Under 42 USC 1396r (e) (2), G. L. c. 111, ss. 72F-72L, and 105 CMR 155.000 et seq., the Department of Public Health (DPH) filed a complaint investigation report with respect to Carol Ouelette, a Certified Nurse Aide ("CNA"), following a finding of abuse of a resident in a long-term care facility. (Exs. 1, 2) Ms. Ouelette filed a request for an adjudicatory hearing on the issue raised in the report. (Ex. 3) I held a pre-hearing conference on April 11, 2008. The parties agreed to seek settlement through alternative sanctions, and agreed to return for a hearing on the merits on May 19 and May 20, 2008 if the matter could not be settled. The parties arrived for hearing on May 19, 2008, but because Respondent's counsel, Mr. Kring, was ill with the flu, I canceled the hearing for that day and asked the parties to return on May 20, 2008.
I held a hearing on May 20, 2008 at the office of the Division of Administrative Law Appeals, 98 North Washington Street, Boston, MA. I admitted documents into evidence. (Exs. 1 - 16) There are three tape cassettes of the hearing.
Testifying on behalf of the DPH were: Karen Bessette, Director of Nurses at Quabog on the Common ("Quabog"), a long-term care facility in West Brookfield; Jennifer Podkowka, a CNA mentor at Quabog; Jenafer Kularski, an Licensed Practical Nurse ("LPN") at Quabog; Jesse Fusco, a Registered Nurse supervisor at Quabog; and Ashley Freniere, a CNA at Quabog.
Carol Ouelette testified on her own behalf. She called Elizabeth Brower, a DPH Surveyor, to testify.
Findings of Fact
1. Carol Ouelette worked as a CNA at Quabog. In December 2007 she became an LPN. (Testimony)
2. On January 5 - 6, 2008, Ms. Ouelette worked on the 11 p.m. - 7 a.m. shift as a CNA. (Ex. 5)
3. VB is an 86-year-old woman who has lived at Quabog since August 2003. She suffers from dementia, confusion, anxiety, agitation, diabetes and Parkinson's disease. VB requires total care for bathing, grooming and dressing. She is known to be combative and resistant to care. (Exs. 6, 7, 14; Testimony, Bessette)
4. At or about 6:30 a.m. on January 6, 2008, Jennifer Podkowka, a CNA mentor, assigned Ms. Ouelette to provide morning care to VB. Ms. Podkowka told Ms. Ouelette that if VB was too combative, Ms. Ouelette should not bother with VB and take care of other residents. (Testimony, Podkowka; Ex. 10)
5. At or about 6:30 a.m., Jenafer Kularski, an LPN charge nurse, was passing medication when she heard VB yelling out longer and louder than usual. Ms. Kularski went into VB's room to see if she could calm her down. (Testimony, Kularski; Exs. 8, 12)
6. Ms. Kularski entered VB's room and saw Ms. Ouelette standing by the side of VB's bed. Ms. Kularski went to VB's bedside and took VB's hand, rubbed her cheek and explained that Ms. Ouelette was providing morning care. (Testimony, Kularski; Ex. 11)
7. Ms. Ouelette began to change VB's brief. VB was turned slightly on her right side so that Ms. Ouelette could fasten the left side of her brief. VB grabbed Ms. Ouelette's left arm right below the elbow with her left hand. Ms. Ouelette used her right hand to slap VB on the left arm right below her wrist. VB moved her arm away quickly. Ms. Ouelette said to Ms. Kularski, "I didn't hit her hard." (Testimony, Kularski; Exs. 8, 12)
8. Ms. Kularski stayed in the room until Ms. Ouelette had finished VB's morning care. Ms. Kularski then reported the event to her supervisor, Jesse Fusco, RN supervisor. (Testimony, Kularski; Exs. 8, 12)
9. Ms. Kularski said to Ms. Fusco, "I can't believe she just hit her." Ms. Fusco then called the manager on call, and the Director of Nurses, Karen Bessette. Ms. Bessette asked Ms. Fusco to perform a full skin assessment of VB. (Testimony, Fusco; Ex. 8)
10. Ms. Fusco did a skin assessment of VB. She found a bruise on VB's right arm that appeared old because it was green and yellow. She found a newer, small bruise on VB's left forearm that was reddish. (Testimony, Fusco; Exs. 11, 12)
