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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.”
1069244-H_DSF (245D-Home and Community-Based Service-Day Services Facility) Investigator(s): Sarah Schumacher/Kyle Youker Suspected Maltreatment Reported: Allegation One: It was alleged that a staff person engaged in “rubber band fights” with two vulnerable adults (VA1 and VA2) and rubber bands the SP “shot” hit VA1 and VA2. Allegation Two: It was alleged that the SP swore at VA1 and VA2, and “made comments” using swear words around VA1 and VA2. Allegation Three: It was alleged that the SP hit VA1 on the back of the head with a package of sausage casings. Date of Incident(s): Allegation One: Unknown date(s) prior to September 22, 2022 Allegation Two: Unknown date(s) prior to September 22, 2022 Allegation Three: Unknown date prior to September 22, 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 : 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 3, 2022; from documentation at the facility and from VA1’s residential program; and through seven interviews conducted with the SP, VA1, VA2, two facility supervisors (P1 and P2), a facility staff person (P3), and VA1’s and VA2’s guardian (G). VA1 was diagnosed with a mild intellectual disability. VA1 enjoyed going shopping, playing video games and watching football games on Sunday. VA2 was diagnosed with a mild intellectual disability and personality disorder. VA2 liked to watch and play video games. VA1 and VA2 had a job off-site from the facility, where the work was comprised of packaging bags of sausage casings into boxes for further processing at a separate location. The SP and P3 were staff persons who were responsible for three to four clients at a time, including VA1 and VA2. P1, P2, P3, and the SP were each trained on VA1’s and VA2’s plans and on the Reporting of Maltreatment of Vulnerable Adults Act. Allegation One: It was alleged that the SP engaged in “rubber band fights” with VA1 and VA2 and rubber bands the SP “shot” hit VA1 and VA2. VA1 and VA2 both stated that they engaged in “rubber band fights” with the SP. VA1 described the rubber band fights as “goofing around.” The rubber band fights involved all of the clients and the SP shooting rubber bands at each other. VA1 and VA2 stated that the job-site had a “rule” against rubber band fights. VA1 stated on one occasion that the SP shot a rubber band, and it hit VA1 in the eye, which hurt VA1’s eye. VA1 could not see for two days and went to a doctor as a result. According to documentation provided by VA1’s residential program, there was no information that VA1 was injured, or sought medical attention for an injury, similar to what VA1 described. VA2 stated that s/he was shot with a rubber band by the SP one time in the shoulder and in the neck “accidentally.” P1 stated that VA1 and VA2 each told him/her that the SP engaged in rubber band fights with the clients including VA1 and VA2. P1 denied that there were any reported injuries due to the rubber band fights. VA1 reported to P1 that the SP “shoots rubber bands frequently and they have hit him/her on occasion.” P2 stated that there were reports that SP started rubber band fights and that the SP was verbally counseled about doing so because rubber band fights “should not be happening in the first place.” P3 did not “recall any rubber band fights while I was there.” The SP acknowledged shooting rubber bands with VA1 and VA2. The SP said that s/he hit the other individuals including VA1 and VA2 in the shoes but did not hit their skin because s/he aimed the rubber bands at their feet. The SP was not aware of any time anyone was hit in the face with a rubber band. The G stated VA1 and VA2 were both accurate reporters of events. The G did not have any concerns about the facility prior to the report of incidents by the SP. Conclusion for Allegation One: Information was consistent that clients including VA1, VA2, and the SP mutually engaged in rubber band fights that consisted of shooting rubber bands at each other. VA1 stated that on one occasion, s/he was struck in the eye, which hurt. VA1 could not see for two days and went to the doctor. However, according to VA1’s residential provider’s documentation, there was no information that VA1 was injured or sought medical attention for an injury as described by VA1. The SP’s actions of engaging in rubber band fights with the clients, including VA1 and VA2, was inconsistent with the standards of a professional caregiver in a facility licensed by the Department of Human Services. However, given that it was not determined whether VA1 sustained an injury and there was no information that any other client sustained an injury; that the SP stated that s/he “aimed” the rubber bands at the clients’ feet; that VA2 stated they were “goofing around;” and that there was no information provided that any client did not want to participate, there was not a preponderance