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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: 1082350-H_CRS (Home and Community-Based Services-Community Residential Setting) Investigator(s): Thomas Nixon 651-431-2155 Suspected Maltreatment Reported: Allegation One: It was reported that a staff person (SP) locked a vulnerable adult (VA) in his/her bedroom during an overnight shift. The SP was found asleep in the office and the VA had urinated and defecated on the floor and him/herself. Allegation Two: It was reported that previously the VA was found naked outside unsupervised while the SP was asleep. Date of Incident(s): May 4, 2023, and an unknown date 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), clauses (3) and (4); 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: · Use of any aversive or deprivation procedure, unreasonable confinement, or involuntary seclusion, including the forced separation of the vulnerable adult from other persons against the will of the vulnerable adult or the legal representative of the vulnerable adult; and · Use of any aversive or deprivation procedures for persons with developmental disabilities or related conditions not authorized under section 245.825. 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 11, 2023; from documentation at the facility; and through eight interviews conducted with three supervisor staff persons (P1-P3), three staff persons (SP and P4-P5), the VA’s guardian (G) who was also the VA’s family member, and a case manager (CM). Due to the VA’s disabilities, the VA was not interviewed. Attempts were made via email, telephone, text, and mail to contact and interview another staff person (P6), but the P6 did not respond. The VA’s diagnoses included severe intellectual disabilities, autistic disorder, and mania. The VA was non-verbal and communicated with others through gestures, vocalizations, and facial expressions. The VA enjoyed van rides, listening to music, getting food, bouncing on an exercise ball, and walking around his/her neighborhood. The VA had an Elopement Protocol for when s/he left the facility without staff person supervision with the goal of the VA to “remain on the REM property at all time and will remain with the REM staff while out in the community.” The VA’s Risk Assessment Detail stated s/he needed staff person supervision when in the community due to risks as the VA was unable to defend him/herself from physical and sexual, abuse. The facility was rambler style home located on a two-lane road surrounded by farm fields and other single-family homes. There is a highway with a 30 mile per hour speed limit approximately 600 feet away. The VA’s bedroom faced the road and was next to the front door. Once inside the front door, the VA’s bedroom was to the right of the entrance, a living and dining room area were straight ahead, and a kitchen was to the left. On the other side of the kitchen farther from the VA’s bedroom was the staff office. The facility had chime alarms on all the exterior doors and on the VA’s bedroom door. There were no alarms on the windows. The facility did have video cameras. The overnight staff person started at 10 p.m. The overnight staff person was able to sleep from 10:30 p.m. until 6:30 a.m. the following morning unless a resident needed help. At 6:30 a.m. another staff person was to arrive to help the residents start the day. Facility documentation showed that the staff persons interviewed for this investigation, including the SP, were trained on the Reporting of Maltreatment of Vulnerable Adults Act and the VA’s program plans. Allegation One: It was reported that the SP locked the VA in his/her bedroom during an overnight shift. The SP was found asleep in the office and the VA had urinated and defecated on the floor and him/herself. P2 provided the following information: · The overnight staff persons were trained that when the VA woke, they were to help the VA with what s/he might want such as getting a snack, using the bathroom, or cleaning if s/he was incontinent. If the VA did not go back to bed the overnight staff persons were to avoid the VA becoming upset and engage in activities such as bouncing on an exercise ball and blowing bubbles with occasional prompts to the VA to return to his/her bedroom to go to sleep. P2 told the overnight staff persons, including the SP, that if the VA could not be redirected or was overly aggressive, the overnight staff persons were to call P2 and P2 posted his/her phone number on the staff computer in the office so it was available. · On May 4, 2023, at 8:15 a.m. P2 arrived to the facility and while s/he was still outside s/he heard pounding noises from inside. P2 went inside the facility and saw that all the lights were off. P2 then looked to see where the noise was coming from. The VA was the only resident at the facility at the time because the other resident was gone with his/her family. P2 turned the lights on and checked various areas of the home but did not see the SP, who should have been awake at 6:30 a.m. At some point, P2 opened the office door and saw the SP asleep on a bed. · P2 left the office, continued to look for the source of the noise, and went to the VA’s bedroom. P2 heard the VA pounding on the walls and windows in his/her bedroom. P2 attempted to open the VA’s bedroom door and saw there was a key “wedged” in the doorknob in the turned locked position which prevented the door handle from being moved and/or opened. P2 moved the key and opened the door. · P2 saw the VA standing in his/her room naked, shivering, “soaking wet,” with goosebumps and red cold skin. (Note: The VA sometimes had skin discoloration as a side-effect of a medication s/he is on.) P2 