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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: 1071598-H_CRS (Home and Community-Based Services-Community Residential Setting) Investigator(s): Anna Parkin 651-431-6225 Suspected Maltreatment Reported: It was reported that a staff person (SP) brought a vulnerable adult (VA) on an outing. During the outing, the SP brought the VA to a store where the VA purchased clothing. The SP purchased alcohol at a store and s/he and the VA consumed the alcohol and then the SP drove the VA. The SP drank alcohol while at a restaurant with the VA. After the incident, the SP did not return the VA’s clothing that the VA had purchased. Date of Incident(s): August 22, 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 9, paragraph (b), clause (1); and subdivision 17, paragraph (a): In the absence of legal authority a person willfully uses, withholds, or disposes of funds or property of a vulnerable adult. 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 October 4, 2023; from documentation at the facility and law enforcement records; and through five interviews conducted with two supervisory staff persons (P1 and P2), a facility staff person (SP), the VA, and the VA’s family member (FM1). The VA was diagnosed with a mild developmental disability and an impulse disorder. The VA was not subject to guardianship and was of legal drinking age. According to the VA’s Risk Assessment Detail, the VA had “limited comprehension” of the value of money. The VA was allowed up to six hours unsupervised time in the community. The VA’s plans did not address alcohol consumption but P1 provided information that the VA generally was allowed up to two alcoholic beverages at a time. The VA provided the following information: · The VA did not remember the date but a few weeks prior to the interview with this investigator, at approximately 1:30 p.m., the VA returned to the facility from work. The VA spoke to the SP who “already smelled like booze.” The VA went to his/her bedroom for a while. At approximately 3 p.m., the VA and the SP left the facility in the SP’s personal vehicle on a previously scheduled outing. · The SP drove the VA to a clothing store, where the VA purchased clothing. The SP then drove the VA to a restaurant. On the way to the restaurant, the SP asked the VA if they could stop along the way and the VA agreed. The SP drove to a liquor store and both the SP and the VA went inside where the SP purchased “five or a couple more than five” small “shooter” bottles (approximately 50 milliliters each) of alcohol. The VA did not know what type of alcohol was inside the bottles but there was a variety and were different colors and labels. · While driving from the liquor store to the restaurant, the SP drank “more than two” of the bottles of alcohol. The VA asked if s/he could smell one of the bottles and then the VA drank it. · Once they got to the restaurant, the VA and the SP each ordered a cocktail. After a while, the VA and the SP each ordered a second cocktail and the VA ordered food. The SP put his/her head down on the table and closed his/her eyes. During this time, the SP was “semi” conscious, s/he asked the VA to go back to the facility and confused the VA with the SP’s family member. The VA drank part of his/her second cocktail and was not sure if the SP drank both of his/her cocktails because the situation was “very traumatic” for the VA. The VA told the SP s/he was going to the bathroom. While in the bathroom, the VA called P1, P2, and FM1, and another facility member (FM2) who did not answer. · The VA went back out to the table to eat his/her food as s/he waited for someone to respond to the calls. The SP’s head was down on the table and his/her eyes were closed during that time. The VA had panic attacks while waiting for someone to respond to him/her so the VA went back to the bathroom and during that time, P2 arrived at the restaurant. P2 then drove the VA back to the facility. P2 provided the following information: · On the day of the incident, at approximately 2 p.m., prior to P2 leaving the facility with another client for a doctor’s appointment, P2 and the SP discussed the SP driving the VA to the store and the restaurant. The SP was “adamant” s/he would only bring the VA to the restaurant and nowhere else and P2 said that was fine. P2 reminded the SP that the VA was allowed up to two alcoholic beverages and that the SP was not allowed any. The SP responded that it was fine because s/he did not drink alcohol. The SP did not appear to have been under the influence of anything at that time. · At approximately 3:30 p.m., P2 received a phone call from an unknown phone number. P2 was with another client at a doctor appointment so s/he did not answer the call. Shortly after, P2 received another phone call so s/he answered and it was FM2 who said that the VA and the SP had stopped at a liquor store and bought alcohol. FM2 then asked P2 to go to the restaurant. P2 dropped off the other client at the facility and went to the restaurant where she saw the SP sitting at a table with half of a cocktail in front of him/her. · P2 asked the SP if the cocktail in front of the SP belonged to him/her, and the SP responded that the VA had ordered it. P2 walked over to the bartender and asked how many cocktails were served to the SP and the bartender responded two. P2 then went to the bathroom and saw the VA “hyperventilating” so P2 comforted the VA. P2 went back out to the table and asked the SP if s/he drank alcohol and the SP denied doing so. The SP was “disheveled,” had a slow reaction, and kept repeatedly asking if s/he could leave. · P2 went outside the restaurant and called P1 for advice. When s/he was outside, P2 went and looked inside the SP’s vehicle in the parking lot. P2 saw a box with approximately four or five little bottles of alcohol and about half of the bottles were empty. P2 also saw a bag from the store that the VA and the SP went to prior to the restaurant. · P2 went back inside to the SP and the SP continued to deny drinking alcohol. The SP asked P2 multiple times if s/he was allowed to leave the restaurant and P2 was unsure how to respond and told the SP what s/he did was “not okay.” P2 told the SP that s/he was suspended from work. P2 returned to the bathroom to assist the VA and during that time, the SP left. · A couple of minutes later, a law enforcement officer (LEO) arrived to the restaurant and P2 provided the LEO with the SP’s information. The LEO left and approximately five minutes later, called P2 and said s/he went to the SP’s house and spoke to the SP who