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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: 1070005-H_CRS (Home and Community-Based Services-Community Residential Setting) Investigator(s): Deb Neubauer-Hoffman/Alice Percy Minnesota Department of Human Services 641-431-6567 Suspected Maltreatment Reported: It was reported that a staff person (SP) yelled at a vulnerable adult (VA), threatened to take the VA’s personal items, told the VA that s/he threw some of the VA’s personal items away, threatened to not take the VA on community outings, and threatened to tell the VA’s guardian (G) that the VA was “bad” so the G could not visit the VA. The VA then became physically aggressive and emotionally distressed and called him/herself “bad” and “stupid.” Date of Incident(s): Ongoing, prior to February 21, 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 (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: 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 March 5, 2025; from documentation at the facility; and through eight interviews conducted with the VA, four facility staff persons (P1-P4), an administrative staff person (P5), the SP, and the VA’s guardian (G). The VA enjoyed working on arts and crafts projects, listening to music, swimming, walking, working on puzzles, cooking, participating in the Special Olympics, bowling, watching television, and spending time with family members and friends. The VA attended a day program each weekday. The VA’s diagnoses included a seizure disorder, mood disorder, oppositional defiant disorder, mild intellectual disabilities, and sleep apnea. The VA’s Support Plan stated that the VA had a challenging time orienting him/herself to the present and might bring up situations that occurred in the past or that were not accurate. The VA’s Support Plan Addendum stated that the VA preferred to be addressed in a respectful manner. The VA responded best when things were explained, choices were given, and s/he was able to make decisions or be part of the decision process. The VA’s Intensive Support Self-Management Assessment stated that the VA used few words to communicate. P1, P2, P3, P4, P5, and the VA provided the following information: · The SP typically worked from 7 a.m. to 3 p.m. The overnight staff persons typically finished their work shifts at 8 a.m. P4 typically worked the overnight work shift and worked with the SP for a brief time in the mornings. P1 and P2 sometimes worked with the SP, but P3 rarely worked the same work shift as the SP. · P1 stated that the VA sometimes needed redirection because s/he lost focus and needed step-by-step instructions on completing tasks. P2 and P4 told P1 that the SP was “not kind” to the VA and “barked orders” and said “harsh things” to the VA when getting the VA up in the morning. The SP told the VA to do things but then walked away from the VA and became angry when s/he returned and the VA did not do as instructed. On one occasion, P1 saw the SP flick the VA’s bedroom lights on and off several times and scold the VA for being incontinent in his/her bed. The VA “whimpered” and told the SP that s/he was sorry. The SP then told the VA that s/he was not sorry because s/he continued to be incontinent. The SP sometimes told the VA that s/he was “bad” and the G would not visit the VA if the VA was bad. P2 told P1 that on one occasion the SP told the VA that s/he would “call the cops” if the VA did not do what the SP told him/her to do. · P2 stated that on one occasion s/he heard the SP yell at the VA while in the VA’s bedroom. After the SP left the VA’s bedroom, P2 checked on the VA and found the VA hitting him/herself in the head and saying it was not his/her fault. P2 talked to P5 about his/her concerns about the SP’s interactions with the clients, but did not feel that P5 did anything to stop the SP’s actions.
