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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: 1107780-H_CRS (Home and Community-Based Services-Community Residential Setting) Investigator(s): Scott Brandt Suspected Maltreatment Reported: It was reported that a staff person (SP) called a vulnerable adult (VA) a “fucking retard,” and the VA then left the facility without supervision. Date of Incident(s): June 15, 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 (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: 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 July 6, 2022, from documentation at the facility and through five interviews conducted with the VA, the SP, a facility management staff person (P1), a facility staff person (P2) and the VA’s guardian (G). The VA’s Individual Support Plan (ISP) Program showed that s/he engaged in property destruction, verbal and physical aggression to others, and leaving without supervision. When the VA engaged in physical aggression, staff were encouraged to tell the VA to “use coping skills,” such as “walking away from staff, spending time in [his/her] room with close staff proximity or going for a walk within house parameters.” In regards to leaving without supervision, one of the “possible antecedents” to the VA leaving was “perceived disrespect or feeling as [the VA] is being treated like a child.” As a result, staff were trained to assist the VA with using coping skills. An interview with P1 and the facility’s Internal Review, completed by P1, provided the following information: · On June 16, 2022, P2 told P1 that while P2 and the VA watched TV in the living room the previous day, the SP said that s/he was going to work in the office. The VA told the SP that s/he could watch TV when s/he finished his/her work. When the SP finished his/her work about 30 minutes later, s/he returned to the living room and “picked up the remote and changed the TV channel.” When that happened, the VA told the SP that s/he wanted to keep watching what s/he had been watching and that the VA did not want the SP to change the channel, which caused the SP to become “upset” and tell the VA, “You are a fucking retard and that is why you belong in a group home.” After that, the VA called the SP a “bitch” and left without supervision. After the VA left, P2 followed the VA and was able to “deescalate the situation” and the VA returned to the facility.
· When P1 talked to the VA, the VA provided information that was similar to the information provided by P2, but the VA added that after the SP told him/her that s/he was a “retard” and “that is why you belong in a group home,” the VA was “so upset,” and that the SP “made [him/her] feel bad about living in [his/her] home and maybe [s/he] shouldn’t be alive because [s/he] is retarded.” · When P1 talked to the SP, the SP stated, “I didn’t handle the situation well” the previous night. When P1 asked the SP to elaborate, the SP stated that after s/he changed the channel on the TV, the VA “ran away.” When P1 asked the SP if s/he called the VA a “fucking retard and told [him/her] [s/he] belonged in a group home,” the SP “didn’t remember.” When P1 asked the SP if there was anything else s/he wanted to tell P1, the SP said, “No.” The VA told this investigator that the SP did not give the remote for the TV to him/her and then told the VA that s/he was a “little retard and fucking bisexual bitch.” After that happened, the VA “flicked” him/her “off” and the VA left the facility. The G stated that the VA had a history of leaving without supervision and that the facility typically had two persons assigned to work with him/her due to being “quite aggressive.” The SP provided the following information to this investigator: · When the SP got to the facility on June 15, 2022, the VA was “upset” with P1 because s/he “did not show up” for the “second or third time.” As the afternoon progressed, the VA continued to become more agitated. When SP told the VA, “I am not the person you are upset with,” the VA said that P1 was a “lying bitch” and that the VA “don’t really care about” him/her. · Later, the VA went outside and told the SP that s/he could watch the TV. When the VA returned inside, the SP asked the VA where the remote, which was normally stored in the office, was. At that time, the SP received a phone call from his/her family member. While the SP talked to his/her family, the SP became “very frustrated” because the SP and the family member had a dog, who recently had ten puppies, was “not taking care of the puppies.” The SP, while still talking to the family member, “referred to mom dog as being fucking retarded” and that they should put the puppies in a “group home” because the puppies were a “lot of work” and the SP was “getting burned out with the puppy care.” · After that happened, the VA left the facility and the SP and P2 followed the VA in a car. After 30-40 minutes, the VA had calmed down, returned to the facility, and ate dinner. · The SP stated that although s/he made those comments to his/her family member, the SP was not talking to the VA and that the SP felt bad that the VA thought the SP was making those comments toward the VA. P2 provided information to this investigator that was similar to the information s/he provided in the facility’s Internal Review, but stated that the SP was not on the phone with anyone at the time s/he made the comments. Also, P2 did not remember whether the VA left the facility following the incident. Relevant Rules and/or Statute: Minnesota Statutes, section 245D.04, subdivision 3, (6) requires the license holder to ensure that VAs were to be treated with courtesy and respect. The facility’s training records showed that staff interviewed for this investigation were trained on the Reporting of Maltreatment of Vulnerable Adults Act and the VAs specific care plans prior to June 15, 2022. Conclusion: A. Maltreatment: According to P2, the SP told the VA, “You are a fucking retard and that is why you belong in a group home” on June 15, 2022, and the VA provided similar information to the facility and later to the investigator. The SP stated that although s/he used the words “fucking retarded” and living in a “group home,” the SP was referencing a phone discussion s/he had with a family member at the time related to a dog and puppies the SP and family member had, and that those comments were out of frustration because the puppies were a “lot of work” and the SP was “getting burned out with the puppy care.” The SP denied those comments were made toward the VA. However, P2 stated that the SP was not on the phone at the time the comments were made and when the SP was initially interviewed as part of the facility’s Internal Review, the SP stated that s/he did not remember making those comments and there was no mention of a dog, puppies, or that the SP was talking to another person on the phone at the time when the comments were made. After the comments were made, there was some information that the VA, who had a history of leaving without supervision, left the facility, but inconsistent information was provided and there was no information provided that the VA was harmed by potentially leaving the facility and no information provided that supervision was not provided, had the VA left the facility. Given that the VA and P2 provided consistent information to P1 and this investigator that the SP made the comments to the VA, there was a preponderance of the evidence that the SP’s comments were inconsistent with Minnesota Statutes, section 245D.04, subdivision 3, (6), which required VAs to be treated with courtesy and respect, and that the SP’s comments caused 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). 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. Given that the SP was trained on the Reporting of Maltreatment of Vulnerable Adults Act and the VA’s specific care plans prior to June 15, 2022, the SP was responsible for emotional abuse 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 emotional abuse for which the SP was responsible did not meet statutory criteria to be determined as recurring because the incident was a single event and not serious because there was no information that the VA was seriously harmed as a result of the maltreatment. Action Taken by Facility: The facility completed an Internal Review and determined that although its policies and procedures were adequate and followed, P2 received additional training “on reporting suspected maltreatment.” In addition, the SP was no longer employed at the facility as of June 16, 2022. Action Taken by Department of Human Services, Office of Inspector General: The SP was not disqualified from providing direct care services as a result of the maltreatment determination in this report. However, the SP was notified by the Office of Inspector General that any further substantiated act of maltreatment, whether or not the act meets the criteria for “serious,” will automatically meet the criteria for “recurring” and will result in the disqualification of the SP. The determination that the SP was responsible for maltreatment is subject to appeal. In addition, given that the facility took corrective action, no correction order was issued for the violation outlined in this report.
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