STATE OF NORTH CAROLINA
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
02 DHR 2290
COUNTY OF HALIFAX
LATRESE SHERELL HARRIS,
)
)
)
v.
)
)
DECISION
NURSE AIDE REGISTRY,
)
Respondent. )
______________________________________________________________________________
Petitioner,
THIS MATTER came on for hearing before the undersigned Sammie Chess Jr.,
Administrative Law Judge, on April 23, 2003, in Halifax, North Carolina.
APPEARANCES
Latrese Sherell Harris, Pro se
P.O. Box 302
Weldon, NC 27890
Petitioner:
For Respondent:
Wendy L. Greene
Assistant Attorney General
North Carolina Department of Justice
P.O. Box 629
Raleigh, NC 27602-0629
ISSUE
Whether Respondent acted erroneously and otherwise substantially prejudiced
Petitioner's rights when it substantiated the allegation that Petitioner neglected residents JE and
WW by failing to follow facility policy on residents' rights, abuse and neglect while caring for
them, neglected WW by failing to provide him privacy while bathing, and neglected JE by
failing to provide privacy while she used the bathroom.
Whether Respondent acted erroneously and otherwise substantially prejudiced
Petitioner's rights when it substantiated the allegation that Petitioner abused resident JE by
making her go the bathroom when she did not want to go, and leaving the bathroom door open
and laughing at her while she was in the bathroom.
APPLICABLE STATUTES AND RULES
N.C. Gen. Stat. §§ 131E-255
N.C. Gen. Stat.§§ 131E-256
N.C. Gen. Stat. 150B-23
42 CFR § 488.301
10 NCAC 3B.1001
EXHIBITS
Respondent's exhibits 1, 3 - 9, 14 - 18, and 21 were admitted into the record.
BASED UPON careful consideration of the sworn testimony of the witnesses presented
at the hearing, the documents and exhibits received and admitted into evidence, and the entire
record in this proceeding, the Undersigned makes the following findings of fact. 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. From the exhibits admitted
into evidence and the sworn testimony of witnesses, the undersigned makes the following:
FINDINGS OF FACT
1.
At all times relevant to this matter Petitioner Latrese Sherrell Harris was a
certified nurse aide (CNA) employed at the Convalescent Center of Halifax (CCH). CCH is a
nursing home as defined in N.C. Gen. Stat. § 131E-101(6), and therefore subject to N.C. Gen.
Stat. §§ 131E-255, 256. The Convalescent Center of Halifax is located in Weldon, North
Carolina. (T pp. 7, 8; Resp. Exh.14)
2.
At all times relevant to this matter Robin Jones was nurse aide at CCH. Ms. Jones
worked first shift. She knew Petitioner because they had worked together at CCH, including a
period during which Ms. Jones observed Petitioner as part of Ms. Jones's orientation. ( T pp. 44,
45, 46)
3.
At all times relevant to this matter Candance Thompson was a nurse aide student
assigned to observe Petitioner at CCH as part of her clinical training to be a certified nurse
assistant. She was paired to observe Petitioner's work on the morning of July 31, 2002. (T pp. 63,
64)
4.
Petitioner worked second shift, from 7:00 a.m. to 3:00 p.m. As a CNA Petitioner
was responsible for bathing and feeding residents, assisting them with bowel and bladder
functions, and helping them with other activities. She was responsible for following the job
description for nursing assistants which required, inter alia, that she treat all residents with
respect, kindness and dignity, and that nursing care be provided in privacy. (T pp. 8, 14, 16, 17;
Resp. Exh. 1)
5.
In 1997 Petitioner was trained at Halifax Community College and certified as a
nurse aide. Petitioner also received an orientation from CCH upon being hired in 1997 or 1998.
The CCH orientation included information on patients' rights. In addition, Petitioner attended
approximately ten in-service training sessions per year at CCH. Through the in-service trainings,
Petitioner learned that residents have a right to privacy, meaning they have a right to be free from
physical exposure to others, and free from having their information disclosed to anyone. (T pp. 9,
10)
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6.
On April 11, 2002, Petitioner attended an in-service training on resident abuse and
neglect at CCH. (T pp. 97-99; Resp. Exh. 21)
7.
