NANCY YARBROUGH ALLEN,
Petitioner,
v.
NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, DIVISION
OF FACILITY SERVICES,
Respondent.
Daniel F. Read and Maria J. Mangano, for petitioner-appellant.
Attorney General Roy Cooper, by Assistant Attorneys General
June S. Ferrell and Jane L. Oliver, for respondent-appellee.
BIGGS, Judge.
This appeal arises out of the entry of a finding of abuse of
a patient by petitioner (Nancy Allen) a certified nurse aide, in
the Nurse Aide Registry and the Health Care Personnel Registry.
The evidence tends to show that petitioner and Misty Gray, another
nurse aide, were transferring a nursing home resident, M.M., (the
resident's initials are used in this opinion to preserve her right
to privacy under N.C.G.S. § § 131D-2(b)(4) and -21(6)), from her
wheelchair to a shower chair for a bath, when M.M. became combative
and hit petitioner on the hand. After the transfer was made, Gray
went to the sink to wash her hands. As petitioner was removing
M.M.'s sock, M.M. kicked her. In response, petitioner said, “If
you kick me, I will knock the f--king hell out of you.” Grayturned around and observed M.M. kicking petitioner's legs. Gray
finished washing her hands, and exited the room to report
petitioner's actions to Staff Development Coordinator Nurse Mariel
Ramos. Later that day, petitioner approached Gray and asked, “You
told didn't you?” Gray denied having reported the incident and
told petitioner that Ramos had been standing outside of the shower
room door when the incident occurred.
Ramos subsequently informed Susan King, the Director of
Nursing, of the incident. After King confirmed Ramos' account of
the incident with Gray, King went to the patient's unit to further
investigate. King examined M.M. and although she noted some old
bruises, she did not observe any new injuries. King's attempts to
interview M.M., who had been diagnosed with Alzheimer's and seemed
confused, were unsuccessful. King then held a meeting with
petitioner, to obtain her version of the incident. Ramos and Robin
Phillips, the Assistant Director of Nurses, were also present at
this meeting. When confronted with the allegation that she had
cursed M.M. in violation of nursing home policy, petitioner
responded, “That's a damn lie.” Petitioner indicated that she knew
that it was Gray who had reported her. When King revealed that
Gray told her that petitioner had threatened to “knock the fu--king
hell out of [M.M.],” petitioner denied making such a statement.
Petitioner explained that M.M. kicked at her and in response she
said, “You've kicked the hell out of my hand and, if you kick me
again, I'm going to have to pinch your foot off.” King admonished
petitioner, explaining that she considered the allegation to bevery serious. She reiterated to petitioner that staff was not
permitted to curse or threaten residents of the nursing home. In
response to King's request, petitioner submitted a written
statement of the incident, in which she said that M.M. tried to
kick her, and that she told M.M., “You knocked the hell out of my
hand. Quit trying to kick me. If you kick me in the face, I don't
know what I will have to do to you.”
King reported the incident to Health Care Personnel Registry
Section (hereinafter “the HCPR section”) of the Department of
Health and Human Services, Division of Facility Services (DHHS).
Bonnie Nottoli, R.N., an investigator for the HCPR section, was
assigned to investigate the matter. During her investigation,
Nottoli interviewed petitioner, King, Phillips, Ramos, and Betty
Stevens, a former Quality Assurance Director and Administrator at
the nursing home who had previously worked with petitioner. When
interviewed by Nottoli, petitioner told her that the statement she
made to M.M. was, “If you kick me in the face, little girl, I just
don't know what I might have to do to you.” Notolli also reviewed
various nursing home documents pertinent to the incident. The
investigator was unable to locate Gray for an interview.
Based upon the information obtained during Nottoli's
investigation, the HCPR section concluded that on 12 August 1999,
petitioner verbally abused M.M. by stating, “You've kicked the hell
out of me and if you do it again I'll have to pinch your foot off.”
By letter dated 13 March 2000, the HCPR section notified petitioner
that an allegation of abuse had been substantiated against her, andthat the substantiated allegation would be entered into the Nurse
Aide Registry and the Health Care Personnel Registry.
Petitioner filed a petition for a contested case hearing in
the Office of Administrative Hearings to appeal the agency's
decision on 24 March 2000. A hearing was conducted before an
Administrative Law Judge (ALJ) on 24 May 2000. The ALJ recommended
that the HCPR section's decision be upheld. Both petitioner and
the HCPR section filed exceptions to the recommended decision,
whereupon DHHS issued a final decision, affirming the HCPR
section's determination that petitioner abused M.M. on the morning
of 12 April 1999. Petitioner petitioned the Orange County Superior
Court for judicial review, pursuant to N.C.G.S. § 150B-45. After
hearing the arguments of counsel and reviewing the evidence of
record, the superior court affirmed the final decision of DHHS.
