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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: 1070660-H_CRS (Home and Community-Based Services-Community Residential Setting) Investigator(s): Danielle Morrison 651-431-5647 Suspected Maltreatment Reported: It was reported that a vulnerable adult (VA) punched a staff person (SP). The SP responded by punching the VA in the face causing a cut on the VA’s right eyebrow. The SP then took the VA to the floor and punched the VA again. The VA also had a bruise on his/her lower lip. Date of Incident(s): January 8, 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 (1): 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: hitting, slapping, kicking, pinching, biting, or corporal punishment of a vulnerable adult. Summary of Findings: Pertinent information was obtained during a site visit conducted on February 2, 2023; from documentation at the facility; and through six interviews conducted with one supervisory staff person (P1), two facility staff persons (P2 and P3), the SP, the VA, and the VA’s guardian (G). The VA’s diagnoses included a moderate intellectual disability, fetal alcohol syndrome, and attention deficit hyperactivity disorder. The VA liked riding a bike, hooking up electronics, and growing things. The VA’s Self-Management Assessment stated that “If [the VA] shows signs of agitation staff [persons] will remind [the VA] of possible coping strategies such as deep breathing, time alone, quiet time, problem solving, exercise, or requesting PRN (as needed) medication. All staff [persons] receive annual [Effective and Safe Engagement] EASE training and will use the least restrictive method needed to remove [the VA] from situations that may jeopardize the safety of others.” Upon entrance to the facility there was a hallway to the left that had three bedrooms and a bathroom. To the right there was a door to a large kitchen area. Inside the kitchen there was a deep freezer next to a refrigerator, and then a small countertop and cabinets to the left of the refrigerator when looking at it. There was an island across from the cabinets, and on the other side of the island were more cabinets, countertops, a dishwasher, a sink, an oven, and a microwave in an L shape. There was a door to the right of the oven that led to a laundry room. There was a door directly across from the refrigerator that led to a dining room. The facility’s EASE training manual provided the following information: · Staff persons should use a balanced stance [a balanced stance [was] needed during the verbal (prevention) phase of an intervention and prior to or during the possible initiation of physical techniques]. “To use a balanced stance, start by standing two arm’s lengths or more away from the person.” · In regard to “holds,” staff persons were trained to start with an initial wrap around and standing group hold with a client. · From there, staff persons were trained to go from a standing to a kneeling group hold with the client. · Staff persons were then trained to go from a kneeling to a side lying group hold with the client. The clients’ hands should reach the ground in front of him/her to prevent a “face plant.” Staff persons communicated with other staff persons and the client to move the client into a more comfortable position on his/her side. “Ask them to relax and stay calm so you can move them safely.” The VA said, “An old staff [person],” “smacked me down quick,” and “cut my eye open.” The VA said this happened in the kitchen, but the VA did not remember who was there. The VA demonstrated to this investigator that the VA’s hand was put behind his/her back and then the VA was hit “right here (the VA pointed to his/her right eyebrow).” P2 and P3 provided the following information: · On the day of the incident, the SP, P2, and P3 worked and were in the kitchen. The VA was in the hallway. · The VA was upset at the SP because the SP asked the VA not to block his/her housemate from walking in the hallway so the VA entered the kitchen and “charged” the SP and punched the SP in the stomach. P2 stated that the SP “lunged” at the VA and punched the VA in the face. The SP tried to get the VA to the floor and once on the floor, the SP punched the VA in the face again. P3 stated that when the VA punched the SP in the stomach, the SP’s reaction was to strike the VA in the face with a closed fist, and then escort the VA to the floor. It was a “little bit of a struggle” for the SP to get the VA to the floor. P3 heard the SP tell the VA, “Get on your stomach,” in an “elevated tone.” P3 stated that it “appeared as if [the SP] felt it was needed to punch [the VA] in the face while [s/he] was on the [floor],” and “before [the VA] flipped over because [s/he] wasn’t listening to [the SP].” · P2 and P3 were in proximity when the incident occurred, and when the SP and the VA went to the floor, they fell into P2’s legs. P2 got on his/her knees and told the SP, “I could take it from