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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: 1069153-H_CRS (Home and Community-Based Services-Community Residential Setting) Investigator(s): Gessner Rivas/Carla Harvieux 651-431-3970 Suspected Maltreatment Reported: It was reported that after a staff person (SP) directed a vulnerable adult (VA) to use a fork while eating a snack, the VA spat on the SP and the SP slapped the VA multiples times on the face. Date of Incident(s): November 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 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 December 8, 2022; documentation from the facility, law enforcement records; and through three interviews conducted with the VA, a facility staff person (P1) and a supervisory staff person (P2). Investigators contacted the SP for an interview, but the SP declined to be interviewed. However, the SP provided information to law enforcement (LE) so that information was included below. The facility provided waivered services to adult clients in a single-family home housing two clients. The VA was diagnosed with Asperger Syndrome, post-traumatic stress disorder (PTSD), anxiety, depression, and autism spectrum disorder. The VA’s Individual Abuse Prevention Plan (IAPP) noted that staff persons should verbally redirect the VA to use calming techniques, prompt the VA to walk away from an abusive situation, and physically remove the VA if necessary, whichever was least restrictive. The VA’s Coordinated Services and Supports Plan (CSSP) noted that the VA was learning self-care skills and hoped to someday not need adult foster care services and live on her/his own. P1 provided consistent information to investigators and LE: · On November 21, 2022, at approximately 3 p.m., the SP arrived at the facility for her/his scheduled shift. P1 was talking with the SP in the kitchen when the VA came out to get a coco rice crispy bar that had been made by P1. The VA reached into the pan with her/his hand, the SP directed the VA to use a fork, and they argued back and forth. · The VA began to eat the bar, crumbled some of it in her/his hand and dropped it on the counter, and began to walk away when the SP stepped in front of the VA and told her/him to clean it up. The VA spat in the SP’s face covering her/his face in chocolate. The SP then open handed slapped the VA’s face on the left side. P1 noted that it was not a hard slap and it appeared that the SP tried to stop but it was too late. · The SP told the VA that that was the “most disrespectful thing you can ever do is spit on somebody’s face.” The VA then spat on the SP’s face again, a second time, around 3:07 p.m. The SP then slapped the VA across the left side of her/his face. P1 noted that the second slap was harder than the first. · Around 3:10 p.m., P1 then went for a piece of paper towel to wipe the VA’s face but the VA spat on the SP’s face a third time and the SP slapped the VA again on the left cheek. · P1 stated that the VA tried to walk away when the SP grabbed the VA by her/his ponytail and pushed the VA towards the hallway and said, “Go to your room.” P1 then stepped in and walked with the VA to a back room to talk. · P1 stated that the VA asked, “Could [the SP] do that,” referencing slapping her/him, and started to cry. The VA told P1 that they used to get along until the VA started “losing my shit.” · P1 stated that the SP called a facility supervisor at the facility office, said that the VA had spat in her/his face and said s/he was done and was not going to work there anymore. P1 noted that the SP was also crying. Shortly after, the supervisor arrived at the facility and then the SP left. · P1 did not see any marks on the VA’s face after being slapped by the SP but it would have been hard to see because when the VA got upset her/his face got red. P1 noted there was another staff person that was in the back of the facility, but s/he did not witness the incident. Note: LE spoke with the VA three hours after the incident but did not observe any marks on the VA’s face. LE took photographs of the VA’s face. · P1 stated that staff persons received training on deescalating situations with residents, including methods such as taking a break, separating, and talking in a calm voice. The VA provided the following information: · The VA stated that aside from minor things, s/he had no previous problems with the SP. · The SP did not tell her/him to use a fork until after s/he had put her/his hand into the pan. · The VA stated that s/he was slapped three times but did not feel pain or swelling because of the slaps. · The VA further noted that the way the SP reacted reminded her/him of her/his mother. On November 23, 2022, the SP provided the following information to LE: · The SP noted that things with the VA had been building up since November 16, 2022, the week prior to the incident. During an inspection, the VA called numerous people visiting various names and threw