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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: 1076087-H_CRS (Home and Community-Based Services-Community Residential Setting) Investigator(s): Carla Harvieux Suspected Maltreatment Reported: It was reported that a staff person (SP) pushed a vulnerable adult (VA) down a flight of stairs and hit the VA. The VA had scratches on his/her back, neck, and shoulder, and had bruises on his/her neck and ear. Date of Incident(s): May 9, 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 June 2, 2022; from documentation at the facility; and through interviews conducted with facility staff persons (P1, P2, P3, and the SP), and a facility resident (R). This investigator met the VA, but s/he did not provide information regarding the incident. Facility documentation showed that the VA had diabetes, obsessive compulsive disorder, and a developmental disability, and was legally blind. The VA was quiet and did not usually enjoy engaging in conversation, but preferred spending time outside without talking. The VA might answer questions using one or two word answers or gestures. Playing board games and going on car rides in the community were preferred activities for the VA, but s/he sometimes became verbally or physically aggressive when s/he was upset, including hitting/slapping him/herself or others, engaging in property destruction, or pushing/chasing residents at the facility. Facility staff persons wrote progress notes called T-Logs to document activities/events at the facility. The VA especially enjoyed drinking pop with his/her meals. Facility documentation, information provided by the R, P1, P2, P3, and the SP, in interviews with this investigator, and information in the facility’s Internal Review, provided the following information: · P1 and T-Logs written by him/her provided consistent information that on May 9, 2022, P1 and the R returned from a community outing, and P1 asked the VA whether s/he had showered. The VA said that s/he had, but the SP said that the VA had not showered and should take a shower soon. The VA had been upset earlier according to the SP, so P1 waited five minutes, and then got the VA’s hygiene products and asked the VA to take a shower. The VA agreed and began walking toward the bathroom. On the way to the bathroom, the VA told the SP to stay with the residents and “slapped” the SP’s stomach, then began to run up the stairs like s/he was “playing around.” The SP got “mad” and hit the VA (who was standing on the stairs between the main and lower levels) on his/her back hard enough to leave a mark on the VA’s back. The SP and VA began exchanging hits and P1 intervened by asking them to stop hitting each other, but the VA began kicking the SP, who then lunged into the VA and pushed him/her down onto the stairs, where s/he was standing. As the physical exchange between the VA and SP continued, the VA used profanity and made a hand gesture toward the SP. At some point during the incident, the VA went upstairs and sat on a couch, followed by the SP who sat by the VA and held the VA’s hands to prevent the VA from hitting him/her. P1 ran to the office to get assistance from P2, who called P3, a facility supervisory staff person. P3 instructed the SP via phone to leave the facility for the day. P1 and P2 assessed the VA for injuries and observed bruises, scratches, and red marks. · The VA’s injuries were photographed and the facility provided this investigator with copies of the photographs. The VA had various red marks on his/her upper back/shoulders some of which might have been hand or finger prints, and several red marks/abrasions across the lower back. In addition, the VA had bruising/swelling on the left ear, scratch marks on the front of his/her left shoulder and on the left side of his/her chest, and bruising on the left side of his/her neck. · P2 said that s/he was in the facility office when the incident occurred, but did not witness the physical interaction between the VA and the SP. P3 stated that the VA was evaluated by his/her primary care physician on May 11, 2022. T-logs stated that the physician noted the VA’s injuries, but determined that x-rays/computerized tomographic scans were not necessary. Staff persons were instructed to seek medical care for the VA if s/he developed swelling or the bruising worsened. · The R said that s/he was downstairs with P1 when the incident between the VA and the SP occurred. The SP told the VA to go upstairs but the VA “got in” the SP’s “face,” there was a verbal exchange, and the SP hit the VA, who had turned to go upstairs. According to the R, the VA might hit staff persons or say things to them in a joking way, and the VA had hit the SP’s stomach prior to the incident, but the SP took the VA’s actions personally, and hit the VA. The R became scared and left the area to find another staff person to help P1. · The SP said that s/he had provided care to persons with disabilities for many years and was sometimes the target of jealous staff persons who wanted to “frame” the SP, because the SP’s clients preferred him/her to other staff persons or they thought that the SP wanted to take their jobs. On the date of the incident, the VA was trying to hit a staff person whose identity the SP could not recall. When the SP tried to verbally redirect the VA, the VA “jumped on” the SP, grabbed the SP, and held onto his/her jacket. The SP loosened the VA’s grip on the SP’s jacket in a manner that s/he could not recall, and the VA scratched him/her and attempted to bite the SP during the incident. The SP had to temporarily exit the facility to avoid being harmed by the VA, who attempted to follow the SP. The incident ended when P3 told the SP via phone to go home. The SP denied that s/he hit or scratched the VA or held the VA’s hands. The VA was not injured during the interaction with the SP. However, the SP sustained scratches to his/her arm and had continuing pain in his/her arms from the incident. The facility’s Policy and Procedure on Emergency Use of a Manual Restraint stated that staff persons were to attempt to verbally de-escalate behaviors before they posed an imminent risk of physical harm to self or others. Staff persons were permitted to block or redirect a person’s limbs or body without holding the person or limiting his/her movement to interrupt the person’s behavior that might result in injury to self or others with less than 60 seconds of contact. Manual restraints could be used when there was a need for to protect the person or others from imminent risk of physical harm, must be the least restrictive intervention to eliminate the immediate risk of harm and effectively achieve safety, and must end when the threat of harm ends. The facility’s personnel and training records showed that staff persons interviewed for this report were trained on the Reporting of Maltreatment of Vulnerable Adults Act prior to the incident. On November 14, 2020, the SP was trained on Person Centered Intervention Techniques. The SP most recently attended an annual training day at the facility on September 2, 2021, during which the facility’s policies and procedures were reviewed. At the time this report was issued, there was no action taken by law enforcement. Conclusion: A. Maltreatment: Although the SP denied that s/he hit, scratched the VA, or held the VA’s hands and the VA did not provide information regarding the incident, given that P1 and the R witnessed the incident and provided consistent information that the SP hit the VA, that photographs of the VA after the incident showed that s/he had bruises on his/her ear and neck, abrasions on his/her lower back, and several scratches and red marks on his/her back and chest, and the SP would have reason to deny his/her actions, there was a preponderance of the evidence that the SP’s behavior was not an accident or therapeutic, and produced physical pain and injury. It was determined that 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. Given that P1 and the R saw the SP hit the VA and that the SP was trained on the facility’s policies and procedures (including the Reporting of Maltreatment of Vulnerable Adults Act), prior to the incident, the SP was responsible for the 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 not “recurring” since it was a single incident. However, consistent information showed that the VA sustained bruises, scratches, red marks, and abrasions during the incident with the SP, which met the definition of “serious” maltreatment. The SP was disqualified from providing direct contact services. Action Taken by Facility: The facility completed an Internal Review which determined that its policies and procedures were adequate but were not followed. The facility sought medical care for the VA after the incident but s/he required no further care from health care professionals. At the time this investigation was completed, the SP was no longer employed 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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