there,” and had the SP leave the kitchen. P2 said this all happened “pretty fast,” and it was hard to determine where the SP’s hand made contact on the VA’s face, but thought it was above the VA’s right eye. P2 described the take down to the floor as “a drunk bar fight.” The SP went into the living room and appeared “anxious” and paced around. P3 said the SP paced in the living room and the VA was “deflated” and apologetic for hitting somebody. The VA apologized to the SP for hitting him/her in the stomach. · P2 said that the VA had a half-inch long cut above his/her right eye and a blood blister on his/her bottom lip. P3 said there was a small laceration on the VA’s right eyebrow about a quarter of an inch long. P2 and P3 told the VA they would get him/her cleaned up so the VA’s cut above the eye was cleaned up and a Band-Aid was applied. · P2 called an on-call supervisor and was instructed to send the SP home. P2 and P3 did not feel comfortable with that, so another staff person came to the facility and talked the SP into leaving the house. · P2 was trained that if an Emergency Use of Manual Restraint (EUMR), to have staff persons on both sides of the client, to get the client to his/her knees, and then to his/her “stomach.” From there, staff persons were trained to move the client to his/her side. P2 did not think there was enough room in the kitchen space to do this maneuver but had been trained to try to get out of spaces if they were not big enough. · P3 was trained to escort clients to the floor with one staff person on each side, give a countdown to the client that they were going to the floor, and then go to kneeling position and gently escort the client to their “stomach.” From there staff persons checked with clients to see if they were okay to get up and let them up. P3 thought it would have been possible for P2 and P3 to get the VA to the floor, but the SP did not verbally ask for assistance. · P3 said the VA hit staff persons in the past and staff persons were trained to be two arms’ length away per the VA’s plan to minimize risk. The SP provided the following information: · Earlier in the day the SP and the VA went for a car ride and the VA wanted to plug an MP3 player into the van and listen to what was on it. The SP and the VA were not able to figure it out so they went back to the facility. · Once back inside the facility, the VA tried to block one of his/her housemates from coming down the hallway. The SP told the VA that that was not nice and asked the VA not to block the housemate. The VA went back into his/her room and grabbed a piece of paper with what the VA thought was a “password” to set up the MP3 player. The VA brought the piece of paper into the kitchen where the SP, P2, and P3 were. The SP explained to the VA that they needed assistance from the technology department and the SP asked the VA to put the piece of paper away. · At that point the VA punched the SP with a “straight jab” in the stomach that took the SP’s breath away. The SP said there was a “cloudy orange” in his/her vision that went to “tunnel vision.” The SP could “barely breathe,” so s/he tried blocking the VA and yelling for P2 and P3. The SP got one good breath and swept his/her hand under the VA’s armpit to turn the VA away from the SP. The SP then placed his/her right hand on the back of the VA’s neck in a “half nelson.” The SP let go and the VA backed away. The SP said his/her vision was still “orange cloudy” and the SP “felt” the VA come at the SP again, so the SP did the same maneuver to place the VA in a “half nelson” and brought the VA to the floor. (Note: the SP demonstrated the “half nelson” that s/he used on the VA on this investigator. The SP’s left arm was swept under the left armpit of the VA to spin the VA around. The SP’s right arm went under the right armpit of the VA with the SP’s hand on the VA’s neck to secure the right arm up. The VA’s left arm was free. Then the SP used his/her left hand on the VA’s back to move the VA forward and disengage). · The SP was not sure if the VA was going to “bite” the SP, even though the VA had not bitten the SP before. At one point the VA brought his/her hand up and the SP “heard a noise; that must have been when [the VA] hit [his/her] lip.” The SP said the VA must have hit his/her eye when going to the floor or the VA “could have bumped [his/her] eye on the freezer.” Once the SP got the VA to the floor, the SP got a “good breath” and called out to the VA, “You are being violent, if I let you go will you be safe?” The SP said one of his/her coworkers tapped the SP on the shoulder and told the SP, “You are in the wrong position.” The SP got up and went to the living room and walked around. The SP said P2 and P3 took over the situation from there and then another staff person showed up and told the SP to take the rest of the shift off. · The SP said the technique used was from “muscle memory” and s/he did it at a lot at a previous job "at the bar.” The SP said P2 and