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AMENDED 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.” NOTICE: This Amended Maltreatment Investigation Memorandum supersedes a version dated March 17, 2023, which should be destroyed. As a result of an administrative reconsideration, the original determination that a staff person (SP) was responsible for recurring maltreatment and was disqualified as a result was changed to the SP being responsible for non-disqualifying maltreatment. The SP’s disqualification was rescinded and the health-related board that regulated the SP was notified of the change. For additional information, see Administrative Reconsideration section of this document.
License Number and Program Type: 1071749-H_CRS (Home and Community-Based Services-Community Residential Setting) Investigator(s): Anna Parkin 651-431-6225
Suspected Maltreatment Reported: It was reported that a staff person (SP) yelled and swore at two vulnerable adults (VA1 and VA2). It was also reported that VA2 did personal errands for the SP. Date of Incident(s): December 31, 2022 to January 2, 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 January 31, 2023; from documentation at the facility; and through eleven interviews conducted with a supervisory staff person (P1), an administrative staff person who also completed the internal review (P2), a staff person (SP), VA1, VA2, VA1’s three guardians (G1-G3), VA2’s guardian (G4), a client (C), and VA1’s case manager (CM). VA2’s case manager was contacted via phone but did not respond. VA1 was diagnosed with bi-polar disorder and cerebral palsy. According to VA1’s Risk Assessment Detail, it was not known if VA1 was able to defend him/herself against verbal/emotional abuse because s/he was “good natured” and “a people pleaser.” Staff persons talked to VA1 about what verbal abuse was such as name-calling or making VA1 “feel bad.” Staff persons informed VA1 to remove him/herself from a situation or seek assistance. Staff persons also were trained to recognize possible signs of emotional abuse and encouraged VA1 to discuss concerns and stand up for him/herself. VA1 was allowed unsupervised time for seven and one half hour at the facility and eight hours in the community. VA2 was diagnosed with a mild developmental disability. According to VA2’s Risk Assessment Detail, VA2 may not have been aware who to report possible emotional abuse to. Staff persons were trained to recognize possible signs and symptoms of verbal/emotional abuse and encouraged VA2 to discuss with staff persons. VA2 had up to eight hours of unsupervised time in the community. Consistent information was provided that staff persons assisted VA1, VA2, and the C with purchases and VA1, VA2, and the C were not allowed to use their own credit cards. The facility had a van that staff persons used to transport the clients but the SP used his/her personal vehicle instead. VA1 provided the following consistent information to this investigator and P2 during the internal investigation: · On December 31, 2022, at approximately 5 p.m., VA1 met with some friends for dinner at a restaurant. While at the restaurant, VA1 was incontinent of stool and did not wear disposable undergarments. VA1 called the SP, who was working at the time, to come get VA1. Approximately one hour later, the SP, VA2, and the C showed up to the restaurant. The SP waited inside his/her car while VA2 and the C came inside the restaurant with VA1’s credit card. VA2 and the C had not eaten dinner so they decided to order takeout food and paid with each of their cards. After VA2 and the C got their food and paid, VA1, VA2, and the C went outside to the SP’s car. · On the drive back to the facility, the SP “yell[ed]” and swore at VA1 in the SP’s native language. Because the radio volume was turned up, VA1 was not able to understand what the SP said with the exception of the swear words. The SP was “so mad” and “so angry” and VA1 felt like crying because s/he was embarrassed and “shook up.” VA1 apologized to VA2 and the C for the incident. Once they got back to the facility, VA1 showered and spent the rest of the night in his/her bedroom.
