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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: 1117672-H_CRS (Home and Community-Based Services-Community Residential Setting) Investigator(s): Scott Brandt 651-431-6556 Suspected Maltreatment Reported: Allegation One: It was reported that a staff person (SP1) hit a vulnerable adult (VA) and emotionally abused the VA. In addition, it was reported that the VA had several falls while SP1 was working, some with injuries, and a staff person (SP2) did not respond to concerns regarding this and SP1’s conduct and actions. Allegation Two: It was reported that a staff person (SP3) did not follow the VA’s medical orders because SP1 told him/her not to. Date of Incident(s): Allegation One: January 9, 2024, and prior. Allegation Two: Prior to January 9, 2024 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), clauses (1) and (2); and subdivision 17, paragraph (a): 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: · Hitting, slapping, kicking, pinching, biting, or corporal punishment of a vulnerable adult. · 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. 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 January 23, 2024; from documentation at the facility, from law enforcement records, and from the VA’s medical records; and through 15 interviews conducted with SP2, SP3, four facility staff persons (P1-P4), a facility manager (P5), a facility health care professional (HCP), the VA’s case manager (CM), the VA’s guardians (G1 and G2), the VA’s medical doctor (MD), a county emergency protective services staff person (EPS), a community person (CP), and a law enforcement officer (LEO). Although this investigator and SP1 agreed upon a date and time to conduct an in-person interview, SP1 did not attend the interview. Additional efforts were made to request an interivew with SP1, including a certified mail interview request letter, but SP1 did not respond. The VA was the only client that lived at the facility. Although this investigator met the VA, the VA was unable to provide information in an interview. The VA’s support plan showed that the VA had a “great smile,” and enjoyed eating pizza, listening to music, and going to church. The VA’s Self-Management Assessment showed that the VA had a “severe” developmental disability and that s/he had a history of falling. As a result, staff persons were to “be aware of [the VA’s] lack of balance and be prepared to help [the VA] around or use a wheelchair when necessary.” The facility’s training records for all staff persons interviewed for this investigation, and SP1, showed that each was trained on the Reporting of Maltreatment of Vulnerable Adults Act and the VA’s care plans prior to January 9, 2024.
Allegation One: It was reported that SP1 hit the VA and emotionally abused the VA. In addition, it was reported that the VA had several falls while SP1 was working, some with injuries, and SP2 did not respond to concerns regarding this and SP1’s conduct and actions. Video obtained from the incident on January 9, 2024, showed the following: · The video, which did not have audio, showed the VA sitting at a table in the dining room while SP1 was in an adjacent kitchen. SP1 picked up a full plastic beverage bottle (approximately 20-ounce bottle) from the counter and went toward the VA when the VA appeared to drop something on the floor. The SP raised his/her hand with the bottle in it above SP1’s head and then hit the VA’s head with the full bottle and then hit the VA a second time. The bottle was then on the floor. It could not be seen in the video if the second hit was with the bottle or with SP1’s hand after the bottle fell out of it onto the floor. SP1 picked up the bottle and hit the VA one more time on the left side of the VA’s head with the bottle. The VA’s head moved slightly, and the VA’s hair moved as the bottle made contact. SP1 then returned to the kitchen and set the bottle down on the counter. · A few seconds later, SP1 returned to the VA. SP1 raised his/her left arm almost extended fully to SP1’s side and used an open palm to hit the VA in the back of the VA’s head and neck. The VA’s body moved forward when SP1 hit him/her. After that, SP1 left the room. The VA appeared to cry. P5 provided the following information: · On January 9, 2024, facility management received an email and video footage of SP1 “hitting [the VA] multiple times with what appeared to be a plastic bottle.” · As a result, P5 called law enforcement and the county adult protective services department. The EPS and law enforcement responded to the facility and conducted investigations. A law enforcement report, dated January 10, 2024, showed that SP1 was charged with two counts of fifth degree misdemeanor assault. SP1 did not provide information to law enforcement at the time of this report. Information from the investigation showed that on or around January 2, 2024, the VA had a bruise on his/her right arm/shoulder area and that the VA was seen in the emergency room (ER), but no conclusive determination was made as to the cause. Information from staff persons showed that in the days following that ER visit, staff persons noticed that the size of the bruise increased and changed color. The VA’s medical records showed that on January 9, 2024, the VA was seen in the ER and diagnosed with a “fracture