P3 had been engrossed in their cell phones before they helped the SP. The SP thought the whole incident took six seconds. · The SP stated s/he was trained through EASE training how to handle a “take down” if there was more than one staff person present. The SP said even though P2 and P3 were there, the SP “never imagined to be incapacitated like that” and it was a “natural reaction.” The SP felt s/he was there by him/herself. · The SP said the VA had a fat lip and a split in the skin about three-sixteenths inch long on the crown of the VA’s eyebrow. The SP said, “I don’t believe in any way I would have done that,” in reference to punching the VA in the face twice and said, “How a young [man/woman] received those injuries were not by my hands making fists and punching [him/her] in the face.” Photos taken after the incident on January 8, 2023, showed the VA had a one-half inch cut above his/her right eyebrow and a bruised lower lip. P1 provided the following information: · On the day of the incident, P2 called and left P1 a message. When P1 returned the telephone call, P2 told P1 that the SP punched the VA in the face twice because the VA got aggressive. P2 and P3 separated the SP from the VA and called the on-call supervisor. · The SP told P1 that s/he was going to block the VA and accidentally hit the VA in the face. Staff persons were trained to use their EASE training and deescalate verbally without going “hands on.” If there was an imminent risk, staff persons were trained to use different manual restraints. A “typical” one that was used with the VA was to have a staff person on each side of the VA and to take the VA to the floor carefully. · The VA had a cut above his/her eye (P1 was not sure but thought it was the right eye) not even an inch long, and a bruised lip. The G was aware that the VA became agitated, and a staff person responded in a “poor way.” The VA was punched and a “hard take down” happened. The G spoke with the VA, and s/he did not seem upset about it. The facility completed a Behavior Intervention Reporting Form (BIRF). Facility records showed that P1-P3 and the SP were trained on the Reporting of Vulnerable Adults Act, EASE training, and the VA’s plans. Conclusion: A. Maltreatment: The SP, P2, and P3 were in the kitchen when the VA entered and punched the SP in the stomach. P2 and P3 each stated that the SP punched the VA in the face, and took the VA to the floor, and then punched the VA again. The SP stated that when the VA hit the SP, his/her vision became “cloudy orange,” and the SP could “barely breathe.” The SP tried to block the VA and ended up using a “half nelson” on the VA two times and took the VA to the floor. The SP thought the VA’s injuries were a result of the VA hitting him/herself, bumping his/her face on the freezer, and by the VA hitting the ground. The SP said, “How a young [man/woman] received those injuries were not by my hands making fists and punching him/her in the face.” Although the VA did not identify the SP as who did this, the VA said, “An old staff [person],” “smacked me down quick” and “cut my eye open.” The VA sustained a bruised lower lip and a cut above his/her right eyebrow. Even though the SP denied punching the VA and stated that the VA’s injuries were not caused by his/her actions, given that the SP also stated and described putting the VA into a “half-nelson,” told P1 that accidentally hit the VA in the face, that the SP had reason to minimize his/her actions, and that P2 and P3 saw the SP punch the VA twice in the face, there was a preponderance of the evidence that the SP’s actions were not accidental or therapeutic conduct and could be expected to produce pain and injury. It was determined that 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: hitting, slapping, kicking, pinching, biting, or corporal punishment of a vulnerable adult). 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 Vulnerable Adults Act and EASE training. 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 abuse for which the SP was responsible was not “recurring maltreatment” because it was a single incident but was “serious maltreatment” because the VA sustained a cut above his/her right eyebrow and a bruised lip. Action Taken by Facility: The facility completed an Internal Review and found their policy and procedures adequate, but not followed by the SP. The SP no longer worked at the facility. Action Taken by Department of Human Services, Office of Inspector General: The SP was notified that s/he was responsible for serious maltreatment and that any future background studies for facilities, programs, organizations, and/or agencies that are required to have individuals complete a background study by the Department of Human Services as listed in Minnesota Statutes, section 245C.03, will result in his/her disqualification. The determination that the SP was responsible for maltreatment is subject to appeal.
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