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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: 1122142-H_CRS (Home and Community-Based Services-Community Residential Setting) Investigator(s): Kim Anderson/Heidi Murphy 651-431-6553 Suspected Maltreatment Reported: It was reported that a staff person (SP) threw a vulnerable adult (VA) to the floor and kicked the VA during an altercation. The VA sustained two scratch marks on his/her left arm as a result of the altercation. Date of Incident(s): November 2, 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 November 14, 2024; from documentation at the facility and law enforcement records; and through four interviews conducted with facility supervisory staff persons (P1 and P2), a facility staff person (P3) and the vulnerable adult (VA). Attempts to contact the SP to set up an interview via telephone and U.S. mail were unsuccessful. Attempts were made by phone and mail to contact the VA’s guardian. The facility was a single-family home in a residential neighborhood. The entrance to the facility led to an entry way. There was a living room to the right, a dining area straight ahead, a kitchen area to the right of the dining area, and a family room to the left of the dining area. There were stairs that led to an upper floor off the entry way to the left. The facility’s file for the VA documented the following: · The VA’s diagnoses included attention deficit hyperactivity disorder (ADHD), depressive disorder, communication disorder, moderate developmental delay, and anxiety. The VA enjoyed playing video games, going on walks, playing basketball, and watching sports on television. · The VA’s Intensive Support Self-Management Assessment stated the VA had a history of physical aggression, including chasing and swinging objects at others. Due to the VA’s “inability to self-manage,” the VA needed staff persons’ supports in this area. · The VA’s Individual Abuse Prevention Plan stated, “[The VA] responds well to redirection from staff but lacks the ability to regulate behavior on [his/her] own. Staff will physically assist [the VA] away from unsafe situations by placing one hand on [the VA’s] shoulder or arm and applying light pressure as guidance with no resistance from [the VA] as needed. Staff may use other physical means only if there is immediate danger to [the VA] or others.” · The VA’s Coordinated Service and Support Plan Addendum Summary stated under the permitted procedures section that “physical contact must use the least restrictive alternative possible to meet the needs of the person and may be used to calm or comfort a person by holding that person with no resistance from the person or to briefly block or redirect a person’s limbs or body without holding the person or limiting the person’s movement to interrupt the person’s behavior that may result in injury to self or others.” A General Events Report completed by P3 stated that on November 2, 2024, the VA got upset while the SP made food in the kitchen. The VA took the SP’s phone and threatened to throw it against the wall. The SP grabbed a hold of the VA and tried to retrieve the phone. The VA stated s/he was going to get the SP fired and called 9-1-1. The SP stated the VA then scratched his/her own arm and created scratch marks. Law Enforcement Officers arrived and separated the VA and the SP and contacted a facility supervisor. The VA acknowledged that s/he scratched his/her own arm. The VA provided the following information to the DHS investigator: · One the date of the incident, an argument started when the SP made food. The VA took the SP’s phone and the SP said, “Give me my phone you N word.” The VA stated s/he tried to break the phone and almost slammed it on the floor. The SP chased the VA “all around the house” and “pushed” the VA to the floor. The SP kicked the VA in the stomach and “put marks on [the VA’s] arms with [the SP’s] fingernails.” · The VA talked to P3 about the incident and told P3 the truth, but P3 did not believe the VA and told the VA s/he was lying. The VA denied that s/he told anyone that the incident happened any different way. · The VA stated that because s/he had told “stories” in the past, people did not believe the recent incident with the SP happened. Law enforcement officer (LEO) body worn cameras and the LEO report provided the following information: · On November 2, 2024, at 7:56 p.m., LEOs arrived at the facility after the VA called to report s/he was assaulted by the SP. · The VA stated s/he took the SP’s phone and in response, the SP threw food. The VA stated s/he grabbed the SP’s cell phone and the SP chased the VA. The SP threw the VA to the floor and kicked him/her in the chest and arm. · The VA stated the SP then “picked [the VA] up and slammed [him/her] on the floor and started stomping on [the VA’s] face.” · The VA showed the LEO two recent scratch marks on the VA’s upper left arm and stated the injuries came from when the SP kicked him/her. The LEO provided wound care and applied a damp paper towel to the VA’s scratches. · The SP stated s/he attempted to make some food and the VA told the SP not to make the food. The VA tried to hit the SP and grabbed the SP’s phone. The VA threatened to throw the phone to damage it. The VA went around the dining room table to “get away” from the SP, as the SP tried to get his/her phone back. The VA ran past the SP and the SP grabbed the VA and tried to take the phone away from the VA. The VA did not let go of the phone and the SP grabbed the VA’s arm and tried to “force” the phone out of the VA’s hands. The SP did not tell the LEOs which arm s/he grabbed, nor whether doing so caused injury. · The LEO contacted P3 and requested a replacement staff person for the VA for the remainder of the shift. No criminal charges were filed. P3 provided the following information: · On November 2, 2024, P3 spoke to the VA on the phone and recalled the VA was in a “great mood.” P3 received a phone call around 8:00 p.m. from the LEO who said the VA and the SP had an argument and an altercation. · P3 had a staff person from the next shift take photographs of the scratches on the VA’s arm. P3 described the