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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: 1120974-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) used his/her cellphone to record a video of two vulnerable adults (VA1 and VA2), who were married and unclothed together in an intimate moment in their shared bedroom. Date of Incident(s): January 30, 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 (2); 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: 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. 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 16, 2024; from documentation at the facility; and through interviews conducted with VA1, VA2, and facility supervisory staff persons (P1 and P2). VA1’s and VA2’s shared guardian (G) and shared case manager (CM) were contacted. The G and the CM did not have additional information specific to the allegations and did not have concerns with the facility’s overall care. In addition, attempts were made by telephone and text message to interview two staff persons (P3 and P4) and attempts by telephone, email, and mail were made to interview another staff person (SP); however, P3, P4, and the SP did not respond by the completion of this investigation. P3, P4, and the SP each provided information for the facility’s Internal Review and that information was included in this report. In November 2023, VA1 and VA2 moved into the facility as a married couple of almost 20 years. The facility was a single-family home and VA1 and VA2 were the sole occupants. They shared a bedroom, which was on the main floor and a few steps down a hallway from the living room. VA1 and VA2 were each diagnosed with a traumatic brain injury. The facility provided VA1 and VA2 with at least one staff person 24-hours a day for care, supervision, transportation, appointments, and medication management. The facility’s Internal Review included interviews with P3, P4, and the SP, and the following information: On January 31, 2024, [P3] reached out to management and stated that while working with [the SP] on January 30, 2024, [the SP] displayed a video on [his/her] cell phone that showed [VA1] nude. [P3] stated that [VA1] was standing in the room nude, reaching for [his/her] clothing, and [VA2] was laying in [his/her] bed. [P3] stated that [the SP] showed the video to [him/her] while they were conducting shift change, between 3pm-3:30pm. [P3] stated that [P4 was] present at the time that the video was displayed. [P3] stated that after a few seconds, [the SP] put [his/her] phone away, so [P3] doesn’t believe that the full duration of the video was disclosed. [P4] stated that [the SP] was laughing and said, ‘[VA1 and VA2] were naked and [VA1] was on top of [VA2]! Wanna see something?’ [The SP] presented [his/her] phone with a video that appeared to be recorded from outside of [VA1’s and VA2’s] bedroom. [P4] responded, ‘Why do you have that? They are married and that is their personal business. Did you post that on Snapchat? Why is this on Snapchat?’ [The SP] stated, ‘No, I didn’t post it. I just recorded it with the Snapchat camera.’ After a few seconds, [the SP] stopped the video and put [his/her] phone in [his/her] pocket. [Note: According to www.nytimes.com, Snapchat is an instant messaging application (app). Snapchat also allows users to store photos and videos in a password-protected area.] [The SP] was interviewed on January 31, 2024, and [s/he] denied all allegations. Management asked if [the SP] would be willing to show them the camera roll in [his/her] cell phone and [s/he] refused, stating, ‘No. This is my personal phone. Legally I don’t have to let you look at it.’ VA1 and VA2 each said that they enjoyed living at the facility and liked most of the staff. VA1 and VA2 did not have concerns with privacy. VA1 did not see any staff in his/her bedroom during a private time and/or when VA1 did not want the staff in his/her bedroom. [Note: P2 said that the day after the alleged incident, VA1 and VA2 were informed of what happened.] P1 and P2 provided the following information: · P1 said that on the morning of January 31, 2024, P3 came to him/her with concerns about the SP. The SP had shown P3 and P4 a video of VA1 “naked.” P1 immediately told P2. P1 then left with VA2 on a prescheduled appointment and while at the appointment, P4 text messaged P1 stating that s/he wanted to talk to him/her. P1 forwarded this request to P2. P1 did not have further discussions with P3, P4, or the SP about the allegations. · P2 said that s/he spoke with P3 and P4, separately. P3 said that during shift change on January 30, 2024, the SP showed a video on his/her cellphone. The video was taken from the hallway outside of VA1’s and VA2’s bedroom “in a sneaky way.” VA1 was “fully nude” in the video and was standing near the bed bending down to pick up his/her clothes. VA2 was lying on the bed. · P4 told P2 that the SP asked, “Want to hear something funny?” The SP then told him/her that s/he saw VA1 “naked” and “on top of” VA2. The SP showed P4 a video on his/her cellphone, which showed VA1 “naked” standing next to the bed while VA2 was lying on the bed. P4 noticed that the video was recorded using the Snapchat app. P4 asked, “Did you post this (on Snapchat)?” The SP said that s/he used the app to record the video but did not post it. P4 told the SP that VA1 and VA2 were married and had the right to their personal time together. · It was not clear if VA2 was also “fully nude” in the video. The SP put his/her cellphone away when s/he heard P1 walking up the stairs. P3 did not believe the SP showed them the entire video. · P1 and P2 each said that staff were told VA1 and VA2 were married and allowed to have private time together. Staff were told to listen if anyone called for help and to respond as needed. · P1 and P2 were each not aware of any internal conflict, or reason why P3 and P4 might want to get the SP in trouble. P1 added, “Everyone (staff) was very much aware that [the SP] was not a good fit” at the facility. The SP had repeated job performance issues, including medication administration errors. “A lot of staff told me about [the SP]. It’s not [P3] and/or [P4] targeting [the SP].” The facility’s policies and procedures included the following: · VA1 and VA2 had the right to be treated with courtesy and respect; · VA1 and VA2 had the right to personal privacy; and · VA1 and VA2 had the right to have privacy with their spouse, including in the person’s bedroom. Facility documentation stated that P1-P4 and the SP received training on VA1’s and VA2’s support plans, the facility’s policies and procedures, and the Reporting of Maltreatment of Vulnerable Adult Act. Relevant Minnesota Statutes and Rules: Minnesota Statutes section 245D.04, subdivision 3, paragraph (a), clauses (6) and (14); and paragraph (b), clause (4), states, in relevant part, that a person's protection-related rights include: · The right to be treated with courtesy and respect, · The right to personal privacy, and · The right to have privacy for visits with the person's spouse, in accordance with section 363A.09 of the Human Rights Act, including privacy in the person's bedroom. Conclusion: A. Maltreatment: P3 and P4 provided information to P1 and P2 and for the facility’s Internal Review that they saw the SP display a video on his/her cellphone that included VA1 “naked” or “fully nude” and “on top of” VA2 or standing next to their shared bed picking up his/her clothes. The video was taken from the hallway outside of VA1’s and VA2’s shared bedroom “in a sneaky way.” VA1 and VA2 were a married couple. P1 and P2 each said that staff were told VA1 and VA2 were married and allowed to have private time together. The SP did not respond to requests to provide information for this report but denied the allegation when interviewing for the facility’s Internal Review. Although P3 and P4 did not interview with this investigator, they provided consistent information about what they witnessed and there was no information P3 and/or P4 had any conflict with the SP. Given this and that the SP had reason to minimize his/her actions out of fear of repercussions, it was determined P3’s and P4’s account was more credible. The conduct of recording VA1 and VA2, a married couple, while in the intimacy of their shared bedroom was inconsistent with the facility’s policies and procedures, and in violation of Minnesota Statutes section 245D.04, subdivision 3, paragraph (a), clauses (6) and (14); and paragraph (b), clause (4). Although VA1 and VA2 did not seem aware or impacted by the incident, there was a preponderance of the evidence that this treatment was not an accident or therapeutic and would be considered by a reasonable person to be disparaging, derogatory, humiliating, harassing, or threatening; and reasonably expected to produce emotional distress; and was a failure to supply VA1 and VA2 with care or services which were reasonable and necessary. 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). 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 of VA1’s and VA2’s care and supervision. The SP received training on VA1’s and VA2’s support plans, the facility’s policies and procedures, and the Reporting of Maltreatment of Vulnerable Adult Act. 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. It was determined that the substantiated emotional abuse and neglect for which the SP was responsible did not meet statutory criteria to be determined as recurring or serious. Although VA1 and VA2 were each present when the maltreatment occurred, it was determined to be a single incident that met two definitions of maltreatment and did not meet the definition of “serious” maltreatment. Action Taken by Facility: The facility completed an internal review and determined that policies and procedures were adequate but not followed. The SP was no longer employed by 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 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. Given that the facility took immediate corrective action, a Correction Order was not issued for the violations outlined in this report.
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