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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: 1071179-H_CRS (Home and Community-Based Services-Community Residential Setting) Investigator(s): Deb Neubauer-Hoffman/Alice Percy 641-431-6567
Suspected Maltreatment Reported: Allegation one: It was reported that a staff person (SP) left a vulnerable adult (VA1) unsupervised in a facility van for over 30 minutes while the van was parked next to the SP’s home. Allegation two: It was also reported that the SP grabbed a vulnerable adult’s (VA2’s) legs and knocked VA2 to the floor, causing a rug burn on VA2’s face. Date of Incident(s): July 28 and 29, 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 (1); 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 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 17, 2023; from documentation at the facility; and through six interviews conducted with a facility supervisory staff person (P1), the SP, VA1, VA2, VA1’s guardian (G1), and VA2’s guardian (G2). VA1’s and VA2’s bedrooms were on the lower level of the facility and the main living areas, including the kitchen, living room, and dining room were on the main level of the facility. There was an intercom system in the facility that let the staff persons and residents communicate with each other between the two levels. Facility documentation showed that P1 and the SP each received training on the Reporting of Maltreatment of Vulnerable Adults Act, on the facility’s policies, and on VA1’s and VA2’s plans prior to the incidents. Allegation one: It was reported that the SP left VA1 unsupervised in a facility van for over 30 minutes while the van was parked next to the SP’s home. VA1 enjoyed going to community festivals, watching television, going out to eat, using the computer, spending time with his/her family members, and going to the Mall of America. VA1 enjoyed NASCAR racing and travelling. VA1 also participated in the Special Olympics. VA1 attended a day program each weekday. VA1’s diagnoses included severe intellectual disabilities, autism spectrum disorder, and anxiety. According to VA1’s Coordinated Service and Support Plan Addendum (CSSP), VA1 had one hour of unsupervised time in the facility each day. When in the community, VA1 could be out of the eyesight of the staff persons for enough time to purchase items. VA1 had five minutes of unsupervised time when using a public bathroom. VA1 stated that on one occasion, the SP left the VA sitting in the facility’s van unsupervised. VA1 believed the van was running, but was unable to provide additional information about the incident. P1 and the facility’s documentation provided the following information: · P1 stated that VA1 had one hour of unsupervised time in the facility. VA1 had no unsupervised time in the community except when the staff persons took VA1 to designated stores and the library where VA1 could purchase items or check out books while the staff person waited at the front of the store or library for 10 to 15 minutes for VA1 to make his/her purchases or check out books. P1 did not believe any residents were to be left unsupervised in the facility’s van. · On July 29, 2023, at 3:54 p.m., P1 received a text from a community person (CP) who had worked at the facility in the past. The CP’s text stated that at 3:15 p.m., s/he drove by the facility’s van, which was parked next to the SP’s home and VA1 was sitting alone in the van. The CP was unable to see if the windows of the van were open or closed or if the van was running. At 3:45 p.m., the CP drove past the facility’s van again and VA1 was still sitting in the van alone. P1 forwarded the text to his/her supervisory staff person (P2), who told P1 that s/he would “deal with it” the following Monday. The SP’s home was near stores and restaurants. The SP provided the following information: · The SP stated that on the day of the incident, s/he went to a restaurant to purchase take-out food and left VA1 in the facility’s van for approximately 30 to 35 minutes. The SP believed that VA1 had one hour of unsupervised time in the community. While the SP went to the restaurant, s/he left the van running with the windows up and the air conditioning turned on. The van was approximately one block from the restaurant and the SP was unable to see the van or VA1 from the restaurant. The SP stated that s/he made a “mistake” and that s/he should not have left VA1 unsupervised in the van. When the SP returned to the van, the VA was “fine” and was happy to see the SP. · The SP stated that s/he “skimmed” VA1’s plans and assumed that VA1 had unsupervised time in the community as well as in the facility. VA1 did not sustain any injury while unsupervised in the facility’s van. The SP stated that s/he had not left VA1 unsupervised in the van on any previous occasion.
