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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: 1112471-H_CRS (Home and Community-Based Services-Community Residential Setting) Investigator(s): Emily Kearns Suspected Maltreatment Reported: It was reported that a staff person (SP) fed sliced bananas to a vulnerable adult (VA) and that the VA’s food was supposed to be pureed. The VA choked on the banana slice, and several methods for clearing the banana were employed prior to clearing the VA’s airway. Date of Incident(s): February 16, 2026 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 February 25, 2026; from documentation at the facility and medical records; and through nine interviews conducted with four supervisory facility staff persons (P2, P3, P4, and P5), two facility staff persons (P1 and P6), the VA, and the SP. The VA’s case manager (CM) was aware of the incident, and interviewed, but did not provide additional information. The VA was not subject to guardianship. This investigation was conducted with law enforcement. The VA was diagnosed with spastic cerebral palsy, an intellectual disability, Ogilvie’s syndrome, obstructive sleep apnea, and dysphagia with aspiration. The VA enjoyed baking, socializing, building birdhouses, and listening to music. The VA lived at the facility with three other clients. All four clients were provided a higher-level of medical care at the facility due to their needs. The facility was always staffed with at least one licensed practical nurse (LPN) at a time who was, in effect, the lead staff person. The LPN was paired with other staff persons who were trained on cardiopulmonary resuscitation (CPR), the Heimlich maneuver (abdominal thrusts), and how to use medical devices such as a LifeVac. According to LifeVac’s product website, www.lifevac.net, LifeVac was described as a choking rescue device that consists of a one way valve, mask, and handle to attempt to suction food debris blocking an individual’s airway. According to the VA’s plans, the VA was unable to prepare food or feed him/herself, and needed assistance from staff persons. In 2024, the VA completed a swallow study. The VA had been diagnosed with aspiration-related pneumonia in the past. Staff persons were to puree all food and thicken all liquids to a “pudding” consistency due the VA’s history of difficulty with swallowing (dysphasia) and risk of choking. Staff persons were to monitor the VA while assisting the VA with eating and use silicone utensils. The plans stated that a food chart, showing examples of pudding consistency, were posted as a reference in the facility’s kitchen. This investigator observed the chart when conducting the site visit. The VA used a wheelchair but was unable to move it without assistance. A chest strap and two overlapping lap straps went across the VA’s body to keep him/her upright in the wheelchair. The facility was a single-level building with attached garage. The kitchen and dining area were in the center of the facility with an attached living room. On either end of the kitchen and living room were hallways. One hallway had bedrooms and bathrooms. The other hallway had a bathroom, a laundry area, and a staff person office. Ceiling tracks for using a Hoyer lift and sling to transfer clients were visible throughout the facility, bedrooms, and bathrooms. P1 provided the following information: · On February 16, 2026, around lunchtime, P1 planned to feed the VA, but used the restroom and came back to find that the SP was feeding the VA a banana. The SP peeled the banana, cut it in half, and put it on the plate. The banana was in “big” pieces, almost an inch around. The VA’s food was supposed to be pureed using a blender, along with a liquids, but the food was not pureed. The blender was not in the cupboard, not in the sink, where it was usually placed after use. · The VA began “choking” and P1 looked at the SP. The VA was not breathing. The SP did not “do anything” and was “no help,” so P1 stood up and said the VA’s name. P1 attempted to do the Heimlich maneuver on the VA three times, unsuccessfully. The VA had turned blue. The SP just stood there, did not touch, or assist with helping P1 or the VA. P1 looked to the SP for guidance as the SP was a lead staff person at the facility on the shift. P1 went into the staff person office to get help from P2 and P3 in lieu of calling 9-1-1 at the time. P1 would have called 9-1-1 immediately if P2 and P3 were not there. P1, P2 and P3 provided the following information: · P2 and P3 were in the staff person office when P1 entered the office needing help. P1 said that s/he needed P2 to come to the dining room right away. P2 could tell it was “urgent” and P3 knew from the look on P2’s face that something was going on. · P2 and P3 stated that they followed P1 into the dining room. P2 saw the SP standing next to the VA’s wheelchair and the VA’s face was blue. P3 saw the SP’s hand on the VA’s left shoulder or shoulder blade. P3 stated that the VA’s back was to the office and upon entering, did not know anyone was choking, because it was “quiet