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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: 1105276-H_CRS (Home and Community-Based Services-Community Residential Setting) Investigator(s): Gessner Rivas 651-431-3970 Suspected Maltreatment Reported: It was reported that a staff person (SP) had a person on speaker phone with the SP while the vulnerable adult (VA) was sitting nearby. The person threatened to beat up the VA, taunted the VA, called the VA a “retard,” (hereinafter referred to as “the r-word”), and mocked the VA. It was also reported that the SP pushed the VA from behind, projecting the VA forward resulting in the VA hitting his/her stomach and hips against a kitchen counter. Date of Incident(s): September 10, 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), 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 a site visit conducted on October 24, 2023; from documentation at the facility; and through four interviews conducted with two facility staff persons (P1 and P2), the SP, and the VA’s guardian (G). This investigator met the VA, but the VA was unable to provide information in an interview. The VA was diagnosed with autism and was non-verbal. The VA was known to be friendly and used touch as a means of building relationships with others. The VA enjoyed spending time with a grandparent and going for walks. P1, a facility staff person, provided the following information: · P1 worked at the facility as an asleep support staff person during the overnight shift; if P1 was needed by the awake staff person, P1 would be awakened to provide assistance. On September 9, 2023, P1 arrived for her/his shift at approximately 11:30 p.m. Upon arrival, the SP informed P1 that the VA was “very agitated and combative.” P1 stated that the SP was also agitated and was “antagonizing” the VA, telling the VA not to go near the SP. · P1 attempted to deescalate the tension between the SP and the VA by walking around with the VA and redirecting the VA. The VA liked sitting on a loveseat in the living room; P1 had the VA sit down on the loveseat. The SP was also sitting on the loveseat and told the VA, “No you can’t come sit by me, you have been mean to me all day.” · Sometime between 2 and 4 a.m., the SP got a video call from her/his partner. P1 stated that the SP’s partner said, “That fucking [r-word], [the VA] is lucky I’m not there because if I was, I would kick [the VA’s] ass, if I was, for the way [the VA’s] acting towards you.” The VA was in the same room as the SP during the video call. P1 also stated that the VA was teased by either the SP or the SP’s partner wrinkling up fast food wrappers because it was known that the VA would get fixated on food. · Sometime later, P1 was sitting by a window near the loveseat, the VA got up and walked toward the kitchen and the SP walked up behind the VA and “forcibly” shoved the VA from behind with both hands causing the VA to stumble forward. · The kitchen had two counters, one near the sink where the carpeted living room and kitchen met. The other counter was on the opposite side of the kitchen by the refrigerator. After being shoved the VA stumbled toward the counter by the refrigerator. P1, who was still in the living room did not see the VA hit the counter because P1's view was blocked by the wall separating the kitchen from the living room. · P1 reported that the SP stated that the VA “must have tripped over the transition between the two rooms,” referring to where the carpet from the living room met the linoleum in the kitchen. P1 stated that s/he told the SP to take a break and P1 would take over. P1 noted that the VA had a high threshold for pain and did not verbalize if s/he experienced any pain from being shoved or hitting the counter. · P1 was awake throughout the whole night “trying to keep the peace between [the VA and the SP],” deescalating the VA and redirecting her/him but the SP would continue to agitate the VA by making “snide remarks.” The SP’s shift ended that morning around 7 a.m. when another staff person came in for the start of their shift. P1’s shift was done around 12:30 p.m. on September 10, 2023. P1 did not notice any bruising on the VA during her/his shift. P2, a supervisory staff person, provided the following information: · P2 spoke with the SP the following day and asked about the previous night. P2 stated that the SP only said that the VA was up all night and had behaviors. P2 informed the SP that it had been reported that the SP had engaged in verbal abuse and informed the SP that s/he was let go because of the incident. · P2 did not learn of the alleged physical abuse until another staff person wrote up an incident report which included the information alleging that the SP had shoved the VA. P2 stated that there were no prior concerns regarding the SP beyond the fact that s/he did not like the VA touching her/him but that touching was the way in which the VA built relationships with others. P2 stated that the VA was checked for bruising; no bruises were found. The SP provided the following information: · The SP stated that on the night of the incident the SP had to cover the shift of an overnight staff person who had called in. Working with the SP on the overnight shift from September 9 to September 10, 2023, was an asleep staff person; P1 who was there to provide