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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: 1122919-H_CRS (Home and Community-Based Services-Community Residential Setting) Investigator(s): Beth Virden 651-431-6572 Suspected Maltreatment Reported: It was reported that a staff person (SP) slapped a vulnerable adult’s (VA) face more than once, and that the VA sustained bruising as a result. Date of Incident(s): September 17, 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 (1): 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: hitting, slapping, kicking, pinching, biting, or corporal punishment of a vulnerable adult. Summary of Findings: Pertinent information was obtained during a site visit conducted on October 1, 2024; from documentation at the facility; and through interviews conducted with the VA’s guardian (G) who was also the VA’s family member, facility staff persons (SP, P1, and P2), and a supervisory staff person (P3). At the time of the site visit, this investigator met the VA. The VA said, “Hi,” but was otherwise not responsive to questions, which was consistent with the information provided about the VA’s communication skills. The VA was not interviewed due to his/her limited communication skills. The VA’s support plan and support plan addendum provided the following information: · In February 2024, the VA moved into the facility seeking support and services relating to his/her diagnoses, which included autism spectrum disorder. The facility provided the VA with at least two staff persons 24 hours a day. · The VA was “partially verbal” or “nonverbal.” · The VA had a history of verbal and/or physical aggression towards others, which might provoke an aggressive response. “[The VA] is not able to identify what an unsafe situation would look like or how to remove [him/herself] from it. [The VA] is unable to identify potentially dangerous situations and/or individuals.” “If the situation becomes an imminent threat and there is potential for abuse, staff will intervene and prevent the abuse.” Staff were supposed to model appropriate behavior to the VA; establish positive and therapeutic rapport with the VA; and offer and encourage the VA’s choices. If the VA was actively aggressing towards someone, staff were supposed to use redirection and physical blocks; call for assistance, if necessary; and/or implement an emergency use of manual restraint, if necessary. Information from all sources was consistent that the incident occurred in the facility’s van while out in the community. The van had a driver’s seat, a front passenger seat, and three rows of back passenger seats. There was a single sliding door on the right side of the van, which was the primary way to access the back passenger seats. There was a narrow passageway from this door to the back row of seats. The facility’s Incident and Injury Reports stated the following: · On September 17, 2024, at 6 p.m., “[The SP, P1, and P2] went on a van ride with [the VA]. [The SP] drove to McDonalds to a McDonalds in Eden Prairie. [The SP] bought [the VA] ice cream from McDonalds and went to the back to give [the VA] [his/her] ice cream. [The VA] then had a behavior while [the SP] was trying to give [him/her] ice cream. [The VA] then scratched [the SP’s] neck and slapped [the SP’s] face. [The SP] then retaliated and hits [the VA] back in the face and they do this [a] couple of times then [P2] intervened and asked [the SP] to stop. The SP told [the VA] all done and [the VA] said all done and stopped the behavior. [The SP] drove back home where [P1] prepared nightly meds and [the VA] went in [his/her] room.” · On September 18, 2024, at 10:55 a.m., “Morning staff discovered redness underneath [the VA’s] right eye but could not find any documentations from the previous staff about a behavior or incident. Staff thought that it was due to [the VA’s] lack of sleep since [s/he] was having a hard time sleeping the night prior.” · At 3 p.m., P2 arrived at work, noticed “the [VA’s] injury,” and called P3 informing him/her of what happened the day prior. A photograph of the VA, taken on September 18, 2024, at an unknown time, showed that under the VA’s right eye was a red mark about the same size as the VA’s pupil in the picture. There were also other less distinct red marks under both of the VA’s eyes. P1 and P2 provided the following information: · On September 17, 2024, between 5:30 and 6 p.m., P1, P2, and the SP brought the VA to McDonalds for ice cream. P1 was driving, the SP was in the front passenger seat, and P2 was in the very back row of seats. The VA was in the row directly in front of P2. They got ice cream and parked. The SP and P2 switched seats. The SP was now in the row behind the VA and planned to help the VA with his/her ice cream. · P1 said that the VA threw his/her food on the floor and the SP moved into the passageway next to the VA. “[The VA] was having one of [his/her] moods and [s/he] started spitting and stuff like that.” The SP was “standing like on the side of the door.” The sliding door was closed. The VA remained sitting and “cut” the SP on the chest. The SP sustained “a pretty good gash … from [his/her] chest to up by the collar area.” “[The VA] slapped [the SP], and [the SP] slapped [the VA] back and then they just were going back and forth” slapping each other. P1 saw the SP use his/her hand to slap the VA’s right eye three to four times. P2, who was in the front passenger seat, repeatedly told the SP, “Stop.” After going back and forth about three to four times, the SP and the VA stopped. · P2 said that the VA was sitting on the seat and the SP was standing in the passageway. P2 did not see the VA initially scratch the SP. but saw the VA “slap” the SP and then the SP “hit” the VA and they then went “back and forth” “slapping” the other’s face “like five or six times.” P2 demonstrated the slap by slapping his/her hands together, which made an audible sound. It was “pretty quick” and “hard hits.” P2 yelled, “Chill. Chill. Stop.” before the VA and the SP eventually both stopped. P2 said s/he did not know if the SP slapped the VA out of “panic” or “anger” and said s/he was not “reading [the SP’s] face” during the incident. Immediately after, the VA’s face was “red” and the next day, the VA’s face had “I think, a couple bruises,” which disappeared after “a couple of days.” · P1 said that after the SP was scratched across his/her chest, the SP seemed “pretty frustrated” and was immediately “getting hit again” by the VA. P1 described the SP as “reacting” or “going off of emotions.” “So, it’s like [the SP is] hitting [the VA] back [and] trying to think.” P1 did not see injuries on the VA until the next day. The VA had “bad red marks on [his/her] right eye.” “It wasn’t cuts … [but] like