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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: 1111321-H_CRS (Home and Community-Based Services-Community Residential Setting) Investigator(s): Judith Schwanke 651-431-4033 Suspected Maltreatment Reported: A vulnerable adult (VA) sustained a bruised tongue and a cut in his/her mouth when a staff person (SP) roughly forced a spoon into the VA’s mouth. Date of Incident(s): January 1, 2024 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), clauses (1) and (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: · Hitting, slapping, kicking, pinching, biting, or corporal punishment of a vulnerable adult. · 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 January 10, 2024; from documentation at the facility; and through five interviews conducted with a facility supervisory staff person (P1), facility staff persons (P2, P3, and the SP), and the VA’s guardian (G) who was also a supervisory staff person. Due to the VA’s diagnoses, s/he was not able to provide information for this investigation. Facility documentation showed the VA enjoyed listening to music, riding in cars, sitting in the sun, and eating food from Dairy Queen or Subway. The VA’s diagnosis included a profound intellectual disability, cerebral palsy, and gastroesophageal reflux disease. Due to choking issues, the VA was on a pureed diet and was offered small amounts of food and liquid at a time. “Most of the time” the VA was fed by staff persons. The VA also relied on staff persons for assistance with medication administration. Oral medications were administered to the VA with “apple sauce” on a spoon. The VA was non-verbal and dependent on caregivers for his/her needs. Staff persons assisted the VA with personal cares and provided constant supervision to keep him/her “safe, happy, and healthy.” The VA used a wheelchair to move about the facility. The Individual Abuse Prevention Plan showed that the VA was susceptible to physical abuse by others and would not be able to defend him/herself from abusive behavior. The facility was a one level home that included a kitchen and a sensory room near one of the entrances. Down a hallway from the sensory room was a facility office and bedrooms. The G, who was also a supervisory staff person, stated that on the morning of January 1, 2024, s/he received a phone call from P1. P1 was “distraught” because the SP forced medications into the VA’s mouth and caused the VA to bleed. The G then went to the facility to see the VA. At that time, the VA would not open his/her mouth for the G, so the G was unable to see any injury. Prior to this incident, the G did not have concerns regarding the care the VA received at the facility or with the SP. P1, P2, and P3 provided the following consistent information: · On January 1, 2024, P1 arrived at the facility at approximately 8 a.m. The SP had worked the overnight shift and was getting the VA up and dressed for the day. P1 said, “Good morning,” to the SP and the SP replied, “Good morning.” P1 then went into the office to prepare the 8 a.m. medications. P1 saw the SP push the VA, who was in his/her wheelchair, past the office and then heard music turn on. The SP then walked back down the hallway past the office to assist other clients. · P1 left the office, walked past the sensory room, where the VA was seated in his/her wheelchair, and into the kitchen. P1 then mixed the VA’s medication with yogurt in a small bowl. The VA’s oral medications were in pill form and mixed with yogurt because it was “easier” for the VA to swallow them. Then P1 left the kitchen and walked to the VA in the sensory room. · P1 used a metal spoon with a plastic handle and fed the yogurt with the pills to the VA. The VA spit out some yogurt and pills and they landed on his/her shirt. P1 stated that when staff person gave the VA yogurt with his/her medication and if the VA spit out the pills, staff persons waited 10 to 15 minutes and tried again. P1 said that the SP walked down the hallway toward the VA and P1 and “must have” seen the VA spit out some of the yogurt and pills. The SP walked to the VA and with the palm of his/her left hand, “slammed” the VA’s head against the wheelchair head support. Then the SP “grabbed” the spoon from P1 and with his/her right hand was “violently shoving it” into the VA’s mouth while saying that the facility had “no tolerance for not taking meds.” At one point, the SP moved his/her left hand from the VA’s forehead and pinching the VA’s nostrils closed, plugging the VA’s nose. The VA then opened his/her mouth and the SP “shoved” the spoon in the VA’s mouth. · The VA began crying and P1 yelled at the SP, “Stop,” but “froze” and did not reach out to the SP. The SP then turned the spoon upside down so the “hump of the spoon” was toward the top of the VA’s mouth and continued to push the spoon into the VA’s mouth. At that point, P1 saw blood starting to