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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: 1070865-H_CRS (Home and Community-Based Services-Community Residential Setting) Investigator(s): Scott Brandt Suspected Maltreatment Reported: Allegation One: It was reported that on January 5, 2023, a staff person (SP) would not allow a vulnerable adult (VA) to talk to his/her family member (FM1) and that the SP told the FM1 that s/he was not allowed to call the VA. Allegation Two: It was reported that on January 15, 2023, the SP refused to provide assistance to the VA in the bathroom and that the SP laughed at the VA. Allegation Three: It was reported that on January 16, 2023, the SP pinched the VA’s breasts and kicked the VA’s leg. Date of Incident(s): Allegation One: January 5, 2023 Allegation Two: January 15, 2023 Allegation Three: January 16, 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 2, paragraph (b), clause (2); and subdivision 2, paragraph (c); and subdivision 17, paragraph (a): 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. Any sexual contact or penetration between a facility staff person or a person providing services in the facility and a resident, patient, or client of that facility. Sexual contact is defined by Minnesota Statutes, section 609.341, as the intentional touching of the intimate parts with sexual or aggressive intent. 'Intimate parts' includes the primary genital area, groin, inner thigh, buttocks, and breast. 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 January 25, 2023, from documentation at the facility and through eight interviews conducted with the VA, FM1, another family member (FM2), the SP, a facility management staff person (P1), a facility staff person (P2), a community health care professional (CHCP) and a community person (CP) who was employed at the VA’s day program. The VA’s Annual Plan showed that s/he enjoyed attending church and visiting with family members. The VA’s Self-Management Assessment showed that the VA used a wheelchair for mobility and had a “history of making false allegations against staff [persons] and peers.” Allegation One: It was reported that on January 5, 2023, the SP would not allow the VA to talk to FM1 and that the SP told FM1 that s/he was not allowed to call the VA. FM1 said that on January 5, 2023, the VA called FM1 three times and left messages because the VA was concerned that FM1 was not going to make it to the facility on time to take the VA to a medical appointment. FM1 called the VA’s cell phone, but the VA did not answer so FM1 called the facility’s phone and the SP answered. When the SP handed the phone to the VA, FM1 heard the SP say that the SP was not a “slave,” and that the VA was not supposed to receive calls at the facility. The VA stated that there was a time that a staff person told him/her that s/he was not supposed to receive calls on the facility phone, but the VA did not remember who that was. The VA also stated that s/he primarily used his/her cell phone to make and receive calls. P1 stated that although the VA was allowed to use the facility phone at all times, the VA’s family called the facility phone quite a bit and “yelled” at staff persons so the VA’s family members were told to call “managers” directly instead of the facility phone. P2 provided similar information. When the VA was interviewed for the facility’s Investigation Report and Summary, the VA stated that s/he was allowed to use the facility phone. The SP denied telling FM1 that s/he could not talk to the VA on the facility phone and denied saying that s/he was a “slave” to the VA. Conclusion for Allegation One: Although FM1 stated that s/he heard the SP say that the SP was not a “slave” to the VA and that the VA was not supposed to receive calls on the facility phone, the SP denied doing so. P1 and P2 each stated that the VA’s family members had a history of calling and “yelling” at staff persons quite a bit so the facility requested that family members call management directly instead of the facility phone. The VA told this investigator that there was a time when a staff person (the VA could not recall who) told the VA that s/he was not supposed to receive calls on the facility phone but when interviewed for the facility’s Investigation Report Summary, the VA stated that s/he was allowed to use the facility phone. Given that the VA had a cell phone that s/he primarily used, that P1 and P2 said that the VA was allowed to use the facility phone at all times, and that there was conflicting information regarding what the SP said and no further information to support either account, there was not a preponderance of the evidence whether emotional abuse occurred. It was not determined whether 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). Allegation Two: It was reported that on January 15, 2023, the SP refused to provide assistance to the VA in the bathroom and that the SP laughed at the VA. FM1 said that while s/he visited the VA at the facility on January 15, 2023, s/he assisted the VA onto the toilet prior to FM1 leaving. Before FM1 left, s/he told the SP that