Petitioner appeals.
This Court must now review the superior court's order for
errors of law. Crowell Constructors, Inc. v. N. C. Dep't of
E.H.N.R., 107 N.C. App. 716, 719, 421 S.E.2d 612, 613 (1992), disc.
review denied, 333 N.C. 343, 426 S.E.2d 704 (1993). In conducting
such review, we first “'determine whether the trial court exercised
the proper scope of review,'” and then “'whether the trial court
correctly applied this scope of review.'” Jordan v. Civil Serv.
Bd. of Charlotte, 137 N.C. App. 575, 577, 528 S.E.2d 927, 929
(2000) (quoting Whiteco Outdoor Adver. v. Johnston County Bd. of
Adjust., 132 N.C. App. 465, 468, 513 S.E.2d 70, 73 (1999)). The
appropriate standard of review turns upon the nature of the errorasserted by appellant. “If appellant argues that the agency's
decision was based on an error of law, then 'de novo' review is
required. If, however, appellant questions (1) whether the
agency's decision was supported by the evidence, or (2) whether the
decision was arbitrary or capricious, then the reviewing court must
apply the 'whole record' test.” This Court's scope of review “is
the same as that utilized by the trial court.” Wallace v. Board of
Tr., 145 N.C. App. 264, 274, 550 S.E.2d 552, 558, disc. review
denied, 354 N.C. 580, 559 S.E.2d 553 (2001).
“'De novo' review requires a court to consider a question
anew, as if not considered or decided by the agency.” Dorsey v.
UNC-Wilmington, 122 N.C. App. 58, 62, 468 S.E.2d 557, 559, cert.
denied, 344 N.C. 629, 477 S.E.2d 37 (1996). In conducting de novo
review, “[t]he court may freely substitute its own judgment for
that of the agency.” Dorsey, 122 N.C. App. at 62, 468 S.E.2d at 559
(citation omitted). Conversely, “'[th]e “whole record” test does
not allow the reviewing court to replace the [Agency's] judgment as
between two reasonably conflicting views, even though the court
could justifiably have reached a different result had the matter
been before it de novo.'” North Carolina State Bar v. Nelson, 107
N.C. App. 543, 550, 421 S.E.2d 163, 166 (1992)(quoting Thompson v.
Board of Education, 292 N.C. 406, 410, 233 S.E.2d 538, 541 (1977)),
aff'd, 333 N.C. 786, 429 S.E.2d 716 (1993). Indeed, the 'whole
record' test requires only that the trial court “'examine all
competent evidence (the “whole record”) in order to determine
whether the agency decision is supported by 'substantialevidence.'” ACT-UP Triangle v. Commission for Health Services, 345
N.C. 699, 706, 483 S.E.2d 388, 392 (1997) (quoting Amanini v. N.C.
Dept. of Human Resources, 114 N.C. App. 668, 674, 443 S.E.2d 114,
118 (1994)).
By her first, second, fourth, and eighth assignments of error,
petitioner contends that (1) the superior court erred in affirming
the DHHS's sixth finding of fact; (2) the court's review was
limited to issues of law, and therefore, the court erred in making
its own factual findings, and (3) the sixth finding of fact did not
form the basis of the court's decision, and therefore, the finding
was “irrelevant and unduly prejudicial.”
These assignments of error and arguments require application
of the “whole record” test, which the record reveals was the
standard employed by the superior court. We next determine whether
the superior court properly applied the “whole record” test in its
review of DHHS's final order.
DHHS's sixth finding of fact was as follows:
On August 12, 1999 while Ms. Gray and
Petitioner were transferring Resident M.M.
from her wheelchair to the shower chair, the
resident became combative and hit Petitioner
on the hand. Petitioner responded to the
resident by stating, “If you kick me, I will
knock the f--king hell out of you.” Ms. Gray
promptly reported the incident to Ms. Phillips
and Ms. King.
Petitioner contends that DHHS erred in making such a finding (and,
in turn, that the superior court erred in affirming that finding)
because the ALJ failed to make such a finding in his recommended
decision. We note, however, that petitioner has failed to include the ALJ's recommended decision to facilitate review of this
contention, in violation of N.C.R. App. P. 9(a)(2).
