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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: 1071944-H_CRS (Home and Community-Based Services-Community Residential Setting) Investigator(s): Gessner Rivas 651-431-3970 Suspected Maltreatment Reported: It was reported that a vulnerable adult (VA) who was to have his/her food mechanically blended and pureed was given non-pureed slices of pizzas. The VA developed aspiration pneumonia and was hospitalized. Date of Incident(s): Multiple dates 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 17, paragraph (a): 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 November 8, 2023; from documentation at the facility, law enforcement records, and medical records; and through interviews conducted with facility staff persons (P1, P2, P4), a facility supervisor (P5), a facility manager (P6), a facility nurse (N), the VA’s guardian (G), the VA’s case manager (CM), and the VA. A facility staff person (P3) declined to be interviewed by this investigator. The VA was diagnosed with developmental disabilities, Emphysema, chronic obstructive pulmonary disease (COPD), and asthma. The VA might not be able to make appropriate choices for self-preservation. The VA had a history of eating fast and not always chewing his/her food. The VA’s food was to be mechanically soft and pureed, and liquids were to be honey thick because of the risk of aspiration and choking. Staff persons were to follow the VA’s dietary recommendations to prevent choking. The VA enjoyed western movies, old country music, and her/his favorite food was pizza. The VA’s Dietary Protocol dated June 22, 2023, stated that the VA had a history of choking on food and beverages. The VA’s foods were to be “mechanically altered by blending, chopping, grinding or mashing so that they are easy to chew and swallow.” The VA’s plan was necessary to reduce the risk of choking or aspiration because the VA had a history of choking on food and beverages. On October 19, 2023, the facility celebrated the birthday of a resident with pizza and ice cream cake; P3 served the VA a whole slice of pizza. Two days later, on October 21, 2023, the VA was again given whole pizza slices for lunch and dinner by P2 and P5, respectively. The following day on October 22, 2023, the VA was having difficulty breathing, the VA was taken to urgent care and later admitted to a local hospital where s/he was diagnosed with aspiration pneumonia; the VA was hospitalized for five days, where s/he was on oxygen therapy. The VA stated that s/he had lived at the facility for approximately two years. The VA was aware that s/he was on a dietary restriction requiring her/his food to be pureed but could not recall why. The VA stated that sausage pizza was her/his favorite food. The VA recalled being served non-pureed pizza. The VA recalled having trouble breathing, feeling like s/he was choking on the day s/he was taken to urgent care and that it was because of the pizza. The VA recalled that s/he asked staff persons not to puree the pizza and would not eat anything other than pizza but that staff persons had not offered alternatives. P1 stated that s/he had worked at the facility for approximately two months prior to the incident. P1 was aware that the VA’s meals had to be blended but stated that snacks did not. On October 19, 2023, between 4 and 5:30 p.m. P1 recalled seeing the VA eating the last two bites of a slice of pizza but was not the one who gave the VA the slice of pizza, but also did not do anything to stop the VA from finishing it. P1 stated that, after the was hospitalized, there was a notice placed in the kitchen that all the VA’s meals, including snacks, had to be blended even if the VA refused. P2 provided the following information: · P2 had worked at the facility since the summer of 2022. P2 had been informed by a former staff person that the VA’s food had to be blended but that the VA could eat soft baked goods or anything that the VA could “gum.” During training, P2 was told that to avoid behavioral problems with the VA, staff persons should do what the VA wanted. · P2 worked the day shift on October 19, 2023, and believed that the pizza would have been brought in after P2 left. On October 21, 2023, between 11:30 a.m. and 12:00 p.m., P2 was about to blend pizza for the VA but the VA refused and stated, “I can eat that, I can eat that.” P2 stated that s/he was unsure if staff persons could restrict the VA from eating whole slices of pizza and wanted to avoid any behavior episode from the VA because the VA kept asking for pizza. P2 thought it was a rights restriction not to provide the VA with the food s/he wanted and asked P5, a supervisor, who then approved giving whole slices of pizza to the VA. P2 also stated s/he did not ask the VA about having an alternative meal. The VA did not show signs of asphyxiation and asked for more; the VA ate three slices of pizza for lunch. · The following morning, P2 noticed that the VA was sitting in a recliner and the VA looked like s/he was having trouble breathing; the VA kept falling asleep and would wake up. P2 called the N and was told that P5 would take the VA to urgent care as soon as it opened which was at 9 a.m. that morning. After the VA was hospitalized, staff persons were told that everything the VA ate had to be blended. P3 declined to be interviewed by this investigator. The following information was provided by P3 to law enforcement (LE): · P3 stated that when s/he started working at the facility in March of 2023, s/he was not formally trained and had to ask other staff persons for information. With respect to the VA’s diet, P3 received some training which at first was to blend the VA’s food and add chicken broth but after the VA was hospitalized, written instructions were recently provided. P3 confirmed that prior to the VA’s hospitalization, staff