AMENDED MALTREATMENT INVESTIGATION MEMORANDUM
Office of Inspector General, Licensing Division
Public Information

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.”

NOTICE: This Maltreatment Investigation Memorandum supersedes a version dated June 7, 2024, which must be destroyed. As a result of an administrative reconsideration, the original determination that a staff person (SP) was responsible for neglect of two vulnerable adults (VA1 and VA2) was overturned. The SP remained responsible for emotional abuse of VA1 and VA2; however, the conduct was determined to be a pattern of behavior, which was not recurring or cause of serious injury. The SP’s disqualification was rescinded. For additional information, see Administrative Reconsideration section of this document.

License Number and Program Type:

1070869-H_CRS (Home and Community-Based Services-Community Residential Setting)
1070806-HCBS (Home and Community-Based Services)

Investigator(s):

Beth Virden
Minnesota Department of Human Services
Office of Inspector General
Licensing Division
PO Box 64242
Saint Paul, Minnesota 55164-0242
651-431-6572

beth.virden@state.mn.us

Suspected Maltreatment Reported:

It was reported that a staff person (SP) declined to provide cares for two vulnerable adults (VA1 and VA2) and swore when speaking to VA1 and VA2.

Date of Incident(s): January 30 and 31, 2024; other days not specified.

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); and subdivision 17, paragraph (a):

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.

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 a site visit conducted on April 4, 2024; from documentation at the facility; and through interviews conducted with VA1, VA2, VA2’s case manager (CM), a facility staff person (SP), and two supervisory staff persons (P1 and P2). Information was also provided by an administrative staff person (P4). Another staff person (P3) was contacted and stated that s/he did not have additional information to add or change with his/her initial statements that s/he provided for the facility’s internal review. P3’s information from the internal review was included in this report.

VA1’s support plan and support plan addendum provided the following information:

· VA1’s diagnoses included traumatic brain injury and hemiplegia (paralysis on one side of the body).

· VA1 used an electric wheelchair to move around independently. Staff persons physically assisted VA1 with all transfers into and out of his/her wheelchair, bed, etc. When VA1 needed to use the bathroom, staff used a transfer belt to assist him/her onto the toilet; the VA assisted this process using a stander.

· VA1 had a history of making disparaging “racial and ethnic comments” and calling people names. Staff persons addressed this behavior using redirection and physical separation and documented the incidents.

· “[VA1] has added details to reports to make incidents appear worse than they are when [s/he] is upset with staff. [VA1] has a history of targeting staff that [s/he] does not like. [VA1] has verbally threatened to report false allegations against staff [s/he] does not like.” Staff were supposed to report all suspected or known maltreatment on VA1’s behalf.

· VA1 was not subject to guardianship.

VA2’s support plan and support plan addendum provided the following information:

· VA2’s diagnoses included traumatic brain injury and quadriplegia.

· “[VA2] is able to direct staff in [his/her] cares for each of [his/her] medical conditions.”

· VA2 used an electric wheelchair for mobility. Staff persons physically assisted VA2 with all transfers using a “pivot transfer.”

· VA2 had a history of verbal aggression, which might provoke a response from others. “[VA2] has physical limitations that may prevent [him/her] from removing [him/herself] from an abusive situation.” Staff persons intervened and reported suspected or known abuse on VA2’s behalf.

· VA2 was not subject to guardianship.

VA1 and VA2 lived together at the facility with two other housemates. The facility was a single-family home.

The facility provided at least one staff person for care and supervision during daytime hours and used alternate overnight supervision​ technology during the night. As part of the alternate overnight supervision technology, the facility had cameras mounted in common areas, which recorded video and audio 24 hours a day.

VA1 provided the following information:

· There were days the SP’s conduct was “alright” and other days, the SP was “fucking nasty.” In a typical week, the SP’s conduct was “more bad than good.”

· The SP stayed in the kitchen and yelled at VA1, “Shut the fuck up. I don’t want to hear what you have to say. Shut the fuck up. I don’t care what you have to say.” The SP was “just very mean and argumentative.” VA1 saw P3 try to intervene, and the SP responded to P3, “Shut the fuck up.”

· The SP “picked and chose” when to help VA1 out of bed each morning. “[S/he] would make excuses,” like another resident needed to go to work or an appointment. VA1 believed the SP “didn’t want to” help him/her out of bed and would “wait until the last minute” to help with VA1’s cares. Specifically, VA1 needed help to use the toilet. The SP often waited to address VA1 until after VA1 had experienced incontinence due to the delay in help.

