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 BUNCOMBE 00 DHR 0578

HELEN RAMSEY )

Petitioner )

)

v. ) RECOMMENDED DECISION


)

DEPARTMENT OF HEALTH AND )

HUMAN SERVICES, DIVISOIN OF )

FACILITY SERVICES, )

Respondent )
This matter was heard before James L. Conner, II, Administrative Law Judge, on August 16, 2000, in Hendersonville, North Carolina.
APPEARANCES
For Petitioner: Helen Ramsey, pro se

Asheville, North Carolina


For Respondent: Jane L. Oliver, Assistant Attorney General

Raleigh, North Carolina



ISSUES

Whether Respondent erred when it determined that, on or about December 20, 1999, Petitioner, a nurse aide, abused a resident, A.J., of Blue Ridge Rehabilitation and Health Care Center, a nursing facility in Asheville, North Carolina, by handling the resident roughly and talking to the resident in a demeaning manner.



APPLICABLE STATUTES AND RULES

N.C. Gen. Stat. § 131E-255 and § 131E-256

N.C. Gen. Stat. § 150B-23

42 CFR § 483.156


42 CFR § 488.335(d)(1)

10 NCAC 3B.1001




EXHIBITS

The following exhibits were admitted into evidence without objection: Respondent’s Exhibits 1, 2, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15, 16, 17, 18, 19, 21, 22. Petitioner’s exhibits 1, 2, and 3 were admitted over the objection of Respondent on the grounds of hearsay.


FINDINGS OF FACT

Based upon the documents filed in this matter, the exhibits admitted into evidence and the sworn testimony of the witnesses, the undersigned makes the following findings:



  1. Petitioner was employed as a nurse aide at Blue Ridge Rehabilitation and Health Care Center in Asheville, North Carolina at all times relevant to this action. (T p 15) Petitioner is 68 years old, and has been working as a nurse aide since she was eighteen years old, or fifty years. (T pp 14-15) Petitioner is raising her grandson, whose parents are both dead, and her work as a nurse aide is their livelihood. (Id.) In fifty years of nurse aide work, Petitioner has never been accused of neglecting or abusing a patient, prior to this occasion. (T p 16)




  1. Petitioner presented into evidence a letter from the nursing home administrator at the home she formerly served. (Pet. Exh. 1) This administrator wrote that Petitioner treated her patients with “respect and cared for them with tenderness, patience, and a gentle hand.” She further stated “I have witnessed her risking her own physical well-being, in order to keep the resident she was helping ambulate from chair to bed from hitting the floor.” This administrator also wrote of Petitioner’s work to preserve the dignity of the patients, stated that Petitioner “always amazed me”, and concluded that “I would trust [Petitioner] enough to leave my own parents in her care and I haven’t run across many Nursing Assistants that I can say that about.”




  1. Petitioner also presented two letters from the wives of former patients. Both letters praised Petitioner as being exceptionally caring and stated that their husbands looked forward to Petitioner being on duty so that she could care for them. (Pet. Exh. 2 & 3)



  1. Blue Ridge Rehabilitation and Health Care Center is a nursing facility that provides both skilled nursing and intermediate care. As such, Blue Ridge Rehabilitation and Health Care Center is a health care facility, as defined in N.C. Gen. Stat. §§ 131E-255(c) and -256(b)(6). (T pp 69-70)





  1. Petitioner received nurse aide training at Victoria Nursing Home in 1996 or 1997. Before that time, Petitioner had worked as a nurse aide but had not had any formal training. Petitioner’s training at Victoria Nursing Home covered patient care and resident rights. Petitioner was aware that residents of nursing facilities have a right to request assistance and a right to refuse services. Petitioner testified that residents, for example, have the right to refuse to shower and to decide when they want to get up. However, Petitioner testified that if you asked a resident to stand up so that you can put the resident to bed and they do not want to stand up, rather than leaving them in the chair all night, you should go ahead and try your best to coax them to stand up. (T pp 14-15, 21-23)



