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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: 1070745H-CRS (Home and Community-Based Services-Community Residential Setting) Investigator(s): Christine Henne 651-431-3444 Suspected Maltreatment Reported: It was reported that a staff person (SP) was witnessed squeezing/fondling a vulnerable adult’s (VA’s) breast. Date of Incident(s): April 9, 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): 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 April 27, 2023; from documentation at the facility and law enforcement records; and through eight interviews conducted with one facility staff person (P1), four supervisory staff persons (P2-P5), one administrative person (P6), the VA’s guardian (G), and the staff person (SP). The VA was unable to provide information due to his/her diagnoses. The facility’s records for the VA stated s/he was a very kind person who was sweet and caring towards others. The VA enjoyed his/her routine which included watching Jeopardy, getting lots of one-to-one attention, shopping, and eating ice cream. The VA was diagnosed with cerebral palsy, epilepsy, and moderate intellectual disability. The VA used adaptive equipment including a wheelchair, a shower/toilet commode, a gait trainer, and a standing frame. The VA needed assistance for “everything.” The VA’s Individual Abuse Prevention Plan stated s/he may not be able to fully communicate facts or describe accurately any possible abuse due to his/her limited communication. Due to his/her limited mobility and strength, s/he would not be able to move away from a person if need be or physically defend him/herself if touched inappropriately or sexually abused. S/he also may not understand the nature of any sexual assault or abuse and would not be able to call out for help or confide in his/her support staff. The VA’s file stated that s/he used a Sebina Sit-to-Stand for all transfers. Staff persons placed the Sit-to-Stand belt around the VA’s waist and ensured that both of the VA’s feet were firmly in place on the platform and then unbuckled his/her wheelchair. Once the VA was raised to a standing position, the Sit-to-Stand was moved to the needed location such as a commode, bed, or wheelchair. The facility was a one-story home with four bedrooms, one for each client. The VA’s bedroom was adjacent to the living room and had two doors from the living room. The kitchen overlooked the living room and had limited visible access to the VA’s bedroom. The VA used a commode in his/her bedroom for toileting. The facility schedule stated on April 9, 2023, P1 was scheduled from 6:30 a.m. to 4:30 p.m. and the SP was scheduled 11 a.m. to 9 p.m. P1 provided the following information: · On April 9, 2023, P1 began work at 6:30 a.m. The staff person who worked the night shift (P8) overlapped with P1 and mentioned that when s/he arrived at his/her shift at 9 p.m. the SP was still in the VA’s room. The VA usually went to bed around 7:30 or 8 p.m. When P8 asked the SP about it, the SP said s/he was doing the VA’s physical therapy. P1 said the physical therapy was usually done earlier. (Note: According to the VA’s Medication Administration Record [MAR], the VA had several range of motion [ROM] exercises to be completed daily. The lower extremity ROM and finger ROM were to be completed during “PM,” but no times were specified in the MAR. The SP signed off on the VA’s lower extremity and finger ROM for April 8, 2023.) P8’s information gave P1 a weird “feeling.” Later that morning on April 9, 2023, the SP arrived at 11 a.m. for his/her shift. During that shift, P1 noticed the SP “pa[id] a little more attention” to the VA, so P1 “ke[pt] his/her “eye on things a little extra than [s/he] normally d[id].” · P1 said there was “nothing too out of the ordinary” until around 2 p.m., when the SP sat down at a kitchen table where the VA was coloring or looking at a magazine. The SP started to do the VA’s physical therapy, which was normally done in the morning and after dinner. The SP reached for the VA’s hand and the VA “kind of pulled it back a little.” After a couple of minutes, the SP went and mopped another client’s room. P1 thought, “That was a little weird.” About ten minutes later, the SP returned and pulled a chair in-between where P1 and the VA were sitting VA at the table. The SP’s back was “kind of” towards P1, but “not fully” and then the SP “turned” the VA so P1 could “barely see” the VA. The SP “grabbed” the VA’s left hand with his/her right hand and “slowly” did arm circles. That happened on and off for a few minutes and then the SP stopped and put both his/her hands and the VA’s hands in the VA’s lap while the SP held the VA’s hands. That went on for ten to fifteen minutes. P1 thought that was “weird.” After about ten minutes, P1 “noticed” the SP “leaning in” and whispering to the VA every few minutes for about 20 to 25 minutes. P1 saw the VA shake his/her head and say, “No” and, “Yes,” but P1 could not hear what the SP whispered or see the VA’s face. P1 decided s/he should get a “better angle” to “ease” his/her “own mind” so P1 got