Petitioner: Sammy D. Webb, Esq

STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF HALIFAX 04 DHR 0294

OTIS D. WYCHE, JR., ) Petitioner, ) ) v. ) ) N.C. DEPARTMENT OF HEALTH AND DECISION ) HUMAN SERVICES, DIVISION OF ) FACILITY SERVICES, ) Respondent. )

This contested case was heard before the Honorable Sammie Chess, Jr., Administrative Law Judge, in Halifax, North Carolina on August 20, 2004.

APPEARANCES

Petitioner: Sammy D. Webb, Esq. Webb, Webb, & Summey, P.A. 1485 Highway 158 West P.O. Box 68 Roanoke Rapids, N.C. 27870

Respondent: N. Morgan Whitney, Jr. Assistant Attorney General North Carolina Department of Justice 9001 Mail Services Center Raleigh, NC 27699-9001

Whether Respondent deprived the Petitioner of property, or otherwise substantially prejudiced the Petitioner's rights, AND exceeded its authority or jurisdiction, acted erroneously, failed to use proper procedure, acted arbitrarily or capriciously, and/or failed to act as required by law or rule, when it substantiated the following allegation of abuse and decided to list Petitioner on the Health Care Personnel and/or Nurse Aide Registries:

“On or about 1/28/04, Otis Wyche, a Health Care Personnel, abused a resident (CC), by lifting (CC) by the neck, causing redness of (CC)’s neck, and by hitting (CC), causing marks on (CC)’s buttocks and verbally abused (CC) by threatening (CC) and using foul language toward (CC), causing mental anguish.” (Resp. Ex. 23) 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

EXHIBITS

For Petitioner: none.

For Respondent: 1-5, 8-12, 14-20, 23, 24, 25, 26, 28.

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 Idlewood Group Home (hereinafter “Home”) is owned and operated by Life Incorporated. The Home is located in Roanoke Rapids, North Carolina. The Home is an Intermediate Care Facility for the Mentally Retarded (hereinafter “ICF/MR”) and all of the clients in the group home function in the moderate to profound range of mental retardation. (Resp. Ex. 1,-2, T. pp. 16-18)

2. At all times relevant to the case at bar, the Petitioner was employed by the Home in the capacity of a Habilitation Technician whose responsibilities included preparing meals, assisting clients with laundry, bathing and other activities of daily life. (Resp. Ex. 2, 4)

3. At all times relevant to the case at bar, C.C. was a client residing in the Home. C.C. was diagnosed as having severe mental retardation, seizure disorder, atypical autism, mild Cerebral Palsy and an impulse control disorder with aggression. (Resp. Ex. 19, T. p. 18)

4. Sheila Boone, another Habilitation Technician, testified that on January 28, 2004, she arrived at the Home shortly after 8:00 a.m. Ms. Boone and the Petitioner were the two staff assigned to work in the Home during first shift on that day. There were other clients in the Home that day. (Resp. Ex. 8, T. pp. 33)

5. Shortly after 12:30 p.m., Ms. Boone and the Petitioner were sitting in the living room of the Home watching television. Petitioner got up to leave the room and walked past C.C. who was sitting in a chair. C.C. stuck his foot out and tripped the Petitioner. (Resp. Ex. 8, T. p. 26)

6. Once the Petitioner caught his balance, he walked over to C.C. who was still seated in a chair. Petitioner said, “You tripped me. Stand up. You tripped me motherfucker.” C.C. began saying and repeating, “I’m sorry Otis, I’m sorry.” Petitioner kept saying, “Stand up, stand up!” When C.C. stood up, Petitioner picked C.C. up over Petitioner’s head. C.C. continued yelling “I’m sorry Otis. I’m sorry.” Petitioner had lifted C.C. by grabbing C.C. by the chest and groin and lifted C.C. sideways over Petitioner’s head. (Resp. Ex. 8, T. pp. 26-27, 29- 30)

7. Petitioner then grabbed C.C. by the back of the neck and led him down the hallway towards C.C.’s room. Before Petitioner and C.C. turned the corner to go down the hallway, Petitioner picked C.C. up off the floor again. This time, Petitioner had his hands around C.C.’s neck with his thumbs under C.C.’s chin. Petitioner put C.C. back down and proceeded around the corner and down the hallway. Ms. Boone could no longer see the Petitioner and C.C. but she heard Petitioner say, “You won’t trip anyone else.” Ms. Boone described Petitioner’s tone of voice as “boisterous.” (Resp. Ex. 8, T. pp. 27, 29-30, 38, 40)

8. Ms. Boone did not hear anything that went on in C.C.’s bedroom. There were two televisions on with the volume turned up loud. One television was in the living room where Ms. Boone was located. The other television was in one of the client’s bedrooms. (Resp. Ex. 8, T. pp. 27, 31, 41)

