FILED

OFFICE OF

ADMINISTRATIVE HEARINGS

«ClockedText»

STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS
COUNTY OF PITT 06 DHR 2418
Gregory Majercik ) DECISION

Petitioner ))

vs. ))))

DHHS, Division of Facility Services

Respondent
THIS MATTER came on for hearing before the undersigned, Donald W. Overby, Administrative Law
Judge, on June 21, 2007, in Greenville, North Carolina.

APPEARANCES

Petitioner: Gregory Majercik

306 Queen Street

P.O. Box 753

Griffin, NC 28530

For Respondent: Bethany A. Burgon

Assistant Attorney General

North Carolina Department of Justice

9001 Mail Service Center

Raleigh, NC 27699-9001

ISSUE
Whether Respondent acted erroneously when Respondent notified Petitioner of its intent to enter a
finding of neglect by Petitioner of a home health resident in the Health Care Personnel Registry:

On or about October 29, 2006, Gregory Majercik, a Health Care

Personnel, neglected resident (CA) by leaving the resident, requiring 1:1
supervision, unattended in the bathroom and the resident had a seizure
resulting in an injury to his forehead.

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

EXHIBITS

Respondent’s exhibits 1-8; 11-14; 17-18 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 sworn testimony of
witnesses, the undersigned makes the following:

FINDINGS OF FACT

At all times relevant to this matter Petitioner, Gregory Majercik, was employed as a developmental
technician at the Caswell Center in Kinston, North Carolina, which is a home health care facility for the
physically and mentally disabled and therefore subject to N.C. Gen. Stat. §131E-256. (Resp. Exhs. 1
&2)

Petitioner was responsible for Resident CA on October 29, 2006. Resident CA’s Annual Habilitation
Plan lists his supervision level as one to one throughout his daily routine until he is asleep. (Resp. Exh.
1 & 2)

Resident CA has a history of seizures which varies in frequency. During September and October 2006,
Resident CA had been having seizures, and Petitioner witnessed two seizure episodes. Petitioner was
not made aware of any other seizure activity. If the seizures were relatively frequent in occurrence, the
protocols in use at the time would demand that Petitioner be made aware of the seizure activity.
Petitioner was not made aware of any protocol in October 2006 wherein Resident CA was to remain
seated while in the bath. Petitioner was aware that efforts had been made to have Resident CA use a
seat in the bath without success and was therefore discontinued.

5. Petitioner helped Resident CA begin his bathing routine on the evening of October 29, 2006. He
helped Resident CA gather his bathing supplies, turned on the faucet, and assisted him into the bathtub.
Petitioner turned on the bath faucet rather than the shower because the staff tried to encourage Resident
CA to bathe due to a recent fall in the tub. Petitioner then stood outside the bathroom door in the
bedroom because Resident CA preferred privacy while bathing. (Resp. Exh. 1 & 2)

6. While Petitioner was standing in the bedroom at the bathroom door, he heard a sound like something
falling and then a groan. Petitioner immediately entered the bathroom and found Resident CA in the
beginning phases of a seizure. He had a scratch on his forehead. Petitioner used a washcloth to stop the
bleeding. Once the seizure stopped, Petitioner helped Resident CA out of the bathtub. Resident CA had
a bowel movement during the seizure, and he tried to get back into the tub to clean himself. Petitioner
kept him out of the tub and cleaned him off. Petitioner did a quick body check of Resident CA, helped
him into undergarments, and got him into bed. (Resp. Exhs. 1 &2)

7. Petitioner reported the incident as quickly as possible, filled out an incident report and had the nurse
check on Resident CA once he was asleep. Petitioner then returned to the bathroom and finished
cleaning up the bowel movement. (Resp. Exhs. 1, 2 & 7)

8. During October 2006, Marsha Higgins was the MR Unit Director at the Caswell Center, with a total
of twenty five years at the center. Ms Higgins acknowledges that there was continuing confusion about
the care of Resident CA while he was bathing, which prompted a team meeting.

9. Some of the staff at the Caswell Center met earlier in October to have a habilitation consultation
specifically related to Resident CA’s seizure occurrences while bathing. The staff decided resident CA
should be encouraged to bathe rather than shower. The staff also decided they should look into padding
Resident CA’s shower. The staff agreed Resident CA should continue to be monitored while bathing.
(Resp. Exh. 8) There was no specific definition of what comprised “monitoring” for Resident CA.
There is no evidence that Petitioner was a participant in that meeting or that the information was given
to the rest of the staff, Petitioner in particular.

