STATE OF NORTH CAROLINA
IN THE OFFICE
OF ADMINISTRATIVE HEARINGS
COUNTY OF DAVIE
06 DHR 0358
______________________________________________________________________________
MICHAEL GLENN SHELL,
Petitioner,
)
)
)
v.
)
DECISION
)
BOARD OF HEALTH CARE WORKERS )
REGISTRY, DEPARTMENT OF HEALTH, )
AND HUMAN SERVICES,
)
Respondent.
)
______________________________________________________________________________
THIS MATTER came on for hearing before the undersigned Administrative Law Judge,
Augustus B. Elkins II, on April 18, 2005, in High Point, North Carolina.
APPEARANCES
For Petitioner:
Michael Glenn Shell, Pro se
Mocksville, North Carolina
For Respondent: Susan K. Hackney
Assistant Attorney General
N.C. Department of Justice
9001 Mail Service Center
Raleigh, North Carolina 27699-9001
ISSUE
Whether Respondent substantially prejudiced Petitioner’s rights and acted arbitrarily or
capriciously when it notified Petitioner of its intent to enter a finding of abuse by Petitioner in the
Health Care Personnel Registry.
APPLICABLE STATUTES AND RULES
N.C. Gen. Stat. § 131E-256
N.C. Gen. Stat. §150B-23
42 CFR § 488.301
10A N.C.A.C. 13O.0101
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EXHIBITS
For Petitioner:
Petitioner’s exhibits 1-5 were admitted into the record.
For Respondent:
Respondent’s exhibits 1-14 and 16 were admitted into the record.
BASED UPON careful consideration of the sworn testimony of the witnesses presented at
the hearing 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 evidence
received in this matter, the Undersigned makes the following:
FINDINGS OF FACT
1.
Michael Glenn Shell, during the time of the incident which is the subject of this
hearing, was a mental health behavioral counselor (health care personnel) employed in WinstonSalem, North Carolina at Wake Forest University Baptist Behavioral Health, Inc. Behavioral Health
is a residential facility for adolescent male sex offenders, and therefore subject to N.C. Gen. Stat.
§131E-256. Mr. Shell’s duties centered on supervising the residents. At the time of the incident,
Petitioner was 5'11" in height and weighed approximately 170 pounds.
2.
Petitioner was trained on abuse and was aware of what constitutes abuse. Petitioner
was trained in CPI, a nonviolent crisis intervention method to restrain residents who are experiencing
behavioral issues. Petitioner understood that the first step in CPI is to talk with the resident. If that
fails to de-escalate the resident, the next step is to involve another staff member.
3.
At all times relevant to this incident, Ron Neil was a resident counselor at Behavioral
Health. His duties included helping residents with their day-to-day needs. At all time relevant to
this incident, John Hauber was the lead nurse (Director of Nursing) at Behavioral Health.
4.
On April 7, 2003, Petitioner and Ron Neil escorted several children from their
residential facilities to a classroom about 100 yards away. Petitioner’s duty was to direct the
students, keep them on task and to keep the unit safe.
5.
Tony Poindexter was the teacher in the classroom on the morning of April 7, 2003.
There were six students in the classroom, along with the two counselors, Petitioner and Ron Neil.
(Resp. Exh. 2)
6.
RS, a twelve-year old male resident in the facility, was among the children in the
classroom on the morning of April 7, 2003. RS had a history of sexually aggressive and generally
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aggressive behavior. RS was 5'1" tall and weighed approximately 126 pounds at the time of his
admission into the facility on March 13, 2003. (Resp. Exh. 6)
7.
While in the adolescent classroom on April 7, 2003, RS became disruptive. He was
out of his seat, walking around the classroom, and taking things from other children. RS became
louder and started throwing objects at peers and staff. Petitioner redirected RS several times, asking
him to sit down. Petitioner and Mr. Neil moved RS to the part of the classroom closest to a door.
Petitioner and Mr. Neal kept RS in that area (out of view of the other students) to keep him from
disrupting the class. The other residents were told to ignore RS and continue with class. (Resp. Exh.
2, 5) RS grabbed an open bottle of water and slung the water onto the tile floor near the door to the
classroom. (Resp. Exh. 1, 2, 3, 4, 5)
8.
During this time, RS had on two shirts. After RS threw water onto the floor,
Petitioner told him he needed to clean the water up off the floor. RS took one shirt off, and
Petitioner ended up holding it. Petitioner proceeded to use RS’s shirt to wipe up the water from the
floor. (Resp. Exh. 2, 3, 4, 5)
9.
