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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: 1070745-H_CRS (Home and Community-Based Services-Community Residential Setting) Investigator(s): Deb Neubauer-Hoffman/Alice Percy 641-431-6567 Suspected Maltreatment Reported: It was reported that a supervisory staff person (SP) frequently yelled and swore at two vulnerable adults (VA1 and VA2), causing the VAs to cry and no longer want to live at the facility. Date of Incident(s): Ongoing, prior to June 15, 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 2, paragraph (b), clause (2): 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: the use of repeated or malicious oral, written or gestured language toward a vulnerable adult or the treatment of a vulnerable adult which would be considered by a reasonable person to be disparaging, derogatory, humiliating, harassing, or threatening. Summary of Findings: Pertinent information was obtained during a site visit conducted on July 20, 2023; from documentation at the facility; and through seven interviews conducted with two facility supervisory staff persons (P1 and P2), the SP, VA1, VA2, another resident (R) who lived at the facility, and VA1’s guardian (G). VA1 enjoyed playing cribbage, taking walks, going on community outings, and spending time with friends and family. VA1’s diagnoses included intellectual disabilities, schizoaffective disorder, psychoactive substance dependence, major depressive disorder, mood disorder, and asthma. According to VA1’s Individual Abuse Prevention Plan (IAPP), when VA1 displayed increased symptoms of his/her diagnoses, the staff persons were trained to try to change the subject to something that VA1 enjoyed. If VA1 was difficult to redirect, the staff persons were to offer VA1 his/her medications. VA1 would recognize and report physical, verbal, or emotional abuse. VA2 enjoyed fishing, camping, going for walks, going out to eat, watching television, and spending time with his/her friends. VA2’s diagnoses included schizophrenia, bipolar disorder, diabetes, chronic kidney disease, and bladder disorders. VA2 was not subject to guardianship. VA1 stated that the SP was “kind of rude to us” and “always” swore at the residents. The SP used the “F word” three or four times a day when speaking to the residents. The SP frequently used the word when talking to VA2. On one occasion, the SP told VA1 that s/he did not have to “fucking repeat” something two or three times and that s/he could hear VA1 “fair and square.” VA1 “got mad” and left the facility and went to visit another residential program. VA1 was “relieved” that the SP no longer worked at the facility because the SP “pissed off” VA1. VA2 stated that the SP was demanding and used “assaultive” language. The SP frequently used words like fuck, damn, and bitch. The SP did not call VA2 names, but often swore at him/her at least once a day. The SP made VA2 feel “pretty bad.” On one occasion, a staff person asked VA2 to sign a document and the staff person then placed the document in the staff office. When the SP found the document in the staff office, s/he yelled at VA2 because it was VA2’s “fault” that the staff persons left the document in the office. The SP’s voice was “high pitched and mean” when s/he yelled at VA2. The SP “got mad all the time” and said “fuck this” or “fuck you.” VA2 became upset when the SP yelled and swore at him/her and felt like s/he was being scolded. VA2 stated that s/he was so upset by the SP’s behavior that s/he wanted to move out of the facility. The R was uncertain if any of the staff persons swore at the residents and was unable to provide information about the SP’s interactions with the residents. According to facility documentation, on June 14, 2023, a supervisory staff person (P4) talked to VA1 about the concerns VA1 had about the SP’s interactions with the residents. VA1 told P4 that s/he asked the SP a question “two times” that morning and the SP “spazzed out” and yelled at VA1. VA1 told P4 that the SP swore “a lot” and used the “f word” two or three times each day. The SP became angry at the residents if they were doing things “wrong” and “bitches at them a lot.” VA1 told P4 that when the SP yelled at him/her, s/he “felt left out, not wanted, and not a part of the team.” VA1 also told P4 that the SP “talked bad” about staff persons who were not present. P1 stated that s/he frequently worked with the SP, but his/her interactions with the SP were “minimal” because the SP spent much of his/her time in the staff office. When the residents asked the SP questions, the SP raised his/her voice, used “curse” words, and told them they would have to wait. P1 described the SP’s yelling as “like yelling at a toddler to get down.” P1 believed that if the SP talked to him/her like that, s/he would “feel bad.” P1 believed that the SP’s interactions with the residents were inappropriate. The SP yelled at the residents “at least a couple times per week.” On one occasion, P1 heard the SP ask VA2, “Are you fucking stupid?” The SP frequently told the residents, “You are going to have to fucking wait,” “Give me a damn minute,” and “I already fucking told you.” P1 stated that the residents would “walk away” or tell P1 that the SP told them to ask P1 when they had questions. P1 stated that another staff person (P3) told P1 that the SP was not respectful, was rude, talked down to the residents, and “belittled” them. P1 stated that the SP “swore all the time” in his/her conversations. P1 was not aware of any interpersonal conflict between the SP and the other staff persons. P2 stated that on one occasion, s/he saw VA2 throw away a burrito wrapper as s/he waited to heat the burrito and the SP “freaked out” and “angrily” asked VA2 why s/he could not wait a minute to cook his/her food. VA2 was “confused” and “a little upset.” Recently, VA2 talked to P2 about not wanting to live at the facility anymore because the SP “always swears” at him/her. The SP had yelled at VA2 because another staff person placed VA2’s