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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: 1098464-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) did not supervise a vulnerable adult (VA) as required which resulted in the VA being hit by a vehicle and sustaining injuries. Date of Incident(s): October 23, 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 November 7, 2023; from documentation at the facility, law enforcement records, and medical records; and through ten interviews conducted with three supervisory staff persons (P1-P3), the SP, the VA, two clients (C1 and C2), the VA’s case manager (CM), and two of the VA’s legal guardians (G1 and G2).
The VA was diagnosed with autism and enjoyed fishing. Consistent information was provided that the VA had a history of eloping to walk to a gas station to get soda. According to the VA’s Individual Abuse Prevention Plan, the VA had zero unsupervised time in the community. According to the VA’s Intensive Support Self-Management Assessment, staff persons were in the same building or area of the VA when in the community. According to the VA’s Missing Person Protocol, the VA was considered “missing” when the following criteria were met: · Staff persons checked the surrounding area for 15 minutes. · If 15 minutes passed and the VA was still missing, staff persons contacted G1 and/or G2 and followed directives. · If staff persons were unable to get ahold of G1 or G2, staff persons called 9-1-1. A violation of no alone time in the community did not automatically deem the VA as a missing person. Information obtained was consistent that G1 and G2 wanted to limit the amount of soda the VA consumed. However, there was no rights restriction in place that limited or did not allow for the VA to consume soda. According to Google.com/maps, the facility was 0.8 miles from the gas station and took an average person 17 minutes to walk each way. The VA provided the following information: · On the day of the incident, the SP and the VA went for a walk. When the VA and the SP were approximately halfway to the gas station, the VA and the SP got into an “argument” over the VA getting soda from the gas station. The SP turned around and walked towards the facility while the VA turned and walked to the gas station. At one point, the VA looked over his/her shoulder to see if the SP followed him/her but the VA did not see the SP. · Approximately 10 to 20 minutes later, the VA arrived at the gas station. The VA purchased a soda and when s/he left the gas station, s/he decided to continue walking towards downtown Hopkins (away from the facility.) Approximately one to two blocks from the gas station, the VA saw C1 and decided to cross the street. As the VA crossed the street, s/he was hit by a vehicle driven by a community person (CP).
· C1 came over and yelled at the CP, called the facility, and then walked back to the facility. The CP called 9-1-1 and the police and then P1 arrived. The VA said s/he did not see the SP throughout the entire incident. · The VA said s/he left the facility “numerous times” prior to the incident to get soda at the gas station and staff persons, including P1 and the SP, were aware they needed to follow the VA. The law enforcement report provided the following information: · On October 23, 2023, at 2:39 p.m., law enforcement received a 9-1-1 call for a traffic accident with unknown injuries. At 2:41 p.m., a law enforcement officer (LEO1) arrived at the intersection of 11th Avenue South and 1st Street South in Hopkins and saw the VA lying on the ground bleeding from his/her head and elbow. LEO1 spoke to the VA who said s/he was “fine.” · LEO1 then spoke to the CP who said that while driving his/her vehicle, s/he saw the VA crossing the street. After the VA crossed to the other side of the intersection, the CP began to drive through the intersection, turned onto another street, and felt an “impact.” The CP “immediately” got out of his/her vehicle and saw the VA lying on the ground. The CP denied seeing the VA walk back onto the street. · When LEO2 arrived at the scene (Note: LEO2’s arrival time was not documented in the report), s/he assisted with traffic control while LEO1 spoke to the CP. At one point, LEO1 directed P1 to speak to LEO2. LEO2 asked P1 if s/he was involved in the accident and P1 responded, “No.” P1 said s/he was a staff person at the facility and that the VA was not supposed to have left the facility alone but did so to get soda. LEO2 stood with P1 “for a short time” before talking to other officers who arrived on the scene. · LEO2 then assisted the VA into the ambulance and spoke to him/her. The VA said that s/he left the facility to purchase a soda at a gas station and was hit by a vehicle. LEO2 asked the VA if s/he was in the intersection when hit, and the VA responded, “Yes.” LEO2 asked if the VA saw the vehicle prior to being hit and the VA responded, “Yes.” The VA said the CP’s front bumper hit the VA’s chest and that both of his/her legs were ran over by the vehicle. The VA also hit his/her head when s/he fell. The VA did not have any other pain but his/her elbow was bleeding. LEO2 saw a “noticeable bump” on the VA’s head. The VA was then transported to a hospital. Law enforcement obtained multiple surveillance videos around the area of the incident which could not be opened by this investigator. LEO3 viewed the videos and said there was no other persons near the VA during the incident. This investigator viewed the videos which showed at 2:29:31 p.m., approximately one block south of the gas station, the VA walked alone into the view of the camera. The VA entered the gas station and then came back out the main door. The VA walked around the parking lot, crossed an intersection, and walked north two blocks. At 2:38:33 p.m., the VA crossed the street in the crosswalk and was hit by a vehicle. At 2:44:45 p.m., P1 and the SP parked a vehicle in the police department parking lot (next to the incident), got out, and walked across the parking lot. There was no bench in the video and the SP was not in the video until arriving with P1. LEO2 stated that the only bench around the gas station was approximately 60 to 70 yards to the south and across the street from the gas station (which was out of the view of the camera) and if someone was on the bench, they would have seen the incident occur. The VA’s medical records provided the following information: · On October 23, 2023, the VA was seen in the emergency room and diagnosed with a closed displaced fracture of the fourth and fifth metatarsal bone in his/her left foot and a laceration on his/her scalp. The VA’s scalp laceration was closed with staples. · The physician recommended that the VA wear a medical boot until his/her orthopedic appointment, use crutches for ambulating, and not walk on his/her left foot until follow up with podiatry. The VA was allowed 650 milligrams of Tylenol and/or 600 milligrams of ibuprofen every six hours as needed for pain. · The physician also recommended that the VA kept the wounds clean “as much as possible” by washing thoroughly and patting dry. The VA was to return to the hospital in ten days to have the staples removed. · On October 27, 2023, the VA was seen by a podiatrist and diagnosed with multiple closed fractures of the metatarsal bone in his/her left foot and right foot pain. The VA was instructed to have physical therapy for “gait training” and was prescribed a cast protector to keep the dressing and boot dry when showering. The VA continued to leave the boot on “at all times” and was allowed to touch his/her foot to the floor for stability but was instructed to “try not to walk on it.” C1 stated s/he was out walking near the police department when s/he saw the VA get hit by a vehicle. There were no staff persons with the VA. C1 called the facility and spoke to C2 and then P1 and told each of them about the incident. P1 told C1 that s/he was leaving the facility to drive to the accident while C1 walked back to the facility. When C1 arrived at the facility, the SP was there watching something on his/her personal cell phone. C1 told the SP about the incident and that staff persons needed to be with the VA “at all times.” C1 did not recall the SP’s response but remembered that the SP got “mad” and said that the VA should have stayed with the SP. Prior to C1 leaving the facility for a walk, the SP and the VA already left for a walk. C2 stated s/he was in his/her bedroom when the facility phone rang. C2 answered and C1 said that the VA was hit by a vehicle. C2 brought the phone to P1 who was sitting on the sofa in the living room watching videos on his/her laptop. P1 spoke to C1 and then left the facility. C2 did not see the SP at the facility until s/he returned with P1’s vehicle while P1 went with the VA to the hospital. P1 provided the following information: · On the day of the incident, at approximately 2 p.m., the VA asked to go on a walk. P1 and the SP agreed that the SP would go on a walk with the VA. · After approximately 20 to 30 minutes, the SP called P1 and said that the VA was leaving without the SP, during the walk and going to the gas station. P1 told the SP s/he would call him/her back, hung up, and called P2. P2 told P1 to call the SP back and tell the SP to “follow” the VA, so P1 did and told the SP to follow and “keep a visual” on the VA to the gas station. · Approximately 20 to 30 minutes after P1 spoke to the SP, C2 brought P1 the facility phone. C1 was on the phone and told P1 that the VA was “hit” by a vehicle near the gas station. P1 got into his/her personal vehicle and called the SP’s cell phone while s/he began driving. The SP answered and P1 asked the SP where s/he was and the SP responded that s/he was outside the gas station. P1 asked the SP where the VA was, and the SP responded the VA was inside the gas station. P1 told the SP that the VA was not inside the gas station because the VA had been hit by a vehicle. P1 told the SP to meet him/her at a stop light near the gas station. · As P1 continued driving, s/he saw the SP at the stop light “right next to” the gas station. P1 stopped and the SP got into P1’s vehicle. The intersection of where the accident occurred was on the other side of the gas station. P1 was not able to provide the street names of the intersection where s/he met the SP but said s/he was able to see the ambulance and “everything” but not specifically the VA. · After arriving at the scene, the SP drove P1’s vehicle back to the facility because P1 stayed with the VA including riding in the ambulance to the hospital. P1 called P2 and P3 and updated each of them about the incident. The SP provided the following information during his/her interview and in the facility’s Internal Review: · On the day of the incident, the SP and the VA went for a walk. The VA was not allowed to purchase a soda that day so when the VA asked the SP if s/he could, the SP told the VA s/he was not allowed to. At an intersection about five minutes away from the facility, the VA “made up [his/her] mind” about going to the gas station for a soda so s/he began walking in that direction. The VA usually walked back to the facility with the SP, but this was the first time the VA did not listen or follow the SP. · The SP called P1 and told him/her about the VA going to the gas station and P1 told the SP to “leave” the VA and return to the facility because the VA tried getting a soda for the seven days. The SP followed P1’s instructions and walked toward the facility. Approximately five minutes later, P1 called the SP and told him/her to get the VA and bring him/her back to the facility so the SP turned around and walked to the gas station. During this time, the SP did not see the VA. The facility previously trained the SP to follow the VA. · When the SP arrived at the gas station, s/he stood and waited approximately five steps in front of the gas station where s/he was able to see the front door. The SP assumed the VA was inside and because the VA did not have money with him/her so the SP did not think the VA would be inside the gas station long. After approximately two minutes of waiting, P1 called the SP and asked if s/he saw the VA because the VA had been hit by a vehicle. · The SP walked to the road and saw police and ambulance down the street. During that time, P1 pulled up in his/her vehicle and the SP got inside and they went to the incident together. P1 asked the SP to bring P1’s vehicle back to the facility so the SP did.