persons were not required to blend snacks for the VA and it was not until after the VA was hospitalized that all of the VA’s food had to be pureed. P3 stated that s/he was under the impression that according to client’s rights, if a client said no more than three times, staff persons had to respect that decision. · P3 stated that on October 19, 2023, s/he gave a slice of pizza to the VA but had removed the toppings leaving only the crust and sauce on the slice. P3 did not offer the VA any alternatives because the VA kept asking for unblended pizza. P3 stated that that same day the VA also ate a slice of non-pureed ice cream cake. P3 worked on October 21, 2023, when s/he was told to feed clients leftover pizza; P3 did not mention who gave that instruction. P3 stated that s/he asked P5, a supervisor, if s/he could give the VA a whole slice of pizza because the VA was refusing to eat it if it was blended. According to P3, P5 stated it was fine because the VA had eaten non-pureed pizza for lunch. According to P3, the VA ate one whole slice of pizza for dinner without the topping being removed. The VA appeared normal after eating the pizza and was assisted to bed around 8:30 p.m. · After the VA’s hospitalization, staff persons had to read through the VA’s binder and sign off on the instructions regarding the VA’s dietary restrictions. P3 stated that even after being hospitalized, the VA continued to request whole foods despite being reminded that s/he could choke. Staff persons were instructed not to give the VA any food that was not pureed even if the VA refused blended food. P5 had no additional information to add beyond her/his statement given to LE when asked by this investigator. The following information was obtained from P5’s statement to LE: · P5 stated that the VA’s food had to be pureed and that liquids had to be thickened. P5 also noted that the VA’s diet was always posted in the kitchen. With respect to client’s rights, P5 stated that staff persons were told that they could not force a client to do anything. The VA had requested non-pureed foods on multiple occasions, especially snacks, but staff persons would redirect the VA. P5 was not at the facility on October 19, 2023, due to a training event. P5 was aware that the VA had eaten non-pureed pizza prior to October 21, 2023; P5 was at the facility during lunch time on October 21, 2023, when the VA refused to eat pureed pizza and the staff persons gave the VA non-pureed pizza. P5 stated s/he believed that since the VA ate non-pureed pizza on October 19, 2023, that the VA was fine to eat it on that day. · P5 stated that P2 served the VA pizza for lunch on October 21, 2023, and that it could have been two slices of pizza. P5 stated that clients came first and when it came to food, the practice was that staff persons went with what the client wanted. · P5 stated that s/he was not aware that the VA had been served pizza for dinner on October 21, 2023, P5 did not recall P3 contacting her/him about serving pizza to the VA. P5 stated that P4 contacted her/him on the morning of October 22, 2023, because the VA was coughing a lot and aspirating. P5 had P4 check the VA’s vitals which were good, P5 then contacted the N and was instructed to take the VA to urgent care. P5 arrived at the facility, asked the VA how s/he was doing; the VA said fine. The VA rested for a while, P5 took the VA to urgent care once it opened in the morning. · P5 stated that after the VA was hospitalized all staff persons were retrained on the VA’s diet and s/he showed each staff person how to puree the VA’s food. P5 stated that if a client refused to eat, staff persons were instructed to contact the N. P4 stated that s/he had worked at the facility since January of 2023. P4 had been trained on meal preparation for all clients at the facility including blending food for the VA. P4 was aware that the VA had previously been given food and snacks that were non-pureed. P4 worked the evening shift on October 21, 2023; starting at 10 p.m. and the VA was already in bed at that time. Around 3 a.m., the VA started dry heaving and saying her/his stomach hurt. The VA asked for assistance to use the bathroom and was in the bathroom until around 4:30 a.m. dry heaving and spitting up phlegm; trying to vomit but could not. P4 called P5, at an unspecified time; P5 told P4 that s/he would call the N. P5 later informed P4 that s/he would go to the facility; after P5 arrived, the VA appeared to be okay. The VA was taken to urgent care after s/he left the facility around 8:30 a.m. P4 stated that communication at the facility was poor and did not know much of what went on at the facility during the day. The N stated that s/he was a nurse for clients at the facility for five to six years. When the N was contacted on October 22, 2023, s/he was unaware that the VA had been given pizza; the N did not learn about that until days later. The N stated that in the future if the VA refused a pureed meal, they were to offer her/him other alternatives and if the VA refused two meals in a row, staff persons were to notify the VA’s team. The N stated that the VA was “testing” staff persons because they were newer. P6 provided the following information: · P6 had been a manager for five months. P6 was aware that the VA was under dietary restrictions, for a long time, due to food sometimes going straight to the VA’s lungs. The VA had not displayed any signs of complications between October 19 and 21, 2023. P6 originally thought that the VA had been served non-pureed pizza on one day, October 21, 2023, but later learned it was two days, October 19 and 21, 2023. P6 did not learn that the VA had been served non-pureed pizza until s/he was notified that the VA had aspiration pneumonia. · P6 stated that the VA’s dietary restriction was within her/his protocol book located in the kitchen which staff