  1. Petitioner may have received some additional training on resident rights and abuse as an employee at Blue Ridge Rehabilitation and Health Care Center. Petitioner testified that she could not recall an in-service on resident rights, though she remembered a number of in-service meetings. Petitioner testified that there was no follow-through on those meetings. Blue Ridge Director of Nursing Lee testified that Blue Ridge gave its staff members a pamphlet on resident rights during orientation and periodically had in-service training about resident rights. The pamphlet was not produced. Lee testified that unspecified records showed that on November 30, 1999, Petitioner participated in an in-service training session on abuse that was conducted by Lee. Lee had no personal recollection whether Petitioner attended. At this meeting, the facility’s new abuse prevention program was reviewed with staff. Petitioner testified that she could not recall this training session. There was no evidence or testimony regarding the length, depth, or effectiveness of these “in-services.” Petitioner also testified that she was aware that the staff was not supposed to be physically or verbally rough with residents and that residents were to be treated with respect. (T pp 25-30, 76-78; Resp Exh 1, 2, 22)

7. On December 20, 1999, Petitioner worked the 3:00 p.m. to 11:00 p.m. shift at Blue Ridge Rehabilitation and Health Care Center. Petitioner was training a new nurse aide, Diana Harmon, who was in orientation. This was Ms. Harmon’s first night working at Blue Ridge and her first night working as a nurse aide. Ms. Harmon had just completed her nurse aide training at Asheville-Buncombe Community College and was a Certified Nursing Assistant or CNA. (T pp 21, 24-25, 41-42; Resp Exh 8)


8. As Petitioner and Ms. Harmon were putting the residents to bed, they went into the room of one of the residents, A.J. (T p 43)
9. A.J. did not appear at the hearing to testify, nor was any deposition transcript or videotape or any written statement of A.J. produced. All evidence regarding A.J., what happened between her and Petitioner, and A.J.’s alleged injuries and state of mind was adduced from other witnesses. Only two of those witnesses, Petitioner and Ms. Harmon, actually observed any of the events of December 20, 1999. Although this evidence lacks the probative value of non-hearsay, direct evidence, it was admitted as the best evidence available at the time of hearing of the events.

10. A.J. was approximately seventy-five years old at the time, or about seven years older than Petitioner. She suffers from cardiovascular disease, diabetes and peripheral vascular disease. She weighs either over 200 pounds (T pp 61) or about 175 pounds. (T p 72) As a result of her medical condition, A.J. has impaired physical mobility and weakness, especially in her lower extremities. A.J. had been given physical therapy to try to improve her ability to walk but the therapy was not successful. In December 1999, A.J. was generally unable to walk, but could walk with a walker during physical therapy. (T p 31) She was able to transfer herself from the bed to the chair, feed herself from the tray, and do some undressing. (T p 72-73; 32) A.J. was alert and able to communicate her needs. However, she was generally dependent on staff for assistance with activities of daily living. (T pp 71-73, 90-91; Resp Exh 14)




  1. The nursing home had conducted a training regarding fall risks with residents and had, in association with that training, put paper tree leaves over the beds or on the chairs of residents who were fall hazards. No such leaf had been installed to indicate that A.J. was a fall hazard. (T p 27-28)




  1. Petitioner asked A.J. to stand up and help the aides get her to bed. A.J. told Petitioner that she could not stand because her legs were weak. (T pp 9, 43-44, 67-68; Resp Exh 7, 8, and 21)




  1. Not wanting to force the issue, Petitioner and Harmon left to put other patients to bed. They came back and asked if A.J. was ready; she refused. They repeated this process two or three times. (T pp 23, 43)




  1. Finally, Petitioner and Harmon returned to the room. Petitioner reminded A.J. that A.J. was afraid of the lift (which was used to lift patients into bed) and refused to be lifted with it, and that A.J. was too heavy for Petitioner to lift by herself. A.J. stated that she wanted John to lift her. John was a man who could lift A.J. into bed by himself with apparent ease. John was no longer employed at Blue Ridge. (T pp 9-10, 24)



  1. Petitioner proceeded to try to lift A.J. to the bed. Though she expected help from Harmon, Harmon only took a piece of A.J.’s clothing between her fingers, providing very little lift or help. (T p 37-38) During the move, A.J.’s legs began to buckle and she began to fall. In order to get her onto the bed without injury, Petitioner shoved A.J. with her arm, which resulted in getting A.J.’s bottom onto the bed and prevented her from falling. Petitioner felt that if A.J. fell , it would cause serious injury. (T pp 10, 24; Resp. Exh. 6)





  1. The near fall scared A.J., and the shove from Petitioner angered her. She was upset. Petitioner left Harmon in the room to comfort A.J. and went to work with other patients.




