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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: 1104516-H_CRS (Home and Community-Based Services-Community Residential Setting) Investigator(s): Judith Schwanke 651-431-4033 Suspected Maltreatment Reported: Allegation One: It was reported that a vulnerable adult (VA) left the facility without a staff person’s (SP1’s) knowledge or supervision and defecated on a community person’s (CP) property. Allegation Two: It was reported that the VA left the facility without a staff person’s (SP2’s) knowledge or supervision and vandalized the CP’s car. Date of Incident(s): Allegation One: September 6, 2023 Allegation Two: October 7, 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 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 October 17, 2023; from documentation at the facility and law enforcement records; and through four interviews conducted with the VA, the VA’s guardian (G), two facility supervisory staff persons (P1 and P2), and a facility staff person (SP2). Several attempts were made via telephone and US mail to contact and interview SP1 and another staff person (P3), but neither SP1 nor P3 responded to the requests. This investigator spoke with the VA but because of his/her diagnoses, s/he was unable to provide details about the incidents. The facility was located in a residential neighborhood. The speed limit on the street in front of the facility was not posted. According to the Minnesota Department of Transportation, the speed limit on unposted roads in an urban area was 30 miles per hour. On an adjacent street the speed limit was 40 miles per hour. There was a pond approximately one tenth mile from the facility. The facility was a multi-level home, and the VA was the only individual who lived at the facility. The main level had a kitchen and dining area and up a half flight of stairs was a living room with an open wall that overlooked the kitchen. In the kitchen was a binder that contained information regarding the VA. From the kitchen down a half flight of stairs was a common area. There were alarms on the facility exit doors. The alarms sounded when a door was opened and identified which door was open. There was also a separate alarm that could be set that made a loud sound if any of the doors opened. Posted near the alarm system were instructions how to set the alarm and that directed overnight staff to arm the alarm between 11 p.m. and 7 a.m. A community person (CP) lived across the street and diagonal from the facility. The CP had a trampoline in his/her front yard near the street, which according to Google Earth, was approximately 131 feet from the facility.
The VA’s Individual Abuse Prevention Plan and Intensive Services Assessment, and a facility internal review report included the following:
· The VA’s diagnoses included autism and moderate intellectual disability. The VA enjoyed movies, reading books, and coloring.
· The VA required 24-hour awake supervision and staff persons were required to be within sight and/or auditory range of the VA at all times.
· The VA did not have the cognitive ability to understand the importance of being cautious with strangers and would not identify traffic as a safety risk. To ensure the VA’s safety, staff persons were to be within sight of the VA at all times in the community.
· The VA had limited verbal communication skills and was likely to repeat words rather than saying what s/he wanted or needed which limited the VA’s ability to independently communicate accurately.
In the VA’s information binder there was an Individual Absolutes/Specific Instructions form. This form stated that the VA required 1:1 supervision and that the VA had a history of leaving the facility unsupervised. Staff persons were to “utilize” the alarm system. Relevant Rules and/or Statutes: Minnesota Statutes, section 245D.07, subdivision 1a, states the license holder must provide services in response to the person’s identified needs, interests, preferences, and desired outcomes as specified in the support plan and the support plan addendum. Facility documentation showed that SP1, P1, and P2 were trained on the VA’ plans, and on the Reporting of Maltreatment of Vulnerable Adults Act prior to the incident. The G stated that s/he had prior concerns, including supervision, regarding the care the VA received while at the facility. Local law enforcement records showed that on October 9, 2023, at approximately 4:16 p.m., the CP reported damage to his/her vehicle. A law enforcement officer (LEO) called the CP. The CP told the LEO that there had been “several instances lately” when the VA had gotten out of his/her house. On September 6, 2023, the VA was in the CP’s yard without staff supervision and defecated on his/her trampoline. The CP did not complete a police report at that time but reported the incident to P1. Most recently, the CP discovered a broken side mirror on his/her car. The CP spoke with his/her neighbors and received from them a video clip of the incident which occurred on October 7, 2023. (Note: The video is outlined in the allegations below.) Allegation One: It was reported that the VA left the facility SP1’s knowledge or supervision and defecated on the CP’s property. The facility provided video footage they received from the CP of the first incident regarding the trampoline. The video was not date or time stamped. The video was one minute and twenty-one seconds long. When the video started, the VA was on the trampoline and was struggling to get off of it. Once out of the trampoline, the VA entered the street and walked away from the facility and toward a parked car on the street. Then the VA turned and walked back toward the facility and the video ended. The video showed the VA was dressed in pajamas and s/he was barefoot. P1, P2, the facility’s Incident/Emergency Report, and Internal Review provided the following consistent information: · On September 6, 2023, at approximately 7:40 a.m., SP1 left the facility leaving the VA unsupervised. · At approximately 9:15 a.m., P2 received a telephone call from the CP who told P2 that the VA was “wandering” up and down the street. The VA went onto the CP’s trampoline, had a bowel movement, got off the trampoline, and walked back to the facility.
