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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: 1090335-H_CRS (Home and Community-Based Services-Community Residential Setting) Investigator(s): Rebecca Mesto Suspected Maltreatment Reported: It was reported that two vulnerable adults (VA1 and VA2) had sexual contact on more than one occasion. During the investigation, it was also reported that several staff persons were found to be sleeping and/or lying down and leaving the facility while on shift. Date of Incident(s): January 8, 2022 and prior 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 February 9, 2022; from documentation at the facility, law enforcement records, and medical records; and through eight interviews conducted with a facility staff person (P1), two administrative staff persons (P2 and P3), a nurse (N) at a medical facility, VA1’s guardian (G1), VA2’s guardian (G2), VA1’s case manager (CM1), and VA2’s case manager (CM2). This investigator met VA1 and VA1 was interviewed by a person who specialized in interviewing victims of alleged sexual abuse. This investigator viewed VA1’s interview remotely, in which VA1 did not provide any details for this investigation. Due to a pending criminal investigation, the G did not want VA2 to be interviewed. This investigator contacted three additional staff persons (SP1, SP2, and P4), and communicated initially with each either via email or phone, but each did not respond to this investigator’s request for an interview. VA1 enjoyed painting and going shopping. VA1’s diagnoses included developmental delays and acute psychosis. VA1’s Coordinated Service and Supports Plan stated that VA1 was smart, observant, and hard working. Alone time was important for VA1. According to VA1’s Individual Abuse Prevention Plan, VA1 had a lack of understanding of sexuality, and was likely to seek or cooperate in an abusive situation. VA1 had an inability to be assertive. VA2 enjoyed sports, fishing, hunting, and spending time with family and friends. VA2’s diagnoses included developmental disability, intellectual disability, attention deficit hyperactivity disorder (ADHD), post-traumatic stress disorder (PTSD), impulse control disorder, oppositional defiant disorder, major depressive disorder, and bipolar disorder. VA2’s Coordinated Services and Supports Plan stated that VA2 required one to one staffing, 24 hours a day, to ensure his/hers and others safety within the home, and had no alone time. VA2 was at risk of self neglect due to behaviors that posed a threat of harm to him/herself and others. VA2 had a history of verbal and physical aggressions, property destruction, and making false accusations. VA2 had a “long history of sexually inappropriate behaviors” and had exposed him/herself and touched members of the opposite sex in an inappropriate manner. VA2 also had a “long history of legal involvement.” VA2 did not understand personal boundaries including sexual boundaries and had a history of being sexually abused. VA2 was not to be alone with staff persons of the opposite sex. VA2 had “zero alone time” at the facility or in the community. VA2’s Individual Abuse Prevention Plan stated that VA2 was previously incarcerated due to allegations of him/her perpetrating sexual crimes against others. VA2 had a history of “eloping.” The facility’s Program Abuse Prevention Plan stated that the facility had “awake staff supervision” with a ratio of two staff persons to four residents, 24 hours per day. The living areas on different levels and private bedrooms presented “some supervision challenges.” Supervision and “eyes on support” was to be adjusted based on individual behavior and potential risks presented throughout the day. Live stream video surveillance could be used in all common areas inside the facility, inside garages, and outside the perimeter of the facility. Residents may lock the bathroom and their bedroom doors and staff persons were to have keys to all doors. The facility was a one level home with a basement. On the main level was a kitchen, dining room, and living room. There was a short hallway leading from the kitchen to a bathroom and VA1’s bedroom. In the dining room was a large table and from that table, the hallway to the bathroom and VA1’s bedroom could not be seen. VA2’s bedroom was in the basement. Opposite of the dining room was the living room, which had a large open window overlooking the kitchen. Also downstairs was an office, a bathroom, and a living area with seating. There were cameras in some of the main areas of the home, including in the kitchen and dining room area. Information from the facility showed that two staff persons were required to be on shift during daytime and nighttime hours, in order to maintain the supervision requirements of the four individuals (including VA1 and VA2) at the time of the incident. The two overnight shifts were awake shifts. The facility’s Incident and Emergency Report and the facility’s Internal Review stated that on the evening of January 9, 2022, VA2 asked P1 how old VA1 was, but did not elaborate on