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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: 1069149-H_CRS (Home and Community-Based Services-Community Residential Setting) Investigator(s): Kimberly Huettl Anderson/Marie Tierney Suspected Maltreatment Reported: It was reported that a staff person (SP) coerced a vulnerable adult (VA) to shoplift items from a store. Date of Incident(s): June 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 17, paragraph (a)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 for this investigation was obtained remotely, including documentation from the facility and law enforcement records; and through three interviews conducted with the VA, the SP, and a supervisory staff person (P). The facility's record for the VA documented that the VA was a creative person who enjoyed writing poetry, photography, crafting, and volunteering. The VA's conditions included autism, attention deficit hyperactivity disorder, and anxiety. The VA moved to the facility on May 9, 2022. The VA was vulnerable to emotional abuse because others may try to exploit or take advantage of the VA; and was vulnerable to financial exploitation in part because s/he had limited self-advocacy skills. Staff persons were to be within visual or auditory range of the VA "and respond to situations that present themselves."
In a phone conversation, the VA's guardian (G) told the DHS investigator that the VA had a history of shoplifting. On an unspecified date, the VA told the G that shoplifting had become "like an addiction" for the VA.
The facility's Incident Report and Internal Review documented the following: · On June 19, 2022, around 6 p.m., the VA was stopped by loss prevention personnel when leaving a store, and was found to have shoplifted a variety of makeup items and compact discs. · The VA acknowledged to facility investigators that s/he stole the items and that it was “exciting” for the VA. · The VA said the SP asked the VA to steal sunglasses for him/her on June 19, 2022, and had asked the VA to steal for the SP on at least one previous occasion. During the June 19, 2022, incident, the VA said s/he removed a tag from a pair of sunglasses and handed them to the SP while the VA was shoplifting. Video surveillance from the store showed the SP saw the VA remove the sunglasses tag, then the SP wore the sunglasses out of the store. After store loss prevention personnel asked the VA and the SP to return to the store, the SP returned the sunglasses to a store staff person. · The VA was upset that the SP did not admit to his/her role in the incident. · The SP was suspended during the facility’s internal investigation, and the facility instructed the SP not to contact other staff persons about the investigation. During the facility’s internal investigation, the SP provided false information stating that s/he had no contact with other staff persons about the investigation. (The facility obtained text messages that showed the SP informed another staff person of what the SP told facility investigators.)
Store video of the incident was not available to the DHS investigator.
The VA provided the following information during his/her interview with the DHS investigator:
· The VA stole items for the SP two times. - The first time, the SP told the VA that s/he wanted a ring and also mentioned that the SP stole from the store; then the VA stole the ring and gave it to the SP. The VA said the SP still had the ring. - The second time, the VA and the SP went to the store but they did not bring any of the VA's money. The SP told the VA s/he wanted a pair of sunglasses which the VA stole for the SP. The SP wore the sunglasses around the store while the VA shoplifted makeup and two compact discs. The VA said the SP was aware the VA was trying to steal these items. After the VA and the SP left the store, the SP told the VA s/he should go back into the store because loss prevention personnel took photos of their vehicle. Initially, the VA went back inside while the SP remained outside. Later, the SP entered the store and "lied. . . [the SP] said [s/he] did not have anything to do with [the thefts] but that was bull crap." After the second incident, the VA ran out of the store and, "I was going to jump off [a] bridge of the ravine."
· The SP told the VA not to "tell on" the SP. The SP also told the VA that others would believe the SP but would not believe the VA.
The P provided the following information during his/her interview with the DHS investigator:
· On the day of the incident, the P received a phone call informing him/her that the VA was caught shoplifting, that law enforcement was called, and that the VA then ran to a nearby river creek area and "was freaking out." The P drove to the area and "coaxed" the VA off a deck area to get the VA away from the creek. The VA then told the P that the SP "made" the VA shoplift.
· The VA had a history of shoplifting and also had a history of blaming his/her shoplifting on others. The VA had "bragged" about shoplifting more often than staff persons were aware.
