THE COMMONWEALTH OF MASSACHUSETTS


Suffolk, ss. Division of Administrative Law Appeals


Department of Public Health,


Petitioner

v. Docket No. PHNA-08-609

Amie Desmarais,


Respondent

Appearance for Petitioner:


Joel Buenaventura,

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


Appearance for Respondent:


Pro Se

250 Walnut Street
North Adams, MA

Administrative Magistrate:


Judithann Burke


SUMMARY OF DECISION

Department of Public Health has proven that Certified Nurse Aide committed one act of patient abuse against nursing home resident when she used callous and foul language toward him that resulted in his being upset and crying.

DECISION

Pursuant to G.L. c. 111, § 72J, 42 U.S.C. § 1396r(e)(2), 801 CMR 1.02 et. seq. and 105 CMR 155, on July 25, 2008, the Petitioner, Department of Public Health (DPH), issued a Notice of Agency Action to the Respondent, Amie Desmarais, therein charging her with one count of patient abuse at the North Adams Commons Nursing and Rehabilitation Center (NA Commons) on June 21, 2008. (Exhibit 1). The Respondent filed her request for a hearing on August 10, 2008. (Exhibit 3). A hearing was held on January 9, 2009 at the offices of the Division of Administrative Law Appeals (DALA), 98 North Washington Street, Boston, MA.

At the hearing, seventeen (17) exhibits were marked. The Petitioner presented the testimony of the following witnesses: Cyrena Thayer, Certified Nurse Aide (CNA) at NA Commons; Kanessa White, Licensed Practical Nurse (LPN) at NA Commons; Joann Brackett, LPN and weekend supervisor at NA Commons; Erin Shea, former social worker at NA Commons; and, Kimberly Cameron, Registered Nurse (RN) and Director of Nurses (DON) at NA Commons. The Respondent testified and argued in her own behalf. Her sister, Melanie Desmarais, assisted her in the presentation of her case. Two (2) tapes were made of the proceedings.

FINDINGS OF FACT

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

1. The Respondent, Amie Desmarais, was employed as a CNA at NA Commons. In February 2008, she was the subject of Employee Education Intervention at that facility because of her poor skills in communicating with residents who had dementia. She was not allowed back onto the floor until she completed this additional education. (Exhibit 11 and Testimony).

2. On February 20, 2008, the Respondent signed an acknowledgement that she had received the NA Commons policy on Abuse, Neglect and Mistreatment. (Exhibits 8 and 10).

3. NA Commons is a 119-bed nursing home and rehabilitation facility that accepts Medicare and Medicaid patients. (Testimony).

4. BT was a resident at NA Commons on June 21, 2008. He was a 60 year old male who was admitted to the facility on May 19, 2008 with neurosyphillis and psychosis. He required assistance for all activities of daily living, but the NA Commons staff was advised to encourage him to do as much as possible for himself. BT was known to be pleasant and cooperative with NA Commons staff. He had some difficulty articulating his thoughts and he displayed slow speech patterns. Originally from Nigeria, he spoke with an accent. (Exhibits 2 and 17 and Testimony).


5. The Respondent was assigned to care for BT on Saturday, June 21, 2008.
While she was providing care for him that morning, she opened the window in his room. He asked her to close the window and tried to explain that he was cold, as he was wearing only shorts and a tank top, and, he was sitting still. The Respondent refused to shut the window because she was hot. She told BT that if he did not be quiet she would not put him into bed.
The Respondent yelled at BT, "I can't even fucking understand you and a lot of you people! You can't even talk right! Leave it open."

6. Another CNA, Cyrena Thayer, had overheard the Petitioner shouting and came to the door. BT was crying at this time. Ms. Thayer asked what was going on.
The Respondent said, "nothing."
Ms. Thayer asked the Respondent to leave the room so that she could speak with BT. The Respondent left the room and Ms. Thayer asked BT what was wrong. He told her that the Respondent had been rough with him while providing care, and, that she was angry that he did not help her by moving his legs while she was cleaning him. Ms. Thayer closed the window and BT asked her to open it again because he was afraid that the Respondent would come back in and be angry with him.
BT told Ms. Thayer that he thought the incident was his fault because he "was old and not very smart." (Testimony and Exhibits 4, 5, 15 and 18).

7. Sometime later, the Respondent saw Cyrena Thayer and asked why the latter looked upset. Ms. Thayer indicated that she was upset about the residents being mistreated.
The Respondent replied, "they are all here to die anyways (sic)."

8. Cyrena Thayer reported her observations to LPN Kanessa White. Ms. White reported the incident to weekend supervisor Joann Brackett. Both Ms. Thayer and Ms. White were asked to write reports. (Exhibits 4-6).

9. The Respondent was suspended when she arrived for work on Monday morning, June 23, 2008. An investigation ensued. BT confirmed Ms. Thayer's version of events and indicated that he had cried most of the day following the incident. (Exhibits 2, 7 and 18).

10. In an NA Commons Notice of Corrective action dated June 27, 2008,the Respondent wrote " Mr. (BT) never asked me to close the window. I would of (sic) closed the window". (Exhibit 12).

11. "Abuse" is defined by NA Commons as "the willful infliction of injury, unreasonable confinement, intimidation or punishment with resulting physical harm, pain or mental anguish, or deprivation by an individual including a caretaker of goods and services that are necessary to attain or maintain physical, mental, or psychological well being." (Exhibit 9).

12. "Verbal abuse' is define by NA Commons as "the use of oral, written or gestured language that willfully includes disparaging and derogatory terms to residents or their families, or within hearing distance, regardless of their age, ability to comprehend, or disability. Verbal abuse includes but is not limited to threats of harm and/or making statements to frighten a resident."(Id.).

CONCLUSION


After a careful review of all of the testimony and documents in this case, I have concluded that the Petitioner has met its burden of proof in this case. A preponderance of the evidence reflects that Desmarais was verbally abusive toward BT on June 21, 2008.

In reaching this conclusion, I have credited: the testimony of Cyrena Thayer; the written statement of BT; and the statements provided by BT to NA Commons staff. I have discredited the testimony of the Respondent, Amie Desmarais, the individual with the greatest reason to deny the allegations against her in this case. The statements of all of the witnesses against Desmarais varied on small, insignificant points, but were all consistent in the assertion that BT was visibly upset following her harsh treatment of him.

Desmarais testified at the January 9, 2009 hearing that she never opened the window in BT's room on June 21, 2008 because the air conditioning was running. However, back on June 27, 2008, she wrote that she "would have closed the window" had BT asked her to do so. The testimony concerning air conditioning appears to be a recent contrivance.

The Respondent's behavior on June 21, 2008 vis a vis BT constituted intimidation that resulted in mental anguish to BT. He cried and was upset for some time after the event. He feared that the Respondent would come back into the room and see the window closed. He blamed himself for her poor judgment. The NA Commons definition of "abuse" is satisfied. Likewise, the NA Commons definition of "verbal abuse" is satisfied. The Respondent's language toward BT was both derogatory and frightening to BT. The Respondent's subsequent statement to Ms. Thayer concerning the patients all being at NA Commons "to die" and her need for re-education in February 2008 for the same type of behavior are further support that this CNA is not fit for employment of this nature.


In conclusion, DPH has established, by credible evidence, including its witnesses and documents, that Desmarais abused BT. Based on the foregoing findings, DPH shall take such action as is required pursuant to 42 U.S.C. § 1396r and G.L. c. 111, § 72J.

So ordered.

Division of Administrative Law Appeals,
BY: /s/
Judithann Burke
Administrative Magistrate

DATED: July 28, 2009