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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: 801558-RMI (Residential Treatment and Services for Adults with Mental Illness) Investigator(s): Jason Pehler/Kyle Youker 651-431-4056 Suspected Maltreatment Reported: Allegation One: It was alleged that a vulnerable adult (VA) and a staff person (SP) engaged in a sexual relationship. Allegation Two: It was alleged that the SP provided the VA with Tetrahydrocannabinol (THC) edibles and a cell phone at the facility. Date of Incident(s): August 24 to December 1, 2022 Nature of Alleged Maltreatment Pursuant to Minnesota Statutes, section 626.557, subdivision 9c, paragraph (b), and Minnesota Statutes, section 626.5572, subdivision 15, and subdivision 2, paragraph (c); and subdivision 17, paragraph (a): Any sexual contact or penetration between a facility staff person or a person providing services in the facility and a resident, patient, or client of that facility. Sexual contact is defined by Minnesota Statutes, section 609.341, as the intentional touching of the intimate parts with sexual or aggressive intent. 'Intimate parts' includes the primary genital area, groin, inner thigh, buttocks, and breast. 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 December 27, 2022; from documentation at the facility; and through four interviews conducted with a facility staff person (P1), a supervisory staff person (P2), the VA, and the SP. The facility had multiple locked units and the following areas where it was alleged the SP had contact with the VA: · The units were connected via a long hallway known as “the link.” The link could be observed via closed circuit television (CCTV) cameras. Clients would routinely walk on the link for exercise with staff persons. · Tamarack East Unit contained a common space with a client telephone, client rooms, and a team room that had a door with a glass window that could be seen by staff persons and clients. The interior of the team room could be observed via a CCTV camera. · Spruce Unit contained a common space with a client telephone, long corridors with client rooms, a team room, and an exam room that could be accessed from a staff person office and from the side of the unit. The exam room did not have a CCTV camera inside but had a camera showing the entrance. Clients on Spruce unit had fewer supervision requirements than clients on Tamarack East Unit. · An occupational therapy room was accessed via the link. It had a window and door containing a window that could be seen from the link. The occupational therapy room was not observed by CCTV. There was a common area in the occupational therapy room that lead to other specialty exam rooms. The occupational therapy room was accessed via badge scanner and attached exam rooms were accessed via mechanical keys. The VA was diagnosed with unspecified personality disorder and bipolar disorder. The VA had a history of “sexually problematic behavior,” including boundary issues with peers, “staring” at staff persons of the opposite gender, and touching others without permission. The VA had a “long documented” history of difficulty with building therapeutic relationships and had ongoing “struggles” with boundaries. The VA liked playing video games, listening to music, and playing basketball. From July 6 to August 3, 2022, the VA was on Tamarack East Unit. From August 3 to September 15, 2022, the VA was on Spruce Unit. From September 15 to November 30, 2022, the VA was on Tamarack East Unit. From November 30 to December 2, 2022, the VA was on Spruce Unit. Facility documentation showed that all staff persons interviewed for this investigation received training on the facility’s policies and procedures and on the Reporting of Maltreatment of Vulnerable Adults Act. Allegation One: It was alleged that the VA and the SP engaged in a sexual relationship. The VA provided the following information: · The VA and the SP started talking in “early summertime” of 2022. The conversations were initially “small talk” and took place on the telephone and in-person at the facility. The VA estimated the conversations went on for four or five months but was unable to provide exact dates. The in-person conversations took place in the team room on Spruce Unit and would last “hours.” No staff persons or clients were near the team room when the SP and VA had these conversations. · The VA and the SP had conversations on multiple unknown dates via telephone after the SP gave the VA his/her phone number. The SP would tell the VA s/he was masturbating while they were on the phone. The VA knew the SP was masturbating because s/he heard pornography in the background. · The VA and SP then started having sexual contact at the facility. One occasion in the “summertime” the SP told the VA that s/he wanted to have sexual contact once the VA left the facility. Then, the SP told other staff persons s/he was taking the VA on a walk around the link and took the VA off Tamarack East Unit. The VA and the SP went to the occupational therapy room, where the SP swiped his/her badge to get in. The VA and the SP engaged in oral sex. The VA estimated s/he and the SP were in the occupational therapy room for five to six minutes. The VA did not know if other staff persons saw them go into the occupational therapy room together. · Around “Halloween time,” the SP and the VA again had sexual contact - this time