· At approximately 9:25 a.m., P1 and P2 arrived at the facility. The VA was in a chair in the living room watching television. The VA greeted P1 and P2 as s/he normally would and cooperated as P1 assisted the VA with a bath and getting dressed. · P2 reached out to SP1 to determine why the VA had been left alone. At 9:46 a.m., SP1 responded to P2 via text message that s/he was in class and would call back later. P2 then called another staff person to come to the facility. P1 checked time clock logs and found that SP1 clocked out at 7:40 a.m. · Screen shots of text messages provided by P2 showed that on September 5, 2023, at 11:15 p.m., SP1 texted a group of staff persons, “Whoever is working AM tomorrow please be here on time.” P3 responded that s/he was working and would be there shortly after 7:40 a.m. SP1 texted him/her back and stated s/he could not stay until 7:40 a.m. because s/he could not miss class again. At 12:20 a.m., P3 texted SP1 that s/he would be in that morning. Then on September 6, 2023, at 7:06 a.m. SP1 received another text from him/her that another staff person would be at the facility before 7:40 a.m. · The facility’s Internal Review stated that near 7:40 a.m., SP1 texted P3 and that if that person was not there in three minutes, s/he was “leaving.” · On September 6, 2023, at 11:24 a.m., SP1 texted P2 that s/he could not stay past his/her shift time and miss class again. The SP wrote that s/he was only allowed three absences per semester and school was “a priority.” · P1 stated that SP1 received training that s/he could not leave the VA alone and that s/he should have called either P1 or P2 or an on-call manager. Conclusion Allegation One: A. Maltreatment Information was consistent that on September 6, 2023, the VA was unsupervised between approximately 7:40 and 9:25 a.m., when SP1 left the facility without a replacement staff person, which was inconsistent with the standards of a professional caregiver in a facility licensed by the Minnesota Department of Human Services; a violation of the VA’s plans; a violation of Minnesota Statutes, section 245D.07, subdivision 1a; and was not accidental or therapeutic conduct. While the VA was unsupervised s/he left the facility and walked across the street to the CP’s home. There the VA defecated on the CP’s trampoline and then walked back to the facility. Although the VA returned to the facility unharmed and watched television until P1 and P2 arrived at the facility, given that the VA required 1:1 sight and/or auditory supervision by a staff person 24 hours per day, that SP1 left the VA without supervision and a staff person present, that the VA then left the facility and engaged in behavior in the community which exposed him/herself to danger and included defecating on a neighbors trampoline, there was a preponderance of the evidence that there was a failure to supply the VA with care or services including supervision which was reasonable and necessary. 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 was trained on the VA’s plans which included information that staff persons were required to be within sight and/or auditory range of the VA at all times, that the VA required 1:1 supervision, and had a history of leaving the facility unsupervised. SP1 was also trained on the Reporting of Maltreatment of Vulnerable Adults prior to the incident.
