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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: 1070585-H_CRS (Home and Community-Based Services-Community Residential Setting) Investigator(s): Jason Pehler 651-431-4830 Suspected Maltreatment Reported: It was reported a staff person (SP) controlled the VA’s food portions, called the VA a thief, and caused increased aggression between the VA and another facility resident (R). Date of Incident(s): Multiple incidents on unknown dates Nature of Alleged Maltreatment Pursuant to Minnesota Statutes, section 626.557, subdivision 9c, paragraph (b), and Minnesota Statutes, section 626.5572, subdivision 15, and subdivision 2, paragraph (b), clause (2); 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: the use of repeated or malicious oral, written or gestured language toward a vulnerable adult or the treatment of a vulnerable adult which would be considered by a reasonable person to be disparaging, derogatory, humiliating, harassing, or threatening. 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 September 21, 2022; from documentation at the facility; and through five interviews conducted with facility staff persons (P1 and P2), a facility supervisor (P3), the VA, and the SP. Facility documentation showed the VA enjoyed watching sports, going on community outings such as to movies, and playing games. The VA was described to have a “great personality,” and enjoyed telling jokes. The VA liked when staff persons treated him/her with respect and did not like to be told what to do. The VA was diagnosed with schizophrenia, mixed personality disorder with features of antisocial, explosive and narcissistic personality disorder, and depression. The VA also had multiple medical health diagnosis including, but not limited to Marfan syndrome (a genetic connective tissue disorder), provisional polyneuropathy (nerve disorder), hyperaldosteronism (over production of the hormone aldosterone), acid reflux, and hypertension. The VA utilized multiple adaptive equipment including a walker, shower chair, and sit to stand. The VA was on a prescribed diet and had lost almost 400 pounds. The diet included low fat/low sodium, sugar free, and mechanical soft solids. The VA obsessed over food on a daily basis but was trying to make healthier food related choices. The VA provided the following information: · The VA said s/he did not get along with the SP, and the SP was “always arguing, threatening, yelling, and cussing” at the VA. The SP would say things like s/he “would not take this bullshit” from the VA. The SP did not use any derogatory names, but would make comments about the VA being incontinent. · The VA said the SP would watch other staff persons provide food to the VA and the SP would tell other staff persons that the VA was being provided too much food. The VA said the SP was mean to the other staff persons, and the SP would “get on” the VA about his/her food portion control. The SP would not explain why the VA could not have a food item, whereas other staff persons explained why a food choice was not within the VA’s diet. · The VA did not make any disclosures of the SP directly calling the VA a thief, but said the SP “kept putting it in” the R’s head that the VA was a thief. The VA said the issue between him/herself, and the R started when the VA took the R’s snacks without the R’s knowledge. The VA did not say the SP directly instigated verbal or physical altercations between the VA and the R. The VA said the R would threaten physical harm toward the VA and the R said s/he would call law enforcement on the VA. The VA provided multiple examples of the R verbally aggressing and threatening the VA without mentioning the SP’s involvement in the situation. · The VA felt s/he was treated differently by the SP than the SP treated other residents. Then added that the SP would listen to other residents’ frustration but would not listen to the VA when s/he was upset. The VA said s/he did not get emotionally upset with the SP due to the issue. P1 provided the following information: · P1 was unsure why the SP treated the VA different than other residents at the facility, but added that the VA did act out toward the SP. Furthermore, the R admitted to being “racist” and directed statements toward the VA. The relationship between the VA and the R improved once the SP was no longer at the facility. · P1 said the SP’s interactions with the VA and the R caused increased tension and verbal aggression between the VA and the R. P1 believed this was caused by the SP sharing information with the R that s/he “probably shouldn’t know,” and the SP “kind of hyped up” the R to go against the VA. P1 heard the SP tell the R that the VA went into the R’s room and took the R’s food but P1 stated that the VA took the food from a garbage can. P1 also said that “maybe” the SP witnessed that, but P1 had not. Multiple staff persons, including P1, told the SP to not share that information with the R and told the