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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: 1099218-H_CRS (Home and Community-Based Services-Community Residential Setting) 1068807-HCBS (Home and Community-Based Services) Investigator(s): Samantha Wueste 651-431-2278 Samantha.wueste@state.mn.us Suspected Maltreatment Reported: It was reported that a staff person (SP) “smacked” a cigarette out of a vulnerable adult’s (VA) hand after the VA began to smoke inside the facility. The VA responded by attempting to hit the SP but “missed.” The SP then “pushed” the VA onto the floor, “grabbed” the VA’s neck, and placed the VA in manual restraints. Date of Incident(s): April 24, 2025 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 for this investigation was obtained from a site visit on May 8, 2025; from documentation at the facility and law enforcement records; and through five interviews conducted a facility staff person (P1), two administrative staff persons (P2 and P3), the VA’s case manager (CM), and the VA’s guardian (G) who was also the VA’s family member. This investigator met the VA, but the VA declined to provide information for this report. Attempts were also made by phone and U.S. mail to contact and interview the SP, but the attempts were not successful. However, the SP provided information to P2, P3, and in facility documentation that was included below. The facility was a multi-family, two-story home, where the VA lived with three housemates (H1-H3). The facility provided at least two staff persons 24 hours a day to support and assist the housemates as needed. The main level of the home contained a living room, a kitchen, a bathroom, and three client bedrooms that included H1, H2, and the VA’s bedrooms. The upper level contained the living spaces of H3 who received 1:1 staffing from the facility. The clients who lived on the main floor of the home each received 1:4 staffing from the facility that included one awake overnight staff. The facility’s programming operated in three shifts that included a morning/day shift from 7 a.m. to 3 p.m., an afternoon/evening shift from 3 to 11 p.m., and an overnight shift from 11 p.m. to 7 a.m. The VA enjoyed listening to music, cooking, and spending time with his/her family members and friends. The VA’s diagnoses included unspecified psychosis, autism spectrum disorder, mild intellectual disability, familial hypercholesterolemia (a genetic disorder characterized by high cholesterol levels), diabetes, chronic pain disorder, and tobacco use disorder. On June 18, 2024, the VA moved into the facility seeking supports and services relating to his/her diagnoses that included medication administration, community integration, behavior management, transportation, and health care management. The VA’s Support Plan, Coordinated Service and Support Plan Addendum (CSSPA), and Individual Abuse Prevention Plan (IAPP) updated August 2, 2024, provided the following information: · The VA received 24-hour care from the facility to help manage his/her “complex” mental health and medical needs while helping the VA acquire the daily life and community skills that would allow the VA to reach his/her goal of independent living. The VA had four hours of unsupervised time within the facility and six hours of unsupervised time within the community. Prior to leaving the facility, the VA would “sign out” and document the name and address of the person s/he was visiting. The VA would then call and “check in” with staff every two hours when s/he was in the community. · The VA had a history of maladaptive behaviors that included verbal and physical aggression that were managed with positive support strategies, mental health services, and daily medications that included psychotropic medications (which treat mental health conditions and control, alter, and/or affect mental processes, emotions, and behavior). Additionally, the VA had an “anger cycle” that could “escalate very quickly” which the VA then communicated through aggressive behaviors without “caring for [his/her] safety” or “understanding the consequences” that resulted from his/her behaviors. During times when the VA was “upset,” staff persons were to remain “calm” and provide the VA verbal prompts, redirection, and positive support strategies to de-escalate the situation. Law enforcement records, P1, P2, P3, the facility’s Internal Review, the VA’s Progress Notes, and facility documentation of P2’s and the SP’s conversations via text provided the following information: · On April 23, 2025, at an unknown time during the morning, a staff person who was working the day shift contacted and informed the VA’s care team, including administrative staff, that the VA became “angry,” “yelled” that s/he did not “trust” the staff person, and refused to take his/her morning medications. At approximately 12 p.m., P2 arrived at the facility and assisted the VA with taking his/her medications. After this, the VA ate lunch and then went to his/her bedroom, “isolating” him/herself from the staff and housemates for the remainder of the afternoon. At approximately 2:55 p.m., the SP arrived at the facility to work the evening and overnight shifts. Later that evening, the VA left the facility and did not return until approximately 11 p.m. After returning to the facility, the SP administered the VA’s medications and the VA went into the living room to read through “some mail” that was delivered to the facility earlier that day. While reading one of the postal items, the VA became “visibly upset” and went into his/her bedroom shortly thereafter. · On April 24, 2025, at approximately 12:40 a.m., the VA returned to the living room and sat on the couch “for a moment” before standing back up again and “pacing” the room while “mumbling under [his/her] breath.” The VA then “grabbed” a lighter from his/her pocket, lit a cigarette, sat back down on the couch, and started smoking inside of the home. During this time, the SP told the VA that s/he was not permitted to smoke inside the facility but the VA did not listen so the SP approached the VA and “smacked” the cigarette out of the VA’s hand. After this, the VA stood up from the couch and “swung” at the SP but the SP “ducked” and avoided being hit by the VA. The VA then reached into his/her pocket to grab the lighter but the SP “pushed” the VA to the floor, “grabbed” the back of the VA’s neck, and placed the VA in a manual restraint while the SP “demanded” the VA to “give up the lighter.” After an unknown amount of time, the SP “let [the VA] up” after the VA “calmed down” and “surrendered” the lighter. The VA then left the living room and went back into his/her bedroom. · During this incident, P1 was on the upper level of the home with H3 and could “hear an altercation” occurring on the main level of the home but was not able to see the incident or intervene while maintaining the care needs of H3. At 1:09 a.m., P1 called 9-1-1 to report the incident. At approximately 1:25 a.m., two law enforcement officers (LEO) arrived at the facility but the incident