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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: 1109281-H_CRS (Home and Community-Based Services-Community Residential Setting) Investigator(s): Jason Pehler Suspected Maltreatment Reported: It was reported a staff person (SP) did not supervise a vulnerable adult (VA), and the VA ingested windshield wash fluid. Date of Incident(s): January 20, 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 February 10, 2023; from documentation at the facility, and medical records; and through six interviews conducted with the VA, facility supervisors (P1 and P2), the VA’s case managers (CM1-CM2), the VA’s medical guardian (G), and the SP. Facility documentation showed the VA advocated for him/herself and had a good sense of humor. The VA enjoyed taking walks, going to craft stores, listening to music, and watching television. The VA was diagnosed with borderline personality disorder, schizoaffective disorder, depression, post-traumatic stress disorder, developmental disabilities, and morbid obesity. The VA’s client specific programming showed the VA had a history of engaging in self-injurious behaviors (SIB), including ingesting harmful items. As a result of the SIB, the VA had multiple physical health diagnoses, including kidney and liver concerns related to ingesting over the counter medications. The VA’s history of SIB required frequent involvement of emergency medical services. The facility provided 24-hour support and supervision to promote independence and meet the VA’s physical and emotional health, safety, recreational and independence needs. The facility provided the VA with 2:1 staffing at all times, however, the overnight staffing included one awake and one asleep staff person. On the night of the incident there was a scheduling issue as both overnight staff persons scheduled to work believed they were the asleep overnight staff person, not the awake. However, the SP was designated as the awake staff person after a discussion with P2. The asleep staff person went to the staff person bedroom to go to sleep and was not involved in the incident because s/he remained in the bedroom during the incident. The VA was the only person who lived at the facility. The facility had two entrances, one located through the garage, and the other entrance was on the side of the house. A walkway wrapped around the side of the house to stairs and a porch. There was a door off the porch which opened into the living room. The VA’s bedroom was located directly off the right side of the living room. The living room had a couch and chair. The couch was located next to a window that could view the porch area. The facility had an open concept with the living room, dining room, and kitchen. There were two hallways off of the open concept area, and the hallways were in different directions. The hallways led to additional bedrooms and the garage respectfully. The VA’s client specific programming showed the following: · The VA’s client specific documentation included multiple documents which stated the VA required 24-hour supervision and support, and repeatedly stated the VA’s significant history of SIB, and other negative behaviors. · The VA’s elopement protocol stated, the VA liked having staff person’s “full attention,” and asked that staff persons not be on their cell phones. The VA struggled with suicidal ideations and may attempt to harm him/herself by removing him/herself from the staff person’s sight. · The VA’s awake overnight protocol stated, before the VA went to bed the staff person would perform a room check before the VA entered his/her room to ensure there were no objects that that could be ingested or used for harm. Staff persons should sit in a chair at the side or foot of the VA’s bed until s/he fell asleep. Staff persons would remain in the room after the VA fell asleep, or staff persons may sit outside of the VA’s bedroom once s/he was asleep. · The VA engaged in SIB and if s/he swallowed a non-edible/toxin, staff persons should call poison control and complete notifications and documentation of the incident. The VA provided the following information: · The VA said while the SP was at the facility s/he drank approximately two 20-ounce bottles of windshield wash fluid. The VA said s/he went outside to smoke and while outside s/he walked to the garage. The VA found windshield wash fluid in the facility vehicle and filled his/her 20-ounce water bottle in the garage and drank it immediately. The VA re-filled the bottle with the windshield wash fluid, s/he walked back to the porch, and eventually back into the facility. Once back in the facility the VA ingested the second 20-ounce bottle of windshield wash fluid while in his/her bedroom. · The VA said the SP was in the staff person office and/or making phone calls prior to and during the time the VA was outside smoking/ingesting the windshield wash fluid. The VA said the SP did not believe the VA drank windshield wash fluid; however, the VA showed the SP the water bottle which had some of the windshield wash fluid at the bottom of the bottle. The facility’s camera recording was reviewed by this investigator, and the following was observed on January 20, 2023: · 11:00:15 p.m.: The VA used the living room door to go outside to smoke a cigarette on the porch. The SP was sitting on the living room couch and observed the VA go outside. · 11:01:48 p.m.: The VA walked down the porch stairs and down the walkway towards the front of the driveway/garage. · 11:02:06 p.m.: The VA went out of camera view. · 11:02:34 p.m.: The automatic lights on the garage turned on. The VA was still out of camera view. · 11:05:09 p.m.: The VA returned to the camera view and walked back up the sidewalk towards the porch. · 11:05:57 p.m.: The VA remained in camera view as visual puffs of smoke could be seen and audio noises could be heard. · 11:07:27 p.m.: The porch door was opened and the outdoor light on the porch turned off. The VA walked into his/her bedroom briefly, before returning to the living room. The VA placed his/her coat on a chair in the living room and sat down at a kitchen table. · During the time the VA was outside the SP was inside the facility and sitting on a couch. While on the couch the SP appeared to look out of window multiple times but was also looking at his/her cell phone and may have had his/her eyes closed. The SP did not maintain continuous visual supervision of the VA. · After the VA re-entered the facility, the SP minimally engaged with the VA and appeared to have his/her eyes closed. At 11:18 p.m., the VA came out of his/her bedroom and requested assistance from the SP. After assisting the VA, the SP returned to the couch, looked at his/her phone, and again appeared to close his/her eyes at 11:21:20, while the VA was sitting at the kitchen table. · At 11:24 p.m., the VA handed the SP a piece of paper, and the SP read the paper. The SP asked