  1. Ms. Harmon was also very upset about what had happened. She testified that she felt “hurt” by what happened. Ms. Harmon said she was not sure what to do or who to report the incident to because she had never been in a situation like this before. (T pp 44-45, 67-68)




  1. The next night, Ms. Harmon was training with another nurse aide, Shirley Johnson. Ms. Harmon told Ms. Johnson a version of what had happened the night before. Ms. Harmon was still very upset. Ms. Harmon said that Petitioner and she were getting ready to put A.J. to bed and that Petitioner had pushed A.J. A.J. had then gotten upset and began to cry. Ms. Johnson told Ms. Harmon to whom she should report the incident. (T pp 46, 55-56) It was Ms. Harmon’s report that caused the investigation; the residents did not report anything untoward.



  1. Ms. Johnson did not witness or hear this incident. However, she testified that she had seen Petitioner speak rudely within the hearing of two residents, including A.J. Both of the residents that Petitioner had been rude to were heavy. She had heard Petitioner make remarks like, “I can’t turn that big fat woman” within hearing range of the resident about whom she was speaking. She had also heard Petitioner say to a resident, “You need to get your big black ass/butt up and help me because you are too big for me to handle.” (T pp 58-59; Resp Exh 10) Petitioner denied making any such comments. (T p 59-60). In any event, neither of comments Ms. Johnson allegedly heard were the basis of the charges resulting in this contested case. (Resp. Exh. 18)





  1. Deborah Lee, R.N., the Director of Nursing at Blue Ridge Rehabilitation and Health Care Center, reported the allegation to the Nurse Aide Registry and began the facility’s investigation into the reported abuse. Ms. Lee interviewed A.J., A.J.’s roommate A.M., Petitioner, Diana Harmon and Shirley Jones. Ms. Lee also asked the facility director to interview A.J. to see if she gave consistent statements. (T pp 73-74)




  1. The following summarizes Ms. Lee’s notes of her interview with A.J.: A.J. was at first reluctant to talk to Ms. Lee about the incident. A.J. said that she did not want to get anyone in trouble. A.M. encouraged A.J. to tell Ms. Lee what had happened. A.J. then stated that Petitioner had been mean to her. A.J. stated that Petitioner had told her that she was too fat for Petitioner to get her into the bed by herself. A.J. also stated that Petitioner told her that she would not be able to go to bed if she did not help in getting herself in the bed. Petitioner then told A.J. to stand. A.J. said that her legs are weak and that she has difficulty standing. A.J. further stated that when she got to the bed, Petitioner shoved her arm and that it had hurt. A.J. said that Petitioner had then shoved her again. (Resp Exh 21) Exhibit 21 was admitted into the record by the undersigned with the reservation that it was almost entirely hearsay and had little probative value. (T p 75)




  1. A.M. told Ms. Lee that Petitioner was often mean to them. A.M. stated that Petitioner had threatened to make A.J. stay up and had later come back and asked A.J. if she was ready to help yet. A.M. further stated that Petitioner had been very rough with A.J. while putting her to bed and that she had hurt A.J. (Resp Exh 21)

23. Ms. Lee also testified that A.J. was very upset at the time she was questioned by Ms. Lee. She said that she did not want to get anyone in trouble. (T pp 78-79)



  1. Ms. Lee observed A.J. for any bruises, skin tears, or other marks at the time of her interview. (Resp. Exh. 21) No evidence was offered that there was any mark on A.J. supporting the allegation of rough treatment.




