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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: 1072299-H_CRS (Home and Community-Based Services-Community Residential Setting) Investigator(s): Gessner Rivas/Beth Virden Gessner.Rivas@state.mn.us Suspected Maltreatment Reported: Allegation One: It was reported that a staff person (SP) gave marijuana to a vulnerable adult (VA1). Allegation Two: It was reported that the SP did not intervene when a vulnerable adult (VA2) sat outside for almost an hour in “non-weather-appropriate-clothing” and sustained frostbite. Date of Incident(s) for Allegations One and Two: January 26, 2025; other dates unknown 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 17, paragraph (a): 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 March 10, 2025; from documentation at the facility; and through five interviews conducted with VA1, VA2, facility staff persons (SP and P1), and a supervisory staff person (P2). Attempts were made by telephone and mail to contact and interview VA1’s guardian (G), who was also VA1’s family member, but the G did not respond by the completion of this investigation. The G provided some information at the outset of the investigation and that information was included in this report. VA1 and VA2 lived together at the facility, which was a single-family home. The facility provided staffing for their care and supervision. The facility’s Drugs and Alcohol policy stated that staff were prohibited from: 1) using, distributing, dispensing, and possessing controlled substances while conducting facility business and/or providing services to individuals. 2) being under the influence of a controlled substance in any manner that impaired or could impair their ability to provide care or services to individuals. Facility documentation stated that the SP received training on VA1’s Risk Assessment Plan, VA2’s Risk Assessment Plan; the facility’s Drugs and Alcohol policy; and the Reporting of Maltreatment of Vulnerable Adults Act. [Note: The facility self-disclosed that while gathering documentation for the DHS investigation, they discovered the SP’s training record did not show whether s/he received training on VA1’s Action Plan or VA1’s and VA2’s Intensive Services and Support Assessments. The facility’s Internal Review stated that although the training was not documented, the SP stated that s/he received this training. The facility immediately re-trained the SP on all the housemates’ support plans and documented the completion of the training. The conduct of not maintaining a personnel record of each employee to document and verify staff qualifications, orientation, and training was a violation of Minnesota Statutes 245D.095, subdivision 5.] The SP’s position description stated that the SP was responsible for providing direct support or assistance in accordance with individuals’ service or program plans and for maintaining healthy and professional relationships with individuals. Minnesota Statutes, section 342.09, subdivision 1, states in part that an individual 21 years of age or older may use or possess cannabis. [Note: VA1, VA2, and the SP were older than 21 years of age.] Allegation One: It was reported that the SP gave marijuana to VA1. VA1’s support plans stated the following: · A Risk Assessment Plan stated that VA1 had a history psychotic behaviors and substance use, which led to criminal charges and time in jail and increased his/her vulnerability to harm and abuse. “Records report” that VA1 displayed cognitive deficits, which might impact his/her reasoning and judgement and impair his/her ability to identify potentially dangerous situations. VA1 had “poor judgement and limited social skills.” Staff encouraged VA1 to interact with others in a prosocial manner and use his/her coping skills if s/he was frustrated or triggered. [Note: There was no information about what staff should do if they witness VA1 using substances or anything specific about VA1’s use of marijuana (THC).] · A Personal Summary Sheet stated that VA1’s diagnoses included paranoid schizophrenia. The G stated that on January 26, 2025, around 9 p.m., s/he was on the phone with VA1 and overheard the SP and VA2 in the background of the call. VA2 said that the SP was “high,” and the SP said, “This is your fault. I’m not bringing it anymore. I don’t want to get in trouble.” VA1 said that the SP gave him/her marijuana “a couple of times.” VA1 liked smoking marijuana to help with his/her anxiety and depression. The G sometimes gave THC cartridges to the VA use in the VA’s vape pen. P1, P2, and facility documentation provided the following information: · P1 and P2 each said that VA1 told each of them that the SP gave marijuana to him/her more than once. P1 and P2 each smelled marijuana on the SP at work more than once. VA1 also told P1 and P2 that the G gave him/her marijuana about once a week. P2 said that one time, after visiting the G, VA1 returned to the facility with a THC cartridge for his/her vape pen. At least once, P2 saw VA1 smoking “weed” outside of the facility with a neighbor. · The facility’s Internal review included the following information from interviews with a supervisory staff person (P3) and a staff person (P4): o P3 said that on February 18, 2025, s/he received a call from the G stating the SP gave marijuana to VA1 on January 25, 2025. The G stated that s/he did not want the SP to get in trouble because “[the SP] was doing [VA1] a favor, ensuring [VA1] wasn’t running out of marijuana.” The call ended and P3 asked VA1 if the SP gave him/her marijuana and VA1 said, “Yea, a few times.” P3 believed VA1 was an accurate reporter of information because s/he had been forthcoming about his/her substance use in the past. P3 previously smelled marijuana on the SP at work. o P4 said that the SP smelled like marijuana “multiple times” at the facility. In November or December 2024, P4 saw the SP smoking from “a long, slender vape” outside the facility and then the SP smelled like marijuana when s/he came back inside the facility. · P1 said that at times, the SP did not administer VA1’s 8 a.m. medications and so P1 administered them when s/he arrived at 9 a.m. The SP also did not always complete medication counts as required. There was no information VA1 missed medications or were harmed by the SP’s misadministration of their medications. The SP said that s/he never gave marijuana to VA1. The SP was a former cigarette-smoker but did not smoke marijuana and was never under the influence of an intoxicating substance at the facility. The G gave marijuana to VA1. The SP was trained that staff could not search the housemates’ belongings and could not take marijuana away from them but were supposed to direct them to smoke outside. Conclusion for Allegation One: It was reported that more than once, the SP gave marijuana to