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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: 1070634-H_CRS (Home and Community-Based Services-Community Residential Setting) Investigator(s): Deb Neubauer-Hoffman 651-431-6567 Suspected Maltreatment Reported: It was reported that a staff person (SP) purposefully antagonized a vulnerable adult (VA), joked about the VA dying, and called the VA “retarded” (referred to the R word throughout the remainder of this report) to the VA’s face. Date of Incident(s): Ongoing, prior to September 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 September 8, 2023; from documentation at the facility; and through 13 interviews conducted with facility staff persons (the SP, P1-P8), and four guardians (G1-G4). This investigator met the VA, but due to his/her diagnoses, the VA did not provide information for this investigation. The VA’s diagnoses included severe development disability and autistic tendencies. The VA enjoyed people watching, wading in water, hot tubs, and puzzles with preferred staff persons. The VA’s program plans provided the following information: · A Coordinated Service and Support Plan Addendum (CSSPA) stated that the VA preferred to have one staff person approach him/her at a time. The VA enjoyed people watching, joking with staff persons, and watching television. The VA preferred “yes” and “no” questions. The VA chose his/her favorite staff persons and aggressed towards others when his/her favorite persons were in the area in an attempt to control the environment and the people in it. The VA became “overstimulated quickly in environments that have loud noises.” · An Individual Abuse Prevention Plan (IAPP) stated that the VA was not able to deal with verbally or physically aggressive people due to his/her communication difficulties, his/her lack of assertiveness, and his/her own triggers. It was reported that if someone were to be verbally aggressive with the VA, s/he would become physically aggressive towards them. The VA needed physical assistance with activities of daily living (personal grooming, toileting, dressing, eating, etc.). · A Self-Management Assessment (SMA) stated that the VA spoke very few words and relied on staff persons to understand his/her gestures and one-word expressions. · A Functional Support Strategies assessment stated that staff persons were supposed to encourage the VA’s independence whenever possible. The VA was capable of many independent tasks such as showering, dressing/undressing, but did not like to do things on his/her own or show how independent s/he was, especially for staff persons that s/he favored. Staff persons were supposed to “encourage [the VA] first and if needed partially help [him/her]” and encourage him/her to finish the task independently. The VA did not like “feeling intimidated or dictated to.” It worked well to “keep loud noise to a minimum” in the VA’s environment as the VA displayed target behaviors “less frequently in quieter environments.” P1 provided the following information: · It was “well known” that the VA and SP did not like each other, and the SP got into power struggles with the VA. The SP stated that the VA needed “to learn to deal with people [s/he] doesn’t like” and the SP antagonized the VA “until compliance” occurred. P1 believed the SP got “enjoyment” out of antagonizing the VA. Examples included the SP asking the VA multiple questions “rapid-fire” and the VA responded by saying, “No,” at a normal volume but as the SP’s questions continued, the VA got louder and more agitated and responded with yelling. When other staff persons attempted to step in the SP gets “angry.” · P1 said that the VA spent “two to six hours” undressed because the SP said the VA can dress him/herself and s/he needed to learn to be independent. The SP did not assist, even when the VA held out an article of clothing and signed, “Please.” · P1 observed the SP “singing loudly” despite acknowledging the VA “hates this” as evident by the VA yelling, “No,” being aggressive, or “grunting.” The SP responded by singing louder. The SP said that s/he found enjoyment in signing, but P1 believed the SP “gets enjoyment from [the VA] being annoyed.” On one occasion the VA threw something at the SP and the SP responded by saying s/he was going to sing because the VA did that. · P1 heard the SP call the VA the “R word” more than once. On one occasion the VA was yelling and the SP said that s/he had to “spend the day working with the [R word].” The VA was in the same room at the time and the SP looked at the VA when s/he made that statement. On another occasion, the VA was in a bathroom with the SP standing outside the bathroom door. The SP said if s/he got in trouble for how s/he treated the VA, P1 would have to “be [the SP’s] witness to how [the SP] does not beat up [R word] people.” · On