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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: 1069780-H_CRS (Home and Community-Based Services-Community Residential Setting) Investigator(s): Christine Cavanaugh/Alice Percy 651-431-3444 Suspected Maltreatment Reported: It was reported that after a staff person (SP) and a vulnerable adult (VA) had an altercation in the facility’s van, the SP drove to the facility. When the VA exited the van, the SP tackled the VA, put the VA in a choke hold, and threatened to kill the VA. 9-1-1 was called and a law enforcement officer (LEO) escorted the SP from the facility. Date of Incident(s): April 18, 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 May 3, 2024; from documentation at the facility and law enforcement records; and through eight interviews conducted with two facility supervisory staff persons (P1 and P2), three staff persons (P3–P5), the VA, another resident (R) who resided at the facility, and the VA’s guardian (G). Attempts were made by telephone and text messages to contact and interview the SP. The SP initially responded to the text messages but did not respond to subsequent attempts to schedule an interview. The VA enjoyed watching movies, walking, riding his/her bicycle, going to arcades, playing video games, and joking around with others. The VA worked at a community job each day. The VA’s diagnoses included attention-deficit hyperactivity disorder, mild developmental disability, and pervasive developmental disorder. According to the VA’s Individual Abuse Prevention Plan, the VA was susceptible to physical abuse and the staff persons were to intervene and prevent any physical abuse of the VA. The VA stated that on one occasion, the SP was driving the VA and the R in the facility van. The SP asked the VA if s/he wanted to stop at any store and the VA told the SP that s/he wanted to be left alone. The SP told the VA that s/he “didn’t have to freak out” so the VA slapped the SP on the right side of his/her head. The SP “went into a rage” and swore at the VA and told the VA that when they arrived at the facility, the VA was “going to get it.” The VA did not respond to the SP’s comments. When they arrived at the facility, the SP pushed the VA’s shoulders and the VA fell to the ground on his/her back. The SP approached the VA as s/he was on the ground and the VA kicked at the SP, then stood, and “attacked back.” The SP pushed the VA’s right shoulder and the VA fell to the ground a second time, causing pain to the VA’s leg. The SP “got on top” of the VA and held him/her down as the VA tried to break free. The VA used his/her hands to keep the SP’s hands away from the VA’s body. After the VA stood, the SP pushed the VA to the ground a third time. After the incident, the VA went to his/her bedroom and telephoned P1. The R was present when the incident occurred. The R stated that the SP was typically polite to him/her. On one occasion, the R wanted to go to a store. Since the VA was unable to remain at the facility unsupervised, the VA drove with the R and the SP in the facility’s van. After shopping, the SP asked the VA if s/he wanted to stop anywhere and the VA swore at the SP and told him/her that if s/he wanted to go somewhere, s/he would tell the SP. The VA then hit the SP on the right side of his/her face and the SP and the VA “argued back and forth.” The SP told the VA that if s/he wanted to fight, they would fight when they got back to the facility and that the SP would “kick [the VA’s] ass.” As the SP drove back to the facility, s/he and the VA continued to argue. As the SP swerved in and out of traffic lanes, the R asked the SP to pull over, but the SP told the R that s/he was going back to the facility. The R then remained quiet and did not become involved in the argument. When they arrived at the facility, the R went inside the facility and then for approximately ten minutes, watched the SP and VA “wrestle” on the ground in front of the facility. The R did not see the SP place the VA in a choke hold. P1, P2, P3, P4, and P5, and law enforcement records provided the following information: · P1 stated that on April 18, 2024, the VA called P1 and told him/her that the SP “assaulted” the VA. The SP called P2 and told P2 that the VA hit him/her. P1 and P2 then went to the facility, where they talked to the R and the VA. The R told P1 and P2: o While the R, the VA, and the SP were in the facility’s van after shopping, the SP asked the VA if s/he wanted to make any other stops, and the VA told the SP that s/he “just wanted to go home” because s/he was having a bad day and wanted to be left alone. The SP asked the VA why s/he was “being such a dick” and the VA asked the SP multiple times to leave him/her alone. The R told P1 and P2 that the SP was “talking shit trying to aggravate” the VA. When the SP continued to talk to the VA, the VA hit the SP on the back of his/her head. The SP then told the VA, “Wait until we get home, you little fucker. I’m going to kill you.” o The R said that when they arrived at the facility, the SP got out of the van and placed his/her “stuff” on the porch and then “rushed” the VA and “tackled” him/her. The VA