9. Approximately two to five minutes later, C.C. came back to the living room and sat in the chair he was in before the altercation began. Ms. Boone, who was seated on the sofa (with one of the clients asleep on her lap), got up to check on C.C. Ms. Boone found that C.C.’s neck was red on both sides and under his chin along his throat. She did not find any other visible marks on him at that time. (Resp. Ex. 8, T. pp. 15, 28)

10. Several minutes later, Petitioner returned to the living room. Ms. Boone told Petitioner that what C.C. did (i.e. tripping the Petitioner) was a behavior and needed to be documented in C.C.’s records. (Resp. Ex. 8, T. p. 28)

11. Ms. Boone testified that she did not immediately report this incident as required by the policy of Life, Inc. because she was afraid of the Petitioner. She was concerned that the Petitioner would deny that the incident took place and/or try to blame the incident on her. Ms. Boone intended to tell her supervisor the next day. Ms. Boone was disciplined for not reporting this incident in a timely manner. (Resp. Ex. 8, 28, T. pp. 24, 32-33)

12. Petitioner denied that he called C.C. a “motherfucker.” Petitioner denied lifting C.C. up over his head. Petitioner denied picking C.C. up by his neck. Petitioner denied that he told C.C. that he was going to “teach you not to trip somebody.” (T. pp. 99, 101, 107, 114) 13. Petitioner admitted that on the afternoon of January 28, 2004, C.C. did trip him. After Petitioner stood up, he asked C.C. if this act had been intentional. C.C. did not answer. Ms. Boone then said that this was a “behavior” and that it needed to be documented. Petitioner did not document the behavior until approximately 8:00 p.m. that evening. Petitioner also confirmed that there were two televisions on at a loud volume and that Ms. Boone was sitting on the sofa with a client’s head in her lap. (T. pp. 97-99)

14. Petitioner testified that he asked C.C. to stand up several times before C.C. complied. Petitioner stated that he grabbed C.C.’s left arm to escort C.C. to his room. Petitioner took C.C. to his room, shut the door and sat C.C. on his bed. Petitioner explained to C.C. that it was improper to interfere with people like that. They were in the room approximately five minutes. Afterwards, Petitioner and C.C left the room. C.C. went back to the living room and Petitioner went to the kitchen. (T. pp. 100-01)

15. Petitioner testified that Ms. Boone was assigned to care for C.C. on the date of this incident, Wednesday, January 28, 2004 until her shift ended at 3:00 p.m. After that, Debbie Davis was assigned to C.C. Despite not being assigned to C.C., Petitioner assisted C.C. with his shower that evening. Petitioner testified that he saw marks on C.C.’s buttocks that night while giving C.C. a shower and that he notified Kathy Manley via telephone of his findings. Petitioner told no one else about his discovery of these marks. (T. pp. 105, 109-10)

16. On direct examination, Petitioner described the marks as “scratches” or “bruises” and stated there were “approximately three marks, very dark in color, black to blue, basically separated on his rear end… very dark blue in color.” Petitioner also stated the marks were not fresh. (T. p. 107)

17. On cross-examination, Petitioner again testified that during the shower check of C.C., that he noticed “approximately three marks, very dark, black and blue in color, on his rear end.” However, on the body check report of C.C., made by the Petitioner immediately after he discovered the marks on C.C.’s buttocks and read aloud in court, Petitioner described the marks as “Approximately two to three inches in length, three to four marks, light whelp marks, may have been leaning against something to mark.” (T. p. 119-20)

18. Petitioner continued to testify on cross examination that he only reported the marks as “light whelps” on the body check report because Ms. Manley, whom he reported the marks to, did not “seem like that was too important or whatever.” Further, Petitioner testified that, “the only reason why I done the body check report was because I ask her did she want me to do one. And she stated yes.” Petitioner also stated that he didn’t describe the bruises as dark, black and blue, “Because I thought it wasn’t relevant.” (T. p. 119-20)

19. In Ms. Manley’s interview with the Respondent, she stated that she called the home on the evening of January 28, 2004 and Petitioner answered the phone. Ms. Manley indicated that Petitioner reported that C.C. had “scratched himself.” Petitioner further stated it was “nothing,” and that he had noticed it while bathing C.C. Petitioner’s interview with the Respondent corroborates the fact that Petitioner did not call Ms. Manley, she called the home first. (Resp. Ex. 5, 17)

20. Petitioner testified on cross examination that he did not ask C.C. where the marks came from, he simply “assumed” that C.C. had been leaning against something too long. Petitioner also testified that he did not count the lines on C.C.’s buttocks because “at that particular time, my supervisor didn’t tell me to count the lines.” (T. pp. 121-22)

