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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: 1098082-H_CRS (Home and Community-Based Services-Community Residential Setting) Investigator(s): Kyle Youker/Anna Parkin 651-431-6225 Suspected Maltreatment Reported: It was alleged that a staff person (SP) had sexual contact with a vulnerable adult (VA). Date of Incident(s): February 4, 2022 to March 27, 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 (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 for this investigation was obtained remotely, including documentation from the facility and law enforcement records; and through three interviews conducted with the SP, a supervisory staff person (P1), and a facility staff person (P2). The VA was interviewed by a law enforcement officer (LEO) and that information was included below. The VA was diagnosed with generalized anxiety disorder and post-traumatic stress disorder. The VA enjoyed building, hunting, and volunteering. The VA was not subject to guardianship. The VA resided at a program operated by the same license holder from December 9, 2020, to September 20, 2022. The VA moved to the facility on December 9, 2022. The VA served 30 days in jail from February 6 to March 7, 2023, and s/he was given daily work release privileges during the jail sentence. According to the VA’s Individual Abuse Prevention Plan (IAPP), the VA had a history of suicide attempts and self-injurious behavior. The VA also had difficulty weighing advice and staff persons monitored the VA for “impaired judgement” with decision making and assisted with “supportive decision making.” The VA had unlimited unsupervised time in the community. P1 provided the following information: · Near the end of March 2023, the VA became “withdrawn” and “isolated.” On March 27, 2023, P1 spoke to the VA in his/her bedroom at the facility and found a blade underneath his/her pillow. Due to the concerns about the VA’s mental state and the blade found underneath the pillow, another staff person then took the VA to a hospital for a voluntary psychiatric evaluation. · The VA was “angry and upset” while at the hospital and P1 never saw the VA that upset before. While at the hospital the VA told P1 on the telephone multiple times, “I’ll tell you what’s really going on when you get here.” P1 stated s/he and another staff person went to the hospital multiple times and the VA did not say anything while there. · On one occasion, while at the hospital visiting the VA, P1 had a “weird conversation” with an unknown hospital staff person. The hospital staff person told P1 something to the effect that s/he saw an interaction someone had with the VA as a “mandated reporter” but did not elaborate what the interaction was. (Note: Attempts to contact the hospital staff person were unsuccessful.) · P1 stated s/he heard from another staff person that the SP went to the hospital to visit the VA, outside of work hours. During this time the VA changed his/her release of information specifics, restricting the information that the hospital was able to share with P1, therefore P1 was unable to verify the VA’s visitor list with the hospital. · On March 31, 2023, the VA was discharged from the hospital, and another staff person drove him/her to the facility. When the VA arrived at the facility, s/he told P1 that s/he wanted to tell him/her something. The VA began “sobbing” told P1 the following information: o On multiple occasions, the VA spent the weekend at the SP’s house with the SP and P2. The VA told P1 initially s/he went to the SP’s house to paint and when the VA asked the SP about spending the night in the SP’s spare bedroom the SP allegedly told the VA, “I guess we’re all gonna have sex tonight.” The SP said this in front of P2, and they all “awkwardly laughed.” The VA denied having sexual intercourse with the SP. o The VA told P1 on subsequent weekends when s/he was at the SP’s house their “relationship” began. During one of the weekends, while the VA and the SP drank alcohol, the SP asked the VA to have “casual sex.” The VA told the SP, “No,” because s/he was “not like that” and wanted a relationship instead. The VA said s/he hugged, kissed, and held hands with the SP, but denied having sexual intercourse with the SP. o On March 21 and March 22, 2023, the facility rented a cabin for a camping trip for multiple clients. The VA had his/her own bedroom at the cabin. The VA told P1 that while on the camping trip the SP “snuck” into his/her bedroom and they “made out.” Later in the camping trip the SP told the VA that s/he was in a relationship with someone else. o In late March of 2023, the VA’s relationship with the SP changed and the SP “ghosted” the VA and lied about his/her whereabouts. When the SP visited him/her at the hospital s/he told the VA to delete the text messages so the VA deleted some of them. · After P1 spoke to the VA, s/he immediately removed the SP from the schedule and asked the SP to send screenshots of the text