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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: 1096699-SUD (Substance Use Disorder) Investigator(s): Christine Henne 651-431-3444 Suspected Maltreatment Reported: It was reported that a staff person (SP) exchanged sexually explicit text messages with a vulnerable adult (VA). Date of Incident(s): Ongoing prior to November 28, 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 for this investigation was obtained remotely, including documentation from the facility; and through three interviews conducted with a supervisory staff person (P1), the VA’s parole officer (PO), and a client (C1) who also received services at the facility. Attempts were made via telephone, email, and certified and non-certified mail to contact and interview the SP, but the SP did not respond to the requests. Contact information for the VA was not available. This investigator spoke to the PO who had contact information for the VA but declined to provide the information. The PO stated s/he spoke to the VA and that the VA did not want to provide information for this report. Attempts were made via telephone, email, and letter to contact and interview another client (C2), who also received services at the facility, but C2 did not respond to the requests. The VA’s Comprehensive Assessment Summary and Update stated that the VA provided information that s/he was diagnosed with anxiety, schizophrenia, bipolar, and depression. The VA also had a history of drug use. The VA was not subject to guardianship. According to facility documentation, the VA moved into the facility on November 14, 2023, and the VA was discharged from the facility on November 27, 2023. On Friday, November 24, 2023, P2 sent an email to P1 and other facility staff persons that a client (C1) came to the facility office and told P2 that the VA told him/her that the VA gave his/her phone number to the SP. The VA told C1 that the SP “requested sexual pictures” from the VA. C1 said that s/he noticed the SP and the VA “making eyes” at each other and C1 was concerned for the VA. The VA told C1 that s/he was “jealous” because the SP was also texting another client (C2). P1 and C1, the facility’s Internal Review (IR) provided the following information: · On Monday, November 27, 2023, P1 received information that the previous weekend, the VA and C2 had a “little argument” regarding the SP and each of their communications with the SP. P1 then had the VA come to his/her office to talk about the aforementioned and asked the VA if s/he was “communicating” with the SP. At first, the VA “hesitated,” but P1 asked the VA to be “honest” because it was about the safety of the clients at facility. The VA then “admitted” to texting with the SP. P1 asked if the VA would show him/her some of the text messages. P1 saw some text messages, but said some were potentially left out/missing, but there was enough to know there was communication with the SP and the VA and some of it was sexual in nature. The VA screen shot the text messages and emailed them to P1. P1 saw that the phone number was the same phone number of the SP’s. P1 was not aware of any sexual contact between the VA and the SP and stated that the VA said it was “just text messages.” · P1 also talked to C2 to see if s/he had communication with the SP and C2said s/he was “friends” with the SP on Facebook and that the SP “Facebook friended” him/her “a few months ago.” C2 said that their communication was nothing more than “hey how’re you doing” and there was never any “sexual talk.” · C1 provided information to this investigator that was consistent with the information P1 provided. C1 also stated that sometime between November 17, 2023, and December 1, 2023, probably in the “middle” of that time, “around Thanksgiving time,” C1 became aware of the communication between the SP and the VA. When C1 and the VA were in the smoking area at the facility, the VA “confided” in C1 that the VA was texting with the SP and that the SP asked the VA for a picture of the VA’s genitals. · On November 27, 2023, after P1 talked to the VA, P1 talked to the SP about the information and the SP “acted like [s/he] didn’t know what was going on.” Screen shots of text messages between the SP and the VA provided the following information and as P1 stated was likely missing/left out text messages (Note: The below text messages reflect exactly how it was written and abbreviations spelled out in parenthesis were taken from dictionary.com): · On a Wednesday (Note: the screen shot did not provide a date), at 6:16 p.m., the following text messages were exchanged: (Note: The SP’s phone number was listed on the top of the first screen shot. It was unclear who sent what text messages