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AMENDED 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.” NOTICE: This Amended Maltreatment Investigation Memorandum supersedes a version dated June 29, 2022, which must be destroyed. As a result of an appeal and further administrative reconsideration, the original determination that the staff person (SP) was responsible for neglect of the vulnerable adult (VA) was changed to inconclusive. For additional information, see Administrative Reconsideration section of this document.
License Number and Program Type: 1071339-SUD (Substance Use Disorder) Investigator(s): Carla Harvieux Suspected Maltreatment Reported: It was reported that in early 2020, a staff person (SP) “came on to” a vulnerable adult (VA) and wanted a relationship with him/her when the VA lived at the facility (Facility A). After the VA was discharged from Facility A, the VA and SP lived together for an unknown period of time. In April of 2022, the SP brought the VA to a hospital intensive care unit, transported the VA from the hospital to the SP’s residence where the VA drank a liter of alcohol, and then took the VA to another facility (Facility B) at which the VA resided when this report was received. Date of Incident(s): Ongoing, and prior to April 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 (c); and subdivision 17, paragraph (a): Any sexual contact or penetration between a facility staff person or a person providing services in the facility and a resident, patient, or client of that facility. Sexual contact is defined by Minnesota Statutes, section 609.341, as the intentional touching of the intimate parts with sexual or aggressive intent. 'Intimate parts' includes the primary genital area, groin, inner thigh, buttocks, and breast. 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 for this investigation was obtained remotely, including documentation from Facility A; and through interviews conducted with Facility A staff persons (P1 and P2), a counselor at Facility B (C), and the VA. This investigator communicated with the SP via phone, email, and mail, but the SP was not interviewed. DHS received this report in April of 2022. Facility A’s documentation showed that the SP provided mental health care and other services to the VA when s/he was admitted to Facility A and had regular contact with him/her at the facility in group sessions. The Comprehensive Assessment Summary showed that the VA had a history of near daily substance use and stated upon admission to Facility A, that s/he sometimes used substances until s/he “blacked out.” The VA was admitted to Facility A on January 13, 2020, and was diagnosed with anxiety not otherwise specified, had difficulty sleeping, and had a history of poor impulse control. Having “everyone in [his/her] business” and anxiety were identified as barriers to the VA’s recovery, and s/he did not recognize the issues that substance use caused for him/her. At Facility A, it was recommended that the VA participate in mental health interventions, plan for outpatient programming, use coping strategies, and follow up with mental health care professionals within one month of discharge. Upon discharge from Facility A, it was recommended that the VA correctly use his/her prescribed medication and stay focused on boundaries and saying “no” even when it meant not being “overly” nice. The VA’s Discharge Summary from Facility A showed that the VA was discharged on February 21, 2020, and that s/he needed continued support and that s/he agreed to transition to a lower level of care upon discharge. The VA enjoyed completing arts and crafts projects. Facility documentation, information provided by the VA, P1, P2, and the SP, and the facility’s Internal Review, provided the following information: · The VA said that when the SP was his/her counselor at Facility A, the SP “came onto” the VA in the SP’s office, told the VA that it seemed like they “flirt,” and told the VA that s/he “liked” him/her. The VA was initially unsure of the SP’s intentions but in hindsight thought that the SP should have kept his/her thoughts to him/herself. However, after the VA completed the program at Facility A in 2020, s/he and the SP “kept in touch” online and s/he soon moved into the SP’s residence where they began a sexual relationship that included oral and genital contact. After the SP lost his/her job at Facility A, s/he and the VA moved to another town where the SP might find work, and the VA provided a few details regarding the residence into which s/he and the SP moved. On a date that s/he could not recall, the VA contacted a family member (FM) who picked the VA up from the SP’s residence and brought the VA to live with him/her. · The SP and VA continued to keep in touch online and when the VA needed a ride to Facility B in April of 2022, a friend took the VA halfway to Facility B and the SP met them, then took the VA to his/her residence for a few days. At the SP’s residence, the VA began consuming alcohol and the SP took him/her to an emergency department of a hospital, where the VA was admitted. After the VA was discharged from the hospital, the SP took the VA to Facility B. The VA said that the sexual relationship with the SP began in 2020, and resumed each time the VA resided with the SP. Upon discharge from Facility B, the VA did not resume contact with the SP and thought that it was not in his/her best interest to continue a relationship with the SP. The VA felt anxious when s/he described his/her interactions with the SP, did not want to get the SP “in trouble,” and thought that the SP needed “help” with his/her way of thinking because his/her actions as a counselor were not helpful. · The C said that VA provided consistent information over time to him/her and other employees at Facility B, regarding his/her contacts with the SP. The account of the incidents the VA relayed to the C were similar to information the VA gave to this investigator. · P1, an administrative staff person, was not employed at Facility A