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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: 1070493-H_CRS (Home and Community-Based Services-Community Residential Setting) 1070470-HCBS (Home and Community-Based Services) Investigator(s): Scout Peterson/ Samantha Wueste scout.peterson@state.mn.us Suspected Maltreatment Reported: It was reported that a staff person (SP) used a kitchen/utility bristle brush to clean the VA’s legs to deter a vulnerable adult (VA) from defecating him/herself. It was also reported that the SP swore at the VA during a mealtime, telling the VA that s/he was “not fucking doing this with [the VA] today.” Date of Incident(s): On or around November 16, 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), clauses (1) and (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: · Hitting, slapping, kicking, pinching, biting, or corporal punishment of a vulnerable adult. · 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 December 12, 2024; from documentation at the facility; and through eight interviews conducted with five facility staff persons (P1-P5 and the SP), a facility supervisory staff person (P6), and the VA’s guardian (G). This investigator met with the VA but due to his/her diagnoses and limited communication, the VA was unable to provide information for this investigation. The facility was a single-family, two-story home in a rural area. The living room was directly in front of the main door with a hallway to the right that led to a laundry room, a staff office, two bathrooms, and two client bedrooms. Across from the living room was a dining room and a secured doorway that led to a fully enclosed kitchen area. To the left of the dining room was a staircase that led upstirs to a bathroom and two client bedrooms, including the VA’s bedroom. The VA’s bedroom had a closet that was locked and could only be accessed by staff persons. The VA’s Individual Abuse Prevention Plan dated July 5, 2023; the VA’s Coordinated Service and Support Plan dated November 12, 2024; and the VA’s Crisis Plan dated November 26, 2024, provided the following information: · The VA began receiving services from the facility in December of 1995 for assistance in “all areas of daily living.” The VA was diagnosed with childhood disintegrative disorder (a neurodevelopmental disorder that was part of the autism spectrum disorder) and profound intellectual disabilities. The VA had a history of chronic constipation that resulted in the VA needing a modified diet and daily medications. The VA had a 24-hour plan of care with a minimum of 1:4 staffing 24 hours a day while at the facility. The VA did not communicate with words but responded to “most” verbal requests or visual and gestural prompts. The VA preferred a “calm” and “quiet” environment and liked to spend time alone in his/her bedroom. The VA enjoyed doing puzzles, going for walks, and riding his/her stationary bike. · Due to the VA’s history of elopement and self-injurious behaviors, the VA remained within “hearing distance” of staff persons “at all times” while inside the facility and staff persons observed the VA “routinely” to maintain the VA’s health and safety. Since the VA was “quick” and “very strong,” staff persons used an “assertive voice” when trying to prevent the VA from “getting away with things.” The VA was “tactile defensive” and did not like to be touched.
· According to the VA’s support plans and restrictions, the VA was at risk of choking, becoming injured, and/or ill due to the VA’s history of stealing food and “quickly” consuming anything that “resembled” a food or beverage item. The VA did not have access to the kitchen or food without direct supervision and assistance from staff persons. During mealtimes, staff persons gave the VA “bite sized” portions and provided the VA verbal reminders and “encouragement” to “slow down” when eating. Additionally, the VA did not have access to his/her bedroom closet without direct supervision and assistance from staff persons due to the VA’s preferences of changing clothes many times throughout the day instead of participating in activities of daily living that resulted in “unsanitary conditions.” · The VA was susceptible to physical and emotional abuse because s/he was not able to identify potentially dangerous situations; defend him/herself from verbally and/or physically aggressive persons; engaged in provoking behaviors that could cause others to retaliate with an abusive response; and was unable to report abuse if it occurred. P1 provided the following information: · P1 and the SP worked together at the facility on multiple dates from August 19 to December 2, 2024. During this time, the facility had four clients, including the VA, and provided two to three staff persons for care and supervision during daytime hours and one awake staff person during overnight hours. P1 said that staff persons administered enemas to the VA for constipation, which sometimes resulted in the VA having multiple incidents of fecal incontinence throughout a day that were “messy” and required staff persons to bathe the VA, clean the VA’s soiled items including clothing and/or bedding, and provide a new change of clothes to the VA. When cleaning the VA’s soiled bedding items, staff persons used a kitchen/utility scrub brush that was kept in the laundry room before putting the soiled items into the washing machine. · On November 24, 2024, P1 and the SP worked on the afternoon/evening shift together. During this time, the SP told P1 that on a Saturday that P1 could not recall the date, after the VA had multiple incidents of defecating him/herself, the SP used the laundry room scrub brush to clean fecal matter from the VA’s outer thigh. The SP told P1, “I just scrubbed [the VA] and