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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: 1082638-SUD (Substance Use Disorder) Investigator(s): Sarah Schumacher/Kyle Youker Suspected Maltreatment Reported: It was alleged that a staff person (SP) had a personal relationship, including sexual contact, with a vulnerable adult (VA) at the facility. Date of Incident(s): Ongoing prior to October 18, 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 (c); and subdivision 17, paragraph (a): Any sexual contact or penetration between a facility staff person or a person providing services in the facility and a resident, patient, or client of that facility. Sexual contact is defined by Minnesota Statutes, section 609.341, as the intentional touching of the intimate parts with sexual or aggressive intent. 'Intimate parts' includes the primary genital area, groin, inner thigh, buttocks, and breast. 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 during a site visit conducted on October 27, 2022, including documentation from the facility; and through five interviews conducted with the SP, two administrative staff persons (P1 and P2), a supervisory staff person (P3), and a staff person (P4). The VA declined to be interviewed by this investigator. However, the VA provided information to P1, P2, P3, and P4, and to a law enforcement officer (LEO) so that information was included below. The facility had two stories and a basement. The facility had long hallways that lead into various wings. Each resident room was approximately 12 feet by 12 feet with two or three residents per room. The basement and second-floor were accessed by multiple stairwells on multiple separate wings of the facility. The basement had no visible windows with the exception of various egress windows. There was an area in the basement that only staff persons could access. Facility documentation showed that on July 19, 2022, the VA was admitted to the facility and received substance use disorder treatment until October 20, 2022. The VA was diagnosed with stimulant addiction and anxiety. The VA’s strengths were that s/he was “staying positive” and “being a people person.” The VA’s goals were to remain abstinent from all mood altering substances and to find positive people in his/her life. The VA was not subject to guardianship. Interviews with P1, P2, P3, and P4, and facility documentation provided the following information: · A facility resident told P1 and P2 that an unnamed staff person was “crossing boundaries” with “residents.” The resident would not name the staff person but named the VA and said that the VA had a cell phone. The resident would not provide further details. · P1 and P2 conducted a search of the VA’s room and person. The room search revealed two post-it notes. One post-it note stated, “You are a spoiled brat, haha,” with a smiley face drawn on it. The other post it note stated, “Call me tonight,” with a heart drawn on it. A cell phone was also located in the VA’s items. · P1 and P2 compared the hand writing on the post-it notes with the hand writing of several staff persons and the SP was identified as the staff person whose handwriting matched. · P1, P2, and P3 met with the SP and asked him/her about the notes. The SP initially denied writing notes to the VA. P1 showed the SP the post it notes found in the VA’s room asking the SP if s/he recognized them. The SP stated, “Oh, I remember,” and said s/he wrote the notes. The SP “admitted” to having conversations with the VA about “topics unrelated to work,” in various areas of the facility, including the VA’s room, and that they talked on the phone when the SP was not at the facility. When asked to “elaborate” on the nature of the conversations, the SP stated, “Just life in general.” The SP “admitted” to a personal relationship, but denied that any sexual contact occurred between the SP and the VA. · P1 and P2 were going to talk to the VA next, but then the VA went to P2 and said that s/he had “suicidal ideations” because the VA was “mentally and sexually” abused by a staff person (the VA would not name the staff person and would not provide further information). The VA wanted to go to a hospital so s/he was taken there. · The next day, the VA came back to the facility and P1, P2, P3, and P4 met with the VA. Initially, the VA was “cryptic,” did not want to share information, and said that a staff person was having conversations with the VA that were “not related to work.” When asked for the staff person’s name, the VA said, “No, I don’t want to get anyone in trouble. I just want you guys to know about it.” (Note: During this conversation, the VA did not name the SP but described details about the SP’s personal life that led P1, P2, P3, and P4 to deduct the VA was referring to the SP.) Later in the conversation, the VA stated, “I got played,” and said that the VA and the staff person had “emotional intimacy.” The VA “admitted” there was “more” but did not want to get “anyone in trouble” so initially did not disclose further details. However, further into the conversation, the VA said that the VA and the staff person had sexual contact in the basement of the facility in the area where only staff persons could access. P1, P2, and P4 did not recall the details the VA gave regarding sexual contact. P3 recalled that the VA said that the staff person “gave [the VA] oral [sex] and [they] made out.” The VA did not provide further details. · The next day, the VA discharged from the facility. · P1 and P2 each stated that the SP’s job duties required that s/he go into resident rooms including the VA’s. All staff persons were given training on boundaries and were to have professional relationships with residents. When interviewed by the LEO, the VA stated that the SP initially began speaking with the VA a few days after the VA moved into the facility. The SP then gave the VA a phone number to call the SP. A few days after that, the SP gave the VA a cell phone to contact the SP with. The VA stated that