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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 administrative reconsideration, the original determination that the SP was responsible for neglect of the VA was changed to inconclusive. For additional information, see Administrative Reconsideration section of this document.
License Number and Program Type: 1072385-H_CRS (Home and Community-Based Services-Community Residential Setting) 1072381-HCBS (Home and Community-Based Services) Investigator(s): Beth Virden Suspected Maltreatment Reported: It was reported that a staff person (SP) kissed a vulnerable adult (VA) more than once; came “very close to having sex” with the VA; and consumed alcohol and marijuana while providing services to the VA. The SP then abruptly ended his/her contact with the VA, and shortly thereafter, the VA engaged in self-harming behaviors. Date of Incident(s): Ongoing between May 2021 and January 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 was obtained during a site visit conducted on May 18, 2022; from documentation at the facility; and through interviews conducted with the VA, facility staff persons (P1 and P2), and a supervisory staff person (P3). Attempts were made by telephone and mail to interview another staff person (SP); however, the SP did not respond by the completion of this report. The VA’s care plans stated the following: · The VA’s diagnoses included major depressive disorder and generalized anxiety disorder. · The VA had a history of substance use disorders, including alcohol and “illegal drugs.” At the time of this investigation, the VA had been sober for four years. · The VA had a history of suicidal ideations. · The VA was not subject to guardianship. The facility provided a variety of services, including residential and customized living supports; and employed staff persons to provide these services. P3 provided the following information: · In October 2020, the VA moved into a community residential setting (single-family home), which was owned and operated by the facility. The facility provided at least one staff person 24 hours a day for the care and supervision of the VA and his/her housemates. The SP was one of the staff persons employed to work at the VA’s residence. · On May 2, 2021, the facility transferred the SP to a different residence, which was owned and operated by the same license holder. This move was initiated for staffing reasons, and not related to this investigation. · On December 31, 2021, the SP ended his/her employment with the facility. · On April 6, 2022, the VA moved into his/her own apartment, which was also owned and operated by the license holder. The facility provided staff who worked with the VA during certain hours of the day and provided supports as needed. As part of the VA’s transition to his/her apartment, P3 met with the VA once per week. · During one of these meetings, the VA shared the following with P3: o “A few weeks after” May 2, 2021, the VA was invited to a friend’s wedding. At that time, the VA was concerned about going alone because there would be alcohol present and the VA wanted to remain sober. The VA asked the facility if a staff person could go with him/her. However, the VA preferred the staff person be a different gender than the VA. The VA believed that having a staff person of a different gender would reduce the number of questions by others at the wedding and the VA would not have to tell anyone that s/he “had staff.” The VA asked if the SP could go. (Note: P3 recalled this incident, and said that after discussion with administrative staff persons, it was decided that the SP could go with the VA to the wedding; however, the SP needed to be “on the clock.” The SP was paid to go as the VA’s “staff.” The SP used the company van, picked the VA up, and drove to the wedding.) o The VA said that once they were at the wedding, the SP pretended to be the VA’s significant other and kissed the VA on his/her lips more than once. The SP also drank “a lot” of alcohol at the wedding, and when it was time to go home, the SP was “too drunk to drive.” The VA then drove the company van with the SP in the passenger seat. The VA stopped along the way, at the request of the SP, so that the SP could buy marijuana. The VA then dropped the SP off at his/her house and drove the company van back to the facility without incident. (Note: The VA did not have a valid driver’s license.) o Then, on January 29, 2022, the VA planned to spend the evening at the SP’s house, and told P1 as much. (Note: This investigator asked P1 about this. P1 said that s/he heard staff talking about the VA going to the SP’s house, but s/he did not hear this directly from the VA. P1 knew of the SP, but had never met him/her.) o The VA said that while en route to the SP’s house, s/he stopped at a liquor store and purchased alcohol for the SP, and also bought him/herself a non-alcoholic beverage. o Once at the SP’s house, the SP “drank a lot” and smoked marijuana. The SP and the VA also “messed around,” which included kissing and the SP touching the VA’s “private parts.” The SP repeatedly told the VA, “I really want to fuck you.” According to the VA, they came “very close to having sex,” but did not. The VA then left later that evening with a plan to meetup with the SP the next morning for breakfast. o The next morning, the VA texted the SP, who said that s/he would be ready