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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: 1089816-SUD (Substance Use Disorder) Investigator(s): Lindsay Arth Suspected Maltreatment Reported: It was reported that a staff person (SP) “backhanded” a vulnerable adult (VA) across the face. Date of Incident(s): July 19, 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 8, 2022; from documentation at the facility; and through three interviews conducted with a facility supervisory staff person (P1) and two staff persons (the SP and P2). Attempts were made via phone, email, and U.S. mail to contact and interview the VA but the attempts were not successful. The facility was a residential treatment facility and was located on a lakefront property. The facility had a main building that had staff offices, client bedrooms, and a cafeteria. Additionally, there was a separate house next to the main building called the “lake house” that housed six clients. This was where the VA resided. There were no cameras at the “lake house.” The VA’s Discharge Summary showed that the VA was admitted to the facility on June 24, 2022. The VA was diagnosed with moderate alcohol use disorder, severe opioid use disorder, and moderate sedative use disorder. The VA’s “strengths” included that s/he was loyal, kind, resilient, driven, and smart. On July 13, 2022, the VA “reported” having “memory issues” but there was no additional information regarding this. On July 15, 2022, the VA tested positive for methadone and tetrahydrocannabinol (THC). The VA discharged from the facility on July 27, 2022, as the VA completed the program. The VA’s Individual Abuse Prevention Plan said that the VA was not susceptible to physical abuse from others. P1, P2, the Critical Incident Report written by P1, and the [Name of SP] Employee Time Line provided the following information: · On the morning of July 26, 2022, P2 was talking to the VA and a facility client (C). During that conversation, the C told P2 that the VA told him/her that the SP “hit” or “struck” the VA in the face “early one morning.” P2 was “shocked” but initially thought that the C was joking. However, the VA was also present and “confirmed that this indeed happened.” The VA told P2 that on July 19, 2022, at some point in the “morning,” the VA was outside the “lake house” when the SP “walked by.” The SP then “backhanded” or “struck” the VA across the left side of his/her face, on the VA’s cheek. The VA said that the SP did not say anything during or after the incident and did not apologize. The VA initially thought the SP was “joking” as the incident was “unexpected.” P2 then emailed P1 about the incident. · P1 then spoke to the VA about the incident and the VA said that it was “true.” The VA said that s/he did not tell any staff persons about the incident because the VA was “scared of repercussions.” However, the VA did not provide further information about this. P1 and P2 were not aware of any injuries to the VA, including “redness” or “bruising.” However, the VA told P2 that the “hit” was “hard enough for it to sting.” The VA said that there were no witnesses to the incident. · The VA had a journal that s/he wrote in daily. The VA wrote in his/her journal about the incident, which the VA read aloud to P1. P1 did not get a copy of the journal entry. The journal entry stated that at 6:45 a.m. “yesterday,” the SP, who was an “employee,” “backhanded me.” The VA noted that s/he “did not know why” the SP did that to him/her and that “maybe [the VA] did something” to offend the SP. However, the VA noted that the “more [s/he] thinks of it,” that was “not true” and the VA was “really confused why it happened.” · P1 and P2 did not have any reason not to believe what the VA said about the incident. P1 “did not believe” that the VA would “lie” about the incident. Additionally, the VA never said anything similar. The VA had been a client at the facility prior and P1 got to know the VA “quite well.” P1 and P2 described the VA as “quiet,” “smart,” “laid back,” and “reserved.” P1 and P2 had “never” seen the VA “escalated” and did think that the VA did anything to provoke the SP. P1 was not aware of the VA or the SP knowing each other prior to the VA being a client at the facility. · According to P1 and P2, when the SP was first hired, the SP was “pleasant” and a “good fit.” However, as “time went on,” P1 “started to see another side.” This included that when P1 did not respond to the SP “quickly enough,” the SP told other staff persons that P1 was “ignoring” him/her and “not being a good manager.” Additionally, P1 said that the SP had a “really bad attitude whenever [staff tried] to show [the SP] things.” The SP also “complain[ed]” about P2, who the SP typically worked with, and said that s/he wanted to work by him/herself. P2 expressed some concerns with the SP’s “demeanor,” including regarding the SP’s “defense mechanisms.” The SP would “get defensive” and “upset” when a client thought that the SP was also a client at the facility. P2 also said that the SP would get “very upset” when clients “followed” staff persons