why s/he wanted to know. P1 told the next staff who came on shift, P4, what VA2 said. P4 reported that VA2 was nervous that evening but would not provide any other information. Later that same evening, VA2 told SP1 that s/he had sex with VA1 on January 8, 2022, and went into VA1’s room by “acting” like they were using the bathroom when staff persons changed shifts. The Internal Review stated that the facility viewed video footage of the January 8, 2022, time frame which showed “there was no reaction from the staff [SP1] that was sitting at the table in the dining room.” VA2 also disclosed that s/he had sex with VA1 “multiple” times within the previous month (December 2021). VA2 said s/he wanted to have a child with VA1 to remember him/her by. VA1’s medical records and an interview with the N provided the following information: · On January 10, 2022, VA1 was seen at the hospital for an evaluation of sexual assault. · When VA1 was at the hospital, the N and G1 talked to VA1. VA1 was “good” at answering yes or no questions and sometimes did not answer their questions until they were asked three or four times.
· VA1 did not report any pain until during the genital exam. · When VA1 was asked if anyone hurt or touched him/her in his/her “private areas,” VA1 said VA2’s name. VA1 said that VA2 “pull[ed] my pants.” · During VA1’s exam, the N observed “vaginal laceration.” After they became aware of the incident, the facility viewed video footage from December 31, 2021, to January 10, 2022. Facility information showed that on January 8, 2022, P4 worked from 8:11 a.m. to 8:11 p.m. P1 worked from 8:34 a.m. to 9:34 p.m. SP1 worked from 8:06 p.m. to 8:58 a.m. SP2 worked from 9:22 p.m. to 8:18 a.m. VA1’s Daily Notes showed that on January 8, 2022, SP1 wrote that at 8 p.m., VA1 had already taken his/her medication and was in his/her bedroom when SP1 arrived on shift. VA1 stayed in his/her room “pretty much all night.” There were no Daily Notes written for VA2 for January 8, 2022. This investigator viewed the video footage from January 8, 2022, that was provided to him/her. At the time of the incident on January 8, 2022, it appeared that the majority of the lights in the kitchen and dining room were off and due to the lack of lighting and the angle of the camera, it was difficult to see the hallway. At 9:25 p.m., SP1 was sitting at the dining room table and a minute later, P1 walked into the dining room then walked out the door and left the facility. At 9:27 p.m., VA2 walked from the living room to the hallway and then appeared to go into the bathroom and shut the door. At that time, it could not be determined what SP1 was doing, but s/he was sitting at the dining room table. From where SP1 was sitting, s/he could not see the doors to the bathroom or to VA1’s bedroom. SP1 remained sitting at the table in the dining room and appeared to be looking at a cellphone for part of the video. The angle of the camera did not allow a view of SP1’s face, but his/her head could be seen occasionally. At 9:42 p.m., VA2 came from the hallway and walked into the kitchen and opened the refrigerator. A minute later, it appeared that VA1’s door opened, then shut. When VA2 opened the refrigerator, SP1 got up from the table, then SP1 and VA2 went into the living room. SP2 was not seen in the video footage. P2 provided the following information: · VA1 was “real quiet” and often stayed in his/her room. · VA2 was “high energy,” had “big behaviors,” and had a history of property damage. VA2 required a staff person to be within visual contact of him/her because s/he did not understand safety and may put him/herself in “danger.” VA2 could use the bathroom independently, but staff persons were to position themselves near the bathroom. VA2 could be alone in his/her bedroom, downstairs, but a staff person was to remain outside of VA2’s room while s/he was inside. VA2’s evening medication was administered at 8 p.m. and s/he usually went to bed between 11 p.m. and 1 a.m. VA2 did not typically come out of his/her room at night, but if s/he had to use the bathroom, s/he used the bathroom downstairs, by his/her room. · P2 watched the video footage from January 8, 2022, and stated that staff persons never checked on VA2 and if P2 had been working, s/he would have checked on VA2 when s/he was in the bathroom “so long.” · At nighttime, one staff person was to be upstairs and the other staff person was to be downstairs. P1 provided the following information: · P1 was not aware of the incident until s/he was informed by P4. VA1 and VA2 did not typically interact with each other and P1 had never seen VA2 go into VA1’s room. · Because of VA2’s high behaviors, s/he was to be supervised visually by staff persons, unless s/he was using the bathroom. VA2 required one on one care and the staff person working with him/her was to go with VA2 where ever s/he was in the home. VA2 typically went to bed at around 11 p.m. and a staff person was to stay downstairs in the living area. Sometimes VA2 slept on the couch upstairs and a staff person was to stay upstairs with him/her. Staff