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MALTREATMENT INVESTIGATION MEMORANDUM 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.”
License Number and Program Type: 1079030-HCBS (Home and Community-Based Services) Investigator(s): Toni Puente Suspected Maltreatment Reported: It was reported that a staff person (SP) permitted a vulnerable adult (VA) to remain in Wal-Mart without supervision while the SP went to the get the facility vehicle. During this time, the VA shoplifted personal needs items rather than scanning them at the self-checkout, was questioned by law enforcement, and was no longer allowed in the store. Date of Incident(s): April 21, 2022 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 17, paragraph (a): The failure or omission by a caregiver to supply a vulnerable adult with care or services, including but not limited to food, clothing, shelter, health care, or supervision which is reasonable and necessary to obtain or maintain the vulnerable adult's physical or mental health or safety, considering the physical and mental capacity or dysfunction of the vulnerable adult and which is not the result of an accident or therapeutic conduct. Summary of Findings: Pertinent information was obtained during a site visit conducted on May 17, 2022; from documentation at the facility and law enforcement records; and through three interviews conducted with a supervisory staff persons (P1), an administrative staff person (P2), and the VA. This investigator left a voicemail for the VA’s guardian (G), but the G did not contact this investigator. Attempts were made via telephone, certified mail, text message, and email to contact and interview the SP but the SP did not respond to the requests. The VA began receiving services from the facility on May 19, 2020, and the facility provided Individualized Home Services (IHS) with training to the VA, which typically included: medication management, transportation, appointment management, communication and skills, community outings, household management, shopping, and personal safety. The facility was authorized to provide IHS services 16 hours daily, and overnight supervision 8 hours daily. The VA’s diagnoses included anxiety disorder, adjustment disorder, epilepsy, and developmental disabilities. The VA enjoyed participating in community events such as going out to eat and shopping and creating arts and crafts. The VA’s program plans including the Coordinated Service and Support Plan Addendum (CSSPA), Individual Abuse Prevention Plan (IAPP), and Intensive Support Services Assessment (ISSA) provided the following consistent information: · The VA had a history of inappropriate or intrusive behaviors with individuals that s/he may not know, so staff persons provided one to one supervision to the VA at all times, both in the community and at his/her home. · Due to the VA’s diagnosis, the VA may not always associate his/her actions with consequences. The VA may struggle with expressing his/her feelings and/or report events, including medical concerns or allegations, that s/he thought were occurring in the present, but they were associated with a previous trauma in his/her life. Staff persons were available to talk to the VA and utilize various de-escalation and coping techniques to support the VA’s complex behavioral needs. The VA’s Rights Restriction stated that the VA received $75/week for personal needs shopping and had financial rights restriction due to overspending; but effective September 21, 2021, the VA’s financial rights restriction ended, and the VA’s funds were no longer required to be kept in a locked safe or budgeted with staff persons. Information was consistent that sometime in March 2022, the VA had foot surgery, and at the time of the incident the VA wore a cast boot. P1 added that the VA was able to walk with limited weight bearing or use an electric scooter located at the store. The VA and P1 each stated that the VA did not have a history of shoplifting, but P2 added that in the past, the VA engaged in fraudulent check use. P1, P2, and the VA’s program plans added that due to the VA’s history of “false reporting,” s/he may not be an accurate reporter of events, so staff persons provided one to one supervision to the VA to ensure the VA’s health and safety and to monitor his/her interactions with others. The VA provided the following information: · On the date of the incident (April 21, 2022), the SP drove the VA to Wal-Mart and dropped the VA off at the entrance so that the VA could get an electronic scooter. The SP parked the facility vehicle and met the VA at the entrance. The SP accompanied the VA into the store and when s/he was done shopping, the SP and the VA walked to the self-checkout and the VA began scanning his/her items. At that time, the SP left the VA at the self-checkout and went outside to bring the facility vehicle closer to the exit for the VA. Once the VA was done scanning his/her items, s/he swiped his/her electronic debit card, grabbed his/her bags, and began towards the exit but was stopped by Wal-Mart security. A store employee asked the VA for a receipt but the VA stated that s/he did not receive one when s/he swiped his/her card. After talking with security for “thirty” minutes, the SP entered into the store and law enforcement (LE) arrived as well. They went to the security office and observed surveillance video of the VA. The VA was told that when s/he swiped his/her debit card, the card was declined for insufficient funds. The VA stated that s/he thought s/he had $200 on the card, so when s/he swiped his/her card, s/he thought the items were paid. The VA denied that s/he was alerted at the self-checkout that the card was declined. The VA returned the items and called the agency’s response team, as well as P1 to notify him/her of the incident. · The VA was not given a ticket, charged, or sustained any legal ramifications as a result of the incident, with the exception that that the VA was no longer allowed to shop at the store. · The VA stated that at the time of the incident s/he had a boot cast on his/her foot from a previous surgery. The VA was not able to walk long distances, so s/he used an electric scooter while shopping. Since the electronic scooter was not able to be driven past the front entrance, staff persons provided supervision to the VA until the items were purchased and the VA returned the scooter. Then the VA waited at the entrance for the staff person to get the vehicle and drive it to the entrance. P1, P2, and facility documentation including the Incident and Emergency Report, the Behavior Intervention Reporting Form, and the Internal Review, provided information regarding what the VA told P1 about the incident that was consistent with the information that the VA provided to this investigator. Although the SP did not respond to interview requests by this investigator, the SP provided information in the Shift Notes and to P1 that was also consistent with the information that the VA provided to P1 and to this investigator, with the exception of the duration of time that the SP left the VA without supervision. P1, P2, and facility documentation provided the following additional information: · On April 21, 2022, from 3 to 11 p.m., the SP was scheduled to work with the VA, and they went