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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: 1068145-H_CRS (Home and Community-Based Services-Community Residential Setting) 1068133-HCBS (Home and Community-Based Services) Investigator(s): Jason Pehler 651-431-6553 Suspected Maltreatment Reported: It was reported a staff person (SP) called a vulnerable adult (VA) names and spit in the VA’s face. Date of Incident(s): August 22, 2024, and additional unspecified 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 2, paragraph (b), clause (2): Conduct which is not an accident or therapeutic conduct which produces or could reasonably be expected to produce physical pain or injury or emotional distress including, but not limited to: the use of repeated or malicious oral, written or gestured language toward a vulnerable adult or the treatment of a vulnerable adult which would be considered by a reasonable person to be disparaging, derogatory, humiliating, harassing, or threatening. Summary of Findings: Pertinent information was obtained during a site visit conducted on September 10, 2024; from documentation at the facility; and through seven interviews conducted with the VA, facility staff persons (P1-P2), a community person (CP), the VA’s case manager (CM), the VA’s guardian (G), and the SP. Facility documentation showed the VA worked in the community, and liked watching television shows and playing video games. The VA enjoyed spending time with his/her family, going out to eat at restaurants, and looking at Christmas lights. The VA was diagnosed with autism spectrum disorder, seasonal affective disorder, attention-deficit hyperactivity disorder, and multiple physical health diagnoses. The VA was susceptible to all types of abuse, and was at increased risk of maltreatment. The facility provided the VA with 1:1 staffing 24 hours a day, and the VA did not have any community alone time. The CP provided the following information: · The CP observed the VA and the SP’s interactions at a gas station during the month of August 2024. During that time there were multiple days in which the SP called the VA names. The CP said s/he heard the SP call the VA “dumb” and “stupid” one day, and on another day the SP called the VA “dumb” or “stupid”, but the CP was not sure which name. The CP described the SP as “rude” to the VA and to employees at the gas station. · The CP said at least two other employees observed similarly concerning interactions the SP had with the VA, and the CP encouraged the employees to speak with this investigator. However, the employees told the CP they did not want to speak with the investigator. · The CP did not observe the SP spit on the VA. The VA provided the following information: · The VA said the SP was mad at him/her, and spit on the VA’s face while s/he sat in a chair at the facility. The VA was unable to provide any other information related to the alleged incident. · The VA said while at a gas station the SP swore at the VA and threatened to hit the VA. · The VA said the incident was a year ago, and was at a different gas station than that described by the CP. · The VA denied any staff persons called him/her names, but the SP did swear. The VA did not want to say what the swear words were said. P1 provided the following information: · The VA told P1 the SP was not being “nice” to him, and the SP spit on him/her. The VA did not mention any name calling to P1, but said the incident happened in the car. The VA did not provide any additional information to P1. · P1 was “shocked” by the information because the VA had not previously said anything “negative” about the SP. P1 said there was “some truth” in the statements the VA makes, but there was a previous similar incident and after that staff person was moved to a different house, the VA stated s/he had “lied” about the previous allegations. Additionally, P1 believed there was an incident involving spitting at the VA’s previous residence. · P1 had no previous concerns with the SP as an employee, and did not have concerns with interactions s/he observed between the VA and the SP. P2 provided the following information: · On August 26, 2024, the CP spoke with P2 and told P2 about the SP’s interactions with the VA at a gas station on August 22, 2024. P2 was told the SP was “hurrying,” the VA, and the SP spoke with a tone that seemed like s/he did not want to be with the VA. The VA responded by stuttering, but the VA did not have any other emotional response. · The CP also told P2 about an incident “last fall” where the VA was at the gas station with the SP and the SP “threw money” onto the counter and left the VA unsupervised inside of the gas station. After the SP left the gas station the VA started to cry and was concerned the SP was going to be mad at the VA. An employee assisted the VA, and the VA went outside to the SP. There was no injury or other concern with the VA being left inside the gas station by him/herself. · P2 said the SP had a “crabby attitude,” but had not observed the SP calling the VA names, or observed any concerning interactions between the VA and the SP. P2 asked the VA on a monthly basis about the staff persons at the facility, and prior to August 26, 2024, the VA always said s/he liked the SP. However, after the alleged incident the VA said the SP swore at him/her and said, “Fuck you,” called the VA a “fucking bitch,” and told the VA to “fuck off.” · The VA also told P2 the SP had spit in his/her face while the VA was sitting in a chair at the facility. Prior to the spitting the SP was standing in front of the VA. The VA was unable to provide a date or time of the alleged incident. · P2 said there were instances in which the SP would have spit come out of his/her mouth while talking with P2, and P2 did not believe the spitting was intentional. · P2 added the VA was not good at recalling details and may confuse current events with “previous trauma.” The CM did not have any concerns with the facility. The CM did not believe the VA would be “100% accurate,” but also did not believe the VA would “pull it (the allegation) out of the blue.” The G said the SP was “not the most friendly person,” but the G had no prior concerns with maltreatment of the VA. The G was not aware of any instances of name calling or spitting on the VA. The G said there was “some truth,” in the comments the VA makes, but s/he might “exaggerate.”