messages between him/her and the VA. The SP sent text messages, but P1 believes the SP “edited” the text messages by deleting specific ones prior to sending the screenshots. · The VA was able to provide accurate information and did not have a history of providing inaccurate information about staff persons. The SP provided the facility with copies of text messages s/he said s/he had with the VA. The text messages were sent from March 23 to 27, 2023. The text messages included the VA texting a kiss face emoji to the SP. The SP did not respond to that text. Later on, the VA texted the SP that s/he could go in the VA’s bedroom and “check on” the VA. The SP did not respond to that text either. Subsequent text messages were about how upset the VA was and other general information. The SP did not respond to the text messages regarding the VA’s emotions. According to the VA’s medical records, on March 30, 2023, at 2 p.m. an unnamed staff person visited the VA in the hospital. The VA was “guarded” when visiting with the unnamed staff person and did not want any information released to the facility. The VA provided the following information to the LEO: · On February 4, 2022, the VA was upset that s/he was unable to spend the weekend at a friend’s house so the SP then asked the VA to spend the weekend at his/her house. The SP gave the VA a ride from the facility to his/her house which was located in a different city. On the way to the SP’s house, the VA and the SP stopped at department store and liquor store, where the SP purchased alcohol. Later on, after arriving at the SP’s house, P2 arrived to the SP’s house. · While at the SP’s house, the SP made a comment to P2 in front of the VA that the VA and the SP were “going to lay in bed all night, watch movies, and have sex.” The VA said the SP was “kidding” and when the VA stayed at the SP’s house, the VA slept in the spare bedroom. · On February 5, 2022, the VA and the SP ate dinner at a restaurant, watched a movie, and then the VA, the SP, and P2 spent the night at the SP’s house. On February 6, 2022, P2 left the SP’s house in the morning. The VA and the SP watched movies for the remainder of the day/night. On February 7, 2023, the SP drove the VA back to the facility in the morning. The VA stated the SP told other staff persons that s/he picked up the VA in another city. The SP told the VA if s/he told anyone about spending the weekend at his/her house, the SP could get in trouble. · From April 1 to 4, 2022, the VA spent the weekend at the SP’s house and painted the SP’s spare bedroom. · From December 2 to 4, 2022, the VA spent the weekend at the SP’s house. The VA’s family member gave the VA a ride to the SP’s house. On the way to the SP’s house the VA purchased food from a grocery store using a list the VA and the SP made together. The VA and the SP cooked food and watched movies. The VA’s family member picked him/her up from a gas station at the end of the weekend and drove the VA back to the facility. · From January 13 to 15, 2023, the VA spent the weekend at the SP’s house and watched movies together. The SP and the VA discussed sexual intercourse but did not have sexual intercourse. · Later on, the VA texted the SP and asked if s/he wanted to have a relationship, but the SP never responded. An unknown time after the VA sent the SP another text message about wanting a relationship, the SP told the VA, “The answer to your question is yes.” · On multiple occasions, P1 picked the VA up from jail in the morning and the SP returned the VA to the jail in the evening. On the way back to jail every evening, the SP and the VA stopped the vehicle and kissed for 15 to 20 minutes. The VA and the SP also held hands and said they loved each other. · On March 7, 2023, the VA and the SP planned on the VA going to the SP’s house on March 10, 2023. On March 9, 2023, the SP cancelled the plans and the VA “knew something wasn’t right.” · From March 20 to March 22, 2023, the facility went on a camping trip with multiple staff persons and clients. While on the camping trip the SP and the VA held hands and kissed while alone. The VA tried to make plans to visit the SP at his/her house, but the SP refused so the VA assumed the SP was in a relationship with another person. The SP told the VA s/he wanted to be “friends with benefits” however the VA did not want this. The SP and the VA agreed to “take a break.” · The SP told the VA that s/he was concerned about him/her telling other staff persons about their relationship because the SP and P2 would be “fired.” The SP threatened the VA that s/he might be put on “commitment or state hospital” if staff persons found out about their relationship. The VA told the LEO that the SP’s statements made him/her feel “really bad.” · On March 26, 2023, the VA cried all day. The VA “broke down” due to the interactions with the SP and the next day (March 27, 2023), and P2 took the VA to the hospital. The VA stated s/he did not tell P2 about his/her interactions with the SP