STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF RICHMOND 01 DHR 1590

ANNE MARIE LUNSFORD, ) Petitioner, ) ) v. ) ) DECISION N.C. DEPARTMENT OF HEALTH AND ) HUMAN SERVICES, DIVISION OF ) FACILITY SERVICES, ) Respondent. )

This matter was heard before Beecher R. Gray, Administrative Law Judge, on December 14, 2001, in Lumberton, North Carolina.

APPEARANCES

For Petitioner: Anne Marie Lunsford, pro se Hamlet, North Carolina

For Respondent: Jane L. Oliver, Assistant Attorney General Raleigh, North Carolina

ISSUES

Whether Respondent acted erroneously or otherwise substantially prejudiced Petitioner’s rights when it determined that, on or about June 20, 2001, Petitioner abused a resident, B.R., of Windsor House, a long-term care facility in Rockingham, North Carolina, by pushing the resident to the floor when she discovered that the linen on the resident’s bed was wet, by leaving the resident on the floor while she went to the break room, and by threatening the resident by saying, “You mess with me and I’ll leave you on the floor all night.”

APPLICABLE STATUTES AND RULES

N.C. Gen. Stat. §§ 131E-255 and -256 N.C. Gen. Stat. § 150B-23 42 CFR § 488.301 10 NCAC 3B.1001

EXHIBITS

The following exhibits were admitted into evidence without objection: Respondent’s Exhibits 1, 3, 4, 5, 6, 7, 10 and 11.

-1- FINDINGS OF FACT

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

1. Petitioner was employed as a certified nursing assistant at Windsor House in Rockingham, North Carolina from May 21, 2001 to June 26, 2001. (T pp 4-5, 9-10)

2. Windsor House is a long-term care facility which offers skilled nursing care. (Resp Exh 1)

3. Petitioner received training to become a nurse aide through the American Red Cross Nursing Assistant Program in Hazel Park, Michigan from 1991-1992. Petitioner’s training covered topics such as resident care and resident abuse. Petitioner was aware that there are various forms of resident abuse, including physical abuse, verbal abuse and neglect. Petitioner received additional training through her employment at Windsor House. During Petitioner’s employee orientation, she was given a copy of the facility’s Resident Abuse Policy. The policy was reviewed and Petitioner was then given a quiz on the policy. (T pp 6-9; Resp Exh 1)

4. On June 20, 2001, Petitioner worked her regular shift from 10 pm to 7 am. Petitioner was assigned to provide care for one of the residents, B.R. B.R. has suffered a stroke, is partially blind and requires total care. He is incontinent and wears briefs. He is unable to walk without assistance and is on falls precaution protocol. His bed has been placed near the floor so that, if he falls, he will not hurt himself. B.R. cannot communicate very well and he uses a call bell when he needs assistance. (T pp 7-8, 10-12, 21, 24, 33)

5. Clover Bostick, another certified nursing assistant, also was working that night. Ms. Bostick was new and was still in orientation. She did not know Petitioner very well. Eva Casimir, L.P.N. II, was the charge nurse for the shift. (T pp 12, 21-22, 30; Resp Exh 5)

6. During the early part of the shift, Ms. Bostick walked down the hall to get some clean laundry from the laundry room. As she passed B.R.’s room, she heard Petitioner talking loudly and rudely to B.R. Petitioner was angry and she was being mean to B.R. Ms. Bostick looked into B.R.’s room and saw him sitting on his bed holding his head and making a lot of noise. Petitioner was pushing him with her elbow and trying to pull the sheets off B.R.’s bed at the same time. As a result of Petitioner’s actions, B.R. landed on the floor. (T pp 21-22, 24; Resp Exh 5)

7. After getting the laundry, Ms. Bostick walked back down the hall. Approximately five minutes had passed since she passed by B.R.’s room earlier. Ms. Bostick looked into B.R.’s room. The bed was stripped and B.R. was on the floor. Petitioner was not in the room. B.R. was not able to get up on his own due to his physical disabilities. (T pp 22-24, 29; Resp Exh 5)

8. Immediately, Ms. Bostick went to look for Petitioner and found her in the break room. Ms. Bostick told Petitioner to go back to B.R.’s room and to get B.R. off the floor. Ms.

