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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: 227336-AFC (Adult Foster Care) Investigator(s): Deb Neubauer-Hoffman/Christine Henne 651-431-6567 Suspected Maltreatment Reported: Allegation One: It was reported that a vulnerable adult (VA1) had his/her legs tied apart during perineal care and was unable to get “free.” Allegation Two: It was reported that a vulnerable adult (VA2) was excluded from activities because s/he had a contagious disease. Alleged licensing violation: It was reported that after VA3 was bitten by the SP’s dog, the SP instructed the VA to lie to a doctor. Date of Incident(s): Ongoing prior to January 11, 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), clause (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: 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 January 24, 2023; from documentation at the facility, medical records, and law enforcement records; and through twelve interviews conducted with three facility staff persons (P1-P3), six facility health care professionals (HP1-HP5) who were nurses, VA1-VA3, and the SP, who was also a supervisory staff person and a nurse. This investigator met another client who also lived at the facility and attempted an interview, but s/he declined to provide information for this investigation. The investigation was conducted in conjunction with law enforcement and their case was closed without further action. The facility was a large home with three levels. The clients had bedrooms on the main and lower level and the SP lived in the upstairs level. All staff persons interviewed were trained on VA1-3’s plans and the Reporting of Maltreatment of Vulnerable Adults Act. Allegation One: It was reported that VA1 had his/her legs tied apart during perineal care and was unable to get “free.” VA1 liked to read the Notebook and Judy Blume books. VA1 was diagnosed with advanced multiple sclerosis (MS) and unspecified convulsions. VA1 required total staff assistance with all personal care and daily activities. VA1 was non-ambulatory/non-weight-bearing and used a specialized wheelchair as primary mode of mobility. VA1 was not subject to guardianship and moved into the facility on August 5, 2011. P1 said there was “weird stuff going on” at the facility. VA1’s genitals were “aired out” using a fan while each leg was tied to his/her bed railing with scarves because VA1 was unable to keep his/her legs open due to his/her diagnoses. P1 did not believe there was a doctor’s order for this but said P3 and the SP found it to help with VA1’s yeast infections. However, the yeast infections were still reoccurring so P1 questioned if it really helped. VA1 was unable to untie the scarves and made it “clear” that s/he did not like this treatment and cried to P1 a couple of times. The airing out treatment happened every day at minimum of one hour but could last up to two or three hours. Staff persons were trained by the SP. Other unnamed staff persons also thought the treatment was a “little odd.” P1 did not know of any injury to VA1. VA1 provided the following information: · VA1 “love[d]” living at the facility and said that staff persons were “so attentive” to his/her “needs.” · VA1 had leg spasms due to his/her diagnoses and also had an indwelling catheter, frequent urinary tract infections (UTI’s), and yeast infections at least once a month. For treatment, an oral medication was prescribed as well as the use of a fan on VA1’s genitals because VA1’s body did not “regulate its own temperature well” and got “overheated.” The fan treatment “work[ed] magic” and was done a couple times a month. According to VA1, there was a doctor’s order for the treatment. · When the fan treatment was done, VA1 wore a sweater and “chucks” and his/her legs were separated. VA1 said his/her legs were “tied up” by two “shawls” that were above his/her knees and then tied to his/her bed rails. This investigator saw the shawls, which were made of a soft, thin fabric similar to a scarf. The fan was on for “as long as [VA1 could] stand it” but “no more than twenty minutes” because VA1 did not like to be a “freeze baby.” VA1 was able to communicate to staff persons when s/he wanted the fan treatment to be over and they would turn the fan off. VA1 said that the fan helped VA1 to not have a “red butt.” · VA1 first said s/he was able to untie the shawls, but later said s/he was only able to untie one of the two shawls and was “not very good” at untying the other one. · According to VA1, there was no injury from the use of the tied shawls. P3 said due to VA1’s diagnoses, s/he could not regulate his/her body temperature and so VA1 had skin “conditions” that included “open sores” in “heated areas” such as his/her genital area. To help with these open wounds, a wound nurse tried different ointments, but the skin condition worsened. Over time, different