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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: 1070742-H_CRS (Home and Community-Based Services-Community Residential Setting) Investigator(s): Danielle Morrison 651-431-5647 Suspected Maltreatment Reported: It was alleged that a staff person (SP) yelled at a vulnerable adult (VA) for 30 minutes. Later that day it was observed that the VA had bruises on his/her back, shoulders, neck, arms, and face. Date of Incident(s): January 5, 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): 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. Summary of Findings: Pertinent information was obtained during site visits conducted on February 20 and 21, 2024; from documentation from the facility and medical records; and through nine interviews conducted with a supervisory staff person (P1), seven facility staff persons (P2-P8), and the VA’s guardian (G). This investigator reached out to the SP by telephone and mail to request an interview, but the SP did not respond. The facility was a multi-level home. On the main floor there was the VA’s bedroom, a bathroom, a kitchen, a living room, and an office. The upstairs had a living room, a bedroom, and an office. The basement level had a living room, a bedroom, a bathroom, a laundry room, a kitchenette/office, and a dining area. The VA’s diagnoses included autism, anxiety, and a developmental delay. The VA was nonspeaking and communicated by pointing to pictures and using adapted sign language. Due to the VA’s communication, s/he was not interviewed for this investigation. The VA’s Individual Abuse Prevention Plan (IAPP) stated that the VA hit his/her shoulders, sides, or legs; and stomped his/her toes on the ground when s/he was upset or was seeking sensory input. The VA also picked open wounds on his/her arms, hands, or face which often caused bleeding. The VA enjoyed spending time with his/her family, listening to music, and watching cartoons. On January 9, 2024, P1 created an Incident Report stating that s/he was notified by P3 and P4 on the morning of January 5, 2024, that the VA had some bruises throughout his/her body and head. P1 advised P3 to take pictures of the injuries and document the injuries. P1 looked at the bruises on the VA’s body and the VA did not seem to be in pain. Prior to this there was nothing documented about bruises on the VA. Photos of the VA’s injuries taken at 7:10 a.m. on January 6, 2024, showed the following: · On the VA’s face there was a yellow bruise from the outside corner of the VA’s right eye that extended to his/her right cheekbone. There was also a diffuse red area on the VA’s right temple along the hairline. · On the back of the VA’s head, just above the left side of the VA’s hairline, there was a red “L” shaped mark. · On the VA’s left shoulder near where the back of the shoulder meets the neck, there was a red mark the size of a quarter with an inch long light pink welt extending down from one side of the red mark. Also on the left shoulder, closer to the arm, were multiple curved red marks, with a purple bruise under a portion of these marks. · On the VA’s left back bicep there was a curved red line. On the VA’s left front bicep there was a faint curved red line. · On the VA’s right bicep there was a rectangular mark. The short sides of the rectangle were pale pink and approximately one-half inch wide, and the long sides were approximately three inches long, dark red and appeared to be scabbed over. · On the VA’s left hip there were two round purple bruises, approximately dime-sized, near the buttock. From one of these bruises there was a linear purple mark that extended to the VA’s belly and then looped back to the VA’s hip. There were also faint zig-zagging red marks below the looped linear mark. · On the VA’s right hip there was a “loop” shaped red mark. · On the VA’s lower back there was a red “S” shaped welt. The following is a summary of information from the facility’s staff schedule and from information P1-P8 provided during separate interviews with the DHS investigator: · P2 said that during the overnight shift of January 4 to 5, 2024, P2 worked with another client in the basement, while the SP worked upstairs with the VA. The night was “pretty quiet” but around 6 a.m., P2 heard the VA stomping upstairs and both the VA and the SP yelling. P2 was not able to hear all of what the SP said to the VA, but heard the SP say, “Hurry up,” and, “Get out.” P2 thought the VA woke up in a “tantrum.” P2 was not able to leave the other client to check on the VA at that time. When P2 went upstairs around 7:30 a.m., everyone was “quiet.” P2 left around 7:52 a.m., and did not notice any marks on the VA. · On January 5, 2024, around 7 a.m., P3 and P5 each arrived at the facility for their shift. P3 asked the SP what happened to the VA’s face as the VA had a very light quarter sized bruise near his/her eye and three two-inch-long scratch marks on his/her right upper arm, and the SP said the VA had a “spaz” moment that morning. P5 said the SP commented to him/her that the VA had a mark on his/her arm and asked P5 if s/he should report it. The mark was small and looked like it could have been done by the VA. P5 stated that the SP should report it even if the VA did it to him/herself. The SP replied, “Fuck it,” and said s/he was not going to report it. · P3 said that when P5 looked at the marks on the VA’s arm on the morning of January 5, 2024, the VA tried to pull his/her sleeves