|
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: 1096287-H_CRS (Home and Community-Based Services-Community Residential Setting) Investigator(s): Toni Puente Suspected Maltreatment Reported: It was reported that a staff person (SP) called a vulnerable adult (VA) a derogatory racial slur and the VA subsequently punched the SP. The SP then used a manual restraint to place the VA onto the floor and then placed the VA in a “chokehold.” The VA sustained a cut on his/her right knuckle and a swollen right eye as a result of the incident. Date of Incident(s): May 17, 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), clauses (1) and (2): 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. · The use of repeated or malicious oral, written or gestured language toward a vulnerable adult or the treatment of a vulnerable adult which would be considered by a reasonable person to be disparaging, derogatory, humiliating, harassing, or threatening. Summary of Findings: Pertinent information was obtained during a site visit conducted on June 8, 2022; from documentation at the facility and law enforcement records; and through six interviews conducted with a supervisory staff person (P1), an administrative staff person (P2), two consumers (C1 and C2) who resided at the facility, a mental health professional (MHP) who worked with the VA outside of the facility, and the VA. This investigator mailed a notification and left a voicemail for the VA’s guardian (G), but the G did not contact this investigator. Attempts were made via telephone, certified mail, and email to contact and interview the SP but the SP did not respond to the requests. However, the SP provided information to law enforcement, P1, and in a written statement to P2 and that information was included below. The VA’s diagnoses included autism spectrum disorder, attention deficit and hyperactivity disorder, receptive expressive and language disorder, anxiety disorder, and developmental disabilities. The VA began receiving services at the facility on May 1, 2022, and enjoyed visiting with family and friends and drawing. The VA’s program plans, including the Individual Abuse and Prevention Plan (IAPP) and the Intensive Services Assessment (ISA), developed on May 1, 2022, and updated on June 15, 2022, provided the following information: · The VA had a history of engaging in yelling and physical aggression, including pushing and hitting, towards others, typically aimed at a caregiver. The ISA added that the VA typically engaged in these behaviors when the VA felt “fearful” or that s/he did not have control of a situation. Staff persons attempted to give the VA “enough” time to communicate his/her wants and needs, and offered verbal reminders of an upcoming task, so the VA was able to transition from one task to another. For example, when the VA was watching television and staff persons asked the VA to engage in another task, staff persons were not to expect that the VA would immediately stop watching television. Staff persons were to communicate with a “calm” voice, even when the VA was displaying aggressive behaviors. When the VA felt threatened or his/her behavior was escalated, staff persons offered alternate activities, such as going for a walk or listening to music, which may assist the VA in controlling his/her emotions. · The VA displayed difficulties in self-regulation of attention, focus, impulse control, and management of emotions and behaviors. When the VA was in a physically abusive situation, staff persons ensured his/her safety, provided verbal redirection to the VA to remove the VA from the situation or engage in an alternate activity, and if unsuccessful, staff persons followed the Emergency Use of Manual Restraint (EUMR) policy and procedure. · The ISA stated that the VA was able to access the community for one hour, go to work, and attend therapy appointments without staff supervision. The facility was a bi-level home located in a residential neighborhood. The main entrance led into an open concept floor plan that consisted of a living room, kitchen, and dining area. At the entry, to the left, there was a door that led to a laundry room that also had a door to the garage, then a flight of stairs leading to the lower level, the then a hallway that led to a bathroom and two bedrooms including C2’s. Immediately to the right of the entry, was an arm chair that was positioned between the front window and a couch that was perpendicular the chair on the opposite side of the window. Beyond the couch was a dining table and the kitchen. The stairs leading down were open with half walls and had a gate. The lower level consisted of a common area, a bathroom, and two bedrooms, including C1’s and the VA’s. Information from P1, P2, and facility schedule was consistent that the SP typically worked the asleep overnight shift from 10 p.m. until 6 a.m., and then remained awake from 6 to 8 a.m. The