|
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: 1071579-H_CRS (Home and Community-Based Services-Community Residential Setting) Investigator(s): Alice Percy 651-431-6569 Suspected Maltreatment Reported: Allegation one: It was reported that a vulnerable adult (VA1) fell out of bed and a staff person (SP) refused to assist VA1 back into bed. While VA1 was on the floor, the threw a plastic ball at VA1’s genital area and threatened to take VA1’s money from his/her wallet. Allegation two: It was reported that on multiple occasions, the SP gave cold showers to a vulnerable adult (VA2), causing VA2 to cry out. Allegation three: It was also reported that the SP threw a plastic ball at a vulnerable adult’s (VA3’s) head. The SP also placed a garbage can on VA3’s head and then placed a plastic garbage bag over VA3’s head. Date of Incident(s): Ongoing prior to January 31, 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), clauses (1) and (2); and subdivision 17, paragraph (a): 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. · The use of repeated or malicious oral, written or gestured language toward a vulnerable adult or the treatment of a vulnerable adult which would be considered by a reasonable person to be disparaging, derogatory, humiliating, harassing, or threatening. 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 16, 2023; from documentation at the facility and medical records; and through fourteen interviews conducted with two facility administrative staff persons (P1 and P2), five facility staff persons (P3 – P7), a facility health care professional (HCP), VA1, VA1’s guardian (G1), VA2’s case manager (CM1), VA2’s guardian (G2), VA3’s case manager (CM2), and VA3’s guardian (G3). Although the SP initially agreed to an interview and a time was set up for an interview, the SP did not answer the call or respond to subsequent telephone calls and additional messages. Facility documentation showed that the HCP, P1 – P7, and the SP each received training on the Reporting of Maltreatment of Vulnerable Adults Act; the facility’s policies; and VA1’s, VA2’s, and VA3’s plans prior to the incidents. Relevant Rules and Statutes: Minnesota Statutes, section245D.04, subdivision 3, paragraph (b), state that a person’s protection related rights include the right to be treated with courtesy and respect. Minnesota Statutes, section 245D.07, subdivision 1, paragraph (a), state that the license holder is to provide services in response to the individual’s identified needs, interests, preferences, and desired outcomes as identified in the individual’s plans. Allegation one: It was reported that VA1 fell out of bed and the SP refused to assist VA1 back into bed. While VA1 was on the floor, the threw a plastic ball at VA1’s genital area and threatened to take VA1’s money from his/her wallet. VA1 enjoyed talking about history, going shopping, going for drives, and going to church. VA1’s diagnoses included diabetes mellitus, vitamin D deficiency, pure hypercholesterolemia, hyperlipidemia, bipolar disorder, insomnia, essential hypertension, functional intestinal disorder, and retention of urine. According to VA1’s Risk Assessment Detail, VA1 had memory issues and may not accurately recall or report exactly what occurred. According to VA1’s ISSA Assessment Detail, VA1 had a history of falling and sometimes chose to sit on the floor. VA1 did not always want to wait for the assistance of a staff person. Because VA1’s leg was amputated, VA1 was unable to ambulate independently and used a wheelchair for mobility. VA1 stated that s/he did not like the SP because the SP did not assist VA1 when s/he needed help. On one occasion when VA1 was lying on the floor, the SP put his/her foot on VA1’s “butt” for a “minute or so.” On that occasion, VA1 was left lying on the floor for “an hour or two” and the SP did not give VA1 a blanket or pillow or assist VA1 off the floor. While VA1 was on the floor, the SP came into VA1’s bedroom, but did nothing to assist VA1. The SP threatened to take VA1’s money from VA1’s wallet. VA1 did not know if the SP took any money. VA1 stated that the SP was “cruel” and made VA1 feel like s/he was “a bother” to the SP. P1 – P7, the HCP, and the facility’s documentation provided the following information: · P3 and P7 each stated that on January 12, 2023, at 7 a.m., they arrived at the facility for their work shifts and found VA1 on the floor of his/her bedroom in his/her underwear. VA1 told P3 that the SP kicked VA1’s “butt” and threw a plastic ball at VA1’s head while s/he lay on the floor. VA1 also told P3 that the SP picked up VA1’s wallet and asked VA1 how much money s/he had. VA1 was afraid that the SP would take his/her money. P3 asked the SP how long VA1 was on the floor and the SP told P3 that VA1 fell at approximately 4 a.m. VA1 told P3 that s/he fell at 3 a.m. P3 comforted VA1 and gave him/her a blanket. P7 telephoned 9-1-1 and VA1 was taken to the hospital by ambulance to check VA1 for injuries. VA1 returned to the facility later that day. VA1 was not injured during the incident. · P6 stated that s/he worked later that day and P3 and VA1 told P6 about the incident. P6 stated that VA1 was “real