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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: 1071027-H_CRS (Home and Community-Based Services-Community Residential Setting) 1070961-HCBS (Home and Community-Based Services) Investigator(s): Jason Pehler 651-431-4830 Suspected Maltreatment Reported: It was reported a staff person (SP) called a vulnerable adult (VA) derogatory name(s) including “retarded,” “bitch,” “baby,” and made additional comments targeting the VA’s sexual orientation and family. Videos of some parts of the alleged incident were sent to other persons via social media. (The words “retarded,” and “retard” will be referred to in this report as “the r-word.”) Date of Incident(s): June 4, 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 June 20, 2024; from documentation at the facility; and through five interviews conducted with the VA, a staff person (P1), a facility supervisor (P2), a community person (CP) and the SP. Facility documentation showed the VA wanted to be more independent and learn how to drive. The VA liked fishing, drawing, coloring, and playing card games. The VA enjoyed volunteering at religious events and going to the county fair each year. The VA was diagnosed with developmental disabilities, depression, anxiety, post-traumatic stress disorder, and attention-deficit hyperactivity disorder. The VA’s client specific documentation showed the VA struggled to regulate his/her emotions, and had a history of mental health symptoms which included exaggerating ailments to medical providers, and seeking emergency medical services rather than talking with staff persons. The VA also had a history of providing false information related to abuse. Staff persons were instructed to pay attention to their own tone and behavior towards the VA while redirecting the VA. Staff persons should discontinue redirection if the VA continued to escalate, and contact 9-1-1 for further assistance if needed. Staff persons should maintain visual contact of the VA if s/he left the facility. The facility completed an Internal Review which provided the following information: · On June 5, 2024, the facility received phone calls from multiple staff persons alleging that on June 4, 2024, the SP mocked the VA; made comments to the VA such as, “You're a bitch,” “You're a baby who goes to the ER for shitting their pants,” “Your mom is a crack whore,” “Just come out of the closet already we all know your gay and suck dick;” made gestures toward the VA; and called the VA the r-word. · The facility attempted to complete an interview with the SP, however the SP resigned as an employee. The SP denied having any videos of the VA. The VA’s progress notes provided the following information: · On June 4, 2024, at 3 p.m., the SP arrived at the facility and documented that the VA had just returned to the facility after leaving the facility. Once the previous staff person left the facility the VA left the facility again, but returned shortly thereafter. Upon returning the VA went into his/her bedroom, before leaving the facility again to walk to a hospital. The SP documented that while walking to the hospital the VA started “saying all types of things” to the SP which included: o The SP was going to hit the VA with a bat. o The VA was the r-word. o The VA “shits” him/herself. o The VA was a baby. o The SP did not care for the VA. o The SP wanted the VA to leave. · The VA was seen at the hospital, and later returned to the facility. Once back at the facility the VA started telling other staff persons, relatives, and law enforcement that the SP said the above statements to the VA. · A staff person working during the next shift documented at 10 p.m. that the VA said a “staff threaten(ed) to beat [the VA] and made fun of [the VA].” · At 8 a.m. on June 5, 2024, a staff person documented that the VA said the SP called the VA the r-word, and “treated [the VA] like shit last night.” The VA provided the following information: · The VA said that on an unspecified date, s/he left the facility and started walking to a hospital. The SP walked behind the VA and made multiple sexualized statements referring to the VA’s sexual orientation, including “fuck in the ass,” “suck a dick,” and something like the VA “shit” him/herself. The VA added that the SP called the VA the r-word and “stupid,” made comments about the VA’s mother being a “bitch,” and said, “Fuck your mom.” The VA declined to provide further explanation of additional statements the SP made towards the VA. · The VA said the interaction hurt the VA’s feelings and the SP used hurtful names. P1 provided the following information: · P1 was not working during the alleged incident, but the SP sent him/her multiple social media messages while the SP was working with the VA on June 4, 2024. P1 said the messages included the SP stating s/he was trying to make the VA mad, and the SP thought it was “funny.” · The SP sent P1 a self-facing social media video. In the video, P1 did not see the VA, but s/he recognized the VA’s voice in the video. During the video the SP argued with the VA and made comments about the VA to the effect of, “You shit your pants,” and, “You are a baby.” P1 added that the SP sent multiple social media videos, but P1 did not watch all of them. · P1 did not have any concerns with past interactions between the VA and SP. P2 provided the following information: · P2 was not present for the incident, but the SP did reach out to him/her during the incident. Thereafter, P2 received information from P1, and the CP regarding the SP’s interaction with the VA, including screenshots of a text message exchange. · Below are the statements from the SP from the screenshot text messages: o “Bro I called [the VA] out, calling [him/her] a bitch, a baby, calling [his/her] mom a crack head. All sorts of things.” o “[The VA] is crying [be]cause of me.” The CP provided the following information: · The CP said the SP sent text messages to him/her about the interaction the SP had with the VA. The CP confirmed the text messages included derogatory names and statements as stated above, and were directed towards the VA. · The CP said s/he was not aware of any similar prior incidents. The SP provided the following information: · The SP said the VA was a “chronic liar” and “hates me.” · The SP denied making the derogatory comments as stated above, but said s/he told the VA s/he was acting like a child. · The SP denied sending text messages and social media posts to any co-workers. P1, P2, 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 crisis intervention and de-escalation, the “Do’s and Don’ts of Social Media and Electronic Communication,” Positive Behavioral Supports, and instruction to treat people with “respect and dignity.” The SP’s job description stated the SP’s responsibilities included providing direct support or assistance in accordance with individual service or program plans, maintaining healthy and professional relationships with individuals, maintaining confidentiality, and respecting the rights of persons being served. Conclusion: A. Maltreatment: It was reported that on June 4, 2024, the SP called the VA the r-word and bitch, called the VA a baby, and made multiple additional derogatory comments directed towards the VA and his/her family. The SP denied the allegations. However, the VA provided consistent information to this investigator and to the facility during the internal investigation that the SP called the VA the r-word and used other derogatory language directed at the VA and the VA’s family. In addition, information from P1, P2, the CP, and the screenshot text messages sent by the SP were consistent with the information the VA provided. The VA said the SP’s conduct hurt his/her feelings, and the screenshot that the SP sent to P2 regarding the SP’s interaction with the VA stated, “The VA] is crying [be]cause of me.” Given the above, there was a preponderance of the evidence that the SP engaged in malicious oral language toward the VA that a reasonable person would consider disparaging, derogatory, and harassing, 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 at the facility. 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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