the following findings of fact. In making the findings of fact, the Undersigned has weighed all the evidence, or the lack thereof, and has 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. From the sworn testimony of witnesses and the evidence, the Undersigned makes the following:

FINDINGS OF FACT

1. At all times relevant to this matter Petitioner, Jonathon Smith, was employed as a Team leader on the Pride Unit as a mental health counselor at Old Vineyard Health Services (“Old Vineyard”) and therefore subject to N.C. Gen. Stat. § 131E-256. (T. p. 14; Resp. Exh. 3)

2. Petitioner received his undergraduate degree in sociology with a minor in psychology from Winston-Salem State. He also received a master’s degree in rehabilitation counseling from Winston-Salem State. (T. p. 11)

3. Petitioner received training at Old Vineyard. He learned how to identify stressors and triggers, verbally de-escalate, and use therapeutic holds. He was also trained how to approach the client and respecting the client’s boundaries. (T. pp. 11-12; Resp. Exhs. 1-2)

4. Petitioner was trained at Old Vineyard and he was not trained to bite a resident. On or about March 23, 2008, Petitioner abused Resident AB of Old Vineyard by biting the resident resulting in abrasions and bruising. (T. p. 43; Resp. Exh. 20)

5. Resident AB’s DSM IV diagnosis notes he has Reactive Attachment Disorder, Attention-Deficit/Hyperactivity Disorder, Oppositional Defiant Disorder, and Receptive Expressive Language Disorder. (Resp. Exh. 7)

6. The Psychosocial Assessment for Resident AB lists his persisting problems as

2 aggressive behaviors towards peers and staff, oppositional behaviors, sexualized behaviors, self- harming behaviors, and destruction of property. (Resp. Exh. 7)

7. Resident AB was 14 years old at the time of the incident. He has a family history of abuse and neglect. Over the past few years, his behaviors had begun to increase. Due to the behaviors, Resident AB has a history of needing physical restraints to de-escalate and placement in a very structured environment to manage his behaviors. (T. p. 52; Resp. Exh. 7)

8. Jamal Allen (“Allen”) was employed as a mental health counselor at Old Vineyard. He was working one to one which with Resident AB on March 23, 2008. Allen was assigned to stay with Resident AB at all times and provide close supervision. (T. pp. 13-14, 52)

9. Allen and Resident AB were in the dayroom. Petitioner was also in the dayroom with ten other kids, age ten to sixteen. The Unit had eleven residents altogether. Petitioner was responsible for ten of the residents. Allen was responsible for Resident AB. (T. pp. 15-16, 52)

10. The residents had just returned to the dayroom from dinner. Resident AB threw a dry erase maker and threw it at his peer. Petitioner “praised the guys for ignoring the negative behavior’ of Resident AB. Petitioner did not feel this comment drew any negative attention to Resident AB or the situation. (T. p. 35)

11. Resident S caught the eraser and teased Resident AB for missing him. The two minors began arguing with each other. Allen started to verbally de-escalate Resident AB. Resident AB picked up a plastic chair and threw it across the room towards Resident S and Petitioner. (T. pp. 38, 53, 73; Resp. Exhs. 3, 5)

12. Petitioner directed the other residents to leave the room. Petitioner approached Resident AB and told him he could not destroy property. Petitioner continued to move closer until he was approximately at arms length, standing at angle, from Resident AB. Petitioner did not give Petitioner more space or time to cool down. (T. pp. 20-21, 37, 53, Resp. Exhs. 3, 5)

13. Allen felt the situation would have diffused if Petitioner had not immediately confronted Resident AB in this manner. The staff knew Resident AB had impulse control behaviors. Resident AB would hit or strike if you came within a certain range of him. Allen felt there was no need for Petitioner to break the physical boundary. (T. pp. 20-21, 37, 53-55, 61; Resp. Exh. 3, 5)

14. Petitioner came to Resident AB, breaking the physical boundary. AB lunged at Petitioner and the two fell to the ground. Resident AB was lying face up and Petitioner was on top of him. Petitioner weighs 340 pounds. Resident AB leaned up off the floor and bit Petitioner on the right cheek. Petitioner started bleeding. (T. pp. 20-21, 25, 53-55; Resp. Exhs. 3, 5)

15. Resident AB then started biting Petitioner’s arm. Petitioner bit Resident AB back. Petitioner bit Resident AB on his side. Petitioner was across Resident AB’s upper body. Allen

3 and another staff tried to pry the two apart. Once apart, Allen placed Resident AB in a proper therapeutic hold. Resident AB had a red, circular bite mark on his chest. (T. pp. 26, 56-59; Resp. Exhs. 3, 5-6)

16. Petitioner completed an incident report about Resident AB biting him. Petitioner did not fill out an incident report about him biting Resident AB. Hugh McGuiness (“McGuiness”) of Forsyth County of Department of Social Services became aware of the injury while investigating another allegation at the facility. (Pet. Exh. 3; Resp. Exh. 8)

