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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: 1071625-H_CRS (Home and Community-Based Services-Community Residential Setting) Investigator(s): Scott Brandt 651-431-6556 Suspected Maltreatment Reported: It was reported that a vulnerable adult (VA), who was to be on a diet that consisted of minced/moist foods, was given a bratwurst whole. Then, the VA had difficulty breathing and had a medical procedure done to move the food down to his/her stomach at a hospital. Date of Incident(s): July 5, 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 August 2, 2023; from documentation at the facility, from the VA’s medical records, and through five interviews conducted with the SP, a facility management staff person (P1), a facility staff person (P2), a facility health care professional (HCP) and the VA’s guardian (G). The VA was unable to provide information in an interview due to his/her disability. Although this investigator contacted two staff persons (P3 and P4) who were working with the SP at the time of the incident, P3 and P4 did not respond to requests to be interviewed. The VA’s support plan stated that the VA enjoyed shopping, going out to eat, and accessing the community. The plan also stated that the VA was “attentive to [his/her] friends and compassionate towards others.” The VA was on a “dietary protocol” in which his/her foods were to be “ground up” and that “support staff [persons] continue to encourage [him/her] to drink liquids in between bites of food.” The VA’s ISSA-Assessment Detail stated that the VA “has trouble swallowing food and has a history of aspiration and aspiration pneumonia.” As a result, the VA had an Eating/Dietary Protocol, dated October 12, 2022, and was placed on a of “minced and moist food modification diet.” In addition, staff persons were to “chop food finely with a knife, then moisten with milk, melted butter, sauce, gravy or any type of salad dressing.” Staff persons were to “sit at the table with [the VA] the entire time [s/he] is eating” and “monitor [the VA] and provide reminders to eat appropriately.” The facility had a laminated photo of various “food texture modifications” on a refrigerator in a kitchen that outlined various ways that food could be prepared, such as pureed, bite-size, chopped, ground, and finely chopped/minced, but the document did not identify the VA’s name. The G provided the following information to this investigator: · At about 1 p.m. on July 5, 2023, the G got to the facility because s/he was going to take the VA to the FM’s home. The G went to the VA’s bedroom and the VA was using his/her finger to press against his/her neck, which was “red.” The G was told by P1 that the VA was “excited” to go home, which caused the redness on the VA’s neck. · Shortly after the G left the facility with the VA, the VA “signed” that s/he wanted water. The G gave the VA water, but the water “didn’t stay down,” and the VA spit out food. Because the G believed that the VA was having trouble breathing, the G called the HCP. The HCP told the G to bring the VA to the HCP’s office so the HCP could assess the VA. When the G did that, the HCP assessed the VA and determined that the VA should go to the emergency room (ER) for care. · While the VA was in the ER in Redwood falls, Minnesota, it was determined that the VA had something “stuck” in his/her “throat,” but the ER believed that the VA should be transferred to a hospital in St. Cloud, Minnesota as it was believed that that hospital would be better equipped to address the VA’s needs. The VA was transported by two facility staff persons to the hospital in St. Cloud, Minnesota and had a procedure done in which the food item, later determined to be a bratwurst, was “pushed down” into the VA’s stomach. The VA was released from the hospital the next day, July 6, 2023, and returned to the facility. The VA’s hospital records, dated July 5, 2023, stated that the VA was “eating a bratwurst around 11:30 [a.m.] today.” A computed tomography (CT) scan was done, which showed “a question of a foreign body in the cervical esophagus as well as the upper thoracic esophagus” and that the VA had “no shortness of breath” and “no respiratory distress.” The hospital performed a procedure in which the “bratwurst” was pushed into the VA’s stomach. The medical records did not indicate the size of the bratwurst. P2 stated that on July 5, 2023, when s/he came out of the staff person office, s/he saw a hot dog/bratwurst (P2 did not know which it was) on a plate in the kitchen. When P2, who understood that the VA was to have minced/moist food, told the SP that the food needed to be cut up, the SP told P2 that the VA had previously eaten similar food without an issue. After the VA ate the hot dog/bratwurst, P2 noticed that the VA was pushing on his/her throat, but P2 did not notice any issues with the VA’s breathing. The VA went to his/her bedroom and P2 followed. Shortly thereafter, the G arrived at the facility and the VA left with the G. Later, P1 told P2 that the VA was being taken to the ER in Redwood Falls, Minnesota so P2 went to the ER to be with the VA until his/her shift was over at about 3 p.m. Then P4 relieved P2 at the ER. P2 did not see any changes in the VA’s breathing in the ER but noted that the VA kept pushing on his/her throat. The HCP and his/her case notes provided the following information to this investigator: · In early 2022, the VA began to receive hospice services and when that happened, the VA was no longer on a food protocol and the VA’s medical doctor agreed to that. When the VA was taken off hospice services in October 2022, the food protocol was again implemented, which meant that the VA’s foods were to be “minced and moist,” and that staff persons were to be with the VA when the VA ate. · The G called the HCP on July 5, 2023, because the VA had been “coughing” and the G felt that something was not “right,” and the G wanted the HCP to assess the VA. The G brought the VA to the HCP’s office and when the HCP assessed the VA, the VA “kept pushing” on his/her throat. The HCP believed that the VA was signing that s/he was “choking.” The HCP directed the G to take the VA to the ER. · When it was determined at the ER in Redwood Falls, Minnesota that the VA had food lodged in his/her throat, hospital staff persons decided that the VA should be taken by the HCP and P4 to the hospital in St. Cloud, Minnesota. The VA then had the procedure in the ER and “tolerated” the procedure “well.” The HCP also said that when the VA got to the ER in Redwood Falls, Minnesota, the VA was