things were tried including chair cushions and lotions to improve VA1’s skin condition, but VA1 was allergic to the lotions. Eventually, an “air bed” was used to help the heat “dispense” as well as a “mini” fan that “worked like a charm” because “air” was VA1’s “best friend.” If VA1’s skin was in “bad condition,” a nurse decided if the fan was needed to air VA1’s genital area. When VA1 used the mini fan, a “tiny blanket” was “put around” VA1’s legs to keep his/her legs open so air could “get at it [VA1’s genital area].” The fan was used a couple of times a week as needed and had been for at least a couple of years. P3 did not know if there was a doctor’s order for it. P3 said VA1 could take off the blankets if s/he wanted and was able to “untie” the blanket by him/herself. HP1 said that all of the clients were “well taken care of” and “treated better than any place that they would ever go.” VA1 was diagnosed with yeast infections that were treated with oral medication and keeping VA1 “clean,” “dry,” and “air[ed] out.” Staff persons who worked with VA1 were trained to “air out” VA1’s genital area by using a small fan that was placed at the end of VA1’s bed. VA1 lay down on the bed without wearing undergarments with his/her legs open to fan and movement of the air. Sheets covered VA1’s legs for “modesty.” Because of VA1’s diagnoses, VA1’s legs contracted together “stiffly” so there was no way to get the air in without opening VA1’s legs. Staff persons used “soft” cloth scarves that were about two feet wide and “ever so gently and slowly” “tie[d]” VA1’s shins and thighs to VA1’s “top bedrail” for about a half hour to “keep the legs apart” so VA1 “could get air in there.” VA1’s bed was elevated during that time, and s/he could watch TV. VA1 was “not bothered” by this. HP1 did not know if VA1 had ever tried to untie the scarves. HP1 was trained by the SP and did not think there was a doctor’s order but said they had been doing so since at least March 2020. HP2 said that due to VA1’s diagnoses and poor “thermal regulation,” VA1 got “hot spots” on his/her body and had an “air cool” mattress. VA1’s genital area was also “air[ed] out” using a fan. Staff persons “prop[ped]” VA1’s legs apart and used “blankets” as “spacers” between VA1’s knees. Sometimes staff persons tied VA1’s legs apart with the blankets. The airing out treatment was done for over four years and HP2 was not aware of a doctor’s order. If VA1 did not want the treatment using the fan, staff persons would not do it. HP3 said VA1 had reoccurring UTI’s, a history of cellulitis and yeast infections, and got “red” and “erythemis” in his/her genital area. Historically, VA1 had adverse reactions to other treatments, so to prevent yeast infections, VA1’s genital area was “air[ed] out.” When this was done, staff persons put a blanket on VA1 for privacy and then used a fan on his/her genital area. Because VA1 had a “contracture” and was unable to move or keep his/her legs apart, staff persons had to tie open VA1’s legs. VA1’s bed had two siderails so a “soft scarf” and/or a “thicker blanket” was put around VA1’s “kneecap” and then “wrap[ped]” around VA1’s bedrail. HP3 did not know the exact protocol but said that it was done once a shift for about a half hour. During the treatment, a staff person stayed in VA1’s room with VA1. HP3 never saw VA1 try to remove the blanket/scarf but thought VA1 would be able to so if s/he wanted to. HP3 was not aware of a doctor’s order for the treatment. HP3 said that “years ago” s/he told the SP that s/he had an “issue” with how staff persons “fan out” VA1 and that it looked “suspicious,” but the SP did not say to “change” anything. HP3 did not disagree with the needed treatment but said it could be seen as a possible restraint. HP4 said VA1 was susceptible to yeast infections and had “extremely sensitive” skin. Oral medications were used to treat the yeast infections as well as ensuring that VA1’s genital area was clean and dry. At times, when staff persons saw that VA1’s genital area skin was red and “moist,” they were aware that VA1 was more susceptible to a yeast infection, so a fan was used to move the “air around” VA1’s genital area. This was done in VA1’s bed. VA1 wore a shirt but no undergarments from the waist down and his/her knees were moved apart. Shawls “secure[d]” VA1’s legs to bedrails “just enough to hold it.” Typically, the treatment was done in the afternoon when needed and lasted about a half hour. HP4 was not aware if there was a doctor’s order but said it was not in the Medication Administration Record. VA1 “seem[ed]” to “tolerate” the treatment “well.” HP4 did not think that VA1 would be able to untie the shawls from the bedrail. P2 said that sometimes a fan was used to “air out” VA1’s genital area because if that area was “moist,” it would create bacteria. The nurses at the facility trained staff persons on the