A bathroom was next to the classroom and paper towels from the bathroom could
have been used to clean up the water. In addition, a utility room that housed mops and buckets was
located just down the hall from the classroom. Often, staff would use the supplies from this closet to
clean up if there was a mess.
10.
RS asked Petitioner to quit using his shirt to wipe up the water. He was angry that
Petitioner was using his shirt to clean up the water from the floor so he laid down on the floor.
(Resp. Exh. 3, 5, 7)
11.
Petitioner testified that RS tried to crawl under his legs and in doing so knocked
Petitioner off balance. In his statement to the Health Care Personnel Registry investigator, RS
admitted to lying down on the floor. (Resp. Exh. 7) In Mr. Neil’s statement he said that RS had a
tantrum and laid out on the floor. (Resp. Exh. 3) In his conference with Mr. Hauber (Director of
Nursing) on April 7, 2003, Petitioner indicated that RS lay down on the floor and took off his yellow
shirt. (Resp. Exh. 16)
12.
At the hearing, Petitioner testified that RS was in the doorway holding on to the
doorframe. Mr. Neil testified, however, that RS was further in the classroom and too far away to be
holding on to the doorframe. Mr. Poindexter testified that RS was further in the classroom, not very
close to the doorway. In his conference with Mr. Hauber, Petitioner first denied touching RS, then
stated that he grabbed RS’s legs to pull him away from objects he could throw. (Resp. Exh. 16)
13.
While RS was on his back on the floor, Petitioner took RS by his ankles and used
RS’s body to wipe up the water from the floor. Petitioner moved RS from the right to the left, left to
right, right to left, back and forth in a mopping motion. As he was using RS as a mop, Petitioner
said, “I told you that you would clean this water up.” (Resp. Exh. 1, 3, 4, 5)
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14.
In the facility investigation, Mr. Hauber spoke with Petitioner, Mr. Neil, Mr.
Poindexter and Ms. Walker. Mr. Neil and Mr. Poindexter both described Petitioner’s action as
though he were mopping the floor with RS. Mr. Hauber also spoke with the other students in the
classroom and they verified what Mr. Neil and Mr. Poindexter observed and documented.
15.
In his conference with Mr. Hauber, Petitioner indicated that RS did not laugh during
the incident nor did he seem to enjoy it. (Resp. Exh. 16) Mr. Neil did not remember RS laughing
during the incident. However, Mr. Poindexter remembers that RS laughed and in his statement RS
said he laughed. Mr. Poindexter believed RS laughed because he was upset but trying to act like it
didn’t matter. Mr. Poindexter did state that as RS appeared to get cold from the water that he got “a
little bit more upset,” and began yelling more. RS told the investigator that he laughed because he
“wanted to be tough about it.” (T. p. 164; Resp. Exh. 1, 7) Mr. Neil testified that RS became angrier
and for several minutes “became pretty destructive.” (T. p. 86) Mr. Neil, now a licensed
professional counselor, testified that being treated as a mop, tends to further a child’s lack of respect
for authority.
16.
Mr. Neil testified that before this incident he had never seen Petitioner act
inappropriately with the residents and that this incident surprised him. Mr. Poindexter believed
Petitioner had good rapport with the residents.
17.
RS asked to go back to his room to change his shirt but his request was denied. This
made him angrier because he was wet and cold. (Resp. Exh. 1, 2) Mr. Neil and Petitioner moved RS
to another classroom (“the time out room”) across the hall. Mr. Neil relieved Petitioner and began
talking to RS. During the time Mr. Neil was with RS in the time out room, Mr. Neil was in the room
with RS. The door to the room was opened to the inside of the room and Mr. Neil was standing
against a wall in the room. Mr. Neil discussed RS’s behavior with him but also talked about other
things to divert him and calm him down. RS alternated between being compliant and being defiant.
(Resp. Exh. 3, 5)
18.
RS asked Mr. Neil if he could go to the bathroom. RS was told by Mr. Neil that he
could not go to the bathroom until his behavior improved. When Ms. Walker came down the hall,
RS asked her about going to the bathroom and after encouraging RS to “get his behavior together”
she deferred the question to Mr. Neil. Ms. Marcia Walker was a resident counselor at the facility at
the time. Mr. Neil attempted to process with RS but RS scratched and kicked Mr. Neil. At this
point, Mr. Shell relieved Mr. Neil. (Resp. Exh. 5) At the time Petitioner relieved Mr. Neil, RS had
calmed down to some extent, but he was still disruptive. RS would “calm down and ramp up” at
various points (T. p. 91)
19.
