State of North Carolina in the Office Of s11

STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF ONSLOW 03 DHR 1607

) Stevie Meadows ) Petitioner ) ) vs. ) DECISION ) N. C. Department of Health and Human ) Services, Division of Facility Services ) Respondent ) )

On December 9, 2003, Administrative Law Judge Melissa Owens Lassiter conducted an administrative hearing in this contested case in Swansboro, North Carolina. At the end of Respondent’s presentation of its evidence, the undersigned GRANTED Petitioner’s Motion to Dismiss on the grounds that Respondent failed to present sufficient evidence to substantiate that Petitioner abused a resident of a health care facility. On January 8, 2004, Petitioner’s counsel filed a proposed Decision with the Office of Administrative Hearings. The undersigned closed the official record on January 8, 2004.

APPEARANCES

For Petitioner: Thomasine E. Moore Dana B. Golden Attorneys at Law, PA PO Box 127 Jacksonville, North Carolina 28541

For Respondent: N. Morgan Whitney, Jr. Assistant Attorney General PO Box 629 Raleigh, North Carolina 27602-6714

ISSUES

Whether Respondent erred when it determined that on or about May 28, 2003, Petitioner, a health care personnel, abused resident J.V. of Brynn Marr Behavioral Healthcare by picking J.V. up by the right arm and leg, and throwing him down onto a mat on the floor, thereby causing J.V. to cry out? APPLICABLE STATUTES AND RULES

N.C. Gen. Stat. § 131E-256 N.C. Gen. Stat. § 150B-23 42 CFR § 483.156 42 CFR § 488.335(d)(1) 10 NCAC 3B .1001

EXHIBITS

For Petitioner: 1

For Respondent: 1, 2, 4, 5 – 10, 13, 14, 18

FINDINGS OF FACT

Based upon the evidence presented at hearing, including the testimony, demeanor, and credibility of the witnesses, and the documents constituting the record of this case, the undersigned finds as follows:

1. In 1996, Respondent hired Petitioner as a Program Facilitator at Brynn Marr Behavioral Healthcare System (“Brynn Marr”) in Jacksonville, North Carolina.

2. On May 28, 2003, Petitioner remained so employed, and worked at the Jacksonville Brynn Marr facility in the juvenile intensive treatment unit.

3. On May 28, 2003, J.V., a nine-year old, was residing in the subject juvenile intensive treatment unit. He was “screaming and hollering and running around. And Steve [Petitioner] was trying to calm him down, but he was just still screaming and hitting and I believe he was kicking also.” (T p 70) Dr. Resnikoff was also on the unit, trying to write orders. Dr. Resnikoff was also screaming and yelling, and cursing just as loud as J.V. He said the kid needed to quiet down, because he couldn’t think, and he couldn’t write orders. After screaming for about 5 minutes, Resnikoff told the staff to put resident J.V. in the timeout room, that he couldn’t stand the noise any longer. Petitioner advised Resnikoff that there wasn’t an order to do so.

4. Eventually, the Brynn Marr staff put J.V. in the timeout room, but kept the door open. J.V. continued to scream, and run in and out of the timeout room into the hallway. Dr. Resnikoff also continued screaming to shut the timeout door, but “nobody really wanted to shut the door.” (T p 71)

5. Respondent’s unit clerk, Thresa (Terry) Weaver, was sitting at the nurse’s station, answering the telephone crisis line. The nurse’s station is located in the common area or hallway, outside the timeout room and another room. The timeout room and the other room are located beside each other. Weaver stood inside the nurse’s station, seven feet from the timeout room. She could see Petitioner and resident J.V., inside the timeout room, but could not see

2 inside the entire room. (T p 72) She saw Petitioner trying to keep J.V. inside the timeout room so Dr. Resnikoff would stop screaming. She explained that:

The kid [J.V.] kept wanting to come out. And he [Petitioner] reached out and got the child by the arm and leg, and . . . tossed him [J.V.] on the mat. He didn’t pick up the kid and throw him. He picked up the kid by the arm and leg and tossed him on the mat to get him in there - - to put him in there because you couldn’t - - - if you took him, I guess, and walked him in there, before you got out, he’d be back out again. To give some, I guess, between the door and the child. . . . he [J.V.] started hollering that his arm hurt.

(T pp 72-73) Weaver heard J.V. say “ow.” (Resp Exh 8)

6. After that, Ms. Weaver was called away to answer the telephone. She told someone that J.V. was complaining that his arm was hurting. However, Ms. Weaver also noted that J.V. would always “complain a lot.” (T p 73) During the administrative hearing, she acknowledged that resident J.V. walked around, screaming “a lot,” that he was hurt.

