11-1800-16973-2
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE COMMISSIONER OF HUMAN SERVICES
In the Matter of the Maltreatment FINDINGS OF FACT,
Determination and Order to Forfeit CONCLUSIONS, AND
a Fine for Metro Work Center, Inc. RECOMMENDATION
The above matter came on for hearing before Administrative Law Judge Barbara L. Neilson on May 16, 17, and 25, 2006, at the Office of Administrative Hearings in Minneapolis, Minnesota. The OAH record closed on July 17, 2006, upon receipt of the last post-hearing brief.
Gail A. Feichtinger, Assistant Attorney General, 445 Minnesota Street, Suite 900, St. Paul, Minnesota 55101-2127, appeared on behalf of the Department of Human Services. M. Kevin Snell, Attorney at Law, 111 Third Avenue South, Suite 110, Minneapolis, Minnesota 55401, appeared on behalf of Metro Work Center, Inc.
This report is a recommendation, not a final decision. The Commissioner of Human Services will make the final decision after a review of the record and may adopt, reject or modify these Findings of Fact, Conclusions, and Recommendation. Under Minn. Stat. § 14.61, the Commissioner shall not make a final decision until this Report has been made available to the parties for at least ten days. The parties may file exceptions to this Report and the Commissioner must consider the exceptions in making a final decision. Parties should contact the Appeals and Regulations Division, Department of Human Services, P.O. Box 64941, St. Paul, Minnesota 55164-0941, to learn the procedure for filing exceptions or presenting argument.
1. Is Metro Work Center, Inc., responsible for maltreatment by neglect of a vulnerable adult who choked two times while eating lunch at the Center because it failed to adequately train staff on the choking prevention requirements set forth in her risk management plan?
2. If so, did the Department properly assess a fine against Metro Work Center?
Based upon the proceedings herein, the Administrative Law Judge makes the following:
1. Metro Work Center, Inc. (“Metro Work” or “the Center”) is licensed to provide day training and habilitation services for adults with mental retardation and related conditions (referred to as “consumers”) under Chapter 245B of the Minnesota Statutes.[1] Approximately 57 consumers with varying levels of mental and physical impairments attend Metro Work.[2]
2. A Risk Management Assessment and Plan (“RMAP”) relating to each consumer is developed by a team which includes the person’s case manager, family members, and representatives of the person’s residential facility and work and day program. Others who have specific knowledge about risks to the individual’s safety may also participate in the development of RMAPs, such as physicians, nurses, and psychologists. RMAPs are reviewed at least annually and revised as needed.[3] The consumer’s work and day program is responsible for following pertinent portions of the RMAP.[4]
3. Metro Work divides consumers into groups and assigns one to three employees to work with them as part of their caseload. Each caseload has a team leader who is primarily responsible for the consumers assigned to the team. One of the duties of the team leader includes participating in the group that periodically reviews, prepares, and approves the RMAP for the consumer.[5] Although Metro Work staff persons have the most detailed knowledge of the RMAPs of consumers on their assigned caseload, they are expected to be familiar with the RMAPs of all 57 consumers who attend the Metro Work program.[6]
4. Metro Work direct care employees typically learn about the RMAPs of their consumers in several ways. First, immediately after hire or rehire, each new caregiver goes through a multi-week orientation at Metro Work that includes reading and reviewing the RMAPs of every consumer in each particular caseload, meeting with the Executive Director and others to discuss questions, and observing that consumer over a period of several days. This must be done before the employee may work with any consumers.[7] Second, after annual revision, each new RMAP is circulated to each caregiver to read and sign off that they have read it.[8] Third, in-service training occurs annually at Metro Work for all employees during which consumers’ RMAPs and risk areas are reviewed. The lead person responsible for the caseload typically presents the RMAP information during that meeting.[9] Fourth, case managers or other staff members announce any changes or updates to a particular consumer’s RMAP at the daily staff meetings held at Metro Work.[10] Finally, when caseloads change, each person assigned to a particular caseload is expected to review the RMAPs of the consumers on their caseload prior to the effective date of the change.[11]
