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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: 1083089-H_CRS (Home and Community-Based Services-Community Residential Setting) Investigator(s): Deb Neubauer-Hoffman Suspected Maltreatment Reported: It was reported that a staff person (SP) made comments and mimicked a vulnerable adult (VA) despite the VA repeatedly asking the SP to stop. The SP also sprayed the VA with a kitchen faucet and forcefully pushed the VA resulting in the VA falling on the wet floor and sustaining marks and abrasions. Date of Incident(s): September 17, 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), clauses (1) and (2): 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. · 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. Summary of Findings: Pertinent information was obtained during a site visit conducted on October 6, 2022; from documentation at the facility; and through five interviews conducted with the VA, and three facility staff persons (the SP, P1, and P2) and the VA’s guardian (G). The VA was described as a NASCAR whiz and enjoyed collecting racing items as well as watching old and new races on the internet. The VA also liked trains and going to train yards. The VA had one-to-one staffing. The VA wore glasses and his/her diagnoses included autism spectrum disorder, reactive attachment disorder, attention deficit hyperactivity disorder, and moderate intellectual disability. The VA’s Self-Management Assessment (SMA) stated that s/he had a history of aggressive behaviors that could lead to property destruction. The SMA also stated that the VA performed better in calm and quiet environments and that there were times when the VA was able to independently recognize that s/he is overstimulated and “may announce [his/her] intention” to engage in a target behavior when experiencing sensory overload by making statements similar to “I have to throw these remotes.” Staff persons were supposed to assist the VA by identifying target behaviors and attempt to regulate sensory input by making changes to the environment such as “turning down the TV volume, lowering lights, and limiting conversations.” The VA resided alone on the upper level of the facility that included a living room, kitchen/dining room, staff office, the VA’s bedroom, and a bathroom. Another resident (R) resided alone downstairs and had his/her own one-to-one staff. The upstairs kitchen was shared by both individuals. P1 provided consistent information in an Incident Report Form as well as during interviews with this investigator: · On September 17, 2022, around 11:30 a.m., the SP came upstairs to the kitchen to make lunch for the R. The SP was “mimicking” what the VA said and the VA asked the SP to “stop” at least “15 times.” P1 also asked the SP to stop talking to the VA several times. The VA eventually said, “If you don’t stop I will kill you.” When the SP repeated that statement the VA said, “That’s it!” and entered the kitchen to “go after” the SP. The SP turned on the kitchen faucet and “threatened” to spray the VA with the hose on the sink. The VA said, “Don’t you dare,” and spit in the SP’s direction. The SP then sprayed the VA with the hose. The VA “went after” the SP a second time and the SP sprayed the VA with the hose again. The “last” time the SP sprayed the hose it was a “huge spray” that got the VA’s face, glasses, and the front of his/her pants and shirt wet as well as the floor. The VA then grabbed the front of the SP’s shirt and began hitting the SP. At some point P1 remembered offering the VA a PRN (as needed) medication that the VA declined. · While the VA held the SP’s shirt with his/her left hand, P1 held the VA’s right hand while the SP attempted to release the VA’s grip on the SP’s shirt; however, at that time the VA and SP “fell” or “slid” to the floor. While on the floor, the SP pushed the left side of the VA’s face away from the SP. When the SP stood up, the VA was still holding on to the SP’s shirt so the SP moved behind the VA resulting in the VA’s arm being behind the VA’s back and the SP was able to remove the VA’s hand from his/her shirt. · P1 attempted to wipe up some of the water on the floor as the VA went towards the SP again. The SP used his/her two hands and “shoved” the VA away from the SP. The VA fell onto the wet floor, hitting his/her right arm on a wooden cabinet that was on the floor across from the kitchen sink. P1 was concerned that the VA hit his/her head because s/he “fell so hard.” The VA cried and said, “You hurt me, you hurt me bad, I’m hurting!” P1 told the SP to go downstairs and the SP left the kitchen, slamming the door on his/her way downstairs. · P1 assessed the VA for injuries and took pictures of a “scrape mark” on the VA’s upper right arm that was the same pattern as the cabinet the VA hit when falling and a red mark on the VA’s left arm between the wrist and elbow. · P1 telephone P2 and asked P2 to relieve the SP. P2 arrived approximately 15-20 minutes later. That same afternoon the VA was taken to an emergency room for evaluation. · The SP did not interact with the VA as trained and should have “kept quiet” and not “bantered back and forth.” · Prior to the incident the VA and the SP had a “love-hate relationship.” The SP tried to be “playful;” however, that “agitated” the VA. “Every time” the SP came to the facility the VA asked the SP if s/he