21. The next day, January 29, 2004, between 11 a.m. and noon, a body check was conducted on C.C. because of the report received by Kathy Manley from the Petitioner. The check was conducted by Eunice Rogers, the Qualified Developmental Disabilities Professional (hereinafter “QDDP”), Shelia Boone, the Nurse, Jennifer Clements and the health coordinator (name not given). They discovered three red marks on each of C.C.’s buttocks. (Resp. Ex. 10, 24, T. pp. 51-52, 58-59, 85-86)

22. There were three marks on each of C.C.’s buttocks. The marks lined up indicating that the instrument used to make the marks was long enough to span across both of C.C.’s buttocks. Jennifer Clements, the Nurse, described the marks as “dark red in color” with “some purplish-blue bruising around the marks.” Eunice Rogers photographed the marks at that time. No other marks were found except for a scab on one of his arms that had been previously documented. (Resp. Ex. 10, 11, 12, T. pp. 58, 86)

23. When asked who did this to him, C.C. responded “Ed.” When asked again later, C.C. said that “O,” meaning Otis (the Petitioner) had hit him with C.C.’s belt. Someone retrieved C.C.’s belt from his room, however, upon visual inspection it was determined that a belt could not have made the marks. In later conversations with his mother, April Clark, C.C. repeatedly stated that, “Big-O” had spanked him. (Resp. Ex. 10, 17, 18, 20, 21, T. pp. 58-59, 80)

24. Kaye White, the Director of Admissions at the Home, spoke to Ed and eliminated him as a suspect because he had not worked since Tuesday, January 27, and there were no marks present on C.C. as of the Tuesday afternoon body check. Ms. White was “very sure” that the injuries occurred sometime on Wednesday. (Resp. Ex. 16, T. pp. 12, 72-74)

25. According to a body check completed on February 2, 2004 by Sheila Boone, the marks were still visible on C.C.’s buttocks. April Clark, C.C.’s mother testified that four days after the event, she brought C.C. home that the bruises were “blue” and that the marks were substantially similar to those in the photos. Ms. Clark noted that the bruises “hadn’t faded at all.” Jennifer Clements, the Home nurse testified that the bruises did not begin to fade until “well over a week” after their discovery. (Resp. Ex. 21, 25, 26, 28 T. pp. 79, 87)

CONCLUSIONS OF LAW

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

2. 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 and -256 to maintain a Registry that contains the names of all health care personnel working in health care facilities against whom a finding of abuse, neglect, or misappropriation of resident and/or facility property has been substantiated. 3. 42 CFR 488.301 states that, “Abuse means the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish.”

4. The Idlewood Group Home is a facility as defined in N.C. Gen. Stat. § 131E-255. In order to provide these services to its residents the Home employs Habilitation Technicians and Assistants which are subject to the provisions of N.C. Gen. Stat. § 131E-255.

5. Petitioner is a Habilitation Technician and is subject to the provisions of N.C. Gen. Stat. § 131E-255.

6. This Court finds the Petitioner’s testimony not credible because of numerous inconsistencies regarding the nature of the marks found on C.C.’s buttocks:

a. On the night the Petitioner “discovered” the injuries, he described the marks as “light whelp marks” and Petitioner reasoned that C.C. “may have been leaning against something to mark.”

b. Since that time, Petitioner has described the marks he found that evening as “very dark, black and blue in color.” Petitioner’s testimony explained this discrepancy by claiming that Ms. Manley, to whom he reported the marks, did not “seem like that was too important or whatever.” Further, the petitioner explained that he did not describe the bruises as dark, black and blue, “Because I thought it wasn’t relevant.”

c. On the report Petitioner filled out the night he “discovered” the injuries, he noted that there were “three to four marks”on C.C’s “rear end.” Petitioner’s explanation for not counting the exact number of marks was because “at that particular time, my supervisor didn’t tell me to count the lines.”

7. Sufficient evidence existed to support the Respondent’s decision to substantiate the above allegation of abuse.

DECISION

1. BASED UPON THE FOREGOING FINDINGS OF FACT AND CONCLUSIONS OF LAW the undersigned hereby determines that:

Respondent's substantiation of and decision to list the aforementioned allegations of abuse in the Nurse Aid and/or the Health Care Personnel Registries is 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 ____ day of May, 2005.

______Hon. Sammie Chess, Jr., Administrative Law Judge, presiding A copy of the foregoing was mailed to:

Sammy D. Webb PO Box 68 145 Hwy 158 W. Roanoke Rapids, NC 27870 ATTORNEY FOR PETITIONER

Wendy L. Greene Assistant Attorney General N.C. Department of Justice 9001 Mail Service Center Raleigh, NC 27699-9001 ATTORNEY FOR RESPONDENT

This the day of May, 2005.

______Office of Administrative Hearings 6714 Mail Service Center Raleigh, N.C. 27699-6714 919/733-2698 Fax: 919/733-3407