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AMENDED 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.” NOTICE: This Amended Maltreatment Investigation Memorandum supersedes a version dated November 9, 2022, which must be destroyed. On November 6, 2023, an Order of the Commissioner of Human Services adopted the recommendation of a Human Services Judge to reverse the determination that staff person (SP2) was responsible for maltreatment. As a result, SP2’s non-disqualifying maltreatment determination was rescinded. The other staff person’s (SP1’s) maltreatment determination was upheld after its reconsideration and remained final and conclusive.
License Number and Program Type: 1107011-H_CRS (Home and Community-Based Services-Community Residential Setting) Investigator(s): Kimberly Huettl Anderson
Suspected Maltreatment Reported: It was reported that a vulnerable adult (VA) was separated from two staff persons (SP1 and SP2) while at the Minnesota State Fair. The VA did not have his/her GPS tracker on his/her person and SP1 allowed the VA to get food without SP1’s or SP2’s supervision. Date of Incident(s): August 31, 2022 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 17, paragraph (a): 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 8, 2022; from documentation at the facility and law enforcement records; and through seven interviews conducted with the VA, the VA’s guardian, the VA’s family member, and facility staff persons. The VA’s Admission and Data Form stated the VA was diagnosed with neurological impairment, Wernicke-Korsakoff syndrome (a serious brain condition that is “usually” associated with chronic alcohol misuse), and alcohol dependence. The VA’s Coordinated Services and Supports Plan stated that the VA was social and an “easygoing” person who enjoyed spending time outdoors and being active. The VA’s Coordinated Service and Support Addendum – Intensive Services stated that the VA had a history of “elopement” and walking “numerous” miles in an attempt to obtain alcohol. Due to the VA’s short term memory loss, the VA did not remember that s/he needed to refrain from alcohol use. The VA’s Individual Abuse Prevention Plan, dated August 25, 2022, stated that due to the VA’s diagnosis, the VA had limited short term memory and was at an increased risk of sexual, physical, self-abuse, and financial abuse. Staff persons were to remain with the VA while in the community at all times and encourage the VA from walking away from the group. The VA had a GPS tracker that s/he wore on his/her clothing when out in the community. Facility documentation, medical records, and interviews with the VA, the VA’s guardian (G), the VA’s family member (FM), facility management persons (P1 and P2), SP1, and SP2 provided the following information: · On August 31, 2022, SP1, SP2, the VA, and another resident (R) went to the Minnesota State Fair. The facility’s General Event Reports and the VA’s Clinician Report written by SP1 stated at approximately 1:55 p.m., SP1 left the group to seek medical assistance for the R. When SP1 returned to the group the VA was “gone.” SP2 did not see the VA walk away or know where the VA went. At approximately 2 p.m., SP1 contacted fairground police and facility management persons to report the VA as “missing.” SP1 searched the fairgrounds until 8:12 p.m. but was unable to locate the VA. The VA was located September 6, 2022, and returned to the facility. · The VA told this investigator that s/he was excited to be at the Minnesota State Fair and near places where s/he grew up. The VA “secretly” planned to walk away from SP1 and SP2 because s/he wanted to visit his/her friends. When the R was not feeling well and SP1 walked away, the VA walked away from SP2 without saying good-bye. The VA left the fairgrounds and spent time with friends. The VA stated that s/he walked a lot of miles during the six days that s/he was away from staff persons and that s/he saw “a lot” of friends who fed him/her and offered a place to stay. The VA did not confirm or deny that s/he drank alcohol with his/her friends. · The G and the FM each stated that on August 25, 2022, they attended a meeting regarding the VA where they discussed the VA’s trip to the Minnesota State Fair. At that time, it was agreed that the VA would wear a GPS tracker while at the fair because the VA had a history of “wandering off.” The G stated that s/he received an alert to notify him/her that the VA was at the Minnesota State Fair so s/he thought that the VA was wearing the GPS tracker. After the VA left the group and was missing for several days, the FM went to several of the VA’s friends’ homes looking for the VA, but was unable to find him/her. The G and the FM were both concerned about the VA because the VA was at risk of using alcohol while unsupervised in the community and was not dressed appropriately for being in the community for several days. · SP1 stated that s/he did not put the GPS tracker on the VA when they arrived at the fair because SP1 “forgot” to put it on the VA after they entered the gates of the fair. SP1 stated that the GPS tracker was in his/her backpack while they were at the Minnesota State Fair. SP2 stated that s/he was not aware that the VA was supposed to wear the GPS tracker. · SP1 and SP2 each stated that after they had been at the fair for a few hours, it was time to leave because the VA’s housemate (R) was not feeling well. The R was having a difficult time walking so they stopped many times on the way back to the gate. Just before the VA left the group, the R stopped, sat down on the ground, and was unable to walk any longer. SP1 left the VA, the R, and SP2 to search for medical assistance. SP1 was gone for approximately three minutes and when s/he returned to the group, the VA was gone. · When SP1 discovered that the VA was missing, SP1 found the Minnesota State Fair police and reported the VA missing. SP1 searched the fairgrounds for several hours without finding the VA before leaving. · SP2 stated that when SP1 went for assistance s/he was focusing his/her attention on the R, but that the VA was standing next to