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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: 1093774-H_CRS (Home and Community-Based Services-Community Residential Setting) Investigator(s): Danielle Morrison Suspected Maltreatment Reported: It was reported that a staff person (SP) pushed, slapped, and hit a vulnerable adult (VA) with a broom handle resulting in injuries to the VA’s ear lobe, scratches on the VA’s neck, and a red mark on the back of the VA’s neck. Date of Incident(s): April 20, 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 2, paragraph (b), clause (1): Conduct which is not an accident or therapeutic conduct which produces or could reasonably be expected to produce physical pain or injury or emotional distress including, but not limited to: hitting, slapping, kicking, pinching, biting, or corporal punishment of a vulnerable adult. 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 nine interviews conducted with two administrative staff persons (P2 and P5), six facility staff persons (SP, P1, P3, P4, P6, and P7), and the VA’s guardian (G). The facility was a multi-level end unit town home. The upstairs had two bedrooms and an office, the main level had a kitchen and living room, and the lower level had a sensory play room and access to the garage. The VA lived in this facility with another client (C). There was no parking in front of the town home so staff had to park in the designated parking areas and walk to the facility. There was usually three staff working per shift at the facility. The VA’s diagnosis was autism. The VA liked to go on rides at Mall of America and Valley Fair. The VA loved his/her swing and sensory time. P1 provided the following information to DHS and law enforcement: · On April 20, 2022, P1 arrived at the facility around 3:05 p.m. for his/her shift. The VA was seated on the couch and the SP was in the kitchen. P1 introduced him/herself to the SP as they had not yet worked together. They were talking when the VA came into the kitchen behind the SP and got close to the SP. The SP pushed the VA away and the VA became agitated and tried to hit the SP. The SP yelled at the VA, pushed the VA again, and slapped the VA across the face. The SP kept pushing the VA so that the VA ended up over by the bathroom. P1 told the SP to stop. The VA’s glasses came off. The VA was upset, biting his/her fingers, and hitting his/her head on the wall. A picture came off the wall at that time and hit the VA on the back of his/her head. · The SP grabbed a broom handle, so P1 went downstairs to the garage to see where P3 was as P1 wanted someone else there. P3 was not there, nor was the van. · P1 went back upstairs and saw the SP “tapping” the VA on the left ear/shoulder area “over and over” with the broom handle. · P1 tried to give the VA his/her glasses, but the SP said “no” so P1 set them on the table. The VA was bleeding on his/her left ear so the SP used the VA’s sweatshirt to clean it up. The VA was sitting down at this time. · P1 heard the garage door open and told the SP that s/he had an emergency and left. P1 saw P3 as s/he was leaving and mentioned to P3 that the SP was “not being nice to the client.” P1 left around 3:15 p.m. P2 provided the following information to DHS and law enforcement: · On the afternoon of April 20, 2022, P2 called P1 to tell him/her that P2 was going to come to the house to go over some information with P1. At that time P1 told P2 what s/he had observed at the facility in regards to the SP pushing, slapping, and hitting the VA with a broom handle. P2 went to the facility and found P3 and P4 in the kitchen and the VA seated next to the SP on the couch. When P2 arrived the VA stood up, hugged P2, and said “[P2], [the SP] hit [the VA].” P2 asked the SP to clock out for the day and go home. The SP called P2 after s/he left and told P2 that the VA had a behavior, was hitting the walls, and the VA “must have hit [him/herself] or got scratches.” · Photos of the VA’s ear and neck area were taken about an hour after the incident on April 20, 2022, and showed three scratches on the VA’s neck (ranging in length from one inch-one and a ½ inches), a red mark across the back of his/her neck (approximately two inches in length and ½ inch in width), and a small cut on the VA’s ear. P3, P4, P5, P6, and P7 provided the following information: · P5 spoke with the SP about the incident and the SP told P5 that the VA appeared “agitated” when the