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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 September 13, 2023, which must be destroyed. The original contained incorrect wording and an incorrect blood alcohol concentration, which did not change or impact the disposition or appeal timelines. The amended version contains the correct information.
License Number and Program Type: 1086321-H_CRS (Home and Community-Based Services-Community Residential Setting) 1079030-HCBS (Home and Community-Based Services) Investigator(s): Thomas Nixon 651-431-2155 Suspected Maltreatment Reported: It was reported that a staff person (SP), who was intoxicated, drove a vulnerable adult (VA) and got into a car crash which injured the VA. The SP was arrested by a Law Enforcement Officer (LEO) and the VA was driven home by a community person (CP). Date of Incident(s): May 14, 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 May 26, 2023; from documentation at the facility, law enforcement records, medical records; and through 11 interviews conducted with the VA, the VA’s guardian (G), four supervisory staff persons (P1-P4), four staff persons (SP and P5-P7), and the CP. The CP was the SP’s spouse who also worked for the license holder but was not yet working with clients and did not work at the facility the VA lived. The VA’s diagnoses included schizoaffective disorder bipolar type, attention-deficit hyperactivity disorder, conduct disorder adolescent onset type, and autistic disorder. The VA enjoyed video games, art, dancing, animals, and scary movies. The VA provided the following information: · Prior to the incident on May 14, 2023, on dates the VA did not recall, the SP drove the VA to his/her home and his/her friends’ home while the s/he was working. The VA met the CP when s/he was at the SP’s home. The VA said the SP was the only staff person at the facility who did this. · On an unknown date, the SP worked with the VA and drove him/her to the SP’s home. The VA went inside the home to the kitchen and saw the SP fill an empty water bottle with a liquid the VA believed to be alcohol. The VA saw the liquid looked like “apple juice, but darker,” but did not get a good look at the bottle. The VA saw the SP drink from the filled water bottle in the SP’s home. · The SP and the VA then left the SP’s home and the SP drove them to a park the VA did not recall. On the way to the park, the VA saw the SP drink from the bottle but did not see anything unusual as the SP drove. At the park, the VA and the SP attended a party, where there were other company staff persons, drinks including alcohol and food. (Note: Information showed that the party was for a family member of a staff person who also worked for the license holder. Some staff persons, clients, and community persons attended the party but it was not a license holder/facility sponsored activity.) · The VA did not pay much attention to the SP while at the party because s/he was more focused on the food. The VA was “sure [the SP] was drinking more” alcohol while at the party, but the VA did not see it happen. The VA and the SP were at the party for “a couple [of] hours.” The VA did not recall if s/he saw the SP act any differently while at the party.
· The VA did not recall when s/he and the SP left the party, only that the “sun was going down” and did not recall anything unusual as the SP drove back to the facility because the VA was eating. The VA recalled at one point that the SP was on his/her phone while s/he drove and believed the SP talked to the CP. · As the SP drove the VA on the highway back toward the facility, the VA looked up as they hit a vehicle in front of them. The VA was not wearing a seatbelt at the time and his/her head hit on the windshield breaking the VA’s glasses, and the VA cut his/her pinkie. The car was damaged in the crash and the VA needed to push against the passenger door to open it. · The VA and the SP waited for about 20 to 30 minutes for the LEO to arrive and during this time, the SP told the VA something similar to, “Don’t tell the officer I had alcohol” and was on the phone talking to the CP. The LEO told the VA that the LEO did not need to talk with the VA but when the SP was talking with the LEO, the VA heard the LEO say s/he could smell alcohol on the SP’s breath. The LEO then arrested the SP and placed the SP in the back of the squad car. The CP arrived to the location, talked with the LEO, and then the CP drove the VA to the facility and dropped him/her off. The CP did not come inside and did not talk to the staff persons at the facility. · The VA went into the facility and told P5 about what occurred, but was “not in the mood for sharing. I was in a bad mood because of the car