to Wal-Mart around 5 p.m. After shopping, the SP moved the facility vehicle to the front entrance. The SP told P1 that s/he remained in the vehicle for between 7 to 10 minutes, and when the VA did not exit the store, the SP went back inside the Wal-Mart. Upon entering the store, the SP observed that the VA was talking to Wal-Mart security. · The VA was able to independently manage his/her cash on hand and his/her debit card for personnel purchases. At the time of the incident, the VA thought that s/he had funds available, but when s/he swiped his/her card at Wal-Mart, it indicated that s/he had insufficient funds for his/her purchase, but the VA placed his/her items in a bag and attempted to walk out without paying for them. · P1 stated that when the VA used an electric scooter, staff persons continued to maintain visual supervision by either having the VA walk to and from the store with them; or driving the facility vehicle to the entrance, observing the VA obtain a scooter, and then requesting that the VA wait at the front entrance so staff persons were able to see him/her while they parked the vehicle. Then, when the VA was done shopping and all items were purchased, staff persons remained with the VA while s/he returned the scooter, and then requested that the VA wait in front of the exit door while they retrieved the vehicle and returned to pick up the VA and his/her items. P2 stated that during that time, s/he was not aware whether the VA had a handicap placard for parking or how staff persons were to assist the VA with supervision and with limited mobility due to the boot cast. · Prior to the incident, there were no concerns regarding the SP’s job performance or involvement in similar allegations. P1 stated that all staff persons read the VA’s program plans and were aware that the VA required supervision at all times, even when the VA was asleep. P1 added that the SP began working with the VA prior to P1, so P1 thought that the SP completed a Familiarization Form with a previous supervisory staff person. P1 and P2 each stated that when P1 talked to the SP about this incident, the SP told P1 that s/he was aware of the VA’s supervision requirements but left the VA without supervision for a duration of time. Personnel files showed that the P1 and the SP each received training on the Reporting of Maltreatment of Vulnerable Adult Act prior to April 21, 2022; however the facility’s Internal Review and a review of the SP’s personnel file showed that the SP did not receive training on the VA’s program plans, which was a violation of Minnesota Statutes, section 245D.09, subdivision 4a, paragraph (c), which states that the license holder will ensure that staff persons review and receive instruction on the person’s coordinated service and support plan (CSSP) and CSSP addendum and how to implement those plans. Relevant Rules and/or Statutes Minnesota Statutes, section 245D.07, subdivision 1a, states that license holder must provide services in response to the person’s identified needs, interests, preferences, and desired outcomes as specified in the coordinated service and support plan and coordinated service and support plan addendum and in compliance with the requirements of this chapter. Conclusion: A. Maltreatment: Information obtained showed that the VA required staff person supervision at all times while in the community. Information was consistent that on April 21, 2022, the SP accompanied the VA to Wal-Mart and provided supervision while shopping. When the VA was at the self-checkout, the SP left the VA without staff person supervision to bring the facility vehicle closer to the exit. The SP remained in the vehicle between 10 to 30 minutes, and then when the VA did not exit the store, the SP went back inside the Wal-Mart. The SP’s failure to supply the VA with supervision was inconsistent with the standards of a professional caregiver in a facility licensed by the Department of Human Services a violation of each of their plans and a violation of Minnesota Statutes, section 245D.07, subdivision 1a. Although the VA did not have a history of shoplifting, given that the VA was at risk for inappropriate or intrusive behaviors with others when in the community, and was left unsupervised and subsequently stole from and was no longer allowed at Wal-Mart, there was a preponderance of the evidence that allowing the VA to be unsupervised at Wal-Mart was a failure to supply the VA with care or services including supervision which was reasonable and necessary to obtain or maintain the VA’s physical or mental health or safety. It was determined that neglect occurred (the failure or omission by a caregiver to supply a vulnerable adult with care or services, including but not limited to food, clothing, shelter, health care, or supervision which is reasonable and necessary to obtain or maintain the vulnerable adult's physical or mental health or safety, considering the physical and mental capacity or dysfunction of the vulnerable adult and which is not the result of an accident or therapeutic conduct.) 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. The SP was trained on the Reporting of Maltreatment of Vulnerable Adult Act prior to April 21, 2022. Although there was no documentation that the SP received training on the VA’s program plans (which was a violation as outlined above), P1 and P2 each stated that when P1 talked to the SP about this incident, the SP told P1 that s/he was aware of the VA’s supervision requirements. The SP was responsible for maltreatment of the VA. C. Recurring and/or Serious Maltreatment: The Office of Inspector General 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 neglect for which the SP was responsible did not meet statutory criteria to be determined as recurring or serious because the SP’s failure to supervise was a single incident and the VA did not sustain a serious injury that required the care of a physician. Action Taken by Facility: The facility completed an in internal review and determined that its policies and procedures were adequate but not followed when the SP left the VA without supervision. On April 28, 2022, the SP received training on the VA’s supervision requirements and received a Performance Improvement Plan. As part of the internal review process, it was also discovered that although the SP began working with the VA on February 14, 2022, there was no documentation that the SP received training on the VA’s program plans. The SP was not able to work with the VA until s/he received training as required. The SP no longer worked at the facility. Action Taken by Department of Human Services, Office of Inspector General: The SP was not disqualified from providing direct care services as a result of the maltreatment determination in this report. However, the SP was notified by the Office of Inspector General that any further substantiated act of maltreatment, whether or not the act meets the criteria for “serious,” will automatically meet the criteria for “recurring” and will result in the disqualification of the SP. The determination that the SP was responsible for maltreatment is subject to appeal. On June 8, 2022, the facility was issued a Correction Order for the violations outlined in this report.
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