treatment. The SP provided the following information: · When VA1 first came to the facility ten years ago, s/he had a “lot” of open bed sores and “hot areas.” VA1 had an indwelling catheter and got chronic UTI’s so due to antibiotic treatments VA1 would get yeast infections. A wound care specialist came to the facility to help figure out what to do for VA1’s sores, but the sores were not healing. The wound care specialist had “literally given up” and said they did not know what to do to help VA1. VA1 was “miserable” because the sores were “extremely painful.” So, the nurses at the facility, including the SP, kept “working on it” and “slowly developed this airing out of [VA1’s] peri area” where VA1’s legs were positioned “up” and using a “little fan” aired out VA1’s genital area. The wounds were healed from this treatment and VA1 had not had an open sore in years. · VA1 did not have use of his/her legs and needed assistance to “open them up.” VA1 was “in agreement” with the treatment most of the time and if VA1 did not want it done, staff persons did not do it. The SP had not done the treatment for a “while” but would usually put a pillow underneath VA1’s legs and “pull” a blanket around each pillow and each leg and secure/tie the shawl/blanket to VA1’s bedrail. VA1 could “pull it” or “take it out” if s/he wanted to. · The SP trained the nurses at the facility how to do the treatment and then the nurses trained the staff persons. · The treatment was documented as “positioning” at the facility, but no other details about how to do the treatment including information about how to keep VA1’s legs apart was documented. Facility documentation showed that on January 27, 2017, VA1 saw a physician for a red rash on his/her genital area and groin that did not seem to go away with good genital care and keeping it as dry as possible. The summary of visit stated to “air it out” and use a topical cream. The facility’s Internal Review provided a copy of a letter dated February 14, 2023, written by VA1’s primary care provider (PCP). The PCP agreed with the following peri cares for VA1 and discussed the cares with VA1. VA1 said s/he was “comfortable” with the cares and felt that they were “effective” and would like them to continue to prevent “peri-skin breakdown.” The PCP said it was “ok to support [VA1’s] legs on pillows to maintain position when air-drying the peri-area for 30 minutes.” The PCP also stated that “licensed nurses will assess for positioning for treatment or treatment and for accessibility around the pillow and for positioning and temporary anchoring on the side rail, if required.” Relevant Statute: Minnesota Statutes, section 245D.05, subdivision 1, paragraph (b), clause (4) states if responsibility for meeting the person's health service needs has been assigned to the license holder in the support plan or the support plan addendum, the license holder must maintain documentation on how the person's health needs will be met, including a description of the procedures the license holder will follow in order to use medical equipment, devices, or adaptive aides or technology safely and correctly according to written instructions from a licensed health professional. Minnesota Statutes, section 245D.06, subdivision 7, paragraph (c), clause (1) states in part that a restraint may be used as an intervention procedure to allow a licensed health care professional to provide medical treatment ordered by a licensed health care professional. Conclusion for Allegation One: VA1 had a history of recurring UTI’s and yeast infections and so staff persons aired out VA1’s genital area with a small fan. On January 27, 2017, VA1 saw a doctor regarding a “red rash” on his/her peri-area and groin and the doctor instructed to air out the peri area. Due to VA1’s diagnoses, s/he could not keep his/her legs open on his/her own because they contracted. The health care professionals and staff persons at the facility had varying versions of how they assisted VA1 to keep his/her legs opened so that the fan could blow air onto VA1’s genital area. VA1 told this investigator s/he was okay with the treatment. On February 14, 2023, the PCP agreed with the peri care treatment and said it was “ok to support [VA1’s] legs on pillows to maintain position when air-drying the peri-area for 30 minutes.” The PCP also stated that nurses would assess for positioning for the treatment and for accessibility around the pillow and for positioning and temporary anchoring on the side rail, if required. The doctor’s note from 2017 did not give instructions on how to “air out” VA1’s genitals considering VA1’s inability to keep his/her legs apart by him/herself. The SP trained the HPs at the facility how to do the airing out treatment, but there were no written plans in VA1’s file to specifically show how they were to provide the treatment and what measures to use to keep VA1’s legs