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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: 1096376-HCBS (Home and Community-Based Services) Investigator(s): Emily Kearns Suspected Maltreatment Reported: It was reported that a staff person (SP) and a vulnerable adult (VA) kissed on at least one occasion. Date of Incident(s): Multiple dates from end of December 2023 through January 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 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 March 20, 2024; from documentation at the facility; and through eight interviews conducted with a facility supervisor (P5), four staff persons from the VA’s residence (P1, P2, P3, and P4), the VA, the VA’s case manager (CM), and the SP. According to the VA, s/he was diagnosed with depression, post-traumatic stress disorder, attention-deficit/hyperactivity disorder (ADHD), bipolar disorder, obsessive-compulsive disorder, and paranoid-schizophrenia. The VA’s plans stated that s/he was diagnosed with schizoaffective disorder – unspecified. The VA liked watching movies and being on his/her cell phone. The VA’s plans stated that s/he had “memory issues.” The VA was not subject to guardianship. The VA received a total of 12 hours per week of Individualized Home Supports (IHS) services from the facility, split between two days per week for five hours each to help with shopping, bill paying, and going out in the community, and an additional two hours of remote phone support per week. The VA lived at his/her residence, a single-story home with a basement which was an assisted living facility, for about four years with three other clients. The VA’s bedroom was at the end of a short hallway off the living and dining room areas. The SP began working with the VA on December 20, 2023, with the last date of services provided to the VA on January 30, 2024, when the P was notified of the allegations. P1, a supervisory staff person at the VA’s residence, provided the following information: · The VA recently “lost” one of his/her IHS workers, the SP, due to the VA and the SP kissing. The VA would “lock” him/herself up with the SP in the VA’s bedroom “for hours” to have “discussions” and staff persons at the VA’s residence were “uncomfortable,” so they told P1 about it. When P1 was first notified by his/her staff persons, s/he called the VA to ask the VA why the VA and the SP were going into the VA’s bedroom and closing the door for long periods of time when previous IHS workers stayed in the living room. The VA became “very defensive” and stated that they were “not doing anything inappropriate” and that “nothing [was] happening.” So P1 told staff persons that the VA could have visitors “anywhere” s/he wanted and P1 considered the issue “resolved” at that point. P1 did not witness “anything” him/herself. · Several weeks later, P1 noticed that the VA’s bedroom door was closed when the SP was assisting the VA. P1 approached the VA’s bedroom and asked the VA to come talk to P1. P1 again asked the VA, “Why all this closing the door with the [SP] in your room?” The VA said that with the television on and people coming and going, it was noisy. The VA wanted to have a “private discussion” with the SP and said, “If you are thinking something is going on, [the SP] is appropriate and nothing is happening.” Later that day, the VA called P1, and was “worried” and “concerned.” The VA told P1, “You’d better listen, I have been taken advantage of before,” and wanted P1 to know “what’s been going on with me and [the SP].” The VA told P1 that s/he thought the SP was trying to “take advantage” of him/her. The VA showed P1 “back and forth” text message conversations between the SP and the VA, which were “inappropriate,” talking about enjoying kissing one another and enjoying each other’s company. One text message sent from the VA to the SP said, “I wish you were here I would kiss you, your neck.” The SP texted back, “How far did you want me to go?” · P1 asked the VA where they kissed and the VA told P1 that they kissed in the VA’s bedroom once or twice and “mostly” in the SP’s car. The SP also discussed in the text messages “inappropriate touching” that s/he wanted to do. The VA told P1 that s/he did not want the SP “fired” but wanted P1 to “talk to” the SP. · The VA told P1 that the kissing was not just once or twice but was “ongoing.” P1 told the VA that the SP needed to be removed from working with the VA, especially if the VA felt “uncomfortable” and that s/he was being “taken advantage of” by the SP. The VA said s/he felt those things. · P1 called the SP, who was not one of P1’s staff persons and told him/her that s/he “should know better,” that the VA was “no longer feeling safe with you,” and that it was P1’s “right to protect” the VA. The SP did not deny anything when confronted by P1 and said, “Please forgive me. I made a mistake.” · The VA was a “hyper-anxious” individual, “paranoid” at times, and had a history of schizophrenia. The VA was “vulnerable” sexually, but could communicate things, so s/he “took [the VA] very seriously” when s/he told P1. The VA “does not lie.” The VA looked for “validation” from others and wanted to hear, “I love you,” from people. · Previous IHS workers were spending two to three hours with the VA, two times per week, running errands and getting groceries. Then there was a four to six week gap in services before the SP started working with the VA. When the SP started, s/he was there for several hours every day at first. P1 was not sure if the VA had previously accumulated extra hours during the gap in service that they were