anxious” and shaking when s/he told P6 about lying on the floor much of the night. VA1 told P6 that the SP hit VA1’s torso, head, and genital area with a rubber ball “all night long.” · P3 stated that the SP “refused” to assist VA1 with his/her personal cares and frequently VA1’s adult disposable briefs would be soiled after the SP’s work shift and one of the staff persons working the following work shift would ensure that the briefs were changed. P3 stated that there was a small rubber ball at the facility that the residents liked to play with. · P1 stated that when a resident fell onto the floor, the staff persons were trained to check the resident for injuries and ensure that the resident did not hit his/her head during the fall. If the fall was unobserved or the staff person saw the resident hit his/her head during the fall, the staff person was to telephone 9-1-1. The staff person would then complete a fall report and document the incident. The SP did not follow the facility’s protocol after VA1 fell. G1 stated that prior to the incident, s/he had no concerns about the care VA1 received at the facility. The facility notified G1 about the incident. According to the facility’s Internal Investigation, the SP provided information that on January 12, 2023, at 1 a.m., VA1 fell out of his/her bed and the SP assisted VA1 into his/her bed. VA1 “kept trying to get out of bed” and each time the SP assisted him/her into bed. Between 4 and 6 a.m., VA1 again fell out of bed and refused to have the SP assist him/her into bed and told the SP to “back off.” At one point, VA1’s wallet fell out of VA1’s pocket and the SP picked up the wallet and placed it on his/her dresser. The SP did not tell VA1 that s/he was going to take VA1’s money. The SP did not throw a ball at VA1. The SP told VA1 “to shut the fuck up” after VA1 “cussed” at the SP. According to the facility’s Rights Policies, the residents had the right to be free from maltreatment, to be treated with courtesy and respect, and to receive respectful treatment of the residents’ property. Conclusion for allegation one: A. Maltreatment: On January 12, 2023, at 7 a.m., P3 and P7 each arrived at the facility for their work shifts and found VA1 on the floor of his/her bedroom in his/her underwear. VA1 told P3 that s/he was on the floor since 3 a.m. The SP told P3 that VA1 fell at approximately 4 a.m. VA1 stated that s/he did not like the SP because the SP did not assist VA1 off the floor or give VA1 a blanket or pillow while s/he was on the floor in his/her underwear. VA1 told P3 that the SP kicked VA1’s “butt” and threw a plastic ball at VA1’s head, torso, and genital area while s/he lay on the floor. VA1 also told P3 that the SP picked up VA1’s wallet and asked VA1 how much money s/he had, causing VA1 to fear that the SP would take his/her money. P3 comforted VA1 and gave him/her a blanket. P7 telephoned 9-1-1 and VA1 was taken to the hospital by ambulance to check VA1 for injuries. VA1 returned to the facility later that day after it was determined that VA1 was not injured during the incident. P6 stated that later that day, VA1 was “real anxious” and shaking when s/he told P6 about lying on the floor much of the night. VA1 stated that the SP was “cruel” and made VA1 feel like s/he was “a bother” to the SP. The SP did not provide information for this investigation but denied the allegations during the Internal Investigation and said that s/he told VA1 to “shut the fuck up.” VA1, P3, and P7 provided consistent information that the SP left VA1 lying on the floor for several hours without a blanket or pillow. While VA1 did not sustain any injury during the incident, after the incident VA1 was anxious and shaking. When a resident fell onto the floor, the staff persons were trained to check the resident for injuries and ensure that the resident did not hit his/her head during the fall. If the fall was unobserved or the staff person saw the resident hit his/her head during the fall, the staff person was to telephone 9-1-1. The SP did not follow the facility’s policies and VA1 was not taken to the hospital until after P3 and P7 arrived at the facility. Given that VA1 provided consistent information regarding the SP’s actions which was corroborated by P3 and P7, that there was a ball at the facility, and that the SP had reason to minimize his/her actions for fear of repercussions, it was determined that VA1’s account of the incident was likely more accurate. The SP’s actions of leaving VA1 lying on the floor for several hours and then hitting VA1 with a ball while s/he lay on the floor were inconsistent with the standards of a professional caregiver in a facility licensed by the Department of Human Services; and were violations of Minnesota Statutes, section245D.04, subdivision 3, paragraph (b); and section 245D.07, subdivision 1, paragraph (a). Given that the SP’s actions caused VA1 to feel anxiety and to feel that s/he was “a bother” to the SP, that leaving VA1 on the floor for an extended period of time and hitting VA1 with a ball was not accidental or therapeutic conduct, there was a preponderance of the evidence that the SP’s action were a failure to supply VA1 with necessary care or services; could reasonably be expected to produce physical pain; and was treatment which would be considered by a reasonable person to be disparaging, derogatory, humiliating or threatening and could reasonably be expected to produce emotional distress to VA1. It was determined that physical and emotional 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 and/or the use of repeated or malicious oral, written or gestured language toward a vulnerable adult or the treatment of a vulnerable adult which would be considered by a reasonable person to be disparaging, derogatory, humiliating, harassing, or threatening). 