|
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: 1111833-HCBS (Home and Community-Based Services) Investigator(s): Carla Harvieux 651-431-6616 Suspected Maltreatment Reported: It was reported that an alleged victim (AV) who received services at his/her residence (Facility1), was upset and had aggressive behavior while visiting another facility (Facility2). A staff person (SP) held the AV to the floor and punched the AV’s stomach, which left a red mark, and a second staff person (P1) periodically held the AV’s legs when s/he was on the floor. Two of Facility2’s staff persons (S1 and S2) saw some of the incident. Date of Incident(s): August 18, 2024 Nature of Alleged Maltreatment Pursuant to Minnesota Statutes, section 260E.03, subdivision 15, paragraph (a), clauses (1) and (2); subdivision 18, paragraph (a); and subdivision 23, paragraph (a): 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. "Physical abuse" means any physical injury, mental injury, or threatened injury, inflicted by a person responsible for the child's care on a child other than by accidental means. "Threatened injury" means a statement, overt act, condition, or status that represents a substantial risk of physical or sexual abuse or mental injury. Summary of Findings: Pertinent information was obtained during a site visit conducted on August 28, 2024; from documentation at the facility; and through interviews conducted with facility staff persons (P2 and the SP), the AV’s guardian (G), and S1. Attempts to contact P1 were unsuccessful and S2 was not interviewed for this report. This investigator met the AV, but his/her ability to verbally communicate was limited. The AV had a family member (FM) who resided at Facility2, and the AV was visiting the FM when the incident occurred. Facility2 had a video/audio recording system which recorded the incident. A copy of the recording was obtained by this investigator, and it was summarized below. Faciltiy2 was a licensed facility and where the incident occurred however the AV’s care was the responsibility of Facility1 and staff persons who worked there. Therefore, Facility1 was the focus of this report. Facility documentation showed that the AV was 17 years old when the incident occurred and was diagnosed with an intellectual disability and autism spectrum disorder. The AV had two to one supervision at Facility1 and in the community and had a history of engaging in aggressive behavior including pushing, hitting, pinching, grabbing, scratching, biting, or kicking others, pulling their hair, or throwing items at others according to his/her Behavior Plan. When the AV was upset, staff persons were to verbally redirect him/her to an activity that s/he enjoyed. To keep the AV calm, it was recommended that the AV have more access to his/her electronic devices and more free time with fewer chores, and that staff persons frequently praise the AV. The AV had unlimited access to his/her fidget toys and enjoyed interacting with them. Staff persons were to ensure that the AV had at least one preferred activity each day, which might include going for a walk, going swimming, visiting his/her family members, or engaging in another community activity of his/her choosing. Change in routine was difficult for the AV and s/he required substantial support from staff persons to have safe social interactions. The AV was vulnerable to all forms of maltreatment and was to have constant close supervision. The AV liked bouncing and listening to music. Interviews with this investigator, facility documentation, the recording of the incident, and the facility’s Internal Review, provided the following: · S1 stated that on August 18, 2024, the AV had physically aggressive behavior at Facility2, and might have punched or pinched the SP. The SP then restrained the AV on Facility2’s kitchen floor, sat on top of him/her, and punched the AV in the stomach, but then apologized and told the AV that s/he did not mean to punch him/her. The AV had a small red mark just below his/her breastbone but no other visible injuries and did not require medical care from a healthcare professional. Facility2’s recording system captured the incident. · The recording from Facility2 showed that at 2:26 p.m., on August 18, 2024, the SP and AV were not in range of the camera but could be heard discussing leaving Facility2, but the AV declined to leave. The SP redirected the AV to “listen,” and to calm, and said, “Don’t even think about it.” The recording showed that the AV entered Facility2’s kitchen, and opened a drawer, then walked toward the SP, dropped to his/her hands and knees, and crawled toward the SP. The SP said, “I swear to God,” and placed his/her left hand on the back of the AV’s neck and tried to hold the AV’s hands with his/her right hand, but the AV struggled and pulled away from the SP and kicked him/her. · The SP knelt at the AV’s left side and tried to secure the AV’s wrists and P1 attempted to grasp the AV’s legs to prevent him/her from kicking the SP and P1. The AV and SP wrestled on the floor and the AV turned onto his/her back, so the SP stood bent at the waist, and attempted to grip the AV’s hands, while P1 held the AV’s legs at the ankles and lifted the legs slightly off the floor. The SP knelt again and possibly placed his/her left knee on the AV’s abdomen or left hip, but P1 was between the camera and SP and the AV, and the camera’s view was partially blocked by P1. The AV continued to resist being held, and the SP said, “I guess we’re gonna be doin’ it,” and then straddled the AV, and said, “You better not,” and “Let me go.” P1 released the AV’s legs. · The FM entered the kitchen and P1 redirected him/her to leave the room and return to S1 and S2, who were in another room. The SP’s hands were near the AV’s neck, but his/her back was toward the camera and his/her actions were not clear. The AV reached up toward the SP and grabbed at him/her, but P1 intervened, and helped the SP hold the AV’s hands. The FM