VA1. Although the SP denied giving marijuana to VA1, VA1 told P1-P3 and the DHS investigator that the SP gave marijuana to him/her more than once. The G told P3, “[The SP] was doing [VA1] a favor, ensuring [VA1] wasn’t running out of marijuana.” P1-P4 each said that the SP smelled like marijuana more than once at the facility. Therefore, it was determined that the account of the SP smoking marijuana at the facility and providing marijuana to VA1 was more credible than the SP’s account. VA1 was living at the facility for services and support and had a history psychotic behaviors and substance use, which led to criminal charges and time in jail and increased his/her vulnerability to harm and abuse. Although this was the case, the G was aware VA1 smoked marijuana and did not intervene, VA1 was legally allowed to possess marijuana, and VA1’s support plans did not provide information about VA1’s use of marijuana or what staff should do. Therefore, it was reasonable for staff to not intervene with VA1’s use of marijuana. The SP’s conduct of smoking marijuana or being under the influence while at the facility was inconsistent with the facility’s policies and inconsistent with the care of a professional caregiver in a facility licensed by the Department of Human Services. There was no information VA1 missed medications or was harmed by the SP’s conduct. However, given VA’1 history and needed services and supports, the SP’s conduct of providing marijuana to VA1 was inconsistent with VA1’s needed services and supports and with the SP’s responsibilities as a caregiver, and increased VA1’s risk of harm and potential to relapse. Therefore, there was a preponderance of the evidence that the SP’s conduct included a failure to supply VA1 with care or services, which were reasonable and necessary to maintain VA1's physical or mental health or safety. 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). 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 providing direct support or assistance in accordance with VA1’s service or program plans and for maintaining healthy and professional relationships with VA1. The SP received training on VA1’s Risk Assessment, the facility’s Drugs and Alcohol policy, and the Reporting of Maltreatment of Vulnerable Adults Act. The SP was responsible for maltreatment of VA1. 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 the SP was responsible did not meet statutory criteria to be determined as recurring or serious. The SP was responsible for a pattern of behavior for which there was no information VA1 sustained a serious injury which reasonably required the care of a physician whether or not the care of a physician was sought. Allegation Two: It was reported that the SP did not intervene when VA2 sat outside for almost an hour in “non-weather-appropriate-clothing” and sustained frostbite. VA2’s support plans stated the following: · A Risk Assessment Plan stated that VA2 was diagnosed with dementia, which was worsening over time and causing increased confusion and delusional activity. Staff helped orient VA2 if s/he appeared confused and ensured VA2 had space if s/he appeared frustrated. In addition, VA2 had a history of substance use and “would likely use substances if they were offered.” Staff encouraged VA2 to maintain his/her sobriety. [Note: There was no information about VA2’s use of marijuana.] · An Admission Sheet stated that VA2’s diagnoses included traumatic brain injury. VA2 was not subject to guardianship. The G stated that on January 26, 2025, VA2 sat outside in “non-weather-appropriate-clothing” for 45 minutes despite the SP’s “directives” to return inside. The G did not state how s/he knew this information. The facility’s Incident Report, completed by P3, stated on January 26, 2025, VA1 gave marijuana to VA2 and VA2 got “very high” and sat outside without a jacket. The SP notified P3 and “a crisis float,” who instructed the SP to check on VA2 every five to ten minutes and encourage him/her to return inside. The SP did so and each time VA2 declined to go inside or said, “I’ll be fine.” About 45-60 minutes later, VA2 walked inside on his/her own accord. At that point, the crisis float was at the facility to help. VA2 told staff that his/her fingers felt “weird” or “hurt.” Staff put VA1’s hands in warm water and applied moisturizer. VA2 was placed on a “seven-day watch” and no injuries or further concerns were noted and no additional medical attention was sought. The facility’s daily notes, completed by various staff, included the following:
P1 said that VA2 only smoked cigarettes and sometimes smoked in the house, which s/he was not supposed to do. At least one time, VA1 gave a THC cartridge to VA2, and VA2 sat outside smoking it for so long staff worried s/he was going to sustain frostbite. VA2 said that s/he sometimes smoked “weed” but s/he did not know where s/he got it and did not know of any staff smoking marijuana or smelling of marijuana at the facility. VA2 stated that s/he did not know of a staff person with the SP’s first name. Conclusion for Allegation Two: It was reported that one time, VA1 gave marijuana to VA2, who then sat outside for almost an hour in “non-weather-appropriate-clothing” and sustained frostbite. VA2’s support plans stated that s/he had a history of substance use and “would likely use substances if they were offered.” Staff were supposed to encourage VA2 to maintain his/her sobriety. However, VA2 was not subject to guardianship, VA2’s support plans did not provide information about VA2’s use of marijuana, and there were instances of staff reminding VA2 about the use of marijuana and VA2 “did it anyways.” Therefore, it was reasonable for staff to not intervene with VA2’s use of marijuana. It was reported that VA2 sat outside in non-weather-appropriate-clothing and sustained frostbite. The facility’s Incident Report stated that staff prompted VA2 to return inside but that VA2 repeatedly declined until s/he did so on his/her own accord. VA2 did not require medical attention. The facility monitored VA2 for seven-days and there was no information VA2 sustained frostbite. Therefore, there was not a preponderance of the evidence whether there was a failure to supply VA2 with care or services, which were reasonable and necessary to maintain VA2's physical or mental health or safety. It was not determined whether 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). Action Taken by Facility: The facility completed internal reviews for the incidents involving VA1 and VA2 and determined that policies and procedures were adequate but not followed. The facility provided additional training to the SP on the housemates’ support plans and the Drugs and Alcohol policy. 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 violation outlined above.
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