VA provided the following mostly consistent information during his/her interview, to P1, P2, and the MHP, in law enforcement (LE) records, and in facility documentation including the Internal Review of an Alleged Maltreatment Report: · The VA stated that on the date of the incident (May 17, 2022), around 7 a.m., s/he awoke and thought that s/he missed his/her alarm that was typically set for 7:15 a.m. so s/he began to get ready for work. Shortly after, the VA went upstairs to the living room, sat down in the chair next to the couch and began to put his/her socks on. The SP was asleep on the couch and told the VA, “You got to move,” but the VA declined, adding that s/he was “not bugging” the SP. The VA told the SP that s/he did not want to “fight” but, “I will if I have to.” The SP responded, “So you want to fight now?” and continued to “threaten” the VA and “get in [the VA’s] face.” The VA stated that when s/he got up from the chair to get his/her shoes that were in the laundry room near the door to the garage, the SP “jumped over” the back of the couch towards the VA. The VA tried to get back to the chair, but the SP “pushed” the VA into the front door. At that point, the VA “nailed” the SP in the mouth and the VA’s knuckle made contact with the SP’s mouth. Then, the VA ran through the living room towards the kitchen. The SP followed the VA and “shoved” the VA and then the VA tried to “shove” the SP away from him/her. “Suddenly,” the SP grabbed the VA by the “throat and my body,” and pulled the VA to the floor. The VA stated that the SP was on his/her back on the floor, the VA’s back was on top of the SP’s body, and the SP’s arm were wrapped around the VA’s neck. The VA tried to release him/herself from the SP’s “arm lock” because s/he felt like s/he was “losing oxygen” and had difficulty breathing. The VA said, “Stop,” and eventually the SP stopped. The VA then tried to stand but the SP “punched” the VA on the right side of his/her face, near his/her eye. The VA stood up but had difficulty seeing causing him/her to “bang” the same area of his/her face on the wall in the hallway. The VA then ran downstairs to his/her bedroom. While the VA was running downstairs, the SP called the VA a “fucking ass nigger (referred to as derogatory racial slur throughout the remainder of the report).” The VA called LE and the G, and they each arrived at the facility a short time later. (Note: LE records showed that LE was dispatched to the facility at approximately 7:08 a.m.) · The VA provided information to LE and in the Internal Review of an Alleged Maltreatment Report that was consistent with the information that the VA told this investigator, but the VA told the LE that at some point, the SP “nailed” the VA in the face and the VA “blacked out;” and the VA told the Internal Review of an Alleged Maltreatment Report, that s/he was not able to recall whether s/he hit his/her face against something or if the SP hit him/her in the face, and that s/he had “blacked out.” · The VA told P2 that prior to the incident, the SP was lying on the couch and called the VA a derogatory racial slur, which caused the VA to react with “fear and emotion” and subsequently hit the SP in the face; but the VA denied to this investigator that s/he hit the SP while the SP was asleep on the couch, adding that the action would be “dirty.” (Note: LE records did not indicate where the VA and the SP were located when the VA punched the SP). · The VA told the MHP that the SP “jumped” the VA, placed the VA in a chokehold and tried to restrain him/her, and struck the VA in the eye. The VA added that s/he had to “fight” to escape from the SP’s hold, and sustained an injury to his/her hand. (Note: On June 23, 2022, the MHP stated that the G told the MHP that the VA may have “instigated” the incident by hitting the SP prior to the incident.) · The VA stated that during the incident, C2 was in the living room and observed “the whole thing,” and C1 was downstairs so did not observe the incident. The VA did not talk to the C2 about the incident, but thought that C2 did not see whether the SP “punched” the VA. · The VA told LE that during the incident, the SP “scared the shit out of [the VA].” The G told LE that the VA did not become physically aggressive towards others unless s/he was “scared” or someone did something to the VA, adding that it was “very out of place” for the VA to “just up and hit someone.” · The VA stated that s/he sustained a cut on his/her right knuckle/finger, likely from hitting the SP’s teeth, and his/her right eyelid was “black” and painful as a result of the incident. LE records showed that the VA had an injury on his/her knuckle, and blood near the VA’s right eye, forearm, and neck, although the origin or whose blood was unknown. In addition, emergency medical technicians arrived at the facility and assessed the VA’s injuries, which did not require further medical