and the SP “rolled around” on the ground for several minutes and then stood up. The VA was still angry and then rushed the SP. · The VA told P1 and P2 that s/he slapped the SP on the back of his/her head because the SP “kept asking” if the VA wanted to go anywhere else in the community and the SP told the VA that s/he did not have to be “such a pussy about it.” After the VA slapped the SP, the SP told the VA to wait until they returned to the facility and the SP was “going to fucking kill” the VA. When they arrived at the facility and got out of the van, the SP pushed the VA and the VA then pushed the SP. The SP then “power bombed” the VA by tackling the VA to the ground, where they tried to punch each other. The VA stood twice, but the SP “took [him/her] down.” The VA put his/her leg up to push the SP off him/her and the SP placed the VA in a choke hold. The VA then stood, walked into the facility, and locked him/herself in his/her bedroom. The SP came inside to the staff office and closed the door. P1 stated that s/he did not see any injuries to the VA and the VA told P1 that s/he was not injured during the incident. P2 stated that the VA did not have any injuries, but s/he had dirt “all over” his/her clothing and boots. · P1 called 9-1-1 and a law enforcement officer (LEO) arrived at the facility and talked to P1, the VA, the R, and the SP. P1, the VA, and the R each provided information to the LEO that was consistent with the information each provided during their respective interviews. The SP told the LEO that while in the facility’s van, the VA “cussed and screamed” at the SP and then s/he was “assaulted in the back of the head” by the VA. When they arrived at the facility, the SP “confronted” the VA and the VA walked toward the SP, so the SP pushed the VA “one time” in order to get away from the VA and told the VA that s/he could not hit the staff persons. The SP told the LEO that s/he pushed the VA as “a defense mechanism” and the VA fell to the ground. The LEO asked the SP to leave the facility, which the SP did after retrieving his/her belongings. · P3 stated that on April 18, 2024, P1 called him/her and asked P3 to start his/her work shift early. At approximately 5:30 p.m., P3 arrived at the facility for his/her work shift. Later that evening, s/he saw several scratches on the VA’s neck. The scratches were on the sides and back of the VA’s neck and went in a “similar pattern” as if a button or fingernail scratched the VA’s neck. When P3 asked the VA about the scratches, the VA “didn’t say anything too conclusive” about what caused the scratches. The VA told P3 that the SP “wrestled” the VA to the ground and struck the VA with a fist. The VA also told P3 that his/her right knee was sore, so P3 gave the VA an ice pack and Tylenol. P3 never saw the VA hit a staff person. · P1 stated that after the incident, the VA told P1 that in the past the SP “insulted” the VA several times by telling the VA that only “pussies” drink a beverage that the VA enjoyed, calling the VA a “fart knocker,” and using other nicknames that the VA “did not appreciate,” even after the VA asked the SP not to use those nicknames. P2 stated that when s/he talked to the VA and the R, they each provided consistent information about what occurred. P3 stated that the VA sometimes would “spin a yarn” about events in order to avoid “getting in trouble,” but P3 did not believe the VA provided inaccurate information about the incident. P4 believed the VA “had the ability to provide accurate information.” P5 stated that there was “no reason for [the VA] to lie” about the incident. P4 stated that two or three days after the incident, the VA told P4 that s/he hit the SP while they were in the facility’s van and stopped at a red light. P4 stated that s/he did not observe any injuries to the VA after the incident. · P3 stated that the SP did not have “a good rapport” with the residents and did not do well at de-escalating situations. P3 never heard the SP swear at the residents. P5 stated that the SP spent a lot of time in the staff office instead of interacting with the residents. The G stated that after the incident, P1 called the G and told him/her that while the SP was driving the VA and another resident, the other resident wanted to stop at a store. The VA did not want to stop and argued with the SP. The SP called the VA a name and the VA “smacked” the SP in the head. When they arrived at the facility, the SP “tackled” the VA in the front yard. After the incident, the VA told the other staff persons that his/her leg was sore, but there were no visible injuries to the VA. The G said that the VA was an accurate reporter of events, but was not always able to provide timelines for events. According to the Internal Review, the SP told P2 that while in the facility’s van, the SP asked the VA if s/he wanted to stop anywhere and the VA told the SP to stop asking him/her. The SP told the VA that s/he “did not have to be rude” and the VA slapped the SP on the back of the head. When they arrived at the facility and got out of the van, the SP pushed the VA and told him/her that s/he could not slap the staff persons while they were driving. The SP