State of North Carolina s108

STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF WAKE 05 DHR 2204

______

ROSA CURRIE, ) Petitioner, ) ) v. ) DECISION ) NC DEPARTMENT of HEALTH and, ) HUMAN SERVICES, ) Respondent. ) ______

THIS MATTER came on for hearing before the undersigned, Augustus B. Elkins II, Administrative Law Judge, on June 26, 2006, in Raleigh, North Carolina. All documents were received and the record closed on August 21, 2006.

APPEARANCES

For Petitioner: Rosa Currie, pro se Garner, North Carolina 27529

For Respondent: Susan K. Hackney Assistant Attorney General North Carolina Department of Justice Raleigh, NC 27699-9001

Whether Respondent deprived Petitioner of property, otherwise substantially prejudiced Petitioner’s rights, acted erroneously, and acted arbitrarily or capriciously when Respondent notified Petitioner of its intent to enter the following findings against Petitioner’s name in the Health Care Personnel Registry:

On or about October 10, 2005, Rosa Currie, a Nurse Aide abused a resident (L.L.) by talking to the resident in an intimidating manner causing the resident mental anguish.

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 10A N.C.A.C. 13O.0101

EXHIBITS

For Respondent: Exhibits 1 - 15 were admitted into the record.

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 and all other evidence, the Undersigned makes the following:

FINDINGS OF FACT

1. At all times relevant to this matter Petitioner, Rosa Currie, was employed as a nurse’s aide at Rex Rehabilitation Center (Rex Rehab) in Raleigh, North Carolina, a nursing facility. She was subject to N.C. Gen. Stat. § 131E-255 and § 131E-256. (T. pp. 19-20; Resp. Exh. 4)

2. Petitioner was responsible for taking care of the patients’ personal needs such as taking them to the bathroom. (T. p.20; Resp. Exh. 4)

3. Petitioner understood that resident abuse can be physical or verbal. Petitioner received training on resident abuse and resident’s rights while she was working at Rex Rehab. (T. pp. 21-22, 24; Resp. Exh. 1, 2)

4. L.L. was admitted into Rex Rehabilitation Center after having both knees replaced. In addition, L.L. had other medical conditions including coronary artery disease, cardiac rhythm abnormality, hypertension diabetes and chronic atrial fibrillation. He required assistance in moving from the bed to another location such as the bathroom and in dressing. (T. pp. 44-46; Resp. Exh. 6).

5. On Saturday, October 8, 2005 and Sunday, October 9, 2005, Petitioner worked split shifts, working part of second shift and all of third shift. She began work at 7:00 p.m. on the back hall where the permanent residents resided. When third shift began, her assignment

-2- changed to the rehabilitation patients on another hall. She was assigned to some patients on both halls. (T. pp. 25-28)

6. L.L. was one of the patients assigned to Petitioner during third shift. Petitioner had not worked with L.L. previously. (T. p. 28; Resp. Exh. 4)) Petitioner was not given information as to why L.L. was at Rex.

7. According to L.L. on October 8, 2005, he rang his call bell because he had bowel problems and needed to the bathroom. Having not gotten a response after twenty minutes he rang the bell again. After another twenty minutes he and his roommate began to yell to get someone to help him to the bathroom. He heard two women talking in the hall and he yelled loud enough to get their attention. The two women helped L.L. to the bathroom and instructed him to ring the call bell in the bathroom when he was finished. (T. p. 47-48; Resp. Exh. 5)

8. According to Petitioner, as Petitioner was taking vital signs on patients at the other end of the hall, a nurse asked her to take L.L. to the bathroom. She went into L.L.’s room to help him to the bathroom but L.L. jumped out of the bed and got to the bathroom by himself. She instructed him to pull the call light when he finished. Petitioner went back to taking vital signs at the other end of the hall. (T. pp. 29-30)

9. When L.L. was ready to go back to bed, he rang the call bell. From the bathroom he could see the clock in his room and he waited about twenty minutes before ringing the call bell a second time. After waiting another twenty minutes he believed no one was coming to help him so he made his way back to bed by himself. (T. p. 48; Resp. Exh. 5)