Mrs. Walker came down the hallway again and observed Petitioner sitting in front of
the door. RS asked again to use the bathroom but as with Mr. Neil, his behavior was such that he
was not allowed to leave. RS yelled across the hallway to Mrs. Walker asking to go to the bathroom
and when she went to the door of the time out room (twice), Petitioner would not allow RS to leave
due to his continuing behavior. A few minutes later Petitioner told Mrs. Walker to come observe RS
who was urinating on the floor of the time out room. (Resp. Exh. 5)
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20.
On April 7, 2003, Mr. Hauber was asked by his supervisor (Mr. Leach) to investigate
this matter that had been reported to him by Mrs. Walker who was concerned that “some
inappropriate care was given in the school area.” (T. p. 129)
21.
Mr. Hauber arrived at the time out room and observed Petitioner sitting in a chair in
the doorway of the time out room. RS appeared calm. (Resp. Exh. 5)
22.
According to Mr. Hauber there are two types of seclusion: physical and in intent.
Physical seclusion occurs when a resident is put in a locked room and could not get out unless
someone opened the door from the exterior of the room. Blocking a doorway without allowing an
exit point is classified as seclusion in intent. In order to put a child in seclusion, a doctor’s order is
required. A registered nurse has the authority to initiate a seclusion but must immediately contact a
physician to obtain a medical order. A seclusion is an emergency measure taken to prevent harm to
the resident or others. (Resp. Exh. 5)
23.
Petitioner indicated to Mr. Hauber that he realized his behavior was a restrictive
intervention. Petitioner indicated to Mr. Hauber that he used this intervention for approximately ½
hour. Petitioner stated to Mr. Hauber that he did not want to let RS out of the time out room because
it would be giving him what he wanted in the first place. RS was continuing to be disruptive and
defiant. (Resp. Exh. 5). Mr. Neil also did not let RS out of the room when he (RS) asked to go to
the bathroom.
24.
Petitioner testified that after about twenty minutes, RS calmed down. Petitioner
stated that once RS calmed down, he did not make him stay in the time out room but took him back
to the unit. Petitioner testified that RS calmed down when Mr. Hauber showed up and they had
enough staff to take RS back to the unit.
25.
Debra Hockaday is an investigator with the Nurse Aide Registry/Health Care
Personnel Registry. Ms. Hockaday is charged with investigating allegations against health care
personnel. She received and investigated the allegation that Petitioner had abused a resident (RS) at
Behavioral Health.
26.
Ms. Hockaday was unable to interview Petitioner because his telephone number was
no longer in effect. She wrote a letter to Petitioner, asking him to contact her but the letter was
returned, marked “unclaimed.” Petitioner had an older address listed with Respondent and he did not
think of changing it when he moved.
27.
Mr. Neil and Mr. Poindexter were interviewed by Ms. Hockaday and gave statements
to the Health Care Personnel Registry.
28.
Ms. Hockaday also interviewed Marsha Walker, a staff member at Behavioral Health.
Ms. Walker worked as a “floater,” rotating between the middle school class room and the high
school classroom. She did not observe the “mopping” incident but did observe RS in the time out
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room. Ms. Walker observed Mr. Shell sitting in front of the doorway of the timeout room. Ms.
Walker did not provide any new information, different from other witnesses.
29.
Ms. Hockaday interviewed RS by telephone on July 24, 2003, a little over three
months after the incident. She arranged for RS to talk with her from a private office in Behavioral
Health with no other facility staff present. At first RS had difficulty remembering the incident; he
had such a history of acting out that he couldn’t separate when any particular events took place.
30.
When asked if Petitioner had ever touched him, RS replied no. When Ms. Hockaday
mentioned that she had heard that Petitioner pulled RS through water, RS replied, “Oh, yeah, he
did,” in a loud voice. He then proceeded to tell her the details, informing her that Petitioner grabbed
him by his ankles while he was on his back, pulled him through the water and used him as a mop.
RS told Ms. Hockaday that he lay down on the floor when he did not get his way. RS recalled that
he lay down on the floor on his own accord prior to Petitioner using as a mop. RS admitted to
laughing while he was on the floor but said he did this to be cool. Ms. Hockaday believed this was
characteristic of children RS’s age. RS told Ms. Hockaday that Petitioner hurt his back at his
shoulder blades by dragging him back and forth. He also said that the incident made him angrier and
more frustrated.
31.
Ms. Hockaday reviewed RS’s medical record and Petitioner’s personnel file during
her investigation.
32.