· The SP’s conduct caused VA1 “stress” and want to move out of the house. “It was terrible.”

· VA1 did not listen to what the SP said to VA2. “I had enough issues of my own.”

· VA1 was not aware of the SP calling anyone disparaging names.

VA2 provided the following information:

· “[The SP’s] natural speaking voice was loud.” “At least 50% of the day, [the SP] gets angry. Every single day. Whether [s/he’s] given a reason or not. [S/he’ll] find a reason to, like, especially with [VA1].” The SP was a “rageaholic.”

· Living at the facility was “horrendous. Absolutely horrendous. Horrible. Horrible. Horrible.”

· On January 30, 2024, VA2 experienced a seizure, which staff provided care for without incident. The next day, January 31, 2024, VA2 wanted to stay near staff so that s/he could be observed in case another seizure happened. VA2 kept his/her bedroom door open. However, if s/he entered the hallway outside of his/her room, the SP would “shout,” “Do you need something?” When VA2 responded, “No,” the SP said, “Good.”

· VA2 had a digital recorder, which was voice-activated. On January 31, 2024, around 6 a.m., VA2 turned it on with the intention of recording something else and then s/he forgot to turn it off. “So as soon as [the SP] came in and started [his/her] ranting that turned (the digital recorder) back on and it didn’t shut off.” VA2 said that the SP “snapped at me” about pickles. VA2 attempted to provide a copy of this recording for this investigation but was unable to find it.

· VA2 later approached the SP to discuss what happened. The SP told VA2, “Go to your room and don’t come out.” When VA2 said, “No,” the SP responded, “You’re fucking crazy.”

The CM said that VA2 told him/her about the SP’s conduct, which included statements like, “Stop talking to me.” VA2 told the CM that s/he had a recording of the SP’s statements but VA2 also indicated being “uncomfortable sharing it with anyone else at that time.” The CM had not heard the recording.

P1, P2, P4, and P3 via the facility’s internal review and facility documentation provided the following information:

· The SP worked for the license holder on and off since 2017, and specifically at the facility since 2022.

· The SP’s employment documentation included a December 2023 counseling report regarding the SP’s conduct toward VA1 that stated the following:

On or around December 13, 2023, P2 was notified of a concern with the SP’s conduct.

“[The SP] had been using a harsh tone of voice when [s/he’s] communicating with [VA1]. It was also reported by [VA1] that [the SP] has been using a demeaning word such as ‘shut the fuck up and shhh’ towards [VA1]. [The SP] continues to struggle to establish a positive relationship with [VA1].”

“This is a violation of [the facility’s policies]: All employees are expected to conduct themselves in a professional manner at all times while engaged in activities that have an actual or potential impact on [the facility’s] mission.”

The SP was instructed to improve his/her conduct and standards in the future. The SP was told to treat the housemates with “respect and dignity, ensuring [s/he] is using a calm and supportive tone of voice;” “refrain from having a power struggle with [housemates];” and “ensure [s/he’s] using a person-centered approach when dealing with conflict and valid[ate] their feelings.”

On December 15, 2023, the SP signed acknowledging receipt of the counseling report.

· On February 2, 2024, VA2 told P2 that the SP said things to him/her, like, “Stop talking to me. Go to your room. Don’t expect me to do shit for you.” This prompted P2 to review the facility’s camera footage for January 30, 2024. The camera angle showed the living room, kitchen, and part of the hallway leading to the bedrooms. The audio was “hard to hear.” “I could hear [the SP] say, ‘I’m not dealing with your shit today. Call 9-1-1. Don’t ask me to do shit.’” VA1 and VA2 were in the vicinity. P2 later asked VA2 about this incident. VA2 said, “I’m not dealing with your shit today” was directed at VA1, and “Don’t ask me to do shit,” was directed at VA2.

· P4 said that the camera footage was “hard to hear.” P4 saw the SP “waving [his/her] arms around” while talking to VA1 and VA2.

