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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: 1069182-H_CRS (Home and Community-Based Services-Community Residential Setting) Investigator(s): Scout Peterson/Scott Broady 651-431-6578 Suspected Maltreatment Reported: It was reported that while a vulnerable adult (VA) was visiting another consumer (C), staff persons were not supervising the VA as required and as a result the VA was sexually assaulted by the C. Date of Incident(s): December 10, 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 December 27, 2023; from documentation at the facility, law enforcement records, and medical records; and through nine interviews conducted with the VA, the C, four facility staff persons (P1-P4), and three supervisory staff persons (P5-P7). The VA enjoyed playing basketball, going to the local gym, and hanging out with friends. The VA was diagnosed with mild intellectual disability and had multiple mental health diagnoses. Information showed that the C lived at another facility operated by the same license holder. The C’s home was a single-level house with an attached garage. Upon entering the home there was a door leading to the garage immediately to the left, while the kitchen and the C’s bedroom was immediately to the right. Past the kitchen was a living room, a bathroom, and two additional bedrooms. The kitchen was visible from the living room, the door leading to the garage was visible from the living room depending on where one was sitting, and the C’s bedroom door was not visible from the living room. The VA’s Individual Abuse Prevention Plan (IAPP) stated that the VA was susceptible to sexual abuse by others including other vulnerable adults. The VA’s IAPP also stated, “Staff will be within visual or audible range of [the VA] and have an awareness of [the VA’s] needs and activities and will respond to situations that present a serious risk to [the VA’s] health, safety, or rights. If staff encounter a sexually abusive situation, staff will intervene as necessary to protect [the VA’s] health and safety.” According to the VA’s Coordinated Services and Supports Plan, the VA received 17 hours of 1:1 awake direct care staff and 7 hours of 1:1 asleep direct care staff per day. (Note: There was no information in the VA’s plans regarding the VA providing inaccurate information about his/her interactions with persons including the C.) According to the facility’s internal review, the VA said that on December 10, 2023, s/he was assaulted by the C. After reviewing surveillance video from the C’s facility, “numerous inconsistencies” were found with the VA’s version of events. P1-P4 provided information in the internal review that they did not witness any actions that supported the allegation that the VA was assaulted. The internal review also stated that the VA and the C’s staff “were always within visual or audio range of them and followed their IAPP’s and [the agency’s] policies and procedures.” The VA provided the following consistent information in an interview with this investigator and in the facility’s internal review and: · On the evening of December 10, 2023, the VA and P1 went to the C’s house to make supper. After the VA and the C finished eating, the C invited the VA into the garage. The VA stated that while they were in the garage, the C put his/her hand underneath the VA’s clothing and “forced” the VA to touch the C’s genitals. The VA estimated that they were in the garage for approximately two minutes. · The VA and C left the garage, entered the into the kitchen area, and the C then “push[ed]” and “physically forced” the VA towards the C’s bedroom and the VA told the C s/he did not want to go. The VA stated that P1-P4 were in the living room watching TV and when s/he told them that s/he did not want to go to the C’s room but they ignored the VA. · The C and the VA then entered the C’s bedroom. The VA told the C they could not have sex, and the C subsequently touched the VA’s genitals. The VA stated that s/he yelled, “I need help,” but no staff came to assist. After 5 minutes, the VA left the C’s bedroom and told his/her staff “we need to go.” The VA and P1 then left the C’s home. After they left, the VA told P1 “what happened.” According to the law enforcement report, · On December 13, 2023, the local law enforcement department received a report that the VA was at the C’s residence and the C sexually assaulted the VA. That same day, a law enforcement officer (LEO) interviewed the VA. The VA “believed” that on December 10, 2023, s/he and the C were in the garage for seven minutes during which time the C touched the VA’s genitals after the VA said, “No” four or five times. The C grabbed the VA by the wrist and “forced” the VA’s hand onto the C’s genitals. The VA stated that s/he tried to call for staff, but the C told him/her to “shut up and be quiet.” · The VA stated they then went inside to the C’s bedroom, but the VA did not tell staff they were doing so. The C grabbed the VA’s hands and pushed the VA into the C’s bedroom. The VA stated they were in the bedroom for around eight minutes and during that time the C touched the VA’s genitals for four to five minutes. The VA then got up, got dressed, left the room, then immediately left the home with P1 and told him/her “what had occurred.” · When a law enforcement officer (LEO) talked to the C, s/he initially denied that the VA was