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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: 1082638-SUD (Substance Use Disorder) Investigator(s): Deb Neubauer-Hoffman Suspected Maltreatment Reported: It was reported that a staff person (SP) prevented residents from leaving an area while a drug search was being conducted. When a vulnerable adult (VA) insisted on leaving, the SP “elbowed” the VA later resulting in a bruise. Date of Incident(s): April 21, 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 May 17, 2022; from documentation at the facility and law enforcement records; and through six interviews conducted with the VA, three facility staff persons (the SP, P1, and P2), a facility health care professional (HCP), and a resident (R1). A second resident (R2) was contacted via telephone and text; however, R2 did not return any messages. The VA described him/herself as a hard worker and said that s/he enjoyed learning. The VA’s diagnoses included anxiety, attention deficit hyperactivity disorder, and substance use disorder. The VA provided the following information: · On April 21, 2022, at the end of a group session, the SP said “they were doing something” outside of the cafeteria so the residents had to wait/remain inside the cafeteria that was outside the room where the group session was held. The VA told the SP that s/he needed to use the bathroom and the VA was allowed to leave the room. When the VA returned to the cafeteria s/he saw his/her family member outside delivering some items for the VA. The VA wanted to talk to a staff person on the other side of the door about getting the VA’s “stuff” and the SP said the VA “cannot leave the room.” The VA said s/he did not need to leave the room and only wanted a staff person to get his/her “stuff.” The VA tried to push the cafeteria door open to talk to the staff on the other side; however, the SP was “really unreasonable” and “started elbowing” the VA’s stomach. While the VA was pushing through the door to get away from the SP, the SP “kept elbowing” the VA a total of five to eight times until the VA was past the SP. · The following day the VA had bruises in the middle of his/her stomach that were approximately two and a half inches in diameter. Facility staff persons took photographs on two occasions (April 23 and 25, 2022) as the bruises darkened. · On the day of the incident the VA called law enforcement; however, when they arrived they “refused” to talk to anyone besides the VA and P2. The VA believed that two other residents, R1 and R2 witnessed the incident because R1 was inside the cafeteria with the VA and R2 was coming back into the cafeteria at that time. · The VA said, “The whole situation is upsetting,” and “should have been handled better.” The facility was “supposed to be safe” and the SP’s actions gave the VA “more reason to not trust people.” P2, a management person, wrote a Critical Incident Information form and/or provided the following information when interviewed by this investigator: · On the afternoon of April 21, 2022, a search for illegal substances was scheduled with an independent contractor who came to the facility with a scent detection dog. The protocol for the search included staff persons being asked to “do their best” to keep the residents in groups during the search so that it can be conducted without interruption. However, residents “cannot be forced” to stay in an area if they insist on leaving. · P2 walked into the main lobby of the facility and saw the SP standing in the doorway of the cafeteria attempting to prevent residents from leaving the cafeteria due to the search. P2 saw two residents (the VA and R1) near the door, behind the SP, attempting to leave the cafeteria. The SP’s voice was not raised as s/he directed the VA to remain in the cafeteria; however, VA was “persistent” about wanting to leave. When the SP prevented the VA from leaving the situation “escalated.” · P2 calmly asked the residents to remain in the cafeteria until the search was completed and saw the SP’s left elbow was raised from the side of his/her body, blocking the VA from exiting the cafeteria. P1 was also in the lobby “in close proximity” to the cafeteria door. An unidentified person called P2’s name and s/he turned around (away from the cafeteria door) and did not see any contact between the SP and the VA. However, the VA started “yelling” in the direction of the SP that the VA was “assaulted” and wanted to “press charges.” · P2 asked the VA to exit the cafeteria and the VA told P2 that s/he was elbowed in the torso by the SP. P2 encouraged the VA several times to go upstairs to his/her room where P2 would meet with him/her when the search concluded. R1 also exited the cafeteria and said that s/he witnessed the incident between the SP and VA. · When asked how the SP was trained to respond to such incidents, P2 said that the facility does not allow “restraint” so P2 would not expect a staff person to stand in the middle of the doorway because if the VA “wanted to leave [s/he] could have” and it would have been “addressed with [him/her] later on.” · When P2 met with the VA following the incident, the VA said that the SP struck him/her “at least five times.” The SP admitted to elbowing the VA three times. · On an unknown date when the VA reported bruising on his/her torso and attempted to show P2 his/her torso, P2 told the VA to “go to nursing.” · P2 described the SP as a staff person who “runs a tight ship” and was “more stern following the rules.” If the VA insisted on leaving the cafeteria, the facility “likely could have found [a staff person] to escort [him/her].” P3, a management person, documented that on April 21, 2022, at approximately 4:15 p.m., the SP told P3 that s/he was involved in an incident with the VA in the cafeteria. The SP said that at the end of a group, the residents were asked to remain in the cafeteria area due to a situation in the remainder of the building. The SP stood at the cafeteria exit door and attempted to keep the residents inside the cafeteria. The VA attempted to push the door open resulting in the VA pushing the SP as well. The SP said that s/he repeatedly told the VA s/he was not to leave the area and asked the VA to back away. The SP admitted that in an attempt to contain the situation, the SP elbowed the VA three times in the “chest area.” At this point the VA had the door partway open and P2 was outside the door. P2 advised the SP to allow the VA to leave the cafeteria area and directed the VA and other residents to go to their rooms. The VA left the area yelling profanity. The VA called local law enforcement who came to the facility and determined no assault charges would be filed against the SP. P1 was in the lobby at the time of the incident and provided the following information: · The closed cafeteria door was to P1’s right and at some point an unidentified resident (likely R2) went to the bathroom. As R2 returned to the cafeteria, the SP opened the door and stood in the door frame. As the door was opened, the VA “tried to reach around [the SP] to get someone’s attention.” (P1 later realized that the VA’s family member was outside the facility.) The VA “started to get up on [the SP’s] left side and [the SP] pushed [the VA] off [him/her]” with the SP’s left elbow. After the first “shove” with his/her elbow, P1 heard the VA say something like “whoa” and the SP then used his/her elbow and “hit” the VA two more times with his/her elbow. The VA said, “This is assault!” · Due to the size difference between the SP and the VA, the SP was not able to get the VA to “move” when the SP elbowed the VA. However, P1 believed the force of the SP’s elbow could have caused bruising. · P1 described the SP as “very respected” and “professional” so P1 was “shocked” by the SP’s actions and “baffled” by what s/he saw. P1 described the VA as “a boundary pusher” who needed “a lot of redirecting.” P4 was at the facility at the time of the incident but was not present in the lobby or cafeteria. P4 provided the following information regarding training, searches, and what the VA told P4 after the incident: · When a search was scheduled, staff persons received an email so that they could “stretch out” the group for a few minutes. The staff person overseeing the group was supposed to let the group know that it would extend beyond the normal time and residents were “mandated to stay” until the completion of the group. · Despite asking residents to remain in an area, residents had the right to leave, especially if they did not feel safe. Although the VA was aware of the expectation, s/he was “impulsive” and did not always adhere to directives. · During the search, emails were sent notifying staff persons as to the areas completed or where the search was moved to next. Staff persons were supposed to “keep clients occupied in groups until notified the search is complete.” · Following the incident on April 21, 2022, the VA came to P4’s office and told P4 about the incident and said that the SP elbowed the VA in the stomach “hard.” The VA showed P4 his/her stomach and P4 observed a “pink circle above [the VA’s] belly button” about the size of a “golf ball.” The VA said that s/he had “already been to the nursing station” and the HCP took a picture of the VA’s stomach. · “Some days” after the incident P4 saw the VA’s stomach again and the bruised area looked “yellowish” and was approximately three and a half inches in diameter. P4 believed s/he took a photograph of the VA’s stomach on April 25, 2022. R1 said that all the residents were told there was an “inspector” at the facility and they needed to “stay where they were.” R1 was in the cafeteria at the time with the SP and several other residents. R1 said that s/he needed to leave the cafeteria to use the bathroom but was told to wait. The SP was standing at the cafeteria door when the VA saw someone dropping something off for the VA. The VA then tried “to get through the cafeteria door.” The VA was “bigger” than the SP and the SP put him/herself between the VA and the door to prevent anyone from leaving the cafeteria. The VA was getting “more aggressive” with his/her attempt to