and the VA “pushed each other back and forth for a while” and the SP then went inside the facility and called P1 and P2. According to the facility’s Policy and Procedure on Emergency Use of Manual Restraint, the staff persons were prohibited from speaking to a resident in a manner that ridicules, demeans, threatens, or is abusive, using physical intimidation or show of force, or tripping or pushing a resident. Facility documentation showed that the SP, P1, P2, P3, P4, and P5 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/or Statutes: Minnesota Statutes, section245D.04, subdivision 3, paragraph (a), clause (6), states in part that a person’s protection-related rights include the right to be treated with courtesy and respect. Conclusion: A. Maltreatment: The VA and the R provided consistent information during their interviews and to P1, P2, and the LEO that on April 18, 2024, the VA, the R, and the SP were in the facility’s van when the SP asked the VA if s/he wanted to make any other stops and the VA told the SP that s/he “just wanted to go home” because s/he was having a bad day and wanted to be left alone. The SP asked the VA why s/he was “being such a dick” and the VA asked the SP multiple times to leave him/her alone. The R provided information that the SP was “talking shit trying to aggravate” the VA. Consistent information was provided that the VA then hit the SP on the back of his/her head and the SP told the VA. The R stated that the SP told the VA, “Wait until we get home, you little fucker. I’m going to kill you,” and that the SP would “kick [the VA’s] ass.” The VA stated that the SP told the VA that s/he “was going to get it" when they returned to the facility. When they arrived at the facility, everyone got out of the van. Although the R went into the facility s/he continued to watch the interaction between the VA and the SP. Information showed that the SP “rushed” and “tackled” the VA and pushed the VA’s shoulders, causing the VA to fall to the ground on his/her back. The R said that the VA and the SP “rolled around” on the ground for several minutes. The VA said that the SP approached the VA as s/he was on the ground and the VA kicked at the SP, stood, and “attacked back.” The SP pushed the VA’s right shoulder and the VA fell to the ground a second time, causing pain to the VA’s leg. The SP “got on top” of the VA and held him/her down as the VA tried to break free. After the VA stood up again, the SP pushed the VA to the ground a third time. Although P3 observed several scratches on the VA’s neck after the incident, given that no information was provided by the VA or other staff persons about the scratches, it was unclear whether they occurred during the incident. Although the SP did not provide information for this report, the SP told the LEO that when they arrived at the facility, the SP “confronted” the VA and when the VA walked towards the SP, the SP “pushed” the VA one time and that it was a “defense mechanism.” This contradicted the information the R told P1 and P2 shortly after the incident, that when the SP got out of the van s/he placed his/her “stuff” on the porch and then “rushed” the VA and “tackled” him/her. Given that the R’s and the VA’s information regarding the SP’s actions was similar, that the VA acknowledged his/her hitting the SP on the head, and that the SP had reasons to minimize his/her interactions for fear of repercussions, it was determined that the information provided by the R and the VA was more credible. After the incident, the VA told P1 that in the past the SP “insulted” the VA several times by telling the VA that only “pussies” drink a beverage that the VA enjoyed, calling the VA a “fart knocker,” and using other nicknames that the VA “did not appreciate,” even after the VA asked the SP not to use those nicknames. The SP’s actions as described by the R and the VA was inconsistent with the standards of a professional caregiver in a facility licensed by the Department of Human Services and was a violation of Minnesota Statutes, section245D.04, subdivision 3, paragraph (a), clause (6). In addition, the SP’s interactions were not accidental or therapeutic conduct. Therefore, there was a preponderance of the evidence that the SP’s actions 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. Facility documentation showed that the SP 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. 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 did not meet statutory criteria to be determined as recurring or serious because the SP’s actions met two definitions of maltreatment and represented a single incident during which the VA did not sustain any injury. Action Taken by Facility: The facility completed an internal review and determined that the facility’s policies were adequate, but were not followed by the SP. After the incident, all of the staff persons were retrained on the facility’s reporting policies. The SP no longer worked 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. Given that the facility took immediate corrective action, a correction order was not issued for the violations outlined above.
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