COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. Division of Administrative Law Appeals

Department of Public Health,

Petitioner

v. Docket No. PHNA-07-539

Jaime Xavier,

Respondent

Appearance for Petitioner:

Joel Buenaventura, Esquire

Deputy General Counsel
Department of Public Health, 2nd FL
250 Washington Street
Boston, MA 02108-4619

Appearance for Respondent:

Gigi D. Tierney, Esquire

Lang, Xifaras & Bullard
115 Orchard Street
New Bedford, MA 02740

Administrative Magistrate:

Judithann Burke

DECISION

Pursuant to M.G.L.c. 111 s. 72F-L and 105 CMR 155, the Petitioner,
Department of Public Health (DPH), issued a Complaint Investigation Report which included two (2) findings of patient abuse and one (1) finding of neglect against the Respondent, Jaime Xavier, on January 3, 2007, mid-December 2006 and December 29, 2006, respectively. The DPH Notice of Agency Action was issued on February 12, 2007. (Exhibits 1 and 2). The Respondent's claim for a hearing was received on June 13, 2007. DPH waived any issue of timeliness of the appeal. (Exhibits 3-5). A hearing was held on January 18, 2008 at the Bristol Community College New Bedford Campus, Room NB103, 185 Union Street, New Bedford, MA.

At the hearing, nineteen (19) exhibits were marked. The DPH moved to redact
pages 8-11 and pages 15-17 of its Surveyor's Investigation Report (Exhibit 2), thereby dismissing one count of abuse and one count of infringement on patient rights. In support of the remaining allegations, DPH presented the testimony of the following witnesses:

Irene Doyle, Director of Nursing (DON) at Alden Court Nursing Care and Rehabilitation Center in New Bedford, MA (Alden Court); Kristen Fineberg, Certified Nurse Aide (CNA) at Alden Court; Rita Santiago, CNA at Alden Court; Barbara Avila, former Licensed Practical Nurse (LPN) at Alden Court; Donna Borges, CNA at Alden Court; Stefanie Brizida, CNA at Alden Court; Vanessa Baptista, CNA at Alden Court; and Elizabeth Pungitore, the DPH Surveyor. The Respondent testified in his own behalf.

The Respondent also presented the testimony of Henry Lee, LPN at Alden Court and Ana Farizo, the daughter of a resident at Alden Court. Both parties stated their arguments for the record. Seven (7) audiotapes were made of the proceedings.

FINDINGS OF FACT

Based upon the testimony and documents submitted at the hearing in the above-
entitled matter, I hereby render the following findings of fact:

1. The Respondent, Jaime Xavier, d.o.b. 08-16-1969, was born in the Azores and
came to the United States in his early childhood. He was raised in New Bedford, MA.

The Respondent did not complete high school, however, he received certification as a Nurse Aide from the University of Massachusetts at Dartmouth in 2005. He began working as a CNA at Alden Court in New Bedford in December 2005. (Testimony and Exhibit 2).

2. The Respondent's job performance was positively evaluated in
December 2006. There was no discipline up to that point. Many family members
of residents at Alden Court requested that the Respondent care for their relatives on a regular basis. Many co-workers admired the Respondent for his dependability and work ethic. (Id. and Exhibits 26-28).

3. On January 3, 2007, EP, a paraplegic male who had bilateral leg amputations,
had been a resident at Alden Court for approximately seven (7) months. EP was
depressed, irritable, delusional and resistant to care. He also had cognitive and short term memory impairment.

At approximately 9:00 P.M. on January 3, 2007, EP had turned himself around in
the bed and shed his incontinence brief. He needed incontinence care. The Respondent and two other CNAs assisted in moving him and cleaning him up. EP was combative and verbally abusive while he was receiving this care. The CNAs needed two changes of sheets as EP became incontinent a second time after the sheets were changed.

During the provision of care, EP punched the Respondent in the mouth. The hit drew blood. He then spit at the Respondent. The Respondent spit back at EP. The Respondent grabbed his mouth and left the room. The Respondent reported that he had been punched by EP.