It is well settled that the appellant has the duty to see that
the record on appeal is properly compiled, and to make error appear
on the face of the record. Tucker v. General Tel. Commission. of
the Southeast, 50 N.C. App. 112, 118, 272 S.E.2d 911, 915 (1980).
Absent such a showing, this Court must presume that the tribunal
below ruled properly. State v. Alston, 307 N.C. 321, 341, 298
S.E.2d 631, 645 (1983). In the instant case, where petitioner has
failed to include a copy of the ALJ's recommended decision, and the
record shows that the superior court reviewed the official record
in this case, and weighed its contents, we will not speculate and
assume error where none appears. See State v. Williams, 274 N.C.
328, 333, 163 S.E.2d 353, 357 (1968)(“An appellate court is not
required to, and should not, assume error by the trial judge when
none appears on the record before the appellate court[]”).
Further, even if the recommended decision were properly
included in the record, and it revealed that, as petitioner
contends, the ALJ did not include the subject finding in his
recommended decision, we note that a recommended decision is only
advisory. See Gray v. Orange County Health Dep't, 119 N.C. App.
62, 72, 457 S.E.2d 892, 899, disc. review denied, 341 N.C. 649, 462
S.E.2d 511 (1995) (G.S. § 150B-43 provides only judicial review of
final agency decisions, and recommended decisions of the ALJ and
State Personnel Commission were merely advisory); see also Davis v.
N.C. Dept. of Human Resources, 110 N.C. App. 730, 737, 432 S.E.2d132, 136 (1993) (“an agency has the ability to reject the
recommended decision of an administrative law judge”). “Even
though the administrative law judge ha[s] already made findings of
fact and conclusions of law, the Personnel Commission ha[s] the
ability to make its own findings of fact and conclusions of law if
it cho[oses] to do so.” Id. An agency (in this case DHHS), as the
ultimate factfinder, is vested with full authority to accept or
reject any or all of the findings of fact and conclusions of law
contained in a recommended decision of an administrative law judge,
and make its own findings and conclusions. Eury v. N.C. Employment
Security Comm'n, 115 N.C. App. 590, 597, 446 S.E.2d 383, 388, disc.
review denied, 338 N.C. 309, 451 S.E.2d 635 (1994). Accordingly,
DHHS cannot be said to have erred in making finding of fact #6, and
the superior court cannot be said to have erred in affirming that
finding, merely because the finding was not made by the ALJ.
More importantly, after reviewing the record as it is before
us, we conclude that there was substantial evidence to support the
subject finding. Petitioner denied having made such a statement
during the nursing home's internal investigation and the HCPR
section's subsequent investigation. However, Gray, who was present
at the time of the 12 August 1999 incident, immediately reported
the incident to her superiors at the nursing home. In addition,
Gray testified regarding the incident. At all times, she
maintained that petitioner threatened to “knock the f--cking hell
out of [M.M],” if M.M. kicked her. In light of this evidence, we
conclude the superior court did not err in affirming DHHS's sixthfinding of fact.
As to petitioner's argument that the superior court erred in
making its own finding of fact regarding the statement made to M.M.
during the 12 August 1999 incident, we note that the superior
court's finding was merely a recapitulation, as is permitted, of
DHHS's finding of fact #6. The court was merely reiterating this
finding in the course of conducting a de novo review of
petitioner's claim that DHHS committed an error of law in
concluding that petitioner abused M.M. See Jordan, 137 N.C. App.
at 577, 528 S.E.2d at 929 (providing that it is the superior
court's duty to “make its own findings of fact and conclusions of
law” when conducting de novo review).
Finally, we reject petitioner's argument that finding of fact
#6 was irrelevant and highly prejudicial. Rule 401 of the Rules of
Evidence defines relevant evidence as that “evidence having any
tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable
than it would be without the evidence. N.C.G.S. § 8C-1, Rule 401.
As discussed earlier, there was competent evidence in the record to
support the finding and it was certainly probative of the ultimate
issue of whether petitioner abused M.M. In addition, petitioner
has failed to demonstrate prejudice. These assignments of error
are, therefore, overruled.
By her seventh and final assignment of error, petitioner
argues that the superior court erred in concluding that petitioner
abused M.M. Petitioner contends that, as a matter of law,petitioner's statement to M.M. is not sufficiently egregious to
constitute abuse.
As acknowledged by petitioner, the issue presented by this
assignment of error is one requiring de novo review, since
petitioner asserts that the court's decision was legally infirm.