Petitioner was notified by letter that a finding of abuse would be listed against his
name in the Health Care Personnel Registry.
33.
Judith Davis, Director of Rehabilitation at Autumn Care in Mocksville, North
Carolina testified on behalf of Petitioner. Autumn Care is a skilled nursing facility and rehabilitation
center. Petitioner began working in April 2003 on an as needed basis. Petitioner is a licensed
physical therapy assistant and his job at Autumn Care was to carry out physical therapy evaluations,
and plans of treatment dealing with any mobility functions. Petitioner began working full time in
June 2003 but had to leave at times for training with the National Guard.
34.
Ms. Davis testified that Petitioner was a very valued employee. She found Petitioner
to be a caring and concerned employee. Ms. Davis found Petitioner to be “calm and collected,” and
was very good with talking with people. She observed that he had infinite patience, and that he
continued to work with patients that others believed had reached their maximum potential; and they
had improved.
35.
Ms. Davis stated that Petitioner had never displayed any type of abusive behavior
toward residents at Autumn Care. She believed he usually took all methods to avoid confrontation
and did not advocate the use of restraints. She stated he had been a strong advocate for patient
rights.
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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. All
parties have been correctly designated and there is no question as to misjoinder or nonjoinder.
2.
The parties received proper notice of the hearing in the matter. To the extent that the
findings of fact contain conclusions of law, or that the conclusions of law are findings of fact, they
should be so considered without regard to the given labels.
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/nurse aides working in health
care facilities/nursing facilities against whom a finding of abuse, neglect, or misappropriation of
resident and/or facility property has been substantiated
4.
All patients in residential care have the absolute right to be free from abuse. Because
of the consequences that can result to an accused Petitioner, who is listed in a Registry for abuse, it is
incumbent upon the Respondent to substantiate its investigation and meet its burden of evidence to
support such findings of abuse in its investigation by a preponderance of the evidence. Black’s Law
Dictionary cites that “preponderance means something more than weight; it denotes a superiority of
weight, or outweighing.” The finder of fact cannot properly act upon the weight of evidence, in
favor of the one having the onus, unless it overbear, in some degree, the weight upon the other side.
5.
“Abuse” is defined as “the willful infliction of injury, unreasonable confinement,
intimidation, or punishment with resulting physical harm, pain or mental anguish.” 42 C.F.R.
488.301, 10A N.C.A.C. 13O.0101.
6.
The greater weight of the evidence in this matter reveals that on April 3, 2003,
Petitioner willfully punished and intimidated resident RS. Petitioner’s act of using RS as a mop to
wipe up water from the floor of a classroom was intimidation and punishment. Petitioner suffered
pain in his shoulder blades from being drug back and forth through the water on his back and mental
anguish as evidenced by his increased agitation and defiance.
7.
The Respondent has failed to prove by a preponderance of the evidence that Petitioner
abused RS by moving him to another room, and prohibiting the resident from leaving the room to
use the bathroom. Respondent’s evidence in its investigation does not overbear the weight of the
evidence presented by Petitioner and more importantly, taken in whole. Petitioner’s actions
regarding this allegation do not appear abusive in light of the actions of RS and particularly in light
of the actions of a fellow residential counselor who was not listed in the registry.
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BASED UPON the foregoing Findings of Fact and Conclusions of Law, the Undersigned
makes the following:
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 is affirmed with modifications. The entry should only show, that, “On or
about 4/7/03, Petitioner, a health care personnel, abused resident R.S. by holding the resident’s
ankles while he was lying on his back on the floor and dragging the resident through spilled water in
a mopping motion.”
NOTICE
The agency making the final decision in this contested case is required to give each party an
opportunity to file exceptions to this Decision issued by the Undersigned, and to present written
arguments to those in the agency who will make the final decision. N. C. Gen. Stat. § 150B-36(a).
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, giving due regard to the opportunity of the Administrative
Law Judge to evaluate the credibility of witnesses. 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. Every finding of fact not specifically
rejected as required by Chapter 150B shall be deemed accepted for purposes of judicial review. 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 establishing that the new finding of fact is supported by a preponderance of the evidence
in the official record.
The agency that will make the final decision in this case is the North Carolina Department of
Health and Human Services. The agency is required by N.C.G.S. 150B-36(b) to serve a copy of the
final decision on all parties and to furnish a copy to the parties’ attorneys of record and to the Office
of Administrative Hearings.
IT IS SO ORDERED.
This the 27th day of July, 2006.
___________________________
Augustus B. Elkins II
Administrative Law Judge
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