as the SP’s name was not saved on the VA’s phone yet. However, it was likely that the VA started the texting conversation based on the screen shot image and contact icon.) o The VA texted, “What u mean for a living lbs (laughing but serious). I wanna Fuck u so bad. Just seeing u make me [aroused] no cap (no lie or for real).” o The SP texted, “That’s wats up. I fuck for a living lbs. Porn.” o The VA texted, “I got skills. How old are u.” o (Note: At that point, it appeared the VA saved the SP’s name/contact info on his/her phone because the blank icon changed to the SP’s first initial.) The SP texted the VA, “Be honest u been keeping shit on the low?” The VA texted, “Yeah why wouldn’t. But just know this hoe be on ur [genitals].” The SP said, “Jus makin sho but let [him/her] ain’t nun wrong wit it keep it low.” The VA said, “Wym” (What do you mean). The SP texted, “Don’t react to it why u say [s/he] on my [genitals]?” The VA texted, “All this [boy/girl’s] is but [s/he] told me duh.” The SP texted, “Huh.” · On an unknown date (Note: The screen shot did not provide a date and it was unclear if it was the same date as the aforementioned information.) The VA texted the SP, “U gotta nice size [genitals] no cap.” The SP texted the VA, “Fuck who?” and the VA texted, “I’m talk to u later.” · On Thursday (Note: the screen shot did not provide a date), at 12:18 p.m. the SP texted the VA, “Let me see that [genitals].” On a following unknown date (Note: The screen shot stated “yesterday.”) at 6:01 p.m. the SP texted the VA, “Stop talking about me.” That same date, at 6:04 p.m., the VA texted the SP, “Aye don’t text my line with that’s bitch shit fam Ill get u fucked up nd who u talking to Dismiss urself foreal pussy.” The PO did not have information about the incident and was not aware of the VA having a cell phone while at the facility. The facility’s fraternization policy stated that “employees are strictly prohibited for having any sexual or unprofessional relationships with clients and will be terminated if found in violation of this policy. Staff must wait two years prior to engaging in any nonprofessional relationships any client pass or present.” The SP was trained on the fraternization policy and on the Reporting of Maltreatment of Vulnerable Adults Act. Based on the SP’s role at the facility, s/he did not require training on the VA’s plans. Conclusion: A. Maltreatment: On November 27, 2023, the VA told P1 that s/he was texting with the SP and screen shots of the text messages showed that some of the messages were sexual in nature. The VA told P1 that s/he only texted with the SP and that they had not had sexual contact. The VA also told C1 similar information to what s/he told P1 and C1 provided consistent information during his/her interview to corroborate the account. Although the SP and the VA did not provide information for this report, that the SP “acted” like s/he did not know “what was going on” when P1 spoke to him/her after the incident, and that likely not all of the text messages were provided, the text messages obtained included that the VA and the SP wanted to have sexual contact with one another and that the SP asked to see the VA’s genitals. Given the VA’s history of substance use disorder, it was reasonable that the VA would continue to need supports to develop and maintain the necessary life and social skills to maintain sobriety. The SP’s interactions with the VA likely would hinder the VA’s ability to have a consistent understanding of the parameters of a therapeutic relationship which could interfere with other individuals’ attempts to provide therapeutic services to the VA, both now and in the future. Therefore, given the VA’s history, that the description of the text messages between the SP and the VA were sexual in nature, there was a preponderance of the evidence that the SP’s interactions were not therapeutic and were a failure to supply the VA with care or services that were 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 trained on fraternization policy and on the Reporting of Maltreatment of Vulnerable Adults Act. Based on the SP’s role at the facility, s/he did not require training on the VA’s plans. 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 because the SP’s actions were considered a pattern of behavior and therefore a single incident which did not meet the definition of serious. Action Taken by Facility: The facility conducted an internal review and stated that their policies and procedures were adequate, and policies and procedures were followed in regard to reporting, follow through, action taken on behalf of client safety. 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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