|
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: 1072442-H_CRS (Home and Community-Based Services-Community Residential Setting) Investigator(s): Rebecca Mesto Suspected Maltreatment Reported: It was reported that there were boundary issues between several staff persons (SP1-SP3) and a vulnerable adult (VA), which included providing marijuana to the VA. Date of Incident(s): Prior to April 7, 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 9, paragraph (b), clause (4); and subdivision 17, paragraph (a): In the absence of legal authority a person forces, compels, coerces, or entices a vulnerable adult against the vulnerable adult's will to perform services for the profit or advantage of another. 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 2, 2022; from documentation at the facility; and through six interviews conducted with the VA, SP2, SP3, two administrative staff persons (P1 and P3), and the VA’s case manager (CM). This investigator attempted to contact SP1 by phone and mail, but those attempts were unsuccessful. The VA enjoyed doing arts and crafts and was looking forward to going back to college. The VA’s diagnoses included borderline personality disorder, major depressive disorder, post-traumatic stress disorder, and anxiety disorder. The VA was not subject to guardianship. The VA’s Individual Abuse Prevention Plan stated that the VA was susceptible to self-abuse and had a history of self injurious behaviors. The VA’s Coordinated Services and Supports Plan stated that the VA did not have the judgement to make appropriate decisions or to take action in a potentially harmful situation. The VA was at risk of exploitation by others. The VA’s Coordinated Service and Support Plan Addendum stated that the VA had alone time in the community. The facility was a home which was shared by the VA and three other residents. A former staff person, (P2) was involved in a previous maltreatment investigation (DHS report 202108033) where s/he was determined responsible for maltreatment of the VA. P2 was determined responsible for neglect of the VA after s/he assisted the VA in obtaining and using marijuana, and enabled the VA to engage in illegal activity, placing the VA at risk of legal consequences. The VA provided the following information: · After P2 stopped working at the facility, SP1 drove the VA to the store and other places, so the VA could smoke the marijuana that the VA had “stockpiled.” After the VA used all of his/her marijuana, SP2 “stepped in” and supplied the VA with marijuana. SP1, SP2, and SP3 each were aware of and allowed the VA to smoke marijuana. The VA kept his/her marijuana in his/her room at the facility and sometimes smoked it outside at the facility. · SP1 did not regularly supply the VA with marijuana, but had given one or two “bud[s]” to the VA on two occasions. · On two occasions, in or after July 2021, the VA was running out of marijuana, so SP2 gave the VA $100 worth of marijuana. Then, SP2 brought the VA to his/her dealer’s house and the VA began dating the dealer. SP2 also brought the VA to SP2’s family member’s home to smoke marijuana.
· SP2 brought the VA to his/her home, where the VA helped SP2 clean his/her house, in exchange for the marijuana. · SP1 and SP2 did not smoke marijuana with the VA, but SP3 did. SP3 had a medical marijuana card and SP3 brought the VA to his/her house and allowed the VA to smoke his/her own marijuana. · Throughout the time that SP1 worked at the facility, s/he texted with the VA, to try to “control” and “keep tabs” on the VA. SP1 sometimes texted the VA about marijuana and also just to ask what s/he was doing. The VA thought SP1 was his/her friend. SP1 told the VA to erase his/her text messages daily and told the VA not to text with him/her during the day, when others could potentially see it. SP2 also texted with the VA. · In March 2022, the VA attempted to decrease the amount of marijuana s/he used because s/he had become “addicted.” SP2 “threw [the VA] under the bus,” after the VA tried to report the incidents with staff persons. SP1 lied to the VA about what other residents and staff persons were saying about him/her, which caused the VA to “break down,” become suicidal, and then hospitalized. SP1 also told the VA personal information about other residents. · One night in February 2022, the VA said that SP2 was lying in bed with him/her, but because the VA took medications to help him/her sleep, the VA did not recall much about the incident. · SP1, SP2, and SP3 were each aware that the VA had a history of addiction to alcohol. Staff persons “took away” the VA’s sobriety and then the VA had to move away from the facility in order to maintain his/her sobriety. · P1 and P3 told the VA that if s/he shoveled and de-iced outside, s/he would be paid $20 each time. From November 2021 to March 2022, the VA shoveled but did not get paid. The CM stated that on April 6, 2022, the VA told the CM that after P2 was terminated from employment at the facility, the VA smoked marijuana with SP1, SP2, and SP3, sometimes at their personal homes. SP1, SP2, and SP3 bought marijuana for the VA and in return, SP1 and SP3 took the VA’s personal items because the VA could not afford to pay them. SP2 gave the VA items and also threatened the VA so that the VA would not tell on him/her. The VA was a reliable reporter and initially did not report the incidents with staff persons because s/he thought they were his/her friends. SP2 provided the following information: · The VA was very “personable” and “likeable,” but was “very manipulative,” by making others feel “bad” for him/her. SP2 was “overly help[ful]” to the VA and purchased snacks and other items for him/her. “Most” of the staff persons who worked with the VA had “overstepped boundaries” (by texting/calling) with him/her and consequently were reprimanded by supervisors. · SP2 was not aware how the VA obtained his/her personal