of neck of right humerus.” The VA was told to take over the counter pain medications as needed and to use a “shoulder immobilizer.” The medical records also stated that on January 1, 2024, the VA “attempted to throw” him/herself on the ground, but that “staff [persons] caught” the VA “on that side.” The VA’s case notes stated that on January 1, 2024, SP1 documented that after SP1 and the VA returned from a community outing, the VA did not want to get out of the vehicle so SP1 waited “inside” and then the VA came inside the facility. When SP1 asked the VA to take off his/her coat, the VA “hit” SP1 and “bent” SP1’s fingernail, which caused it to break. When SP1 told the VA that was not an okay thing to do, the VA “proceeded to throw [his/herself] on the ground.” An entry later in the day by another staff person said that “both” of the VA’s arms “seemed weak.” An entry the following day, January 2, 2024, by SP1 stated that when SP1 tried to wake the VA up, the VA was “extremely stiff” and when SP1 assisted the VA from bed, the VA “fell to [his/her] butt.” An entry from that night into the following morning, January 3, 2024, by another staff person stated that when the VA ate breakfast that morning, the VA was unable to feed him/herself and that “one of [his/her] hands seems swollen.” An entry on that date showed that the VA went to the ER due to the “bruise” on his/her right arm. The next mention to the VA’s right arm and bruising was on January 7, 2024. That entry stated that the VA was able to “move [his/her] hand better.” An entry by SP1 the following day, January 8, 2024, showed that SP1 applied “ice” to the VA’s arm for ten minutes. An entry the following day, January 9, 2024, showed that the VA was taken to the ER. The MD stated that s/he was the physician that initially saw the VA in the ER and at the time, the VA did not have range of motion issues or demonstrate that s/he had pain. The MD was also the physician that diagnosed the VA’s fracture and when that happened, the bruising had worsened. The MD stated that some possible causes of the fracture could be a “ground level fall” or “direct injury to the bone.” P1 provided the following information: · When P1 first saw the bruise on the VA’s right arm on January 2, 2024, it was “really small.” When P1 asked SP1 about its origin, SP1 told P1 that s/he did not know what happened. P1 said that the size of the bruise continued to grow after its initial discovery. · P1 stated that SP1 “yells” at the VA. P2 described SP1’s tone of voice on a scale of one to ten, ten being the loudest, as being a “ten.” P1 stated that the VA typically did not respond when SP1 yelled at the VA. P1 heard SP1 say, “Shut up,” to the VA. P1 was not aware of a time that the VA fell while P1 worked at the facility. P2 provided the following information: · Although P2 did not remember the date, the VA had a seizure. When the length of the seizure got to five minutes, P2 called 9-1-1 to have the VA transported for medical care. At some point, P2 notified SP1 of the seizure and that the VA was in the hospital. SP1 told P2 that the VA should not have been taken to the hospital. · When P2 was asked to describe the interactions s/he observed between the VA and SP1 and SP1’s tone of voice, P2 stated that SP1’s tone was “sometimes” a “ten.” P2 observed one interaction in which the VA told SP1, “I love you,” and “I want to give you a hug.” When the VA said that, SP1 responded, “Shut the fuck up.” · P2 was not aware of a time that the VA fell while P2 worked at the facility. The VA’s Seizure Protocol stated that 9-1-1 was to be called if the VA had a seizure lasting more than five minutes. P3 said that when s/he came to work on November 7, 2023, the VA had a “red bruise” on his/her left side, but P3 did not remember specific details about it. P3 remembered that when s/he asked SP1 about the bruise, SP1 said that the VA had fallen. P3 described SP1’s tone of voice as being a “six” and gave an example in which SP1 said, “Get up get up.” Although the VA was a “fall risk,” P3 had not seen the VA fall. P4 stated that s/he had only worked at the facility a few times and had not observed any interactions between the VA and SP1. P4 also stated that s/he had not observed any times that the VA fell. The HCP provided the following information: · The HCP did not remember specific details, but stated that one occasions the VA fell, which caused his/her lip to “bust open.” · The HCP was told about the bruise on the VA’s arm on or around January 2, 2024, but was not told by SP1 what the cause was. The HCP told staff persons to observe it and bring the VA to the ER if it worsened. The HCP was notified the following day that the bruising appeared to worsen, so the HCP told staff persons to bring the VA to the ER and they did. The HCP was told that the diagnosis from the ER was that it was “just a bruise.” · The HCP did not remember the specific date, but remembered a time that SP1 sat on the couch and “yelled” at the VA. The HCP described SP1’s tone as being an “eight.” SP2 described SP1 as being “very loud” and being “borderline abusive” when talking to the VA. SP2 stated that there was a team meeting in which SP1 got into a “screaming match” with G2 that began when G2 asked whether the VA had the ability to use the bathroom without assistance. G2 stated that s/he