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May 15, 2023 RE: Wellbeing Home Care LLC License Number: 1106844 (245D-HCBS) Abdi Mahamed, Authorized Agent 3601 Portland Avenue Minneapolis, MN 55407-2516 Dear Mr. Mahamed: This matter arises from an Order of Conditional License (“the Order”) on Wellbeing Home Care LLC (“Wellbeing” or “you”) dated February 6, 2023 (See attached Exhibit A). On February 24, 2023, the Minnesota Department of Human Services (DHS), Licensing Division, received your request for reconsideration of six violations (1, 4, 5, 14, 15, and 17) issued in the Order of Conditional License. The challenged violations are addressed below. Because you did not challenge the remaining violations, they are final. The Order listed 17 violations, however in several places the Order states there were 18 violations. DHS is clarifying that there were only 17 violations in the Order. A. RECONSIDERATION OF THE CITATIONS IN THE ORDER OF CONDITIONAL LICENSE Program Coordination and Oversight Violations 1. Violation 1: The license holder did not meet the requirements for program coordination, evaluation, and oversight. a. The license holder failed to ensure that the designated coordinator (“DC” or “SP4”) was competent to perform the required duties, including the supervision, support, and evaluation of activities that included: · oversight of the license holder’s responsibilities assigned in the person’s support plan and support plan addendum; · taking the action necessary to facilitate the accomplishment of the outcomes according to the requirements in section 245D.07; · instruction and assistance to direct support staff implementing the support plan and the service outcomes, including the failure to have an established process in which the designated coordinator determines the competency of the person that has been has delegated the responsibility to directly observe the service delivery activities to assess staff competency; · evaluation of the effectiveness of services delivery, methodologies, and progress on the person’s outcomes based on the measurable and observable criteria for identifying when the desired outcomes based on the measurable and observable criteria for identifying when the desired outcome has been achieved according to the requirements in section 245D.07. The failure to provide program coordination and oversight of the services provided is evidenced in citations 2 through 18. b. The license holder failed to ensure that the designated manager (“DM” or “SP4”) was competent to perform the required program management and oversight of the services provided by the license holder, included: · maintaining a current understanding of the licensing requirements sufficient to ensure compliance throughout the program as identified in section 245A.04, subdivision 1, paragraph (e), and when applicable, as identified in section 256B.04, subdivision 21, paragraph (g); · ensuring the duties of the designated coordinator are fulfilled according to the requirements in subdivision 2; · ensuring staff competency requirements are met according to the requirements in section 245D.09, subdivision 3, including ensuring periodic performance evaluations of the direct support staff’s ability to perform the job functions based on direct observation are completed by the license holder; and · evaluating the information identified in clauses (1) to (6) to develop, document, and implement ongoing program improvements. The failure to provide program management and oversight of the services provided is evidenced in citations 1 through 18. Statute Violated: Minnesota Statutes, section 245D.081, subdivisions 2 and 3. Your request for reconsideration: You state that by hiring a DC and DM that met the required statutory qualifications, you per se met the compliance requirements for this statute. You explained that you took the required steps at the outset to ensure the position was filled by someone competent. You indicate that prior to the Conditional Order, there were no other DHS citations and only one citation issued by the County. DHS’ response: Minnesota Statutes, section 245D.081, provides that the license holder is responsible for coordination of service delivery and evaluation and program management and oversight. Even though the DC and DM met the minimum education and training requirements, it is the ongoing responsibility of the DC and DM to ensure the license holder operates in compliance with licensing requirements. As a result, the license holder is responsible for their failure to meet their obligations section 245D.081, as demonstrated by the other 16 violations in the Order. There is sufficient evidence to support Violation 1 and it is affirmed. 2. Violation 4: For two persons whose records were reviewed (P1 and P2), the license holder did not meet the person’s health needs as required. a. The license holder was assigned the responsibility of meeting P1’s health needs, including medication administration. P1 was prescribed a psychotropic medication to be administered as needed (PRN). The license holder failed to maintain documentation of how P1’s health needs would be met, including a description of the procedures the license holder would follow when administering the PRN medication to P1. b. The license holder was assigned the responsibility of meeting P2’s health needs. P2’s support plan addendum stated that the license holder was responsible for “administration of all medications; scheduling and transporting to medical appointments. Converse with providers and document appointments in health record.” P2 had an emergency room visit in September 2022 that resulted in three new prescribed medications. The license holder stated that the license holder transported P2 to the emergency room and dropped P2 off for emergency care. P2 returned to their community residential setting facility without transportation assistance from the license holder. On September 28, 2022, P2 obtained the three new medications prescribed to them during the emergency room visit. P2 stored the medications in their bedroom. Several days later P2 brought the medications to staff. Staff put the medications in P2’s medication drawer, but did not begin to administer the medications. The license holder failed to meet P2’s health needs when the license holder did not converse with the medical provider or document the emergency room visit in P2’s health record. At the time of the licensing review on October 10, 2022, a DHS licensor discovered the three prescriptions in P2’s