|
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: 1076069-H_CRS (Home and Community-Based Services-Community Residential Setting) Investigator(s): Alice Percy Suspected Maltreatment Reported: It was reported that a vulnerable adult (VA) spit on a staff person (SP) and the SP then hit the side of the VA’s head with his/her hand. Date of Incident(s): While the incident occurred on March 12, 2022, the Department of Human Services did not receive the report until July 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), 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 August 11, 2022; from documentation at the facility; and through five interviews conducted with a facility staff person (P1), an administrative staff person (P2), the SP, the VA’s case manager (CM), and the VA’s guardian (G). The VA’s diagnoses included Down syndrome and intellectual disability. The VA enjoyed going on community outings. The VA had minimal verbal skills. According to the VA’s Coordinated Service and Support Plan Addendum, the staff persons were to assist the VA by modeling appropriate behavior at all times. The VA sometimes hit or spit on the staff persons. The staff persons were to role-play with the VA to teach the VA to be respectful of others. The VA was sometimes aggressive, but might not be able to defend him/herself against abuse. The VA’s communication skills were “minimal” and s/he might have difficulty providing information about an incident. The staff persons were trained to use redirective techniques when the VA’s behaviors became challenging. P1, P2, and the SP, and the facility’s documentation provided the following information: · On March 12, 2022, P1 and the SP worked at the facility. At approximately 6 p.m., the VA entered the facility’s dining room from his/her bedroom. The VA was upset and was naked. The SP attempted to redirect the VA to return to his/her bedroom to dress instead of walking through the main living areas of the facility without clothing. The VA walked toward the SP and spit on the SP’s face. The SP said, “Stop it,” and immediately hit the VA on the right side of his/her head “from the ear up” with his/her open hand. P1 stated that s/he was approximately 14 feet from the VA and the SP and heard the sound of the SP’s hand hitting the side of the VA’s head. The SP did not believe that there was any sound made by the contact between his/her hand and the VA’s head. The SP stated that it was a reaction to the VA spitting in his/her face and that s/he “just tapped” the VA and did not “throwback” his/her hand. · The SP then said, “I can’t believe I just did that and I think I’m going to throw up.” P1 told the SP to “cool off” and the SP walked outside to calm. The VA did not appear to be “fazed” or upset by the incident and turned and walked back to his/her bedroom. P1 checked the VA for injuries, but did not see any mark or injury on the VA’s head. · P1 and the SP provided consistent information that neither of them talked to each other or anyone else about the incident. That day, P1 documented that the VA spit in the SP’s face, but did not document that the SP hit the VA. P1 stated that “it honestly didn’t cross my mind” to report the incident. P1 did not intend to “cover” for the SP, but had forgotten the incident by the time s/he completed the documentation at the end of his/her work shift several hours later. P1 and the SP each stated that they “should” have documented the incident. · On July 21, 2022, P1 and P2 were talking about the VA and some of the behaviors the VA displayed, like hitting, spitting, and slapping his/her own face. P2 shared information on how to redirect the VA when s/he displayed those behaviors. P2 asked P1 about when the VA spit in the SP’s face several months earlier and P1 told P2 that the VA “full on spit” in the SP’s face and the SP then “slapped” the VA on the side of his/her head. P2 asked P1 why s/he did not tell P2 about the incident at the time it occurred and P1 said, “It didn’t cross my mind.” P2 then talked to the SP about the incident and the SP told P2 that it was an “instant reaction” s/he had when the VA spit in his/her face. · Prior to the incident, P1 had no serious concerns about the SP’s interactions with any of the residents, except that the SP was sometimes “gruff” when s/he spoke to the residents. P1 stated that the SP was not verbally abusive to the residents. P2 stated that none of the staff persons previously brought any concerns about the SP’s interactions with the residents to him/her. After the incident, the VA did not seem to be afraid of the SP or act differently around him/her. The G stated that s/he was told about the incident after P2 became aware that it occurred. The G had no other concerns about the care the VA received at the facility. The CM stated that prior to the incident, s/he had no concerns about the care the VA received at the facility. According to the Progress Notes dated March 12, 2022, and completed by P1, “During ‘jammie time,’ [the VA] was continually getting mad about [his/her] pajama shirt and when staff was giving [his/her] shirt back, [the VA] spit in staff’s face. [The VA] then went to [his/her] room and got [his/her] pajamas on and was in a much better mood for the rest of the night.” Facility documentation showed that P1, P2, and the SP each received training on the Reporting of Maltreatment of Vulnerable Adults Act, on the facility’s policies, and on the VA’s plans prior to the incident. Relevant Rules and Statutes: Minnesota Statutes, section245D.04, subdivision 3, paragraph (b), state that a person’s protection related rights include the right to be treated with courtesy and respect. Minnesota Statutes, section 245D.07, subdivision 1, paragraph (a), state that the license holder is to provide services in response to the individual’s identified needs, interests, preferences, and desired outcomes as identified in the individual’s plans. Conclusion: A. Maltreatment: On March 12, 2022, at approximately 6 p.m., the VA entered the facility’s dining room from his/her bedroom. The VA was upset and was naked. The SP attempted to redirect the VA to return to his/her bedroom and put on clothing. The VA walked toward the SP and spit on the SP’s face. The SP said, “Stop it,” and hit the VA on the right side of his/her head “from the ear up” with his/her open hand. P1 was standing nearby and heard and saw the slap. The SP stated that s/he “tapped” the side of the VA’s head as a “reaction” to the VA spitting in the SP’s face. After the incident, no mark or bruise was observed on the VA’s head. Neither the SP nor P1 documented or told anyone about the incident until July 21, 2022, when P1 mentioned the incident to P2. The SP’s actions of slapping the VA on the head were inconsistent with the standards of a professional caregiver in a facility licensed by the Department of Human Services and violations of Minnesota Statutes, section245D.04, subdivision 3, paragraph (b); and section 245D.07, subdivision 1, paragraph (a). Although the VA did not sustain any injury, given that hitting/slapping a person on the head was particularly egregious and that P1 stated s/he heard the contact of the SP’s slap on the VA’s head, there was a preponderance of the evidence that the SP’s actions were not accidental or therapeutic conduct and could reasonably be expected to produce physical pain to the VA. It was determined that physical 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. Facility documentation showed that the SP received training on the Reporting of Maltreatment of Vulnerable Adults Act, on the facility’s policies, and on the VA’s plans prior to the incident. 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 abuse for which the SP was responsible did not meet statutory criteria to be determined as recurring or serious because it was a single incident for which the VA did not sustain an injury. Action Taken by Facility: The facility completed an internal review and determined that the facility’s policies were adequate, but were not followed by the staff persons. The SP no longer worked at the facility. P1 received additional training on the facility’s reporting policies. 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. Minnesota Statutes, section 626.557, subdivision 3, requires mandated reporters at a facility to immediately report suspected maltreatment. The investigation determined that one individual failed to report suspected maltreatment as required. A letter from DHS was sent to each of these individuals regarding his/her failure to report the suspected maltreatment and potential consequences for future such failures. Given that the facility took immediate corrective action once they learned about the incident, a correction order was not issued for the violations outlined above or for the delay in reporting possible maltreatment.
|
