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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: 1071974-H_CRS (Home and Community-Based Services-Community Residential Setting) Investigator(s): Carla Harvieux 651-431-6616 Suspected Maltreatment Reported: It was reported that a staff person (SP) kissed a vulnerable adult (VA) on his/her lips on a community outing. Date of Incident(s): July 17, 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 2, paragraph (c); and subdivision 17, paragraph (a): 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. 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 July 25, 2023; from documentation at the facility; and through interviews conducted with the VA, facility staff persons (P1 and the SP), and the VA. Facility documentation showed that the VA was diagnosed with a developmental disability, cerebral palsy, and spinal stenosis, and used a wheelchair for mobility. A cervical collar was used to limit the movement of the VA’s neck and s/he required assistance from staff persons to complete most activities of daily living. The VA’s speech might be difficult to understand, and s/he had a history of confusing the attention staff persons gave him/her when assisting him/her, possibly forming fantasies about them, and reading more into situations than was “really there.” Staff persons were to discuss appropriate relationships with the VA and encourage him/her to refrain from developing feelings for staff persons or making inappropriate comments to them. The VA was vulnerable to all forms of maltreatment. Going for walks when the weather was nice and playing games on a tablet computer were activities that the VA enjoyed. Facility documentation, interviews with this investigator, and the facility’s Internal Review, provided the following: P1 said that on July 17, 2023, s/he, P2, P3, P4, P5, and the SP, were at a bowling alley with the VA and several other individuals when P1 saw the SP kiss the VA on the “mouth” as the group was preparing to leave the bowling alley. P1 was next to the VA and the SP when the kiss occurred and described the kiss as a quick closed mouthed kiss on the lips. At the facility on dates prior to the outing that P1 could not recall, s/he saw the SP kiss the VA on the forehead and give the VA a side hug. P1 had not seen the SP kiss the VA on the mouth before but the SP “favored” the VA and blew “air” kisses to him/her. The VA loved attention according to P1 and staff persons usually gave him/her a side hug or an air kiss. This investigator met the VA, but s/he did not provide information regarding the kiss during the interview. However, in the Internal Review, the VA said that the SP kissed him/her on the lips and on the cheek. The kiss made the VA happy, but s/he was concerned and did not want the SP to get in trouble. P2 stated that s/he was at the bowling alley and heard about the incident from P1 but did not witness it him/herself. At the outing, P2 “saw a [lady/gentleman]” greet the VA by possibly rubbing the VA’s back a little, but it was not inappropriate. P2 added that s/he had not seen any staff persons kiss the VA on the cheek or forehead. The SP said that s/he was at the bowling alley with the VA, other individuals, and staff persons, for a “normal bowling night” and confirmed that s/he gave the VA a “quick kiss” on the cheek. According to the SP, other staff persons whose identities s/he could not recall, had kissed the VA on the lips before, but the SP only kissed the VA on his/her cheek. The SP thought that his/her actions had been exaggerated by another staff person, specifically P1, because P1 and others were “out to get” the SP because they were jealous of him/her. The SP sometimes received gift cards as bonuses from the facility to recognize his/her willingness to work shifts when P1 and others did not come to their scheduled shifts and P1 had been unhappy and upset because s/he did not receive gift cards. The SP thought that s/he was told that kissing an individual on the hand or cheek was okay, but s/he could not recall who told him/her that and added that s/he would “never” kiss an individual on the lips. P3, P4, and P5 were also at the community outing and provided consistent information in the Internal Review that they did not witness the SP kiss the VA at the outing. A supervisory staff person (P6) was notified of P1’s concerns on the date of the incident, and the VA and the staff persons were quickly interviewed about the allegations in this report. The SP was suspended pending the outcome of the facility’s Internal Review and s/he had no contact with the VA after the incident. Personnel files showed that the facility trained its staff persons on the Reporting of Maltreatment of Vulnerable Adults Act, the facility’s policies and procedures, and the VA’s plans of care prior to July of 2023. The SP was trained on the facility’s policies and procedures between July of 2022, and July of 2023, and s/he had a “refresher” on the Reporting of Maltreatment of Vulnerable Adults Act on July 9, 2023. Relevant Statues: Minnesota Statutes, section 245D.07, subdivision 1, states that the license holder must provide services as assigned in the support plan. Conclusion: The VA was diagnosed with a developmental disability and cerebral palsy and had a history of confusing the efforts of others to assist him/her, then forming a “fantasy,” about them or reading more into situations than was there. The VA might develop feelings for others or make inappropriate comments to them, and staff persons were to redirect the VA if that happened. P1 said that on July 17, 2023, the SP gave the VA a quick closed mouthed kiss on the lips during a community outing. The SP had previously kissed the VA on the forehead and given him/her side hugs, had “favored” the VA, and blown “air kisses” to him/her. The VA provided information in the Internal Review that the SP kissed him/her on the lips and cheek at the outing, which made him/her feel happy. P2 heard about the kiss from P1, but did not witness it and P3, P4, and P5, who were also at the outing, said that they did not see the kiss. The SP said that s/he gave the VA a “quick kiss” on the cheek and thought that his/her actions had been exaggerated by others out of jealousy because the SP received gift cards from the facility in recognition of his/her work and they did not. The SP thought that kissing an individual on the hand or cheek was okay, but s/he would “never” kiss an individual on the lips. Regarding sexual abuse: Although P1 said that the SP kissed the VA’s lips and cheek, and the SP acknowledged that s/he kissed the VA on the cheek, given that kissing the VA on his/her cheek or lips did not meet the definition of sexual abuse, there was a preponderance of the evidence that sexual abuse did not occur. It was determined that sexual abuse did not occur (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). Regarding neglect: Information was consistent from P1 and the VA that the SP kissed the VA on the cheek and lips. However, the SP said that s/he kissed the VA’s cheek, which was a violation of Minnesota Statutes, section 245D.07, subdivision 1 and the standards of a professional caregiver in a DHS licensed program, the facility’s policies, and procedures, and was inconsistent with the VA’s plans. However, P2, P3, P4, and P5 were also at the community outing and did not see the SP kiss the VA. Given this, and that the VA had a history of confusing the actions of staff persons and reading things into situations, there was a not a preponderance of the evidence whether there was a failure to provide the VA with care and supervision that was reasonable and necessary to obtain or maintain the VA’s health and safety. 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). Action Taken by Facility: The facility completed an Internal Review which determined that its policies and procedures were adequate but were not followed. Staff persons were retrained on the facility’s policies and procedures and the SP was no longer employed at the facility when this report was written. Action Taken by Department of Human Services, Office of Inspector General: Given that the facility took immediate corrective action, the facility was not issued a correction order for the violation outlined in this report.
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