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AMENDED 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.” NOTICE: This Amended Maltreatment Investigation Memorandum supersedes a version dated November 1, 2023, which must be destroyed. As a result of an administrative reconsideration, the original determination that the SP was responsible for sexual abuse and neglect of the VA was changed to inconclusive. For additional information, see Administrative Reconsideration section of this document.
License Number and Program Type: 1101848-SUD (Substance Use Disorder) Investigator(s): Beth Virden 651-431-6572 Suspected Maltreatment Reported: It was reported that a staff person (SP) had sexual contact with a vulnerable adult (VA) and maintained a relationship after the VA left the facility. The VA experienced “trauma symptoms” when the relationship ended. Date of Incident(s): Ongoing between September and December 2022 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 (c); and subdivision 17, paragraph (a): Any sexual contact or penetration between a facility staff person or a person providing services in the facility and a resident, patient, or client of that facility. Sexual contact is defined by Minnesota Statutes, section 609.341, as the intentional touching of the intimate parts with sexual or aggressive intent. 'Intimate parts' includes the primary genital area, groin, inner thigh, buttocks, and breast. 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 September 26, 2023; from documentation at the facility and law enforcement records; and through interviews conducted with facility staff persons (the SP and P1-P3) and a supervisory staff person (P4). Attempts by telephone and email to contact and interview the VA were not returned by the completion of this investigation. The VA provided information to a law enforcement officer (LEO) and that information was included in this report. In September 2022, the VA moved into the facility seeking supports and services relating to his/her substance use disorder. The VA also “struggled with” mental health symptoms. The facility provided a comprehensive 90-day residential treatment for individuals seeking recovery from substance use disorders. Services included individual and group therapy, mental health services, education, medical and medication management, and future-supports planning. A Fergus Falls Police Department Incident Report provided the following information: · The VA told a law enforcement officer (LEO) that s/he moved into the facility for sobriety and recovery purposes. The VA met the SP at the facility. · The SP was a “counselor” and initially talked with the VA about treatment-related topics, like the VA’s “addiction and relationship struggles.” According to the VA, the SP “was giving off a vibe and became flirtatious.” · At one point, the SP obtained the VA’s cellphone and gave it to him/her. The two began texting back and forth. This eventually turned into “sexting” with the SP sending nude pictures of him/herself to the VA. [Note: P4 told the LEO that it “could be permissible” for the VA to have his/her cellphone, but that texting with staff “would not be normal practice.”] · At least one time, the SP “groped” the VA’s genitalia over his/her clothing while in the SP’s office. · Around the beginning of November 2022, the VA and the SP were alone in the facility’s canteen room, which had a locked door. They kissed and the SP put his/her mouth on the VA’s exposed genitalia for one to two minutes. · After the VA was discharged from the facility, the SP and the VA continued to see each other. This included meeting, “at times weekly,” in a hotel room or a vehicle for sexual intercourse and/or drug use. · The VA gave permission for the LEO to contact the VA’s family member (FM). According to the FM, “about a year ago,” the VA told him/her that “[s/he] had formed a relationship with a counselor at the treatment facility,” and that, at least once, they rented a hotel room together. · The VA also provided the LEO with “multiple pictures.” Some were from the Snapchat application (app) and were pictures or “selfies” of a person. There were six pictures of the same person with their genitalia exposed. The LEO connected the pictures as being of the same person based on the cellphone the person was holding in more than one picture, and the person’s tattoos, which were visible in more than one picture. [Note: The police department did not provide copies of the pictures for the maltreatment investigation “due to their sexually explicit content.”] · The VA provided the LEO with screenshots of the VA’s cellphone. There were text messages exchanged between the VA’s cellphone and a person who was saved in the VA’s contact list as “[The SP’s first name] Nbh-Councler [sic].” This person’s cellphone number was also included. · The messages to the VA from “[The SP’s first name] Nbh-Councler [sic],” included, “I spent the whole night playing with myself, went in jacuzzi, and taking pictures and vids and editing them. Lmk if you want the video of me fucking my dildo. I sure hope you answer me soon!!!” This person also provided a street address and, in the text, called it, “My address.” The person next provided a description of the mailbox in relation to the house at the address. · The LEO compared the SP’s known phone number and home address with that of “[The SP’s first name] Nbh-Councler [sic],” and they matched. The SP had the same phone number and the same address, or “my address,” as “[The SP’s first name] Nbh-Councler [sic].” · The LEO next interviewed the SP. The SP denied engaging in an “inappropriate relationship” with a client. The SP sometimes had phone contact with clients to ensure they made it to their destinations. The SP denied sending “inappropriate text messages” to a client. The LEO told the SP about the pictures and text messages and that the SP’s phone number was listed in the VA’s cellphone as being the source of the pictures and messages. The SP told the LEO that while working at the facility, s/he lost his/her cellphone at one point. The SP did not tell anyone about losing his/her cellphone and s/he had since gotten it back. The SP did not state when this occurred, for what timeframe, or how the cellphone was eventually returned. · On October 1, 2023, a county attorney charged the SP with Criminal Sexual Conduct in the 3rd Degree and Criminal Sexual Conduct in the 4th Degree. This investigator reviewed the SP’s public content on his/her social media account, which included pictures of his/her tattoos. The SP’s tattoos were in the same places as those described in the pictures from the VA. This investigator also viewed a “street view” of the SP’s address on www.bing.com and observed that the mailbox in relation to the house matched that of the description provided in the text messages. The SP provided the following information to this investigator: · The SP said that s/he did not have an “intimate relationship” with a client. · When a client graduated programming, some staff, including the SP, might give the client a hug or handshake. The SP had done this at times, but always in front of other staff. “Not in private.” · When asked about the pictures and messages on a client’s cellphone, the SP said that s/he allowed clients to use the SP’s personal cellphone to make calls from the SP’s office. According to the SP, the facility did not have landline telephones in the staff offices and so it was common for staff to let the clients use the staffs’ cellphone. The SP “never paid attention” when a client was using the SP’s cellphone and stated, “Not sure if they took my pictures that way.” [Note: When the LEO asked about the pictures and messages on a client’s cellphone, the SP said that s/he lost his/her cellphone at the facility. The SP did not make any statements about losing his/her cellphone when talking with this investigator.] · The SP received training from the facility that s/he needed to “maintain professional boundaries” with clients. P1-P4 had various interactions or involvement with the SP and/or the VA at the facility. The VA never said anything to staff that was suspicious or indicative of a relationship with a staff person. P1-P4 did not have, and were not aware of, concerns with the SP’s conduct as it related to client care. P4 added, regarding staff allowing clients to use their personal cellphones, this was not entirely accurate. Staff were advised that it was acceptable to allow a client to use their work cellphone, but not their personal cellphone. The SP had a work cellphone. [Note: The SP’s phone number as referenced in the Fergus Falls Police Department Incident Report was his/her personal cellphone number, not a work number.] The facility’s Professional Boundaries policy stated that staff and client relationships should remain within the scope of employment. Inappropriate boundaries by staff, included sharing personal information with a client, touching a client in a nontherapeutic manner, becoming overly involved with a client, and keeping secrets with a client. Facility documentation stated that the SP and P1-P4 received training on the facility’s Professional Boundaries policy and the Reporting of Maltreatment of Vulnerable Adults Act. Conclusion: A. Maltreatment: The VA said that while s/he was a client at the facility, the SP flirted with him/her; exchanged text messages, including nude pictures of him/herself; kissed; and performed oral sex on the VA. After the VA discharged, the two continued to meet for sexual intercourse and/or drug use. Although the SP denied the allegations, the SP provided different accounts to the LEO and this investigator regarding having lost his/her phone versus allowing clients to use his/her phone, and had reason to minimize his/her actions for fear of repercussions. The VA had pictures and text messages that were determined to be from the SP because the address, phone number, and tattoos matched that of the SP and supported the VA’s account. Therefore, it was determined that the VA’s account was more credible than the SP’s account and there was a preponderance of the evidence that the SP and the VA engaged in a sexual relationship. It was determined that sexual abuse occurred (any sexual contact or penetration between a facility staff person or a person providing services in the facility and a resident, patient, or client of that facility. Sexual contact is defined by Minnesota Statutes, section 609.341, as the intentional touching of the intimate parts with sexual or aggressive intent. 