due to “fear of being sent away.” · On March 27, 2023, the VA called and told the SP that other staff persons were going to visit him/her in the hospital room and the SP told the VA that s/he would visit after they left. Later that same day, at approximately 3 p.m., the SP visited the VA in the hospital. The VA and the SP discussed their relationship, and the SP told the VA that s/he wanted to spend the rest of his/her life with the VA. The VA and the SP touched each other’s buttocks and while standing, began kissing next to the VA’s bed and “rubbing against each other.” The VA and the SP touched one another’s clothed and unclosed genitals and breast/chest. (Note: The LEO report stated the VA’s demeanor changed when s/he talked about this specific interaction with the SP. The VA became very tense, was rocking side to side, with his/her arms clench to his/her chest, and his/her hands were clenched tightly.) The VA and the SP then sat down and talked about having a relationship and kissed once more prior to the SP leaving the hospital. · On March 28, 2023, the VA called the SP, and the SP asked the VA to “cover for [the SP]” if another staff person asked the VA if the s/he visited him/her in the hospital. After having this conversation with the SP, the VA told him/her that s/he was going to tell P1 about their interactions. The facility provided two letters written by the VA describing his/her interactions with the SP that was consistent with the information the VA provided to the LEO. P2 provided the following information: · On an unknown weekend, the P2, the SP, and the VA spent the weekend at the SP’s house to help paint the SP’s spare bedroom. The VA spent the night in the SP’s spare bedroom while the SP and P2 slept in separate areas. P2 stated that it was uncommon for clients to spend time at the house of a staff person. · P2 did not think the VA was going to spend the night, and once s/he realized the VA was spending the night s/he “regretted the whole situation.” P2 did not report the situation to supervisory staff persons because s/he was “scared” and did not want to get the SP in trouble. · P2 stated the VA spent the weekend at the SP’s house on another occasion and slept in the spare bedroom again. During the weekend the SP, P2, and the VA watched movies and ate dinner at a restaurant. · P2 stated the VA spent the weekend with the SP on a third unknown date. The SP wanted P2 to come over as well but P2 declined because s/he felt “weird.” During the weekend, the VA sent P2 a picture via text message of him/her consuming alcoholic beverages. P2 deleted the text messages. · On a later date, the SP contacted P2 and told him/her to tell this investigator that on the second weekend the VA was at the SP’s house, that P2, the SP, and the VA had food delivered, when they had actually eaten at a restaurant. P2 did not know why the SP would ask him/her to lie and it made P2 “think.” The SP also told P2 that s/he did not have sexual contact with the VA. The SP did not tell P2 that s/he went to the hospital to visit the VA. The SP provided the following information: · On an unknown weekend the VA came to the SP’s house to paint his/her spare bedroom. The VA overheard the SP and P2 talking about painting and offered to help, and the SP agreed since the VA was always at the facility. The SP knew s/he could get in trouble for having the VA at his/her house because it was against the boundaries policy. The SP told the VA that s/he could get in trouble and the VA stated s/he would not tell anyone. · The next Saturday, at approximately 3:30 p.m., the VA’s family member dropped him/her off at the SP’s house. The SP thought the VA’s family member would pick him/her up the same day, but at approximately 5 p.m., the VA told the SP s/he was not getting picked up. The SP, P2, and the VA went to a restaurant to eat dinner and each person paid for their own food. The VA then spent the night in the spare bedroom, P2 slept on a couch in the living room, and the SP slept in his/her bedroom. The following morning the SP, P2, and the VA continued to paint the spare bedroom. At approximately 2 p.m., the VA’s family member picked him/her up from a gas station across the street from the SP’s house and drove the VA back to the facility. · Approximately one month later, the VA again came to the SP’s house for the weekend and the SP and the VA continued to paint the SP’s house. The VA’s family member picked him/her up at the end of the weekend. The SP did not provide any further details on his/her weekend with the VA. · The SP and the VA texted each other which was common for the SP to do with clients. In March of 2023, the VA sent a text message to the SP saying that s/he had a “crush” on the SP. The SP “blew it off” and did not remember what s/he responded to the VA. The SP stated s/he did not inform a supervisory staff person of the VA’s text message, because s/he “didn’t think nothing of it [sic].” · The VA sent subsequent text messages that called the