did not think the VA had that ability, but SP1 believed that the VA could do that. SP2 also stated that s/he was not aware of the VA falling when SP2 worked, but that the VA had falls when SP1 worked at the facility. When SP3 was asked to describe interactions s/he observed between SP1 and the VA, SP3 stated that SP1 was “loud” when s/he talked to the VA. When SP3 was asked to describe the tone of voice SP1 used, SP3 described SP1’s tone of voice as an “eight.” The CM stated that when the team meeting was held on October 11, 2023, SP1 “verbally attacked” G2 and that SP1 told the VA to “shut up.” The CM also stated that s/he told SP1 that “maybe this was not the job” for SP1. The CM described SP1’s tone as being a “ten.” G2 also stated that s/he heard SP1 tell the VA to “shut up.” G2 remembered the team meeting, but did not remember specifically what SP1 said, but remembered that SP1 was “definitely out of place.” G1 said that when SP1 began to yell at G2 during the team meeting, SP2 told SP1 to “cool off.” G1 described SP1 as being “irate” and “defensive” in the meeting. When the EPS worker interviewed facility staff persons regarding the January 9, 2024, incident, one staff person said that when staff persons brought concerns forward to SP2 regarding SP1’s performance and conduct with the VA, SP2 responded that staff persons should “trust” SP1, and that SP2 did nothing further. The EPS worker did not know the name of that staff person. P1, P2, P3, P4 and SP3 all told this investigator that that they had not brought any concerns regarding SP1 forward to SP2. The HCP stated that at some point in October 2023, the HCP wrote a note about interactions s/he had observed between the VA and SP1. The HCP stated that SP1 “frequently” told the VA to be “quiet.” The HCP described SP1’s tone of voice as being an 8 (with a ten being very loud). While the HCP and SP1 were at the facility, the HCP heard SP1 talking on the phone to SP2 and some of the language used by SP1 included him/her saying “fuck” when s/he talked to SP2. The HCP described that interaction as being “not appropriate.” The HCP gave the note to SP2 and thought that SP2 would address the concerns with SP1, but the HCP did not know if that happened. In early January 2024, the HCP asked P5 if she had received the note from SP2 and P5 told the HCP that s/he had not received the note. SP2 said that there was one time that s/he told SP3 that s/he should trust SP1 and that happened when SP3 questioned SP1 about the VA’s falls. SP2 told SP3 that the VA had a history of falling and when falls happened, SP1 communicated those falls to SP2 and that was why SP2 made that statement to SP3. SP2 did not remember getting a note from the HCP. During the investigation, it was learned that in August 2023, an incident occurred in the community between SP1 and the VA. The law enforcement Incident Report and interviews with the CP and the LEO provided the following information: · At 12:48 p.m. on August 29, 2023, the LEO was in the community and saw SP1 and the VA walk past the LEO. When that happened, the LEO “heard” SP1 talking to the VA in an “aggressive manner.” Shortly thereafter, the CP approached the LEO and stated that s/he “witnessed” SP1 “hit” the VA as they entered a store. · When the LEO found SP1 and told him/her of the “complaint,” SP1 stated that s/he was “holding” the VA up to “prevent” him/her from falling. As SP1 “became agitated,” the VA began to walk away and SP1 “grabbed” the VA. When that happened, the VA said, “Ow, don’t pinch my shirt.” SP1 then said, “At this point, I’m just going to let [him/her] fall.” When the LEO told SP1 that “would be worse,” SP1 stated, “No, because if I try to grab [him/her], I’m getting reported,” and “I’m literally going to let [him/her] bust [his/her] head open at this point.” The LEO told SP1 “not to.” · The CP provided a written statement to the LEO that did not identify names, but that the staff person (further referred to as SP1) “was yelling step” as the vulnerable adult (further referenced as the VA) “slightly trips” and that SP1 “slaps” the VA on the back of his/her head or neck with an “open hand” that was “pretty loud.” The CP described the hit as a type of “push.” The CP also stated that s/he was near his/her car at the time, which was about 20 feet from SP1 and the VA. The CP also told SP1, “I saw what happened,” and then the CP said, “No” to SP1. After that, the CP told the LEO. At some point, SP1 approached the CP and told the CP, “[The CP] should mind [his/her] own business.” · The LEO stated that when the VA “burped,” the VA said, “Excuse me,” and SP1 loudly said the VA’s name. SP1 told the VA to “shush” several times when the VA tried to talk to the LEO. The LEO also said that when the VA tried to shake the LEO’s hand, SP1 “pulled” the VA’s hand away so the VA could not shake the LEO’s hand. The LEO stated that SP1’s interactions with the VA were “not professional.” The facility’s staffing schedule showed that SP1 worked at the facility from 8 a.m. until 3 p.m. on August 29, 2023. Conclusion for Allegation One: A. Maltreatment: Regarding SP1 and Physical Abuse and Neglect On January 9, 2024, the facility received video that showed SP1 hit the VA’s head with a full bottle and then hit the VA a second time either again with the bottle or SP1’s hand. A few seconds later, SP1 