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. Facility documentation showed that the SP received training on the Reporting of Maltreatment of Vulnerable Adults Act, on the facility’s policies, and on VA1’s plans prior to the incidents. The SP was responsible for maltreatment of VA1. C. Recurring and/or Serious Maltreatment: See Conclusion Allegation three. Allegation two: It was reported that on multiple occasions, the SP gave cold showers to VA2, causing VA2 to cry out. VA2 enjoyed being around other people and going on community outings. VA2’s diagnoses included epilepsy, intellectual disabilities, aphasia, atherosclerotic heart disease, conduct disorder, dysphagia, and muscle weakness. According to VA2’s Risk Assessment Detail, VA2 was nonverbal, but would yell and scream if someone was abusing him/her. VA2 was unable to report abuse. According to VA2’s ISSA Assessment Detail, VA2 received assistance from the staff persons with regulating water temperature when bathing. If the water was too cold or too hot, VA2 would yell. VA2 used a wheelchair for mobility. VA1 stated that sometimes when the SP assisted the other residents with showering, VA1 heard them “screaming their heads off.” VA1 believed the SP showered the other residents with cold water, which was why they screamed. P1 – P7, the HCP, and the facility’s documentation provided the following information: · P1 and P3 each stated that in the past on unknown dates, they observed the SP wake VA2, assist him/her into his/her wheelchair, take VA2 to the bathroom shower, and then turn the water on for VA2 without ensuring that the water was warm. The SP also sprayed water directly into VA2’s face when showering VA2. P3 stated that when the SP showered VA2, VA2 “screamed.” The SP then kicked VA2’s chair and told VA2 to “shut the fuck up.” When P3 confronted the SP about his/her actions, the SP ignored P3. P6 stated that on approximately six occasions when s/he arrived at the facility for his/her work shift in the morning, s/he observed the SP spraying VA2 with “ice cold water” while showering VA2, causing VA2 to “scream.” When P6 told the SP to stop because VA2 was screaming, the SP told P6 that VA2 “always screamed.” P6 believed it was “traumatizing” for VA2. P5 then “made sure” that s/he showered VA2 instead of the SP. P2 stated that when s/he observed the SP shower VA2, the SP “waved” the handheld shower sprayer over VA2’s face, but did not hold it in front of VA2’s face. · P3 and P7 each stated that on one occasion, the SP did not check the food temperature prior to giving food to VA2, causing blistering on VA2’s tongue. P7 stated that the SP then laughed about the incident. P3 stated that if VA2 fell asleep during meals, the SP kicked VA2’s wheelchair and told VA2 to “get the fuck up.” P6 stated that on one occasion, the SP locked the brakes on VA2’s wheelchair, so that VA2 was unable to move his/her wheelchair. P5 believed that this hindered VA2’s independence. P6 stated that VA2 appeared to be “nervous” around the SP and screamed at the SP or put his/her head down and “looked away from” the SP. · When P1 raised concerns about the SP with his/her supervisor, s/he was told that “they were working on it.” P3 stated that when s/he raised concerns about the SP’s interactions with the residents to a former administrative staff person (P8), P8 said s/he would “talk to” the SP, but the SP continued to “do the same things.” P6 told P8 about his/her concerns but was told that the SP “was good with the clients.” P8 “lectured” the SP, but the SP did not change his/her actions. When the administrative staff persons were at the facility, the SP “acted differently” around the residents. P7 stated that s/he and other staff persons talked to P8 about the SP’s behavior around the residents and P8 “would say [s/he] would talk to [the SP],” but P7 did not believe it was done. When P7 told P2 about his/her concerns about the SP, P2 scheduled a meeting, but then P2 became ill and the meeting was postponed. P2 stated that after two staff persons raised concerns about the SP’s interactions with the residents, P2 scheduled a meeting with the staff persons to discuss the issues but was unable to hold the meeting because s/he became ill. According to the facility’s Internal Investigation, the SP provided information that when assisting the residents with their showers, the SP always let the water warm prior to spraying the residents with the water. The SP never gave any of the residents a cold shower or intentionally sprayed them in the face. The SP never gave