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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: 1071660-H_CRS (Home and Community-Based Services-Community Residential Setting) Investigator(s): Gessner Rivas/Alice Percy 651-431-3970 Suspected Maltreatment Reported: It was reported that the facility received an audio recording of a staff person (SP) swearing at a vulnerable adult (VA), calling the VA names, and talking inappropriately about the VA’s guardian (G). Date of Incident(s): Unknown, prior to November 27, 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 January 5, 2023; from documentation at the facility; and through five interviews conducted with a facility administrative staff person (P), the SP, two residents (R1 and R2), and the VA. The VA enjoyed watching movies, listening to music, playing with his/her Xbox, going on community outings, and spending time with his/her friends and family members. The VA’s diagnoses included mild intellectual disabilities, cerebral palsy, attention-deficit hyperactivity disorder (ADHD), pervasive developmental disorders (PDD), obsessive-compulsive disorder (OCD), cerebral vascular disorder, and a seizure disorder. The VA used a wheelchair for mobility. According to the VA’s Risk Assessment Detail, the VA might not be able to defend him/herself against verbal/emotional abuse and might provoke others by swearing or calling other persons names. The VA was not always a reliable or consistent reporter. The staff persons were trained to redirect the VA when s/he was upset and talk to the VA about treating others with respect. A review of an audio recording made by the VA on an unknown date showed that the SP made the following comments to the VA: · “Fucking nightmare [referring to the VA].” · “Bunch of bullshit that’s what that is. I don’t care what I say or how I say it. I’d tell [the G] the same damn shit I’m telling you right now too. It ain’t gonna bother me one damn bit.” · “I’ll go toe to toe with [the G]. Everyone is so afraid of [the G]. What for?” · “You know that dogs don’t even want to be around with you.” · When the VA responded that dogs did want to be around him/her, the SP stated, “The hell they do, they come and sit in the office when you don’t lock them in with you. . . . What do you do with the poor dogs there, torture them?” · “Yeah, really, bunch of shit. You lie like a rug.” · “Well, I ain’t coming to your funeral, I’ll tell you that. As fat as you are. I’ve been to enough doctor appointments with you. They’re tell you to get up and walk.” · “You don’t know what you’re talking about. I want, I want, I want, that’s all you do. You cry to [the G], I want this, god dammit, you don’t get it to me, I’m gonna do god knows what, and then [s/he] gives it to you. You know, if you were my kid, you would have been told no a long time ago and it would have meant no, you don’t get it. That’s how it is in the real world.” · “Yeah, your fucking world, you keep whining and whining and whining.” · “I should go work in the other house, maybe I should.” · “You should have a job, but no, you’re too fucking lazy to get up and go to work, that’s what it is.” · “Nope, you’re a pain in the ass.” · “All the shit you pulled on us and all the stuff trying to make our lives hell out here, that comes around and it’s gonna take chunks out of your ass.” The VA stated that on the day of the incident, the SP told the VA that the G “babied” the VA when s/he was young and always “gave in” to the VA. The SP told the VA that the G “needs to say no and mean no.” The SP “yelled” at the VA at the “top of [his/her] voice.” The VA wished there were cameras in the facility to show how the SP talked to the VA. The VA stated that the SP made the VA feel “pissed.” When the VA made the audio recording, s/he placed his/her cell phone under pillows in the living room where s/he and the SP were watching television. There was no one else present at the time of the incident. The VA believed the incident occurred on November 22, 2023. The SP, the P, and the facility’s documentation provided the following information: · The SP stated that s/he worked at the facility for fifteen years. On the day of the incident, s/he made dinner for the residents and then one of the other residents watched wrestling on the television in the living room. The VA began to yell and make comments about the wrestlers. When the other resident asked the VA to go to his/her bedroom if s/he was going to yell, the VA told the resident that it was his/her home and s/he could do what s/he wants. The SP then asked the VA to stop yelling, but the VA continued to yell and told the SP that s/he could do “what the fuck I want.” The SP went outside for a few minutes and then went to the staff office to calm. The VA continued to yell so the SP then returned to the living room and “lost it” and told the VA “what [s/he] thought.” The SP was unaware that the VA recorded their conversation. · The SP made a comment about the VA being fat because at one of the VA’s medical appointments, the VA’s physician told the VA that his/her