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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: 1070667-H_DSF (245D-Home and Community-Based Service-Day Services Facility) Investigator(s): Christine Henne 651-431-3444 Suspected Maltreatment Reported: It was reported that a staff person (SP) put his/her arm around a vulnerable adult’s (VA’s) neck “like a choke hold.” Date of Incident(s): May 7, 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), clause (1): 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. Summary of Findings: Pertinent information was obtained during a site visit conducted on May 14, 2024; from documentation at the facility and through 11 interviews conducted with six facility staff persons (P1-P5 and the SP), three supervisory staff persons (P6-P8), one administrative person (P9) from the VA’s residential facility, and the VA’s guardian (G). This investigator met the VA, but s/he was unable to provide information due to his/her diagnoses. The VA’s file stated that s/he liked to laugh, have fun, go on walking trails, and was interested in animals. Family and looking at pictures was important to the VA. The VA was diagnosed with severe intellectual disability, epilepsy, obsessive compulsive personality disorder, and growth hormone disorder. According to the VA’s Individual Abuse Prevention Plan, the VA was susceptible to physical abuse, was unable to identify a dangerous situation, and was unable to defend him/herself if someone were to become aggressive towards him/her. The VA was to be within sight and sound of staff persons at all times and staff persons were to monitor for signs and symptoms of physical abuse. The VA had limited cognitive abilities and communication/verbal skills and was unable to advocate for him/herself verbally. The VA was unsteady on his/her feet, uncoordinated with his/her hands, and moved slowly. The VA’s Self-Management Assessment stated that the VA had 24-hour care to help him/her stay safe, assist in daily living skills, manage behaviors, and take medications. The VA was at risk of falling and shuffled his/her feet when walking, which could cause the VA to lose balance and fall. At times, the VA was physically guided by staff persons and assisted with getting in and out of vehicles and uneven terrain. Staff persons provided the VA with structure/routine, verbal prompts, cues, and encouragement. At times, the VA displayed behaviors that could be temporarily disruptive, but did not require 911 intervention. The facility provided day services for approximately 42 individuals including the VA. However, many of the individuals left the facility to go to job sites while others remained at the facility for the day. Inside the facility there were offices, a conference room, and two “common” areas/rooms--one of which was referred to as the “big room.” The big room included several tables with chairs, storage lockers/cabinets, a refrigerator, and a restroom. The facility’s incident report stated that on May 7, 2024, at 1:20 p.m., the VA did not respond to prompts to get up from a table to go to the van to head home. Staff persons attempted to move the VA onto a chair and when that did not work, the SP came up behind the VA and put his/her arm around the VA’s neck “like a chokehold.” This prompted several other staff persons to tell the SP, “Let go.” The VA made “loud vocalizations” and the SP released the VA. The VA then got up and went to the van to go home. The VA did not appear injured and there were no “issues” with the VA on the way home. P1 said that on May 7, 2024, around 1:20 p.m., which was around the time the clients left the facility for the day, the VA was in the “big room” and P5 told the VA it was time to leave, but the VA was having a “behavior” and wanted glue or a piece of paper. P1 and P3 tried “escorting” the VA to go outside to the van, but the VA refused. P4 then grabbed a chair with wheels because sometimes staff persons wheeled the VA outside to the van when needed. At that point, the SP grabbed the back of the VA’s pants and “sat [the VA]” down in the chair. The VA sat in the chair, with his/her arms “in the air” and the VA was trying to lean forward to stand. At that point, P1, who was an “arm’s length” away, saw the SP’s right arm go “around” the VA’s neck. The VA was repeating the word “glue” and was “yelling,” but P1 did not know what else the VA was saying. The SP “looked frustrated.” P1 looked at the SP and told the SP it that was “not a proper hold.” P1 then walked to a cabinet and got a coloring page for the VA. The VA stood up and followed P1 to the van. P1 did not know how long the SP’s arm was around the VA’s neck and was not “100% sure” if the SP’s arm actually touched the VA’s neck. However, P1 saw the VA’s head “resting” on the inside of the SP’s elbow. P1 did not know why the SP put his/her arm around the VA’s neck. P1 