Office of Inspector General, Licensing Division
Minnesota Statutes, section 626.557, subdivision 1 states, “The legislature declares that the public policy of this state is to protect adults who, because of physical or mental disability or dependency on institutional services, are particularly vulnerable to maltreatment.”
Report Number: 20131236
Date Issued: October 15, 2013
Name and Address of Facility Investigated:
DRCC - St Louis County
728 Garfield Ave
Duluth, MN 55802
Disposition: Substantiated as to financial exploitation of a vulnerable adult by a facility staff person
Program License Number: 804772
Rule and/or Statute under which Facility is licensed: Residential Habilitation Services
Minnesota Department of Human Services
Office of Inspector General
PO Box 64242
Saint Paul, Minnesota 55164-0242
Suspected Maltreatment Reported:
It was reported that a facility staff person (SP) took cash from a vulnerable adult (VA) as part of a deal for the VA to purchase an all-terrain vehicle (ATV). The VA made an unknown number of payments and did not receive the ATV.
Date of Incident(s): On-going prior to March 22, 2013
Nature of Alleged Maltreatment Pursuant to Minnesota Statutes, section 626.557, subdivision 9c, paragraph (b), and Minnesota Statutes, section 626.5572, subdivision 15, and subdivision 9, paragraph (b), clause (1):
In the absence of legal authority a person willfully uses, withholds, or disposes of funds or property of a vulnerable adult.
Interviews (conducted via telephone between April 1 and June 6, 2013):
• The VA
• The VA’s guardian (G)
• A facility supervisory staff person (P1)
• A staff person at the VA’s day program (P2)
Note: Numerous attempts were made to contact the SP via telephone and certified mail and no response was received.
Documents reviewed included:
• The facility's Internal Vulnerable Adult Report dated March 22, 2013
• The VA’s Payroll Check History Report provided by the day program and dated January 1 – March 30, 2013
• The facility's policies and procedures
• The facility's personnel and training records regarding the SP
Pertinent Information/Summary of Findings:
Facility information showed that the VA was diagnosed with moderate developmental disability, resided in his/her own home with his/her guardians, and worked in the community through his/her day program. The VA received approximately 20 hours per week of residential habilitation services which were provided by facility staff persons. This service included the SP spending time with the VA at home and in the community. The VA did not have a risk management plan in place as the VA lived with his/her guardians in their family home.
Information provided by a facility supervisory staff person (P1) and a staff person at the VA’s day program (P2), as well as contained in the facility's Internal Vulnerable Adult Report included the following:
• On March 22, 2013, P1 received a telephone call from P2. P2 stated that the VA had been paying the SP $50 out of each of the VA’s pay checks to purchase an ATV from the SP. The VA had yet to receive the ATV and was concerned because the SP was no longer working with the VA (the facility removed the SP from the VA’s schedule of services approximately one week prior for concerns related to the SP’s actions in another home) and since that time, the SP did not return the VA’s telephone calls. The VA was reluctant to provide the information but was concerned that s/he was not going to get the ATV or his/her money returned.
• P1 spoke to the VA who shared additional information that on an unknown date, the SP asked the VA if s/he would like to purchase the ATV. The VA could not recall the price of the ATV, but the VA told P1 that s/he drove the ATV prior to making the agreement to purchase it. The VA gave the SP $50 from the VA’s 2012 “Christmas money” and then $50 from each of the VA’s pay checks every two weeks (until the SP was removed from the VA’s schedule). The VA could not recall how much money s/he provided in total to the SP.
• P1 spoke to the VA’s guardian (G) about the allegation, and the G told P1 that s/he did not want the SP to get into trouble. The G told P1 that the VA makes “deals” with others and “does [his/her] own thing” which concerned P1 due to the VA’s vulnerability.
• P2 looked at the VA’s paycheck history and estimated that the VA provided the SP with approximately $300 since January 1, 2013. In addition, P2 felt that due to the VA’s disabilities, s/he could easily be “manipulated” by others.