one occasion there was a discussion about staff persons taking the VA swimming and the SP made a comment that s/he would “purposely delay” a prompt rescue if the VA went too far in the water. P2 provided the following information: · The VA needed some assistance with dressing such as putting on socks, putting his/her feet/legs into briefs, and pulling a shirt over his/her head. The VA requested assistance from the SP “almost every shift;” however, the SP did not help and wanted P2 to “stay out of the way” even after P2 offered his/her assistance. The SP said that it was “not right that [the VA] gets to pick and choose who [the VA] works with.” Although the VA was aggressive to other staff persons, the VA’s aggression was “mainly” towards the SP.
· On an unidentified date, the SP was working with the VA and P2 was in an office. The VA was in the bathroom without clothes on, sitting on the toilet for “about two hours” and P2 heard the SP eventually ask the VA if s/he was ready for help. The VA “would not respond.” P2 did not know “what lesson” the SP was trying to teach the VA so P2 went into the bathroom, “took over” and assisted the VA with getting dressed. On another occasion (approximately the summer of 2023), the SP was working alone with the VA and said that the VA sat in his/her room naked “the whole day” because the VA refused to get dressed. · Although P2 did not specifically say that the SP used the “R word” directed at the VA, when asked if s/he heard about any staff person calling the VA the “R word,” P2 said, “I am assuming [the SP],” because “[the SP] is not very nice to [the VA].” P2 said the VA “hates” when the SP sang, and the SP purposely sang “to annoy” the VA at least “a couple times a week” over the last year and the VA reacted by “grunting” or getting off a couch and trying to “attack” the SP. The SP then responded by continuing to sing and sometimes sang louder. P3 provided the following information: · The VA did not like the SP because s/he engaged in “power struggles.” For example, when P3 worked in the morning, on a “good day” it generally took the VA 10 minutes to get dress and on a “bad day” maybe 30-40 minutes; however, that was “rare.” When the SP worked, s/he had the VA go to the bathroom to get dressed. At times P3 saw the VA in the bathroom for two to three hours not dressed and when the VA asked for help, or wanted assistance from a different staff person, the SP told the VA, “You don’t have a choice” regarding what staff person worked with the VA. When the SP assisted the VA, another power struggle was that the SP expected the VA to pick up each piece of clothing and bring it to the SP and ask for help. The VA responded to the SP with physical aggression while the SP stood there and did not move. P3 said they were trained to “walk away if able to.” P3 believed the SP did this to show the VA “who is boss.” · P3 heard the SP using the “N-word” but did not remember the context and did not believe the SP was referring to the VA “at that time.” · The SP was aware that the VA did not like singing and “a few times” when the VA heard the SP singing, the VA threw up his/her arms and yelled “no” over and over. P3 believed the SP sang to “piss [the VA] off” and when the VA reacted, the SP “will do it more and louder.” · P3 said that staff persons did not confront the SP because s/he worked at the facility “for so long” and “intimidates” others. The SP told staff persons that it was “pointless” to report him/her because “nothing is going to happen.” P4 said that s/he observed numerous staff persons interacting with the VA over time. When P4 was asked about his/her observations of the SP’s interactions, P4 said that “in general [the SP] is rougher around the edges with [his/her] approach.” On an unknown date, the SP told P4 that the VA did not like the SP. P5, a supervisory person, provided the following information: · The VA liked music but when asked if the VA like singing, P5 said the VA was “more tolerant depending on if [s/he] likes you or not.” The VA was more tolerant of some staff persons than others, preferring “newer” staff persons over others who were at the facility for a long time, such as the SP who worked at the facility since the VA moved in. The VA did not like “people who are overly happy” and formed “instantaneous opinions” of staff persons. P5 believed the VA did not like the SP because the SP “tries to stay in a good mood.” When asked about the SP singing to antagonize the VA, P5 said, “I hope that doesn’t happen.” Previously, when the VA had housemates, those housemates liked to be happy and matched the SP’s energy; however, the VA “does not enjoy” those things. · The VA preferred “not” to dress him/herself and liked others to assist. The VA needed assistance with socks, aligning his/her pants once s/he pulled them up, and getting