COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals


Department of Public Health,

Petitioner


v. Docket No. PHNA-06-623

Nancy Aiguobarueghian,


Respondent


Appearance for Petitioner:

Joel Buenventura, Esq.

Department of Public Health
250 Washington Street - 2nd floor
Boston, Ma. 02108


Appearance for Respondent:

Michael McArdle, Esq.

204 Lafayette Street
Salem, Ma. 01970


Administrative Magistrate:

Joan Freiman Fink, Esq.


DECISION ON REMAND FROM SUPERIOR COURT

Pursuant to 42 U.S.C. 1395I - 3, G.L. c. 111, §§ 72F - 72L, and 105 CMR 155.000 et seq., the Department of Public Health, the Petitioner, filed a complaint investigation report with respect to the Nancy Aiguobarueghian, the Respondent, a licensed certified nurse assistant (CNA), following a finding of physical abuse of a patient under her care in a long term care facility (Exhibit 2). The Respondent requested an adjudicatory hearing on the issues raised in the report (Ex. 3).
I held a hearing in this matter on February 26, 2007 at the offices of the Division of Administrative Law Appeals, 98 North Washington Street, pursuant to G.L. c. 7 §4H. Fourteen exhibits were entered into evidence at the hearing and three cassette tape recordings were made of the hearing.

On March 2, 2007, I issued a decision in this matter, concluding that on the morning of July 12, 2006, the Respondent physically abused Resident #1. I then recommended that the Petitioner take appropriate action in accordance with this decision as required under the provisions of 42 U.S.C. §§ 1396r(g)(1)(c).
The Respondent sought judicial review of this decision to Essex Superior Court and on March 31, 2008, a decision was issued by Justice Hogan remanding this case to the Division of Administrative Law Appeals for specific consideration and findings as to whether the exception to the definition of abuse, contained in 105 CMR 155.003(c), applies to the Respondent's conduct.

That regulation provides in pertinent part:

If an individual has used physical contact with a patient or resident which harms that patient or resident, such contact shall not constitute abuse if:
(c) The physical contact with the patient or resident occurs in the course of attempting to restrain the behavior of the patient or resident in question, and both the type of physical contact involved and the amount of force used are necessary in order to prevent that patient or resident from injuring himself, herself, or any other person.

See Nancy Aiguobarueghian v. Paul J. Cote, Jr., Commissioner of the Department of Public Health, Essex Superior Court, Docket #ESCV2007-00626, (March 31, 2008).

Upon receipt of the Order of Remand, I scheduled a hearing for June 3, 2008. At the hearing, the parties requested that the matter be held in abeyance for a period of one month. I allowed the parties' request and ordered the parties to file a status report by July 8, 2008. On July 8, 2008, the parties filed a written Status Report requesting that the matter be scheduled for a hearing. On July 22, 2008, a Notice of Hearing was sent to the parties informing them that further hearing pursuant to the remand order would be held on August 19, 2008.

On August 19, 2008, I held the hearing pursuant to the remand order. The parties were given an opportunity to submit any further evidence they deemed relevant to the specific issue referred to by the court. Neither party proffered testimony or other evidence. Rather, both presented oral argument. In addition, the Petitioner submitted a Memorandum of Law that was marked as "A" for identification.

After careful review of the entire record in this matter including the arguments presented by counsel in the remand hearing, I incorporate by reference my original Findings of Fact Nos. 1 - 27, set forth below. In addition, I make the following supplemental findings of fact: Nos. 28 - 35, as set forth below.

FINDINGS OF FACT

Based on the testimony and evidence presented at the hearing on February 26, 2007, I made, and now reaffirm, the following findings of fact:

1. The Respondent, Nancy Aiguobarueghian, was born in New Jersey but moved to Nigeria when she was four years old to live with her grandmother. She returned to North America when she was eleven years old and when she was 18, she moved to Lowell, MA (testimony of the Respondent).

