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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: 1069231-H_CRS (Home and Community-Based Services-Community Residential Setting) Investigator(s): Christine Henne 651-431-3444 Suspected Maltreatment Reported: It was reported that during an argument, a staff person (SP) called a vulnerable adult (VA) “retard” (referred to as r-word throughout the remainder of the report) and made other derogatory comments. Date of Incident(s): May 9, 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): 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. Summary of Findings: Pertinent information was obtained during a site visit conducted on June 8, 2023; from documentation at the facility; and through seven interviews conducted with two supervisory staff persons (P1 and P2), a facility administrative person (P3), the VA’s mental health case manager (CM), the VA’s guardian (G), the VA, and the SP. The VA’s file stated s/he liked to watch documentaries, action movies, and anime cartoons. The VA also had a “real passion” for growing mostly garden vegetables and squash. The VA’s diagnoses included autism, bi-polar disorder, and hyperthyroidism. The VA had four hours of unsupervised time at home and/or in the community. The facility was a single level home with a finished basement. The main level included a living room, dining room, kitchen, four bedrooms, two bathrooms, and an enclosed porch room. The basement included a living room, laundry room, bathroom, one bedroom, a “sensory” room, utility room, and a storage room. The CM said that on May 10, 2023, s/he visited the VA at the facility. The VA told the CM that the night before, around 5 or 6 p.m., the SP called him/her the r-word and made other derogatory comments (but did not elaborate on them). P1 was also present during the incident and “stepped in.” The VA said s/he just wanted to sleep and “avoid” the SP at “all costs.” Either on May 10 or May 11, 2023, the CM told P2 about what the VA told him/her. The VA was “pretty capable” of communicating and reporting accurate information. The VA provided the following information: · The VA said last month during an argument the SP “pushed” him/her to his/her “breaking point”. The SP and the VA “really went at each other” and if P1 was not there, it could have “gotten physical.” P1 was the “only witness” to the argument and had to “separate” the VA and the SP. · The argument occurred around 5 or 6 p.m. and started over the VA vacuuming the enclosed porch room. The SP told the VA to use the facility’s vacuum and not the VA’s personal vacuum. From there, it went into a “full fledge argument.” The SP started to “belittle” the VA by throwing leaves on the floor in the porch room. The VA told the SP s/he was acting “childish.” The SP said, “Don’t talk to me like that.” The argument got to a “boiling point” and P1 came inside because s/he heard yelling. The SP called the VA “stupid” about three times. The VA called the SP the “r-word” because s/he was “being childish and stupid” and then the SP “insult[ed]” the VA’s disabilities and also called the VA the “r-word.” Prior to when the whole situation started to “cool down,” the VA “broke down and cried.” About 10 minutes after the argument ended, the SP “acted” like “nothing happened at all.” The VA was “extremely pissed off beyond recognition” due to the incident. · When P1 intervened during the argument, P1 told the SP it was “okay” for the VA to use his/her own vacuum, but the SP “wouldn’t have it.” The VA thought that the SP cared about which vacuum the VA used because it was “about control.” · There was no physical contact between the VA and the SP. P1 “got to us” before that happened. The SP said “a bunch of other stuff” but “stupid” and the “r-word” were the two “prominent” words the VA remembered the SP using during the incident. · Prior to the aforementioned incident, the SP had not used any derogatory words or “slurs” towards the VA. However, the above incident was not the “first time” the SP got “mad” over “something like that.” A couple months prior to the above incident, at least twice, the SP spilled the VA’s food that was in the fridge. The VA questioned whether it was on purpose or by accident. The second time the food spilled, the SP “made” the VA clean it up. The VA went to use his/her personal broom and the SP told the VA not to use that broom and use a different broom. The SP was “toxic as heck” and one time the VA had a small amount barbeque sauce left on his/her plate and the SP got “pissed off” and said that it was “wasteful.” P1 provided the following information: · Sometime in May 2023, during the evening, the VA and the SP got into a “very pointless” argument about which vacuum the VA should have used to vacuum the porch room. P1 was off the clock getting ready to leave the facility but had some “time to kill” so was in the driveway washing his/her car. There was a storm coming, so P1 told the VA to bring his/her plants inside the porch room. The VA asked if it was okay if s/he vacuumed the porch area and P1 said, “Go for it.” P1 continued to wash his/her car for five or ten minutes and then thought s/he heard some yelling