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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: 1068295-H_CRS (Home and Community-Based Services-Community Residential Setting) Investigator(s): Alice Percy 651-431-6569 Suspected Maltreatment Reported: It was reported that a staff person (SP) attempted to implement a manual restraint on a vulnerable adult (VA) even though the VA had not aggressed toward the SP. The SP then grabbed the VA and moved him/her to the floor and dragged the VA by the wrists to the VA’s bedroom. Date of Incident(s): December 2, 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), (3), and (4): 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. · Use of any aversive or deprivation procedure, unreasonable confinement, or involuntary seclusion, including the forced separation of the vulnerable adult from other persons against the will of the vulnerable adult or the legal representative of the vulnerable adult; and · Use of any aversive or deprivation procedures for persons with developmental disabilities or related conditions not authorized under section 245.825. Summary of Findings: Pertinent information was obtained during a site visit conducted on January 13, 2023; from documentation at the facility; and through six interviews conducted with two facility staff persons (P1 and P2), an administrative staff person (P3), the VA, the SP, and the VA’s guardian (G). The VA’s diagnoses included blindness, autism, attention-deficit hyperactivity disorder (ADHD), and obsessive-compulsive disorder (OCD). The VA enjoyed spending time with his/her friends and family members, singing, listening to music, going out to eat, swimming, boating, and spending time around animals. According to the VA’s Individual Abuse Prevention Plan, when angry or upset, the VA might hit or kick things and “inadvertently” injure him/herself. The VA sometimes engaged in self-injurious behaviors. If the VA was in imminent risk of harm, the staff persons were trained to implement a manual restraint. According to the VA’s Intensive Support Self-Management Assessment, the VA often pulled at strings on his/her clothing and the put them in his/her mouth. The VA was at risk of bruising due to having a low platelet count and also due to his/her blindness increasing the chance of the VA bumping into objects. The staff persons were to document all of the VA’s bruising. The VA did not accurately report injury or illness. The VA sometimes engaged in property destruction or self-injurious behaviors. The facility was located in a rambler-style home. The main living areas of the facility including the kitchen, living room, and family room were located on the main level. The VA’s bedroom was also located on the main level. The living room was located at the front of the house and a short hallway along the side of the living room led straight back to the VA’s bedroom at the back of the house. The VA stated that the staff persons, including the SP, were “nice” and s/he did not recall any times when s/he did not like the SP’s actions. P1, P2, P3, and the SP, and the facility’s documentation provided the following information: · On December 2, 2022, P1 and the SP worked at the facility. That evening at approximately 8:45 p.m., the VA began to rip his/her bedding while s/he was in his/her bedroom. Because the VA was at risk of ingesting pieces of his/her torn bedding, the SP and P1 took the bedding out of the VA’s bedroom and P1 put it in the kitchen. P1 then went to the facility’s living room where the SP and the VA were standing next to a bookshelf. The SP was talking to the VA and attempting to calm him/her. The VA took three books from the bookshelf, swore at P1 and the SP, and then began throwing the books. · P1 stated that the SP did not say anything, but moved behind the VA, grabbed the VA’s shoulders and pushed the VA to the floor. Once the VA was sitting on the floor, the SP grabbed the VA’s wrists and pulled the VA to his/her bedroom. The only parts of the VA’s body that touched the floor during the incident were his/her legs and buttocks. P1 did not see the VA’s back or shoulders touch the floor during the incident. The VA cried and told the SP to “stop.” Once the VA was in his/her bedroom, the SP shut the bedroom door and walked back to the living room. · The SP stated that after s/he and P1 took the VA’s comforter from the VA after the VA ripped it, the VA went to the living room and began to throw books at the SP and P1. The SP stated that s/he planned to implement a manual restraint, but the VA “plopped” to the floor “on [his/her] own” and the SP and P1 backed away from the VA. The VA was “flailing” his/her arms and attempting to grab items near him/her to throw at them. · The SP said that s/he wanted to prevent the VA from throwing items from the book shelf, so as the VA sat on the floor, the SP held the VA’s arms behind the VA and while walking backwards behind the VA, pulled the VA holding on to the VA’s lower forearms, into his/her bedroom. The VA remained in a sitting position as the SP “slid” the VA across the floor. The SP stated that the VA was not lying on his/her back at any time during the incident. The SP released the VA’s arms once the VA was in his/her bedroom. The VA told the SP that s/he was in pain, but did not say where s/he had pain. The SP asked if the VA had any injuries and the VA told the SP, “No.” The SP did not observe any marks on the VA. P1 and the SP each estimated the SP pulled the VA across the floor approximately 15 feet. The SP stated that the rest of the SP’s work shift was quiet but s/he forgot to complete documentation about the incident prior to leaving the facility at the end of his/her work shift at 10 p.m. · After the incident, the VA remained in his/her bedroom. The SP told P1 to document that the VA ripped his/her comforter and threw books and that the SP would document “the rest.” P1 stated that s/he assumed that meant that the SP planned to complete an Emergency Use of Manual Restraint (EUMR) form. At 9 p.m., P1 left the facility because it was the end of his/her work shift. · P2 stated that on December 3, 2022, s/he worked at the facility. As s/he was assisting the VA with his/her evening cares, the VA told P2 that s/he did not want the SP to “drag [the VA] to [his/her] room again.” The VA also told P2 that s/he was ripping books when the SP dragged him/her. P2 did a skin integrity check and documented that the VA had four two-inch scratches near his/her left collarbone, three three-inch scratches across the left side of his/her lower back, and a “cluster” of small bruises on the back of his/her left knee. The VA told P2 that the scratches near his/her collarbone happened during the incident with the SP. The VA did not provide any additional information about the incident to P2. · On December 5, 2022, P2 did a second skin integrity check and noted that the VA had a “three-part scratch” on his/her left inner forearm, a 1 ½ inch mark or scratch on his/her left foot, a 1 ½ inch bruise on his/her left elbow, and a ½ inch