hit the VA’s head again with an open hand. The VA appeared to cry. Later that day the VA was taken to the ER because the bruise s/he had on his/her shoulder worsened and the VA was diagnosed with a fractured right humorous. The VA was also seen at the ER on January 2, 2024, for the same bruise but at that time the VA was diagnosed with a bruise because s/he had no range of motion issues and not diagnosed with a fracture. SP1 documented the day prior that the VA threw him/herself on the ground. Information showed that the VA had falls more often when SP1 worked however SP1 documented and told SP3 about the VA’s falls when they occurred and the VA had a history of falls. During the investigation, it was learned that there was an incident in the community between SP1 and the VA where the CP stated s/he saw SP1 hit the VA and the LEO observed SP1 talking to the VA in an “aggressive manner.” The CP said SP1 “slapped” the VA on the back of the head but described it as a “push.” SP1 told the LEO that s/he was holding the VA to prevent the VA from falling. Although SP1 denied hitting the VA on the August 29, 2023, incident, and there was no information that SP1 caused the VA’s injuries SP1 stated were from the VA falling, given that there was video from January 9, 2024, that showed SP1 hitting the VA several times causing the VA to cry and that SP1’s behavior was not inconsistent with the standards of a professional caregiver in a facility licensed by the Department of Human Services, there was a preponderance of the evidence that SP1 engaged in conduct that was not accidental that could reasonably be expected to produce pain and that SP1 failed to provide the VA with reasonable and necessary care and services to maintain the VA’s physical health, mental health, and safety. It was determined that physical abuse and neglect 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: hitting, slapping, kicking, pinching, biting, or corporal punishment of a vulnerable adult; 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). Regarding SP1 and Emotional Abuse Given that there were witnesses of separate occurrences of SP1 yelling at the VA and telling the VA to “shut up,” and “shut the fuck up,” there was a preponderance of the evidence that SP1 engaged in the use of repeated language toward the VA that would be considered by a reasonable person to be harassing or threatening. It was determined that emotional abuse occurred (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). Regarding SP2 and Neglect Although there were concerns that SP2 received information from staff persons concerned about SP1’s conduct and the EPS worker stated that one staff person told him/her that, given that the EPS did not know who told him/her that, that P1, P2, P3, P4 and SP3 each told this investigator that that they had not brought any concerns regarding SP1 forward to SP2, and that when SP2 told staff persons to “trust” SP1 it was because SP1 informed SP2 about the VA’s falls when they occurred, therefore there was not a preponderance of the evidence whether SP2 failed to provide necessary services to the VA to maintain the VA’s safety. 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). 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; an (3) whether the facility or individual followed professional standards in exercising professional judgment. Given that SP1 was trained on the Reporting of Maltreatment of Vulnerable Adults Act, SP1 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 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 physical abuse and neglect for which SP1 was responsible was not serious maltreatment because it did not meet the definition and was not recurring because it was a single incident. It was determined that the substantiated emotional abuse for which SP1 was responsible was not serious maltreatment because it did not meet the definition and was not recurring because it was a pattern of behavior that was considered a single incident. However, given SP1 was responsible for two incidents of substantiated maltreatment, it was determined that the combination was recurring maltreatment. SP1 was disqualified from providing direct contact services. Allegation Two: It was reported that SP3 did not follow the VA’s medical orders because SP1 told his/her not to. The VA’s case notes, dated December 17, 2023, written by SP1, stated that the VA “had a hard time walking, but got ready. [The VA] ate lunch and when staff [persons] suggest[ed] a coffee run, [s/he] said no and fell to the ground. Staff [persons] let [him/her] throw [his/her] fit before helping [him/her] stand up.” The following day, SP1 documented that when s/he tried to wake the VA up at 11 a.m., the VA yelled, “No.” SP1 told the VA that s/he would let him/her sleep for ten more minutes and that SP1 was going to use the bathroom. When SP1 was washing his/her hands, s/he heard the VA “scream.” When SP1 checked on the VA, the VA was “on the ground” and was “bleeding from the lip.” SP1 also documented after consultation with the “nurse,” it was determined that the VA did not need medical attention and that the VA “had a lot of balance issues.” The HCP stated that when the VA had the lip injury, the HCP and SP1 talked about it and SP1 told the HCP that it was caused by a “fall,” but SP1 and the HCP