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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: 1068891-H_DSF (245D-Home and Community-Based Service-Day Services Facility) 1068888-HCBS (245D-Home and Community-Based Services) Investigator(s): Thomas Nixon/Danielle Morrison 651-431-2155 Suspected Maltreatment Reported: It was reported that a staff person (SP) dropped a vulnerable adult (VA) off at home without ensuring the VA could get inside and then left. The VA was outside unattended and unsupervised for 60 – 75 minutes in zero to nine degrees weather which resulted with the VA to receiving second degree frostbite and blistering. Date of Incident(s): December 21, 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 January 20, 2022; from documentation at the facility and medical records; and through eight interviews conducted with the vulnerable adult (VA), the staff person (SP), facility supervisory staff persons (P1 and P2), the VA’s guardian (G), and the VA’s residential staff persons (R1 and R2). The VA’s diagnoses included moderate intellectual disability, attention-deficit/hyperactivity disorder, and athetoid cerebral palsy. The VA used a speech tablet device for communication, which was broken and not available during the investigation. The VA also communicated through gestures and limited speech. The VA enjoyed listening to music, watching YouTube, going to and watching sporting events, spending time with his/her family, and doing art projects. The VA attended services at the facility three days a week from 9 a.m. to 3 p.m. While there, the VA was assisted with transportation to and from the facility, employment development and/or exploration, supported employment, accessing communication programs, activities, resources, goal setting, and safekeeping of funds. The Coordinated Service and Support Plan (CSSP) Addendum stated, “If [the VA] were to be alone in the community and need support, [s/he] might not know the appropriate person to go to for help… [The VA] might not know what do to emergency situations.” On December 20, 2022, at 12:18 p.m. the facility sent an email to client contacts which stated that the next day (December 21, 2022) the facility would be closing early at 1 p.m. due to forecasted weather. The VA provided the following information: · The SP usually drove the VA home from the facility and when the VA arrived home, the doors were typically unlocked and R2 was there waiting for the VA. · On the day of the incident, the SP dropped off the VA and drove away. The VA could not get inside and waited outside. The VA said it was cold. The VA was wearing a headband but was not wearing gloves. (Note: P2 said it was possible that the VA had gloves with him/her but was not wearing them.) · The VA also said it was icy and s/he fell outside the home and landed on his/her knees. (Note: P2 said the VA wore knee pads because his/her unsteady gait caused the VA to fall multiple times a day.) The VA said R2 arrived later and the VA was able to get inside. The VA showed his/her hand where s/he got frostbite and blisters from being outside. P1, P2, the G, R1, and R2 provided the following information: · P2 said typically the SP drove a van with eight to eleven clients, including the VA, and the VA was the second or third stop on the route. The SP had driven this route for the past two months. The SP was to see the VA get through the doors and into the home prior to driving away. The facility protocol for when any clients could not get inside was to have client get back into the van. From there, the staff person should call the residential provider and if there was no response, the staff person should call facility supervisory staff persons for further direction. The staff person would then continue the normal route, stopping back at the client’s residence to see if any residential staff person had arrived. If not, then the client was to be transported back to the facility where the client would remain until contact was made with the residential provider for a plan to get the client home. P1 said that the facility noted this policy in several places and staff persons were to make sure clients made it into their homes before leaving. · On December 20, 2022, in the afternoon P2 emailed R1 as part of an email blast alert that due to the weather, the following day, December 21, 2022, the facility was closing at 1 p.m. instead of the typical 2:45p.m. P1 believed an automated phone call was also sent out on December 21, 2022, in the morning to the VA’s residential provider with similar information. P2 said there was no communication from R1 acknowledging the early end time that day but that was typical. R1 said s/he did not get the email from the facility on time and there were no residential staff persons at the home when the automated phone call was sent out. As a result, R1 was not aware that a residential staff persons needed to work early because the VA was arriving home