SP to “stop causing issues” between the VA and the R. · P1 said the SP called the VA a “thief,” and the SP was told by other staff persons not to “pick on” the VA. Additionally, P1 said that the R called the VA a “thief,” and the R said, “That is what [the SP] said.” P1 said that a few weeks after this, the VA “broke down” and cried. However, no one, including the VA, was able to provide information which showed the VA’s reaction correlated with being called a thief. · P1 said there was an incident in which the SP wrote the R’s initials on the VA’s shirt because the SP thought the shirt belonged to the R and not the VA. This caused further tension between the VA and the R. Other staff persons thought the shirt belonged to the VA. · P1 said the SP would watch other staff persons provide food to the VA and micromanage the VA’s meal plan. The SP would sit and watch the VA’s plate and would tell staff persons they should not give the VA extra food. The SP would make comments if the VA’s food was “one gram” too much. P1 said the VA had a dietary restriction, and if a staff person brought cookies to the facility for everyone the SP would voice issue with the VA being provided a cookie due to his diet. P1 described the SP as “tedious,” and would make comments about the VA’s food so the VA could hear it. P2 provided the following information: · P2 spoke in generalities about the incidents/interactions s/he and other staff persons had with the SP, as well as interactions between the SP, the VA, and the R. P2 provided limited details related to the incidents. · P2 said the SP “yelled” in the VA’s face about the VA’s food program. P2 said the SP had "issues” with the VA being provided more food than the VA’s diet plan allowed, and P2 did not believe it was the “biggest deal.” (Note: The VA’s diet stated that the VA could have extra protein and vegetables if s/he wanted to.) · P2 said the SP was in the VA’s face and called him/her a “thief,” because there was an issue with a shirt that the SP believed was the R’s shirt, however all the other staff persons believed the shirt was the VA’s. P2 attempted to resolve the issue and met with the VA, the R, and the SP. P2 did not find any markings on the shirt that indicated it was the VA’s or the R’s, however the SP believed the shirt was the R’s, and the SP was “adamant” the VA had “stole” the shirt. Thereafter, the SP listed off other items the VA had “stolen,” and the interaction led to verbal altercations between the VA and the R. P2 believed the SP provided false information to the R and would continue to bring up the issue and not allow the situation to be resolved. · P2 said the SP antagonized the VA while having conversations with the R. An example of this was P2 heard a conversation between the SP and the R while the VA was in the kitchen and could hear the SP and the R. The R expressed s/he was hungry, but was concerned the VA was in the kitchen. The SP said the VA would not ask for the food, or “steal” the food. P2 believed the statement put “thoughts” into the R’s head and continued the issue between the VA and the R. P2 said the SP would use certain phrasing or speaking loud enough for the VA to hear. P2 did not believe the interaction and issues were “necessary”. The VA reacted by hanging his/her head, and said things such as, “No one likes [him/her],” “Everyone one is against [him/her],” and the VA “doesn’t feel safe.” P3 provided the following information: · P3 said there were multiple on-going issues with interpersonal relationships between the SP, the VA, and others at the facility. The issues stemmed from the SP’s communication, and conduct. The SP also engaged in interpersonal issues with other staff persons at the facility, and shared information with the R which caused issues between the VA and the R. P3 said the SP did not direct swear words at the VA but made statements that were inappropriate about other staff persons. · P3 said “a lot” of staff persons had brought forward concerns that the SP’s approach while interacting with the VA was not the best, and other staff persons observed the interactions to be “demeaning” and/or “disrespectful.” P3 said the SP’s approach was not positive, s/he did not use a good “tone” in conversations, and the SP’s approach was described as “rude” and “nagging.” Staff persons believed the SP made demeaning statements about the VA to the R, as well as to other staff persons about the VA. · P3 said the VA would “cuss” out the SP, as s/he became upset with how the SP was treating the VA. P3 said there were a couple instances, within a few months, in which the VA cried while discussing his/her frustrations with interacting with the SP. · P3 said the SP engaged in power struggles with the VA while attempting to control the VA’s diet. On at least one occasion the VA convinced a staff person to get him/her more diet soda. The SP reacted negatively toward the staff person and raised his/her voice about the situation. P3 said s/he did not witness