his/her arms into shirts. When the VA asked for help, staff persons encouraged him/her to try, but staff persons “should” help him/her. P5 did not have information that the SP refused to help the VA get dressed or that it took excessive amounts of time. · P5 had no concerns regarding the SP’s interactions with the VA. P5 also had no information that the VA was called the “R word.” P6 said that the SP “tried to help clients” and was “willing to do anything;” however, the SP “did struggle with [the VA].” The VA did not want to work with the SP but the SP “would not leave [the VA] alone,” even when other staff persons were available to step in to assist. Although P7 heard that other staff persons heard the SP use derogatory words in the presence of the VA, P7 was “in the office most of the time” and did not hear what words the SP said or sang when working with the VA so P7 did not know if it was “malicious or abusive.” P7 occasionally worked with the SP and said that the VA did not like the SP. When the SP and other staff persons worked together, the VA preferred the other staff persons to assist him/her getting dressed; however, the SP was “not going to let [the VA] win” by allowing the VA to work with his/her preferred staff persons. When the SP sang, the VA got “agitated” and vocalized or attempted to scratch the SP. Although the SP knew the VA did not like the SP’s singing, the SP only stopped “after a little while.” P8 said that the SP “antagonized” the VA by singing and when the VA aggressed towards the SP, the SP “enjoyed it.” Although P8 did not remember the words, the SP sang a song “all the time” about the VA that made the VA “mad.” The SP did not let other staff persons step in to assist the VA because the SP “wanted the control.” The facility’s Internal Review stated that on August 4, 2023, the facility received a voicemail message from local law enforcement about the SP having “inappropriate interactions” with the VA. No internal report was made by any staff persons and no further investigation was completed by law enforcement. On September 8, 2023, when more specific allegations were brought forth by the Department of Human Services, an internal investigation was completed. Five staff persons stated they did not hear the SP calling the VA names, making jokes about the VA dying, or being confrontational; however, because the SP was one of the VA’s “non-preferred” staff persons, “everything” the SP did “irritated” the VA. One staff person stated the SP was “mean” to the VA and heard the SP call the VA the “R word.” Two staff persons said they observed the SP’s “power struggles” and “singing,” and “could see” the SP calling the VA names and making jokes about the VA dying, but they “did not remember hearing those exact things.” The SP said that rather than seeing his/her actions as a power struggle, s/he attempted to work with the VA so that the VA gained skills in working with individuals s/he did not like. The SP acknowledged s/he sang at work and while other prior clients enjoyed his/her singing, the VA did not. The SP “did not remember” calling the VA the ‘R word” and denied making jokes about the VA dying. The SP provided the following information: · Many attempts were made to “solve” why the VA liked some staff persons and worked well with them and “won’t accept help” from staff persons s/he disliked. The SP was one of the staff persons that the VA disliked. · The SP described occasions when the VA was in the bathroom and the VA refused assistance when offered by the SP. Occasionally the VA’s refusals went on for an hour, but on one occasion, the VA was sitting on the toilet for “six hours” while the SP sat in a chair outside the door. The SP did not remember if s/he was working by him/herself and believed s/he would have asked for assistance if another coworker was available. During that period of time, the SP offered water and encouraged the VA to stand up occasionally. The SP was not sure what s/he could have done differently because staff persons were “supposed to watch” the VA when s/he was in the bathroom because on a prior occasion the VA fell in the bathroom and was injured. · The SP said that s/he was aware that the VA did not like the SP to sing; however, singing was “a part of who I am” and that when s/he sang and the VA yelled, no,” the SP stopped. The SP denied singing to annoy the VA. · When asked about calling the VA the “R word” to the VA’s face, the SP said, “Yes, that is probably true,” and “I would not be surprised if that happened.” The SP said the work environment was “less professional than it needs to be.” The SP did not remember the specific event and did not know how the VA responded to the “R word” and did not know if the VA “understood or cared.” The SP admitted that s/he would be “pretty irritated” if someone called his/her family member