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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: 1068645-H_CRS (Home and Community-Based Services-Community Residential Setting) Investigator(s): Gessner Rivas/Beth Virden Suspected Maltreatment Reported: It was reported that a staff person (SP) asked a vulnerable adult (VA) if the VA was “[a homophobic slur].” Date of Incident(s): On or around November 1, 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 November 17, 2025; from documentation at the facility; and through five interviews conducted with the VA, the VA’s guardian (G) who was also the VA’s family member, a facility staff person (SP), a supervisory staff person (P1), and an administrative staff person (P2). The VA’s support plans, including Coordinated Service and Support Plan Addendum, stated the following: · The VA was “friendly, outgoing, caring, helpful,” and enjoyed going out to eat, shopping, and attending social events. · In 2014, the VA moved into the facility seeking services and support relating to his/her diagnoses, which included depression, mild intellectual disability, and conduct disorder. The facility supplied at least one staff person 24 hours a day for the VA’s care and supervision. Staff helped the VA manage his/her medications and healthcare, prepare meals, and attend community activities. · The VA communicated verbally and could follow a conversation and understand what was said but might have difficulty expressing his/her concerns and needs time and support to do so. The VA had a history of misremembering timelines or how events happened and not always providing accurate information about what people said or did. The facility’s incident report stated that on November 3, 2025, the VA told P1 that on November 1, 2025, the SP saw that the VA painted his/her fingernails and asked the VA, “Why are you nails painted black? Are you a faggot?” (herein, referred to as a homophobic slur). The VA responded by leaving and going into the VA’s bedroom. The VA said that s/he attended a Halloween party (around October 31, 2025) and dressed up as a devil. A few days prior to the party, a staff person painted the VA’s fingernails black as part of his/her devil costume. The VA said that a couple of days later, s/he was in the facility’s kitchen when the SP saw the VA’s painted fingernails and said, “Why did you paint your nails? Are you [a homophobic slur]?” The VA told the SP, “I’m not,” and went into his/her bedroom and called the G. The VA said that the SP’s statement “wasn’t nice” and made the VA feel “sad.” The SP had never said anything similar to the VA in the past. There was no one else around when the SP said this. The G said that on an unknown date the VA called and was “upset” and told the G that a staff person called the VA, “[A homophobic slur].” The VA provided the staff person’s name, but the G could not recall the name when speaking with the DHS investigator. The G believed the VA knew what “[the homophobic slur]” meant. The VA was a reliable reporter of information and had a history of speaking up if s/he believed s/he was being “picked on” by someone. P1 and P2 provided the following information: · P1 and P2 each said that on or around November 3, 2025, the VA told them, each, that the SP asked the VA, “Why did you paint your nails? Are you [a homophobic slur]?” The VA believed this occurred on November 1 or 2, 2025. · P1 said that the VA had a history of making nonspecific, unsubstantiated statements, like, “Staff swore at me this weekend,” when there was no supporting information that anything occurred. In those instances, the VA never provided specifics, like words or quotes or the staff’s name. Regarding the VA’s account of this incident, the VA provided a specific word, “[a homophobic slur]” and the SP’s name, which was not typical of the VA when s/he was making an untrue statement. · P1 and P2 each said that they believed the VA’s account was accurate because of the specific details provided and that the VA repeated his/her account more than once to P1 or P2, and each time, was consistent about what happened. · P2 said that s/he met with the SP about the allegation and the SP denied saying a homophonic slur to the VA. P2 said that the SP appeared “honest” and “adamant” that the alleged incident never happened. The SP said that there was another staff person (P3) “in the area” during the SP’s and the VA’s conversation. · P2 said that s/he met with P3 about the allegation. P3 said that s/he was not present for a conversation between the SP and the VA, that the SP and the VA rarely spoke to one another, and that s/he never heard the SP say a homophonic slur. · P1 said that s/he was not aware of prior concerns with the SP’s conduct. The SP said that on an unspecified day, around October 31, 2025, the VA showed P3 and then the SP the VA’s painted fingernails. The VA seemed excited to show staff. The SP responded, “That’s fine,” or “That’s good,” but did not state anything further and never used a homophobic slur. The SP was “a quiet person” and typically did not talk much when at work. The VA previously told other staff that s/he did not like the SP. The VA rarely talked to the SP or asked the SP for help. The SP was “confused” and “surprised” by the allegation. Facility documentation stated that the SP, P1, and P3 received training on the VA’s support plans, including Coordinated Service and Support Plan Addendum, and on the Reporting of Maltreatment of Vulnerable Adults Act. P2 was not required to receive the same training due to his/her position. Relevant Rule and/or Statute Minnesota Statutes 245D.04, subdivision 3, paragraph (a), clauses (6) and (8), state that the servant recipient has the right to be treated with courtesy and respect, and be free from bias and harassment regarding race, gender, age, disability, spirituality, and sexual orientation. Conclusion: A. Maltreatment: The VA provided consistent information to the G, P1, P2, and the DHS investigator that for Halloween, October 31, 2025, s/he dressed up as a devil and as part of the costume, painted his/her fingernails. Then at some point after, when the SP saw the VA’s fingernails, the SP asked the VA, “Why did you paint your nails? Are you [a homophobic slur]?” The SP’s statement made the VA feel “sad,” and the VA went into his/her bedroom and called the G. The SP denied the allegation and said that the VA did not like him/her. There was no information that the SP had a history of similar statements or concerns. Given that there were no witnesses and that the VA’s account and the SP’s account contradicted one another, credibility must be considered. The SP said that P3 was present during the SP’s and the VA’s conversation but P3 said that s/he was not present for this conversation. The G said that the VA was a reliable reporter of information and was “upset” on the phone, which supported the VA’s account that s/he called the G shortly after the incident occurred. P2 said that the SP appeared “honest” when denying the allegation; however, P1 and P2 each said that they believed the VA’s account was accurate given the details provided by the VA, which was not typical if the VA was not providing an accurate account. Therefore, it was determined that the VA’s account was more credible than the SP’s account. The SP’s conduct of calling the VA a homophobic slur was inconsistent with the standards of a professional caregiver in a facility licensed by the Department of Human services and violations of Minnesota Statutes 245D.04, subdivision 3, paragraph (8), clauses (6) and (8). In addition, given that the SP’s statement made the VA “sad” and “upset” and go to his/her bedroom, and that the nature of the word, “faggot,” (a homophobic slur) was derogatory and directed at the VA as likely a means to insult or humiliate for painting his/her fingernails, there was a preponderance of the evidence that the SP’s conduct was not an accident or therapeutic and that the single use of the word was malicious oral language toward the VA which produced emotional distress for 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. The SP was responsible for the VA’s care and supervision and received training on the VA’s support plans, including Coordinated Service and Support Plan Addendum, and on 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 emotional abuse for which the SP was responsible did not meet statutory criteria to be determined as recurring or serious. The SP was responsible for a single incident of maltreatment that did not meet the definition of being serious maltreatment. Action Taken by Facility: The facility completed an internal review and determined that policies and procedures were adequate. “It is unclear as to whether the alleged statement/question from [the SP] was said.” “The VA had a history of misremembering timelines and how events happen [and] may falsely report things people say or do.” The facility did not determine a need for additional training or corrective action following this incident. 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. On March 4, 2026, the facility was issued a Correction Order for the violations outlined in this report.
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