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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: 1111171-H_CRS (Home and Community-Based Services-Community Residential Setting) Investigator(s): Danielle Morrison Suspected Maltreatment Reported: It was reported that a vulnerable adult (VA) and a staff person (SP) were at the YMCA when the VA approached an eleven year old community member (C) and rubbed the C’s belly and chest. Date of Incident(s): August 2, 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 16, 2022; from documentation at the facility, law enforcement records; and through seven interviews conducted with two supervisory staff persons (P1 and P2), one facility staff person (SP), the vulnerable adult (VA), the VA’s case manager (CM), the VA’s guardian (G), and a law enforcement officer (LEO). The VA’s diagnoses included a developmental disability, pedophilia, and depression. The YMCA had exercise bikes and elliptical machines in a big room with chairs lined up on one wall. Just off of the big room was an area with mats, medicine balls, and treadmills. The VA’s Individual Abuse Prevention Plan (IAPP) stated that the VA must be visually supervised at all times. In regards to the VA being in the community, the VA’s Coordinated Services Support Plan Addendum (CSSPA) said “[the VA] is to remain within staff sight at all times.” P1, P2, the LEO, Law Enforcement Records, and the facility’s Incident Report provided the following information: On August 2, 2022, the VA and the SP went to the YMCA. The SP sat in the chairs along the wall while the VA rode on an exercise bike. The VA rode the bike for approximately two minutes and then s/he switched to another bike. The SP was still able to see the VA from his/her position on the chairs. The VA then got up and approached the C to ask about his/her shoes. The C went to the area with the mats to stretch, the VA followed, and knelt beside the C. The SP was able to see the VA when s/he went to the area with the mats, but his/her vision was obscured by a pillar. After a “couple of minutes” the SP got up from the chairs and found the VA and the C on one of the mats. The SP did not initially see the C, but when s/he approached the VA, the VA was rubbing the C’s chest and one of the C’s shoes was off. The SP told the VA it was time to go, but the VA refused so the SP called P2 and explained what just happened. P2 spoke with the VA and told him/her it was time to go. The LEO stated there were no cameras in the YMCA, so how the C got into position with the VA was not witnessed, but according to the Law Enforcement Records for approximately two minutes the SP did not see the VA. The G and CM provided the following information: · The G and the CM were aware of the incident. The G stated that the VA was supposed to be within “eye shot, ear shot.” The CM stated the staff were supposed to have “eyes on” and be within “arm’s length” when in public. · The G said the VA could sometimes accurately report, but too many times s/he exaggerated. The CM stated the VA was an unreliable reporter. · The G said the SP “did not do what [s/he] was supposed to do.” The VA provided the following information: · The SP was sitting “far” from the bikes waiting for the VA to be done working out. · The VA asked the C to lay down and take off his/her shoes and socks. · The VA touched the C’s chest under the C’s shirt. · When the SP saw the VA, s/he told the VA they were going. The SP called P2 who then spoke with the VA. The SP provided the following information: · The VA was riding a stationary bike and the SP was sitting in chairs along the wall so that s/he saw the layout of the gym. The VA moved to a different bike. The VA got up again and went to an area where the SP still saw him/her on the ground, but the SP’s vision was “blocked” due to a pillar. The SP thought the VA was doing push-ups. · The SP saw people staring towards where the VA was, so the SP approached and saw the VA laying over the C. The C’s shirt was down and the VA was rubbing the C’s chest. The C had one shoe off, but both socks were on. · The VA “never” had any issues in public before. · The SP stated that while s/he was sitting in the chairs, s/he received a text message from a family member and responded to that “really quick.” The SP was trained on the VA’s plan and the Reporting of Maltreatment of Vulnerable Adults. The VA was issued a citation for a misdemeanor 609.72.1 (3) for Disorderly Conduct. Conclusion: A. Maltreatment: On August 2, 2022, the VA and the SP were at the YMCA. The VA was riding an exercise bike when s/he got off and approached the C. The VA knelt over the C and was rubbing the VA’s chest. The C also had a shoe off. The SP stated that at one point his/her vision of the VA was “blocked” by a pillar and at one point, the SP was on his/her phone responding to a text “really quick.” The VA had a history of pedophilia and as a result, the VA’s IAPP and CSSPA stated that the VA was to be supervised, or within sight at all times. On the date of the incident, the SP stated that his/her supervision of the VA lapsed when his/her vision was “blocked” by a pillar and also likely when his/her attention was directed at his/her phone. During that time, the VA engaged in physical contact with the C which resulted in the VA being cited for disorderly conduct. Therefore, there was a preponderance of the evidence that there was a failure to provide adequate supervision for the VA to maintain his/her physical and mental health and safety. 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 VA’s plans of care and was therefore, 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 neglect for which the SP was responsible did not meet statutory criteria to be determined as recurring or serious as it was a single event and did not result in a criminal sexual conduct against the C. Action Taken by Facility: The facility completed an Internal Review and found their policies adequate. The SP was retrained on the VA’s plans. The facility also added this incident to the VA’s plans for future trainings. 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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