7. Ms. Weaver acknowledged that Kim Snead, a developmental disability aide, was standing in between the timeout room and the other room during the subject incident. “Like there’s two rooms with two doorways. She was like in between the doorways.” (T p 77) Weaver did not know if Ms. Snead could see, or if she was looking at J.V. and Petitioner when the incident in question occurred. Ms. Weaver did not discuss the incident with Ms. Snead. Ms. Weaver neither entered the timeout room to check on J.V., nor advised anyone what she had observed, before she left work that afternoon.

8. Ms. Weaver does not know if J.V. received any treatment for an injury that day. (T p 79) In addition, Ms. Weaver did not know if J.V. was actually injured from Petitioner allegedly tossing J.V. onto the mat. (T p 79)

9. That night, Ms. Weaver called Jan Kight, Director of Acute Services at Brynn Mar, and reported what she had observed. Weaver told Kight that Petitioner “threw the client on a mat . . . by grabbing his arm and leg.”

10. On May 29, 2003, Ms. Kight reported to work, advised Petitioner of the allegation by Ms. Weaver, and told him to wait in the lounge. Ms. Kight discussed the allegation with her COO, Carol Sarokas. When she returned to the unit, Petitioner had turned in his keys, and resigned. That same day, Ms. Kight made the required initial twenty-four hour report to Respondent based upon the allegation. (Resp Exh 13)

11. Over the next few days, Ms. Kight reviewed a videotape of the timeout room, talked with Ms. Weaver and Kim Snead, and took written statements from both employees. (T pp 93-94; See Weaver’s handwritten statement in Resp Exh 7) The videotape was recorded by a video camera located inside the timeout room. (T pp 94, 111) The videotape did not record in continuous time, but recorded in intervals, or time frames. “[K]ind of looks jerky, kind of stop motion.” (T

3 p 111) From Kights’ review of the videotape, she was unable to determine that Petitioner’s actions constituted abuse or neglect. (T pp 94, 105-106;111)

Based upon her investigation, Ms. Kight “could not determine that there was any abuse” by Petitioner. (T p 94) That is, she could not conclude that J.V. “was tossed,” because Kight did not see Petitioner bend over to pick up J.V. and throw J.V., or J.V. land on the mat. (T pp 112 -113) She saw J.V. standing at one point, and then, he was on the mat at the next point. “Nothing in between or whether he was being tossed. (T p 113) Kight counseled Ms. Snead because Brynn Marr “encourage[s] staff not to intervene alone. . . because she [Snead] was there watching and did not help Stevie [Petitioner] – assist Stevie. He was left there to do it on his own.” (T pp 94-95) She did not counsel Petitioner because he had already resigned.

12. On June 5, 2003, Brynn Marr submitted a Five-Day Working Report to Respondent on this incident, detailing its investigation and findings of such investigation. Brynn Marr attached a copy of all statements from witnesses to this report. In its Five-Day Working Report, Brynn Marr indicated that it was “unable to substantiate” the abuse allegation against Petitioner. (Resp Exh 14)

13. On June 19, 2003, Respondent received Brynn Marr’s Five-Day Working Report. Respondent “screened in” the allegation of abuse against Petitioner, and decided to investigate the allegation.

14. By letter dated and mailed via certified mail July 1, 2003, Respondent notified Petitioner that it was listing an allegation of abuse on the Health Care Personnel Registry by Petitioner’s name, for allegedly abusing a resident of Brynn Marr in Jacksonville, North Carolina. (Resp Exh 1, p 1) In this letter, Respondent also advised Petitioner that it would conduct an investigation in the allegation of abuse and that Petitioner had a right to appeal the listing of an allegation.

15. On July 3, 2003, Petitioner received Respondent’s July 1, 2003 letter. (Resp Exh 1, p 2) Petitioner did not appeal that decision.

16. Health Care Personnel Registry Investigator Shirley Anderson contacted Brynn Marr’s risk manager, Barbara Moore, and scheduled a date for an on-site visit to investigate this allegation.

17. Around late June 2003, Investigator Anderson visited the Brynn Marr facility in Jacksonville, and conducted her investigation into the subject incident. She reviewed the security video from the timeout room for May 28, 2003. On July 2, 2003, she interviewed Petitioner by telephone.