assistance if needed. · That night, the VA was not listening, refused to go to bed, and would not stop trying to touch the SP despite being asked to stop by the SP. The SP stated s/he kept moving around but the VA would follow but never told the VA s/he could not sit on the loveseat next to the SP. · The SP stated that per policy staff persons were not to use their cellphones while on duty, but that rule was usually broken by staff persons. The SP was trying to get in touch with her/his partner to discuss what to do regarding the situation with the VA. The SP stated that s/he did not recall her/his partner making any derogatory comments about the VA and would not make such comments. No one wrinkled up fast food wrappers. · When asked about shoving the VA from behind, the SP stated that s/he only “lightly push[ed] [the VA] showing [the VA] what direction to go.” The SP stated that the VA did not trip or fall. The VA’s guardian (G) did not have any prior concerns about staff persons at the facility. The facility’s Cell Phone Usage During Work Time policy stated that staff persons should only use their cell phones during scheduled breaks unless there is an urgent need to do so. Staff persons had to store their cell phones in the designated for personal belongings. Facility records showed that the SP was trained on the Reporting of Maltreatment of Vulnerable Adults Act, the care plans for the VA, and relevant policies and procedures. Relevant Rules and/or Statute: Minnesota Statutes section 245D.04, subdivision 3, paragraph (a), clause (6), stated that a person’s protection-related rights include the right to be treated with courtesy and respect. Conclusion: A. Maltreatment: Regarding emotional abuse P1 provided information that on September 10, 2023, between 2 and 4 a.m. the SP was on a video call with her/his partner in which the SP’s partner referred to the VA using the r- word, mocked the VA, and threatened the VA while the VA was in the same room as the SP. The SP denied that her/his partner made the alleged comments. The SP stated that s/he was on a call with her/his partner to discuss what to do about the VA; referring to how difficult the VA was that night. Although P1 stated s/he heard the comments made the SP’s partner while the VA was in the room including using the r-word, the SP’s partner was not a staff person. The SP denied that her/his partner made any such comments about the VA, but the SP did not follow policy prohibiting staff persons from using their cell phones while on duty and was having a disrespectful conversation about the VA that the VA could hear which was a violation of Minnesota Statutes section 245D.04, subdivision 3, paragraph (a), clause (6). Although the SP was in a conversation with a person who likely used malicious language toward the VA, given that the person was not a staff person of the facility and the r-word was not used directly toward the VA, there was not a preponderance of the evidence whether the SP engaged in conduct that caused or could reasonably be expected to cause emotional distress to the VA. It was not determined whether 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). Regarding physical abuse Information provided was consistent that on the overnight shift from September 9 to 10, 2023, the VA was agitated. The VA kept approaching the SP, the SP was also agitated and did not want the VA touching her/him, despite the SP asking the VA to stop. P1 reported that the SP “forcibly shoved” the VA from behind causing the VA to stumble forward toward the kitchen counter but P1 did not see the VA’s body hit the counter. The SP told P1 that the VA must have tripped over the transition between the two rooms. The SP stated that s/he “lightly pushed” the VA in attempt to guide the VA, but also stated that the VA did not trip or fall. Although the SP said that s/he “lightly pushed” the VA to guide the VA, given that P1 witnessed this and said that the SP “forcibly” shoved the VA causing her/him to stumble forward, that the SP had reason to minimize his/her actions for fear of repercussions, and that the SP was frustrated at the time, there was a preponderance of the evidence that the SP’s actions were not an accident and could reasonably be expected to produce physical pain or emotional distress to the VA. It was determined that 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). 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 Reporting of Maltreatment of Vulnerable Adults Act, client rights, the VA’s plans, and relevant policies. 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 physical abuse of the VA for which the SP was responsible did not meet the statutory criteria to be determined as recurring or serious because it was a single incident, and the VA did not sustain any injury. Action Taken by Facility: The facility completed an internal review and determined that policies and procedures were adequate but not followed by the SP. The facility instructed staff persons that they are not to use the cell phones while on duty. The SP no longer worked at the facility. 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. Given that the facility took immediate corrective action, a Correction Order was not issued for the violation outlined above.
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