· The facility’s internal review included the following description of the camera footage:

In the video [the SP] can be observed pacing, appearing agitated and raising [his/her] voice. [The SP] is in the common area of the home and hallway and the individuals could not be seen on camera. However, [the SP] can be heard using a rai[s]ed voice … Statements included “stop talking to me” and “go to your room.” [The SP] can also be heard saying “I am not going to do your cares, call 911.” At other times the words were not distinguishable with the video’s audio, but [the SP’s] voice continues to be raised and angry in tone. This happens over about a half hour period between about 12:45 pm and 1:15 pm.

· The camera footage was provided for this investigation and was timestamped January 30, 2024. The audio quality was poor and difficult to understand. VA1’s wheelchair battery was not charged or needed charging. VA1 was in the hallway off camera. The SP was in the kitchen and told VA1 that s/he could not push VA1’s electric wheelchair because it was not a manual wheelchair. VA2, who was also in the hallway on and off camera, asked if the wheelchair could be charged in the staff office. The SP responded that VA1 would then be stuck in the office all day. The SP’s voice appeared raised and at one point, the SP said, “Go in your room, go in your room … Yea yea yea, please stop talking to me … Call 9-1-1.”

· P3 said that VA2 told him/her about an incident involving a jar of pickles that occurred on January 31, 2024. VA2 had previously asked the SP to buy him/her a jar of pickles and gave $20 for this purpose. The SP took the $20 but did not deliver the jar(s) and/or return any money. VA2 did not want P3 to ask the SP about this because, according to VA2, the SP “would get mad and yell at [me] about it.” P3 did ask the SP without VA2 present. “[The SP] got very upset and said that [VA2] was a ‘fake ass bitch.’” The SP then immediately went to VA2’s bedroom where “[P3] observed that [the SP] yelled at [VA2].” The SP then left the house but returned shortly after with a $20 bill for VA2. The SP told VA2, “I don’t want to hear anything from you. Go to your room and close the door.” According to P3, the SP “slammed the office door in [VA2’s] face.” P3 told the SP to stop yelling and went to apologize to VA2. “[P3] … didn’t think that [the SP] had a right to talk to anyone like that.”

· Also on January 31, 2024, P3 heard the SP “yelling and shouting and calling names” at VA1. P3 heard the SP say, “[VA1’s first name], shut your mouth … I don’t want to hear anything from you.” [Note: The incidents on January 30 and 31, 2024, were initially reported as both occurring on January 31, 2024; however, the camera footage was timestamped January 30, 2024, whereas all documentation for the incident as described by P3 was dated January 31, 2024. It was not clear if these were incorrectly dated and/or the same incident.]

· P2 said that it was known VA1 “goes below the belt” in trying to provoke a reaction from staff. The SP should have walked away and/or ignored the comments.

· P3 added that s/he witnessed more than one time when the SP declined to help VA1 to the toilet. When this happened, VA1 sometimes asked P3 for help or called a supervisory staff person.

· P1 said that staff were responsible for helping VA1 (and VA2) get onto the toilet, clean as necessary, and get off of the toilet. VA1 and VA2 each individually told P1 that the SP refused to help them. When P1 asked the SP about it, “[The SP] did state that [s/he] refused to do their cares (on January 31, 2024).”

The SP provided the following information:

· VA1 lived at the facility for many years with two housemates and, “They all got along.” VA2 moved in around late 2023, and the “atmosphere changed” in the house.

· VA1 had a history of using “racial slurs” and being “a difficult individual with every staff.” “I was the only staff that [VA1] got along with.” “I never took it personal until once [VA2] got there.” Once VA2 arrived, VA1 was “jealous” and believed VA2 got “special attention.” VA1 and VA2 seemed to “fight for [the SP’s] attention” and would be “attacking [the SP] all day long.” If the SP was talking to VA1, VA2 would be “screaming my name.”

· The SP repeatedly told P1 and P2 that s/he needed help. “I kept telling management about [VA2 and VA1].”

· During this same time, the facility was understaffed. The SP was working “doubles (shifts) nonstop.” The SP provided numerous text messages that were exchanged with P1 or P2 regarding working additional shifts. The texts sometimes were the day of, asking the SP to stay for another eight-hour shift and the SP (all but once in the texts provided) agreed to stay. Also in these texts, the SP told P1 and P2 about VA1’s and VA2’s conduct. The SP repeatedly asked for help with VA1 and VA2 or said that s/he was “tired” and needed “a break.” “I kept reaching out … because it didn’t add up day by day all that staff was going through with little to none [sic] interventions.” P1 or P2 would “thank” the SP for his/her work and offer to buy the SP lunch. During one text thread, P2 suggested, “Have [P3] deal with [VA1] and ignore [him/her]. Don’t let [VA1] take you there.”