re-entered the kitchen and was redirected by S1 and S2. The AV kicked and attempted to move away from the SP, who encouraged the AV to breathe. The SP leaned forward and held the AV’s hands together on the floor above the AV’s head. However, the AV loosened the SP’s grasp and grabbed at the SP’s neck and shirt, then pulled the SP’s shirt and tore it at the neck while the SP worked to regain a grip on the AV’s hands. The SP hit the AV in the upper abdomen/chest area with his/her right closed fist at 2:30 p.m., while the AV grabbed at the SP’s neck and chest. · The SP and AV grappled on the floor and P1 continued intermittently holding the AV’s legs to prevent him/her from kicking others. The SP asked the AV whether s/he was tired yet and told him/her that s/he was not going anywhere. The SP asked the AV to calm and stated that they had to leave, and S1 asked SP and P1 if they wanted him/her to call anyone, but the SP said, “We’re good,” and redirected the AV to go outside to call the G and the law enforcement agency. The AV agreed and started to cry, so the SP released the AV’s hands but continued to straddle him/her while encouraging him/her to relax and breathe. The SP asked the AV whether s/he was ready to get up and P1 asked the AV if s/he could be safe. The SP stood, and P1 assisted the AV to stand. The video was 9 minutes and 47 seconds long, and the AV was restrained for about 7 minutes. · The SP said that on the morning of the incident, everything was going well, and the AV asked the FM if s/he could visit the FM and the FM agreed, so the SP and P1 took the AV to Facility2 after a community outing. At Faciilty2, the FM told the AV to leave, but the AV declined to go, so the SP, the FM, S1, S2, and P1 exited Facility2 and hoped that the AV would come with them, but s/he did not and tried to close the exit door while they were outside. The SP held the door and reentered Facility2 with the AV, who hit the SP and began searching through the kitchen drawers. The SP thought that the AV might be looking for a weapon and tried to redirect him/her, but the AV dropped to the floor and crawled on his/her hands and knees toward the SP, trying to grab his/her legs and bite him/her. The SP redirected the AV and placed his/her hand on the AV’s head to prevent the AV from getting closer to him/her. · The AV scratched the SP and continued to move toward him/her, so the SP grasped the AV’s wrists, asked him/her to stop, and encouraged the AV to calm. The SP moved onto the floor with the AV to calm him/her, but the AV pinched and scratched the SP’s arms, wrists, and hands, causing the SP to bleed. The SP placed the AV on his/her back, straddled him/her at the lower abdomen/hips, and tried to hold the AV’s hands to prevent the AV from hitting him/her. The AV moved beneath the SP and tried to free his/her hands, grabbed the SP’s necklace and broke it, ripped the SP’s shirt, and scratched the SP’s chest while the SP tried to hold the AV’s wrists and redirected him/her to calm. The SP was unsure whether s/he hit the AV during the incident but was aware that the incident had been video recorded and said the video would show what happened. · When this report was written, P1 had not responded to attempts to contact him/her, but according to the SP, P1 held the AV’s legs during parts of the incident to prevent the AV from hurting anyone. The AV gradually calmed, and s/he and P1 released the AV after about 10-15 minutes, then returned to Facility1 with the AV. The G and officers from a law enforcement agency assessed the AV, but s/he did not require additional care. The SP had multiple scratches on his/her hands and chest after the incident and provided photographs of the injuries to this investigator. · Records from the law enforcement were requested on August 26, 2024, but were not received at the time this report was written. · P2, who was a supervisory staff person, stated that Facility1 staff persons tried to avoid restraining the AV, but if s/he posed an imminent danger to him/herself or others, staff persons were to follow the facility’s Emergency Use of Manual Restraint (EUMR) Allowed Policy. P2 did not see the video from Facility2, but discussed the incident with the SP. · The G, who was the guardian for the AV and the FM, said that the AV might act like a much younger person, but had the strength of a young adult. The G was concerned that Facility1’s staff persons might not have enough training on the use of which restraints/defensive skills to use when providing care to the AV, but prior to the incident, there were no problems with Facility1. The G was notified of the incident timely and saw the AV about 45 minutes after the incident occurred, but the red mark on the AV’s abdomen had faded and s/he had no marks or bruises when the G saw him/her. However, the AV told the G that the SP hit his/her stomach and that it hurt, according to the G. The facility completed a Behavior Intervention Reporting Form (BIRF) for the August 18, 2024, incident which showed that the facility did not consider the incident to be suspected or alleged maltreatment. The BIRF documented that the restraint was implemented when the AV had physically aggressive behavior and engaged in property destruction after the FM became upset and asked the AV to leave Facility2. The account of the incident provided on the BIRF was largely consistent with information provided by the SP and the incident as captured by Facility2’s recording system, but did not show that the SP hit the AV. After the incident, an unspecified supervisory staff person came to Facility2 and took the AV to Facility1. After this incident, P2 notified the G that Facility1 could no longer meet the AV’s needs and requested that s/he find services for the AV with another company. The facility’s EUMR Policy showed that staff persons might use manual restraints with individuals when an individual posed an imminent risk of physical harm to self or others, and it was the least restrictive