17. Resident AB talked to McGuiness and asked him if anything was going to be done about the staff that bit him. Resident AB has a family history of neglect, physical abuse, and sexual abuse. He was placed at Old Vineyard so his treatment needs could be addressed. Being bitten by a staff member is not part of the treatment training at Old Vineyard. (T. p. 61; Resp. Exh. 8)

18. Resident AB has been moved from the Level 5 treatment at Old Vineyard to a Level 3 step-down in Rhode Island. Resident AB has gone without an incident in a 90 day time period. (T. pp. 61-62)

19. McGuiness spoke to Brian Bowles (“Bowles”), the administrator of Old Vineyard. Bowles was unaware of the injury. The allegation was substantiated by the Forsyth County Department of Social Service Child Protective Services. Petitioner was terminated from Old Vineyard. ( Resp. Exh. 8)

20. Bowles substantiated the allegation of abuse and terminated Petitioner. The termination was written up as Petitioner engaging in a power struggle with a resident, resulting in the resident sustaining an injury. He sent the 5-Working Day Report to the Health Care Personnel Registry (“HCPR”) documenting the decision. (T. p. 32, 87; Resp. Exhs. 6)

21. The HCPR investigates allegations of abuse, neglect and other allegations against health care personnel in health care facilities. If the allegation is substantiated, the employee will be listed on a file. The HCPR covers most licensed facilities in North Carolina that provides patient care. Accordingly, health care personnel at Raleigh Rehab are covered by the registry. (T. pp. 88-89)

22. At all times relevant to this incident, Ginny Martin (“Martin”) was employed as an investigator for the HCPR. She is charged with investigating allegations against health care personnel in the central region of North Carolina. Accordingly, Old Vineyard was in her region and she received and investigated the complaint that Petitioner had abused Resident AB (T. p. 88)

23. After the complaint against Petitioner was received, it was determined it needed further investigation. As part of the investigation, Martin interviewed Petitioner, Allen, and the McGuiness. She also reviewed the resident’s records and took into account the DSS investigation and the internal investigation conducted by the facility. (T. p. 90; Resp. Exhs. 7, 8)

4 24. Martin considered Petitioner’s statement and viewed all the information together. Martin concluded that Petitioner abused Resident AB. Martin wrote an investigation report which documented the conclusion. (T. pp. 166-70; Resp. Exh. 8)

25. Abuse is defined as the “willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain, or mental anguish”. Martin determined Petitioner abused Resident AB of Old Vineyard by willfully biting the resident, causing him physical harm. (Resp. Exh. 8)

26. Petitioner was notified by letter that a finding of abuse would be listed against him name in the Health Care Personnel Registry. Petitioner was further notified of his right to appeal. (Resp. Exh. 9)

27. No contemporaneous photographs were taken of AB’s injuries.

28. Petitioner testified that he bit resident because he was in “grave danger”. He had a wound on his face, which was exposed to blood-borne pathogens. The wound was exposed to his own blood, which in actuality, would not be a cause of danger to him. Petitioner was not concerned about exposing his blood to Resident AB when he bit him. He was concerned about himself. (T. pp. 44-45)

29. Petitioner said he reacted out of panic and that he had no other option. He said he tries not to get into physical confrontations with children. Petitioner had one other physical altercation listed in his personnel file for slapping a resident’s hand. (T. p. 44; Resp. Exh. 8)

30. Petitioner did not try to diffuse the situation by giving Resident AB some space. He praised the other children for ignoring Resident AB. Petitioner then singled Resident AB out and moved in on him. (T. pp. 35, 45)

31. Petitioner said he did not consider the bite abuse because it was self-defense. He was trying to self-preserve. “It was not professional, but it was effective to actually – to get a dangerous – a potentially harmful situation de-escalated as quick as possible.” (T. pp. 46-47)

32. Petitioner said that he should have had better support from staff. He said that if everybody had been doing his or her job as needed, the situation could have been prevented. Petitioner said Allen was not in the room. (T. p. 48)

33. Allen testified at the hearing. He said he was in the room during the confrontation between Petitioner and Resident AB. He described what happened. Allen said Petitioner should not have come within a certain amount of space of Resident AB because he would act. Resident AB felt threatened. Allen was performing his one-on-one duties with Resident AB. Petitioner stepped in and took the situation over. (T. pp. 53-55, 62, 69, 72)

34. Allen did not stop Petitioner. Petitioner is Allen’s supervisor. Petitioner did not

5 utilize the skills and help of his staff. Allen had been doing what he was supposed to do by verbally de-escalating Resident AB. Resident AB had not hurt anyone by throwing the eraser. He did not hit anyone with the chair Petitioner should not have stepped in. Petitioner did not have a reason to come up to Resident AB. There was no reason to do it. “Why did he come over there anyway?” Allen said he has been trained by Old Vineyard and biting is abuse. (T. pp. 53- 55, 62, 69, 72-73)

