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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: 1069241-H_CRS (Home and Community-Based Services-Community Residential Setting) Investigator(s): Scott Brandt 651-431-6556 Suspected Maltreatment Reported: It was reported that three staff persons (SP1-SP3) restrained a vulnerable adult (VA) incorrectly and that the VA was kicked, slapped, and pushed. Date of Incident(s): April 3, 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 (1); 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 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 April 12, 2023; from documentation at the facility; from law enforcement records; and through six interviews conducted with the VA, SP1-SP3, a facility management staff person (P) and the VA’s guardian (G). The facility’s living room had a large bay window with a window seat. There were video cameras located throughout the common areas of the facility. The VA’s Admission Information Sheet showed that some of his/her diagnoses included attention deficit hyperactivity disorder (ADHD), fetal alcohol syndrome, anxiety, and major depressive disorder. Facility documentation showed that the VA had a history of engaging in self-injurious behavior (SIB), property destruction, and verbal and physical aggression toward others. When the VA engaged in maladaptive behaviors, staff persons were trained to talk to the VA in a calm voice and provide verbal redirection. The VA’s Individual Abuse Prevention Plan showed that when the VA was in a “self-abusive situation, staff will take the least restrictive action necessary to protect” the VA. The P provided the following information (Investigator’s note: The P stated that the video available to the P had audio, but the video provided to the investigator did not have audio): · On April 4, 2023, the P learned that the VA had been involved in behavioral incidents at the facility involving SP1-SP3. As a result, the P reviewed camera footage and noted the following in written documentation: o At 1:37 p.m., the VA walked into the living room and “swears at staff [persons].” A minute later, the VA threw “slippers” across the room. SP1 and SP2 walked toward the VA and the VA sat down on the window seat. The VA threw an ice pack on the floor and used racial slurs toward SP1 as SP3 entered the living room. The VA pushed and kicked SP1. SP1 then “grabs” the VA’s feet and “pulls” the VA “off the bay window dropping to the floor.” SP1 then “gets on top” of the VA and “grabs” the VA’s wrists. SP2 assists by holding the VA’s legs. o At 1:39 p.m., the VA “spits on staff [persons].” o At 1:41 p.m., SP1 and SP2 released the VA and SP1 and SP2 walked away. The VA continued with “verbal aggressions” and stood on the window seat. Over the next minute or so, the VA continued to verbally escalate. SP1 walked back toward the VA and “sweeps” the VA’s “feet from under” the VA, which caused the VA to “fall to the floor.” SP1 then got on “top” of the VA while SP2 “assists with legs” and SP3 “appears to place [his/her] foot” on the VA’s face. The VA then said that s/he “can’t breathe” and SP1 responded, “If you can talk you can breathe.” o At 1:43 p.m., SP1 and SP2 released the VA. The VA walked toward the kitchen and SP1 followed. The VA then picked up a fire extinguisher and threw it into the dining room. The VA went to his/her bedroom and then at some point went back out to the common area. o At 1:44 p.m., SP1 “runs up behind” the VA and “sweeps” his/her feet and “pushes” the VA to the floor, then “kicks and slaps” the VA while “standing over” the VA. Shortly thereafter, the VA got up, walked to his/her bedroom and “slams the door shut.” o The VA returned to the common area and for the next several minutes, the VA continued to engage in verbal aggression, engage in SIB, and engaged in throwing items at various parts of the facility. o At 1:54 p.m., the VA pushed a table so SP1 and SP3 approached the VA. When the VA kicked SP1, SP1 and SP3 “pull” the VA from a chair and “on to the floor.” The VA sat up and “bangs” his/her head “multiple times.” The VA then went to the garage and SP2 and SP3 followed the VA. · The P stated that when staff persons were trained to implement restraints on clients, they were not trained to sit on the clients’ chest as part of the restraint. This investigator also reviewed video footage and confirmed what the P provided in his/her written statement. Additional details from the video included the following: · When the VA pushed the dining room table, SP1 grabbed the VA’s legs and SP3 pulled the VA’s left arm and threw the VA to a half wall that was about six feet away. The VA did not appear to hit his/her head on the half wall as a result of being thrown, but the VA head butted the wall. · After leaving the room, the VA returned a short time later and sat at a chair by the dining room table. When the VA attempted to flip the table, SP1 ran toward the VA and pulled the VA’s legs, but the VA remained on the chair as the chair slid across the room. When that happened, SP1 again pulled the VA’s legs from chair as SP3 assisted the VA to the floor without force. · Toward the end of the incident, while the VA sat in the garage throwing a chair and a table, SP1 stood in the doorway and then SP1 and SP3 went into the garage. No significant events occurred in the garage. · Throughout the incidents, SP2 was seen verbally talking to the VA. The facility’s Incident/Emergency Report, completed by the P, stated that the VA was placed in “two holds” and “once released, it was reported