accident.” After P7 arrived at the facility, about 11 p.m. or 12 a.m., P7 took the VA to the hospital to be assessed. The hospital competed several tests and the VA was told there was “no bleeding or issues, no scars, nothing happened to my head.” P7 drove the VA back to the facility about 1 or 2 a.m. Law enforcement records provided the following information: · On the date of the incident, at 8:46 p.m., the SP rear-ended another car on a highway. The LEO responded to the crash and spoke with the SP and the VA. The VA said s/he was not wearing a seatbelt and hit his/her head on the dash. The VA said s/he had not drunk any alcohol and the LEO did not see any signs the VA was “impaired by alcohol,” and the LEO saw no signs of injury to the VA. · The SP’s blood alcohol content was 0.10 and s/he was arrested for driving while intoxicated (DWI). The SP was booked and released for fourth degree DWI. P6 provided the following information: · On May 14, 2023, P6 worked from 7 a.m. to 3 p.m. When the SP arrived at 3 p.m. there were no signs that the SP had been drinking but the SP “laughed a lot.” P6 did not recall if s/he saw the SP with a water bottle when s/he arrived. The SP told P6 s/he planned to take the VA out into the community and P6 then left the facility. · At a later shift, the VA told P6 that s/he got into a car accident with the SP. The VA said s/he and the SP drove back from the park and as they headed back to the facility, the SP got into a crash. P6 did not ask the VA questions about the accident to avoid the VA getting “worked up.” The VA did not mention to P6 that the SP was intoxicated.
P4 provided the following information: · On May 14, 2023, P4 attended the party in the park and worked with a client from another facility. When P4 arrived to the party, the SP and VA were already there. The SP socialized with others while s/he also supervised the VA. P4 was primarily focused on supervising the client s/he was with and did not pay much attention to the VA and/or the SP. P4 saw the SP sitting with the VA and watching the VA as s/he walked around the park area near the party. · P4 saw no signs that the SP was intoxicated. The SP drank an orange beverage out of a red plastic party cup. P4 was not aware if there was alcohol at the party and did not see the SP act in an unusual manner. P4 did not recall if the SP drank out of a water bottle with tan colored liquid. P4 was not present with the VA and the SP left the party. · That same night the SP was scheduled to work the overnight shift at P4’s facility at 11 p.m. When the SP did now show for his/her shift, P4 called the SP several times but the SP did not answer. P4 remained at his/her facility until 1 a.m. until another staff person arrived. · On the morning of May 15, 2023, P4 learned that the SP was involved in a car crash while intoxicated and was arrested. The SP called P4 after s/he was released from jail and told P4 that s/he drank the morning of May 14, 2023, but “way before” his/her shift which started at 3 p.m. P3 provided the following information: · On May 14, 2023, P3 was the on-call supervisor and got a call around 8 or 9 p.m. from the SP who was at the scene of a car crash. P3 did not fully understand the SP because the SP was talking fast and “kind of frantic.” The SP said the crash occurred 20 to 30 minutes prior, that s/he was “going to jail for a DUI (driving under the influence),” and s/he needed the facility’s car insurance information. The SP told P3 that s/he “was at a celebration before work and had one drink.” P3 asked if the SP was “drinking on the job” and the SP said, “No.” · P3 asked to speak with the LEO and the SP gave the phone to him/her. The LEO said s/he would not talk with P3 but that the SP was going to jail for DUI. The call then ended. · P3 called the SP back but the phone was not answered. P3 then called his/her supervisor to discuss the situation and to try to figure out where the VA was. During this time, P3 received a call from P5 who said the VA was dropped off at the facility by the CP. · P3 talked with the VA who said s/he “was not wearing [his/her] seatbelt” and hit his/her “head on the dashboard.” P3 asked the VA if s/he would go to the emergency room to be evaluated and the VA agreed to go when P7 arrived. P3 asked what happened and the VA said s/he did not know because s/he looked down to eat his/her sandwich when the crash happened. The CP provided the following information: · Earlier in the year, the CP met the VA a few times through the SP, but could not recall when. The VA previously came to the CP’s and the SP’s home to drop off keys and jump start a car and had met the CP. The CP was aware that the VA was a vulnerable adult who the SP worked with.
