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MALTREATMENT INVESTIGATION MEMORANDUM Minnesota Statutes, section 260E.01, paragraph (a), “The legislature hereby declares that the public policy of this state is to protect children whose health or welfare may be jeopardized through maltreatment.”
License Number and Program Type: 1010657-CRF (Children’s Residential Facility) Investigator(s): Carla Harvieux Suspected Maltreatment Reported: Allegation One: It was reported that a staff person (SP) pushed an alleged victim (AV1) to the ground during a kickball game at the facility causing AV1 rib pain. Allegation Two: It was reported that the SP pushed an alleged victim (AV2) onto AV2’s bed and held him/her by the back of the neck. Date of Incident(s): September 14, 2022 Nature of Alleged Maltreatment Pursuant to Minnesota Statutes, section 260E.03, subdivision 18, paragraph (a), and subdivision 23, paragraph (a): "Physical abuse" means any physical injury, mental injury, or threatened injury, inflicted by a person responsible for the child's care on a child other than by accidental means. "Threatened injury" means a statement, overt act, condition, or status that represents a substantial risk of physical or sexual abuse or mental injury. Summary of Findings: Pertinent information was obtained during a site visit conducted on October 10, 2022; from documentation at the facility, records from a law enforcement agency, and AV2’s medical records; and through six interviews conducted with facility staff persons (P1, P2, P3, and the SP), AV1, and AV2, and information in the Internal Review provided by a child (C) who resided at the facility. The facility provided comprehensive evaluations to children 11-18 years of age in a therapeutic setting and made specific treatment recommendations for each child to meet the child’s individual needs. Children who resided at the facility might be there because they needed personal/family crisis protection, had run away, had high risk or self-injurious behaviors, or needed respite care. At the facility, children received various assistance including mental health treatment, family assessment, trauma focused care, chemical dependency education, on site schooling, dialectical behavioral therapy, medical management, or other services as needed. Facility documentation, records from a law enforcement agency, medical records, information provided by the AVs, the C, P1, P2, P3, and the SP in interviews with this investigator; and information from facility’s Internal Review, provided the following information: Allegation One: It was reported that the SP pushed AV1 to the ground during a kickball game at the facility causing AV1 rib pain. AV1 said that on the date of the incident, s/he and other unspecified children played kickball with the SP on the grounds of the facility. AV1 thought that the SP was “cheating” at the game because the SP would not let AV1 kick the ball again, so AV1 picked up a “stick” and approached the SP with it, but did not make contact with the SP. When AV1 neared the SP, AV1 used an expletive toward the SP, who then “shoved” AV1 on his/her right side, which caused AV1 to fall to the ground. P1 said that s/he was playing a game of kickball with the SP, AV1, and other children on the date of the incident. When it was AV1’s turn to kick, s/he kicked the ball, but slipped on loose sand and fell. The SP and some of the children laughed at AV1 and s/he became upset. AV1 stated that s/he was “done” playing and walked away from the game followed by P1, but when AV1 reached the facility entrance, s/he turned, picked up a “sharp stick,” ran toward the SP with the stick in his/her hand, and attempted to stab the SP. The SP dodged AV1 then shoved AV1 to the ground with his/her palm, hitting AV1 on his/her right upper shoulder/chest. AV1 fell to the ground, gasped for air, cried, and screamed that his/her ribs hurt. AV1 then stood and walked away from the SP, and P1 followed him/her, guiding AV1 into the facility. P1 assessed AV1 for injuries but did not see any, but since AV1 said that s/he had pain near his/her right ribs, P1 asked a facility health care professional (HCP) to assess AV1 for injuries. P1 thought that the SP was attempting to prevent AV1 from harming the SP and said that the SP’s actions seemed to be a more of a reaction. Documentation showed that the HCP observed no injuries to AV1, but AV1 had a few bruises on his/her left side that appeared to be a few days old. AV1 told the HCP that s/he had no pain. The SP said that when s/he was pitching the ball during the kickball game, AV1 screamed at the SP that s/he was going to “fuck” him/her up, and called the SP a “cheating piece of shit.” The SP turned toward AV1, who was not initially in the SP’s line of sight, and saw AV1 running toward the SP with a stick raised in the air. The SP was startled and attempted to move aside, but AV1 ran into the SP, hit the SP’s hand with the stick, and