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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.”
Facility A’s License Number and Program Type: 1071690-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 towards a vulnerable adult (VA) and at least one time, “washed [the VA’s] mouth out with soap.” Date of Incident(s): Ongoing prior to October 12, 2022; exact date(s) unknown
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), clause (2); and subdivision 17, paragraph (a): 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. 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 November 15, 2022; from documentation at facility A, and law enforcement records; and through interviews conducted with the VA’s co-guardian (G) who was also the VA’s family member, a staff person (SP) who was the VA’s other co-guardian and also the VA’s family member, a psychiatric nurse practitioner (PNP) who worked with the VA, and supervisory staff persons (P1 and P2). At the time of the site visit, the VA declined to be interviewed for this investigation. Attempts were made to contact and interview the VA’s housemate (H), however, the H did not respond to the requests. At the outset of this investigation, concerns were reported regarding the G’s conduct toward the VA. The Department of Human Services did not have jurisdiction regarding the G’s actions and forwarded a copy of this report to adult protective services for their review. Facility A was a single-family home where the VA lived with three housemates, including the H. Facility A provided at least one staff person 24 hours a day for care and supervision. Facility A was owned/operated by a company that owned/operated other, licensed facilities nearby (including facility B). P1 worked at facility A where the VA lived. The SP worked at facility B. P2 provided supervisory support and services to facility A and facility B. The VA’s support plan and support plan addendum provided the following information: · In 2012, the VA moved into facility A seeking support and services relating to his/her traumatic brain injury. · The VA might not have the ability to defend him/her in verbally and/or physically abusive situations. The VA also had a history of maladaptive behaviors, which included declining to complete activities, slamming doors, and making “rude” comments. These behaviors had a potential to provoke abuse from others. The VA relied on staff persons to intervene when necessary and report suspected abuse on his/her behalf. · The VA wanted to have better control over his/her maladaptive behaviors. Staff persons were to assess the situation before reacting. At times, the VA wanted “some space,” and when this occurred, staff allowed the VA time alone and checked back in after a specified amount of time. The VA might also have something bothering him/her, and when this occurred, staff listened to the VA’s concerns and helped problem solve. Staff also presented requests to the VA in a manner that gave him/her choices. The PNP and P1 provided the following information: · On October 12, 2022, the VA, the SP, the PNP, and P1 met at facility A regarding the VA’s medications, and the VA’s ongoing and increasing maladaptive behaviors. · During this meeting and in the presence of the PNP and P1, the VA said to the SP, “You said I was a dirty nasty pig. I’m not an animal.” The SP responded to the VA, “I can say that to you because I’m your [family member].” The SP then acknowledged to the PNP and P1, “I shouldn’t have said that to [him/her].” · After this meeting ended, and the VA and the SP were no longer present, P1 told the PNP that this was not the first time s/he heard something similar said by the SP. · P1 told the PNP, and later this investigator, that the day prior, October 11, 2022, the VA had threatened to punch P1. In response, P1 notified the SP. P1 explained that when s/he first started working at the facility, about a year prior to this incident, his/her then-supervisor told him/her that any time the VA had an “extreme” maladaptive behavior (e.g. threatening to punch a staff person), the staff were to notify the SP. The SP and the G were co-guardians for the VA; however, the G was difficult to get ahold of, and so staff had been instructed, prior to P1’s employment, to call the SP. These calls to the SP were simply to notify the VA’s guardians (i.e. the SP and the G) of the behavior. P1 did not ask, and was not aware of other staff persons asking, the SP (nor the G) to come to facility A and/or to directly address a behavior with the VA. However, in response to these calls the SP would sometimes drive to facility A to speak with the VA in-person. · That said, when P1 called the SP on October 11, 2022, regarding the VA’s threat to punch P1, the SP soon-after arrived at the facility. According to P1, the SP entered the VA’s bedroom, and then told P1 to leave the room and cover his/her ears. P1 did leave the room, but stood in the hallway and did not cover his/her ears. P1 saw the SP get “chest-to-chest” with the VA and push the VA backwards so that s/he was pressed against his/her bedframe. The SP then yelled at the VA, calling him/her “dirty nasty pig” and “baby,” and that the SP should buy the VA a “diaper.” The SP told the VA, “If you want to punch someone, punch me.” The VA “did not respond” to the SP and did not punch the SP. P1 was not aware