Later, while outside on a cigarette break, the Respondent told LPN Barbara Avila
that he had spit at EP. EP later told the DPH Surveyor that the Respondent had spit at him, and that he did not retaliate because he thought the altercation had gone far enough at that point. (Testimony and Exhibits 2, 7, 11-13, and 19-21 and 24).

3. In mid-December 2006, RF was an eighty seven (87) year old male resident at
Alden Court who had undergone cranial surgery. He suffered from depression, dementia, agitation, and short term memory loss.

In mid-December 2006, the Respondent was in RF's room assisting Barbara Avila with the care of RF's roommate, HS. Suddenly, the Respondent said "watch this" to Ms. Avila. Ms. Avila observed the Respondent lean over RF, who was wearing a johnny. RF said, "leave my tit alone." (Testimony and Exhibits 2, 8, and 21).

4. The Respondent was observed touching the chest areas of both HS and RF by
CNA Donna Borges. CNA Stefanie Brizida had observed the Respondent fondle and pinch the nipples of RF with his thumb and index finger, and, she heard RF laugh when this occurred. RF then told the Respondent to stop. (Testimony and Exhibits 2, 14 and 22).

5. On December 29, 2006, RB was a female resident of Alden Court who was in
her early 90's. She suffered from post-concussive amnesia, some short-term memory loss, impaired judgment, depression, anxiety and chronic urinary tract infections. She was able to ambulate, but needed assistance with walking to the toilet. She had a habit of asking to be toileted at very frequent intervals and she often forgot when she had just finished toileting.

At approximately 6:00 PM on that date, the Respondent brought RB to the toilet.
Barbara Avila took her out. A few minutes later, she asked the Respondent to bring her to the toilet again. The Respondent replied in a loud, firm manner, "no, RB, you just went and you now need to wait until 8:00 PM". This statement was made near the nurses' station in front of other residents.

RB was initially fine with the Respondent's answer. A short time later, she
became upset at the Respondent's words and she began to cry. She reported to other CNAs in the immediate area that she was embarrassed that the Respondent had hollered at her. Another CNA took her to the bathroom ten (10) minutes later.

A couple of weeks later, RB later reported to the DPH Surveyor that the
Respondent had made her "feel like a dog", although she could not remember why he had yelled at her. The Respondent has a raspy voice. (Testimony and Exhibits 2, 10, 15, 21- 23, and 25).

CONCLUSION

After a careful review of all of the testimony and documents in this case, I
have concluded that DPH has met its burden of proving that the Respondent
was abusive toward EP and RF. There is a preponderance of evidence, including the testimony of the DON, an LPN, and the Surveyor, as well as witness statements and the Surveyor's report, that all reflect that the Respondent spit at EP in anger and that he fondled the nipples of RF on more than one occasion.

In reaching this conclusion, I have credited the testimony of the DPH witnesses,
none of whom appeared to have any hidden agenda or motive to fabricate such unusual behavior. I have also credited the statements of the residents themselves, i.e. EP's statement to the Surveyor that the Respondent spit at him and the exclamation from RF to leave his "tits" alone and to stop the nipple pinching. I have not credited the Respondent, who I find to be motivated by self interest. He flatly denied all of the allegations without proffering any viable reason for any widespread staff conspiracy against him wherein everyone but him was telling a consistent story. The picture that has emerged is that of a popular (with residents and some management) and energetic CNA who had his favorite residents, his positive references, and also had his limits and shortcomings. The
findings of abuse for the spitting and repeated nipple pinching are valid.

I have concluded that DPH has not met its burden of proving that the Respondent
neglected RB in declining to toilet her after she had just gone. He has a raspy voice and he was one of few males on staff at Alden Court. His speech could easily be interpreted as loud or scolding even if he were merely talking in a hurried, business-like tone.

RB was a depressed and anxious resident. She was more embarrassed about having been refused toileting in front of other residents. She was taken to the toilet a short time later, so she was not neglected. There is not enough evidence to suggest that this incident was the result of the Respondent's neglect. Rather, it is equally plausible that RB was overly sensitive and took his denial too personally. The finding of neglect should not be entered into the Federal Nurse Aide Registry.

So ordered.

Division of Administrative Law Appeals,

Judithann Burke
Administrative Magistrate

DATED: March 10, 2008


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