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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: 1070007-H_CRS (Home and Community-Based Services-Community Residential Setting) Investigator(s): Deb Neubauer-Hoffman 651-431-6567 Suspected Maltreatment Reported: It was reported that a staff person (SP) forced a vulnerable adult (VA) to have sex with the SP during the overnight shifts. Date of Incident(s): June 27, 2023, and unknown dates prior. 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 for this investigation was obtained remotely, including documentation from the facility, law enforcement records, and medical records; and through five interviews conducted with three facility staff persons (P2-P4), a case manager (CM), and a law enforcement officer (LEO2). Given that the VA was interviewed by law enforcement and participated in a forensic interview, this investigator did not meet or interview the VA. A letter requesting an interview with this investigator was sent to the SP while s/he was in a Beltrami County jail. The SP left a voicemail message for this investigator to contact his/her public defender (PD). The PD was contacted and on September 20, 2023, s/he stated s/he would “reply shortly” after talking to the SP. At the conclusion of the investigation, neither the PD nor the SP responded to the request for an interview. The VA liked stuffed animals and baby dolls. The VA’s diagnoses included mild intellectual disability and anxiety disorder. The VA was not subject to guardianship. The VA resided at the facility with one housemate. The VA’s plans provided the following information: · The VA’s Coordinated Service and Support Plan (CSSP) Addendum Summary stated that she required 24-hour care with staff persons on the premises. The VA needed assistance with activities of daily living including personal hygiene and medication administration. The VA was accompanied in the community to ensure her safety. The VA was prescribed multiple medications for anxiety. · The VA’s Individual Abuse Prevention Plan (IAPP) stated that she was at risk for sexual abuse “as she does not understand sexuality and is likely to seek or cooperate in an abusive situation.” · The VA’s Intensive Support Self-Management Assessment (SMA) stated that she did not know her address or phone number and would not be able to tell someone who to call if she needed help in the community. The Beltrami County Sheriff’s Office and/or a forensic interview with the VA provided the following information: · A sheriff’s office Incident Report stated that shortly after noon on June 28, 2023, a law enforcement officer (LEO1) arrived at a local emergency room regarding a reported sexual assault of the VA. A sexual assault exam was completed. A facility staff person (P2) was present with the VA and told LEO1 that the VA reported to a morning staff person (P1) that the SP put his penis in the VA’s vagina. P2 also stated that when s/he heard about the report, s/he contacted the SP and told him that he was on leave pending the outcome of the allegations. · LEO1 spoke with the VA who stated the prior night (June 27, 2023) around 10 p.m., the SP and the VA watched TV in the living room. While on a couch, the SP put his penis in the VA’s vagina and touched her breasts. The following morning, the VA woke up “feeling sad” and said her vagina hurt. The VA did not provide additional details other than that she told P1 about the incident that morning (June 28, 2023). · On June 28, 2023, a search warrant was obtained and law enforcement officers (LEO1-LEO3) went to the facility where several items were photographed and bagged for evidence. During the search, the VA held LEO2’s hand and was “clearly upset” that her blanket was collected as evidence and displayed a “tantrum like behavior.” While at the facility, LEO3 spoke to P1 who confirmed that morning the VA said that the SP “put his private inside of her” while pointing down towards the VA’s private area. · A forensic interview with the VA was scheduled for 1:30 p.m. on June 29, 2023. During that interview the VA identified the SP by name and said that he did “pervert stuff” to the VA in the living room on the couch while they were watching TV. The VA’s housemate was in his/her room sleeping when the SP took off the VA’s clothing and then his own and “shoved his penis in my vagina.” The VA said this occurred on more than one occasion. A physical exam showed bruising in the VA’s genital area and a laceration of the vaginal opening. · On June 29, 2023, at approximately 4 p.m., LEO3 and another law enforcement officer (LEO4) were patrolling the area where the SP lived. The SP was observed driving a vehicle registered to a former facility staff person (P3). (It was later discovered that P3 was a former supervisor at the facility when the SP was initially hired.) LEO3 introduced him/herself and the SP “interrupted” and stated that he already knew what was going on and that it stemmed from an “incident at work.” LEO3 asked the SP how many times “this” happened, and the SP began to count on his fingers and after he counted all the fingers on his right hand, he began counting on his left hand. The SP stopped counting and said, “I don’t know, I could not say.” LEO3 and LEO4 each documented that the SP admitted multiple incidents of sexual contact with the VA and admitted that he ejaculated semen and did not wear a condom. The SP was placed under arrest and transported to jail. P2, a supervisory person, provided the following information: · On June 28, 2023, while on his/her way to the facility, s/he received a text message from P1 stating there were “issues” at the VA’s residence. When P2 arrived, the VA was “crying” and initially did not want to tell P2 what occurred but then said that