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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: 1118835-H_CRS (Home and Community-Based Services-Community Residential Setting) Investigator(s): Tessa Ripka 651-431-6612 Suspected Maltreatment Reported: It was reported that a staff person (SP) picked up a community person (CP) and brought them to the facility. While the SP cleaned the garage a vulnerable adult (VA) and the CP had sex. Later the CP’s family members threatened the VA. Date of Incident(s): Between July and September 2023; and ongoing 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 January 24, 2024; from documentation at the facility; and through three interviews conducted with one facility staff person (P), the VA’s case manager (CM), and the VA. Attempts were made by phone call and letter to speak with the VA’s guardian and the SP, but attempts were unsuccessful. The facility was a one level home with a detached garage. Through the front entrance was a living room. Past the living room to the right was a kitchen. To the left was a short hallway with three bedrooms (including the VA’s) and a bathroom. There were additional rooms and another bathroom in the basement. The VA was diagnosed with intellectual disability, ADHD (attention deficit hyperactivity disorder) with severe executive function impairment, disruptive mood dysregulation disorder, and persistent depressive disorder with psychotic-like features. The Individual Abuse Prevention Plan showed that the VA was at risk for sexual abuse and/or exploitation. The VA would likely seek or participate in an abusive situation with limited understanding of his/her actions and the corresponding consequences. Staff persons provided two-to-one-person centered staffing support for eight hours a day. Staff persons provided verbal redirection to help the VA practice safe behaviors at home and in the community. The Community Support Plan showed that the VA had a detailed and current history of severe behaviors and required one to one supervision. The VA had a history of being perpetrated on and would participate in sexual acts. The VA was easily influenced by others and had a history of inappropriately touching peers and talking about oral sex. The VA was visually supervised at all times when s/he was with other people. The VA provided the following information: · At some point during the summer of 2023, the VA met the CP through mutual friends. On several occasions after, the SP took the VA to the CP’s home to pick up the CP and bring the CP back to the facility to hang out. On most of the occasions the VA and CP played video games, watched TV, and hung out. · On the last occasion, before the SP picked up the CP, the SP told the VA that the CP wanted to have sexual contact with the VA. The SP said that the VA should have sexual contact with the CP. When they arrived back at the facility, the SP went out to the garage to clean. The VA and the CP stayed inside and went back to the VA’s bedroom and had sexual contact. Afterward the SP dropped the CP back off at his/her home. · A couple weeks later the SP and the CP got into a “whole bunch of arguments” and the CP got mad and told his/her family member that the sexual contact was nonconsensual (the CP was under 18). One of the VA’s friends (who also had a relationship with the CP), and the VA got into a fight at the CP’s house. The VA and the friend took “swings” at each other, but no one was hit. The VA thought that was the “end of it.” · Approximately “three weeks ago” (determined to be December 28, 2023), the CP and some of the CP’s friends and/or family members contacted the VA through a group message on Snapchat (instant messaging application). They threatened the VA and said that they were going to come to the VA’s house and kill the VA. · The VA told the P, and they went into the staff person office and turned off the lights. The VA saw the CP arrive at the facility in a vehicle. The CP got out of the vehicle, but the VA messaged the CP that the VA was not home so the CP left. The CP and his/her friends and/or family members had not contacted the VA since that time. The P and the Incident and Emergency Report provided the following information: · On December 28, 2023, the P was in the staff person office, when the VA came in and said that someone was trying to kill the VA and was coming to the facility to hurt the VA. The VA seemed “panicked” and worried that s/he was in danger. The P asked what was happening and the VA said that the CP’s family was threatening the VA because s/he had sexual contact with the CP. · The VA showed the P text messages of the threats to the VA which included two to three other people and were on Snapchat. The VA said that the people in the messages knew where the VA lived as the CP had come to the house on several occasions. The P told the VA to block the people involved or to not respond. The P kept all the doors locked and planned to call law enforcement if anyone came to the facility. · The VA told the P that over the summer the SP had “encouraged” the VA to have sexual intercourse with the CP. The SP had picked up the CP and brought the CP to the facility. · The VA also showed the overnight staff person texts that said, “Did you hear that?” and then “We will be back.” The VA “panicked” every time a car drove by the facility. Later the VA said s/he received a text that said that “they” were not coming back that night and then the VA seemed to calm down. · The VA had one on one staffing at all times and some two to one staffing for parts of the day. Staff persons could be in another room in the facility but should be within auditory range of the VA. The CM said that the VA could have visitors, but they needed to remain in the common areas of the facility where staff persons were present. The SP and P were each trained on the Reporting of Maltreatment of Vulnerable Adults Act, the VA’s plans, and the facility policies prior to the incident. Conclusion: A. Maltreatment: The VA said that sometime during the summer of 2023, s/he met the CP through mutual friends. The VA and the CP hung out a few times when the SP picked up the CP from the CP’s home and brought the CP to the facility. The CP and the VA played video games on several occasions. On one occasion, the SP told the VA that the VA should have sexual contact with the CP. The SP and VA picked up the CP and came back to the facility. The SP went to the garage to clean. The VA and CP went into the VA’s bedroom and had sexual intercourse. The CP was under 18 and several of the CP’s friends and/or family members later threatened the VA through Snapchat.
The VA had a history of inappropriately touching peers and was always visually supervised when with other people. The VA had at least one to one staffing at all times and given that the SP transported the CP to the facility and then left the VA and CP without supervision in the facility leading to the VA and CP having sexual intercourse which resulted in the VA being threatened and could lead to legal consequences as the CP was not yet of legal age, there was a preponderance of the evidence that the SP failed to provide the VA with supervision which was reasonable and necessary to maintain the VA’s 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. The SP was responsible for the VA’s supervision as s/he was the only staff person working at the time of the incident and was trained on the Reporting of Maltreatment of Vulnerable Adults Act, the VA’s plans, and the facility policies prior to the incident. 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 did not meet statutory criteria to be determined as recurring or serious as it was a single incident, and the VA was not injured. Action Taken by Facility: The facility completed an internal review and determined that policies and procedures were adequate. The SP no longer worked at the facility. Action Taken by Department of Human Services, Office of Inspector General: The SP was not disqualified from providing direct care services as a result of the maltreatment determination in this report. However, the SP 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 “recurring” and will result in the disqualification of the SP. The determination that the SP was responsible for maltreatment is subject to appeal.
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