· The evening of May 14, 2023, the SP called the CP. The SP told the CP that as s/he drove through a construction area in New Hope, a car in front of the SP’s car, “all of a sudden” stopped and the SP hit the car. The CP drove the scene, saw the VA, the SP, and that the LEO present. The CP did not recall what time s/he arrived to the scene. · The CP said no one was injured by the crash and an ambulance was not called. The CP was not aware that VA hit his/her head. The SP said the car no longer worked and that the SP called a supervisor about the situation. The SP asked the CP to drive the VA to the facility because it was past medication time and gave the CP the address. The CP then drove the VA back to the facility. · The CP and the VA arrived at the facility at an unknown time and the CP waited in the car as s/he watched the VA walk into the facility and then s/he drove away. The CP did not talk to the facility staff persons because the SP told the CP that a supervisor was already contacted about the situation. P5 provided the following information: · On May 14, 2023, P5 worked at the facility with another housemate of the VA’s. Around 9 or 10 p.m. P5 heard the doorbell. When P5 answered the door, the VA was outside. P5 did not see the CP or the CP’s car outside the facility. · P5 asked what happened and the VA said s/he was in a car crash and the SP was arrested. The CP showed up, drove the VA back to the facility, and dropped him/her off outside. The VA told P5 that s/he and the SP were at a party, but the VA could not recall where, and the SP drank alcohol. As the SP drove them back to the facility, the SP “missed a stop sign or something and hit a car.” The VA said s/he was not wearing a seatbelt and hit the windshield with his/her head, which cracked the windshield. P5 said the VA at times needed reminders to wear a seatbelt. · P5 used a “trauma response” and checked for concussion the VA and noted his/her “eyes were dilating correctly.” P5 saw the VA was “out of it” and a “little on the confused side,” but was talking and seemed stable on his/her feet. P5 saw the VA had a “50 cent sized bump” on the right side of his/her forehead and “like road rash” on a pinkie finger. · P5 tried to ask more questions of the VA, but the VA said, “I am not going to tell you.” P5 said that because the VA was aware P5 was in a lead position in the facility that the VA at times avoided conversations about other staff persons with P5. · P5 had the VA sit on a couch, got him him/her food to eat, and called P2 and P3 who did not pick up. P5 called P7 and asked him/her to come in early to take the VA to the hospital because P5 could not leave the other housemate alone. P7 agreed and said s/he would be at the facility as soon as s/he was able. P5 called P4 again and told him/her of what the plan was. P7 provided the following information: · On May 14, 2023, P7 received call from P5 who asked him/her to come in early for the shift to take the VA to the hospital. P7 arrived at the facility and was told by P5 that the VA was in a car crash and injured his/her forehead. P7 asked the VA if an ambulance was called to the scene and VA said s/he declined one. · The VA appeared “a little shaken,” had a bruise on his/her finger, and a bruise on his/her forehead which was “flush reddish.” P7 did not recall what side this was on. P7 asked the VA what happened and the VA did not want to talk about it. The VA also appeared to be “in lots of distress” about what occurred. · P7 drove the VA to the emergency room where the VA was examined by a medical professional, medical tests were performed, and the VA was fine. P7 asked the medical professional and was told the VA was still able to take his/her evening medications once back at the facility despite the medication time being past. · P7 and the VA returned to the facility and P7 discovered that a key for the medication closet was on the keyring with the car keys that were involved in the accident. Since the keyring did not come with the VA, P7 was unable to administer the VA’s evening medications. The VA went into his/her room, closed and locked the door, and P7 heard the VA call a family member. P7 did not see the VA for the rest of the shift. P2 provided the following information: · On May 14, 2023, the SP was scheduled to work from 3 to 11 p.m. Around 10:10 p.m. P2 got a call from P5 who said the VA was in a car crash and was dropped off at the facility by the CP. P2 called P3 who said s/he spoke with the SP earlier. P3 told P2 about the crash, that the SP was arrested, and the CP dropped the VA off at the facility. P2 called P7 and discussed the plan to get the VA to the emergency room. P2 was not aware the SP brought the VA to his/her home earlier that day. · On May 15, 2023, P2 went to the facility to check on the VA and worked on the VA’s replacement glasses. The VA did not report any pain or issues to P2. At some point that day, the SP texted P2 and stated could not come into work the evening shift and that there was a car crash with the VA when s/he drove back to the facility from a party. The SP told P2 they were in a construction zone, the car in front of them stopped to avoid a construction piece, and the SP rear-ended the car. · P2 was not aware if there was alcohol at the party the SP and VA attended. P2 said the VA typically put on his/her seatbelt if a staff person asked him/her to. P1 provided the following information: · On May 15, 2023, P1 was told that the SP drove the VA back from a park party at Northwood Park that was put on by another facility staff person. As they drove back to the facility, there was construction and the car in front of the SP and VA suddenly braked due to debris in the roadway. The SP rear-ended the car. · P1 spoke with P4 about the party in the park. P4 said s/he arrived at 7 p.m. and the SP and VA were already there. P4 saw nothing unusual about the SP while there. Around 9:30 p.m. P4 left to use the bathroom and when s/he returned the SP and the VA had left.
