STATE OF NORTH CAROLINA
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
01 DHR 0359
COUNTY OF PITT
Tonitia Langley,
Petitioner,
v.
North Carolina Department of
Health and Human services,
Division of Facility Services,
Respondent.
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DECISION
On July 18, 2001, Administrative Law Judge Melissa Owens Lassiter heard this contested
case in Farmville, North Carolina.
APPEARANCES
For Petitioner:
Tonitia Langley, Pro se
910 Austin Lane
Greenville, NC 27834
For Respondent:
June S. Ferrell
Assistant Attorney General,
North Carolina Department of Justice
PO Box 629
Raleigh, NC 27602-0629
ISSUE
Whether Respondent substantially prejudiced Petitioner’s rights, exceeded its authority or
jurisdiction, acted erroneously, failed to use proper procedure, acted arbitrarily or capriciously,
or failed to act as required by law or rule by substantiating a finding of neglect by Petitioner of a
health care facility resident and notifying Petitioner that it intended to enter such substantiated
finding into the Health Care Personnel Registry?
APPLICABLE STATUTES AND RULES
N.C. GEN. STAT. § 131E-256
N.C. GEN. STAT. § 150B-23
10 NCAC 3B .1001(10)
EXHIBITS
The following exhibits were admitted into evidence:
1.
Petitioner’s Exhibits:
#1 - Review of Client Rights and Staff Responsibility
#2 - Skill Creation Employee Handbook Verification Signature Form
#3 - Skill Creation Policy 314 Verification Form
2.
Respondent’s Exhibits:
#1 - Handwritten Statement of Petitioner, dated 04/25/00
#2 - HCPR Interview of Petitioner, dated 01/04/01
#3 - HCPR Letter to Petitioner, dated 01/30/01
#4 - Handwritten Statement of Shanita Andrews, dated 04/24/00
#5 - Handwritten Statement of Shanita Andrews, dated 02/24/00
#6 - HCPR Interview of Shanita Andrews, dated 12/21/00
#9 - Handwritten Statement of Donna Kay Williams, dated 04/24/00
#10 - HCPR Interview of Donna Kay Williams, dated 12/21/00
#11 - HCPR Interview of Karolyn Leavelle, dated 12/21/00
#12 - Discharge Order/Home Care Instructions for Resident M.R., dated 04/25/00
#13 - Skill Creations’ Policy Manual for “Client Abuse/Neglect/Mistreatment”
#14 - HCPR Investigative Conclusion
FINDINGS OF FACT
Based upon the documents filed in this matter, exhibits admitted into evidence and the
sworn testimony of the witnesses, the undersigned finds as follows:
1.
At all times relevant to this contested case, Petitioner was employed as a part-time
Habilitation Technician at Skill Creations in Greenville, North Carolina. Tr pp 11-12, l. 19-8.
Petitioner began working at Skilled Creations in June 1999.
2.
Skill Creations is an intermediate care facility for the mentally retarded. Tr p 98, l. 1-9.
3.
At all times relevant to this contested case, Karolyn Leavelle was employed as the
Director of Skill Creations. Ms. Leavelle is a Qualified Mental Retardation Professional. Tr p
97, l. 16-18.
4.
At all times relevant to this contested case, Donna Williams was employed as a nurse at
Skill Creations. Tr pp 83-84, l. 23-24.
5.
At all times relevant to this matter, Shanita Andrews was employed as a Habilitation
Technician Monitor at Skill Creations. Tr p 66, l. 2-19.
6.
At all times relevant to this matter, Pamela Anderson, R.N., was employed as a nurse
investigator with the Health Care Personnel Registry Section, Division of Facility Services. Tr p
115, l. 9-15.
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7.
On April 24, 2000, Petitioner was responsible for bathing M.R., a resident of Skill
Creations. Petitioner turned on the bath water, checked the water temperature with her gloved
hand, and left the water running while she prepared M.R. for her bath. Petitioner returned to the
shower room and placed M.R. into the bathtub. Petitioner did not re-check the water temperature
prior to placing M.R. into the bathtub. Petitioner did not add more water to the bath after placing
M.R. into the bathtub. Immediately, M.R. yelled out in distress. Petitioner was not concerned
by M.R.’s screaming because M.R. always screamed when she was placed into the bathtub.
