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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: 1100707-H_CRS (Home and Community-Based Services-Community Residential Setting) 1070397-HCBS (Home and Community-Based Services) Investigator(s): Jason Pehler 651-431-4830 Suspected Maltreatment Reported: It was reported that during a transfer a staff person (SP) called a vulnerable adult (VA) names and hit the VA. Date of Incident(s): November 16, 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 (b), clauses (1) and (2): 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 December 1, 2022; from documentation at the facility; and through six interviews conducted with the VA, a facility staff person (P1), a facility supervisor (P2), the VA’s case manager (CM), the VA’s guardian (G), and the SP. The VA enjoyed spending time with his/her family, and made multiple trips a year to Washington to visit family. The VA liked listening to music and audio books. The VA was described as kind and positive, and it was important for other people to identify themselves to the VA as s/he was legally blind. The VA was diagnosed with developmental disabilities, used a wheelchair for all ambulation, and was unable to bear weight on his/her legs. The VA required assistance with all of his/her personal hygiene/cares. A Hoyer lift and transfer slide board were used to assist the VA’s transfers. The transfer board was made of wood, and approximately three feet by one foot in size. The transfer board was placed under the VA’s legs/bottom during transfers. The VA had a history of engaging in agitated behaviors while completing non-preferred tasks. The VA’s client specific programming showed the VA was susceptible to physical abuse, and had a history of occasional physical aggression towards staff persons. The VA did not like when staff persons/people yelled or became physically aggressive. A “bad day” for the VA would include his/her decisions not being respected, and it was important to the VA to have his/her preferences and choices honored. Interviews with P1 and P2, and the facility’s Internal Investigation provided the following information: · P1 said s/he was present during the incident and observed the SP call the VA names and hit the VA. P1 was within a few feet of the SP and VA when the incident occurred and observed the following: o P1 was standing near the VA’s bed, approximately three or four feet from the SP and VA, when the incident occurred. P1 said the SP was not using the transfer board correctly and the SP was “forcing” the board under the VA’s leg, to which the VA said, “Oww.” The VA became “flustered” when the transfer board was being used and swung his/her arms, and accidentally hit/scratched the SP. The SP proceeded to grab the VA’s arm, and slapped the VA’s forearm with the SP’s opposite hand. During the interaction the SP said, “What the fuck is wrong with you,” and said the VA acted like a “little asshole,” towards the SP. Additionally, the SP called the VA “rude,” “stupid,” “dumb fucker,” and “son of a bitch.” o The SP left the VA’s bedroom and P1 took over the care of the VA. P1 observed a red mark, which appeared to be three fingers, on the VA’s forearm. The VA cried after the SP left the bedroom, but P1 said the VA went to bed without any further incident. o P1 said based on his/her observation the slap by the SP was not accidental. o P1 did not observe any bruising on the VA’s forearm the day following the incident. · On November 20, 2022, at 9:08 p.m., P1 sent P2 an email detailing a concern related to the VA and the SP. Within the email P1 said the SP was assisting the VA with his/her bedtime routine/transfer and P1 observed the following: o The VA said, “Oww,” as the SP “was aggressively pushing the transfer board under [the VA’s] leg.” o The VA pushed the SP away and the SP “proceeded to yell at [the VA] and called [the VA] stupid.” o Thereafter the SP asked the VA, "Why are you always a little asshole to me?" o The SP proceeded to continue “shoving the board” under the VA’s leg as the VA said, “Owww oww,” and “started flapping [his/her] arms.” o The VA hit the SP on the arm, but P1 described the hit as “not hard” and the VA had struck the SP because the VA was saying, “Stop,” but the SP would not. o The SP responded by hitting the VA on the arm aggressively and proceed to yell at the VA and called him/her a "fucking asshole" and "stupid." o Thereafter P1 assisted the VA with the remainder of getting ready for bed without further issue. The VA was crying and upset due to the interaction with the SP. o P1 did not observe any marks on the VA’s arm from the physical altercation. · P2 was not present for the incident, and the information P1 provided was consistent with that from the facility’s internal review. P2 added that a facility nurse (N) completed an assessment and there were no injuries or concerns noted. P2 said the VA was an accurate reporter of information. · On November 21, 2022, at 3:55 p.m., P2 discussed the alleged maltreatment with P1. P1 provided consistent information as stated above, but added the SP was scratched during the incident and the SP had struck the VA on his/her right forearm. P1 said the VA was crying and P1 “sent” the SP out of the VA’s bedroom after the incident. · On November 21, 2022, at 6:09 p.m., P3 arrived at the facility and completed an assessment on the VA. P3 provided the following information: o The VA transferred to his/her bed and denied being in any pain. P3 did not observe any marks or injuries to the VA. o The VA told P3 s/he had concerns with the SP and did not want him/her to work at the facility. o The VA said s/he became upset after the SP decided it was time for the VA to go to bed. The SP started using the transfer board, and the VA scratched the SP. The SP responded by hitting the VA’s hand. The VA also said the SP “yelled” at him/her and called the VA “rude.” The VA felt scared and the SP walked away