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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: 1069745-H_CRS (Home and Community-Based Services-Community Residential Setting) Investigator(s): Alice Percy Suspected Maltreatment Reported: It was reported that a vulnerable adult (VA) grabbed a staff person’s (SP’s) hair and the SP then pushed the VA, scratched the VA’s face, and hit the VA with his/her fist. The VA sustained scratches on his/her face and neck. Date of Incident(s): May 8, 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 June 17, 2022; from documentation at the facility; and through five interviews conducted with a facility staff person (P1), two administrative staff persons (P2 and P3), , the VA, and the VA’s guardian (G). Attempts were made by telephone and letter to contact the SP, but the SP did not respond to the requests for an interview. The VA’s diagnoses included severe intellectual disability, attention-deficit hyperactivity disorder (ADHD), anxiety disorder, and autism. The VA enjoyed going for walks, watching wrestling matches, singing, and spending time with family members. According to the VA’s Individual Abuse Prevention Plan (IAPP), the VA was unable to identify potentially dangerous situations and might not defend him/herself against physical abuse or report it. The VA was sometimes verbally and physically abusive to others. The VA stated that sometimes staff persons yelled. On one occasion, the VA had bruises on his/her arm after a staff person held the VA, but the VA was unable to provide information about who caused the bruises or what occurred during the incident. P1 – P3 and the facility’s documentation provided the following information: · On May 8, 2022, P1, P2, and the SP worked at the facility. The VA woke up late and was tired. P1 stated that the VA “went after” P2, then P1. At approximately 12 p.m., the VA was eating his/her lunch and having some “behaviors” because s/he wanted to go on a community outing that afternoon. The VA was yelling and “getting in [P1’s and P2’s] faces.” The VA repeatedly stood to go to the living room to watch television. P1 and P2 allowed the VA to take his/her time eating lunch and periodically going to watch television and did not attempt to make the VA eat his/her lunch more quickly. P1 stated that at some point the SP entered the area from another floor of the building where s/he was working with another resident and “threatened” to take away the VA’s food if s/he continued having the behaviors. P2 stated that the SP “took it upon [him/herself] to tell [the VA] to sit and eat.” The SP then picked up the VA’s plate of food and P1 and P2 told the SP to put the plate back on the table, which the SP did. Then all three staff persons went into the staff office which was located immediately next to the dining room while the VA sat at the table. The door to the office opened onto the dining room and the three staff persons were able to see the VA. When the VA again stood, the SP went back to the dining room and told the VA to eat. P1 and P2 followed the SP to the dining room. P1 and P2 each stated that the SP’s assistance with the VA was not needed or requested and they both told the SP they did not need the SP’s help. · The VA became upset and grabbed the SP’s hair with his/her right hand. The SP threatened to “beat” the VA if s/he did not release the SP’s hair. P1 and the SP attempted to remove the VA’s hand from the SP’s hair. P1 stated that when the SP was unable to remove his/her hair from the VA’s grip, the SP began to scratch the VA’s face and hit the VA in the “crotch.” P2 stepped between the VA and the SP so that the VA would not be hit or scratched by the SP. P2, the VA, and the SP then fell to the floor and the SP knelt above the VA while the VA continued to hold onto the SP’s hair. P2 was also kneeling on the floor by the VA and the SP and had his/her arm between the two and told them each to “relax.” The VA and the SP screamed at each other during the incident and the SP told the VA that s/he was “going to beat [the VA’s] ass.” The VA eventually “tired [him/herself] out” and P1 and P2 were able to remove the SP’s hair from the VA’s hand and all of them stood. The VA went to the living room to watch television and the SP went to the staff office to “calm.” P1 stated that after the incident, there were scratches on the VA’s face and neck. P2 stated that s/he did not observe scratches on the VA after the incident and that while the SP attempted to hit the VA, s/he hit P2 instead. The VA did not require any medical care for the scratches. The SP told P2 that s/he was going to the hospital because his/her head hurt and the SP left. P2 stated that s/he talked to P3 about the incident. P3 stated that s/he talked to P1, P2, and the SP about the incident and was provided information consistent with the information each told to this investigator. · P1 stated that the VA frequently became upset and attempted to hit or grab the staff persons. While the VA typically liked to keep his/her distance from the staff persons, when s/he became upset, the VA typically “got closer” to the staff persons. At those times, the staff persons “knew there was a behavior coming.” · P1 stated that prior to the incident, s/he had no concerns about the SP’s interactions with the residents. P2 stated that prior to the incident, the