physical condition would improve if the VA lost weight and stopped eating junk food. The SP stated that when the VA’s family member brought his/her dog to the facility, the dog remained in the staff office and did not want to be near the VA. In the past, when the VA began to make sexual comments, the SP told R1 and R2 to go to their bedrooms so they did not have to listen to the VA. The VA “liked to get people in trouble” and the SP stated that s/he “just lost it that night.” · When the P learned about the audio recording, s/he asked the SP about the incident. The SP told the P that s/he “had gotten so frustrated” with the VA because the VA “screamed and cussed” while they were watching television. The P and the SP each stated that the VA played the audio recording to other staff persons and “laughed about it” to the staff persons. The P stated that in the past, when the VA said s/he was “getting fatter,” the P heard the SP tell the VA that s/he was “already there” and should eat healthy foods. The P did not hear the SP make other inappropriate comments to the VA. · The P stated that s/he worked with the VA for many years. The VA frequently made inappropriate and “nasty” statements to the staff persons and threatened to “run them out of here.” When the VA was upset, the staff persons were trained to try to redirect the VA. A behavior analyst told the staff persons to praise the VA’s positive behavior and either redirect or not acknowledge the VA’s negative behavior. The P stated that on unknown dates in the past, the P heard the SP make inappropriate remarks to the VA. On one occasion, when the VA made a comment about becoming fat, the SP told the VA that s/he was already fat and that if s/he did not eat “crap,” s/he “wouldn’t have that problem.” On another occasion, when the VA made a comment about dating, the SP told the VA that s/he “wouldn’t know what to do with [a date].” R1 stated that s/he was in the living room at the time of the incident and was aware that the VA made an audio recording of the incident. R1 “did not pay attention” to what occurred between the VA and the SP, but s/he heard the VA swear at the SP at one point. R2 stated that s/he was not present at the time of the incident. R2 believed that the VA was “disrespectful and rude” to the staff persons and residents. The SP usually “could shut things down pretty easy” if the VA became “heated.” According to the facility’s policies, the residents had the right to be free from maltreatment and to be treated with courtesy and respect. Facility documentation showed that the SP and the P each received training on the Reporting of Maltreatment of Vulnerable Adults Act, on the facility’s policies, and on the VA’s plans prior to the incident. Relevant Rules and Statutes: Minnesota Statutes, section245D.04, subdivision 3, paragraph (b), state that a person’s protection related rights include the right to be treated with courtesy and respect. Conclusion: A. Maltreatment: It was reported that on one occasion, the SP yelled at the VA, swore at the VA, and made inappropriate comments to the VA about the VA and his/her family members. The SP was unaware that the VA made an audio recording of the SP’s comments. The SP did not deny making the comments to the VA and stated that s/he “lost it” and told the VA “what [s/he] thought.” The VA stated that the SP made the VA feel “pissed.” The SP’s actions of yelling at the VA, swearing at the VA, and telling the VA that s/he was fat and that s/he lied, were inconsistent with the standards of a professional caregiver in a facility licensed by the Department of Human Services and were a violation of Minnesota Statutes, section 245D.04, subdivision 3, paragraph (a), clause (6). In addition, given that the SP’s actions and comments to the VA were not accidental or therapeutic conduct and that on other occasion the P heard the SP make inappropriate remarks to the VA including telling the VA that s/he was fat and commenting on the VA dating, there was a preponderance of the evidence that the SP’s used repeated oral language toward the VA that would be considered by a reasonable person to be disparaging, derogatory, humiliating or threatening and could reasonably be expected to produce emotional distress to the VA. 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. Facility documentation showed that the SP received training on the Reporting of Maltreatment of Vulnerable Adults Act, on the facility’s policies, and on the VA’s plans prior to the incident. 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 it was the SP’s pattern of behavior that was considered a single incident and it did not meet the definition of serious. Action Taken by Facility: The facility completed an internal review and determined that the facility’s policies were adequate, but were not followed by the SP. 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. Given that the facility took immediate corrective action, a Correction Order was not issued for the violation outlined above.
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