phone number, but the VA and SP2 texted and called one another, especially if the VA was upset and wanted to talk to SP2. · SP2 took the VA to various locations, including to his/her new apartment and a family member of SP2’s home, but the VA spent less than five minutes at those locations. The VA offered to clean SP2’s home, but denied that the VA cleaned anything in his/her home. SP2 was not aware if the VA went to any other staff person’s home. · On one occasion, the VA had a pair boots that did not fit him/her and so s/he sold them to SP2 for $40. · On one occasion, the VA had an anxiety attack and was waiting for his/her anxiety medication to be refilled. The VA told SP2 that if s/he had a “little bit of weed,” s/he would be able to calm down. SP2 knew someone who had medical marijuana and brought the VA a “tiny bit” and after the VA smoked it, s/he felt “a lot better.” SP2 denied smoking marijuana with the VA. SP2 heard that P2 used to give the VA marijuana, but s/he was unaware if any other staff person supplied the VA with marijuana. · One day, after SP1 was terminated from employment, the VA was “stressed out” and asked SP2 to watch television with him/her in his/her room. SP2 went into the VA’s bedroom, sat on the VA’s bed and put his/her legs under the covers, and watched 30 minutes of television with the VA. SP2 said the VA’s bedroom door was open and s/he denied touching the VA in an inappropriate manner. At the time, SP2 was not aware that staff persons were not to go into resident’s bedrooms. · SP2 stated that his/her interactions with the VA had “no ill intent” and no one at the facility treated the VA “bad.” All staff persons who worked with the VA tried to be “very good” to the VA. · The VA was both a reliable reporter of events and also was not reliable in his/her reporting. Some things the VA said about SP2 were true, but other things were false. · The VA shoveled at the facility and was “hoping” to get paid for his/her work and was “upset” that no one offered to pay him/her. SP3 provided the following information: · The VA was “very persuasive” and “kind of ruled the house.” SP3 did not spend a lot of time with the VA and SP3 was unsure if the VA was typically a reliable reporter of events, but the VA was not accurate in what s/he said about SP3. · SP3 denied having the VA’s phone number and said s/he never texted or called the VA. · SP3 was not aware of any staff person taking the VA to their personal homes and SP3 denied taking the VA to his/her home. SP3 had only transported the VA to a store on one occasion. · SP3 was not aware of the VA smoking marijuana and denied supplying the VA with marijuana or smoking marijuana while working. · SP3 was not aware of the VA giving any staff person any of his/her personal items. · The VA sometimes shoveled at the facility, but SP3 was not aware of any sort of payment made or payment arrangement regarding shoveling. P1 provided the following information: · Staff persons got along well with the VA, but there were “issues with boundaries” regarding staff persons and their interactions with the VA. Staff persons were found to have talked about their personal problems with the VA and had taken the VA to their homes. P2 was terminated from employment because of his/her interactions with the VA. · SP1 had more of a “friend” relationship with the VA and told the VA about other resident’s personal information. The VA told P1 that SP1 took him/her to get marijuana. · The VA told P1 that SP2 brought him/her marijuana a “couple” times and that SP2 texted with the VA. The VA also said that s/he had gone to SP2’s home and helped him/her clean. · The VA told P1 that SP3 took him/her to his/her apartment and they smoked the VA’s marijuana together. · The facility’s policies stated that staff persons were not to text or call residents. In the winter of 2021, when P1 was originally informed that staff persons (SP1 and SP2) were texting/calling the VA, staff persons were retrained, and until the VA told P1 in the spring of 2022, P1 did not know it was still occurring. · The VA was typically a reliable reporter of events, but sometimes was not honest if it would get him/her in trouble. On an unknown date, another resident reported that s/he smelled marijuana near SP1’s car when SP1 and the VA were in the car and when asked about it, both SP1 and the VA denied smoking marijuana. Just before the VA stopped residing at the facility, s/he told P1 that s/he and SP1 had smoked marijuana in the car. · The VA sometimes shoveled outside the facility because it was hard for some staff persons to shovel. P1 told the VA that s/he may be able to pay him/her for shoveling and talked to P3 about it. P3 told P1 that s/he may be able to give the VA a gift card for shoveling, but P1 was unaware if the VA ever received a gift card. The facility’s Incident Report and Internal Review, dated March 8, 2022, completed by P1, stated that P1 was informed by the VA that SP1 continued to text him/her, told him/her personal information about other residents, and that SP1 and the VA smoked marijuana in SP1’s car. P3 provided the following information: · When concerns about SP1, SP2, and SP3 texting/calling the VA were brought to P3’s attention, staff persons received retraining and then each was terminated after additional noncompliance issues. · Residents were encouraged to help at the facility, because it was their home, but P3 denied telling the VA or anyone else that the VA would be paid to shovel. There were times when the facility would “reward” the residents for a “great job” by ordering pizza or getting additional personal items for them. P3 stated that it was against company policy to pay residents money for tasks. · In the past, the VA said things about staff persons that were untrue. For example, the VA originally said s/he smoked cigarettes and/or e-cigarettes in SP1’s car, but then when the VA was moving