medication drawer. The license holder was unaware of the medications that had been dispensed to P2 twelve days prior and they had not administered the medications as required in P2’s support plan addendum. Statute Violated: Minnesota Statutes, section 245D.05, subdivision 1. Your request for reconsideration: You did not challenge part a of the citation. Regarding part b, you contend P2 received the medications after a visit to the emergency room. You state P2 did not inform staff about the prescriptions and kept them in his/her own living space. You indicate the prescription was discovered by staff when assisting P2 in his/her living space on the same day as the licensing review, which is when staff placed the medications in P2’s mediation drawer. You argue that no medications were administered by staff to P2 before the licensing review and that you did everything you could to follow your established procedure, short of violating P2’s rights by searching his/her room. DHS’ response: a. You did not challenge part a of the citation, therefore it is affirmed. b. You failed to meet your responsibility for P2’s health support needs as assigned to you in his/her support plan. P2’s support plan stated you were responsible for administering P2’s medications, scheduling and transporting P2 to medical appointments, and to converse with providers, and document appointments in P2’s health records. Since you transported P2 to the emergency room, you knew he had been treated there. P2’s support plan required you to converse with the providers and to document the appointment in P2’s health records. On the day of the licensing review, you did not meet either of these requirements. Therefore, violation 4, is affirmed.
3. Violation 5: For two persons whose records were reviewed (P1 and P2), the license holder did not implement medication procedures as required. a. The license holder was responsible for medication administration for P2’s medications. During the course of the licensing review conducted on October 10, 2022, a DHS licensor discovered that P2 had three recently prescribed medications that the license holder failed to list on P2’s medication administration record (MAR) and failed to administer the medications from September 28 – October 10, 2022. b. P2’s MAR for August 2022 had four blank spaces where it could not be determined if P2 received the medications. c. The license holder was responsible for administering medications for P1. P1 had one prescribed medication. P1’s MAR listed the medication as Olanzapine 10mg, take 1 tab by mouth at bedtime. Upon viewing P1’s medication, a DHS licensor observed that the prescription label on P1’s medication stated that the medication was Olanzapine 25mg, take 1 tab by mouth at bedtime as needed (PRN). The license holder had been administering the Olanzapine 25 mg tabs since at least August 2022. The license holder failed to check P1’s MAR to ensure the prescription label matched what was documented in the MAR. d. For P1 and P2, the license holder failed to ensure the following information was documented in their medication administration records: · information on any risks or other side effects that were reasonable to expect, and any contraindications to the use of each medication which must be readily available to all staff administering the medication; and · the possible consequences if the medication or treatment was not taken or administered as directed. Statute Violated: Minnesota Statutes, section 245D.05, subdivision 2, paragraphs (a) and (b). Your request for reconsideration: You state violation 5 includes the same allegations as violation 4 regarding P2 and you contend that you did not commit any violation regarding P2’s medications. You state that violation 5 is correct in regards to P1, that P1’s prescription was 25 mg and that the mediation administration record was incorrect when it listed it as 10 mg. DHS’ response: While the findings used for the basis of violations 4 and 5 are similar, they constitute violations of two separate licensing requirements. Therefore, the citation as it relates to P2 is correct. As for P1, you admit there was an error on P1’s medical administration record. You do not contest any other part of violation 5. As such, there is sufficient evidence to support this violation and it is affirmed. 4. Violation 14: For three of four staff persons whose records were reviewed (SP1-SP3), the license holder did not provide orientation training as required. a. At the time of the licensing review, a DHS licensor requested training curriculums for the training the license holder provided. The license was unable to provide any documentation of material covered or how competency was evaluated for SP1 and SP2 for any of the training topics. A DHS licensor was unable to determine if the license holder provided the trainings. The license holder failed to provide orientation training on the following topics to SP1 and SP2: · data privacy requirements according to sections 13.01 to 13.10 and 13.46, the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA), and staff responsibilities related to complying with data privacy practices. · the service recipient rights and staff responsibilities related to ensuring the exercise and protection of those rights according to the requirements in section 245D.04; · the principles of person-centered service planning and delivery as identified in section 245D.07, subdivision 1a, and how they apply to direct support service provided by the staff person; · the safe and correct use of manual restraint on an emergency basis according to the requirements in section 245D.061 and what constitutes the use of restraints, time out, and seclusion, including chemical restraint; · staff responsibilities related to prohibited procedures under section 245D.06, subdivision 5, why such procedures are not effective for reducing or eliminating symptoms or undesired behavior, and why such procedures are not safe; · basic first aid; and · strategies to minimize the risk of sexual violence, including concepts of healthy relationships, consent, and bodily autonomy of people with disabilities. b. The license holder failed to provide orientation training on the following topics to SP3: · the service recipient rights and staff responsibilities related to ensuring the exercise and protection of those rights according to the requirements in section 245D.04; · the principles of person-centered service planning and delivery as identified in section 245D.07, subdivision 1a, and how