STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF CLEVELAND 03 DHR 0773 ______

ESSIE MAE CRAWLEY DAVIS, ) Petitioner, ) ) v. ) DECISION ) N.C. DEPARTMENT OF HEALTH AND) HUMAN SERVICES, DIVISION OF ) FACILITY SERVICES, ) Respondent. ) ______

THIS MATTER was heard before Augustus B. Elkins II, Administrative Law Judge, in Charlotte, North Carolina on December 4, 2003.

APPEARANCES

Petitioner: Julian B. Wray, Esq. Church, Paksoy & Wray 205 South Washington Street Shelby, North Carolina 28151

Respondent: N. Morgan Whitney, Jr., Assistant Attorney General North Carolina Department of Justice P.O. Box 629 Raleigh, NC 27602-0629

ISSUE

Whether Respondent deprived the Petitioner of property, exceeded its authority or jurisdiction, acted erroneously, failed to use proper procedure, acted arbitrarily or capriciously, failed to act as required by law or rule, or otherwise substantially prejudiced the Petitioner's rights when it substantiated an allegation of abuse that "On or about 1-23-03, Essie Mae Crawley Davis, a Health Care Personnel, abused a resident (ME) by grabbing the resident by the neck and pushing her, then putting her knee in the resident's back." Respondent's Exhibit A.

APPLICABLE STATUTES AND RULES

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

EXHIBITS

Respondent's exhibits A, D, E, F, G, H, K, and L were admitted.

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. The Openview Retirement Home ("Openview") is located at 112 Pony Barn Road in Lawndale, North Carolina where it provides care for the aged and mentally ill. Openview is a health care facility as defined in N.C. Gen. Stat. § 131[E]-256(b)(6). In order to provide these services to its residents the home employs health care personnel as defined in N.C. Gen. Stat. § 131E-256(c)(4). Openview has a number of mentally ill people as residents and most of them are older in age.

2. Petitioner was hired by the Home in 1994 as a housekeeper and was, at all times relevant to this matter, an employee of the Home. (T. p. 108) Petitioner worked third (3rd) shift and her duties included cleaning, laundry, dressing and changing residents in the morning. (T. pp. 23-24, 31) It was common for Petitioner to be the only staff member in the Home during that shift. (T. p. 24)

3. Petitioner was trained in various topics including, but not limited to, patient care and patient rights (T. pp. 17-18, 117-118, 125-26).

4. At all times relevant to this matter, M.E. was a resident of the Home. (T. pp. 36- 37) M.E. suffered from Schizoaffective Disorder, Seizure Disorder, Hypoglycemia and Seborrheic Dermatitis. (T. pp. 66-67, Respondent’s Exhibit F)

5. At some time after the events set forth in the allegation of abuse, Ms. Ginger Thomas, then acting as the Facility Administrator (T. pp. 47-48), received a report from the Department of Social Services (DSS) of several instances of abuse of residents. One of the allegedly abused residents was M.E. (T. pp. 13-14, 26-27). Ms. Thomas is related to the Owners of Openview and is training to be a supervisor.

2 6. The complaint from DSS accused Petitioner of abuse of M.E.. (T. p. 27). Ms. Thomas stated that M.E. was in a “pretty bad” mental condition and forgets things.

7. After Ms. Thomas became aware of the allegation, she terminated the employment of the Petitioner. Openview did not conduct an investigation other than briefly talking with the alleged victim. Ms. Thomas interviewed M.E. after receiving the complaint from DSS (T. p. 20), and was told that “Essie (Petitioner) had grabbed her by the back of her shirt and put her knee in her back”. (T. pp. 15-16, Respondent’s Exhibit L). Openview did not interview the Petitioner to determine the truth of the matter or to receive her explanation, if any, regarding the allegation. Ms. Thomas testified that she already knew she was going to terminate Petitioner before she spoke with her.

8. Ms. Thomas contacted the Petitioner by phone to tell her of the allegation and Ms. Thomas terminated Petitioner’s employment over the phone. Petitioner denied the allegation. (T. pp. 14, 20, 26-27, 118-19). The Petitioner was terminated by her employer, Openview, because they felt there was too much liability even though they had not conducted a thorough investigation nor obtained evidence of the validity of any allegation. Openview did not know the circumstances of what might have happened.

9. Ms. Thomas notified the Division of Facility Services, Health Care Personnel Registry Section, of the allegations. (Respondent’s Exhibits K and L).

10. Respondent assigned Ms. Patricia Epps, RN, to investigate this matter for the Health Care Personnel Registry (Registry) and this matter was screened for investigation. (T. p. 64).

11. Ms. Epps interviewed M.E. and Petitioner during her investigation. She also spoke with Ms. Thomas. (T. pp. 64-65).

12. In Ms. Epps interview with M.E., she found that M.E.’s description of the incident was consistent with the report the Registry received. (T. p. 67, regarding Respondent’s Exhibits G, K and L) Ms. Epps thought M.E. was afraid of Petitioner (T. pp. 71-72)

13. Petitioner was interviewed by Ms. Epps over the phone at Petitioner’s request. In that interview the Petitioner denied the allegation of abuse and denied grabbing M.E. Petitioner did admit on occasion to yelling at the residents but stated that she had a loud voice. Petitioner stated and the evidence shows that her basic function was housekeeping. She also stated that M.E. had serious mental problems and that taking care of her was difficult for all the staff.