to go out for breakfast in 30 minutes. When the VA texted 30 minutes later, the SP said that s/he was no longer going. Shortly after this, the SP blocked the VA’s phone number, which prevented the VA from calling or texting the SP’s phone number. o The VA believed that P1 told P2 about the VA going to the SP’s house. (Note: P1 had been working when the VA left to go to the SP’s house, and P2 started working shortly thereafter in relief of P1.) According to the VA, the SP got several text messages during the time s/he was at the SP’s house. The VA believed that these text messages were from P2, and that the following morning, P2 was able to get through to the SP and stop him/her from having breakfast with the VA. (Note: This investigator asked P2 about this. P2 said that s/he was not aware of the VA having relations or romantic interests with any staff.) · P3 said that on January 30, 2022, the day after the SP ended his/her contact with the VA, the VA engaged in self-harming behaviors, including making several superficial cuts on his/her left forearm. At that time, the VA told staff that the reason for his/her self-harming behaviors was that “a good friend … cut contact off with [him/her].” P3 said that at that time, staff did not know the VA was referring to the SP. The VA did not require medical attention for this incident. · P3 said that the VA was a reliable reporter of information; however, s/he did not like to get others in trouble, and so the VA might downplay the SP’s conduct. · P3 said that staff received training on boundaries, and that the SP received this same training. · P3 was not aware of previous concerns with the SP’s conduct. The SP provided the following information: · The facility asked the SP to go to the wedding with the VA. The SP was paid to go as the VA’s “staff.” The SP said that s/he was there to support the VA’s sobriety at the wedding. · The SP did not kiss the VA or pretend to be the VA’s significant other. Instead, the VA tried to “get too close” to the SP and tell others they were dating, but the SP told him/her, “Don’t tell people that.” · The SP did not drink alcohol and was never “too drunk to drive.” The SP drove the company van to the wedding and back to the facility without incident. · The SP did not purchase or possess marijuana while providing services to the VA. · The SP did not have sexual or inappropriate physical contact with the VA. · The SP believed the allegations were made because s/he had previously told the VA to stop contacting him/her. The SP “blocked” the VA’s phone number and social media accounts. The SP told the VA, “I’m your worker. I’m not your friend.” The VA told this investigator that s/he did not believe s/he was “vulnerable” or in harm’s way by spending time with the SP. The VA said that when the SP worked at the VA’s residence, they did not have any inappropriate contact. Instead, the contact, which the VA declined to provide specifics about, occurred after the SP was transferred to a different residence. The VA did not want the SP to get into trouble and did not believe the SP did anything wrong. The VA said that any contact they had was consensual. The facility’s policies and procedures included the following: · It is not permissible for employees … to be on duty … or accompanying a person served into the community when under the influence of alcohol or illegal drugs or impaired by any chemicals or prescription/legal drugs. · Persons served are prohibited from driving the company or staff person’s vehicle at any time. · Employees must act professionally when working with clients … Employees are expected to be respectful and must maintain appropriate and professional boundaries. Facility documentation stated that the SP and P1-P3 received training on the VA’s care plans; the facility’s policies and procedures; and the Reporting of Maltreatment of Vulnerable Adults Act. Conclusion: A. Maltreatment: It was reported that the SP kissed the VA, consumed alcohol, and purchased marijuana while providing services to the VA. It was also reported that the SP and the VA came “very close to having sex,” and that when the SP abruptly ended contact with the VA, the VA engaged in self-harming behaviors. Although the SP denied the allegations, the VA did not have a history of providing inaccurate information, and aspects of the VA’s account were corroborated by others. P3 was aware that the VA went to the wedding with the SP, and P1 was aware that the VA went to the SP’s house. P3 further said that following the VA’s self-harming behaviors on January 30, 2022, the VA told staff that “a good friend … cut contact off with [him/her]”; this was the day after the SP abruptly blocked the VA’s phone number. Given the aforementioned and without additional information to refute or support either account and that the SP had reason to minimize his/her actions for fear of repercussions, it was determined that the VA’s account was more credible than the SP’s. Regarding sexual abuse: Information was provided that the SP touched the VA’s “private parts” and came “very close to having sex” with the VA; this reportedly occurred when the SP was no longer employed by the facility. For these reasons, and without information to state whether any sexual contact occurred prior to this, there was not a preponderance of the evidence whether all of the SP’s actions, while s/he was employed, were therapeutic or whether the SP’s actions included sexual contact with the VA. 