they apply to direct support service provided by the staff person; and · basic first aid. Statute Violated: Minnesota Statutes, section 245D.09, subdivision 4. Your request for reconsideration: You state you provided the required training to SP1 and SP2. You contend that you retained Educare to train SP1 and SP2 and that, had the DHS licensor requested the training records, you would have provided them. DHS’ response: Although you state that SP1 and SP2 were trained by Educare, your staff orientation trainings record list states they were trained by you and a nurse, not Educare. You state the DHS licensor did not request training records for SP1 and SP2, however, the DHS licensor requested and received the staff training record list. The DHS licensor did not receive the training curricula at the licensing review. The licensor gave you an opportunity to submit the training curricula by email after licensing review, but you failed to provide it. Since you did not have training curricula showing you trained SP1 and SP2 on the topics required by law, this violation is affirmed. 5. Violation 15: For two staff persons whose records were reviewed (SP1 and SP2), the license holder did not provide orientation to individual service recipient needs as required. a. SP1’s orientation did not include all required training regarding P1. SP1’s orientation training record listed that SP1 was trained on April 22, 2022, on P1’s services and supports; however, the license holder had not yet developed the following documents listed in the training record: · P1’s support plan or support plan addendum as it related to the responsibilities assigned to the license holder; · P1’s medication setup, assistance, or administration procedures established for the person when assigned to the license holder according to section 245D.05, subdivision 1, paragraph (b); · P1’s individual abuse prevention plan, to achieve and demonstrate an understanding of the person as a unique individual, and how to implement those plans. b. The license holder failed to provide SP1 and SP2 medication administration orientation and training from a training curriculum developed by a registered nurse or appropriate licensed health professional that incorporated an observed skill assessment conducted by the trainer to ensure unlicensed staff demonstrated the ability to safely and correctly follow medication procedures. A DHS licensor requested the license holder’s medication training curriculum during the licensing review on October 10, 2022. The license holder was unable to produce a medication training curriculum at the time of the licensing review. a. The license holder failed to ensure SP1, and SP2 administered medications only after successful completion of a medication administration training. Statute Violated: Minnesota Statutes, section 245D.09, subdivision 4a, paragraph (d). Your request for reconsideration: You state SP1 and SP2 were trained by Educare and that the licensor did not ask to see the training records for SP1 and SP2. You state that had the licensor requested the training records you would have entered an electronic portal for Educare to download the training records. DHS’ response: It was not possible for you to train SP1 on P1’s support plan and support plan addendum on April 22, 2022, as you stated in SP1’s Staff Orientation Record because P1’s support plans were not prepared until after that date. P1’s Staff Orientation Record shows you trained SP1 on P1’s support plan and addendum on April 22, 2022. However, P1’s support plan was not prepared until April 25, 2022, and the support plan addendum, was not prepared until May 25, 2022. Although you state Educare trained SP1 on P1’s support plan and support plan addendum, SP1’s Staff Orientation Record states you and the program nurse trained SP1 on the support plans, not Educare. As you acknowledge in your reconsideration request, Educare can train staff on 245D services and regulations, but not on specific service recipient plans. You also failed to provide documentation showing SP1 and SP2 were trained on medication administration from a training curriculum developed by a registered nurse or appropriate licensed health professional, that incorporated an observed skill assessment conducted by the trainer as required by Minnesota Statutes, section 245D.09, subdivision 4a. You did not provide the training curriculum or any evidence of an observed skill assessment showing SP1 and SP2 were trained on medication administration as required by section 245D.09. You indicated you did not have the records the licensor requested but that the program nurse had them. Minnesota Statutes, section 245A.04, subdivision 5, provides that the license holder must provide the commissioner with verification documentation of staff work experience, training or education requirements, and that the records must be available for the commissioners review without prior notice and as often as the commissioner considers necessary. Because you did not have documentation to verify the medication administration training took place at the licensing review, this violation is affirmed. 6. Violation 17: For one staff person whose record was reviewed (SP3), the license holder did not maintain personnel records as required. The license holder failed to maintain the hours of training per subject area and the name of the trainer in SP3’s personnel record for each required training subject area. Statute Violated: Minnesota Statutes, section 245D.095, subdivision 5, paragraph (a). Your request for reconsideration: You contend SP3 was trained by Educare and that if the licensor had asked to see the training curricula, you would have provided it. DHS’ response: The licensor requested, received, and reviewed SP3’s personnel record, which indicated the SP3’s training was provided by Educare. However, Minnesota Statutes, section 245D.09, subdivision 5, requires that documentation of staff orientation and training include the “number of hours per subject area, and the name of the trainer or instructor.” The training record did not include the hours of training per subject area and the name of the trainer. As such, this violation is affirmed. B. RECONSIDERATION OF CONDITIONAL LICENSE Under Minnesota Statutes, section 245A.06, subdivision 1, when issuing a conditional license, the Commissioner must consider the nature, chronicity, or severity of the violation of the law or rule and the effect of the violation on the health, safety, or rights of persons served by the program.
