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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: 1070725-H_CRS (Home and Community-Based Services-Community Residential Setting) Investigator(s): Alice Percy 651-431-6569 Suspected Maltreatment Reported: It was reported that after drinking alcohol, a staff person (SP) drove a vulnerable adult (VA). Date of Incident(s): May 5 – 6, 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 17, paragraph (a): 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 June 13, 2023; from documentation at the facility; and through four interviews conducted with an administrative staff person (P1), the VA, the VA’s case manager (CM) and the VA’s guardian (G). Attempts were made by telephone and letter to contact the SP, but the SP did not respond to the requests for interviews. Attempts were also made by telephone and letter to contact four staff persons (P2 – P5), but none responded to the requests for interviews. The VA enjoyed spending time with his/her family members and friends and was of legal drinking age. At the time of the incident, the VA had unlimited unsupervised time at the facility and in the community. The VA’s diagnoses included mild intellectual disabilities, anxiety, an autistic disorder, attention-deficit hyperactivity disorder (ADHD), and fetal alcohol syndrome. According to the VA’s Support Plan Addendum, Self manage symptoms or behavior that may otherwise result in termination of services, stated, “[The VA] had a history of substance use. This has not been a concern for [him/her] in quite some time. [The VA] has been informed of Zumbro’s drug and alcohol policy.” The VA provided the following information: · On the evening of May 5, 2023, the SP told the VA and P2 that s/he would take the VA to the Mall of America. They used the facility’s van, but did not drive to the mall. Instead, the SP drove the van to a nearby liquor store, where s/he purchased a case of beer and a bottle of wine. The SP began to drink the beer and gave a beer to the VA to drink. The SP continued to drink as s/he drove the van to Rochester, MN. The VA believed the SP drank most of the case of beer. Once they arrived in Rochester, MN, the SP “accidentally” hit another car because s/he “was not [him/herself]” and knocked off the other car’s license plate. The SP gave the owner of the other car his/her personal automotive insurance information instead of the insurance information for the facility’s van. The VA stated that the SP did not want the facility to learn about the incident. · The SP then drove the VA to a bar, where the SP drank ten more bottles of beer. The VA stated that the SP was “wobbly,” “out of it,” “not walking right,” and not him/herself. While at the bar, the SP met a community person (CP) of the opposite gender and offered to drive the CP to his/her home. The SP backed the facility’s van out of the parking space and scratched another vehicle. The VA told the SP that s/he would drive because the SP was “very drunk.” Although the VA did not have a driver’s license, the VA then drove to the CP’s home. The CP told the SP that s/he could not come in the CP’s home because other family members were sleeping. The SP was “under the influence” of alcohol from “drinking too much,” so the VA and the SP slept in the car. The VA stated that s/he did not sleep much and woke the SP at 5 a.m. so that they could return to the facility. The SP was still drinking alcoholic beverages in the car and drove “fast and recklessly” back to the facility. The SP told the VA not to tell anyone where they went. During the time they were away from the facility, the VA was unable to telephone the other staff persons because his/her cell phone was “dead” and the VA did not have a working cell phone charger in the van. · On May 6, 2023, at approximately 7 a.m., the SP and the VA arrived at the facility. The VA believed that the staff persons working at the facility at that time smelled alcohol on the SP. The VA believed that the SP “wasn’t a very good staff.” According to the facility’s Internal Review: · On May 5, 2023, at approximately 7 p.m., the SP told P4 that s/he and the VA were going to the Mall of America and they left in the facility’s van. During the evening, P4 attempted to call the SP, but the SP did not answer his/her telephone. In the “early morning hours,” the SP called P4 and told him/her that s/he took the VA to the VA’s family member’s (FM’s) home. The SP also told P4 that s/he purchased alcohol, which the VA and the SP drank, and the SP was “too drunk to drive. · On May 6, 2023, at approximately 7 a.m., the VA and the SP returned to the facility. The SP told P2 and P3 that s/he took the VA to the FM’s home the previous night and that s/he was going to take the VA back to the FM’s home. The VA and the SP then left the facility. At 11 a.m., the SP and the VA returned to the facility. The SP told P5 that s/he took the VA to the FM’s home and the VA did not want to leave, so the SP stayed there with the VA. P5 believed s/he smelled alcohol on the SP’s breath. When the SP left the facility, the VA told P3 and P5 that the SP took the VA to a party and purchased alcoholic beverages for the VA. P3 and P5 told a supervisory staff person (P6) about the incident. · When P6 later talked to the SP about the incident, the SP told P6 that s/he and the VA each drank alcoholic beverages and that the SP then drove the facility’s van while the VA was a passenger. · When P1 talked to the VA about the incident, the VA provided information to P1 that was consistent with the information the VA provided to this investigator. In addition, the VA told P1 that after they initially returned to the facility on the morning of May 6, 2023, the SP drove the VA to the SP’s home, where they “sat around” prior to returning to the facility at approximately 11 a.m. P1 stated that s/he interviewed the VA, and the staff persons who worked at the facility on May 5 and 6, 2023. The VA told P1 that the SP and the VA arrived at the bar in Rochester, MN, between 8 and 9 p.m., and remained there until “at least midnight.” After they left the bar, they slept in the facility’s van until the following morning and arrived back at the facility at approximately 7 a.m. The SP and the VA left a short time later and did not return until approximately 11 a.m. P1 was not aware of any damage to the facility’s van. The SP told another P6 that s/he drank alcoholic beverages with the VA and then drove the facility’s van while