-2- Casimir was nearby and heard the two women talking. Ms. Bostick accompanied Petitioner to B.R.’s room. When they entered, Petitioner started saying things to B.R. She said, “If you mess with me, I’ll leave you on the floor all night.” B.R. looked “as scared as he could be.” He was sitting on the floor with his eyes wide open and his arms stretched out as if he was trying to get his bearings. Eva Casimir came into the room and, while Petitioner put sheets on the bed, Ms. Bostick and Ms. Casimir helped B.R. to get up off the floor. Ms. Casimir checked B.R. to make sure he was not hurt. As long as Ms. Casimir was in the room, Petitioner was nice to B.R. (T pp 17, 22-25, 33-34; Resp Exh 5)

9. Ms. Bostick did not immediately report what had happened but felt guilty because she had witnessed it. She talked with a friend, Corrine Little, who also is a nursing assistant at the facility. Ms. Little encouraged Ms. Bostick to report what Petitioner had done. A few days later, the third shift nursing assistants got together and asked to meet with Donna Haux, R.N., the Director of Nursing. (T pp 25-26, 38; Resp Exh 5)

10. Ms. Haux, R.N., came in early to meet with staff at their request. During the meeting, Ms. Bostick reported that Petitioner had pushed B.R. to the floor and had left him there. Other staff members made other complaints about the way Petitioner treated the residents. Ms. Haux began an investigation into Ms. Bostick’s report as well as other complaints that were made against Petitioner. Ms. Haux asked all the nursing assistants to document their complaints in writing. She then talked with Petitioner about the complaints. Petitioner told Ms. Haux that Eva Casimir had told her to leave B.R. on the floor while she was changing the sheets on his bed. Ms. Casimir flatly denied this. Petitioner’s employment was terminated as a result of the facility’s investigation. Windsor House reported their finding that Petitioner had abused B.R. to the Nurse Aide Registry and the Health Care Personnel Registry. (T pp 38-39; Resp Exh 6 and 7)

11. Catherine Allen, R.N., B.S.N., a nurse investigator for the Nurse Aide Registry and the Health Care Personnel Registry, investigated the allegation of abuse. Ms. Allen visited the facility where she reviewed B.R.’s medical record and Petitioner’s personnel file. She also interviewed Petitioner and Clover Bostick. After completing her investigation, Ms. Allen concluded that Petitioner abused B.R.. by pushing him to the floor and leaving him there and by saying to B.R., “If you mess with me , I’ll leave you on the floor all night. (T pp 41-42; Resp Exh 10 and 11)

12. Respondent notified Petitioner, by certified letter, dated September 27, 2001, that Respondent had substantiated the allegation of abuse and that Respondent intended to place the finding of abuse on the Nurse Aide Registry and on the Health Care Personnel Registry. (Resp Exh 11)

13. Petitioner was not a credible witness. She testified that, on June 20, 2001, she was working with Clover Bostick, Corrine Little and Eva Casimir, L.P.N. She testified that, shortly before midnight, she was in the break room and that Eva Casimir had come in and said that one of the residents was on the floor. She further testified that she and Ms. Casimir went to B.R.’s room where they found B.R. sitting on the floor with his wheelchair on top of him. Petitioner testified that it appeared that B.R. had tried to get up on his own and had pulled the

-3- wheelchair over on top of him. Petitioner testified that B.R.’s bed was wet and that Ms. Casimir told her to leave B.R. on the floor until the bed was changed. Petitioner’s testimony was inconsistent with her prior statements. During the facility investigation, Petitioner had not mentioned anything about finding B.R. on the floor with the wheelchair turned over on top of him. Petitioner’s testimony was also inconsistent with that of the other witnesses who were working on June 20, 2001. Ms. Bostick testified that she saw Petitioner push B.R. onto the floor. Ms. Casimir testified that, when she entered B.R.’s room, the wheel chair was not turned over. Corrine Little testified that she was not even working at Windsor House on June 20, 2001 and that she had never seen B.R. in his room with his wheelchair turned over on top of him. (T pp 13-15, 18-19, 34-35, 36, 39-40; Resp Exh 5, 6, and 7)

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 correctly have been designated and there is no question as to misjoinder or nonjoinder.

3. As a nurse aide working in a nursing facility, Petitioner is subject to the provisions of N.C. Gen. Stat. § 131E-255 and § 131E-256.

4. “Abuse” is defined by 42 CFR Part 488.301 to mean: “the willful infliction of injury, unreasonable confinement, intimidation or punishment which results in physical harm, pain, or mental anguish.” This definition is incorporated by reference in the definition of abuse found at 10 NCAC 3B.1001(1) . 5. On June 20, 2001, while employed as a nurse aide at Windsor House in Rockingham, North Carolina, Petitioner abused a resident, B.R., after she found that he had wet his bed, by talking to the resident in a harsh manner, pushing the resident off his bed, leaving him on the floor and saying, “If you mess with me, I’ll leave you on the floor all night.” Petitioner’s actions towards the resident caused the resident, who is blind and infirm, to become upset and frightened.

6. Although the undersigned regrets that Petitioner’s ability to work in her chosen field as a nursing assistant will be restricted as a result of the finding of abuse, the evidence presented in the case supports Respondent’s conclusion. Therefore, Respondent did not err in substantiating the allegation of abuse.

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

-4- DECISION

That the Respondent’s decision to place a finding of abuse at Petitioner’s name on the Nurse Aide Registry and on the Health Care Personnel Registry is supported by substantial evidence and should be affirmed.

ORDER

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 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 Health and Human Resources, Division of Facility Services.

This the 18 th day of February, 2002.

______Beecher R. Gray Administrative Law Judge

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