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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: 1099884-H_CRS (Home and Community-Based Services-Community Residential Setting) Investigator(s): Thomas Nixon 651-431-2155 Suspected Maltreatment Reported: It was reported that a staff person (SP) engaged in a verbal and physical altercation with a vulnerable adult (VA) that included hitting the VA in the face with a stove top cover and swearing at the VA. Date of Incident(s): March 28, 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 11, 2023; from documentation at the facility; and through seven interviews conducted with the VA, the VA’s guardian (G), the VA’s case manager (CM), three supervisory staff persons (P1, P2, and the SP), and a staff person (P3). The VA’s diagnoses included autism spectrum disorder. The VA enjoyed playing video games on his/her phone, socializing with friends, listening to music, and fishing and hunting. The VA provided the following information: · While the VA did not recall the exact date, around 3 or 4 p.m., s/he and P3 were in the living room of the facility while the VA played games on his/her phone. The VA was not aware the SP entered the home. The VA swore at his/her video game and used the “F word” and the “N word” by “accident.” (The VA said that s/he used the actual words and not the one letter abbreviations.) (Note: The SP worked for the license holder at a different facility and met the VA before, but did not work at the VA’s home. The SP came to the facility that day to pick up the facility vehicle.) · The SP came into the living room and began “yelling at me,” “swearing at me,” and “trying to get in my face.” The VA said the SP was about nine inches away from him/her. The SP asked the VA, “What did you say?” and used the words “mother fucker, bitch ass” towards the VA. The VA told the SP to “get away” and the SP laughed at the VA. The VA apologized to the SP and explained s/he said those words to his/her phone and not the SP, but the SP “kept going.” · Because the SP needed to use the facility vehicle and P3 was parked in the driveway, P3 left the house to move his/her car so the SP could take the vehicle. The SP went into the kitchen and the VA also went into the kitchen to get water. As the VA entered the kitchen, the SP took a “stove top” a cast iron two burner gas stove grate cover) and so the VA grabbed a steak knife from a butcher’s block. The VA said there was about a five-to-six-foot distance between the two of them. · The SP told the VA, “I am going to hurt you.” The SP and VA were “arguing” and the VA felt the need to defend him/herself. The SP and VA both closed the distance between them. The VA said the SP hit him/her first with the stove grate cover three times. The VA “got” the SP with the knife one time in the left stomach area. The SP said, “(Boy/Girl), I’m going to keep hitting you until you put the knife down.” The SP then hit the VA once more with the stove grate cover and the VA dropped the knife. The VA said the SP hit him/her a total of four times with the stove grate cover on the side of his/her face and side of the body. After the VA dropped the knife, the SP punched the VA. P3 then returned inside and came into the kitchen. P3 removed the knife and tried to calm the VA. The VA grabbed the stove grate cover from the SP and kicked the SP “back to the wall.” · The SP then left the facility and the VA took the same knife from the counter and went outside after the SP. While outside, the VA fell. The SP got into the facility vehicle and the VA threw the knife at the vehicle. The knife missed and went under the vehicle and the SP “laughed” at the VA as s/he drove away. P3 came outside to calm the VA and they went on a walk. P3 provided the following information: · P3 was on the couch with the VA whose lunch was on the table. The SP came into the facility to get the keys to the facility vehicle and asked P3 why the VA was not eating. The SP said it looked like “there’s flies around that” and the VA told the SP to “shut up.” P3 asked the VA if s/he knew the SP and the VA said, “Yeah, I do know [the SP]. [S/He] is an a-hole.” · The SP then came into the living room and the VA called him/her “mother fucker.” The SP said something along the lines of, “Hey, come over here and get in my face” and that the SP was “going to teach you to not call me that” to the VA. The SP and the VA swore at each other so P3 got between them and attempted to calm the situation. The SP said, “I’m a (supervisory staff person), I know what I am doing.” The VA said s/he was texting people on his/her phone to “get somebody on you” to hurt the SP and to “get people to come to the house”. The SP told the VA, “Call anyone you want.” The SP then sat on a chair and exchanged curse words with the VA. P3 sat between him/her and the VA as a precaution. · P3 tried changing the subject by talking with the SP about a plan for P3 to train to work at the SP’s program. During this time, the VA continued to swear at the SP P3 did not hear the VA use the N word during the interactions. The SP then asked P3 to move his/her car from the driveway so the SP could take the facility vehicle. P3 thought things were calm between the VA and SP so s/he went outside to move his/her car. · After about 30 seconds, P3 came back inside and went into the kitchen where s/he saw the VA with a steak knife raised over his/her head and the SP