North Carolina Nursing Home Attorney by yrn18055

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									STATE OF NORTH CAROLINA                                            IN THE OFFICE OF
                                                               ADMINISTRATIVE HEARINGS
COUNTY OF DAVIDSON                                                    01 DHR 1253

AMANDA L. HULIN,                               )
                               Petitioner,     )
                                               )
                       v.                      )
                                               )                       DECISION
NORTH CAROLINA NURSE AIDE                      )
REGISTRY, CENTERCLAIR NURSING                  )
FACILITY,                                      )
                     Respondent.               )

       This matter was heard before Sammie Chess, Jr., Administrative Law Judge, on September
24, 2001, in High Point, North Carolina.

                                        APPEARANCES
                                         Amanda L. Hulin
                                           PO Box 1771
                                      Denton, NC 27239-1771
                                         Pro Se Petitioner

                                         June S. Ferrell
                                   Assistant Attorney General,
                               North Carolina Department of Justice
                                           PO Box 629
                                    Raleigh, NC 27602-0629
                                     Counsel for Respondent

                                              ISSUE
      Whether Respondent
               1.     substantially prejudiced Petitioner‟s rights;
               2.     exceeded its authority or jurisdiction;
               3.     acted erroneously;
               4.     failed to use proper procedure;
               5.     acted arbitrarily or capriciously; or
               6.     failed to act as required by law
when Respondent notified Petitioner of its intent to enter a finding of abuse by Petitioner of a nursing
home patient in the Nurse Aide Registry and the Health Care Personnel Registry.

                            APPLICABLE STATUTES AND RULES
                             N.C. GEN. STAT. §§ 131E-255 and -256


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                                     N.C. GEN. STAT. § 150B-23
                                        10 NCAC 3B .1001(1)

                                              EXHIBITS

       The following exhibits were admitted into evidence:
       1.      Respondent‟s Exhibit #1 HCPR Interview of Petitioner, dated 05/01/01
       2.      Respondent‟s Exhibit #2 Letter from HCPR to Petitioner, dated 06/21/01
       3.      Respondent‟s Exhibit #3 HCPR Interview of Jamie Young Melgar, dated 05/04/01
       4.      Respondent‟s Exhibit #4 Incident Location Sketch, dated 05/01/01
       5.      Respondent‟s Exhibit #6 HCPR Interview of Ruby Jean Starnes, dated 05/01/01
       6.      Respondent‟s Exhibit #8 Handwritten Interview Statement of Amanda Hulin, dated
05/04/01
       7.      Respondent‟s Exhibit #9 Centerclair, Inc. Policy on Resident Abuse
       8.      Respondent‟s Exhibit #10 HCPR Investigative Conclusion, dated 05/11/01
       Based upon the documents filed in this matter, exhibits admitted into evidence and the sworn
testimony of the witnesses, the undersigned makes the following:

                                       FINDINGS OF FACT
       1.      At all times relevant to this matter, Petitioner, a certified nurse‟s assistant (hereinafter
“CNA”), was employed as a health care personnel at Centerclair Nursing Home (hereinafter
“Centerclair”) in Lexington, NC. Tr p 7, l. 7-17.

       2.      At all times relevant to this matter, Jamie Young Melgar was employed as a CNA at
Centerclair. Tr p 22, l. 12-19.

       3.      At all times relevant to this matter, Ruby Jean Starnes was employed as a nurse at
Centerclair. Tr p 32, l. 16-23.

       4.     At all times relevant to this matter, Susanne Gray was employed as the Director of
Nursing at Centerclair. Tr p 39, l. 19-22.

       5.       At all times relevant to this matter, Rick Cranford was employed as the Administrator
at Centerclair. Tr p 50, l. 11-12.

         6.     On February 28, 2001, Petitioner and Ms. Melgar were providing morning care to
Resident H.F. H.F. is blind and has a history of being combative at times. While Petitioner and Ms.
Melgar were assisting H.F., he became combative and kicked Petitioner in the pelvic area. Tr pp 9-
11, l. 8-20; pp 22-25, l. 24-14, 23, l. 10-15; R. Exs. 1 and 3.

        7.      Petitioner loudly yelled at H.F., “Goddamn you H.F., if you hit me again, I‟ll knock
the hell out of you.” Ms. Melgar then observed Petitioner take H.F.‟s fist and place it in front of
H.F.‟s mouth. Petitioner threatened H.F. by saying, “Here H.F.” Tr pp 23-26, l. 10-10; R. Ex. 3.


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         8.     Thereafter, Ms. Melgar moved H.F.‟s fist away from his mouth. Tr p 25, l. 11-15, R.
Ex. 3.
        9.     Ms. Starnes came into H.F.‟s room and told Petitioner that she should not talk to
residents in such a manner. Ms. Starnes repeated to Petitioner what Petitioner had said to H.F.
Petitioner responded by saying, “Well, I didn‟t mean it. I wouldn‟t have done it. He just hit me in
my privates.” Tr p 26, l. 11-21; pp 33-34, l. 6-1; p 37, l. 10-22; pp 38-39, l. 19-7, R. Exs. 3, 6 and 8.