· Also, around this time, the SP’s family member was sick and entering end of life cares. “It was a rough time.” When his/her family member passed away, “I was working doubles nonstop. They came to me, ‘Do you mind working doubles until we get another staff for the p.m. shift?” “I was working doubles like crazy. I barely had time off.” The SP was not offered any grievance leave following the death of his/her family member. “They kept me on the schedule. I’m really tired.”

· The SP explained the staffing shortage. “No one wanted to work in the house with [VA2 and VA1]. [VA2] made it hard.” VA2 was not happy with his/her level of care. “There was something wrong every day.” “[VA2] was always upset.” “Everyone was scared to work with [him/her] … Staff felt like they were walking on eggshells with [VA2]. Even the p.m. staff would find someone else to work with [VA2].” Staff were keeping “conversations (with VA2) at a minimum, short interactions.”

· VA2 repeatedly reached out to P1 and P2 with complaints about the staff and the overall care. However, according to the SP, P1 and P2 “were ignoring [VA2].” “I was the only one paying attention to [VA2] in the house.”

· The SP provided a screenshot of a text message dated December 17, 2023, at 12:27 p.m. between the SP and P2. VA2 had an unidentified “complaint about the food.” The SP wrote, “[S/he] is asking can [s/he] call you.. [s/he] being difficult,” After P2 confirmed this was regarding VA2, s/he responded, “No thank you, I’m drained today”. The SP then responded, “I feel that….” Another text message from January 3, 2024, no timestamp, was from P2 and said, “Who’s (working) in [the facility] right now? [VA1] keeps blowing me up.” [Note: The SP provided around 100 text messages, and these were the sole ones that included a response from P2 (or P1) regarding their personal contact with VA1 and VA2.]

· The SP felt like s/he “couldn’t make [VA1] happy without impacting [VA2]. And back and forth. It was a tug of war between the two.” The SP was “crying almost every day” and felt “overworked” and dealing with VA1’s and VA2’s “fights every day.” P1 and P2 told the SP to reach out anytime; and the SP did, “every day.”

· More than once, a housemate forgot to add VA2’s desired foods to the grocery list, which was upsetting to VA2. The SP “felt bad” for VA2 and tried to step in to help. The SP was headed to the grocery store for his/her personal shopping and offered to pick something up for VA2. VA2 gave the SP $20 to buy two jars of pickles. The SP agreed to do so on his/her break that day. VA1 “got mad at me for consoling” VA2.

· The SP bought the two jars of pickles but forgot to immediately give them to VA2 and ended up bringing the bag of groceries to the SP’s house that evening; all other items in the bag belonged to the SP. The next day, the SP again forgot the pickles but called a family member who delivered the pickles to the facility. The SP gave one jar to VA2 and put the other jar in the refrigerator.

· On January 31, 2024, the SP arrived to work with P3. Right away, VA1 was upset that his/her wheelchair had not charged overnight and at that point, was refusing to take the time to charge it. VA2 was upset with the overnight staff for other reasons. The SP helped to negotiate both of their concerns.

· A short time later, P3 approached and said, “[VA2] said you stole from [him/her].” This was regarding the two jars of pickles. The SP forgot to give VA2 the change for the $20. The SP went into VA2’s bedroom and told him/her that s/he forgot but that s/he did not steal it. “I was trying to be there for [VA2] … I lost my cool. I told [VA2], ‘You are attacking me.’” “I was very upset.” The SP told VA2, “Please don’t ask me to do anything out of my job description,” (e.g., buying jars of pickles on the SP’s break).

· The SP left VA2’s room and called P2 who told the SP to “calm down.” The SP told P2, “I need a break … I’m really breaking down … We need help.” The house always had open positions and it was like P1 and P2 “didn’t care [because] they weren’t facing it.” “Staff were fending for ourselves.”

· In order to calm, the SP sat in an office for a period before returning to the house. However, upon arriving, VA1’s wheelchair was stuck in the doorway because the battery had died. VA1 started yelling at the SP for this and making “racial slurs.” VA2 came out of his/her bedroom and told the SP to get VA1’s “fucking (wheelchair) charger.” “They were both attacking me.” It was during this time, the SP told VA1 and VA2 to not ask for anything from him/her. The SP said that s/he only made these types of statements to VA1 and VA2 on this day and it was not a recurring thing.

