State of North Carolina s38

STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF WAKE 02 DHR 0379

NOTISHA UTLEY, ) Petitioner, ) ) v. ) DECISION ) NORTH CAROLINA DEPARTMENT OF ) HEALTH AND HUMAN SERVICES, ) DIVISION OF FACILITY SERVICES, ) Respondent. )

This matter was heard before James L. Conner, II, Administrative Law Judge, on April 23, 2002, in Raleigh, North Carolina.

APPEARANCES

Pro se Petitioner 4604 Lavista Court, Apt A Raleigh, NC 27616

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

Whether Respondent acted erroneously when it notified Petitioner of its intent to enter a finding of neglect by Petitioner of a nursing home resident in the Nurse Aide Registry and the Health Care Personnel Registry.

APPLICABLE STATUTES AND RULES

N.C. GEN. STAT. §§ 131E-255 and -256 N.C. GEN. STAT. § 150B-23 10 NCAC 3B .1001(10)

EXHIBITS

The following exhibits were admitted into evidence without objection: 1. Respondent’s Exhibit #1 HCPR Interview of Petitioner, dated January 17, 2002

2. Respondent’s Exhibit #2 HCPR Interview of Petitioner, dated January 22, 2002

3. Respondent’s Exhibit #3 HCPR Letter to Petitioner, dated February 10, 2002

4. Respondent’s Exhibit #6 HCPR Interview of C.S., dated January 8, 2002

5. Respondent’s Exhibit #8 Typed Statement of Deborah Benitey-Hanley, dated December 19, 2001

6. Respondent’s Exhibit #9 HCPR Interview of Deborah Benitey-Hanley, dated January 8, 2002

7. Respondent’s Exhibit #11 HCPR Interview of Carolyn White, dated January 22, 2002

8. Respondent’s Exhibit #12 Handwritten Statement of Margaret Leonard

9. Respondent’s Exhibit #13 HCPR Statement of Margaret Leonard, dated January 8, 2002

10. Respondent’s Exhibit #14 MDS for Resident C.S.

11. Respondent’s Exhibit #15 HCPR Investigative Conclusion

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

FINDINGS OF FACT

1. At all times relevant to this matter, Petitioner, a certified nurse’s assistant (hereinafter “CNA”), was employed at Wellington Nursing Center (hereinafter “Wellington”) in Knightdale, NC. Tr pp 12-14.

2. Wellington is a skilled nursing facility. Tr p 96

3. At all times relevant to this matter, Resident C.S. (hereinafter “C.S.”) was a resident at Wellington. C.S. requires two persons to assist her when she is transferred from one position to another. She is alert and oriented and has no impairment in cognitive function. Tr pp 36-37; Resp. Ex. 14

4. At all times relevant to this matter, Carolyn White was employed as an LPN at Wellington. Tr pp 44-45

-2- 5. At all times relevant to this matter, Deborah Benitez-Hanley was employed as an LPN at Wellington. Tr pp 62-63

6. At all times relevant to this matter, Margaret Leonard was employed as the Director of Nursing at Wellington. Tr p 76

7. At all times relevant to this matter, Sarah Flowers was a nurse investigator with the Health Care Personnel Registry Section. Tr pp 93-94

8. On November 18, 2001, Petitioner was assigned to provide care to C.S. Petitioner was responsible for getting C.S. out of bed for the day. While Petitioner was transferring C.S. from the bed to the wheelchair, C.S.’s leg gave way, she lost her balance, and she slid to the floor. As Petitioner and C.S. slid to the floor, C.S.’s leg was caught under her. As a result of the fall, C.S.’s right femur was fractured. Tr pp 14-21; Resp. Ex. 1 and 2

9. At the time that Petitioner transferred C.S., Petitioner was aware that C.S. was designated as a two-person transfer. There was a sign hanging above C.S.’s bed which stated that she was a two-person transfer. Tr pp 15, 23; Resp. Ex 1 and 2

10. Petitioner testified that before transferring C.S. she went to the hallway and called for assistance, but no one responded. She immediately returned to C.S.’s room and transferred C.S. by herself. Tr pp 16-19; Resp. Ex. 1 and 2

11. Ms. White and Ms. Benitez-Hanley had offered to assist Petitioner when she was ready to transfer C.S. Although Petitioner acknowledged that Ms. Hanley offered to assist her, Petitioner denied that Ms. White offered to assist her. Tr pp 23, 46-48, 64-69; Resp. Ex. 1, 2, 8, 9 and 11

12. Although both Ms. White and Ms. Benitez-Hanley were in the facility performing their duties, neither of them heard Petitioner call for assistance. Tr pp 47, 66; Resp. Ex. 11

13. On November 18, 2001, Wellington was not short-staffed. Tr p 78

14. On behalf of Wellington, Ms. Leonard conducted the in-house investigation of the incident between Petitioner and C.S. Upon competition of the investigation, Ms. Leonard forwarded the investigation to Respondent. Tr pp 83

15. During the investigation, Petitioner stated that she felt rushed, that she wanted to hurry up and get C.S. out of bed and that she should have asked for assistance, but that she was in a hurry. Tr pp 68-69; Resp. Ex. 8, 9 and 11

16. Ms. Flowers was assigned to investigate the allegation of neglect against Petitioner. Tr pp 97-100; Resp. Ex. 15

-3- 17. Mrs. Flowers substantiated the allegation of neglect against Petitioner on the grounds that Petitioner had failed to comply with C.S.’s care plan - in that she had transferred C.S. without the assistance of a second person. Tr pp 78-82,97-100; Resp. Ex. 14 and 15

18. By letter, sent via certified mail, on February 18, 2002, Respondent notified the Petitioner that the Department had substantiated the allegation of neglect against Petitioner and that the substantiated finding would be entered into the Nurse Aide Registry and the Health Care Personnel Registry. The letter also notified Petitioner of her right to contest the entry of the substantiated finding of neglect in the Nurse Aide Registry and the Health Care Personnel Registry. Resp. Ex. 3

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

“Neglect” means failure to provide goods and services necessary to avoid physical harm, mental anguish, or mental illness.

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- 255 to maintain a Registry that contains the names of all nurse aides working in nursing facilities who have a substantiated finding of resident abuse, resident neglect, or misappropriation of resident property.

-4- 4. 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 or fraud against a resident or the facility.

5. As a nurse aide, Petitioner is subject to the provisions of N.C. Gen. Stat. § 131E- 255.

6. Wellington Nursing Center, a skilled nursing facility, is a health care facility as defined in N.C. Gen. Stat. § 131E-256(b)(6).

7. Petitioner meets the definition of “health care personnel” in N.C. Gen. Stat. § 131E-256 and is subject to the provisions of that statute.

8. On November 18, 2001, Petitioner neglected C.S. by not utilizing a two-person transfer causing the resident to fall to the floor, fracturing her right femur.

9. Respondent did not err in substantiating the finding of neglect committed by the Petitioner.

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 place an entry of neglect by Petitioner in the Nurse Aide Registry and 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 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

-5- Department of Health and Human Services, Division of Facility Services.

This the 26 th day of July, 2002.

______James L. Conner, II Administrative Law Judge