35. Petitioner had another job at Youth Opportunities as a behavioral support counselor. He worked with teenagers to try and deter negative behaviors in the classroom. Petitioner no longer works at the facility. There was an incident at this job. Petitioner was told his heart was not in it; he was not a fit for the job; and he was dismissed. (T. p. 50)

36. Petitioner is not disabled and has the ability to work. The listing on the HCPR limits his ability to work in the health care field. Petitioner can work in other fields. Petitioner is seeking employment in other fields. (T. pp. 32-33)

Based upon the foregoing Findings of Fact, the undersigned Administrative Law Judge makes the following:

CONCLUSIONS OF LAW

The North Carolina Office of Administrative Hearings has jurisdiction over the parties and subject matter of this contested case pursuant to N.C. Gen. Stat.§ 150B-23 et seq. All necessary parties have been joined and have received proper notice of the hearing in this matter. To the extent that the Findings of Fact contain Conclusions of Law, or that the Conclusions of law are Findings of Fact, they should be so considered without regard to the given labels.

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.

3. The North Carolina Department of Health and Human Services, Division of Health Service Regulation, 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 and nurse aides 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.

4. As a mental health counselor working in a residential care facility, Petitioner is subject to the provisions of N.C. Gen. Stat. § 131E-256.

5. Old Vineyard Services of Winston-Salem is a health care facility as defined in N.C. Gen. Stat. § 131E-255(c) and N.C. Gen. Stat. § 131E-256(b).

6 6. “Abuse” is the willful infliction of injury, unreasonable confinement, intimidation, or punishment, with resulting physical harm, pain, or mental anguish. 10A N.C.A.C. 13O.0101, 42 CFR § 488.301.

7. On or about March 23, 2008, Petitioner willfully abused and injured Resident AB by approaching and biting the resident in an attempt to subdue the resident. This occurred after Petitioner had invaded the personal boundary of the resident, and after the two had become embroiled in a scuffle.

8. Petitioner admits the act, but argues that it was justifiable self-defense. Several elements are pertinent to this defense. The threat must be imminent, or there must be a retreat before self-defense is permitted. The party asserting self-defense cannot be the original aggressor, or there must be a retreat, which is clearly communicated to the other party. There must be a threat of serious bodily harm with no available alternatives except force. State v. Dills, N.C. 196 N.C. 457, 146 S.E. 1 (1929). Here, Petitioner was the aggressor; he did not abandon the fight; and he did not utilize alternatives to force. This is of upmost importance when considering the reasonableness of Petitioner’s belief at the time when consideration is given to his education and training. Courts frequently emphasize the subjective in analyzing whether a person placed in Petitioner’s situation acted reasonably. For example:

[A] jury should, as far as is possible, be placed in defendant’s situation and possess the same knowledge of danger and the same necessity for action, in order to decide if the defendant acted under reasonable apprehension of danger to his person or his life.

State v. Spaulding, 298 N.C. 149, 158, 257 S.E.2d 391, 396 (1979) quoting State v. Johnson, 270 NC 215, 219, 154 S.E.2d 48, 52 (1967).

Petitioner had numerous opportunities to retreat. As this is not a criminal case, it is not the Respondent’s burden to disprove self-defense. Petitioner has not carried his burden.

9. Furthermore, self-defense applies to citizens in the general population who are assumed to act as “reasonable men”. Staff in a health care setting consent to their surroundings; are trained to avoid physical contact; and are held to a higher standard. Petitioner was trained in CPI Crisis Development Model/Nonviolent Crisis Intervention, which should have helped him to defuse this situation.

10. N.C. Gen. Stat. § 14-32.2 is the criminal statue governing patient abuse and states:

It shall be unlawful for any person to physically abuse a patient of a health care facility or a resident of a residential care facility, when the abuse results in death or bodily injury.

The statute lists defenses, but self-defense is not included. This statute applies to criminal charges. 10A N.C.A.C. 13O.0101, 42 CFR § 488.301 governs abuse with the HCPR in

7 administrative hearings. Self-defense is not listed as an available defense.

11. Respondent's decision to substantiate this allegation of abuse against the Petitioner is supported by a preponderance of the evidence. Therefore, Respondent did not substantially prejudice Petitioner’s rights, act erroneously, arbitrarily or capriciously by placing a substantiated finding of abuse against Petitioner’s name on the Health Care Personnel Registry.

Based on the foregoing Findings of Fact and Conclusions of Law, the Undersigned makes the following:

DECISION

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

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 27th day of April, 2009.

J. Randall May Administrative Law Judge