go through the door and the SP put his/her arm up “to stop [the VA] from pushing [the SP] over.” R1 did not see the SP “elbowing” the VA but did see the SP using his/her forearm to “separate” him/herself from the VA and push the VA back/away from the SP. Once the VA got past the SP, R1 also attempted to leave the cafeteria and the SP pushed R1’s “chest” to push him/her back into the cafeteria. When asked if the SP’s actions were likely to cause any bruising or injury to the VA, R1 said, “Maybe.” R1 heard the VA was bruised after the incident; however, R1 believed that if the VA was bruised, it was likely from the VA “bumping into [the SP] when attempting to get passed” the SP. R1 said the SP was “just trying to do [his/her] job” but the VA was “causing a scene,” knew that staff persons were not supposed to touch residents, and “knew what [s/he] was doing.” The HCP provided the following information. The VA came to “nursing” on the morning of April 22, 2022. The VA had tears in his/her eyes and said s/he was “upset” because s/he was physically assaulted by a staff member. The VA said that when s/he attempted to leave the cafeteria area the SP “elbowed” the VA several times in the abdomen. The VA showed the HCP his stomach and the HCP took a picture of a “red mark” that was approximately one inch in diameter. (The HCP said that his/her photo was time/date stamped April 22, 2022, 10:04 a.m.) On the morning of April 25, 2022, at 11:58 a.m., the HCP took a second picture that showed a larger bruise in the same area that was approximately two inches in diameter. The HCP said that the facility was a “no touch” facility. Prior to the incident, the HCP heard unidentified residents complain about the SP’s group rules; however, because of where the HCP’s office was located, s/he did not observe any interactions between residents and the SP. The SP provided the following information: · Group normally ended at 3:45 p.m., however, on April 21, 2022, a drug search was going on at the facility and the SP received communication via email to keep the residents in group. When group ended, a client asked to go to the bathroom and the SP told him/her that there was a situation and the residents had to stay where they were. Residents were “not happy” and were “grumbling.” Someone made a comment about a “search” causing the residents to be “anxious.” · The VA “insisted” s/he had to go to the bathroom so the SP opened the door and asked P1 if that was possible and P1 approved as long as the VA used a bathroom on the main floor. Several other residents also insisted they had to go to the bathroom. When R2 requested to go to the bathroom, the SP opened the door to ask P1 if the was possible or if R2 had to wait until the VA returned. R2 “scooted out” and other residents started arguing about wanting to use the bathroom. · The VA returned to the cafeteria area and stood in front of the SP, who was standing at the cafeteria door with his/her arm on the horizontal bar/lever used to open the door from inside the cafeteria. The VA said s/he wanted to talk to a staff on the other side of the door in the lobby and pushed on the door. The SP held the lever and asked the VA and everyone else to step back. When the VA was told s/he had to wait inside the cafeteria, the VA got “in [the SP’s] face” and was spitting, swearing, and calling the SP names. The SP said s/he was “speaking calmly” when s/he asked the VA “three times” to step back and when the VA did not comply, the SP “elbowed” the VA in the chest, and then elbowed the VA two more times. The VA yelled that the SP “assaulted” the VA and the VA was “going to sue” the SP. · P2 told the SP to “let [the VA] go” and the SP let go of the lever and the VA ran upstairs while continuing to swear. · The SP was not aware of any injuries to the VA that resulted from the physical contact between the VA and the SP and s/he found it “hard to believe [the VA] had any.” The SP provided this investigator with photos of bruising on his/her right forearm that the SP believed resulted from being pressed against the door cafeteria lever by the VA. · Although the SP said that the facility was not locked and residents were allowed to leave if they chose to, the SP believed s/he was following P2’s directive when s/he was told to keep the residents where they were during the search. The SP provided this investigator with a string of emails sent to all staff by P2 throughout the search on April 21, 2022: · 3:11 p.m.: “PLEASE KEEP ALL PATIENTS IN GROUPS UNTIL FURTHER NOTICE” · 3:12 p.m.: Starting in Villa 1 now · 3:22 p.m.: In Villa 2 · 3:37 p.m.: “PLEASE KEEP ALL PATIENTS IN GROUP AT THIS TIME. WE ARE UPSTAIRS IN THE 200s” · 3:53 p.m.: Headed to smoking patio and 100s room. · 3:56 p.m.: In 100s rooms now – PLEASE KEEP PATIENTS IN GROUPS · 4:08 p.m.: Clearing basement now – groups can be released but KEEP THEM OUT OF THE BASEMENT UNTIL FURTHER NOTICE · 4:14 p.m.: Search is complete A law enforcement officer (LEO) documented information from the VA that was consistent with the VA’s interview with this investigator with