come from the VA’s mouth and the SP “just stopped.” P1 was “shaking and crying” and comforted the VA as the SP walked away and down the hallway. Then P1 went to the kitchen to find something to clean the blood from the VA’s face. P1 stated the incident was between one to two minutes long and the SP “shoved” the spoon into the VA’s mouth four or five times. · At this time, P3 arrived and entered the facility through a door near the kitchen and sensory room. P3 stated that when s/he walked in and toward the VA, the VA “seemed” like s/he was “in pain” and was making “groaning noises.” The VA’s bottom lip was “red,” and P3 told the VA, “You have juice running down your mouth.” P3 walked into the kitchen to get something to wipe the VA’s mouth. In the kitchen, P3 talked with P1 who told him/her that it was blood and not juice running from the VA’s mouth and that the SP had “shoved” the spoon into the VA’s mouth. · P1 stated the SP walked back to the VA. The VA was crying and P1 heard the SP tell the VA that “you are a better person than I am.” Then the SP walked to the entrance of the kitchen, said s/he was going to go to his/her car and “ask God for forgiveness,” and left the facility. P1 and P3 provided care and comfort to the VA. Then P1 called the G, who was also a supervisory staff person, and told him/her about the incident. · P3 stated s/he saw the SP talk with the VA but did not hear what the SP said. The SP seemed to be in a “hurry,” and left the facility. · P1 stated that after s/he cleaned the VA’s face, the VA’s mouth “stopped bleeding.” The VA was “very sad” for approximately two hours after the incident during which time the VA’s face “was scrunched” and s/he had his/her “lip out.” The VA did not look at the P1 and P3 and “hung” his/her head. The VA napped from approximately 10 to 11:30 a.m., and when s/he woke s/he seemed “a little bit better,” and wanted to hold P1’s hand. The VA only ate a “little” of his/her meals that day but by the next day was “a lot better.” · P3 stated that the VA was a “stinker” when s/he ate but drank “pretty well.” After the VA’s nap, the VA did not want to eat or drink. When P3 fed the VA lunch, s/he looked into the VA’s mouth and saw a cut on the “roof” of the VA’s mouth that went from “front to back” and was approximately one to two inches long. P3 stated the cut was “skinny,” looked like a “paper cut,” and was “bright red.” · At 3 p.m., P2 arrived at the facility. That evening when P2 was with the VA, the VA opened his/her mouth and P2 saw that the right side of the VA’s tongue was “really puffy” and was “reddish-purple.” P2 stated the VA seemed “more down” that day and wanted to be near P2 and to hold hands. · P1 stated that the SP worked an overnight shift alone. Prior to this incident, P1 did not have concerns regarding the SP’s interactions with clients, and “usually” the SP was “so kind” to the clients. The SP provided the following information: · The SP worked the over-night shift on the evening of December 31, 2023, to the morning of January 1, 2024. The SP was assisting another client when P1 arrived in the morning. The SP left the client to talk with P1. The VA was in the sensory area and P1 was attempting to give the VA his/her 8 a.m. medications without “much luck.” The SP asked P1 if s/he wanted to let him/her try and could not recall if s/he took the spoon from P1 or P1 gave him/her the spoon. · The SP then tried spooning yogurt and pills into the VA’s mouth, but the VA spit out some of the pills and some pills went under the VA’s tongue. The SP “grabbed” the VA’s face and tried “to push those pills back down” the VA’s “throat.” The SP said s/he used the palm of his/her right hand to hold the VA’s forehead against the headrest of his/her wheelchair and held the spoon with his/her left hand. The SP also said that during the incident, s/he held the VA’s chin and once pinched the VA’s nose shut for a “couple of seconds,” “hoping that [the VA] would swallow the pills.” During the incident, the VA “pushed back,” “made sounds,” and “cried.” The VA was “totally helpless” and “there was not much [s/he] could do” while the SP engaged in these actions. The SP said s/he “watched” him/herself doing this to the VA and thought, “Why are you doing this?” The SP did not recall P1 telling him/her to stop but it was “probable” that s/he did. · The SP then stopped and walked away to help another client, including bringing the client to the kitchen area and then going back down the hallway to do other duties. During this time, the SP had time to “recover,” and s/he realized that s/he had “totally done something wrong.” The SP went back to the kitchen area, apologized to P1, and said, “The best thing I can do is go home and pray to God for forgiveness.” Then the SP sat by the VA and saw “a trickle” of blood coming out of the VA’s mouth so “assumed” there was a cut in his/her mouth. The SP wiped the blood away and told the