State of North Carolina s87

STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF ASHE 03 DHR 1574

VIRGINIA RUTH MAHALA, ) Petitioner, ) ) v. ) DECISION ) DEPARTMENT OF HEALTH AND ) HUMAN SERVICES, OFFICE OF ) LEGAL AFFAIRS, ) Respondent. )

THIS MATTER came on for hearing before the undersigned James L. Conner, II, administrative Law Judge, on the 2nd day of December, 2003, in Newton, North Carolina.

APPEARANCES

Petitioner: Virginia Ruth Mahala, Pro se 348 Cabbage Creek Road Creston, NC 28615

For Respondent: Wendy L. Greene Assistant Attorney General North Carolina Department of Justice P.O. Box 629 Raleigh, NC 27602-0629

Whether Respondent substantially prejudiced Petitioner’s rights, acted erroneously, failed to use proper procedure, and acted arbitrarily or capriciously when it substantiated the allegation that Petitioner abused multiple residents by jerking, pulling, yanking, cursing at, and belittling them while providing them with care.

APPLICABLE STATUTES AND RULES N.C. Gen. Stat. § 131E-255 N.C. Gen. Stat. § 131E-256 N.C. Gen. Stat. §150B-23 42 CFR § 488.301 10 NCAC 3B.1001 EXHIBITS

Respondent’s exhibits 1, 3, 4, 5, 6, 11, 12, 13, 14, and Petitioner’s exhibits 1 and 2 were admitted into evidence.

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 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, the undersigned makes the following:

FINDINGS OF FACT

1. At all times relevant to this matter, Petitioner Virginia Ruth Mahala was a certified nurse assistant at Ashe Memorial Hospital, Seagrave’s Care Center (“Seagrave’s”). Seagrave’s is a nursing home in Jefferson, Ashe County, North Carolina, and as such, is subject to N.C. Gen. Stat. §131E-255. ( T pp. 12, 14, 15, 17)

2. Petitioner started working at Seagrave’s as a housekeeper, and later became a nurse assistant. As a nurse assistant her duties centered around helping residents with their activities of daily living, such as making sure residents were kept dry, feeding, and turning them. Some of the residents at Seagrave’s require total care, or assistance with all of the activities of daily living. Petitioner worked third shift, from 10:00 p.m. to 6:00 a.m. (T pp. 15, 16, 20)

3 Petitioner understands abuse of residents to be hitting, yanking, cursing at them, failing to provide them services, or speaking to them in an ugly manner. At Seagrave’s, Petitioner attended an in-service training on abuse and neglect. Petitioner placed a handout from the training on her locker so she could look at it often. (T pp. 14, 18, 32)

4 At Seagrave’s, Petitioner worked with, among others, residents GJ, FB, CW, BK, EH, BF, KG, AL, and EW. For GJ, Petitioner would often have to provide care for a breathing tube in the resident’s neck. For FB, she provided care related to hygiene, and turned the patient regularly. EH, BF, AL and EW had to be fed, kept clean, and turned as well. KG also required total care but did not require feeding because she was on a feeding tube. Petitioner recalled that residents FB, EH, BF, AL and EW were able to talk. (T pp. 23-28)

5 To turn residents, Petitioner would grab their bed pads, on which the resident was lying, and use the pad to maneuver the resident. For residents who slept on bed sheets, Petitioner would use the sheet to turn them. Both methods of turning residents required two staff persons. Petitioner was taught the two-person turn protocol at Seagrave’s and at other places. However she sometimes turned patients by herself. (T pp. 29 - 32)

2 6. At all times relevant to this matter, Kathy Barker was a certified nurse assistant at Seagrave’s. She works twelve hour shifts, from 6:00 p.m. to 6:00 a.m., three days a week. Ms. Barker worked with Petitioner at Seagraves. (T pp. 40, 41)

7. In May and June of 2003, Ms. Barker noticed that Petitioner was rude to some of the residents. She witnessed Petitioner yank and jerk resident EW’s mattress pad and say to EW, “you wouldn’t be in this shape if you weren’t so GD sorry.” EW reacted by opening her eyes wide. Ms. Barker also saw Petitioner cause a skin tear on EW’s arm by turning her by herself, and in the process pulling too hard on the pad. Ms. Barker was on the other side of EW’s bed when this happened, and was not able to properly grasp the pad before Petitioner yanked it. (T pp. 42, 43)

8. Resident BK, who is approximately in her eighties, is often in a fetal position. One evening, when Petitioner and Ms. Barker were in BK’s room, Ms. Barker saw Petitioner jerk BK’s feet down. Something within BK’s body made a popping noise, and Petitioner told BK, “get your GD feet out of your ass.” Ms. Barker also saw Petitioner jerk the legs of resident BF. Other times, when BF would reach up trying to grab a staff person to pinch her, Petitioner would shove BF back down onto the bed. BF, BD and EW cannot speak. Ms Barker said that Petitioner treated these residents worse than she did those capable of talking back, defending themselves, or telling a nurse what was being done to them. (T pp. 44 - 47)

9. Ms. Barber said that normal protocol to straighten the body of a resident curled into fetal a position, is to roll down the head of the bed, turn the resident over, and attempt to straighten out their legs. Residents are not to be yanked and jerked. (T p. 46)

10. Petitioner once jerked on resident AL’s legs when she and Ms. Barker were attempting to put some pants on him. AL told Petitioner, “little woman, you’re getting just a little bit rough.” (T pp. 52, 53)