the incident but was informed of the situation by a staff person. P3 said there was also information the VA would try and explain his/her requests for more food/drink, but the SP would react by saying, “No, no, no,” and “I don’t want to hear it.” The SP also interjected him/herself into situations if the VA requested additional food, whereas other staff persons would seek alternative options that would be available for the VA per diet. · P3 said there was an on-going issue with a t-shirt after the SP wrote the R’s initials on the VA’s shirt. The incident continuously caused issues between the SP, the VA, the R, and other staff persons. P3 said a lot of the issues between the VA and the R have not occurred since the SP was no longer at the facility. · P3 said the R had left snacks in an area the VA had access, and the VA had taken the snacks without the R’s knowledge. Staff persons were aware of the incident, and the snacks were replaced. P3 said the SP told the R about the incident, and brought up the issue multiple times, thus creating issues between the VA and the R. There were also instances which in the R would throw away snacks without fully eating the item, the VA would take the item off the top of the garbage can and eat the remainder of the snack. P3 said the R did not need to know about the snacks being taken from the garbage can, and the SP bringing up the incident multiple times created a “rift” between the VA and the R. P3 said the SP did not use any racial slurs or name calling, however the R had increased verbal aggression towards the VA and directed racial slurs toward the VA. · The facility started to provide “coaching” with the SP regarding the incidents, but the SP was placed on leave thereafter. The SP had previously been provided training due to a previous incident with refusing to take the VA on an activity, and raising his/her voice toward the VA. P1, P2, and P3 stated concerns that the SP's actions towards the VA (and other staff persons) could be associated with those persons’ race. However, there was no specific information regarding incidents of the SP making racial statements. The SP provided the following information:
· The SP said s/he tried to follow the VA’s food portion and diet restriction to the best of his/her ability. The SP would attempt to have a conversation with other staff persons about the importance of following the VA’s diet. The SP denied yelling at the VA or anyone else about the food that was provided to the VA. The SP said it was important to follow the VA’s diet and the VA had lost a significant amount of weight, and s/he tried his/her best to support the VA. · The SP denied calling the VA a thief, or any other names. The SP said s/he did ask if the VA had taken a shirt that belong to the R, but did not make any derogatory statements toward the VA. The SP denied his/her actions or interactions were racial motivated. · The SP said the R and the VA did not get along but did not feel like s/he provoked the R and did not try to instigate issues between the VA and the R. Relevant Rules and/or Statutes: Minnesota Statutes section 245D.04, subdivision 3, paragraph (a), clause (6) states that a person’s protection related rights include the right to be treated with courtesy and respect. Conclusion: A. Maltreatment: It was reported that the SP controlled the VA’s food portions, called the VA a thief, and caused increased aggression between the VA and the R. The VA said s/he did not get along with the SP and the SP was “always arguing, threatening, yelling, and cussing” at the VA. The VA said the SP “kept putting it in” the R’s head that the VA was a thief, but the VA did not make any disclosures regarding the SP directly calling the VA a thief. The VA said the SP would “get on” the VA about his/her food portion control, and would not explain why the VA could not have a food item. The VA felt s/he was treated differently by the SP than the SP treated other residents. P1, P2, and P3 provided similar information that the SP and the VA has issues with their relationship and that the SP strained the relationship between the R and the VA. P1 and P2 said the SP called the VA a “thief” over an issue with a shirt that the SP thought was the R’s, but others thought it was the VA’s. P1, P2, and P3 each provided similar information that the SP became upset when the VA’s food program was not followed. P1 stated that the SP “treated” the VA different than other residents. P2 stated that the SP “yelled” in the VA’s face about the VA’s food program. P3 said “a lot” of staff persons had brought forward concerns that the SP’s approach while interacting with the VA was not the best, and other staff persons observed the interactions to be “demeaning” and/or “disrespectful.” P3 said the SP’s approach was not positive, s/he did not use a good “tone” in conversations, and the SP’s approach was described as “rude” and “nagging.” Staff persons believed the SP made demeaning statements about the VA to the