  1. As a result of her investigation, Ms. Lee concluded that Petitioner had abused A.J. by shoving the resident and by causing physical pain and mental anguish. Both of the residents and Ms. Harmon had related the same events when during their respective interviews. In addition, Petitioner had admitted to pushing the resident while putting her to bed. (T pp 80-81; Resp Exh 5 and 11)




  1. Ms. Lee’s substantiation was not based upon verbal abuse. She was unable to substantiate any verbal abuse. (T p 80-81)




  1. Ms. Lee’s substantiation was not based on any alleged pushing of A.J.’s arm off the bed rail, but upon Petitioner’s own statements about pushing A.J. into bed when she started falling. (T p 81-82)



  1. Barbara Powell, R.N., an investigator for the Health Care Personnel Registry, was assigned to investigate the allegation of abuse. Ms. Powell visited the facility to review the resident’s medical record and Petitioner’s personnel file. She also interviewed A.J., A.M., Diana Harmon, Shirley Johnson and Deborah Lee, R.N. During her interview, A.J. became upset as she recalled the incident. She told Ms. Powell that she had been pushed and had been talked to rudely by Petitioner. A.J. told Ms. Powell that she had been sitting in her chair and that Petitioner and a new aide came into her room and wanted to put her to bed. She told them that she did not want to go to bed and the aides left. The aides later returned and Petitioner told her that she had to stand up and move. A.J. said that she told Petitioner that she was afraid of falling and Petitioner told her that she had to get up. As she was turning towards the bed, Petitioner pushed her into the bed and made rude comments. A.J. did not specify what was said that she considered rude. A.J. became more and more upset as the interview continued and Ms. Powell ultimately terminated the interview for A.J.’s sake. (T pp 88-89; Resp Exh 15)





  1. The preceding paragraph is a summary of Ms. Powell’s testimony. However, the report of her interview with A.J. prepared by Ms. Powell tells a somewhat different story. (Resp. Exh. 15) In that report, A.J. makes no mention of being pushed, though she does say that she was handled roughly and that she was scared she was going to fall. She also said the aide was rude, but does not specify rude comments. Most importantly, A.J. did not say she was upset about what the aide did, but that she was upset that she did not want to get anyone in trouble. “Ms. J was tearful and continued to apologize if she got anyone in trouble.” “Ms. J. said the aide was too rough with her that day but that was the only time, usually they were friends.” (Resp. Exh. 15) It is not at all clear whether it was Petitioner or Respondent and nursing home administration —through their questions and through firing A.J.’s friend—who caused mental anguish to A.J. Thus the problem with hearsay testimony on critical elements of the case is illustrated.




  1. Ms. Powell also interviewed A.J.’s roommate, A.M. A.M. said that the curtain was pulled during the incident, so she did not see anything, but she did hear it. She heard A.J. say “don’t push me.” Petitioner said, “I didn’t push you.” Then she heard A.J. and someone else (presumably Ms. Harmon) say that yes, Petitioner had pushed A.J. A.M. did not report any abusive language or name calling. (T p 91-92; 97)



  1. Ms. Powell also talked with Petitioner about the allegation. Petitioner told Ms. Powell that A.J. could stand up with her walker and that Petitioner had asked her to stand up. Petitioner said that A.J. did not want to use her walker and that she told Petitioner that she could not stand up. Petitioner said that she told A.J. that she would help her and that A.J. stood up. Petitioner said that she started to turn A.J. around and that she began to slide to the floor so Petitioner pushed A.J. in the bed. Petitioner said that, at that point, A.J. told Petitioner that she had pushed her and Petitioner stated that she told A.J. she would rather that she go in the bed rather than on the floor. Petitioner told Ms. Powell that she then cleaned A.J. and gave her a back rub. (Resp Exh 6)





  1. The only person who reported to Ms. Powell that Petitioner called A.J. fat or a fat ass was Ms. Harmon, who could not remember the exact words, and Ms. Johnson, who only reported that Ms. Harmon had told her that Petitioner had said fat ass. Ms. Johnson also said that she “had heard other occasions”. (T pp 102-03) Neither A.J. nor A.M., the residents in the room at the time of the incident, reported any such name calling. (T p 103)