According to Petitioner, physical abuse of residents is abuse carried out using
one's hands against a resident, and mental abuse is that which happens when someone speaks to
residents in a hurtful manner. Petitioner understands neglect to be the failure to do what one is
supposed to do for a resident. (T pp. 17, 18)
8.
On July 31, 2002, Petitioner worked first shift at CCH. She was assigned to work
in specific rooms in the bottom area of either section 1 or 2 of the facility. Two community
college students were assigned to work with Petitioner that day as part of their practical training.
The students followed Petitioner around, observing what she did as she worked with the
residents. The students spent a few hours of that morning with Petitioner. (T pp. 18-20)
9.
At all times relevant to this matter JE was a resident of CCH. JE was on a two
hour bowel and bladder regime, such that she should be encouraged to go to the bathroom every
two hours, or as needed. (T pp. 21-24)
10.
At some point during the morning of July 31, 2002, Petitioner went to JE's room
to take JE to the bathroom. JE was sitting in her wheelchair when Petitioner entered her room.
JE did not want to go to the bathroom. Petitioner testified that she had been told by a supervisor
that if JE did not want to go to the bathroom, she should leave JE alone, and later return to take
her to the bathroom. Petitioner testified that she left JE alone for about three minutes before
returning with a co-worker Robin Jones to help her get JE to the bathroom. Petitioner testified
that she left the bathroom door cracked while JE was inside the bathroom, and that after finishing
in the bathroom JE wanted to go to bed, so Ms. Jones helped Petitioner put JE on her bed. (T pp.
21-28, 48 )
11.
During the time that Petitioner and Robin made JE use the bathroom the two
community college students were in the JE's room observing what Petitioner did to JE. (T pp. 26,
27)
12.
Ms. Jones testified that on July 31, 2002, Petitioner approached her at work and
told her that JE needed to go to the bathroom. Petitioner needed help getting JE to the bathroom.
When Ms. Jones arrived at JE's room, she saw that the resident did not want to go the bathroom.
JE cursed, put up a fight, and said that she did not want to go the bathroom. Petitioner told Ms.
Jones that if JE did not go to the bathroom she would soil herself. JE continued to curse, mainly
at Petitioner, and tried to get Petitioner and Ms. Jones to remove their hands from her. As
Petitioner and Ms. Jones put JE on the toilet, JE continued to put a fight, saying she did not have
to nor want to go to the bathroom. Petitioner and Ms. Jones were finally able to get JE seated on
the toilet. The door to the bathroom was left open while JE used the toilet. (T pp. 47, 48, 49, 50,
51, 52)
13.
After JE finished in the bathroom, Petitioner put her back in her wheelchair. She
then forced JE to lie down on her bed. JE put up a fight in protest of being put to bed. (T pp. 53,
57, 60, 61; Resp. Exh. 4)
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14.
On July 31, 2002, Candance Thompson observed Petitioner and Ms. Jones force
JE to the bathroom while JE indicated that she did not want to use the bathroom. JE fussed, used
bad language, and said "no, leave me alone," while Ms. Jones and Petitioner maneuvered her to
the bathroom. Ms. Thompson saw them put JE back into the wheelchair, then roll JE onto her
bed. JE did not want to be put to bed, she told them "no." (T p. 66, 67, 68)
15.
At all times relevant to this matter, WW was a resident of CCH. Both of WW's
legs had been amputated but he was able to communicate and knew when people were in his
room. He was capable of some independent movement and was aware of his surroundings. (T pp.
29, 30, 34, 93, 94)
16.
On July 31, 2002, Petitioner bathed and turned WW. Two student interns were in
WW's room observing Petitioner. WW was bathed in his bed. Petitioner testified that the proper
manner to bathe residents in their beds is to keep the part of their body not being washed
covered. At no time should a resident's entire body be exposed. (T pp. 30, 31, 32, 33)
17.
Ms. Thompson was one of the student interns observing Petitioner bathe WW.
Although Petitioner testified that while bathing WW she kept him properly covered, Ms.
Thompson saw that Petitioner failed to cover WW as she should have. Instead of covering the
parts of WW's body that were not being washed, she did not cover him at all. WW was nude. In
addition, although Petitioner testified otherwise, the door to WW's room was about halfway open
and the curtain around his bed was not completely closed while he was being bathed. (T pp. 32,
70, 71, 124, 1125)
18.