· On a previous occasion, the SP dropped VA1 off so the VA could get a haircut and told VA1 to text the SP when s/he was done. When VA1 was done with his/her haircut, s/he texted the SP. Awhile later, the C came into the salon with VA1’s credit card and gave it to VA1 to pay for the haircut. When VA1 got to the SP’s car that was parked outside, the SP was “really upset” and yelled at VA1 that s/he had been waiting outside because VA1 had not paid attention. The SP told VA1 that s/he was not driving VA1 to get a haircut in the future and that VA1 could use public transportation instead. VA1 felt “terrible” and “embarrassed” because VA2 and the C were also in the car. Historically, the SP swore during conversations with VA1. VA2 provided consistent information to P2 during the internal review and this investigator that during the incident that took place on December 31, 2022, after VA1 was incontinent, the SP “yell[ed]” at VA1 while inside the SP’s car. The SP asked VA1 why s/he did not go to the bathroom, said that VA1 was a “grown” adult, and to “wipe your ass.” VA2 passed gas while inside the SP’s car and the SP told VA2 not to do that inside his/her car and told both VA1 and VA2 to “shut up.” The SP made VA2 do things around the facility, such as cook dinner, wash laundry, and go into coffee shops and purchase drinks for the SP with the SP’s credit card. The SP made VA2 feel “worthless.” The C stated there was an incident when the SP was “really mad” regarding a haircut for VA1 but the C did not recall details. The C was not able to provide information to this investigator about the incident on December 31, 2022, but previously told P2 during the internal review, that while inside the SP’s car, VA1 was incontinent and the SP “did not like it” and told VA1 to “shut up.” The C told this investigator and P2 that on previous occasions, the SP gave the C the SP’s personal credit card to go inside coffee shops to purchase coffee for the SP while the SP waited inside his/her personal car. The SP previously yelled and swore at VA2, including telling VA2 to “get [VA2’s] fucking ass downstairs.” P1 provided the following information: · On January 2, 2023, P1 asked VA1 about his/her finances and going out to dinner on December 31, 2022. VA1 said that s/he was out with friends and the SP drove VA2 and the C to pick up VA1. VA2 and the C had not eaten dinner, so they came inside to order take out and gave VA1 his/her credit card to pay while the SP waited outside in his/her car. · After paying, VA1, VA2, and the C went out and got inside the SP’s car. The SP started “yelling” at VA1 about the smell from VA1’s incontinence and said things like “that is gross,” “you shit your pants,” and “you need to wipe your ass.” As VA1 was talking to P1, VA2 and the C joined in the conversation. VA2 said that VA1 apologized to the SP but the SP yelled at VA1 to “shut up.” The C nodded his/her head and said they were all “scared” and the SP then started driving fast. · VA1, VA2, and the C each said that once they arrived at the facility, the SP screamed at VA1 to “wipe your fucking ass” and that it was “fucking gross.” VA1, VA2, and the C each went to their respective bedrooms. P1 said VA1, VA2, and the C were all accurate with providing information. P2 provided the following additional information in the internal review and to this investigator: · During his/her interview with the SP, the SP’s voice was “raised,” the SP was “upset,” and swearing at P2. The SP told P2 that “maybe one time” s/he did not go into a store with the clients. P2 did not record his/her interview with the SP. · The SP told P2 that on the date of the incident (December 31, 2022), after s/he picked up VA1 from the restaurant, VA1 was incontinent of stool while inside the SP’s car. The SP reminded VA1 that s/he could have used the bathroom inside the restaurant. The SP did not raise his/her voice while talking to VA1 but “wasn’t happy” about the incident. The SP then dropped VA1, VA2, and the C off at the facility and went and purchased food for him/herself. The SP provided the following information to this investigator: · On the day of the incident (December 31, 2022), VA1 was incontinent inside the SP’s car and it was “smelly.” The SP asked VA1 why s/he did not use the bathroom inside the restaurant and VA1 responded s/he did not have to. The SP told VA1 that the SP needed to clean his/her car because of the incident. The SP dropped VA1, VA2, and the C at the facility and took his/her car to get cleaned. · The SP denied yelling and when asked why this investigator has information that s/he yelled, s/he said it was “maybe because of my tone” or because VA1 was “embarrassed.” The SP also denied calling VA1 “gross” and denied telling VA1 to “wipe your ass.” The SP denied ever swearing around VA1, VA2, and the C. The SP “did not get along” with P1 and denied swearing at P2 during the interview. · The SP denied giving VA1, VA2, and the C the SP’s personal credit card to purchase items such coffee for the SP or items for the clients. When this investigator asked the SP about giving VA1’s card to the C to pay for a haircut, the SP stated that was “true” and s/he did so because VA1 had called the SP for a ride and then once the SP got to the salon, VA1 did not come outside so VA1 paid by his/herself. G1-G4 and the CM did not have concerns with the facility. The facility’s personnel files and training records documented that staff persons interviewed for this investigation, including the SP, were each trained on VA1’s and VA2’s plans and the Reporting of Maltreatment of Vulnerable Adults Act prior to the incident.