the VA was a passenger. Prior to the incident, the SP had worked at the facility for two days and received training on the facility’s Drug and Alcohol Policy. The G stated that the facility told him/her about the incident and that the VA had indicated that s/he was “scared” during the incident because the SP was driving under the influence. The VA told the G that s/he did not drive the facility’s van during the incident. The CM stated that the VA did not have a driver’s license but knew how to drive a car. The VA did not “seek out” alcoholic beverages, but would drink them. The VA “felt bad” about the incident and was coerced into participating by the SP. According to the facility’s Drug Abuse/Alcohol Abuse Policy, alcoholic beverages were not to be served or used on the facility’s premises at any time. Being impaired by alcohol or drugs while working at the facility was a major violation of the facility’s policy that might result in termination of employment. Facility documentation showed that the SP, P1, P2, P3, and P4, and P5 each received training on the Reporting of Maltreatment of Vulnerable Adults Act, on the facility’s policies, and on the VA’s plans prior to the incident. Conclusion: A. Maltreatment: The VA provided consistent information that on May 5, 2023, the SP took the VA to a liquor store and purchased alcoholic beverages which s/he shared with the VA. The SP then drove to a bar in Rochester, MN, where s/he and the VA drank additional alcoholic beverages from approximately 8 or 9 p.m. to 12 a.m. The VA stated that at one point s/he drove the facility’s van because the SP was “not [him/herself],” even though the VA did not have a driver’s license. The VA and the SP slept in the facility’s van until the morning of May 6, 2023, when the SP drove the VA back to the facility. The VA stated that the SP was “wobbly,” “out of it,” “not walking right,” and not him/herself during the incident. Although the SP did not provide information for this report, the SP later told P6 that the SP and the VA each drank alcoholic beverages and that the SP then drove the facility’s van while the VA was a passenger. Given that the information provided by the VA was consistent with the information the SP told P6, there was a preponderance of the evidence that the SP drove the VA after drinking alcohol. Although it was not determined how intoxicated the SP was each time s/he drove the VA, the VA stated that the SP hit two vehicles and driving a vulnerable adult after drinking any amount of alcohol was not accidental and placed the VA at a significant risk of injury. In addition, providing alcohol to and allowing the VA to drink alcohol when the VA had a history of substance use, placed the VA at risk of possible service termination. Therefore, there was a preponderance of the evidence that there was a failure to supply the VA with care or services which was reasonable and necessary to maintain the VA’s physical or 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. Facility documentation showed that the SP received training on the Reporting of Maltreatment of Vulnerable Adults Act, on the facility’s policies, and on the VA’s plans prior to the incident. The SP was responsible for maltreatment of the VA. C. Recurring and/or Serious Maltreatment: The Office of Inspector General is required to evaluate whether substantiated maltreatment by an individual meets the statutory criteria to be determined as “recurring or serious.” Individuals determined to be responsible for recurring or serious maltreatment are disqualified from providing direct contact services. Minnesota Statutes, section 245C.02, subdivision 16, states: “Recurring maltreatment” means more than one incident of maltreatment for which there is a preponderance of evidence that maltreatment occurred and that the subject was responsible for the maltreatment. Minnesota Statutes, section 245C.02, subdivision 18, states: "Serious maltreatment" means sexual abuse, maltreatment resulting in death, neglect resulting in serious injury which reasonably requires the care of a physician whether or not the care of a physician was sought, or abuse resulting in serious injury. For purposes of this definition, "care of a physician" is treatment received or ordered by a physician, physician assistant, or nurse practitioner, but does not include diagnostic testing, assessment, or observation; the application of, recommendation to use, or prescription solely for a remedy that is available over the counter without a prescription; or a prescription solely for a topical antibiotic to treat burns when there is no follow-up appointment. For purposes of this definition, "abuse resulting in serious injury" means: bruises, bites, skin laceration, or tissue damage; fractures; dislocations; evidence of internal injuries; head injuries with loss of consciousness; extensive second-degree or third-degree burns and other burns for which complications are present; extensive second-degree or third-degree frostbite and other frostbite for which complications are present; irreversible mobility or avulsion of teeth; injuries to the eyes; ingestion of foreign substances and objects that are harmful; near drowning; and heat exhaustion or sunstroke. Serious maltreatment includes neglect when it results in criminal sexual conduct against a child or vulnerable adult. It was determined that the substantiated neglect for which the SP was responsible did not meet statutory criteria to be determined as recurring or serious. Although the SP drove the VA at least twice after drinking, it was during the same evening and therefore considered a single incident for which the VA did not sustain an injury. Action Taken by Facility: The facility completed an internal review and determined that the facility’s policies were adequate, but were not followed by the SP. The SP no longer worked at the facility. Action Taken by Department of Human Services, Office of Inspector General: The SP was not disqualified from providing direct care services as a result of the maltreatment determination in this report. However, the SP was notified by the Office of Inspector General that any further substantiated act of maltreatment, whether or not the act meets the criteria for “serious,” will automatically meet the criteria for “recurring” and will result in the disqualification of the SP. The determination that the SP was responsible for maltreatment is subject to appeal.
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