10. Later, someone came to L.L.’s room and asked him if he’d had any help getting back to bed and he replied, “No, I got back to bed myself.” L.L. could not remember if it was Petitioner who had asked this. (T. p. 48)

11. During the next day, Sunday, October 9, 2005, L.L. made a complaint regarding having to wait forty minutes to be taken to the bathroom. He also reported having waited forty minutes for someone to help him back to bed and getting no response to his call for assistance. He did not know any names to report so his complaint was a general one and not targeted at any one person. (T. p. 49-53; Resp. Exh. 5)

12. Eva Kamau was employed as a licensed practical nurse (LPN) at an LPN at Rex Rehab. (T. p. 65) Ms. Kamau was informed of L.L.’s complaint at approximately 10:45 p.m. on Sunday, October 9, 2005 by the outgoing nurse.

13. Ms. Kamau talked with Petitioner between 11:00 p.m. and midnight and told her that L.L. was upset about being left in the bathroom so long the previous day. She asked Petitioner to be more prompt in responding to the patients. (T. p. 34, 66-67; Resp. Exh. 8)

14. On the evening of Sunday, October 9, 2005, Petitioner worked a split shift again, helping the permanent residents on the back hall from 7:00 p.m. through 11:00 p.m. and the

-3- rehab patients from 11:00 p.m. through 7:00 a.m. Her assignment included L.L. (T. pp. 33-34; Resp. Exh. 4)

15. About midnight on Sunday night, L.L was awakened by someone pushing on his right shoulder and asking him, “Mr. L.L., why did you tell all them lies on me? You know I could lose my job. Why did you tell all those lies for?” (T. p. 54-55; Resp. Exh. 5)

16. L.L. told Petitioner that they were not lies, that he had waited that long. L.L. could tell that Petitioner was very mad. L.L. told Petitioner that there was no reason to argue or to have this conversation now; that they could talk in the morning. Petitioner continued to argue with L.L. L.L. told Petitioner twice they could not solve anything, to wait until the morning to work things out. While in L.L’s room, Petitioner asked L.L. if he wanted a sleeping pill. L.L. replied no because he was afraid to go to sleep for fear that he could have “had a pillow put on my head or something.” (T. p. 56-57, 61-62)

17. Petitioner’s comments made L.L. feel afraid, and even though he was a good sized man, because he was “laid up,” he felt “almost helpless.” He believed he “was at her mercy.” L.L.’s interaction with Petitioner also made him mad, which led him “to go to trembling,” and caused his blood pressure to elevate. (T. p. 58, 79; Resp. Exh. 5)

18. Petitioner was in L.L.’s room for approximately fifteen minutes. (T. p. 56-57; Resp. Exh. 5) During the time Petitioner was in L.L.’s room, she did not attempt to take his vital signs. (T. p. 55, 57; Resp. Exh. 5)

19. When Petitioner would not leave, L.L. pushed his call light until someone came into the room. The nurse who came in told Petitioner to leave. L.L. asked the nurse if he could speak with a supervisor.

20. Around midnight, Ms. Kamau went into L.L.’s room and found him awake. When she asked why he wasn’t asleep he said he was woken up and he was afraid to go back to sleep because of the interaction with a staff member. Ms. Kamau testified that she could tell that L.L. was upset and he was trembling.

21. While Ms. Kamau was talking with L.L., Petitioner came into L.L.’s room to take his vital signs. Ms. Kamau told Petitioner that she would take L.L.’s vital signs. When Ms. Kamau took L.L.’s blood pressure, it was above normal and higher than it had been earlier in the day. (T. p. 70-71; Resp. Exh. 8)

22. L.L. requested that Ms. Kamau write down her own name, the Petitioner’s name, and the reading of the blood pressure for him. She went to the nurse’s station, wrote down the information and then informed her supervisor, Angie Williams, of the incident, giving her the paper with the names and blood pressure. (T. p. 71; Resp. Exh. 8)

23. At all times relevant to this matter, Angie Williams was a team leader at Rex Rehab. On the night of October 9, 2005, at approximately 7:00 p.m., she was informed about L.L.’s complaint regarding a slow response to his calls. She put a general statement on the dry -4- erase board letting staff know to pay close attention to response time for L.L. She was not aware of any particular staff member that had been accused. (T. p. 84-86; Resp. Exh. 12, 13)