hot food to VA2 and that s/he typically placed VA2’s oatmeal in the refrigerator after microwaving it to ensure it was not too hot. G2 stated that the facility notified him/her about the incidents. G2 believed that the staff persons “took pretty good care” of VA2. VA2 appeared to be comfortable at the facility. CM1 stated that the facility notified him/her about the incidents. CM1 had no other concerns about the care VA2 received at the facility and that VA2 always appeared to be happy and in a good mood when CM1 visited VA2 at the facility. Conclusion for allegation two: A. Maltreatment: Consistent information was provided by P1, P3, and P6 that on numerous occasions the SP sprayed cold water on VA2’s body and face while showering VA2. P3 stated that when the SP showered VA2, VA2 “screamed.” The SP then kicked VA2’s chair and told VA2 to “shut the fuck up.” P6 believed it was “traumatizing” for VA2 when the SP showered VA2. P3 and P7 each stated that on one occasion, the SP did not check the food temperature prior to giving food to VA2, causing blistering on VA2’s tongue. P7 stated that the SP then laughed about the incident. P3 stated that if VA2 fell asleep during meals, the SP kicked VA2’s wheelchair and told VA2 to “get the fuck up.” P6 stated that on one occasion, the SP locked the brakes on VA2’s wheelchair, so that VA2 was unable to move his/her wheelchair. P6 stated that VA2 appeared to be “nervous” around the SP and screamed at the SP or put his/her head down and “looked away from” the SP. The SP did not provide information for this report but provided information for the Internal Investigation that s/he let the water warm prior to spraying the residents with water, that s/he never gave the residents a cold shower or sprinted them in the face, and that s/he never gave hot foot to VA2. Given that the information provided by P1, P3, P6, and P7 of the SP’s actions were similar in nature, and that the SP had reason to minimize his/her actions for fear of repercussions, it was determined that P1’s, P3’s, P6’s, and P7’s accounts of the SP’s aforementioned interactions were likely more accurate. The SP’s actions of spraying cold water on VA2, serving VA2 hot food, kicking VA2’s wheelchair, swearing at VA2, and locking the brakes on VA2’s wheelchair were inconsistent with the standards of a professional caregiver in a facility licensed by the Department of Human Services; and were violations of Minnesota Statutes, section245D.04, subdivision 3, paragraph (b); and section 245D.07, subdivision 1, paragraph (a). Given the consistent information provided by P1, P3, P6, and P7 regarding the SP’s interactions with VA2; that the SP’s actions caused VA2 to cry out and on two occasions sustain a burn on his/her tongue; and that the SP’s aforementioned actions were not accidental or therapeutic conduct, there was a preponderance of the evidence that the SP’s actions were a failure to supply VA2 with necessary care or services; could reasonably be expected to produce physical pain; and was treatment which would be considered by a reasonable person to be disparaging, derogatory, humiliating or threatening and produced or could reasonably be expected to produce emotional distress to VA2. It was determined that physical and emotional 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 and/or the use of repeated or malicious oral, written or gestured language toward a vulnerable adult or the treatment of a vulnerable adult which would be considered by a reasonable person to be disparaging, derogatory, humiliating, harassing, or threatening). 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. Facility documentation showed that the SP received training on the Reporting of Maltreatment of Vulnerable Adults Act, on the facility’s policies, and on VA2’s plans prior to the incidents. The SP was responsible for maltreatment of VA2. C. Recurring and/or Serious Maltreatment: See Conclusion Allegation three. Allegation three: It was also reported that the SP threw a plastic ball at VA3’s head. The SP also placed a garbage can on VA3’s head and then placed a plastic garbage bag over VA3’s head. VA3 enjoyed going on community outings, going on van rides, going out to eat, and talking to his/her family members. VA3’s diagnoses included intellectual disabilities, behavior disturbance, hypothyroidism, and hyponatremia. VA3 was unable to communicate verbally, but s/he communicated with signs and pointing. VA3 used a wheelchair for mobility. According to VA3’s Risk Assessment Detail, VA3 did not understand when someone was being verbally or emotionally abusive to VA3 and would be unable to communicate what occurred. However, VA3 would point to an area that was hurt or at the person who hurt him/her. P1 – P7, the HCP, VA1, and the facility’s documentation provided the following information: · P3 stated that on January 12, 2023, s/he heard VA3 yelling in his/her bedroom. When s/he went to VA3’s bedroom, s/he saw the SP place a plastic garbage can over VA3’s head while the garbage in the can (paper items) fell down onto VA3. The SP then took the garbage can off VA3’s head, but then placed a plastic garbage bag over VA3’s face and pulled it so