that a staff [person] kicked [him/her], slapped [him/her], and pushed [him/her] to the ground.” The report indicated, “Staff [persons] did not follow policies and did not implement the EUMRs (emergency use of manual restraint) properly.” The VA provided information to this investigator that was mostly similar to the information provided in the P’s written statement. The VA told this investigator that s/he “couldn’t breathe” and was “freaking out.” The VA also stated that staff persons “grabbed my head” and “slammed in into the ground,” but the VA did not say who did that. During the site visit, the VA showed this investigator a number of scratch marks and bruises on his/her arms and said that they were a result of the incidents on April 3, 2023. SP1 provided the following information: · The incident began when the VA used racial slurs toward SP1 and “was attacking me.” When the VA began to hit his/her head and throw items, SP1 told the VA to stop, but the VA did not do that. · While the VA stood on the window seat, SP2 grabbed the VA’s legs and the VA went “down.” When that happened, SP2 held the VA for about five minutes. SP1 stated that s/he was not involved in that hold. · When the second hold happened, the VA sat on the floor and then was on his/her back while SP1 sat on the VA because that was the “only” way to calm the VA down, even though SP1 was not trained in that manner. SP1 held the VA’s hands on the floor and SP3 used his/her feet on the VA’s “face.” When SP1 saw SP3 do that, SP1 told SP3 to “not do that again” because the VA said that “[s/he] can’t breathe.” When the VA stated that s/he could not breathe while SP1 sat on the VA, SP1 got up. SP1 denied telling the VA, “If you can talk, you can breathe.” · SP1 acknowledged that s/he pushed the VA when the VA held the fire extinguisher because the VA “hit me” with the fire extinguisher (Note: The video did not show the VA throwing the fire extinguisher at SP1). SP1 told the VA to calm down. SP1 denied kicking or slapping the VA. · At some point, the VA called law enforcement and they went to the facility. SP2 provided the following information: · Before the incidents began, the VA began throwing papers and did not stop when asked to do so. When the VA needed to be put in a hold, SP2 and another staff person performed the hold, but SP2 did not remember who was involved. While SP2 held the VA’s legs, the other staff person held the VA’s arms. After one to two minutes, the hold ended. SP2 did not remember who did it or how the VA went from a standing position to lying on his/her back. SP2 also remembered that someone sat on the VA, but SP2 did not remember who that was. When the VA said that s/he could not breathe, SP2 told the staff person to stop and then the staff person stopped sitting on the VA. SP2 also said that s/he heard a staff person say, “If you can talk, you can breathe,” but SP2 did not remember who said that. · SP2 did not see the VA throw the fire extinguisher, but SP2 remembered that the VA began hitting his/her head on a wall. · SP2 also remembered that while the VA was on the chair, someone “pulled” the VA’s legs, but SP2 did not remember who did that. SP2 did not see anyone push the VA. SP3 provided the following information: · The incidents began when the VA began using racial slurs toward staff persons and engaging in SIB. SP3 remembered that SP1 pulled the VA’s legs while the VA stood in the window seat, which resulted in the VA landing on his/her buttocks. · While SP1 was “sitting” on the VA’s “belly,” the VA stated that s/he was having a hard time breathing. When that happened, SP1 did not move for about three minutes. · When one of the holds was done, SP3 used his/her foot to “hover over” the VA’s mouth because the VA was spitting. · SP3 stated that SP1’s and SP2’s actions, throughout the events, were “overly aggressive” because they did too many holds. SP3 did not see anyone push the VA, but SP3 watched the video after the incident and saw SP1 “blatantly” push the VA “from behind” which caused the VA to fall. SP3 also saw SP1 “trying to push” the VA’s head into the floor and described it as “almost like a slap.” · After the events happened, the VA had some bruising, but those bruises were from the “night before” when the VA engaged in SIB. · When SP3 was asked what could have been done differently, s/he stated that staff persons “could have tried more de-escalation” and used a mat when the holds were done. SP3 did not remember pulling the VA from a chair. The law enforcement report, dated April 3, 2023, provided the following information: · When law enforcement arrived at the facility at 8:07 p.m., the VA “immediately showed me multiple marks and bruises on [his/her] right wrist, right and left forearms, and the inside of [his/her] upper right arm and stated that’s what they did.” The VA stated that “the marks were from staff [persons] putting [him/her] in a control hold and twisting.” · The reported indicated that the VA sought medical attention at a hospital on April 4, 2023, and that the VA also had a “concussion” as a result of the April 3, 2023, incident. · The report did not indicate that SP1-SP3 were interviewed. The VA’s medical records showed that the VA was seen in an emergency room (ER) on April 4, 2023, for “headaches” and was diagnosed with an “injury of head.” The VA was told to take Tylenol for pain, as needed. The G stated that when s/he talked to the VA about the incidents on an unspecified date, the VA stated that s/he had been placed in holds and that s/he “hit [his/her] head,” but the VA did not