MALTREATMENT INVESTIGATION MEMORANDUM
Office of Inspector General, Licensing Division
Public Information

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:

1102804-H_CRS (Home and Community-Based Services-Community Residential Setting)
1079030-HCBS (Home and Community-Based Services)

Investigator(s):

Beth Virden
Minnesota Department of Human Services
Office of Inspector General
Licensing Division
PO Box 64242
Saint Paul, Minnesota 55164-0242
651-431-6572

Suspected Maltreatment Reported:

It was reported that a staff person (SP) left a vulnerable adult (VA) unsupervised in the community. The VA wandered into a retail store, but was unable to communicate his/her personal information or the SP’s whereabouts. Store employees called 9-1-1, and the VA was transported by law enforcement to an emergency room, where s/he was later picked up by his/her guardian (G1).

Date of Incident(s): June 4, 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 17, paragraph (a):

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 June 16, 2022; from documentation at the facility, law enforcement records, and medical records; and through interviews conducted with the VA’s guardians (G1 and G2) who were also the VA’s family members, a facility staff person (SP), and a supervisory staff person (P). The VA was not interviewed due to his/her limited communication skills.

The VA’s care plans provided the following information:

· In April 2020, the VA moved into the facility seeking supports and services relating to his/her diagnoses, which included severe intellectual disability and autism spectrum disorder.

· The VA was nonverbal; and communicated by using gestures and/or physically directing staff to whatever s/he was wanting at that time.

· “[The VA] has a 2:1 staffing ratio.” The facility provided the VA with two staff persons during daytime hours, and one staff person during overnight hours. The VA needed assistance from staff to complete all aspects of his/her activities of daily living. “If staff are unavailable for their shift and the shift is not able to be filled by another staff person, [G1] will be contacted. If [G1] is unavailable, [G2] will be contacted.”

· “Due to [the VA’s] cognitive disability, [s/he] will need staff with [him/her] to navigate the community at all times. Staff will be with [the VA] at all times both at home and in the community.”

· “Due to [the VA’s] disability, [s/he] may not be able to identify a potentially dangerous situation. [The VA] also lacks community orientation skills and relies on staff or family members to assist [him/her] when [s/he’s] out in the community.”

· “[The VA] may not consistently practice pedestrian safety skills. Staff will remain within visual range of [the VA] always while in the community.”

· The VA had a history of leaving without notifying anyone and ingesting toxic chemicals. Staff were to monitor the VA and encourage the use of his/her coping skills when needed.

The VA did not have an elopement protocol specific to his/her needs. However, the facility’s Policy and Procedure on Responding to and Reporting Incidents, which was meant for all consumers’ needs, stated the following:

· Staff will immediately call 9-1-1 if a consumer is determined to be missing. Staff will provide the police with information about the person’s appearance, last known location, disabilities, and other information requested.

· Staff will immediately notify a supervisory staff person. Together a more extensive search will be organized, if feasible, by checking locations where the person may have gone.

The facility’s incident report, completed by the P, stated the following:

· On June 4, 2022, exact time not documented, “[The SP] took [the VA] out for a ride. [The SP] had to use the restroom and [the VA] would [not] get out of the car. [The SP] left [the VA] in the car and went into the Dollar Tree to use the bathroom.”

· “When [the SP] came out of the store [the VA] was gone.”

Note: The Dollar Tree store was located in a strip mall, and shared a building and parking lot with several other retail stores, including a Petco. Petco and The Dollar Tree were located next door to one another. There was a two lane driving lane between the building and the parking lot. The strip mall was near the intersection of Interstate 35W and Interstate 35E and was set along county road 42, which had multiple lanes in either direction, traffic signals, and heavy traffic during most times of the day.

A Burnsville Police Incident Report stated the following:

· On June 4, 2022, at 4:43 p.m., 9-1-1 dispatch received a call from a community person (CP). The CP had noticed a person, later identified as the VA, “wandering in the (strip mall) parking lot with no shoes on.”

· The CP had followed the VA into the Petco store. The VA was alone, “nonverbal,” and unable to respond to the CP’s questions. The CP requested law enforcement officers (LEOs) respond to the Petco store for a welfare check on the VA.

· The LEOs responded and determined that the VA was “unable to care for [him/herself].” The VA was alone, “nonverbal,” and without any identifying information. The LEOs contacted emergency medical services (EMS), who responded and transported the VA to an emergency room “on a medical hold.”