that P3 could see the outline of VA3’s face through the plastic bag. P3 stated that it lasted “for just a second” and P3 told the SP, “That’s enough.” The SP told P3 that s/he was “just playing” and then took the plastic garbage bag off VA3’s head, laughed, and then left the facility because it was the end of his/her work shift. When P1 arrived at the facility a short time later, P3 told him/her what s/he observed. · P7 stated that s/he was at the facility at the time of the incident, but was in the garage talking to the paramedics on the telephone about VA1’s fall. When P7 re-entered the facility, P3 told him/her about what occurred. P7 then told P1 and P2 about the incident. · P6 stated that s/he worked at the facility later that day and VA3 was “nervous” and did not want to go to bed. P6 sat with VA3 and tried to help him/her calm. When P6 emptied a garbage can and put in a new plastic garbage bag, VA3 began to cry. · P3 stated that VA3 “moaned” when s/he did not like something that was happening. VA3 frequently moaned when the SP was present and sometimes “flinched” when the SP came near VA3. VA3 did not react that way with any of the other staff persons. P7 stated that on one occasion, the SP kicked VA3’s wheelchair while VA3 sat at the dining room table. P3 then moved VA3 to the living room and away from the SP. P7 stated that the SP frequently told VA3 to “shut the fuck up” when VA3 vocalized. VA3 did not sustain any injury during the incident. G3 and CM2 each stated that the facility notified them about the incident, but they did not have any additional information about the incident. According to the facility’s Internal Investigation, the SP provided information that s/he believed a paramedic told a staff person that s/he placed a garbage can on VA3’s head and that the paramedic was not in the same room as the SP that morning. Conclusion for allegation three: A. Maltreatment: On January 12, 2023, P3 heard VA3 yelling in his/her bedroom and went to VA3’s bedroom, where s/he saw the SP place a plastic garbage can over VA3’s head while the garbage in the can fell down onto VA3. The SP then took the garbage can off VA3’s head and placed a plastic garbage bag over VA3’s face and pulled it so that P3 could see the outline of VA3’s face through the plastic bag. When P3 told the SP, “That’s enough,” the SP told P3 that s/he was “just playing” and then took the plastic garbage bag off VA3’s head and laughed. P6 stated that later that day, VA3 was nervous and when P6 emptied a garbage can and put in a new plastic garbage bag, VA3 began to cry. The SP did not provide information for this investigation or in the Internal Review other than to state that a paramedic was not in the room with the SP and VA3. The SP’s actions were inconsistent with the standards of a professional caregiver in a facility licensed by the Department of Human Services, were not therapeutic conduct, and were violations of Minnesota Statutes, section245D.04, subdivision 3, paragraph (b); and section 245D.07, subdivision 1, paragraph (a). Given that the SP dumped garbage on VA3, placed a plastic bag over VA1’s face tight enough that P3 could see the outline of VA3’s face through the bag, kicked VA3’s wheelchair, and frequently told VA3 to “shut the fuck up,” there was a preponderance of the evidence that the SP’s action were a failure to supply VA3 with necessary care or services; could reasonably be expected to produce physical pain; and was treatment which would be considered by a reasonable person to be disparaging, derogatory, humiliating or threatening and could reasonably be expected to produce emotional distress to VA1. It was determined that that physical and emotional 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 and/or the use of repeated or malicious oral, written or gestured language toward a vulnerable adult or the treatment of a vulnerable adult which would be considered by a reasonable person to be disparaging, derogatory, humiliating, harassing, or threatening). 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. Facility documentation showed that the SP received training on the Reporting of Maltreatment of Vulnerable Adults Act, on the facility’s policies, and on VA3’s plans prior to the incidents. The SP was responsible for maltreatment of VA3. 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. The substantiated physical and emotional abuse and neglect for which the SP was responsible in allegations one, two, and three was not serious, given that VA1, VA2, and VA3 did not sustain an injury, but it was recurring because the SP was responsible for the physical and emotional abuse and neglect of three vulnerable adults. The SP was disqualified from providing direct contact services. Action Taken by Facility: The facility completed an internal review and determined that the facility’s policies were adequate but were not followed by the staff persons. The staff persons were retrained on the facility’s policies and reporting requirements. The SP no longer worked 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. On May 17, 2023, the facility was issued a Correction Order for the violations outlined in this report.
|
