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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: 1079030-HCBS (Home and Community-Based Services) Investigator(s): Tessa Ripka Suspected Maltreatment Reported: It was reported that two staff persons (SP1 and SP2) used an unauthorized restraint on a vulnerable adult (VA) and prevented the VA from leaving a room by holding the door shut. SP1 hit the VA with his/her phone. Date of Incident(s): July 11, 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 (1-4): 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. · Use of any aversive or deprivation procedure, unreasonable confinement, or involuntary seclusion, including the forced separation of the vulnerable adult from other persons against the will of the vulnerable adult or the legal representative of the vulnerable adult; and · Use of any aversive or deprivation procedures for persons with developmental disabilities or related conditions not authorized under section 245.825. Summary of Findings: Pertinent information was obtained during a site visit conducted on July 18, 2022; from documentation at the facility; and through seven interviews conducted with three facility staff persons (SP1, SP2, P), the VA’s case manager (CM), the VA’s guardians (G1, G2), and the VA. The VA was diagnosed with developmental disabilities and autism spectrum disorder. The VA enjoyed bowling and going to the movies. The facility was a split level home. The VA occupied the top level. On the left side was a large open area which consisted of a living room area, a kitchen and another living area. On the right side down a hallway was a bathroom, the VA’s bedroom, and another room which was used as a sensory room for the VA. The sensory room had an adjoining door with the bathroom. The living room window looked out over the driveway area. The Coordinated Service Support Plan Addendum-Intensive Services indicated that the VA had a history of physical aggression including pushing, shoving, and hitting when upset. Staff persons used de-escalation techniques, provided validation and support by offering alternatives, gave space, and offered an as needed medication as appropriate. If the VA became aggressive, staff persons went to a safe place in the home and monitored the VA with visual or auditory senses. The VA said s/he liked the staff persons at the facility and enjoyed living at the facility. When asked if there was a time that staff persons hurt the VA or that the VA got hit by a phone, the VA said s/he could not remember. FM1 said that on the date of the incident, the VA called him/her crying and said that a staff person hit the VA with a phone. The P said s/he worked at the facility on the afternoon of the incident. When the P arrived, SP1, SP2, and the VA were outside of the facility. The VA chased SP1 and SP2 and tried to make physical contact so the P came over to the VA and asked if s/he was ok and asked the VA to go inside with the P. The VA went inside the facility with the P and SP1 and SP2 left the facility. The VA called FM1 to talk and calmed down. Video footage provided the following information: · SP1 sat on a couch by the living room window while SP2 sat on a bean bag chair in front of the window. The VA came into the living room and kicked SP1’s leg and tried to grab at SP1. SP1 grabbed the VA’s left wrist and pushed the VA back onto the couch, still holding the VA’s wrist towards the VA’s body. SP1 asked what the VA wanted. · SP1 then took his/her right leg and put it over the VA’s legs and grabbed the VA’s other arm. SP1 continued to ask the VA why s/he did this and the VA told SP1 to let the VA go. SP1 let go of the VA, got up from the couch and backed away to the center of the room while the VA stayed seated on the couch. · SP1 went into the sensory room. The VA attempted to follow SP1 but SP1 shut the door. SP1 opened and shut the door several times while talking with the VA who stood outside. SP2 then came into the room to put some items in the room while SP1 went out into the hallway. · SP1 came back into the room after several minutes and the VA followed coming towards SP1 with his/her arms stretched toward SP1. SP1 grabbed each of the VA’s hands with SP1’s hands and crossed the VA’s arms across the VA while turning SP1’s body into the VA. SP2 stood in the doorway and appeared to be possibly holding the VA’s arms or hands as well. · After a few seconds, the VA was able to get free and pushed SP1 back. The VA stood still while SP1 and SP2 talked to him/her but then after a few seconds, walked toward SP1 and the VA kicked his/her leg toward SP1. The VA did not appear to make contact with SP1 but SP1 stepped on the VA’s foot and grabbed his/her hands. The VA got his/her foot out from under SP1’s foot and said “Let go.” The SP tried to crouch down and pull his/her hands out of SP1’s hands. · SP2 took hold of the VA’s right hand and SP1 continued to hold the left hand. The VA said “Let go.” again and dropped to the floor on his/her back. SP1 and SP2 were not able to continue to hold the VA’s hands. The VA started to kick as s/he was on the floor. SP2 stood on the VA’s right side and grabbed the VA’s arms while SP1straddled the VA above his/her knees. The VA rolled over onto his/her left side. · SP1 and SP2 continued to tell the VA to “Stop it.” while the VA continued to say “Let go.” At that point the VA said “Let me go, I can’t breathe.” SP1 and SP2 blocked the view of the camera but appeared to struggle to keep the VA held down to the ground. SP1 and SP2 asked the VA if the VA was going to stop hitting and the VA said “Yes.” SP1 and SP2 let the VA go and walked away. The restraint lasted approximately one minute and 45 seconds. · As SP1 and SP2 walked away, the VA grabbed at a bag that was lying nearby as SP1 was picking it up. The VA grabbed the bag and pulled it toward him/her. SP1 grabbed the VA’s hands and put them on his/her chest while SP2 straddled the VA’s knees. · SP2 put the bag and other items in a closet and then both SP1 and SP2 hurried out of the room and closed the door. The VA got up to follow and tried to open the door. The VA was not able to open the door and yelled “Open door.” When s/he could not get the door open, s/he went to the other door in the room that opened into the bathroom and exited the room. The VA opened up the bathroom door leading into the hallway and left the view of the camera. The