attention. (Note: A photo provided by P2 showed that the VA had some swelling on the VA’s right eyelid, and a small blemish located near the end of the VA’s eyebrow, but due to the VA’s complexion, no bruising was visible.) · The VA said s/he had no prior issues with the SP, with the exception of one occasion when the VA first moved in, when the SP thought that the VA called the SP a derogatory racial slur, which the VA denied. The VA stated that s/he did not require physical restraint procedures, and that due to his/her disabilities, restraint procedures “scare” the VA to the “point that I’ll actually hurt someone.” The VA added that s/he responded best when staff persons and/or family members talked to the VA in a “calm” and “respectful” manner or did not say anything to the VA until s/he was ready to talk. C1 and C2 provided the following information: · Around 6 a.m., the SP was asleep on the couch while the VA was putting on his/her socks in the chair next to the couch. C1 stated that s/he and C2 were in the kitchen. C2 stated that s/he was in the living room and C1 was in the lower level when the incident occurred. At some point, the SP told the VA to put his/her socks on someplace else, but the VA did not move. · C1 stated that the SP asked the VA to move a couple times because the SP was sleeping, which “pushed [VA’s] buttons.” The SP “pushed” the VA “far away” from the SP, but when they were both near the kitchen table, the SP took the VA down to the floor with a “sleeping hold” (a type of chokehold). The VA was on his/her stomach and the SP lay on top of the VA with his/her arms around the VA’s neck in an “X” position. C1 stated that the VA was not able to move or breathe and the VA was pounding his/her fists on the floor. At some point as the SP and the VA were “getting into a fight,” C1 went to the bathroom. While in the bathroom, C1 heard the VA “scream,” and when s/he returned to the kitchen, both C1 and C2 saw the SP take the VA down to the floor. C1 stated that sometime during the incident, the VA hit the SP in the face, but C1 did not see the SP hit the VA. C1 added that throughout the incident, the VA was “yelling,” but C1 was not able to recall what the VA said, or whether the SP said anything to the VA. · C2 stated that s/he saw “everything” and that the SP and the VA were “fighting.” The VA “punched” the SP in the face when they were by the door to laundry room. Then the SP did a “take down” or a “hold” near the hallway by the dining table and brought the VA onto the floor. C2 provided information regarding the description of the manual restraint, including the “headlock” around the VA’s neck and the punch to the VA’s cheek/eye that was consistent with the information that the VA provided to this investigator. C2 heard the VA say, “Help,” because the VA was not able to breathe. The VA and the SP were “yelling” and they both used “bad words,” such as a derogatory racial slurs. · Following the incident, LE and an ambulance arrived at the facility but LE did not talk to either C1 or C2 about the incident. C1 and C2 each stated that they spoke to the VA about the incident but not each other. · C1 and C2 had no prior concerns regarding the SP and the SP no longer worked at the facility following the incident. C2 stated that the SP’s actions were “no good,” and C1 said the SP was not returning to work for “what [the SP] did.” The SP provided the following information to the LE, P1, and in a written statement to P2: · The SP told LE that around 6:30 a.m., while the SP was asleep, the VA told the SP that s/he had to get ready for work and sat down in the chair located behind the SP. The SP told the VA not to sit there, and asked that s/he sit by the table while s/he put his/her socks on. While the SP was lying down, trying to sleep, the VA “hit” the SP in the face. The SP opened his/her eyes and observed that the VA was “trying to get [the SP]” so the SP “kept pushing” the VA away from him/her, and eventually grabbed the VA around his/her chest and placed the VA on the floor. The SP stated that s/he was “not allowed” to do “anything else” and denied that s/he choked or hit the VA. · The SP also told LE that s/he had a “few issues” with the VA “getting into [the SP’s] face and calling the SP a derogatory racial slur, which the SP previously told the VA to refrain from using that type of language. The SP added that during the incident, the VA told the SP, “I’m going to fucking kill you [derogatory racial slur].” The SP called P1 and told him/her about the incident.