The VA’s guardian (G) provided this investigator with the following information:
• On or around March 22, 2013, the G learned that the SP was taking money from the VA and the VA was supposed to get an ATV in return. The G had no previous knowledge about the arrangement made by the SP and the VA and the SP never obtained permission from the G to enter into a financial arrangement to purchase the ATV.
• Once the G learned of the transactions, which the G believed totaled approximately $300, the G and the VA attempted to contact the SP by telephone and a social media website. The SP did not respond. The G was concerned that the SP either bring the ATV to the VA, or return the VA’s money. The VA told the G that the ATV was in the SP’s yard, but was no longer there.
• The G stated that the VA enjoyed ATVs and other motorized vehicles, but was “clearly disabled” and would let others “talking [him/her] into things.” The G stated there was “no reason for [the SP] to think that [the VA] could make a deal on a vehicle on [his/her] own.”
The VA told this investigator that s/he gave the SP $50 from his/her “Christmas money” and then $50 from each paycheck afterward. The VA did not know the total amount that s/he gave the SP, could not recall the total price for the ATV, or the date the deal to purchase the ATV was made. The VA said that there were no written documents providing details on the arrangement to purchase the ATV and the SP did not provide the VA with receipts for each payment that s/he made. The VA recalled that s/he drove the ATV on one or more occasions, but was not able to get the ATV from the SP because it was located in a yard that had “too much water” in it to access the ATV. The VA said that s/he was supposed to get the ATV “a long time ago” but was still waiting for the SP to contact the VA.
On April 4, 2013, this investigator spoke to a local law enforcement officer (LEO) regarding the allegation. The LEO stated that s/he was going to contact the SP and ensure that either the VA was provided with the ATV or his/her money was returned. On April 11, 2013, this investigator contacted the G and learned that on April 5, 2013, the SP delivered the ATV. The G stated that the VA was happy with the deal and excited to work on the ATV, but the G was unable to determine the amount the VA provided to the SP in order to purchase the ATV. In addition, the G wanted the VA to keep the ATV; however, there was no title of ownership, so the vehicle could not be transferred into the VA’s name. It was unknown who owned the ATV prior to the sale to the VA. The G could provide no specific details on the make, year, and model of the ATV.
The VA’s Payroll Check History Report showed that between January 1 and March 22, 2013, the VA received six pay checks. This investigator calculated that if the VA gave the SP $50 from each paycheck and $50 from his /her “Christmas money;” the amount paid to the SP by the VA was approximately $350.
Facility records showed that the SP was trained on facility policies and procedures and the Reporting of Maltreatment of Vulnerable Adults Act. In addition, P1 stated that s/he provided the SP with one to one training that included a discussion of the VA’s vulnerabilities.
Information provided by P1, P2, and the VA showed that sometime after the 2012 Christmas holiday, the VA gave $50 of his/her “Christmas money” and began paying the SP $50 out of each of the VA’s bi-weekly pay checks through March 22, 2013. This investigator calculated that the VA gave the SP approximately $350. The VA told this investigator that the SP did not document the financial arrangement regarding the ATV, did not provide the VA with receipts for each payment made by the VA, failed to return the VA’s telephone calls, and failed to provide the VA with the ATV. On April 4, 2013, this investigator spoke with the LEO who stated that s/he would speak to the SP and ensure that either the VA was provided with the ATV or his/her money was returned. On April 5, 2013, the SP delivered the ATV. The G told this investigator that the SP did not provide the VA with a title of ownership and the G was unable to provide information on the make, model, year, or value of the ATV.
This investigator attempted to contact the SP by telephone and certified mail and no response was received.
Given that the SP failed to get authorization from the G prior to making a financial arrangement with the VA, the VA provided the SP with funds totaling approximately $350, the SP did not provide the ATV to the VA until law enforcement was involved, and the SP failed to provide the VA with documentation, receipts or a title to legally transfer ownership of the ATV to the VA, there was a preponderance of the evidence that funds or property belonging to the VA were used and withheld without the knowledge or permission of the G or other legal authority.