the SP would come to the VA’s bedroom during room checks and the SP and the VA would kiss. The VA stated that the SP performed oral sex on the VA in the VA’s bedroom and the VA thought this occurred eight to ten times. The SP provided the following information: · The SP’s job responsibilities included locating residents to ensure that they attended classes, checking residents in and out of the facility, and arranging activities for the residents. · According to the SP, the conversations between the SP and the VA in the first week and a half the VA was at the facility were cordial in nature. · Following that, the VA and the SP began communicating via telephone after the SP’s workday was over. The SP gave the VA a “burner number” (a slang term in common usage where an application on a cellular telephone creates a temporary disposable telephone number) to contact the SP on. At that point, the conversations between the SP and the VA became more “in-depth and personal.” · On one occasion, the SP and the VA had a conversation about “hooking up sexually” but the SP stated that they ended the conversation and that there were never any plans to have sexual contact. · The SP denied having sexual contact with the VA but stated that the SP and the VA kissed on the lips on one occasion at the facility. The SP stated that on October 13, 2022, the SP “ended” the relationship with the VA and had not talked to the VA since. · The SP was trained on boundaries and informed that relationships with residents were to be professional. When interviewed by the LEO, the SP initially stated that s/he and the VA only kissed two times. Then, the SP stated that s/he performed oral sex on the VA, though it was only on one occasion. The SP denied bringing the VA a cell phone. The LEO sent a report to a county attorney for possible charging which was still pending at the time of this report. The facility’s Personal Relationships policy stated that “employees must have no personal, sexual, business or social relationships with a client or former client.” Facility documentation showed that the SP, P1, P2, P3, and P4 were each trained on the facility’s Personal Relationships policy, the VA’s plans, and on the Reporting of Maltreatment of Vulnerable Adult’s Act. Conclusion: A. Maltreatment: Regarding sexual abuse: The VA provided consistent information to the LEO about the SP and to P1, P2, P3, and P4 about an unnamed staff person which each determined to be the SP, that the SP and the VA had conversations on the phone when the SP was not working at the facility and that the SP performed oral sex on the VA. Additionally, the VA told the LEO that the SP and the VA kissed when the SP did room checks, and that the SP performed oral sex on the VA on eight to ten occasions at the facility. Initially, the SP stated that the SP and the VA had a nonprofessional relationship but denied a sexual relationship. Then, the SP told this investigator that s/he kissed the VA on the lips on one occasion but still denied sexual contact. Then, when interviewed by the LEO, the SP told the LEO that the SP and the VA kissed twice and that on one occasion, the SP performed oral sex on the VA. Even though the SP and VA provided conflicting information with each other regarding how many time sexual contact occurred, and that the SP initially denied having sexual contact, given that the SP and the VA said that the SP performed oral sex on the VA, there was a preponderance of the evidence that the SP had sexual contact with the VA. It was determined that sexual abuse occurred (any sexual contact or penetration between a facility staff person or a person providing services in the facility and a resident, patient, or client of that facility. Sexual contact is defined by Minnesota Statutes, section 609.341, as the intentional touching of the intimate parts with sexual or aggressive intent. 'Intimate parts' includes the primary genital area, groin, inner thigh, buttocks, and breast. Regarding neglect: In addition, the SP and the VA provided consistent information that the SP kissed the VA and had a nonprofessional relationship with the VA. Given the VA’s history of substance use disorder, it was reasonable that the VA would continue to need supports to develop and maintain the necessary life and social skills to maintain sobriety. The SP’s interactions with the VA hindered the VA’s ability to have a consistent understanding of the parameters of a therapeutic relationship which could interfere with other individuals’ attempts to provide therapeutic services to the VA, both now and in the future. Therefore, there was a preponderance of the evidence that the SP failed to maintain professional boundaries and that the SP’s interactions with the VA were detrimental to the VA’s ongoing mental health. 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 was trained on the Personal Relationships policy and on the Reporting of Maltreatment of Vulnerable Adults Act. 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 and sexual abuse for which the SP was responsible was not recurring maltreatment because the SP’s interactions with the VA met two definitions of maltreatment and it was not determined whether the SP and the VA had sexual contact on more than one occasion. However, it was serious maltreatment because the SP was responsible for sexual abuse of the VA. 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 no longer worked at the facility. Action Taken by Department of Human Services, Office of Inspector General: The SP was notified that s/he was responsible for serious maltreatment and that any future background studies for facilities, programs, organizations, and/or agencies that are required to have individuals complete a background study by the Department of Human Services as listed in Minnesota Statutes, section 245C.03, will result in his/her disqualification. The determination that the SP was responsible for maltreatment is subject to appeal.
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