I made sure that it hurt so [s/he] wouldn’t do it again.” P1 did not say “a word” to the SP in response to what the SP said because P1 “genuinely did not know what to do” and had not “experienced anything like this.” That night, during the VA’s evening bath, P1 looked at the VA’s legs to see if s/he had any visible marks or injuries from the incident, but P1 did not see any injuries to the VA’s body at that time. [Note: Information obtained showed that the date that date of the incident was most likely November 16, 2024.) · On an unknown date between November 25 to 27, 2024, P1 told P3 what the SP said regarding using the scrub brush to clean the VA. P3 told P1 that s/he needed to tell supervisory staff persons about the incident and P1 did so. · P1 was not aware of any prior incidents of the SP being physically aggressive to the VA or trying to physically harm the VA. P1 stated that the SP was a “very aggressive toned person” and on unspecified dates, the SP “yelled” at the VA. On an unknown weekend during a mealtime, P1 and the SP assisted the VA in eating his/her meal at an appropriate pace when the SP told the VA, “I’m not fucking doing this with you,” and then “yelled” at the VA. P1 did not recall the VA’s reaction to being yelled at. On a different weekend on or around November 30, 2024, after the VA had an incident of defecating him/herself, the VA put his/her “arms up” and “cowered” after the SP walked into the VA’s bedroom. P1 had not seen the VA react in a similar manner to the SP or any other staff persons. P2 provided the following information: · P2 and the SP worked together “a lot” from August 19 to December 2, 2024, “mostly” during evening shifts. On November 16 and 17, 2024, P2 worked with the SP and one additional staff person and did not see or overhear any incidents of the SP being physically aggressive to the VA, nor was P2 aware of any injuries made to the VA during that time. On an unknown date thereafter, P2 was made aware through “hearsay” and/or “rumors” that on or around November 16, 2024, the SP used a “little dish brush” to “scrub” and clean the VA after the VA had defecated him/herself. P2 did not see or overhear such an incident and was not aware of any prior incidents of the SP being physically aggressive to the VA or trying to physically harm the VA. · P2 could not recall any differences in the VA’s behaviors or demeanor that were impacted by the SP’s presence or lack of presence at the facility. However, P2 “honestly thought” that the SP “should not be working in healthcare” because the SP was “very reactive, head butting, and confrontational.” The SP was “not very nice” to the VA, “very shouty,” and “really harsh” when communicating with the VA. P2 did not hear the SP “swear” at the VA but the SP used “very sharp, harsh language” when speaking to the VA and “yelled” at the VA, saying things like, “You’re done! Go back to your room!” The SP would “get into screaming matches” with clients and made the home environment “very awkward.” P2 was not aware of any interpersonal conflicts among staff persons. P5, P6, and the facility’s Internal Review completed by P6 dated December 2, 2024, provided the following information: · On November 27, 2024, P1 asked P5 if s/he could talk while they worked during a shift together. P1 told P5 that the SP told him/her that s/he had used an “abrasive cleaning brush” to clean the VA after the VA defecated him/herself. The SP told P1 that s/he “purposely rubbed on [the VA’s] skin very aggressively with the brush so that [s/he] wouldn't have another accident.” When P5 asked P1 why s/he had not said anything about the incident sooner, P1 told P5 that s/he was “scared.” P1 told P5 that P3 was also aware of the incident because “[the SP] had directly told [P3]” about the incident, “quoting the same things” that the SP told P1. P1 told P5 that P2 was working with the SP at the time of the incident. On December 2, 2024, P5 called P6 and told him/her what P1 said. P6 then immediately called and spoke with P1, P2, and the SP and each provided information to P6 that was consistent to the information each provided to this investigator. P5 and P6 were not aware of any injuries to the VA that resulted from this incident. · P5 was not aware of any prior incidents of the SP being physically aggressive to the VA but stated that the SP was “very verbally aggressive.” On multiple unknown dates prior to November 27, 2024, the SP “swore,” “argued,” and “yelled” until s/he “turned red in the face” at clients, including the VA. The VA did not like “firm voices” and the way that the SP treated the VA made the VA “feel scared.” Although P5 stated that “sometimes” staff voices needed to become “more firm” when redirecting the VA’s behaviors, there was a difference of “being firm versus screaming at [the VA]” and that staff persons should not “yell” at clients in the way that the SP communicated with the VA. P5 stated that s/he told a supervisory staff person about these concerns regarding the SP’s treatment of clients prior to November 27, 2024. · P6 stated that in November 2024, prior to being aware of the incident, the SP received a “verbal warning” regarding the SP’s “level of voice” and “words chosen to use” when speaking to clients that did not include the SP’s interactions with the VA. P3 and P4 each stated that they had limited times they worked with the SP and were not aware of any incidents regarding the SP being physically aggressive to the VA. The SP was a “little rude” and/or “snarky” if s/he was “annoyed” with the VA but was “never abusive.” The SP “casually swore” when speaking to other staff persons but did not “swear” or “yell” at the VA while s/he worked with P3 or P4. Although there was “recent hearsay” that the SP “mistreated” the