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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: 1071883-H_CRS (Home and Community-Based Services-Community Residential Setting) Investigator(s): Scott Brandt 651-431-6556 Suspected Maltreatment Reported: It was reported that a staff person (SP) provided marijuana to a vulnerable adult (VA) on two occasions and that they smoked it together. Date of Incident(s): January 18 and February 3, 2023 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 17, paragraph (a): 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 was obtained during a site visit conducted on February 10, 2023, from documentation at the facility, and through nine interviews conducted with the VA, the SP, two facility staff persons (P1 and P2), the VA’s guardian (G), and three management staff persons (P3-P5). Although this investigator contacted another facility staff person (P6), P6 did not respond to requests to be interviewed. The VA’s ISSA Assessment Detail showed that s/he enjoyed playing video games, drawing, and watching movies. The plan further showed that the VA, who was diagnosed with Muscular Dystrophy, used an electric wheelchair for mobility and had “limited strength” in his/her arms. Regarding an incident occurring on January 18, 2023: P1 provided the following information: · Although P1 did not remember the date, P1 and P6 were both working at the facility and P6 told P1 that s/he smelled smoke that was coming from the VA’s bedroom. When that happened, P1 went to the VA’s bedroom and the door was locked. When P1 knocked on the door and told the VA to open the door, someone opened the door, but P1 did not know who opened the door. When the door was opened, P1 realized that the SP was in the VA’s bedroom with the VA and that the SP and the VA seemed “very nervous” because the room smelled like “marijuana.” When P1 asked the SP and the VA what was going on, they denied that they were smoking in the room. P1 did not see any marijuana in the room. · Shortly thereafter, P3 came to the facility to work and P1 told P3 what s/he saw in the VA’s bedroom. P3 provided the following information: · Although P3 did not remember the date, when s/he returned to the facility from an outing, P6 was standing by one of the entrance doors and had the door open. As P3 got closer to P6, P6 said that someone inside had been smoking marijuana. When P3 got inside the house, P3 smelled smoke. P3 “assumed” it was marijuana smoke because it did not smell like “cigarette smoke.” · When P3 asked the VA if s/he and the SP smoked marijuana, the VA denied it, but later admitted that s/he had a “canister of marijuana” from a family member and the smell was from the canister being opened. P3 did not talk to the SP because s/he had left the facility while P3 talked to the VA. The VA told this investigator that although s/he “could smell marijuana” and that the smell came from the VA’s bedroom when a container containing marijuana the VA had was opened. The VA denied that s/he and the SP smoked marijuana in the VA’s bedroom. P4 said that when s/he talked to the VA on a subsequent day, the VA denied smoking marijuana with the SP, but said that the “jar” of “marijuana” belonged to the SP and that the VA “asked” the SP if s/he could see the marijuana. The VA also said that the smell came from the jar being opened. When P4 talked to the SP, the SP denied having marijuana at the facility or smoking it in the VA’s bedroom. P5 said that when s/he talked to the VA on a subsequent day, the VA stated that the SP brought the marijuana into the facility, but the VA did not provide further information. P5 did not talk to the SP regarding the allegations. P2 said that s/he received a phone call on the day of the incident from P1 and that P1 told P2 that s/he smelled marijuana coming from the VA’s bedroom. The facility’s Internal Investigation provided information that was mostly consistent with the information in the investigation, but added that when P1 was interviewed, s/he stated that when the VA’s bedroom door was opened, P1 saw “smoke in the air” and the VA and the SP “both looked terrified.” The review also stated that when P3 got to the VA’s bedroom, the “smell” of “marijuana” was “very strong.” When the SP was interviewed by this investigator, the SP refused to provide names of persons related to the investigation. The SP stated that s/he saw the container in a client’s (the SP would not provide a name) bedroom and was “curious.” The SP “opened” the container and stated that it was “CBD buds.” The SP denied smoking marijuana with a client. The SP ended the interview and did not provide further information. Regarding an incident occurring on February 3, 2023: P3 said that s/he did not recall the date but said that P6 told P3 about a second incident (February 3, 2023) in which P6 thought that the VA and the SP were smoking marijuana outside when it