had no concerns with the SP prior to the incident and told P6 and P8 about it later that day. P2 said that on May 7, 2024, around 1:20 p.m., P2 was in the big room getting individuals ready to leave the facility. P2 saw that the VA did not want to leave and did not know why but thought maybe the VA wanted a glue stick or a piece of paper. P2 was not watching the situation “extremely close” because s/he was watching other individuals and other staff persons were working with the VA to leave the facility. At some point, P2 saw a chair by the VA and staff persons were trying to get the VA to sit in it. P2 saw the VA sit in the chair with his/her arms “up.” At some point, the SP came from behind the VA and “wrapped” his/her right arm around” the VA and the VA’s neck. The VA was “visibly fighting forward” and at some point P2 heard the VA “make a sound” that sounded like “ow.” P2 also heard P1 say two times, “That is not a proper hold.” It took the SP “a while” but then s/he let go. P2 was watching a “little more” at that point and saw P1 go to the lockers, where the paper was, to get a piece of paper. P1 gave the VA the paper and then walked the VA out of the facility. Because P2 was not in close proximity to the situation (about 15 feet away), it was hard for him/her to see everything; however, P2 thought the SP’s arm touched the VA’s neck. During the incident, the SP looked “visibly frustrated,” but “not angry” and P2 thought it was because the VA was not “cooperating.” P2 did not know how long the SP’s arm was around the VA’s neck but thought “maybe 10 seconds.” P2 was not aware of any injury to the VA. P2 did not tell anyone about the incident but heard that someone (P2 was unsure who) told P6 and P8 that same day. P2 had not seen or heard of any concerns with the SP prior to the incident. P3 said that on May 7, 2024, around 1:25 p.m., staff persons were getting the individuals ready to leave for the day. The VA wanted a glue stick and P5 told the VA that it was the end of the day and that s/he needed to get his/her stuff to go home and that the glue stick belonged to the facility so the VA could not take it. However, P5 told the VA s/he could use one the next time s/he was at the facility, but the VA was “adamant” about getting a glue stick. At that point, P1 stood in front of the cabinets where the glue sticks were and tried to redirect the VA to leave the facility. P3 and P1 guided the VA towards the exit, but the VA did not move and tried to “drop to the floor.” At that point, P4 suggested getting a “rollie” chair so then P3 and P1 guided the VA to the chair and P4 assisted. At that point, the SP entered the situation and came from behind the VA, who was seated in the chair, and wrapped his/her arms around the VA’s “belly” and then his/her neck. P3 was about a foot away from the situation and saw the SP’s left arm go around the VA’s belly and his/her right arm go around the VA’s neck. The SP’s arm was “fairly tightly” around the VA’s neck and the VA “made a gasping noise and looked distraught.” The SP’s right arm was “right against” the VA’s neck. P3 thought the SP did that to keep the VA in the chair because the VA was attempting to get up. P3 told the SP “multiple times,” “Let [the VA] go,” and P1, who was next to P3 at that point said, “That is not an appropriate hold,” and that the SP cannot do that. The VA was in the hold for about 30 seconds and then the SP let go. The VA stood up and P3 asked the VA if s/he was ok, but the VA was focused on getting a glue stick. P3 did not see any injury to the VA. During the incident, the SP looked “visibly frustrated,” and his/her face was “grimacing” and “very tense.” P4 said that sometime “maybe” during the week of May 6, 2024, P4 saw the VA “get choked” by the SP. Prior to the incident, the VA was near a cabinet and fridge in the big room and wanted a glue stick and P5 told the VA it was time to get in the van to go home for the day. The VA “wasn’t listening” so P4 “stepped up.” The VA started to get “agitated” and sometimes when that happened, the VA would “sit” or “drop” to the ground, so P4 grabbed a chair so if the VA sat/dropped, s/he would land on the chair. The VA then “willingly” sat on the chair, but then stood back up. At that point, the SP came from behind the VA and “forced” the VA to sit on the chair by using his/her hands, but P4 was not sure exactly how the SP did that because “it was really fast.” After the VA sat down in the chair, the VA tried getting up again and the SP put his/her right arm around the VA’s neck. The VA’s neck was in the “crease” where the SP’s elbow was. The VA made a noise as if she were “choking” and at some point, said, “Ow.” After about 20 to 30 seconds, the SP let go. The SP looked “frustrated” and his/her face was “red.” P4 “stepped back” because there were too many people around the situation, and it was “chaotic.” After