· The SP also said that s/he did not refuse to help VA1 and/or VA2 use the toilet. Often, the SP was the sole staff person working with VA1, VA2, and two other housemates, who all had schedules and needed cares. The SP told the housemates to have patience, but VA1 and VA2 would repeatedly call for help. VA2 requested that the SP help him/her in the shower and would not ask other staff. At times, VA2’s showers took three hours. VA1 would get upset and make comments about the SP’s family member who died and about the SP’s child.

· VA2 told the CM to not talk to staff unless VA2 was present. The facility tried to move VA2 to a different house, but this was difficult without the CM’s input.

The facility’s Policy and Procedure Regarding Employee Professionalism and Conflicts of Interest stated the following:

· All employees are expected to conduct themselves in a professional manner at all times while engaged in activities that have an actual or potential impact on Dungarvin’s mission.

· All employees are expected to treat the housemates with dignity and respect.

· For employees performing direct care services, focus activities on the needs of the housemates at all times.

· Employees may not make comments or communicate about housemates in a manner that is vulgar, obscene, threatening, intimidating, harassing, libelous, or discriminatory on any basis protected under federal, state, or local laws, regulations, or ordinances. Those communications are disrespectful and unprofessional and will not be tolerated.

Facility documentation stated that the SP, P1, and P3 received training on VA1’s and VA2’s support plans and support plan addendums, the facility’s policies and procedures, and the Reporting of Maltreatment of Vulnerable Adults Act. P2 and P4 were in administrative roles and not required to receive the same training.

Minnesota Rules and/or Statutes:

Minnesota Statutes section 245D.04, subdivision 3, paragraph (a), clause (6), states, in relevant part, that a person's protection-related rights include the right to be treated with courtesy and respect.

Conclusion:

A. Maltreatment:

VA1 and VA2 each provided information that the SP said things to them, like, “Shut the fuck up … Go to your room and don’t come out … You’re fucking crazy … I don’t want to hear what you have to say … I don’t care what you have to say.” VA2 called the SP a “rageaholic.” VA2 told the CM that the SP said things, like “Stop talking to me.” P3 also heard the SP yelling, slamming doors, and saying things to VA1 and VA2, like “I don’t want to hear anything from you. Go to your room and close the door … shut your mouth.” P1 and P2 each watched camera footage, in which they described seeing the SP waving his/her arms around and/or making statements, like “stop talking to me … go to your room … I am not going to do your cares, call 911.” Camera footage corroborated P1’s and P2’s observations.

In addition, VA1 and VA2 each told this investigator and P1 that the SP refused to help with their cares more than once. P3 also witnessed this occurring more than once.

The SP said that s/he was overworked and “tired” working double shifts “every day.” The facility was understaffed, and the SP was coping with the death of a family member. VA1 and VA2 were “fighting … every day” for the SP’s attention and no one else wanted to work at the facility. “I kept reaching out (to P1 and P2) … because it didn’t add up day by day all that staff was going through with little to none [sic] interventions.” P1 or P2 would “thank” the SP for his/her work and offer to buy the SP lunch. During one text thread, P2 suggested, “Have [P3] deal with [VA1] and ignore [him/her]. Don’t let [VA1] take you there.” According to the SP, P1 and P2 were “ignoring” VA2’s texts and phone calls. The SP told VA1 and VA2 to not ask for anything outside of his/her job duties.

Although the SP’s statements about his/her workload and lack of help to handle the ongoing conflict between VA1 and VA2 were concerning it did not preclude the SP from treating VA1 and VA2 with courtesy and respect; VA1, VA2, P1, P2, P3, and P4 each had information that the SP’s conduct included derogatory language toward and refusal to help with cares for VA1 and VA2.

The SP’s conduct was inconsistent with the standards of a professional caregiver in a facility licensed by the Department of Human Services and a violation of Minnesota Statutes section 245D.04, subdivision 3, paragraph (a), clause (6). The SP’s conduct occurred more than once on more than one day. VA1 and VA2 each used a wheelchair and were unable to complete all tasks independently. VA1 and VA2 relied on the SP’s care and yet the SP refused to help; the SP’s conduct caused VA1 to be “stressed” and want to move; and VA2 felt like his/her living situation was “horrendous. Absolutely horrendous. Horrible. Horrible. Horrible.” Therefore, there was a preponderance of the evidence that the SP’s conduct included repeated oral language and treatment that would be considered by a reasonable person to be disparaging, derogatory, humiliating, harassing, or threatening; and that the SP’s conduct included an omission of care, which was reasonable and necessary to maintain VA1’s and/or VA2’s physical or mental health or safety.

