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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: 1116303-H_CRS (Home and Community-Based Services-Community Residential Setting) 1069786-HCBS (Home and Community-Based Services) Investigator(s): Jason Pehler 651-431-4830 Suspected Maltreatment Reported: It was reported a staff person (SP) kissed and made sexualized comments towards a vulnerable adult (VA). Date of Incident(s): Unknown dates, multiple incidents 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 (c); and subdivision 17, paragraph (b): Any sexual contact or penetration between a facility staff person or a person providing services in the facility and a resident, patient, or client of that facility. Sexual contact is defined by Minnesota Statutes, section 609.341, as the intentional touching of the intimate parts with sexual or aggressive intent. 'Intimate parts' includes the primary genital area, groin, inner thigh, buttocks, and breast. 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 site visits conducted on February 6 and 8, 2024; from documentation at the facility and/or law enforcement records; and through six interviews conducted with the VA, a facility staff person (P1), facility supervisors (P2-P3), the VA’s case manager (CM), and the SP. Facility documentation showed the VA was a creative, funny, and kind person. The VA enjoyed listening to music, dancing, playing video games, and crafting. The VA dreamed of living in his/her own apartment with a pet. The VA had a history of sexual abuse and struggled with his/her mental health symptoms. The VA was diagnosed with borderline personality disorder, bipolar disorder, anxiety, post-traumatic stress disorder, and attention deficit hyperactivity disorder. The VA was “uncomfortable” around persons of the SP’s gender, and was provided with 1:1 staffing 24/7. The facility was a two-story home, and the VA spent the majority of his/her time downstairs. The downstairs included the VA’s bedroom, a staff office, a common area living room, and a bathroom. Law Enforcement (LE) records provided the following information: · A staff person (P4) said there were concerns the SP engaged in “crossing boundaries” with the VA as the VA had the SP’s phone number, which was saved in the VA’s phone under the alias “Eddie,” and the VA been to the SP’s home and was able to provide a description of the SP’s home. The SP “instructed” the VA to delete text messages and social media messages they sent to each other. The VA said the SP told the VA s/he would date the VA if the SP did not work at the facility, and also told the VA, “[The VA’s] ass looks good in those pants,” “You have a very sexy body,” and, “I would not let you dress like that.” The SP also would not allow the VA to visit his/her mom, told the VA to spend time with the SP, and provided the VA with money around Christmas. · P4 said the SP acknowledged making comments about the VA’s body because the VA was “always down on [him/herself].” · P4 informed LE the VA kissed the SP, but there was no sexual contact that occurred. P4 believed the SP may have been engaging in “grooming” of the VA during the prior three to six months. · The SP refused to meet with facility administration regarding the alleged concerns, and the SP resigned from his/her position. · LE did not complete any further investigation and there was no pending criminal investigation. The VA provided the following information: · The VA said the SP and VA played a “game” in which the SP stuck out his/her tongue and the VA licked the SP’s tongue. The VA said this occurred on multiple occasions, and it seemed like the SP expected the licking to occur. The VA said that on one occasion the VA kissed the SP, and the SP “puckered” his/her lips. The VA added that on multiple occasions the SP gave the VA a hug, and the SP rubbed the VA’s lower back/buttocks area during the hugs. The VA denied any other sexual contact occurred between the VA and SP. · The VA communicated with the SP via text messages and social media messenger while the SP was not working, and the SP instructed the VA to delete all of their messages. The VA said the messages consisted of “friendly conversation,” and “trash talking” other staff persons. The SP’s phone number was saved under an alias in the VA’s phone. · The VA provided a screenshot of the SP’s name on the social media messenger, the SP’s correct home address, and the SP’s phone number. The VA said s/he went to the SP’s home with him/her because the SP had to let his/her dog out while the SP was working. · The VA said the SP made comments about the VA’s clothing, gave the VA money at Christmas, “force[d]” his/her religion on the VA, and pressured the VA to not spend time with his/her family. The VA said the SP’s behavior towards the VA felt like the SP was “grooming” the VA. The VA described the below interactions, which occurred over the course of the three months prior to the VA’s interview. The VA said there were no witnesses to the interactions, and on multiple occasions the SP told the VA s/he would get the SP fired due to his/her behavior. o The VA said s/he told the SP that the VA had a crush on the SP, and the SP later said the VA “looked like a hooker” because of the shirt the VA was wearing. The SP also made a comment that the VA had a “smoking hot body.” However, the SP did not make any