fell onto the ground, landing on his/her bottom. AV1 stood and yelled at the SP, so the SP backed away from AV1. P1 then redirected AV1 and walked inside the facility with him/her. The SP ended the kickball game, walked inside the facility with the youths, and told P2 what happened during the game. P2 told the SP to leave the facility for the day, because someone told P2 that the SP pushed AV1. The incident occurred very quickly and the SP reacted when s/he saw AV1 coming toward him/her with the stick. The SP was unable to describe the size of the stick, but denied that s/he pushed AV1 and immediately left the facility when P2 told him/her to go. P2 and P3 provided consistent information that pushing a child to the ground was not a permitted action at the facility. P2 and P3 contacted the SP to gather information to complete the Internal Review for this incident but the SP did not respond to them. The facility’s Policy and Procedure Manual stated that staff persons were prohibited from using corporal punishment including rough handling, shoving, ear or hair pulling, shaking, slapping, kicking, biting, pinching, throwing objects at children, or spanking them. Restrictive procedures were approved for use by certified staff persons included physical escorts or physical holds in emergency situations as a response to imminent danger to residents or when less restrictive interventions were ineffective. The facility’s personnel and training records showed that staff persons interviewed for this report were trained on the Maltreatment of Minors Act prior to the incident and on the AVs’ plans. The SP was most recently trained on the facility’s policies and procedures on April 4, 2022. Conclusion for Allegation One: Information was consistent that on September 14, 2022, the SP, P1, AV1, and several unidentified children participated in a kickball game at the facility. AV1 said that s/he thought the SP was “cheating” at the game and s/he ran toward the SP with a stick but did not hit the SP with it. The SP said that AV1 used threatening language to him/her, ran at the SP with a stick, startled the SP, and hit the SP’s hand with the stick. The SP attempted to step aside, but AV1 ran into the SP and fell onto his/her bottom. P1 assisted AV1 to enter the facility, the SP ended the kickball game, and P2 told the SP to leave the facility for the day, because someone told P2 that the SP pushed AV1. P1 witnessed the incident and observed the SP shove AV1 to the ground but thought that the SP’s actions were more of a reaction. AV1 gasped for air when s/he fell, cried, and said that his/her ribs hurt, so P1 asked the HCP to assess AV1. The HCP documented that AV1 had no injuries and told the HCP that s/he had no pain. Although the SP stated that AV1 “ran into” the SP when the SP was startled and tried to move out of AV1’s way causing AV1 to fall, AV1 and P1 each stated that the SP “shoved” AV1 to the ground. However, given that P1 stated the SP’s actions were reactionary, that AV1’s behavior was aggressive at the time of the incident, and that AV1 was not injured, there was not a preponderance of the evidence that the SP’s actions caused injury or represented substantial risk of physical injury to AV1. It was not determined that physical abuse of AV1 occurred ("physical abuse" means any physical injury, mental injury, or threatened injury, inflicted by a person responsible for the child's care on a child other than by accidental means. "Threatened injury" means a statement, overt act, condition, or status that represents a substantial risk of physical or sexual abuse or mental injury). Allegation Two: It was reported that the SP pushed AV2 onto AV2’s bed and held him/her by the back of the neck. AV2 was admitted to the facility on September 13, 2022, and on September 14, 2022, the SP assisted him/her to wash some of his/her laundry at the facility. The SP asked AV2 to remove a string tie from the waist band of his/her shorts because children at the facility could not wear clothing items with strings/ties. AV2 did not want to remove the string tie from the shorts and did not immediately respond to the SP’s request. An argument between the SP and AV2 began, and the SP attempted to take the string from AV2’s shorts, pushed AV2 face down onto his/her bed, and held AV2 by the back of his/her neck and squeezed for about ten seconds. The C stated that s/he witnessed the incident between AV2 and the SP. The SP had AV2 “by the back of the neck, pinned down to the bed,” so the C called out for assistance from P2. When the SP heard the C call for P2, the SP released AV2. P2 heard the C call, and immediately went to AV2’s bedroom where s/he assessed AV2 for injuries but did not observe marks on AV2’s neck. However, P2 asked the HCP to assess AV2. The HCP documented that AV2 had no bruises or marks on his/her skin, had full range of motion, and reported mild pain when s/he bent his/her neck. AV2 was offered a