persons were not allowed to sleep while on shift. G1 stated that prior to the incident, s/he had concerns regarding VA1’s care because in the past, when s/he tried calling the facility, no one answered. CM1 did not have concerns regarding the care VA1 received prior to the incident. G2 stated that VA2 required 24 hour staffing and one to one care. VA2 had “poor judgement” and was “not capable of understanding.” After G2 was informed of the allegations, VA2 told G2 that s/he had been “joking” about the sexual contact between him/her and VA1, and did not provide any other information to G2. G2 stated that the facility “failed” VA2 and if they were “doing their job,” this would not have happened. CM2 stated that VA2’s supervision needs had been an “ongoing issue.” VA2 was “very sneaky,” which was why s/he required one on one care. VA2 was not a reliable reporter of events. During this investigation, law enforcement was also conducting a criminal investigation regarding the alleged incidents. According to information from law enforcement, a sexual assault exam kit was taken on January 10, 2022, which confirmed that VA2’s DNA was found in the sample taken from VA1. At the time of the completion of this investigation, the criminal investigation was ongoing. The facility viewed video footage from December 31, 2021, to January 10, 2022, and documented the following concerns regarding staff supervision: · On December 31, 2021, from 1 to 6:40 a.m., SP1 appeared to be asleep on the couch. · On January 1, 2022, from 9:33 a.m. to noon, a staff person (P5) was laying on the couch. From 6 to 8 p.m., P5 appeared to be asleep on the couch. At midnight, SP1 made a bed on the couch and appeared to be asleep until 8 a.m. · On January 2, 2022, at 2 a.m., SP1 appeared to be asleep on the couch for an unknown amount of time. At 11 p.m., P5 laid on the couch and appeared to be asleep until 8 a.m. · On January 3, 2022, at 1:45 a.m., P5 was seen lying on the couch, asleep until 7 a.m. · On January 6, 2022, at 11:51 p.m., a staff person (P6) left the facility and returned at 2:08 a.m. with food. · On January 7, 2022, from 1 to 7 a.m., a staff person (P7) laid on the couch and appeared to be sleeping. · On January 9, 2022, SP1 and SP2 appeared to be asleep in the living room from 2:15 a.m. to 8 a.m. · On January 10, 2022, from 2:21 to 6:23 a.m., SP1 appeared to be asleep on the couch. · During the above mentioned times, none of the residents were injured and no ill effects were noted. The facility’s internal review stated that after reviewing the video footage from December 31, 2021, to January 10, 2022, the performance of staff persons was addressed and six staff persons no longer worked at the facility and three staff persons received performance improvement plans. The facility’s Direct Support Professional Position Description stated that staff persons were responsible for providing personal care and health-related services to maintain each resident’s physical and emotional well-being. Facility documentation showed that each staff person interviewed for this investigation received training on the facility’s policies and the Reporting of Maltreatment of Vulnerable Adults Act. Documentation showed that SP1 had been trained on VA2’s plans, but there was no documentation showing training on VA1’s plans. There was no documentation showing SP2 received training on VA1’s or VA2’s plans. Information from an administrative staff person stated that SP1 and SP2 were each trained on VA1’s and VA2’s plans, but it had not been documented as required. Other facility information showed that eight of ten files reviewed did not contain documentation showing training on either VA1’s or VA2’s plans. Relevant Rules and/or Statutes: Minnesota Statutes, section 245D.07, subdivision 1a, (a) requires a license holder to provide services in response to an individual’s CSSP. Minnesota Statutes, section 245D.081, subdivision 2, (a) requires a license holder to ensure program coordination and evaluation occurs as required. Minnesota Statutes, section 245D.09, subdivision 4a requires a license holder to provide orientation to staff persons on an individual’s service recipient needs. Conclusion: A. Maltreatment: According to the facility’s Incident and Emergency Report, VA2 told SP1 that s/he had sex with VA1 on January 8, 2022, and “multiple” times in December 2021, when staff persons changed shifts. A sexual assault exam kit taken on January 10, 2022, confirmed that VA2’s DNA was found in the sample taken from VA1. Video showed that on the evening of January 8, 2022, after P4 left the facility and while SP1 sat at the dining room table, VA2 went into the hallway and possibly was in the bathroom for approximately 14 minutes. SP2 was also working, but was not seen in the video. VA2’s Coordinated Services and Supports Plan stated that VA2 required one to one staffing, 24 hours per day, and had no alone time, and was at risk of self neglect due to his/her prior destructive and aggressive behaviors. P1 and P2 each stated that a staff person was supposed to be either within