saw there was “feces all over [the VA],” the bed, and the wall. The floor was “slushed” with urine. P2 knew the VA was “upset” and “very agitated” by his/her “growling and grunting.” P2 helped the VA towards the bathroom and was met by the SP. · P2 asked the SP, “What were you thinking? You cannot lock people in their bedrooms. This is atrocious. Look at [him/her], look at [his/her] room.” The SP said, “Well, how else am I going to get to sleep?” P2 told the SP, “You’ve created a non-therapeutic environment for our individual and you need to get your stuff and you need to leave.” The SP said P2 was “a bitch” and left the facility. · P2 told P4 and P5 to get the cleaning supplies and start to clean the VA’s bedroom. P2 helped the VA with a shower and saw that the rash on his/her skin cleared up. · P2 said s/he believed the VA was locked in in his/her bedroom “for hours” based on the amount of urine and feces was there, and how cold and red the VA’s skin was. P2 said that the kitchen area, which the VA usually went after, did not appear to be disturbed so P2 thought that the VA was confined to the bedroom during the overnight. P4 and P5 provided the following information: · P4 and P5 were scheduled to cross-train at the facility on May 4, 2023. They drove to the facility together and arrived at 7 a.m. They found the exterior door unlocked and when they opened the door, they heard the door chime alert. P4 and P5 heard a “banging” noise, but where not sure what it was or where it was from. · P4 and P5 went into the office to clock-in but the door was locked. They knocked and SP opened the door. They told the SP they were at the facility to train. The SP said it was “a very long night” and went back to bed and slept. P4 and P5 went into the kitchen, sat at the table, and discussed what the noise might be. About two to three minutes later P2 came into the facility. P4 and P5 followed P2 to the VA’s bedroom and saw him/her open the VA’s door. · When P4 and P5 saw the VA, the VA appeared “agitated” and “scared.” There was feces “everywhere” on the VA and the VA had played with it. There was also feces on the bed, walls, light switch, and door handles as if the VA attempted to get out of the bedroom. The SP then came out of the office to the group and said the VA was up all night, did not want to stay in bed, and s/he was “getting into everything.” P2 told the SP to leave and then P2 cleaned the VA while P4 and P5 cleaned the VA’s bedroom. The G and the CM were informed about the incident. The G did not believe the VA fully understood what occurred during the overnight. The CM was not certain to what extend the VA understood. The facility Incident Report noted that when the SP was questioned why the VA was locked in the bedroom, s/he responded that if the VA was not locked in the bedroom, then the SP would never get any sleep. The SP provided the following information: · On May 4, 2023, at 10 p.m., the SP started his/her overnight shift. The VA was awake and over the next several hours was in the living room and watched TV, went to the fridge to get food, drank water, tried to get into the other resident’s bedroom, wanted to shower, wanted to go into the garage, urinated on the bedroom floor, and wanted to leave the facility. The SP encouraged the VA to go to bed multiples times and cleaned up the VA’s urine on the bedroom floor. About 6 a.m. the VA displayed that s/he wanted to go to sleep as s/he lay in bed and wanted the usual routine of wanting to be covered with a blanket and be put to bed. The VA was in his/her bedroom and the SP started the VA’s winddown process and covered him/her with blankets. The SP left the bedroom and closed the door. · The SP believed that another staff person was scheduled to arrive at 6:30 a.m. and was concerned that the door alarm and noise might wake the VA again. The SP opened the exterior door to allow the next staff to come in quietly. The SP was concerned that with the door open the VA might get up and attempt to leave the facility unsupervised. The SP went to the VA’s door and put the key in the knob, “just to make sure I can hear [him/her] if [s/he] would get up,” the keys would jingle. The SP said s/he “had no intention on locking [the VA] in to keep [him/her] in there, it was so I can hear [him/her] go if try to go outside.” The SP was concerned that if the VA went to leave the facility s/he could miss the alarm chime because s/he was exhausted from being awake all night. The SP thought the morning staff should arrive in 30 minutes and wake the SP up to start to help the VA. The SP then went to sleep in the office. · Around 6:30 a.m., the SP was woken by P4 and P5 when they arrived. The SP was not told there would be staff to be trained and figured they were not here to train with him/her. The SP helped them to log into the computer. The SP said the office door was open when they arrived, but P4 and P5 closed the door when they left the office. The SP fell back asleep and was woken at 8 a.m. by P2. · P2 told the SP s/he was supposed to be up at 6:30 a.m. The SP said s/he was aware of this and was up all night with the VA. At the VA’s bedroom door P2 saw the key in the VA’s doorknob, opened it, and saw urine on the floor. The SP tried to say that s/he previously cleaned the earlier urine. P2 told the SP to leave the facility and so s/he left. P2 did not ask about the situation with the door and the keys, and the SP did not have time to explain about how the morning staff did not show for work, the door, and/or the keys before s/he left. The SP denied s/he told the P2 the VA was locked in his/her bedroom because that was the only way the SP was able to sleep. · The SP did not see any risk with the