when the incident occurred, and said that many of the people who worked with the SP in 2020 were no longer employed by Facility A. P1 provided this investigator a Critical Incident Report (CIR) that was completed on March 17, 2020, regarding the SP’s interactions with the VA. The CIR showed that on March 16, 2020, Facility A learned that the VA might be living with the SP, and asked the SP whether the VA resided at his/her residence. The SP said that s/he gave the VA a book upon his/her completion of the program at Facility A, but had not given books to other patients when they completed the program. According to the SP, the VA asked the SP to be his/her “recovery coach,” but no information provided by the SP showed whether the VA resided with him/her. Documentation at Facility A showed that the SP said that s/he “felt a connection” with the VA and when the VA contacted the SP after the VA completed the program at Facility A, they met for coffee and the SP determined that the VA was stable enough to have an acupressure session with the SP at his/her residence. On March 7, 2020, the SP brought the VA to his/her residence, gave the VA a 45 minute acupressure session, and then “processed” with the VA after the session. · On March 17, 2022, the SP’s employment at Facility A was immediately ended for having a “relationship with a past patient,” and the facility submitted the CIR to DHS, but the incident was not accepted for investigation at that time since it was thought that the SP’s contact with the VA was limited to giving the VA a book and an acupressure session. The facility completed an Internal Review in March of 2020, which determined that its policies and procedures were adequate but not followed by the SP. Information regarding the SP’s interactions with the VA were provided to the regulatory board through which the SP was licensed shortly after the incident occurred in 2020. The SP was reminded that upon his/her employment at Facility A, s/he agreed that s/he would not have any relationships with past patients for two years and also signed a Conflict of Interest form, but the SP maintained that his/her interactions with the VA were “business based” and not personal. · P2 said that s/he was employed as a counselor at Facility A when the SP was and often worked with SP, but did not have firsthand information regarding the SP’s interactions with the VA. However, the SP read tarot cards for the patients and was focused on holistic techniques which might not be consistent with approved practices at Facility A. · The SP did not complete an interview with this investigator. However, the SP wrote in an email, that s/he received this investigator’s request for an interview and denied “any maltreatment to anyone at any time.” Facility A’s Code of Business Conduct and Ethics policy stated that employees at Facility A must maintain objective, non-possessive relationships with clients and actively discourage clients’ dependency upon the employee for the satisfaction of his/her needs except which was clearly essential to the provision of services. In addition, employees were to have no personal, sexual, business, or social relationships with clients or former clients within two years after termination of service, except for transactions that were directly related to provision of services at Facility A. The facility’s personnel and training records showed that staff persons interviewed for this report were trained on the Reporting of Maltreatment of Vulnerable Adults Act prior to the incident. Relevant Statutes: Minnesota Statute, chapter 626.5572, subdivision 21, paragraph (a) states that a “vulnerable adult” means any person 18 years of age or older who is a resident or inpatient of a facility. Minnesota Statute, Chapter 604.20, subdivision 3 states that a “former patient” is a person who was given psychotherapy within two years prior to sexual contact with the psychotherapist. Minnesota Statute, Chapter 604.20, subdivision 5 states that a “psychotherapist” means a physician, psychologist, nurse, chemical dependency counselor, social worker, member of the clergy, marriage and family therapist, mental health service provider, licensed professional counselor, or other person, whether or not licensed by the state, who performs or purports to perform psychotherapy. Conclusion: A. Maltreatment: P1 and P2 did not have firsthand information regarding the incidents investigated in this report, but P1 said that in early 2020, Facility A became aware of the concerns regarding the SP’s interactions with the VA. The concerns were investigated, and Facility A documentation showed that the SP admitted that s/he gave the VA a book when the VA completed the program at the facility and kept in touch with the VA online. According to the SP, the VA asked him/her to be a “recovery coach” and s/he met the VA for coffee, then gave the VA an acupressure session at the SP’s residence. No information provided to this investigator showed whether the SP confirmed or denied that the VA lived with him/her and the SP said that his/her relationship with the VA was business based, not personal. The day after Facility A learned of the SP’s actions, the SP’s employment at the facility was ended, the facility submitted a CIR to DHS, and notified the board by which the SP was licensed, of the SP’s actions. The VA stated that at Facility A, the SP “came onto” the VA, told the VA that s/he “liked” him/her, and told the VA that it seemed like the SP and VA “flirt.” The VA provided consistent information to the C and to this investigator, that after leaving Facility A, s/he had an intermittent sexual relationship with the SP and resided with the SP for unspecified periods of time that the VA could not recall, between March of 2020 and April of 2022. Each time the VA lived with the SP, their sexual relationship resumed. The SP did not complete an interview with this investigator, but wrote in an email that s/he denied “any maltreatment to anyone at any time.” Regarding sexual abuse: Although the VA said that s/he had an intermittent sexual relationship with the SP that began in 2020, which was against the facility’s policies and procedures and a violation of Minnesota Statute, Chapter 604.20, subdivision 3, given that the sexual aspect of relationship between the VA and SP likely began after the VA was discharged from Facility A when the SP was not responsible for providing care and services to the VA, there was not a preponderance of the evidence whether any sexual contact occurred while the VA received services. It was not determined whether sexual abuse occurred (any sexual contact or penetration between a facility staff person or a person providing services in the facility and a resident, patient, or client of that facility. Sexual contact is defined by Minnesota Statutes, section 609.341, as the intentional touching of the intimate parts with sexual or aggressive intent. 