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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: 1104858-H_CRS (Home and Community-Based Services-Community Residential Setting) 1090632-HCBS (Home and Community-Based Services) Investigator(s): Kim Anderson/Van Mulheron Suspected Maltreatment Reported: It was reported that staff persons failed to supervise a vulnerable adult (VA) which resulted in another resident (R) having sexual contact with the VA. Date of Incident(s): Unknown date prior to December 14, 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 17, paragraph (a): 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 December 21, 2023; from documentation at the facility; and through nine interviews conducted with four administrative and supervisory staff personsP1, P2, P3, and P4, two staff persons, P5 and P6), another resident (R) who lived at the facility, the VA’s case manager (CM), the VA’s guardian (G), and the VA. This investigator interviewed the R, but the R declined to provide information regarding the incident. Two another staff persons (P7 and P9) were contacted for an interview, but each declined to provide information for this report. Attempts were made via telephone, email, and mail to contact another staff person (P8), but P8 did not respond to the requests. The facility was a standalone tri-level home. On the main level was a living room with a dining area and behind that was a kitchen. On the left of the living room was the R’s bedroom and on the right was a set of stairs. At the top of the stairs, on the left was a bathroom. Next to the bathroom was the VA’s bedroom and across the hallway was another bedroom. Above the stairs on the wall was a motion sensor that sounded when persons went up or down the stairs. On the right of the kitchen was a set of stairs that led to the basement that had an open room, laundry room, and storage areas. The VA enjoyed attending community activities and his/her day program. The VA was diagnosed with intermittent explosive disorder and major depression. The VA’s Individual Support Plan stated that the VA would receive 24/7 supervision from staff persons including staff persons awake overnights. The VA did not require one-on-one supervision. The VA’s Individual Abuse Prevention Plan (IAPP) stated that the VA had a lack of understanding of sexuality and had an inability to assert him/herself. In the past, the VA had been found in a compromising position with another housemate, but it was unknown who was the aggressor. At the facility, staff persons were alerted by a motion sensor whenever an individual walked up the stairs. Then staff persons were to look to see who was going upstairs and make sure that the VA and other residents were safe. There was no information provided in the VA’s plans that the VA could not have consensual sexual contact. The R enjoyed playing racing games and watching YouTube videos on monster trucks, tractors, and chainsaws. The R was diagnosed with epilepsy and an adjustment disorder with mixed disturbance of emotions and conduct. The R’s IAPP stated that the R lacked an understanding of sexuality, was likely to seek or cooperate in an abusive situation and had an inability to be assertive. The R had a history of engaging in sexual activity with a current housemate and it was unknown whether these acts were consensual between them. There was a motion sensor above the staircase to alert staff persons with any movement between the upstairs bedroom and bathrooms. The R received 24/7 supervision from staff persons including staff persons awake overnight. The R did not require one-on-one supervision. There was no information provided in the R’s plans that the R could not have consensual sexual contact. The VA stated that s/he liked his/her house. The R was “not nice” to the VA and followed the VA to the bathroom where the R “grabbed [his/her] arm” and they had sexual contact. The VA said that it happens “lots of times” and s/he told the R, “No.” The VA also said s/he and the R agreed to the sexual contact. The VA felt safe at home and the staff knew that the VA and the R had sexual contact. The staff persons told the VA to “take a time out” in his/her room and “stay by [him/herself].” The G and the CM provided the following info: · On December 14, 2023, the G and CM attended the VA’s annual meeting. At the meeting, the VA said to the CM, “I want to tell you something.” The VA then said, “[The R] pushed me,” and then motioned with two hands (a sexually suggestive motion that referred to intercourse), and “then [the R] grabbed my arm.” The CM said that the VA “yanked” the CM’s arm to show what happened. The VA said, “[S/he] pushed me,” and “[S/he] grabbed me into the bathroom.” The VA told the CM, “We have sex every day” and it had been happening “for weeks.” The VA said, “It makes me angry,” and “I want [him/her] in jail.” · The CM asked the VA where staff persons were, and the VA replied, “I don’t know.” · The G said that a “couple of months” prior, the VA had an unwanted sexual encounter with the R in the bathroom. At the VA’s annual meeting, the VA said it had occurred again and the VA “wanted [the R] to go to jail.” · The CM said the same situation happened one and a half years prior. The CM was told that “it was consensual” and “they chose to have that relationship.” · The G said that staff persons told the G they were not aware the sexual contact was continuing, and it had been “a struggle” to get information from the facility regarding the VA. · The CM said that the VA was an accurate reporter of information. The CM worked with the VA for three years and this was the VA’s first-time reporting that the contact was “not consensual.” P1–P6 provided the following information: · P1 was not involved with the VA prior to attending the VA’s annual meeting on December 14, 2023. At the meeting the VA reported that the R grabbed him/her by the wrist and pulled him/her into the bathroom. The VA made a hand gesture that was a sexually suggestive motion that referred to intercourse. P1 then spoke with staff persons and reminded them to be aware of where the VA and the R were at in the facility and what they were doing. If the VA and the R were seen together, the staff persons were to “encourage” the VA and the R to have boundaries with each other. P1 also stated that staff persons could not “force” the VA and the R “not to have a relationship.” · P2 was not aware of the incident between the VA and the R until after the VA disclosed at his/her annual meeting but said that the VA was “timid” and “fearful” of the R because the R tended to “bully” the VA and tell the VA what to do. P2 gave an example that when the VA arrived home from his/her day program s/he went to his/her bedroom or stayed near