decision to put the key into the doorknob to the VA’s bedroom because the VA was asleep and said, “My intentions were great. I thought I did great.” The SP denied s/he was trained on any overnight protocol or informed there was an option to alert on-call on the overnight if needed. The SP said s/he was not trained on how to handle a situation like this on the overnight. The SP believed s/he handled the situation and did not have a problem that would have required him/her to contact P2. The SP believed s/he did what s/he could to keep the VA inside the facility for the VA’s safety. The SP was not trained to lock the VA in his/her room and had not done this before. The SP said when s/he went to sleep in the office the VA was asleep in his/her room. The SP denied that at any time s/he heard the VA making banging noises from the bedroom. P3 was initially to work the morning of the incident at 6:30 a.m., but the shift was covered by another staff person, who P3 later learned, ran late and did not arrive to the facility on time. P1 state that prior to April 1, 2023, the VA had changes in his/her behavior that the staff persons struggled to work with. The VA had become more aggressive towards others, showed decreased need for sleep, and continued movement through increased pacing and repeatedly leaving the facility without supervision. There were times, VA urinated and defecated on the floor, played with the excrement and attempted to eat it, and ate other non-food items. The VA disrobed and got in and out of the shower repeatedly. The VA’s team attempted to get the VA into hospital or crisis placement and the facility had considered ending services for the VA. P1 was aware P2 arrived at the program, discovered the VA locked in his/her bedroom unable to get out, and the SP was asleep. Conclusion for Allegation One: A. Maltreatment: Information was consistent that on May 4, 2023, in the morning P2, P4, and P5 arrived at the facility and heard a pounding like noise and did not see the VA. P2, P4, and P5 all saw the SP asleep when s/he was to be awake and helping the VA. P2 saw that the VA’s doorknob had a key inserted into the knob in a position that appeared to have locked the door from the outside hallway, which prevented the VA from being able to leave the bedroom. P2, P4, and P5 each saw the VA in his/her bedroom naked, with feces on him/her and spread around the room, and urine on the floor. The VA was “agitated” and “upset” by the situation. P2 helped the VA to the shower and P4 and P5 began to clean the VA’s bedroom. The SP told this investigator that his/her intent was “great,” stated that the VA was sleeping when the door was locked, and denied saying that locking the door was the only way the SP could sleep. However, P2 and the Incident Report each provided information that when the SP was questioned why the VA was locked in the bedroom, the SP responded that if the VA was not locked in the bedroom, then the SP would never get any sleep. Although it was not determined how long the VA had been locked in the room, given that the SP had reason to minimize his/her actions for fear of repercussions and that the condition of the VA and the VA’s bedroom when P2 opened the door, it was likely the VA was locked in his/her bedroom for a significant period of time. In addition, when P2, P4, and P5 each arrived, the VA was banging on the doors, walls, and/or windows, attempting to get out. Therefore, the SP’s actions were not therapeutic conduct and there was a preponderance of the evidence that locking the VA in his/her bedroom was considered the use of any aversive or deprivation procedure, unreasonable confinement, or involuntary seclusion, including the forced separation of the vulnerable adult from other persons against the will of the vulnerable adult or the legal representative of the vulnerable adult; was the use of any aversive or deprivation procedures for persons with developmental disabilities or related conditions not authorized under section 245.825; and was a failure to supply the VA with reasonable and necessary care. It was determined that abuse and neglect occurred (use of any aversive or deprivation procedure, unreasonable confinement, or involuntary seclusion, including the forced separation of the vulnerable adult from other persons against the will of the vulnerable adult or the legal representative of the vulnerable adult; and use of any aversive or deprivation procedures for persons with developmental disabilities or related conditions not authorized under section 245.825; and 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 was trained on the Reporting of Maltreatment of Vulnerable Adults Act and the VA’s program plans. The SP was responsible for maltreatment of the VA. C. Recurring and/or Serious Maltreatment: See Allegation Two Conclusion Part C. Allegation Two: It was reported that previously the VA was found naked outside unsupervised while the SP was asleep. P3 provided the following information: · About four to six months prior to the incident, the VA showed a decreased need for sleep on the overnights and woke every few hours. · The door alarms could be heard in the office and the VA was not able to turn of the alarms on his/her own. · On an unknown date (prior to the incident in allegation one) in early May 2023, about 6:30 a.m., P3 drove P6 to the facility to work his/her shift. P3 was not scheduled to work that day and planned to drop P6 off and leave. When they arrived, they saw the VA outside on the sidewalk without clothes and walking around. P3 also saw the front door to the facility was opened. P3 said the VA would not be able to open a locked door from the inside and believed it was left unlocked. · P3 