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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: 1101050-H_CRS (Home and Community-Based Services-Community Residential Setting) Investigator(s): Deb Neubauer-Hoffman 651-431-6567 Suspected Maltreatment Reported: It was reported that a staff person (SP) threw water at a vulnerable adult (VA) and hit the VA with a bicycle tire in retaliation for the VA throwing items at the SP. Date of Incident(s): October 17, 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 November 21, 2023; from documentation at the facility; and through five interviews conducted with three facility staff persons (P1, P2, and the SP), the VA, and a guardian (G). The VA’s diagnoses included traumatic brain injury, attention deficit hyperactivity disorder, chronic obstructive pulmonary disease, bipolar 1 (manic-depressive) disorder, and chronic back pain. The VA was blind in his/her right eye. The VA liked to fish, sing, and smoke cigarettes. The VA’s plans provided the following information: · An Individual Abuse Prevention Plan and/or Self-Management Assessment stated that the VA was susceptible to physical and emotional abuse due to engaging in property destruction and physically aggressive behaviors. The VA had a history of falsely reporting incidents and/or not reporting in a timely manner. The VA had no unsupervised time in the community. While at the facility, staff persons remained on the premises and were to have awareness of the VA and his/her needs and activities. · An Individual Absolutes/Specific Instructions stated that if the VA was “upset, don’t push [him/her], give [him/her] space to process.” The plan stated that “triggers” for the VA included “being told no, or that [s/he] can’t do something.” The VA struggled when plans changed unexpectedly. Due to the seriousness of the VA’s behaviors, two staff persons were available for activities and to ensure the health and safety of everyone in the facility or in the community. A review of the facility’s audio/video camera, an Internal Review, and/or an interview with P2 provided the following information: · At the time of the incident, the VA was the only client receiving services at the single-story facility. The facility had audio/video cameras that showed the inside of the attached garage, the front of the facility, and the driveway. A review of the three cameras showed that on October 17, 2023, two vehicles were parked side by side near the garage entrance, parallel to the facility. · P1 went outside at 7:50 a.m. and started a facility vehicle, which was parked in the facility driveway closest to the garage. Two minutes later P1 went back inside the facility. (The second vehicle in the driveway belonged to the SP.) · P1, the SP, and the VA came outside via the garage service door located at the front of the garage. An inaudible conversation took place in the driveway and the VA returned to the garage. (According to P2, the SP told P2 that s/he worked with the VA the previous evening, October 16, 2023, and took the VA fishing. On the way back to the facility, the VA was yelling and swearing. The SP was “distracted” and ran a stop sign. The following morning, October 17, 2023, the VA was still upset with the SP and refused to ride in the facility vehicle if the SP was driving. Although P1 was present, P1 did not have a driver’s license making him/her unable to drive.) · After refusing to get in the vehicle, the VA re-entered the garage. The VA was seen with a can of soda and was rolling a cigarette when the SP and P1 followed the VA into the garage to attempt to de-escalate the VA. The VA was heard saying, “Fuck you,” to the staff persons and used racially derogatory names. The VA threw a soda can that did not appear to hit either staff person. The can landed on the floor near P1. P1 responded by saying, “No fucking throwing that shit,” and kicked the can back toward the VA. Both staff persons exited the garage and went into the facility to give the VA space to calm down. · The VA remained in the garage and was heard cussing and swearing. Approximately a minute and a half later, the SP reentered the garage holding a water bottle and splashed water on the VA. The VA chased the SP outside of the garage onto the driveway. The SP told the VA that s/he was “going to call the cops,” and was seen posturing with his/her fists up as if to fight and was heard saying, “I am going to beat your ass.” P2 said that the SP’s comments were “inciting” the VA. The VA threw a garbage can at the SP. The SP picked up a bicycle tire that was in the driveway. · Approximately 45 seconds later, the VA was seen walking back toward the garage and as the SP followed the VA, the VA veered away from the garage and went around the front of the facility vehicle, toward the SP’s car. The SP continued to walk toward the VA until they were both between the two vehicles. The SP said, “Try,” (challenging the VA to “try” to get closer to the SP’s car) multiple times as the SP rapidly swung the bike tire five times in the direction of the VA who was nearing the windshield of the SP’s car. Camera views were not definitive as to whether the bike tire made contact with the VA’s body; however, the VA gave no indication that s/he was hit, and the VA told P2 that s/he was not hit with the tire. The VA did not aggress toward the SP but did break the SP’s windshield with one slam of the VA’s right fist, resulting in a minor injury to his/her hand. No medical care was needed. The VA went back inside the garage and called law enforcement. (Information showed the SP also called law enforcement.) · P2 said the SP did not respond as trained because the SP should have “given [the VA] space,” or should have gotten P1 involved to try to redirect the VA. The VA provided the following information to this investigator. The VA did not want to ride in the vehicle with the SP because s/he did not feel safe after an incident occurred the prior evening where the SP “almost got in an accident.” After refusing to ride in the car, the VA and returned to the garage where a can “fell off of the shelf” above the SP. The SP then threw water at the VA. The SP and VA went outside of the garage and the SP “started whipping me with the tire.” The VA said that the tire hit him/her in the hand and on the head; however, s/he did not need medical care. The SP’s windshield broke when the VA “fell down onto the windshield,” hit his/her head, and “passed out” for five seconds. When asked about the video showing the VA hitting and breaking the windshield with his/her hand, the VA said s/he “tried grabbing something” as s/he “lost consciousness” and that s/he had a “tendency of falling all the time.” P1 was present when the VA refused to ride in the car and when the VA re-entered the garage. P1 said that the VA threw the pop can that hit the SP’s thigh, getting the SP’s pants wet. P1 did not “remember” kicking the can back at the VA. P1 said that s/he was trained to “walk