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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: 1082863-CRF (Children’s Residential Facility) Investigator(s): Gessner Rivas gessner.rivas@state.mn.us 651-431-3970 Suspected Maltreatment Reported: It was reported that a staff person (SP) and an alleged victim (AV) got into an altercation where the AV and the SP grabbed each other by the hair, and the SP put the AV in a choke hold. Date of Incident(s): November 23, 2023 Nature of Alleged Maltreatment Pursuant to Minnesota Statutes, section 260E.03, subdivision 18, paragraph (a), and subdivision 23, paragraph (a): "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 December 22, 2023; from documentation at the facility; and through four interviews conducted with two facility staff persons (P1 and P2), the SP, and the AV. The facility was a residential mental health treatment facility that served youth. The facility was located in a mixed office and retail area. The AV was diagnosed with disruptive mood dysregulation disorder. According to the AV’s progress notes, the AV liked to take brief walks or do relaxation exercises. The facility’s Residential Restrictive Procedures Plan showed that staff persons were to use the least restrictive, reasonably reliable measures needed to manage resident behavior and needs and not used as means of coercion, discipline, retaliation, or in any other punitive manner. The facility’s Approved Restraint Techniques policy listed the approved methods of restraint for the facility and how they should be implemented, such as a standing restraint technique where a resident was retrained by a staff person from behind or a standing to settle position technique that started out like a standing restraint but lowered the resident to a sitting position. Neither of these techniques allow for the use of a choke hold, head lock, or hitting to restrain a resident. Video footage of the incident on November 23, 2023, which did not have audio, provided the following information: · The timestamp showed that at 2:26 p.m., the AV entered a milieu room where other residents were gathered just after and sat down at a table. A moment later the AV approached an area where two other residents were sitting on bean bag chairs, in front of a TV either playing video games or watching TV and grabbed a video game controller located by one of the residents. · The SP approached the AV at 2:27 p.m., they exchanged words and the AV backed away toward two other bean bag chairs that were up against a nearby wall. The SP attempted to take the controller away but the AV refused to let it go. Another staff person (P1) approached to assist. The SP struggled with the AV and pushed the AV over one of the bean bag chairs. The AV got up and approached the SP, they exchanged words and the AV then lunged toward the SP. · In the struggle, the AV and the SP spun around, the AV and SP went down on their knees but the AV quickly got up and went after the SP again. P1 pulled the AV away but the SP was still holding on to the AV’s hoodie and the AV grabbed the SP’s hair. The SP did not disengage from the incident or attempt to help P1. · While P1 was still trying to restrain the AV from behind, the SP stood up punched the AV in the back of the head, and the AV and the SP traded swings with each other. A third staff person attempted to assist to separate the AV and the SP and bring the altercation to an end. However, the SP continued to throw punches at the AV even as the AV went down to the floor in the attempt by P1 and the other staff person to restrain the AV. · After momentarily being separated, both the AV and the SP continued throwing punches at each other and resumed fighting until the SP put the AV into a headlock, not a choke hold. The two were separated by P1 at 2:28:11 p.m. on the video time stamp. · P2 arrived after the SP and the AV had been separated. The incident lasted just over one minute. The AV provided the following information: · The AV stated that s/he took a video game controller, and the SP wanted it back because the AV was not supposed to be playing video games at that time. The AV turned away from the SP and the SP bear hugged and pushed the AV to the floor. The AV got up and approached he SP and said, “What the hell!” The SP said, “Do something.” So, the AV did. · Other staff persons tried to hold the AV back to de-escalate the situation, the AV was not hurt by their efforts. The AV recalled that s/he and the SP threw punches at one another, but that the AV threw the first punch. The AV stated that s/he did not want to get the SP in trouble. · The AV did not recall using the “N” word toward the SP but liked to “push people’s buttons” and started arguments with others because s/he wanted to get out of the facility. The AV stated that s/he was not hurt following the incident but may have had some redness on her/his body afterwards. The SP provided the following information: · The SP stated that on the day of the incident there had been multiple incidents with the AV. Earlier in the day, the AV had pushed another resident to the floor, was using racial slurs and name calling toward other residents. Those incidents were resolved. · When the AV took the remote from another resident, the