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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: 1105956-H_CRS (Home and Community-Based Services-Community Residential Setting) Investigator(s): Gessner Rivas gessner.rivas@state.mn.us Suspected Maltreatment Reported: It was reported that on December 20, 2023, a staff person (SP1) transferred a vulnerable adult (VA) without assistance and the VA fell out of a sit to stand lift, as a result the VA sustained multiple rib fractures. It was also reported that on December 22, 2023, at a hospital, another staff person (SP2) assisted the VA into bed in an aggressive manner. Date of Incident(s): December 20, and 22, 2023. 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); and subdivision 17, paragraph (a): 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 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 January 12, 2024; from documentation at the facility and medical records; and through four interviews conducted with two facility staff persons (SP1 and SP2) a supervisory staff person (P1), and the VA’s guardian (G). This investigator met with the VA, but the VA was nonverbal so could not provide information in an interview. The VA was diagnosed with osteoporosis, aggressive behavior, dementia, complex partial seizures, and developmental disability. The VA was non-ambulatory, and used a wheelchair to move about the facility, but required the use of sit to stand device for transfers to bed, bathroom, and other places when not in her/his wheelchair. The VA had a 24-hour plan of care. The VA liked listening to country and gospel music, watching game shows, and going to her/his day program. The facility’s Agency Lifting and Safety policy stated that employees using lifting devices and aids must do so in accordance with the person’s safety plan and support plan. The VA’s Coordinated Services and Supports Plan (CSSP), dated April 1, 2022, stated that the VA was a two-person transfer. The CSSP also noted that transitions with the VA were difficult when using the bathroom. The VA’s My Plan effective October 1, 2023, to October 1, 2024, stated that the VA might become agitated when being transferred in the sit to stand and could become unstable and could sway. Staff persons were trained to use the sit to stand, and two staff persons were required to be present when transferring the VA at all times. The facility’s sit to stand device had a sling that wrapped around a resident at the base of the spine and under the arms just below the shoulder blades and secured by a belt around the resident. The sling attached to the device on pegs located on each lift arm of the device in a crisscross manner. The device had a pump handle to lift the resident as necessary and transfer the resident to the desired location where the resident would be lowered into place, such as the toilet in the bathroom.
SP1 provided the following information: · On December 20, 2023, just past 11 a.m., SP1 assisted the VA from his/her wheelchair to the toilet in the bathroom using the sit to stand. The VA slipped off the side of the toilet seat and fell about two and half feet to the floor, while still in the process of transferring the VA to the toilet seat. The VA landed on her/his bottom before her/his back went to the floor, SP1 did not see the VA hit her/his sides on anything when the VA fell. SP1 recalled that SP2 was in the living room and came to help SP1 move the VA back to the toilet. · The VA was in pain and screamed when SP1 and SP2 got her/him up from the floor. After the incident, SP1 stated that s/he did not see any bruises or injuries on the VA. After the VA was done using the bathroom, the VA was transferred back to the dining room, and SP1 left the facility at 12 p.m. · SP1 stated that the VA’s hand may have “slipped from the hook or it did not hold the hook up properly.” SP1 believed that the sling slipped out of the hook, or it was not placed on the VA properly. SP1 stated that it was an unfortunate incident; looking back s/he could have double checked that the sling on the sit to stand was hooked properly. SP1 stated that the VA normally yelled and squirmed when being transferred. The SP used the sit to stand to transfer the VA often. · SP1 had been trained on the use of the sit to stand and used it with the VA daily and stated that the device did not malfunction. When asked about policy requiring two-person transfers for the VA, SP1 stated that prior to the incident, transfers to the toilet were one-person, after the incident, two-persons transfers were required. SP1 further noted that when s/he arrived in the morning for the start of his/her shift, there was just one staff person, and the VA would usually be in her/his chair in the living room having been transferred there by the only staff person working, not by two staff persons. SP2 provided the following information: · SP2 recalled that s/he and SP1 took the VA to the bathroom when another resident rang her/his bell for assistance. SP2 recalled that the “vest” had been put on the VA but did not recall if the VA was