was working with the VA and if the SP said, “Yes” the VA said, “I don’t want you to, I want someone else.” · Although P1 never saw the SP spray the VA with the kitchen hose prior to September 17, 2022, the SP told P1 that if s/he did not want the VA to be in the kitchen, “Just show [the VA] the hose, [the VA] will run, [s/he] does not like the hose.” The VA provided the following information when interviewed by this investigator. The VA identified the SP by name and said that the SP was “crabby,” “was spraying me with water,” and “threw me on the white thing.” (The VA pointed to the wooden cabinet on the floor in the kitchen.) The VA said s/he was “crying” after the incident and the back of his/her arm got hurt but “it is gone now.” The VA said that the SP sprayed him/her with water “since 2019.” P2 was not present when the incident occurred and provided the following information when interviewed by this investigator: · The SP “antagonizes” and “teased [the VA] excessively.” After getting the VA “wound up,” the SP then told the VA that s/he needed PRN medications. The VA “doesn’t care for [the SP],” usually told the SP to “stop,” or told the SP to “go downstairs” or “leave [the VA] alone.” The SP sometimes complied but then came back upstairs and gave the VA a “hard time” again. · P2 never saw the SP spray the VA with water. However, when P2 arrived at the facility on September 17, 2022, s/he observed that the VA’s clothing was wet and that s/he had a “big red mark” on his/her upper right arm and another mark on his/her left arm. The VA was “mad” and immediately told P2 that the SP “pushed me. I am going to kill him.” P2 went downstairs to relieve the SP. Before leaving, the SP told P2 that s/he was not going to return to the facility. The SP provided the following information: · On the day of the incident the SP was working downstairs with the R. At approximately 11:30 a.m., the SP went upstairs to the kitchen to prepare the R’s meal. The VA was in the living room and “kept coming out into the kitchen” and “was throwing stuff at [the SP] and spitting at [the SP].” This continued for approximately a half hour. The SP told the VA to leave the SP alone and the VA responded, “My house, my rules,” and the VA kept coming into the kitchen and became “increasingly more physically aggressive.” · The SP did not “feel very supported” by P1 who eventually came out of the office and got the VA to return to the living room. · The VA then returned to the kitchen and threw a remote control at the SP and grabbed the front of the SP’s shirt near his/her collar. The SP used techniques s/he was taught to attempt to release the VA’s grip on his/her shirt. The SP provided information consistent to P1’s description of going behind the VA so that the VA’s arm was behind his/her back for approximately 15-20 seconds. · When asked about the VA telling the SP not to talk to the VA, leave the VA alone, or not tease the VA, the SP said s/he did not “recall” the VA saying anything like that. However, the SP said that s/he told the VA to “stop talking” to the SP and to stop coming out into the kitchen. When asked if P1 said anything about what was happening, the SP recalled P1 saying, “Oh my God, you guys . . .” from the office. · When asked about the kitchen sink hose, the SP said that after a “long period” of the VA aggressing towards the SP, the SP sprayed the VA to get him/her to “back off.” The first time the SP sprayed the VA, the VA went into the living room. The SP acknowledged that was not how s/he was trained to get the VA to leave the kitchen. The SP said that s/he had worked “many, many extra hours” and at that point his/her “emotional brain” was “more or less triggered” into “fight or flight” because the SP wanted the VA to stop hitting him/her. The SP said that s/he sprayed the VA with the hose three times. After the third spray, P1 came into the kitchen and tried to get the VA to go into the living room by guiding the VA with P1’s hands. As the VA got near the refrigerator (located to the left on the sink and prior to the doorway leading to the living room) the VA turned around and “that’s when [the VA] slipped and fell” sideways, hitting his/her head. The SP denied pushing the VA’s face/head or body. · When asked if the VA would have fallen if the floor was not wet from the SP spraying the VA, the SP replied, “I don’t think [s/he] would have.” The SP was not aware of any injuries that resulted from the incident. · The SP estimated that the entire incident lasted 45 minutes and at that point the SP went downstairs without finishing the R’s lunch. · The SP said on prior occasions s/he “playfully” told the VA that s/he was going to spray the VA with the hose, but “never when [the VA] was aggressing or as a threat.” The G said that the VA “can embellish;” however, the VA did not tell the G anything about the incident other than to say the SP was not working at the facility anymore and it was “not [the VA’s] fault.” On September 17, 2022, the VA was seen at the Hutchinson Health Emergency Department and diagnosed with a “contusion of right upper arm.” The facility provided this investigator with multiple photographs taken of the VA’s upper right arm over a period of two days. The first photo taken on September 17, 2002, at 12:15 p.m. showed a red abrasion (unknown measurements but appeared to be several inches long and a couple of