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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: 1104285-H_CRS (Home and Community-Based Services-Community Residential Setting) Investigator(s): Sarah Schumacher/Kyle Youker 651-431-4056 Suspected Maltreatment Reported: It was reported that a staff person (SP) took a vulnerable adult (VA) to the Minnesota State Fair where the SP consumed alcoholic beverages, becoming intoxicated and then drove the VA back to the facility, “running into a curb,” during the process. Date of Incident(s): August 29, 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 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 September 22, 2022; from documentation at the facility; and through six interviews conducted with the VA, three staff persons (P1, P2, and P3), and two facility supervisors (P4 and P5). Attempts were made via telephone and United States mail to contact and interview the SP, but the SP did not respond to the requests. The VA was diagnosed with autism spectrum disorder, attention deficit hyperactive disorder, post-traumatic stress disorder, and depression. The VA had a good sense of humor and enjoyed spending time with others. The VA wanted to attend cosmetology school, continue cooking, and one day get married and have children. An interview with the VA provided the following information: · On the date of the incident, the SP and the VA went to the Minnesota State Fair and the SP drove. They arrived at approximately 4 p.m. · While at the fair, the SP and the VA each drank alcoholic beverages. (Note: The VA was of legal drinking age.) The VA stated that the SP was “drunk,” and the VA knew that because the SP was “acting really weird.” The SP drank “four small glasses” of alcoholic beverage and “another beer this big.” The VA held his/her hands six to eight inches apart to show the size of the glass. · Around 10 p.m., the SP and the VA left the fair and the SP drove them back to the facility. The VA stated that the SP “almost got into a car crash” because the SP was “drunk driving.” The VA stated, “I had to grab the wheel a couple of times because I felt unsafe” because the car “hit the side of a railing thing.” The VA said that the SP’s car was not damaged, and the SP and VA were not injured. · The SP and the VA then arrived at the facility, where the SP “was acting all drunk.” On the date of the incident, P3 and P4 were working at the facility when the VA and SP returned. P3 did not remember what time they returned but s/he was sitting in the basement with another facility resident; P4 was upstairs. P1, P2, and P5 were not present at the facility the date of the incident. An interview with P3 provided the following information: · P3 said the VA and SP came into the basement of the facility and the VA began talking about what they had done at the fair and told P3, “We almost got into a car accident.” The SP interrupted and stated, “Oh, I’m just a little tipsy, I took a few shots,” and “We weren’t going to get into an accident. I was holding my phone for a second, I looked at my phone for a second and we swerved off.” The VA later told P3, the SP was “always under the influence.” · P3 believed that the SP was “intoxicated” at that time based on his/her conversations with the VA and the SP, but P3 did not smell alcohol on the SP. P3 also said that as the SP talked s/he slurred his/her words. P3 then went upstairs and told P4 about what the SP and VA told him/her. An interview with P4 provided the following information: · After P3 told P4 about what the VA and the SP said, P4 immediately talked to the SP upstairs, who denied drinking alcohol at the fair. As P4 talked to the SP, s/he did not smell alcohol on the SP as the SP talked and there were no indications, such as slurring his/her words, that the SP had been consuming alcoholic beverages. · After this, P4 asked the SP to get a receipt from the fair, located in the SP’s car and bring it back to P4. However, the SP left the facility without providing the receipt or informing P4. P4 never looked at the SP’s car for damage and the SP never returned to the facility after that date. · P4 then talked to the VA about the incident. The VA began crying and stated the SP “had a couple glasses of alcohol” and that the SP allowed the VA to also drink alcohol. · There was a prior report by a staff person of the SP consuming alcohol on an unknown date while working with the VA. P4 told P5 about this and P5 stated s/he “would look into this.” Interviews with P1, P2, P5 and facility documentation provided the following information: · The day following the incident, the VA told P1 and P2 that the SP consumed alcoholic beverages and drove the car with the VA inside and “almost crashed.” On an unknown later date, at a retail store in the community, P1 spoke to the SP about what the VA told him/her. P1 said that the SP “didn’t deny it,” and said, “I’m sorry.” · P1 also said that on an unknown date prior to the incident while P1 and the VA were at a restaurant, the VA told P1 that the SP ordered alcoholic beverages when s/he was out with the VA. P1 came back to the facility and informed P4. · P5 stated there was “speculation” that the SP had consumed alcoholic beverages with the VA prior to the alleged incident at the fair. P5 stated “conversations were held with [the SP]” but these conversations were not documented and the SP denied the allegation of consuming alcoholic beverages. P5 stated sometimes “clients can make something up” but stated the VA was accurate “85 to 90% of the time.” The Policy and Procedure on Alcohol and Drug Use states that a staff person is not allowed to consume alcoholic beverages. Facility documentation showed that staff persons was trained on the Policy and Procedure on Alcohol and Drug Use and the Vulnerable Adult Abuse Act. Conclusion: A. Maltreatment: The VA provided consistent information on separate occasions during his/her interview and to P1, P2, P3, and P4 that on August 29, 2022, the SP and the VA went to the Minnesota State Fair where s/he and the SP drank alcohol. The VA said that the SP drank “four small glasses” of alcoholic beverage and a beer and afterwards the SP drove the VA back to the facility hitting a “railing thing.” The VA also said the SP was “drunk,” “acting really weird,” and that the VA “had to grab the wheel a couple of times” while the SP was driving. P3 said that when the VA was telling him/her about the incident, the SP interrupted the VA and told P3, “Oh, I’m just a little tipsy, I took a few shots,” and “We weren’t going to get into an accident. I was holding my phone for a second, I looked at my phone for a second and we swerved off.” P3 thought the SP was “intoxicated” based on his/her conversations with the VA and the SP, and that the SP slurred his/her words. P4 spoke to the SP who denied drinking but when P4 requested a receipt from the SP, the SP went to his/her car and never returned to the facility. P3 and P4 each stated they did not smell alcohol on the SP. Although the SP did not provide information for this report and denied to P4 that s/he drank alcohol at the fair, given that the VA provided consistent information to multiple persons at different times; that information provided by the VA was supported by the information the SP told P3; and that P1 said when s/he talked to the SP, the SP “didn’t deny it,” and said, “I’m sorry,” it was more likely that the VA’s account was more credible. Although it was unknown exactly how much alcohol the SP drank prior to driving the VA or what his/her blood alcohol level was at the time, the SP was responsible for the care and supervision of the VA. The SP’s actions of transporting the VA while under the influence of alcohol posed a serious risk of harm to the VA’s safety and was inconsistent with the facility policies and procedures and inconsistent with the standards of a professional caregiver in a facility licensed by the Department of Human Services. Therefore, there was a preponderance of the evidence that there was a failure to provide the VA with care and services that were reasonable and necessary to maintain the VA’s physical or mental health and safety. 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. Facility documentation showed that the SP was trained on the Policy and Procedure on Alcohol and Drug Use and the Vulnerable Adult Abuse Act. 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 or serious. It was a single incident for which the VA did not sustain an injury. Action Taken by Facility: The facility conducted an internal review determined that Policy and the Procedure on Alcohol and Drug Use was not followed all staff persons were re-trained. 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.
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