trying to “use up.” · P1 provided the names of three of the staff persons (P2, P3, and P4) at the residence who had discussed their feelings about the closed bedroom door with one another before P2 brought it to P1’s attention. P5 provided the following information: · When P5 found out about the allegations, s/he called the VA and asked what was going on and if the SP had “made moves” or “advances” on the VA. The VA said that it was not the SP’s fault. P5 replied that the SP had “bad boundaries.” The VA said that nothing more than “kissing” happened because the VA wanted to “take it slow.” At this point, the call between the VA and P5 ended. The VA typically called P5 three to seven times when there was something s/he needed to discuss. This time, the VA called P5 back multiple times that day trying to say that the kissing between the VA and the SP was the VA’s fault. P5 had “questioned” the VA three times since the first conversation about it because s/he wanted to make sure there were no “sexual relations” and to make sure both the VA and the SP knew that they should not be contacting one another anymore. · P5 talked to the SP and the SP “admitted” to P5 that the VA and the SP had kissed. The VA told P5 that the SP and the VA kissed two times and “maybe” on the third they got “busted” by a staff person. P5 heard that there were text messages between the VA and the SP but s/he did not see them and was not made aware of them until the week prior to this interview. · The SP received two days’ unpaid suspension and was required to retake boundary training. The SP was removed from providing services for the VA. · The services that the facility provided to the VA were for personal errands, paying bills, community access, and appointments. The CM recently told P5 that the VA had dementia. · P5 thought that the SP seemed to “care” about and wanted to “help people” with his/her role as an IHS worker but wanted the SP to pursue professional “counseling” because s/he did not “know boundaries.” The VA provided the following information: · The VA sent a series of text messages to P1 on March 19, 2023, in which the VA wrote that s/he recalled telling the SP one day about his/her past where s/he was called names in school. The SP started telling the VA that s/he was “beautiful,” and the VA said that s/he did not know if the SP was “trying to be nice” or “coming on to” him/her. The VA “took it as a come on” and told the SP that s/he liked the SP “more than I should.” The SP then kissed the VA three times on the mouth. The SP kissed the VA first and it did not last “very long.” Sometime between “the kissing” and the SP telling the VA s/he was “beautiful,” the SP sent the VA some text messages, one of which asked the VA “how far down” s/he could kiss the VA. At that point, the VA “had a fear” that s/he was “going to be used,” and then showed P1 the text messages on the VA’s phone. The VA’s text messages also said that s/he never “blamed” the SP “completely” for “what happened,” but acknowledged that s/he was a vulnerable adult. The VA accidentally erased the text messages. · The SP did not touch the VA “sexually” on the chest or on/in the genitals. The VA could not recall if the SP and the VA kissed in the SP’s car, adding, “I don’t remember,” “we could have,” “I can’t say that definitely, but maybe once.” The VA was asked some additional questions regarding the kissing but did not want to “get into it.” Additionally, the SP told the VA that s/he had “beautiful legs.” The SP also told the VA that s/he was “beautiful a lot” but did not know how many times. The VA later stated that s/he remembered kissing the SP in the car one time but could not recall when it was or for what reason they were in the SP’s car. · The VA recalled that the kissing s/he told P1 about occurred on one date, but the VA said that s/he “could be wrong” and “I think [the SP] kissed me a couple times before that.” The VA later said other kissing may have happened before or after that day. The VA stated that the kissing occurred in the VA’s room, with the door closed. The door was closed because there was noise from the television making it difficult for the VA and SP to hear one another. · The VA received IHS services for shopping and going on errands but could not remember what else. The IHS workers came two to three times a week, but the VA could not remember when the SP began providing services to him/her. The SP went out to run errands for the VA most of the time because the VA had a “fear” of going out, getting lost, or “get[ing] hurt by somebody.” The VA had experienced abuse in the past and had a brain injury. · The SP had not contacted the SP since s/he stopped providing services to the VA. · The VA did not want to get the SP into trouble. The day after the VA showed the text messages to P1, P1 spoke with the SP and the VA together and the SP “admitted that [s/he] did that stuff” and stated that s/he “screwed up.” P2 provided the following information: · The VA received IHS services two to three times per week to help him/her with going for appointments or errands. Most of the IHS workers that came to help the VA met with the VA in the living room and did not “spend hours” in the VA’s bedroom. The previous IHS worker, the SP, tended to come “too early” and spend most of his/her time in the VA’s bedroom. P2 estimated that the SP spent more than two-thirds of his/her time with the VA in the VA’s bedroom. The SP did not work with the VA for a very long period of time and P2 thought that the SP started with the VA in “the summer” of 2023. · P2 did not think that