s/he was leaving and that the VA was on the toilet. About ten minutes later, the VA called FM1 and said that s/he was still waiting for the SP to assist the VA off of the toilet. FM1 told the VA to ask the SP “nicely” for assistance while FM1 remained on the phone. When the VA did that, FM1 heard the SP laugh and say, “You have to wait awhile,” because the SP was helping another client. FM1 called back about a half hour later and the VA told him/her that s/he waited about ten minutes, but that the SP had assisted the VA. The VA did not remember the incident. When the VA was asked about this allegation as part of the facility’s Investigation Report and Summary, the VA stated that no one had laughed at him/her. P2 stated that the VA got “angry” if s/he had to wait in the bathroom for assistance and would swear at staff persons or call them names. The SP denied laughing at the VA and denied refusing to provide assistance to the VA but stated that there were times that the VA would be told that s/he might need to wait a few minutes because the SP was busy working on something else at the time. Conclusion for Allegation Two: Although FM1 stated that when the VA asked the SP for help in the bathroom to get off of the toilet, the SP laughed at the VA and told him/her that s/he needed to wait, the SP denied laughing and affirmed that the VA was told that s/he needed to wait because the SP was assisting another client. Given that the VA said that no one laughed at him/her and did not remember the incident, and that the SP assisted the VA 10 minutes later when s/he was finished assisting the other client, there was not a preponderance of the evidence whether the SP treated the VA in a derogatory or humiliating manner. It was not determined whether emotional abuse occurred (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). Allegation Three: It was reported that on January 16, 2023, the SP pinched the VA’s breasts and kicked the VA’s leg. FM2 stated that on the morning of January 16, 2023, the VA called FM2 and said that the SP “pinched” the VA’s right breast while “paramedics” were assisting another client at the facility, but the VA did not provide more information to FM2. FM2 also stated that when s/he talked to the VA about that incident, the VA also stated that the SP kicked the VA’s leg that day, but that the VA was not injured. The VA stated that while s/he and the SP were in a hallway, near the living room and while paramedics were attending to the other client, the SP touched the VA’s breast (over the VA’s clothing), but the VA did not provide more detailed information. After that happened, the VA called FM2. The VA also stated that the SP kicked the VA’s leg, but the VA was not injured as a result and the VA did not remember specific information related to the incident. The CHCP stated that on January 21, 2023, FM1 brought the VA to the emergency room because the VA had some bruising. When the CHCP talked to the VA, the VA stated on January 16, 2023, the SP “pinched” one of the VA’s breasts, which left bruising that was “a little bigger than a golf ball.” The CHCP said that the bruising was “bright red and smaller darker purple and most of it is yellow.” When the CHCP saw the VA, the VA or FM2 did not mention anything about the VA being kicked. The VA’s medical records, dated January 21, 2023, stated, “There is a bruise to the superior aspect of patient’s right breast. This appears to be in the process of healing.” The records also stated, “There is no sexual assault. No indication for SANE (sexual assault nurse examiner) examination.” The records did not indicate that the VA said that s/he was pinched by a staff person. FM1 said that when s/he talked to P1 about the concern and the bruising, P1 said there was “no possibility” that the bruise came from the SP and that it happened because the VA had been “falling” and was “unstable.” P2 said that when s/he assisted the VA with getting ready for bed on January 17, 2023, P2 noticed some bruising on the VA’s breast. When P2 asked the VA what happened, the VA did not remember how s/he obtained the bruising. P2 stated that the bruise was “purple and green.” The CP did not remember the date but said that when s/he talked to the VA on the phone, the VA stated that a staff person “pinched” one of the VA’s breasts, which left bruising, but the VA did not name the staff person. The SP stated that s/he did not remember the date, but there was a time when s/he was assisting the VA with ambulating in his/her wheelchair and during that time, the VA’s feet came off the foot pedals on the wheelchair. The SP assisted the VA with putting his/her feet on the foot pedals and then noticed that the VA’s position had changed in the wheelchair so the SP stood behind the VA and placed both of his/her hands around the VA’s lower chest area to lift the VA back into a better position. Although the SP did not remember touching the VA’s breasts, the SP said that s/he inadvertently might have during the assistance. The SP heard the VA call FM2 immediately after the SP assisted the VA. The VA told FM2 that the SP had just “pinched” the