  1. Ms. Powell substantiated abuse based upon the shoving into the bed, not based upon any alleged pushing of A.J.’s arm off the bedrail. (T p 98)




  1. Ms. Powell concluded, as a result of the investigation, that Petitioner abused A.J. by handling her roughly and by talking to her in a demeaning manner. She found that A.J. and her room-mate had given consistent statements even though they were interviewed separately. She opined that A.J. was still quite upset over the incident several months later. Both A.J. and A.M. were still able to relate details about the incident. Furthermore, she felt that Diana Harmon’s statement supported the statements of the residents (T pp 95-96, Resp Exh 17 and 18)



  1. Ms. Powell felt that A.J. should have been left in the chair all night if she did not want to try to get into bed. (T p 101) Alternatively, Ms. Powell felt she should have gotten help from another CNA, even though Ms. Harmon, a certified nursing assistant was there with her to help. (T p 99) Finally, Ms. Powell felt that if she got to the place where A.J. was falling, she should have slid her down her leg to the floor instead of pushing her onto the bed. (T p 100)





  1. Petitioner testified that if she had tried to slide A.J., a 200 pound woman, down her leg, it likely would have resulted in injury to them both. (T p 107)




  1. In fact, Petitioner’s actions in initiating the move and asking A.J. to help were in compliance with A.J.’s care plan, which instructs: “transfer with 1 assist. Encourage to assist w/ transfer.” (Resp. Exh. 14)




  1. Suzanne Spencer, a CNA with six years experience testified that the slide down the leg is what CNAs are trained to do, but that with an obese person, it is not always possible and can result injury to both persons. She also testified that, while nursing homes may talk about patient’s rights, if nurse aides do not get all the residents to bed before their shift ends, they will be written up. (T pp 108-114)




  1. Petitioner was notified by letter, dated April 5, 2000, that Respondent had substantiated the allegation of abuse and that Respondent intended to list a finding of abuse on the Nurse Aide Registry and Health Care Personnel Registry. (Resp Exh 19)



  1. Respondent put on as its lead witness the brand new nurses aide who had been present at the scene, Ms. Harmon. Ms. Harmon testified that Petitioner had pushed A.J.’s arm off the bed rail twice and had called her fat and lazy. Harmon made no mention in either her testimony or her statement to investigators of any near-fall by A.J. She likewise made no mention in either source of Petitioner pushing A.J. onto the bed. (T pp 41-48; 64-68) The undersigned finds Ms. Harmon’s testimony not credible for the following reasons. Ms. Harmon testified at the hearing to a fantastic version of events that was supported by neither evidence nor the testimony of any other witness. No other witness, including the resident herself, offered any testimony or suggestion of testimony that there was any pushing of arms off bedrails. No other witness, including the resident and her roommate, offered any testimony that Petitioner called A.J. fat or lazy or any other pejorative term. Two persons substantiated the allegations of abuse: Nurse Lee in-house, and Ms. Powell for the Division of Facility Services. Neither of these found that Petitioner pushed A.J.’s arm off the bedrail. Both of them found, based upon Petitioner’s own statements to them, that Petitioner shoved A.J. onto her bed in the course of a lift from the chair that went awry. In other words, both of them impliedly rejected Harmon’s testimony, and believed Petitioner instead. Likewise, though Ms. Powell substantiated verbal abuse based solely upon Harmon’s testimony, neither Ms. Lee nor Ms. Harmon found any other evidence of the name calling Harmon alleged, and Ms. Lee decided not to substantiate the verbal abuse.