a bruise,” which disappeared after “about a day.” · P2 said that it was “pretty common” for the VA to “hit staff” and when this occurred, staff were trained to “walk away.” · P1 said that the VA sometimes became “overstimulated” or “overwhelmed” by too much action around him/her, or when the VA did not get what s/he wanted “asap.” The VA might also “change in an instant.” “[S/he] can be happy right now as you speak and then the next thing you know, something is snapping, like [s/he] can just react.” The VA might hit objects or people. If staff noticed the VA’s behaviors escalating, they were trained to offer alternate activities, music, singing, or the VA’s favorite television shows and give the VA space. “We keep our distance.” “Move out of [his/her] range as much as you can” and if this was not possible, staff used physical blocks to avoid being struck. · P1 and P2 had never seen the SP react in this manner before and did not have prior concerns with the SP’s conduct. P2 added, “It surprised me.” P3 provided the following information: · On September 18, 2024, P2 called P3 and told him/her about the incident. P3 went to the facility around 3 p.m., and at that time, the VA was “reddish” around his/her eyes. P3 added, “I guess, there was a bruise,” and “The following day, [the bruise] was gone.” · P3 asked the VA, “Did someone hit you yesterday?” The VA responded, “Hitting.” The VA did not say anything more. · P3 interviewed P1, P2, and the SP, and documented their information, which was consistent with what each told this investigator. · Staff were trained to give the VA space, attempt to verbally deescalate, and/or block the VA’s physical aggression. · P3 never had prior concerns with the SP’s conduct. The SP was “usually pretty stoic … usually calm.” “I’ve never seen [the SP] react that way.” The SP provided the following information: · Just prior to the incident, the SP saw the VA experiencing a “mood swing” and offered to switch seats with P2 in the van. The SP brought the VA’s food to the back of the van and sat in the seat behind the VA. The VA threw the food on the floor and the SP moved into the passageway beside the VA. The VA then grabbed the SP and scratched him/her. The SP talked to the VA, and the VA “attacked me again.” The van was “a tight space” and when the VA hit the SP again, “For some reason, I had a reflex … I reacted to [his/her] attack … I hit [the VA] back … It wasn’t like physical abuse.” The VA’s conduct “caught me off guard.” The SP believed s/he hit the VA once or twice. The SP added, “I regret that moment.” · The SP said, “[The VA] wasn’t trying to do these things. It wasn’t who [s/he] was … [S/he] is a sweet individual if you come to know [him/her].” · In the past, the VA “hit and injured” the SP “countless times,” including causing the SP to bleed and/or need medical attention. During these instances, the SP responded by helping the VA “calm down.” The SP “never” hit the VA in the past. “In my career, that is the first and last time something like that would ever happen.” In the past when the VA started to escalate, the SP played music or sang with him/her. One time, the SP and the VA sang together outside for three hours until it was time for the VA to go to bed. A law enforcement report stated that on September 19, 2024, around 8:34 a.m., a law enforcement officer (LEO) met with the VA but did not ask questions regarding the incident. The LEO observed the VA’s face, and “didn't see any redness, bruising or swelling.” The LEO took no further action and closed the report. The G said that the VA had a history of “non-malicious behavior” and in this instance, the SP “lost [his/her] composure and hit [the VA] back.” “[The SP] called me personally to apologize.” The G had no prior concerns with the SP’s conduct and said that the incident was “very minor.” “It’s an unfortunate loss of composure … [but] the staff is great. I’m not concerned at all about a pattern of this behavior” by staff. The facility’s policies and procedures stated that staff were prohibited from using physical intimidation or a show of force towards a client. Staff, who encountered maltreatment of a vulnerable adult, must take immediate action to ensure the safety of the person served.
Relevant Minnesota Statutes and Rules: 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: The SP, P1, and P2 provided consistent information that on September 17, 2024, the SP and the VA went back and forth slapping each other between two and six times. The SP’s actions of slapping the VA in response to the VA slapping the SP was inconsistent with the VA’s support plans, the facility’s policies and procedures, and with the standards of a professional caregiver in a facility licensed by the Department of Human Services; and were violation of Minnesota Statutes section 245D.04, subdivision 3, paragraph (a), clause (6). The SP said that his/her actions were a “reflex” and not intended to “physically abuse” the VA. However, the SP’s slaps were hard enough to make an audible sound and cause immediate redness to the VA’s face. Although the G, P1, P2, and P3 did not have prior concerns with the SP’s conduct and the SP did not have a history of such conduct, there was a preponderance of the evidence that slapping a person on and/or near the face more than one time was not accidental or therapeutic conduct and could reasonably be expected to produce physical pain or injury to the VA. It was determined that physical 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: hitting, slapping, kicking, pinching, biting, or corporal punishment of a vulnerable adult). 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 received training on the VA’s support plan and support plan addendum, the facility’s policies and procedures, and the Reporting of Maltreatment of Vulnerable Adults Act. 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 physical abuse for which the SP was responsible did not meet statutory criteria to be determined as recurring or serious. It was a single incident and information was inconsistent regarding whether the VA sustained a bruise or whether the marks were transitory in nature. Action Taken by Facility: The facility completed an internal review and determined that policies and procedures were adequate but not followed. The facility reviewed the VA’s support plans with all staff and provided additional training to P1 and P2 regarding the Reporting of Maltreatment of Vulnerable Adults Act and Service Recipient Rights. The SP was no longer employed. 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. Given that the facility took immediate corrective action, a correction order was not issued for the violation outlined above.
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