restraint lasted approximately one minute and 20 seconds. · After approximately 30 seconds, SP1 came into the sensory room from the bathroom door and stood inside the sensory room while the VA continued to yell. · Footage later on showed the VA leave the house while the P sat on the couch. Out the window SP1 and SP2 came be seen near a vehicle in the driveway. The P got up and went outside. The VA went towards SP1 and then SP1 appeared to come back towards the VA. The glare from the window causes the rest of the video to be bright and this investigator was unable to see what else occurred. SP1 provided the following information: · On the date of the incident, around 3 p.m., the VA started hitting, kicking, spitting, and punching staff persons. SP1 and SP2 put the VA in a hold with SP1 holding the VA’s legs and SP2 holding the VA’s arms. · The VA was able to get out of the hold. SP2 took SP1’s belonging and left into the bathroom. SP1 went outside. · SP1 did not have a vehicle so s/he waited for a ride outside of the facility. The VA came outside and tried to punch or hit SP1. SP1 ran away and the VA threw SP1’s lunch box and bag. SP1 was on his/her phone and the VA grabbed it and threw it on the ground. SP1 did not think the VA got hit by SP1’s phone at any point. SP2 provided the following information: · On the date of the incident, SP1 sat on the couch and the VA sat next to SP1. The VA wanted to sit on SP1’s lap. SP1 said “I am not a chair, don’t sit on me.” The VA said s/he would not do it. SP1 said “How would you feel if I sit on you?” The VA said “It would hurt.” SP1 then got up from the couch and the VA “went after her.” · SP1 went into the sensory room and the VA followed. The VA tried to hit SP1 so SP1 held the VA’s hands. The VA told SP1 to let her go and the VA “ended up on the ground.” SP2 held the VA’s arms while SP1 held the VA’s legs. The VA was too strong and SP2 could not hold the VA anymore so SP2 let go. · SP1 asked SP2 to grab his/her bag that was in the room so the VA could not throw it. The VA got up and SP2 went to the bathroom. SP1 left the facility. · The VA calmed down and watched TV. SP2 was done with his/her shift and s/he went outside of the facility. SP1 was also outside and had his/her lunch bag on a vehicle in the facility’s driveway. The VA came outside and grabbed SP1’s bag and threw it and started chasing SP1 around a vehicle. SP2 did not see a phone being thrown and said everyone had their phones in their hands. All staff persons were trained on the Reporting of Maltreatment of Vulnerable Adults Act, the VA’s plans, and the facility policies. Relevant Rules and/or Statutes: Minnesota Statues, section 245D.06, subdivision 5, states that the license holder is prohibited from using any time out, seclusion, or any aversive or deprivation procedure as a substitute for a behavioral or therapeutic program to reduce or eliminate behavior, as punishment, or for staff convenience. Conclusion: Information was consistent that the VA became upset and followed SP1 into the sensory room. The VA came towards SP1 and SP1 and SP2 held the VA’s hands and/or arms. The VA dropped to the floor and SP1 held the VA’s legs while SP2 held the VA’s arms. After less than two minutes, SP1 and SP2 let the VA go. The VA turned and grabbed SP1’s bag so SP1 held the VA’s arms while SP2 stood straddling the VA for less than 2 minutes. SP1 and SP2 exited the room and closed the door. The VA tried to open the door but could not and yelled for staff to open the door. The VA turned and went out the connecting bathroom door. Later on outside, SP1 and SP2 were standing by a vehicle when the VA came outside and chased SP1 around and threw his/her belongings on the ground. The P came outside, talked with the VA, and got the VA to go back inside. SP2 did not see a phone being thrown and said everyone had their phones in their hands. SP1 said s/he was on his/her phone when the VA grabbed it and threw it on the ground, but SP1 did not think the VA got hit by the phone. Regarding the restraint and seclusion: SP1 and/or SP2 attempted to seclude the VA in the sensory room by holding the door shut which was a violation of Minnesota Statues, section 245D.06, subdivision 5, but given the VA was able to quickly exit the room through another door and had no injuries a licensing violation was not determined. Both SP1 and SP2 restrained the VA on the floor on two incidents for less than 2 minutes each. Although it was unclear if a restraint was necessary, given the VA came towards SP1 with outstretched arms and appeared to try to hit or aggress against SP1, that the VA was briefly restrained and released when s/he appeared to be calm, and that s/he sustained no injury from the incident, there was not a preponderance of the evidence whether SP1’s or SP2’s actions could be reasonably expected to produce physical pain, injury or emotional distress. Regarding hitting the VA with a phone: Although the VA told FM1 that staff persons hit the VA with their phone, given the P and SP2 each stated that they did not see the VA get hit by a phone, that SP1 said the VA tried to grab his/her phone which could have resulted in the VA having made physical contact with the phone, and that the video footage did not provide any evidence to confirm or refute the allegation, there was not a preponderance of the evidence whether SP1 or any other staff person’s engaged in conduct which could produce pain or injury to the VA other than by accidental means. It was not determined whether 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; 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; use of any aversive or deprivation procedure, unreasonable confinement, or involuntary seclusion, including the forced separation of the vulnerable adult from other persons against the will of the vulnerable adult or the legal representative of the vulnerable adult; and/or use of any aversive or deprivation procedures for persons with developmental disabilities or related conditions not authorized under section 245.825). Action Taken by Facility: The facility completed an internal review and determined that policies and procedures were adequate but not followed by staff persons. SP1 and SP2 no longer worked at the facility. Action Taken by Department of Human Services, Office of Inspector General: No further action taken.
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