24. Later that evening, Ms. Kamau informed Ms. Williams that L.L. wanted to make a complaint about Petitioner. Ms. Williams pulled the complaint form, took the paper with Petitioner’s name written on it and went to his room. (T. p. 87; Resp. Exh.8, 12, 13)

25. When Ms. Williams arrived in L.L.’s room she found him sitting up on the bed. He was visibly upset. His face was flushed and he was trembling. Ms. Williams introduced herself and told him that she understood he had a complaint. She showed him the form and asked if he wanted to fill it out or if he would like for her to fill it out after they talked. He requested that she fill it out. (T. p. 87-88; Resp. Exh. 11, 12, 13)

26. L.L. told Ms. Williams that Petitioner had come in around midnight, awakened him from a deep sleep and asked him why he was complaining about the night before. As he talked, L.L. became more restless. L.L. remained flushed and his voice was trembling as he talked. He told Ms. Williams that Petitioner frightened him. (T. p. 88; Resp. Exh. 11, 12, 13)

27. After writing up the complaint, Ms. Williams asked L.L. if he could sleep. He replied that he could not as long as Petitioner was working on the hall. Ms. Williams agreed to assign a different nursing assistant for his room but explained that she could not take her off the hall. L.L. told Ms. Williams, “With her on the floor, I still feel frightened.” (T. p. 89; Resp. Exh. 12, 13)

28. Ms. Williams spoke to Petitioner and assigned her to another room instead of L.L.’s. She asked Petitioner to write up her account of the incident. (T. p. 90; Resp. Exh. 12, 13)

29. At all times relevant to this matter, Roy Tempke was Administrative Director of Rex Rehab. At about 6:30 a.m. on October 10, 2005, Mr. Tempke received a telephone call from Ms. Williams informing him about L.L.’s complaint. (T. p. 98)

30. Mr. Tempke reviewed L.L.’s chart and at approximately 8:00 a.m. went into L.L.’s room to speak with him. L.L. told Mr. Tempke that Petitioner awakened him about midnight telling him, “Why did you tell lies on me?” While they were talking Mr. Tempke noticed that L.L. seemed anxious and his hands were shaking. L.L. told Mr. Tempke that he had not slept much. L.L. told Mr. Tempke that he was afraid of Petitioner. (T. p. 99-100, 102)

31. Mr. Tempke spoke with Ginger Baker, the director of nursing to inform her that they needed to suspend Petitioner while the investigation was ongoing. He went back to L.L. and told him that Petitioner would not be caring for him. (T. p. 100-101)

32. At all times relevant to this matter, Ginger Baker was director of nursing at Rex Rehab. On the morning of October 10, 2005, Ms. Baker received a call from Ms. Williams informing her of L.L.’s complaint. (T. p. 105-106; Resp. Exh. 9)

-5- 33. Ms. Baker was involved in the facility investigation of the incident. She reviewed Petitioner’s statement, Ms. Williams’ statement and she spoke with Eva Kamau and L.L. The facility investigation was completed and the allegations were substantiated. Ms. Baker stated that they substantiated the allegation because the federal regulations give patients the right to voice concerns or grievances without fear of retaliation or reprisal. In this incident, the facility believed the patient’s rights were violated and that L.L. felt threatened by someone waking him up to challenge him and argue with him about his complaint. (T. p. 109-112; Resp. Exh. 9) Petitioner’s employment with Rex Rehab was terminated on Tuesday, October 11, 2005.