5. B.K., a vulnerable adult diagnosed with severe mental retardation, has attended the work and day program at Metro Work since 1976. At the time relevant to this proceeding, B.K. was 49 years old and lived in a residential facility.[12] During the weekdays she spent at Metro Work, B.K. performed various packaging and clerical jobs and participated in community and recreation/leisure activities.[13]
6. The RMAP applicable to B.K. which was in effect from August 10, 2004, to October 22, 2004, noted that she had a history of choking and “was observed to have put inedibles in her mouth.” The RMAP directed that staff “ensure that [B.K.’s] food is cut up into small bite-size pieces.” The RMAP also stated that “[s[taff will ensure that [B.K.’s] food is cut up into small bite-size pieces. Staff will sit with [B.K.] at the table and remind her to chew her food before swallowing it. Staff will be aware and provide training as needed with [B.K.].”[14] B.K.’s prior RMAP for the period of October 22, 2003 to October 22, 2004, contained the same language regarding her choking risk and the plan to reduce that risk.[15]
7. Prior to the beginning of September 2004, Darlene Magnuson was the Metro Work Center employee who was the team leader for the caseload that included B.K. Ms. Magnuson participated in the preparation of the August 10, 2004 – October 22, 2004 RMAP as well as the October 22, 2003 – October 22, 2004, RMAP.[16] Ms. Magnuson was aware of B.K.’s risk of choking, and she and her teammate took turns sitting with B.K. at lunch.[17]
8. On March 1, 2004, during an annual in-service training conducted at Metro Work, Ms. Magnuson reviewed the RMAP of B.K., including B.K.’s “at risk” areas, with the other Metro Work staff persons in attendance. The RMAPs of other Metro Work consumers were also reviewed during the March 2004 in-service training.[18] Toward the end of the day, RMAPs were highlighted rather than read in their entirety because time was growing short.[19]
9. Staff reassignments occurred at Metro Work in early September of 2004, and a new team of direct care staff was assigned to work with B.K.[20] As of September 8, 2004, B.K. and the other consumers in her group at Metro Work were assigned to team leader Cyndi Sroga (a Metro Work direct care staff member), with the assistance of Julie Rohlik and John Plumb. Ms. Sroga was a direct care staff member with more than seven years of experience.[21] Julie Rohlik was a part-time employee who had been hired in 2003. She served as a “floater” who assisted direct care staff and filled in where needed, and was expected to review all consumers’ RMAPs.[22] Mr. Plumb was hired by Metro Work for a direct care position in November 2003, and had six years’ prior experience in another day program. After he did not pass his initial six-month direct care training period at Metro Work, his training period was extended and he was placed on a correction plan to give him an opportunity to improve his performance. Effective August 1, 2004, he was terminated from his direct care staff position at Metro Work and a new position was created for him involving filling in during staff vacations and as needed and assisting in making calls to prospective customers.[23]
10. By September 8, 2004, Ms. Sroga, Ms. Rohlik and Mr. Plumb had not discussed the RMAPs for their new group of consumers.[24] Ms. Sroga, Mr. Plumb, and Ms. Rohlik knew that they were supposed to review the RMAPs of their caseload.[25] Dianna Krogstad, Metro Work’s Executive Director, reminded staff to “review their caseload” at the August 27, 2004, staff meeting.[26] In addition, Ms. Krogstad reminded Mr. Plumb in an August 30, 2004, letter, that he must be “familiar with all consumer’s plans and programs” and “up to speed on all consumers plans and issues.”[27]
11. Ms. Sroga had in fact reviewed B.K.’s most recent RMAP prior to September 8, 2004, and knew about B.K.’s choking risk.[28] However, Ms. Rohlik could not recall reading B.K.’s RMAP before the reassignments took effect,[29] and Mr. Plumb neglected to review the RMAPs in his caseload and could not recall being trained on B.K.’s RMAP in the past.[30]
12. Due to the small size of the Metro Work lunchroom, only two caseloads of consumers eat lunch at Metro Work at the same time.[31] Case managers and other assigned direct care staff bring their consumers to the lunchroom, place a placemat in front of the consumer, give them a napkin, position their chairs, take the lids off containers for them, heat their food if necessary, and set their lunch out for them. When a staff member leaves a room, he or she is expected to tell teammates so that they can decide if they need the in-charge staff person to come into the room to meet appropriate staffing ratios.[32]
13. During early September 2004, Ms. Sroga sat at the same table with B.K. during lunch (sometimes right next to B.K.) or ensured that another direct care staff person did so.[33] However, on September 8, 2004, Ms. Sroga was assigned to “in-charge” duties at Metro Work, and was working in an office down the hall that day instead of in the lunchroom.[34] The “in-charge” staff person rotates on a daily basis among the direct care staff at Metro Work. The duties of the in-charge staff person include assisting co-workers and consumers as needed, and it is expected that anyone needing assistance would first go to the “in-charge” person.[35]