The Commissioner has considered the nature, chronicity, and severity of the licensing violations as required by Minnesota Statutes, section 245A.06, subdivision 1, and has determined that a conditional license is warranted. In your request for reconsideration, you repeatedly state the violations are “administrative.” However, the violations directly relate to the health, safety, and rights of the persons served. Regarding the nature and severity of the violations, the vulnerable adults you serve required intensive support services, yet as discussed below you did not have any documentation showing SP1 and SP2 were trained on the program requirements and service recipient plans. You transported a vulnerable adult to the emergency room yet did seek and obtain information about the treatment plan from the medical provider. As such you did not know what treatment was received, what care was recommended, or medications were prescribed. As a result, a vulnerable adult was prescribed three medications and had them in his/her possession without your knowledge for a period of time, when you were responsible for medication administration. Regarding chronicity, you state you would have corrected many of the violations if the licensor had conducted an exit interview. While the DHS licensor may not have called the discussions with you during and following the licensing review an “exit interview,” the licensor requested documentation and explained the violations to the you, giving you an opportunity to respond, ask questions, or supplement the documentation. The licensor requested documentation at the review and allowed you to submit additional documentation by email after the licensing review. Based on this recent history of significant noncompliance; on the number and serious nature of the violations in the conditional order; and that you demonstrated a lack of understanding of the law, the Commissioner believes the program can benefit from additional oversight to ensure it can gain and continue compliance with licensing regulations. Program Coordination and Oversight The Designated Coordinator/Designated Manager failed to provide the coordination of service delivery and evaluation of program management and oversight, which is required to ensure your program remains in compliance with licensing requirements, resulting in 17 violations. Having a competent Designated Coordinator and Designated Manager to ensure the wellbeing of persons served is critical because there was no other managerial person in your program to do so. You were the Authorized Agent, Compliance Officer, sole controlling individual, and the Designated Manager and Designated Coordinator. Based on the importance of these two roles and the resulting serious violations, this violation alone warrants a conditional license. Service Recipient Rights Under Minnesota Statutes, section 245D.04 the license holder is responsible for protecting the service recipient’s rights. Twelve of the seventeen violations were for violating the rights of the service recipients. The service recipients required intensive support services, meaning you were not only required to ensure their health and welfare, but that the services must be “specifically directed toward training, habilitation, or rehabilitation of the person.” Yet, you failed to prepare an individual abuse prevention plan (“IAPP”) for over a month after P1 and P2 began receiving services. When you did prepare the IAPP for P1, it stated P1 was not susceptible to abuse when his/her case manager indicated there were concerns about drug and alcohol dependence and him/her receiving medical care. P2’s IAPP, that you prepared also stated s/he was not susceptible to abuse even though his/her support plan indicated s/he had difficulties taking his/her medications and has a history of “cheeking” them. Since the plans you prepared failed to identify risks, there is no way for DHS to ensure staff were properly trained on how to minimize risks to the service recipients. Many of the violations involve your failure to properly administer medications, which could affect the health and safety of the service recipients. You failed to communicate with the hospital as required by P2’s plans after you knew P2 had been treated, which resulted in a period where you did not know three new prescription drugs were prescribed and given to the vulnerable adult. There was also no documentation showing staff were trained on how to administer medications, as required. P1’s medication administration record had an incorrect dose of medication which could have resulted in P2 being administered an incorrect dosage, adversely impacting his/her health. You failed to document the target symptoms, as required by Minnesota Statutes, 245D.051, for P1 and P2’s psychotropic medications. Violations 8-11 were serious in that they directly relate to the health and safety of the persons served. Therefore, these citations alone would support the issuance of the conditional license. Staff Violations Minnesota Statutes, section, 245D.09, requires that you train your staff on program requirements and as to the specific support plans of each person served to ensure their health, safety, and rights. Although you had a document listing the training staff received, you did not have any curriculum or other documentation verifying that staff had been trained, as required by sections 245A.04, subdivision 5 and section 245D.095. There was no evidence SP1 was trained on P1’s support plan, as P1’s plans were not created