STATE OF NORTH CAROLINA
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
03 DHR 1296
COUNTY OF GUILFORD
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Rosalyn Y Springs
Petitioner
vs.
Department of Health and Human Services
Division of Facility Services
Respondent
DECISION
On March 23, 2004, Administrative Law Judge Melissa Owens Lassiter conducted an
administrative hearing in this contested case in High Point, North Carolina.
APPEARANCES
Petitioner:
Roslyn Y. Springs, Pro se
417 Walnut Street
High Point, NC 27260
For Respondent:
Wendy L. Greene
Assistant Attorney General
North Carolina Department of Justice
P.O. Box 629
Raleigh, NC 27602
ISSUE
Whether Respondent substantially prejudiced Petitioner’s rights when it substantiated the
allegation that Petitioner abused resident MN of Elm Villa Assisted Living, High Point, North
Carolina, by “slapping the resident when she moved out of the chair?”
APPLICABLE STATUTES AND RULES
N.C. Gen. Stat. § 131E-256
N.C. Gen. Stat. §150B-23
42 CFR § 488.301
10 NCAC 3B.1001
EXHIBITS ADMITTED INTO EVIDENCE
Respondent’s Exhibits 1 - 8
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FINDINGS OF FACT
In making the Findings of Fact, the undersigned has weighed all the evidence, and
assessed each witness’ credibility based upon his/her demeanor, interests, bias, or prejudice,
his/her opportunities to see, hear, know or remember the facts or occurrences about which the
witness testified, the reasonableness of each testimony, and whether each witness’ testimony is
consistent with all other believable evidence in the case. After careful consideration of the sworn
witness testimony presented at the hearing, the documents and exhibits admitted into evidence,
and the entire record in this proceeding, the undersigned finds as follows:
1.
Elm Villa Assisted Living, (“Elm Villa”), is an assisted living facility and rest home in
High Point, North Carolina, and therefore subject to N.C. Gen. Stat. § 131E-256. (T p. 9)
2.
At all times relevant to this matter, Petitioner was a nursing assistant at Elm Villa.
During the 1980's, Petitioner received training to be a nursing assistant at Lamb’s Nursing
Home. Since that time she has worked in a variety of positions, not all of which were related to
her health care training. Through her training, Petitioner was taught about resident rights. She
understands abuse to be the use of foul language with a resident, or hitting or otherwise putting
your hands on a resident. (T pp. 8, 9, 12; Resp. Exh. 1)
3.
At Elm Villa, Petitioner was responsible for passing lunches, taking resident
temperatures, bathing residents, and helping them with other activities of daily living. Petitioner
worked the second shift, from 3:00 p.m. to 11:00 p.m. She and two other staff members were
responsible for helping approximately 25 residents during that shift. (T pp. 8 - 11)
4.
When faced with a resident who would not comply with her directives, Petitioner would
first talk to resident, and then talk to an administrator or supervisor. Petitioner indicated that she
never forced a resident to do anything he did not want to do. Petitioner acknowledged that she
had worked with Alzheimer’s residents at Elm Villa, but never had a problem getting them to
comply with her directions. In particular, Petitioner did not think that MN, an Alzheimer’s
patient, required a lot of help. (T pp. 16, 17, 34)
5.
According to Petitioner, Elm Villa terminated her employment because she allegedly
snatched a diaper from between a resident’s legs, and shoved the same resident against a dresser.
Petitioner denied knowledge of an allegation of abuse regarding her treatment of resident MN.
However, she recalled that she might have spoken to someone from Raleigh about MN.
Petitioner remembered that at the time she was fired from Elm Villa, MN had only lived there a
few days. (T pp. 12, 13, 14, 17, 18)
6.
Petitioner felt that she got along well with her co-workers at Elm Villa. She has worked
with co-worker Sherree Love at Elm Villa, and at another nursing home prior to their
employment at Elm Villa. (T pp. 15, 16)
7.
At all times relevant to this matter, Sherree Love was the second shift personal care
assistant at Elm Villa. She has worked in the field of health care for twenty-six years. Ms. Love
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described her duties as providing the type of care one would provide to a family member, such as
help with bathing, dressing and eating. (T pp. 24, 25, 26)
8.