apart which was a violation of Minnesota Statutes, section 245D.05, subdivision 1, paragraph (b), clause (4). Although there were concerns regarding the treatment of airing out VA1’s genital area and that the HPs seemed to implement the treatment in differing ways whether the scarves were tied or wrapped around VA1’s legs and bedrails to allow VA1’s legs to remain open for the treatment, given that VA1 was okay with the treatment; that there was no information that VA1 was forced to do it; that a doctor instructed the airing out; and that the manner described by all staff persons regarding how VA1 was positioned during the airing out was in compliance with Minnesota Statutes, section 245D.06, subdivision 7, paragraph (c), clause (1); there was not a preponderance of the evidence whether the manner in which the treatment was done could reasonably be expected to produce emotional distress or whether there was a failure to provide VA1 with reasonable and necessary care. It was not determined whether emotional abuse or neglect 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: 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). Allegation Two: It was reported that VA2 was excluded from activities due to a contagious disease. VA2 liked to fish and go shopping. VA2 was diagnosed with bi-polar, dementia, and stroke. VA2 was not subject to guardianship. VA2 told this investigator, “I love it here” and had “no concerns” about the facility. When asked if VA2 was ever excluded from activities, VA2 said it was his/her choice and if s/he did not want to watch a movie s/he did not have to. P1 said s/he was told by the SP to not touch VA2 “at all” or make “physical contact” because VA2 was diagnosed with a contagious chronic disease and did not often wash his/her hands. P2 said s/he knew VA2 was diagnosed with a contagious disease and was trained by the facility nurse to wear gloves during personal cares and wash his/her hands. P3 said VA2 was diagnosed with a contagious disease around October 2022 but was not secluded or isolated from other persons due to that diagnosis. The diagnosis did not limit VA2’s choice to participate in day program group activities and/or eating at a table with other persons. HP1 said VA2 was not isolated due to the contagious disease but still participated in his/her normal activities. The only time HP1 was aware of any isolation was when VA3 had COVID. HP2 said VA3 was “isolated” in his/her room due to a contagious disease for as long as s/he was on medication and staff persons were to follow the SP’s “lead” for when VA3 could “mingle and mix with everyone else.” HP2 did not recall if there was a doctor’s order. HP4 was not aware of any exclusion of VA2 from activities due to a contagious disease and said VA2 chose when s/he wanted to participate or not participate in activities. VA2 was a “very tired” person and sometimes liked to sit in his/her bedroom chair and sleep but was still “very involved” in group activities and outings. The SP said VA2 was diagnosed with a contagious disease sometime in the fall of 2022. Staff persons were trained on contact precautions such as handwashing and wearing gloves or wearing a “gown” if they had very close contact for “cleaning” during “active lesions” that lasted “probably a couple weeks.” There were “not really” any precautions with the other clients “per se” and VA2 was “never” isolated in his/her room. There was no “procedure” that VA2 had to stay in his/her room due to the diagnosis. However, VA2 was in his/her room when s/he had COVID around November of 2022. Facility documentation stated on October 18, 2022, VA2 was diagnosed with a contagious disease from his/her medical provider after complaining of pain and burning while urinating. S/he was prescribed an antiviral medication for 10 days. The facility provided detailed daily logs from October 18 to November 1, 2022, that showed VA2 participated in activities and outings and there was no indication of exclusion or isolation due to his/her diagnoses or staff not providing VA2’s cares. The following are some examples shown on VA2’s daily logs: · On October 19, 2022, VA2 went to Walmart with other clients and staff persons. · On October 20, 2022, VA2 participated in “group devotions and cards.” · On October 21, 2022, VA2 went to Culvers and Dairy Queen, played bingo and talked to his/her family on a video chat. · On October 22, 2022, VA2 went out to eat with his/her family. · On October 23, 2022, VA2 went to church. · October 26, 2022, VA2 sat at the kitchen table and played a game with other clients before dinner. Staff assisted VA2 with cares, meals medications, and applied lotion to his/her feet. · On October 29, 2022, VA2 attended a church event with another staff person and another client. · On October 31, 2022, and November 1, VA2 sat at a table with others and played card games. The facility’s Internal