holding the stove grate cover hit the VA with the cover. The SP backed creating about three feet of space between him/her and the VA. P3 did not see the VA make contact with the SP with the knife. P3 went behind the VA, put him/her into a hold, and took the knife away. P3 told the SP to leave and the SP “threw” the stove grate cover on the floor. At that time, P3 saw the VA “bleeding on [his/her] side.” · The VA then grabbed a second knife and went outside followed by P3. The VA went over to the vehicle that the SP had driven to the facility. P3 followed the VA and saw the SP “sitting there [in the facility vehicle] just laughing at [the VA], smiling at [him/her].” The SP then drove away. P3 again held the VA to prevent him/her desire to “destroy” the SP’s vehicle. P3 calmed the VA, they went for a walk, and the VA spent the rest of the day playing video games. P3 called P2 to tell him/her what occurred. After the incident, P3 saw that the VA “had a bruise on [his/her] eye,” that the VA was “bleeding-ish,” and the VA’s “eye was red for like a week” after the incident. P3 said s/he did not see the SP punch the VA during the altercation. P2 provided the following information: · The VA had history of greeting others with curse words and required redirection by staff persons. On previous occasions, P2 brought the VA to the program were the SP worked, saw their interactions, and did not see any concerns. · On the day of the incident, P2 was eating lunch away from the facility and was not present at the time of the incident. P2 received a phone call from P3 who said that the SP and the VA were “fighting, shouting, and [the SP] maybe beat [the VA],” and the SP “hit [the VA].” P2 went to the facility and talked with the VA about what occurred. The VA said the SP “hit” him/her and P2 saw “a mark” on the side of the VA’s face. P2 did not see the mark on the VA the following day. · P2 said the SP “knows the situation with [the VA], [the SP] needs to walk away.” P2 said staff persons were trained to walk away from escalated clients and call 9-1-1. P1 provided the following information: · When the SP needed a vehicle, P1 directed the SP to use the vehicle at the facility when needed. The SP had gone to the facility several times before the incident to get the vehicle. · On the day of the incident, P1 received a phone call from the SP that the VA “attacked [him/her] with a knife.” The SP said s/he was at the facility and the VA greeted the SP by saying, “Hey fucking bullshit guy.” The SP “got mad” and told the VA, “Never ever in your life tell me, say something like that to me anymore.” The SP then asked P3 to move his/her car to allow the SP to be able to take the program vehicle from the garage. The SP said that the VA “all [of a] sudden” “attacked” the SP with a knife and cut the SP. When the VA cut the SP, the SP used a stove grate cover to defend himself/herself. The cut from the VA caused the SP to bleed. · P1 went to the facility to speak with the VA. The VA told P1 that the SP punched him/her so the VA used the knife in defense. The SP picked up the stove grate cover and hit the VA in the face. P1 saw a scratch on the right side of the VA’s face and the VA confirmed it was from the SP. · When P1 spoke with P3 who provided information to P1 that was consistent with the information P3 provided during his/her interview. The SP provided the following information: · The SP had been to the facility a “couple [of] times” prior and on the day of the incident, went to the facility to get the vehicle as directed by P1. The SP was not trained to work with the VA, but interacted with him/her several times in the past when the VA came to visit at the SP’s program. The SP had no prior issues with the VA. · When the SP went to the facility to get the vehicle, it was in the garage and blocked in by P3’s vehicle that as in the driveway. The SP went into the facility and walked upstairs to the main level where the VA and P3 were sitting in the living room. The SP sat down at the dining room table. The SP commented to the VA and the P3 about a plate of food that was unattended on the dining room table that was not covered. The SP said that VA needed to sit by the food because, “We don’t just leave the food open like that,” and that the food had attracted flies. The SP believed the VA knew the sound of his/her voice due to past interactions. The VA said, “Hey, that is my food motherfucker. That is my food asshole, [N-Word].” The SP told the VA s/he needed to go eat the food, to not leave food open like that, and that was “not how you say hi to someone.” The VA said, “I have friends, I can go and get gun. I can call them to bring the gun.” The SP responded, “They won’t come here.” · The SP and VA continued to go back and forth. The SP acknowledged that s/he understood that the back and fourth “might escalate to something else” with the VA. P3 told the SP, “Don’t worry about [the VA]”. P3 asked the SP who s/he was and the SP explained was there to get the vehicle. P3 and the SP then talked about the plan to have P3 train at the SP’s program in the future. During this time, the VA was “still ranting” and the SP ignored the VA. The SP then asked P3 to move his/her car so the SP could get the vehicle out of the driveway. P3 left to move his/her car. The SP then got up from the dining room table to go downstairs to the garage to start the vehicle. The SP re-entered the house to use