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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: 1112269 -H_CRS (Home and Community-Based Services-Community Residential Setting) 1070806 -HCBS (Home and Community-Based Services) Investigator(s): Gessner Rivas gessner.rivas@state.mn.us Suspected Maltreatment Reported: It was reported that a staff person (SP) asked three vulnerable adults (VA1-3) to steal from stores for the SP on multiple occasions and later VA1 was intoxicated and made suicidal statements because of the incident. It was also reported that the SP drank alcohol before driving the VAs. Date of Incident(s): February 5, 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 17, paragraph (a): In the absence of legal authority a person forces, compels, coerces, or entices a vulnerable adult against the vulnerable adult's will to perform services for the profit or advantage of another. 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 March 15, 2024; from documentation at the facility and law enforcement records; and through six interviews conducted with VA1-3, a facility resident (R), a facility supervisor (P), and the SP. VA1 was diagnosed with mild intellectual disabilities, borderline personality disorder, and major depressive disorder. VA1 liked to play video games and hoped to transition to living in an apartment. VA2 was diagnosed with mild intellectual disabilities, major depressive disorder, and type two diabetes. VA2 liked to watch movies and play video games. VA3 was diagnosed with mild intellectual disabilities, specific personality disorders, and attention deficit hyperactivity disorder. VA3 did not have unsupervised time and was on probation but aspired to gain unsupervised time and live independently. During the course of this investigation, it was alleged that the SP had made sexual comments toward VA2. According to VA1, it was a one-time comment that was made in the kitchen about a month prior to the shoplifting incident; the SP said, “I would like to see what is under that.” However, in a statement dated February 21, 2024, provided to the facility, VA1 was not sure if the SP had made that comment. VA3 said it was in VA2’s bedroom where the SP said, “I wonder how big it is.” VA3 also stated that the SP dressed in a manner that triggered sexual desires in VA3. VA2 stated that the sexual comments were made on the first day that the SP worked at the facility. VA2 and VA3 both stated that they informed the P about the comments. The SP denied ever making such comments. According to the P, the residents mentioned the comments after the shoplifting incident and there were no concerns regarding the SP’s manner of dressing; the SP dressed properly. According to the R, s/he heard the SP say sexual things to VA2. However, VA1-3 had different accounts of what was said and where and when the comments were made, there was no further context to the comments, and the SP denied making sexual comments. Therefore, this allegation was not investigated further and was not the focus of this report. The following information was obtained from a LE report: · On February 5, 2024, a plain clothed officer was patrolling near a Kohls store and observed a person standing outside a vehicle acting in a manner that appeared to be a lookout, then another person who exited the store joined the first, followed by the others shortly thereafter. The last two persons were observed taking items from their person that appeared to be concealed and placing them in merchandise bags. They then drove to TJ Maxx where all occupants exited the vehicle and entered PetSmart, they eventually left and entered TJ Maxx. · The plain clothed officer followed the group into TJ Maxx and observed them. VA1 was seen talking to an employee as the SP put several bottles of perfume into her/his coat pocket. VA1 and VA2 left the store. The SP and VA3 left the store without paying for merchandise. · As the group entered their vehicle, other officers made contact with them, the SP stated s/he was the staff person for the others (VA1-3). The officer searched the facility vehicle and found several bags of stolen merchandise. The SP admitted to stealing from Bath and Body Works, Kohls and Hy-Vee. The VAs admitted to stealing several items. · In a statement given to LE, the SP stated that VA1 helped the SP take items from Hy-Vee, VA1 and VA3 took items from Kohls but on behalf of the SP without prompting from the SP. · According to the LE report, officers took inventory of the potentially stolen items in the facility van; the total value of items stolen was calculated at $497.45. The report made no mention of open alcoholic beverages in the facility van. The SP was charged with theft. VA1 provided the following information: · VA1 stated that on the night of the incident, February 5, 2024, s/he asked to go for a ride and that turned into stealing. They, including VA1-3 and the SP, first went to