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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: 1070478-H_CRS (Home and Community-Based Services-Community Residential Setting) Investigator(s): Carla Harvieux Suspected Maltreatment Reported: It was reported that on July 8, 2022, a staff person (SP) hit a vulnerable adult (VA) on his/her face. The VA had a small raised bruise on his/her right cheek. Date of Incident(s): July 8, 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); and subdivision 17, paragraph (a): 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 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 July 28, 2022; from documentation at the facility and law enforcement records; and through interviews conducted with facility staff persons (P1, P2, and the SP), the VA, the VA’s guardian (G), and a facility resident (R1). A second resident (R2) was at the facility when the incident occurred, but s/he was asleep in his/her bedroom and had no pertinent information. Facility documentation showed that the VA was a funny and friendly person who responded best when staff persons spoke calmly with him/her and gave him/her plenty of time to process conversations. The VA’s diagnoses included a developmental disability and s/he might make poor decisions. The VA did not like to feel imposed upon, told what to do, or to have to wait for something s/he wanted. Signs that the VA was becoming upset included throwing away/destroying his/her personal items or making sarcastic comments using a snappy tone of voice. The VA might also go to his/her bedroom and yell at staff persons from inside the room. If the VA was upset, s/he might be non-compliant, physically aggressive toward staff persons/others, or destroy property in an attempt to control his/her environment, avoid requests made of him/her, or obtain something that s/he wanted. There was a Rights Restriction approved by the G and the VA’s team, which restricted the VA’s right to engage in chosen activities, specifically throwing his/her personal items out of windows at the facility. Without appearing to be “bossy,” staff persons were to talk with the VA about accepting responsibility for his/her actions and discuss his/her paying for things that belonged to others, which the VA broke or damaged. Offering the VA choices allowed him/her to feel like s/he had options rather than being told what to do. In a crisis, staff persons were to avoid making the VA feel cornered or pressured. The VA liked to watch wrestling and enjoyed taking walks when the weather was nice. Facility documentation, records from the law enforcement agency, information provided by P1, P2, the SP, the VA, and R1, and information from the Internal Review, provided the following: · The VA said that on the evening of July 8, 2022, s/he was upset for reasons that s/he could not recall, and began throwing items and talking to him/herself in a common area at the facility. The SP told the VA that s/he was “recording all this on camera” and the VA replied that s/he did not care but started chasing the SP and throwing things onto the floor. The SP initially “hid” from the VA in another room but when s/he came out, the VA told the SP that s/he would “slash” the SP’s tires when the SP went to sleep. The SP and VA moved down a hallway from the kitchen toward an exit door and the VA threw a bottle of laundry detergent at the SP hitting him/her on the upper arm. When the VA attempted to maneuver the SP out of the facility and lock him/her out, the SP said, “Don’t you even do it, motherfucker,” and “punched” the VA on the right side of his/her face. The VA was scared and “very angry,” so s/he went into his/her bedroom and called the G, who talked with the VA and let him/her know that law enforcement officers would be coming to the facility. After the SP punched the VA, s/he had a “black and blue spot” on his/her face, which was photographed by the officers after they arrived. According to the VA, R1 witnessed the incident, but R2 was in his/her bedroom when the incident occurred and did not see it. · R1 stated that s/he saw the SP record some of the incident with his/her mobile phone and when the VA went into his/her bedroom, the SP began knocking on the bedroom door, which made the VA “more mad.” R1 told the SP, “You know how [the VA] gets when people knock on [his/her] door,” and “warned” the SP to leave the VA alone because the VA would hit the SP. At some point during the incident, the SP “lunged” at the VA and hit him/her between the eye and cheek bone, which caused a swollen bruise. R1 had seen the VA get upset before, and stayed away from the VA and SP during the incident. The VA did not act aggressively toward R1. The incident ended when the VA called the G and law enforcement officers came to the facility. · The SP said that the incident started with the VA “getting aggressive” toward him/her and the clients, but there was “no way” to calm the VA or do “anything” about it. If the SP left the VA alone it was not “polite” but s/he had to do something so s/he waited at the VA’s bedroom door. The VA became aggressive and violent toward the SP, who then began video/audio recording the VA as the VA threw items and made verbal threats, to have “proof” of the VA’s actions which would “protect” the SP. The SP started moving toward an exit at the facility and the VA hit him/her on the arm with a bottle of laundry detergent. The SP realized that s/he was almost outside the facility and had no way to “subdue” the VA, but thought that s/he should be inside the facility so that s/he could monitor the VA and the Rs. As the VA moved toward the SP, s/he felt “threatened” and “punched [the VA] in the face” once with his/her fist, but did not hit the VA “hard.” The VA went into his/her bedroom, and the SP went into the office. At some point while s/he was in the office, the SP discussed the incident with the G by phone. Law enforcement officers soon arrived at the facility, and spoke with the SP, who gave them a copy of the recordings s/he