the exception of the VA saying s/he was elbowed “seven” times by the SP. P1’s information was also consistent and P1 added that the VA was “definitely in [the SP’s] personal space and would not back away from the door.” The SP admitted that when the VA was trying to go into the lobby, the SP “elbowed [the VA] to get [the VA] to back away” from the SP and “keep [the VA] from exiting” the cafeteria. However, the VA did not stop trying to leave, called the SP names, and yelled at the SP. The report stated that the SP’s actions “did not rise to a criminal charge” and the LEO attempted to explain this to the VA several times. The SP’s job description stated that s/he needed the ability to “exercise balanced judgement in evaluating situations and making decisions, and to handle difficult or confrontational situations in a calm, consistent and equitable manner” and “be able to treat staff and patients with respect.” Facility information showed that staff persons were trained regarding boundaries communication, co-occurring disorders, de-escalation. Conclusion: A. Maltreatment: On April 21, 2022, facility emails showed that the SP was directed to “KEEP ALL PATIENTS IN GROUP” during a drug search and when the SP attempted to keep the residents in the cafeteria at the end of his/her group session; some residents needed to use the bathroom. After the VA returned from the bathroom s/he attempted to leave the cafeteria again when s/he saw a family member delivering some items. Information from the VA, the SP, R1, and P1-P3 was consistent that the SP stood in the doorway and attempted to prevent the VA and other residents from leaving the cafeteria. P4 believed that later in the day, after the incident, s/he saw a “pink circle above [the VA’s] belly button” about the size of a “golf ball” that the VA said was from being elbowed by the SP and the VA said that the HCP took a photo of the area. However, the HCP stated the time/date stamp on the photo showed it was taken the morning after the incident, April 22, 2022. The SP admitted s/he elbowed the VA in the “chest” three times while the VA was pushing against the SP; however, the SP did not believe the VA sustained a bruise on his/her stomach as a result of the SP’s actions. The SP provided photographs of bruising on his/her right arm that the SP believed was the result of the VA pushing against the SP when his/her arm was on the door lever. R1 stated s/he saw the SP put his/her arm up to “stop [the VA] from pushing [the SP] over” as the VA tried to get through the cafeteria door into the lobby. Regardless of injury or reason the SP engaged in the physical contact with the VA, the SP’s actions of “elbowing” the VA were inconsistent with the standards of a professional caregiver in a facility licensed by the Department of Human Services and could be considered by a reasonable person to be harassing and/or threatening. Although there was conflicting information regarding the force used by the SP when elbowing the VA, the action of elbowing the VA could reasonably be expected to cause physical pain or 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; or 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. The SP received training regarding the Reporting of Maltreatment of Vulnerable Adults Act, co-occurring disorders, and de-escalation. The SP admitted s/he elbowed the VA and was therefore 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 abuse for which the SP was responsible did not meet the statutory criteria to be determined as recurring because it was a single incident. Although the VA stated the incident caused a bruise, given that bruising on the VA was not observed until the day after the incident, and that R4 believed any bruising/injury to the VA resulted from the VA’s own actions of “bumping into” the SP, it was not determined whether the VA’s injury was a direct result of the SP’s action or incidental in the course of the incident. Therefore, the substantiated abuse for which the SP was responsible was not serious maltreatment. Action Taken by Facility: The facility completed an internal review and determined that policies and procedures were adequate but were not followed regarding boundaries. The SP was temporarily transferred to a different facility within the same organization until the completion of the VA’s treatment. The SP received additional training regarding “de-escalation and vulnerable adults.” 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. The SP was regulated by a health related licensing board. The health related licensing board was notified upon issuance of the investigation memorandum that the SP was determined to be responsible for maltreatment. The SP was notified that any further substantiated act of maltreatment, whether or not the act met the criteria for “serious,” would automatically meet the criteria for “recurring” and would result in the disqualification of the SP, if the background study is related to child foster care, adult foster care, or family child care licensure.
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