VA, P3 and P4 did not know any information related to the incident. P4 thought that it would be “unlikely” for an incident like that to occur “unnoticed” by other staff persons who were present within the home and that the VA would have responded with “some resistance” to being in that situation. Additionally, the VA would “likely” sustain a mark on his/her skin from such an incident since the VA had “very fair” and “smooth skin.” P3 or P4 each said that no marks and/or injuries were seen on the VA by either during November 2024. The SP provided the following information: · The SP “usually” worked with three other staff persons during each shift and stated that s/he “got along” with “all” of the staff persons and clients who s/he worked with. The SP “adored” the VA and “loved” working at the facility. The VA was a “very nice” person and was “never challenging,” “listened” and “helpful” to staff persons. Staff persons, including the SP, assisted the VA in taking showers every other day and more frequently if the VA defecated him/herself. The VA was not “upset” if s/he needed additional baths/showers and “loved to play” in the water. Although “sometimes” staff persons were “frustrated” by the VA’s behaviors, staff persons “vented” to one another in the kitchen and these “frustrations” were not communicated to or in front of the VA. · On December 2, 2024, P6 called the SP and told him/her about the allegations involving the scrub brush and swearing at the VA. The SP told P6 that these were “ridiculous” and “huge allegations.” The SP repeatedly denied that the incident occurred and stated that s/he “would never do such a thing” nor did it “ever come out of [his/her] mouth” in telling another staff person that the incident occurred. Additionally, the SP denied “swearing” or “yelling” at the VA at any time when working at the facility. · When asked why another staff person might say that the SP had said these things, the SP said that s/he “wondered” this too. The SP stated that P1 expressed wanting the SP’s schedule even though the SP said that s/he worked “extremely long hours every other weekend” to where supervisory staff persons referred to the SP as the “weekend warrior.” The SP was not aware of any interpersonal conflicts between him/herself and other staff persons. · The SP was not aware of any times when staff persons and/or facility clients were concerned about his/her interactions with the VA. The G stated that s/he was aware of the incident but s/he did not have any additional information to provide for this investigation. The G stated that s/he did not have any concerns regarding the care and supports the VA received at the facility. The facility provided two photos of a kitchen/utility brush that was said to be the brush that was used by the SP. The brush was approximately 11 inches long with a 2.3”x2.3” square head that contained nylon bristles designed for cleaning various kitchen and/or household items. The back of the brush was labeled in black permanent marker, “Laundry.” The facility’s policy on the Service Recipient Rights stated that clients had a right to be free from maltreatment and to live without the fear of abuse and neglect. Additionally, clients were to have services and supports provided to them that were identified in their plans in a manner that respected clients as individuals and took into consideration the person’s preferences. Clients were to be treated with courtesy and respect. The SP’s Plan of Action dated and signed by the SP and supervisory staff persons on November 18, 2024, stated that there were “serious concerns” with the SP’s behavior and job performance regarding “numerous” incidents of having a “poor/disrespectful communication style” when the SP interacted with clients, guardians, and/or other staff persons. Examples of these incidents were not specified, but it was stated that the SP became “very defensive and very disrespectful” to supervisory staff persons when these concerns were addressed with the SP. Supervisory staff persons, including P6, provided the SP with “coaching" on the facility’s policies and procedures that the SP was required to maintain and “expected” the SP to “treat all clients with dignity and respect.” For the SP to remain working at the facility, “immediate and lasting improvement” regarding the concerns with the SP’s behavior and job performance were required.
Facility documentation showed that the SP and P1-P5 were trained on the VA’s plans, facility policies that included the Service Recipient Rights, and the Reporting of Maltreatment of Vulnerable Adults Act. Relevant Rules and Statutes: Minnesota Statutes, section245D.04, subdivision 3, paragraph (a), clause (6) state that a person’s protection related rights include the right to be treated with courtesy and respect. Conclusion: A. Maltreatment: Regarding the SP using a scrub brush to clean the VA: The VA needed assistance from staff persons for “all areas of daily living.” The VA’s plans stated that the VA had a history of chronic constipation that resulted in the VA needing a modified diet and daily medications. The facility typically had three staff persons working on a shift together during awake hours. Consistent information was provided by P1, P2, P3, P4, P5, and P6 that staff persons did not observe any incidents of the SP being physically aggressive to the VA or trying to physically harm the VA. The VA was not able to verbally communicate so could not provide information. P1 stated that on November 24, 2024, the SP told him/her that the SP used the laundry room’s utility brush to “scrub” the VA’s leg after the VA defecated him/herself which likely occurred on November 16, 2024. No injuries to the VA were observed by any staff persons regarding this incident.