the SP “acted strange[ly]” when s/he worked with the VA, but would arrive early and go into the VA’s bedroom with the VA. When P2 asked the VA why they were spending “too [many]” hours in the bedroom and stated that other IHS workers did not do that, the VA said that s/he was “fine,” and that the SP was “doing [his/her] job.” P2 notified P1, but P1 said that the IHS worker was “doing [his/her] job” and there was “no problem.” P2 did not want to “interfere” with the VA’s privacy, but felt like as a caregiver, it was his/her job to “monitor” the VA. P2 did not see “anything else.” P3 stated that the VA met with his/her current IHS worker with his/her bedroom door open. The SP, who was the previous HIS worker would “always come early,” would go straight to the VA’s room, close the door, and they would be in there for “quite some time.” The door was not “firmly jammed,” but was not open. The SP was there twice per week and at first would go on errands for the VA on his/her own, but later, the VA started going with the SP. P3 said that P2 would tell the VA that s/he was “staying too long in the [bed]room” with the SP. The VA would respond that the SP was “doing [his/her] job.” The VA was allowed to have guests in his/her bedroom, but P3 was not familiar with other guests of the VA’s visiting on his/her shift. P4 stated that the SP would assist the VA with things and took the VA out on errands one or two times. P4 could not remember when the SP started or stopped providing services. P4 did not know how the SP “treated” the VA because most of the time the SP would “take the VA to [his/her] [bed]room.” The bedroom door would be closed, but not locked. This happened one or two times. P4 did not work many hours at the VA’s residence. The CM provided the following information: · The CM was not the CM for the VA at the time of the incident but took over several weeks later and met with the VA and P1 on February 16, 2024. The VA told the CM that the SP was a newer IHS worker for the VA at the VA’s residence. According to staff persons at the VA’s residence, at first, things were “going well” but then staff persons “had concerns” when the VA and the SP began meeting in the VA’s bedroom. After a few weeks, P1 asked the VA if there was “something that you needed to tell me,” and asked why they were closing the bedroom door when the SP was there and the VA said that it was “fine.” Several hours later, the VA told P1 that s/he had “lied” and then said that s/he and the SP had “kissed a couple times.” The VA denied that “anything more than kissing” occurred between the VA and the SP. · The VA had “low self-esteem” but when complimented, would get “very attached.” The SP told the VA that s/he was “very beautiful and pretty” and the VA really liked hearing those things. · The VA felt “bad,” “depressed,” and “anxious” about the incident and did not want the SP to lose his/her job. When the CM, P1, and the VA met, P1 asked why they closed the door and stated that s/he had never done that before with other IHS workers. P1 reminded the VA that if s/he had told P1 or had left the door open, this could have been prevented. The VA said, “I know,” and went on to say that they closed the door due to noise at the residence. The VA did not mention “whose idea” it was to go into the VA’s bedroom. · When the CM asked the SP about kissing the VA, the SP “confirmed it happened.” · The week of December 21, 2023, was when the SP first met the VA and started providing services shortly thereafter. IHS workers provided assistance with building the VA’s skills, managing his/her home, budgeting, and daily cares. · The VA’s ability to report information was “so-so.” The VA told the CM that s/he had dementia but later said that it was not confirmed. The CM was unsure if memory was a concern as the VA tended to make seven to eight phone calls prior to a scheduled meeting with the CM to ask when things were scheduled. The VA needed “constant confirmation” of things due to his/her anxiety. The SP provided the following information: · The SP began providing IHS services for the VA in late December 2023. The SP was no longer working with the VA because they had “kissed a few times, even though we shouldn’t have.” The kissing occurred either in December 2023 or January 2024 in the VA’s bedroom. The kissing was on the lips and occurred three or four different days and over the course of approximately one month, starting about a week or so after the SP began providing services. The SP thought that the SP and VA kissed only in the VA’s bedroom. · The SP only kissed the VA on the VA’s lips. The SP said that the SP’s and VA’s hands were “holding each other,” while kissing. The SP thought his/her hands were behind the VA’s back. The SP stated that it started because the SP hugged the VA “when I shouldn’t have hugged [him/her],” and “then we kissed.” The SP denied doing anything else beyond kissing on the lips and denied touching the VA’s breasts, buttocks, or “private areas.” Sometime in January 2024, the SP worked his/her last day with the VA because s/he was notified that the SP could no longer “come in” to work with the VA because of “what happened.” The SP was suspended for two weeks, had additional “boundaries” training, and took a test. The SP had “learned [his/her] lesson,” and said, “I can’t ever do that again.” · The VA text messaged the SP “a lot” and the SP stated s/he “probably should have said something, but I didn’t,” but that the text messages were mainly about the VA’s appointments. The context of the text messages got “a little bit” personal but the SP did not