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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: 1105906-H_CRS (Home and Community-Based Services-Community Residential Setting) Investigator(s): Deb Neubauer-Hoffman/Rebecca Mesto Suspected Maltreatment Reported: It was reported that on July 3, 2022, a staff person (SP) was involved in a verbal altercation with a vulnerable adult (VA). In addition, the SP yelled “all the time” at the VA and had a “quick temper,” resulting in the VA crying and feeling uncomfortable. Date of Incident(s): July 3, 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 (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: 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 July 15, 2022; from documentation at the facility; and through five interviews conducted with the VA, two facility staff persons (the SP and P1), and two administrative staff persons (P2 and P3). The VA enjoyed playing board games, watching movies, and spending time with his/her family. The VA’s diagnoses included anxiety, borderline personality disorder, and major depression. The VA was not subject to guardianship. The VA’s Coordinated Services and Supports Plan stated that the VA was an “excellent advocate” for him/herself. Some of the things that were important to the VA included hearing sincere, positive statements from persons s/he trusted and being treated with respect and not being judged. The VA provided the following information: · The SP got “angry very easy” and had been “aggressive” towards others. The SP yelled at the VA “several” times, for “no reason.” · One day, the SP drove the VA in the SP’s personal vehicle. After the VA told the SP that s/he should not be using his/her personal vehicle, the SP got “angry.” The SP “slammed things” in the car and slammed his/her hand on the dashboard. When the VA asked for the SP to let him/her out of the vehicle, the SP said s/he would drop the VA off in the middle of the interstate. The VA asked the SP to drive him/her home. · One day (July 3, 2022), when the SP and P1 were inside the facility, the VA was outside talking on the phone with his/her family member and the SP began “yelling and screaming.” The VA walked inside and asked the SP what s/he was yelling about and the SP said s/he was not talking to the VA and was talking to P1. The SP “kept going” and said that it was the VA’s fault that s/he was yelling. The VA and P1 each tried to get the SP to stop yelling. The SP continued yelling and “got in [the VA’s] face and pointed.” The VA “broke down” crying and did not feel safe. After the incident, the SP left and P1 stayed at the facility. · After the SP no longer worked at the facility, the VA was “terrified” that the SP would come back to the facility. The VA still thought about what s/he did “wrong” to make the SP angry.
P1 and an Incident Report completed by P1 provided the following information: · On July 3, 2022, at 4 p.m., P1 transported the VA from his/her job to the facility. When they arrived, the VA sat on the porch and P1 went inside where the SP was sitting on the couch. Earlier, the VA told P1 that s/he had been having a “tough” time because of an unrelated incident with another staff person and said that after that incident occurred, the SP was supposed to talk to the other staff person, but the SP did not. · P1 went inside and told the SP why the VA was upset and the SP became “visibly frustrated” and “jumped” up from the couch and with a “raised” voice, pointed outside at the VA and said that the VA had to “earn respect.” The SP continued to talk about respect and was using his/her arms to gesture outside toward the VA. The VA heard and saw the SP through the window and came inside. The VA said that s/he did not want a “screaming match” and the SP pointed at the VA (from five feet away) and said that s/he was not going to talk to the VA. The VA asked the SP to stop pointing at him/her, but the SP did not and then the SP told P1 “this is how [s/he] is, this is what we have to deal with,” and the VA went into the hallway. The SP followed the VA and then the VA came into the kitchen, “bawling [his/her] eyes out” and “politely” asked the SP to stop yelling. The SP repeatedly said s/he was not talking to the VA, raising his/her voice more, continuing to point at the VA, moving closer to him/her. The SP did not allow the VA to talk. The VA went into his/her room. The SP walked outside, paced around, and called P2. The incident lasted 10 to 15 minutes. The way the SP talked to the VA made P1 “uncomfortable.” · The SP asked P1 to work the SP’s shift so s/he could go home. The VA asked P1 if P1 could stay at the facility because s/he did not “feel safe” with the SP. P1 talked to P2 and P3 and said s/he could stay at the facility and the SP left. After the SP left, the VA was “happier,” but was still crying. · Prior to the incident, P1 had other concerns regarding the SP’s interactions with the VA. One day, the SP stayed on his/her personal phone instead of interacting with the VA. Another day, the SP went into the VA’s room and shut the door, so P1 told him/her that was not okay. The SP was sometimes late for his/her shift and sometimes forgot to document medications. P2 and P3 provided the following information: · On the day of the incident, the SP called and talked to P2 and P3. P2 stated that the SP was “talking strongly,” with a raised voice, and said that s/he had been talking to P1 and the VA told him/her to “stop yelling” and to not use that tone of voice in his/her home. The SP also said that the VA wanted him/her to leave. At the same time, P1 texted P2 and told him/her that the SP was yelling at the VA, which caused the VA to cry. P3 continued to talk to the SP on the phone while P2 ended the conversation with the SP and called and spoke with P1. · P1 told P2 that the SP had been walking towards the VA, while talking with his/her voice raised, using body language to “intimidate” both the VA and P1. P1 said the SP made