but was not sure because s/he was using a pressure washer. When P1 stopped the pressure washer, it was quiet. That happened a few times and eventually the VA came outside through the kitchen door and said the SP was “crazy” and “out of [his/her] mind.” The SP followed the VA outside and said the VA should not be “using that vacuum.” The VA said the SP was “getting at” him/her for using his/her own vacuum. P1 said to the VA and the SP s/he did not understand what the “big deal” was regarding the vacuum. P1 told the VA s/he could use whatever vacuum s/he wanted. The VA and the SP then went back into the house. P1 stayed outside, but then heard the SP and the VA “going off again,” so P1 went inside the house to the kitchen area where s/he saw the VA and the SP “in each other’s faces” and would not let the other person have “the last word.” P1 told them both to “get away” from each other so the VA went downstairs to his/her room. · The SP followed the VA as the VA called the SP “crazy.” P1 then also went downstairs to monitor the situation. The SP started to walk back upstairs and told the VA not to call him/her crazy. P1 and the VA then walked upstairs and they were in the kitchen area with the SP when the VA and the SP started “going off again.” Apparently, the SP was worried about cat hair from the VA’s vacuum spreading around the house because some people had allergies. (Note: The VA had a cat.) P1 tried to offer solutions to the VA about the vacuum and suggested changing the vacuum bag. The SP and the VA would not let it “end.” P1 tried to calm them both but they kept talking over each other. The VA started to walk to the porch room and the SP said the VA “must be [r-word]” to think that the cat hair would not get anywhere if the VA used his/her vacuum. The VA called the SP a “moron” and “idiot” and then “yell[ed]” at the SP “you’re [r-word]” multiple times. The argument lasted from about 4:45 until 5:15 p.m. when P1 left, but could have started prior to 4:45 p.m. · Both the VA and the SP used the word “stupid” in different contexts, but the SP did not say the VA was stupid, but more so said it was “stupid” to think that cat hair would not spread using the VA’s vacuum. · There was no physical contact between the SP and the VA. However, P1 thought at one point it could have escalated to that because the VA was “tower[ing] over” the SP with “hands fisted up” and arms were “shaking.” · P1 was off the clock and “had to go” so s/he told them to “end it now.” P2 called P1 around 7 p.m. to ask P1 about the incident. P1 did not know how P2 knew about the incident but thought maybe the VA had called P2. P1 told P2 that s/he was about to call P2 about the situation and told P2 what happened. · P1 worked with the SP “quite often” and had not heard the SP use derogatory language prior to the above incident. However, the SP and the VA would “get into it” and have “small arguments.” The SP was not a very “welcoming” person and questioned things or made them a big deal if s/he did not agree with something. · P1 said the VA “to an extent” was able to accurately report information but was known to “over exaggerate quite a bit” and “overreact.” P2 said s/he was first notified about the incident on May 11, 2023, by the CM. The CM told P2 that the VA contacted him/her about the incident. P2 then talked to the VA and P1 and then notified the G about the situation. The VA provided information to P2 that was consistent with the information s/he provided in his/her interview and said the SP told him/her to “sit down” and “shut up,” but did not specify when that occurred. P1 also provided information to P2 that was consistent with the information s/he provided in his/her interview, with the exception of which day P1 talked to P2. The information P1 told P2 was also consistent with the information the VA provided P2. According to documentation written by P2, P1 told P2 that on more than one occasion had a “talk” with the SP about his/her “attitude.” P2 said the VA was able to accurately remember information but “may embellish” some facts and details. However, when the VA was in a situation and things were “hot” s/he would be “quite accurate.” P3 said s/he talked to the SP and the SP acknowledged calling the VA the “r-word” as well as saying the VA was “being stupid” for the way s/he was “acting.” The G said that on May 12, 2023, P3 told him/her about the incident. On May 13, 2023, the G talked to the VA and the VA provided information to the G that was similar to the information the VA provided this investigator. The VA told the G that the SP called him/her a “fucking [r-word]” and told the VA s/he was “stupid.” The VA said s/he was really upset and went to his/her room and did not want to be around anyone. The VA could “verbalize everything” and was able to provide factual information. The SP provided the following information: · On May 9, 2023, around 4:30 or 5:00 p.m. the VA wanted to vacuum the porch room. The SP “brushed” some leaves that were on a table onto the floor to be vacuumed and the VA told the SP s/he was “acting like a child” for doing that. The SP let the VA go on with his/her cleaning and went to talk to P1 who was cleaning his/her