out, the VA changed his/her story and said s/he smoked marijuana in SP1’s car. The VA “throws people under the bus” when it was “convenient” for him/her. The Resident Counselor Job Description stated that staff persons were to provide a safe environment to the residents. A memo to staff persons entitled Boundaries in the Work Place stated that staff persons were to maintain a level of professionalism. Staff persons were to provide care to the residents in a “respectful and congenial fashion.” Staff persons were not to “fraternize” with the residents and were not to discuss any resident’s personal or medical information with others. Facility documentation showed that SP1-SP3, P1, and P3 each received training on the Reporting of Maltreatment of Vulnerable Adults Act and on the facility’s policies. The facility lacked documentation regarding staff persons training on the VA’s plans. Conclusion: Regarding the VA not being paid for shoveling: The VA stated that s/he shoveled snow outside the facility on various occasions from November 2021 to March 2022. P1 and P3 told the VA that if s/he shoveled in the winter, s/he would be paid $20 each time, which s/he was never paid for. P1 stated that the VA sometimes shoveled and that s/he told the VA that s/he may be able to pay him/her. P3 told P1 that s/he may be able to pay the VA with a gift card, but P1 was unsure if the VA ever received a gift card. P3 denied saying s/he would pay the VA for shoveling, but sometimes rewarded residents by ordering pizza or getting them personal items. SP2 and SP3 stated that sometimes the VA shoveled. SP2 stated that the VA was “hoping” to be paid for his/her work. Given that P1 and P3 denied paying the VA for shoveling and that there was no corroborating information that the VA was to be paid by the facility for his/her work, there was not a preponderance of the evidence that the VA was forced, coerced, or compelled to perform services for the advantage of another person.
It was not determined that financial exploitation occurred (in the absence of legal authority a person forces, compels, coerces, or entices a vulnerable adult against the vulnerable adult's will to perform services for the profit or advantage of another.). Regarding SP1-SP3: A. Maltreatment: The VA provided consistent information to this investigator, the CM, and P1, that s/he either smoked marijuana with or was given marijuana by SP1, SP2, and SP3, or they allowed the VA to use marijuana. SP1-SP3 each were aware the VA had a history of addiction to alcohol and was working on his/her sobriety. The CM and P1 each stated that the VA was a reliable reporter of events. P1 and P3 each stated that the VA changed his/her version of events regarding smoking marijuana in SP1’s car. SP2 stated that the VA was sometimes a reliable reporter of events. SP3 stated that s/he was unsure if the VA was a reliable reporter of events. SP1 did not provide information for this investigation. SP2 stated that s/he gave the VA a “tiny bit” of marijuana on one occasion. SP3 denied allowing the VA to smoke marijuana. Although SP1 did not provide information and SP3 denied providing the VA with or allowing the VA to smoke marijuana, another resident stated that s/he smelled marijuana while SP1 and the VA were in SP1’s car together and SP3 had reasons to minimize his/her actions. SP2 stated that s/he provided the VA with a “tiny bit” of marijuana. Given the aforementioned along with VA’s consistent accounts to this investigator, the CM, and P1, it was determined that the VA’s statements were credible. Given the VA’s history of alcohol dependency, it was reasonable that the VA would continue to need supports to develop and maintain the necessary life and social skills to maintain sobriety. SP1’s, SP2’s, and SP3’s interactions with the VA hindered the VA’s ability to have a consistent understanding of the parameters of a therapeutic relationship which could interfere with other individuals’ attempts to provide therapeutic services to the VA, both now and in the future, in addition to placing the VA at risk of legal consequences related to the use of an illegal substance. Therefore, there was a preponderance of the evidence that SP1-SP3 failed to maintain professional boundaries and that staff persons’ interactions with the VA were detrimental to his/her ongoing mental health. 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. SP1, SP2, and SP3 each received training on the facility’s policies and on the Reporting of Maltreatment of Vulnerable Adults Act. SP1, SP2, and SP3 were each 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 SP1, SP2, and SP3 were responsible did not meet statutory criteria to be determined as serious because the VA did not require the care of a physician and it was not recurring because SP1’s SP2’s and SP3’s actions demonstrated a single pattern of behavior. Action Taken by Facility: The facility completed several internal reviews regarding the incidents and determined that their policies and procedures were adequate but not followed by SP1-SP3. Staff persons did not avoid becoming in a relationship with a client that went beyond the services provided and they each violated the facility’s chemical abuse policy. SP1-SP3 no longer worked at the facility and all other staff members were retrained on the facility’s boundary and drug policies. Action Taken by Department of Human Services, Office of Inspector General: SP1, SP2, and SP3 were each not disqualified from providing direct care services as a result of the maltreatment determination in this report. However, SP1, SP2, and SP3 were each 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 SP1, SP2, and SP3. The determination that SP1, SP2, and SP3 were each responsible for maltreatment is subject to appeal. On July 13, 2022, the facility was issued a Correction Order for a violation regarding documentation of staff training.
|