18. On July 2, 2003, Investigator Anderson interviewed Petitioner by telephone. Petitioner advised her that on May 28, 2003, Kim Snead; Barbara, the nurse; Terry Weaver; Cathy from the helpline; and Dr. Resnikoff were on the juvenile intensive treatment unit. Ms. Weaver and Cathy were standing at the nurse’s station talking, Barbara was in the medication room, and Ms. Snead was standing at the door of the timeout room. He described that Resident J.V. was:

4 fighting staff whenever anyone tried to intervene with him. He was loud. He was cursing and he was also yelling, “child abuse! I [Petitioner] was intervening with him at the time. He did that (yelled out child abuse) with everyone while he was there. The nurse told me to place him in the timeout room. Dr. Resnikoff was there and he was telling me to put him into seclusion and close the door.

(Resp Exh 5)

(a) Petitioner advised Ms. Anderson that he did not think that J.V. needed seclusion, because he wasn’t trying to hurt himself or anyone else, but was just yelling. Petitioner assisted J. V. into the timeout room several times. Each time J.V. just walked out of the timeout room, and Petitioner assisted J.V. back into the timeout room by placing his hands on the lower part of J.V.’s arm near the wrist, and the upper part of the arm near the biceps area. After assisting J.V. into the timeout room one last time, Petitioner sat in a chair in the front of the door to the timeout room, but did not close the door. (Resp Exh 5)

(b) When someone tried to “close me up in the room with J.V.,” Petitioner told that person not to close him in the timeout room with J.V. J.V. then threw his shoes at Petitioner while Petitioner sat in the chair. Petitioner advised that he then held J.V.’s arms down without exerting pressure, so that J.V. was lying face down on the mat. The nurse gave J.V. a shot, and Petitioner let go of J.V. Petitioner held J.V. for less than one minute. J.V. stood up and walked out of the timeout room, and back to his group. (Resp Exh 5)

19. On July 9, 2003, Anderson interviewed Ms. Weaver and Ms. Kight. Ms. Weaver told Anderson that she “observed Mr. Meadows [Petitioner] grab the child [J.V.] by the right arm and leg and toss him into the timeout room on the floor – onto a mat.” (T p 30) Weaver also noted that J.V. always screams. “He was usually in restraints about 3 - 5 times a day for acting out behaviors. Mr. Meadows wasn’t trying to hurt the child. . . . I cannot tell if he used any force when he tossed him onto the mat.”

During her interview with Investigator Anderson, Ms Kight advised Anderson that:

I don’t think Ms. Weaver’s allegation was false. I believe that her perception was off. I don’t think that the amount of force was used that she seemed to think was used. I think Mr. Meadow’s actions were in between. . . . But, from what I observed, I did not see the force that was mentioned by Ms. Weaver. Therefore, I would not call Mr. Meadows’ actions abuse or neglect. I would have counseled him and had him re-train in CPI techniques for future interventions.

(Resp Exh 8) Ms. Kight also told Ms. Anderson that she “believed that Ms. Weaver was telling the truth, and that it was possible – more than likely that if – that Ms. Weaver may not have judged the force with which Mr. Meadows had tossed the child into the room.” (T p 32)

20. On July 10, 2003, Ms. Anderson interviewed Kim Snead. Ms. Snead told Anderson that on May 28, 2003, resident J.V. was medicated a lot, was walking into things and falling down, and was crying at the top of his lungs. (Pet Exh 1) When someone asked J.V. to go to timeout,

5 J.V. walked into the room, but didn’t stay there. Dr. Resnikoff was yelling, “shut the door! shut the door!” Ms. Snead was walking back and forth to the timeout door. Petitioner told J.V. to stay in the timeout room, and Snead went into the timeout room to calm J.V. down. Ms. Snead did not see Petitioner pick J.V. up, and does not know how J.V. got onto the mat in the timeout room. (Pet Exh 1)

21. Investigator Anderson prepared a report of her investigation into the subject allegation. In such report, she noted that Ms. Weaver consistently reported that she observed Petitioner “pick up J.V., a 9 year old resident, by his right arm and leg and throw him into the timeout room.” The fact that Ms. Kight did not “believe that Ms. Weaver’s allegation was false gave increased credibility to the allegation made by the witness [Weaver].” Anderson substantiated this allegation because:

Based upon the statements of the witnesses, it is determined that, on or about May 28, 2003, Stevie Meadows intentionally picked up a 9 year-old resident by the arm and leg and threw him onto a mat on the floor, thereby causing him to hurt his arm.