up and walked into the kitchen for “maybe two minutes” and heard the SP say to the VA, “Let’s go to the bathroom.” P1 thought that was “weird” because staff persons “always ask” the VA if s/he needed to go to the bathroom and the VA would either say, “Yes,” or “No” or not answer. The SP brought the VA into his/her bedroom entering the bedroom door farther from the kitchen, where the commode was located, and shut the door. · P1 stood in the kitchen and thought, “Did that really just happen?” and s/he “couldn’t comprehend what just happened.” P1 “stood there for about one minute, maybe three, wasn’t very long” and then “something inside” of P1 said to see if the SP needed help or an extra set of hands putting the VA on/off the commode. · P1 stepped inside the doorway of the opened bedroom door that was closer to the kitchen and “froze.” The SP’s back was to P1, and the SP stood on the VA’s left side facing the back bedroom wall while the VA sat on the commode. P1 saw the SP’s left hand “squeezing” the VA’s left breast two times. P1 saw the VA’s shirt “wrinkle,” and the SP’s “finger’s moving.” P1 “froze” for a second and as P1 turned to walk away from the bedroom doorway, P1 saw from his/her peripheral vision, the SP turn and then leave the VA’s room, and go into the kitchen and “messed around with some dishes or something.” · P1 went to the facility’s office “shaking” and called the on-call supervisor while keeping the SP in his/her view. The SP was in the kitchen the whole time P1 was on the phone. P1 did not remember who the on-call supervisor s/he spoke to was but told him/her what s/he saw. The on-call supervisor “calmed” P1 and told P1 to not let the SP go in the VA’s bedroom and not let the SP be alone with the VA. The on-call supervisor told P1 that P2would call P1 and not to leave the SP alone with the VA. P1 then got the VA off the commode and brought the VA to the kitchen table to color. The VA had a seatbelt on his/her commode and staff were trained to give the VA privacy while s/he used the commode, but to leave one of the bedroom doors open and staff would check on the VA every couple of minutes. · Sometime later, the house phone rang, and it was P2. P1 asked P2 to call P1’s cell phone instead. P2 walked outside to the porch area to talk to P2 on his/her cell phone while keeping his/her eye on the VA. P2 made sure P1 was okay, asked what happened, and P1 told P2 about the incident. During the phone call, the SP sat on the couch and did not move. P2 said that s/he was going to try to get someone to cover for the rest of the SP’s shift. P2 then told P1 s/he would be calling the SP to put him/her on immediate administrative leave. After P2 hung up with P1, the SP received a call on the house phone while P1 was still outside. Once the SP answered the phone, P1 went back inside and sat down at the table with the VA. The SP was on the phone for a couple minutes and then went into the office for about two minutes and then asked P1 if s/he could talk to him/her. P1 told the SP, “No,” and the SP said, “Oh, no?” and then left the facility. · P1 worked with the SP every other weekend and sometimes during the week when a shift would overlap. Two weekends prior to this incident, the SP was in the VA’s room while the VA was on the commode when P1 went to see if the SP needed any help. When P1 went to the VA’s bedroom, the SP was “squatted” down in front of the VA. The VA looked up at P1 and said, “Hi,” and P1 then said, “Hi.” The SP “jumped up quickly.” P1 did not see anything but told P5 what happened. · P1 was trained by P5 on how to help the VA use the commode. Staff persons were trained to pull the VA’s brief and pants down, then use a device called a “Sit-to-Stand” to help the VA get on the commode. Staff persons were trained to give the VA his/her privacy when s/he was on the commode and check on the VA every couple of minutes. The bedroom door near the commode was kept closed, but the other bedroom door was kept open. · The VA’s ability to communicate was “very minimal” and s/he was unable to report accurate information. Very rarely, “maybe once a week,” the VA pointed to her bedroom if s/he needed to use the bathroom. Meeting notes provided the following information: · On April 10, 2023, P2 and P3 met with the VA in his/her room. P2 started off by asking the VA if s/he knew the SP and the VA said, “Yeah.” P2 asked the VA if the SP “treats [him/her] good,” and the VA did not respond to the question. P2 asked the VA if the SP had ever touched his/her breast and squeezed it and the VA said, “Yeah.” P2 asked the VA if s/he knew when this was and the VA stated, “Yeah.” P2 asked the VA who it was, and the VA did not respond. P2 asked the VA if s/he felt comfortable with the SP and the VA stated, “Yeah.” · P2 asked the VA if s/he was just answering everything with “yeah” and the VA smiled and said, “Yeah,” and then “giggled.” P2 asked the VA if s/he liked living at the program and the VA said, “Yeah,” with a big smile on his/her face. P2 and P3 tried also tried a visual of “yes” or “no” so that the VA was able to point for an answer. When P2 and P3 