Hy-Vee where VA1 purchased pop with her/his own money. They then went to a Cub grocery store where they grabbed a bunch of stuff and then went to the liquor store and VA1 took small shot bottles of alcohol. Then they went to Marshall’s and walked around, then to GameStop and then to Bath and Body Works. · VA1 said that the SP did not ask her/him to take things, but VA1 did take things without paying for them from stores, such as candy bars, small bottles of alcohol, and some deodorant. · VA1 recalled there was a law enforcement officer that was not in uniform that was watching them, they were stopped in the parking lot; LE told them that the SP was not going to go to jail because the SP was with them. · After the SP’s shift was over, VA1 went for a walk because he was not in a good mindset; VA1 drank the stolen bottles of alcohol. VA1 was accompanied by VA2, they walked to a gas station, while VA2 returned to the facility, VA1 kept walking. Later that night LE took VA1 to a hospital for observation. When asked if it was because of the shoplifting, VA1 said, “No.” VA1 and VA2 had unsupervised time in the community. · VA1 stated that the SP was a good staff person who listened to the residents more than other staff persons. In a statement collected by the facility dated February 21, 2024, VA1 stated that s/he drank the alcohol sometime after they arrived back at the facility after shopping with the SP and “was intoxicated being my goofy self, as far as I know, don’t think they could tell.” A facility investigation report noted that VA1 went to a police station and was later taken by LE to a hospital. VA2 provided the following information: · VA2 stated that there were multiple times that the SP would take residents to stores and ask them to steal items; the SP would coach them to steal. VA2 recalled going to stores like TJ Maxx, Kohls, Bath and Body Works, and a pet store. VA2 recalled that they went from store to store and returned to their vehicle to drop off stuff at their vehicle, the facility’s van. The SP asked VA2 to steal a coat from TJ Maxx, but VA2 refused and returned to the van. VA2 also stated that s/he had money so s/he bought things. As they were leaving, LE stopped them, and said that they had been watching them, LE officers told them that if they were not living at a facility, they would have taken the SP to jail. · That night, VA2 had purchased alcohol, when LE stopped them, there was an open can of beer upfront that belonged to the SP. VA2 recalled seeing the SP drink while driving them. · VA2 went for a walk with VA1 that same night because VA1 was upset. VA1 was drinking and was talking about killing her/himself, they went to a gas station. VA2 recalled that VA1 fell down a hill and got covered in spurs, they both laughed about it. VA2 returned to the facility but VA1 continued walking. In a statement collected by the facility dated February 15, 2024, VA2 stated that s/he had stolen three items from a store. VA3 provided the following information: · VA3 recalled the night of shoplifting, at that time VA3 was still on probation. The SP asked VA3 to take things from Kohls, mostly kid stuff because the SP’s pockets were stuffed. VA3 stated that they went to almost every store at the strip mall. The SP had taken residents to stores before but the SP had not asked them to take things on previous occasions, although the SP had shoplifted on previous occasions while residents were with him/her. · VA1 and VA2 wandered around the stores but VA3 had to stay by the SP’s side because s/he did not have unsupervised time in the community. The SP provided the following information: · The SP took the residents to store(s) about one or two times a week. The SP stated that s/he was not aware that the residents with her/him had taken items from stores on February 5, 2024. LE stopped them and asked them a few questions. The SP was aware that one of the VAs was on probation. The SP denied ever having the VAs steal on her/his behalf. The SP noted that s/he has been charged with theft for stealing items the day of the incident. · The SP denied ever drinking while driving with the VAs. In a written statement to the facility, the SP stated that the day of the incident the VAs had taken items from stores and stated that s/he had iced coffee not alcohol in the van. The R provided the following information: The R had never gone shopping with the SP and VA1-3. The R recalled being in the facility van once when s/he and the other residents went to the SP’s apartment, but the R stayed in the van and slept. The R also noted that s/he never saw the SP drink while driving, but also never went shopping with the SP. The P provided the following information: · Staff persons at the facility received training on personal boundaries every year which included the prohibition of asking clients to do illegal activities. · Prior to finding out about the allegations against the SP, there were