of the VA sustaining any physical injuries from this incident. · P1 also told the PNP, and later this investigator, that s/he had been informed of other concerns with the SP’s conduct. On an unknown date, a staff person, whose identity P1 could not recall, said that they saw the SP “forcefully” brush the VA’s teeth when the VA declined to do so independently. The VA had told the SP, “You can’t make me (brush my teeth);” and the SP responded, “Yes, I can.” The SP then brushed the VA’s teeth. The VA did not have a reaction but allowed the SP to do so; however, as soon as the SP left, the VA swore at staff. · Another time, on an unknown date, the H told P1 that they saw the SP “wash [the VA’s] mouth out with soap,” and saw the SP throwing the VA’s toys on the floor and in the garbage can. · When asked if the SP ever responded to facility A during times when s/he was “on the clock” (i.e. working) at facility B, P1 said, “Quite a few times.” P1 was aware of this because the SP stated that this was the case. However, P1 was not aware, or could not recall, if any of the concerning conduct at facility A occurred on days when the SP was working at facility B. (Note: Facility A’s review of documentation for their internal investigation revealed that staff had not been detailing or recording every visit by the SP. There was concern that the SP had access to read the VA’s progress notes in the company’s shared system. The progress notes would sometimes not mention anything about the SP’s visit or they would state something like, “Guardian showed up and they talked” without additional detail about the visit.) · P1 said that s/he did not know how to handle or react to the SP’s concerning conduct. P1 had questioned the SP’s behaviors, to the SP; and each time, the SP responded, “I’m [the VA’s] guardian. I can do that. You guys can’t.” P1 did not know if the SP’s conduct was appropriate being that s/he did not actually work at facility A with the VA, and so therefore was not a staff person of facility A. P1 did not tell a supervisory staff person about his/her concerns until October 12, 2022, when the PNP was present and also questioned the SP’s conduct. · The PNP added that prior to October 12, 2022, s/he was not sure why the VA had been experiencing an increase in maladaptive behaviors. Some of the behaviors that the VA was exhibiting were reactions commonly associated with having experienced trauma. After the PNP observed the SP’s conduct toward the VA on October 12, 2022; and heard of other similar examples from P1, the PNP believed there might be a correlation between the VA’s increased maladaptive behaviors and the SP’s and the G’s treatment of the VA. · The PNP stated that the SP had sought out his/her care for the VA. However, after the onset of this investigation, the PNP was told that the SP no longer wanted the PNP’s services for the VA and no longer worked with the VA. A Cloquet Police Department Report provided the following information: · On October 13, 2022, a law enforcement officer (LEO) asked the VA about his/her interactions with the SP, and the VA provided the following information: o On an unknown date, the SP entered the VA’s bedroom and shouted at the VA, calling him/her “pig.” The SP then used both hands to push the VA against his/her bed. This was the first and only time the SP physically aggressed towards the VA. The VA was not harmed by this incident. o More than once prior to this incident, the SP had said other “negative things” to the VA; however, the VA could not recall what exactly was said during those other times. · The LEO also asked the SP about his/her interactions with the VA. The SP told the LEO that on October 11, 2022, s/he responded to the facility after being informed of the VA threatening to punch P1. The SP “cornered [the VA] in a corner by [his/her] bed but did not push [the VA].” The SP then called the VA, “Disgusting two year old little pig.” (Note: The LEO did not ask the SP about any of his/her other interactions with the VA.) · Law enforcement closed the case without further action. The SP provided the following information to this investigator: · The SP worked during most mornings and afternoons at facility B. · The SP had historically worked some shifts at facility A, when they were short-staffed. The SP said that whenever s/he was there working, the VA “was good” and did not have maladaptive behaviors. The SP received training on the VA’s support plan and support plan addendum prior to working as a staff person with him/her. · Facility A staff typically called and/or text messaged the SP anytime the VA had a maladaptive behavior. The SP did not know how often this occurred. The text messages typically said something like, “Please call and talk to [the VA].” The SP sometimes called, or drove to facility A to be there in-person. Staff persons did not ask the SP to come to facility A; instead, the SP did this on his/her own. · If facility A called or text messaged during times when the SP was working at facility B, s/he sometimes drove to facility A to be there in-person, and sometimes did not. · The time of day when the VA’s maladaptive behaviors occurred changed based on the VA’s medication regimen. At the time of this investigation, the behaviors were occurring “almost any time of day.” · The SP said, “I do raise my voice” towards the VA. However, the SP