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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): Kimberly Anderson/Anna Parkin Suspected Maltreatment Reported: It was reported that a staff person (SP) pushed a vulnerable adult (VA) backwards which resulted in the VA hitting his/her head. Date of Incident(s): July 14, 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 for this investigation was obtained remotely, including video surveillance and documentation from the facility, law enforcement information, and medical records; and through four interviews conducted with a supervisory staff person (P), a facility staff person (SP), the VA, and the VA’s guardian (G). The VA was diagnosed with anxiety and epilepsy. The VA received 24 hours of individualized home services (IHS) per day. According to the VA’s Behavior Support Plan, staff persons taught and reinforced “an alternative set of appropriate behaviors.” Staff persons also responded to the VA’s targeted behaviors to reduce or minimize the intensity and duration of his/her episodes, which included modeling and teaching emotional regulation through using coping skills. If the VA had an “interfering behavior,” staff persons provided a verbal or visual cue for a coping strategy and minimized their actions to the VA’s behaviors by using activity redirection. According to the VA’s Coordinated Service and Support Plan (CSSP) Addendum, staff persons administered the VA’s medications. The VA required staff persons assistance with attending medical appointments because of the VA’s inability to accurately report his/her conditions. The VA had a history of falsely reporting medical concerns and followed through with medical appointments even though the cause of the appointment was fabricated. According to the VA’s Individual Abuse Prevention Plan (IAPP), the VA was susceptible to physical abuse. The VA had a history of becoming physically aggressive towards staff persons. The VA may not have been able to associate his/her actions with risks or consequences for other persons. If the VA was upset, staff persons calmly spoke to the VA and got him/her to verbalize what s/he was upset about and discussed appropriate interactions and how they may be perceived by other persons. If staff persons saw the VA was physically abused, they were to stop the abuse and report it to the internal and external teams. Staff persons were also aware of calming techniques for the VA, such as smoking or listening to music and were trained on de-escalation techniques. The VA stated on the date of the incident, at approximately 7:30 p.m., s/he asked if s/he could take his/her 8 p.m. medication. The VA was allowed to take his/her medications between 7 and 9 p.m. The SP responded that s/he could get it in an hour or “nothing at all.” The VA continued to ask for his/her medication and “touched” the SP’s shoulder. The SP became “mad” and hit the VA on his/her shoulder and pushed the VA. The VA fell and his/her head hit a black filing cabinet and then the floor. The SP then told the VA that the P would come to the facility and the VA called 9-1-1. The VA sustained a concussion and a large bruise on his/her stomach. Video surveillance from the facility showed the following 15 minute interaction between the SP and the VA: · The VA out of his/her bedroom and into the living area where the SP was sitting on a chair at a table. The VA sat down on a couch and asked what time it was. The SP said it was 7:30 and the VA asked, “Can I get my meds please?” The SP responded, “Yeah, at 8.” The VA then asked why s/he could not have them now and the SP told her because it was 7:30. The VA told the SP that s/he was allowed to take his/her medications an hour before and an hour after their scheduled time. The SP said, “Exactly, it is 7:30,” and that the VA could take his/her medications at 7 or 9 and that the VA “could not get them at 7:30.” When the VA yelled, “Yes I can,” the SP said, “I am giving you your meds at 8 o’clock so.” The VA said, “Oh my fucking god, I am allowed them right now.” The SP then stood up and yelled at the VA, “Lower your voice, is about what you’re gonna do. I don’t know what you are mad about.” The VA yelled, “Because you won’t give me my fucking meds.” The VA and the SP continued to yell at one another as the SP sat back down in the chair. Shortly after, the VA stood up from the couch and said, “I’m done,” and walked away towards the back of a hallway away from the living area and the SP. The SP stood and followed the VA towards the VA’s bedroom as they continued to yell at each other. During this time, the SP used his/her cell phone to call the P for assistance and the VA went to his/her bedroom and closed the door. The SP paced in the hallway and continued talking on the phone to the P when the VA came back out of his/her bedroom. The VA continued to yell that s/he was upset because the SP would not administer the VA his/her medications. When the SP told the P that the VA wanted his/her medications but that it was 7:30, the P told the SP that the VA could take his/her medications at 7:30. · While the SP was still on the phone with the P, the VA came toward the SP and stood in front of the SP and the VA raised his/her right hand in the air. The SP yelled at the VA and pointed his/her finger at the SP. The SP told the VA, “hit me if you want to,” and then twice told the P, “If [s/he] hits me I am smacking [him/her].” The SP then argued with the P and the VA about defending him/herself as the VA put his/her hand down and backed away from the SP while saying, “You can’t hit me,” and the SP replied, “Yes I can.” The SP then told the VA s/he would “smack the fuck out of you” as they continued to argue. At one point, the P told the SP to calm down, and the SP said, “I’m calm.” The VA then walked near the SP and the SP yelled, “Get out of [my] face.” · The VA stepped toward the VA, lifted his/her left hand, and slapped the SP on his/her right upper arm. The SP then ran towards the VA put both of his/her hands on the VA’s torso and push the VA who fell backwards onto the floor. The VA fell behind the couch which was partially out of the view of the camera but it appeared as though the VA fell into a pile of items, knocking a box over, and then onto the floor. The VA stood and the SP and the VA continued to yell at one another on and off for approximately ten minutes. · During this time, law enforcement was called and the VA broke the SP’s computer. The incident ends after the SP walks out the front door saying s/he was going to his/her personal vehicle. The video ended with the VA alone in the facility. The SP provided the following information: · On the day of the incident, at approximately 7:35 p.m., the VA asked for his/her 8 p.m. medication. The SP told the VA s/he would get his/her medications at 8 p.m. and the VA became “upset” and