'Intimate parts' includes the primary genital area, groin, inner thigh, buttocks, and breast). Regarding neglect: Given the VA’s history of chemical dependency, it was reasonable that the VA would continue to need supports to develop and maintain the necessary life and social skills to maintain sobriety. The SP’s interactions with the VA hindered the VA’s ability to have a consistent understanding of the parameters of a therapeutic relationship which could interfere with other individuals’ attempts to provide therapeutic services to the VA, both now and in the future. Therefore, there was a preponderance of the evidence that the SP failed to maintain professional boundaries and that the SP’s interactions with the VA were detrimental to the VA’s ongoing mental health. It was determined that neglect 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. The SP was trained on Facility A’s Code of Business Conduct and Ethics policy and the Reporting of Maltreatment of Vulnerable Adults Act. The SP provided mental health care services to the VA when the VA resided at Facility A. Therefore, 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 neglect for which the SP was responsible did not meet statutory criteria to be determined as serious or recurring because the SP’s pattern of behavior constituted a single incident of maltreatment and did not result in injury. D. Person Regulated by Health-Related Licensing Boards Pursuant to Minnesota Statutes, section 245C.31, subdivision 1, when individuals regulated by a health-related licensing board are determined to be responsible for substantiated maltreatment under Minnesota Statutes, section 626.556 or 626.557, instead of the Commissioner of the Department of Human Services making a decision regarding disqualification, the licensing board makes a determination whether to impose disciplinary or corrective action under Minnesota Statutes, chapter 214. Action Taken by Facility: The facility completed an Internal Review which determined that its policies and procedures were adequate, but were not followed. Facility A immediately ended the SP’s employment when learning of the concerns regarding his/her actions, and staff persons were retrained on the facility’s policies and procedures. Action Taken by Department of Human Services, Office of Inspector General: The SP was regulated by a health related licensing board. The health related licensing board was notified upon issuance of the investigation memorandum that the SP was determined to be responsible for maltreatment. The SP was notified that any further substantiated act of maltreatment, whether or not the act met the criteria for “serious,” would automatically meet the criteria for “recurring” and would result in the disqualification of the SP, if the background study is related to child foster care, adult foster care, or family child care licensure. Administrative Reconsideration: The disposition of the investigation is amended from substantiated as to neglect of the VA by the SP to inconclusive as to neglect of the VA by the SP. To the extent that the language in the Administrative Reconsideration conflicts with the language in the remaining part of the Amended Investigative Memorandum, the language in the Administrative Reconsideration controls. The disposition was amended based on the following: Amended Summary of Findings: P2 said that s/he was employed as a counselor at Facility A when the SP was and often worked with SP, but did not have firsthand information regarding the SP’s interactions with the VA. P2 was aware that the SP read tarot cards for patients and was focused on holistic techniques which might not be consistent with approved facility practices but was not aware the SP had done things that were “inappropriate.” Amended Conclusion: Regarding neglect: Although the VA indicated the SP “came on to” him/her, said s/he liked him/her and told the VA that it seemed like the SP and VA “flirt” prior to the VA’s discharge from Facility A, there was no corroborating information to support those statements. The VA said s/he had an intermittent sexual relationship with the SP, but information obtained during the investigation indicated it was likely that relationship began after the VA was discharged from the facility when the SP was not responsible for providing care and services to the VA. The SP acknowledged a relationship with the VA after the VA’s discharge from Facility A, including giving the VA a book when s/he completed the program, having online contact, meeting for coffee, and performing an acupressure session on the VA at the SP’s residence. However, the SP was no longer a caregiver for the VA when those acts occurred. As a result, the record as a whole does not indicate there is a preponderance of the evidence whether the SP was responsible for neglect. It was not determined whether 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. ) Amended Action Taken by Department of Human Services, Office of Inspector General: The disposition was changed to inconclusive. The SP was notified of the amended disposition.
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