R, as well as to other staff persons about the VA. The SP said s/he tried to follow the VA’s diet to the best of his/her ability, and the SP denied yelling at the VA or anyone else about the food that was provided to the VA. The SP denied calling the VA a thief, or any other names. The SP said s/he did ask if the VA had taken a shirt that belong to the R, but did not make any derogatory statements to the VA. The SP said the R and the VA did not get along, but s/he did not feel like s/he provoked the R toward the VA and did not try and instigate issues between the VA and the R. Regarding Neglect: Although the SP closely monitored the VA’s food intake and did not always give the VA reasons to why the VA could not have certain items, given that the VA was on a special diet plan, that the SP stated s/he tried to follow the diet plan to the best of his/her ability, and that there was no information that the VA did not eat enough food, there was not a preponderance of the evidence whether the SP failed to provide the VA with reasonable and necessary care and services. It was not determined whether 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). Regarding Emotional Abuse Even though the SP denied calling the VA a thief, information showed that P1 and P2 both heard the SP called the VA a “thief” which was behavior that was inconsistent with the standard of a professional caregiver in a facility licensed by the Department of Human Services and a violation of Minnesota Statutes section 245D.04, subdivision 3, paragraph (a), clause (6). In addition, given that the VA said the SP was “always arguing, threatening, yelling, and cussing” and made comments about the VA’s incontinence, that P1, P2, and P3 each provided examples of concerns they had with the SP’s treatment of the VA, and that P3 stated the SP’s approach was “demeaning” and “disrespectful” toward the VA, there was a preponderance of the evidence that the SP’s conduct represented a pattern of behavior and treatment of the VA which could be reasonable expected to produce emotional distress. It was determined that emotional abuse occurred (conduct which is not an accident or therapeutic conduct which produces or could reasonably be expected to produce physical pain or injury or emotional distress including, but not limited to: the use of repeated or malicious oral, written or gestured language toward a vulnerable adult or the treatment of a vulnerable adult which would be considered by a reasonable person to be disparaging, derogatory, humiliating, harassing, or threatening). B. Responsibility pursuant to Minnesota Statutes, section 626.557, subdivision 9c, paragraph (c): When determining whether the facility or individual is the responsible party for substantiated maltreatment or whether both the facility and the individual are responsible for substantiated maltreatment, the lead agency shall consider at least the following mitigating factors: (1) whether the actions of the facility or the individual caregivers were in accordance with, and followed the terms of, an erroneous physician order, prescription, resident care plan, or directive. This is not a mitigating factor when the facility or caregiver is responsible for the issuance of the erroneous order, prescription, plan, or directive or knows or should have known of the errors and took no reasonable measures to correct the defect before administering care; (2) the comparative responsibility between the facility, other caregivers, and requirements placed upon the employee, including but not limited to, the facility’s compliance with related regulatory standards and factors such as the adequacy of facility policies and procedures, the adequacy of facility training, the adequacy of an individual’s participation in the training, the adequacy of caregiver supervision, the adequacy of facility staffing levels, and a consideration of the scope of the individual employee’s authority; and (3) whether the facility or individual followed professional standards in exercising professional judgment. The SP was trained on the Reporting of Maltreatment of Vulnerable Adults Act, the facility’s policy and procedures, and the VA’s specific programming. 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 abuse for which the SP was responsible was not serious maltreatment because it did not meet the definition and was not recurring maltreatment because the SP’s behavior was considered a pattern of behavior. Action Taken by Facility: The facility completed an internal review and determined the facility’s policies and procedures were adequate, but not followed. The SP no longer worked with the VA and was provided training. Action Taken by Department of Human Services, Office of Inspector General: A Correction Order was not issued to the facility for the violation outlined in this report because the facility took corrective action. 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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