P4 backed away, s/he heard P1 say, “That is not an appropriate hold.” P4 was not aware of any injury. P4 thought the VA would be able to communicate if s/he was in any pain, but also said “ow” when just being touched, so P4 was not sure in this incident if the VA saying “ow” would be an accurate indication s/he was in pain. P4 had no concerns with the SP prior to the incident. P5 said that sometime during the week of May 6, 2024, the VA was in the big room, and it was time for the VA to leave the facility, but the VA kept requesting glue. P5 told the VA that s/he could not have glue at that time because it was time to leave but could have some the next day. At that point, P5 was carrying the VA’s book and lunch box out to the van and had his/her back to the incident. P5 had no concerns with the SP prior to the incident and said all of the individuals loved the SP, that s/he was “wonderful,” a “great worker,” and worked “really well with everyone” especially some of the more “difficult” individuals. P7 said that on May 7, 2024, around 1:25 p.m., P7 walked into the big room and noticed a “whole lot of commotion” and asked what was going on. P7 heard P1 say, “That’s not okay, we can’t do that.” P7 did not remember which staff persons s/he asked but said they said the VA was not doing what the staff wanted him/her to do and then the SP put the VA in a “headlock.” P7 then went to P6’s office and told him/her about what s/he heard happened. P7 had no concerns with the SP prior to the incident and said that s/he was a “really great staff.” P6 said that on May 7, 2024, at about 1:25 p.m., s/he was sitting in his/her office at the facility and P7 came into the office and informed P6 of the incident and said that the SP put the VA in an “unauthorized hold.” P6 then went out to the big room where the VA was and the VA appeared to be okay and was walking to go to the van. P6 talked to P1, P2, P3, and P4 who provided consistent information to P6 that each provided in their interviews. P6 talked to the SP about the incident and told the SP that what s/he did was an “unauthorized hold” and that we cannot do that. The SP started to cry and said, “Okay.” P6 had no concerns with the SP prior to the incident. P8 said that P6 notified him/her about the incident and on May 13, 2024, P8 talked to the staff persons involved. P1-P4 said, in general, that they felt the SP’s arm was closer to the VA’s neck, but when P8 talked to the SP, the SP said that s/he put his/her right arm across the VA’s shoulder and center chest area for about 15-30 seconds because the VA looked unstable, and the SP did not want the VA to fall over/off of a chair. P9, was notified of the incident in an email from P6. P9 also said that a nurse (N) from the residential facility examined the VA and did not see any injury. The N’s notes and documentation stated that the VA’s neck had no marks, no redness, no obvious injuries. The VA was speaking and swallowing normally and there were no abnormalities in the VA’s mouth. The N lightly palpated the VA’s neck on all sides, and the VA did not flinch, yell out, or make an indication of pain or discomfort. The N called the G, and the G stated it was not necessary to take the VA to a doctor, so the N directed staff persons to take the VA to the ER if the VA showed any difficulties swallowing, speaking, breathing or had other changes. The G said that s/he was aware of the incident and did not think it was “right” for a staff person to put the VA in a “choke hold.” Additionally, after learning about the incident, the G was concerned with staff persons “patience” at the facility in regard to working with the VA. The SP said that on May 7, 2024, between 1:15 p.m. and 1:25 p.m., s/he saw that the VA was “adamant” about reaching for a mop head which was on the floor about three feet away from the VA. A staff person, the SP was unsure which one, had gotten a chair with wheels for the VA to sit in. The VA then sat in the chair and was leaning forward “going after” and “reaching” for a mop head as well as “screaming” for it. The SP had three two-inch binders and the VA’s lunch box in his/her left hand. The SP thought the VA was going to “fall forward” so the SP went to grab the VA with his/her right arm and tried to stop the VA from “face planting.” The SP used his/her right arm to try to prevent a fall and put his/her right hand under the VA’s armpit and the rest of the SP’s arm was by the VA’s chest and shoulder. The SP did not recall his/her arm touching the VA’s neck, but said it happened “so fast.” The SP had his/her arm around the VA for “not even a minute.” During that time, P1 told the SP that his/her actions were a “hold” and then walked away to get a coloring book or piece of paper for the VA. Once the VA received the paper, s/he stood up and walked to the van. Later that day, P6 texted the SP while s/he was enroute bringing individuals home and said to come see him/her once s/he returned to the facility that day. When the SP returned to the facility, s/he talked to P6 and P8 together and told them what happened and was told that s/he was “accused” of putting the VA in a “hold.”
