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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: 1075788-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) allowed a vulnerable adult (VA) to drive the SP’s car, smoked “meth” (methamphetamine) with the VA, and engaged in sexual contact with the VA at the SP’s home. Date of Incident(s): Prior to September 16, 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 for this investigation was obtained remotely, including documentation from the facility and/or law enforcement records; and through three interviews conducted with two facility staff persons (the SP and the P) and the VA. Facility information showed that the VA’s diagnoses included antisocial personality disorder, mild to moderate intellectual disabilities and a history of alcohol and substance abuse. The VA had “delusions of people believing [the VA] is famous” as a result of online gaming and that s/he had a lot of “unclaimed money” from his/her online gaming success. The VA enjoyed making his/her own food. The VA was not subject to guardianship. Facility documentation showed the following information regarding the VA: · A Conditional Release Order dated August 23, 2022, outlined that the VA had to reside at a placement recommended by his/her case manager and had to “obey all laws” and “do not use any alcohol or non-prescribed controlled substance.” · A Mental Health Case Management Intake Assessment stated that the VA “never had a driver’s license” but the VA said s/he had been driving for “years.” The VA said that s/he “cannot read” but knew his/her way around town. · A printout of the VA’s Criminal/Traffic/Petty Case Record Search Results showed that on at least one occasion (2009) the VA drove without a valid driver’s license, on three occasions the VA drove after his/her license was suspended (2010, 2011, and 2021), and on two occasions possessed drugs and paraphernalia (2019 and 2020). · The VA was not able to identify the difference between reality and delusions. · The VA did not follow through with doctors’ appointments and did not always take his/her medications as prescribed. A law enforcement officer (LEO) report dated September 16, 2023, showed that the SP called to complain about the VA “blackmailing” him/her. The SP stated that s/he allowed the VA to use the SP’s vehicle and it was then “stolen.” The SP purchased a second vehicle and again allowed the VA to drive it. The VA was in an accident with the second vehicle and it was determined to be “a total loss.” On one occasion the VA “coerced” the SP to “smoke meth” with the SP and the VA then gave the SP a back rub. That same day, the VA also gave the SP glasses of water that the SP suspected had some type of drugs as there was a substance in the bottom of the glass. A conversation between the SP and VA turned sexual and the VA “recorded” the conversation on his/her phone later telling the SP that s/he “accidentally” recorded it. After that evening, the VA was “blackmailing” the SP with the recording and threatening to turn it over to the facility supervisor. The SP acknowledged that his/her friendship and level of contact with the VA outside of his/her work hours was not allowed. When interviewed by this investigator, the SP provided the following information: · On multiple occasions the SP provided rides to the VA when the SP was not working or allowed the VA to use the SP’s car. The VA told the SP that s/he had a driver’s license; however, at a later date the SP found out that the VA did not have a license to drive. The VA then told the SP that s/he “got one” but the SP suspected that “was a lie.” Despite knowing that the VA likely did not have a driver’s license, the SP continued to allow the VA to drive the SP’s vehicles. (The SP provided consistent information as was provided to the LEO regarding the first vehicle being “stolen” and the SP had to retrieve it from an impound lot. A second vehicle owned by the SP was in an accident when driven by the VA.) · The SP said that s/he loaned the VA “over $5000” knowing that the VA would not repay the money. The SP admitted loaning money was contrary to the facility’s policies and procedures. The SP was aware that the VA purchased two vehicles with the money the SP gave him/her and said that the VA “talked [the SP] into putting it in [the SP’s] name” on one of the titles and the VA was supposed to transfer it to a family member “but that didn’t happen.” · The SP admitted that the VA was at his/her home on multiple occasions although the SP “assumed” there was a “policy against that.” The SP said that there were times when s/he felt the VA was physically “intimidating” and on one occasion when the VA was at the SP’s home, the VA was smoking meth and blew smoke in the SP’s face. The VA wanted to SP to try some and because the SP did not want to risk the VA “showing [his/her] temper,” the SP took “took two small puffs” to appease the VA. · On another occasion the SP and VA went into the VA’s friend’s house (it was not clear who drove the SP’s car) at an unidentified location and the VA “snorted a line of meth.” To prove to the VA’s friend that the SP was “not with the cops,” the VA “insisted” the SP do the same and the SP snorted meth. When asked who drove after that, the SP said, “I think [the VA] drove.” (The use of any alcohol or non-prescribed controlled substance was a violation of the VA’s Conditional Release Order.”) · The SP admitted that on one occasion when the VA was at the SP’s home, the SP’s back was sore and the VA “offered” to give the SP a back rub. Prior to the back rub, the VA “was insisting” the SP drink a glass of water the VA offered. After the SP drank it s/he saw “a chunk of meth or something” in the bottom of the glass. The VA gave the SP a second glass of water with what appeared to have the same substance. After drinking the two glasses of water, the SP admitted making a sexual comment to the VA; however, “nothing sexual occurred.” The VA later told the SP that s/he recorded what the SP said and the VA “threatened” if the SP did not do what the VA wanted, “money, rides, let [the VA] borrow [the SP’s] car,” the VA would “turn [the SP] in” and would use the recording against the SP. · The SP showed this investigator text messages from the VA’s telephone number. The VA demanded the SP give the VA money or the SP would be put in jail. · The SP said despite his/her training and years of experience, s/he was “still trying to figure out” how s/he got involved in these incidents. The SP said that s/he “should have known better” and was “too trusting.” The VA