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).

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 responsible for the care and supervision of VA1 and VA2. The SP received training on VA1’s and VA2’s support plans and support plan addendums, the facility’s policies and procedures, and the Reporting of Maltreatment of Vulnerable Adults Act

The SP was responsible for maltreatment of VA1 and VA2.

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 emotional abuse and neglect for which the SP was responsible was “recurring” but not serious. The SP was responsible for the emotional abuse and neglect of two vulnerable adults and there was no information VA1 and/or VA2 sustained a serious injury, which reasonably required the care of a physician whether or not the care of a physician was sought.

The SP was disqualified from providing direct contact services.

Action Taken by Facility:

The facility completed an internal review and determined that policies and procedures were adequate but not followed. VA2 moved to a different house and the SP was no longer employed.

Action Taken by Department of Human Services, Office of Inspector General:

The SP was disqualified from a position allowing direct contact with, or access to, persons receiving services from programs, organizations, and/or agencies that are required to have individuals complete a background study by the Department of Human Services as listed in Minnesota Statutes, section 245C.03. The determination that the SP was responsible for maltreatment and the disqualification of the SP are each subject to appeal.

On June 7, 2024, the facility was issued a Correction Order for the violation outlined in this report.

Administrative Reconsideration:

The disposition of the investigation is amended from that the SP was responsible for substantiated maltreatment of VA1 and VA2 by emotional abuse and neglect, to that the SP was responsible for substantiated maltreatment of VA1 and VA2 by emotional abuse only. The neglect determination in the original disposition is amended to be inconclusive. The disposition is further amended to conclude that the substantiated maltreatment by emotional abuse is not “recurring,” as that term is defined under applicable statute. As a result, the SP is not disqualified from providing direct contact services. To the extent that the language in the Administrative Reconsideration conflicts with the language in the remaining part of the Amended Investigative Memorandum, the language in the Administrative Reconsideration controls. The disposition was amended based on the following:

Amended Summary of Findings:

The following are amendments to the “Summary of Findings” of the original Investigative Memorandum. Any deletions are struck out and amendments shown in bolded and underlined text.

- VA1 provided the following information:

  [ . . . ]

· The SP “picked and chose” when to help VA1 out of bed each morning. “[S/he] would make excuses,” like another resident needed to go to work or an appointment. VA1 believed the SP “didn’t want to” help him/her out of bed and would “wait until the last minute” to help with VA1’s cares. Specifically, VA1 needed help to use the toilet. The SP often waited to address VA1 until after VA1 had experienced incontinence due to the delay in help. The Facility’s internal review document provided the following information. According to P1, there was a time when another staff person reported the SP for not assisting VA1 with toileting. P1 continued, “that day [the SP] had to go home at noon due to childcare so [s/he] didn’t help [VA1]. [P1] arranged for someone to do that.” P2 stated that s/he was not aware of concerns about the SP not helping VA1 with toileting, and s/he did not have concerns about P1 failing to report such omissions.

Amended Conclusion:

A. Maltreatment:

Emotional abuse—Following an administrative reconsideration of the disposition, the determination that the SP maltreated VA1 and VA2 by emotional abuse is affirmed. VA2 and P3 provided consistent information that, on or around January 30, 2024, the SP was informed about some money possibly owed to VA2, and the SP reacted with an outburst of anger at VA2, calling VA2 names like “fucking crazy” and “fake-ass bitch,” and telling VA2 to go back to his/her room and not come out. On the same day, when VA1’s wheelchair stopped functioning, the SP was heard on camera dismissing VA1 with comments like “yeah, yeah, yeah, please stop talking to me . . . call 9-1-1.” The SP admitted that, on the day in question, s/he “lost [his/her] cool” at VA2 over what s/he perceived as insinuations of financial dishonesty, and also felt “disrespected” and “attacked” by both VA1 and VA2 over the wheelchair situation. P2, to whom the SP reported later in the day, described SP as being in an emotionally heightened state when complaining about VA1 and VA2.