· “During our whole encounter with [the VA] inside Petco, no one called regarding a missing/runaway person and no one claimed [the VA]. Approximately one hour later, I received a phone call request from [the SP]. [The SP] claimed to be [the VA’s] caretaker. [The SP] explained that [s/he] went to Dollar Store inside to use the restroom for no more than 30 minutes, when [the SP] returned [the VA] was gone.”

Emergency room records stated the following:

· On June 4, 2022, around 5:21 p.m., the VA arrived at the emergency room with EMS.

· “Patient was found wandering inside Petco without shoes and appeared altered. Burnsville Police Department evaluated patient and felt [s/he] was most appropriate for medical evaluation thus brought to the emergency department. Unfortunately nobody was with the patient. [S/he] has no ID, is nonverbal and unable to provide any information. History otherwise limited.”

· “Burnsville [Police Department] called and asked them to update us if there is a missing person report.”

· “Burnsville [Police Department] called back with information that patient resides [at the facility] and there is a staff member looking for the patient.”

· “[G1] was contacted and came to the emergency department. [G1] reports patient has developmental delay and autism. [The SP] also arrived and states that patient was in the vehicle while [the SP] went inside to use the restroom. When [the SP] returned to the vehicle the patient had eloped [left without supervision]. [G1] reports that [the VA] is at baseline and would like to take the patient home.”

· The VA was released from the emergency room into G1’s care around 9:05 p.m., June 4, 2022.

G1 and G2 provided the following information:

· The VA appeared “spooked and traumatized” immediately following this incident and for a day or so after.

· G1 and G2 understood that staffing was an issue for the facility and that at times they were unable to provide two staff for the VA as required. However, it was the facility’s responsibility to either obtain adequate staffing or inform G1 and G2 of their inability to do so. The facility did not contact G1 or G2 about the lack of staffing on June 4, 2022. G1 added that the SP was “always working” and had worked “multiple shifts” with the VA. “[The SP] knows better to go out (in the community with the VA) without backup” (e.g. a second staff person).

· G1 and G2 had “numerous” conversations with the P and the P’s supervisor about the need for two staff with the VA. G1 said, “[The VA] is prone to elope [leave without supervision]. This is a danger we discussed with them many, many, many times … We’ve had discussions with several of them about this. This thing that happened (on June 4, 2022) was; it was a clear case of negligence.”

· G1 was further concerned that the SP did not contact law enforcement immediately when s/he became aware of the VA missing. Instead, according to G1, a missing person report was not called into the police until two hours had passed. “That, was to me, very, very upsetting.” During this time, emergency room personnel attempted to identify the VA using social media and other resources. The VA waited in the emergency room, “alone and scared.” When a missing person report was eventually called-in, the LEOs and emergency room were finally able to identify the VA and reach out to the P and G1. (Note: According to the facility’s incident report, the LEOs notified the P of the VA’s whereabouts at 6:17 p.m.)

The P provided the following information:

· The VA required 2:1 staffing.

· On the day of the incident, there were two staff scheduled to work with the VA; the SP and a second staff. However, just prior to the shift starting, the facility was notified that the second staff’s background study did not clear and so s/he was not able to work. Another staff, who had been working the morning shift, offered to stay, but s/he had already worked the maximum hours for that pay period. The P was also not able to work that day for personal reasons. As a result, the SP was the sole staff available to work with the VA.

· The P further explained that staffing was “hard,” especially when it was a “last minute” need, like on the day of the incident; and even with advance notice, it might still take the P “two weeks” to fill an open shift on the schedule. The P did not recall what attempts s/he made to get a second staff on the day of the incident. However, the P would typically post on a work-application called “When I Work,” but this was typically used when there was advance notice of an opening. There would not have been time to use this application on the day of the incident. The P also typically called staff to come in, but staff frequently did not answer their phones. In addition, according to the P, a lot of staff did not like working with the VA because of the VA’s behaviors. There were times when a staff would show up, work a few hours with the VA, and then abruptly leave without coming back.

· The VA was not able to be unsupervised in the community and was not able to communicate his/her personal information if needed. However, the VA was experienced at using his/her coping skills to “calm” him/herself. The VA used coping skills like rocking back and forth, and jumping, but one of his/her favorite coping mechanisms was to go for a car ride. The VA communicated his/her desire for a car ride by bringing his/her shoes to staff.