in the Spruce Unit exam room. The VA stated the SP “acted” like s/he was going to clean the VA’s ears in the exam room, but actually brought the VA in there because the SP was “horny.” The VA stated it was common for the SP to clean clients’ ears in the exam room. While in the exam room the SP showed the VA his/her genitals, engaged in oral sex with the VA, and the VA kissed the SP. The VA estimated s/he and the SP were in the exam room for five to six minutes and no other staff persons knew they were there. The VA stated the SP had to swipe his/her badge to get into to the exam room. · The VA stated that sexual contact with the SP only occurred on those two occasions. The VA referred to his/her interactions with the SP as a “relationship.” The VA stated s/he became “upset” when the SP stopped having phone conversations with the VA because the SP stopped answering his/her phone while s/he was on a vacation. P1 provided the following information: · P1 stated s/he was working in Spruce Unit on December 2, 2022, when the VA came up to him/her near the unit phone and was laughing. The VA asked P1 if s/he had a staff person’s phone number would that staff person’s employment be terminated, then the VA stated s/he had the SP’s phone number. · The VA then called a phone number and handed the receiver to P1; the call went to voicemail for the SP. The VA told P1 that the SP gave him/her the phone number when the VA asked him/her. The VA then told P1 that the VA had “sexual relations” with the SP but did not describe any further details. · The SP would occasionally be in the team room with the VA, but the length of time s/he would be in there would be the same as for other clients. The team room had cameras in it that could be monitored by other staff persons from the office. · It was common practice to have two staff persons in an exam room with a client. P1 stated there was a camera outside of the exam room attached to Spruce Unit, but not inside it. P1 did not think the SP and the VA were ever in an exam room alone. · P1 stated that the SP had a good rapport with the VA and described the relationship between the SP and the VA as “buddy-buddy.” P1 never witnessed the SP and the VA hold hands or anything that could be interpreted as “flirty,” and was never concerned about the interactions between the SP and the VA. · P1 stated that if a client contacted him/her outside of work s/he would immediately report it to a supervisor and change his/her phone number. P1 stated it would not be “typical” for the VA and the SP to be communicating outside of the SP’s work time. P2 provided the following information: · P2 routinely observed the SP’s interactions with the VA and other clients and did not see any interactions between the SP and the VA that would lead him/her to think they had a sexual relationship. · P2 stated that two staff persons at a minimum were supposed to be in an exam room with a client. The only time a staff person was alone with a client was when the client needed to take a walk on the link. The SP never told P2 that s/he was taking the VA into the occupational therapy room. · P2 did not think the SP would have given his/her phone number to the VA because s/he was a “private person.,” and did not think the SP would have spoken to the VA on the telephone outside of work hours. · P2 stated that approximately one year prior, the SP stated s/he was concerned that the VA was “threatening” him/her. The SP told P2 that the VA knew how to get his/her phone number. P2 stated the SP’s concerns were not followed up on and “brushed under the rug,” but did not provide further details. · After the allegations were brought forward, the SP told P2 that s/he kept getting phone calls from a phone number used by clients on the unit. P2 stated that clients had access to make phone calls on the unit unless they were on a restriction plan. The SP provided the following information: · The SP stated that s/he did not provide the VA with his/her phone number, but that approximately one year prior, the VA told the SP that s/he got the SP’s address via an internet search. The SP reported this to a clinical director but was told since there was not a threat by the VA no further action was taken by the facility. The SP stated s/he had “emotions” after being told by the facility that the VA having his/her address was not a “big deal.” · The SP stated the VA called him/her from a unit phone in August 2022. The SP was unsure of who the caller was at first, but then discovered it was the VA. · The SP had phone conversations with the VA but was unsure of how many or what dates they occurred on. The SP was unsure the length of the calls but stated a lot of the phone calls s/he did not answer. · The SP stated the conversations with the VA on the phone involved the VA telling the SP about frustrations with the unit and being upset that s/he was moved to from Spruce Unit to Tamarack Unit. The VA would “taunt” the SP about getting the SP’s employment terminated for the phone calls. · On an unknown date, the SP called the VA on the unit phone to ask him/her to stop calling. The VA “laughed” when the SP asked the VA to stop calling. · The SP continued to talk to the VA on the phone to find out how the VA got his/her phone number and to find out the VA’s “intentions.” When the SP could not find out the VA’s intentions s/he did not report the phone calls because s/he thought