provide specific information and the VA did not mention that staff persons pushed or slapped him/her. The facility’s training documents stated: · “It is also very important to avoid becoming involved in a power struggle with the person,” and “Emergency use of manual restraint means using a manual restraint when a person poses an imminent risk of physical harm to self or others and is the least restrictive intervention that would achieve safety.” · “Property damage, verbal aggression, or a person’s refusal to receive or participate in treatment or programming on their own does not constitute an emergency.” · In addition, documentation showed that when holds were implemented, a mat was to be used. Job descriptions for SP1-SP3 stated that one of the tasks to be completed was to “effectively de-escalate difficult situations between person(s) served by avoiding power struggles and using positive support strategies.” Information from the facility’s personnel files for SP1-SP3 provided the following information: · The facility determined that SP1 and “other staff [persons] not only violate[d] policies and procedure of administering emergency use of manual restraints,” but SP1 was “viewed at times being the instigator and aggressor by antagonizing and not distancing yourself from the resident but rather engaging with [him/her] multiple times.” · The facility determined that SP2 and “other staff [persons] violat [ed] policies and procedure of administering emergency use of manual restraints, your failure to not stop the restraints when implemented by your coworkers and choosing to assist in them is not the type of care we wish to provide to the residents.” · The facility determined that SP3 and “other staff [persons] not only violate[d] policies and procedure of administering emergency use of manual restraints,” but SP3 was “viewed at times being the instigator and aggressor by antagonizing and not distancing yourself from the resident but rather engaging with [him/her] and pulling [him/her] from the chair while [s/he] was sitting on it.” The facility’s documentation showed that all staff persons interviewed for this investigation were trained on the Reporting of Maltreatment of Vulnerable Adults Act, the VA’s plans, and implementing restraints prior to April 3, 2023. Relevant Rule and/or Statute: Minnesota Statutes, section 245D.04, subdivision 3, paragraph (a), clause (6) stated that consumers have the right to be treated with courtesy and respect. Conclusion: A. Maltreatment: Regarding physical abuse: On April 3, 2023, the VA engaged in maladaptive behaviors. Video of the incident showed SP1, who was characterized as the “aggressor” and “instigator” in facility documentation, pulling the VA by the feet from the bay window to the floor, sitting on the VA, pushing the VA, “sweeping” the VA’s feet causing the VA to fall, and pushing the VA to the floor and then kicking the VA while “standing over” the VA. In addition, SP1 grabbed the VA’s legs and SP3 pulled the VA’s left arm and threw the VA to a half wall that was about six feet away. SP3 was also seen in the video putting his/her foot over the VA’s face while the VA was on the floor being restrained by SP1 and SP2, and SP3 was seen pulling the VA from a chair to the floor. SP1’s and SP3’s actions were inconsistent with the role of a professional caregiver in a program licensed by the Minnesota Department of Human Services and a violation of Minnesota Statutes, section 245D.04, subdivision 3, paragraph (a), clause (6). Even though SP1 and SP3 minimized their actions when interviewed, video footage showed the above actions occurred. Therefore, there was a preponderance of the evidence that staff persons engaged in conduct that was not therapeutic and not accidental and could reasonably be expected to produce physical pain or injury to the VA. It was determined that physical abuse occurred (conduct which is not an accident or therapeutic conduct which produces or could reasonably be expected to produce physical pain or injury or emotional distress including, but not limited to: hitting, slapping, kicking, pinching, biting, or corporal punishment of a vulnerable adult). Regarding neglect: On April 3, 2023, the VA was restrained multiple times even though facility documentation stated that the VA engaged in property damage and verbal aggression which did not “constitute an emergency” or warrant restraint. Although staff persons were trained to talk with the VA in a calm voice and provide redirection, information showed that staff persons antagonized the VA and did not distance themselves from the VA so likely contributed to the VA’s continued maladaptive behaviors. SP1 and SP3 were seen on video footage approaching the VA several times and physically engaging including pulling the VA to the floor. In addition, SP1 said, “If you can talk, you can breathe,” and SP1 sat on the VA’s chest while the VA lay on the floor on his/her back which was not how staff persons were trained to execute restraints. Information showed that during the incident, the VA engaged in SIB including banging his/her head and had some injuries and bruising. The VA was seen the ER the next day for “headaches” and was diagnosed with an “injury of head.” The VA was told to take Tylenol for pain, as needed. However, it was not determined how or when the VA obtained the injuries or bruises because the VA engaged in SIB during and prior to the incident and had a history of doing so causing injuries. Regardless of the VA’s behaviors, given that SP1’s and SP3’s actions likely caused the VA to need