paperwork in the staff office even though VA2 was not the person who put the paperwork in the office. VA2 told P2 that the SP said, “Fuck you,” to VA2 and was “always yelling” and “mad” at VA2. VA1 also told P2 that the SP “swears a lot” and is “mean” to him/her, but did not go into details. P2 stated that in the past, s/he spoke to the SP about his/her swearing and interactions with the residents. P2 then began to redirect the SP if s/he heard the SP raise his/her voice. P2 did not notice the SP engage in any inappropriate interactions after that. The SP provided the following information: · The SP stated that in the past, s/he received coaching on using a more therapeutic approach when working with the residents. There were concerns that the SP “sounded monotone and grumpy” when talking to the residents. On June 14, 2023, the SP was cooking dinner for the residents when VA1 wanted to cook a burrito in the microwave, but threw away the wrapper, which contained the directions on how long to cook the burrito. The SP stated that s/he was “a little short” with VA2 when s/he asked the SP how to cook the burrito. · The SP stated that s/he did not believe that s/he was abusive or rude to the residents. The SP did not mean to sound mean or rude or to “come off as angry” and that was “the way I sound.” The SP “tried [his/her] best and did not believe s/he was “abusive” to people. The SP stated that s/he had a “bad filter” and “cussed.” The SP believed s/he might have been “too comfortable” working with the group of staff persons at the facility and had a level of rapport where they knew the SP frequently swore, but not in a mad or angry manner and it was not directed at the residents or staff persons. The SP stated that s/he probably said the word “fuck” a couple times a day while s/he was working at the facility, but never said “fuck you” to any of the residents. The SP did not recall if s/he ever asked a resident, “What the fuck do you want?” The SP did not believe that s/he would be bothered if someone said that to him/her, although being spoken to in that manner “would not be nice.” The SP believed another staff person “who wanted [the SP’s] job” made complaints about the SP’s interactions with the residents, because the SP did not believe s/he was ever abusive to the residents or the staff persons. The G stated that VA1 did not tell the G about concerns s/he had regarding the SP’s interactions with VA1. The G stated that VA1 was an accurate reporter of events. Facility documentation showed that the SP, P1, and P2 each received training on the Reporting of Maltreatment of Vulnerable Adults Act, on the facility’s policies, and on the VA’s plans prior to the incidents. Relevant Rules and Statutes: Minnesota Statutes, section245D.04, subdivision 3, paragraph (b), state that a person’s protection related rights include the right to be treated with courtesy and respect. Conclusion: A. Maltreatment: VA1 and VA2 each stated that the SP frequently swore at them and VA2 stated that the SP made VA2 feel “pretty bad.” VA2 stated that s/he was so upset by the SP’s behavior that s/he wanted to move out of the facility. P1 and P2 each stated that the SP frequently yelled and swore at VA1 and VA2. The SP stated that s/he did not believe that s/he was abusive or rude to the residents and did not mean to sound mean or rude or to “come off as angry,” but that was “the way I sound.” Although the SP did not believe that s/he was rude to VA1 or VA2 and that while s/he frequently swore, s/he did not mean it in an angry manner, the SP had reason to minimize his/her actions and the information provided by VA1, VA2, P1, and P2 was consistent that the SP yelled and swore at VA1 and VA2. The SP’s actions were inconsistent with the standards of a professional caregiver in a facility licensed by the Department of Human Services; were not accidental or therapeutic conduct; and were a violation of Minnesota Statutes, section245D.04, subdivision 3, paragraph (b). Given that consistent information was provided that the SP repeatedly yelled and swore at VA1 and VA2, that VA1 told P4 that when the SP yelled at him/her, s/he “felt left out, not wanted, and not a part of the team;” and that VA2 stated the SP made VA2 feel “pretty bad” and that s/he wanted to move out of the facility, there was a preponderance of the evidence that the SP’s repeated actions would be considered by a reasonable person to be disparaging, derogatory, humiliating or threatening and could reasonably be expected to produce emotional distress to VA1 and VA2. It was determined that emotional 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: the use of repeated or malicious oral, written or gestured language toward a vulnerable adult or the treatment of a vulnerable adult which would be considered by a reasonable person to be disparaging, derogatory, humiliating, harassing, or threatening). 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. Facility documentation showed that the SP received training on the Reporting of Maltreatment of Vulnerable Adults Act, on the facility’s policies, and on the VA’s plans prior to the incidents. The SP was responsible for maltreatment of VA1 and VA2. 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. The substantiated emotional abuse for which the SP was responsible was not serious because it did not meet the definition of serious, but it was recurring because the SP was responsible for the emotional abuse of two vulnerable adults. The SP was disqualified from providing direct contact services. Action Taken by Facility: The facility completed two internal reviews and determined that the facility’s policies were adequate and were followed by the staff persons. After the incidents, the staff persons received additional training on the facility’s policies. The SP 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. Given that the facility took corrective action a correction order was not issued for the violations outlined above.
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