STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF CHATHAM 11 DHR 11456 ______

TERESA DIANE MARSH, ) Petitioner, ) ) v. ) ) DECISION N.C. DEPARTMENT of HEALTH and ) HUMAN SERVICES, Division of ) Health Service Regulation, ) Respondent. )

THIS MATTER came on to be heard before the undersigned Administrative Law Judge, Augustus B. Elkins II, on February 8, 2012 at the Office of Administrative Hearings in Raleigh, North Carolina. The record was left open for the parties’ submission of materials, including but not limited to supporting briefs, final arguments and proposals thirty days after hearing. Time was allowed for mailing. The Undersigned received all materials from the Chief Clerk’s Office on March 13, 2012 and the record was closed.

APPEARANCES

For Petitioner: Jonathan C. Blanken, Esquire BLANKEN & KENNEDY, PLLC Post Office Box 28086 Raleigh, NC 27611

For Respondent: Derek L. Hunter Assistant Attorney General Thomas E. Kelly Associate Attorney General North Carolina Department of Justice Post Office Box 629 Raleigh, NC 27602-0629

ISSUE

Whether Respondent substantially prejudiced Petitioner’s rights or acted arbitrarily or capriciously when Respondent substantiated the allegation that Petitioner abused a resident of Lee County Nursing and Rehabilitation Center in Sanford, North Carolina, and entered that finding on the North Carolina Nurse Aide I Registry and Health Care Personnel Registry.

APPLICABLE STATUTES AND RULES

N.C. Gen. Stat. § 131E-256 N.C. Gen. Stat. § 150B-1, et seq. 42 CFR § 488.301 10A N.C.A.C. 13O.0101(1)

EXHIBITS

Respondent’s Exhibits 1 – 21, and 24 – 29 were admitted into the record.

WITNESSES

Rebecca Sercy, RN (Director of Nursing, Lee County Nursing and Rehabilitation Center) M.W. (Resident, Lee County Nursing and Rehabilitation Center) Teena Comer (Certified Nursing Asst., Lee County Nursing and Rehabilitation Center) Teresa Diane Marsh (Petitioner) Solomon B. Weiner, RN (Investigator, Health Care Personnel Registry)

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 and conclusions of law. 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. The Undersigned makes the following:

FINDINGS OF FACT

1. At all times relevant to this matter, Teresa Diane Marsh was employed as a Certified Nursing Assistant (CNA) at Lee County Nursing and Rehabilitation Center (LCNRC) in Sanford, North Carolina.

2 2. Lee County Nursing and Rehabilitation Center is a nursing facility, as defined by N.C.G.S. § 131E-255, and is therefore subject to N.C.G.S. § 131E-256.

3. Petitioner’s duties as a CNA included, among other things, assisting residents with bathing, dressing, personal hygiene, all activities of daily living, and turning residents in bed. The policy at LCNRC is that CNAs work in tandem to provide care to the residents. Petitioner received training in abuse and neglect.

4. Petitioner worked a double shift at employer’s place of business over the course of two days, April 26, 2011 and April 27, 2011. Two separate halls compose the employer’s facility, 100 Hall and 200 Hall. Petitioner worked one shift on 200 Hall from the hours of 3:00 p.m. to 11:00 p.m. on April 26, 2011, and worked another shift on 100 Hall from 11:00 p.m. to 7:00 a.m. on April 27, 2011.

5. On April 26-27, 2011, Petitioner worked the third shift at LCNRC, which began at 11:00 p.m. and ended at 7:00 a.m., and was assigned to the 100 Hall, where Resident R.H. resided. R.H., an 86-year-old female, was a resident at LCNRC after having been admitted for rehabilitation following surgery to repair a compound fracture of her left ankle.

6. At approximately 1:20 a.m. on April 27, 2011, Petitioner entered the room on 100 Hall shared by two patients at the facility, a mother and daughter referred to in the case file and on the record as R.H. and M.W., respectively. Petitioner’s duties at the hour in question primarily consisted of changing the undergarments of patients if necessary and turning or adjusting the position of patients so as to prevent bed sores. Petitioner entered the room of R.H. alone to reposition R.H. and change her diaper if necessary. The Nurse’s Aide assigned to work with Petitioner, Linda Jackson, asked Petitioner from the doorway to the room if Petitioner required assistance turning the patient to which Petitioner replied in the negative and Ms. Jackson left the area.