10. The Caswell Center’s Interdisciplinary Process Manual explains that one-to-one supervision allows
a staff member to be assigned to only one individual and that staff member should not be responsible
for any other individual. The staff member is to remain with the individual at all times and cannot leave
unless another staff member takes responsibility. “Supervision in the bedroom and bathroom needs to
be specified. Proximity to the individual needs to be specified. (Emphasis added) Documentation
should include any environmental consideration or spatial requirements, for example: ‘John should be
within arm’s reach’ or ‘John should remain within 10 feet of staff.’” (Resp. Exh. 5)

11. The Caswell Center’s Interdisciplinary Process Manual has a specific section for “visual
supervision” which provides that in providing privacy to an individual patient, staff may be behind a
closed curtain or door for toileting so long as staff is in the immediate area.

12. The “environmental supervision” portion of the Manual does not require the individual patient to be
in full view of the staff member at all times.
13. Supervision for Resident CA was one to one on October 29, 2006, but supervision and proximity to
Resident CA in the bathroom in particular was not specified.

14. Ms. Higgins also acknowledged that if it was her decision, the Petitioner would not have been
dismissed but for bruising found on Resident CA two days after the event of October 29, 2006, which
was not substantiated as neglect by anyone.

15. The Caswell Center dismissed Petitioner as a Developmental Technician on December 1, 2006 for
unacceptable personal conduct due to failure to provide Resident CA with one-on-one supervision
during bathing. (Resp. Exh. 13)

16. At all times relevant to this matter, Rebecca Hunt-Hawley (“Hawley”) is an investigator with the
Health Care Personnel Registry. Ms. Hawley is charged with investigating allegations against health
care personnel in the northeastern region of North Carolina. Accordingly, she received and investigated
the allegation that Petitioner had neglected Resident CA at the Caswell Center.

17. Ms. Hawley reviewed the facility investigation and the resident information. She also conducted
her own investigation and interviewed the people involved with the incident. Hawley concluded her
investigation and substantiated neglect. (Resp. Exh 17)

18. Neglect is the “failure to provide goods and services necessary to prevent physical harm, mental
anguish and mental illness.”

19. Ms. Hawley substantiated the allegation of neglect against Petitioner because in her opinion
Petitioner neglected Resident CA by failing to provide one-on-one supervision while Resident CA was
bathing resulting in physical harm as evidenced by the injury to the forehead. (Resp. Exh. 17)

20. Ms. Hawley’s investigation conducted in January 2007, more than two months after the incident at
issue, revealed that there was still confusion among staff members about the care of Resident CA while
he was bathing. Her investigation also revealed that during a fall by Resident CA earlier in October
2006, the staff member had been outside the bathroom while CA was bathing.

21. Petitioner was notified by letter that a finding of neglect would be listed against his name in the
Health Care Personnel Registry. Attached to the letter was the Entry of Finding, which is the exact
substantiated finding as it will appear on the Health Care Personnel Registry. The letter also notified
Petitioner of his appeal rights. (Resp. Exh. 18)

22. There was no testimony or documentation provided at the hearing to specify what was meant in the
habilitation plan for Resident CA when it said he must be “monitored” in the bathroom. Furthermore,
there was no evidence to show the staff had been in-serviced with the direction to stay in the bathroom
while Resident CA was bathing.

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 Support Assistant working in a residential care facility, Petitioner is a health care personnel and
is subject to the provisions of N.C. Gen. Stat. § 131E-256.

4. “Neglect” is defined as “a failure to provide goods and services necessary to avoid physical harm,
mental anguish or mental illness.” 10A N.C.A.C. 13O.0101, 42 CFR 488.301.

On or about October 29, 2006, Petitioner did not willfully neglect Resident CA by standing outside the
bathroom door of a one-on-one supervision. The Caswell Center’s Interdisciplinary Process Manual
defines one-to-one supervision and specifically states that “[s]upervision in the bedroom and bathroom
needs to be specified. Proximity to the individual needs to be specified.” (Emphasis added)

6. Supervision for Resident CA was one on one on October 29, 2006, but supervision and proximity to
Resident CA in the bathroom in particular was not specified.

7. There is no evidence as to what was meant in the habilitation plan for Resident CA when it said he
must be “monitored” in the bathroom. Furthermore, there is no evidence to show the staff had received
in-serviced training with the direction to stay in the bathroom while Resident CA was bathing.

8. It is unreasonable to hold Petitioner to a standard of care which is ill defined and is subject to
confusion and multiple interpretations by staff.

9. Respondent acted erroneously because there is not sufficient evidence to support Respondent’s
conclusion that Petitioner neglected Resident CA.

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 neglect at Petitioner’s name on the Health Care
Personnel Registry should 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 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 30th day of July, 2007.

_________________________________

Donald W. Overby

Administrative Law Judge