and calm.” P2 realized the VA was choking, was not verbally responding, and asked why the LifeVac was not being used. P2 stated that the SP was standing next to the VA, and “nothing was being done” to help the VA. P1 stated that the SP did not do the Heimlich. · P2 then grabbed the LifeVac from a caddy in the kitchen and began using it. P2 attempted to use the LifeVac three times. On the second attempt, P2 and P3 heard a little gasp of air from the VA, but the food was still lodged. P2 was having difficulty using the mask with the VA seated in the wheelchair, “slumped over.” P2 needed “good suction” to use the LifeVac and was not getting it with the VA’s position. P2 next stated that s/he was going to do the Heimlich maneuver. P2 stated that the VA’s chest strap was undone and P2 stood behind the VA, moved the VA to the edge of the wheelchair, and did abdominal thrusts, checking the VA’s status between thrusts. · P1 and P2 helped get the two waist straps unbuckled. On the third thrust, the VA spat out food and began to breathe. P2 stated that s/he saw a quarter-size piece of banana land onto the VA’s lap. P1 stated that it was about an inch in size. P2 looked at the VA’s plate and noticed that neither the food that was spat out, nor the food on the VA’s plate were pureed. P3 said s/he did not see the food that came out of the VA’s mouth but noticed that there were sliced bananas and scrambled eggs on the VA’s plate. Nothing on the VA’s plate was pureed. · After the VA began breathing, P1, P2, and P3 made sure the VA was okay. P1 or P3 wiped the VA’s face with a washcloth and all three rubbed the VA’s back until the VA seemed to be “stable.” P2 and P3 said they assisted the VA to an upright position in his/her wheelchair and secured the safety belts. The color began to return to the VA’s face, s/he began to talk, and “seemed fine.” · The SP then said, “Just another day.” P3 responded, “It’s not. It could have been avoided.” P3 told the SP that staff persons cannot feed the VA “that way.” The SP replied, “You can feed [the VA] pizza and [s/he] will be fine. You feed [him/her] Jello, and [s/he] will die.” P3 told the SP that they could not feed pizza to the VA without pureeing it. The SP replied, “I know. This was years ago.” · P3 told staff persons that the VA needed to be assessed at the ER and P2 told the SP to take him/her. The SP took the VA to the hospital. · The VA and SP were gone for several hours. According to P2, who was in communication with the SP, there were no signs of broken or cracked ribs or nasal injuries. There was a possibility of aspiration that could turn into pneumonia so when the VA returned to the facility, the facility implemented a seven-day watch on the VA. This included checking “vitals” on the VA every four hours, during waking hours. No further issues developed during this timeframe. · After the incident, P1 told P2 that the SP was “not doing anything” to help the VA during the incident but was “yelling” at the VA to spit out the food. P1 attempted to do a back blow, which was why the chest strap was not fastened. P2 was unsure if the SP “froze” in the moment, but when a client was choking, staff person should do “lifesaving measures.” P3 stated that the SP said s/he gave the VA “back blows.” P2 said that the SP said s/he did “back blows” on the VA, but changed the number of back blows several times, first stating five times and later stating “five to seven” and later “got defensive” when P2 asked what the SP had done to help the VA. P2 did not hear anything in the office during the incident that “altered” P2 to anything happening. P2 could usually hear “soft talking” in the kitchen when in the office. P2 thought that about two minutes passed from the time P1 got P2 until the VA breathed. The SP provided the following information, which was inconsistent at times: · On the date of the incident, P1 and the SP were in the kitchen with the VA, while the SP fed the VA a “mashed up” banana. The SP could not recall what size the banana pieces were that were fed to the VA but later said they were cut up into “circles.” The SP also put an egg bake to which the SP also described as “scrambled eggs” on the VA’s plate as part of the meal. The SP denied pureeing the eggs or banana that day. At around the fifth bite of banana, the VA began to choke on food. The SP tilted the VA forward to a position of “120-degrees” from the VA’s seated 90-degree position and gave the VA five to six back blows before sitting the VA back upright. P1 then left to get P2 and P3. · P2 “took over” and used the LifeVac to suction three times, and it sounded like “something wanted to come out,” but did not. P2 performed the Heimlich maneuver five times and the VA began to breathe again. The SP’s shift notes added that P2 “discharged [the] rest of [the] blockage.” When interviewed by this investigator, the SP denied seeing any food come out of the VA’s mouth but documented in the shift notes that “yellow spit/part of a banana came out.” During the facility’s interview with the SP, which was documented in the Internal Review, the