other comments that the VA believed were sexualized or specific to the VA’s body. o The SP gave the VA a gift at Christmas, and the SP told the VA to not tell anyone about the gift. o The SP forced his/her religion on the VA, and told the VA they were going to pray. The SP grabbed the VA’s hands and told the VA to “bow” his/her head and to “close your eyes.” o The VA said the SP tried to manipulate the VA’s visits with his/her family members and “gaslit” the VA into feeling bad about spending time with a family member. o The VA said on the last day the SP worked at the facility, the SP looked at the VA in a way that “intimidated” him/her. The VA added s/he felt “scared” to go into the community after that because s/he did not want to see the SP. P1 said the VA told him/her about concerns with the SP, and the information P1 provided was consistent of that from LE records. P1 said s/he did not witness any physical contact between the VA and the SP. P2 provided information consistent with LE records and P1. In addition, P2 said the VA informed him/her about multiple instances of a “game” the SP played with the VA. The game included the SP sticking out his/her tongue, and the VA would lick the SP’s tongue. The VA told P2 s/he had licked the SP’s tongue three times, and on one occasion kissed the SP. The VA told P2 that the SP said if the facility had cameras that the SP “would be fired.” P3 was not aware of the above concerns, but said s/he had an interaction with the SP which caused some concerns. P3 was going to change the schedule and have the SP work with a different vulnerable adult, but the SP became “very upset” because s/he wanted to work with the VA. The SP told P3 thats/he “came here” (the facility) to work with the VA, and P3 felt “bombarded” by the SP’s interaction and request to work with the VA.
The CM said s/he did not have any concerns with the facility. The VA “advocated” for him/herself and was a “pretty accurate” reporter of information, but might “exaggerate” information. The SP provided the following information: · The SP denied “grooming” the VA, kissing the VA, or having the VA lick his/her tongue. The SP said there was no sexual contact between the VA and the SP, but added that s/he did hug the VA if the VA was having mental health symptoms and “was really bad off.” The SP described the hugs as a “normal hug” with his/her arms wrapped around the VA’s body. The SP denied touching the VA’s lower back or buttocks, and did not have any skin-to-skin contact with VA beyond providing cares to the VA if s/he engaged in self-injurious behaviors. The SP acknowledged that s/he did tell the VA the SP could get in trouble for hugging the VA. · The SP said s/he brought his/her dog to the facility and the dog liked the VA. The dog licked the VA’s face, and the SP stuck out his/her tongue while interacting with the dog, but it was not done for the VA to lick the SP’s tongue, although the SP said the VA stuck out his/her tongue and made a comment about licking the SP’s tongue. The SP denied there was ever any “game” where the VA tried to lick the SP’s tongue. · The SP acknowledged s/he gave the VA his/her phone number and exchanged text messages with the VA, as well as messaged with the VA via social media. The SP told the VA s/he should delete his/her phone number, but did not tell the VA to delete any of the messages that were exchanged. The SP was not sure why the VA saved the SP’s phone number under an alias. The SP said the messaging with the VA ended “months ago,” and the SP had since blocked the VA’s number. The SP said s/he no longer had access to the text messages and/or the social media messages, as they were “old.” · The SP confirmed s/he and the VA went to the SP’s house to let the SP’s dog out while the SP was working. The VA wanted to go into the SP’s home, however the SP had the VA stay in the doorway. · The SP said s/he made comments about the VA’s body after the VA called him/herself “fat.” The SP told the VA his/her “body looked fine,” and the SP said the comments were made “therapeutically” and not in a “sexual” manner. Additionally, the VA asked the SP if s/he would date the VA, and the SP told the VA that s/he was old enough to be the VA’s parent, but if s/he was near the VA’s age s/he would find the VA “attractive.” The SP believed if s/he had answered the VA’s question with a “No,” the VA would have engaged in self-injurious behavior. · The SP denied “refusing” to meet with the facility regarding the allegations, and said s/he chose to resign his/her employment due to the VA’s behaviors and the concerns that were brought forth. The SP said the day before the facility contacted him/her about the allegations, the VA was mad at the SP, and wanted to go to the hospital. Prior to the allegations the SP felt burned out from working with the VA, and resigned because s/he “just had enough” and the allegations were the “last straw.” The SP said resigning was not an “omission (sic) of guilt.” · The SP said s/he offered to pray with the VA because the VA was “super scared” and felt like there were “demons” and “shadow people” around him/her. The SP also encouraged the VA to contact his/her psychiatrist due to the feelings s/he was experiencing. · The SP said s/he gave the VA money at Christmas, but believed other staff persons had done the same. However, the SP was not able to