was already “resolved” at that time. The LEO “briefly” talked with the SP and the VA and then left the facility. · At 2:10 a.m., the SP sent P2 a text message stating, “[The VA] and I got into an altercation this morning. [The VA] was having one of [his/her] episodes and started smoking in the house after being told multiple times not to. So I smacked the cigarette out [his/her] hand and [the VA] stood up and swung but missed cuz I ducked, [s/he] tried grabbing something from [his/her] pocket so I pushed [him/her] to the ground and grab [his/her] neck from the back and told [him/her] to give up the lighter, I later let [him/her] up after [s/he] calmed down and went into [his/her] room, upstairs police were called by staff upstairs.” Additionally, the SP later provided consistent information to what s/he told P2 when completing the VA’s Progress Notes at the completion of his/her shift. At approximately 7 a.m., the SP left the facility after the morning shift staff arrived. · At an unknown time later that morning, the VA woke up and “aggressively asked” staff for his/her morning medications. After taking his/her medications, the VA “mumbled” to him/herself while “pacing” back and forth from the VA’s bedroom to the living room saying that s/he could not “trust no one” and how the VA “would hurt staff.” Shortly thereafter, P3 arrived at the facility to talk with the VA. The VA told P3 that s/he and the SP “argued” during the evening prior but did not provide any additional information. P3 then told the VA that administrative staff persons were aware of the incident and asked the VA if s/he was injured during the incident. The VA said that s/he and the SP “resolved the matter” and that the VA was not injured or “upset.” Additionally, P3 did not observe any injuries to the VA. · On April 25, 2025, at approximately 12:30 p.m., P2 and P3 met with the SP to talk about the incident. The SP provided consistent information to what s/he had already provided to P2 and when completing facility documentation. · P1, P2, and P3 each stated that there were no similar concerns with the SP prior to this incident. The G and the CM each stated that s/he was aware of the incident and did not have any additional information to provide for this investigation. Additionally, the G and the CM did not have any concerns regarding the care and supports the VA received at the facility. According to the facility’s policy on the Rights of a Person Served, the clients had the right to be free from maltreatment and to be free from restraint, time out, seclusion, restrictive intervention or other prohibited procedures, except in the case of emergency use of manual restraint to protect the resident from imminent danger to him/herself or others. 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 facility’s Emergency Use of Manual Restraints Policy stated that positive support strategies and techniques must be used to attempt to de-escalate a client’s behavior before it posed an imminent risk of physical harm to him/herself or others. If these attempts were not successful, staff were to use the least intrusive intervention necessary to assure the health, safety, and welfare of the client and others present. Furthermore, a manual restraint was only to be implemented when a client posed an imminent risk of physical harm to him/herself or others and it was the least restrictive intervention that would achieve safety. Property damage, verbal aggression, or a resident’s refusal to receive or participate in treatment or programming did not constitute an emergency. Facility documentation showed that the SP, P1, P2, P3 were trained on the VA’s plans; the facility’s policies, including the Rights of a Person Served and the Emergency Use of Manual Restraints Policy; and the Reporting of Maltreatment of Vulnerable Adults prior to the incident. Relevant Rules and/or Statutes:
Minnesota Statutes, section 245D.04, subdivision 3, paragraph (a), clause (6), state in part that a person’s protection-related rights include the right to be treated with courtesy and respect. Minnesota Statutes, section 245D.061, subdivision 2, states that an emergency use of manual restraint must meet the following conditions: immediate intervention is needed to protect the person or others from imminent risk of physical harm and the type of manual restraint must be the least restrictive intervention needed to eliminate the immediate risk of harm and effectively achieve safety. Conclusion: A. Maltreatment: Information from all sources was consistent that on April 24, 2025, there was a physical interaction between the VA and the SP. At an unknown time between 12:40 to 1 a.m., the SP “smacked” a cigarette out of the VA’s hand after the VA began to smoke inside the facility. The VA responded with an attempt to hit the SP but “swung” and “missed.” The VA then reached inside his/her pocket for a lighter but the SP “pushed” the VA onto the floor, “grabbed” the back of the VA’s neck, and placed the VA in a manual restraint for an unknown duration of time while “demanding” the VA to “surrender” his/her lighter.
The SP provided consistent information to P2, P3, and in the VA’s Progress Notes that the SP initiated and engaged in a physical “altercation” with the VA that included “pushing” the VA onto the floor, “grabbing” the back of the VA’s neck, and placing the VA in a manual restraint for an unknown duration of time while “demanding” the VA’s lighter. Given that neither the VA nor the SP were at imminent risk of physical harm at the time, the SP’s actions were inconsistent with the standards of a professional caregiver in a facility licensed by the Department of Human Services, were not accidental or therapeutic conduct, and were violations of Minnesota Statues, section 245D.04, subdivision 3, paragraph (a), clause (6), and section 245D.061, subdivision 2. Although the VA was not injured during this incident, there was a preponderance of the evidence that it was most likely that the SP’s actions of pushing the VA to the floor and grabbing the VA by the neck could be reasonably expected to cause the VA physical 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 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. At the time of the incident, the SP was responsible for the care of the VA. The SP received training on the VA’s plans; the facility’s policies that included the Rights of a Person Served and the EMUR Policy; and on the Reporting of Maltreatment of Vulnerable Adults Act. 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 was not recurring or serious. It was a single incident for which the VA did not sustain a serious injury. Action Taken by Facility: The facility completed an internal review and found their policies and procedures adequate but not followed by the SP. The SP no longer worked at 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. Given that the facility took immediate corrective action a correction order was not issued for the violations outlined above.
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