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MALTREATMENT INVESTIGATION MEMORANDUM Minnesota Statutes, section 260E.01, paragraph (a), “The legislature hereby declares that the public policy of this state is to protect children whose health or welfare may be jeopardized through maltreatment.”
License Number and Program Type: 802041-CCC (Child Care Center) Investigator(s): Alice Percy 651-431-6569 Suspected Maltreatment Reported: It was reported that after an alleged victim (AV) spit in a staff person’s (SP’s) face, the SP slapped the AV on his/her cheek. Date of Incident(s): January 23, 2023 Nature of Alleged Maltreatment Pursuant to Minnesota Statutes, section 260E.03, subdivision 18, paragraph (a), and subdivision 23, paragraph (a): "Physical abuse" means any physical injury, mental injury, or threatened injury, inflicted by a person responsible for the child's care on a child other than by accidental means. "Threatened injury" means a statement, overt act, condition, or status that represents a substantial risk of physical or sexual abuse or mental injury. Summary of Findings: Pertinent information was obtained during a site visit conducted on February 7, 2023; from documentation at the facility; and through six interviews conducted with three facility staff persons (P1 – P3), an administrative staff person (P4), the SP, and the AV’s family member (FM). The AV was three old and enrolled in the facility’s preschool classroom. The FM stated that prior to the incident, s/he had no concerns about the care the AV received at the facility. That night, the AV told the FM that s/he “got smacked” by one of the staff persons, but did not provide additional information about the incident. The AV had no injuries after the incident. P1, P2, P3, P4, the SP, and the facility’s documentation provided the following information: · On January 23, 2023, the SP, P1, P2, and P3 worked in the AV’s classroom with ten children. At approximately 9:30 a.m., the children were sitting on a large rug listening to music and going through the morning’s lesson. P2 was leading the group while P1 and the SP were sitting on the rug with the children. P3 sat at a nearby table working with a child who had difficulty listening during the group activity. The AV stood and walked away from the rug to a nearby bookshelf and began to throw toys toward the other children. P1 and the SP each stood and walked toward the AV so that they could redirect the AV and block him/her from throwing toys at the other children. P1 stated that one of the toys hit P1’s face and the AV threw other toys at the SP. · Because the AV frequently ran from the staff persons, the SP approached the AV from one side and P1 from the other side. As the SP bent down to talk to the AV, P1 saw the AV spit on the SP’s face and then saw the SP’s right hand hit the AV’s left cheek. P1 stated that s/he also heard the slap and that it was a “full blown open hand slap” to the AV’s face. The SP stated that s/he “pushed” the AV away from him/her and “tapped” the AV’s face as “a reaction” to the AV spitting in the SP’s face. The AV’s spit went in the SP’s mouth and down his/her face. The SP stated that s/he did not mean to hurt the AV. P2 stated that s/he heard the sound of a slap and looked toward the SP, who was wiping his/her face. P2 believed the AV might have spit on the SP. P2 did not want to draw the attention of the other children to the incident and continued with group time. P3 did not see the incident, but heard the sound of a slap. The SP stated that there was no sound when s/he “tapped” the AV’s face. · After the SP hit the AV’s face, the AV began to cry and ran to P1. P1 and P3 each stated that the SP covered his/her mouth with his/her hands and said, “I shouldn’t have done that.” The SP did not recall making that comment. P1 comforted the AV and asked the AV if s/he was okay and the AV nodded. P1 stated that the AV’s cheek was red. The SP did not observe any marks on the AV’s face. The SP attempted to apologize to the AV, but the AV only wanted to be held by P1. P1 stated that the AV’s cheek was red for “maybe a half hour” and P2 believed the AV’s cheek was no longer red by the time s/he rejoined the group a few minutes later. The AV did not want an ice pack to place on his/her cheek. · P1 continued to hold the AV for approximately 10 to 15 minutes as they watched P2 and the other children on the rug. P3 walked over to them and asked if everything was okay and P1 told P3 that s/he would explain later when the AV was not present. When the AV rejoined the group, P1 told P3 about the incident. After group time, P1 also told P2 about the incident. P3 then left the classroom to tell P4 about the incident. The SP went to the staff break room and did not return to the classroom after also talking to P4. P4 talked to P1 and P2 about what they observed. P4 stated that the AV’s face was not red when s/he entered the classroom. The AV did not bring up the incident to any of the staff persons. Later that day, P3 talked to the FM about the incident. · After the incident, the SP was interviewed by an administrative staff person (P5) who documented that the SP told P5 that the AV “spit a lot in my face” and the SP’s reaction was that s/he “slapped” the AV’s face. The SP told P5 that s/he “knew that I shouldn’t have done that.” · P1 stated that the AV “randomly” left the group during group time and the staff persons typically stood nearby and watched him/her so that they could redirect the AV if s/he began to throw toys. Prior to the incident, none of the staff persons concerns about the SP’s interactions with the children. All of the staff persons received training on behavior guidance throughout the school year. According to the facility’s Behavior Guidance Policies, the staff persons were to ensure that each child was provided with a positive model of acceptable behavior and that the staff persons were to protect the safety of the children. The staff persons were prohibited from subjecting a child to corporal punishment, including rough handling, shoving, shaking, slapping, kicking, biting, pinching, hitting, or spanking. Facility documentation showed that P1, P2, P3, P4, and the SP each received training on the Reporting of Maltreatment of Minors Act and on the facility’s policies prior to the incident. Relevant Rules and Statutes: Minnesota Rules, part 9503.0055, subpart 1, item A, states that the license holder must ensure that the policies and procedures are carried out. The policies and procedures must ensure that each child is provided with a positive model of acceptable behavior and provide immediate and directly related consequences for a child’s unacceptable behavior. Minnesota Rules, part 9503.0055, subpart 3, item A, states that the license holder must have and enforce a policy that prohibits the following actions by or at the direction of a staff persons: Subjection of a child to corporal punishment, which includes, but is not limited to, rough handling, shoving, hair pulling, ear pulling, shaking, slapping, kicking, biting, pinching, hitting, and spanking.