Review provided the following information: · VA2 was diagnosed with a chronic contagious disease on October 18, 2022, and was on a medication for 10 days. At the time of his/her diagnoses, all staff persons were instructed to apply the protocols set forth in the “Universal Precautions and Sanitary Practices policy.” Staff persons were reminded of the precautions and practices such as glove wearing and hand washing. All staff persons confirmed they understood how to apply the precautions and practices to VA2. · No evidence revealed that staff persons were instructed to avoid touching or interacting with VA2 and case notes reviewed showed that staff provided direct care and extensive interaction with VA2. · No evidence demonstrated that VA2 was excluded or isolated. Case notes reviewed showed VA2 engaged in numerous group activities, outings, and spent time with other clients, staff, and family from October 18, 2022, to November 1, 2022. Conclusion for Allegation Two: On October 18, 2022, VA2 was diagnosed with chronic contagious disease. It was reported that as a result, VA2 was isolated and not allowed to participate in activities. However, according to the facility’s daily logs, there was no evidence that VA2 was excluded or isolated due to the diagnoses or that staff persons were instructed to avoid touching or interacting with VA2. The logs stated VA2 engaged in numerous group activities, outings, and spent time with other clients, staff, and family from October 18 to November 1, 2022. Although there was conflicting information from staff persons whether VA2 was isolated in his/her room due to the contagious chronic disease, given that the daily logs showed no information to support that occurred; that VA2 said it was his/her choice whether to participate in activities; and that the SP and multiple other staff persons denied that VA2 was not allowed to participate, there was a preponderance of the evidence that VA2 was not isolated and/or not allowed to participate in activities due to a contagious chronic disease, that it caused VA2 emotional distress, or that staff persons failed to provide the VA with care or services that were reasonable and necessary to obtain physical or mental health or safety. It was determined that emotional abuse or neglect did not occur (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: 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). Alleged Licensing Violation: It was reported that after VA3 was bitten by the SP’s dog, the SP instructed the VA to lie to a doctor. Minnesota Rules, part 9544.0060, subpart 2, item C, states in part that speaking to a person in a manner that ridicules, demeans, threatens or is abusive is prohibited from use for staff convenience. VA3 liked to be as independent as possible and enjoyed his/her privacy. VA3 enjoyed remaining active but also “peace and quiet.” VAS3’s diagnoses included personality disorder and a brain injury. VA3 was not subject to guardianship. Information from all sources was consistent that on October 5, 2022, VA3 was bit/scratched by the SP’s dog when VA3 stepped on the dog’s leash. VA3 told this investigator that s/he “loved living” at the facility. The SP had a “medium” sized “grey” and “white” dog and “a long time ago” or “two or three years ago,” while outside with the dog, the dog bit VA3 on his/her right hand, but it was “just a small little” bite and did not require a doctor visit. The bite caused a “little bit” of bleeding but was “not bad.” Staff persons treated the bite “every day” with ointment and gauze. P1 and HP1 each heard a “rumor” that the SP told VA3 to lie to a doctor about how s/he sustained the injury, however, neither had additional information regarding details or who were the staff persons who heard the SP say so. Information obtained showed that the VA was not seen by a doctor specifically for the injury and that s/he had an appointment with his/her rheumatologist and at that appointment, the provider asked about the Band-Aid on VA3’s hand and VA3 disclosed that s/he “touched thistles.” Although P1 said s/he heard staff persons discussing that the SP had VA3 lie to a doctor about the dog bite and HP1 said “rumor had it” that the SP coached VA3 to lie to a doctor, given that there was no other information to corroborate P1’s information including staff persons accounts or medical records, that there was no information regarding what staff persons were aware of this, and that the SP denied the allegation, a licensing violation was not determined. Action Taken by Facility: The facility completed an Internal Review and found their policies and procedures were adequate and followed. Action Taken by Department of Human Services, Office of Inspector General: On June 21, 2023, the facility was issued a Correction Order for the violation outlined in this report.
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