Relevant Rules and/or Statutes: Minnesota Statutes, section 245D.04, subdivision 3, paragraph (a), clause (6), stated that a client’s protection-related right included being treated with courtesy and respect. Conclusion: A. Maltreatment: Consistent information was provided that on December 31, 2022, while out to dinner or once inside the SP’s car, VA1 who did not wear disposable undergarments, was incontinent of stool. VA1 told this investigator that during the drive back to the facility, the SP “yell[ed]” and swore at VA1. The SP was “so mad” and “so angry” and VA1 felt like crying because s/he was embarrassed and “shook up.” VA1 also said the SP had a history of swearing and there was a previous incident where the SP was upset and yelling because VA1 had not come out to the SP’s car at a salon. VA2 stated that during the incident, the SP “yell[ed]” at VA1 while inside the SP’s car. The SP asked VA1 why s/he did not go to the bathroom, that VA1 was a “grown” adult, and to “wipe your ass.” The SP told VA1 and VA2 to “shut up” and the SP’s actions at the facility made VA2 feel “worthless.” The C told P2 that while inside the SP’s car, VA1 was incontinent of stool and the SP “did not like it” and told VA1 to “shut up.” The C told this investigator that the SP previously yelled and swore at VA2, including telling VA2 to “get [VA2’s] fucking ass downstairs.” P2 stated that during his/her interview with the SP regarding the allegations, the SP’s voice was “raised,” the SP was “upset,” and swearing at P2. P1 stated that VA1, VA2, and the C were all accurate with providing information. Although the SP denied yelling and swearing at VA1 on December 31, 2022, given the consistent information provided by VA1, VA2, and the C regarding the SP’s actions during the incident; that the SP’s action while talking to P2 about the incident was similar to those described by VA1, VA2, and the C; and that the SP had reason to minimize his/her actions for fear of repercussions, it was more than likely that the SP yelled and swore at VA1 and VA2. The SP’s interactions with VA1 and VA2 were inconsistent with the standards of a professional caregiver in a facility licensed by the Department of Human Services, a violation of the facility’s policies and procedures, and a violation of Minnesota Statutes, section 245D.04, subdivision 3, paragraph (a), clause (6). In addition, VA1 said that the SP’s interactions with VA1 made him/her feel embarrassed and “shook up” and VA2 said s/he felt “worthless” because of how the SP treated him/her. Therefore, there was a preponderance of the evidence that the SP’s treatment of VA1 and VA2 would 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 VA1’s and VA2’s plans. The SP was responsible for maltreatment of VA1 and VA2. 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 serious, however, it was recurring maltreatment because the SP emotionally abused two different vulnerable adults. 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. The health-related board that the SP was regulated by was notified that the SP was determined to be responsible for recurring maltreatment. Administrative Reconsideration: The disposition of the investigation is amended from substantiated as to recurring emotional abuse of VA1 and VA2 by the SP to substantiated as to non-recurring emotional abuse of VA1 and VA2 by the SP. To the extent that the language in the Administrative Reconsideration conflicts with the language in the remaining part of the Amended Investigative Memorandum, the language in the Administrative Reconsideration controls. The disposition was amended based on the following: Amended Conclusion: 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 serious. In addition, the substantiated emotional abuse for which the SP was responsible did not meet statutory criteria to be determined as recurring maltreatment. Although the SP’s treatment of VA1 and VA2 occurred on multiple occasions involving two VAs, other than the incident on December 31, 2022, it could not be determined when the incidents occurred and the specific details of those incidents. Therefore, the SP’s treatment of VA1 and VA2 was a pattern of behavior by the SP, which is considered a single incident of maltreatment. Therefore, your disqualification for recurring maltreatment has been rescinded. Amended Action Taken by Department of Human Services, Office of Inspector General: The SP was notified that his/her disqualification from direct contact was rescinded and s/he was no longer disqualified. The SP is no longer disqualified form positions 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. 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 maltreatment,” will automatically meet the criteria for “recurring maltreatment,” and will result in his/her disqualification. The determination that the SP was responsible for maltreatment is subject to appeal. The health-related board that the SP was regulated by was notified that the decision that the SP was responsible for recurring maltreatment was changed to non-disqualifying maltreatment.
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