the bathroom on the lower level but because there were no towels in the bathroom, the SP went upstairs again to the kitchen to find something to dry of his/her hands. · As the SP looked for paper towels, the VA came and stood in dining room. The SP saw that the VA had a knife in his/her hand and “rush[ed]” towards the SP. The SP told the VA, “Stop.” The SP then looked for something to use to “block” the VA and defend himself/herself and saw and grabbed the stove grate cover. The VA lunged at the SP with the knife, cut the SP’s left hand index finger, and “slashed” at the SP’s chest that resulted in a cut line on the clothing the SP wore. The SP then used the stove grate cover to block the knife swipe attempts by the VA. · The SP said s/he was unable to leave or back out of the kitchen down the stairs or towards the front door from the VA because s/he was concerned that VA would continue to advance forward with the knife leaving the SP vulnerable to being harmed. · P3 then came inside and entered the dining room from behind the VA and restrained him/her. The SP went downstairs and into the garage, dropped the stove grate cover, and got into the vehicle. The SP rolled down the windows to fold in the vehicle mirrors and drove the vehicle out of the garage. The SP then saw the VA come out the front door followed by P3. · The SP said that the facility trained him/her that if a vulnerable adult had a weapon the staff persons were to leave the area. The SP said this was not an option as the VA “keep coming” towards him/her. · The SP denied s/he said to the VA, “I am going to teach you not to all me that” and got close to the VA’s face. The SP denied hitting the VA with the grate but said it was possible that the VA’s hand hit the stove grate cover when the VA attempted to use the knife on the SP. The SP denied punching the VA and denied saying, “I’m going to keep hitting you until you put that knife down,” "never disrespect me or I'll whoop you,” or anything inappropriate to the VA. The SP denied making contact with the stove grate cover with the VA’s face. The SP denied smiling or laughing at the VA as s/he drove away. On March 29, 2023, P1 wrote a program Incident Report stated that the VA had “small scratch on the right side of [his/her] face” after the incident. The G provided the following information: · The G was told about the incident via email from P1. The G tried to call the VA for “A couple days” and could not get hold of him/her. The VA then called the G and The VA provided information to the G that was consistent with information the VA provided during his/her interview. · The G said the email from P1 stated the VA had a “tiny scratch on the right side of [his/her] face” that was treated with bacitracin. · The G said the VA was “pretty truthful for the most part” and “even when [the VA] knows [s/he] is in trouble, [s/he] still tells the truth.” The G said that the VA “may kind of not be upfront about it, [s/he] is pretty good at telling on [himself/herself] if when [s/he] does wrong.” · The G said the program was “great so far” given the “high level of needs” the VA had. The CM provided the following information: · The VA lived at the facility about two months and had gone through similar situations in the past with other staff persons and provided “inconsistency” regarding the situation. The CM said the VA “probably withholds somethings” out of “fear of getting in trouble.” · The CM was aware of the situation between the VA and the SP from the program. The CM said the services provided by the company were “really great” for the VA. The Conflict Resolution Training stated staff persons were trained on the “warning signs of escalating aggression,” “de-escalation techniques to defuse potentially aggressive behavior,” “protective measures if the situation continues to escalate,” and to “react quickly to avoid injury if the person strikes out at you.” The protective measures included to “keep an open path for exiting – don’t let the agitated person stand between you and an exit, remove yourself from the situation if possible, call a co-worker or 9-1-1 for help.” The react quickly to avoid injury if the person strikes out at you included “take a step to the rear to maintain a safer distance,” “move out of the way or duck to avoid a blow,” “raise an arm or hand to ward off a blow,” “put hands in front of your face, palms outward, with elbows protecting the chest to avoid head and chest injury,” and to “use physical restraint only if absolutely necessary to protect yourself.” The Behavior Management Policies for Emergency Use of Manual Restraints Policy trained staff persons on “positive support strategies and techniques must be used to attempt to de-escalate a person’s behavior before it poses an imminent risk of physical harm to self or others.” It stated, “Staff shall use the least intrusive intervention necessary to assure the health, safety, and welfare of the individual,” and “Physical contact or instructional techniques must be the least restrictive alternative possible to meet the needs of the person and may be used to… briefly block or redirect a person’s limbs or body without holding the person or limiting the person’s movement to interrupt the person’s behavior that may result in injury to self or others.” Facility documentation showed the SP was trained on the Reporting of Maltreatment of Vulnerable Adults Act, Positive Behavior Supports, Mental