· The P said that in the event a staff needed to use the restroom while in the community with the VA, the staff was supposed to either take the VA with to the restroom or have the second staff person remain with the VA while the first staff went to the restroom. Regarding this incident, when the VA was declining to go with the SP, the P said, “[The SP] shouldn’t have left [the VA]. Simple as that.”

· The P added that although the VA had a history of leaving without supervision, the VA had not done so since moving into the facility.

· The P was not aware of there being a delay in calling law enforcement or filing a missing person report.

· The P was not aware of any previous concerns with the SP’s conduct.

The SP provided the following information:

· On the day of the incident, the SP’s shift started at 2 p.m.

· At that time, the VA was acting as though s/he was triggered by something and about to engage in a maladaptive behavior. The SP explained that the VA had a history of ingesting his/her feces, hitting him/herself, and/or hitting staff. However, the VA was good about knowing how to manage his/her coping skills; and one such technique was to go for a car ride.

· The SP said that the VA went into his/her bedroom and brought his/her shoes out to the SP. The SP knew that this meant the VA wanted to go for a car ride, and the SP agreed. The SP believed that they left the facility “after 3 [p.m.]” to start their car ride; the SP could not recall any other times or how long they were driving for.

· The SP drove while the VA sat in the backseat. They drove to Burnsville, MN, which was about 8.5 miles from the facility.

· At this point in the drive, the VA was calm and the SP was headed back to the facility. However, the SP had to use the restroom. The SP pulled into a strip mall parking lot to use the Dollar Tree store restroom. The SP said that historically, the VA would have gotten out with the SP without issue. However, on this day, the VA declined to exit the vehicle.

· The SP said that historically if s/he was the sole staff with the VA in the community, s/he would have brought the VA into the restroom with the SP in order to maintain supervision because the VA was not able to be in the community unsupervised. However, the VA was declining to go with the SP, and the SP “didn’t know what to do.” The SP said, “I tried, I tried,” but the VA would not move. The SP did not believe that s/he would have time to drive back to the facility to use the facility’s restroom due to the urgency of the SP’s need to use the restroom.

· The SP decided to leave the VA in the vehicle. The SP moved his/her vehicle to the “closest parking spot” to the Dollar Tree store, rolled down the windows, and locked the doors. The SP then went into the Dollar Tree store, and believed that s/he was away from the vehicle for four to five minutes. When the SP returned, the VA was gone. (Note: The SP did not know why the Burnsville Police Incident Report stated that s/he was inside the Dollar Tree store for “30 minutes.” The SP said that s/he never told the LEOs this information, and that this information was not true.)

· The SP said that the VA had a history of “running,” and so when the SP returned and the VA was not there, the SP believed the VA might have taken off running. The SP ran to county road 42, a Target store parking lot, and a nearby mall parking lot, but could not find the VA. The SP then ran back to the strip mall and went into the Dollar Tree store, but the employees there had not seen the VA. The SP then went into the next door Petco store where the employees told the SP that the VA had been taken to an emergency room by law enforcement. The SP then called law enforcement and was reunited with the VA at the emergency room. The SP did not know how long the VA was unsupervised in the community. (Note: The facility’s Internal Review stated that the LEOs told the P that the VA was unsupervised for “over 20 minutes.” It was not documented where the LEOs received this information.)

· When asked if there was a delay in calling law enforcement, the SP said that due to the VA’s history of “running” (leaving without supervision), the SP wanted to immediately check “all the areas where there were fast moving cars.” “My mind went to the road.” The SP was “in a panic,” running around looking for the VA. The SP called 9-1-1 as soon as s/he found out what happened from the Petco employees.

Facility documentation stated that the SP and the P received training on the VA’s care plans, the facility’s policies and procedures, and the Reporting of Maltreatment of Vulnerable Adults Act.

Relevant Minnesota Statutes and Rules:

Minnesota Statutes section 245D.07, subdivision 1a, paragraph (a), states that the license holder must provide services in response to the person's identified needs, interests, preferences, and desired outcomes as specified in the coordinated service and support plan and the coordinated service and support plan addendum, and in compliance with the requirements of this chapter. License holders providing intensive support services must also provide outcome-based services according to the requirements in section 245D.071.