thereafter, and P1 assisted the VA at that time. · On November 22, 2022, the N completed a medical assessment on the VA. There were no specific details related to the assessment included in the facility’s Internal Investigation. · The SP was interviewed by the facility and said s/he was “hesitant” to work at the facility due to the VA and his/her behaviors. The SP and P1 assisted the VA to get ready for bed, and the VA became upset after the SP asked the VA to lift his/her legs so the transfer board could be placed under the VA’s legs. The VA preceded to hit the SP’s hand, and the SP pushed the VA’s hand down to prevent any further physical contact and the SP stepped back from the VA. The SP attempted to re-engage the VA, however his/her behaviors continued. Thereafter the SP asked P1 to assist the VA, and asked the VA why s/he was being “rude,” and said s/he would inform P2 of the VA’s behaviors. The SP denied calling the VA any names. · The SP would no longer work with the VA. The VA provided the following information: · The VA was in his/her bedroom and the SP started assisting the VA with his/her bedtime routine. The VA was in his/her wheelchair and the SP attempted to transfer the VA using his/her transfer board. During the attempted transfer the VA tried to push the SP away, however the SP yelled at the VA and hit the VA’s arm. The VA said after the incident s/he had some bruising to his/her arm and cried. The VA was “scared” of the SP after the interaction with the SP. · P1 assisted the VA with the remainder of his/her bedtime routine after the incident occurred. · The VA said s/he did not like the SP prior to the incident. The G had no concerns with the facility and there were times the VA did not want to go to bed. The G said the VA seemed honest regarding what s/he “did wrong”, but also what the SP had done “wrong.” The SP provided the following information: · The SP denied any abuse or neglect occurred, and said s/he did not hit the VA or using any derogatory statements towards the VA. The SP said during the interaction s/he asked the VA why the VA was being “rude” to the SP because the SP was trying to help the VA. The SP left the bedroom thereafter, but did not observe the VA crying during or after the alleged incident. · The SP said prior to the incident s/he was a “little bit scared” of the VA, and had asked P1 to assist with the VA’s transfer. While using the transfer board, the SP lifted the VA’s leg. The VA became angry and grabbed/scratched the SP’s hand. The SP used his/her other hand to move the VA’s hand onto his/her lap. The SP said the VA did not have any injuries, but the VA scratched the SP’s arm/hand. The SP, P1, and P2 received training on the client specific programming, the facility’s policies and procedures, and the Reporting of Maltreatment of Vulnerable Adults Act. Conclusion: A. Maltreatment: Information showed that on November 20, 2022, the SP and P1 were assisting the VA with his/her bedtime routine including transferring the VA. The VA and P1 provided consistent information that the SP said and engaged in a verbal and physical altercation with the VA. Both stated that the SP grabbed and hit the VA’s arm and “yelled” at the VA. In addition, P1 stated that the SP made multiple derogatory comments toward the VA including calling the VA “stupid,” “son of a bitch,” “rude,” and “dumb fucker.” P1 also stated that the SP asked the VA why the VA was a “little asshole,” and “what the fuck is wrong with you.” P1 said after the incident the VA was crying, however P1 provided inconsistent information to whether or not there were marks on the VA after the incident occurred. P1 told this investigator that there were red fingerlike marks on the VA immediately following the incident but no marks the following day and P1 told P2 in an email that there were no marks observed. On the days following the incident the N and P3 completed assessments of the VA and there were no observed injuries. The SP denied making any derogatory statements towards the VA and denied hitting the VA. The SP stated that when the VA grabbed/scratched the SP’s hand, the SP used his/her other hand to move the VA’s hand away. Although the SP denied hitting the VA and denied making derogatory comments to the VA, given that the SP had reason to minimize his/her actions because of the consequences of those actions; that P1 witnessed the incident; and that the VA and P1 provided consistent information that the SP made multiple derogatory comments and grabbed and hit the VA’s arm, there was a preponderance of the evidence that the SP engaged in non-accidental conduct which could reasonably be expected to produce emotion distress and non-accidental conduct that produced physical pain or injury. It was determined that physical and 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 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). 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 received training on the Reporting of Maltreatment of vulnerable Adults Act, the facility’s policy and procedures, and on the VA’s specific programming prior to this incident. The SP was responsible for 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 for which the SP was responsible did not meet statutory criteria to be determined as “recurring” because although the SP was responsible for two types of maltreatment, it was a single incident or “serious” because the VA did not have a bruise or an injury that required treatment by a physician. Action Taken by Facility: The facility completed an internal review and determined that the policies and procedures were adequate, but not followed. The facility completed additional staff training. The facility protected the persons that received services, and the SP no longer worked with the VA. The report was not similar to past events as the VA. 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.
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