provide any additional information related to whom those staff persons were, or how much money was given to the VA. Additionally, the SP said all of the information related to the gifts from other staff persons was information that the VA told him/her. P1-P3 and the SP were each trained on the 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: · Service Recipients Right training provided information related to staff responsibilities to protect the VAs rights. · Sexual Violence training provided strategies to minimize the risk of sexual violence, including concepts of healthy relationships, consent, and bodily autonomy of people with disabilities. The SP’s job description stated the SP’s performance standards included maintaining professional boundaries at all times, implementing best practice therapeutic methods to best serve the VA in his/her home, and interacting informally with the VA to facilitate socialization and appropriate behavior. Conclusion: A. Maltreatment: It was reported the SP kissed and made sexualized comments towards the VA. The VA provided consistent information to P1-P2 as well this investigator, that there were multiple incidents in which the SP touched the VA’s lower back/buttocks; the VA licked the SP’s tongue; the SP made comments about the VA’s body, clothing and music; the SP gave the VA money at Christmas; and the SP forced the VA to pray with him/her; and that the VA kissed the SP one time. The VA said the SP’s behavior towards him/her felt like “grooming,” and that the SP used intimidation and manipulation to control the VA’s visits with his/her family members. The CM said the VA was a “pretty accurate” reporter of information but might exaggerate. However, there were no direct witnesses to any of the alleged incident(s). Although the VA and SP each stated they exchanged text messages and social media messages, neither the VA nor the SP provided the DHS investigator with the messages, so the exact content of the messages was unknown. The SP denied any sexual contact with the VA, denied having the VA lick his/her tongue, denied kissing the VA, and said s/he hugged the VA in a “normal” manner when the VA was having mental health symptoms. The SP said the VA made comments about his/her own body, and the SP tried to make therapeutic statements that were not “sexual,” which included the SP stating the VA’s “body looked fine” and the SP would find the VA “attractive” if the VA was near the SP’s age. Additionally, the SP said s/he gave the VA a monetary gift at Christmas. Regarding alleged sexual abuse: Although the VA alleged that the SP touched his/her buttocks and that the SP’s actions felt like “grooming,” the SP denied touching the VA’s buttocks and stated that his/her intent towards the VA was neither sexual nor aggressive. Without additional information, there was not a preponderance of the evidence as to whether sexual abuse occurred. It was not determined whether sexual abuse occurred (any sexual contact or penetration between a facility staff person or a person providing services in the facility and a resident, patient, or client of that facility. Sexual contact is defined by Minnesota Statutes, section 609.341, as the intentional touching of the intimate parts with sexual or aggressive intent. 'Intimate parts' includes the primary genital area, groin, inner thigh, buttocks, and breast). Regarding alleged neglect: Information from both the VA and the SP was consistent that the SP hugged the VA despite acknowledging that s/he was not supposed to do so; provided his/her phone number to the VA and exchanged text and social media messages with the VA; made comments to the VA that the VA’s body “looked fine” and that s/he would find the VA attractive if s/he were closer in age to the VA; and gave the VA monetary gifts. Given the VA’s vulnerabilities, it was reasonable that the VA would continue to need supports to develop and maintain necessary life and social skills. The SP’s interactions with the VA likely hindered his/her ability to have a consistent understanding of the parameters of a therapeutic relationship which could interfere with other individuals’ attempts to provide therapeutic services to the VA, both now and in the future. Therefore, there was a preponderance of evidence the SP failed to maintain therapeutic boundaries and that the SP’s interactions with the VA were detrimental to the VA’s 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 on the Reporting of Maltreatment of Vulnerable Adults Act and the VA’s client specific programming. Given the above, 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 neglect for which the SP was responsible did not meet statutory criteria to be determined as recurring or serious because the SP’s pattern of behavior was considered a single incident of neglect, and did not result in an injury that required treatment by a physician. Action Taken by Facility: The facility completed an internal review and determined that the policies and procedures were adequate, but not followed. The facility took corrective action to ensure the safety of the individuals that received services including retraining staff persons on Reporting of Maltreatment of Vulnerable Adults Act. The report was not similar to a past events. 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.
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