11. Ms. Barker reported Petitioner’s behavior to her immediate supervisors. When the supervisors did not do anything, she and two coworkers, Becky Severt and Janice Testerman, reported what they had seen to David Jones, the Clinical Supervisor. (T pp. 48, 49)

12. At all times relevant to this matter, Mary Baldwin was a certified nurse aide at Seagrave’s. Ms. Baldwin works third shift, and knows Petitioner because they worked together approximately five nights per week. (T pp. 64 - 66)

13. Ms. Baldwin saw Petitioner jerk resident EW when she turned her without waiting for Ms. Baldwin to help. She also heard Petitioner cursing at EW, telling her to “get your damn feet down out of your ass.” In addition, Ms. Baldwin saw Petitioner mistreat FB and B by jerking them around, pushing them into the side rails, and banging their heads against the side rails. She has also seen Petitioner jerk AF’s legs. In response, AF would scrunch up and become stiff. (T pp. 66, 67, 69, 70, 71)

3 14. Ms. Baldwin reported what she had seen to two third shift nurses, and then to David Jones. She also reported Petitioner’s behavior to Sherry Cox, Human Resources Director. Since Petitioner’s departure from Seagrave’s, Ms. Baldwin has noticed that the residents with whom Petitioner used to work now smile more, and respond better. (T pp. 71 - 74)

15. At all times relevant to this matter, Janice Testerman was a nurse assistant at Seagrave’s. Ms. Testerman works from 6:00 p.m. to 6:00 a.m. She knew Petitioner before working at Seagrave’s, and worked with her there for one year. (T p. 88 - 89)

16. Ms. Testerman saw Petitioner treat patients roughly. According to Ms. Testerman, EW was a difficult resident to turn alone because her body is contracted and stiff, and when Petitioner did so, it was in a rough manner. She also saw Petitioner turn another resident, BK, roughly. (T pp. 91, 92)

17. Resident FB slept with two pillows. Ms. Testerman saw Petitioner yank a pillow from under FB’s head, telling her that she was “breaking her damn neck” by sleeping on two pillows. Petitioner treated resident CW in a similar manner; she was rough when she turned him, and told him he wouldn’t be in the condition he was if he wasn’t so sorry. CW became frightened, and did not want to be left alone. In addition, Ms. Testerman heard Petitioner tell AL that he wouldn’t be so contracted if he was not so damn lazy. (T pp. 92, 93, 94)

18. At all times relevant to this hearing, Sherry Cox was Human Resources Director at Seagrave’s. Ms. Cox is responsible for employee investigations, hiring and firing, and workers’ compensation. (T pp. 104. 105)

19. David Jones and another employee, Carol Burt, reported to Ms. Cox the information received regarding Petitioner’s behavior. Ms. Cox conducted the facility investigation. The investigation primarily consisted of interviews with Petitioner and the aides who worked with her, including Kathy Barker, Mary Baldwin, and Janice Testerman. She found that the nurse aides were credible, presented similar recounts of Petitioner’s behavior, and presented no indication that they were conspiring against Petitioner. (T pp.105, 106, 107)

20. At all times relevant to this matter, Barbara Powell was an Investigator with the Nurse Aide Registry, Health Care Personnel Registry (“NAR/HCPR”). The NAR/HCPR is mandated to investigate allegations of abuse, neglect, misappropriation and diversion of drugs by health care personnel in certain health care facilities. In mid to late June, 2003, Ms. Powell received from Seagrave’s a five-day report on an allegation that Petitioner Virginia Ruth Mahala abused a resident, GJ. Ms. Powell investigated the allegation. (T pp. 111 -114)

21. Ms. Powell conducted the investigation during an on-site visit to Seagrave’s, where she reviewed various files, and interviewed the Petitioner and witnesses. (T p. 115)

22. Petitioner denied cursing at AL, throwing a towel on GJ, and yanking a pillow out from under FB’s head. Petitioner acknowledged being moody, but says that her treatment of

4 residents was not affected by her moods, and believed that the residents of Seagrave’s never reacted to her bad moods. ( T pp. 34, 37, 38)

23. Ms. Powell concluded that Petitioner did in fact abuse multiple residents of Seagrave’s by jerking and pulling them, belittling them, and cursing at them while providing them care. She felt that Petitioner’s behavior was intentional, continuous, and that it was increasing in severity. (T pp. 115, 116)

24. The fact that Petitioner chose residents who were least able to report her abuse or stand up for themselves indicated that her selection of victims was intentional. Additionally, Petitioner did not exhibit this behavior in front of nurses, only nurse aides. The residents’ skin tears, pain from being jerked, and mental anguish constituted the pain and suffering required to establish abuse. (T pp. 116, 117)

25. Petitioner was notified by letter that a finding of abuse would be listed against her name on the Health Care Personnel Registry. (T pp. 117, 118)

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

4. “Abuse” is defined as “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.

5. On or about May 1, through June 13, 2003, Petitioner abused multiple residents of Seagrave’s Care Center, Jefferson, North Carolina, by jerking, pulling, and yanking the residents, and cursing at and belittling them while providing them with health care.

6. Respondent did not prejudice Petitioner’s rights because there is sufficient evidence to support Respondent’s conclusion that Petitioner abused multiple residents.

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

5 DECISION

That the Respondent’s decision to place a finding of abuse at Petitioner’s name on the Nurse Aide Registry and the Health Care Personnel Registry 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 5th day of March, 2004.

______James L. Conner, II Administrative Law Judge