The record shows that the superior court utilized de novo review in
addressing this issue on appeal from DHHS's final decision, and
therefore, we are left only to determine if the court properly
applied that standard. We look then at DHHS's decision to
determine whether an error of law was committed. See In re Appeal
by McCrary, 112 N.C. App. 161, 165, 435 S.E.2d 359, 363 (1993)
(“Where the trial court should have utilized de novo review, this
Court will directly review the agency's decision under a de novo
review standard[]”).
The 12 August 1999 incident was investigated by the HCPR
section, in accordance with N.C.G.S. § 131E-255 and 131E-256. See
N.C.G.S. § 131E-255-257 (2001) (enacted following Congressional
passage of the Omnibus Budget Reconciliation Act of 1987, 42 U.S.C.
§ 1395(c) et seq.). Federal regulations require that states list
substantiated findings of abuse, neglect and misappropriation of
resident property by nurse aides in their respective state
registries. 42 C.F.R. § 483.156. In order to participate in
Medicare and Medicaid programs, federal regulations require that
health care facilities comply with a federal prohibition against
hiring any nurse aide who has a finding of abuse, neglect, or
misappropriation of property on the Nurse Aide Registry. 42 C.F.R.§ 483.13(c)(1)(II)(B).
For purposes of investigating complaints of abuse, the HCPR
section has adopted the federal definition of abuse:
“Abuse” means the willful infliction of
injury, unreasonable confinement,
intimidation, or punishment with resulting
physical harm, pain or mental anguish.
42 C.F.R. § 488.301 (incorporated by reference at 10 N.C.A.C.
3B.1001(1)). Petitioner contends that the “single isolated, albeit
unwise and ill-advised remark” spoken by her to M.M. on 12 August
1999 could not have been intended to constitute “abuse,” under 42
C.F.R. § 488.301, as incorporated by reference at 10 N.C.A.C.
3B.1001(1). The State, however, submits that such a position is
wholly unsupported by any case or statutory law. In fact, the
State references 42 U.S.C. § 1395i-3(g)(1)(D), in support of a
contrary position. The State posits that this particular section
of the United States Code, which allows nurse aides who have a
single finding of neglect to apply to have that finding removed,
supports a conclusion that Congress did intend that a single
incidence of abuse be listed in the registry. We note also that
neither the absence of threatening gestures or physical contact by
the nurse aide, or the victim's awareness of resulting physical
harm or mental anguish, is dispositive. The cases referenced by
petitioner in support of arguments to the contrary involve either
physical contact or different definitions of abuse, and are,
therefore, neither instructive nor persuasive. As noted by the
Health Care Financing Administration, in responding to a publiccomment that there should be a requirement that a long-term care
resident actually perceive the conduct as abusive:
We do not accept this comment. Our obligation
is to protect the health and safety of every
resident, including those who are incapable of
perception or are unable to express
themselves. This presumes that instances of
abuse of any resident, whether cognizant or
not, cause physical harm, pain or mental
anguish.
59 F.R. § 56130 (1994)(emphasis added). While petitioner's
behavior might not be the most egregious instance of abuse, like
the District of Columbia Court of Appeals in Hearns v. District of
Columbia Dep't of Consumer & Regulatory Affairs, we believe that in
the context of this extremely regulated profession and the
patient's dependency on a person in the trusted position of nurse
aide, “the definition of 'abuse' . . . may fairly be understood to
reach behavior short of more flagrant forms dealt with in other
settings.” 704 A.2d 1181, 1183 (1997).
In the instant case, the DHHS made the following findings:
1. At all times relevant to this contested
case, Petitioner, a certified nurse aide, . .
. was employed as a health care personnel at
Sunbridge Nursing Home.
2. Sunbridge is a nursing home facility
licensed by the State of North Carolina and as
such is a health care facility as defined in
N.C. Gen. Stat. § 131E-256(b)(6).
3. At all times relevant to this matter,
Misty Gray was employed as a CNA at Sunbridge.
4. At all times relevant to this matter,
Susan King was employed as the Director of
Nurses at Sunbridge.
5. At all times relevant to this matter,
Robin Phillips was employed as the AssistantDirector of Nurses at Sunbridge.
6. On August 12, 1999, while Ms. Gray and
Petitioner were transferring Resident M.M.
from her wheelchair to the shower chair, the
resident became combative and hit Petitioner
on the hand. Petitioner responded to the
resident by stating, “If you kick me, I will
knock the f--king hell out of you.” Ms. Gray
promptly reported the incident to Ms. Phillips
and Ms. King.
