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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: 1070490 -H_CRS (Home and Community-Based Services-Community Residential Setting) Investigator(s): Gessner Rivas 651-431-3970 Suspected Maltreatment Reported: It was reported that a vulnerable adult (VA) was physically abused by a staff person (SP) on multiple dates. Date of Incident(s): Multiple dates 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 September 11, 2024; from documentation at the facility; and through four interviews conducted with three facility staff persons (P1, P2, and P3), and the VA. The SP did not respond to attempts to contact him/her for an interview. The VA was diagnosed with mild intellectual disability and Parkinsons and had a history seizures. The VA enjoyed living in a country setting and playing basketball. The facility conducted an internal review and found that on December 12, 2023, the VA threw a cup into the room of another resident who the SP was trying to calm down. The VA went into the room to retrieve the cup but the SP had picked up the cup and would not give it back to the VA. P2 said s/he heard the SP state, “If you grab it I will hit you.” The VA tried to grab the cup and P2 saw the SP slap the VA’s right forearm. The SP stated that s/he grabbed the VA’s arm to stop the VA from hitting the SP. The VA spat at the SP and the SP grabbed the VA’s arm, turned the VA around to remove her/him from the room and back to the VA’s room. The VA hit the doorframe on the way toward the VA’s room. On August 12, 2024, while the SP was sitting at the kitchen table the VA pulled on the SP’s earring. As the VA walked away, the SP stood up and slapped the VA across the left side of her/his face. A supervisory staff person (P1) provided the following information: · P1 noted that s/he worked with the SP many times, never witnessed physical abuse but would hear from the VA about the friction between the VA and the SP. The SP and the VA would yell back and forth, the SP would refer to the VA as a “big baby.” P1 first recalled hearing about the verbal exchanges between the VA and the SP in April of 2024. Staff persons would try to redirect the VA from engaging in verbal exchanges. · P1 noted that when the SP worked, the SP would arrive at the facility, sit down, be on the phone, and put her/his feet up. On one occasion the SP was laying on the couch sleeping when the parent of another resident stopped by the facility. Sometimes when P1 was in the office in the lower level of the facility, the VA and another client went to the lower level to visit and the SP would not follow to assist. · P1 stated that staff persons were trained on the proper holds that could be used when a resident became physical and noted that the VA could get aggressive with others. P2 provided the following information: · P2 witnessed that on December 12, 2023, there was incident between the SP and the VA. The VA had taken a cup back to her/his room and P2 tried to retrieve the cup from the VA. As the VA walked past the room of another resident where the SP was in, the VA threw the cup at the SP. The SP picked up the cup and the VA tried to get it back, the SP told the VA if s/he tried to reach for it again, the SP would hit the VA. The VA tried to reach for the cup again and the SP “smacked” the VA’s arm “really hard.” The VA then spat at the SP and the SP grabbed the VA’s right forearm and placed it behind the VA’s back and did the same with the VA’s other arm. The SP tried to push the VA back into the VA’s room but in doing so shoved the VA into the doorframe, causing the VA to hit the doorframe and door with her/his left shoulder and arm. · The VA cried and P2 noticed that the VA’s arm and shoulder were bright red; P2 applied ice on those areas. · P2 stated that the SP would regularly call the VA a “baby” or tell the VA that s/he was acting like a “baby.” P2 worked with the SP two to three times a week and that would happen at least once per shift. · P2 did not witness the incident in August 2024, but heard something had happened at the facility and that a staff person had been suspended. P3 provided the following information: · P3 stated that in August 2024, the SP was at the dining room table doing schoolwork and the VA pulled on the SP’s earring; P3 told the VA to stop. The VA pulled on the SP’s earring again and the SP stood up and slapped the VA across the face, the SP tried to slap the VA again but missed and slapped the VA across the waist area and the VA walked to her/his room. P3 then went to the VA’s room to talk about the incident; told the VA that what had just happened was not okay. P3 did not provide information regarding whether the VA had any marks from this incident. · P3 stated that it was facility policy not to do anything physical with clients, staff persons could use holds but only when necessary. A few days later P3 informed P1 about the incident and P1 instructed P3 to fill out an incident report. The VA was not able to provide additional substantive information about the above incidents but did recall the incident which facility records indicate happened on August 12, 2024, the VA noted that s/he remembered the staff person that was responsible. At first the VA would not specifically identify that staff person but then noted that the SP threw water at the VA. The SP did not respond to this investigator’s request for an interview. Facility records show that the SP received a coaching related to the incident on December 12, 2023. The coaching document indicates that SP claimed s/he was redirecting the VA because the VA was being aggressive. Prior to the above incidents, the SP had received training on the VA’s plans, de-escalation, and restraint policies. Conclusion: A. Maltreatment: Information was provided that on December 12, 2023, the SP placed the VA in a physical restraint after the VA threw a cup at the SP. When the VA tried to get the cup back, the SP “smacked” the VA’s arm “really hard.” After the VA spat on the SP, the SP placed the VA’s arms behind the VA’s back and in attempting to push the VA back into the VA’s room pushed the VA into the doorframe, which left red marks on the VA’s left shoulder and arm. On August 21, 2024, the SP slapped the VA across the face after the VA pulled on the SP’s earing and then slapped the VA again across the VA’s waist area. Given that both incidents were witnessed by staff persons, there was a preponderance of the evidence that the SP engaged in conduct that was not accidental that could be reasonably expected to produce pain or injury. 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, 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 trained on the facilities policies and procedures, including de-escalation and use of restraints, and the VA’s plans. 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 serious maltreatment because it was not determined if either incident caused injury to the VA but was recurring maltreatment because there were two incidents. The SP was disqualified from providing direct contact services. Action Taken by Facility: The facility completed an internal review of each incident and determined that policies and procedures were adequate but not followed by the SP. The SP was no longer employed by the facility. Action Taken by Department of Human Services, Office of Inspector General: The SP was disqualified from a position allowing direct contact with, or access to, persons receiving services from programs, organizations, and/or agencies that are required to have individuals complete a background study by the Department of Human Services as listed in Minnesota Statutes, section 245C.03. The determination that the SP was responsible for maltreatment and the disqualification of the SP are each subject to appeal.
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