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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: 1087052-H_CRS (Home and Community-Based Services-Community Residential Setting) Investigator(s): Thomas Nixon/Danielle Morrison 651-431-2155 Suspected Maltreatment Reported: It was reported that a staff person (SP) provided a vulnerable adult (VA) with marijuana knowing the VA had a history of chemical use. Date of Incident(s): January 2, 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 January 26, 2023; from documentation at the facility; and through four interviews conducted with the vulnerable adult (VA), two facility supervisory staff persons (P1 and P2), and the VA’s guardian (G). During the site visit a staff person (P3) declined to be interviewed for this investigation. Attempts were made via email, telephone, and mail to contact and interview the SP, but the SP did not respond. The VA was diagnosed with bipolar one disorder, substance induced psychotic disorder with delusions, history of polysubstance dependence, and borderline intellectual functioning. The VA enjoyed learning about astrology, his/her “inner and outer Zen,” and healing crystals. The VA also liked playing and listening to music, watching animals, and spending time with his/her significant other. The VA provided the following information: · Prior to January 2, 2023, the VA and the SP talked about marijuana, that the SP used marijuana, and the possibility of Minnesota legalizing marijuana in the near future. The VA said the talks were “like a celebration of that.” The VA and the SP previously talked about the SP selling marijuana to the VA. The VA thought the SP was “joking around with [the VA], but [the SP] wasn’t.” · On January 2, 2023, around 7 p.m. while at the facility, the SP and the VA talked about marijuana and the VA asked the SP to sell him/her some. The VA paid the SP $10 and the SP went to his/her car, and returned inside with a “marijuana cigarette” and gave it to the VA. · Later that night, the VA, the SP, and another resident went to a movie and returned to the facility around 9:30 p.m. The VA then went outside alone, smoked the marijuana, and returned inside. The VA could not recall specifics, but thought s/he then may have taken his/her medications. The VA said staff person wase “really concerned” because the VA was “kind of unstable.” The VA went to the bathroom and then to bed. · The VA said this was the first time that s/he purchased marijuana from the SP and knew the SP used marijuana because of their conversations. P1 and P2, and the facility Incident Report and Internal Review and facility [SP’s] Performance form provided the following information: · P1 said the VA had a history of substance abuse, stole alcohol and chemicals to use, went through drug and alcohol treatment twice, and attempted to remain sober. The VA had one to one staff person supervision that started at 9 p.m. due to the VA’s history of leaving unsupervised around that time to use drugs and alcohol. The VA acknowledged being easily influenced by others and P1 was concerned recent marijuana use made sobriety more difficult for the VA. · The SP was working with the VA during the evening of January 2, 2023. P3 worked the overnight shift from January 2 to January 3, 2023, and marked in the VA’s target behaviors that “something seemed off” with the VA. · On January 3, 2023, between 8 a.m. and 8:30 a.m., P2 arrived at the facility and the VA was awake, which was not typical for him/her. Normally the VA was “always excited” for P2 to work, but this time the VA greeted P2 “in an unusual way” and “wasn’t as focused as normal.” P2 saw that the VA’s eyes were “bloodshot red” and asked if the VA was feeling sick. The VA stated, “No, I feel fine.” · P2 asked the VA if s/he was intoxicated and the VA acknowledged that s/he was. P2 believed from experience that the VA recently used marijuana and asked the VA how s/he got “it” and for the VA to be honest because they had “a good rapport.” The VA initially said s/he got it “from my friend Heineken.” P2 said that was a beer and not a friend. The VA then said s/he got it from a friend who had the same first name as the SP. P2 told the VA that s/he had not seen his/her friend in two weeks so P2 was going to call the friend. The VA then said s/he got it from the SP, but the VA did not want to get the SP in trouble or fired. P2 and the VA phoned P1 and explained the situation. · Later that morning, P1 met with the VA. The VA told P1 information that was consistent with the information the VA provided during his/her interview with the exception that the VA told P1 s/he got the marijuana from the SP after going to the movie. The VA also told P1 smoked all of the marijuana and there was none left. · That same day P1 spoke with the SP and asked him/her about providing marijuana to the VA. The SP acknowledged having given the VA marijuana. P1 asked why the SP would do so because it was illegal and the VA was a vulnerable adult. The SP responded that s/he was “not thinking right.” The SP denied smoking marijuana with the VA. P1 asked if this was the first time the SP sold marijuana to the VA and the SP responded that it was. · P2 said the SP was trained on the VA’s plans including drug use, drug seeking behavior, and not being allowed unsupervised time. P2 said staff persons were trained to not talk about chemical use, play music regarding chemical use, or go into tobacco stores that sell CBD (Cannabidiol) items around the VA due to his/her fixation on the items. The G knew the VA for over ten years and knew the VA “better than most.” The VA “for the most part” was an accurate reporter of incidents, but might be dishonest in an attempt to get out of consequences. It was not typical for the VA to attempt to get others in trouble and the VA usually admitted to things when talked to. The VA had a history of using marijuana with staff persons in the past. The G was made aware that the SP gave the VA with marijuana and no longer worked at the facility. The facility [SP] Performance form stated, “[The SP] accepted full responsibility for [his/her] actions.” The facility Employee Handbook which included the Substance Abuse Policy which stated: · Employees must not report to work, be on Company property, operate Company vehicles or conduct company business for the Company while under the influence of, or have in their possession any alcohol, marijuana, or other illegally obtained drug, narcotic or substance. · Employees must not sell, distribute or possess medically unauthorized drugs or controlled substances while on Company property, conducting Company business, or while in company vehicles. · The use, sale, manufacture, distribution, or possession of illegal drugs while providing care or to persons receiving services, or on our property (owned or leased), or in our vehicles, machinery, or equipment (owned or leased), will result in correction action up to and including termination. Facility documentation showed that the SP was trained on the Reporting of Maltreatment of Vulnerable Adults Act, the facility Employee Handbook, and on the VA’s plans. Conclusion: A. Maltreatment: The VA provided consistent information that on January 2, 2023, the SP gave him/her marijuana which s/he smoked. Although the SP did not provide information for this investigation, the SP told P1 that s/he gave the VA marijuana. Given the VA’s history of substance use and goal to remain free of substance use, and that marijuana was illegal, the SP’s actions of providing the VA with marijuana was inconsistent with the standards of a professional caregiver in a facility licensed by the Department of Human Services, a violation of the facility’s Substance Abuse Policy, and there was a preponderance of the evidence that there was a failure to supply the VA with reasonable and necessary care. 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 Reporting of Maltreatment of Vulnerable Adults Act, the facility Employee Handbook, and on the VA’s plans. 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 a serious injury which reasonably required care of a physician. Action Taken by Facility: The facility completed an internal review, and determined that policies and procedures were adequate, but not followed. 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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