of the evidence whether all of the SP’s actions were accidental or therapeutic conduct or could reasonably produce physical injury or pain. It was not determined whether physical 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). Allegation Two: It was alleged that the SP swore at VA1 and VA2, and “made comments” using swear words around VA1 and VA2. VA1 and VA2 each stated that the SP swore at and around them but no other staff persons saw the SP do so. There were times when the SP would “just swear out of nowhere.” Each provided the following additional information: · VA1 stated that the SP said things like “knock it the F [fuck] off” and swore at VA1 “daily.” The SP also “made fun of [VA1] behind [VA1’s] back.” VA1 spoke to P1 several times about the SP’s swearing and told P1 that if the SP continued to swear, “I’ll put my two week notice in.” VA1 stated that this caused him/her to feel “rotten.” · VA2 said “a couple of times,” the SP “told me to shut the fuck up.” VA2 told the SP to stop swearing and the SP responded by swearing back at VA2. VA2 said that at first the SP’s swearing at VA2 did not bother him/her, but when the SP continued, it began to bother VA2. P1 stated that VA1 and VA2 separately spoke to him/her about the SP using swear words. VA1 said that the SP used swear words when talking to them. VA2 told P1 that the SP used swear words at him/her. VA1 and VA2 both said that the SP said, “What the hell are you doing?” and used the word “shit” a lot. P2 and the facility’s Internal Investigation & Review provided consistent information that the SP acknowledged to a “sailor’s mouth” and that s/he swore. The SP denied swearing at individuals, but that s/he swore in “normal conversations.” The SP stated that “everyone swears.” P2 stated that s/he did not witness the SP swear at or around VA1, VA2, or other clients but had heard the SP swear in conversations with P2 and other staff persons. P3 stated that s/he shared a work area with VA1, VA2, and the SP and s/he did not witness the SP swearing at or around VA1, VA2, or other clients. The SP provided the following information: · The SP acknowledged swearing in front of VA1 and VA2 and said that s/he did so “as I was talking” and that s/he “might” say, “What the hell?” However, the SP denied swearing at clients. · The SP denied telling VA2 to “shut the fuck up” and did not know why someone said s/he did. · The SP denied telling VA1 to “knock it the F off” and s/he was “dumfounded. I wouldn’t cuss like that.” The SP said s/he only used “shit, damn, or something like that.” · The SP denied having any “issues” with the VA1 or VA2. Relevant Statute: Minnesota Statute, section 245D.04, subdivision 3, paragraph (a), clause (6) which states a person’s protection related rights include the right to be treated with courtesy and respect. Conclusion for Allegation Two: A. Maltreatment VA1 and VA2 provided consistent information to P1 and this investigator that the SP swore around clients and at times swore at VA1 and VA2. VA1 said that the SP told him/her to “knock it the F [fuck] off and swore at VA1 “daily.” VA1 also said that the SP “made fun of [VA1] behind [VA1’s] back.” VA2 said that ”a couple of times,” the SP told VA2 to “shut the fuck up” P2 and the Internal Investigation & Review document the SP stated that s/he “had a sailor’s mouth,” swore as a part of his/her “normal conversation,” and swore around the clients but denied swearing at VA1, VA2, or other clients. The SP acknowledged to this investigator swearing in front of VA1 and VA2 and said that s/he did so “as I was talking” and that s/he “might” say, “What the hell?” The SP denied swearing at clients. Although the SP denied swearing at VA1, VA2, or other clients, given that the G stated that VA1 and VA2 were both accurate reporters of events; that VA1 and VA2 provided similar information regarding the SP’s statements; that the SP acknowledged swearing in “normal conversation” and had reason to minimize his/her actions for fear of repercussions, it was more likely that the SP swore around and at VA1 and VA2 on multiple occasions. This was a violation of Minnesota Statute, section 245D.04, subdivision 3, paragraph (a), clause (6). VA1 stated that the SP’s swearing made him/her feel “rotten” and that s/he wanted to quit his/her job as a result. VA2 stated at first the SP swearing did not bother him/her but after the SP continued swearing it began to bother him/her. Given this and the repeated nature of the SP’s swearing to VA1 and VA2, there was a preponderance of the evidence that the SP actions were not accidental or therapeutic and would be considered by a reasonable person to be disparaging, derogatory, humiliating, harassing, or threatening and could reasonably be expected to produce emotional distress. 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). 