· Due to the VA's history of shoplifting, staff persons were trained to have "eyes on [the VA] 24/7" to prevent him/her from shoplifting. However, at the time of the June 19, 2022, incident, the VA was relatively new to the facility and, "At that point we didn't know about the shopping issue." (Investigator’s note: the VA’s Individual Abuse Prevention Plan was amended after the June 19, 2022, incident to specify that staff persons were to watch the VA at all times in stores to prevent shoplifting.)
The SP provided the following information during his/her interview with the DHS investigator:
· On an unspecified date in June of 2022, the SP and the VA were at the store together. They walked around the store, including the makeup aisle. The VA asked the SP for his/her opinion on several items, which the SP provided. The SP also showed the VA an item s/he thought was attractive. The SP found out later that the VA was placing items in his/her bag, including some of the items they discussed. The SP said s/he did not see the VA put the items in the VA's bag because the SP was looking around and using his/her phone while they were at the store.
· At some point, the SP told the VA s/he liked a specific pair of sunglasses. The VA replied that another pair looked better, then the VA picked up the sunglasses, ripped the tag off, and handed them to the SP. The SP asked the VA why s/he did that, and the VA said, "Just put it on your head." The SP put the sunglasses on his/her head and handed them to a store staff person before s/he and the VA left the store.
· As they walked out the door, a loss prevention staff member asked to look in the VA's bag. The VA refused and ran outside. The SP convinced the VA to return to the store to talk with loss prevention personnel.
· The SP denied asking the VA to steal any items for the SP and denied awareness that the VA was stealing while the SP and the VA were in the store. · The SP said s/he was not trained on the VA’s individualized plans.
A Daily Log Notes entry dated June 20, 2022, was written by the SP and was consistent with the information the SP provided in his/her interview.
The facility's Employee Conduct and Discipline Policy stated that employees were prohibited from "negligence, carelessness, or failure in performing acceptable standards of service delivery."
The facility's personnel files and training records documented the SP and the P were each trained on the VA’s individualized plans and on the Reporting of Maltreatment of Vulnerable Adults Act prior to the incident. Conclusion: A. Maltreatment: Information from all sources was consistent that on June 19, 2022, the VA shoplifted several items while s/he was at a store with the SP. The VA told facility investigators and the DHS investigator that the SP was aware that the VA was shoplifting during the incident; and that the VA removed a tag from a pair of sunglasses, handed the sunglasses to the SP, and the SP wore them out of the store. The VA also told the DHS investigator that s/he shoplifted a ring for the SP on an unspecified prior date. However, the SP denied awareness that the VA was shoplifting when s/he was with the SP; and the SP said on June 19, 2022, s/he handed the sunglasses to store personnel before s/he left the store. Given the conflicting accounts of the SP’s role in the incident, credibility was a determining factor. For the following reasons, it was determined that the VA’s account was more credible than the SP’s: · According to facility documentation, store video showed that the SP saw the VA remove the tag from the sunglasses, then the SP placed the sunglasses on his/her head and wore them out of the store. The SP did not return the sunglasses to the store until after loss prevention personnel intervened. · The VA acknowledged shoplifting multiple items and only attributed a fraction of the items s/he stole to the SP. · The SP falsely told facility investigators that s/he did not contact any other facility staff about the facility’s internal investigation of the incident. Given the aforementioned, it was more likely than not that the SP was aware that the VA was shoplifting during the June 16, 2022, incident; and on one prior unspecified date. Given that the VA was engaging in illegal activity, allowing the VA to shoplift and failure to intervene when the VA shoplifted represented a failure to supply reasonable and necessary care and supervision to the VA. 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 told the DHS investigator that s/he was not trained on the VA’s individualized plans. However, the facility’s personnel files and training records documented that the SP was trained on the VA’s individualized plans prior to the incident, as well as the Reporting of Maltreatment of Vulnerable Adults Act. In addition, it is generally understood that shoplifting is a crime. Therefore, the SP was responsible for the 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. Given that there were no additional details or information available regarding the VA’s shoplifting the ring for the SP, the SP’s pattern of neglect of the VA was considered a single incident, and the neglect did not result in any physical harm. Action Taken by Facility: The facility completed an internal review and determined that policies and procedures were adequate but were not followed, that the incident was similar to past incidents involving the VA, and that there was a need to update the VA’s individualized plans. 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.
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