      10.    H.F. normally eats breakfast every morning. Petitioner did not eat breakfast this
morning, which was after the incident. Tr p 27, l. 4-8, R. Ex. 3.

        11.     Ms. Starnes and Ms. Melgar immediately reported the incident to Ms. Gray, who in
return, reported the allegation to Mr. Cranford. Tr pp 26-27, l. 22-3; p 34, l. 2-9; p 42, l. 1-12, R.
Exs. 3 and 6.

       12.     Ms. Melgar was a credible witness. She had no interest in the outcome of the case
and her testimony was consistent with her prior statement. Tr pp 22-32, l. 24-3; R. Ex. 3.

       13.     Ms. Starnes was a credible witness. She had no interest in the outcome of the case
and her testimony was consistent with her prior statement. Tr pp 32-39, l. 21-7; R. Ex. 6.

       14.    At Mr. Cranford‟s direction, Ms. Gray investigated the allegation and reported back to
Mr. Cranford. Tr p 42, l. 13-19.

        15.     Mr. Cranford and Ms. Gray interviewed Petitioner. During the interview, Petitioner
admitted that she had said, “Don‟t hit me again or I‟ll hit you back.” to H.F. The statements made by
Petitioner during the interview were recorded by Mr. Cranford and comprise Respondent‟s Exhibit 8,
which is incorporated by reference. At the conclusion of the investigation, Petitioner was terminated
from Centerclair and Mr. Cranford reported the abuse allegation to Respondent. Tr pp 51-52, l. 17-
25; R. Ex. 8.

       16.     Ms. Haynes screened the report submitted by Centerclair with respect to the allegation
of abuse and concluded that the allegation warranted an investigation. Tr pp 55-56, l. 14-3.

       17.      Ms. Haynes investigated and substantiated the allegation of abuse against Petitioner.
Tr pp 56-59, l. 4-23; R. Ex. 2.

       18.      As part of her investigation, Ms. Haynes interviewed Petitioner who denied that she
had abused H.F. However, Petitioner admitted having threatened H.F. by saying, “Before I even
thought, I said, „I‟ll hit you back.‟” Tr pp 56-58, l. 6-3; R. Ex. 1.

       19.    By letter, sent via certified mail, on June 21, 2001, Respondent notified Petitioner that
the Department had substantiated an allegation of abuse against Petitioner and that the substantiated


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finding would be entered into the Nurse Aide Registry and the Health Care Personnel Registry. The
letter also notified Petitioner of her right to contest the entry of the substantiated finding of abuse in
the Nurse Aide Registry and the Health Care Personnel Registry. R.Ex. 2.

       20.      „"Abuse" is defined by 42 CFR Part 488 Subpart E which is incorporated by
reference, including subsequent amendments. . . .‟ 10 NCAC 3B .1001(1). Abuse is defined in 42
CFR 488.301 as follows:

                “Abuse” means the willful infliction of injury, unreasonable
                confinement, intimidation, or punishment with resulting physical
                harm, pain or mental anguish.

        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.      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 to
maintain a Registry that contains the names of all nurse aides working in nursing facilities who have
a substantiated finding of resident abuse, resident neglect, or misappropriation of resident property.

         4.      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-256 to
maintain a Registry that contains the names of all health care personnel working in health care
facilities who have a substantiated finding of resident abuse, resident neglect, misappropriation of
resident property, misappropriation of facility property, diversion of resident drugs, diversion of
facility drugs, fraud against a resident or fraud against a facility.

        5.      As a nurse aide, Petitioner is subject to the provisions of N.C. Gen. Stat. § 131E-255.

      6.     Centerclair, a nursing home, is a health care facility as defined in N.C. Gen. Stat. §
131E-256(b)(6).

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



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        8.    On the morning of February 28, 2001, Petitioner abused Resident H.F. when she
threatened H.F. by yelling, “Goddamn you H.F., if you hit me again, I‟ll knock the hell out of you.”

       9.      Respondent did not err in substantiating the finding of abuse against Petitioner.

                                            DECISION

        That the North Carolina Department of Health and Human Services, Division of Facility
Services, Health Care Personnel Registry Section did not err when it notified Petitioner of its intent
to enter substantiated a finding of abuse by Petitioner in the Nurse Aide Registry and the Health Care
Personnel Registry.

                                              ORDER

      It is hereby ordered that the agency serve a copy of the FINAL DECISION on the Office of
Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-6714, in accordance with
N.C. Gen. Stat. § 150B-36(b).

                                             NOTICE

        The Agency making the final decision in this contested case is required to give each party an
opportunity to file exceptions to this recommended decision and to present written arguments to
those in the agency who will make the final decisions. 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.

      The agency that will make the final decision in this contested case is the North Carolina
Department of Health and Human Services, Division of Facility Services.

       This the 30 day of November, 2001.

                                               ________________________________________
                                               Sammie Chess, Jr.
                                               Administrative Law Judge




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