away” so P1 and the SP went inside the facility. P1 was not present in the garage or driveway when the incident between the SP and VA continued and was not aware of the incident until after the SP’s windshield was broken. P1 said that the VA broke 24 car windshields. The SP provided information: · The SP admitted splashing water on the VA after which the VA chased the SP out of the garage and threw a garbage can at the SP. The SP admitted s/he would have been “mad” if someone threw water on the SP. When the VA was “trying to punch” the SP, the SP picked up a bike tire and swung it at the VA “as a deterrent” to keep the VA from aggressing towards the SP. The SP was “100 percent” sure that the tire never came in contact with the VA. The SP said the VA did not have physical contact with the SP because the SP ran away and stayed out of reach. Because the VA was unable to hit the SP, the SP believed the VA “decided to punch the (SP’s) car.” · This investigator showed the SP the video where the VA was walking toward the SP’s car but was not aggressing toward the SP, yet the SP was swinging the bike tire as s/he walked toward the VA. The SP justified his/her actions by saying the VA “threw the garbage can” at the SP and the SP believed if s/he “stopped,” the VA would have hit the SP. · Law enforcement was called and responded to the incident. The SP admitted to law enforcement that s/he swung the bike tire at the VA. The SP said that s/he was “defending [him/herself].” The G said that the VA “can be accurate, but story telling is more [his/her] thing.” When the G talked to the VA about the incident, the VA said that s/he “did not do anything wrong” and did not want to go to work that day. The G also said there were staff persons the VA did not like and when the VA had “behaviors” the VA “makes sure” the incidents were on the camera so that the staff persons actions were observable and the staff persons “get moved” to a different facility. The SP’s Position Description stated s/he was responsible to “effectively de-escalate difficult situations between person(s) served by avoiding power struggles and using positive support strategies. Law enforcement investigated this report, and the SP was charged with Disorderly Conduct Caregiver Against Vulnerable Adult. Facility staff persons were trained regarding the VA’s programs, the facility’s policies and procedures including alternatives to manual restraint, employee conduct, person-centered planning, resident rights, and the Reporting of Maltreatment of Vulnerable Adults Act. Relevant Minnesota Statute: Minnesota Statutes, chapter 245D.04, subdivision 3, paragraph (a), clause (6) states that a person’s rights included the right to be treated with courtesy and respect. Conclusion: A. Maltreatment: A video with audio recording showed that on October 17, 2023, the VA refused to get in the car when s/he realized the SP planned to drive. The VA went back into the garage followed by the SP and P1 where the VA then threw a pop can at the SP and P1. After the SP and P1 initially left the garage, likely with the intention of giving the VA “space to process” as outlined in his/her Individual Absolutes/Specific Instruction, the SP returned 90 seconds later and splashed water on the VA. The VA chased the SP out of the garage where the VA threw a garbage can and the SP picked up a bike tire and walked toward the VA, swinging the tire at the VA as the VA neared the SP’s car. Regarding abuse: Although the VA and SP each stated the SP splashed water on the VA, the VA provided inconsistent information regarding whether or not the SP hit the VA with the bike tire, and the SP denied that the VA was hit with the bike tire the SP was swinging. Given the video was inconclusive regarding any contact between the bike tire and the VA, and that the VA made no reaction to indicate contact was made, there was not a preponderance of the evidence whether all of the SP’s actions were therapeutic conduct, accidental, or 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: 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). Regarding neglect: Information showed that when the VA was upset and refused to get in the car, the SP only provided the VA approximately 90 seconds of “space to process” before the SP further accelerated the incident by throwing water on the VA, putting his/her hands up as to fight with the VA, and swinging a bike tire at the VA five times while in very close proximity. The SP also made comments to further escalate the VA including that s/he was “going to call the cops,” and the SP was seen posturing with his/her fists up as if to fight and was heard saying, “I am going to beat your ass,” to the VA. P2 said that the SP’s comments were “inciting” the VA. In addition, when the VA walked away toward the garage, the SP followed the VA and told the VA “Try,” and then picked up the bike tire and swung it at the VA. The SP’s behavior was inconsistent with the standards of a professional caregiver in a facility licensed by the Department of Human Services and was in violation of Minnesota Statutes, chapter 245D.04, subdivision 3, paragraph (a), clause (6). Given the SP’s actions, including throwing water at the VA, swinging a bike tire at the VA, and making comments toward the VA, continued to escalate the VA’s behaviors, that the SP did not give the VA time to process as stated in the VA’s plans, and that the SP who could have walked away continued to engage with the VA in a non-therapeutic way, there was a preponderance of the evidence that the SP engaged in unprofessional and untherapeutic conduct and failed to provide the VA with supervision, care, and services which was reasonable for the VA’s physical or mental health. 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 regarding the VA’s programs, the facility’s policies and procedures including alternatives to manual restraint, employee conduct, person-centered planning, resident rights, and the Reporting of Maltreatment of Vulnerable Adults Act. 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 maltreatment for which the SP was responsible did not meet the statutory criteria to be determined as serious because there was no injury to the VA and did not meet the statutory criteria to be determined as recurring because the incident constituted a single occurrence. Action Taken by Facility: The facility completed an Internal Review and determined that policies and procedures were adequate but were not followed including the employee conduct and discipline policy, driver rules and regulations, and Maltreatment of Vulnerable Adults Reporting Policy and Procedure. P1 and the SP were retrained. The SP no longer worked with the VA. Action Taken by Department of Human Services, Office of Inspector General: Given that the facility took immediate corrective action, the facility was not issued a correction order for the violation outlined in this report.
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