SP arrived to the facility on April 20, 2022, around 2:27 p.m. P6 had been working with the VA and told the SP that the VA refused a van ride with P3 and the C. At this time the VA was hitting his/her head on the wall. The SP stated that P6 picked up a picture that had fallen off the wall in the living room while the VA was hitting his/her head on the wall. The SP heard the garage door open and P6 asked if the SP was okay with him/her leaving as his/her shift was over. The SP told the VA to not hit the wall and the VA went and sat down on the couch. P1 arrived at the facility at this time and the SP was in the kitchen. The SP said the VA started to hit his/her head on the wall again and the SP told the VA to stop, but a picture frame fell off the wall and hit the VA in the ear. The SP said the VA calmed down and sat in a chair for the SP to administer first aid. The SP said P1 left the house before the SP wrapped the VA’s ear. · P3 said that on April 20, 2022, the VA was in an “off mood” and refused to go on a van ride with the C. P7 and P6 were also working at that time. P3 took the C on a van ride and dropped P7 off at his/her car as it was raining that day and P7’s shift was ending. On the way back P3 saw P4 and offered him/her a ride. P3 and P4 took the C for a ride and returned back to the facility. When they arrived back at the facility, P1 came out of the garage and told P3 that s/he needed to leave. P3 said the house “was different” when s/he came back inside. When P3 entered the facility, the SP and the VA were sitting on the couch and there was a picture on the floor. The SP told P3 that the VA had a “behavior” and was hitting the wall. P3 did not see any blood or marks on the VA at that time. P2 arrived at the house around 4:45 p.m. and took the SP upstairs to the office. The SP then left the house. P3 saw P2 administer first aid to the VA’s ear and that was the first time P3 saw the marks. P3 said s/he had not seen the VA with marks like these before. · P4 stated that after s/he parked his/her car, s/he saw P3 driving in the van with the C, so P4 asked P3 for a ride since it was raining out. P4 asked P3 who was at the house and P3 said the SP and P6. P3 and P4 drove the C to Target and came back to the house around 3:10 p.m. P4 saw P1 leave the house and when P4 entered, the SP and the VA were seated on the couch. P2 called the house telephone and P4 spoke with him/her. About 10 minutes later, P2 showed up at the facility. P2 called the SP into the office and then the SP left for the day. P2 asked P3 and P4 if they had seen the injury to the VA. P4 looked and saw that the VA’s ear was pink and there was some blood, and there were scratches on the VA’s neck. P4 asked the VA what happened and the VA did not answer. The SP did not say that the VA was injured due to any “behaviors.” · P6 said that the VA was in a “bad mood” as the VA did not handle rainy weather well. The VA was hitting his/her head against the wall and slapping the door and kitchen cupboards with an open hand. P3 asked the VA if s/he wanted to go for a van ride, but the VA refused. Around 2:30 p.m., the SP arrived to the facility. The VA had calmed down and was looking out the window from the couch. P6 saw P4 drive by so P6 asked the SP if s/he was okay with P6 leaving since P4 was just parking his/her car and then would be inside. The SP said s/he would be okay with the VA. P6 left between 2:50-3:00 p.m. P6 said the VA did not have any marks on him/her when P6 left for the day. P6 saw the marks on the VA the next day and said that the scratches and marks were not usual compared to the usual self-inflicted scratches, which were much smaller, that the VA gave him/herself. · P7 and P3 both asked the VA if s/he wanted to go for a van ride, but the VA refused the offer. P7 left the facility and P3 offered P7 a ride to his/her car around 2:16 p.m. P7 said that the VA was not injured in the morning and that s/he saw the marks on the VA the next day. There were three scratch marks on the VA’s neck and a red spot on the left ear. P2, P3, P4, P5, P6, and P7 did not have prior concerns with how the SP interacted with the VA and did not see the SP hit the VA. The G spoke with P2 in regards to the incident. On April 21, 2022, the G saw the VA and asked how s/he got his/her “owie.” The VA shook his/her head and backed up. The G told the VA s/he was sorry that the VA was hurt and asked if the VA knew who did it. The VA replied “[the