it would “look really bad.” The SP did not block the phone number the VA was calling from and could not provide a reason. The SP hoped the VA would eventually stop calling him/her. The SP stated s/he stopped answering the VA’s phone calls on or around November 27, 2022, when the SP went on vacation. · On unknown dates, the SP and the VA occasionally spent time in the team room alone to discuss issues with the VA’s family and other feelings the VA was having. The SP stated the VA would talk about how s/he was better managing his/her anger. The SP stated s/he would also spend time with other clients in the team room, having similar discussions. · The SP was unsure of the length of time s/he was in the team room with the VA, as the time varied, but stated the longest was approximately one hour. While the SP was in the team room other staff persons would periodically check-in with the SP. · The SP stated s/he and the VA never had conversations that were sexual in nature and never discussed being in a “relationship” while on the phone or in person. The SP believed that the VA was upset that the SP stopped answering his/her phone calls, so the VA told other staff persons that the SP and the VA were in a sexual relationship. · The SP was unsure if s/he ever took the VA for a walk on the link but stated s/he would routinely take clients for a walk on the link. The SP stated s/he did not have sexual contact with the VA in the occupational therapy room and was unsure of where the occupational therapy room was or if s/he had ever been in it with any clients. The SP stated s/he did not have sexual contact with the VA in an exam room and never showed the VA his/her genitals. The SP stated s/he was never in an exam room with the VA alone because there was no CCTV in the exam rooms. The SP did not recall ever cleaning the VA’s ears but was not certain. The facility conducted an internal review and reviewed CCTV footage compared to the SP’s badge access report to the occupational therapy room and the exam room from July 2022 through December 2022. No CCTV footage was located of the SP and the VA entering either the exam room or the occupational therapy room together. Facility documentation stated the phone calls between the unit client phone and the SP’s phone took place between August 24 and December 7, 2022. The client phone on the unit made 230 outbound calls to the SP’s phone number and the client phone on the unit had 12 inbound calls from the SP’s phone number. All calls totaled approximately 40 hours of time spent on the phone. The facility had a Boundaries policy. The policy stated staff persons “must” maintain therapeutic boundaries. The Boundaries policy also stated that a staff person “must” report to a supervisor if they were experiencing a difficulty in managing boundaries. Relevant Rules and Statutes: Minnesota Statutes, section 245A.04, subdivision 14, paragraph (b), clause (3), stated that the license holder shall monitor implementation of policies and procedures by program staff persons. Conclusion for Allegation One: A. Maltreatment: Regarding sexual abuse: The VA stated that on two unknown dates, s/he and the SP had sexual contact; once in the Spruce Unit exam room and once in the occupational therapy room. The SP denied having sexual contact with the VA. The SP did not recall being in the occupational therapy room with the VA or being in an exam room with the VA alone. The occupational therapy room had CCTV cameras and the exam room did not. The occupational therapy room had two windows that could easily be seen from the link and the exam room was accessible from the office and the unit. P1 and P2 provided consistent information that it was common practice to have two staff persons in an exam room with a client due to there not being any CCTV camera in the exam rooms. P1 and P2 provided consistent information that neither had concerns about the SP and the VA’s interactions with each other. Although the VA said the VA and the SP had sexual contact, the SP denied sexual contact with the VA and the CCTV footage compared to the SP’s badge scans into the therapy room did not show the VA and the SP entering the room together on any occasion. Given this and that there was no further information to confirm or dispute either account, there was not a preponderance of evidence whether the SP and the VA had sexual contact. It was not determined whether sexual abuse occurred. (Any sexual contact or penetration between a facility staff person or a person providing services in the facility and a resident, patient, or client of that facility. Sexual contact is defined by Minnesota Statutes, section 609.341, as the intentional touching of the intimate parts with sexual or aggressive intent. 'Intimate parts' includes the primary genital area, groin, inner thigh, buttocks, and breast.) Regarding neglect: The VA stated that the VA and the SP had conversations at the facility in-person and on the phone and that some of the conversations were sexual in nature. Information was consistent that the VA and the SP had telephone conversations between August 24 and December 7, 2022, which were between the client phone and the SP’s phone. 