It was determined that financial exploitation occurred (in the absence of legal authority a person willfully uses, withholds, or disposes of funds or property of a vulnerable adult)
B. Responsibility pursuant to Minnesota Statutes, section 626.557, subdivision 9c, paragraph (c):
When determining whether the facility or individual is the responsible party for substantiated maltreatment or whether both the facility and the individual are responsible for substantiated maltreatment, the lead agency shall consider at least the following mitigating factors:
(1) whether the actions of the facility or the individual caregivers were in accordance with, and followed the terms of, an erroneous physician order, prescription, resident care plan, or directive. This is not a mitigating factor when the facility or caregiver is responsible for the issuance of the erroneous order, prescription, plan, or directive or knows or should have known of the errors and took no reasonable measures to correct the defect before administering care;
(2) the comparative responsibility between the facility, other caregivers, and requirements placed upon the employee, including but not limited to, the facility’s compliance with related regulatory standards and factors such as the adequacy of facility policies and procedures, the adequacy of facility training, the adequacy of an individual’s participation in the training, the adequacy of caregiver supervision, the adequacy of facility staffing levels, and a consideration of the scope of the individual employee’s authority; and
(3) whether the facility or individual followed professional standards in exercising professional judgment.
Facility records showed that the SP was trained on facility policies and procedures and the Reporting of Maltreatment of Vulnerable Adults Act. In addition, P1 stated that s/he provided the SP with one to one training that included a discussion of the VA’s vulnerabilities. The SP was responsible for maltreatment of the VA.
C. Recurring and/or Serious Maltreatment:
The Division of Licensing is required to evaluate whether substantiated maltreatment by an individual meets the statutory criteria to be determined as “recurring or serious.” Individuals determined to be responsible for recurring or serious maltreatment are disqualified from providing direct contact services. Minnesota Statutes, section 245C.02, subdivision 16, states:
“Recurring maltreatment” means more than one incident of maltreatment for which there is a preponderance of evidence that maltreatment occurred and that the subject was responsible for the maltreatment.
Minnesota Statutes, section 245C.02, subdivision 18, states:
"Serious maltreatment" means sexual abuse, maltreatment resulting in death, neglect resulting in serious injury which reasonably requires the care of a physician whether or not the care of a physician was sought, or abuse resulting in serious injury. For purposes of this definition, "care of a physician" is treatment received or ordered by a physician, physician assistant, or nurse practitioner, but does not include diagnostic testing, assessment, or observation; the application of, recommendation to use, or prescription solely for a remedy that is available over the counter without a prescription; or a prescription solely for a topical antibiotic to treat burns when there is no follow-up appointment. For purposes of this definition, "abuse resulting in serious injury" means: bruises, bites, skin laceration, or tissue damage; fractures; dislocations; evidence of internal injuries; head injuries with loss of consciousness; extensive second-degree or third-degree burns and other burns for which complications are present; extensive second-degree or third-degree frostbite and other frostbite for which complications are present; irreversible mobility or avulsion of teeth; injuries to the eyes; ingestion of foreign substances and objects that are harmful; near drowning; and heat exhaustion or sunstroke. Serious maltreatment includes neglect when it results in criminal sexual conduct against a child or vulnerable adult.
It was determined that the substantiated maltreatment for which the SP was responsible was not recurring or serious as the transaction between the VA and the SP was considered a single incident of financial exploitation.
Substantiated as to financial exploitation of the VA by the SP.
Action Taken by Facility:
The facility completed an Internal Review and the SP was no longer employed at the facility.
Action Taken by Department of Human Services, Licensing Division:
It was determined that the substantiated maltreatment for which the SP was responsible in this report was not serious or recurring. However, information obtained by the Department of Human Services resulted in the SP being disqualified from a position allowing direct contact with, or access to, persons receiving services from facilities licensed by the Department of Human Services, the Department of Health, facilities serving children or youth licensed by the Department of Corrections, and unlicensed Personal Care Provider Organizations. The determination that the SP was responsible for maltreatment and the disqualification of the SP are each subject to appeal.