inches wide) on the VA’s upper arm and showed the same pattern as the cabinet. The final photos taken at 8 p.m. on September 18, 2022, showed the abrasion and pattern from the cabinet on the VA’s upper right arm was still visible although slightly less red, and the VA’s lower, left forearm showed a red mark approximately the size of a nickel. The facility’s policy Conduct Between Staff and Individuals Receiving Supports stated that individuals were to be treated with courtesy, dignity, and respect and that staff persons were to “never” use “condescending, demeaning, provoking language or gestures.” Training records showed that the SP was trained regarding the facility’s policies and procedures; behavior management; person centered planning; the VA’s care and support plans; Effective and Safe Engagement (EASE) that focused on prevention, intervention, resolution and support of behavioral emergencies; and the Reporting of Maltreatment of Vulnerable Adults Act. Relevant Rule and/or Statute: Minnesota Statutes, section 245D.04, subdivision 3, (6) requires the license holder to ensure that VAs were to be treated with courtesy and respect. Conclusion: A. Maltreatment: Although the SP denied pushing the VA, the SP acknowledged there was an incident in the kitchen resulting in him/her spraying the VA with water and the VA subsequently fell to the floor. The VA and P1 each provided consistent information that the SP sprayed the VA and pushed the VA resulting in the VA falling to the floor. Although P2 did not witness the incident, s/he arrived within 15-20 minutes and witnessed the VA’s clothing was wet, the VA immediately told P2 that the SP pushed the VA, and P2 observed an abrasion to the VA’s upper right arm and a bruise on his/her lower left arm. Although the SP had reason to deny pushing the VA, given the consistent information from the VA, P1, and corroborating information from P2, there was a preponderance of the evidence that the SP engaged in conduct towards the VA that produced or could reasonably be expected to produce physical pain or injury. Additionally, P1 stated that on September 17, 2022, the SP was “mimicking” the VA and the VA repeatedly asked the SP to stop. The SP remained upstairs for 30-45 minutes and continued to engage the VA verbally, which was not in alignment with the VA’s plan to “limit conversations.” The SP’s threatening to spray and then spraying the VA with water was incongruent with the facility’s Conduct Between Staff and Individuals Receiving Supports policy that stated staff persons were to “never” use “provoking language or gestures.” In addition, P1 and P2 each provided information that on other occasions the SP “teased” and “antagonized” the VA, and P1 said that the SP advised him/her to “just show [the VA] the hose, [the VA] will run, [s/he] does not like the hose.” The SP’s actions were inconsistent with the standards of a professional caregiver in a facility licensed by the Minnesota Department of Human Services and a violation of Minnesota Statutes, section 245D.o4, subdivision 3, (6). Given the aforementioned, and that the SP’s actions were not accidental or therapeutic, there was a preponderance of the evidence that the SP’s comments and actions were disparaging, derogatory, humiliating, harassing, and threatening and would reasonably cause emotional distress. It was determined that physical and emotional 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 or 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 regarding the facility’s policies and procedures; behavior management; person centered planning; the VA’s care and support plans; Effective and Safe Engagement (EASE) that focused on prevention, intervention, resolution and support of behavioral emergencies; and the Reporting of Maltreatment of Vulnerable Adults Act. The SP was responsible for maltreatment of the VA. 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 physical and emotional abuse for which the SP was responsible did not meet the criteria to be determined at “recurring” as the SP’s actions were part of a pattern of behavior and considered a single incident. However, the substantiated physical abuse for which the SP was responsible met the statutory criteria to be determined as “serious” because the VA sustained an injury, including an abrasion on one of the VA’s arms and a bruise on the other arm. The SP was disqualified from providing direct contact services. Action Taken by Facility: The facility completed an internal review and determined that policies and procedures were adequate but were not followed. There was no need for additional training because the SP no longer worked at the facility. Action Taken by Department of Human Services, Office of Inspector General: The SP was disqualified from a position allowing direct contact with, or access to, persons receiving services from facilities licensed by the Department of Human Services, the Department of Health, facilities serving children or youth licensed by the Department of Corrections, and unlicensed Personal Care Provider Organizations. The determination that the SP was responsible for maltreatment and the disqualification of the SP are each subject to appeal. Given that the facility took immediate corrective action, a correction order was not issued for the violation outlined in this report.
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