intervention to achieve safety. Emergency restraints were to be used when immediate intervention was necessary to protect the individual or others from imminent risk of physical harm. The type of restraint must be the least restrictive intervention to eliminate the immediate risk of harm and achieve safety and was to end when the threat of harm ended. Restraints were not to be implemented with a child in a manner that constituted sexual abuse, neglect, physical abuse, or mental injury, or violated the child’s rights and protection. Staff persons were not to apply back or chest pressure when an individual was in a supine (face up) or side lying position. The Detailed Instructions on Allowed Manual Restraint Procedures showed that permitted restraints included physical escort/walking and arm restraints in standing and sitting positions. The SP’s and P1’s actions were not described within the document. The facility’s personnel and training records showed that staff persons who provided information for this report were trained on the Maltreatment of Minors Act and the facility’s policies and procedures prior to the incident. Conclusion: A. Maltreatment: Information was consistent that on August 18, 2024, the SP and P1 restrained the AV and an audio/video recording of the incident showed that P1 intermittently held the AV’s legs off the floor, supporting them at the ankles, and held the AV’s hands at times during the incident when s/he attempted to kick or hit others. P1’s actions did not appear to be aggressive and s/he did not hit the AV during the incident. S1 stated that the SP hit the AV in the stomach during the incident, and after the incident the AV had a small red mark near his/her breastbone but no other visible injuries. The recording of the incident showed that the SP wrestled with the AV on Facility2’s kitchen floor, grasped and held the AV’s wrists and hands multiple times, possibly placed his/her knee on the AV’s lower abdomen and his/her hands near the AV’s neck, and hit the AV in the abdomen/chest during the incident. The SP said that s/he attempted to redirect the AV multiple times during the incident, thought that the AV was looking for a weapon in the kitchen drawers, and placed his/her hands on the AV’s head to prevent him/her from getting closer to the SP. When the AV did not respond to redirection, the SP grasped the AV’s wrists and held him/her on the floor, eventually straddling the AV’s lower abdomen/hips and holding the AV’s hands to the floor over his/her head. After a few minutes, the AV calmed and was released. The G and the law enforcement agency were called, and assessed the AV, but s/he did not require additional care, and the G said that the AV had no marks, bruises, or injuries when s/he saw him/her. The AV told the G that the SP hit his/her stomach and that it hurt. The facility’s EUMR Policy stated that staff persons could use manual restraints, but the SP’s and P1’s actions were not described in the facility’s Detailed Instructions on Allowed Manual Restraint Procedures. Regarding neglect: Although the SP straddled the AV and held his/her arms/hands to the floor above his/her head which was not therapeutic conduct, and not consistent with the facility’s policies/procedures or the behavior expected of a professional caregiver in a DHS licensed facility, given the AV’s history of aggressive behavior and the aggressive behavior s/he showed at the time of the incident, it was reasonable to prevent the AV from harming him/herself or others. Therefore, there was not a preponderance of the evidence that there was failure by a person responsible for a child’s care to supply the child with necessary care when reasonably able to do so. It was not determined that neglect of the AV 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; or 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). Regarding physical abuse: Although the AV did not have a bruise or injury that required medical care as a result of the incident, given that the SP possibly knelt on the AV and/or placed his/her hands on the AV’s neck, and that the SP hit the AV in his/her abdomen with a closed fist when the AV was in a supine unprotected position, there was a preponderance of the evidence that the SP’s actions were overt and non-accidental, and represented a substantial risk of injury to the AV. It was determined that abuse occurred (“physical abuse” means any physical injury, mental injury, or threatened injury, inflicted by a person responsible for the child's care on a child other than by accidental means. "Threatened injury" means a statement, overt act, condition, or status that represents a substantial risk of physical or sexual abuse or mental injury). 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 AV at the time of the incident and a recording of the incident showed the SP hit the AV in his/her abdomen. The SP was trained on the facility’s policies and procedures and on the Maltreatment of Minors Act on April 3, 2024. 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 abuse 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 during the incident was considered a single incident and AV did not sustain a serious injury during the incident. 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: Facility1 completed an Internal Review which determined that their policies and procedures were not adequate and not followed. P2 thought that Facilty1 could no longer adequately care for the AV and recommended that the AV’s team locate a facility that was better suited to the AV’s needs, or consider implementing rights restrictions for the AV. The SP restrained the AV in way that was not permitted and Facility1 retrained its staff persons on manual restraints. The incident was similar to other incidents and the AV had a history of aggressive behavior. After the incident, the SP was suspended and s/he had no further contact with the AV. 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.
|