SP names and made sexually derogative remarks. The SP sent copies of the text messages to a unknown supervisory staff person, but they got deleted off his/her phone, so s/he no longer had them. The SP did not recall any other text messages with the VA. · When the VA was in the hospital, s/he called the SP and asked him/her to visit. When the SP went and visited the VA at the hospital, the SP gave the VA a hug because the VA was crying. During that time, a nurse came into the hospital room. The SP then left the hospital. · The SP denied having sexual contact with the VA including kissing the VA and stated that s/he only gave the VA a hug which was normal with all the clients. · On an unknown date while the SP dropped the VA off at jail, the VA attempted to lean over in the vehicle and kiss the SP on the cheek. The SP “pulled away” and did not report the VA attempting to kiss him/her because s/he was afraid the VA would tell other facility staff persons about spending the weekend at the SP’s house. According to the facility’s Professional Boundaries policy, a staff person and client should not have sexual contact and staff persons should not be around clients when not working. All staff persons interviewed, including the SP, were trained on the VA’s plans, the Professional Boundaries policy, and the Reporting of Maltreatment of Vulnerable Adults Act prior to this investigation. During the investigation, there were concerns that the VA worked for the facility but was not being paid appropriately. The facility provided documentation that the VA was given work release from jail to volunteer at the facility as a part of his/her community service obligations and mental health programming. Therefore, no licensing violation was determined, and no further action taken. There were also concerns that the VA purchased food for the SP while at the SP’s house. However, the VA oversaw his/her own finances and therefore could spend his/her money as s/he chose. Therefore, no licensing violation was determined, and no further action taken. Conclusion: A. Maltreatment: Regarding Sexual Abuse The VA provided consistent information to the LEO, P1, and in letters that the SP and the VA had sexual contact. Although the SP denied the allegation, given that the SP had reason to minimize the allegation out of fear of repercussions; that the VA provided consistent information and was known to accurately report information; that according to the LEO, the VA’s body language visibly changed while describing the incident to the LEO; and that the VA and P2 each stated that the SP told each to provide inaccurate information to this investigator, it was more likely that the VA’s version of the incident was more credible. Therefore, there was a preponderance of the evidence that the SP, who was a staff person, had sexual contact with the VA. It was determined that 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 Information from the VA, the SP, and P2 was consistent that on multiple weekends the VA spent the night at the SP’s house. The SP knew that having the VA at his/her house was against policy and that s/he could get in trouble. The VA spending multiple weekends at the SP’s house was not typical conduct of a staff person and the SP did not report the VA’s “crush” or attempted kiss to a supervisor, both of which were a violation of the Professional Boundaries training and inconsistent with the standards of a professional caregiver in a facility licensed by the Department of Human Services. The SP’s continued interactions with the VA at his/her home, while at the hospital for mental health concerns, and discussions about a relationship with the SP would likely hinder the VA’s ability to have a consistent understanding of a therapeutic relationship. Therefore, there was a preponderance of the evidence that there was a failure to supply 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 VA’s plans, the facility’s Professional Boundaries policy, and on the Reporting of Maltreatment of Vulnerable Adult Act. 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 sexual abuse and neglect for which the SP was responsible was recurring and serious maltreatment because the SP was responsible for sexual abuse and neglect of the VA. Action Taken by Facility: The facility conducted an internal review and determined the policies and procedures were adequate but not followed by the SP. The facility retrained all staff persons on the Professional Boundaries policy and the Vulnerable Adults Abuse Act. The SP no longer worked at the facility. Action Taken by Department of Human Services, Office of Inspector General: The SP was notified that s/he was responsible for serious maltreatment and that any future background studies for facilities, 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, will result in his/her disqualification. The determination that the SP was responsible for maltreatment is subject to appeal.
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