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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: 1106114-SUD (Substance Use Disorder) Investigator(s): Tessa Ripka 651-431-6612 Suspected Maltreatment Reported: It was reported that a staff person (SP) and a vulnerable adult (VA) had a sexual relationship. There were additional licensing concerns that the facility kicked the VA out and did not provide transportation for the VA. Date of Incident(s): Prior to July 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 (c); and subdivision 17, paragraph (a): 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. 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 August 9, 2023; from documentation at the facility; and through nine interviews conducted with five facility staff persons (SP, P1, P2 P3, P4), two community persons (CP1, CP2), the VA’s parole officer (PO), and the VA. Facility documentation showed that the VA was admitted to the facility from April 6-24, 2023, for substance use disorder treatment. The VA was admitted to the facility a second time from July 1-5, 2023. The VA was diagnosed with opioid use disorder. A Discharge Summary showed that when the VA was discharged on April 24, 2023, s/he would be living with CP1 who was sober. A second Discharge Summary showed that the VA was discharged on July 5, 2023, against staff person advice. The VA provide the following information: · The SP was a friend that the VA had known for a long time. The facility knew that the VA and the SP were friends when the VA first resided at the facility. While at the facility, the VA talked more often with the SP than with some of the other staff persons. · After the VA left the facility the first time, the VA and CP1, who lived together, got into a fight and the VA left. The VA needed an address to give to the PO, so the VA gave the PO the SP’s address. The VA never lived with the SP or had a relationship beyond friendship with the SP. · The SP and the VA were good friends, and the VA could see why some staff persons “thought otherwise.” The SP helped the VA get set up with outpatient services and find transportation as needed after the VA left the facility. · The VA went back to the facility a second time and the facility talked “bad” about the VA and kicked the VA out because of rumors about the SP. There were rumors around the facility, but the VA said s/he did not have a sexual relationship with the SP and did not tell anyone at the facility that s/he had a sexual relationship with the SP. · CP1 provided transportation from the facility both times the VA left the facility. P1-P4 provided the following information: · The SP began working at the facility in late March 2023. Approximately three weeks later, P1 had a discussion with the SP about boundaries with clients. This included one on one conversations with clients including the VA in which the SP was not the client’s primary staff person. · P2 was the primary staff person for the VA during the VA’s first admission. During the VA’s first admission, P2 often saw the VA and the SP walking in the halls and in the SP’s office together. · P3 said that on the VA’s first admission to the facility, the VA and SP were always sitting around talking together at the facility. The SP was not the VA’s primary staff person. · P4 said that s/he had boundary concerns with the SP when the SP was at the facility including sharing personal information with the clients and locking the office doors during group time. · When the VA was discharged from his/her first admission, the VA was going to live with CP1. The facility had a transportation company that provided transportation. The VA declined transportation and said CP1 would pick up the VA. The VA then said that CP1 would not be able to come, so the VA would get an Uber. P2 said that the facility provided a free ride, but the VA declined the ride. · On May 10, 2023, P1 received information from the PO that the VA was living with the SP. CP1 reached out to the PO when the VA did not arrive to CP1’s home after the VA’s discharge and said that the VA was living with the SP. The VA later provided the PO with a phone number and address to reach the VA. P1 confirmed that the phone number and address that the VA provided to the PO was the SP’s home address and cell phone number. · The SP denied any involvement with the VA. Through further investigation it was discovered that the SP had gone into the VA’s chart several times after the VA had been discharged from the facility when the SP would not have had any reason to look at the VA’s chart. · The VA came back to the facility a second time on July 1, 2023, and started sharing information about the SP to other clients and staff persons. At that time the SP no longer worked at the facility. The VA was not attending his/her classes during this admission. · P3 talked with the VA about completing the 30 hours of programming each week. The VA said that P3 did not like the VA because the SP and the VA were “together” or because “of me and [the SP].” The VA told another staff person that the SP and the VA were living together. Other individuals at the facility were talking about how the VA and staff persons “get together.” When asked what they meant, the other individuals said they were talking about the SP. · P1 said that the VA shared with others at the facility that s/he was in a relationship with the SP during the VA’s last admission, so the VA was offered to transfer to a different facility but chose to discharge against staff advice. · P1 thought the VA tried to arrange transportation with CP1 but was unable to, so the VA went to the bus stop. There were three or four public phones in the main area of the facility that the clients could use. CP2 provided the following information: · CP2 became friends with the SP and the VA who were in a sexual relationship and living together at the SP’s home. · On multiple occasions in approximately April-May 2023, CP2 went to the SP’s home and used drugs with the SP, the VA, and other individuals that the SP knew from a different facility that s/he worked at during that time. CP1 provided the following information: · CP1 lived with the VA before s/he was admitted to the facility the first time and the VA’s phone was on CP1’s phone plan. After approximately four days, CP1 saw the VA was “active” on Facebook. CP1 did not know how this was possible as the VA did not have a phone at the facility. When CP1 looked at the VA’s call and text history, CP1 noticed that it was mostly one phone number. · CP1 contacted the phone number which was the SP’s. The SP admitted that the SP and the VA were “hooking up” at the facility. There were also Facebook messages between the SP and the VA that talked about “encounters.” · After the VA left the facility, s/he went back to CP1’s home. “Maybe” two days later, CP1 saw that the VA and SP were still communicating and CP1 asked the VA to leave. The SP came and picked up the VA from CP1’s home and the VA stayed with the SP for two to three weeks. · The VA kept calling CP1 and asking to come back. The VA admitted to CP1 that the VA and the SP were using drugs together so CP1 declined to have the VA