The G provided the following information: · The G said there was “not too many problems” with the services the facility provided the VA. The G was concerned about the lack of staff persons across the entire industry. The G said the facility was prompt with responses. · On May 15, 2023, the G received an email from P2 that the VA was in a car crash with a staff person. The VA was brought to the emergency room by P7, medical tests were done, and there was no injury to the VA’s spine or head. The VA sustained “a bruise on [his/her] forehead where [his/her] head hit the windshield of the car.” The VA did not have any pain the next morning. · The G was not told of any specifics of the crash. The G and the VA exchanged voicemails since the crash and the VA did not mention the SP was drunk at the time of the accident until s/he was contacted about this investigation. The SP provided the following information: · The SP had worked with the VA for about one year. On the day of the incident, in the morning the SP attended church with his/her family which included the CP. Around noon, the SP drank some “Andre” and described it “like a wine” that had “little alcohol.” (Note: Andre is the brand of a sparkling wine with an alcohol by volume of 10.5%.) The SP and two other people drank two bottles of Andre. The SP said s/he “drank most of it, not all” of the bottles. The SP stopped drinking around 1 p.m. The SP called another staff person to ask if the person could work for the SP because s/he wanted to spend time with his/her family but did not call because s/he had been drinking. · When the SP was not able to find anyone to work for him/her, the SP arrived at the facility at 3 p.m. to work with the VA. The VA said s/he wanted to go for a ride, which was typical for him/her to ask to drive around without a destination. The SP and VA left the facility around 3 p.m. The SP got a call from the CP who asked him/her to come to their home to drop off a key the SP had. The SP previously brought the VA to his/her home in the past and the VA had met the CP. The SP was told by facility management this was not allowed, but decided to do it again. · The SP drove the VA to the SP’s home. The SP did not want to leave the VA in the car unsupervised and so had the VA come inside. The CP was not present when they entered, but was upstairs in a bathroom. While at the home, the SP filled an empty water bottle with “African Roots Drink” s/he used for back pain. The SP said the beverage was made from African tree roots that are put into a big bottle, soaked for a few days, and then drank for pain. The SP said the drink was not fermented and did not have alcohol in it. The SP said the VA asked several times about the drink and the SP told him/her what it was. · The VA and the SP left the SP’s home and drove to a party in the park where other company staff persons were gathered. The SP did not recall the name of the park or the location. The SP said there was alcohol at the part, but s/he only drank Coke and was next to P4 while there. The SP denied drinking alcohol at the party. The SP supervised the VA while the VA played basketball and volleyball while at the park. · The SP and VA left the park between 5 and 6 p.m. The SP did not remember if s/he was on the phone as s/he drove but if s/he had been s/he would have used his/her Bluetooth earpiece. As the SP drove through a construction zone at about 30 to 40 miles per hour, s/he saw “something” orange fall on the road which caused the car in front of them to suddenly brake. The SP’s car then rear-ended the car in front of them. · The SP parked the car and asked if the VA was okay. The VA said s/he was fine and the SP got out of the car. The SP went to the other car and asked how the passengers were. The SP was told they were not injured and s/he saw the people in the other car call 9-1-1. The SP stayed outside of the car, talked with the other passengers, and waited for the LEO to arrive. The SP called P3 who did not pick up. The SP then called the CP and told him/her about the incident and the CP said s/he was on her way. · The SP was “scared” at the time as this sort of situation had not happened to him/her before. The SP did not go back to talk with the VA to ask him/her questions and was not aware the windshield was cracked by the VA’s head. The SP said that s/he confirmed the VA wore a seatbelt when they left the park, but in the past, the VA took off his/her seatbelt when s/he rode in a car. · The SP denied telling the VA not to say anything about the