230 calls were outbound from the client phone to the SP’s phone and 12 calls were inbound from the SP’s phone to the client phone. The VA stated the SP gave the VA his/her phone number and the SP denied doing so. The SP also denied that the SP and the VA had conversations that were sexual in nature. The phone conversations between the SP and the VA, which totaled approximately 40 hours, were not maintaining therapeutic boundaries and the SP did not report the VA calling him/her to a supervisor, both of which were a violation of the Boundaries policy, and a violation of Minnesota Statutes, section 245A.04, subdivision 14, paragraph (b), clause (3). In addition, the SP’s behavior was inconsistent with the standards of a professional caregiver in a facility licensed by the Department of Human Services. However, given the VA’s vulnerabilities including his/her “long documented” history of difficulty with building therapeutic relationships and ongoing “struggles” with boundaries, the SP’s continued phone conversations with the VA could have compromised and or hindered the VA’s understanding of a therapeutic relationship and could interfere with other individuals’ attempts to provide therapeutic services to the VA, both now and in the future. Therefore, there was a preponderance of the evidence that there was a failure to provide the VA with care and services that were reasonable and necessary to maintain the VA’s mental health and safety. It was determined that neglect occurred (the failure or omission by a caregiver to supply a vulnerable adult with care or services, including but not limited to food, clothing, shelter, health care, or supervision which is reasonable and necessary to obtain or maintain the vulnerable adult's physical or mental health or safety, considering the physical and mental capacity or dysfunction of the vulnerable adult and which is not the result of an accident or therapeutic conduct). B. Responsibility pursuant to Minnesota Statutes, section 626.557, subdivision 9c, paragraph (c): When determining whether the facility or individual is the responsible party for substantiated maltreatment or whether both the facility and the individual are responsible for substantiated maltreatment, the lead agency shall consider at least the following mitigating factors: (1) whether the actions of the facility or the individual caregivers were in accordance with, and followed the terms of, an erroneous physician order, prescription, resident care plan, or directive. This is not a mitigating factor when the facility or caregiver is responsible for the issuance of the erroneous order, prescription, plan, or directive or knows or should have known of the errors and took no reasonable measures to correct the defect before administering care; (2) the comparative responsibility between the facility, other caregivers, and requirements placed upon the employee, including but not limited to, the facility’s compliance with related regulatory standards and factors such as the adequacy of facility policies and procedures, the adequacy of facility training, the adequacy of an individual’s participation in the training, the adequacy of caregiver supervision, the adequacy of facility staffing levels, and a consideration of the scope of the individual employee’s authority; and (3) whether the facility or individual followed professional standards in exercising professional judgment. The SP was trained on the Reporting of Maltreatment of Vulnerable Adults Act and on the facility’s Boundaries Policy. The SP was responsible for maltreatment of the VA. C. Recurring and/or Serious Maltreatment: The Office of Inspector General is required to evaluate whether substantiated maltreatment by an individual meets the statutory criteria to be determined as “recurring or serious.” Individuals determined to be responsible for recurring or serious maltreatment are disqualified from providing direct contact services. Minnesota Statutes, section 245C.02, subdivision 16, states: “Recurring maltreatment” means more than one incident of maltreatment for which there is a preponderance of evidence that maltreatment occurred and that the subject was responsible for the maltreatment. Minnesota Statutes, section 245C.02, subdivision 18, states: "Serious maltreatment" means sexual abuse, maltreatment resulting in death, neglect resulting in serious injury which reasonably requires the care of a physician whether or not the care of a physician was sought, or abuse resulting in serious injury. For purposes of this definition, "care of a physician" is treatment received or ordered by a physician, physician assistant, or nurse practitioner, but does not include diagnostic testing, assessment, or observation; the application of, recommendation to use, or prescription solely for a remedy that is available over the counter without a prescription; or a prescription solely for a topical antibiotic to treat burns when there is no follow-up appointment. For purposes of this definition, "abuse resulting in serious injury" means: bruises, bites, skin laceration, or tissue damage; fractures; dislocations; evidence of internal injuries; head injuries with loss of consciousness; extensive second-degree or third-degree burns and other burns for which complications are present; extensive second-degree or third-degree frostbite and other frostbite for which complications are present; irreversible mobility or avulsion of teeth; injuries to the eyes; ingestion of foreign substances and objects that are harmful; near drowning; and heat exhaustion or sunstroke. Serious maltreatment includes neglect when it