at his/her home on December 10, 2023. Later in the interview, the C stated that the VA was at the C’s residence. The C stated the VA touched the C’s genitals and the C told the VA to “get the fuck off.” The C denied any further sexual action or conduct with the VA and the LEO did not ask the C any additional questions. · The facility garage and kitchen camera footage showed that at 5:30 p.m. the VA and the C entered the garage, where the VA and C engaged in “mutual touching” before exiting the garage at 5:44 p.m. At that time, the kitchen camera showed the VA and C walked from the garage to the C’s bedroom where they remained until 5:58 p.m. when they exited the C’s bedroom. The officer documented, “The audio is hard to hear but does not at appear at any point to hear any attempts to yell for staff or concern.” During his/her interview, the C stated that s/he did not remember anything about the incident and did not provide information pertinent to the investigation but provided information as part of the facility’s internal review that on December 10, 2023, the VA came to the C’s house. The VA and C made French toast and hung out in the kitchen. The VA and the C then went out into the garage. While the VA and the C were in the garage, the C touched the VA’s genitals, and the VA touched the C’s genitals. The VA and the C then went into the C’s bedroom and the VA removed all of his/her clothing and the C touched the VA’s genitals. Consistent information was provided by P1-P4 that after P1 and the VA arrived to the C’s home, the VA and the C made French Toast and then went out to smoke. P1-P4 each provided information in the Internal Review that they were in the living room during this time, in visual range of the kitchen and in audible range of the garage. P1, who worked only at the VA’s facility, provided the following in an interview with this investigator, · On December 10, 2023, P1 worked with the VA as his/her 1:1 staff person and began his/her shift at 3 p.m. When P1 asked the VA what his/her plans were for the evening, the VA told P1 that s/he was going to the C’s house. P1 reminded the VA that s/he was supposed to “avoid” hanging out with the C because of interpersonal issues between the VA and the C, because the VA had a history of making false allegations against the C. The VA then called P7 and asked if s/he could go to the C’s house for a visit, which P7 approved. · Around 5:30 p.m., P1 and the VA arrived at the C’s home and the VA and the C began to make French toast in the kitchen. P1 went to the bathroom and then into a spare bedroom to address a personal need. “A few minutes later,” when P1 came out into the living room, s/he saw the VA and the C going into the garage. P1 stated that “when hanging out with a friend” it was okay for the VA to be in the garage without a staff person. P1 estimated that the VA and the C were in the garage for approximately 15 minutes. After the VA and the C came inside from the garage, the VA asked P1 if they could leave, and they did. P1 did not see the VA and the C go anywhere else inside the C’s home, but stated it was “possible” that they could have gone into the C’s bedroom without P1 seeing, based on where P1 was sitting in the living room. · After P1 and the VA left the C’s home, the VA told P1 that the C tried to give the VA “a hug or kiss.” The VA stated that s/he was sorry for asking P1 to take him/her to the C’s house. · P1 stated that staff were to encourage the VA not to be with the C, and if they made plans, to only get together in public. P1 stated, “as time went on” the VA kept requesting to hang out with the C, andP7 permitted the VA to do so. P1 stated that the VA talks about the C “all the time” and then makes up lies about the C. · P1 stated that s/he provided the VA with the supervision required according to his/her plan. The SP said s/he received training on the VA’s plans from P7 and stated that the “one thing” P7 told him/her was to prevent the VA from hanging out with the C, but “as time went on,” P7 continued to allow the VA to go to the C’s house. P5, a supervisor at the facility where the VA lived, provided the following in an interview with this investigator, · The VA had 24-hour supervision and was always to be “near” staff. P5 stated that staff were “always within sight” of the VA. The VA’s supervision requirements required single staffing. · P5 was not working the date of the incident. On December 11, 2023, P5 went to the facility and was told by an unknown staff person that the VA had gone to the C’s house and that P7 had given permission to do so. “Later on,” P5 spoke to P1 who stated that the VA had made plans to go to the C’s house and the VA called P7 who “gave [the VA] the okay,” so P1 took the VA to the C’s house. · Because the VA made accusations against the C in the past, when the VA and C were together, they had to be in public, stand a few feet apart, and not hand each other anything. The VA also had a history of “making accusations” against clients of the opposite gender and “every time” the VA was with the C there were “issues.” P5 added that staff were aware that the VA was not supposed to go to the C’s house, but that “what [P7] says goes.” P5 stated that the VA “loves” making accusations against “any” clients of the opposite gender, and that even though the facility “put in all these parameters” the VA continued to make false allegations against the