(Resp Exh 9; Emphasis)

22. However, Investigator Anderson also indicated in her investigative report that Ms. Kight “did not feel that Mr. Meadows [Petitioner] used force when handling the resident.” (Resp Exh 9) She noted that the videotape was inconclusive because the camera used by the facility did not record in continuous play, but in frames. She further noted that:

The resident J.V. did not have any memory of the incident. One witness, Kim Snead, reported that JV was always falling down and bumping into things because he was medicated. The resident’s mother, . . . also reported that JV was usually heavily medicated and would not remember if anything had happened.

(Resp Exh 9) Lastly, Anderson remarked that Weaver’s “concern for the possible injury of this child was certainly plausible under the circumstances.” (Resp Exh 9)

23. In her substantiation determination, Ms. Anderson did not determine that Petitioner unreasonably confined, intimidated, or punished J.V. Neither did Ms. Anderson determine, and base her decision on facts, that Petitioner’s actions caused J.V. to experience mental anguish. As such, those issues are not properly before this Court.

24. Investigator Anderson did not make any determinations regarding the “hold” Petitioner placed on J.V. when the nurse gave J.V. a shot in the timeout room. Therefore, any issue about that fact is not before this Court.

25. When Respondent entered the abuse allegation as a substantiated on the Health Care Personnel Registry, Respondent listed the “Nature of Allegation” as:

6 On or about 5/28/03[,] Stevie Meadows, a health care personnel, physically abused a 9 year old resident (JV) by picking him up by the right arm and leg and throwing him down on a mat on the floor, thereby causing the resident to cry out.

(Emphasis added; Entry of Finding, Respondent’s Prehearing Statement;)

26. The Entry of Finding on the Health Care Personnel Registry was not the same finding as Ms. Anderson’s finding in her investigative report. (Resp Exh 9) While both findings were similar, the last part of each finding implied different results from Petitioner’s actions. Anderson’s finding that Petitioner’s actions caused J.V. to hurt his arm alleged that Petitioner’s actions caused J.V. physical harm. However, the Entry of Finding on the Health Care Personnel Registry that Petitioner’s actions caused J.V. to cry out, implied that Petitioner caused J.V. physical harm and maybe pain.

27. There was sufficient evidence to show that Petitioner assisted J.V. into the timeout room with his hands on J.V.’s arms. However, there was insufficient evidence to prove that Petitioner willfully and intentionally acted in such a manner, to inflict injury on J.V. or cause him physical harm or pain. There was insufficient evidence to show how Petitioner placed J.V. into the timeout room; that is, if Petitioner “threw” or “tossed” J.V. into the timeout room, or what force, if any, Petitioner used in doing so. Specifically, the only “eyewitness,” Ms. Weaver, could not adequately describe the force which Petitioner used on J.V. She used different words such as “threw” or “tossed” to describe how Petitioner handled J.V.

28. Even if one assumes that Petitioner used sufficient force to “throw” J.V. into the timeout room, there was no evidence presented at hearing that J.V.’s arm was injured, that J.V. asked anyone to examine his arm, or that any staff member examined J.V.’s arm. The evidence did show that after receiving a shot from the nurse, J.V. quickly stood up, and walked out of the timeout room. There was no evidence that J.V. further complained of physical harm or pain.

Instead, a preponderance of the evidence showed that J.V. always “complain[ed] a lot,” (T p 73) and screamed “a lot” that he was hurt. Ms. Weaver reported to Ms. Anderson that, “I saw him [Petitioner] toss JV over into the room and onto the mat that was on the floor. JV started screaming that his arm hurt him. He always does that. He was usually in restraints about 3-5 times a day for acting out behaviors.” (Resp Exh 6)

While Ms. Weaver indicated that she heard resident J.V. cry out “ow” after he landed on the mat in the timeout room, there was insufficient to prove that any action by Petitioner caused J.V. to cry out, or that J.V. cried out in pain or because he was hurt. Instead, the evidence proved that J.V. always screamed that he was hurt when walking around the unit.

29. There was insufficient evidence in Respondent’s investigation to support Investigator Anderson’s determination that Petitioner abused J.V. or to substantiate such allegation of abuse.

7 CONCLUSIONS OF LAW

Based upon the foregoing Findings of Fact, the undersigned concludes as follows:

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 health care personnel worker, Petitioner is subject to the provisions of N.C. Gen. Stat. § 131E-256.

4. N.C. Gen. Stat. § 131E-256(a) provides that the Department of Health and Human Services shall establish and maintain a health care personnel registry containing all the name of all health care personnel working in health care facilities in North Carolina who have: (1) been subject to findings by the Department of:

a. . . . abuse of a resident in a health care facility.

