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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: 1105220-H_CRS (Home and Community-Based Services-Community Residential Setting) Investigator(s): Beth Virden Suspected Maltreatment Reported: It was reported that a staff person (SP) was verbally abusive to a vulnerable adult (VA). Date of Incident(s): September 22, 2022
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. Summary of Findings: Pertinent information was obtained during a site visit conducted on October 27, 2022; from documentation at the facility; a voicemail recording; and through interviews conducted with the VA, the VA’s guardian (G) who was also the VA’s family member, the VA’s case manager (CM), and a facility supervisory staff person (P). Attempts were made by telephone and mail to contact and interview the SP; however, the SP did not respond. The VA’s support plan and support plan addendum provided the following information: · In 2020, the VA moved into the facility seeking support and services relating to his/her diagnoses, which included severe intellectual disabilities. · The VA had a history of threatening and/or harming others, harming him/herself, and destroying property. The VA wanted to reduce these behaviors. Staff persons assisted the VA by modeling appropriate behavior, providing short cues or prompts to the VA, avoiding interference with the VA’s daily routines, and paying attention to what the VA was communicating. Staff could also administer the VA’s as needed (PRN) medication to assist him/her with stabilizing his/her emotions. The facility was a single facility home where the VA was the sole resident. The interior had reinforced walls and doors to limit the potential for property damage. The facility provided at least one staff person 24 hours a day for the VA’s care and supervision. The G provided the following information: · The VA routinely had maladaptive behaviors during the SP’s shifts, but rarely did when other staff persons worked. The SP typically called the G for help with the VA’s behaviors at least once during every shift that s/he worked. The VA’s behaviors toward the SP included threats to hit the SP. However, the G had never received similar calls from other staff persons. · The G believed there was something occurring on the SP’s shifts that caused maladaptive behaviors from the VA, but the G did not know what. · The G said that the VA could communicate verbally, but was “not easily understood.” During one conversation, the G asked the VA about the SP. The VA said that that the SP was “mad at” him/her. The G asked, “Why?” and the VA responded, “[The SP’s first name] fuck you.” The G had never heard the VA swear and s/he did not know how to interpret the VA’s statement. Later in the same conversation the VA stated that s/he “liked” the SP. The G asked if the VA liked how the SP spoke to him/her, and the VA said, “No.” · Then on October 3, 2022, the G discovered an unopened voicemail message that was left by the VA on September 22, 2022. The VA called the G and when the G did not answer, the voicemail picked up and started recording what was happening in the background of the call. It appeared as though the VA had inadvertently forgotten to hang up the phone. The recording was one minute and 25 seconds, and included the SP’s voice and the VA’s voice. The G had concerns about the manner in which the SP was speaking to the VA.
The SP’s shift notes for September 22, 2022, (date of the voicemail recording) included the following: “[The VA] was up and agitated and [I] gave PRN at 1030pm[.] [The VA] went to sleep at 1145[.] [The VA] woke up at 500am[.] [The VA] has been watching tv.” At the time of the site visit, this investigator met the VA and the G. The VA’s speech was very difficult to understand. The G acted as an interpreter and appeared to be quite skilled at understanding the VA’s communication style. The conversation covered topics, like the upcoming Halloween festivities, the house, and lawn mowing. At one point, this investigator asked the VA how s/he liked the staff persons at the facility. The G then named one or two first names and the VA responded positively. The conversation then moved to an unrelated topic. However, the VA then, unprompted, said, “[The SP’s first name], Fuck.” This investigator asked the VA if s/he liked the SP and the VA said, “No.” The VA also mentioned the first name of a former staff person that s/he also did not like, but seemed to like all other staff persons. The CM said that prior to discovery of the aforementioned voicemail recording, s/he was not aware of concerns with the facility’s overall care or supervision. However, since then the facility appeared to be disregarding concerns about the SP’s conduct, and declining to provide information about the plan moving forward. The facility also did not seem motivated to seek or hire other staff persons; and so instead, the G was looking for candidates and also working at the facility him/herself when staff were unable to fill open shifts. The CM believed the facility was a good fit for the VA and the best option available; however, the facility’s response to this particular incident was concerning. (Note: Consistent information was provided that the G had been working unfilled shifts at the facility. However, the G did not have a background study clearance or required training to work at the facility. The failure to ensure a background study clearance was received for a volunteer (e.g. the G) prior to providing direct care services was in violation of Minnesota Statutes section 245C.03, subdivision 1, paragraph (a), clause (4). The failure to provide and ensure completion of orientation sufficient to create competency for direct support staff, including supervised on-the-job training