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MALTREATMENT INVESTIGATION MEMORANDUM Minnesota Statutes, section 260E.01, paragraph (a), “The legislature hereby declares that the public policy of this state is to protect children whose health or welfare may be jeopardized through maltreatment.”
License Number and Program Type: 1036935-CRF (Children’s Residential Facility) Investigator(s): Gessner Rivas 651-431-3970 Suspected Maltreatment Reported: It was reported that a staff person (SP) brought a bag to work which contained two vapes, one of which contained tetrahydrocannabinol (THC). An alleged victim (AV) took the vapes from the bag and later reported feeling “weird;” the AV tested positive for THC. Date of Incident(s): September 17, 2023 Nature of Alleged Maltreatment Pursuant to Minnesota Statutes, section 260E.03, subdivision 15, paragraph (a), clauses (1) and (2): Failure by a person responsible for a child's care to supply a child with necessary food, clothing, shelter, health, medical, or other care required for the child's physical or mental health when reasonably able to do so. Failure to protect a child from conditions or actions that seriously endanger the child's physical or mental health when reasonably able to do so. Summary of Findings: Pertinent information was obtained during a site visit conducted on September 28, 2023; from documentation at the facility and through four interviews conducted with two facility staff persons (P1 and SP), the AV, and the AV’s guardian (G). According to the AV’s Individualized Treatment Plan, the AV was diagnosed with conduct disorder, generalized anxiety disorder, major depressive disorder, and attention-deficit disorder. At the time of the incident, the AV was 13 years old. The AV liked to play sports, such as baseball and football, and liked to read. The SP provided the following information: · On September 17, 2023, the SP carried a fanny pack into the facility in which the SP had two vape pens. The SP took off her/his fanny pack and placed it on a bench to play basketball with some residents. Afterwards, the SP noticed the zipper was open, so the SP checked and noticed the vape pens were missing. One vape contained nicotine and the other contained THC extract. · The SP asked other staff persons if anyone saw someone touch her/his fanny pack and residents were asked and pockets searched but the vapes were not found. The SP informed P1 but did not mention that one of the vapes had THC because s/he was worried about getting into trouble. · The SP was aware of the facility’s policy on smoking and tobacco which included vapes, however, the SP regularly brought his/her vape into the facility. · The SP was notified that s/he was “suspended,” and that the AV had taken the vapes and tested positive for THC. The SP was retrained on the policy and stated s/he no longer brings such items into the facility. Th AV provided the following information: · On an unspecified date the AV noticed that a vape had fallen out of the SP’s pocket, but the SP picked it up right away. On September 17, 2023, other residents were playing basketball, on the way to the bathroom, the AV noticed that the SP’s fanny pack had fallen off a bench; the AV took the vapes that were in the SP’s fanny pack. · The AV did not know one of the vapes had THC, but it smelled like marijuana. The AV had never tried marijuana before. The AV used the THC vape about three times before it was taken by staff persons. The AV said the THC made her/him feel “goofy” like when you “get up too fast and you feel dizzy.” P1, a supervisory staff person provided the following information: · The SP called P1 on Sunday September 17, 2023, and learned that the SP had lost two vapes within the facility but was not informed that one of the vapes contained THC. Residents were checked but the two vapes were not found that day. One day later another staff person saw the AV with one of the vapes; the AV turned it over but claimed s/he did not have the other one. The THC vape was still unaccounted for. P1 learned that the SP had been worried that the second vape had not been found because it contained THC. · Two days later P1 was informed that the bathroom smelled “minty,” and that the AV had just been in the bathroom. P1 talked with the AV again but s/he denied having the vape. The AV was taken to nursing where s/he was searched and the second vape was found hidden in the AV’s waistband. · A drug test was administered to the AV, who tested positive for THC. The AV stated s/he “had no idea but [s/he] took a hit, [s/he] felt kind of weird.” The AV also stated that “it was scary because [s/he] had never been high before.” The AV mentioned that s/he had used the THC vape pen for two days but did not share it with anyone else at the facility. · The AV also stated that s/he had shared the other vape pen with another resident, but that resident denied using it. The other resident was also tested for THC but was negative. · P1 noticed that the SP always carried a fanny pack. Staff persons have consistently been told that they cannot bring vapes into the building; they must leave vapes in their cars and can use them in designated areas. The G stated that s/he was aware of the incident involving the vape but did not know that one of the vapes contained THC. Prior to the incident, the G did not have any other concerns about the facility. The facility’s Smoking/Tobacco policy