SP walked up to the AV and asked her/him to give it back; the AV responded with, “What the fuck are you going to do?” · The SP stated that the AV broke her/his glasses, pulled out her/his hair. When asked about throwing punches at the AV, the SP could not recall everything but stated that the AV was a strong kid and the SP needed to protect her/himself. The SP could not recall putting the AV in a headlock but stated that s/he sustained multiple hits to the head and had a nosebleed. · The SP stated that there should have been additional staff instead of just the SP. The other staff persons that were nearby were still in training and they could only observe. The SP believed that the training the facility provided was not sufficient; training on restraints was only 15-20 minutes long and most holds had to be a two-person hold. When asked if the incident was handled pursuant to policies, the SP stated that there should have been a two-person hold. The SP could not recall any hold for which only one staff person could apply; in training every hold had to be by two or more staff persons. · Looking back at the incident, the SP stated that s/he should have left because the situation was not safe. P1 provided the following information: · P1 noted that the AV had been “rowdy” that day. The AV had referred to the SP using the “n” word throughout the day, including toward staff persons. P1 recalled that at some point during the altercation, the AV told the SP, “I told you I was gonna beat your ass.” · P1 and another staff person that was in training tried to separate the AV and the SP. P1 stated that they were short staffed that day and that staff persons received little training on retraining residents. P2 provided the following information: · P2 stated that the AV liked to push people’s buttons and had issues with woman, using racial and homophobic slurs. The AV had two other incidents that day, one before and another right after the incident with the SP. P2 noted that after the incident, the AV had a long scratch down her/his neck, that was superficial in nature and faded away as P2 spoke with the AV. · According to P2, staff were trained on ignoring taunts from residents, the AV’s team would discuss ways to regulate the AV on a weekly basis and there was regular communication between management and staff persons on the subject. · P2 stated that the SP had a good work ethic, followed the rules and enforced them, there were no previous concerns with the SP, s/he never laid hands on residents in any manner that was not therapeutic. With respect to the manner in which the SP handled the incident, P2 stated that the SP gauged the situation poorly and interacted with the AV in a “subpar way leading to a very unfortunate outcome.” Facility documentation showed that the SP received training on restraints, de-escalation, and on the Reporting of Maltreatment of Minors Act. Conclusion: A. Maltreatment: Facility video from the incident on November 23, 2023, recorded the entire incident between the AV and the SP. After the AV refused to give back a video game controller to the SP. The AV was shoved toward a bean bag chair in the process of taking the controller back and the AV proceeded to lunge at the SP. Both the AV and the SP threw punches at one another and despite attempts by other staff persons to separate the two, the AV and the SP continued their physical aggression against one another. In the process of the incident, the SP punched the AV in the back of the head, the AV pulled the SP’s hair out, and the AV broke the SP’s glasses. Despite efforts by P1 and another staff person to bring the altercation to an end, it did not end until the SP placed the AV in a headlock and P1 managed to separate and keep them separated. The SP, the AV, P1, and P2 provided mostly consistent information regarding their recollection of the incident. The SP and P1 stated that the AV used derogatory terms toward the SP and other residents; P2 confirmed that the AV liked to use derogatory terms toward others at the facility. Given that the video of the incident showed the AV and the SP traded punches with each other in addition to the SP putting the AV in a headlock, there was a preponderance of the evidence that the SP engaged in conduct that was not accidental causing physical and threatened injury to the AV. It was determined that physical abuse occurred (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 received training on the facility’s restraint policies and on the Reporting of Maltreatment of Minors Act. 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 physical abuse for which the SP was responsible did not meet statutory criteria to be determined as recurring or serious because it was a single incident and although the AV had a scratch on his/her neck, it was transitory in nature and was unknown by what action it was caused. 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: The facility conducted an Internal Review of the incident and determined that the SP’s actions were not within policies and procedures. The SP was no longer employed by the 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. 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.
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