spoke to this investigator via telephone on September 21, 2023, and provided the following information: · The VA said that s/he had “brain trauma” since 2019 and insisted s/he was “framed” by law enforcement officers resulting in his/her current placement at the facility. The VA admitted that s/he heard and saw things and said that “the garbage cans and stuff should be investigated.” · When asked about a video or audio recording regarding a staff person, the VA said, “I don’t know what you are talking about.” However, the VA then identified the SP by name and said that the SP was “the only one who helped me out.” · The VA went to the SP’s home “one time” to assist the SP with moving furniture and the SP “paid [the VA] a few bucks.” · The VA told the SP that s/he had a driver’s license and the SP allowed the VA to drive the SP’s vehicle. The VA admitted s/he was in a car accident with the SP’s car but said it was because there was “an error in the brake lines and the gas pedal went down on its own.” · The VA denied using meth or any illegal drugs with a staff person, denied giving the SP a back rub and/or having any sexual contact or sexual discussions with the SP. · The VA said that s/he wanted to talk further with this investigator in person but also wanted to consult a lawyer. The VA agreed to meet this investigator the following week; however, on the day of the scheduled interview, the VA called to cancel the meeting and again denied that s/he used any illegal drugs or had sexual contact with the SP. The P, a supervisory staff person, stated that the VA never obtained a driver’s license. The VA was not medication compliant and “most definitely has delusions and believes them.” When the VA was in the community, s/he kept “getting into trouble with the law.” The SP’s job description stated s/he was responsible for maintaining healthy and professional relationships with individuals served. The facility’s Employee Information Guide stated that “under no circumstances should you take an individual in your care to your home, your friend’s or family’s home, or to any other locations, events, outings, or errands without the authorization of your supervisor or Human Resources, as applicable.” The facility’s Code of Conduct outlined boundary violations including secretive behavior, spending time with a person served outside of work, borrowing or loaning money to the individuals served, engaging in sexual “kidding” or “teasing,” sexual advances, and/or verbal remarks of a sexual nature. Facility information showed that the SP was trained regarding the facility’s policies and procedures, the VA’s program plans, and the Reporting of Maltreatment of Vulnerable Adults Act. Conclusion: A. Maltreatment: Regarding sexual contact: Although the SP admitted making a sexual comment to the VA and also believed that the VA had a video of the conversation, the VA denied having such a video. Although the SP’s conversation with the VA was inconsistent with the standards of a professional caregiver in a facility licensed by the Department of Human Services, and was a violation of the facility’s Code of Conduct, given that the SP and VA each denied sexual contact occurred there was not a preponderance of the evidence whether the SP had sexual contact with the VA. It was not determined whether 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.)
Regarding neglect: Although the VA said that s/he was only at the SP’s home once, the SP admitted s/he brought the VA to the SP’s home on multiple occasions, which was contrary to the facility’s Employee Information Guide. The SP also admitted that s/he allowed the VA to drive the SP’s vehicle on multiple occasions without having a driver’s license and the SP admitted that s/he used meth on two occasions with the VA and the VA likely drove the SP’s vehicle after the VA snorted a line of meth, placing the VA at risk of harm. Driving the SP’s car without a license and the use of non-prescribed controlled substances were in violation of the VA’s Conditional Release Order. In addition, the SP admitted that s/he gave the VA over $5000 which was contrary to the facility’s Code of Conduct. There was a preponderance of evidence that although the incidents occurred while the SP was not always scheduled to be working at the facility, given the VA’s diagnoses, it was reasonable that the VA would continue to need support to develop and maintain necessary life and social skills. The SP’s interactions with the VA were non-therapeutic, placed the VA at a risk of harm, were inconsistent with the standards of a professional caregiver in a facility licensed by the Department of Human Services, and were a failure to supply the VA with care or services, including but not limited to health care or supervision which was reasonable and necessary to maintain the VA’s physical or mental health or safety. 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). 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 regarding the facility’s policies and procedures, the VA’s program plans, and the Reporting of Maltreatment of Vulnerable Adults Act.
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 neglect for which the SP was responsible was responsible was not “serious” maltreatment because the VA did not sustain any injury that required the care of a physician. However, the substantiated neglect was “recurring” because the SP admitted knowing the VA did not have a valid driver’s license yet the SP allowed the VA to drive the SP’s car on multiple occasions, which was a violation of the law and of the VA’s Conditional Release Order. Additionally, the SP used meth with the VA on two occasions, which was again against the law and a violation of the VA’s Conditional Release Order, and on one of those occasions the SP allowed the VA to drive the SP’s vehicle. The SP was disqualified from providing direct contact services. Action Taken by Facility: The facility completed an internal review and determined that policies and procedures were adequate but were not followed and no additional training was provided because the SP no longer worked at the facility. The VA’s plans were updated. 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 facilities licensed by the Department of Human Services, the Department of Health, facilities serving children or youth licensed by the Department of Corrections, and unlicensed Personal Care Provider Organizations. The determination that the SP was responsible for maltreatment and the disqualification of the SP are each subject to appeal.
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