scratches as “superficial” and stated medical attention was not needed. · The VA told P3 s/he was upset that the SP spent too much time on his/her phone. The VA and SP had an argument and the VA stated s/he took the SP’s phone and started running and threatened to break the phone. The SP chased the VA, “grabbed [her/him] to grab the phone” out of the VA’s hand and knocked the VA to the floor. · The VA’s account of the incident “went back and forth a bunch of times because that is what [the VA] does.” The VA later told P3 s/he slipped on the floor when running instead of being knocked down by the SP. The VA did not mention being kicked when the incident was originally discussed. A few days after P3 first discussed the incident with the VA, the VA told him/her that the SP had kicked him/her during the incident. The VA had a history of being an inaccurate reporter, including a history of saying staff persons caused scratches on the VA and later acknowledging s/he had caused the scratches him/herself. · P3 told the VA that s/he did not believe the November 2, 2024, incident happened the way the VA said it happened and then the VA then told P3 s/he had scratched him/herself and that the injuries were not caused by the SP. P1 and P2 provided the following information: · P1 and P2 each stated the VA was not a reliable source of information. · P1 stated the VA “admitted to scratching [him/herself] and trying to blame it on [the SP].” · P1 stated the VA was known to target staff persons the VA did not like, and the VA did “everything in [his/her] power” to try to get targeted staff persons to leave or be fired. P1 stated the VA had “done the exact same thing to get staff to not be [his/her] staff” in the past. The facility’s Policy and Procedure on Emergency Use of Manual Restraint stated, “It is the policy of this company that emergency use of manual restraint is not allowed at any time.” The facility’s Employee Handbook stated personal cell phones may be brought into the workplace, however, “You must not allow the use of such devices to interfere with your job duties or impact workplace safety and health. You should primarily use such personal devices during nonworking time, such as breaks and meal periods.” Facility documentation showed that P1, P3 and the SP each received training on the Reporting of Maltreatment of Vulnerable Adults Act and on the facility’s policies. Conclusion: A. Maltreatment: Information showed that on November 2, 2024, the VA told the SP not to make food and then took the SP’s phone. The VA provided consistent information to the LEOs, P3, and this investigator that the SP chased the VA and threw the VA to the floor in attempt to get his/her phone back from the VA. However, the VA provided inconsistent information about other alleged conduct by the SP during the incident, including that the SP called him/her “N word,” kicked him/her, slammed him/her to the floor and stomped on his/her face, kicked him/her in the chest while s/he was on the floor, and/or pushed him/her to the floor and kicked him/her in the stomach. The VA also provided conflicting information regarding whether the SP or the VA him/herself caused the scratches on the VA’s arm. Given that the VA’s account of the incident changed over time, the VA’s credibility was diminished. After the incident, the VA had superficial scratches on his/her upper left arm. The SP did not respond to the DHS investigator’s request for an interview. LEO body camera footage showed the SP told the LEO that s/he grabbed the VA’s arm and tried to “force” the phone out of the VA’s hand, but the SP did not say which arm s/he grabbed and did not say if s/he caused the scratches on the VA’s arm. The VA’s support plans stated that staff persons could use “light pressure” with “no resistance” to guide the VA away from an unsafe situation, or “briefly block or redirect” the VA to interrupt behavior that may result in injury to the VA or others. However, the VA holding the SP’s phone did not present a situation where it was therapeutic for the SP to use force, nor did the VA’s behavior present an imminent risk of harm to the VA or others. Therefore, grabbing the VA’s arm and trying to “force” the phone out of the VA’s hand was not therapeutic conduct. Given the VA’s diminished credibility and inconsistent accounts of the cause of his/her scratches, there was not a preponderance of the evidence as to whether the SP caused the scratches on the VA’s arm. However, based on the SP’s account to law enforcement, there was a preponderance of the evidence that the SP grabbed the VA’s arm and tried to physically force a phone out of the VA’s hand, conduct which could reasonably be expected to produce pain. 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 was responsible for the VA’s care 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 physical abuse for which the SP was responsible did not meet statutory criteria to be determined as recurring or serious because the SP’s conduct was considered a single incident of physical abuse, and there was not a preponderance of the evidence as to whether the SP caused injury to the VA. Action Taken by Facility: The facility completed an internal review and found that policies and procedures were adequate and followed, however an addendum was added. The facility determined that there was a need for additional staff training on de-escalation strategies that could have been beneficial in this situation such as redirection and distraction. The event was similar to past events with the VA, in which the VA made “inaccurate reports” which were not substantiated by the facility. The SP received further training on de-escalation techniques and was transferred to a different home operated by New Hope Living. Action Taken by Department of Human Services, Office of Inspector General: It was determined that facility mandated reporters had knowledge of the alleged incident and did not report the incident as required. The license holder was ordered to forfeit a fine of $200 for failure to report maltreatment. The Order to Forfeit a Fine is subject to appeal.
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