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MALTREATMENT INVESTIGATION MEMORANDUM Minnesota Statutes, section 260E.01, paragraph (a), “The legislature hereby declares that the public policy of this state is to protect children whose health or welfare may be jeopardized through maltreatment.”
License Number and Program Type: 831080-CRF (Children’s Residential Facility/Department of Corrections) Investigator(s): Marie Tierney Suspected Maltreatment Reported: It was reported that an alleged victim’s (AV’s) right humerus was fractured during a physical interaction with a staff person (SP). Date of Incident(s): January 15, 2022 Nature of Alleged Maltreatment Pursuant to Minnesota Statutes, section 260E.03, subdivision 15, paragraph (a), clauses (1) and (2): Failure by a person responsible for a child's care to supply a child with necessary food, clothing, shelter, health, medical, or other care required for the child's physical or mental health when reasonably able to do so. Failure to protect a child from conditions or actions that seriously endanger the child's physical or mental health when reasonably able to do so. Summary of Findings: Pertinent information was obtained during a site visit conducted on March 14, 2022; from documentation at the facility and medical records; and through four interviews conducted with the AV, the SP, a supervisory staff person (P1), and another facility staff person (P2). The facility’s file for the AV documented that the AV was a “smart and creative” 12 year old. The AV was a trauma survivor and s/he was receiving residential treatment services for oppositional defiant disorder, disruptive mood dysregulation disorder, and attention deficit hyperactivity disorder. The AV had a history of physical aggression towards others. Staff persons were to help the AV learn coping skills and stress management techniques to help reduce his/her anxiety, including his/her impulsivity. The emergency use of physical interventions and time outs were approved to protect the AV from harming him/herself or others. Information from all sources was consistent that on January 15, 2022, the AV’s right humerus (arm bone between the elbow and shoulder) was fractured during a physical intervention by the SP. The fracture required surgical repair on January 20, 2022. The AV said s/he did not remember who the staff persons were who were involved with the incident. The AV said s/he “was getting aggressive probably” and a staff person was holding his/her arm and, “I pulled back and the muscle just pulled back and fractured.” The AV said staff persons did not try anything else to help the AV calm prior to physically intervening. The AV did not have any concerns about staff persons’ actions during the incident. P1, P2, and the SP each provided consistent information that the AV had a home visit scheduled for a few days after the incident. However, if the AV displayed behavior that required physical intervention from staff persons, the AV would no longer be eligible to attend his/her home visit. Information from the SP and P2 was consistent that on January 15, 2022, the AV asked for a craft item and P2 explained that s/he could not have the item s/he asked for because it was going to be used for another activity later on. The AV became dysregulated and began to display aggression towards P2. P2 walked away from the AV, and the AV ran down a hallway toward the SP. The SP provided the following information during his/her interview with the DHS investigator: · The AV ran down a hallway toward doors that led to a common area which in turn had doors that led off the unit. The SP positioned him/herself between the AV and the doors at the end of the hallway, and tried to deescalate the AV by asking him/her what was going on. The AV then began “grabbing” the SP. The SP said, “At that point I wasn’t going to restrain [the AV], [s/he’s] pretty small and. . . [him/her] being super little . . . was new to me.” In addition, the SP “had on my mind” that if the AV was physically restrained, s/he would not be eligible to go on his/her home visit and, “I didn’t want to be the person to ruin that for [the AV], it was really important to [him/her].” · The AV began hitting the SP, and the SP then “did the best I could to hold on without [the AV] hurting me or anyone else.” · The AV began biting the SP’s arm. The SP held onto the AV’s arm with his/her other hand, and tried to pull the arm that was being bitten down and out of the AV’s mouth. The SP “was going to try to put [the AV] in a hold,” but the AV “twisted and dropped to the ground” while the SP was still holding the AV’s arm. The AV began to scream and ran away from the SP. The AV continued to scream until s/he was taken to a hospital. · The SP said s/he was trained on a technique to release a bite. However, the technique s/he was taught could not be implemented from the position the SP and the AV were in when the AV bit him/her. · When asked whether his/her actions were consistent with his/her training, the SP said, “I was trying to, but . . . Obviously I should have thought of safety first, I just didn’t want to ruin [the AV’s] home visit.” Video of the incident showed the following: · The AV walked down a hallway toward the SP and toward doors that led into a common area of the AV’s unit. Without stopping, the AV appeared to try to walk past the SP, and the SP moved toward the AV, narrowing the space between the SP and a wall such that the AV would not be able to pass between the SP and the wall. · As the AV approached the SP and the space narrowed, the AV put his/her arms out in front of her, near his/her hip level, and pushed the SP away from him/her in attempt to continue down the hallway. · For the following three minutes and five seconds, the SP physically intervened with the AV. During the physical intervention, there were multiple instances of the SP holding the AV’s arms by the wrist from behind, with the AV’s arms extended straight behind him/her, and/or with the AV struggling with his/her arms. There was also one instance where the SP brought the AVs’ left hand to the AV’s back by pulling the AV’s left hand over the AV’s head, such that the AV’s palm was facing up, while maintaining the SP’s grip on the AV’s left wrist. · Two minutes and forty seconds into the physical intervention, the SP brought the AV toward a hallway wall with the AV’s right side against the wall and the SP stabilizing the AV’s left side with the SP’s right hip. The AV was bent forward and the AV’s right arm was behind him/her and bent at various angles with the SP holding the AV’s right wrist, for approximately 40 seconds. The AV’s and the SP’s left arms were not visible in the camera view. The AV then appeared to lurch forward, and struggled with the SP. The SP grasped the AV around his/her torso from behind momentarily before the AV ran away. P1 said the facility’s goal was “zero holds” and there was a strong cultural and training emphasis on deescalating situations to avoid the need for physical intervention with youth. P1 reviewed video of the incident and said s/he did not “really” have concerns about the SP’s actions. P1 said the SP “was trying to show more caring gestures to show [s/he was] present, trying to work with [the AV], and [s/he] cares for [the AV].” P1 said, “I know