determined that medical care was not needed. When the VA “kept talking about it,” an unspecified staff person took the VA to urgent care, but when that staff person called SP1 to inform him/her that the VA was going to the ER, SP1 told that staff person to bring the VA back to the facility and not go to the ER. The HCP was aware of falls the VA had when SP1 worked, but did not have knowledge of any falls when other staff persons worked with the VA. P5 provided the following information: · On December 18, 2023, the VA fell and “busted” his/her lip open. When an unspecified facility health care professional was advised of the report, the “nurse” was told that because there was “no significant bleeding or evidence of head injury,” the VA did not need medical attention “unless further problems arose.” · At an unspecified time, SP3 called an unspecified management person because the VA became “demanding.” SP3 was told to take the VA to an urgent care facility for evaluation. When SP3 was at the urgent care facility with the VA, the VA was “referred” to the ER, but SP3 did not follow “that directive” and brought the VA back to the facility. · The following day, December 19, 2023, SP3 was told by an unspecified person to take the VA to the ER, which SP3 did. Photographs of the VA, taken by unknown persons, showed a laceration on the lower portion of the VA’s lip. Although the urgent care records were requested for December 19, 2023, those records were not received. The VA’s ER medical records for December 19, 2023, stated that “caregivers are unsure of how the incident occurred,” and after “anesthesia” was used for “sedation,” the VA’s lip was “repaired by removing the extra tissue from the lip and dissolvable sutures [were] placed.” The VA was discharged the same day. SP3 provided the following information: · When SP3 worked with the VA, the VA had not fallen. · SP3 did not remember the date but remembered that when s/he got to work, the VA had a “big injury in the mouth” and was “bleeding a little bit.” In addition, the VA was having difficulty eating. SP3 called an on-call manager but did not remember who that was and informed the manager that s/he was going to take the VA to urgent care. · When SP3 was at urgent care with the VA and was told to take the VA to the ER, SP3 called SP1 to tell him/her that SP3 was taking the VA to the ER. SP1 told SP3, “Why didn’t you listen to me,” that the VA was “not supposed to be taken to hospital,” and that the VA “will be okay.” When SP1 told SP3 to bring the VA back to the facility and not go to the ER, SP3 followed that directive. The following day, SP3 took the VA to the ER. SP1 did not provide information for the investigation. Conclusion for Allegation Two: A. Maltreatment: On December 18, 2023, SP3 took the VA to urgent care for an abrasion on his/her lip, which was due to a fall the previous day according to SP1’s case notes. Although SP3 was told to take the VA to the ER, SP1 told SP3 to bring the VA back to the facility, which SP3 did. The following day, the VA went back to the ER and received treatment for the injury. Given that urgent care gave medical direction to bring the VA to the ER for treatment but because SP1 told SP3 not to, SP3 brought the VA back to the facility, and that when SP3 took the VA to the ER the following day, the VA received medical treatment for his/her injury that was advised to have been sought the day prior, there was a preponderance of the evidence that there was a failure to provide the VA with reasonable and necessary care and services. 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: (2) 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; (3) 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; an (4) whether the facility or individual followed professional standards in exercising professional judgment. SP1 and SP3 were each trained on the Reporting of Maltreatment of Vulnerable Adults Act. Although SP3 was with the VA at urgent care when orders were given to take the VA to the ER and s/he did not, given that SP3 called SP1 who was a supervisor and SP1 told SP3 to not take the VA to the ER, SP3’s responsibility was mitigated and SP1 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 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 SP1 was responsible was not serious maltreatment because it did not meet the definition and was not recurring because it was a single incident. However, given SP1 was responsible for recurring maltreatment in allegation one, in combination, allegation two was then also recurring maltreatment because SP1 was responsible for three incidents of maltreatment. SP1 was disqualified from providing direct contact services. Action Taken by Facility: The facility completed an Internal Review of an Alleged Maltreatment Report stated that although policies and procedures were adequate, SP1 “physically abused” the VA and his/her “co-workers failed to report verbal abuse towards” the VA. The facility provided additional training to all staff and SP1 was no longer employed by the facility. Action Taken by Department of Human Services, Office of Inspector General: SP1 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 SP1 was responsible for maltreatment and the disqualification of SP1 are each subject to appeal.
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