7. R.H. was awakened by Petitioner pulling R.H. and turning her in the bed, causing R.H.’s broken ankle to be caught in the bedcovers and causing R.H. to call out in pain. R.H. told Petitioner that she was hurting her but Petitioner continued turning her over. Petitioner changed R.H.’s diaper and turned her back toward the wall. Petitioner did not untangle R.H.’s legs and feet and left the room.

8. At the time Petitioner entered R.H.’s room, R.H.’s roommate and daughter, M.W. was in the bathroom getting ready for bed and came out of the bathroom when she heard R.H. scream out in pain and tell Petitioner to stop, that she (Petitioner) was hurting her. The bathroom was on the far side of the room from R.H.’s bed. M.W.’s view was obscured due to the low lighting conditions and a curtain between her side of the room and the side on which R.H. resided. M.W. asked R.H. what had happened and R.H. explained that Marsh had roughly jerked her to change her, resulting in severe pain in her ankle.

3 9. When Petitioner left the room, M.W. went to report the incident to Teena Comer, the shift supervisor. Ms. Comer arrived to R.H.’s room and found R.H. crying and trembling. R.H. explained to Comer that Marsh had roughly jerked and turned her, causing severe pain to her ankle. Comer administered pain medication to R.H. and began calming her down. Comer relieved Marsh of her assignment to provide care to R.H. for the rest of the shift and Comer provided cared to R.H. herself. Petitioner continued to work the rest of the 11:00 pm to 7:00 am shift at LCNRC.

10. At the end of the shift on the morning of April 27, 2011, Ms. Comer reported the alleged incident to Rebecca Sercy, Director of Nursing at LCNRC. Ms. Sercy called Petitioner and informed her that she was suspended pending the outcome of an internal investigation into the allegation of abuse. Ms. Sercy did not tell Petitioner which resident had made the allegation against her.

11. On April 27, 2011, Ms. Sercy notified the North Carolina Health Care Personnel Registry (HCPR) of the allegation of abuse lodged against Petitioner by submitting a 24-Hour Initial Report.

12. Ms. Sercy conducted an internal investigation regarding the allegation of abuse by interviewing R.H., M.W., and Ms. Comer. R.H. trembled and cried as she recounted Petitioner jerking her in bed, causing severe pain to her fractured ankle. As a result of the investigation, Ms. Sercy substantiated the allegation of abuse against Petitioner and terminated Petitioner’s employment at LCNRC. Sercy also submitted a 5-Working Day Report to HCPR notifying it of the completion and result of LCNRC’s internal investigation.

13. On the evening of April 29, 2011, Petitioner came to LCNRC. Though Petitioner had not been informed who had made the allegation of abuse against her, she confronted M.W., who was sitting outside, about the allegation. Petitioner admitted that she knew that LCNRC’s department heads would not be present at the facility in the evenings and on weekends. Petitioner said she went back because she had left her glasses at LCNRC.

14. Marsh testified that she had never been assigned to provide care to R.H. prior to April 26-27, 2011. Assignment records from LCNRC indicate that Marsh had been assigned to care for R.H. on at least two prior occasions. Petitioner testified that she had traded assignments with other CNAs on those occasions.

15. Ms. Sercy, M.W., and Ms. Comer testified that R.H. was wearing a protective black boot on her fractured left ankle on the night of April 26-27, 2011; however, Marsh testified that she was unaware that R.H. had a fractured left ankle and stated that R.H. was not wearing a protective black boot on her ankle on that night.

16. Petitioner testified that Comer did not relieve her of her assignment to care for R.H. on the morning of April 27, 2011; however, Marsh testified that she did not enter R.H.’s

4 room again to reposition or change R.H. for the remainder of the shift, which amounted to approximately six (6) hours. CNAs are required to check residents every two hours.

17. Petitioner testified that another CNA assisted her with all residents to whom she provided care on April 26-27, 2011. Petitioner entered R.H.’s room alone on the morning of April 27, 2011, to change R.H. Petitioner stated that R.H. could assist herself in turning and did not need the assistance of another CNA. As a part of the internal investigation, Ms. Sercy questioned the other CNAs who were on duty that night, and they said that they had not assisted Petitioner with R.H. or any other residents. Petitioner had a history of working alone against company policy and had been previously disciplined for doing so.

18. Petitioner stated that she spoke to R.H. asking if she was wet and that R.H. replied “I don’t know, baby.” Petitioner stated that when she took R.H.’s diaper off, she said that it hurt her, but that R.H. also stated, “That’s ok, baby.” All witnesses, with the exception of Petitioner, stated they had never heard R.H. use the word “baby” in speaking to others at LCNRC.