the SP “put his private area in her private area” the previous night and that the SP said he was “sorry.” (P2 confirmed that the SP worked the overnight shift preceding the VA’s disclosure.) P2 transported the VA to a hospital where the VA provided the same information regarding the incident; however, the VA’s “story kept changing” and the VA said it happened on prior occasions as well. · P2 called the SP and informed him that the VA was “accusing you of sexually assaulting her,” and told the SP that s/he was placed on paid leave. The SP was “calm” and asked if he would get “crisis pay” for the additional hours he was scheduled to work above his normally scheduled hours. · P2 was hired as the facility supervisor in April 2023, and worked at the facility with P3 for a couple of weeks before P3 left employment. During that time, P2 heard about the familial relationship between the SP and P3 and when P2 asked P3 about it, P3 confirmed they were immediate family members. Although there was a policy that prohibited staff persons supervising immediate family members, since the SP and P3 had different last names, P2 believed it “slipped through the cracks.” P3 provided the following information: · The VA had a history of “trying to flirt” and needed reminders to maintain space/respect boundaries. · P3 slept at the facility for “about three” of the SP’s first overnight shifts “just in case” the VA got up in the night and did not want to go back to bed. P3 never told anyone that s/he stayed at the facility those nights because s/he did not get paid/volunteered his/her time. P3 and other unidentified staff persons trained the SP regarding “the proper night duties and what he was expected to do.” P4 only worked at the facility for four days after the SP was hired and had no additional information regarding this report. The CM worked with the VA for a “couple years” and said that when asked questions, the VA did “not get very detailed” and often replied that she “did not know or could not remember” when she was nervous. The CM transported the VA to the forensic interview; however, the VA did not tell the CM anything beyond the initial information that the CM already heard from the facility. The CM did not ask the VA any questions because s/he did not want to “get in the way” of the investigation. The facility’s internal review stated that the SP was hired on February 24, 2023; however, a background study was not initiated until February 27, 2023, “due to it being a weekend” resulting in the SP having direct contact with residents during the overnight shift on February 25, 2023. In addition, the SP worked alone, without supervision, during the overnight shifts on March 4 and 5, 2023, but still required supervision because his background study was not yet “clear” until March 8, 2023. The facility provided information that staff persons, with the exception of the SP, were trained regarding the VA’s program plans. Staff persons, including the SP, were trained regarding the Reporting of Maltreatment of Vulnerable Adults Act and the facility’s policies and procedures. Relevant rules: Minnesota Statutes, section 245C.04, subdivision 1, paragraph (f) states that a background study request must be submitted before staff persons are allowed direct contact with persons served by the program. Minnesota Statutes, section 245D.09, subdivision 4a, states that before having unsupervised direct contact with a person served by the program, staff persons must review and receive instruction on the individual service recipient’s program plans and procedures. Conclusion: A. Maltreatment: The VA provided consistent information that the SP engaged in sexual contact with the VA at the facility on more than one occasion. A physical exam showed bruising in the VA’s genital area and a laceration of the vaginal opening. The SP admitted to LEO3 and LEO4 that sexual contact with the VA occurred on more than one occasion at the facility. Given the consistent information provided by the VA and the admission by the SP, 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. Facility documentation showed that the SP received training on the facility policies and procedures, including the Reporting of Maltreatment of Vulnerable Adults Act, prior to the incident. Although there was no documentation to show that the SP received training on the VA’s program plans, it did not mitigate the SP’s responsibility for the care of the VA and the SP was trained on the facilities policies and procedures including the Reporting of Maltreatment of Vulnerable Adults Act. Therefore, the SP was responsible for the sexual abuse 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 sexual abuse for which the SP was responsible was both serious and recurring because the SP had sexual contact with the VA on more than one occasion. Action Taken by Facility: The facility completed an internal review and determined that policies and procedures were adequate but were not followed when the SP was in direct contact with residents prior to a cleared background study and believed that the SP worked alone, without supervision on March 4 and 5, 2023. The SP no longer worked at the facility. Action Taken by Department of Human Services, Office of Inspector General: The SP was notified that he was responsible for serious maltreatment and that any future background studies for facilities, 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, will result in his disqualification. The determination that the SP was responsible for maltreatment is subject to appeal. On November 3, 2023, the facility was issued a correction order for failing to follow background study requirements and failing to train the SP on the VA’s plans.
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