· P3 heard that the SP took the VA’s toy robot away from the VA, but did not see it occur. P3 never saw the SP swear at the clients or threaten to call the police if the clients had behaviors. · P4 stated that the SP sometimes raised his/her voice when s/he spoke to the VA, but s/he never heard the SP threaten the VA. The SP sometimes “barked orders” at the VA, “like a parent scolding” a child. The SP sometimes used “an aggressive tone” when speaking to the VA, which “scared” the VA “at least a little.” The SP told the VA that if s/he was not going to listen to the SP, s/he would take the VA’s toy robot and then took the toy from the VA’s bedroom and put it in the staff office. The VA began to cry “really hard.” P4 sometimes saw the VA’s toys in the staff office and was told by other staff persons that the SP put them there as “punishment.” P4 talked to P5 about the SP’s interactions with the VA. · P5 stated that s/he recently learned that some of the staff persons had concerns about the SP’s behavior with the clients. P5 knew the SP swore but was unaware that s/he swore at the clients, or that the SP took the VA’s toys from the VA or told the VA s/he was bad. · The VA had a difficult time identifying the staff persons by name. When asked, the VA said that staff persons did not take his/her toys, did not tell him/her that s/he was bad, and did not tell him/her that the G would not visit if the VA was bad. The SP provided the following information: · When the SP woke the clients in the morning, s/he typically opened their bedroom doors, turned on the lights, and told them “good morning.” If the VA was incontinent, the SP had the VA use the bathroom and then gave the VA a few minutes to dress before returning to the bedroom and redirecting the VA if necessary. The SP never scolded the VA for being incontinent and never flicked the VA’s bedroom lights on and off multiple times. The SP never swore at the VA or called him/her names. · The SP never took the VA’s toys away, but did take markers from the VA’s bedroom because the VA used them to draw on his/her body. The SP never told the VA that s/he was “bad,” but may have commented that the VA was having a bad day. The SP did not tell the VA that the G would not visit the VA and did not threaten to call the police if the VA misbehaved. The SP did tell the VA that if s/he locked him/herself in the bathroom and did not open the door, the staff persons might have to call the police to get the door open. On one occasion, the VA sat on the SP and when the SP pushed the VA off him/her, the VA punched, kicked and slapped the SP. The G stated that prior to the incidents, s/he had no concerns about the care the VA received at the facility. The VA did not talk to the G about any problems s/he had with the staff persons. If the VA told the G about having problems with the staff persons the G would talk to the staff persons about the VA’s concerns to verify what occurred. The facility’s Service Recipient Rights policy stated that the clients had the right to be free from abuse, neglect, or financial exploitation by the facility or the staff persons. The clients also had the right to be treated with courtesy and respect. Facility documentation showed that the SP, P1, P2, P3, P4, and P5 each received training on the Reporting of Maltreatment of Vulnerable Adults Act, on the facility’s policies, and on the VA’s plans prior to the incidents. Relevant Rules and Statutes: Minnesota Statutes, section245D.04, subdivision 3, paragraph (a), clauses (6) and (16), state that a person’s protection related rights include the right to be treated with courtesy and respect and access to the person’s personal possessions at any time. Conclusion: A. Maltreatment: P1 and P4 each stated that the SP was “not kind” and “barked orders” at the VA, “like a parent scolding” a child; said “harsh things: to the VA when the VA was getting up in the morning; and told the VA that if s/he was not going to listen to the SP, s/he would take the VA’s toy robot. The SP then took the toy from the VA’s bedroom and put it in the staff office, causing the VA to cry “really hard.” P1 stated that the SP sometimes told the VA that s/he was “bad” and the G would not visit the VA if the VA was bad. P2 stated that on one occasion s/he heard the SP yell at the VA while in the VA’s bedroom. After the SP left the VA’s bedroom, P2 checked on the VA and found the VA hitting him/herself in the head and saying it was not his/her fault. The VA said that staff persons did not take his/her toys, did not tell him/her that s/he was bad, and did not tell him/her that the G would not visit if the VA was bad. The SP stated that s/he never scolded the VA, never swore at the VA or called him/her names, never took the VA’s toys away, never told the VA that s/he was bad, did not tell the VA that the G would not visit the VA, and did not threaten to call the police if the VA misbehaved. P3 stated that did not see the SP swear at any of the clients or take the VA’s toys from the VA, but P3 rarely worked the same shift as the SP. Although the VA denied the allegations and the SP denied engaging in the actions described by P1, P2, and P4, given that the VA’s Support Plan stated that the VA had a challenging time orienting him/herself to the present and might bring up situations that occurred in the past or that were not accurate; the SP had reason to minimize his/her actions for fear of repercussions; and the interactions the SP had with the VA as described by P1, P2, and P4 were similar, it was more likely that the SP engaged in the interactions as described by P1, P2 and P4. The SP’s interactions with the VA were inconsistent with the standards of a professional caregiver in a facility licensed by the Department of Human Services; were a violation of Minnesota Statutes, section 245D.04, subdivision 3, paragraph (a), clauses (6) and (16); and were not accidental or therapeutic conduct and were repeated. Therefore, there was a preponderance of the evidence that the SP used repeated oral language toward the VA that would be considered by a reasonable person to be disparaging, derogatory, humiliating, harassing or threatening and could reasonably be expected to produce emotional distress to the VA. 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. According to the facility’s documentation, the SP received training on the Reporting of Maltreatment of Vulnerable Adults Act, on the facility’s policies, and on the VA’s plans 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 because it was the repeated nature of the SP’s actions that resulted in the maltreatment and therefore a single incident which 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. After the incidents, all of the staff persons were retrained on the Reporting of Maltreatment of Vulnerable Adults Act. The SP no longer worked for 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 violation outlined above.
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