warm/cold pack, but s/he declined. The HCP instructed AV2 to contact a staff person or the HCP if s/he had worsening pain. No information showed whether AV2 was assessed for injuries after the date of the incident. However, on September 16, 2022, AV2 said s/he had neck pain and was evaluated by a community health care professional who diagnosed AV2 with a soft tissue bruise, according to documentation completed by the HCP. Medical records for AV2 showed that on September 16, 2022, s/he was evaluated at the emergency department of a hospital for neck pain. AV2 told hospital employees that an unspecified facility staff person attempted to place him/her in a hold two days earlier. AV2 initially had no pain, but now, his/her neck hurt. AV2 denied that s/he had difficulty breathing and had normal range of motion, but there were undescribed “signs of injury and trauma” present with muscular tenderness. AV2 was diagnosed with a bruise on his/her neck and instructed to use acetaminophen and ibuprofen for pain relief, then discharged back to the facility. The SP said that s/he had been involved in holding youths at the facility several times but did not recall asking AV2 for a string from his/her shorts or holding AV2 on the date of the incident. The SP denied that s/he pushed AV2 onto his/her bed or held AV2 by the neck on his/her bed. The SP said that youths had hit him/her many times in the face and on his/her body during the time s/he worked at the facility but it was part of the job. The SP thought that s/he followed facility policies and procedures and said that the facility did not give him/her information regarding the allegations investigated in this report. Records from a law enforcement agency showed that the agency investigated the September 14, 2022, incident between the SP and AV2. AV2 told a law enforcement officer (LEO) that the SP argued with AV2 regarding removing a string from AV2’s shorts, then placed both hands on AV2’s neck and squeezed for about ten seconds, then let go. The SP told the LEO that children at the facility were not permitted to wear clothing with strings/ties for safety reasons and that s/he went to AV2’s bedroom on the date of the incident to remove a string tie from AV2’s shorts. AV2 then swore at the SP, and punched, hit, and kicked the SP to get the string tie from the SP. The SP put AV2 in a “safety hold” by holding AV2’s hands behind his/her back to prevent AV2 from punching him/her until AV2 calmed. The SP said that the incident lasted about 20 seconds and denied that s/he had other physical contact with AV2. The law enforcement agency completed its investigation and took no further action. P1 and P2 provided consistent information that the SP was contacted regarding this incident to complete the Internal Review, but s/he did not respond to attempts to reach him/her. No information showed that AV2 was using the string/tie in his/her shorts with the intention of harming him/herself or others at the time of the incident. The facility’s Policy and Procedure Manual stated that staff persons were prohibited from using corporal punishment including rough handling, shoving, ear or hair pulling, shaking, slapping, kicking, biting, pinching, throwing objects at children, or spanking them. Restrictive procedures were approved for use by certified staff persons included physical escorts or physical holds in emergency situations as a response to imminent danger to residents or when less restrictive interventions were ineffective. Holding a resident by the back of the neck on a bed was not an approved technique. The facility’s personnel and training records showed that staff persons interviewed for this report were trained on the Maltreatment of Minors Act prior to the incident and on the AVs’ plans. The SP was most recently trained on the facility’s policies and procedures on April 4, 2022. Relevant Rules: Minnesota Rules, chapter 2960.0050, subpart 2, item E states that a resident has the basic right to be free from abuse, neglect inhumane treatment, and sexual exploitation. Minnesota Rules, chapter 2960.0050, subpart 2, item R states that a resident has the basic right be free from restraint or seclusion used for a purpose other than to protect the resident from imminent danger to self or others, except for the use of disciplinary room time as it is allowed in the correctional facility's discipline plan. Conclusion for Allegation Two: A. Maltreatment: AV2 provided consistent information to the law enforcement agency and this investigator that the SP placed his/her hands on AV2’s neck and held him/her on September 14, 2022. The C said that s/he witnessed the SP hold AV2 by the back of the neck on his/her bed, and called for P2, who responded immediately. P2 did not see the incident but asked the HCP to assess AV2 for injuries. The HCP documented that AV2 had no injuries and had full range of motion, but had mild neck pain and was offered a hot/cold pack. Two