SP described the size of the banana as “about the size of a pinky and middle fingernail” and stated that s/he saw banana come out of the VA’s mouth. · The SP estimated ten seconds had passed from the time the VA began choking, to the back blows the SP gave, to the time P1 got P2, to when P2 “took over.” The SP denied using the LifeVac or performing the Heimlich maneuver. The SP did not know what was going through his/her head at the time that s/he did not start to use the LifeVac. · After the VA began to breathe, the SP thought to him/herself that three staff persons did not need to be standing next to the VA, so the SP left to feed another client until P2 asked the SP to bring the VA to the ER. The SP noted in the shift notes that the VA’s color changed from “pale blue back to pale white (normal skin tone).” The SP then brought the VA to the ER. The SP thought that the choking incident probably “traumatized” the VA. · Typically, the VA’s food was blended with liquids, like broth or juice to thin the food, or ingredients to thicken the foods. The VA’s food was to be pureed for every meal unless there was no pureeing available, such as going out to eat or if the blender failed, the SP was told by a previous staff person that s/he could “mash” up the food. This investigator asked the SP if the VA’s was to be “mashed up” or “pureed,” and the SP stated that the VA’s food was to be pureed but that the SP thought s/he could puree the food with a spoon. There was a chart near the blender that showed the varying levels of food preparation, but the SP stated that s/he did not refer to the chart the day of the incident. The SP did not know why s/he did not puree the VA’s food that day. The SP surmised that s/he was thinking the banana was “super soft” and that by using a spoon, the SP was “making [the banana] soft.” The SP was unsure if s/he had fed the VA an unpureed banana in the past. The SP did not believe s/he fed the VA any eggs that day. · The SP stated that using a spoon to puree the banana was not effective. The SP was unable to describe the [pudding-like] consistency to which the food was supposed to be prepared). The SP was unable to describe the diagnoses or conditions that the VA had that caused difficulty swallowing and required a pureed-food diet. The SP was trained on the VA’s plans and food preparation prior to providing care or meals to the VA and knew that the VA’s food was to be pureed. The SP could not recall a time where s/he had been reminded in the past to puree the VA’s food but stated that “maybe” there was a time. · The VA choked on food “almost every single meal.” This included medication passes, snacks, Jell-O, and thin or thickened foods and liquids. When the SP assisted the VA to eat pureed pizza, s/he would not choke. According to the SP, if you told the VA s/he was eating Jell-O, the VA coughed, but if you told the VA s/he was eating pizza, the VA “ain’t coughing.” If a client was choking, the SP was trained to sit the client up, check for visible food in the mouth, then do back blows or Heimlich maneuver. The LifeVac was also an option. In the interview with the SP completed by the facility and documents in the facility’s Internal Review, the SP also stated s/he had Jell-O on the plate for the VA that day but that the VA had not eaten the Jell-O. The egg bake, which was not pureed consisted of egg, cheese, and sausage in it and the VA was given one bite of egg bake. The SP stated s/he gave the VA two bites of the banana, less than a quarter inch in size each. After one bite of the egg bake, the VA began to cough, but this was “normal” for the VA. The SP stated s/he saw “no warning flags” when the VA was coughing. The SP then fed the VA another bite of banana, and the VA began to cough, then the VA’s face turned red. The SP asked the VA if s/he was “okay” prior to P1 leaving the room. The VA stated that the VA began choking when the SP served a banana “whole” to the VA. The SP “usually” pureed the VA’s food, and was “supposed to,” but did not this time. The VA was scared when s/he was choking and that P2 gave the VA back blows. The VA did not think that the SP gave him/her back blows during the incident. The SP then took the VA to the hospital and the VA was feeling better within several hours. According to medical records, the VA was evaluated after choking and the VA did not lose consciousness. It was unlikely that the VA sustained significant injury due to loss of oxygen but may have aspirated a small piece of banana. There was no “bony tenderness” to suggest fractures of the ribs, spine, or face, and chest x-rays showed no “abnormalities” or signs of inflammation. Aspiration could take several days to present symptomatically, and that the VA should return if there were additional issues. The VA was discharged several hours later. P4 and P5 provided information similar to P1 through P3, and added the following information: · P4 and P5 were not in the kitchen area during the incident. P4 said that the SP stated that s/he felt the VA “liked” food better and “ate better” when food was not pureed.