The SP provided the following information: · The SP denied purposefully spitting on the VA, and said s/he did not have two of his/her bottom teeth. Due to that there were times that food or spit came out of his/her mouth unintentionally. · The SP denied calling the VA any names, and tried to assist the VA at the gas station. The SP said s/he had never left the VA alone in the gas station. · The SP said s/he may have used swear words while working with the VA, however they were not directed at the VA. The facility completed an Internal Review (IR) which provided the following information: · The SP “adamantly” denied the allegations of maltreatment and said people find the SP “intimidating” due to his/her “unique personality, dry sense of humor and the fact that [the SP] presents masculinely.” · The SP worked for the facility for many years and was an excellent employee with no concerns noted from the wide variety of individuals s/he supported. · The SP was provided additional training from the facility on representing the company professionally in the community, received a written warning, and was retrained on Positive Support Rule Core Training, Reporting of Maltreatment of Vulnerable Adults Act, and reviewed the facility’s policy on “Employee Roles and Conduct Expectations.” · The SP no longer worked with the VA, and was reassigned to a different facility that maintain two staff persons working at a time. Prior to the alleged maltreatment P1, P2, and the SP were each trained on Reporting of Maltreatment of Vulnerable Adults Act and the VA’s client specific programming. The SP’s job description stated the SP’s responsibilities included, “Observe, listen, and respond to the people we support with dignity and respect.” Relevant Rules and/or Statutes: Minnesota Statutes section 245D.04, subdivision 3, paragraph (a), clause (6) states that a person’s protection related rights include the right to be treated with courtesy and respect. Conclusion: A. Maltreatment: It was reported the SP spit on the VA, and called the VA names. Regarding the VA being spit on by the SP: The VA said the SP was mad and spit on his/her face while at the facility, but during his/her interview s/he was unable to provide specifics related to when the incident occurred. There were no persons interviewed that observed the SP spit on the VA. P1 said the VA told him/her that the SP was not being nice and the SP spit in the VA’s face while in a vehicle. P2 said the VA told him/her the SP spit in the VA’s face while the VA was sitting in a chair at the facility. P2 and the SP each also said the SP had previously unintentionally projected spit towards others during conversations. The SP denied intentionally spitting on the VA. Therefore, there was not a preponderance of the evidence as to whether the SP spit on the VA, and if so whether s/he did so accidentally. Regarding the VA being called names: It was reported the SP called the VA names while at a gas station. The CP said s/he observed multiple incidents in which the SP called the VA “dumb” and or “stupid.” The CP also said employees at the gas station had observed similar interaction between the SP and the VA, but the employees did not want to be involved in the investigation. The VA provided minimal and inconsistent information about the alleged incidents to this investigator and P2, and there were concerns related to the VA’s ability to accurately provide information. The SP denied calling the VA any names. Although the VA provided inconsistent information and the SP denied calling the VA names, there was no information that the CP had provided inaccurate information, nor that the CP had any motivation to do so. Therefore, the CP was deemed more credible than the VA or the SP. There was a preponderance of evidence the SP repeatedly called the VA “dumb” and “stupid,” which could be reasonably expected to produce emotional distress. It was determined emotional abuse occurred (conduct which is not an accident or therapeutic conduct which produces or could reasonably be expected to produce physical pain or injury or emotional distress including, but not limited to: the use of repeated or malicious oral, written or gestured language toward a vulnerable adult or the treatment of a vulnerable adult which would be considered by a reasonable person to be disparaging, derogatory, humiliating, harassing, or threatening). B. Responsibility pursuant to Minnesota Statutes, section 626.557, subdivision 9c, paragraph (c): When determining whether the facility or individual is the responsible party for substantiated maltreatment or whether both the facility and the individual are responsible for substantiated maltreatment, the lead agency shall consider at least the following mitigating factors: (1) whether the actions