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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: 1095397-HCBS (Home and Community-Based Services) Investigator(s): Jason Pehler 651-431-4830 Suspected Maltreatment Reported: It was reported a staff person (SP) drove a vulnerable adult (VA) to a medical appointment, smoked marijuana while the VA was at the medical appointment, and then the SP drove the VA home after the appointment. Date of Incident(s): July 21, 2023 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 October 11, 2023; from documentation at the facility; and through two interviews conducted with the VA and a facility supervisor (P). This investigator attempted to contact the SP via phone call, and sent a certified letter requesting an interview, and the SP responded by email. The SP chose not to complete an interview, but provided information to this investigator via email. Facility documentation showed the VA was described as happy, a good listener, patient, and an understanding person. The VA liked to be social, spent time with neighbors, and was an “wonderful cook.” The VA dreamed of traveling and spending time with his/her family. The VA lived in an apartment and was not subject to guardianship. The VA was diagnosed with anxiety, early onset Alzheimer’s, stage 3 colon cancer, and type 2 diabetes. The VA received Individual Community Living Supports (ICLS), and the SP provided services through the facility. The VA was provided 16 hours of ICLS support per week, which included assistance with household management, active cognitive support, activities of daily living, and community access. The facility completed an Internal Review which provided the following information: · On September 5, 2023, the VA stated concerns regarding the care and services provided by the SP, including an incident which occurred on July 21, 2023. The VA said on July 21, 2023, the SP drove the VA to a medical appointment, and the SP used marijuana while the VA was in the appointment. After the appointment was completed, the VA smelled marijuana, and said s/he knew the difference between marijuana and nicotine smoke. Thereafter the SP drove the VA back to his/her home. The VA was nervous and uncomfortable with the situation, but did not say anything as s/he did not have another ride home at that time. · An internet map search showed the SP drove approximately two miles. · The SP was removed as a staff person for the VA, and was no longer employed with the facility. The VA provided the following information: · The VA said the SP smoked marijuana on his/her “breaks” and would go to an area outside of the VA’s apartment, near the woods, to smoke marijuana. The VA never saw the VA smoke marijuana in person, but the SP used a “pen.” The SP would return to the VA’s apartment and continue to work with him/her after smoking the marijuana. · The VA said the SP did not smoke marijuana in front of him/her, but the SP’s car smelled like marijuana, and the VA knew the difference between the smell of cigarettes and marijuana smoke. · The VA said s/he had a medical appointment on July 21, 2023, and the SP left the appointment and went outside. The VA said while outside the SP smoked marijuana at a park, and the SP told the VA a community person said s/he should not be smoking at the park. The VA said the SP drove him/her home, but the SP’s driving was erratic; going through stop signs and swerving in and out of lanes (Note: There was no information that the SP was pulled over by law enforcement or was involved in any accidents the day of the incident). The VA said s/he did not feel safe with the SP driving. · The VA provided consistent information regarding the alleged incident to the P, the FM, and this investigator. · The VA said the SP had brought marijuana into the VA’s apartment on an unknown date, but the VA did not take a picture of the marijuana before the VA disposed of the marijuana. The VA said the SP never provided him/her with any marijuana. · The VA’s family member (FM) was present for the VA’s interview and said the SP told the FM s/he smoked marijuana in the vehicle, however there was no additional details regarding the SP smoking in the vehicle while working with the VA. · The VA said the SP had “shattered thoughts” and other commonly known signs and symptoms (bloodshot eyes) after smoking marijuana. The P provided the following information: · The P said the VA had provided consistent information related to the alleged incident which occurred on July 21, 2023, at the medical appointment. The P added during two separate phone calls to the P and to the FM the VA provided consistent information regarding the incident. The VA also said s/he did not feel safe in the SP’s vehicle while the P transported him/her. · The VA called the P to inform him/her of the marijuana the SP had left at the VA’s apartment, and the VA disposed of the marijuana. The P did observe the marijuana in person and did not have any pictures of the marijuana. · The P said there were no prior concerns related to the SP smoking marijuana while working with the VA, however the P had no face-to-face contact with the SP. The VA’s Case Manager (CM) was contacted, but did not have any direct knowledge of the alleged incident. The SP emailed this investigator and stated s/he “did nothing that was harmful” to the VA, and “I know I have done nothing wrong even when I was in the midst of [mental health symptoms].” The SP wrote s/he had “some not so many shiny moments,” however the SP did not provide any further details related to that statement. The facilities Policy and Procedures provided the following information: · Within the Employee Misconduct section, and the Drug and Alcohol Policy, the following was stated: The facility supported a workplace free from the effects of drugs, alcohol, chemicals, and abuse of prescription medications. This policy applied to all of our employees, subcontractors, and volunteers (employees). All employees needed to be free from the abuse of prescription medications or being in any manner under the influence of a chemical that impairs their ability to provide services or care. “Inappropriate behavior” included drug and/or alcohol use or being under the influence of drugs or alcohol when working with services recipients. · The Safe Transportation policy stated an employee was required to follow all traffic safety laws while transporting a vulnerable adult, which included wearing a seatbelt and obeying traffic signs while operating the vehicle. Facility documentation showed that prior to the incident the SP received training on the facility’s policies and procedures, which included, but not limited to; policies related to Drug and Alcohol, Safe Transportation, and Reporting of Maltreatment of Vulnerable Adults Act. Conclusion: A. Maltreatment: It was reported that on July 21, 2023, the SP smoked marijuana while the VA was inside his/her medical appointment, and then the SP drove the VA home after the appointment. The VA provided consistent information to this investigator, the P, and the FM regarding the incident. The VA said while outside of the appointment, the SP smoked marijuana at a park, and the SP told the VA a community person said s/he should not be smoking at the park. The VA was not harmed but felt unsafe during the alleged incident. The VA said the SP drove erratically, and s/he went through stop signs and swerved in and out of lanes. The SP chose not to complete an interview, but provided information to this investigator via email. The SP’s emailed information included that s/he “did nothing that was harmful” to the VA, but “some not so many shiny moments,” however the SP did not provide any further details related to that statement. The VA expressed concerns about the SP smoking marijuana while working with the VA and stated the SP smoked marijuana outside on his/her “breaks.” The VA did not witness the SP smoking in person, but the VA stated the SP’s car smelled like marijuana and that one occasion the SP brought marijuana to the VA’s apartment. However, there was no information which corroborated or disputed the smell was a result of the SP smoking marijuana on the day(s) services were provided to the VA or that the SP drove with the VA while under the influence of marijuana on other occasions other than the incident. Although the SP provided a statement that s/he "did nothing" to harm the VA, given that the SP had reason to minimize his/her actions and that the VA provided consistent information that the SP drove the VA after using marijuana and drove “erratically” which posed a risk of harm to the VA, there was a preponderance of the evidence that the SP failed to provide the VA with reasonable and necessary care and 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 received training on the VA’s programming, supervision requirements, and the facility’s policy and procedures. In addition, the SP received training on the Reporting of Maltreatment of Vulnerable Adults Act. The SP was responsible for the VA’s care and supervision at the time of the incident. 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 neglect for which the SP was responsible was not recurring maltreatment because it was a single incident and was not serious maltreatment because the VA was not injured. Action Taken by Facility: The facility completed an internal review and determined that the policies and procedures were adequate, but not followed. There was no need for additional staff training as the facility took corrective action to protect the persons that received services, and the SP was no longer employed at 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.
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