14. On September 8, 2004, B.K. and the other Metro Work consumers in her group were brought into the lunchroom at Metro Work by Ms. Rohlik and Mr. Plumb.[36] B.K. brought a lunch that had been prepared for her by her residential facility.[37] Although food that comes from the consumer’s home is usually ready for the consumer to eat and Metro Work staff does not cut it up,[38] staff is expected to take appropriate steps to cut up the food if necessary.[39]
15. Michael Hayes, another Metro Work employee, set up B.K.’s lunch on September 8, 2004. Her lunch that day included an uncut quesadilla, popcorn, and bite-sized cookies. The cookies were wrapped in aluminum foil. Mr. Hayes put the foil in one of the sandwich bags and threw it away. B.K. began to eat her lunch. Mr. Hayes went to the back of the lunchroom to assist other consumers.[40]
16. There are six tables in the lunchroom, positioned approximately 5 to 5½ feet apart.[41] Ms. Rohlik placed B.K. at the round table in the front of the lunchroom (the table in the foreground on Ex. 27), facing the door, with two other consumers.[42] Ms. Rohlik sat with at least five other consumers at the table directly behind the table at which B.K. was sitting.[43] Mr. Plumb placed his lunch at another table kitty-corner from B.K. and about 10-15 feet away.[44] Another staff person, Laura Fowell, was also present in the lunchroom and initially sat down at the same table as Mr. Plumb and four or five consumers.[45] Mr. Hayes sat at the table located behind Ms. Rohlik’s table, close to the window (the back table on the right side in Ex. 27).[46]
17. Shortly after B.K. and her group were brought into the lunchroom, Mr. Plumb left the room to look for another consumer because he was concerned that that person had not yet arrived.[47] Mr. Plumb did not tell Ms. Rohlik, Ms. Fowell, or Mr. Hayes he was leaving or summon Ms. Sroga, the in-charge staff person, to cover for him.[48]
18. B.K. began choking on the popcorn and waving her arms. Ms. Rohlik noticed the situation and went over to B.K. Mr. Hayes saw Ms. Rohlik responding and also went over to B.K. Ms. Fowell got up and stood across from the table at which B.K. was seated. They noticed that B.K. was gasping for air and her face was turning color, and determined that B.K. was choking. Mr. Hayes rotated B.K. in her wheelchair so that she was facing the wall and administered the Heimlich maneuver.[49] Mr. Plumb returned to the lunchroom while Mr. Hayes was performing the Heimlich maneuver.[50] Mr. Hayes, Ms. Rohlik, and Ms. Fowell did not realize that Mr. Plumb had left the room until they saw him standing in the door watching them after Mr. Hayes had completed the Heimlich maneuver and saw that B.K. was breathing again. Once B.K. began breathing on her own, Mr. Hayes gave B.K. something to drink.[51] B.K. thereafter tried to reach for her food. Mr. Hayes pushed the food toward the center of the table, out of her reach, and told her that she could not eat at that time. He also did not move her wheelchair back toward the table.[52] Mr. Hayes and Ms. Fowell knew that B.K. should not have more food after choking.[53]
19. Mr. Hayes later told Mr. Plumb, “If she were to eat, that [the food] would have to be cut up,” or words to that effect. Mr. Hayes then left the lunchroom to wash his hands and notify Ms. Sroga of the incident. While Mr. Hayes was gone, Mr. Plumb cut B.K.’s quesadilla into smaller pieces, turned B.K. toward the table, and told B.K. to pick one of the pieces if she wanted to eat.[54] B.K. tried to eat and began choking again, and Mr. Plumb gave her the Heimlich maneuver.[55]
20. Following the second choking incident, B.K. started coughing and staff noticed some blood in her saliva.[56] Mr. Plumb notified other staff present in the lunchroom that someone needed to go get the in-charge staff person. Mr. Plumb told other staff persons that he looked in B.K.’s mouth and found a piece of aluminum foil.[57] Mr. Hayes returned to the lunchroom and observed some blood on B.K.’s lower lip. He believed that B.K.’s color looked more normal than when she had initially received the Heimlich. He summoned Dianna Krogstad, Metro Work’s Executive Director.[58]
21. After Ms. Krogstad and Ms. Sroga came to the lunchroom, Ms. Krogstad directed Ms. Sroga to call 911. Although the chief paramedic who examined B.K. felt that there was no need for her to go to the hospital, Ms. Krogstad decided to err on the side of caution and asked that B.K. be taken to the hospital for examination. B.K. was taken to the hospital by ambulance.[59]