early. · On December 21, 2022, prior to 2:30 p.m., R2 received a telephone call from R1 confirming how far away R2 was from the home. R1 told R2 another resident and his/her Metro Mobility driver were waiting outside the home for a residential staff person to arrive so the resident could get inside. R2 arrived at the home between 2 and 2:30 p.m. and was told by the Metro Mobility driver that there was another client in the yard outside the home when they arrived. R2 then saw the VA with a neighbor at the mailbox towards the end of the yard and the VA came to the front door. The neighbor and R2 did not talk. The VA wearing his/her hat and a winter jacket, but R2 did not recall if the VA was wearing gloves. R2 also saw the VA’s lunch box and other items on the front porch of the home. R2 assisted both the VA and the other resident inside the home. Once inside, the VA was “shivering” and appeared cold. The VA gestured about being outside, the door being locked, and that s/he was cold. R1 and R2 were not aware of or informed by the VA there was any injury to his/her hand. · On December 24, 2022, the VA was with the G. The G saw that the VA had blisters on his/her left hand fingers and took a picture. (The picture showed that the VA’s pinky had a blister on the tip and his/her left ringer finger had an open area of skin that appeared as though a blister had popped.) The VA demonstrated that the area was sensitive by avoiding washing his/her hands and/or having other touch it. The G researched online how to treat them and applied antibiotic ointment to the area on the VA’s fingers. · On December 26, 2022, the G emailed P2 and R1 that the VA sustained “severe frostbite” on his/her left hand from the incident on December 21, 2022. The G wrote, “[The VA] said it hurt but [s/he] didn’t tell staff about it. Because of the Christmas holiday we didn’t take [him/her] to the doctor… [S/he] ‘guards’ [his/her] hand as [s/he] says it hurts.” · The G was later told by the VA that s/he could not get inside the home because the door was locked. The VA also told the G that while outside s/he fell and his/her hand went into the snow. (Note: The VA did not inform staff persons at the residential program of the fall or injuries and staff persons were not aware of any discomfort to the VA’s hand.) · On December 27, 2022, the VA attended a telehealth visit with his/her medical provider and R1. The After Visit Summary noted the VA had frostbite and was to use bacitracin and a bandage on the open blister twice daily for one week and discontinue once new skin grew in. · The facility was closed from December 22, 2022, through January 2, 2023, due to the weather and the holidays. On January 3, 2023, the P2 read the email from the G regarding the blisters on the VA’s fingers. That evening, (January 3, 2023), P2 received another email from the G updating P2 about the VA’s telehealth visit. The G also noted that the VA was given a pair of mittens, but the VA may decide not to wear them, and a new winter coat because the zipper was broken. · P2 was informed by the SP the VA was dropped off at the home around 1:30 p.m., which was about two hours earlier than his/her usual drop-off time. P1 and P2 were later told by the SP that s/he saw the VA open the house door and then the SP drove away. (Note: The entry to the VA’s home had an external screen/storm out-swing door and internal in-swing door panel.) The SP provided the following information: · The SP drove the VA’s route using the facility van twice a day, four days a week picking up and dropping off clients. At the VA’s home, if there were no cars in the driveway, the SP pulled the van into the driveway. If there was a vehicle in the driveway, the VA parked on the street, exited the van with the VA, and they walked the VA up the inclined driveway. If the garage door was open, the VA walked into the home through the garage. If the garage door was closed, the VA walked into the home through the front door. The front door was to the left of the garage door and was several feet back under an overhang. When the SP walked with the VA up the driveway, they separated at the top flat area. The SP did not take the VA to the interior garage door or front door of the home. · On December 21, 2022, between 1 and 1:30 p.m. the SP and seven clients, including the VA, got into the facility van and left on the route. The SP dropped off two other clients and then about 20 to 25 minutes into the route arrived at the VA’s home. There were no cars in the driveway so the SP pulled into it and up to the VA’s home. When the VA exited the van, s/he went to the front door because the garage door was closed. The SP saw a door to the home open outward and believed the VA entered the home. The SP was unaware that the home an external screen/storm out-swing door and internal in-swing door panel. The SP was unaware the internal in-swing door panel was locked the VA was unable to get into the home. · The SP then