days later, AV2’s neck pain continued and s/he was evaluated at the emergency department of a hospital. AV2 had a bruise on his/her neck and s/he was instructed to use over the counter pain relievers. The SP told this investigator that s/he did not push AV2 onto his/her bed and hold him/her, however according to the law enforcement agency’s records, the SP provided conflicting information and stated that s/he put AV2 in a “safety hold” by holding AV2’s hands behind his/her back until AV2 calmed while the SP obtained a string/tie from AV2’s shorts. Although the SP told this investigator that s/he did not hold AV2 and told the LEO that s/he held AV2’s hands, not his/her neck, given that the SP had reason to minimize his/her actions, that AV2 and the C provided corroborating information that the SP held AV2 by the back of his/her neck, and that AV2 had a bruise on his/her neck, AV2’s and the C’s account of the incident was more credible. Holding a child by the back of the neck was against facility policies and procedures, not accidental or therapeutic conduct, inconsistent with the standards of a professional caregiver in a facility licensed by the Department of Human Services, and a violation of Minnesota Rules, chapter 2960.0050, subpart 2, item E and Minnesota Rules, chapter 2960.0050, subpart 2, item R. Therefore, there was a preponderance of the evidence that the SP’s actions caused an injury to AV2 and represented a substantial risk of physical injury. It was determined that physical abuse occurred ("physical abuse" means any physical injury, mental injury, or threatened injury, inflicted by a person responsible for the child's care on a child other than by accidental means. "Threatened injury" means a statement, overt act, condition, or status that represents a substantial risk of physical or sexual abuse or mental injury). B. Responsibility pursuant to Minnesota Statutes, section 260E.30, subdivision 4, paragraph (a), clauses (1) and (2): When determining whether the facility or individual is the responsible party, or whether both the facility and the individual are responsible for determined maltreatment in a facility, the investigating agency shall consider at least the following mitigating factors: (1) whether the actions of the facility or the individual caregivers were according to, and followed the terms of, an erroneous physician order, prescription, individual care plan, or directive; however, this is not a mitigating factor when the facility or caregiver was responsible for the issuance of the erroneous order, prescription, individual care plan, or directive or knew or should have known of the errors and took no reasonable measures to correct the defect before administering care; (2) comparative responsibility between the facility, other caregivers, and requirements placed upon an employee, including the facility’s compliance with related regulatory standards and the adequacy of facility policies and procedures, facility training, an individual’s participation in the training, the caregiver’s supervision, and facility staffing levels and the scope of the individual employee’s authority and discretion; and (3) whether the facility or individual followed professional standards in exercising professional judgment. The SP was responsible for the care and supervision of AV2 when the incident occurred and was trained on the facility’s policies and procedures on April 4, 2022. The SP was responsible for the maltreatment of AV2. 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 abuse for which the SP was responsible was not recurring because it was a single incident. The substantiated physical abuse for which the SP was responsible was serious because AV2 sustained a bruise to his/her neck during the incident. Pursuant to Minnesota Statutes, section 260E.35, subdivision 6, paragraph (c) all investigative data maintained in this report will be kept by the Department of Human Services for at least ten years after the date of the final entry in the report. Action Taken by Facility: The facility completed an Internal Review which determined that its policies and procedures were adequate but were not followed by the SP. When this report was written, the SP was no longer employed at the facility. Action Taken by Department of Human Services, Office of Inspector General: Given that the facility took immediate corrective action, the facility was not issued a correction order for the violation outlined in this report. 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. Certification: The information collection procedures followed in this investigation were pursuant to Minnesota Statutes, section 260E.30, subdivision 6, paragraph (c). All individuals that are subjects of data in this investigation have the right to obtain private data on themselves which was collected, created, or maintained by the Department of Human Services.
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