· P5 stated that the VA was also eating “egg bake,” at the time of the incident. The SP told P5 that s/he “mushed” the egg bake up and found that it was “already the consistency needed” and decided not to use the food processor. The SP cut the banana into “small pieces” and started feeding the VA. At first, VA was coughing, and the SP encouraged the VA to keep coughing, but the VA was unable to clear the food. The SP told P5 that s/he then did about five back blows and then P2 stepped in. · P5 stated that staff persons were trained to prepare food to the consistency required for each client at the facility, according to their plans. In the event of a choking emergency, staff persons were trained to first use the LifeVac, then to use the Heimlich maneuver after that which was trained during new employee orientation. The SP told P5 that s/he typically pureed food unless the food was “soft like a banana” and then the SP went on to say that if you tell the VA s/he was eating “pizza,” then the VA will chew the food better. P5 did not hear of any other staff persons not pureeing the VA’s food. P6 provided information consistent with P1-P5, the VA, and the SP regarding the VA’s pureed diet and added that staff persons used Thick-It to thicken liquids. It was the responsibility of the lead staff person to delegate tasks such as the Heimlich, CPR, and LifeVac system, or direct a staff person to call 9-1-1, when needed. Staff persons in the position of the lead staff person were taught to use judgement and educated guessing, learned from education and training as an LPN to do what was needed for each emergency situation. P1 and P2 provided the following additional information: · P2 stated that the SP used bad judgement by not pureeing the VA’s food the day of the incident, was trained, and “knew better.” All staff persons were trained that the VA was a “level four” for food thickening, and there were reminders posted throughout the facility and in the VA’s communication books, and there were blenders available. · P1 stated that on “many” previous occasions, s/he had observed the SP “forget completely” to puree the VA’s food, and told P2 to check the food that the SP would feed to the VA. The VA “choked” but was able to breathe. The most recent occurrence was “last year.” P1 did not have further details. P1 did not like telling the SP that s/he was not “mixing” the food very well, since the SP was the lead staff person on the shift. · P2 stated that P1 and another staff person had brought forward concerns about the SP not preparing food properly in the past and about food pieces being too large. P2 verbally reminded the SP and provided hands-on, follow up training about the VA’s food preparation. P2 could not locate a written record of the discussion. P2 stated s/he was not told that the SP was failing to puree foods.
All staff persons interviewed for this investigation were trained on the Reporting of Maltreatment of Vulnerable Adults Act and the VA’s plans. Conclusion: A. Maltreatment: Information showed that on February 16, 2026, at lunch time, the SP was feeding the VA banana when the VA began to choke. The VA was unable to breathe and according to P1, the SP was not using the tools or methods on hand to assist the VA, so P1 went to get P2 and P3. According to the SP, the SP gave the VA five back blows after loosening the VA’s chest strap and “yellow spit” and banana came out of the VA’s mouth. According to P1 – P3, P2 grabbed the LifeVac and attempted three suctions on the VA’s mouth, with the VA getting a little breath before the food was again, lodged. P2 then performed the Heimlich maneuver and on the third attempt, banana came out of the VA’s mouth. P2 stated that the banana was a quarter-sized piece and P1 stated that it was about an inch in size. The SP initially denied seeing any food come out of the VA’s mouth but later described that it was banana about the size of a middle and pinky fingernail. P1, P2, P3, the VA, and the SP stated that the SP did not puree the VA’s banana or egg bake the day of the incident, as was required per the VA’s plans. P2 and P3 observed non-pureed food remaining on the VA’s plate. The VA stated that the SP “usually” pureed the VA’s food. P1 stated that there were other occasions that the SP “completely forgot” to puree the VA’s food and P1 did not like to tell the SP that s/he was not “mixing” the VA’s food well. P1 did not provide details regarding specific incident or whether the VA consumed unpureed food. P2 stated that’s/he coached the SP about properly preparing the VA’s food but did not have documentation. P2 stated s/he was not told the SP was failure to puree the VA’s food. According to the SP, the SP fed the VA a “mashed up” banana, and later said the banana was cut up into “circles.” The SP stated that the VA’s food was to be pureed for every meal and that s/he was told by a previous staff person that s/he could “mash” up the food. The SP stated that s/he did not refer to the food chart that day and SP did not know why s/he did not puree the VA’s food that day. The SP thought the banana was “super soft” and that by using a spoon, the SP was making the banana soft. The SP stated s/he was unsure if s/he gave the VA a banana that was not pureed in the past. The SP was unable to describe the pudding-like consistency to which the food was supposed to be prepared. The SP was unable to describe the diagnoses or conditions that the VA had that caused difficulty swallowing and required a pureed-food diet. Given that the VA’s food was supposed to be pureed due to the VA’s history choking and aspiration, and that the SP did not puree the VA’s food and subsequently the VA choked and turned blue, there was a preponderance of the evidence that there was a failure to supply the VA with care or services which were reasonably necessary to obtain or maintain the VA’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 trained on the VA’s plans and on the Reporting of Maltreatment of Vulnerable Adults Act, therefore 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 the 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 because it was a single incident and the VA did not require care of a physician. Action Taken by Facility: The facility’s Internal Review stated that the facility’s policies and procedures were adequate but not followed. 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. The SP was regulated by a health-related licensing board. The health-related licensing board was notified upon issuance of the investigation memorandum that the SP was determined to be responsible for maltreatment. The SP was notified that any further substantiated act of maltreatment, whether or not the act met the criteria for “serious,” would automatically meet the criteria for “recurring” and would result in the disqualification of the SP, if the background study is related to child foster care, adult foster care, or family child care licensure. The determination that the SP was responsible for maltreatment is subject to appeal.
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