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 VA1’s and VA2’s plans and the reporting of Maltreatment of Vulnerable Adults Act. The SP was responsible for maltreatment of VA1 and VA2. C. Recurring and/or Serious Maltreatment: See Conclusion for Allegation Three. Allegation Three: It was alleged that the SP hit VA1 on the back of the head with a package of sausage casings. VA1 and VA2 provided the following information: · VA1 stated that part of his/her job duties were to place sausage casings into zip-lock bags and the SP checked the bags for accuracy. On an unknown date, there was a zip-lock bag with sausage casings that was not closed entirely. The SP took the bag and struck VA1 in the back of the head with it and said, “something smart to me” but VA1 could not recall what the SP said. After the SP hit VA1 in the head VA1 told the SP, “that’s assault, I’m a vulnerable adult.” VA1 showed the location where the SP struck him/her, which was on the mid to upper back of his/her head. · VA1 said it did not hurt but caused his/her head to move “a little bit.” VA1 did not sustain a mark or a bruise. VA2 saw the SP hit VA1 in the back of the head with a bag of sausage casings and saw VA1’s head move forward as a result. VA1 and VA2 each said that VA2 told VA1 to “report it to [P1].” · VA1 said that s/he told P1 that the SP hit him/her in the head and P1 said, “We’ll look into it.” P1-P3 provided the following information: · P1 stated that on an unknown date, VA1 told P1 that “one day” the SP did not like what VA1 said so the SP walked up behind VA1 and “slapped” VA1 on the back of the head with a package of sausage casings. · P2 was then notified about the incident by P1. P2 stated that a bag of sausage casings weighed roughly five ounces and was “very light.” P2 talked to the SP about the incident and the SP denied hitting anyone in the head. P2 did not speak to VA1 about the incident. · P3 stated that s/he did not see the SP hit VA1 with the package. The SP denied hitting VA1 in the head with sausage casings or any other item. The SP stated that the only context that s/he believed could be construed as hitting VA1 with sausage casings was “maybe hitting it [sausage casings] on my hand, I might have, and said, ‘Look we have to redo this.’” The SP described that when a bag of sausage casings needed to be re-packed s/he would “show [the clients] what needed to be done.” Conclusion for Allegation Three: A. Maltreatment Information from VA1 and VA2 was consistent that the SP hit VA1 in the back of the head with a bag of sausage casings. VA1 stated that it did not hurt and did not cause the VA1 any pain; though VA1 and VA2 each said it caused VA1’s head to move forward. Although the SP denied hitting VA1 in the back of the head with a bag of sausage casings, given that the SP had reason to minimize his/her actions, that VA1 and VA2 provided consistent information that the SP struck VA1 in the head with the bag of sausage casings, and that the G said that VA1 and VA2 were each accurate reporters of events, VA1’s and VA2’s information was considered more credible, and it was determined that the SP hit VA1 on the head with the bag of sausage casings. This was a violation of Minnesota Statute, section 245D.04, subdivision 3, paragraph (a), clause (6). Although VA1’s head moved forward, VA1 stated it did not hurt and there was no bruise or injury. Therefore, there was not a preponderance of the evidence whether physical abuse occurred. It was not determined whether physical 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). However, hitting someone in the head with any object was not accidental or therapeutic conduct and would be considered by a reasonable person to be disparaging, derogatory, humiliating, harassing or threatening and could reasonably be expected to produce emotional distress. 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). 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 VA1’s plans and on the Reporting of Maltreatment of Vulnerable Adults Act. The SP was responsible for the maltreatment of VA1. The SP was responsible for maltreatment of VA1. 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 emotional abuse for which the SP was responsible for in Allegations Two and Three was not serious maltreatment because it did not meet the definition for “serious maltreatment.” However, the substantiated emotional abuse for which the SP was responsible for was recurring maltreatment because the SP was responsible for the emotional abuse of VA1 and VA2. The SP was disqualified from providing direct contact services. Action Taken by Facility: The facility conducted 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 disqualified from a position allowing direct contact with, or access to, persons receiving services from 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. 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 violations outlined in this report.
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