exactly what [the SP] was doing trying to make sure [the AV would] be able to go home . . . it makes sense and I would have done the same thing, avoid the hold and do what you can.” However, it would have been physically safer to implement a restraint on the AV earlier during the incident to prevent injury to the SP and the AV. The facility determined in its internal review that the SP did not follow policies and procedures during the incident because s/he did not initiate an approved procedure “that would have maintained the safety of the youth.” The facility’s policies and procedures on The Use of Physical Holds/Manual Restraints for Residential Programs and Therapeutic and Restrictive Procedures stated: · De-escalation and nonphysical techniques are the preferred intervention in the management of youths’ behavior. Physical holds/restraints were used as a last resort to maintain the physical safety of youth and staff when the safety of the youth and others was in imminent danger and/or to prevent self-harm and self-destructive behaviors that put the youth in imminent danger, when less-restrictive interventions were attempted but unsuccessful. · Staff will refrain from using techniques that place pressure on the limbs or joints, which can be associated with nerve injury and physical damage. · Staff will only be allowed to perform those holds/restraints listed in the site’s policy, which must be performed only in the manner to which it has been trained. None of the approved methods included holding a youth’s wrists with their arms extended behind their back. “Holding youth in uncomfortable or awkward positions as well as arm twisting, arms held high behind the back . . . is not acceptable or tolerated. . . All trained personnel have the authority and responsibility to end a physical hold if it is not being performed per DHS guidelines, Handle With Care guidelines are not being followed, or the hold is contraindicated in the youth’s treatment plan.” The facility’s personnel files and training records documented that: · P1, P2, and the SP were each trained on the facility’s The Use of Physical Holds/Manual Restraints for Residential Programs policy, Therapeutic and Restrictive Procedures policy, on de-escalation and physical intervention techniques, and on the Maltreatment of Minors Act, prior to the incident. · The SP received corrective action related to the January 15, 2022, incident for “carelessness with injury” with the AV because, “while attempting to deescalate a youth [the SP] held onto youth’s wrist. This led the youth to pull away causing the fracture.” It was noted that the SP did not follow policies and procedures because, “All personnel must not only know the proper procedures for performing a physical hold, but also alternative interventions, such as how to verbally diffuse a situation to avoid the need for a physical hold and other behavior management techniques taught by qualified instructors.”
Conclusion: A. Maltreatment: Information from all sources was consistent that the AV’s right humerus was fractured during a physical intervention with the SP on January 15, 2022. Although the AV likely required some form of intervention, information from video, policies and procedures, the facility’s internal review, and the SP’s personnel records, was consistent that the SP used unapproved techniques during the January 15, 2022, incident, which resulted in injury to the AV. Therefore, there was a preponderance of the evidence that there was a failure to supply the AV with necessary care when reasonably able to do so. It was determined that neglect occurred (failure by a person responsible for a child's care to supply a child with necessary food, clothing, shelter, health, medical, or other care required for the child's physical or mental health when reasonably able to do so. Failure to protect a child from conditions or actions that seriously endanger the child's physical or mental health when reasonably able to do so). B. Responsibility pursuant to Minnesota Statutes, section 260E.30, subdivision 4, paragraph (a), clauses (1) and (2): When determining whether the facility or individual is the responsible party, or whether both the facility and the individual are responsible for determined maltreatment in a facility, the investigating agency shall consider at least the following mitigating factors: (1) whether the actions of the facility or the individual caregivers were according to, and followed the terms of, an erroneous physician order, prescription, individual care plan, or directive; however, this is not a mitigating factor when the facility or caregiver was responsible for the issuance of the erroneous order, prescription, individual care plan, or directive or knew or should have known of the errors and took no reasonable measures to correct the defect before administering care; (2) comparative responsibility between the facility, other caregivers, and requirements placed upon an employee, including the facility’s compliance with related regulatory standards and the adequacy of facility policies and procedures, facility training, an individual’s participation in the training, the caregiver’s supervision, and facility staffing levels and the scope of the individual employee’s authority and discretion; and (3) whether the facility or individual followed professional standards in exercising professional judgment. The SP was trained on the facility’s Use of Physical Holds/Manual Restraints for Residential Programs policy, Therapeutic and Restrictive Procedures policy, de-escalation and physical intervention techniques, and on the Maltreatment of Minors Act, prior to the incident. The SP was responsible for maltreatment of the AV. 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 was serious maltreatment because it resulted in serious injury which reasonably required the care of a physician. The SP was disqualified from providing direct contact services. Pursuant to Minnesota Statutes, section 260E.35, subdivision 6, paragraph (c) all investigative data maintained in this report will be kept by the Department of Human Services for at least ten years after the date of the final entry in the report. Action Taken by Facility: The facility completed an internal review and determined that policies and procedures were adequate but were not followed, the incident was not similar to past incidents with the persons or services involved, there was a need for additional staff training, and there was a need for a corrective action plan to protect persons in care. The facility provided corrective action to the SP and additional trainings for the SP and other team members on the facility’s de-escalation and physical intervention maneuvers. Staff persons were reminded to follow the facility’s policies and procedures when attempting to de-escalate youth. 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. Certification: The information collection procedures followed in this investigation were pursuant to Minnesota Statutes, section 260E.30, subdivision 6, paragraph (c). All individuals that are subjects of data in this investigation have the right to obtain private data on themselves which was collected, created, or maintained by the Department of Human Services.
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