made of the VA when the VA was upset. · The SP said that previously there had been “lots of reports” from other staff persons of the VA engaging in similar behaviors. If the VA was upset, staff persons were trained to let the VA “cool off” in his/her bedroom because s/he might be able to calm him/herself. Staff persons could also suggest other activities to the VA to redirect him/her, then document the VA’s actions. However, there was no one the SP could call for assistance, because the facility’s locations were usually single staffed. The SP did not think s/he needed help with the VA until s/he became violent with the SP, but then everything happened so quickly that there was no time to call anyone for advice. · Records from the law enforcement agency showed that just after 6 p.m. on the date of the incident, the agency received a phone call from the G saying that the SP had hit the VA twice on his/her face. A law enforcement officer (LEO1) went to the facility, and met with the VA and the SP. The VA told LEO1 that s/he did not like the supper prepared by the SP and had thrown it away. The VA was upset, threw multiple items at the SP, and hit the SP numerous times. The VA also said that s/he would “slash” the tires on the SP’s vehicle which would make the SP have to stay awake all night. The VA continued to throw items at the SP, the SP began exiting the facility, and the VA hit the SP on his/her arm with a bottle of laundry detergent. The SP then approached the VA and hit the VA twice on the right side of his/her face near the cheekbone, with his/her fist. There was a “small red mark” on the right side of the VA’s cheek. After the SP hit the VA on his/her cheek, there was no further interaction between the VA and the SP that evening. · A second law enforcement officer (LEO2) arrived at the facility shortly after LEO1 came, and talked further with the SP, who stated that s/he had made two audio/video recordings of the VA throwing items at him/her. LEO2 viewed the recordings and documented that the VA threw various items at the SP. The SP said that s/he hit the VA to get back into the facility so that s/he could provide care and supervision to R1 and R2, who were inside the facility, and to defend him/herself against the VA. P1, an administrative staff person, also came to the facility, but s/he had no firsthand information regarding the incident. The LEOs provided information gathered in their investigation of this incident to the Chisago County Attorney’s Office to determine whether there should be criminal charges against the SP. · P1 and P2 provided consistent information that when P1 came to the facility, the SP was sent home for the remainder of his/her shift while P1 and others finished the shift. The VA had a history of verbal and physical aggression, and property destruction. When the VA had negative behaviors, staff persons were to verbally redirect him/her to a preferred activity and could call supervisory staff persons for assistance. The facility’s Emergency Use of Manual Restraint Policy was reviewed and showed that hitting an individual in the face was not an approved intervention procedure. 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. The SP was most recently trained on the Maltreatment of Vulnerable Adults Act and the facility’s Mental Health and De-escalation Techniques (including approved restraints) in January of 2021. Conclusion: A. Maltreatment: Information was consistent from the SP, VA, and R1, that on July 8, 2022, there was a physical interaction between the VA and SP during which the SP hit the VA, causing the VA to have a small raised bruise on his/her right cheek. The VA had a history of having physically aggressive behaviors that often included property destruction, and his/her plans stated that staff persons were to talk with the VA about taking responsibility for his/her actions and paying for the belongings of others that s/he broke or damaged. When the VA was in a crisis, staff persons were to avoid making the VA feel cornered or pressured. The SP was aware of the VA’s history and heard “lots of reports” from other staff persons regarding the VA’s previous actions. The SP said that on the date of the incident, s/he hit the VA on the face to “subdue” him/her and protect him/herself. However, the SP was trained to redirect the VA verbally by suggesting that s/he take part in a preferred activity, according to P1 and P2. The SP’s actions were non-accidental, non-therapeutic conduct, not consistent with the role of a professional caregiver in a DHS licensed program, and a violation of the facility’s policies and procedures. Given this, that the SP did not follow the VA’s plans, and that the VA sustained a bruise on his/her right cheek from the SP’s hit, there was a preponderance of the evidence that there was a failure to provide the VA with adult with care or services which were reasonable and necessary to obtain or maintain the vulnerable adult's physical or mental health or safety, and that the SP’s conduct produced physical pain or injury to the VA. It was determined that physical abuse and neglect 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 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). 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 was providing care and services to the VA when the incident occurred and stated that s/he hit the VA on the face. The SP was 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 physical abuse and neglect for which the SP was responsible was not recurring since it was a single incident. However, the substantiated physical abuse for which the SP was responsible was serious because the VA sustained a bruise. 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 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. DHS will review the information provided by the law enforcement agency when the county attorney made a decision regarding possible criminal charges, and take any necessary action at that time.
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