Ms. Love has known Petitioner for over twenty years, from the time they worked
together at Lamb’s Nursing Home. She supervised Petitioner for about one year at a previous
job, and worked with Petitioner at Elm Villa. (T pp. 27, 40)
9.
February 11, 2003 was resident MN’s first day at Elm Villa. Ms. Love and Petitioner
worked second shift that day. First shift staff reported to them that MN had been trying to get
out of the facility all day, and that she needed to be watched. (T pp. 27, 28)
10.
Ms. Love and Petitioner both noticed that MN repeatedly went toward the doors to
outside. At first, they were able to gently guide MN back, but she became persistent, and started
tugging and pulling. (T p. 28)
11.
Elm Villa served dinner to its residents at about 5:00 p.m. in the ground level dining
room. MN finished eating before the other residents, and managed to leave the facility by a glass
door. Ms. Love ran outside after MN. It had rained that day and the ground was muddy. Ms.
Love slipped and fell while trying to catch up with MN. MN turned around and looked at Ms.
Love, and started laughing. Petitioner does not remember working with Ms. Love when Ms.
Love fell in the mud that day. (T pp. 15, 16, 28, 29)
12.
Ms. Love walked back towards the building, and MN followed her. MN stopped outside
the door to the facility. When Love entered the facility, she told Petitioner that she was tired,
and didn’t know how they would deal with MN. Love advised Petitioner that she would deal
with MN, went outside, grabbed MN by the wrist, and led her back into the building. (T pp. 30,
31, 32)
13.
Petitioner made MN sit down in a chair, and then sat next to her. MN stood up, and
Petitioner grabbed MN’s arm and pushed her back into the chair about three or four times. MN
slapped Petitioner a few times. (T pp. 32, 33)
14.
Petitioner made a fist, and punched MN three times in the torso area. Ms. Love was
stunned. MN began to cry like a baby. Ms. Love told Petitioner she would take care of MN.
MN appeared to be frightened and intimidated. Ms. Love took MN’s hand, and led her upstairs.
She held and talked to MN, put her in her bed, and stayed with her until she was soundly asleep.
(T p. 33 - 35)
15.
Ms. Love asked management not to assign her to work with Petitioner anymore. (T pp.
36, 37)
16.
At all times relevant to this matter, Mary McDuffie was a nursing home consultant and
administrator at Elm Villa. On January 26, 2003, McDuffie began as a consultant at Elm Villa
to correct numerous existing deficiencies at the facility, and to get the facility back into
compliance with state regulations. In April, 2003, Ms. McDuffie officially became the
administrator of Elm Villa. (T pp. 42, 43)
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17.
In February 2003, Ms. McDuffie did not know Petitioner. However, another staff
member reported that Petitioner had shoved resident EC and grabbed her diaper. McDuffie
conducted an investigation into that allegation. During the course of that investigation, resident
RB reported that Petitioner had slapped resident MN. Ms. McDuffie substantiated both
allegations against Petitioner, and terminated her from employment. Ms. McDuffie placed a
copy of her investigative report regarding these allegations in Petitioner’s personnel file, and
mailed a copy of such to the Health Care Personnel Registry. (T pp. 43 - 46; Resp. Exh. 5)
18.
At all times relevant to this matter, Joan Pratt was a certified nurse aide employed by Elm
Villa. Ms. Pratt has known Petitioner since Ms. Pratt was a young child, and has worked with
her at different places, including Elm Villa. (T pp. 53, 54)
19.
At all times relevant to this matter, Jean Miller-Levette was a nurse investigator with the
Health Care Personnel Registry. It is her responsibility to investigate, among others, allegations
of abuse, neglect, and misappropriation of patient property by health care personnel in Guilford
County. Ms. Levette is a registered nurse (RN), holds a Master’s degree, and worked as a nurse
assistant before becoming a registered nurse. She received and “screened in” the allegations that
Petitioner had abused residents EC and MN. (T pp. 60, 61, 68)
20.
When Ms. Miller-Levette visited Elm Villa to investigate the first allegation against
Petitioner, she reviewed documents on resident EC, reviewed Petitioner’s personnel file, and
spoke with Ms. McDuffie. Ms. Love overheard Ms. Miller-Levette talking with Director
McDuffie, and told Miller-Levette what she had witnessed between Petitioner and MN. (T pp.