explained that the VA was the SP’s family member, not a client. The SP denied washing the VA’s mouth out with soap, calling the VA names, and/or pushing the VA. · The SP said that no one had ever confronted him/her and/or expressed concerns about his/her conduct towards the VA. P2 provided the following information: · P2 was aware that the SP sometimes was working at facility B when s/he came to address a concern with the VA at facility A. The SP had been previously instructed to use his/her paid break-time for such visits, but that if the visit went over 30 minutes the SP would need to “clock out” (i.e. use unpaid time). Staff persons did not have set break-times and could therefore take their breaks at a time of their preference. · P2 said that staff were not good at consistently documenting every time the SP visited facility A, and so there was not a definite record of dates and times. · P2 had previously given the SP “corrective coaching” to address his/her comments about the VA. P2 had heard the SP make comments that s/he was allowed to “force” the VA to do things because the SP was the VA’s co-guardian. P2 had never witnessed the SP actually force the VA to do something, and had never heard anything similar from other staff. However, P2 did not think the SP’s comments were appropriate and so, more than once, P2 told the SP that s/he was not allowed to do that to the VA, and that it was also not appropriate to talk about forcing the VA to do anything. P2 did not believe the SP was being “overly mean” to the VA but rather was “forcefully vocal” when talking to/about the VA. The G said that the SP was the VA’s guardian and family member, and that s/he never had any concerns with the SP’s conduct towards the VA. According to the G, whenever the SP visited the VA at facility A, s/he was acting in the role of guardian and family member, and not working as the VA’s staff person. The G added that the VA was of adult-age and “borderline genius,” but the VA also had a traumatic brain injury and sometimes acted like “an eight year old.” The G said that in order to get a point across to the VA, they had to speak to him/her in a manner the VA would understand, which included direct communication. The G stated that the SP never called the VA a “pig,” but rather, told the VA that s/he was “acting like a filthy pig.” The G reiterated that s/he did not have any concerns with the SP’s conduct. Facility A documentation stated that the SP, P1, and P2 received training on the VA’s support plans and support plan addendums; the company’s policies and procedures, including Mental Health, Crisis Response, De-escalation, and Suicide Prevention; and the Reporting of Maltreatment of Vulnerable Adults Act. (Note: The Department of Human Services [DHS] background study clearance for the SP to work in DHS-licensed facilities was affiliated under the company’s license number; the company that owned and operated facility A and facility B. The background study was not specific to facility A or facility B.) 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. Minnesota Statutes section 245D.07, subdivision 1a, paragraph (a), states the license holder must provide services in response to the person's identified needs, interests, preferences, and desired outcomes as specified in the coordinated service and support plan and the coordinated service and support plan addendum, and in compliance with the requirements of this chapter. Conclusion: A. Maltreatment: It was reported that, more than once, the SP was verbally abusive towards the VA. The SP denied the allegations, but told this investigator that s/he did raise his/her voice at the VA, and told the LEO that s/he called the VA “disgusting two year old little pig.” The PNP and P1 each said that the SP acknowledged to them on October 12, 2022, that s/he called the VA “nasty pig.” P1 also witnessed the SP call the VA “dirty nasty pig” and “baby,” and that the SP should buy the VA a “diaper.” In addition, P1 provided information that a staff person who P1 could not recall and the H told P1 about concerns they each saw regarding the SP’s interactions with the VA that included: forcefully brushing the VA’s teeth, washing the VA’s mouth out with soap, and throwing the VA’s belongings on the floor and in the garbage can. The G did not have concerns with the SP’s conduct towards the VA. The G explained that whenever the SP addressed a behavior with the VA, s/he was acting in the role of the VA’s co-guardian and family member, and not as a staff person. Regarding emotional abuse: Although the exact dates and times of the SP’s name-calling towards the VA were unknown, information was provided that staff called the SP about once a week regarding the VA’s “extreme” maladaptive behaviors, and that these behaviors occurred “almost any time of day,” which would include the times of the SP’s shifts at facility B. The SP acknowledged to sometimes visiting facility A to speak with the VA about his/her behaviors during times the SP was working (or “on the clock”) at facility B. Therefore, it was reasonable to believe that at least some of the SP’s concerning comments to the VA occurred when the SP was working (or “on the clock”) at facility B. The SP was a staff person of both facility A and facility B as evident by his/her work history and by his/her DHS background study clearance. The