Illness: Crisis Response, De-Escalation, and Conflict Resolution. Relevant Statutes: Minnesota Statutes, section 245D.04, subdivision 3, paragraph (a), clause (6) states in part that a person’s protection related rights include the right to be treated with courtesy and respect. Conclusion: A. Maltreatment: Information was consistent that on March 28, 2023, the SP went to the facility to get the program vehicle and there was an incident between the SP and the VA. The SP entered the home and made comments towards the VA and P3 about food that was on the table, that the VA needed to eat the food, and that the SP saw flies around the food and then a verbal interaction between the SP and the VA began. Although the SP denied saying anything inappropriate to the VA, P3 and the VA provided consistent information that the SP and the VA each swore at one another. P3 attempted to intervene between the two and the SP told P3, “I’m a (supervisory staff person), I know what I am doing,” so P3 tried to change the subject with the SP. Shortly after, the SP asked P3 to move his/her car to allow the SP to get the program vehicle. P3 then went outside for according to P3 about 30 seconds. During this time, the SP and VA went into the kitchen/dining room where a physical altercation took place. Information from the SP and the VA was different regarding who initiated the physical interaction between them. The VA said that the SP grabbed the cast iron two burner stove grate cover first and swung it at the VA, but the SP said that the VA grabbed a knife from the butchers block first and that s/he only used the stove grate cover to prevent an attack with the knife and denied hitting the VA with the grate cover. However, when P3 returned inside the home, s/he saw the VA with the knife raised over his/her head and the SP hit the VA with the stove grate cover. P3 went behind the VA and placed him/her in a hold when s/he noticed the VA “bleeding on [his/her] side.” The SP left the kitchen and went outside into the garage. The VA went out the front door followed by P3. Although the SP denied laughing at the VA, P3 and the VA provided consistent information that the SP laughed at the VA. Given the conflicting information provided by the SP and the VA credibility was a determining factor. Although there was information that the VA might not be credible at all times, the CM stated that the VA provided inconsistent information out of “fear of getting in trouble,” however, the VA acknowledged his/her actions of swearing, and grabbing the knife and using it towards the SP. In addition, P3’s version of events more closely matched those of the VA’s and P3 saw the SP engage in verbal and physical interactions that the SP denied having done. Given this and that the SP had reason to minimize his/her interactions with the VA for fear of repercussions, it was more likely that P3’s and the VA’s accounts of the incident were more credible. P3 said that after the incident, the VA’s right side “had a bruise on [his/her] eye,” that the VA was “bleeding-ish,” and the VA’s “eye was red for like a week” after the incident and P1 saw scratch marks on the VA’s face that the VA said was from being hit by the SP. The SP’s actions of coming into the facility and engaging with the VA in a nontherapeutic manner was a violation of Minnesota Statutes, section 245D.04, subdivision 3, paragraph (a), clause (6); was not accidental or therapeutic; inconsistent with the facility’s Conflict Resolution Training and Behavior Management Policies; and likely escalated the incident at a time when the SP was not providing direct care to the VA. Therefore, there was a preponderance of the evidence that the SP’s conduct including hitting the VA with the stove grate cover, punching the VA, and swearing at the VA, caused injury to the VA, and was a failure to supply the VA with reasonable and necessary care. It was determined that physical abuse and neglect occurred (conduct which is not an accident or therapeutic conduct which produces or could reasonably be expected to produce physical pain or injury or emotional distress including, but not limited to: 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.) 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, Positive Behavior Supports, Mental Illness: Crisis Response, De-Escalation, and Conflict Resolution. 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 physical abuse and neglect for which the SP was responsible was not recurring maltreatment but was serious maltreatment. It was a single incident for which the VA sustained a scratch, bruise, and was bleeding. The SP was disqualified from providing direct contact services. Action Taken by Facility: The facility completed an internal review, and determined that policies and procedures were adequate, but not followed. The SP no longer worked at the facility. Action Taken by Department of Human Services, Office of Inspector General: The SP was disqualified from a position allowing direct contact with, or access to, persons receiving services from 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. The determination that the SP was responsible for maltreatment and the disqualification of the SP are each subject to appeal. Given that the facility took immediate corrective action, a Correction Order was not issued for the citation outlined in this report.
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