placed in the sling before s/he went to check on the other resident. When SP2 went to look in on the other resident SP2 heard a “noise” and went back to the bathroom and asked SP1 about the noise; SP1 stated that the VA had fallen. SP2 later acknowledged that it was possible that s/he may not have been present when SP1 took the VA to the bathroom. · The VA stated that her/his neck hurt, SP2 gave the VA an icepack and the VA felt better afterwards. SP2 did not recall if the VA showed any other signs of having difficulties the day of the incident. · Regarding the fall in the bathroom, SP2 stated that in retrospect it should have been clear that if there was any interruption when using the sit to stand, staff persons should wait until there were two staff persons available to assist the VA. SP2 noted that it had always been a two-person job for assisting the VA in the bathroom, but that sometimes staff persons including SP2 have used it on their own because one staff person may be assisting another resident or there may be only one staff person on duty. · On December 22, 2023, P1 took the VA to the hospital around noon because the VA was having difficulties breathing. P1 returned to the facility that evening and SP2 took the VA, by her/himself, to another hospital around 7:30 p.m. because the first hospital could not take an x-ray of the VA. When SP2 took the VA to the hospital, the VA was still having a hard time breathing. · At the hospital, SP2 was asked by hospital employees to transfer the VA from her/his wheelchair to a bed; SP2 did not want to volunteer but hospital employees did not want to transfer the VA. The VA was upset; s/he yelled and screamed during the transfer. SP2 stated that s/he did not believe the transfer was done in an aggressive manner. · SP2 noted that the VA had numerous bruises on her/his arms and hands because the hospital had difficulty drawing blood from the VA but did not recall seeing any bruises on the VA’s neck. · SP2 noted that after the incident, the facility put together an instruction manual on the use of the sit to stand requiring two staff persons to use it. The facility nurse made available an instructional video from the manufacturer of the device. All staff persons were required to read the manual. P1, a supervisory staff person, stated the following: · P1 was informed by a staff person that the VA was having trouble breathing on the evening of December 21, 2023. Paramedics were called and the VA’s guardian (G) was notified. The G and the paramedics determined that the VA would be taken to a hospital to be looked at the following day. P1 took the VA to a hospital the following day around 11:30 a.m., P1 and the VA were at the hospital until about 7 p.m. when they returned to the facility, SP2 took the VA to another medical facility because the hospital was not able to take x-rays of the VA. · P1 noted that staff persons that worked with the VA overnight were responsible for checking the VA for signs of injuries. Overnight staff person only reported that the VA was in pain. · P1 stated that staff persons had always been instructed to use a two-person transfer with the VA when using the sit to stand because the VA was “fidgety.” P1 noted that in the past the VA had attempted to slap staff persons when trying to transfer her/him. A year prior to this incident the VA had fallen out of the same device and the VA had sustained injuries because the VA would flail or be uncooperative when being transferred. The G said that s/he was notified about the incident by P1 and conveyed no concerns about the incident or with the facility. Medical records provided the following information: On December 22, 2023, the VA was brought into urgent care for evaluation of shortness of breath, some labs were done but the VA was referred to a hospital for further evaluation. At the hospital, it was learned that the VA had nondisplaced fractures of the third through seventh ribs on the left side. Notes in the medical record stated that a nurse had witnessed SP2 transfer the VA from her/his wheelchair to a bed. SP2 grasped the VA under the arms and lifted upwards. Records did not provide an opinion on the cause of the injuries but noted that the VA would return to normal with rest. As part of the facility’s Internal Review, the facility found that both SP1 and SP2 initially went to assist the VA, but SP2 went to check on another resident and SP1 continued to assist the VA on her/his own. Both SP1 and SP2 acknowledged that best practice was to do a two staff person transfer to the toilet. The facility believed the incorrect positioning of the straps on the VA could have led to the VA sliding out of the sling. Facility documentation showed that staff persons including SP1 and SP2 were trained on the facility’s Agency Lifting and Safety policy, the use of the sit to stand device, and the VA’s plans. Conclusion: A. Maltreatment: Regarding SP1 and the VA’s fall: The morning of December 20, 2023, SP1 and SP2 were working when the VA needed assistance transfer to the toilet to use the bathroom. SP1 took the VA to