and P6 got out of the car and the VA “got excited” and ran back into the facility followed by P3 and P6. P6 went to check on the VA and P3 found the SP asleep in the staff office and believed the office door was open. The SP woke and P3 told the SP that the VA was outside naked. The SP said that the door alarm did not go off and that, “Someone must have turned the alarm off.” The SP left to go assist P6 with the VA. P3 walked to the VA’s door and opened and closed it which set off the alarm. P3 was fairly certain s/he also checked the front door alarm, and it was also working. P3 said that the SP or P6 should have documented this incident in the progress notes. (Note: No chart notes were competed for this.) · P3 left the facility, went home, and texted P2 what occurred. P2 let P3 know s/he would take care of it. (Note: P3 did not have a record of when s/he sent the text to P2 and his/her text autodelete and did not go back to the date.) P3 said s/he believed per protocol an incident report was done by P2 to alert the VA’s team. (Note: P3 denied s/he was told this occurred at the time and a report was not completed.) · P3 found the SP asleep past 6:30 a.m. a “handful of times,” but because the residents were also still asleep, s/he “let it slide.” At the direction of a former supervisor, P3 talked with the SP about this, and it improved for a few weeks, then the SP did not get up at 6:30 a.m., but when the residents themselves woke up or when staff persons arrived. P3 did not do any formal correction items with the SP about being asleep when s/he was to be awake. P3 intended on doing a formal corrective action on the SP, but his/her supervisor left the company before they were able to write one. P2 provided the following information: · A few days after the incident in Allegation One, P2 discussed what happened with P3 and that the SP was asleep when s/he should have been up helping the VA. P3 told P2 this occurred “numerous times before” and “had been doing it for a long time. It’s been a constant problem that I reported before.” P3 told P2 that one day s/he arrived at the facility at 8:30 a.m. the VA outside naked. P3 went inside and saw the SP asleep. P2 did not as P3 any further questions. · P2 was not aware what report or documentation was made about when P3 found the VA outside naked and had no additional conversations with the SP about these. · After P2 learned of the allegation, P2 informed P1 about what s/he knew. P1 had no additional information about allegation two. P4 and P5 were unaware of allegation two. The SP provided the following information: · The SP was aware of the VA’s behavior plan due to his/her history of leaving the facility without supervision. The SP initially denied that VA left the facility without his/her supervision while s/he was on shift. When the VA and the SP were outside together the VA might start to walk away from the facility, but if the VA was offered a snack s/he returned. The SP said it was “ordinary” for him/her to “go outside and come right back in” and that lately, it was “a normal thing” for the VA “to pull [his/her] pants down outside.”
· The morning P3 and P6 arrived to the facility to find the VA outside naked the SP was in the office sleeping due to it being an asleep shift. The SP was not aware the VA had left the home. The SP believed the VA had “just got up” and left for “two seconds” because the VA “watches” and was “that quick.” The SP was aware the VA was outside “once they came in” but the SP was not able to recall many details about that day. · The SP denied there were other instances when the VA left the facility without supervision when s/he worked an overnight shift without him/her being aware. Conclusion for Allegation Two: A. Maltreatment: Information was consistent that the VA had a history of leaving the facility unsupervised and therefore, there were alarms on the door. P3 and the SP provided consistent information that on an unknown date (prior to the incident in Allegation One), the VA left the facility unsupervised while the SP was working. P3 and P6 came to the facility and found the VA outside unclothed. The VA returned inside the facility once P3 and P6 arrived. While it is unknown how long the VA was outside, the SP said s/he was unaware the VA was gone because s/he was sleeping in the office at the time since it was an asleep shift. However, the SP told P3 that the alarm did not go off and “someone must have turned it off.” The SP could not recall many details of the incident. Given that the VA had a history of leaving the facility unsupervised and there were alarms to notify staff persons that the VA left, yet the VA was found outside unclothed as the SP slept inside, there was preponderance of the evidence that there was a failure or omission to supply the VA with reasonable and necessary care. It was determined that neglect occurred (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 was trained on the Reporting of Maltreatment of Vulnerable Adults Act and the VA’s program plans. The SP was responsible for maltreatment of the VA. D. 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 abuse and neglect for which the SP was responsible was not serious maltreatment because the VA did not sustain an injury or require the care of a physician as a result of either incident. However, the SP was responsible for recurring maltreatment because the SP was responsible for two incidents of maltreatment of the VA. The SP was disqualified from a direct contact position. Action Taken by Facility: The facility completed an internal review and determined that their 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.
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