yelled. The SP said that s/he “did not yell or anything” but the VA “instantly got upset.” The SP called the P who told the SP that the VA was allowed to take his/her medication one hour before or after the prescribed time. The SP said that s/he tried to talk to the VA in a calm voice but the VA raised his/her voice at the SP and cornered the SP in the kitchen. · While still on the phone with the P, the VA yelled in the SP’s face. The P told the SP “not to egg [the VA] on.” When the VA “smacked” the SP, the SP placed one of his/her hands on the VA’s collarbone area and pushed the VA away. The VA fell on the floor and then stood back up. The SP then called law enforcement. The SP said there was a cupboard near where the VA fell but denied that the VA hit anything. · The SP said that s/he knew the VA could take his/her medication one hour before or after the scheduled time but did not think the VA could take them at 7:30. The P provided the following information: · At approximately 7:30 p.m., the SP called about the VA’s 8 p.m. medications and the P told the SP to give the VA his/her medications. The SP was not calm and had an “angry tone” so the P told the SP to “calm down.” The SP responded that s/he was calm and that the P needed to get to the facility as soon as possible because the VA was coming after the SP and threatening the SP. At one point, the SP said the VA was coming towards the SP with an arm raised and had the SP cornered in the kitchen. The SP told the VA to “come hit” the SP and the P continued to tell the SP to calm but the SP did not. The SP then told the P that the VA hit the SP so the SP “pushed” the VA. The SP then hung up the phone. · At approximately 7:50 p.m., the P arrived at the facility. Law enforcement was already at the facility and the P went with the VA to the emergency room. At the emergency room, the VA told the doctor s/he hit his/her head and that it hurt. At approximately 11:30 p.m., when the P drove the VA back to the facility, the VA told the P that the doctor said the VA had a concussion. According to law enforcement information, the VA told a law enforcement officer (LEO) that the SP “hit” the VA which made the VA “fall and hit [his/her] head.” The VA was not bleeding but said s/he felt light headed and had blurred vision. The LEO did not see any blood, bumps, or bruises on the VA’s head. According to information provided by a staff person who worked at the emergency room that the VA went to, the VA said a staff person “shoved” the VA, who then fell and hit his/her head on the floor and a filing cabinet. The VA also said s/he had an abrasion on his/her right chest, which was an abscess that was then drained. According to the VA’s After Visit Summary, the VA was diagnosed with a closed head injury. The VA was prescribed acetaminophen by mouth every six hours as needed for pain. The G stated that after the incident, the VA felt “victimized” and his/her behaviors escalated. The VA had a history of “overusing” the emergency room, was “notorious for alleging assault,” and “embellished” incidents for attention. According to the facility’s Policy and Procedure on Safe Medication Assistance and Administration, medications may have been administered within 60 minutes before or after the prescribed time. The facility’s personnel files and training records documented that staff persons interviewed for this investigation, including the SP, were each trained on the VA’s plans, the facility’s Policy and Procedure on Safe Medication Assistance and Administration, and the Reporting of Maltreatment of Vulnerable Adults Act prior to the incident. Relevant Rules and/or Statutes: Minnesota Statutes, section 245D.04, subdivision 3, paragraph (a), clause (6), stated that a client’s protection-related right included being treated with courtesy and respect. Conclusion: A. Maltreatment: Consistent information was provided by the VA, the SP, the P, and video that on July 14, 2022, at approximately 7:30 p.m., the VA asked the SP for his/her medication. When the SP told the VA that s/he could not have his/her medication the VA became angry. The SP and the VA each escalated and were yelling at each other. The SP called the P who told the SP to give the VA his/her medications. The P said that during that time, the SP was not calm and had an “angry tone” so the P told the SP multiple times to calm down. Although the SP said that s/he “did not yell or anything” and tried to talk to the VA in a calm voice, video surveillance showed that when the VA initially became upset, the SP stood and yelled at the VA saying, “Lower your voice, is about what you’re gonna do. I don’t know what you are mad about.” The SP did not follow the VA’s plans by modeling emotional regulations or make attempts to redirect the VA. The SP further escalated the VA by following the VA, continuing to yell at the VA, and encouraging the VA to hit the SP and telling the VA that if s/he did hit the SP, the SP would “smack” and “smack the fuck out of [the VA].” At one point the VA slapped the SP’s upper right arm and the SP used both hands to push the VA backwards which resulted in the VA falling into a pile of items and then onto the floor. The VA provided information that s/he hit his/her head on the filing cabinet and went to the emergency room and was diagnosed with a closed head injury. However, the filing cabinet was not in the area the VA fell and based on the video it was not able to be determined whether the VA hit his/her head. The SP’s interactions with the VA and comments made to the VA at the time of the incident escalated the VA; were not accidental or therapeutic conduct; were inconsistent with the standards of a professional caregiver in a facility licensed by the Department of Human Services; and a violation of Minnesota Statutes, section 245D.04, subdivision 3, paragraph (a), clause (6). Therefore, there was a preponderance of the evidence that the SP’s actions could reasonably be expected to produce physical pain, injury, or emotional distress. 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. The SP was trained on the Reporting of Maltreatment of Vulnerable Adults Act and the VA’s plans. 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 for which the SP was responsible did not meet statutory criteria to be determined as recurring or serious. It was a single incident and although the VA said s/he sustained a bruise, there was no other information provided that the VA sustained a serious injury as defined above. Action Taken by Facility: The facility completed an internal review and determined that policies and procedures were adequate but 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. Given that the facility took immediate action, a correction order was not issued for the violation outlined above.
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