34. Ms. Baker reported the allegation to the Health Care Personnel Registry. (T. p. 109)

35. At all times relevant to this incident, Sharon Moore was a nurse investigator with the Health Care Personnel Registry. After Ms. Moore received the allegation against Petitioner, she determined it needed further investigation. Once she determined that an investigation was required, she sent a letter to the Petitioner letting her know that an investigation would be conducted. (T. p. 119)

36. Ms. Moore interviewed Petitioner, Ms. Kamau, Ms. Williams, Mr. Tempke, Ms. Baker and L.L. She attempted to speak with L.L.’s roommate at the facility but his heath had declined and his son informed her that he could not give a statement. (T. p. 120-121) Ms. Moore reviewed the statements given to the facility, L.L.’s medical record and Petitioner’s personnel file. (T. p. 121)

37. After she completed her investigation, Ms. Moore concluded that Petitioner verbally abused L.L. by willfully intimidating L.L. with resulting mental anguish. Ms. Moore took Petitioner’s account of the incident into consideration but determined that L.L.’s account was consistent with each person he told. In addition, L.L.’s behavior was consistent with his allegation. Ms. Moore wrote an investigation report which documented her conclusion. (T. p.121-123; Resp. Exh. 14) Petitioner was notified by letter that finding of abuse would be listed against her name in the Health Care Personnel Registry. (T. p. 123-124, Resp. Exh. 15)

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 Office of Administrative Hearings has jurisdiction over the parties and the subject matter of this hearing pursuant to the North Carolina General Statutes. All parties have been correctly designated and there is no question as to misjoinder or nonjoinder. To the extent that the findings of fact contain conclusions of law, or that the conclusions of law are findings of fact, they should be so considered without regard to the given labels.. -6- 2. N.C. Gen. Stat. §§ 131E-255 and 131E-256 require the Nurse Aid Registry/Health Care Personnel Registry to maintain a Registry that contains the names of all nurse aids/health care personnel working in health care facilities, who are subject to a finding by the Department that they abused or neglected a resident in a health care facility.

3. As a certified nurse aide working in a residential care facility, Petitioner is subject to the provisions of N.C. Gen. Stat. §§ 131E-255 and 131E-256. Rex Rehabilitation Center (Rex Rehab) in Raleigh, North Carolina is a health care facility as defined in N.C. Gen. Stat. §§ 131E- 255(c) and 131E-256(b).

4. All patients in health care facilities have the absolute right to be free from abuse. However, because of the consequences that can result to an accused Petitioner, who is listed in a Registry for abuse, and as the Respondent’s actions have the effect of changing the status quo as to Petitioner’s livelihood, it is incumbent upon the Respondent to substantiate its investigation and meet its burden of evidence to support such findings of abuse by a preponderance of the evidence. Black’s Law Dictionary cites that “preponderance means something more than weight; it denotes a superiority of weight, or outweighing.” The finder of fact cannot properly act upon the weight of evidence, in favor of the one having the onus, unless it overbear, in some degree, the weight upon the other side.

5. “Abuse” is the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain, or mental anguish. 10A N.C.A.C. 13O.0101, 42 CFR § 488.301. 42 CFR 483.10 provides residents in long term care facilities the right to voice grievances without discrimination or reprisal. 42 CFR 483.10(f)(1) (2005)

6. On October 9, 2005, Petitioner willfully intimidated resident L.L. by awaking him and questioning him about his complaint. Petitioner suffered mental anguish as evidenced by his elevated blood pressure, trembling, flushed face and by his feeling afraid and threatened by his interactions with the Petitioner.

7. Respondent has proven by a preponderance of the evidence that Petitioner abused L.L. and therefore, Respondent did not deprive Petitioner of property, otherwise substantially prejudice Petitioner’s rights, act erroneously, and/or act arbitrarily or capriciously in placing Petitioner’s name on the Nurse Aid Registry/Health Care Personnel Registry.

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

DECISION

The Undersigned hereby determines that the allegation of abuse of patient L.L. by Petitioner is supported by a preponderance of the evidence. As such, Respondent’s decision in placing allegations of abuse against Petitioner in the Health Care Personnel Registry and/or Nurse Aide Registry was not in error and therefore should be UPHELD. -7- NOTICE

In accordance with N.C. Gen. Stat. § 150B-36, the agency making the final decision in this contested case 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. 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 making the final decision in this contested case is required to give each party an opportunity to file exceptions to this Decision issued by the Undersigned, and to present written arguments to those in the agency who will make the final decision. N. C. Gen. Stat. § 150B-36(a). The agency that will make the final decision in this case is the North Carolina Department of Health and Human Services.

IT IS SO ORDERED.

This the 25th day of September, 2006.

______Augustus B. Elkins II Administrative Law Judge