bruise on his/her left outer wrist. On December 12, 2022, a skin integrity check showed that all of the issues noted on December 3 and 5, 2022, had resolved. P2 stated that the VA was “prone” to self-injurious behaviors and frequently had scratches and bruises on his/her body, which is why the staff persons did skin integrity checks on the VA. · On December 5, 2022, P1 and P2 worked at the facility and P2 asked P1 about the incident. P1 learned that the SP did not document the incident. P1 stated that on that day, s/he observed marks on the VA’s arms that “were consistent with the altercation.” P1 told P2 that s/he was uncertain if the marks were caused during the incident, but s/he was certain the incident with the SP dragging the VA occurred. P2 told P1 what the VA told P2 about the incident and they reported the incident to P3. · P3 talked to P1, who told P3 that the VA tore a comforter and threw books. P1 believe that the SP attempted to do a manual restraint, but after the VA “dropped” to the floor, the SP grabbed the VA’s wrists and pulled the VA to his/her bedroom. P3 then told another administrative staff person (P4) about the incident and P4 conducted an investigation into the incident. P3 did not talk to the VA or the SP about the incident. · The VA had a history of being physically aggressive and the staff persons had implemented manual restraints on the VA approximately once a year when s/he became a danger to him/herself or others. All of the staff persons received training on implementing manual restraints, but prior to the incident, neither the SP nor P1 had implemented one at the facility. Consistent information was provided that prior to the incident, none of the staff persons had concerns about the SP’s interactions with the residents. The G stated that the facility informed him/her about the incident. The G had no previous concerns about the care the VA received at the facility and believed that the facility handled the situation correctly. According to the facility’s Emergency Use of Manual Restraint policy, the staff persons were trained to redirect and de-escalate residents when they became upset. The staff persons were to model desired behavior and reinforce appropriate behaviors. The staff persons were to use the least intrusive method of behavior guidance before implementing a manual restraint. A staff person should only use a manual restraint when an immediate intervention was needed to keep the resident or others safe from physical harm. According to the facility’s Emergency Use of Manual Restraint training, “Emergency use of manual restraint means using a manual restraint when a person poses an imminent risk of physical harm to self or others and it is the least restrictive intervention that would achieve safety. Property damage, verbal aggression, or a person’s refusal to receive or participate in treatment or programming on their own, do not constitute an emergency.” Facility documentation showed that the SP, P1, P2, and P3 each received training on the Reporting of Maltreatment of Vulnerable Adults Act, on the emergency use of manual restraints, on the facility’s policies, and on the VA’s plans prior to the incident. Relevant Rules and Statutes: Minnesota Statutes, section245D.04, subdivision 3, paragraph (b), state that a person’s protection related rights include the right to be treated with courtesy and respect. Minnesota Statutes, section 245D.07, subdivision 1, paragraph (a), state that the license holder is to provide services in response to the individual’s identified needs, interests, preferences, and desired outcomes as identified in the individual’s plans. Conclusion: A. Maltreatment: On December 2, 2022, P1 and the SP worked at the facility. At approximately 8:45 p.m., the VA began to rip his/her comforter, so the SP and P1 took the VA’s comforter from the VA so that s/he did not ingest any part of the comforter. The VA went to the living room and began to throw books. P1 stated that the SP then pushed the VA to the floor, but the SP stated that the VA sat on the floor. Given the conflicting information, it was unclear how the VA ended up on the floor. The SP and P1 each stated that the SP then pulled the VA approximately 15 feet into his/her bedroom and then closed the bedroom door and left the VA in his/her bedroom, where s/he remained for the remainder of the evening. P1 stated that the SP pulled the VA by the wrists and the SP stated s/he pulled the VA by the forearms. The SP’s actions of dragging the VA across the floor by his/her arms, into his/her bedroom, and shutting the door were inconsistent with the standards of a professional caregiver in a facility licensed by the Department of Human Services and violations of Minnesota Statutes, section245D.04, subdivision 3, paragraph (b); and section 245D.07, subdivision 1, paragraph (a). Although it was documented on December 5, 2022, that the VA had several marks on his/her body, given that the VA frequently had marks on his/her body, it was not determined if any of the documented marks occurred during the incident. However, given that the SP dragged the VA several feet across the floor by his/her arms and brought the VA to his/her bedroom and shut the door, there was a preponderance of the evidence that the SP’s actions were not accidental or therapeutic conduct and could reasonably be expected to produce physical pain or injury or emotional distress to the VA. It was determined that physical abuse and aversive/deprivation 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. Use of any aversive or deprivation procedure, unreasonable confinement, or involuntary seclusion, including the forced separation of the vulnerable adult from other persons against the will of the vulnerable adult or the legal representative of the vulnerable adult; and Use of any aversive or deprivation procedures for persons with developmental disabilities or related conditions not authorized under section 245.825). 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. Facility documentation showed that the SP received training on the Reporting of Maltreatment of Vulnerable Adults Act, on the emergency use of manual restraints, on the facility’s policies, and on the VA’s plans prior to the 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 abuse for which the SP was responsible did not meet statutory criteria to be determined as recurring or serious because it was a single incident that met two definitions of abuse and it was not determined if any of the documented marks on the VA occurred during the incident. Action Taken by Facility: The facility completed an internal review and determined that the facility’s policies were adequate, but were not followed by the staff persons. The SP no longer worked at the facility. 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. Given that the facility took immediate corrective action once they learned about the incident, a correction order was not issued for the violations outlined above.
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