19. The HCPR investigates allegations against unlicensed health care personnel working in health care facilities in North Carolina. The allegations investigated by HCPR include, but are not limited to, abuse and neglect. With the exception of a finding of a single instance of neglect, substantiated findings against health care personnel are permanently listed on the HCPR.

20. Upon receipt of the allegation against Petitioner, Solomon B. Weiner, RN, Investigator for HCPR, determined that the matter required further investigation. Mr. Weiner was employed as an Investigator for the HCPR. He was charged with investigating allegations of abuse and neglect, among others, against unlicensed health care personnel in Lee County, North Carolina, and was assigned to conduct the investigation into the allegation against Marsh.

21. As a part of his investigation, Mr. Weiner visited LCNRC’s facility and reviewed R.H.’s medical records, Petitioner’s personnel file, and LCNRC’s documentation regarding this incident. He also interviewed Ms. Sercy, Ms. Comer, R.H., M.W., and Petitioner. Petitioner’s records as well as the testimony of Ms. Sercy reveal that Petitioner had been the subject of several counseling sessions and had been disciplined for absenteeism. Petitioner felt that she had been singled out for discipline and did not know why.

22. M.W. made changes to her version of the events of April 27th, 2011. In the statement written for her by Ms. Searcy, she states that she did not say anything to the Petitioner; however, in her statement to Mr. Weiner, she states that she asked what was going on. R.H. did not testify at this hearing. Mr. Weiner found that though R.H. was inconsistent with some facts, she vividly remembered the most important parts of the incident.

23. Based on his investigation, Mr. Weiner determined that Petitioner abused R.H. on April 27, 2011, and, accordingly, substantiated the allegation against her. By certified letter 5 dated August 31, 2011, Weiner notified Marsh that the allegation that Marsh had abused R.H. had been substantiated and that finding would be listed on the Nurse Aide I Registry and the HCPR. Marsh was further notified of her right to appeal.

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. All parties have been correctly designated and there is no question as to misjoinder or nonjoinder. The parties received proper notice of the hearing in the matter. 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.

2. Pursuant to N.C.G.S. § 131E-256, the North Carolina Department of Health and Human Services is required to establish and maintain a health care personnel registry that contains the names of all unlicensed health care personnel working in health care facilities in North Carolina who are subject to a finding by the Department that they, among other things, abused or neglected a resident in a health care facility, or have been accused of such an act if the Department has screened the allegation and determined that an investigation is warranted.

3. Lee County Nursing and Rehabilitation Center is a nursing facility, as defined by N.C.G.S. § 131E-255, and is therefore subject to N.C.G.S. § 131E-256.

4. As a health care personnel working in a nursing facility, Petitioner is subject to the provisions of N.C.G.S. § 131E-256.

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(1); 42 CFR § 488.301.

6. All patients in residential care have the absolute right to be free from abuse perpetuated at the hands of caregivers. The Undersigned also concludes, because of the consequences that can result to an accused Petitioner who is listed in a Registry for abuse, that it is also incumbent upon the Respondent to substantiate its investigation and meet its burden of evidence to support such findings of abuse. The evidence collected in an investigation to establish abuse must prove so 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. 6 7. The greater weight of the admissible evidence in the record shows that on April 27, 2011, Petitioner abused R.H. by handling R.H. in an intentionally unreasonable and injurious manner for a resident of her age and in her condition, resulting in pain and mental anguish. Respondent’s action to substantiate the allegation of abuse against Petitioner is supported by a preponderance of the admissible evidence.

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

DECISION

The Undersigned finds and holds that there is sufficient evidence in the record to properly and lawfully support the Conclusions of Law cited above. Based on those conclusions and the facts in this case, Respondent’s evidence does create that superiority of weight needed to support its actions and the Undersigned finds that it is proper and lawful that Respondent has entered a finding of abuse into the Nurse Aide I Registry and the Health Care Personnel Registry against Petitioner.

NOTICE

The Agency making the final decision 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.

The Agency that will make the final decision in this contested case is the North Carolina Department of Health and Human Services. The Agency is required to give each party an opportunity to file exceptions to the decision by the Administrative Law Judge and to present written arguments to those in the Agency who will make the final decision. See prior N.C.G.S. § 150B-36 (Repealed by Session Laws 2011-398, s. 20.)

IT IS SO ORDERED.

This is the 25th day of April, 2012.

7 ______Augustus B. Elkins II Administrative Law Judge

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