the “R word.” · The SP said there was “a culture, a pervasive attitude” that staff persons were “sick of [the VA], don’t want to have to deal with [him/her] and do not treat [him/her] well.” Furthermore, the SP said, “We take care of [the VA] and [s/he] is safe, but I think I have heard every person in the house call [him/her] names to [his/her] face or not to [his/her] face. This is how we have been.” When asked what the SP did when his/her coworkers called the VA names, s/he said, “Nothing, it is a culture of disrespect. No one says anything.” G1-G4 were on speaker phone together and provided the following information: The Gs stated that when they were at the facility, they observed the VA was “often annoyed by [the SP]” and “it seems like [the SP] taunts [the VA] a bit when we are there.” The Gs said that they have seen the SP walk by the VA and “say something that will cause [the VA] to look up and seem irritated.” The SP also sang “loud” and “that annoys” the VA. The Gs said, “We have always thought [the SP] provoked [the VA] but were not able to put our finger on it. It is the way [the VA] reacts to [the SP].” The facility’s Conduct Between Staff Persons and Individuals Receiving Supports stated that “individuals will be treated with courtesy, dignity and respect” and will “never use condescending demeaning, provoking language or gestures.” Facility documentation showed that staff persons were trained regarding the VA’s programs, consumer rights, positive behavior supports, and the Reporting of Maltreatment of Vulnerable Adults Act. Relevant Rule and/or Statute Minnesota Statutes 245D.04, subdivision 3, paragraph (a), clause (6) and (8), state that the servant recipient has the right to be treated with courtesy and respect and be free from bias and harassment regarding race, gender, age, disability, spirituality, and sexual orientation. Conclusion: A. Maltreatment: Information from P1-P3, P6-P8, G1-G4, and/or the internal review showed that the SP engaged in power struggles with and/or intimidated the VA, sang to annoy or antagonize the VA, and on at least one occasion called the VA the “R word.” The SP said that s/he sang knowing the VA did not like it; however, stopped when the VA yelled, “No.” The SP admitted on at least one occasion s/he sat outside the bathroom door for six hours while the VA remained in the bathroom refusing assistance from the SP. The SP’s actions were contrary to the VA’s functional support strategies that stated the VA did not like “feeling intimidated or dictated to.” In addition, although the SP said that it was “probably true” that s/he called the VA the “R word,” the SP minimized his/her actions for fear of consequences by saying s/he did not know if the VA “understood or cared” and said there was “a culture, a pervasive attitude” at the facility that allowed such actions because “no one says anything” when the VA was treated disrespectfully. Regardless of the context in which the SP called the VA the “R word,” the SP’s actions were inconsistent with the standards of a professional caregiver in a facility licensed by the Department of Human Services and a violation of Minnesota Statutes 245D.04, subdivision 3, paragraph (8), clause (6) and (8). In addition, the use of the “R word” was derogatory when used toward any person, but given the VA’s diagnoses and that s/he lived in a residential setting, it was particularly derogatory to the VA. Therefore, there was a preponderance of the evidence that the SP’s use of the “R word” was considered malicious and could reasonably be expected to produce emotional distress. 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. The SP was trained on the VA’s plans 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 emotional abuse for which the SP was responsible did not meet statutory criteria to be determined as recurring or serious because the SP’s conduct was a pattern of behavior and therefore considered a single incident, and the VA did not sustain an injury. Action Taken by Facility: The facility’s Internal Review concluded that policies and procedures were adequate but were not followed when the SP did not request assistance from coworkers when working with the VA when assistance was available and when a staff person did not report hearing the SP call the VA the “R word.” The SP was retrained regarding accepting assistance from coworkers when working with the VA. The staff person who heard the SP call the VA the “R word” was also retrained. During the course of the investigation the SP was scheduled at a different facility location where s/he was not working with the VA. 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. A Correction Order was not issued for the violation outlined in this report because the facility took corrective action.
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