no concerns regarding the SP. The SP was a “good” staff person, s/he took the residents out, was communicative, and did everything the SP was asked to do. · The P was aware that the SP had once taken one or more of the VAs to her/his apartment to help with a TV that had been delivered. · The P stated that the SP always dressed appropriately. The P noted that the allegations of having clients steal was unacceptable behavior outside of policies and procedures. The facility’s Investigation Report and Summary stated that VA3 stole clothing for the SP because the SP’s pockets were too full, VA2 stole two or three bottles of spray, and VA1 stole sprays and liquor shooters. VA1 stated that s/he did not want to steal but did. VA2 stated that the SP consumed alcohol while driving and while in the parking lot when the SP was drinking from a small personal alcohol bottle and a beer that s/he obtained from the liquor store. VA2 stated that the SP stole items any time they went to a store. The SP “coached” the VAs saying, “If you steal, don’t get caught.” VA2 did not tell anyone about pervious incidents of stealing because if the SP was upset with the VAs, the SP “might not take [the VAs] out.” VA3 stated that the SP “peer pressured” VA3 into helping the SP steal when the SP asked for help. The SP stated that s/he was “tempted and took stuff.” The SP stated s/he did not know the VAs had taken anything until they got to the vehicle and took items out. The SP denied having alcohol and stated s/he had an iced coffee in the vehicle. The SP was trained regarding the Reporting of Maltreatment of Vulnerable Adults Act. In addition, facility records also showed that the SP was trained on the program plans for VA1-3. Conclusion: A. Maltreatment: Information showed that on February 5, 2024, the SP took VA1-3 to various stores, where the SP and VAs stole items. Although the SP denied asking VA1-3 to steal items from stores, VA2 and VA3 stated that the SP did. VA2 stated that the SP asked her/him to steal a coat but VA2 refused. VA3 stated that s/he stole items for the SP because the SP’s pockets were full. VA1 stated that the SP did not ask her/him to steal for the SP. Officers confronted the SP and VAs and found several bags with items in the facility vehicle. The SP admitted to stealing items and was charged with theft. VA2 stated that the SP stole items every time they went to stores. VA2 did not tell anyone about previous incidents because s/he thought the SP would be mad. VA2 stated that the SP drank alcohol while driving and in the parking lot the day of the incident. When the SP and the VAs were stopped by LE, LE searched the vehicle and took an inventory of the stolen items, the LE report made no mention of any open alcoholic container in the vehicle. After the SP and the VAs returned from their shopping trip, VA1 drank small bottles of liquor, s/he had stolen while out with the SP and was intoxicated when s/he and VA2 left the facility to go on a walk. VA1 stated that s/he left the facility after the SP’s shift and that s/he was not in the right mindset, s/he was intoxicated and acting “goofy.” VA1 noted that the shoplifting earlier that evening had nothing to do with her/him leaving the facility. Given that the SP engaged in illegal activity while s/he was responsible for the care of VA1-3, that the SP asked VAs to steal for and with him/her, and that although the SP denied drinking alcohol while driving, s/he had reason to minimize his/her actions for fear of consequences putting the VAs at risk of harm, there was a preponderance of the evidence that the SP failed to provide the VAs with reasonable and necessary care and services. 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 VA1-3. The SP took VA1-3 shopping where the SP asked the VA2 and VA3 to shoplift for the SP. The SP also engaged in shoplifting while accompanying VA1-3. The SP received training on the maltreatment and the program plans of each VA. The SP was responsible for maltreatment of VA1-3. 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 neglect for which the SP was responsible was “recurring” maltreatment because the SP stole on more than one occasion while with and responsible for the supervision and care of the VAs but was not “serious” maltreatment because the VAs did not sustain injury. Action Taken by Facility: The facility completed an Internal Review and determined that policies and procedures were adequate but not followed. The SP no longer worked for the facility. Action Taken by Department of Human Services, Office of Inspector General: The SP was notified that s/he was responsible for recurring maltreatment and that any future background studies for facilities, 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, will result in his/her disqualification. The determination that the SP was responsible for maltreatment is subject to appeal.
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