results in criminal sexual conduct against a child or vulnerable adult. It was determined that the substantiated neglect for which the SP was responsible did not meet statutory criteria to be determined as serious maltreatment because it did not meet the definition or recurring because the SP’s conduct was considered a pattern of behavior. Allegation Two: It was alleged that the SP provided the VA with Tetrahydrocannabinol (THC) edibles and a cell phone at the facility. The VA provided the following information: · The VA stated that the SP gave him/her 10-strawberry flavored “gummies.” The VA stated the SP did this to “pitch in” for the time the VA and SP were spending together. · The VA stated s/he gave away some of the gummies to other clients who the VA did not name at the facility and ate the others him/herself. The VA did not know what the gummies were, but they made the VA feel like s/he was “smoking weed.” · The VA stated the SP did not give him/her gummies any other time. · On an unknown date, the SP gave the VA a cell phone and a charger on the inside of a heating pack the SP gave to the VA. The VA used the cell phone to go on Facebook. The VA and the SP did not use the cell phone to communicate. · On an unknown date staff persons conducted a room search of the VA’s room but did not find the cell phone. · The VA stated that “three to four months” prior to the interview with this investigator s/he mailed the cell phone from the facility to his/her sibling. P1 and facility documentation provided the following information: · On an unknown date the VA was suspected to have “edibles.” P1 thought the edibles were found on the VA, but s/he ate them prior to any tests being performed. P1 stated the VA may have tested positive for THC within the last six months but was not sure. (Note: There were no facility records showing the VA was tested for THC.) · P1 stated on an unknown date the facility was made aware of a possible cell phone on Spruce Unit which was a unit the SP was working on. P1 stated the SP seemed like s/he “wanted” the cell phone to be found when they discussed finding it together. · P1 stated s/he did not see the SP give the VA “special treatment” and did not think the SP would bring in “contraband” to the facility. P2 stated there were past concerns that THC edibles and a cell phone were being used by multiple clients on the Spruce Unit, but s/he could not remember if the VA was on Spruce Unit at that time. P2 stated that room searches were done on Spruce Unit and neither a cell phone nor THC edibles were found on the VA or other clients. P2 stated that there were clients on a different unit (P2 did not recall which unit) that had an unknown “substance,” but it was unknown if it was THC. The SP provided the following information: · The SP stated s/he was “aware” that there was possibly a cell phone and THC edibles on Spruce Unit at some point, but the SP was working on Tamarack unit during that time. The SP was unsure if there were THC edibles on Tamarack Unit at the same time. · The SP stated s/he never gave the VA a cell phone or THC edibles and that the VA never asked the SP to bring him/her a cell phone or THC edibles. Conclusion for Allegation Two: The VA provided information that the SP gave him/her strawberry flavored “gummies,” and a cell phone. The VA gave away some of the gummies and ate the rest. The VA did not know what was in the gummies, but they made him/her feel like s/he was “smoking weed.” The VA used the cell phone to go on Facebook. The VA stated that s/he mailed the cell phone to a sibling. P1 and P2 provided consistent information that there were concerns of THC edibles and a cell phone being on Spruce Unit but were unsure if the VA was on the unit at the time. P2 stated that room searches were conducted on Spruce Unit and a cell phone and THC edibles were not found. The SP stated there was possibly a cell phone and THC edibles on Spruce Unit, but the SP was not assigned to the unit at the time. The SP denied giving the VA a cell phone or THC edibles. Although the VA said the SP gave the VA a cell phone and gummies, the SP denied doing so and no cell phone, gummies, or THC edibles were found on the Spruce unit or on the VA. There was not a preponderance of the evidence whether there was a failure to provide the VA with reasonable and necessary care and services. It was not determined whether 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). Action Taken by Facility: The facility completed an internal review. The internal review showed the facility had policies and procedures in place that were adequate but not followed by the SP. The SP no longer worked at the facility. Action Taken by Department of Human Services, Office of Inspector General: The SP was not disqualified from providing direct care services as a result of the maltreatment determination in this report. However, the SP was notified by the Office of Inspector General that any further substantiated act of maltreatment, whether or not the act meets the criteria for “serious,” will automatically meet the criteria for “recurring” and will result in the disqualification of the SP. The determination that the SP was responsible for maltreatment is subject to appeal. A Correction Order was not issued for the violation outlined in this report because the facility took immediate action.
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