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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: 1112494-H_CRS (Home and Community-Based Services-Community Residential Setting) 1071456-HCBS (Home and Community-Based Services) Investigator(s): Jason Pehler 651-431-4830 Suspected Maltreatment Reported: It was reported a staff person (SP) yelled a profanity at a vulnerable adult (VA) and called the VA "retarded." (The words “retarded” and “retard” will be referred to in this report as “the r-word.”) Date of Incident(s): April 11, 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 (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: 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 April 23, 2024; from documentation at the facility; and through five interviews conducted with the VA, the VA’s housemate (HM), a facility supervisor (P), the VA’s case manager (CM) and the SP. Facility documentation showed the VA was a friendly and kind person who loved living in the community. The VA enjoyed interacting with family, friends, and staff persons. The VA was described as “very intelligent,” and liked watching sports. The VA was diagnosed with developmental disabilities, cerebral palsy with spastic quadriplegia, scoliosis, and had a history of seizures. The VA used a power wheelchair and required assistance from staff persons to complete hygiene tasks. The VA had limited speech, but was able to express him/herself, made jokes, and was able to “advocate” for him/herself. The facility was a single level home with an open floorplan in the living room and kitchen. The VA’s and the HM’s bedrooms were on opposite sides of the living room, approximately 50 feet from each other. The facility had a staffing ratio of 1:4 during the overnight, and had recently changed from an awake overnight to an asleep overnight position. The following is a summary of initial information reported, the facility’s Internal Review (IR), and interviews with the VA and the HM: · On April 11, 2024, during an overnight shift, around 1 or 2 a.m., the SP engaged in a verbal exchange with the VA which included the SP calling the VA a “fucking r-word.” · The VA and HM provided the following consistent information within the IR and during separate interview with this investigator: o During an overnight shift on an unspecified date, the SP called the VA a “r-word” and said “fuck” after the VA tried to get the SP’s attention to assist the HM. The HM said just prior, s/he had requested assistance from the SP due to being incontinent, and the HM heard the VA make noise to get the SP’s attention. The VA said this was the first time the SP had interacted with the VA in this manner, and there was no previous incident of name calling or yelling. o During the VA’s and the HM’s interviews with the DHS investigator, each displayed a change in demeanor and signs of irritation while discussing the alleged incident. The VA displayed facial cues and voice level changes while discussing the incident, and the HM said s/he did not want the SP to work at the facility in the future. The HM added that staff persons should not speak to residents in that way, and that the interaction made the HM “very upset.” The HM said the VA cried while talking to the HM about the alleged incident. Additionally, the IR noted the VA’s demeanor changed while s/he was interviewed by facility administration regarding the SP. · There was not a daily progress note completed for the VA on April 11, 2024. · The facility noted the SP received multiple employee corrective actions during his/her employment: o On February 21, 2024, the SP yelled and swore at co-workers. o On March 12, 2024, the SP talked “badly about others” and was “rude” to a supervisor. o On April 5, 2024, the SP raised his/her voice and slammed a door. The P was new to the facility, but did not have concerns about the VA or HM being accurate reporters. The CM said the VA was an accurate reporter to his/her knowledge, and was not aware of the VA engaging in “falsifying or dramatizing” of information. The SP provided the following information: · The SP denied using profanities, or calling the VA a “r-word.” The SP said s/he would not use “heinous” words while interacting with the vulnerable adults or anyone else. Moreover, the SP said s/he had “better communication skills than that,” and had “conflict resolution skills.” · The SP said during the alleged incident the HM called for the SP, and the SP tried to finish some documentation before going into the HM’s room. The SP estimated it took 30 seconds, but during that time the VA started calling for the SP, so the SP went to the VA’s bedroom. When in the bedroom the SP told the VA s/he was awake, and the VA did not need to be “screaming” and “yelling like that.” The SP said there “was actually no problem” between him/herself and the VA, or the HM, during the night of the alleged incident. · The SP believed s/he had a “good” relationship with the VA and HM, however the SP said there was one previous incident in which the VA had said the SP was “drinking” after they had gone to a sporting event. It was later found that that alleged incident was not true and the VA “apologized” to the SP for making those allegations. The P and the SP were each trained on Reporting of Maltreatment of Vulnerable Adults Act, the facility’s policies and procedures, and the VA’s client specific programming. The training the SP received included the following: · The facility was dedicated to promoting a diverse and respectful environment where all individuals and employees were free from discrimination and harassment. Any conduct which threatened, intimidated or coerced another employee or service recipient at any time was prohibited. · Service Recipients had the right to be treated with courtesy and respect and to be free from bias and harassment regarding race, gender, age, disability, spirituality, and sexual orientation. The SP’s job description stated the SP’s responsibilities included, “Provides direct support or assistance in accordance with individual service or program plans; maintains healthy and professional relationships with individuals, and maintain confidentiality, respects the rights of persons being served.” Conclusion: A. Maltreatment: It was reported that on April 11, 2024, the SP yelled a profanity at the VA and called the VA "r-word." The VA and the HM each provided consistent information to this investigator and to the facility during the internal investigation that the SP used a profanity and called the VA a “r-word” on an unspecified date (likely April 11, 2024). The SP denied using the profanity and calling the VA a “r-word.” However, the SP also said s/he would not use “heinous” words while interacting with the vulnerable adults or anyone else, whereas the IR showed the SP had been provided corrective action from the facility on multiple dates due to verbal interactions with co-workers at the facility. Although the SP denied the allegations, given that the SP had reason to minimize his/her actions, that the VA and the HM provided consistent information, and that the SP had a history of verbal interactions with others that led to corrective actions from the facility, there was a preponderance of the evidence that the SP engaged in malicious treatment of the VA that a reasonable person would consider harassing or threatening, and which produced 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 was responsible for the care of the VA at the time of the incident and was trained on the Reporting of Maltreatment of Vulnerable Adults Act prior to the incident. 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 abuse for which the SP was responsible did not meet statutory criteria to be determined as recurring or serious because it was a single incident and did not result in a serious injury. Action Taken by Facility: The facility completed an internal review and determined that the policies and procedures were adequate, but not followed. The report was not similar to past events, and the facility took corrective action to ensure the safety of the individuals that received services. The SP was no longer employed 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.
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