· According to the internal review completed by a supervisory staff person (P4), P4 interviewed the SP about the incident. The SP said on the day of the incident, at approximately 2:20 p.m., the SP and the VA left the facility and went on a walk. They walked “around the neighborhood” and came to an intersection where they turned to go to the facility. The VA told the SP that s/he wanted to go the other direction to the gas station for soda. The SP told the VA that s/he did not have money to purchase a soda and that they needed to return to the facility. The VA refused and began walking toward the gas station. The SP called P1 and P1 told the SP to “leave” the VA and return to the facility and the VA would eventually return to the facility. The SP started walking to the facility and approximately three to four minutes later, P1 called the SP and said that P2 wanted the SP to “keep an eye” on the VA. The SP turned around and walked to the gas station the “usual way” that the VA walked there. Approximately 15 minutes later, the SP sat on a bench “by the side” of the gas station where s/he saw the front door. The SP did not see the VA walk out of the front door. After approximately five minutes of sitting on the bench, P1 called the SP and said that the VA was in an accident. P1 drove and picked up the SP and they went to the scene together. The VA was not to have any alone time but P1 who was a supervisory staff person told the SP not to follow the VA. P2 stated on October 23, 2023, at approximately 3 p.m., s/he received a phone call from P1 stating that the VA was hit by a vehicle. P2 asked who was with the VA and P1 responded that s/he was at that time. P1 said that the SP was with the VA at the time of the incident but had returned to the facility. P2 asked if the VA was “hurt” and P1 said that the VA’s foot “hurt” and s/he had a scratch on his/her head. P1 was with the VA in the ambulance and they were going to the hospital. Shortly after, P2 spoke to P3 and FM1 separately by phone and provided each of them with updates. Later that day, P2 again spoke to P1 who said that the SP and the VA went on a walk. The VA left the SP, and the SP followed him/her to the gas station. During this time, C1 called the facility and told P1 that the VA was hit by a vehicle so P1 drove to the gas station and “swapped places” with the SP who returned to the facility while P1 went with the VA to the hospital. P1 did not provide P2 with information as to where the SP was during the incident. P2 did not talk to the SP about the incident. P3 stated that P2 called P3 and notified him/her about the incident. P3 then called the SP who said while on a walk with the VA, the VA decided s/he wanted a soda. The SP said for “about 20 minutes” s/he tried verbally redirecting the VA. The VA decided to walk to the gas station so the SP followed. The VA went inside the gas station and the SP stayed outside sitting on a bench that was approximately 20 steps from the gas station where s/he was not able to see the VA while inside. P3 asked the SP why s/he did not go inside the gas station and the SP responded that s/he “did not know.” The SP watched for the VA to walk out of the gas station but did not see him/her leave. P1 then called the SP and said that the VA was hit by a vehicle. The SP looked down the road, saw a “commotion,” and walked over to the scene. P3 said that the SP should have gone inside the gas station with the VA but instead stayed outside and did not “pay attention.” P3 denied that the SP said told him/her that s/he called P1 and that P1 instructed the SP to leave the VA and return to the facility. P3 had concerns with P1’s ability to provide accurate information about the incident since P1 had a separate investigation that s/he was not providing accurate information about. G2 provided the following information: · On October 23, 2023, at 2:46 p.m., G1 called the facility and C2 told G1 that the VA had been hit by a vehicle. At 2:57 p.m., G2 called the facility and C2 answered the phone and told G2 that the SP and the VA went for a walk and the VA was hit by a vehicle. G2 asked if a staff person was at the facility and C2 responded that the SP was. G2 spoke to the SP, who said that the VA and the SP went on a walk together and got into an argument over going to the gas station to get soda. The SP was “evasive” with his/her information but said that the VA had a “scrap” on his/her arm. G2 had concerns with the SP’s information as to where s/he was when the VA was hit by the vehicle at 2:41 p.m. if s/he was already back at the facility before 2:57 p.m. · Later that day, G2 had a limited conversation with the VA about the incident and asked the VA where the SP left the VA after their argument. The VA said it was at a stop sign that G2 believed it was at the end of Sixth Street. The CM stated G1 and G2 called the CM the day of the incident. P2 and P3 emailed the CM that evening but the CM did not read the emails until the following day. The CM was told by P2 and/or P3 that the SP “lost