G1 stated that the weather was hot on the day when VA1 was left unsupervised in the facility’s van. According to Weather Underground, for Fort Snelling, MN, on July 29, 2023, the temperature between 2:53 to 3:53 p.m., ranged from 79 to 81 degrees Fahrenheit (F). It was mostly cloudy. According to the facility’s Transportation Procedures, the staff persons were responsible for the supervision of the residents while they were being transported. The residents could not be left alone in the facility’s vehicles when the staff persons were out of clear view of the residents, unless they had approval to be in the community unsupervised. Conclusion for Allegation one: A. Maltreatment: Consistent information was provided that on July 29, 2023, the SP left VA1 unsupervised in the facility’s van for at least 30 minutes even though VA1 had no unsupervised time in the community. The SP stated that s/he left the van running with the air conditioning on while s/he went approximately one block away to purchase food at a restaurant. Given that VA1’s plans did not allow for VA1 to be unsupervised in the community, with the exception of purchasing items in a store, and that VA1 was unsupervised in the facility’s van for 30 to 35 minutes giving VA1 access to the running van and community dangers, there was a preponderance of the evidence that there was a failure to supply VA1 with care which was reasonable and necessary to maintain VA1’s physical health or safety. 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. Facility documentation showed that the SP received training on the Reporting of Maltreatment of Vulnerable Adults Act, on the facility’s policies, and on VA1’s plans prior to the incidents. The SP was responsible for maltreatment of VA1. 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 it was a single incident and VA1 did not sustain an injury during the incident that required the care of a physician. Allegation two: It was reported that the SP grabbed VA2’s legs and knocked VA2 to the floor, causing a rug burn on VA2’s face. VA2 enjoyed going on community outings, drinking coffee, watching television, bowling, playing games, going fishing, and spending time with his/her friends and family members. VA2 attended a day program or work program each weekday. VA2’s diagnoses included balance concerns, moderate intellectual disabilities, static encephalopathy with attention difficulties, and a seizure disorder. According to VA2’s Coordinated Service and Support Plan Addendum (CSSP), VA2’s gait was sometimes unsteady. The VA had a history of seizures and had fallen in the facility, possibly as a result of having a seizure. VA2 typically went to bed at 9 p.m. Although VA2 was interviewed by this investigator, VA2 did not provide information about the incident. G2 stated that VA2 told G2 that on July 28, 2023, s/he was upset with the SP because the SP told VA2 that s/he was going to telephone G2. VA2 “ran” at the SP and the SP grabbed VA2’s legs, causing VA2 to fall and get a rug burn on his/her face. G2 saw a bruise on VA2’s lip that was about one inch long and across “most of” VA2’s upper lip and a mark on VA2’s shin. G2 telephoned the SP and asked what occurred, and the SP denied that any incident happened and told G2 that s/he did not see any mark on VA2’s lip. G2 also spoke to another staff person regarding what VA2 said but G2 could not recall who that staff person was. P1 and the facility’s documentation provided the following information: · P1 stated that on an unknown date, G2 telephoned P1 and said that VA2 told G2 that the SP “grabbed” VA2, caused VA2 to fall, and that VA2 had a bruise on his/her upper lip. G2 also said that VA2 demonstrated to G2 how the SP grabbed VA2 around the legs and it almost caused G2 to fall. G2 told P1 that s/he asked the SP if s/he documented how VA2 received the bruise on his/her lip and the SP told G2 that s/he would fill out a form about the incident. A few days later, VA2 had an appointment with his/her therapist and at that time VA2 told the therapist that the SP grabbed VA2 by the legs and caused VA2 to fall. · A few days later, P1 talked to VA2, who told P1 that s/he was upset because the SP asked VA2 to not tell G2 about the incident because the SP “could get fired.” VA2 did not want to lie to G2. VA2 told P1 that the SP grabbed VA2 by the knees, which caused VA2 to fall. · P1 stated that VA2 talked about an incident if you asked him/her questions, but VA2 might get upset again about the incident as s/he talked about it. P1 believed that in the past, VA2 got along well with the SP. The SP provided the following information: · On the day of the incident, at approximately 9 p.m., the SP reminded VA2 that it was time for him/her to go to bed. VA2 became upset, yelled, slammed doors, swore, and dropped to the floor. The other residents were already in their bedrooms at the time of the incident. VA2 continued his/her behaviors for over an hour. The SP went downstairs once to tell VA2 that it was inappropriate for him/her to slam his/her bedroom door and that would wake the other residents. VA2 then slammed his/her bedroom door “in [the SP’s] face.” The SP did not know if VA2 fell to the floor after s/he slammed the door because VA2 sometimes fell when s/he slammed doors. The SP went upstairs and remained on the main level of the facility. The SP used the intercom system to communicate with VA2 and to let VA2 know that the other residents were sleeping and VA2 should not disturb them. At approximately 12 a.m., VA2 went to bed. The SP stated that s/he had no physical contact with VA2 during the incident and denied holding VA2’s legs, causing VA2 to fall. · A day or two after the incident, the SP saw a mark on VA2’s lip that looked like VA2 bit his/her lip. At that time, the SP completed an incident report documenting the mark on VA2’s lip. The SP stated that VA2 was an unstable walker and frequently fell. VA2 also frequently knelt on the floor to play with items. The SP did not see any bruise or mark on VA2’s shin. Conclusion for Allegation two: VA2 told G2 and P1 that on July 28, 2023, the SP grabbed VA2’s legs, causing VA2 to fall and sustain the injuries to his/her lip and shin. The SP denied that s/he grabbed VA2’s legs causing VA2 to fall and that during the incident, VA2 slammed doors and it was possible VA2 fell to the floor during that time. VA2 did not provide information about the incident for this investigation. Although VA2 had a mark on his/her lip and another mark on his/her shin, given the conflicting information provided by VA2 and the SP, and that VA2 had a history of balance concerns and of being unsteady, there was not a preponderance of the evidence whether all of the SP’s actions were therapeutic conduct or whether VA2 sustained the injury by any means other than accidental. It was not determined whether physical 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: hitting, slapping, kicking, pinching, biting, or corporal punishment of a vulnerable adult). Action Taken by Facility: The facility completed two internal reviews 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.
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