SP1 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 SP1 was responsible did not meet statutory criteria to be determined as recurring or serious because it was a single incident and the VA did not sustain injury that required the care of a physician. Allegation Two: It was reported that the VA left the facility without SP2’s knowledge or supervision and vandalized the CP’s car. P1 and P2 provided the following consistent information: · On October 9, 2023, at approximately 6 p.m., P1 and P2 received a text message from a staff person at the facility saying that a law enforcement officer had been to the facility and informed the staff person that the VA had been unsupervised on October 7, 2023. During the time the VA was unsupervised, s/he damaged the CP’s car. · P2 determined that SP2 worked the overnight shift on October 6, 2023, and called SP2. SP2 told P2 that s/he had worked that night and told P2 that s/he had “dozed” off at the kitchen table and s/he woke up at about 4:30 a.m. when the VA came out of the bedroom. SP2 was not aware the VA had left the facility. · Because the VA had a history of leaving the facility without staff person supervision, staff persons were trained on the facility alarms and on the importance of not sleeping while working with the VA. Law enforcement provided video footage dated October 7, 2023, 3:23:00, which was two minutes and thirty-eight seconds long. At 3:23:08, the VA walked across the street and stopped at the driver’s side of the CP’s car, which was parked on the street. Then the VA walked to the passenger side of the car and the VA’s back was toward the camera. The VA was at the passenger side of the car for approximately 55 seconds. Then the VA walked across the street toward the facility and off camera. Law enforcement records showed that a citation was issued to the VA for criminal damage to a vehicle. SP2 stated that on October 6, 2023, s/he worked from 3 p.m. until the next morning, October 7, 2023, at 7 a.m. That morning, between 3 and 4:30 a.m., SP2 “dozed off” as s/he sat at the kitchen table but woke when the VA opened his/her bedroom door. SP2 instructed the VA to use the bathroom and go back to bed and the VA did so. SP2 was not aware the VA had left the facility until October 9, 2023, when s/he received a phone call from the staff person at the facility when the law enforcement officer came to the facility. SP2 did not typically work overnights at the facility. SP2 was aware there was an alarm system but had not been trained on how to set the alarm. SP2 stated s/he was trained on the VA’s plans including to keep his/her eyes on the VA at all times. The facility did not have documentation to show that SP2 received training on the VA’s plans or training on the Reporting of Maltreatment of Vulnerable Adults Act, which were violations of Minnesota Statutes, section 245D.09, subdivision 4, paragraph (5) which states in part that within 72 hours of first providing direct contact the license holder must ensure that a staff person has completed training on 626.557 governing maltreatment reporting and staff persons responsibilities related to protecting persons from maltreatment and reporting maltreatment; and Minnesota Statutes, section 245D.09, subdivision 4a, which states in part 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 as they relate to the staff person’s job functions for that person. Conclusion Allegation Two: A. Maltreatment SP2 stated that on October 7, 2023, at approximately 3:30 a.m., s/he fell asleep for approximately one and a half hours, waking at about 4:30 a.m. when the VA came out of his/her bedroom. However, video showed that the VA was outside unsupervised at 3:32 a.m. for at least two minutes and thirty-eight seconds. While the VA was outside unsupervised, s/he crossed the street and damaged the CP’s car. The CP notified law enforcement of the incident and the VA was issued a citation for criminal damage to a vehicle. SP2 was not aware the VA left the facility. Falling asleep during a time required to be awake was inconsistent with the standards of a professional caregiver in a facility licensed by the Minnesota Department of Human Service; a violation of the VA’s plans; and a violation of Minnesota Statutes, section 245D.07, subdivision 1a; and was not accidental or therapeutic conduct. Given that the VA required a staff persons’ supervision in the home and in the community; that the VA left the facility without SP2’s knowledge when SP2 fell asleep; that the VA engaged in behavior in the community which exposed him/her to danger, required law enforcement action, and subsequent legal action for the VA, there was a preponderance of the evidence that there was a failure to provide the VA with care or services including supervision which was reasonable and necessary to obtain or 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. Although the facility did not provide documentation that SP2 was trained on the VA’s plans, SP2 stated s/he received training and was aware the VA required SP2 have his/her eyes on the VA at all times.
SP2 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 SP2 was responsible did not meet statutory criteria to be determined as recurring or serious because it was a single incident and the VA did not sustain injury that required the care of a physician. Action Taken by Facility: Allegation One: The facility completed an internal review and determined that their policies and procedures were adequate but not followed. SP1 no longer worked at the facility. Allegation Two: The facility completed an internal review and determined that their policies and procedures were adequate but not followed. The facility retrained staff persons on setting the alarm system and updated the alarm system to auto-set during overnight shifts. The facility also created an Awake/Asleep Agreement Log for staff persons. SP2 no longer worked at the facility.
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, each was 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 “reoccurring” and will result in the disqualification of SP1 or SP2. The determination that SP1 and SP2 were responsible for maltreatment is subject to appeal. On January 17, 2024, the facility received a Correction Order for the violations outlined in this report. Certification: The information collection procedures followed in this investigation were pursuant to Minnesota Statutes, section 260E.30, subdivision 6, paragraph (c). All individuals that are subjects of data in this investigation have the right to obtain private data on themselves which was collected, created, or maintained by the Department of Human Services.
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