down, was not “in the mood” to be touched and kept pushing staff persons’ hands away when they tried to look at the marks. · On January 5, 2024, around 9:30 a.m., P1 arrived at the facility for his/her shift. P3 and P4 mentioned to P1 that the VA had “wounds.” P1 observed marks on the VA’s right arm, shoulder blade, and back. P1 said there was no bleeding, and the VA did not seem to be in pain. At the time, P1 thought the marks were skin irritation caused by the VA’s bedding. P1 advised P3 and P4 to take photos of the injuries. · Over the following three days, P1, P2, P3, P4, P5, P6, and P8 each saw additional injuries on the VA’s body, and P7 saw photographs of the injuries. The information each provided about the injuries was substantially consistent with the photographs of the VA’s injuries taken on January 6, 2024, and described above. In addition: - P5 said the injuries looked like “lashes and welts.” - P6 described the injuries as “strange curved” marks most noticeable on the VA’s upper shoulder. - P8 described the injuries as “red and welted” marks with a “loop type shape.” - P6 described the injuries as “unusual,” said they did not appear to be “random,” and that it looked like the VA was “struck” or something “fell” on the VA. - P7 and P5 each said it looked like the VA was “whipped” with an object such as a cord or suspenders. P7 said the marks made him/her “extremely concerned.” - P8 said the VA wore suspenders, but they were soft and therefore would not have been able to make the “loop” shaped marks. - P3 and P8 each said that there were injuries in places the VA would be able to reach him/herself. - P2, P4, P5, P6 and P7 each said they had never seen marks like that on the VA before. - When P3 told P1 about the marks, P1 told P3 that “maybe” the VA had scratched him/herself. · P3 said s/he had heard the SP tell the VA to, “Shut the fuck up,” “more than [P3] wished [s/he] heard.” P8 said that s/he had heard the SP tell the VA to, “Get the fuck upstairs,” on more than one occasion and had also heard the SP use “the ‘f’ word” in anger toward the VA and another person served. P4 heard the SP tell the VA to, “Shut up,” one time and P4 added, “it was loud.” P3 and P8 had each heard the SP “yell” or “scream” at the VA on more than one occasion. P1, P2, P5, and P6 did not have any specific concerns about the SP’s verbal interactions with the VA. On one occasion, P7 heard the SP say, “This is fucking frustrating,” about the VA’s behavior but not to the VA, but P7 had no prior concerns with the SP. · P1 and P8 each said the VA was not able to communicate what happened. · P2 and P4 each provided information that the VA often stomped on the ground and screamed when s/he was dysregulated. · Regarding the VA’s self-injurious behavior, P2, P3, P4, P5, and P7 each said the VA picked at his/her own skin or scabs until they bled. P1, P3, P4, P6, P7, and P8 each said the VA hit him/herself on his/her legs, arms and head, though they provided different information about any injuries that resulted (P1 said it left red marks that went away after 5 to 10 minutes, P3 said it left handprints, P4 said it typically did not cause marks, and P7 said it left red marks). · P1, P2, P3, and P8 each said that for therapeutic reasons, staff persons were often “stern” or “louder” with the VA when the VA had a “tantrum” in order to help redirect the VA. However, staff persons were not supposed to yell at the VA. The SP provided the following information during the facility’s internal review: · The VA was sleeping when the SP arrived to work on Thursday, January 4, 2024. The VA woke up around 5:15 a.m. on Friday, January 5, 2024, and was “crabby.” The VA had a “tantrum,” screaming and hitting him/herself on the legs and arms. Afterward, the VA sat on the toilet and then got into the shower. It sounded like the VA was hitting him/herself in the shower and the VA was yelling. After the shower, the SP saw bruises on the VA’s arm, back, and side. The SP stated the yelling lasted until about 6:30 a.m. and then the VA sat down to watch television and had his/her medications and breakfast. The SP said it was a “typical” morning. The SP did not know how the VA sustained the bruises. · The SP denied hitting the VA and said the only physical contact s/he had with the VA on January 5, 2024, was helping the VA with his/her suspenders. The SP stated that s/he did yell at the VA to be quiet and said, “Shut the fuck up,” a “couple of times” as s/he had done before when the VA had a “tantrum.” The SP stated other staff persons yelled at the VA to be quiet too. · The SP said the morning staff person came in at 7 a.m., and the SP told him/her about the bruises. The SP did not document the VA’s behavior or injuries. The G was told that a staff person was heard yelling at the VA and that there were marks on the VA that the VA would not have been able to inflict on him/herself. The G said s/he had a previous concern with how staff persons kept “raising the bar” for the VA to do something, “You can draw after you eat salad, then you cannot draw until you eat fruit.” This caused the VA to feel upset. The G talked to P1 about this concern, and staff persons were retrained on the VA’s support needs. The VA’s medical records showed that on January 10, 2024, the VA was evaluated at the emergency department for concerns about “nonaccidental trauma” for injuries that were noted to have happened on January 5, 2024. The VA had a “moderate-sized” bruise and