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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: 1104367-H_CRS (Home and Community-Based Services-Community Residential Setting) Investigator(s): Gessner Rivas 651-431-3970 Suspected Maltreatment Reported: It was reported that a staff person (SP) had sexual contact with a vulnerable adult (VA) sometime in April 2023. On April 26, 2023, the SP resigned from her/his employment at the facility. Date of Incident(s): multiple unknown dates Nature of Alleged Maltreatment Pursuant to Minnesota Statutes, section 626.557, subdivision 9c, paragraph (b), and Minnesota Statutes, section 626.5572, subdivision 15, and subdivision2, paragraph (c): Any sexual contact or penetration between a facility staff person or a person providing services in the facility and a resident, patient, or client of that facility. Sexual contact is defined by Minnesota Statutes, section 609.341, as the intentional touching of the intimate parts with sexual or aggressive intent. 'Intimate parts' includes the primary genital area, groin, inner thigh, buttocks, and breast. Summary of Findings: Pertinent information was obtained during a site visit conducted on May 12, 2023; from documentation at the facility and law enforcement records; and through three interviews conducted with the SP, a supervisory staff person (P1), and the VA’s case manager (CM). The VA provided information to law enforcement and that information was included below. The VA was diagnosed with mild cerebral palsy, scoliosis, and type II diabetes. The VA was subject to guardianship. The VA was very sociable and enjoyed being in the community. The following information was obtained from statements provided to law enforcement by the VA and the VA’s family member: · The VA called her/his family member on or about May 4, 2023, about being touched inappropriately by the SP. The VA’s family member stated that the VA said it happened about four to five times, the VA’s family member then called the facility. · The VA stated that the SP touched her/him inappropriately on unknown dates prior to disclosure on May 4, 2023, in her/his private areas and forced her/him to touch the SP’s genitals. The VA stated that when s/he was in the living room sitting in a chair watching TV, before the overnight staff person arrived, the SP turned off the lights and started grabbing the VA. The VA stated that the SP put her/his finger in the VA’s “bottom,” had her/him stand up and gave her/him a hug, and then the SP put her/his hand under the VA’s clothing and began rubbing the VA’s breasts. The VA stated that the SP lifted up the VA’s clothing and attempted to suck the VA’s breasts, but the VA backed away. The VA stated that the SP said s/he wanted to have sex with the VA and wanted her/him to lay on the bed and the SP would get on top of the VA. The VA stated that the SP told her/him not to tell anyone what the SP was doing. · The VA stated that sometimes when s/he tried to take a nap in the bedroom, the SP would come into the bedroom and start doing the same thing; one time touching the VA’s genitals. The VA stated that sometimes the SP would sit in the office and the VA would watch YouTube videos on the SP’s cellphone and the SP would expose her/his genitals and made the VA rub them. The VA said this would happen after s/he took evening medications at 9 p.m. The VA did not provide specific dates on which the above allegations took place. The following information was provided by the SP: · The SP worked at the facility from 2 – 10 p.m. and medications were passed out around 8 p.m. The SP stated that the VA would watch YouTube videos on her/his tablet, but the VA tried to watch videos on the SP’s cellphone. · The SP stated that the VA called her/him “[dad/mom]” and the SP treated the VA like her/his own child but the VA had problems respecting boundaries with staff persons. The VA would try to hug staff persons, but the SP would say no, and the SP complained about the VA not respecting personal boundaries, but management did not listen. The SP stated that the facility’s Program Director talked to the VA about touching staff persons. · The SP stated that s/he applied medication such as a prescription itch cream to the VA’s legs, back, and face. The VA had a chest “pomade” that the SP would not apply, the VA also had a genital cream that only staff persons the same gender as the VA were authorized to help the VA with. The SP denied ever touching the VA inappropriately. · The SP stated that another staff person was spoken to about respecting personal boundaries with clients, specifically the VA. · The SP stated that s/he requested to be transferred to another facility but was denied. The SP stated that s/he resigned because the VA would not respect boundaries with staff persons, the facility would not transfer her/him to another facility, and because of an interpersonal conflict with another staff person. The SP resigned from her/his position at the facility via a text message to P1 on April 26, 2023. The following information was provided by P1: · P1 stated that the facility learned of the allegations on May 4, 2023. · P1 stated that s/he talked with the VA at least once a month about hugging and inappropriate touching of staff persons. P1 stated that the SP had mentioned that s/he was not comfortable with the VA touching her/him. · P1 stated that the SP never requested to be transferred to another facility but requested to pick up additional shifts. · P1 stated that another staff person reported observing the VA lying her/his head on the lap of a different staff person. P1 spoke with that staff person and the VA about respecting personal boundaries. · P1 stated that the SP called the facility attempting to speak to the VA sometime after the report was filed. On at least one occasion the SP spoke with the VA and asked what was happening. P1 stated that the facility number was changed after they learned of the phone calls. Facility documentation showed that the facility changed its number and added a call blocker feature on June 8, 2023. The CM stated that the VA was an accurate reporter of information and that the SP tried to reach out to the VA via phone sometime after the report was filed. A criminal complaint was filed in Anoka County District Court; the SP was charged with Criminal Sexual Conduct in the Third Degree. According to the document, the incidents occurred between April 8, 2022, and April 26, 2023. Personnel files showed that the SP and P1 were trained on the Reporting of Maltreatment of Vulnerable Adults Act and the VA’s plans. Conclusion: A. Maltreatment: Information was provided that on various occasions prior to April 26, 2023, the SP engaged in sexual contact with the VA at the facility. The VA provided specific details regarding the alleged actions of the SP including that the SP touched the VA’s bottom, breasts, and genitals and had the VA touch the SP’s genitals. The SP denied having sexual contact with the VA. The SP was charged with criminal sexual conduct in the third degree. Although the SP denied sexual contact with the VA, given that the SP had reason to minimize his/her actions for fear of consequences, that the VA provided specific details regarding the sexual contact, and that there was information that the VA was an accurate reporter of information, there was a preponderance of the evidence that the SP had sexual contact with the VA. It was determined that sexual abuse occurred (any sexual contact or penetration between a facility staff person or a person providing services in the facility and a resident, patient, or client of that facility. Sexual contact is defined by Minnesota Statutes, section 609.341, as the intentional touching of the intimate parts with sexual or aggressive intent. 'Intimate parts' includes the primary genital area, groin, inner thigh, buttocks, and breast). 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 plans, 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 sexual abuse for which the SP was responsible was recurring and serious as there was more than once incident and sexual abuse meets the definition of serious maltreatment. The SP was disqualified from providing direct contact services. Action Taken by Facility: The facility completed an Internal Review which determined that its policies and procedures were adequate but were not followed. 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.
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