5. Respondent has the burden of proving by a preponderance of the evidence that Petitioner abused J.V. on May 28, 2003, and that an allegation of abuse should be substantiated and listed as a finding of abuse by Petitioner’s name in the Health Care Personnel Registry.

6. “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.”

7. 10 NCAC 3B.1001(1) defines the term “abuse” as applied throughout Subchapter 3B. Incorporated by reference into this definition of “abuse” is the definition of abuse found at 42 CFR Part 488.301, Subpart E.

8. Neither the federal regulations nor the North Carolina Administrative Code defines the terms used in the federal definition of “abuse.”

9. As a controlling principle, when construing a statute, the words used therein will be given their ordinary meaning, unless it appears from the context that they should be taken in a different sense. Abernathy v. Board of Comm’rs, 169 N.C. 613, 86 S.E.2d 577 (1915)

10. In Hearns v. District of Columbia Depart. of Consumer & Regulatory Affairs, 704 A.2d 1181 (1997), the Court, in a nurse aide abuse case, discussed the definition of the word “willful” as used in the definition of “abuse” in 42 CFR § 488.301. That Court stated that:

the regulation [42 CFR § 488.301] cannot reasonably be understood to mean that she [the nurse aide] must have acted with a “bad purpose” (ie. to abuse); rather

8 ‘willful’ in this regulatory context denotes a conscious decision to do the act with the law forbids.

(Citing Screws v. United States, 325 U.S. 91, 101, 65 S.Ct. 1031, 89 L.E. 1495 (1945))

11. Black’s Law Dictionary defines “willful” as “proceeding from a conscious motion of the will, voluntary, designed, intentional, not accidental or involuntary.” (Black’s Law Dictionary, 5th Ed. 1979)

12. Merriam-Webster Dictionary defines the word “inflict” as “afflict, to give by or as if by striking, to cause (something unpleasant) to be endured. (Merriam-Webster Dictionary, 2004)

13. Merriam-Webster Dictionary defines the word “injury” as “hurt, damaged, or loss sustained.” (Merriam-Webster Dictionary, 2004)

14. Merriam-Webster Dictionary defines “pain” as “localized physical suffering associated with bodily disorder (as a disease or an injury).” (Merriam-Webster Dictionary, 2004)

15. In this case, a reasonable person can reconcile the differences in wording between Anderson’s finding in her report with the Registry’s Entry of Finding, and determine that the wording difference neither changed the facts of this case nor changed the elements required to shown, to prove abuse in this case. However, assuming that determination is true, Respondent still failed to meet its burden of proving that Petitioner abused resident J.V. on May 28, 2003. The preponderance of the evidence was not at a sufficient level to prove whether the force and/or strength by which Petitioner “threw” or “tossed” J.V. constituted “physical abuse.” The evidence did prove that there were no physical marks, or injury to J.V. Given J.V.’s known behavior of always “screaming out,” the evidence was insufficient to prove that any of Petitioner’s actions caused J.V. to cry out.

16. Based upon a preponderance of the evidence, including the evidence that was before Respondent when it substantiated the abuse allegation against Petitioner, Respondent failed to present sufficient evidence that Petitioner willfully inflicted injury on J.V., and that any actions by Petitioner caused J.V. to hurt his arm, suffer pain, or to cry out.

17. Based upon the foregoing, Respondent erred in substantiating the allegation of abuse against Petitioner, because there was insufficient evidence to support Respondent’s conclusion.

DECISION

Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned determines that the Respondent should REVERSE its decision to place a finding of abuse at Petitioner’s name in the Health Care Personnel Registry.

9 NOTICE

The North Carolina Department of Health and Human Resources, Division of Facility Services will make the Final Decision in this contested case. N.C. Gen. Stat. § 150B-36(b), (b1), (b2), and (b3) enumerate the standard of review and procedures the agency must follow in making its Final Decision, and adopting and/or not adopting the Findings of Fact and Decision of the Administrative Law Judge.

Pursuant to N.C. Gen. Stat. § 150B-36(a), before the agency makes a Final Decision in this case, it is required to give each party an opportunity to file exceptions to this decision, and to present written arguments to those in the agency who will make the Final Decision. N.C. Gen. Stat. 150B-36(b)(3) requires the agency to serve a copy of its Final Decision on each party, and furnish a copy of its Final Decision to each party’s attorney of record and to the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-6714.

This the 28th day of January, 2004.

______Melissa Owens Lassiter Administrative Law Judge