During the bath, Ms. Thompson heard WW say that it was cold and shouldn't the
curtains be closed. WW's body was thoroughly exposed, including his private parts, and WW
looked uncomfortable. (T pp. 72, 73)
19.
At all times relevant to this matter Tina Whitmire was the Director of Nursing at
CCH. Ms. Whitmire knows Petitioner because they both worked at CCH. Ms. Whitmire knows
resident JE and is familiar with JE's care plan. Ms Whitmire testified that although JE is on a
two-hour toileting schedule, staff should not force JE to the bathroom when she does not want to
go. CCH's policy is that residents must not to be forced to do anything. (T pp. 91, 92, 93)
20.
On August 1, 2002, Ms. Whitmire was informed of allegations that Petitioner
abused residents JE and WW. Ms. Whitmire investigated the allegations and sent reports to the
Division of Facility Services, Health Care Personnel Registry. (T pp. 94, 95, 98, 99; Resp. Exhs.
14, 15, 16)
21.
At all times relevant to this matter Judy Adkins was a nurse investigator of the
Health Care Personnel Registry. Ms. Adkins screened in and investigated allegations that
Petitioner abused and neglected residents of CCH. (T pp.107, 110)
22.
Ms. Adkins interviewed Petitioner, nurse aide students and facility staff, including
Ms. Jones and Ms. Whitmire. She also reviewed the residents' charts, personally observed the
residents, and reviewed Petitioner's personnel file. (T pp. 111- 113; Resp. Exhs. 3, 5, 7, 9, 13)
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23.
Ms. Adkins testified that neglect is the failure to provide goods and services for
residents. Abuse is the willful infliction of pain or injury resulting in injury or mental anguish.
(T pp. 115)
24.
Ms. Adkins substantiated the allegation of a neglect against Petitioner because
Petitioner failed to protect the privacy and dignity of residents WW and JE when she provided
them care. Petitioner's failure to follow CCH policy in regard to resident care was also neglect.
25.
Ms. Adkins substantiated the allegation of abuse of JE against Petitioner because
by forcing JE to use the bathroom against her will Petitioner unreasonably confined JE, resulting
in mental anguish, evidenced by JE's protest to the care she was receiving. (T pp. 114-116; Resp.
Exh. 17)
26.
Petitioner was informed by letter that the investigation resulted in the
substantiation of the allegations of abuse and neglect, and that the findings will be placed on the
Nurse Aide Registry and Health Care Personnel Registry. (T p. 117; Resp. Exh. 18)
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.
As a certified nurse aide working in a nursing home, Petitioner is subject to the
provisions of N.C. Gen. Stat. §§ 131E-255, 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 July 31, 2002, Petitioner abused resident JE by forcing her to go to the
bathroom, subjecting JE to intimidation and unreasonable confinement.
6.
"Neglect" is defined as "the failure to provide goods and services necessary to
avoid physical harm, mental anguish or mental illness. 42 CFR Part 488.301.
7.
On July 31, 2002, Petitioner neglected resident JE because forcing the resident to
go to the bathroom against her will was a violation of facility policy, and because Petitioner
failed to provide privacy for JE while she was in the bathroom. Petitioner neglected WW by
failing to provide him privacy while he was being bathed.
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8.
Respondent failed to present competent evidence that Petitioner abused JE by
laughing at JE while she was using the bathroom.
9.
Respondent did not prejudice Petitioner's rights because there is sufficient
evidence to support Respondent's conclusions that Petitioner abused and neglected JE, and
neglected WW.
Based on the foregoing Findings of Fact and Conclusions of Law, the Undersigned makes
the following:
DECISION
That the Respondent's decision to place findings of abuse and neglect at Petitioner's name
on the Health Care Personnel Registry and the Nurse Aide Registry be UPHELD, with the
exception of the finding that Petitioner abused JE by laughing at JE while she was in the
bathroom.
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 the
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.
In accordance with N.C. Gen. Stat. § 150B-36 the Agency 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.
This the 16 day of June, 2003.
______________________________
Sammie Chess, Jr.
Administrative Law Judge
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