given medication to “prevent” aspiration pneumonia. P1 stated that the VA’s food was to be “cut up in pieces” and that liquids were to be added. P1 also stated that staff persons were expected to sit by the VA when the VA ate to prevent choking. The SP provided the following information to this investigator: · On the day of the incident, July 5, 2023, the SP was preparing lunch. After the SP cooked a “hot dog,” the SP put in on a plate on the counter and the VA “grabbed it.” The SP asked the VA to give the food back, but the VA did not. As the VA walked to the table, the VA “took a couple bites” and the SP went and sat by the VA at the table and “reminded’ the VA to “slow down.” The SP stated that s/he was not aware of a food protocol but was aware that the VA had a history of choking and needed staff persons by the VA when the VA ate. · When the VA finished eating the “hot dog,” the VA was “excited” because the G had arrived at the facility. The G and the VA went to the VA’s bedroom. The SP did not see any issues with the VA’s breathing. · The SP remembered a conversation before the VA ate about the need to cut up the VA’s food, but the SP did not remember the staff person who the conversation was with and the SP thought it was a “recommendation,” but not a protocol. The SP remembered a previous time in which the SP gave the VA a similar food item and that the VA ate it without issue. · About a week before the incident happened, the SP saw a protocol in the staff person office in which the VA’s food protocol had been discontinued. When this investigator asked the SP to show the protocol, but the SP did not know where the protocol was. When the SP was interviewed as part of the facility’s Internal Investigation and asked about training, the SP said, “The protocol that I had read stated that [the VA] was on a modification diet due to being on hospice and once [s/he] was done on hospice [s/he] was to go back to eating a regular diet and [the VA] will ask for [his/her] food to be cut up,” and “When you first start here, there’s a lot of information thrown at you and I honestly don’t remember it all.” When P4 was interviewed as part of the facility’s Internal Investigation, P4 stated that s/he was in the staff person office passing medications and heard the VA “coughing” in his/her bedroom and that P2 assisted the VA. P4 did not provide information in terms of how the VA’s food was to be prepared. P2 provided information in the facility’s Internal Investigation that was similar to the information s/he provided to this investigator. The facility’s training records showed that all staff persons interviewed for this investigation were trained on the Reporting of Maltreatment of Vulnerable Adults Act and the VA’s care plans prior to July 5, 2023, and personnel records showed that the SP was trained on the VA’s food protocol on June 15, 2023. Conclusion: A. Maltreatment: On July 5, 2023, P2 saw that the SP had a hotdog/bratwurst on a place and told the SP that the VA needed food to be cut up. The SP told P2 that the VA had eaten similar foods in the past without issue. The SP prepared what the SP called a hot dog, set it on a plate on the counter, and the VA took it and began eating it. While the VA ate, the SP sat by the VA and encouraged him/her to eat slowly. According to the SP, the VA did not have any issues eating. After the VA ate, the VA went to his/her bedroom and P2 followed because P2 noticed that the VA was pushing on his/her throat. When the G arrived at the facility at about the same time, the G also noticed that the VA was pushing on his/her throat and that it was “red.” P1 told the G that the VA was excited to be going home with the G. Shortly after the G left the facility with the VA, the G called the HCP because the G was concerned about the VA. The HCP assessed the VA and determined it would be best if the VA was taken to the ER in Redwood Falls, Minnesota. The VA’s hospital records stated that the VA was “eating a bratwurst around 11:30 [a.m.] today.” A computed tomography (CT) scan was done, which showed “a question of a foreign body in the cervical esophagus as well as the upper thoracic esophagus” and that the VA had “no shortness of breath” and “no respiratory distress.” The hospital performed a procedure in which the “bratwurst” was pushed into the VA’s stomach. The medical records did not indicate the size of the bratwurst. The VA returned to the facility the next day. The VA’s support plan, ISSA-Assessment Detail and Eating/Dietary Protocol all provided information that the VA was on a diet that consisted of having his/her foods minced and moistened, and that the VA needed staff persons to be seated by the VA while the VA ate because s/he had a history of choking. Although the SP stated s/he did not know the VA needed his/her food prepared according to the food protocol and that the VA “took” the “hot dog,” given that the SP did not take the hotdog/bratwurst away from the VA when the VA took it without it being cut up and allowed the VA to continue eating it improperly prepared, that facility documentation showed the SP was trained on the VA’s Eating/Dietary Protocol prior to the incident, that P2 stated s/he told the SP to cut up the VA’s food but the SP told P2 that the VA had eaten similar foods in the past without issue so did not cut up the hotdog/bratwurst, and that the VA needed a medical procedure to push the food down to his/her stomach, there was a preponderance of the evidence that the SP failed to provide the VA with reasonable and necessary care and services. 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 responsible for the VA’s care and supervision at the time of the incident and gave the VA food that was not prepared to the VA’s protocol. The SP was responsible for the 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. The neglect for which the SP was responsible for was not recurring maltreatment because the incident was a single occurrence but was serious maltreatment because the VA needed the care of a physician and medical procedure which met the definition of serious maltreatment. The SP was disqualified from providing direct contact services. Action Taken by Facility: The facility completed an Internal Investigation that stated that although policies and procedures were adequate, they were not followed, but the review did not indicate what was not followed. In addition, the review noted that additional training was provided on July 11, 2023, to all staff persons. 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.
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