SP drinking. When the LEO arrived they went to the other car and talked with the passengers first. The LEO then walked to the SP and said s/he wanted to check the SP for alcohol. The LEO had the SP walk, which the SP passed, and then the SP blew into a breathalyzer. The LEO said the SP was “playing” with the device but the SP was confused on when to blow. The LEO then said the SP would be taken to the police station. · The LEO asked the SP about the VA. The SP said that s/he worked with the VA and s/he was a “client.” The SP called P3 again and said s/he was in a car crash and being taken to the police station. The LEO put the SP into the police car as the CP arrived. The SP was not able to talk with the CP. The SP did not want the CP to take the VA back to the facility because s/he did not work with the VA but was unable to tell anyone this because s/he was in the police car and the others were outside and could not hear him/her. The SP saw the VA and the LEO talk outside the police car, but could not hear what was said. · The LEO then drove the SP to the police station where s/he was retested with a breathalyzer and blew a 0.1, which was over the legal limit. (Note: Legal blood alcohol concentration (BAC) in Minnesota is 0.08% but according to dmv.org you can be arrested and charged with a DWI for a BAC of less than 0.08% depending on the circumstances.) The SP said in the police report it stated s/he drank two to three hours before the crash, but in reality, it was four hours before s/he went to work. The facility Policy and Procedure on Alcohol and Drug Use stated, “It is not permissible for employees, subcontractors, and volunteers to be on duty, transporting a person(s) served, driving on company business, or accompanying a person served into the community when under the influence of alcohol or illegal drugs or impaired by any chemicals or prescription/legal drugs.” The After Visit Summary from the emergency room stated the VA was seen for a motor vehicle crash, a head and spine CT were completed, and the “tests were normal and showed no evidence of brain bleed or neck injury.” The VA was directed to take Tylenol or ibuprofen for pain and return to the ER if s/he developed a headache that was not improved by Tylenol/ibuprofen, nausea or vomiting, abdominal pain, or feeling like s/he was going to pass out. Facility documentation showed that the staff persons interviewed for this investigation were trained on the Reporting of Maltreatment of Vulnerable Adults Act and the VA’s plan. Conclusion: A. Maltreatment: Information from all sources was consistent that on May 14, 2023, the SP was driving the VA back to the facility when s/he rear-ended another car. The SP’s BAC was tested by the LEO and the SP’s BAC was 1.0% which was over the legal limit of 0.08% and the SP was arrested. The SP stated that around noon s/he drank “Andre” (which had an alcohol by volume of 10.5%) and that s/he drank “most of” the two bottles. The SP then went to work arriving at the facility at 3 p.m. The SP and the VA provided conflicting information regarding whether the SP drank in the presence of the VA while the SP worked and they were at the SP’s home and/or at the park. Although it was not determined how long it had been since the SP drank alcohol and drove, the SP was responsible for the care and supervision of the VA and the SP’s actions of transporting the VA while under the influence of alcohol posed a serious risk of harm to the VA’s safety and was inconsistent with the facility policies and procedures and inconsistent with the standards of a professional caregiver in a facility licensed by the Department of Human Services. Therefore, there was a preponderance of the evidence that there was a failure to provide the VA with care and services that were 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. The SP was trained on the Reporting of Maltreatment of Vulnerable Adults Act and the VA’s plans. 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 because it was a single incident and although the VA went to the emergency room, the VA only had diagnostic testing done and was directed to take over the counter medication if s/he had pain. Action Taken by Facility: The facility completed an internal review and determined that their policies and procedures were adequate and were followed. The facility determined that there was not a need for additional training or corrective action. 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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