MALTREATMENT INVESTIGATION MEMORANDUM
Office of Inspector General, Licensing Division
Public Information

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:

1101636-HCBS (Home and Community-Based Services)

Investigator(s):

Judith Schwanke
Minnesota Department of Human Services
Office of Inspector General
Licensing Division
PO Box 64242
Saint Paul, Minnesota 55164-0242
judith.schwanke@state.mn.us

651-431-4033

Suspected Maltreatment Reported:

It was reported that a vulnerable adult (VA) sustained a broken arm and other injuries that resulted from a car collision while the staff person (SP) was driving and failed to yield to traffic.

Date of Incident(s): December 21, 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 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 February 13, 2024; from documentation at the facility, law enforcement records, and medical records; and through four interviews conducted with the VA, the VA’s case manager (CM), a facility supervisory staff person (P), and the SP.

Facility documentation showed that the VA was diagnosed with scoliosis. The VA desired to maintain his/her physical health by going to the “gym.” The VA also wanted to participate in community activities such as “shopping” and “volunteering.” The VA received three hours of services two times per week, scheduled on Tuesdays and Thursdays from 9 a.m. to noon. Staff persons were to “provide the necessary assistance and encouragement” to ensure the VA met his/her goal of attending the gym.

A facility document, titled Incident Report, showed that on December 21, 2023, at 10 a.m., the VA and the SP were involved in a “severe” collision when a “driver struck [the car they were in] from the rear at an estimated speed of 80 miles per hour.” “Immediate medical attention was required” and “both were promptly rushed to the hospital.”

A Minnesota Department of Public Safety Motor Vehicle Crash Report showed the following information:

· On December 21, 2023, at 10:49 a.m., the SP’s vehicle “turned north to west” and was hit in the “back/back right” and pushed into “eastbound traffic” by another vehicle. The VA and the SP were both transported to local medical facilities.

· The SP had a “revoked” driver’s license and did not have insurance for his/her vehicle.

· A “contributing factor” to the collision was the SP’s “failure to yield.”

· The driver of the vehicle that hit the SP’s car was not speeding.

· The posted speed limit on the road where the collision occurred was 55 miles per hour.

· The “manner” of the collision was “front to rear.”

The VA provided the following information:

· On December 21, 2023, the SP arrived at the VA’s home after 10:30 a.m. The VA met the SP in the parking area outside his/her home, got into the SP’s car, and sat in the front passenger seat. When the SP drove out of the parking area, s/he had his/her phone in his/her hand and was talking with someone. The SP drove a family member’s “older car” and it was not equipped with Bluetooth so when the SP talked on his/her cell phone, s/he held it in his/her left hand. The VA stated s/he did not “pay too much attention” to what the SP said but “thought” the SP talked with a “relative.” The SP had a “sick child” that needed to be picked up from school and dropped off with a neighbor.

· After stopping in a median and pulling into west bound lane of 212th Street West, the VA felt “spinning” but did not recall the SP’s car being hit in the “back” by the truck.

· Emergency personnel arrived at the scene and used a “crowbar” to open the passenger side door to remove the VA from the car. Then the VA walked to the ambulance, and his/her right arm “swayed” back and forth and did not “seem right.” The VA stated his/her right arm “felt like it was dead.”

· The VA was transported to an emergency room where s/he was assessed and then was transported to another hospital for observation regarding his/her “spleen.”

· The VA sustained a broken right arm between the shoulder and elbow and bruising on his/her left leg and left side of his/her chest. The VA stated that during the incident, the “headrest” of his/her seat came off and hit his/her arm which caused the break. The VA wore a hard plastic brace on his/her right arm and attended physical therapy for the injury.

· The VA thought the collision happened because the SP “paid attention” to his/her phone and not his/her “road skills.” The VA stated that being on the “phone and driving skills do not mix,” and the SP did not “yield [to the] right of way.”

The CM provided the following information:

· The VA received six hours of services each week to help him/her with grocery shopping and housekeeping.

· On December 21, 2023, the VA was in the SP’s car when it was “rearended” because the SP “turned in front of” another vehicle. The VA was transported to an emergency room and then transferred to another hospital. The SP broke his/her right arm.

· Since the collision, the VA had difficulty with activities of daily living because s/he could not use his/her right arm.