· P1 stated that around 7:20 a.m., the SP called P1 and told him/her that while the SP was asleep on the couch, the VA sat down near the SP to put on his/her socks. The SP asked the VA to sit in a different chair, but the VA declined and “punched” the SP in the face. The SP was trying to “get away,” but the VA continued to follow him/her. Then the SP had to “take [the VA] down,” using a “basket hold,” and positioned him/herself on top of the VA until the VA “calmed down.” · P2 added that sometime later that day, the SP arrived at P2’s office to drop off a medical referral. P2 requested information about the incident, and the SP told P2 that the VA called the SP a derogatory racial slur and then “sucker punched” the SP. The SP told P2 that s/he “would never” place his/her hands on the VA, and then walked out of P2’s office. A few days later, P2 received a statement from the SP, via text message. · The SP’s text message stated that around 6 a.m., the VA came upstairs and sat on the chair behind the SP. The SP “politely” asked the VA to go to another location because it was early, and the VA responded, “Oh, you think you run stuff around here?” The SP asked the VA to move to a different location a few more times, but when the VA continued to sit in the chair and became “angry” the SP left him/her alone and lay down. Then, the VA approached the SP, hit the SP, and said, “You fucking [derogatory racial slur].” The SP got up and “restrained” the VA on the floor so the VA was not able to hit the SP again. When the SP and the VA got up off of the floor, the VA continued to yell at the SP, used “vulgar language,” and went downstairs. Within about 10 to 20 minutes, LE arrived at the facility. P1 and P2 provided the following additional information: · Prior to this incident, there were no concerns regarding the SP’s interactions with the VA. P1 recalled on occasion, when the VA initially moved into the facility, the VA called the SP a derogatory racial slur and later apologized to the SP. · Following the incident, the SP sought medical attention and no longer worked at the facility. Information from the VA’s program plans, P1, P2, and the MHP, was consistent that the VA may not recognize abuse and may struggle with reliably reporting incidents of abuse to the correct person or at all. The facility’s EUMR policy and procedure stated that permitted actions and procedures must use the least restrictive alternative possible, such as to block or redirect a person’s limbs or body without holding the person or limiting the person’s movement to interrupt the person’s behavior that may result in injury to self or other with less than 60 seconds of physical contact by staff. A manual restraint may be used as an intervention procedure to redirect a person in the event of an emergency and the person is at imminent risk of harm. Personnel files showed that P1 and the SP received training on the Reporting of Maltreatment of Vulnerable Adult Act, the VA’s program plans, and the facility’s policies and procedures, prior to May 17, 2022. Relevant Rules and/or Statutes Minnesota Statutes, section 245D.04, subdivision 3, paragraph (a), clause (6) states that a license holder must ensure a person’s protection-related rights which included the right to be treated with courtesy and respect. Minnesota Statute, section 245D.07, subdivision 1a, states that a license holder must provide services in response to the VA’s identified needs, interests, preferences, and desired outcomes as specified in the coordinated service and support plan addendum. Minnesota Rules, part 9544.0060, subpart 2, item T, states that it is prohibited to use an action or procedure that might restrict or obstruct a person’s airway or impair breathing including techniques whereby individuals use their hands or body to place pressure on a person’s head, neck, back, chest abdomen, or joints. Conclusion: A. Maltreatment: Information from the VA and the VA’s program plans stated that staff persons were to communicate with a “calm” voice, even when the VA was displaying aggressive behaviors. When the VA felt threatened or his/her behavior was escalated, staff persons offered alternate activities, such as going for a walk or listening to music, that may assist in controlling his/her emotions. Information was consistent that on May 17, 2022, sometime between 6 and 7 a.m., the SP was asleep on the couch, and the VA sat in the chair next to the couch to put on his/her socks. The SP asked the VA to complete the task at a different location, but the VA declined. Subsequently, a physical interaction between the VA and the SP occurred including a manual restraint that brought the VA to the floor. As a result of the incident, the VA sustained an injury near his/her right eye and on his/her knuckle, neither of which required further medical attention. C1, C2, and the VA provided different information regarding whether C1 and/or C2 were present at the time of the incident. Regarding emotional abuse: The VA provided information to P2 that the SP called the VA a derogatory racial slur prior to the incident, and told this investigator that the SP called him/her a “fucking ass [derogatory racial slur]” following the incident when the VA ran downstairs. Although the SP provided information in his/her