car. The SP and P1 were by the front door and the SP told P1 that s/he was just trying to help the VA and the VA told the SP that s/he was acting like a child. At some point, the VA joined the conversation between P1 and the SP. P1 told the VA that the SP was just trying to help, and it was not a “big deal.” · The VA then started to walk to the porch room and while the VA was walking away, the VA said the SP acted “[r-word]” for putting the leaves on the floor. The SP followed the VA inside and said, “No, I am not [r-word]. You are the one that is [r-word].” The VA told the SP not to use that word and the SP told the VA that normally s/he would not use that word but did so because the VA had called him/her that word first. The SP said the “r-word” back to the VA because s/he was “pained” that the VA called the SP that word when it was not “warranted.” The SP acknowledged to this investigator that it was not okay to say the “r-word” to the VA. The SP thought s/he also said that the “actions” that the VA displayed were “stupid.” The VA said the SP called him/her “crazy,” but the SP denied calling the VA “crazy.” · At some point during the incident, the SP suggested that the VA use the house vacuum instead of his/her personal vacuum because the house vacuum had a reusable bag and the VA’s vacuum was disposable. The VA also had a cat and used his/her personal vacuum for the cat. The SP was “very big” on not mixing “stuff” and liked to use different mops and brooms for different rooms. During the incident, P1 was going in and out of the house and heard some of the conversation. The facility’s Internal Review also stated that the SP violated HCBS Attestation Policy Section 12 which states staff are to ensure persons are treated with dignity and respect. The SP, P1, and P2 were trained on the Reporting of Maltreatment of Vulnerable Adults Act and the VA’s plans. The SP was also trained on the VA’s service rights and staff responsibilities related to ensuring the exercise and protection of those rights, de-escalation techniques, and employee conduct and discipline policies. Relevant Rule and/or Statute Minnesota Statutes 245D.04, subdivision 3, paragraph (a), clause (6) and (8), state that the servant recipient has the right to be treated with courtesy and respect and be free from bias and harassment regarding race, gender, age, disability, spirituality, and sexual orientation. Conclusion: A. Maltreatment: Information from the CM, the G, the VA, P1-P3, and the SP was consistent that on May 9, 2023, the SP and the VA got into a verbal altercation when the VA used his/her own vacuum to clean the porch room and that the SP called the VA the r-word and stupid during an argument. P1, who was present during a portion of the incident, said both the VA and the SP used the word “stupid” in different contexts, and the SP did not say the VA was stupid, but more so said it was “stupid” to think that cat hair would not spread using the VA’s vacuum. The SP said s/he said the VA’s actions were “stupid.” Regardless of the context in which the SP used the word stupid or whether the VA used the language first, the SP called the VA the r-word which was inconsistent with the standards of a professional caregiver in a facility licensed by the Department of Human services and a violation of Minnesota Statutes 245D.04, subdivision 3, paragraph (8), clause (6) and (8). In addition, the use of the r-word and stupid as an insult is derogatory when used toward any person, but given that the VA’s diagnoses and that s/he lived in a residential setting, it was particularly derogatory to the VA. Therefore, although the SP’s use of the r-word and stupid was a single occurrence, it was considered malicious and would be considered disparaging, derogatory, humiliating harassing or threatening and could reasonably be expected to produce emotional distress. It was determined that emotional abuse occurred (conduct which is not an accident or therapeutic conduct which produces or could reasonably be expected to produce physical pain or injury or emotional distress including, but not limited to: 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). 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 the VA’s plans. The SP was also trained on the VA’s service rights and staff responsibilities related to ensuring the exercise and protection of those rights, de-escalation techniques, and employee conduct and discipline policies. 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 emotional abuse for which the SP was responsible did not meet statutory criteria to be determined as recurring or serious because it was a single incident that did not meet the definition of serious. Action Taken by Facility: The facility completed an Internal Review and found its policies and procedures were adequate but not followed. P1 was re-trained on HCBS Attestation Policy Section 12, the maltreatment of vulnerable adults reporting policy and procedure, and the employee conduct and discipline policy. 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 “reoccurring” 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 corrective action.
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