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: Information was also provided that in May 2021, when the SP was still an employee of the facility, the SP consumed alcohol and kissed the VA while “on the clock” providing services to the VA at a wedding. The SP also allowed the VA to drive the company van, without a valid driver’s license, and asked the VA to stop along the way so the SP could buy marijuana. The VA had been sober for almost four years and the SP’s duties on this day included ensuring the VA remained sober at a wedding serving alcohol. The SP’s conduct, which included drinking alcohol in the presence of the VA, pretending to be the VA’s significant other, and allowing the VA to drive without a license was a violation of the facility’s policies and procedures and inconsistent with the standards of a professional caregiver in a facility licensed by the Department of Human Services. Given the VA’s diagnoses, it was reasonable to expect that s/he might continue to need supports and services throughout his/her life. The SP’s interactions, including the consumption of alcohol while providing services and inappropriate physical boundaries, likely 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 him/her with services, both now and in the future. For these reasons, there was a preponderance of the evidence the SP’s interactions with the VA were detrimental to the VA’s ongoing health and safety, and were a failure to provide the VA with reasonable and necessary care or services. 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 received training on the VA’s care plans; the facility’s policies and procedures; and the Reporting of Maltreatment of Vulnerable Adults Act. 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 recurring or serious. The SP’s actions were considered a single incident of maltreatment, and there was no information the VA sustained an injury, which met the definition of being “serious.” Action Taken by Facility: The facility completed an internal review, and determined that policies and procedures were adequate, but not followed. The SP was no longer employed. 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. 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: During an interview on May 27, 2022, as part of the facility’s internal investigation, the VA denied all previously reported allegations. The VA indicated s/he had wanted the SP to accompany him/her to the wedding in May 2021 and denied that the SP consumed alcohol at the wedding. The VA also denied a relationship with the SP. The VA told this investigator that s/he did not believe s/he was “vulnerable” or in harm’s way by spending time with the SP. The VA denied that the SP touched him/her inappropriately or kissed him/her while the SP worked at the facility. The VA said any contact that may have occurred between the SP and the VA happened after the SP no longer worked at the VA’s residence, but the VA did not provide details about the contact. The VA said s/he did not believe the SP did anything wrong and did not believe the SP had taken advantage of him/her in any way. Amended Conclusion: It was reported that the SP kissed the VA, consumed alcohol, and purchased marijuana while providing services to the VA. It was also reported that the SP and the VA came “very close to having sex,” and that when the SP abruptly ended contact with the VA, the VA engaged in self-harming behaviors. P3 was aware the SP accompanied the VA to a wedding as the VA’s staff person in May 2021, and P1 was aware that the VA went to the SP’s house in January 2022 after the SP no longer worked at the facility. P3 further said that following the VA’s self-harming behaviors on January 30, 2022, the VA told staff that “a good friend … cut contact off with [him/her].” The SP denied the allegations. Although the VA did not have a previous history of providing inaccurate information, the VA’s statements to P3, the investigator, and the facility during the internal review were inconsistent regarding contact the VA had with the SP and regarding what occurred when the SP accompanied the VA to the wedding in May 2021. The inconsistency of the VA’s statements diminished his/her credibility. Regarding neglect: Information was also provided that in May 2021, when the SP was still an employee of the facility, the SP consumed alcohol and kissed the VA while “on the clock” providing services to the VA at a wedding. The SP also allowed the VA to drive the company van, without a valid driver’s license, and asked the VA to stop along the way so the SP could buy marijuana. The VA had been sober for almost four years and the SP’s duties on this day included ensuring the VA remained sober at a wedding serving alcohol. However, the VA later denied all previously stated allegations, including that the SP consumed alcohol at the wedding. Given the inconsistency of the VA’s statements and the absence of any corroborating information to indicate the alleged incidents at the wedding occurred, there was not a preponderance of the evidence the SP engaged in interactions with the VA that were detrimental to the VA’s ongoing physical or mental health. As a result, the record as a whole does not indicate there was 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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