36, 37) Ms. Love explained, using a sketch of the facility layout, where the incident with MN
had actually happened. As a result of Love’s statements, Miller-Levette also began investigating
the abuse allegation of resident MN and gathered documents on resident MN. (T pp. 64 - 72;
Resp. Exh. 4) Miller-Levette was not able to interview MN, because by the time she visited Elm
Villa, MN had been transferred to another, unknown facility. Ms. Miller-Levette conducted a
telephone interview with Petitioner.
21.
Because the abuse allegation against Petitioner of resident EC is not at issue in this
contested case, the undersigned will not address that allegation of abuse in this decision.
22.
Ms. Miller-Levette substantiated the allegation that Petitioner abused MN by hitting her
in the chest area. In her summary of her investigation, Miller-Levette wrote that Petitioner
abused MN by “slapping” MN when she moved out of the chair.
23.
At the administrative hearing, Miller-Levette corrected that statement, and indicated that
her substantiated finding regarding this allegation of abuse should have read that Petitioner
abused resident MN by hitting her in the chest area and/or torso area when resident MN moved
out of a chair. (T pp. 77, 78; Resp. Exh. 7)
24.
By letter dated September 2, 2003, Respondent notified Petitioner that it had
substantiated the allegation of abuse against her, and such substantiation would be placed on the
Health Care Personnel Registry. (Resp. Exh. 8)
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25.
A preponderance of the evidence at hearing showed that Petitioner abused resident MN
on February 11,2003 by hitting MN in the chest and/or torso area when MN moved out of the
chair.
26.
Although Respondent’s substantiated finding stated that Petitioner abused resident MN
by “slapping” MN, that incorrect wording does not negate the basic fact that Petitioner struck
resident MN in the chest area.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, the undersigned Administrative Law Judge
makes the following:
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.
As a nursing assistant working in a health care facility, Petitioner is subject to the
provisions of N.C. Gen. Stat. § 131E-256.
4.
“Abuse” is defined as “the willful infliction of injury, unreasonable confinement,
intimidation, or punishment with resulting physical harm, pain or mental anguish.” 10 NCAC
3B.1001; 42 CFR Part 488.301.
5.
On or about February 11, 2003, Petitioner Roslyn Springs abused resident MN by hitting
the resident in the chest and/or torso area when the resident moved from her chair.
6.
In substantiating the allegation of abuse, Respondent did not prejudice Petitioner’s rights,
because there is sufficient evidence to support Respondent’s conclusion. Respondent’s different
choice of wording in its substantiated finding, of abuse by “slapping” resident MN, does not
affect the basic fact that Petitioner abused resident MN by striking or hitting her in the chest
and/or torso area. Neither does Respondent’s different choice in wording negate that Petitioner
had notice of an allegation of abuse lodged against her, regarding her interaction with resident
MN at Elm Villa Assisted Living in High Point, NC on February 11, 2003.
DECISION
Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby
determines that Respondent’s decision to place a finding of abuse at Petitioner’s name on the
Health Care Personnel Registry, should be UPHELD. Such finding should reflect that Petitioner
abused resident MN on February 11, 2003 by hitting or striking resident MN when resident MN
moved out of the chair.
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ORDER AND NOTICE
The North Carolina Department of Health and Human Services, Division of Facility
Services, will make the Final Decision in this contested case. N.C. Gen. Stat. § 150B-36(b),
(b1), (b2), and (b3) enumerate the standard of review and procedures the agency must follow in
making its Final Decision, and adopting and/or not adopting the Findings of Fact and Decision of
the Administrative Law Judge.
Pursuant to N.C. Gen. Stat. § 150B-36(a), before the agency makes a Final Decision in
this case, it is required to give each party an opportunity to file exceptions to this decision, and to
present written arguments to those in the agency who will make the Final Decision. N.C. Gen.
Stat. 150B-36(b)(3) requires the agency to serve a copy of its Final Decision on each party, and
furnish a copy of its Final Decision to each party’s attorney of record and to the Office of
Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-6714.
This the 6th day of May, 2004.
______________________________
Melissa Owens Lassiter
Administrative Law Judge
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