until after the date you stated you trained SP1 on his/her plans. Minnesota Statutes, section, 245D.09, subdivision 4a, has specific requirements on how staff must be trained to administer medications. P1 and P2 were prescribed psychotropic as well as other medications and you did not have any documentation to verify staff were trained on how to administer the medications. These violations alone warrant a conditional license. Record Requirement Violations The license holder failed to maintain progress or daily log notes for P3 and documentation to show P3 was provided with orientation to maltreatment reporting policies and procedures at service initiation. The training record for SP3 did not indicate the hours of training for each subject area or the name of the trainer. Record keeping is very important to ensure license holders are providing the services necessary to ensure the health, safety, and rights of the persons served, however, violations 16 and 17 alone would not warrant a conditional license. When balanced with the other violations, however, they support the issuance of a conditional license. The period of the conditional license is two years, beginning on the date of this reconsideration decision. Because the terms of your conditional license were stayed pending a decision on your request for reconsideration, the terms of the conditional license begin from the date of receipt of this letter. C. CONDITIONAL LICENSE TERMS In addition to the Home and Community-Based Services licensing rules and statutes, you are required to comply with the following terms: 1. Within 15 days of receiving this order, you must notify current persons receiving services, all parties who refer persons to the program, and all payer sources of the conditional status of your license. The notification must be approved by DHS Licensing prior to being sent to persons receiving services and all other parties. Therefore, the draft notice must be submitted to DHS for approval within 10 days of receiving this order. The notification must specify the length of time of the conditional status of your license, the reasons your license was made conditional, and it must include either a copy of the Order of Conditional License or an offer to provide a copy of the order upon request. While the license is on conditional status, you must notify new persons receiving services, referral sources, and payer sources that the license is on conditional status before they begin receiving services. The notification to new persons receiving services must specify the length of time of the conditional status of the license, the reasons the license was made conditional, and it must include either a copy of the Order of Conditional License or an offer to provide a copy of the order upon request. Within 30 days of receiving this order, you must submit to the DHS Licensing Division a list of the individuals and parties that received the notice. 2. Within 30 days of receiving this order, you must: · designate a staff person, other than SP4, who is responsible for delivery and evaluation of services provided by the license holder; · designate a managerial staff person, other than SP4, to provide program management and oversight of the services provided by the license holder; and · submit this staff person’s name and qualifications to your licensor for review and approval. The same person may perform both functions if the work and education requirements outlined in section 245D.081, subdivisions 2 and 3 are met. 3. Within 45 days of receiving this order, you must: · submit a written plan detailing how you will ensure the corrective action ordered in this order is completed; and · submit a written plan to your DHS licensor detailing how you will audit all participant and personnel records for compliance with all applicable rules and statutes. 4. Within 60 days of receiving this order, you must: · develop and maintain a training curriculum for each training topic required to be provided to staff persons; · complete the audit of all participant and personnel records according to your written plan; · submit the results of the audit to your licensor; and · submit the date to your licensor that all participant and personnel records will be brought into compliance based on the results of your audit. 5. You may not admit new participants to your program from the date of this order until you have successfully demonstrated to DHS compliance with the terms of the conditional license and have maintained substantial compliance with all licensing standards. At a minimum, you may not admit new participants to your program for a period of six months from the date of this conditional license. Admission of any new participant during the duration of the conditional license is only allowed with prior approval from DHS. D. RIGHT TO APPEAL TO THE MINNESOTA COURT OF APPEALS This is a final agency decision and is subject to further review only by the Minnesota Court of Appeals. Please note that there are time limits for seeking review by the Minnesota Court of Appeals. See Minnesota Statutes, Chapter 606 and Minnesota Rules of Civil Appellate Procedure, Rule 115. If you have any questions regarding the Order of Conditional License, please contact Jill Slaikeu, Unit Manager, at 651-431-6581. Sincerely,
Kofi Montzka, Attorney Legal Counsel’s Office Office of Inspector General cc: Daniel L. M. Kennedy Kennedy & Cain, PLLC 3400 E. Lake Street, Suite 200 Minneapolis, MN 55406
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