looked in the rearview mirror of the van to back out while talking with the other clients in the van. The SP did not take a second look at the VA as s/he backed the van from the driveway and did not see the VA standing at the front door. The SP said the other clients in the van “can be chatty” and s/he assumed s/he was engaged in conversation which resulted in him/her not making a second look to confirm the VA entered the home. The SP knew that facility protocol was to confirm the client entered the home prior to leaving. According to timeanddate.com, on December 21, 2022, between 12 and 6 p.m. it was cloudy and overcast with light snow and the temperature ranged between negative three and zero degrees Fahrenheit. Facility Policy and Procedures on Safe Transportation stated, “Staff will drop off participants at designated location with observation of participant entering the residence. Drivers are prohibited from leaving the premises if a participant has not entered their residence. When dropping off persons served at a site which requires a change in staff, transporting staff will ensure that staff or another responsible party are present before leaving the person served unless otherwise specified in the person’s Support Plan and/or Support Plan Addendum.” (Note: the VA’s Support Plan and/or Support Plan Addendum did not provide any otherwise specified information.) Training materials provided by the facility showed that the SP was trained on the Reporting of Maltreatment of Vulnerable Adult Act and the facility’s Policy and Procedures on Safe Transportation. Conclusion: A. Maltreatment: On December 21, 2022, the VA’s facility closed early due to weather. The facility emailed and called the residential provider the day prior and the day of regarding the early closure. The SP left the facility between 1 and 1:30 p.m. and about 20 to 25 minutes later dropped the VA off at his/her home. The SP pulled into the driveway and watched the VA go to the front door of the home saw the front door of the home open, and then drove away without looking back to confirm the VA had entered the home. The interior door of the home was locked the VA was unable to get into and remained outside the home until between 2 and 2:30 p.m., when R2 arrived to the facility. While outside unsupervised, the VA fell and his/her hand went into the snow. It is unknown how long the VA was outside unsupervised and exposed to the weather prior to R2 arriving and getting access to the home. R1 and R2 were not aware of or informed by the VA there was any injury to his/her hand. On December 24, 2022, the G saw the VA had blisters and popped blisters on his/her left fingers, attended to them, but did not seek medical care due to the holiday. On December 27, 2022, the VA and R1 attended a telehealth appointment with the VA’s primary care clinic and were provided instructions on how to treat the frostbite. The After Visit Summary noted the VA had frostbite and was to use bacitracin and a bandage on the open blister twice daily for one week and discontinue it once new skin grew in. The facility notified the residential provider of the planned closure, however, the responsibility and the safety of the VA remained with the facility and the SP until the residential provider took over. Information from P2, the SP and facility policies and procedures was consistent that the SP was to observe the VA get into the residence and should not have left prior to that. At the time of the incident the VA wore a head covering and a coat, however, the VA was not wearing gloves and it is unknown if s/he had them with at the time. Given that the CSSP Addendum stated, “If [the VA] were to be alone in the community and need support, [s/he] might not know the appropriate person to go to for help… [The VA] might not know what do to emergency situations;” that at the time of the incident the temperature outside ranged between negative three and zero degrees Fahrenheit; that the SP left the facility prior to ensuring the VA got inside; and that the VA sustained frostbite, there was a preponderance of the evidence that there was a failure or omission by a caregiver to supply a vulnerable adult with care or 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 was trained on the Reporting of Maltreatment of Vulnerable Adult Act and the facility’s Policy and Procedures on Safe Transportation. The SP was responsible for the care and supervision of the VA when s/he left the VA outside prior to leaving. 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 and although the VA went to the doctor, the VA was prescribed medication that was available over the counter so did not reasonably require the 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 facility provided additional training to the SP regarding the facility Policy and Procedures on Safe Transportation. 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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