8.
Shanita Andrews heard M.R. screaming and went to the shower room to see what was the
matter. Ms. Andrews knew that M.R. usually yelled when she was being bathed because M.R.
did not like to be bathed. When Ms. Andrews entered the shower room, she found M.R. laying
on her back in the bathtub, screaming, and kicking her legs. Ms. Andrews knew something was
wrong because she had never seen M.R. lay down in the tub. Ms. Andrews questioned Petitioner
about the water temperature, and Petitioner assured her that the water was not too hot. However,
Petitioner had gloves on her hands.
Ms. Andrews touched M.R.’s hand and noticed that M.R.’s hand felt warm. Andrews
noticed smoke coming from the water. When Andrews put her arm in the bathtub to assist M.R.
out of the bathtub, she realized that the water was too hot. At Ms. Andrews’ request, Petitioner
helped remove M.R. from the bathtub. Tr pp 15-25, l. 3-18; pp 32-36, l. 24-5; pp 53-58, l. 18-8;
pp 69-75, l. 7-18; pp 79-82, l. 14-15; 85-88, l. 6-20; R.Exs. 1, 2, 4, 5, 6, 9, 10 and 12. After
getting M.R. out of the bathtub, Ms. Andrews saw something on the tub. She noticed that M.R.’s
back was red and blistery. Andrews realized that what she saw on the bathtub was M.R.’s skin.
9.
On April 24, 2000, when Ms. Williams arrived at Skill Creations, she heard M.R.
screaming. From the manner in which M.R. was screaming, she immediately knew that
something was wrong with M.R. Ms. Williams entered the shower room and saw Ms. Andrews
standing over the bathtub with her right hand extended towards M.R.’s left shoulder. She saw
Petitioner walking away from the bathtub shaking her hands as she held her hands out in front of
her. Ms. Williams felt the water and instructed Petitioner and Ms. Andrews to remove M.R.
from the bathtub. As soon as M.R. was removed from the bathtub, Ms. Williams treated M.R.’s
burns. Ms. Williams and Petitioner transported M.R. to the hospital for further treatment, where
it was determined that M.R. suffered first and second degree burns. Tr pp 85-88, l. 6-20; R.Exs.
9 and 10.
10.
Petitioner did not immediately respond to M.R.’s screaming. Upon the urging of Ms.
Andrews and at the direction of Ms. Williams, Petitioner assisted Ms. Andrews in removing
M.R. from the bathtub. Tr pp 69-75, l. 10-3; pp 79-82, l. 14-17; pp 85-87, l. 3-5; pp 94-95, l. 1119; R.Exs. 1, 2, 4, 5, 6, 9 and 10.
11.
Ms. Williams questioned Petitioner about the water temperature and instructed Petitioner
to remove the gloves from her hands and re-check the water temperature. When Ms. Williams
asked Petitioner if she had checked the water with an ungloved hand, Petitioner responded,
“No.” Tr pp 85-88, l. 6-20; R.Exs. 9 and 10.
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12.
Ms. Andrews was a credible witness. She had no interest in the outcome of the case and
her testimony was consistent with her prior statements. Tr pp 69-, l. 22-11; R.Exs. 4, 5 and 6.
13.
M.R. suffers from severe mental retardation and is non-verbal. Tr pp 31-32, l. 20-21.
14.
At Ms. Williams’ direction, the incident was immediately reported to Ms. Leavelle. Ms.
Williams was a credible witness. She had no interest in the outcome of the case and her
testimony was consistent with her prior statements. Tr pp 84-96, l. 22-11; R.Exs. 9 and 10.
15.
Skill Creations requires its employees to attend orientation when they are hired, to review
client’s rights training, and to be in-serviced in the area of resident abuse, neglect, and
mistreatment. The orientation training includes several videos, one of which contains
instructions on how to check bath water with an ungloved hand. Although Petitioner admitted
that she had attended orientation, she denied having ever viewed the aforementioned video on
how to check bath water. Tr pp 13-15, l. 14-2; pp 29-30, l. 11-14; pp 36-52, l. 14-22; pp 66-67, l.