2. Shortly after moving to Lowell, the Respondent took a position as a live-in companion for an elderly woman in Stoneham, MA. She remained in that position for a period of five years (testimony of the Respondent).

3. She left that position when she became engaged to marry and no longer desired a live-in position. After leaving the position in Stoneham, MA, the Respondent took a six-week course to become a CNA. Upon completing the course, she successfully passed the examination and became a licensed CNA in the Commonwealth of Massachusetts (testimony of the Respondent).

4. In May of 2006, the Respondent went to work for Clinical One, an agency licensed by the DPH to provide staffing to nursing homes and long-term care facilities (testimony of Janelle Burke, testimony of the Respondent).

5. As part of her orientation program at Clinical One, the Respondent received training as to what constitutes abuse and neglect of patients. In June of 2006, the Respondent successfully passed an examination given by Clinical One concerning all aspects of nursing care including abuse and neglect (Exhibit 4).

6. On July 11, 2006, the Respondent was assigned the task of providing one-on-one care to Resident #1, a patient at Hunt Nursing and Retirement Home in Danvers (testimony of Janelle Burke, testimony of the Respondent).

7. Hunt Nursing and Retirement Home is a long-term care facility, licensed by the Commonwealth of Massachusetts to accept Medicare and Medicaid patients (testimony of Marc Neustadt).

8. Resident #1 was an elderly woman in her middle eighties who suffered from a brain tumor, dementia, and agitation. In July of 2006, at the time that the Respondent was assigned to assist in her care, Resident #1 was gravely ill. Resident #1 died in late August or early September of 2006 (testimony of Marc Neustadt).

9. On July 12, 2006, the Respondent was assigned to the 7 a.m. to 3 p.m. shift to assist Resident #1 with her instruments of daily living (testimony of Respondent, Marc Neustadt, and Janelle Burke).

10. At approximately 8 a.m. that morning, Lee-Ann Stone, a CNA assigned to the day shift at Hunt Nursing facility, observed the Respondent standing next to Resident #1 who was seated in a wheelchair with a restraint. Ms. Stone approached the Respondent and informed her that Resident #1 should not be in a wheelchair with restraints as there was no medical order in her care plan for such a restriction. Ms. Stone arranged for an appropriate wheelchair for Resident #1 and then assisted the Respondent in transferring the elderly woman (testimony of Lee-Ann Stone).

11. Shortly thereafter, Resident #1 became very agitated. Ms. Yvrose Emile, another CNA assigned to the morning shift at Hunt, instructed the Respondent to help the Resident take a short walk. However, Ms. Aiguobarueghian did not respond to Ms. Emile's instruction. Ms. Emile then directed the Respondent to give the Resident some juice; however, the Respondent also ignored Ms. Emile's command (testimony of Yvrose Emile).

12. At this point in time, Resident #1 tried to stand up. However, the Respondent pushed her down, grabbing her wrists and pinning them on her lap so she could not move (testimony of Lee-Ann Stone, Frederick Stone, and Yvrose Emile).

13. Although Ms. Stone told the Respondent that she should let the Resident get up and walk, the Respondent did not release her grip (testimony of Lee-Ann Stone).

14. The Resident then began yelling in a loud and agitated manner. When the Respondent eventually let go of her, the Resident tried a second time to get up and walk. This time, the Respondent slapped the Resident's hand twice and again refused to let her get up from the wheelchair (testimony of Yvrose Emile, testimony of Frederick Stone).

15. As the Respondent was slapping her, the Resident shouted out "don't do that - stop" (testimony of Frederick Stone).

16. Frederick Stone, the Unit Manager for the day shift, witnessed the Respondent push the Resident down and then slap her twice. Immediately thereafter, Mr. Stone ordered the Respondent to get out of the room and to leave the facility. He also instructed her to call Clinical One and let them know what had transpired (testimony of Frederick Stone).

17. Mr. Stone attempted to calm Resident #1 and then arranged for another CNA to take over the care of that patient (testimony of Frederick Stone).