14. Based upon her interviews with Petitioner and her interviews with M.E. including the consistency of M.E.’s statements in the interview, Ms. Epps substantiated the allegation of abuse against the Petitioner. (Respondent’s Exhibits D and E).

15. Ms. Epps found that the alleged victim, M.E., has a diagnosis of Schizoaffective Disorder, Seizure Disorder, Hypoglycemia, and Seborrheic Disorder of the scalp.

3 16. M.E. took the stand at the hearing to be sworn in. However the undersigned Administrative Law Judge found that she was not competent to be sworn in. She was found to be disoriented and though the hearing was held on a Thursday in December, M.E. believed it to be a Friday in November. The Undersigned did allow M.E. to testify and received her testimony as an offer of proof regarding the circumstances of this case.

17. Regarding the testimony of M.E. during this hearing (T. pp. 52-59):

a. M.E. knew her name. b. M.E. was able to identify the Petitioner (by “Essie”). c. M.E. was able to recall that Petitioner had “kept” her there at Openview. d. M.E. was able to recall that she saw Petitioner working “at nighttime.” e. M.E. was able to recall that Petitioner had led her to her room. f. M.E. stated that Essie kept her and made her go to bed. g. The remainder of M.E.’s testimony was incoherent.

18. The investigation failed to reveal any marks or bruises or other evidence of any type of abuse or assault on M.E. M.E. herself was unable to testify to any misconduct by the Petitioner towards her.

19. Respondent notified the Petitioner via certified mail dated April 21, 2003 that the allegation had been substantiated and that the listing would be entered into the Registry. The letter properly notified Petitioner of her appeal rights. (Respondent’s exhibit A)

BASED UPON the foregoing Findings of Fact and upon the preponderance or greater weight of the evidence in the whole record, the Undersigned makes the following:

CONCLUSIONS OF LAW

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

2. Petitioner is a "health care personnel" as defined in N.C. Gen. Stat. § 131E-256(c) (1) because she performed "personal functions essential for the health and well-being of residents such as bathing, dressing…" and is therefore subject to the requirements of N.C. Gen. Stat. § 131E.

3. Openview Retirement Home is a health care facility as defined in N.C. Gen. Stat. § 131[E]-256(b)(6).

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

4 care facilities against whom a finding of abuse, neglect, or misappropriation of resident and/or facility property has been substantiated.

5. The Respondent has the burden of proof to establish as factual its investigative allegations of abuse by the preponderance of the evidence.

6. “Abuse” is defined as the willful infliction of injury, unreasonable confinement, intimidation or punishment with resulting physical harm, pain or mental anguish. All residents in residential care, such as M.E., have the right to be free from abuse perpetuated at the hands of caregivers. However, those who are accused of abuse have the right that the Respondent establishes as factual its investigative allegations of abuse by the preponderance of the evidence.

7. Insufficient evidence exists to determine the exact date of the alleged incident that is the subject of this action. Further, Openview did not conduct a meaningful investigation when it was contacted by DSS. In fact, based on concerns of liability, Petitioner was terminated from her employment and not interviewed. Little to no evidence exists that M.E. was grabbed, pushed or had a knee placed in her back by Petitioner. Since Petitioner was the only staff member with some 21 residents at night, Respondent had no on sight staff to interview except Petitioner.

8. The evidence that tends to point to the Petitioner as grabbing or pushing or “kneeing” M.E. is solely some statements made by M.E. whose cognitive mental conditions were not clearly substantiated at the time of the incident, the time of any interviews, and not at the time of this hearing. As such, M.E.’s lack of clarity and cognitive mental acuity reduces the weight that is accorded to the evidence by the trier of fact.

9. Insufficient evidence exists to support Respondent’s conclusion that Petitioner abused resident M.E., to wit, “Essie Mae Crawley Davis, a Health Care Personnel, abused resident (ME) by grabbing the resident by the neck and pushing her, then putting her knee in the resident's back.”

BASED UPON the foregoing Findings of Fact and Conclusions of Law, the Undersigned makes the following:

DECISION

Based on the foregoing, the undersigned Administrative Law Judge finds and holds as his Decision that the Respondent did not have proper and lawful and sufficient evidence to make a finding of abuse against the Petitioner. As such, Respondent’s decision in placing an allegation of abuse against Petitioner in the Health Care Personnel Registry was IN ERROR.

NOTICE

The agency making the final decision in this contested case is required to give each party an opportunity to file exceptions and to present written arguments regarding this Decision issued by the Undersigned in accordance with N. C. Gen. Stat. § 150B-36.

5 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, giving due regard to the opportunity of the administrative law judge to evaluate the credibility of witnesses. 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. Every finding of fact not specifically rejected as required by Chapter 150B shall be deemed accepted for purposes of judicial review. 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 establishing that the new finding of fact is supported by a preponderance of the evidence in the official record.

The agency shall adopt the decision of the Administrative Law Judge unless the agency demonstrates that the decision of the Administrative Law Judge is clearly contrary to the preponderance of the admissible evidence in the official record. The agency that will make the final decision in this case is the North Carolina Department of Health and Human Services.

ORDER

It is hereby ordered that the agency making the final decision in this matter serve a copy of the final decision to the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, North Carolina 27699-6714, in accordance with N.C. Gen. Stat. § 150B-36.

IT IS SO ORDERED.

This the 1ST day of March, 2004.

______Augustus B. Elkins II Administrative Law Judge

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