'Intimate parts' includes the primary genital area, groin, inner thigh, buttocks, and breast). In addition, given that the VA had a history of a substance use disorder, it was reasonable that the VA would continue to need supports to develop and maintain the necessary life and social skills to maintain sobriety. The SP’s interactions with the VA likely hindered the VA’s ability to have a consistent understanding of the parameters of a therapeutic relationship which could interfere with other individuals’ attempts to provide him/her with therapeutic services, both now and in the future. Therefore, there was a preponderance of the evidence that the SP’s interactions with the VA were detrimental to the VA’s ongoing mental health and were a failure to provide the VA with reasonable and necessary care or 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). 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 a “counselor” at the facility, who the VA met with to discuss treatment-related topics, like the VA’s “addiction and relationship struggles.” The SP was responsible for the care of the VA. The SP received training on the facility’s Professional Boundaries policy and 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 sexual abuse and neglect for which the SP was responsible was “serious” and “recurring” maltreatment. The SP was responsible neglect and sexual abuse of the VA. The SP was disqualified from a direct contact position. Action Taken by Facility: The facility completed an internal review. The VA was no longer receiving facility services and the SP was no longer employed. The facility did not interview the VA or the SP for their internal review and other than a letter from the VA’s attorney, which did not identify the staff person, the facility did not have other “supporting documentation.” The facility determined that policies and procedures were adequate and followed, and that there was not a need for additional training or corrective action at this time. 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. The health-related board that the SP was regulated by was notified that the SP was determined to be responsible for serious and recurring maltreatment and was disqualified from providing direct contact services. Administrative Reconsideration: The disposition of the investigation is amended from substantiated as to sexual abuse and neglect of the VA by the SP to inconclusive as to sexual abuse and neglect of the VA by the SP. To the extent that the language in the Administrative Reconsideration conflicts with the language in the remaining part of the Amended Investigative Memorandum, the language in the Administrative Reconsideration controls. The disposition was amended based on the following:
Amended Conclusion: The VA said that while s/he was a client at the facility, the SP flirted with him/her; exchanged text messages, including nude pictures of him/herself; kissed; and performed oral sex on the VA. After the VA discharged, the two continued to meet for sexual intercourse and/or drug use. The SP denied the allegations, and s/he provided different accounts to the LEO and this investigator regarding having lost his/her phone versus allowing clients to use his/her phone. The SP had reason to minimize his/her actions for fear of repercussions, and the VA had pictures and text messages that were determined to be from the SP because the address, phone number, and tattoos matched that of the SP and supported the VA’s account. However, the text messages provided to the investigator from the LEO were sent from the SP to the VA between March 27 and April 18, 2023, when the VA was no longer a client at the facility and the SP was no longer the VA’s caregiver. It is unknown when any nude photographs were sent from the SP to the VA because there was no information about the date(s) that the SP sent the photographs to the VA. P1, P2, P3 and P4 indicated during the investigation they had no concerns with the SP’s interactions with clients, and the VA never said anything to staff persons that was suspicious or indicative of a relationship with a staff person. Upon further legal review, given that the VA and the SP provided different information about whether they had sexual contact, that no staff persons observed concerning interactions between the VA and the SP, and that there was no documentation of the exchange of text messages or photographs between the VA and the SP while the VA was a client at the facility, there was not a preponderance of the evidence whether any sexual contact or penetration occurred between the VA and the SP while the VA was a client at the facility. In addition, there was not a preponderance of evidence whether there was a failure by the SP to supply the VA with care of services reasonable and necessary to obtain or maintain the VA’s physical or mental health or safety. It was not determined whether sexual abuse occurred (any sexual contact or penetration between a facility staff person or a person providing services in the facility and a resident, patient, or client of that facility. Sexual contact is defined by Minnesota Statutes, section 609.341, as the intentional touching of the intimate parts with sexual or aggressive intent. 'Intimate parts' includes the primary genital area, groin, inner thigh, buttocks, and breast). 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). Amended Action Taken by Department of Human Services, Office of Inspector General: On January 29, 2026, the SP was notified of the changed determination that the SP was no longer responsible for maltreatment and no longer disqualified.
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