sight” of the VA but G1 and G2 told the CM that the SP did not follow the VA when s/he began walking to the gas station. Consistent information was provided by P1, P2, P3, G1, G2, and the CM that the VA leaving without supervision had increased since spring 2023. The facility had an external agency come into the facility and the external agency provided feedback that staff persons were to allow the VA to feel like s/he had more “control” and “independence” in making choices. G1 and G2 provided the Minnesota Department of Human Services with documentation on their concerns with the VA leaving without supervision but there was no information provided that the facility did not follow the VA’s plans regarding the VA leaving without supervision prior to this incident. Facility documentation showed that staff persons, including the SP, were trained on the VA’s plans and the Reporting of Maltreatment of Vulnerable Adults Act prior to the incident. Conclusion: A. Maltreatment: Consistent information was provided that on October 23, 2023, at approximately 2 p.m., the SP and the VA went on a walk. According to the VA’s plans, the VA had zero unsupervised time in the community. During the walk, the VA and the SP disagreed about walking to the gas station so that the VA could purchase a soda. There was no information provided that the VA had a rights restriction limiting his/her intake of soda other than a request from G1 and G2. The VA provided consistent information to this investigator and G2 that the SP turned and walked away from the VA to return to the facility, while the VA walked to the gas station, and that the SP was not with the VA. Subsequently, after the VA left the gas station, s/he walked across a street and was hit by a car. The VA sustained broken bones in his/her foot and a head laceration that required staple to close. The SP provided inconsistent information to this investigator, P3, and P4 whether s/he followed the VA the whole time or not but provided consistent information that s/he did not go into the gas station with the VA, which was inconsistent with the VA’s plans. Although the SP told this investigator and P4 via the Internal Review that P1 told the SP to return to the facility, the SP did not tell P3 that that same information during their first phone conversation immediately after the incident. The SP also provided inconsistent information to this investigator, P3, and P4 about where s/he waited outside the gas station for the VA. The SP told this investigator that s/he waiting approximately five steps in front of the gas station where s/he was able to see the front door, s/he told P3 that s/he stayed outside sitting on a bench that was approximately 20 steps from the gas station where s/he was not able to see the VA while inside, and told P4 via the Internal Review that s/he sat on a bench “by the side” of the gas station where s/he saw the front door. However, law enforcement video footage of the area including the gas station did not show the SP at any point near the gas station when the VA was there and LEO2 stated that the only bench in the area of the gas station was approximately 60 to 70 yards to the south and across the street from the gas station (which was out of the view of the camera) and if someone was on the bench, they would have seen the incident. Given this the SP’s credibility was diminished and the SP most likely was not with the VA or at the gas station at any point the VA was there. The SP allowed the VA to walk to the gas station unsupervised as s/he began to return to the facility. At some point, the SP turned around to return to the gas station, however, at that point, the SP had already allowed the VA unsupervised time in the community. The SP was not with the VA at the time of the incident and was unable to intervene to protect the health and safety of the VA, which resulted in the VA getting hit by a vehicle and sustaining injuries. Therefore, 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. The SP was responsible for the care and supervision of the VA at the time of the incident and was trained on the VA’s plans and the Reporting of Maltreatment of Vulnerable Adults Act. Although the SP told this investigator and P4 that P1 told the SP to return to the facility, the SP did not tell that information to P3 immediately after the incident. However, even had P1 told the SP to return to the facility, the SP was trained on the VA’s plans which stated that the VA was not allowed unsupervised time in the community. Therefore, 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 recurring because it was a single incident. However, it was serious because the VA sustained a serious injury including a laceration on his/her scalp that required the care of a physician including staples while in the emergency room. 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 not followed. The SP and P1 no longer work at the facility. 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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