  1. Harmon had two of the strongest motivations to lie known: guilt, and its partner, the desire to blame someone else for that about which we feel guilty. Several witnesses, including Petitioner, Ms. Powell, and Ms. Spencer, testified that Petitioner should have had help in lifting and moving A.J. Her help was standing beside her—Ms. Harmon—but failed to be of any assistance to her. Because of Ms. Harmon’s failure to provide any assistance to the 68 year old CNA beside her, who was trying to lift and move a 200 pound patient with no strength in her legs, both the 68 year old and her 75 year old charge came very close to injury. A.J., though not injured, was frightened, and was in tears. Rather than accept the blame she deserved, Harmon made up a story about why A.J. was upset that could not implicate her: rather than her failure to help, it was Petitioner’s unilateral and inexplicable act of shoving A.J.’s arm off the bedrail, coupled with her out-of-character harsh language that upset A.J. Telling the truth would have raised questions about her failure to help Petitioner and therefore her role in upsetting A.J.

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.




  1. All parties have been correctly designated and there is no question as to misjoinder or nonjoinder.




  1. As a nurse aide working in a nursing facility, Petitioner is subject to the provisions of N.C. Gen. Stat. § 131E-255 and § 131E-256.




  1. “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.” (emphasis added) This definition is incorporated by reference in the definition of abuse found at 10 NCAC 3B.1001(1).




  1. While Petitioner may have made an error in judgment by trying to lift A.J. without more competent help than Ms. Harmon was willing to provide, there is no believable evidence that Petitioner willfully did anything but try to move A.J. and try—successfully—to avoid physical injury to A.J. when she realized A.J. was falling, by pushing A.J. to the safety of the bed.




  1. Neither did Petitioner inflict—willfully or not—“injury, unreasonable confinement, intimidation, or punishment” on A.J. Nurse Lee examined A.J. for injury after the incident and apparently found none. There was no confinement, intimidation or punishment.




  1. There is no evidence of verbal abuse other than the testimony of Ms. Harmon, which was part of a story even the Respondent refused to accept and which has been found not credible by this court. Such testimony is woefully insufficient as a basis to find abuse. Even if one believed Harmon, one would still have to find a way to fit calling someone fat into the above definition of abuse, which requires infliction of injury, unreasonable confinement, intimidation, or punishment and resulting physical harm, pain, or mental anguish.



  1. Petitioner, a 68 year old woman of average size, only 7 years younger than the patient she was trying to move, did her best under the circumstances she was presented with to safely meet the needs of resident A.J. Though it is certainly possible to Monday-morning-quarterback the incident, as Ms. Powell did at pages 99 to 101 of the transcript, this does not even begin to constitute abuse. Frankly, the first suggestion made by Ms. Powell—leaving A.J. in her chair all night if she was afraid to move—would be more likely to elicit a finding of abuse (or neglect) than the actions of Petitioner. Chapter 131E is not a remedy for every error in judgment by a nurse aide. Nurse aides do an incredibly difficult job at low pay and with little appreciation. Lifetime blacklisting is not the appropriate response every time a mistake is made that upsets a patient, especially one like this one that results in no injury, and in fact (to the extent the shove is the issue) probably prevented an injury. Obviously, action should have been taken to be sure A.J. was provided with more help in the evenings to get into bed so that this could be accomplished without upsetting or scaring her. This was the job of the nursing home administration; scapegoating Petitioner is not the answer.





  1. Respondent objected to the introduction of Petitioner’s three exhibits on the grounds that they are hearsay. While these documents are hearsay, 26 NCAC 03 .0121 provides that an “administrative law judge may admit all evidence that has probative value.” The undersigned specifically finds that the three exhibits have probative value. The undersigned also finds that justice requires that these three exhibits, the only evidence offered by Petitioner, be admitted. Petitioner was proceeding pro se, has no legal training, and was consistently unsophisticated and somewhat confused about the proceeding. It is also worth noting that much of the evidence offered by Respondent, though not objected to by Petitioner, is also hearsay evidence.




  1. For all the reasons set out above, Respondent erred in substantiating the allegation of abuse against Petitioner.

Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned makes the following:



RECOMMENDED DECISION
That the Respondent’s decision to place a finding of abuse at Petitioner’s name in the Nurse Aide Registry and the Health Care Personnel Registry be reversed.

NOTICE

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

The agency 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 decision. 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.
This the 26th day of January 2001.

__________________________________________

James L. Conner, II

Administrative Law Judge





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