22. B.K. had good vital signs upon arrival at the hospital. The doctor who examined B.K. found no signs of internal injuries, obstruction, broken ribs, or foreign objects. The doctor said that the bleeding was probably caused by the food/foil scratching the mucous membranes, because they bleed easily.[60] The follow-up instructions for the choking episode directed that B.K.’s food be cut very small and that she be given small amounts of liquid at a time.[61] B.K. received no injury from the incident[62] and continues to attend Metro Work Center.[63]
23. Ms. Krogstad directed Mr. Hayes to report the choking incidents to the Common Entry Point, and he complied.[64] Metro Work followed its procedures for filing a Vulnerable Adult Maltreatment Report.[65]
24. Metro Work suspended Mr. Plumb from work on September 8, 2004, and later terminated him based on its view that he had failed to follow procedures and had made significant errors in judgment.[66]
25. No Metro Work employee was sitting next to B.K. or at her table during lunch on September 8, 2004, when she choked the first time.[67] Mr. Plumb was standing next to her when she choked the second time.[68] There is no evidence that any Metro Work employee reminded B.K. to chew her food before swallowing or cut her food into small bite-sized pieces before she choked.[69]
26. B.K. had never had a choking episode at Metro Work prior to September 8, 2004.[70]
27. Metro Work has no previous maltreatment determinations.
28. After the incident, Metro Work banned popcorn.[71] The next RMAP prepared for B.K. continued the same language regarding her choking risk and the plan to reduce that risk, and included the additional notation that B.K. “has choked on popcorn and should avoid eating it.”[72]
29. According to Metro Work records relating to the period prior to September 8, 2004, Cyndi Sroga signed off that she had reviewed the RMAP for B.K. on July 16, 2003, and November 3, 2003; Julie Rohlik signed off that she had reviewed B.K.’s RMAP on September 10, 2003, and November 13, 2003; John Plumb signed off that he had reviewed B.K.’s RMAP on August 28, 2003, and November 13, 2003; Michael Hayes signed off that he had reviewed B.K.’s RMAP on August 21, 2003; and Laura Fowell signed off that she had reviewed B.K.’s RMAP on February 4, 2004, and September 3, 2004. The RMAPs reviewed on those dates would have been the ones in effect at that time.[73]
30. The March 2004 in-service training session at which Ms. Magnuson discussed B.K.’s RMAP was attended by John Plumb, Cyndi Sroga, and Michael Hayes.[74] Metro Work’s in-service training record for Julie Rohlik and Laura Fowell do not show that they attended the in-service training on March 1, 2004, and neither of them can remember attending.[75] Ms. Fowell’s time sheet shows that she did, in fact, work on March 1, 2004, from 8:00 a.m. to 1:30 p.m., and she remembers that she had read B.K.’s RMAP prior to September 8, 2004.[76]
31. Metro Work staff received First Aid and CPR training on August 2, 2004, and on other occasions. The training included what to do when someone is choking. The instructor informed staff that a person should not eat after the Heimlich maneuver is performed until he or she is seen by a nurse or a doctor.[77] Mr. Hayes remembered being told that individuals should not be fed after such an episode,[78] and Ms. Fowell believed that it was common sense to not give food after receiving the Heimlich maneuver.[79] Ms. Rohlik and Mr. Plumb attended the training but did not recall any information concerning an acceptable time frame to begin allowing a consumer to eat after they had choked.[80]
32. Metro Work employees Michael Hayes, Julie Rohlik, Laura Fowell, and John Plumb were unaware that B.K. had a history of choking and were unaware that staff was required to sit with B.K. while she ate and remind her to chew her food.[81] Dianna Krogstad, the Executive Director of Metro Work, also was not aware that choking was an issue for B.K., but expected those assigned to B.K. as part of her caseload to know that information. Ms. Krogstad told the DHS investigator that staff persons were not required to sit with B.K. while she ate and that, while four staff members are typically in the lunchroom, B.K. “does not have one to one sitting.”[82] Ms. Krogstad also told the investigator that she thought it was safe to say that no one knew that they were supposed to be sitting with B.K.[83]
33. Staff assessments occur at Metro Work after the completion of the first six months of employment and annually thereafter. Prior to assessment of employees, the Executive Director of Metro Work reviews paperwork relating to their review of RMAPs. The Executive Director holds training and development meetings with employees on two other occasions each year. These sessions include a discussion about whether employees are getting their reading done and have sufficient time to accomplish their tasks.[84] Apart from this assessment process, employees’ signatures (on an honors system) that they had reviewed updated or revised RMAPs, and attendance at staff meetings and the annual in-service training where RMAPs are discussed, there is no other procedure or monitoring process followed by Metro Work to ensure that staff persons actually know the contents of consumers’ RMAPs and are following them.[85]