statement, and told law enforcement that the VA called the SP a derogatory racial slur, given that C2 stated that the VA and the SP were “yelling” and they both used “bad words,” such as a derogatory racial slurs; C1 was not able to recall whether the SP said anything to the VA; and that the SP had reason to minimize his/her actions; it was more likely than not that the SP called the VA a racial slur. Calling the VA a “fucking ass [derogatory racial slur]’ was inconsistent with the standards of a professional caregiver in a facility licensed by the Minnesota Department of Human Services and a violation of Minnesota Statutes, section 245D.04, subdivision 3, paragraph (a), clause (6). Given the nature of what the SP said to the VA, there was a preponderance of the evidence that the SP’s treatment of the VA was not accidental or therapeutic and reasonably be expected to produce emotional distress. It was determined that emotional 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: the use of repeated or malicious oral, written or gestured language toward a vulnerable adult or the treatment of a vulnerable adult which would be considered by a reasonable person to be disparaging, derogatory, humiliating, harassing, or threatening. Regarding physical abuse: The VA stated that the SP initiated the physical nature of the incident but the SP stated that the VA did so. Had the VA initiated the physical nature of the incident, it would have been reasonable for the SP to intervene. However, information from C1, C2, and the VA, was consistent that when the SP placed the VA onto the floor and wrapped his/her arms around the VA’s neck in chokehold, making it difficult for the VA to breathe. The VA and C2 added that the SP hit the VA near his/her eye, and the VA said that when s/he got up, s/he had difficulty seeing, so s/he “banged” the same area of his/her face on the wall in the hallway. However, the VA also told law enforcement that at some point, the SP “nailed” the VA in the face and the VA “blacked out;” and the VA also told the Internal Review of an Alleged Maltreatment Report, that was not able to recall whether s/he hit his/her face against something or if the SP hit him/her in the face, and that s/he had “blacked out.” The VA stated that s/he sustained a cut on his/her right knuckle/finger, likely from hitting the SP’s teeth, and his/her right eyelid was “black” and in pain as a result of the incident. Although it was not clear whether the VA’s eye injury was caused by the SP hitting the VA, or if the VA hit his/her eye on something, such as the hallway wall, following the restraint procedure. The SP did not conduct an interview with this investigator, but provided information to P1, LE, and in a text to P2, that the VA hit the SP while the SP was asleep, and further threatened to harm the SP. The SP conducted a manual restraint and placed the VA on the floor. The SP told LE that s/he grabbed the VA around his/her chest to assist the VA to floor, and s/he told P1 that s/he used a “basket hold” and positioned him/herself on top of the VA. The SP told LE that s/he was “not allowed” to do “anything else,” and s/he told P2 that s/he “would never” place his/her hands on the VA. The SP denied that s/he choked or hit the VA. The SP’s actions as described by C1, C2, and the VA, and by the SP saying s/he was positioned on top of the VA, were not done in accordance with the VA’s program plans or the facility policies and procedures, were inconsistent with the standards of a professional caregiver in a facility licensed by the Department of Human Services and were a violation of Minnesota Statute, section 245D.07, subdivision 1a, and Minnesota Rules, part 9544.0060, subpart 2, item T. Therefore, there was a preponderance of the evidence that the SP’s actions were not accidental or therapeutic conduct and produced or could reasonably be expected to produce physical pain or injury to the VA. 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. The SP received training on the Reporting of Maltreatment of Vulnerable Adult Act, the VA’s program plans, and the facility’s policies and procedures, prior to May 17, 2022. 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 physical and emotional abuse for which the SP was responsible did not meet statutory criteria to be determined as recurring because it was a single incident that met two definitions of maltreatment. However, it was determined to be serious as the SP’s actions caused a cut on the VA’s finger and tissue damage (swelling and bruising) on the VA’s eye. Action Taken by Facility: The facility completed an internal review and determined that its policies and procedures were adequate but not followed during the incident. 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. Given that the facility took immediate corrective action, a Correction Order was not issued for the violations outlined above.
|