and instruction on necessary policies and procedures was in violation of Minnesota Statutes section 245D.09, subdivisions 4 and 4a.) The P provided the following additional information: · The P said that the VA had a history of aggressive and/or destructive behaviors. Staff persons were trained to identify when a behavior was coming and to redirect it before it reached a maladaptive state. The VA typically responded positively to receiving his/her PRN, changing of scenery or activity, and/or calming music or conversation. · The P was not aware of previous concerns with the SP’s conduct. Although it was believed the VA only had behaviors when the SP was working, this was not true. The facility had maintenance logs, which showed the behaviors occurred on multiple shifts and with different staff persons. · In addition, the facility was single-staffed during most hours of the day, including during the SP’s shift. The P was not aware of any staff persons who had ever worked with the SP expressing concerns with the SP’s conduct. · The P had listened to the aforementioned voicemail recording. The P said that the SP’s statements were “not the nicest things to say.” However, the P believed that the SP had not been “a good fit” to work with the VA. Prior to this incident, the facility had already been trying to transfer the SP to a different home within the same company. At the time of the incident, the transfer had not yet occurred. The facility interviewed the SP for their internal investigation on the matter. According to the P, the SP appeared “thoroughly embarrassed” by the way s/he was acting in the voicemail recording. The SP said that the VA had been “acting up” all morning, and the SP’s reaction and statements were in response to this. The P said that the SP was “a great staff,” but was working in a home that was not a good fit. Facility documentation stated that the SP received training on the VA’s support plans; the facility’s policies and procedures, including Positive Support Strategies and Person-Centered Planning, Positive Behavior Supports: Preventing Challenging Behaviors and Understanding Positive Approaches, and Individual Rights and Choice; and on the Reporting of Maltreatment of Vulnerable Adults Act. Relevant Minnesota Statutes and Rules: Minnesota Statutes section 245D.04, subdivision 3, paragraph (a), clause (6), states, in relevant part, that a person's protection-related rights include the right to be treated with courtesy and respect. Conclusion: A voicemail recording, which had been inadvertently left by the VA on the G’s phone, included a conversation between the VA and the SP. The recording, included the SP calling the VA a “little baby,” and declining to get the VA “more water” or a t-shirt. The SP’s conduct in this regard was inconsistent with the standards of a professional caregiver in a facility licensed by the Department of Human Services and a violation of Minnesota Statutes section 245D.04, subdivision 3, paragraph (a), clause (6). Given that the VA was able to provide a limited amount of information and that the SP did not provide any information, it was difficult to determine exactly what was happening at the time of the voicemail recording. The SP was heard calling the VA a “little baby”; however, this was only heard once and the recording was of one snapshot in time and did not include repeated conduct. In addition, based on what could be heard in the recording, it sounded like the SP eventually gave the VA water, and the SP was initially saying, “Put your shirt on,” which indicates the VA was the one who removed his/her shirt and was able to put it back on but was choosing not to. Based on this, and that the P did not have previous concerns with the SP’s conduct and that there were no other staff persons who had worked with the SP and/or had expressed concerns with the SP’s conduct, there was a lack of evidence to show that the SP’s conduct, as recorded in the voicemail, had happened more than once or was a repeated occurrence. Therefore, there was not a preponderance of the evidence whether the SP’s conduct included the use of repeated or malicious oral, written or gestured language toward the VA or treatment which would be considered by a reasonable person to be disparaging, derogatory, humiliating, harassing, or threatening. It was not determined whether 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: 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). Action Taken by Facility: The facility completed an internal review, and determined that policies and procedures were adequate, but not followed by the SP. “[The SP] … used unkind and abusive language and raised [his/her] voice when providing care.” The facility provided additional training to the SP regarding client care, and appropriate language when interacting with clients. The SP was no longer working with the VA. Action Taken by Department of Human Services, Office of Inspector General: During the course of the investigation it was determined that a volunteer worked with a person served prior to receiving a background study clearance. On November 30, 2022, the facility was issued a $200 fine for the background study violation. The Order to Forfeit a Fine is subject to appeal. In addition, on November 30, 2022, the facility was issued a Correction Order for failing to ensure a volunteer received required training prior to providing direct care services. Regarding the violation of the VA’s protection-related rights to be treated with courtesy and respect, given that the facility took immediate corrective action, (e.g., the SP received additional training on client care and interactions, and was no longer working with the VA), a correction order was not issued for this violation.
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