conduct of a staff person, regardless of whether they were a family member or guardian, calling the VA names and cornering the VA in his/her bedroom, was inconsistent with the standards of a professional caregiver in a facility licensed by DHS; and was in violation of Minnesota Statutes section 245D.04, subdivision 3, paragraph (a), clause (6). Given the SP’s aforementioned repeated interactions towards the VA, and that the PNP believed the VA’s trauma response (i.e. maladaptive behaviors) was most likely related, in part, to the SP’s conduct towards the VA, there was a preponderance of the evidence that the SP’s conduct, which was not an accident or therapeutic, would be considered by a reasonable person to be disparaging, derogatory, humiliating, harassing or threatening; and produced or could be reasonably be expected to produce emotional distress for the VA. It was determined that 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). Regarding neglect: The VA’s support plan and support plan addendum provided information that the VA might not have the ability to defend him/her in verbally and/or physically abusive situations and the VA relied on staff persons to intervene when necessary and report suspected abuse on his/her behalf. This was not consistently done by staff persons, which was in violation of Minnesota Statutes section 245D.07, subdivision 1a, paragraph (a). In addition, staff persons instead called the SP to come to the facility where the SP engaged in the actions as described above. P1 and P2, and the SP via the law enforcement report, provided consistent information that more than once the SP called the VA names, including “pig” and “baby.” P1 witnessed this directly and P2 had provided previous corrective coaching to the SP for making similar comments about his/her own behavior towards the VA. However, despite P2’s corrective coaching, the SP’s conduct continued unchecked, as evident by the incident in the VA’s bedroom on October 11, 2022. Therefore, there was a preponderance of the evidence that there was a failure to supply the VA with care or services, which were reasonable and necessary to maintain the VA's 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. Regarding emotional abuse: The SP was a staff person of both facility A and facility B. The SP received training on the VA’s support plans and support plan addendums; the company’s policies and procedures, including Mental Health, Crisis Response, De-escalation, and Suicide Prevention; and the Reporting of Maltreatment of Vulnerable Adults Act. The SP was responsible for emotional abuse of the VA. Regarding neglect: Multiple staff persons contacted the SP to come intervene with the VA’s maladaptive behaviors. P1 said that s/he heard similar concerns about the SP’s conduct, and there was no information P1 or any other staff person intervened in any manner that stopped the conduct and it continued for an unknown amount of time. This represented a systemic failure. Facility A was responsible for neglect of the VA. C. Serious Maltreatment: The Office of Inspector General is required to evaluate whether substantiated maltreatment by a facility meets the statutory criteria to be determined as “serious” and 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. Regarding emotional abuse: It was determined that the substantiated emotional abuse for which the SP was responsible did not meet statutory criteria to be determined as recurring or serious. The SP’s repeated actions resulted in the emotional abuse and therefore was considered a pattern of behavior, which is a single incident of maltreatment; and there was no information an act occurred that met the definition of “serious.” Regarding neglect: It was determined that the substantiated neglect for which the facility was responsible did not meet statutory criteria to be determined as serious because there was no information that, as a result of the neglect, the VA sustained a serious injury which reasonably required the care of a physician whether or not the care of a physician was sought. Action Taken by Facility: Facility A completed an internal review, and determined that policies and procedures were adequate, but not followed as it related to the Reporting of Maltreatment of Vulnerable Adults Act. “Staff did not report alleged maltreatment internally or externally to [Minnesota Adult Abuse Reporting Center] within 24 hours ….” A referral was made for the VA to explore trauma therapy, and the VA’s case manager was consulted regarding the SP’s and the G’s visit expectations. The SP was no longer allowed to work any shifts at facility A, even if short-staffed. 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. On January 11, 2023, the license holder was ordered to forfeit a fine of $1000 as a result of the substantiated maltreatment for which facility was responsible. The maltreatment determination and the Order to Forfeit a Fine are each subject to appeal. In addition, it was determined that facility mandated reporters had knowledge of the alleged incidents and did not report them as required. The license holder was ordered to forfeit a fine of $200 for failure to report maltreatment. The Order to Forfeit a Fine is subject to appeal. A copy of this report was sent to adult protective services for their review.
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