20-15; p 100, l. 5-18; pp 101-108, l. 12-17. Ms. Andrews and Ms. Daggs acknowledged that
they had been taught to check water with a bare hand at Skilled Creations.
16.
On behalf of Skill Creations, Ms. Leavelle conducted the in-house investigation with
respect to the allegation of neglect by Petitioner to M.R. Ms. Leavelle forwarded the
investigation to the Health Care Personnel Registry Section for review. Tr pp 108-114, l. 18-4.
17.
Ms. Leavelle 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 99-114, l. 7-4; R.Ex. 11.
18.
Ms. Anderson screened the report submitted by Skill Creations with respect to the
allegation of neglect and concluded that the allegation warranted an investigation. Tr pp 115116, l. 16-6.
19.
Ms. Anderson investigated and substantiated the allegation of neglect against Petitioner.
Tr p 116-123, l. 7-18; R.Exs. 3 and 14.
20.
By letter, sent via certified mail, on January 30, 2001, Respondent notified Petitioner that
the Department had substantiated an allegation of neglect against Petitioner and that the
substantiated finding would be entered into the Health Care Personnel Registry. The letter also
notified Petitioner of her right to contest the entry of the substantiated finding of neglect in the
Health Care Personnel Registry. R.Ex. 3.
21.
There was some contradiction between Ms. Andrews’ version of these events and Ms.
Williams’ versions of the April 24, 2000 events. That is, their testimony and statements differed
as to whether Ms. Andrews and Petitioner removed M.R. from the bathtub before or after Ms.
Williams entered the shower room. However, this contradiction is minor in that both Williams
and Andrews had to ask/instruct Petitioner to assist in removing M.R. from the bathtub.
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22.
The Health Department inspected the water system in April 2000 and the water
temperature checked out fine. Later in the day on April 24, 2000, Sam Pollard and Sons checked
the water heater system, replaced a valve, and lowered the temperature on the water heater.
There was no specific evidence that the water heater malfunctioned on April 24, 2000. After this
incident, Skilled Creations taught the staff how to check the water temperature with a
thermometer, and documented the water temperature before each bath for a limited time. They
also posted reminders in both shower rooms to check water with a bare hand before bathing a
client.
23.
Skilled Creations Director Leavelle spent a lot of time in training with Petitioner and
verified that Petitioner had worked extensively with Skilled Creations.
24.
Petitioner cared about her clients, enjoyed her job at Skilled Creations, expressed genuine
concern for what happened to M.R., and did not intend to injure M.R. This was the first reported
incident involving Petitioner at Skilled Creations.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, the undersigned concludes as follows:
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-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.
4.
As a health care personnel, Petitioner is subject to the provisions of N.C. Gen. Stat. §
131E-256.
5.
Skill Creations is an intermediate care facility for the mentally retarded as defined in N.C.
Gen. Stat. § 131E-256(b)(8).
6.
‘"Neglect" is defined by 42 CFR Part 488 Subpart E which is incorporated by reference,
including subsequent amendments. . . .’ 10 NCAC 3B .1001(10). Neglect is defined in 42 CFR
488.301 as follows:
“Neglect” means failure to provide goods and services necessary to
avoid physical harm, mental anguish, or mental illness.
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7.
On April 24, 2000, Petitioner neglected M.R. by failing to properly test the water
temperature before placing the resident in the bathtub and by failing to timely respond to M.R.’s
attempts to get out of the bathtub. Petitioner’s neglect caused pain to the resident, as evidenced
by M.R.’s screaming and injury in the form of first and second degree burns to her back, right
shoulder, and right buttock.
8.
Respondent did not err in substantiating the finding of neglect against Petitioner with
respect to Resident M.R.
DECISION
The Respondent did not err when it notified Petitioner of its intent to enter a substantiated
finding of neglect by Petitioner of Resident M.R. in the Health Care Personnel Registry.
ORDER AND NOTICE
The North Carolina North Carolina Department of Health and Human Services, Division
of Facility Services, Health Care Personnel Registry Section 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 16th day of October, 2001.
_______________________________
Melissa Owens Lassiter
Administrative Law Judge
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