stated that “smoking or the use of tobacco or “tobacco-like” products is not permitted” in any facility. Tobacco-like products was defined to include any delivery systems such as e-cigarettes. Staff persons were allowed to use such products in designated outdoor smoking areas. Facility staff persons were to keep tobacco within their vehicle or the back office and not within residents’ access. Facility staff persons were prohibited from providing the tobacco products to residents. Minnesota Statute, section 609.685, stated in part that persons under the age of 21 cannot be sold, given, or otherwise furnished tobacco, tobacco-related devices, or electronic delivery devices. Facility records showed that the SP was trained on the Reporting of Maltreatment of Minors Act, the AV’s care plans, and the facility’s Smoking/Tobacco policy. Conclusion: A. Maltreatment: On September 17, 2023, against policy, the SP brought two vapes in a fanny pack into the facility, the SP set the fanny pack down to play basketball with some residents. The AV knew the SP carried vapes, as s/he had seen the SP with vapes before. The AV picked up the SP’s fanny pack and took the two vapes contained inside. When the SP picked up her/his fanny pack, s/he noticed the vapes were missing and notified other staff persons, including P1 but did not disclose that one of the vapes contained THC. That the SP was not allowed to bring vape pens into the facility but had regularly done so prior to the incident, the AV knew that the SP carried vapes so took them from the SP’s fanny pack and used them including the one which contained THC which made the AV sick. Later, the AV tested positive for THC. Given that the AV was able to obtain two vapes one which contained THC, an illegal substance for the AV, because the SP brought the vapes into the facility, and that the AV used the THC vape and tested positive for THC there was a preponderance of the evidence that there was a failure to provide the AV with necessary care and a failure protect the AV from conditions or actions that seriously endangered the AV’s physical or mental health when reasonable able to do so. It was determined that neglect occurred (failure by a person responsible for a child’s care to supply a child with necessary food, clothing, shelter, health, medical or other care required for the child’s physical or mental health when reasonably able to do so and failure to protect a child from conditions or actions that seriously endanger the child’s physical or mental health when reasonably able to do so). B. Responsibility pursuant to Minnesota Statutes, section 260E.30, subdivision 4, paragraph (a), clauses (1) and (2): When determining whether the facility or individual is the responsible party, or whether both the facility and the individual are responsible for determined maltreatment in a facility, the investigating agency shall consider at least the following mitigating factors: (1) whether the actions of the facility or the individual caregivers were according to, and followed the terms of, an erroneous physician order, prescription, individual care plan, or directive; however, this is not a mitigating factor when the facility or caregiver was responsible for the issuance of the erroneous order, prescription, individual care plan, or directive or knew or should have known of the errors and took no reasonable measures to correct the defect before administering care; (2) comparative responsibility between the facility, other caregivers, and requirements placed upon an employee, including the facility’s compliance with related regulatory standards and the adequacy of facility policies and procedures, facility training, an individual’s participation in the training, the caregiver’s supervision, and facility staffing levels and the scope of the individual employee’s authority and discretion; and (3) whether the facility or individual followed professional standards in exercising professional judgment. The SP was responsible for the care of the AV. The SP was trained on the facility’s Tobacco/Smoking policy and the Reporting of Maltreatment of Minors Act prior to the incident. The SP was responsible for maltreatment of the AV. 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 neglect 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 AV did not sustain an injury requiring the care of a physician. The SP was not disqualified from providing direct contact services. Pursuant to Minnesota Statutes, section 260E.35, subdivision 6, paragraph (c) all investigative data maintained in this report will be kept by the Department of Human Services for at least ten years after the date of the final entry in the report. Action Taken by Facility: The facility completed an Internal Review and determined that policies and procedures were adequate but not followed. The facility did not identify a need to retrain staff persons. However, the SP noted that s/he was retrained on 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. Certification: The information collection procedures followed in this investigation were pursuant to Minnesota Statutes, section 260E.30, subdivision 6, paragraph (c). All individuals that are subjects of data in this investigation have the right to obtain private data on themselves which was collected, created, or maintained by the Department of Human Services.
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