was “dark outside” because when they came inside, the VA and SP each smelled like marijuana and “air freshener.” P3 said that s/he did not get much detailed information from P6 about that incident. P6 did not respond to requests to be interviewed. The VA stated that s/he had smoked marijuana outside at a friend’s house, but denied smoking it outside with the SP. The facility’s Internal Investigation stated that when P6 was interviewed, s/he stated that while the SP and the VA were outside, P6 saw what “looked like [the SP] was feeding [the VA] something” and when they came inside, P6 “could tell they’d both been sprayed with air freshener,” but P6 “could detect a marijuana smell.” When the SP was interviewed, the SP stated that while s/he and the VA were outside at about 10 p.m. on February 3, 2023, and when they returned inside, “it smelled bad in there.” As a result, the SP used air freshener, that was on a shelf near the door, on his/herself, but that the SP did not use it on the VA. The SP stated that s/he might have assisted the VA with readjusting his/her glasses while they were outside. The SP denied smoking marijuana. The SP denied smoking marijuana with a client. The facility had a Drug and Alcohol policy which stated that “the goal of the company is to maintain a workplace free from the effects of drugs, alcohol, chemicals, and abuse of prescription medications.” The policy further stated that “possession” or “use” of “illegal drugs” was “prohibited.” The facility’s Job Description stated that one of the SP’s expectations was to “comply with all established policies, procedures” and “rules.” The facility’s training records showed that all staff persons were trained on the Reporting of Maltreatment of Vulnerable Adults Act and the VA’s specific care plans prior to January 28, 2023. Conclusion: A. Maltreatment: On January 18, 2023, P1 and P6 smelled smoke coming from the VA’s bedroom. When P1 investigated, the door was locked. P1 knocked and the SP or the VA opened the door. P1 saw the VA and the SP inside the room and they seemed “very nervous” because the room smelled like “marijuana,” but the SP and VA denied that they were smoking marijuana. A short time later, P3 was at the facility and noted that P6 was holding the entrance door open. P6 told P3 that someone was smoking marijuana. When P3 got inside, P3 also noticed the smell of smoke and “assumed” it was marijuana smoke because it was not cigarette smoke. P3 asked the VA about the marijuana smell and the VA told P3 that s/he had a “canister of marijuana” from a family member and the smell was caused because the canister had been opened. However, the VA later told P4 that the canister of marijuana belonged to the SP. Sometime after, P3 learned from P6 that on February 3, 2023, P6 thought the VA and the SP smoked marijuana outside when it was “dark outside” because when they came inside, the VA and SP each smelled like marijuana and “air freshener.” The SP and VA each denied smoking marijuana at that time. The VA said s/he smoked marijuana outside at a friend’s house at some point but not with the SP. P6 did not respond to requests to be interviewed by this investigator so additional information was unable to be obtained and there was not enough information to determine if the SP smoked marijuana or assisted the VA to smoke marijuana on this date. Although the VA and the SP denied smoking marijuana at the facility, each had reason to minimize their actions for fear of repercussions. Given that on January 18, 2023, P1 and P6 each stated that they smelled marijuana smoke in the VA’s bedroom while the SP and the VA were in the VA’s bedroom with the door locked; P3 also smelled marijuana smoke when s/he was at the facility shortly after; and that there was a container with marijuana that the VA first said was a family members and then stated it belonged to the SP, there was a preponderance of the evidence that the SP either engaged in an illegal activity with the VA or assisted the VA in engaging in an illegal activity. 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 Reporting of Maltreatment of Vulnerable Adults Act, on the VA’s plans, and on the facility’s Drug and Alcohol policy. 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 “serious” maltreatment because there was no information that the VA had any injury or to be determined as “recurring” maltreatment because although it was possible the SP smoked marijuana with the VA on more than one occasion, there was not enough information to make that determination. Action Taken by Facility: The facility’s Internal Investigation stated that although policies and procedures were adequate, they were not followed, but information was not provided in terms of what was not followed. In addition, the SP was no longer employed by 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.
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