abrasion to his/her left shoulder, a “superficial” abrasion and bruise to his/her left mid chest, and right upper arm. The injuries seemed “tender” to the touch, but otherwise the VA did not react with obvious pain. The record noted, “The abrasions suggest that these were traumatic rather than idiopathic (refers to a disease or condition that arises spontaneously or from an obscure or unknown cause).” The VA was discharged with instructions to apply ice as needed and take over the counter pain reliver for discomfort. The facility’s Emergency Use of Manual Restraint policy stated that staff persons were prohibited from speaking to a person served in a manner that ridiculed, demeaned, threatened, or was abusive. Staff persons were prohibited from using punishment, physical intimidation, or a show of force, and use of painful techniques including intentional infliction of pain or injury. The facility’s Mental and Behavioral Health Crisis Response policy stated that the goal of intervention was to de-escalate a situation in the least restrictive or aversive manner. Staff persons were not to discipline or punish persons served for their behavior. The facility’s Individual Rights policy stated that persons served had the right to courteous treatment and be free from verbal, physical, or sexual abuse by staff persons. Facility records showed that the SP and P1-P8 were each trained on the facility’s policies, the VA’s plans, and the Reporting of Vulnerable Adults Act. Conclusion: A. Maltreatment: P2 provided information that on January 5, 2024, around 6 a.m., s/he heard the VA and the SP yelling and the VA stomping around. P2 heard the SP yell, “Hurry up,” and, “Get out,” to the VA. P2 thought the VA might have woken up in a “tantrum.” P2 went upstairs around 7:30 a.m. and the facility was “quiet.” The SP stated that the VA was “crabby” when s/he woke up on January 5, 2024, and hit him/herself in the legs and arms. The VA then got into the shower and the SP heard more yelling. The SP noted the VA had bruises on his/her arm, back, and side, but did not document the injuries or the VA’s behavior. The SP stated that during the incident s/he told the VA to, “Shut the fuck up,” a “couple of times” and that the SP had also done so in the past. The SP denied hitting the VA. Information from P1-P8, photographs, and the VA’s medical records showed that the VA had bruises and abrasions on his/her face, back of the head, chest, left shoulder, left and right biceps, left and right hips, and low back. P5, P6, and P7 said it looked like the VA was “struck” or “whipped.” P1 – P8 each provided information that the VA engaged in self-injurious behavior such as picking at his/her skin and/or slapping him/herself. However, P2, P4, P5, P6, P7, and P8 each stated that they had not seen marks like that on the VA before and P3 and P8 stated that the VA would not have been able to reach the places where the marks were. P1, P2, P3, and P8 each said that for therapeutic reasons, staff persons were often “stern” or “louder” with the VA in order to redirect the VA; and P1, P2, P5, and P6 did not have any specific concerns about the SP’s verbal interactions with the VA. However, the SP admitted that s/he told the VA to, “Shut the fuck up,” on multiple occasions, which was confirmed by P3. In addition, P4 heard the SP loudly tell the VA, “Shut up,” once; P8 stated that s/he heard the SP scream at the VA and another client on more than one occastion to, “Get the fuck upstairs;” and P8 stated the SP used “the ‘f’ word” in anger toward the VA and another person served. Regarding Physical Abuse: Although the VA had injuries on his/her body that were not consistent with the types of self-injurious marks s/he had made before, given that no one saw how the VA sustained those injuries, there were no prior concerns with the SP being physical with the VA, and the SP denied hitting the VA, there was not a preponderance of the evidence whether the SP engaged in actions that caused the VA pain or injury. 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). Regarding Emotional Abuse: The SP stated s/he told the VA to, “Shut the fuck up,” more than once and stated s/he yelled at the VA on more than one occasion; and P3 and P8 heard the SP tell the VA to, “Shut the fuck up,” or, “Get the fuck upstairs,” on multiple occasions. There was a preponderance of the evidence that the SP used repeated language toward the VA that would be reasonably expected to produce emotional distress. It was determined that emotional 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: 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). 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 received training on the VA’s support plans, the facility’s policies, and the Reporting of Maltreatment of Vulnerable Adults Act. The SP was responsible for the 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 emotional abuse for which the SP was responsible did not meet statutory criteria to be determined as recurring or serious because the SP’s pattern of behavior was considered a single incident of emotional abuse. Action Taken by Facility: The facility completed an Internal Review and found their policies and procedures were adequate, but were not followed by the SP. The SP no longer worked at the facility. The facility retrained all staff persons on reporting policies. 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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