items down the hallway. The following day, the SP took the VA to an emergency room for a mental health check where s/he was kept overnight. On November 18, 2022, the VA threw a glass of milk at the SP because s/he was told s/he could not have a box cutter or cleaning supplies in her/his bedroom. The VA then came out of her/his bathroom with a box of things and began to throw them at the SP and squirting the contents out throughout the kitchen. The SP told the VA to settle down or s/he would call the police, but the VA did not. LE was called and the VA was taken to the emergency room. Later that night, around 12 a.m. the SP was called by the hospital to pick up the VA, but s/he could not leave another client without supervision at the facility. The VA returned to the facility around 12:15 a.m., the SP did not know how the VA got back to the facility. · On Sunday, November 20, 2022, the SP saw the VA out in the community, so the SP called LE and LE checked on the VA. After LE left, the VA approached the SP and “clown danced” in front of the SP’s vehicle. Later that day at the facility, the VA got in the SP’s face and “clown danced,” called the SP a “cunt,” and said that the “cops” were on her/his side. The SP noted that the VA refused her/his meds that night. · SP stated that when s/he arrived at the facility at 3 p.m., on November 21, 2022, s/he was told by others that the VA was in her/his room. The SP stood by end of the counter in the kitchen and sat the rice crispy bars down on the counter. The VA came out and got in the SP’s face, walked around, and picked up bars with her/his hands. The SP told the VA to use a fork and the VA replied, “Fuck you,” and kept digging into the bars. The VA walked down the hall and the SP told P1, “That’s why we can’t eat nothing here,” referring to the VA using her/his hands to eat food. · The VA came back to the counter and took some of the bar out of her/his mouth and into her/his hand and crumbled it out on the counter. The SP told the VA to clean it up and the VA replied, “Fuck you, you fucking whore.” The SP again told the VA to clean it up. The VA then spat in the SP’s face and the SP “in instinct” slapped the VA. The SP stated that the VA spat three more times in her/his face, and that the VA approached the SP and the SP place her/his hand on the VA’s back and turned the VA towards the hallway, but the VA’s hair got caught in the SP’s ring. Then P1 took the VA to her/his room. · The SP also stated that a couple of weeks prior to the incident, s/he asked the VA if s/he would hurt him/herself and the VA replied, "No, I'm waiting for one of you fucking cunts to hurt me, then I'll be out of here." · Note: In the SP’s statement to LE, the SP only mentioned slapping the VA once. P2 provided the following information: · After the incident, the SP called a facility supervisor at the office to tell them about the incident, and then the SP was relieved from her/his shift. Later that day, P2 spoke with the SP about the incident and the SP resigned. · P2 met with the VA days later and observed no visible marks on the VA’s face as a result of being slapped. Facility documentation showed that P1 and the SP were each trained on the Reporting of Maltreatment of Vulnerable Adults Act and on the VA’s plans. Conclusion: A. Maltreatment: On November 21, 2022, the SP and the VA argued regarding the VA using her/his hand to reach into a pan of coco rice crispy bars. The VA spat on the SP’s face three times. P1 and the VA each stated that each time, the SP responded by slapping the VA across the left cheek. The SP told LE that s/he slapped the VA on the face but only stated that s/he slapped the VA once. P1 and P2 each stated that the slaps did not leave a mark on the VA’s face. The VA was visibly affected by the incident because it reminded the VA of her/his past experiences with her/his mother and P1 observed the VA crying. Given that P1 and the VA provided consistent information that the SP slapped the VA three times on the face, and the SP told LE that s/he slapped the VA, there was a preponderance of the evidence that the SP’s conduct was not accidental or therapeutic conduct and could be expected to produce physical pain or injury to the VA. 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 VA’s plans, de-escalation techniques, and the Reporting of Maltreatment of Vulnerable Adults Act prior to the incident. The SP was responsible for physical abuse 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 physical abuse for which the SP was responsible did not meet the statutory criteria to be determined as recurring because it was a single incident nor serious because the VA did not sustain an injury as a result of the incident.
Action Taken by Facility: The facility completed an Internal Review which stated that its policies and procedures were adequate but were 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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