SP].” The SP provided the following information: · When the SP arrived to the facility on April 20, 2022, the VA was on the front deck waiting for the SP. The SP said the VA seemed “agitated” as the SP walked up to the house. P6 was at the facility with the VA and told the SP that P3, P7, and the C were on a van ride, but the VA refused to go. The VA was hitting his/her head on the wall and P6 picked up a picture frame in the living room that had fallen. The SP heard the garage door open and P6 asked the SP if s/he was okay with P6 leaving since his/her shift was over. The SP told the VA to stop hitting his/her head, the VA stopped, and went and sat on the couch. · The SP went into the kitchen to get the VA a snack. It was at this time P1 arrived to the facility and introduced him/herself to the SP. The VA went into the kitchen and started hitting his/her head on the wall. The VA hit the SP on his/her chest and spit at the SP. The SP told the VA to use his/her words and the SP blocked his/her face from getting hit/spit on. The SP told the VA to stop, and a frame fell off the wall, and hit the VA in the ear. The VA was also scratching him/herself. The VA calmed down and sat in a chair. The SP went into the med closet and got gauze to wrap the VA’s ear. · P1 told the SP that there was a family emergency and P1 left the facility before the SP wrapped the VA’s ear. · When P3 and P4 arrived back at the facility, the SP and the VA were in the living room. The SP thought P4 arrived around 4 p.m. and P3 sometime between 4-5 p.m. The SP saw P1 with P3 and asked P3 if P1 had told him/her that the VA had a “behavior.” P3 told the SP they “did a mistake because they left me alone.” · P2 arrived at the facility and told the SP to go home and someone from the office would call the SP tomorrow. · The SP denied pushing, slapping, or hitting the VA with a broom handle. Law enforcement also investigated this incident and submitted the case to the county attorney for possible charges. The facility records showed the SP, P1, P2, P3, P4, P6, and P7 were all trained on Reporting of Maltreatment of Vulnerable Adults and the VA’s plans. Conclusion: A. Maltreatment: On April 20, 2022, P1 saw the SP push, slap, and hit the VA with a broom handle. When P2 arrived at the facility the VA said “[P2], [the SP] hit [the VA].” The VA had three scratch marks on his/her neck, a red mark on the back of his/her neck, and a cut on his/her ear that bled. The SP denied pushing, slapping, or hitting the VA with a broom handle. The SP stated that the VA hit the SP on the chest and was spitting at the SP. The SP tried to block his/her face and told the VA to stop. The SP said the VA was hitting his/her head on the wall when a picture frame fell and hit the VA’s ear. Given that P1 saw the incident, the VA sustained injuries, and the VA told P2 that the SP hit the VA and the G that the SP caused the injury, there was a preponderance of evidence that the SP engaged in conduct that produced physical pain and injury. It was determined that physical abuse occurred (conduct which is not an accident or therapeutic conduct which produces or could reasonably be expected to produce physical pain or injury or emotional distress including, but not limited to: hitting, slapping, kicking, pinching, biting, or corporal punishment 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. P1 observed the SP slap, push, and hit the VA. The SP was trained on the Reporting of Vulnerable Adults Act. 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 abuse for which the SP was responsible was serious because the VA sustained scratches, a red mark on the back of the neck, and a cut on his/her ear. The SP was disqualified from providing direct contact services. Action Taken by Facility: The facility completed an internal investigation and found their policies adequate. The SP no longer worked at the facility. Action Taken by Department of Human Services, Office of Inspector General: The SP was disqualified from a position allowing direct contact with, or access to, persons receiving services from programs, organizations, and/or agencies that are required to have individuals complete a background study by the Department of Human Services as listed in Minnesota Statutes, section 245C.03. The determination that the SP was responsible for maltreatment and the disqualification of the SP are each subject to appeal.
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