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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: 802564-SUD (Substance Use Disorder) Investigator(s): Anna Parkin 651-431-6225 Suspected Maltreatment Reported: It was reported that a staff person (SP) and a vulnerable adult (VA) had sexual intercourse multiple times. Date of Incident(s): November 9, 2022 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 (c): Any sexual contact or penetration between a facility staff person or a person providing services in the facility and a resident, patient, or client of that facility. Sexual contact is defined by Minnesota Statutes, section 609.341, as the intentional touching of the intimate parts with sexual or aggressive intent. 'Intimate parts' includes the primary genital area, groin, inner thigh, buttocks, and breast. Summary of Findings: Pertinent information was obtained during a site visit conducted on November 21, 2022; from documentation at the facility, a forensic medical exam, and law enforcement records; and through five interviews conducted with a supervisory staff person (P1), two facility staff persons (P2 and the SP), the VA, and a registered nurse (RN) who assisted with the sexual assault exam. The VA was also interviewed by law enforcement and that information was included below. The VA was diagnosed with substance use disorder. According to the VA’s Comprehensive Assessment, the VA was at the facility because it was a requirement of his/her parole and attended the facility from November 1 to 9, 2022, when s/he was arrested at the facility for a parole violation. The SP worked at the facility from October 31 to November 10, 2022. The upper level of the facility contained three staff offices, including the SP’s, and a group meeting area. P2 provided the following information: · On November 2, 2022, the VA came to P2 and said that the SP gave the VA condoms. The VA was in the SP’s office and the SP “rubbed” against the VA, which made him/her “uncomfortable.” P2 and the VA went to P1’s office and the VA told P1 consistent information. P2 planned to follow up but the SP was out sick for the following few days. · In the evening of November 9, 2022, the VA told P2 and P1 that earlier that day, s/he had sexual intercourse with the SP two or three times. The VA said that the SP asked the VA to come to the SP’s office where they ended up having sexual intercourse. While the VA told P1 and P2 about the incident, law enforcement showed up to arrest the VA for a parole violation. P1 stated in the morning of November 8, 2022, s/he spoke to the SP about the condoms. The SP said at the previous facility that the SP worked at, staff persons handed out condoms to the clients. The SP had extra left over and brought them to the facility and did not think it was a concern. P1 told the SP that the facility does not give condoms to clients. P1 stated there was no reason why the VA should have been in the SP’s office. On November 10, 2022, P1 spoke to the SP and asked if s/he had sexual intercourse with the VA and the SP denied “all of it.” The VA provided the following consistent information to the RN during the forensic exam, to a law enforcement officer, and to this investigator: · On a previous occasion, the SP gave the VA multiple condoms and “rubbed” against the VA. The VA “immediately” went and told P2 and P1 about the incident. · On November 9, 2022, the VA saw the SP in the cafeteria and the SP was “flirty” with the VA. The VA wanted to “smooth things over” with the SP so they went to the SP’s office. · While in the SP’s office, the VA told the SP that s/he told P1 and P2 about the condoms. The SP then began touching the VA’s shoulders and chest. The VA and the SP kissed and the VA touched the SP’s genitals with his/her hand. The VA then had to leave for group and the SP told the VA to come back to his/her office afterwards and the VA agreed. The VA returned two more times to the SP’s office where they had sexual intercourse. Later that day, the VA told P1 and P2 about the sexual intercourse. The SP provided the following information to this investigator and a law enforcement officer (LEO): · The SP had extra condoms from his/her previous employment at another licensed facility and they were in a box that s/he unpacked when starting at the facility. On October 31, 2022, while multiple clients including the vulnerable adult assisted the SP with organizing his/her office and unpacking boxes, a client found the condoms. The SP offered the condoms to the clients and the VA took them. (Note: The VA did not attend the facility on October 31, 2022.) · On November 9, 2022, the VA and two other clients came to the SP’s office and had a conversation about their lives. When they were done talking, the VA asked the SP if s/he could give the SP a hug and the SP agreed. After that, the VA started to follow the SP around the facility. At one point, the VA was in the SP’s office and the VA grabbed the SP’s buttocks with his/her hand. The SP told the VA it was inappropriate and that s/he was going to “report” the VA. The VA then threatened to report the SP and eventually the SP left his/her office. · At the end of the workday, P1 and P2 called the SP into an office and explained that the SP was inappropriate, the VA said s/he had sexual intercourse with the SP, and the SP was suspended pending the internal investigation. The SP denied having sexual intercourse with the VA. According to the Bureau of Criminal Apprehension lab report, items 1A through 1H were collected and the results for 1C, 1F, 1G, and 1H showed that the SP was a “possible contributor to the mixture” of DNA swabbed from the VA and was between 120 million to 100 billion times more likely than an unknown person. This indicated a “very strong support” that the SP was a source of the DNA. The LEO stated that the 1C, 1F, 1G were swabs from the VA’s genitals and 1H was a swab from the VA’s neck. According to the facility’s Code of Business Conduct and Ethics and Personal Relationships policies, staff persons did not have a personal, sexual, business, or social relationship with a client within two years after the client terminates services. Facility documentation showed that staff persons interviewed for this investigation, including the SP, received training on the VA’s plans, the facility’s Code of Business Conduct and Ethics policy, Personal Relationships policy, and on the Reporting of Maltreatment of Vulnerable Adults Act prior to the incident. Conclusion: A. Maltreatment: The VA provided consistent information to this investigator, the LEO, the RN that completed the sexual abuse exam, that on November 9, 2022, the VA and the SP had sexual intercourse multiple times while in the SP’s office. Although the SP denied sexual intercourse with the VA, given that the lab results showed that the SP was a “possible contributor to the mixture” of DNA swabbed from the VA and was between 120 million to 100 billion times more likely than an unknown person, which indicated a “very strong support” that the SP was a source of the DNA found on the VA’s genitals and neck, there was a preponderance of the evidence that the SP had sexual contact with the VA. It was determined that sexual abuse occurred (any sexual contact or penetration between a facility staff person or a person providing services in the facility and a resident, patient, or client of that facility. Sexual contact is defined by Minnesota Statutes, section 609.341, as the intentional touching of the intimate parts with sexual or aggressive intent. 'Intimate parts' includes the primary genital area, groin, inner thigh, buttocks, and breast). 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 VA’s plans, the facility’s Code of Business Conduct and Ethics policy, Personal Relationships policy, and on the Reporting of Maltreatment of Vulnerable Adults Act prior to the incident. 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” and whether substantiated maltreatment by a facility meets the statutory criteria to be determined as “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 sexual abuse for which the SP was responsible was serious and recurring because the SP had sexual contact with the VA multiple times. Action Taken by Facility: The facility completed an internal review and determined that policies and procedures were adequate and followed by the facility after the incident. 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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