of the opposite gender around. P2 had never seen the SP touch a client, including hitting them. The SP provided the following information: · The SP denied hitting any client, including the VA, or “touch[ing] their face.” The SP did not know why someone said that s/he hit the VA. However, since the VA was in “recovery,” it might have been a “dream” which “seemed like it happened.” · The VA knew the SP’s first name but not his/her last name. There were no other staff persons with the SP’s first name but there was another client with his/her first name. (Note: P1 and another supervisory staff person, P3, each said that there was no other client at the facility with the SP’s first name at the time of the incident.) However, the SP was not aware of any issues between the VA and that client. · The SP described him/herself as “mellow” in his/her verbal interactions but “stern” if needed. The SP was not “aggressive.” The SP described his/her relationship with the VA as “not too friendly” but “helpful.” The SP knew his/her “boundaries” and said that s/he would “never” lay his/her “hands” on a client. It would “never” be appropriate to hit a client and the SP said it would be similar to hitting a “little kid.” However, the SP may shake a client’s hand if the client “extended” their hand. The SP described the VA as “friendly,” “easy going,” “calm,” “not belligerent,” and a “good kid.” The VA was “pretty truthful” and the VA and the SP had “no issues.”
· The SP “really liked” working at the facility and there were no other similar concerns with the SP. The Vulnerable Adult Reporting Policy said that all clients had the right to receive services in an environment that was free of all forms of abuse, including physical abuse. Facility documentation showed that P1, P2, and the SP were trained on facility policies including de-escalation, boundaries, and the Reporting of Maltreatment of Vulnerable Adults Act prior to the incident. Relevant Statutes: Minnesota Statutes, section 245D.04, subdivision 3, paragraph (a), clause (6), states that a person’s service related rights include the right to be treated with courtesy and respect. Conclusion: A. Maltreatment: The VA provided consistent information to P1, P2, and the C that on the morning of July 19, 2022, the SP either “hit,” “slap[ped],” “struck,” or “backhanded” the VA in the face. The VA also documented this in his/her journal, which the VA read aloud to P1. P1 was not aware of any injuries to the VA. However, the VA told P2 that the “hit” was “hard enough for it to sting.” The VA said that the SP did not say anything during the incident and that it was “unexpected.” The VA told P1 that s/he did not tell any staff persons because the VA was “scared of repercussions.” The SP denied hitting any client, including the VA, or “touch[ing] their face.” Although there were no witnesses to the incident, P1 and P2 did not have any reason not to believe what the VA told them about the incident. The SP also had reason to minimize his/her interactions with the VA for fear of repercussions, and there was no information provided that the VA had reason to provide inaccurate information. Additionally, the VA was described as “smart” and “pretty truthful.” Although the SP described him/herself as “mellow” and not “aggressive,” P1 and P2 described the SP as getting “defensive” and “upset,” including if the clients thought the SP was also a client. Therefore, the VA’s version of events was considered more credible. The SP’s action of hitting/slapping/”backhanding” the VA on the face was 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). Although there was no information that the VA sustained an injury, “slapping/backhanding/hitting” a person on the face is not accidental or therapeutic conduct and could reasonably be expected to cause pain. Therefore, there was a preponderance of evidence that the SP’s conduct of slapping/hitting/backhanding the VA on the face could reasonably be expected to cause pain or 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 facility policies including de-escalation, boundaries, and the Reporting of Maltreatment of Vulnerable Adults Act prior to the incident. The SP was responsible for maltreatment of the VA. C. Serious Maltreatment: The Office of Inspector General is required to evaluate whether substantiated maltreatment by a facility meets the statutory criteria to be determined as “serious.” 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. The physical abuse for which the SP was responsible for did not meet the definition of “recurring” or “serious” because it was a single incident and there was no information provided that the VA sustained an injury. Action Taken by Facility: The facility completed an internal review and determined that policies and procedures were adequate and followed once the facility became aware of the incident. There were no similar prior incidents. 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 corrective action, a correction order was not issued for the violation outlined above.
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