18. After ensuring that the Resident was stable and was properly cared for, Mr. Stone reported the incident to the Nursing Home Administrator. He also filed an incident statement detailing the interaction he had observed between the Respondent and Resident #1 (testimony of Frederick Stone, Exhibit 12).

19. The Respondent complied with Mr. Stone's order and forthwith left the facility. She immediately called Ms. Burke at Clinical One and told her that she (Ms. Aiguobarueghian) was sent home by the Unit Manager. The Respondent did not elaborate as to the reason she was asked to leave the facility (testimony of Janelle Burke).

20. Ms. Burke then called Mr. Stone and learned that he had observed the Respondent pushing the Resident in question down in her wheelchair, preventing her from rising, and then slapping her twice on the hands (testimony of Janelle Burke).

21. Following her conversation with Mr. Stone, Ms. Burke commenced an investigation of the incident. As part of her investigation, Ms. Burke interviewed the Respondent and had her complete an incident report (Ex. 6).

22. After the investigation was completed, Ms. Burke submitted a report. Clinical One then suspended the Respondent and inactivated her from being assigned to patients (testimony of Janelle Burke).

23. On the day following the incident, Mr. Stone conducted a skin check on the resident and observed a dark purple bruise approximately three centimeters in diameter on her left forearm and a bruise on her right forearm of approximately 1.6 centimeters (Exhibit 14, testimony of Frederick Stone).

24. Although he asked the Resident concerning her interaction with the Respondent the previous day, the Resident was unable to recall the incident (testimony of Frederick Stone).

25. On July 14th, 2006, one day later, Mr. Stone performed an additional skin check on the Resident and observed finger marks on her arm (testimony of Frederick Stone).

26. On August 21, 2006, DPH notified the Respondent that it had determined that the complaint against her for physical abuse of Resident #1 had been found to be valid (Exhibit 1).

27. The Respondent requested an adjudicatory hearing concerning these findings of abuse (Exhibit 3).

SUPPLEMENTAL FINDINGS OF FACT:

I hereby make the following supplemental findings of fact No. 28 - 35:

28. No evidence was introduced at the original hearing or otherwise in the record to the effect that any restraint was necessary or appropriate under the circumstance nor was evidence introduced that the actions taken by the Respondent were necessary to restrain Resident #1 in order to prevent her from harming herself.

29. The Respondent was specifically instructed by Lee-Ann Stone, a CNA, that Resident #1 was not to be in restraints (testimony of Lee-Ann Stone).

30. Yvrose Emile informed the Respondent that the appropriate method of handling Resident #1 when she became upset or agitated was to take her for a walk (testimony of Yvrose Emile).

31. It was not appropriate for the Respondent to restrain Resident #1 on the day in question.

32. The actions taken by the Respondent in restraining, pushing, and slapping Resident #1 twice were not necessary to prevent her from harming herself.

33. The Respondent did not attempt to seek help from other staff members who were in close proximity either at the time that she pushed Resident #1 down in the wheelchair or at the time that she (Ms. Aiguobarueghian) twice slapped Resident #1 while restraining her (testimony of Lee-Ann Stone).

34. The Respondent grabbed Resident #1's wrists for several minutes despite having been instructed by staff to cease this behavior (testimony of Lee-Ann Stone, Mr. Frederick Stone).

35. The Respondent had no reasonable explanation for her pushing and slapping Resident #1 on the day in question. She neither tried to calm Resident #1 by getting her to walk nor did she ask other nursing personnel to assist her.


CONCLUSION AND ORDER

The Essex Superior Court remanded this matter for specific consideration as to whether the exception to the definition of abuse, contained in 105 CMR 155.003(c), applies to the Respondent's conduct towards Resident #1 on the day in question. That regulation provides as follows with respect to the definition of "abuse:"

If an individual has used physical contact with a patient or resident which harms that patient or resident, such contact shall not constitute abuse if:
(c) The physical contact with the patient or resident occurs in the course of attempting to restrain the behavior of the patient or resident in question, and both the type of physical contact involved and the amount of force used are necessary in order to prevent that patient or resident from injuring himself, herself, or any other person.