The facility’s policy on Emergency Use of Manual Restraint (EUMR) stated: · EUMR was “use of manual restraint when an individual poses an imminent risk of physical harm to self or others. The procedure used must be the least restrictive intervention to achieve safety. Property damage, verbal aggression, or an individual’s refusal to receive or participate in the treatment or programming on their own, do not constitute an emergency.” Manual restraint was defined as “physical intervention to hold an individual immobile or limit an individual’s movement by using body contact as the only source of physical restraint.” · Positive support strategies and techniques were to be used in attempt to de-escalate in individual’s behavior before it poses an imminent risk of physical harm to self or others. Examples include, but were not limited to: individualized strategies in an individual’s plans; shifting the focus by verbally redirecting the individual to a desired alternative activity; modeling desired behavior; reinforcing appropriate behavior; offering choices, including activities relaxing and enjoyable to the individual; using positive verbal guidance and feedback; actively listen to an individual and validating their feelings; creating a calm environment by reducing sound, lights, and other factors which may agitate an individual; speaking calmly with reassuring words, considering volume, tone, and non-verbal communication; simplifying a task or routine or discontinuing until the individual was calm and agreed to participate; respecting the individual’s need for physical space and/or privacy. The standards of positive support strategies must be evidence based, person centered, ethical, integrated the individual in the community, the least restrictive to the individual, and effective. Law enforcement was contacted regarding this report, but they did not investigate the report. All staff persons interviewed, including the SP, were trained on the VA’s plans, the Reporting of Maltreatment of Vulnerable Adult’s Act, and the EUMR policy prior to the incident. Relevant Rules and/or Statutes: Minnesota Statues section 245D.061, Subdivision 2, states the conditions for emergency use of manual restraint must meet the following conditions: (1) immediate intervention must be needed to protect the person or others from imminent risk of physical harm; and (2) the type of manual restraint used must be the least restrictive intervention to eliminate the immediate risk of harm and effectively achieve safety. The manual restraint must end when the threat of harm ends. Conclusion: P1-P4 provided consistent information that when the VA refused to leave the facility, the VA sat in a chair with wheels and the SP approached the VA and restrained the VA including putting his/her right arm around the VA’s neck. The SP denied restraining the VA for no other reason than to prevent the VA from falling out of the chair and denied touching the VA’s neck. At the time of the incident, the VA was not at imminent risk of harm and no staff persons other than the SP stated the VA looked like s/he might fall out of the chair. The four staff persons, who were present during the incident, observed the SP engage in a restraint involving the VA’s neck which was inconsistent with the standards of a professional caregiver in a facility license by the Department of Human Services and a violation of Minnesota Statues section 245D.061, Subdivision 2. However, it was a single occurrence that lasted only a few seconds; staff persons stated the VA was not harmed and the N observed no injury; and although the VA said, “Ow,” P4 said that the VA said “ow” when just being touched, so P4 was not sure in this incident if the VA saying “ow” would be an accurate indication s/he was in pain. Therefore, there was not a preponderance of the evidence whether the SP’s actions could reasonably be expected to produce physical pain. 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 an internal review and stated that their policies and procedures were adequate. The EUMR was implemented for 15-20 seconds and did not cause harm; therefore, the incident was looked at as a “therapeutic error.” The SP and all staff persons would be retrained on the proper restraint and EASE techniques. The SP worked with supervision until successfully passing the EASE re-training. Action Taken by Department of Human Services, Office of Inspector General: Given that the facility took immediate corrective action, a Correction Order was not issued for the violation outlined above.
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