SP denied everything. The SP had glossy eyes but law enforcement was not able to take additional action. · The following day, the SP came to the facility for his/her work shift and began working, including making breakfast. P2 arrived at the facility and told the SP that s/he was suspended because of the investigation and the SP appeared “confused.” P2 asked the SP to go to his/her personal vehicle and get the VA’s bag of clothing s/he had purchase the day prior. The SP said s/he was unable to find the clothing and then s/he left the facility. P1 provided the following information: · In the afternoon of August 22, 2023, while at a facility event, P1 had multiple missed calls. When P1 returned P2’s phone call, P2 told P1 about the incident and asked what to do. P1 told P2 to go to the restaurant and pick up the VA. P1 was on the phone when P2 arrived at the restaurant and the VA was in the bathroom “hyperventilating” and P2 calmed the VA. P2 then went and asked the bartender how much alcohol the SP drank and the bartender responded that s/he served the SP two cocktails. P2 then went and spoke to the SP who repeatedly said something along the lines of no one told the SP s/he was not allowed to take the VA to a bar. P2 asked the SP if s/he drank alcohol and the SP denied doing so. · P2 asked P1 about driving the VA back to the facility and P1 told P2 s/he had to and the SP was not allowed to do so. P2 told the SP s/he was not allowed to drive the VA back to the facility and then P2 and the VA left the restaurant. · On a later day, the VA showed P1 the receipt from the clothes s/he had purchased with the SP and P1 brought the VA to the store and repurchased the items for which the facility paid. According to the law enforcement report, on August 22, 2023, at 4:29 p.m., the LEO arrived at the restaurant and was met by P2, who said that the bartender told P2 that the SP had two alcoholic drinks. P2 also saw an open package of “shooter shots” inside the SP’s vehicle while in the parking lot. P2 said that staff persons were not allowed to consume alcohol while working. The LEO then went to the SP’s house and saw an open package of “Burst 100 proof” one-ounce bottles inside the SP’s vehicle that was parked in the driveway. The LEO spoke to the SP and noted that the SP’s eyes were “glossy” but the SP denied drinking any alcohol. The SP refused to submit to a breath test. The LEO then left the SP’s house. This investigator initially spoke to the SP via telephone who said s/he would not take responsibility for “something I was not trained on.” A phone interview was then scheduled on a later date and time. When this investigator called the SP at the predetermined date and time, the SP did not answer. Subsequent phone calls and messages to the SP were not returned. FM1 stated on the day of the incident, the VA called FM1 and said s/he was at a restaurant with the SP and was in the bathroom scared. The VA also told FM1 that s/he and the SP had been driving around and the SP drank shots of alcohol while driving prior to going to the restaurant. Once at the restaurant, the VA and the SP drank cocktails and the SP was intoxicated. FM1 told the VA s/he was in a “safe place” and asked for supervisory staff persons’ phone numbers. The VA then gave FM1 P1 and P2 phone numbers, and FM1 tried calling both but neither answered. FM1 then called FM2 and FM2 was able to contact P2 and notify him/her of that situation. Receipts provided by the facility showed that on August 22, 2023, the VA purchased six items of clothing totaling $228.90. According to the facility’s Drug and Alcohol Policy, staff persons were prohibited from consuming alcohol while directly responsible for clients or while on company property. The facility’s personnel files and training records documented that staff persons interviewed for this investigation, including the SP, were each trained on the VA’s plans, the facility’s Drug and Alcohol Policy, and the Reporting of Maltreatment of Vulnerable Adults Act prior to the incident. Conclusion: A. Maltreatment: Regarding drinking alcohol: The VA provided consistent information to this investigator, P1, P2, and FM1 that on August 22, 2023, the SP drank at least two small bottles of alcohol while driving the VA on an outing and approximately two cocktails while at a restaurant, which was a violation of the facility’s Drug and Alcohol Policy. Although the SP denied having drank alcohol to P2 and the LEO, both P2 and the LEO saw empty bottles of alcohol in the SP’s car which corroborated the VA’s account. The SP consuming alcohol while driving the VA placed the VA at significant risk of harm. Therefore, there was a preponderance of the evidence that there was a failure to provide the VA with reasonable and necessary care and services. 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). Regarding not returning the VA’s clothing: Receipts provided by the facility showed that the VA purchased $228.90 worth of items while on an outing with the SP. When P2 was at the restaurant, s/he saw a bag in the SP’s personal vehicle from the store that the VA said they had gone. In addition, the VA had the receipt for the items purchased. The SP then left the restaurant and did not return the items to the VA prior to leaving and the next day the SP told P2 that the items were not in his/her car. Given that the VA’s items were left in the SP’s car and the SP did not return the items, there was a preponderance of the evidence that the SP withheld the VA’s property. It was determined that financial exploitation occurred (In the absence of legal authority a person willfully uses, withholds, or disposes of funds or property of a vulnerable adult). 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 responsible for the care of the VA at the time of the incident and was trained on the VA’s plans, the facility’s Drug and Alcohol Policy, and the Reporting of Maltreatment of Vulnerable Adults Act. 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 neglect for which the SP was responsible was not serious because the VA did not sustain a serious injury that required the care of a physician. However, it was “recurring” because the SP was found responsible for neglect and financial exploitation. Action Taken by Facility: The facility completed an internal review and determined that policies and procedures were adequate but not followed. The SP no longer worked at the facility. The facility reimbursed the VA for the clothing that the SP did not return. 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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