11. Ms. Bessette arrived at the facility at about 7:30 a.m. She took VB into the TV room to look her over. Ms. Bessette saw a discolored bruise on VB's right forearm, and a new bruise on the left arm, just above the wrist knob, with fresh blood. (Testimony, Bessette; Ex. 8)
12. Ms. Bessette checked with Ashely Freniere, a CNA who had provided care to VB on the previous day. Ms. Freniere said that she noticed a bruise on VB's right forearm the previous day, but there was no bruising on VB's left arm on the previous day. (Testimony, Freniere; Ex. 15)
13. Ms. Bessette called Ms. Ouelette and asked her to come to the facility. Ms. Ouelette told Ms. Bessette that VB grabbed her arm during care and was digging in her fingernails. Ms. Ouelette said she did not slap VB, but her hand made a slapping sound when she removed VB's hand from her arm. Ms. Bessette did not see any marks on Ms. Ouelette's arm except for a scratch that Ms. Ouelette said VB was not responsible for. (Testimony, Bessette)
14. Ms. Bessette placed Ms. Ouelette on administrative leave, and faxed a report to the DPH. (Ex. 7)
15. Quabog has a written abuse and neglect policy that is provided to all new staff. The facility holds mandatory monthly meetings that cover the policy. Under the facility policy, physical abuse includes, "but is not limited to, hitting, slapping, pinching, kicking, and so on. Physical abuse also includes controlling behavior through corporal punishment of a resident." (Ex. 4, p. 2)
16. The CNAs have been trained to approach patients with dementia slowly and quietly. They are taught that if the patient is agitated, the CNA can leave and re-approach the patient at a later time. The CNAs are taught not to try to push a patient through care if the patient is agitated. (Testimony, Bessette)
17. VB's care card indicates, "explain procedures prior to care, can yell out and be resistive." (Ex. 6)
18. The DPH investigation concluded that the claim of abuse had been sustained. (Ex. 2)
The Department of Public Health has proven by substantial evidence that Carol Ouelette engaged in physical abuse of patient VB on January 8, 2008 at Quabog on the Common nursing home.
Abuse is defined as physical contact with a patient that results in physical injury, and cannot be justified under any of the exceptions recognized under the regulation. (105 CMR 155.003 (1) (a)(b)(c))
Physical contact with a patient which harms the patient and occurs for the purpose of retaliating against the patient constitutes abuse. (105 CMR 155.003 (4))
On January 8, 2006 the Respondent slapped VB's arm because VB grabbed the Respondent's arm while the Respondent was trying to secure VB's incontinence brief, resulting in a bruise on VB's left arm. The Respondent slapped VB to retaliate against VB for grabbing the Respondent's arm.
In reaching my conclusion I accorded weight to the credible and forthright testimony of Jenafer Kularski who was an eye-witness to the slap. I accorded weight to the fact that Ms. Kularski immediately reported the event to her supervisor, made a notation in the nurse's notes, and then prepared a written statement of the event. Ms. Kularski's version of the event has been consistent and unwavering.
I did not accord weight to the testimony of the Respondent. The Respondent testified at hearing that she did not slap VB's arm; she slapped her own arm close to where VB was grabbing her, in order to shock VB into letting go. The Respondent told the Director of Nurses that she did not slap VB. The Respondent said that she removed VB's hand from her arm and that her hand made a slapping sound when that happened. The Respondent's two statements are inconsistent.
I recommend that DPH take appropriate action in accordance with this decision as required under the provisions of 42 USC 1396r (g) (1) (c).
DIVISION OF ADMINISTRATIVE LAW APPEALS
Maria A. Imparato
DATED: July 23, 2008