SP sometimes talked to the residents in an “aggressive and negative” manner, but s/he did not believe the SP would “physically harm” the residents. P3 stated that prior to the incident, s/he talked to the SP about speaking to the residents in a respectful manner. P3 had no previous concerns about the SP becoming physical with any of the residents. · The staff persons were not allowed to implement manual restraints with the residents and were trained on de-escalation techniques and on how to physically block the residents when they became aggressive and attempted to hit the staff persons. If a resident grabbed a staff person’s hair, they were to push the resident’s hand toward their head instead of attempt to pull away from the resident’s hand. They were also trained to redirect the resident and try to calm him/her. The G stated that s/he did not have concerns about the care the VA received at the facility. The G did not have any information about the incident. According to the facility’s Rights of Persons Served, the residents had the right to live without the fear of abuse, neglect, or financial exploitation. The residents also had the right to be free from restraints, restrictive interventions, time outs, or seclusion. The staff persons received training on positive support strategies, not using prohibited procedures, and that the residents had the right to be free from coercion. Facility documentation showed that the SP, P1, P2, and P3 each received training on the Reporting of Maltreatment of Vulnerable Adults Act, on the facility’s policies, and on the VA’s plans prior to the incident. Relevant Rules and Statutes: Minnesota Statutes, section245D.04, subdivision 3, paragraph (b), state that a person’s protection related rights include the right to be treated with courtesy and respect. Conclusion: A. Maltreatment: On May 8, 2022, at approximately 12 p.m., the VA was eating his/her lunch and having some “behaviors” such as standing up and leaving the table. P1 and P2 were with the VA providing verbal redirection as needed. P1 stated that the SP entered the area and “threatened” to take away the VA’s food if s/he continued having the behaviors. P2 stated that the SP “took it upon [him/herself] to tell [the VA] to sit and eat.” The SP then picked up the VA’s plate of food. P1 and P2 told the SP to put the plate back on the table. All three staff persons went into the staff office and the VA sat at the table. When the VA again stood, the SP went back to the dining room and told the VA to eat. The VA became upset and grabbed the SP’s hair with his/her right hand. The SP threatened to “beat” the VA if s/he did not release the SP’s hair. P1 and the SP attempted to remove the VA’s hand from the SP’s hair. When the SP was unable to remove his/her hair from the VA’s grip, the SP attempted to scratch the VA’s face and hit the VA. P2, the VA, and the SP fell to the floor and the SP knelt above the VA while the VA held onto the SP’s hair. P2 had his/her arm between the two and told them to “relax.” The VA let go of the SP’s hair and the two went to separate areas. P1 and P2 provided consistent information that they did not request or require the SP’s assistance with the VA’s behaviors when the SP became involved in the VA’s meal time and each told the SP they did not need the SP’s help. P1 stated that the SP hit and scratched the VA. However, P2 stated that s/he stepped between the VA and the SP so that the VA would not be hit or scratched by the SP. P1 and P2 also provided inconsistent information as to whether the VA had scratches on his/her face and neck after the incident. Given the conflicting information from P1 and P2 regarding whether the SP actually hit and/or scratched the VA, and that P2, the SP, and the VA were involved in the incident and that the three fell to the floor, it was unclear how or when the VA sustained scratches. The SP’s interactions with the VA after being told by P1 and P2 that his/her help was not needed escalated the VA and lead to the VA grabbing the SP’s hair. This, in addition to the SP attempting to force the VA to release his/her hair and attempting to hit and scratch the VA 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, section245D.04, subdivision 3, paragraph (b). The SP’s actions were not therapeutic or accidental and therefore, there was a preponderance of the evidence that the SP failed to supply the VA with care and services which were reasonable and necessary to obtain or maintain the VA’s physical or mental health or 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. Facility documentation showed that the SP received training on the Reporting of Maltreatment of Vulnerable Adults Act, on the facility’s policies, and on the VA’s plans prior to the incident. 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 because it was a single incident and the VA did not require the care of a physician. Action Taken by Facility: The facility completed an internal review and determined that the facility’s polices were adequate, but were not followed by the staff person. 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 corrective action once they learned about the incident, a correction order was not issued for the violation outlined above or for the delay in reporting possible maltreatment.
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