P2 worked with the SP on November 16 and 17, 2024, and stated that s/he did not see or overhear any incidents of the SP being physically aggressive to the VA, nor was P2 aware of any injuries to the VA during that time. Although P1 provided consistent information that the SP said s/he scrubbed the VA with a scrub brush trying to cause the VA pain, given that P2 and P3 worked with the SP and each stated they did not see or hear any such incident, that the VA had no injuries, and that the SP denied that allegations, there was not a preponderance of the evidence whether the SP used a scrub brush on the VA to cause the VA pain.
It was not determined whether 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). Regarding the SP swearing at the VA: According to the VA’s plans, the VA preferred a “calm” and “quiet” environment and responded to “most” verbal requests or visual prompts. Due to the VA’s history of consuming his/her food “quickly” and being at-risk for choking, staff persons assisted the VA during mealtimes by providing the VA “bite sized” portions and verbal reminders or “encouragement” to “slow down” when eating. P1 said that on an unknown date during a weekend shift when P1 and the SP were working together, P1 heard the SP tell the VA during a mealtime that s/he “was not fucking doing this with [the VA] today” and then “yelled” at the VA. P1 could not recall the VA’s reaction to being spoken to in this way. On another weekend, P1 saw the VA “cower” when the SP walked into the VA’s bedroom. P5 stated that on unknown dates, s/he also heard the SP “swearing” at clients, including the VA, but could not recall examples of what specific language the SP used when speaking to the VA. Consistent information was provided by P1, P2, P5, and P6 that the SP was “verbally aggressive” when communicating with the VA. On unspecified dates, the SP “yelled,” “screamed,” “argued,” and used “harsh tones” and/or “sharp language” when speaking to the VA. According to P2, the SP was “very reactive, head butting, and confrontational.” P5 stated that the VA did not like “firm voices” and the way that the SP treated the VA made the VA “feel scared.” On November 18, 2024, the SP received a Plan of Action regarding “numerous” incidents of having a “poor/disrespectful communication style” when the SP communicated with clients, guardians, and/or other staff persons. The SP was provided “coaching” on the facility’s policies and procedures, requirements, and expectations which included that all clients were to be treated with “dignity and respect,” with immediate “improvement” to be shown by the SP in his/her behavior and job performance. The plan was acknowledged and signed by the SP at this time. P3 and P4 had limited experience in working with the SP and did not hear the SP “swear” or “yell” at the VA. The SP “casually swore” when speaking to other staff persons and was a “little rude” and/or “snarky” when speaking to the VA if s/he was “annoyed” with the VA. The SP denied “swearing” or “yelling” at the VA and stated that s/he “adored” the VA and thought the VA was a “nice person” who “listened” to staff persons. Although the SP stated that the VA was “never challenging,” the SP also told this investigator that “sometimes” staff persons were “frustrated” by the VA’s behaviors and “vented” to one another in an area that was not overheard by the VA. Although the SP denied “swearing” or “yelling” at the VA, the SP had reasons to minimize his/her actions for fear of repercussions. In addition, there was consistent information provided by P1, P2, P5, and P6 that there were multiple incidents of the SP being “verbally aggressive” to the VA that included “swearing,” “yelling,” and using “harsh” tones/language when communicating with the VA on an ongoing basis. The SP’s actions of communicating with the VA in this manner were inconsistent with the standards of a professional caregiver in a facility licensed by the Minnesota Department of Human Services and a violation of Minnesota Statutes section 245D.04, subdivision 3, paragraph (a), clause (6). Therefore, there was a preponderance of the evidence that the SP’s verbal actions towards the VA were not accidental or therapeutic conduct and was the use of repeated oral language toward the VA that could be considered by a reasonable person to be disparaging, derogatory, humiliating, harassing or threatening and could reasonably be expected to produce emotional distress. It was determined that 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 received training on the VA’s plans, facility policies, and the Reporting of Maltreatment of Vulnerable Adults Act prior to the incidents. 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 as “recurring” or “serious.” The individual interactions the SP had with the VA likely did not meet the definition of maltreatment and it was repeated nature of the verbal interactions that were maltreatment and therefore were considered a pattern of behavior and a single incident that did not meet the definition of serious.
Action Taken by Facility: The facility completed an internal review and determined that the facility’s policies were adequate but were not followed by the SP, nor followed by P1 due to the delay in reporting which should have been done within 24 hours. The SP no longer worked at the facility. All staff persons were retrained on the Reporting of Maltreatment of Vulnerable Adults Act. 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. Given that the facility took corrective action, a Correction Order was not issued for the violation outlined in this report.
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