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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: 1073052-H_CRS (Home and Community-Based Services-Community Residential Setting) Investigator(s): Beth Virden beth.virden@state.mn.us Suspected Maltreatment Reported: It was reported that a staff person (SP) and the SP’s friend (non-staff) physically assaulted a vulnerable adult (VA) causing bruising and cuts to the VA’s face. The SP then locked the VA outside in five degrees (Fahrenheit) weather for about ten minutes, without proper clothing, waiting for law enforcement to arrive. Date of Incident(s): January 20, 2024
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 2, paragraph (b), clause (1); and subdivision 17, paragraph (a): Conduct which is not an accident or therapeutic conduct which produces or could reasonably be expected to produce physical pain or injury or emotional distress including, but not limited to: hitting, slapping, kicking, pinching, biting, or corporal punishment of a vulnerable adult. 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 February 8, 2024; from documentation at the facility and law enforcement and medical records; and through interviews conducted with the VA, the VA’s guardian (G) who was also the VA’s family member, a facility staff person (SP), and a supervisory staff person (P). The VA’s case manager (CM) was also contacted. The CM did not have additional information related to this investigation and did not have prior concerns with the facility’s overall care and supervision. [Note: The SP’s friend (F) was mentioned as being present for or a witness to the incident. The SP declined to provide the F’s name or contact information. The SP said that s/he would ask the F to call this investigator but the F did not call or contact this investigator.] The VA’s support plan and support plan addendum provided the following information: · In 2023, the VA moved into the facility seeking support and services relating to his/her diagnoses, which included bipolar disorder. · “[The VA] is very independent but needs support with meal prep during dinner time. According to [the G], [the VA] can make breakfast and lunch by [him/herself]; but staff are still responsible to prepare [his/her] meals when [s/he] asks.” Staff also assisted with the VA’s medications, appointments, and transportation. · The VA was not susceptible to abuse from others and did not have a history of having “behaviors that would pose an imminent risk of physical harm to others.” “[The VA] will be reminded to avoid verbal or physical aggressions with [his/her] peers or staff to avoid getting into physical fighting. Staff are trained to deescalate [the VA’s] behaviors before it poses an imminent risk of fighting with [his/her] peers or staff.” The VA lived at the facility with two other housemates. The facility provided at least one staff person 24 hours a day for the housemates’ care and supervision. [Note: Information was provided that the VA’s housemates were not present for and did not witness the incident so the housemates were not interviewed.] The facility was a single-family home in a residential neighborhood. The main floor consisted of common areas, including a kitchen and a dining room, which were combined in one room at the back of the house. The VA provided the following information: · On January 20, 2024, around 4 p.m., the VA saw the SP put a frozen lasagna in the oven and turn the oven temperature to 500 degrees Fahrenheit (˚F). However, according to the VA, the lasagna box said that the oven should be set at 425˚F. After the SP left the kitchen, the VA changed the temperature to 425˚F. · The SP had a friend (F) visiting him/her at the facility who was not a staff person. · Around 4:30 p.m., the SP returned to the kitchen and prepared to take the lasagna out of the oven. The VA told the SP that the lasagna needed to cook longer but the SP disagreed and “just totally lost [his/her] shit.” The SP “grabbed” the VA and the VA “pushed” the SP into a corner. The SP responded by “pushing” the VA into the kitchen garbage cans and then “throwing” the VA onto a chair in the kitchen. The F “dog piled” on top of the VA and held the VA to the floor while the SP “kicked [the VA’s] ribs” and “punched [the VA’s] face.” The VA sustained scratches on his/her shoulders and chest, and a broken necklace. The SP and/or the F were “laughing at” the VA while this was occurring. · The VA told the SP that s/he was calling 9-1-1, which prompted the SP and the F to release the VA from the floor. The VA went outside with his/her cellphone and called 9-1-1. The SP then locked the house door preventing the VA from returning inside. The VA was wearing a t-shirt and was “hot and sweaty” from the incident. The VA said that it was 5˚F outside. · The VA said that the SP was not trying to restrain him/her. “[S/he] was fighting me.” The G said that s/he was on the phone with the VA when the incident started. The G heard the VA saying, “I took over … It’s not done … You can’t take it out of the oven yet.” The G then heard the VA