SP2. SP2 did not see the VA walk away from him/her. Two community persons near SP2 told SP2 that they saw the VA follow SP1 when SP1 walked away. SP1 stated that s/he did not know that the VA followed him/her. · SP1 and SP2 each stated that the VA did not have money on his/her person. · P1 and P2 each stated that SP1 was in attendance at the meeting where the G and the FM required that the VA wear the GPS tracker while at the fair. According to P1 and P2, SP1 “forgot” to put the GPS tracker on the VA because there was so much commotion and confusion at the gate when they arrived at the fairgrounds. P1 stated that prior to the day of the incident, there was nothing written in the VA’s plans about wearing a GPS tracker while in the community. The VA had been living at the facility for several months and had not attempted to leave the facility without supervision. · P1 and P2 each stated that several staff persons throughout the company searched the streets and parks in the Minneapolis and Saint Paul areas for several days without success. On September 6, 2022, a group of company employees spotted the VA and contacted law enforcement. Law enforcement officers located the VA and transported him/her to a local emergency department. · The VA’s medical records from a local hospital stated that the VA sustained “large” blisters on the ball of each foot and “small” blisters on multiple toes of each foot from walking long distances. A medial professional instructed staff persons to apply bacitracin ointment to the blisters. In addition, blood tests confirmed that the VA consumed alcohol while s/he was in the community without supervision, but the medical professional was not concerns about withdrawal effects from consuming alcohol. · The facility’s Meeting Minutes dated August 25, 2022, stated that the VA was looking forward to attending the Minnesota State Fair and that the team discussed the need for the VA to wear his/her GPS tracker while at the fair. The facility’s personnel files showed that SP1 was trained on Reporting of Maltreatment of Vulnerable Adults on January 4, 2022, and on the VA’s plans on May 12, 2022. SP2 was trained on Reporting of Maltreatment of Vulnerable Adults and on the VA’s plans on July 28, 2022. P1 and P2 were each trained on the Reporting of Maltreatment of Vulnerable Adults prior to the incident. Relevant Rules and/or Statutes: Minnesota Statutes section 245D.07, subdivision 1a stated that the license holder must provide services in response to the persons’ identified needs, interests, preference, and desired outcomes as specified in the coordinated service and support plans and the coordinated service and support plan addendum. Conclusion: A. Maltreatment: Information was consistent that the VA, the R, SP1, and SP2 went to the Minnesota State Fair on August 31, 2022. Prior to that on August 25, 2022, the G, the FM, SP1, and other members of the VA’s team agreed that the VA would wear a GPS tracker on his/her person while at the fair. SP1 stated that s/he “forgot” to put the GPS tracker on the VA when they arrived at the fair. When it was time to leave the fair, the R was experiencing some medical difficulties so SP1 left the VA, the R, and SP2 to search for assistance. SP1 returned to the group approximately three minutes later and the VA was gone. Failing to put the GPS tracker on the VA and failing to supervise the VA in the community were a violation of Minnesota Statutes, section 245D.07, subdivision 1a. SP2 did not notice the VA leave his/her side. SP1 alerted law enforcement and searched the fairgrounds for the VA. The VA was located six days later by law enforcement and taken to the local hospital for an evaluation. The VA had blisters on his/her feet from walking, but no other injuries were present. Given the VA’s risks when s/he was in the community, that the VA’s plans and the facility’s Meeting Minutes stated that the VA required staff persons supervision at all times when in the community, that the VA was to wear a GPS tracking device at the fair but did not, and that the VA was in the community without a staff persons’ care for six days, there was a preponderance of the evidence that there was a failure to provide the VA with care and services including supervision that were reasonable and necessary to obtain and maintain the VA’s physical and mental health and 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. SP1 and SP2 were each trained on the VA’s plans and the Reporting of Maltreatment of Vulnerable Adults prior to the incident. SP1 and SP2 were each responsible for the supervision of the VA while at the Minnesota State Fair. However, at the time the VA left the group, SP2 was the sole staff person responsible for the supervision of the VA. In addition, on August 25, 2022, SP1 attended the VA’s meeting prior and was aware that the VA was to wear a GPS tracker while at the fair but did not ensure the VA had it on while they were at the fair. Therefore, SP1 and SP2 were each 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 SP1 and SP2 were each responsible did not meet statutory criteria to be determined as recurring because it was a single incident and was not serious because the medical treatment provided for the VA’s blisters was antibiotic ointment and available over the counter. Action Taken by Facility: The facility completed an internal review and determined that their policies and procedures were adequate and were followed at the time of the incident. The facility determined that there was not a need for additional training. Action Taken by Department of Human Services, Office of Inspector General: SP1 and SP2 were not disqualified from providing direct care services as a result of the maltreatment determination in this report. However, SP1 and SP2 were each 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 disqualification. The determination that SP1 and SP2 were each responsible for maltreatment is subject to appeal. On November 9, 2022, the facility was issued a correction order for the violation outlined in this report.
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