persons had to read and sign off when hired. P6 noted that there was no daily documentation to record what the VA was served for meals. When asked if the facility had a written protocol for staff persons to follow if a resident refused to follow a medically necessary process, such as the VA’s dietary restriction, P6 stated that there was no such protocol for the VA’s pureed diet. P6 also stated that staff persons had been told that clients have the “right to refuse anything.” After the incident, staff persons were made aware that all of the VA’s food had to be pureed and further training would be conducted. The G stated that the VA could be “very stubborn” and that his/her food was to be blended according to his/her plans. The CM stated that if the VA refused to eat pureed food, staff persons were to tell the VA why s/he could not eat food that was not pureed and offer the VA an alternative. The VA “always” understood why s/he could not have solid foods. The VA was likely “testing” staff persons and pizza was the VA’s favorite food. Personnel files showed that the facility trained staff persons on the Reporting of Maltreatment of Vulnerable Adults Act, the facility’s policies and procedures, and the VA’s plans of care prior to October of 2023. Relevant Minnesota Rules and/or Statutes: Minnesota Statutes, section 245D.05, subdivision 1, stated that the license holder must meet the health care needs as assigned in the support plan or the support plan addendum. Conclusion: A. Maltreatment: Information was consistent that the VA was on a restricted diet requiring that her/his food be mechanically blended and pureed because the VA had a history of and was at risk of choking and aspiration. The VA would eat fast and not chew food adequately. On October 19, 2023, the facility celebrated the birthday of another resident with pizza and ice cream cake around dinner time. That evening the VA was given at least one whole slice of pizza non-pureed contrary to her/his Dietary Protocol and a violation of Minnesota Statutes, section 245D.05, subdivision 1. Two days later the VA was again given whole slices of pizza for lunch and dinner when s/he refused pureed pizza which was a violation of Minnesota Statutes, section 245D.05, subdivision 1The VA was later diagnosed with aspiration pneumonia and hospitalized for five days. When the VA refused to eat pureed food, staff persons were to contact the N who would notify the VA’s team. The VA’s diet restriction was medically necessary as the VA had a history of choking and aspirating. All staff persons working with the VA were aware of the VA’s dietary restriction. There was doubt amongst staff persons whether staff persons could go against the wishes of the VA and refuse to provide the VA with his/her choice of food if the VA did not want his/her food pureed. Many staff persons referred to the VA’s rights to support a commonly held belief by staff persons, including a supervisor and a manager, that if a client such as the VA refused to eat pureed food, and insisted on eating non-pureed food, staff persons had to respect the VA’s wishes. Although staff persons including a supervisor and a manager were under the impression that they had to respect the VA’s wishes to eat what s/he chose, given that the VA’s food was to be mechanically soft and pureed because of his/her risk of choking and aspirating on non-pureed foods, that all staff persons were aware of the VA’s condition and had been trained on how to puree the VA’s food, and that the VA was given whole slices of pizza on at least three occasions which led to the VA being hospitalized with aspiration pneumonia treated with oxygen therapy for five days, there was a preponderance of the evidence that there was a failure to provide the VA with care or services which were reasonable and necessary to obtain or maintain the VA’s physical or mental health or safety. 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 facility was to adhere to the VA Dietary Protocol which required that the VA’s food be mechanically blended, and fluids thickened. Information showed that staff persons knew of the VA’s Dietary Protocol but there was a common belief and practice that if the VA refused pureed food, staff persons including supervisors could and did give the VA food that was not the consistency required. Multiple staff persons at different levels of authority gave the VA or were aware the VA was being given whole slices of pizza which occurred three times over two days resulting in the VA’s hospitalization for aspiration pneumonia. Given this, staff persons’ responsibility was mitigated, and the facility was responsible for maltreatment of the VA. C. Serious Maltreatment: The Office of Inspector General is required to evaluate whether substantiated maltreatment by a facility meets the statutory criteria to be determined as “serious.” 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 maltreatment for which the facility was responsible met statutory criteria to be determined as serious because the VA required the care of a physician over the course of five days while the VA was hospitalized for aspiration pneumonia. Action Taken by Facility: The facility conducted an Internal Review and determined that the VA’s plans were not followed, and that related policies and procedures were adequate but not followed. The facility learned that the VA had previously been served food items that were non-pureed and staff persons were retrained. Action Taken by Department of Human Services, Office of Inspector General: On November 20, 2024, the license holder was ordered to forfeit a fine of $5000 as a result of the substantiated maltreatment for which facility was responsible. The maltreatment determination and the Order to Forfeit a Fine are each subject to appeal.
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