VA that s/he was sorry. The SP put his/her head down and the VA put his/her head on the SP’s and smiled. Then the SP stood up, left the facility, and sat in his/her car to write shift notes. The SP wrote that the VA was “stubborn” taking his/her medications but did not describe the incident because s/he did not know how to “put that in there.” Then the SP drove away. · The SP stated that the incident “seemed like a long, long time,” but s/he lost track, and it might have been a “couple seconds.” · The SP stated s/he did not know why s/he felt the need to help P1. The SP should have walked away because it was not his/her “place to intervene,” and P1 could have tried to give the VA the medication later. The SP stated s/he “was at the end of [his/her] rope” at the time of the incident. According to the VA’s progress notes for January 1, 2024, the SP wrote that the VA “was very stubborn” taking his/her medication from the “day staff” and spit out the pills “numerous times.” When the SP left, the VA was “smiling and waiting for breakfast by the kitchen.” According to the facility’s Policy and Procedure on Safe Medication Assistance and Administration, medication could be administered within 60 minutes before or after the prescribed time. Staff persons encouraged clients to participate in the process of medication administration and medications were administered according to a prescribed route. Staff persons knew special instructions for administering medications. Facility documentation showed that P1, P2, P3, and the SP each received training on the Reporting of Maltreatment of Vulnerable Adults Act, on the facility’s policies, and on the VA’s plans prior to the incident. Relevant Rules and Statutes: Minnesota Statutes, section 245D.04, subdivision 3, paragraph (a), clause (6), state that a person’s protection-related rights include the right to be treated with courtesy and respect. Conclusion: A. Maltreatment Information was consistent that on January 1, 2024, P1 was administering the VA his/her medications with yogurt and the VA spit out some of the pills. The SP came into the sensory room, took the spoon away from P1, and forced the spoon with medications into the VA’s mouth. During the incident, the SP held the VA’s forehead against his/her wheelchair preventing the VA’s head from moving while the SP pushed the spoon with yogurt and medication on it into the VA’s mouth. P1 said that the SP also turned the spoon upside down in the VA’s mouth. In addition, P1 and the SP each said that the SP pinched the VA’s nose closed which would prevent the VA from breathing through his/her nose which would require the VA to open his/her mouth to breath, easing the SP’s ability to shove the spoon into the VA’s mouth. The SP’s actions were inconsistent with the standards of a professional caregiver in a facility licensed by the Department of Human Services and were a violation of Minnesota Statutes 245D.04, subdivision 3, paragraph (a), clause (6). The VA pushed back against the SP, cried, made noises, and in the end, blood came out of the VA’s mouth. Later in the day, the VA’s tongue was swollen and reddish-purple and there was a cut on the roof of the VA’s mouth. Given that the SP’s actions of holding the VA’s head preventing it from moving, pinching the VA’s nose closed preventing the VA from breathing through it, and shoving a spoon into the VA’s mouth causing injury, were not accidental or therapeutic conduct, there was a preponderance of the evidence that the SP’s actions and treatment of the VA was disparaging, derogatory, humiliating, harassing, or threatening; and produced and could reasonably be expected to produce physical pain or injury or emotional distress. It was determined that physical and 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: hitting, slapping, kicking, pinching, biting, or corporal punishment of a vulnerable adult and/or 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 trained on the Reporting of Maltreatment of Vulnerable Adults Act, the facility’s policies, and the VA’s plans prior to 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 physical and emotional abuse for which the SP was responsible was not recurring maltreatment because it was a single incident that met two definitions of maltreatment. However, it was serious maltreatment because the VA sustained a serious injury including tissue damage (a cut on the roof of his/her mouth and an injury to his/her tongue). The SP was disqualified from providing direct contact services. Action Taken by Facility: The facility completed an internal review and determined their policies were adequate but not followed. The SP no longer worked at the facility. 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. Given that the facility took immediate corrective action a correction order was not issued for the violation outlined above.
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