swear and the call disconnected. The G could not hear what the SP was saying to the VA. The G tried to call back, but the calls did not connect. The G next called the P and told him/her what s/he heard. The P provided the following information: · On January 20, 2024, around 4:30 p.m., the P received a call from the G. The G explained that s/he had been on the phone with the VA and heard the VA and the SP arguing. The G had asked the VA to hand the phone to the SP, but the SP “refused” to talk to the G. According to the P, “That was a big mistake.” The G could have most likely deescalated the situation. Instead, the argument between the VA and the SP continued, and eventually, the G’s phone call got disconnected. The G “suspected a fight was going on.” · The P immediately drove to the facility and met law enforcement, who arrived in response to a 9-1-1 call. The F was gone, the VA was outside, and the SP was inside. · The P heard the SP tell a law enforcement officer (LEO) that the VA was questioning the SP’s cooking, and when the SP turned to leave the kitchen, the VA “attacked from behind.” The SP responded by restraining the VA to the floor and the F helped restrain the VA. · According to the P, the F was not a staff person, should not have been visiting the facility, and should not have gotten involved with restraining the VA. In addition, the SP should not have restrained the VA. Staff were not trained to restrain clients. “We don’t restrain.” · The VA was wearing a t-shirt and the P saw the VA had multiple scratches on his/her face and body. The P did not know if the VA’s injuries were sustained from the SP attacking the VA, or from the SP trying to restrain the VA. The P could see both scenarios causing the VA’s injuries. The LEO and a Brooklyn Center Police Department Report provided the following consistent information: · On January 20, 2024, at approximately 4:39 p.m., the SP called 9-1-1 for a “report of a disturbance.” “[The VA] was threatening the staff.” · “A short time later,” the VA called 9-1-1. “[The VA] was now calling in saying that the staff slapped [him/her] two times.” · “I arrived on scene where I met with [the VA] who I found outside … It should also be noted that I observed that [the VA] had been locked out of the group home. I observed that [the VA] was wearing jeans with just a t-shirt. It should be noted that the temperature during the call was 6 degrees Fahrenheit, with a feel like temperature of -5 degrees (Fahrenheit) … I observed that [the VA] was shivering and having a hard time speaking due to being outside in the cold. I then advised [the VA] to sit in the back of my squad car in order to warm up.” · “It should also be noted that while walking [the VA] to my squad car, I observed that there was a large amount of redness and swelling around [his/her] eye, as well as I observed that there were visible fingernail scratch marks on the other side of [his/her] eye. I also noticed that the collar area of [the VA’s] shirt was stretched out, and that there were scratch marks and additional redness along [his/her] chest area and in other miscellaneous parts of [his/her] body.” · “[The VA] stated that [s/he] had gone into the kitchen and a verbal altercation occurred between [the VA and the SP] over the food that was being cooked … After telling [the SP] to leave the kitchen, [the SP] then grabbed [the VA] by the shirt and began threatening [the VA]. [The VA] stated that [s/he] then pushed [the SP] away from [him/her], at which point [the SP] then began reengaging with [the VA]. [The VA] stated that [s/he] was in fear that [the SP] would attempt to grab [him/her] again. [The VA] stated that [s/he] then punched [the SP] to try and make [him/her] stay away from [him/her]. [The VA] stated that after [s/he] punched [the SP], that [the F] then tackled [the VA] to the ground and held [the VA] to the ground. While being held to the ground, [the SP] then got on top of [the VA] and began punching and slapping [him/her] multiple times in the face and body.” · “[The SP] stated that [s/he] had gotten into a verbal altercation with [the VA], and that [s/he] restrained [the VA]. [The SP] then stated that [s/he] asked [the F] to call 9-1-1. [The SP] stated that [the VA] had initially struck [the SP] in the back of the head. [The SP] stated ‘I didn't hit [the VA] back, I restrained [him/her].’” · When the LEO later asked the SP again about the F, “[The SP] stated that [the F] was only at the group home to collect [the SP’s] car, and that [the F] never came inside the group home. It should be noted that earlier … [the SP] stated ‘I asked [the F] to call 9-1-1.’ It should be noted that this was a discrepancy with [the SP] stating that [the F] was never inside.” · Per the LEO, “It should also be noted that there were many discrepancies with the statement that I took from [the SP]. As well as I do not believe that [the VA] would receive the injuries that [s/he] did from only being restrained.” A North Memorial Health Record stated the following: · “[The VA] … presents to the emergency department for a physical assault. The patient reports that earlier today (01/20) [s/he] was in the kitchen at [his/her] group home when [s/he] was involved in a verbal altercation with a staff member that turned physical. The patient says the staff member grabbed [him/her] by [his/her] collar and the patient and staff member scuffled. The patient explains another staff member entered the kitchen and the patient was shoved, punched, and kicked by [him/her]. The patient reports [s/he] told the staff members [s/he] was going to call the police which stopped the altercation. Here, the patient endorses pain to [his/her] right ribs, right neck, head, and side of face.” · A physical examination revealed “right facial abrasions with mild swelling of the right side of face. Scratches over left cheek … The patient is able to move their neck without pain or difficulty. Mild tenderness to palpation of posterior cervical spine.” · This medical record contained photographs of the VA’s injuries, which showed bruising on the VA’s arm (unspecified), redness on the back of the head or neck and right cheek, and two red scratches on the left cheek. · The VA was released back to the facility with a plan to take over-the-counter pain medications. The SP provided the following consistent information in his/her incident report, for the facility’s Internal Review, and to this investigator: · The VA had a history of interfering with the SP’s job duties by blocking access and name calling. The VA did this to other staff but seemed to “target” the SP more often. In the event this occurred, the SP did not engage but rather waited a couple of minutes for the VA to settle. Once the VA was settled, the SP continued with whatever task s/he had been doing when the interference began. The SP also reported the incident to a supervisor. The supervisor typically handled it by talking to the VA. The VA would typically apologize and remain appropriate for a few days before starting up again. · On the day of the incident, around 3 or 4 p.m., the SP put a frozen lasagna in the oven for that evening’s meal. The SP then sat in the living room reading a book and waiting for his/her timer to sound indicating it was time to check the lasagna. · Around 4 or 5 p.m., the SP’s timer sounded, which prompted the SP to go to the kitchen. The VA was already in the kitchen talking to the G on the phone. The VA immediately questioned the SP’s cooking and blocked the SP’s access to the oven. The SP told the VA to stop interfering and that it was the staff’s job to prepare meals for everyone. The VA told the SP, “Every time you cook, you fuck up the food.” The SP responded, “Okay. I will go sit and when you’re done, I will finish.” · “I turned around. [The VA] came and punched me close to my neck area. When [s/he] hit me, I decided to restrain [him/her]. [The VA] attacked me from behind.” The SP pulled the VA to the floor and onto the VA’s back. The SP crossed the VA’s hands over the VA’s chest and held them in place. The SP used his/her voice activation on his/her cellphone to call 9-1-1. The SP was restraining the VA on the floor when the F walked into the kitchen. · Prior to this, the F had asked to borrow the SP’s car and the SP agreed. The plan was for the F to arrive at the house and then they would meet outside to exchange the car keys. It was never the plan for the F to enter house. However, when the F arrived and the SP was not outside to meet him/her, the F repeatedly called the SP’s cellphone, which went unanswered. The F then knocked on the front door, which also went unanswered. The F then opened the door, which was unlocked, and let him/herself inside. The F walked into the kitchen where the SP was actively restraining the VA to the floor. The SP told the F that the car keys were on the table. The F grabbed the keys and left in the SP’s car. The F did not touch the VA or help the SP restrain the VA. · After “a couple of minutes,” the VA was calm and the SP let go of the VA’s hands. The VA stood up and walked outside. · Once the VA was outside, the SP went to change another client’s undergarment. The SP assumed the LEO arrived and talked to the VA outside. The LEO then let him/herself into the house and met with the SP. · The SP did not lock the VA out of the house. The door was unlocked as evidenced by the LEO entering on his/her own. [Note: The Brooklyn Center Police Department Report did not state whether the door to the house was locked or unlocked.] · The SP did not punch or kick the VA. The SP did not know how the VA sustained injuries. The SP added that the VA had a lighter skin tone and so it was easier to see redness and bruising. The SP had a darker skin tone and so it was more difficult to see his/her redness and bruising from the incident. The SP also commented that skin tones, like the VA’s, might also turn red when the person was angry or yelling. The facility’s Emergency Use of Manual Restraint (EUMR) policy stated that staff used the least restrictive technique possible to deescalate a behavior. However, if an immediate intervention was needed to protect the person or others from harm, staff were allowed to use an EUMR. They type of EUMR must be the least restrictive intervention and must end when the threat of harm ended. Facility documentation stated that the SP and the P received training on the VA’s support plan and support plan addendum, the facility’s policies and procedures, and the Reporting of Maltreatment of Vulnerable Adults Act.