7. On behalf of Sunbridge, Ms. Phillips and
Ms. King conducted the in-house investigation
with respect to the allegation of abuse by
Petitioner to Resident M.M. During the
investigation, Ms. Phillips and Ms. King
confronted Petitioner about the reported
allegation of abuse. Petitioner denied making
the statement, “If you kick me, I will knock
the f--king hell out of you.” Petitioner
admitted to Ms. Phillips and Ms. King that she
made the following statement to Resident M.M:
“You kicked the hell out of me, if you do it
again I'm going to pinch your damn foot off.”
8. At the conclusion of the conference, it
was requested that Petitioner provide a
written statement of the incident. Petitioner
testified that she provided a written
statement to Sunbridge and the content of the
statement which she made to Resident M.M. was
as follows: Petitioner admitted making the
following statement to M.M., “If you kick me
in the face, I don't know what I might have to
do.”
9. On August 12, 1999, Ms. King submitted a
report to the Health Care Personnel Registry
Section which alleged that Petitioner had
abused M.M.
10. Respondent reviewed the report submitted
by Sunbridge with respect to the allegation of
abuse and concluded that the allegation
warranted investigation.
11. On behalf of Respondent, Bonnie Nottoli,
investigated the allegation of abuse. As part
of her investigation, Ms. Nottoli interviewed
Petitioner. Petitioner denied making the
statements as reported by Ms. Gray, Ms.Phillips and Ms. King. During it's
investigation, Respondent determined that
Petitioner verbally abused Resident (“M.M.”)
by saying to her, “You've kicked the hell out
of me and if you do it again, I'll have to
pinch your foot off.”
12. By letter date[d] March 13, 2000,
Respondent notified Petitioner that the
Department had substantiated an allegation of
abuse against Petitioner and that the
substantiated finding would be entered into
the Nurse Aide Registry and Health Care
Personnel Registry. . . .
13. “Abuse” is defined by 42 CFR Part 488
Subpart E which is incorporated by reference,
in 42 CFR 488.301, as follows:
“Abuse” means the willful infliction
of injury, unreasonable confinement,
intimidation, or punishment with
resulting physical harm, pain or
mental anguish.
Based upon these findings, DHHS reached the following pertinent
conclusions:
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-
255 to maintain a Registry that contains the
names of all nurse aides working in nursing
homes who are subject to a finding by the
Department that they abused a nursing home
resident.
4. As a certified nurse aide, Petitioner is
subject to the provisions of N.C. Gen. Stat. §
131E-255.
5. 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 are subject to a
finding by the Department that they abused a
resident in a health care facility or who havebeen accused of abusing a resident if the
Department has screened the allegation and
determined that an investigation is warranted.
6. As a health care personnel, Petitioner is
subject to the provisions of N.C. Gen. Stat.
§ 131E-256.
7. Sunbridge, a nursing home, is a health
care facility as defined in N.C. Gen. Stat. §
131[E]-256(b)(6).
8. On August 12, 1999, Petitioner abused
Resident M.M. when she stated to her, “You've
kicked the hell out of me, and if you do it
again, I'll have to pinch your foot off.”
9. Respondent did not err in substantiating
the finding of abuse against Petitioner.
DHHS then determined that a finding of abuse against petitioner had
been properly listed in the Nurse Aide Registry and the Health Care
Personnel Registry. We note that the superior court's findings and
conclusions are essentially a restatement of those of DHHS.
Looking at this matter anew, as we are required to do on de
novo review, we conclude that the superior court did not err in
affirming DHHS's determination that petitioner abused M.M. Though
the record discloses various accounts of the exact statement made
to M.M. by petitioner, the evidence is uncontroverted that
petitioner made some statement of a threatening nature to her
patient M.M. While there was no evidence of record that
petitioner's threats resulted in physical harm or pain to M.M.,
petitioner's threat to do violence to the elderly Alzheimer's
patient is certainly sufficient evidence from which a rational
factfinder could determine it was such as to cause that patient
“mental anguish.” See Hearns v. District of Columbia Dep't ofConsumer & Regulatory Affairs, 704 A.2d 1181, 1183 (1997) (reaching
the same conclusion where nurse aide roughly pulled and rebuked an
elderly patient, but there was no evidence to show that patient
suffered physical harm or pain). Accordingly, we conclude that
DHHS properly determined that petitioner's actions constituted
abuse within the meaning of 42 C.F.R. § 488.301 (as incorporated by
reference at 10 N.C.A.C. 3B.1001(1)). Therefore, the superior
court did not err in affirming the decision of DHHS.
Having so concluded, the order of the superior court is
affirmed.
Affirmed.
Chief Judge EAGLES and Judge WALKER concur.
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