Conclusion:

Consistent information was provided by the SP and law enforcement and medical records that on June 4, 2022, the SP left the VA unsupervised in a vehicle while the SP went into a store to use the restroom. The VA left the vehicle, without notifying anyone, and wandered into a different store. The VA was not wearing shoes and was unable to communicate his/her personal information to the CP or store employees, who called 9-1-1. The VA was transported to an emergency room where, again, the VA was unable to communicate his/her personal information. The emergency room was in contact with law enforcement in an attempt to identify the VA. Once the SP called in a missing person report, the emergency room was able to identify the VA, and contact G1. According to G1, the VA appeared “spooked and traumatized” immediately following this incident and for a day or so after.

Regarding the SP’s conduct on June 4, 2022:

The SP was aware of the VA’s history of leaving without supervision and that the VA could not be unsupervised in the community; however, the SP failed to remain with the VA when s/he used the Dollar Tree store restroom. The SP’s conduct was inconsistent with the VA’s care plans; and in violation of Minnesota Statutes section 245D.07, subdivision 1a, paragraph (a).

However, the SP was the sole staff person working with the VA, who was supposed to have 2:1 staffing. The SP was attentive to the VA’s communication, and was aware that the VA wanted to go for a car ride, which was one of the VA’s coping skills. Historically, if the SP took the VA for a ride car and the SP needed to use the restroom, the VA would have gotten out of the vehicle with the SP without issue. However, on this day, the VA declined to get out of the vehicle, which the SP was not anticipating.

It was reasonable to expect that during a car ride, a staff person might need to use the restroom; and given the VA’s history of going with the SP without issue previously, the SP did not have reason to believe this time would be different. The SP did not think s/he would have time to make it back to the facility’s restroom due to the urgent need. The SP took actions to lessen the potential for harm to the VA by moving his/her vehicle closer to the store, locking the vehicle doors, and rolling down the windows.

In addition, although, the SP did not immediately call 9-1-1 upon noticing the VA was not in the vehicle, it was reasonable for the SP to first check high traffic areas given the VA’s history of “running” and their location next to several busy roads and interstates.

Finally, Minnesota Statutes, section 626.5572, subdivision 17, paragraph (c), clause (4), states, "A vulnerable adult is not neglected for the sole reason that an individual makes an error in the provision of therapeutic conduct to a vulnerable adult which does not result in injury or harm which reasonably requires medical or mental health care."

Given the aforementioned, and that the incident did not result in injury or harm that required medical or mental health care; that the SP took reasonable actions to minimize the potential for injury or harm; and that the SP’s actions upon noticing what happened were reasonable given the circumstances, it was determined that the SP’s actions on June 4, 2022, were an error in the provision of therapeutic conduct. The error in the provision of therapeutic conduct by the SP was not maltreatment.

It was determined that neglect did not occur (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).

Regarding the facility’s staffing:

The facility initially had two staff scheduled to work with the VA on June 4, 2022; however, only the SP was available. According to the VA’s care plans, s/he required 2:1 staffing, and if staff were “unavailable for their shift and the shift is not able to be filled by another staff person, [G1] will be contacted. If [G1] is unavailable, [G2] will be contacted.” G1 and G2 stated that on the day of the incident, the facility did not contact G1 or G2 about the lack of staffing. The facility’s failure to provide 2:1 staffing at the time of the incident and the failure to contact G1 or G2 about the lack of staffing were a violation of Minnesota Statutes section 245D.07, subdivision 1a, paragraph (a).

However, given that the lack of staff was discovered “last minute,” that the P did not recall what measures s/he took to obtain a second staff person and added that staffing was “hard” at the facility, and that it was unknown what might have happened if the SP was not attentive to the VA’s communication and/or if the SP did not take the VA for a car ride as the VA was requesting to do, there was not a preponderance of the evidence whether there was a failure to supply the VA with care or services, which were reasonable and necessary to obtain or maintain the VA’s physical or mental health or safety.

It was not determined whether 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).

Action Taken by Facility:

The facility completed an internal review, and determined that policies and procedures were adequate, but not followed. The facility provided additional training to the SP.

Action Taken by Department of Human Services, Office of Inspector General:

On August 19, 2022, the facility was issued a Correction Order for the violations outlined in this report.

PO Box 64242 • Saint Paul, Minnesota • 55164-0242 • An Equal Opportunity and Veteran Friendly Employer
https://mn.gov/dhs/general-public/licensing/