the bathroom and proceeded to transfer the VA from her/his wheelchair to the toilet using a sit to stand lift by her/himself contrary to policy and the VA’s CSSP. In the process of being transferred, the VA slipped out of the device falling to the floor. It is uncertain whether SP2 provided any initial assistance to SP1 in transferring the VA to the toilet. At the time of the fall, SP2 was assisting another resident, that had called for assistance. Upon hearing a “thud,” SP2 went to the bathroom and saw the VA on the floor. When SP1 and SP2 picked up the VA from the floor, the VA displayed signs of being in pain but no noticeable injuries. The facility’s policy was to use lifting devices in accordance with a resident’s plan and the VA’s CSSP which stated that the VA was a two-person transfer and SP1 had been trained on the use of the sit to stand device. Although it was unclear what caused the VA to fall possibly being the incorrect positioning of a strap, given that SP1 used the sit to stand on a daily basis and was trained but transferred the VA without a second staff person present to assist and subsequently the VA fell to the floor, there was a preponderance of the evidence that the SP failed to provide the VA 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). Regarding SP2 being “aggressive” when transferring the VA at the hospital: On December 21, 2023, the VA began to display signs that s/he was having difficulty breathing. The VA was examined by paramedics that the decision was made by the VA’s guardian to have the VA taken to a hospital the following day. On December 22, 2023, P1 took the VA to a hospital, but that hospital was unable to take x-rays of the VA. P1 and the VA returned to the facility and SP2 took the VA to another hospital. At the second hospital, it was alleged that SP2 transferred the VA from her/his wheelchair to a bed in a “very aggressive manner.” SP2 stated that hospital employees asked her/him to transfer the VA to a bed. SP2 proceeded to transfer the VA to a bed but denied it was in an “aggressive manner,” SP2 noted that the VA yelled and screamed during the transfer. At the second hospital it was discovered that the VA had five broken ribs. Records did not provide an opinion on what may have caused the broken ribs but made mention of both the incident on December 20, 2023, and the transfer of the VA onto the hospital bed by SP2. According to the facility’s Internal Review, SP2 stated that s/he transferred the VA to a hospital bed placing her/his arms under the VA’s arms and lifted the VA to the bed but the VA was combative when being transferred to the bed. SP2 denied being aggressive with the VA during the transfer. In an interview with this investigator, SP2 stated that s/he used a transfer belt which the VA carries in a bag along with other items the VA like to have. SP2 thought that because s/he was at a hospital, hospital employees would transfer the VA, it was not something s/he would have volunteered to do. SP2 did recall that the VA did struggle when s/he attempted to move the VA from the wheelchair to the bed. Although it was reported SP2 transferred the VA aggressively, given that SP2 denied doing so, that the VA was not cooperative and screamed during the transfer, that the VA was diagnosed with broken ribs which the cause was not able to be determined, and that SP2 transferred the VA at the request of hospital staff, there was not a preponderance of the evidence whether SP2’s conduct was anything other than accidental that would reasonable be expected to cause pain or injury. 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). 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. SP1 was responsible for the VA’s care and was trained on the facility’s lift and transfer policy, the VA’s plans of care, and the Reporting of Maltreatment of Vulnerable Adults Act. SP1 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 neglect for which SP1 was responsible did not meet statutory criteria to be determined as recurring or serious because the incident was a single occurrence, at the time the VA displayed no signs of injury other than pain from the fall and medical records could not determine that the VA’s injury two days later had occurred due to the fall or at another time. Action Taken by Facility: The facility completed an Internal Review and determined that the facility’s policies were adequate but were not followed by SP1. Regarding SP2, no finding was made whether SP2 failed to follow policies, given that SP2 did not have any assistance to transfer the VA. The facility retrained staff persons on transfer plans of the VA and on the use of the sit to stand equipment Action Taken by Department of Human Services, Office of Inspector General: SP1 was not disqualified from providing direct care services as a result of the maltreatment determination in this report. However, SP1 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 SP1. The determination that SP1 was responsible for maltreatment is subject to appeal.
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