C. Additionally, when the VA called P7 to ask if s/he can go to the C’s house, the VA gave P7 “very vague” descriptions of what they were going to do and knows how to “manipulate” staff persons. P2, P3, and P4 provided the following consistent information: · The C’s supervision requirements included having staff person supervision within sight or hearing. The C could be in the garage and his/her bedroom without staff supervision. · On December 10, 2023, P1 and the VA came to the C’s home. The VA and the C made food, ate, and went out to the garage while P1-P4 remained in the living room. P2 did not know how long the VA and C were in the garage, P3 stated they were in the garage for “10 to 15 minutes,” and P4 stated they were in the garage for 5 minutes “or less.” None of the staff persons saw the VA and the C go into the C’s bedroom. · P2 and P4 were able to see the garage door from where they were sitting in the living room. P3 was not able to see the garage door from where s/he was sitting in the living room. When the VA and the C came inside from the garage, the VA and the C went back into the kitchen and the VA asked P1 if they could leave. P2-P4 each stated that they did not see the VA and the C go into the C’s bedroom. P6, a supervisor at the facility where the C lived, stated that the C’s supervision requirements included that the C had to be supervised by two staff persons, one of whom had to be “eyes on” all the time except when the C was in the garage or his/her bedroom. P6 stated that s/he was not working the day of the incident, but there was nothing that P2-P4 were “supposed” to do that they did not. P7 stated that s/he did not recall who made the decision on December 10, 2023, to allow the VA to go to the C’s house. P7 had “approved it” in the past and there had been no issues. P7 stated that s/he was aware of a “history” between the VA and the C but did not know “the extent” of it. The VA was encouraged not to communicate with the C but continues to do so. P7 stated there is no “actual rule” that the VA and the C cannot be around each other, but that they are “encouraged” to be out in the community and “avoid alone time.” This investigator requested the security camera footage but did not receive it by the close of this investigation. A hospital sexual assault exam dated December 12, 2023, stated that the VA had no genital lesions, was negative for sexually transmitted diseases, and had a small abrasion on his/her left upper chest. Facility documentation showed that P1 was trained on the VA’s plans, P2-P4 were each trained on the C’s plans and P1-P4 were each trained on the Reporting of Maltreatment of Vulnerable Adults Act. Relevant Rules and/or Statutes: Minnesota Statutes, section 245D.07, subdivision 1a, paragraph (a) stated 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. Conclusion: On December 10, 2023, P1 brought the VA to the C’s residence. While they were at the home, the VA and the C were in the garage unsupervised for 14 minutes with P1’s-P4’s knowledge and then in the C’s bedroom for 14 minutes without P1’s-P4’s knowledge. The VA’s plans stated that the VA was susceptible to sexual abuse by others including other vulnerable adults and that, “Staff will be within visual or audible range of [the VA] and have an awareness of [the VA’s] needs and activities and will respond to situations that present a serious risk to [the VA’s] health, safety, or rights.” The VA also had an awake 1:1 staff person 17 hours a day. P2-P4 each stated that the C’s supervision requirements included having a staff person withing sight or hearing and P6 stated that the C had a 2:1 staff person ratio, one of whom had to be “eyes on” all the time except when the C was in the garage or his/her bedroom. P1’s failure to keep the VA in his/her visual/audible range and remain with the VA while at the C’s and P1’s-P4’s failure to know and/or be aware that the VA and the C left the garage and went into the C’s bedroom for 14 minutes were violations of Minnesota Statutes, section 245D.07, subdivision 1a, paragraph (a). Although P1 failed to follow the VA’s supervision requirements and remain with the VA; that P1, P5, and P7 each stated that the VA was encouraged to avoid the C; and that the VA provided consistent information that the sexually assaulted him/her when s/he was in the garage and the C’s bedroom, given that there was nothing in the VA’s plans that prevented him/her from being with the C, that the VA had a history of providing inaccurate information, that the LEO viewed the video and determined that the contact was “mutual touching” and at no point were there “attempts to yell for staff persons or concern,” there is not a preponderance of the evidence whether there was a failure to supply the VA care or services including supervision that was reasonable and necessary to maintain the VA’s physical or mental health or safety. It was not determined whether neglect did not occur (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. Action Taken by Facility: The facility completed an internal review and determined that policies and procedures were adequate and followed and there was not a need for additional staff training. Action Taken by Department of Human Services, Office of Inspector General: The facility was issued a Correction Order for the violations outlined in this report.
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