VA’s breasts. When the SP heard the VA say that, the SP told P1 what happened. The SP denied kicking the VA’s leg and denied pinching the VA’s breast. The facility’s Investigation Report and Summary provided the following information: · When the VA was interviewed, the VA stated that the incident happened in the bathroom and that the SP “reached into” the VA’s shirt and “pinched” the VA’s breasts. The VA also stated that while the SP assisted the VA in his/her wheelchair, the VA “got kicked,” but the VA did not initially say anything to anyone because the VA felt it had not been done “maliciously.” · When P1 initially talked to the SP, P1 understood the SP to say that while s/he walked with the VA, the VA began to fall and when that happened, the SP “accidentally grabbed [him/her] near the breast area.” When P1 did not see documentation related to the incident, s/he talked to the SP again and the SP denied that the VA had a near fall and that P1 “had to have misunderstood” what the SP said. · The review also noted that the SP “immediately reported” the incident to another supervisor (P3). P3, who was not interviewed by this investigator, stated that after the medical emergency (involving someone else) was over, the VA asked to talk to P3, but P3 told the VA that s/he needed to wait. When that happened, the VA called FM2. When the VA was done talking to FM2, the VA came out of his/her bedroom “completely calm” and told P3 that the SP “twisted” the VA’s “bra.” When P3 tried to obtain more information from the VA, the VA “didn’t explain and began talking about getting [the SP] out of there.” The review also stated that staff persons did not have knowledge of the SP kicking the VA’s leg. · When the SP was interviewed, the SP provided information that was similar to the information the SP provided to this investigator. Conclusion for Allegation Three: Information showed that the VA called FM2 and said that the SP pinched the VA’s breast and kicked the VA’s leg. Regarding the VA’s leg being kicked: The VA said that his/her leg was not injured from being kicked and did not recall details about that other than s/he was not kicked “maliciously.” The SP denied kicking the VA. There was no further information about the VA’s leg being kicked and no sign of injury. Therefore, there was not a preponderance of the evidence whether all of the SP’s actions were therapeutic conduct or could cause the VA pain or injury. 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: 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. Regarding the SP pinching the VA’s breast: According to the SP, the SP assisted the VA with changing his/her position in the VA’s wheelchair on January 16, 2023, by placing his/her arms under the VA’s arms and around the VA’s lower chest area and may have had incidental contact with the VA’s breast at that time. After the incident occurred, the SP heard the VA call FM2 and say that the SP pinched the VA’s breast. The next day, P2 assisted the VA and saw a bruise on the VA’s breast. P2 asked the VA about the bruise but the VA said s/he did not know how s/he got it. A few days later, FM1 brought the VA to the hospital for the bruise and the VA’s medical record stated, “There is a bruise to the superior aspect of patient’s right breast. This appears to be in the process of healing,” and “There is no sexual assault. No indication for SANE examination.” Although the VA told this investigator that the SP touched the VA over his/her clothing in the hallway, when the VA was interviewed as part of the facility’s Investigation Report and Summary, the VA stated that the SP “reached into” the VA’s shirt and “pinched” the VA’s breasts and that the incident happened in the bathroom. When P3 talked to the VA about the incident, the VA did not provide much information but stated that s/he wanted to get the SP “out” of the facility. Given that the SP denied pinching the VA’s breast, that there was conflicting information regarding what happened, that it was possible that while repositioning the VA in the wheelchair that the SP inadvertently touched the VA’s breast, and that there was no further information to support or refute the SP’s or the VA’s information, there was not a preponderance of the evidence whether the SP had sexual contact with the VA. It was not determined whether sexual abuse occurred (any sexual contact or penetration between a facility staff person or a person providing services in the facility and a resident, patient, or client of that facility. Sexual contact is defined by Minnesota Statutes, section 609.341, as the intentional touching of the intimate parts with sexual or aggressive intent. ‘Intimate parts’ includes the primary genital area, groin, inner thigh, buttocks, and breast). Action Taken by Facility: The facility’s Vulnerable Adult Internal Review Addendum showed that policies and procedures were adequate, followed, and that all staff persons were retrained on “lift and transfer procedure.” Action Taken by Department of Human Services, Office of Inspector General: No action taken.
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