P2 to “feel safe.” P2 said that the VA and the R both have 24/7 supervision and cannot be alone unless they are in their bedrooms or the bathroom by themselves. When P2 heard the motion sensor s/he went upstairs to check the resident’s bedrooms to make sure the R was not in them. P2 also checked the bathroom to make sure that if it was in use there was only one person in it. P2 said that the R spent most of his/her time in the living room so P2 could “easily” supervise the R. There had been no sexual contact between the VA and the R when P2 was working. · P2 said that there was an incident in March 2023 when P9 walked into the bathroom and found the VA and the R engaging in a sexual act. P2 did not know if the sexual act was consensual. P4 provided information that at the time if the incident, P9 was with another resident in the facility when s/he heard a noise from upstairs. P4 was unsure of it was the sensor or other noise. P9 immediately went upstairs and saw the VA and the R in the bathroom, both naked below the waist. P9 asked the VA and the R to leave the bathroom but they shut the bathroom door and P9 heard the lock engage. It was unsure who shut the bathroom door. P9 then waited for the R and the VA to exit the bathroom which was approximately four minutes later. P9 did not observe any signs of distress or injury to either the R or the VA. · P1-P6 provided consistent information that the VA and the R lived at the facility together for approximately 20 years and neither the VA nor the R required one-on-one supervision. P1-P4 provided consistent information that the VA and the R had a history of engaging in sexual contact with each other. P3 and P4 said that at times the VA would initiate contact and other times the R initiated contact. · P5 said that the VA spent most of his/her time in his/her bedroom, unless the VA was at his/her day program. P5 said that the R was “sneaky” and watched for the VA to go to the bathroom and tried to wait in the bathroom for the VA. P5 said that s/he “always checked” the bathroom prior to the R going into the bathroom. P5 knew the VA’s and the R’s routines and made sure to know where they were in the facility. · P2-P4 provided consistent information that the VA was able to accurately retell events but was not accurate in recalling “when” incidents happened. P2-P4 gave a consistent example that the VA could retell an incident that happened months ago but say that it happened yesterday. · P1, P2, and P5 provided consistent information that the motion sensor above the stairs was put in place to monitor if the R went up to the VA’s bedroom. Staff persons were trained that if the sensor sounded, they were to check on the VA and if the R was upstairs staff persons were to remind the R of boundaries and encourage the R to leave the VA and do other activities such as watching a video. P2 was not aware that the motion sensor was not consistently working. · P6 said that s/he was not aware of any sexual relationships between the VA and the R and that both the VA and the R had 24-hour supervision by staff persons. P6 said that when the motion detector would beep s/he went upstairs to make sure the R was not upstairs in any other residents’ bedrooms. P6 said the R had a history of going into resident’s bedrooms and taking their belongings without permission. At the time of the site visit, the investigators tested the motion sensor by walking on the stairs. At that time, the sensor did not consistently sound. A facility Incident Report and Therapy Logs said that on February 22, 2023, at approximately 4:30 p.m. P9 heard a loud noise and headed upstairs to investigate. The staff person saw the bathroom door partially open and a saw the VA naked from the waist down with his/hands on the sink. Standing directly behind the VA was the R, also naked from the waist down. The staff member directed them to separate and leave the bathroom. The bathroom door then shut, and the staff person heard the door lock. It was unsure who locked the bathroom door. It was also unsure if any penetration or sexual act occurred. No struggle between the VA and the R was observed. The VA and the R were in the bathroom for approximately for minutes before the VA and the R exited. When the VA and the R exited the bathroom, no signs of injury or distress was observed. Facility documentation showed that P1 and P2 were trained on the Reporting of Vulnerable Adults Act and the VA’s and the R’s plans. Conclusion: Consistent information was provided that on December 14, 2023, the CM, the G, and P1 attended the VA’s annual plan meeting. During the meeting the VA said to the CM “the [R] grabbed my arm,” “grabbed me into the bathroom,” “we have sex every day,” and “for weeks.” The VA made a hand gesture that was a sexually suggestive motion that referred to intercourse. The CM and P1-P4 said that the VA was an accurate reporter of an incident but may not be accurate in letting them know “when” the incident happened. Information was also consistent that the R and the VA had a history of sexual contact during the 20 years they lived together and each at times had been the initiator or the contact. The VA and the R required 24-hour supervision but did not require one-one supervision at the facility. Staff persons were trained to check on the VA when they heard the motion sensor sound and to make sure the R was not upstairs unless s/he was using the bathroom. P2 and P5 were aware that the R was “sneaky” and would watch for the VA to use the bathroom. P2 and P5 would ensure that the bathroom was empty before the VA entered it. P2-P6 knew the routines of VA and the R and made sure that they were actively watching the R and reminded the R of “proper boundaries.” If staff persons found the R upstairs after the motion sensor went off, they were to encourage the R to leave the VA and do another activity such as watching a video. In addition, there was no information provided that the VA and the R could not engage in consensual sexual contact. Therefore, there was not a preponderance of the evidence whether there was a failure to supply the VA with reasonable and necessary care or services including supervision. It was not determined whether 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.) Action Taken by Facility: The facility completed an internal review and determined that their policies and procedures were adequate and followed at the time of the incident. The facility found that incident was similar to a past incident. The facility was taking steps to ensure the sensor on the step worked at all times. The VA no longer resided at the facility. Action Taken by Department of Human Services, Office of Inspector General: No further action taken.
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