the VA “feel bad” when s/he told P1 that “this is what we have to deal with.” · P3 stated that when s/he talked to the SP, the SP said s/he did not do anything wrong. During the conversation, the SP’s voice was “elevated” and s/he sounded “upset.” P3 tried to “calm down” the SP and then told the SP to leave the facility. · When P2 talked to the VA about the incident, the VA said s/he was “traumatized” by the SP’s actions and was “distraught” for a “couple” days. · The SP had previously received a reprimand for raising his/her voice at the VA during a verbal altercation in a vehicle. The SP provided the following information: · On the day of the incident, when the SP arrived at the facility, P1 and the VA were gone. After about 10 to 15 minutes, P1 came into the facility and the VA stayed outside on the porch, talking on his/her phone. P1 told the SP that the VA was “mad” at the SP and another supervisor, which the SP said was “nothing new.” When P1 tried to explain why the VA was upset, the SP told him/her that s/he did not need to explain and that P1 could go home. The VA came inside and the SP told the VA that s/he was not going to talk to him/her and repeated that five times. As the SP was talking to the VA, the SP had his/her hand stretched out like a “stop sign” towards the VA and then the VA went into his/her room. The VA started to cry and asked the SP to leave. The SP called P2 and told him/her that the VA was mad. The SP also talked to P3 and P3 told the SP to leave the facility, so the SP left. · On another day, the SP went to the VA’s place of employment to pick him/her up. The SP was driving his/her own vehicle and the VA refused to get in and said that the SP was not supposed to transport the VA in his/her vehicle. The SP told the VA that staff persons could not talk to the VA because the VA knew “everything.” The SP was not “frustrated” with the VA and denied slamming his/her hand on the dashboard. · The SP said that s/he had to repeat him/herself to the VA because then the VA would understand him/her. The SP denied raising his/her voice when talking to the VA. The facility’s Maltreatment of Vulnerable Adults Reporting and Internal Review Policy stated that staff persons were to report any suspected abuse or neglect of clients. Facility documentation showed that the SP received training on the VA’s plans, the facility’s policies, and the Reporting of Maltreatment of Vulnerable Adults Act. Relevant Rules and/or Statutes: Minnesota Statutes, section 245D.04, subdivision 3, paragraph (a), clause (6) states that a person’s protection-related rights include the right to be treated with courtesy and respect and have respectful treatment of a person’s property. Conclusion: A. Maltreatment: Consistent information was provided by the VA, the SP, and P1 that on July 3, 2022, the VA cried and was upset after a verbal altercation with the SP. The VA stated that on July 3, 2022, when s/he was outside, the SP was inside with P1 and was “yelling and screaming.” The VA went inside and the SP told the VA that s/he was not talking to the VA and that it was the VA’s fault. The SP continued to yell, got “in” the VA’s face, and pointed towards the VA. The interaction made the VA cry and feel unsafe. After the incident, the VA was “terrified” that the SP could come back to the facility. The VA also stated that on another day, the VA was angry with him/her when the SP drove the VA in the SP’s personal vehicle. P1 stated that on July 3, 2022, the SP was “visibly frustrated” and repeatedly told the VA, with a raised voice, that s/he was not going to talk to him/her, while walking toward the VA and pointing at him/her. As a result of the SP’s actions, the VA cried and went into his/her room. The VA told P1 that s/he did not feel “safe” with the SP. P2 and P3 each stated that at the time of the incident on July 3, 2022, they each talked to the SP and the SP had a “raised voice” and sounded “upset.” P2 stated that the VA was “traumatized” by the SP’s actions. The SP denied raising his/her voice with the VA on July 3, 2022, but said that s/he did repeatedly tell the VA that s/he was not talking to him/her and raised his/her arm up towards the VA in a “stop sign” motion. Although the SP denied raising his/her voice, P1 and the VA each stated that the SP’s voice was raised and that the SP went toward the VA while putting his/her hand up, not allowing the VA to talk. The SP’s conduct was inconsistent with the standards of a professional caregiver in a facility licensed by the Department of Human Services and were also a violation of Minnesota Statutes, section 245D.04, paragraph (a), clause (6). The SP’s actions created an environment where the VA did not feel safe and made the VA cry. Given the above information, there was a preponderance of the evidence that the SP’s actions were not accidental or therapeutic, and reasonably were expected to produce emotional distress, and which was disparaging and threatening. It was determined that emotional 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: 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. Prior to the incident, the SP received training on the Maltreatment of Vulnerable Adults Act and the facility’s policies. 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 emotional abuse for which the SP was responsible did not meet statutory criteria to be determined as recurring or serious. The VA did not require the care of a physician and the SP’s actions demonstrated a pattern of behavior and was considered a single incident. Action Taken by Facility: The facility completed an internal review and determined that their policies and procedures were adequate and followed after the incident and no additional training was necessary. 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. Given that the facility took immediate corrective action, a correction order was not issued for the violation outlined above.
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