Moreover, VA1 and VA2, in separate statements, characterized the SP’s general attitude and demeanor at work as volatile, specifically that s/he was “fucking nasty” on some days, and “angry at least 50 percent of the day.” VA2 indicated that the SP’s anger was usually directed at VA1, who has a history of—supported by VA2 and other staff persons’ accounts—targeting staff persons, threatening to report staff persons to “get [their] license pulled,” and making disparaging and “below the belt” comments about a person’s race and/or family.

Accordingly, there is preponderant evidence that, on or around January 30, 2024, and on other occasions, the SP engaged in non-accidental and non-therapeutic conduct towards VA1 and VA2 that would be considered by a reasonable person to be disparaging, derogatory, humiliating, harassing, or threatening. This conclusion is supported by: (1) detailed and corroborated eye-witness accounts of the SP’s angry reaction to VA2 regarding the change situation; (2) the video footage on the same day showing the SP harshly dismissing VA1 while VA1 was experiencing issues with his/her wheelchair; and (3) the more general but credible description of VA1 and the SP’s day-to-day interactions as mutually hostile. It is true that multiple individuals described VA1 as a challenging client, with a tendency to verbally provoke. Nonetheless, considering VA1’s known conditions and history, and the SP’s training on this topic, it was reasonable to expect the SP to address VA1’s behaviors in a therapeutic manner, without “rage” or yelling. In sum, DHS correctly determined that, the SP was responsible for maltreatment of VA1 and VA2 by emotional abuse, under Minnesota Statutes, section 626.5572, subdivision 2, paragraph (b), clause (2),

Neglect—Following an administrative reconsideration of the disposition, the determination that the SP maltreated VA1 and VA2 by neglect is amended to “inconclusive.” As part of the original disposition, DHS found that the SP refused to assist VA1 and VA2 with the cares they required (such as toileting), and consequently determined that the SP neglected VA1 and VA2. However, another review of the evidence showed that, where there was one known occasion of the SP not helping VA1 with toileting, there was also an explanation that the SP could not assist that day due to having to leave work early. And this explanation was supported by the Facility’s internal review document. Whether there were other, repeated instances of the SP not helping VA1 with toileting, this review could not satisfactorily determine from the rest of the record.

Furthermore, regarding the reports that, on or around January 30, 2024, the SP told VA1 and VA2 that s/he would not help with their cares and that they should stop talking to him/her, while such statements are inconsistent with the standards placed upon a professional caregiver in a licensed facility setting, the record did not substantiate whether those statements were actually accompanied by the SP’s omissions in care and assistance.

Based on the reasons provided above, the determination that the SP maltreated VA1 and VA2 by neglect, as that term is defined in section 626.5572, subdivision 17, paragraph (b), is amended to “inconclusive.”

C. Recurring and/or Serious Maltreatment:

The original disposition concluded that the maltreatment attributable to the SP was non-serious, but recurring. The conclusion for the maltreatment being non-serious remains unchanged. Following an administrative reconsideration, however, the “recurring” designation of the substantiated maltreatment is rescinded.

Under Minnesota Statutes, section 245C.02, subdivision 16, “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. First, as explained above, the neglect determination against the SP is amended to “inconclusive.” Next, although the SP likely engaged in more than one emotionally abusive treatment of or exchanges with the VAs, other than the events on or around January 30, 2024, it could not be determined when the other occasions happened and the specific details of those occasions. Under these circumstances, the SP’s conduct towards VA1 and VA2 is more appropriately viewed as a pattern of emotionally abusive behavior, which is considered as a single incident of maltreatment, rather than “recurring” incidents of maltreatment as defined under statute.

Based on the above, the determination that the SP was responsible for “recurring” maltreatment of VA1 and VA2 is rescinded. In turn, the SP’s disqualification, which was based on the “recurring” designation, is also rescinded.

Amended Action Taken by Department of Human Services, Office of Inspector General:

The SP was notified that s/he is responsible for substantiated maltreatment of VA1 and VA2 by emotional abuse, but no longer responsible for neglect. The SP was notified that the substantiated maltreatment for emotional abuse does not meet the statutory criteria to be deemed as “recurring,” and therefore s/he is no longer disqualified from providing direct care services as a result of the maltreatment determination. The SP was also 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 meet the criteria for “recurring” and will result in his/her disqualification. The determination that the SP is responsible for maltreatment by emotional abuse is subject to appeal.

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