come back. The PO provided the following information: · The PO contacted CP1 after the VA was discharged from the facility the first time. The original discharge plan was for the VA to receive services from an outpatient facility near where CP1 lived, but the VA never showed up for his/her admission. The PO found out the VA was living with the SP. CP1 provided the PO with the SP’s phone number to contact the VA as the VA did not have a valid phone number. The PO left a voice message on the SP’s phone. The SP called the PO back and left the PO an additional phone number to contact the VA. · The VA then received outpatient services from another facility in the town that the SP lived in. The PO contacted a supervisory staff person at that facility who said that the VA referred to the SP as his/her significant other and that the SP had been terminated from that facility due to boundary issues with an individual who received services. · The PO had concerns that the VA was staying with the SP as s/he was a drug and alcohol counselor, but at that time, the PO was not aware that the SP had worked with the VA at the facility. The SP provided the following information: · The SP had known the VA “for years” and they had a previous sexual relationship. The SP said that s/he informed his/her supervisor about the previous relationship and the supervisor said that the SP could switch and only do group classes that the VA was not a part of. At times the VA walked with the SP in the hallways because they knew each other, and a staff person said that the SP was favoring the VA. The SP felt that s/he made time for any individual that wanted to talk with the SP. · The VA and the SP were communicating with each other over their phones while the VA was at the facility. The individuals were not supposed to have cell phones while at the facility and staff persons were not supposed to have interpersonal relationships with individuals. The SP was not sure how the VA was able to access a phone. The SP did not tell anyone that s/he was communicating electronically with the VA. · The SP did not haves sexual contact with the VA while at the facility and did not know where the VA went after s/he left the facility. · When the VA left the facility, s/he was “couch hopping” and needed an address to give to the PO. The SP was in contact with the VA within two or three days “at most, it was almost immediately,” and told the VA that s/he could use the SP’s address. The VA also used the SP as an emergency contact at the facility that provided his/her outpatient services. · The SP said that s/he had lunch with the VA and met up and went shopping one time. The VA came over to the SP’s home five to six times after the VA left the facility but did not live at the SP’s home. The SP caught the VA doing drugs in the SP’s garage. The Personal Relationships-Staff/Clients policy indicated that staff persons did not have any personal, sexual, business, or social relationships with a client or former client within two years of termination of services. All staff persons were trained on Reporting of Maltreatment of Vulnerable Adults Act and the facility policies prior to the incident. Conclusion: A. Maltreatment: The VA said that the SP and VA never had a relationship beyond friendship. After the VA left the facility, s/he used the SP as an emergency contact but never lived with the SP. The VA did not tell anyone that the SP and the VA had a sexual relationship. The VA said that s/he was kicked out of the facility because of rumors about the VA and the SP. CP1 provided transportation from the facility after the VA left. P1-P4 each provided information that concerns were noted with the professional boundaries between the SP and the VA while at the facility during the VA’s first admission. Both P1 and P3 said that on the VA’s second admission s/he told staff persons and/or individuals that the SP and VA had a sexual relationship and lived together leading to the VA being asked to transfer to a different facility. The VA declined and discharged against staff advice. The PO, CP1, and CP2 each provided information that the SP and the VA were living together at the SP’s home after the VA left the facility and were in a sexual relationship. CP1 and CP2 provided information that the VA and the SP were using drugs together. Regarding the licensing violations: Although the VA said s/he was kicked out of the facility, given that both P1 and P3 said that the VA was telling other individuals at the facility about a relationship with the SP, that the VA was not participating in programming, that the VA was offered a transfer to a different facility but chose to discharge against staff advice instead, and that the VA said s/he was transported from the facility by CP1, there were no licensing violations determined. Regarding sexual abuse: Given that the SP and the VA had a previous sexual relationship, that they were electronically communicating while at the facility, and that the VA later told staff persons and other individuals that the SP and the VA had a sexual relationship at the facility, it was likely that the VA and the SP had sexual contact while at the facility, but given that both the VA and SP denied having sexual contact while at the facility and without further evidence, there was not a preponderance of the evidence that sexual contact occurred between the VA and the SP. It was not determined whether 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.) Regarding neglect: Although the SP and the VA denied having a sexual relationship and/or living together after the VA left the facility, given that the they had reason to minimize their actions, that each the PO, CP1, and CP2 provided information that the SP and VA lived together and had a personal and/or sexual relationship, and given that the VA had a history of substance use, it was reasonable that s/he 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 hindered 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 him/her with therapeutic services, both now and in the future. Therefore, there was a preponderance of the evidence the SP’s interactions with the VA were detrimental to the VA’s ongoing mental health and were a failure to supply the VA with necessary care and/or to protect the VA from conditions or actions that seriously endangered his/her mental health. 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 had a personal and/or sexual relationship with the VA during and/or immediately following his/her time at the facility, in which the VA likely lived at the SP’s home and participated in behaviors that were untherapeutic. The SP was trained on the Reporting of Maltreatment of Vulnerable Adults Act and facility policies and procedures, including the Personal Relationships-Staff/Clients policy. 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 interactions were considered a single pattern of behavior and did not result in any injury to the VA. Action Taken by Facility: The facility competed an internal review and determined that policies and procedures were adequate. 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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