did this and asked the same aforementioned questions, the VA pointed to “yes” and then “no” and then “yes” again or in the reverse order. At one point in the conversation, the VA looked to be almost in tears, but quickly went to smiling. P2 and P3 and facility documentation/meeting notes provided the following consistent information: · On April 11, 2023, P2 and P3 met with the SP. The SP stated that s/he thought his/her relationship with the VA was “pretty good.” The SP said s/he was trained on transferring the VA and using his/her commode. · During the meeting, the SP denied holding the VA’s hands in his/her lap and denied touching the VA’s breast and did not know why someone would say s/he had done so. · P2 and P3 said that although they met with the VA they did not know if it was accurate information due to the VA’s diagnoses and limited ability to communicate. · P2 said P1 was a “very phenomenal staff” and was “very credible” and P2 was not aware of any “problems” with the SP and P1. P2 had also worked with the SP for many years and did not “foresee” him/her doing “something like this.” · P3 said s/he worked with P1 for a couple of years and was not aware of any interpersonal conflict with P1 and the SP. P3 had never witnessed anything concerning with the SP. P5 said s/he worked with the SP maybe once a week but their shifts did not “overlap a ton.” On occasions, P5 saw the SP hold the VA’s hand and saw the SP sit “close” to the VA. P5 worked with P1 more frequently and had no concerns with P1. P5 was not aware of any personal conflict between staff persons at the facility. On April 10, 2023, P1 told P5 consistent information that s/he told P2 and P3 regarding the interaction s/he saw between the SP and the VA. P4 said that on April 9, 2023, s/he was on-call and received a call from P1 saying s/he saw the SP squeeze the VA’s left breast with his/her left hand and that the SP was facing the VA while the VA was on the toilet. After the SP saw P1, the SP “acted surprised.” P4 had never met the SP or P1 prior to this. P6 said that s/he became aware of the incident from P7. Due to the VA’s diagnoses, P6 said the VA was not an accurate reporter of incidents and said, “Yes,” to a lot of things. The G said that s/he was told that a staff person observed another staff person squeeze one of the VA’s breasts. The VA had limited verbal communication. The SP provided the following consistent information in his/her interview and in the facility’s meeting notes: · The VA was a “little sweetheart” and was in a wheelchair and needed a lot of help and care. The VA’s hands were “tightening” up so s/he needed staff persons to do hand exercises that included “range of motion.” One time, the VA said, “Owe,” during his/her hand exercises so the SP “quit right away.” The VA liked swinging staff persons arms around. · The VA used a commode in his/her bedroom and needed staff persons to buckle a seatbelt near the VA’s mid-section right above his/her belly button. If staff persons lifted the buckle, it could come up a little and need adjusting. · The SP said that s/he “didn’t do anything wrong” and “would never sexually molest a [vulnerable adult] in a wheelchair.” The SP said, “If you didn’t do anything wrong it’s hard to remember.” The SP said s/he was maybe “buckling” the VA. · The SP was kneeling in front of the VA because s/he was “toileting” the VA. The SP said that if s/he stood above the VA it could make him/her look more “intimidating” and maybe his/her back was sore from bending over. · The SP said s/he was treated poorly by staff persons and at times staff persons would not say anything to the SP for hours during a shift. Law enforcement forwarded the report to the county attorney for review of possible charges and the SP was charged with two counts of Criminal Sexual Conduct in the 4th degree. On April 17, 2024, the SP was acquitted. All staff persons interviewed were trained on the VA’s plans including using the Sit-to-Stand, and on the Reporting of Maltreatment of Vulnerable Adults Act. Conclusion: Although P1 said s/he saw the SP squeeze the VA’s left breast two times with his/her left hand and there was no information P1 and the SP had any interpersonal conflict or reason to believe P1 was not credible, given that there was no additional information to corroborate P1’s information, that the VA was unable to provide information due to his/her diagnoses, that there was no information provided that the VA was emotionally distressed after the alleged incident, and that the SP denied the allegation, there was not a preponderance of the evidence whether the SP touched the VA’s breast in a sexual manner or had incidental contact during the course of the VA’s care. 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). Action Taken by Facility: The facility completed an Internal Review and determined that policies and procedures were adequate and followed. The SP was on administrative leave pending investigation. Action Taken by Department of Human Services, Office of Inspector General: No further action taken.
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