Medical documents showed the following information:

· On December 21, 2023, at 11:34 a.m., the VA was admitted to the emergency room where s/he was diagnosed with a “closed displaced transverse fracture of shaft of right humerus [upper arm],” and a “laceration of spleen.” A “Sarmiento splint” was placed on the VA’s right arm. (According to www.hopkinsmedicine.org, a Sarmiento brace was a brace used when nonoperative treatment was used. The brace “fits the upper arm while leaving the elbow free.”) The VA received “fentanyl” en route to the first emergency room and was later given a morphine injection and acetaminophen for pain.

· The VA was then discharged for transfer by ambulance to another hospital that would assist the VA with his/her spleen injury.

· On December 21, 2023, the VA was admitted to the hospital where his/her “vital signs were monitored” due to a “splenic laceration.”

· The VA was discharged on December 23, 2023, with orders to follow up with an orthopedic clinic on December 28, 2023, for further x-rays of the right humerus. The VA was also prescribed oxycodone for pain and attended physical therapy appointments for his/her broken arm.

The P provided the following information:

· The VA received services from October 10 through December 21, 2023. The SP provided services to support the VA in going to a gym for “physical and emotional support,” “grocery shopping,” and “getting out” of his/her home.

· Before working with the VA, the SP received training on the facility’s policies, that included not using a cell phone while driving, the VA’s needs, and met with the VA in his/her home.

· Before providing transportation for clients, staff persons were asked about their driving record and if a staff person answered that they “don’t have issues,” the facility requested and received a copy of their driver’s license and motor vehicle insurance card from them. The facility had a copy of the SP’s unexpired Tennessee driver’s license and an unexpired insurance card with coverage dates from April 19, 2023, through April 19, 2024. The facility did not review the SP’s driving record or call the SP’s insurance to verify if it was active. The P said that the SP would not have been allowed to drive clients if s/he did not have a valid driver’s license or proper insurance on his/her vehicle.

· Although the facility did not have a written requirement, the SP was “required to report changes” to his/her driver’s license and/or insurance.

· After the collision, the SP told the P that a car came up behind them and hit them in the rear and the SP “believed” s/he was not at fault.

The SP provided the following information:

· The SP worked for the facility for “two and a half years” and worked with the VA on three occasions prior to the incident. On December 21, 2023, at approximately 8 a.m., the VA called the SP and told him/her that s/he wanted to go to “the store.” At approximately 10 a.m., the SP picked up the VA in the parking area of his/her home. As the VA entered the SP’s car, the SP was talking with his/her child’s “teacher” and the call was connected to the car’s “Bluetooth.” The SP ended the call and turned “off” his/her cell phone. The VA told the SP s/he wanted to go to a store and a coffee shop.

· The SP could not recall the names of the roads where the collision occurred but as s/he drove s/he “stopped” at an intersection on a northbound road. The SP “checked [his/her] right” and when the traffic was “clear,” s/he crossed two lanes of eastbound traffic traffic and arrived at a median, stopped, and waited a couple of seconds. The SP looked to the right and saw a truck “a half mile” in the distance so then the SP turned into the far left/westbound lane. The SP stated that “as soon as [s/he] turned [the truck] hit me from the back. It was speeding.”

· After the collision, the car doors would not open. The SP asked the VA how s/he was, and the VA told the SP that s/he had “shoulder pain.” The “next thing” the SP remembered was being “rushed” to the emergency room.

· The SP denied holding and talking on his/her cell phone at the time of the collision.

· The SP stated s/he had a valid driver’s license from the state of Tennessee. The SP did not have a Minnesota driver’s license because s/he “kept failing the permanent test.” The SP said s/he knew s/he should have a Minnesota driver’s license, but the facility did not “request one,” so s/he did not “think” it was a “problem” to have another state’s license.

· The SP said received a citation for failure to yield but did not receive a citation for driving after revocation of his/her driver’s license.

· The SP said s/he “did not know if [his/her] vehicle insurance was active or not” on the day of the collision but at the hospital learned that it was not active due to “nonpayment.”

· The SP had been “driving” and “working” with vulnerable “adults” a “long time,” and would never have caused a collision.

On December 22, 2023, local law enforcement issued a citation to the SP. The citation showed that the SP was cited for “driving after revocation” of a Minnesota driver’s license and “failing to yield right of way.”