to be restrained, that during one restraint SP1 sat on the VA’s chest and SP3 held his/her foot over the VA’s face, and that SP1 and SP3 continued to physically engage with the VA which likely caused the VA to escalate and continue having maladaptive behaviors, there was a preponderance of the evidence that staff persons actions were not accidental or therapeutic and were a failure to supply the VA with reasonable and necessary care to maintain his/her physical or mental health or 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. Regarding SP1: Video footage showed SP1 pulling, pushing, kicking, and slapping the VA. Information also showed that the VA was restrained after SP1 did those things to the VA and SP1 continued to antagonize the VA. In addition, SP1 sat on the VA’s chest and did not follow training of the VA’s plans or restraints. SP1 was trained on the VA’s plans and on the Reporting of Maltreatment of Vulnerable Adults Act. SP1 was responsible for neglect and physical abuse of the VA. Regarding SP2: SP2 participated in the restraints of the VA, however there was no information, including what was seen on the video footage, that SP2 did the restraints incorrectly or engaged in physical abuse toward the VA. Although the facility determined that the restraints were not warranted, SP2’s responsibility was mitigated because SP2 engaged physically with the VA once other staff persons were restraining the VA to assist. Therefore, SP2’s responsibility was mitigated. Regarding SP3: Although SP3 said that s/he did not remember pulling the VA from a chair, video footage showed SP3 pull the VA from a chair to the floor. In addition, SP3 was seen on video pulling the VA’s arm while SP1 held the VA’s feet and they “threw” the VA into a wall. When the VA was restrained, SP3 put his/her foot over the VA’s face which was not in line with training or the VA’s plans. SP3 continued to engage with the VA which likely antagonized the VA rather than disengaging. SP3 was trained on the VA’s plans and on the Reporting of Vulnerable Adults Act. SP3 was responsible for neglect and physical abuse of the VA. C. Recurring and/or Serious Maltreatment: The Office of Inspector General is required to evaluate whether substantiated maltreatment by an individual meets the statutory criteria to be determined as “recurring or serious.” Individuals determined to be responsible for recurring or serious maltreatment are disqualified from providing direct contact services. Minnesota Statutes, section 245C.02, subdivision 16, states: “Recurring maltreatment” means more than one incident of maltreatment for which there is a preponderance of evidence that maltreatment occurred and that the subject was responsible for the maltreatment. Minnesota Statutes, section 245C.02, subdivision 18, states: "Serious maltreatment" means sexual abuse, maltreatment resulting in death, neglect resulting in serious injury which reasonably requires the care of a physician whether or not the care of a physician was sought, or abuse resulting in serious injury. For purposes of this definition, "care of a physician" is treatment received or ordered by a physician, physician assistant, or nurse practitioner, but does not include diagnostic testing, assessment, or observation; the application of, recommendation to use, or prescription solely for a remedy that is available over the counter without a prescription; or a prescription solely for a topical antibiotic to treat burns when there is no follow-up appointment. For purposes of this definition, "abuse resulting in serious injury" means: bruises, bites, skin laceration, or tissue damage; fractures; dislocations; evidence of internal injuries; head injuries with loss of consciousness; extensive second-degree or third-degree burns and other burns for which complications are present; extensive second-degree or third-degree frostbite and other frostbite for which complications are present; irreversible mobility or avulsion of teeth; injuries to the eyes; ingestion of foreign substances and objects that are harmful; near drowning; and heat exhaustion or sunstroke. Serious maltreatment includes neglect when it results in criminal sexual conduct against a child or vulnerable adult. It was determined that the substantiated abuse and neglect for which the SP1 and SP3 were each responsible did not meet statutory criteria to be determined as recurring because the events were considered a single incident that met two definitions of maltreatment, and it was not serious because even though the VA had bruises and scratches, the VA engaged in SIB, including banding his/her head so it was not determined whether the VA’s injures were a result of staff persons’ actions. Action Taken by Facility: The facility’s internal review showed that although policies and procedures were adequate, they were not followed and that additional training was provided, but the type of training was not outlined. In addition, SP1-SP3 no longer worked at the facility. Action Taken by Department of Human Services, Office of Inspector General: SP1 and SP3 were not disqualified from providing direct care services as a result of the maltreatment determination in this report. However, SP1 and SP3 were each 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 SP1 and/or SP3. The determination that SP1 and SP3 were each responsible for maltreatment is subject to appeal. The facility took immediate corrective action so a Correction Order was not issued for the violation outlined in this report.
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