recall the context of the personal text messages because P5 told the SP to “block [the VA’s] phone number.” The SP deleted the text messages and “blocked” the VA’s number. The SP said that “we may have” discussed kissing over text messages, but since s/he deleted them, s/he did not remember. The SP also “may have” sent a text message to the VA asking how “low” s/he could kiss the VA. Both the VA and the SP initiated the kissing, but the SP did not know who initiated the kissing more. The SP had not been in contact with the VA. · Some of the services that the SP provided were to encourage the VA not to be on his/her cell phone as much, to encourage him/her to clean his/her room, and to “teach” the VA “a lot of stuff.” One time, the VA and the SP left the facility to go to a retail store to get the VA a new cell phone using the SP’s personal vehicle. This was the only time the SP could recall going anywhere with the VA in his/her personal vehicle. The rest of the times they left the VA’s residence, the SP and the VA used a transportation service company. The SP did not think that s/he had ever kissed the VA in his/her car. · The SP stated that the SP and the VA went into the VA’s bedroom and closed the door due to noise at the VA’s residence. One resident had something wrong with his/her door and was coughing “loud[ly]” and there was another resident who was being “loud” in the living room. Another day, they shut the door because staff persons were “yelling at each other.” All facility staff persons interviewed for this investigation were trained in the VA’s plans and the Reporting of Maltreatment of Vulnerable Adults Act. Conclusion: A. Maltreatment: The SP began providing IHS services for the VA on December 20, 2023, two to three times a week for up to five hours per visit through January 30, 2024, at the VA’s residence. The SP typically helped the VA with errands, bills, and appointments and helped to encourage the VA not to be on his/her cell phone so much. P2, P3, and P4 were “uncomfortable” that the SP and the VA were in the VA’s bedroom with the door closed while they met. Previous IHS workers met with the VA in the living room. P2, P3, and P4 discussed their concerns with one another and P2 brought the concerns to P1, who asked the VA what was going on with the closed-door meetings with the SP. The VA became “very defensive” and said that they were “not doing anything inappropriate.” Several weeks later, P1 observed the VA’s bedroom door closed and asked the VA to come out of his/her bedroom and asked again, what was going on with the closed-door sessions. The VA said that the residence was noisy. The VA wanted to have a “private discussion” with the SP and said, “If you are thinking something is going on, [the SP] is appropriate and nothing is happening.” Later that day, the VA contacted P1 and told P1 that s/he felt like s/he was going to be “taken advantage” of by the SP. P1 saw the text message exchanges, which were “inappropriate,” talking about “enjoying kissing one another.” One text message sent from the VA to the SP said, “I wish you were here I would kiss you, your neck.” The SP text messaged back, “How far did you want me to go?” The VA denied that the SP touched the VA in a “sexual” manner and that nothing happened aside from kissing. The VA said that the SP and the VA kissed in the VA’s bedroom, on the lips, on several occasions and later said that s/he thought they kissed in the SP’s car at least once as well. The SP could not recall if they had kissed in his/her car but did not deny that the SP “may have” sent text messages asking about kissing the VA lower than the mouth. P1, the CM, and P5 each spoke with the SP and the VA. The SP did not deny kissing the VA to P1, and “confirmed it happened” to the CM, while “admitting” that the VA and the SP kissed to P5. The information that the SP provided was similar to what the VA provided. The SP stated that s/he and the VA kissed on multiple occasions in the VA's bedroom. The SP did not recall kissing the VA in the SP's car. The SP stated that s/he had “learned [his/her] lesson,” and said, “I can never do that again.” The SP and the VA had not contacted each other since. Given that the SP and the VA provided consistent information to P5, P1, the CM and this investigator that the SP and the VA kissed on the lips, on multiple dates, in the VA’s bedroom, and that the SP’s conduct including kissing the VA and sending inappropriate text messages to the VA could hinder the VA’s ability to have a consistent understanding of a therapeutic relationship, there was a preponderance of the evidence that the SP failed to provide the VA with reasonable and necessary care and services to maintain the VA’s mental health and 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. The SP was trained on the Reporting of Maltreatment of Vulnerable Adults Act and on the VA’s plans. 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 neglect for which the SP was responsible did not meet statutory criteria to be determined as recurring or serious because the SP’s conduct was a pattern of behavior which was considered a single incident, and the VA did not sustain an injury. Action Taken by Facility: The facility’s Internal Review showed that the policies and procedures were adequate, but not followed. There was a need for additional training and this was not similar to past events. The facility provided the SP with retraining on boundaries. The SP no longer worked with the VA. 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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