Conclusion: A. Maltreatment: On January 20, 2024, there was an altercation between the VA and the SP. The VA stated that the SP pushed him/her and restrained him/her to the floor with the F’s help. The SP then kicked and punched the VA while s/he was on the floor. The SP said that the VA punched him/her from behind, which prompted the SP to restrain the VA to the floor. The SP denied kicking or punching the VA, and said that the F did not help restrain the VA. The LEO, the P, and a medical record each recorded observed injuries on the VA, including redness and swelling on his/her face and chest, and scratch marks. Per the LEO, “… I do not believe that [the VA] would receive the injuries that [s/he] did from only being restrained.” Given that the SP provided inconsistent information about the F’s involvement or, as put by the LEO, “there were many discrepancies” and declined to provide the F’s contact information; that the VA’s account did not contain discrepancies; and that the VA’s injuries were believed to be more consistent with the VA’s account than the SP’s account; and that the SP had reason to minimize his/her actions for fear of repercussions, it was determined that the VA’s account was more credible than the SP’s account. The SP’s conduct of kicking and punching the VA while restraining him/her to the floor was inconsistent with the facility’s Emergency Use of Manual Restraint policy and with the standards of a professional caregiver in a facility licensed by the Department of Human Services. It was determined that there was a preponderance of the evidence the SP’s conduct was not accidental or therapeutic and included hitting and kicking, which produced physical injuries and could reasonably be expected to produce physical pain or injury. It was determined that physical abuse occurred (conduct which is not an accident or therapeutic conduct which produces or could reasonably be expected to produce physical pain or injury or emotional distress including, but not limited to: hitting, slapping, kicking, pinching, biting, or corporal punishment of a vulnerable adult). In addition, although there was conflicting information regarding the F’s involvement in restraining the VA, the SP was responsible for the VA’s care and supervision. The SP allowed the F to visit the facility and thereby was responsible for the F’s conduct. The VA told more than one person, and the P overheard the SP tell the LEO, that the F helped restrain the VA to the floor. Although the SP denied that the F was involved and left the facility, it was already determined that the VA’s accounts were more credible than the SP’s. The F was not a staff person, and was not trained on the VA’s support plans or the facility’s Emergency Use of Manual Restraint policy; and for these reasons, the F’s conduct increased potential to cause injury to the VA. In addition, although the SP and the VA provided conflicting information regarding whether the VA was locked out of the house, the LEO documented, “It should also be noted that I observed that [the VA] had been locked out of the group home. I observed that [the VA] was wearing jeans with just a t-shirt. It should be noted that the temperature during the call was 6 degrees Fahrenheit, with a feel like temperature of -5 degrees.” The VA remained outside and was “shivering” and having trouble talking due to the cold when the LEO arrived. There was no information the SP attempted to bring the VA back inside or ensure the VA remained warm. Given the SP’s responsibility and failure to address the F’s involvement and the VA’s condition outdoors, there was a preponderance of the evidence that there was a failure to supply the VA with care or services, which were 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. The SP was responsible for the VA’s care and supervision. The SP received training on the VA’s support plan and support plan addendum, the facility’s policies and procedures, and the Reporting of Maltreatment of Vulnerable Adults Act. 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 physical abuse and neglect for which the SP was responsible was not “recurring” maltreatment but was “serious” maltreatment. The SP’s actions were considered a single incident of maltreatment that met two definitions of maltreatment and the VA sustained an injury, which met the definition of “serious” maltreatment.” 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 facility provided additional training to staff persons regarding the emergency use of manual restraint, de-escalation, and visitors/guests. The SP was no longer worked 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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