Conclusion: A. Maltreatment: On January 23, 2023, P1, P2, P3, and the SP worked in the AV’s classroom. At approximately 9:30 a.m., the children were sitting on a large rug listening to music and going through the morning’s lesson. The AV stood and walked away from the rug to a nearby bookshelf and began to throw toys toward the other children. P1 and the SP walked to the AV in order to redirect the AV. When the SP knelt down to talk to the AV, the AV spit on the SP’s face. The SP then slapped the AV’s left cheek. P1 then comforted the AV. Consistent information was provided that although the AV’s face was red immediately after the incident, the redness faded after a few minutes. Although the SP stated that s/he “tapped” the AV’s face, the SP told P5 that s/he “slapped” the AV’s face, and P1, P2, and P3, who were in the room, each stated that they heard the slap from their various locations throughout the room. The AV did not sustain an injury during the incident. However, the SP’s action of slapping the AV’s face was inconsistent with the standards of a professional caregiver in a facility licensed by the Department of Human Services; was a violation of the facility’s policies; and a violation of Minnesota Rules, part 9503.0055, subpart 1, Item A, and subpart 3, item A. Therefore, given that the AV was three years old, there was a preponderance of the evidence that slapping the AV on the face represented a substantial risk of physical or mental injury to the AV. It was determined that physical abuse occurred ("physical abuse" means any physical injury, mental injury, or threatened injury, inflicted by a person responsible for the child's care on a child other than by accidental means. "Threatened injury" means a statement, overt act, condition, or status that represents a substantial risk of physical or sexual abuse or mental injury). B. Responsibility pursuant to Minnesota Statutes, section 260E.30, subdivision 4, paragraph (a), clauses (1) and (2): When determining whether the facility or individual is the responsible party, or whether both the facility and the individual are responsible for determined maltreatment in a facility, the investigating agency shall consider at least the following mitigating factors: (1) whether the actions of the facility or the individual caregivers were according to, and followed the terms of, an erroneous physician order, prescription, individual care plan, or directive; however, this is not a mitigating factor when the facility or caregiver was responsible for the issuance of the erroneous order, prescription, individual care plan, or directive or knew or should have known of the errors and took no reasonable measures to correct the defect before administering care; (2) comparative responsibility between the facility, other caregivers, and requirements placed upon an employee, including the facility’s compliance with related regulatory standards and the adequacy of facility policies and procedures, facility training, an individual’s participation in the training, the caregiver’s supervision, and facility staffing levels and the scope of the individual employee’s authority and discretion; 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 Minors Act and on the facility’s policies prior to the incident. The SP was responsible for maltreatment of the AV. 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 physical 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 and although the AV sustained a red mark it was transitory in nature and therefore did not result in a serious injury. Pursuant to Minnesota Statutes, section 260E.35, subdivision 6, paragraph (c) all investigative data maintained in this report will be kept by the Department of Human Services for at least ten years after the date of the final entry in the report. Action Taken by Facility: The facility completed an internal review and determined that the facility’s policies were adequate and were 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. In addition, on March 22, 2023, the facility received a Correction Order for the violations outlined in this report. Certification: The information collection procedures followed in this investigation were pursuant to Minnesota Statutes, section 260E.30, subdivision 6, paragraph (c). All individuals that are subjects of data in this investigation have the right to obtain private data on themselves which was collected, created, or maintained by the Department of Human Services.
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