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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: 1072124-H_CRS (Home and Community-Based Services-Community Residential Setting) Investigator(s): Sarah Schumacher Suspected Maltreatment Reported: It was alleged that a staff person (SP) smoked marijuana with a vulnerable adult (VA). Date of Incident(s): Unknown date prior to July 28, 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 August 17, 2022; from documentation at the facility; and through seven interviews conducted with the VA, a facility resident (R), two facility supervisors (P1 and P2), a facility staff person (P3), the VA’s guardian (G), and the SP. The VA’s diagnoses included mild intellectual disability, oppositional defiant disorder, attention deficit hyperactivity disorder, bipolar disorder, depression, anxiety, asthma, and pervasive development disorder. The VA could be at the facility or in the community without supervision for up to eight hours. The VA enjoyed working and being with family and friends. The VA provided consistent information to P2 and this investigator that on an evening the SP worked the overnight shift, (the VA did not recall the date), the VA obtained some marijuana and wanted to “brag” to the SP because the SP told the VA prior that the SP and his/her significant other smoked marijuana. The VA showed the SP the marijuana and let the SP “smell” it. Then, the SP asked the VA if s/he could “try a little bit,” and the VA agreed. The SP asked the VA if s/he had a “bowl” for the SP. The SP and the VA went out on a deck and ground up the marijuana and put it in two separate bowls, one for each to use. The SP and the VA both smoked the marijuana from their respective bowls. The VA stated that the SP finished the bowl which was “five or six hits.” The SP then said s/he was going to go back into the facility and complete his/her shift documentation. The VA went inside shortly after and the SP was “passed out” on a couch. About a week later, the VA had not seen the SP “for a while” so asked P1 about the SP. P1 stated that the SP no longer worked at the facility. When the VA found out the SP no longer worked there, s/he told P1 that the VA and the SP smoked marijuana together. The VA also told the R that the SP and the VA smoked marijuana. The VA stated this was the only occurrence that the SP smoked marijuana with the VA. P1 stated that on July 28, 2022, P1 was working at the facility and the VA asked P1 when the SP would be working again. P1 told the VA that the SP no longer worked at the facility. The VA said, “Good, now I can tell you this.” The VA told P1 that the SP asked the VA, “You think we could smoke together sometime?” The VA said, “Sure,” so the VA “packed a bowl” and the VA and the SP smoked marijuana together at the facility. The R stated that the VA told the R that the SP asked the VA to smoke marijuana with the SP and they did. The R did not see the SP smoking marijuana. P1 and P3 each stated that the VA was an accurate reporter of information. P2 did not regularly work with the VA so did not know if the VA was accurate or not.
The SP provided the following information: · The SP denied smoking marijuana with the VA and stated that s/he “does not smoke marijuana.” · “Once or twice” the SP sat on the facility deck with the VA and a former facility resident while the VA smoked marijuana. The SP did not smoke marijuana with them. · One occasion, the VA offered the SP marijuana but the SP declined. · The VA told the SP that a staff person who used to work at the facility smoked marijuana with the VA and “they got in trouble.” · The SP brought “disposable vape pens” to the facility to smoke that had nicotine in them and not marijuana. The SP thought the VA saw the vape pen and “got the idea” that the SP smoked marijuana so that was why the VA offered marijuana to the SP on one occasion. The SP stated that s/he did not accept the marijuana. When interviewed by P2, the SP stated, “Absolutely not” when asked if s/he smoked marijuana with the VA. The SP stated that s/he does not “smoke” and “did not smoke anything” with the VA. The SP thought that the VA “does not like me” as a staff person. The G stated that the VA did not tell the G about the incident. The G stated that the VA was an accurate reporter of information other than sometimes not remembering exact dates and times. The G did not have concerns regarding the VA’s care at the facility. The facility’s Drug and Alcohol Policy stated that staff persons were prohibited from using illegal drugs while providing care to persons receiving services or while on the facility property. P1, P2, P3, and the SP were each trained on the Reporting of Maltreatment of Vulnerable Adults Act and on the VA’s plans. In addition, on February 2, 2022, the SP was trained on the facility’s Drug and Alcohol policy. Conclusion: A. Maltreatment: The VA provided consistent information to P1, P2, the R, and this investigator that the VA and the SP smoked marijuana together at the facility. Although the SP denied smoking marijuana with the VA, given that the SP had reason to minimize his/her actions; that the SP said that s/he allowed the VA to smoke marijuana in the presence of the SP; that the VA provided consistent information to different people on different occasions; that P1, P3, and the G each stated that the VA was an accurate reporter of information; and that smoking marijuana was illegal, there was a preponderance of the evidence that the SP failed to provide the VA with reasonable and necessary care and services by smoking marijuana with and/or allowing the VA to smoke marijuana while being supervised by the SP. It was determined that 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). 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 trained on the Reporting of Maltreatment of Vulnerable Adults Act, the VA’s plans, and on the facility’s Drug and Alcohol policy. The SP was responsible for care and supervision of the VA at the time of the incident. The SP was responsible for the 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 neglect for which the SP was responsible did not meet statutory criteria to be determined as recurring because it was a single incident or serious because the VA did not sustain a serious injury. Action Taken by Facility: The facility completed an Internal Review and determined that policies and procedures were adequate but were not followed. The SP no longer worked at the facility. 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.
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