of the facility or the individual caregivers were in accordance with, and followed the terms of, an erroneous physician order, prescription, resident care plan, or directive. This is not a mitigating factor when the facility or caregiver is responsible for the issuance of the erroneous order, prescription, plan, or directive or knows or should have known of the errors and took no reasonable measures to correct the defect before administering care; (2) the comparative responsibility between the facility, other caregivers, and requirements placed upon the employee, including but not limited to, the facility’s compliance with related regulatory standards and factors such as the adequacy of facility policies and procedures, the adequacy of facility training, the adequacy of an individual’s participation in the training, the adequacy of caregiver supervision, the adequacy of facility staffing levels, and a consideration of the scope of the individual employee’s authority; and (3) whether the facility or individual followed professional standards in exercising professional judgment. The SP was responsible for the care of the VA at the time of the incident and was trained on the Reporting of Maltreatment of Vulnerable Adults Act prior to the incident. The SP was responsible for maltreatment of the VA.
C. Recurring and/or Serious Maltreatment: The Office of Inspector General is required to evaluate whether substantiated maltreatment by an individual meets the statutory criteria to be determined as “recurring or serious.” Individuals determined to be responsible for recurring or serious maltreatment are disqualified from providing direct contact services. Minnesota Statutes, section 245C.02, subdivision 16, states: “Recurring maltreatment” means more than one incident of maltreatment for which there is a preponderance of evidence that maltreatment occurred and that the subject was responsible for the maltreatment. Minnesota Statutes, section 245C.02, subdivision 18, states: "Serious maltreatment" means sexual abuse, maltreatment resulting in death, neglect resulting in serious injury which reasonably requires the care of a physician whether or not the care of a physician was sought, or abuse resulting in serious injury. For purposes of this definition, "care of a physician" is treatment received or ordered by a physician, physician assistant, or nurse practitioner, but does not include diagnostic testing, assessment, or observation; the application of, recommendation to use, or prescription solely for a remedy that is available over the counter without a prescription; or a prescription solely for a topical antibiotic to treat burns when there is no follow-up appointment. For purposes of this definition, "abuse resulting in serious injury" means: bruises, bites, skin laceration, or tissue damage; fractures; dislocations; evidence of internal injuries; head injuries with loss of consciousness; extensive second-degree or third- degree burns and other burns for which complications are present; extensive second-degree or third-degree frostbite and other frostbite for which complications are present; irreversible mobility or avulsion of teeth; injuries to the eyes; ingestion of foreign substances and objects that are harmful; near drowning; and heat exhaustion or sunstroke. Serious maltreatment includes neglect when it results in criminal sexual conduct against a child or vulnerable adult. It was determined that the substantiated emotional abuse for which the SP was responsible did not meet statutory criteria to be determined “serious” or “recurring” because the SP’s pattern of behavior was considered a single incident of emotional abuse, and did not result in serious injury. Action Taken by Facility: The facility completed an internal review and determined the facility’s policies and procedures were adequate, but were unable to determine if the policies and procedures were followed. The alleged incident was similar to a past event with the VA, however that incident did not involve the SP. The facility provided the SP with additional training and the SP no longer worked with the VA after being reassigned to a different facility. Action Taken by Department of Human Services, Office of Inspector General: The SP was not disqualified from providing direct care services as a result of the maltreatment determination in this report. However, the SP was notified by the Office of Inspector General that any further substantiated act of maltreatment, whether or not the act meets the criteria for “serious,” will automatically meet the criteria for “recurring” and will result in the disqualification of the SP. The determination that the SP was responsible for maltreatment is subject to appeal.
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