visual range of VA2 or wait outside of VA2’s bedroom or the bathroom when VA2 was in either of those rooms. Video from December 31, 2021, to January 10, 2022 showed that there were various lapses in supervision from various staff persons, including staff persons sleeping on shift and leaving the facility, which was a violation of Minnesota Statute 245D.07, subdivision 1a (a). There was no information that the facility was aware that staff were not following supervision plans until video footage was reviewed after this allegation was made, which was a violation of Minnesota Statute 245D.081, subdivision 4. Additionally a review of facility records showed a lack of training, specifically training on VA1’s and VA2’s service plans, for multiple staff persons, which was a violation of Minnesota Statute 245D.09, subdivision 4a. Given that that VA2’s plans stated that s/he required one to one staffing, 24 hours a day to ensure his/hers and others’ safety within the home, and had no alone time; that VA2’s plans stated that s/he had a “long history of sexually inappropriate behaviors,” had a history of legal involvement and was not to be alone with staff persons of the opposite sex; and that P1 and P2 each stated that due to VA2’s behaviors, a staff person needed to be within visual contact of VA2; that no staff person was aware of where VA2 was for approximately 14 minutes on the night of January 8, 2022 (and therefore could have had access to VA1’s room); and that information supported that VA2 had sexual contact with VA1 prior to January 10, 2022 when a sexual assault kit was administered to VA1 and possibly on multiple additional occasions as reported by VA2, there was a preponderance of the evidence that there was a failure to provide VA1 and VA2 with care and supervision which was reasonable and necessary to maintain their physical or mental health or safety. It was determined that neglect occurred (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. VA2 had prior allegations of perpetrating sexual crimes against others, a history of eloping, and self neglect and therefore required one to one staffing and had no alone time at the facility. Video footage from January 8, 2022, showed that staff persons were not providing the required level of supervision to VA2 was while s/he was in the bathroom and/or hallway for fourteen minutes. During that time, SP1 sat at the dining room table and was not within visual range of VA2, and VA2 could have had access to VA1’s room. Given VA2’s history, the facility had a responsibility to train staff persons on VA2’s and each other individual’s plans so that they could maintain adequate supervision of the individuals at the facility and to oversee and ensure that that supervision occurred. Facility documentation showed lapses in this training. The facility found various lapses of supervision after viewing video footage from December 31, 2021, to January 10, 2022, and information from law enforcement supported that sexual contact likely occurred on January 8, 2022, as stated by VA2. The facility was responsible for ensuring the individuals received adequate supervision to prevent harm or possible injury to the individuals. Given that staff persons lacked sufficient training on the individual’s plans, and that numerous staff persons engaged in sleeping on their shifts which resulted in a lack of supervision, it was reasonable to conclude that there was a systemic failure to oversee implementation of adequate staff training and implementation of individual care plans to ensure the safety of the individuals residing in the facility. The facility was responsible for maltreatment of VA1 and VA2. C. Serious Maltreatment: The Office of Inspector General is required to evaluate whether substantiated maltreatment by a facility meets the statutory criteria to be determined as “serious.” 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 facility was responsible did not meet statutory criteria to be determined as serious. Although VA2 engaged in sexual contact with VA1, at the time of the conclusion of this investigation, it was not determined whether the incident met the definition of criminal sexual conduct and neither VA sustained injury that would reasonably require the care of a physician. Action Taken by Facility: The facility completed an internal review and determined that their policies and procedures were adequate but not followed. All staff persons were immediately retrained. Some staff persons were terminated and other staff persons received a performance improvement plan. VA1 and two other residents were removed from the facility. Action Taken by Department of Human Services, Office of Inspector General: On June 27, 2022, the facility was issued a Determination of Maltreatment. Based on the determination of substantiated maltreatment and the nature, severity, and chronicity of licensing violations an Order of License Revocation was also issued. The maltreatment determination and the revocation are each subject to appeal.
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