the VA a question, and the VA could be heard stating, “You don’t believe me about the bottle?” The VA added a statement about going to the “hospital,” and went to his/her bedroom. The VA returned to the living room with a plastic bottle and said, “I drank two of these and there is still stuff on the bottom.” The SP immediately made a phone call, and thereafter 9-1-1 was contacted. Emergency personnel arrived at the facility at approximately 11:50 p.m. The SP provided the following information during the facility’s internal investigation and to this investigator: · The SP said prior to the incident s/he had contacted an on-call supervisor due to a scheduling error. · The SP said s/he maintained visual contact of the VA while the VA was inside and outside of the facility. The SP said the VA went outside to smoke and was wearing a jacket. The SP observed the VA “the entire time” from a window while the VA was outside. The SP watched the VA through the window and the VA did not go to the garage while the SP was working. After the VA came back inside the SP did not observe the VA having any items on his/her person. Thereafter, the VA went into his/her bedroom, before returning to the kitchen table and writing a note describing him/her drinking the windshield wash fluid. · The SP said while law enforcement (LE) was at the facility the vehicle was found unlocked, and LE looked inside the vehicle. A bottle was windshield wash fluid was found and was “full to the brim,” and no “indication” any fluid had been removed. LE and there was no indication of any fluid taken from the bottle. · After the VA informed the SP of the ingestion of windshield wash fluid, the SP contacted an on-call supervisor and 9-1-1. LE reviewed body camera footage and provided a screenshot which showed the windshield wash fluid bottle was not full as described by the SP. Additionally, LE commented that the bottle “seemed wet.” P1 was not present for the incident and said the SP was not a staff person who regularly worked at the facility; however, the SP had completed training at the facility. P1 said the VA had a history of ingesting items and required constant visual supervision. P2 spoke with the SP on the phone multiple times on the day of the incident. The initial phone call was regarding the scheduling issues, and thereafter about the VA ingesting the windshield wash fluid. P2 obtained photos of the windshield wash fluid bottle the morning after the incident occurred. The photo was of a one-gallon bottle of the windshield wash fluid. The gallon jug was approximately 2/3 full of wind shield wash fluid. CM1, CM2, and the G said the VA had a history of ingesting non-edible items and would find items that caused him/herself harm. The VA was described as a “storyteller,” and there were concerns about the VA’s history of being an inaccurate reporter of information. Medical records showed the VA was admitted to a medical center on January 20, 2023, due to methanol ingestion and required treatment that included dialysis and medications. The VA was discharged on January 23, 2023. The SP, P1 and P2, were each trained on the Reporting of Maltreatment of Vulnerable Adults Act, the facility’s policy and procedures, and the VA’s client specific programming. Facility documentation showed the SP completed a review of the VA’s individual programs twice within the last six months; November 24, 2022, and January 20, 2023. Conclusion: A. Maltreatment: It was reported the SP did not maintain supervision of the VA as required and the VA was able to obtain and ingest windshield wash fluid while unsupervised. The VA said s/he went outside to smoke on January 20, 2021, and while outside s/he went into the garage. The VA found windshield wash fluid and drank one 20-ounce bottle of the windshield wash fluid and filled a second which s/he drank once s/he went back into the facility. The VA informed the SP who called 9-1-1, and subsequently the VA required hospitalization. The SP said s/he maintain supervision of the VA while s/he was at the facility, however the facility video recording was reviewed, and showed the VA was not supervised for approximately three minutes while the SP was sitting on a couch inside and the VA was outside the facility. There was no recording of the VA obtaining the windshield wash fluid during that time, however there was also no information which showed s/he obtained the windshield wash fluid any other time and the VA was seen walking toward the garage and said s/he went into the garage at that time to obtain the windshield wash fluid. Although there was information which showed the VA was an inaccurate reporter of information, and some of the information within the VA’s interview did not match the video recording, the video supported the VA’s version of events more so than that of the SP’s description. Specifically, the SP stated s/he had visual contact of the VA during the time the VA was outside, but was observed in the video on the couch, looking at his/her phone, and with his/her eyes closed. Given that the SP did not supervise the VA as required and was responsible for the VA’s supervision when the VA obtained and ingested windshield wash fluid which subsequently required hospitalization, there was a preponderance of evidence that the SP failed to supply the VA with reasonable and necessary care and services. 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. The SP received training on the VA’s programming, and supervision requirements. The SP was responsible for maintaining direct supervision of the VA, and ensuring the VA’s health and safety, however the SP failed to implement the VA’s required supervision. Therefore, 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 was not “recurring maltreatment” because it was a single incident but was “serious maltreatment” Because the VA was hospitalized for multiple days and required medical treatment that included dialysis and medications from a physician as a result of ingestion of the windshield wash fluid. The SP was disqualified from providing direct contact services. Action Taken by Facility: The facility completed an internal review and determined the facility’s policies and procedures were adequate, but not followed. The report was similar to past events as the VA had significant history of SIB. The facility took corrective action to protect the persons that received services. The facility did not complete any retraining for the SP, and the SP was no longer employed at the facility. Action Taken by Department of Human Services, Office of Inspector General: The SP was disqualified from a position allowing direct contact with, or access to, persons receiving services from 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. The determination that the SP was responsible for maltreatment and the disqualification of the SP are each subject to appeal.
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