After thoroughly reviewing the testimony and evidence presented in this matter including the oral arguments and written memoranda relating to the remand hearing, I conclude that the Respondent's conduct does not fall within the exception to the definition of abuse as outlined in 105 CMR 155.003(c). Specifically, I conclude that there was no necessity to restrain Resident #1 on the day in question. First, there was no evidence introduced to the effect that there was need for any restraint. Second, the evidence that was introduced established that the Respondent was directed by supervising personnel not to restrain the Resident. Even assuming for argument's sake, that it was appropriate for the Respondent to restrain Resident #1, I further conclude that by grabbing Resident #1's wrists for several minutes and holding her down and later slapping her twice, Ms. Aiguobarueghian engaged in physical contact with the Resident that went well beyond the amount of force necessary in order to prevent Resident #1 from injuring herself. The Respondent was fully aware that Resident #1 should not have been restrained in the wheelchair and further that when Resident #1 became agitated, the appropriate method of calming her was to let her walk. Moreover, the Respondent failed to seek help from any of the nursing staff who were in close proximity to Resident #1 at the time of the incident in question.

I re-affirm my original conclusion that the DPH has met its burden of proof to demonstrate by substantial evidence that Nancy Aiguobarueghian engaged in the physical abuse of Resident #1 on July12, 2006. In accordance with federal regulations, a resident has the right to be free from abuse (42 CFR 483.13(b)). In accordance with state regulations, abuse is defined as physical contact with a patient that harms, or is likely to harm (105 CMR 155.005). A patient is determined to be abused if the physical contact results in pain or psychological harm (105 CMR 155.005 (1)(c)). A resident is deemed to have suffered psychological injury if he/she is subjected to conduct that intimidates him or produces a noticeable level of mental or emotional distress (105 CMR CMR 155.055).

As set forth in my findings of fact no. 11 through 14, Yvrose Emile, Frederick Stone, and Lee-Ann Stone all observed the Respondent physically restrain and strike the Resident. They also observed Resident #1 become agitated and cry out for the Respondent to stop. All three witnesses testified that they had clear, unobstructed views of the room where the Respondent was standing in front of Resident #1 and that they saw the Respondent push the resident down and pin her forearms to prevent her from getting up out of her wheelchair. In addition, Mr. Stone and Ms. Emile observed the Respondent slap the Resident two times on the back of her hands. None of the three witnesses who observed the Respondent assaulting the Resident had any animus against Ms. Aiguobarueghian. Rather, all three witnesses testified credibly that they had never met the Respondent prior to the incident in question and that their only concern was for the welfare and safety of Resident #1. Thus, I conclude that these witnesses, Frederick Stone, Lee-Ann Stone, and Yvrose Emile, had no reason to fabricate their testimony or to dissemble.

The Respondent failed to offer any reasonable explanation as to why the Resident cried out the word "stop" when she was in the room with Ms. Aiguobarueghian. Additionally, the Respondent could not account for the bruises on the Resident's forearms or the finger marks on her hands that were observed and documented by Mr. Stone the day following the incident in question. I found the Respondent's testimony denying that she had physically abused Resident #1 on the morning of July 12, 2006 not to be credible.

Based on the foregoing, I conclude that on the morning of July 12, 2006, the Respondent physically abused Resident #1. I further conclude that the exception to the definition of abuse as contained in 105 CMR 155.003(c) is not applicable in this case. Accordingly, I order that the Petitioner take appropriate action in accordance with this decision as required under the provisions of 42 USC 1396r(g)(1)(c).


SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS
\s\
______________________________________________ Joan Freiman Fink, Esq.
Administrative Magistrate

Dated: August 11, 2009