State of north carolina in the office of administrative hearings




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STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF WAYNE 00 DHR 2168

WILLIAM RODE HOLLOMAN, )

Petitioner, )

)

v. )



) RECOMMENDED DECISION

N.C. DEPARTMENT OF HEALTH AND )

HUMAN SERVICES, DEPARTMENT OF )

FACILITY SERVICES, HEALTH CARE )

PERSONNEL REGISTRY AND )

INVESTIGATIONS, )

Respondent. )

This matter was heard before Sammie Chess, Jr., Administrative Law Judge, on February 19, 2001, in New Bern, North Carolina.


APPEARANCES

Pro se Petitioner

108 Saulsbury Drive

Goldsboro, NC 27534
June S. Ferrell

Assistant Attorney General,

North Carolina Department of Justice

PO Box 629

Raleigh, NC 27602

Counsel for Respondent


ISSUE
Whether Respondent

1. exceeded its authority or jurisdiction; or


2. acted erroneously when Respondent notified Petitioner of its intent to enter a finding of neglect by Petitioner of a nursing home resident in the Nurse Aide Registry and the Health Care Personnel Registry.
APPLICABLE STATUTES AND RULES

N.C. GEN. STAT. §§ 131E-255 and -256

N.C. GEN. STAT. § 150B-23

10 NCAC 3B .1001(10)


EXHIBITS
The following exhibits were admitted into evidence without objection:
1. Respondent’s Exhibit #1 Incident Report
2. Respondent’s Exhibit #2 Smithfield Manor’s Procedures for CNA’s
3. Respondent’s Exhibit #3 Smithfield Manor’s Bathing Procedure
4. Respondent’s Exhibit #4 Care Record for Resident J.N., dated August of 1998
5. Respondent’s Exhibit #5 Work Schedule for the Week of 7/23/98 through 8/5/98
6. Respondent’s Exhibit #6 Minimum Data Set for Resident J.N.
7. Respondent’s Exhibit #7 Care Plan for Resident J.N.
8. Respondent’s Exhibit #8 Nurse’s Notes for Resident J.N.
9. Respondent’s Exhibit #9 Physician’s Orders for Resident J.N.
10. Respondent’s Exhibit #10 Letter to Petitioner from Respondent, dated November 21, 2000
11. Respondent’s Exhibit #11 HCPR Investigation Report
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 Smithfield Manor in Smithfield, NC. Tr p. 5, l. 20-21.


2. Smithfield Manor is a skilled nursing facility. Tr p. 7, l. 9-11.
3. At all times relevant to this matter, Resident J.N. (Hereinafter “J.N.”) was a resident at Smithfield Manor. Resident J.N. is a quadriplegic. He is alert and oriented and has no impairment in cognitive function. Tr p. 7, l. 7-9; R.Ex. 6.
4. On August 5, 1998, Petitioner bathed J.N. in the shower room. J.N. was placed in a shower chair and secured in the chair with straps. Tr pp. 7-8, l. 11-3; R.Exs. 1, 4 and 5.
5. At the conclusion of his shower, J.N. requested Petitioner leave him in the shower so that he could have some private time. Petitioner questioned J.N. about his request. J.N. reiterated his desire to be left unattended in the shower. As requested, Petitioner left the shower room and returned to J.N.’s room and proceeded to straighten the bed linens. Tr p. 7, l. 11-23; p 19, l. 5-20; p. 24, l. 21-24; R.Ex. 1.
6. Petitioner testified that he left J.N. unattended in the shower room for approximately 6 minutes. Tr p. 20, l. 5-6.
7. When Petitioner returned to the shower room, he found J.N. in the floor of the shower. Tr p. 8, l. 1-3; R.Ex. 1.

8. The nursing staff of Smithfield Manor examined J.N. for injuries. J.N. had a bump and abrasion on his forehead. Tr p. 8' l. 5-9; R.Exs. 1 and 8.


9. Pursuant to Smithfield Manor’s written bathing procedures, a resident was never to be left unattended when bathing. R.Ex. 3.
10. Petitioner denied having ever been shown the policy during his employment at Smithfield Manor. Tr p. 8, l. 19-22; p. 13, l. 20-23; pp. 20-21, l. 24-2.
11. Petitioner testified that, in his training as a CNA, he had been taught not to leave residents unattended when bathing them. Tr pp. 21-22, l. 25-13.
12. Debra T. Hockaday, a Health Care Personnel Registry investigator, was assigned to investigate the allegation of neglect against Petitioner. Tr p. 33, l. 7-15.
13. In conducting the investigation, Mrs. Hockaday reviewed various documents which included Respondent’s Exhibits 1 - 9 and interviewed J.N. Tr p. 33, l. 16-23.
14. Mrs. Hockaday substantiated the allegation of neglect against Petitioner on the grounds that Petitioner had failed to comply with J.N.’s care plan - in that he had not appropriately monitored J.N. for safety and that Petitioner had failed to follow the facility’s policy with respect to bathing. Tr pp. 33-43, l. 16-6; R.Exs. 3, 7 and 11.
15. By letter, sent via certified mail, on November 21, 2000, Respondent notified the Petitioner that the Department had substantiated the allegation of neglect against Petitioner and that the substantiated finding would be entered into the Nurse Aide Registry and the Health Care Personnel Registry. The letter also notified Petitioner of his right to contest the entry of the substantiated finding of neglect in the Nurse Aide Registry and the Health Care Personnel Registry. R.Ex. 10.
16. The definition of neglect applicable to the incident that occurred on or about August 5, 1998, pursuant to 10 NCAC 3B .1001(10) is as follows:
(10) “Neglect” means a failure to provide goods and services necessary to avoid physical harm, mental anguish or mental illness.
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 or fraud against a resident or the facility.
5. As a nurse aide, Petitioner is subject to the provisions of N.C. Gen. Stat. § 131E-255.
6. Smithfield Manor, 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.
8. On August 5, 1998, Petitioner neglected J.N. by leaving the resident unattended in the shower chair in the shower room. As a result, J.N. fell from the shower chair and received a bump and abrasion on his forehead.
9. Respondent did not err in substantiating the finding of neglect committed by the Petitioner.
RECOMMENDED 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 place an entry of neglect 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 3rd day of May, 2001.

____________________________________

Sammie Chess Jr.

Administrative Law Judge






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