The facility’s Safe Transportation Policy, dated May 12, 2023, showed the following information:

· The facility “will ensure the vehicle and drivers are properly insured when transporting persons served by the program.”

· “All staff will follow procedures to ensure safe transportation of the person who is being transported.”

· “All staff are required to follow all traffic safety laws while operating the program vehicle. This includes maintaining a valid driver’s license, wearing seatbelts, and obeying traffic signs while operating program vehicle.”

· “All staff are prohibited from smoking, eating, drinking, or using cellular phones or other mobile devices while operating the program vehicle.”

The facility’s Handbook showed the following:

· “All employees are expected to follow applicable local, state, and federal laws and regulations regarding the use of cellphones at all times.”

· “During the use of a personal or rental vehicle for the completion of tasks on behalf of the Company, the employee must comply with the following: must possess a valid U.S. Driver’s license, immediately report to your manager any driver’s license suspension or revocation, must observe all federal, state, and local traffic, safety, and vehicular laws. The employee must not use any electronic communication devices while operating a motor vehicle.”

Facility documentation showed that the P and the SP each received training on the Reporting of Maltreatment of Vulnerable Adults Act, the VA’s plans, and the facility policies and procedures, including the facility’s Safe Transportation Policy, and the facility’s Handbook.

Relevant Rules and/or Statutes:

Minnesota Statute 171.02, subdivision 1, states that “a person shall not drive a motor vehicle upon a street or highway in this state unless the person has a valid license under this chapter for the type of class of vehicle being driven.”

Minnesota Statute 171.03, paragraph (h), states that any person who becomes a resident of the state of Minnesota and who has in possession a valid driver’s license issued to a person under and pursuant to the laws of some other state or jurisdiction or by military authorities of the United States may operate a motor vehicle as a driver, but only for a period of not more than 60 days after becoming a resident of this state, without being required to have a Minnesota driver's license as provided in this chapter.

Minnesota Statute 65B.48, subdivision 1, states “every owner of a motor vehicle of a type which is required to be registered or licensed or is principally garaged in this state shall maintain during the period in which operation or use is contemplated a plan of reparation security under provisions approved by the commissioner, insuring against loss resulting from liability imposed by law for injury and property damage sustained by any person arising out of the ownership, maintenance, operation or use of the vehicle.”

Conclusion:

A. Maltreatment:

Consistent information was provided that on December 21, 2023, the SP was working with the VA and the VA was a passenger in the SP’s car when it was involved in a collision. The VA was transported to an emergency room where s/he was diagnosed with a broken arm, bruises, and a laceration of his/her spleen and then s/he was transferred to another hospital. The VA was given a hard, plastic brace for his/her arm, was administered morphine and fentanyl for pain, and after discharge was prescribed oxycodone for pain and had ongoing physical therapy.

The SP stated s/he had a valid driver’s license and that the driver of the vehicle that hit his/her car was speeding. However, the SP received citations from law enforcement for driving after revocation of his/her Minnesota driver’s license and for failing to yield to oncoming traffic. In addition, the Minnesota Department of Public Safety Motor Vehicle Crash Report stated that the SP did not have valid car insurance at the time of the incident; that a “contributing factor” to the collision was the SP’s “failure to yield;” and that the driver of the vehicle that hit the SP’s car was not speeding.

The SP driving the VA without a valid license, failing to have insurance for his/her vehicle, and failing to yield to oncoming traffic was illegal and placed the VA at risk of harm. Therefore, there was a preponderance of the evidence that the SP’s actions were a failure to supply the VA with care or services which were reasonable and necessary to maintain the VA’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.

At the time of the incident, the SP was responsible for care and services of the VA. The SP was trained on the facility’s policies, 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 was not “recurring” maltreatment because this was a single incident. However, it was “serious” maltreatment because the VA sustained a serious injury (fractured humerus and lacerated spleen) that required the care of a physician including narcotic pain medications and ongoing physical therapy.

The SP was disqualified from providing direct contact services.

Action Taken by Facility:

The facility completed an internal review and determined that their policies and procedures after the accident were adequate and followed. The facility retrained staff persons on policies regarding transportation and cell phone usage.

Action Taken by Department of Human Services, Office of Inspector General:

The SP 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 the SP was responsible for maltreatment and the disqualification of the SP are each subject to appeal.

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