Procedural Findings
34. On September 8, 2004, Metro Work reported the choking incident to the Common Entry Point (Hennepin County Adult Protection).[86] On September 10, 2004, the Department’s Division of Licensing received a complaint of possible maltreatment of B.K. and initiated an investigation.[87] A site visit was conducted by Melanie Daniel, DHS investigator, on September 29, 2004.[88] The Department’s investigator interviewed Mr. Plumb, Mr. Hayes, Ms. Rohlik, Ms. Fowell, Ms. Krogstad, Tammy Ryberg (CPR Instructor), and Sara Treml (County Case Manager for B.K.). The DHS investigator also reviewed B.K.’s Individual Service Plan dated October 24, 2003; her RMAP dated August 10, 2004; a written statement dated September 9, 2004, by Kelley Westcott-Badertscher, a staff person who met B.K. at the hospital; and Mr. Plumb’s training record.[89] She prepared a report that was reviewed by a unit manager.[90]
35. Ms. Daniel had not reviewed Exhibit 25 or Exhibits 42-58 prior to drafting the DHS report. Ms. Daniel reviewed personnel files but did not review training or in-service records relating to employees other than Mr. Plumb.[91]
36. By letter dated November 29, 2004, the Department informed Metro Work that the Division of Licensing had been unable to complete the investigation due to the time it took to gather the necessary information, and every effort would be made to complete the investigation by February 1, 2005.[92]
37. In an Investigation Memorandum issued on December 8, 2004, the Department concluded that Metro Work Center was responsible for maltreatment by neglect of B.K. due to its failure to adequately train its staff on B.K.’s RMAP and the need to work with B.K. during mealtimes, causing a substantial risk that she could choke while eating. The Department ordered Metro Work to forfeit a fine in the amount of $1,000 under Minn. Stat. § 245A.07, subd. 3(c)(4), due to substantiated maltreatment by the license holder. Metro Work also received a citation from the Department’s Licensing Division for failure to orient and review with staff persons the consumer’s service plans and risk management plan to achieve an understanding of the consumer as a unique individual.[93]
38. By letter dated December 16, 2004, Metro Work requested a contested case hearing.[94]
39. By letter dated December 23, 2004, Metro Work requested reconsideration of the maltreatment determination, and provided additional documentation to the Department.[95]
40. By letter dated March 31, 2005, the Department notified Metro Work that it had upheld the determination that Metro Work was responsible for maltreatment. The Department noted that it had received Metro Work’s timely request for a contested case hearing on the maltreatment determination and the order to forfeit a fine, and would forward the request to the Attorney General’s Office.[96]
41. On November 30, 2005, the Commissioner served a Notice and Order for Prehearing Conference for December 22, 2005. At the prehearing conference, the hearing was set to commence on March 28-29, 2006. The hearing dates were later continued by agreement of the parties to May 16-17, 2005. The hearing was held as scheduled, and was completed on May 25, 2006.
42. A Protective Order was entered in this matter on December 22, 2005.
Based on the above Findings of Fact, the Administrative Law Judge makes the following:
1. The Commissioner of Human Services and the Administrative Law Judge have jurisdiction in this matter pursuant to Minn. Stat. §§ 14.50 and 245A.08.
2. The Department of Human Services gave proper and timely notice of the hearing in this matter.
3. The Department has complied with all procedural requirements of law and rule.
4. Pursuant to Minn. Stat. §§ 626.557, subd. 9d(f), and 245A.08, this is a consolidated contested case hearing on the maltreatment determination and the imposition of a fine.
5. Neglect of a vulnerable adult constitutes maltreatment.[97] Neglect is defined to mean 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: (1) 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 (2) which is not the result of an accident or therapeutic conduct.[98]
6. The Department has proved by a preponderance of the evidence that Metro Work maltreated B.K. by failing to supply supervision that was reasonable and necessary to maintain B.K.’s health or safety by virtue of its failure to adequately train staff persons on B.K.’s RMAP and the need to supervise her during mealtime. This failure caused a substantial risk that B.K. could choke while eating.
7. Under Minn. Stat. § 245A.07, subd. 3(b)(4), the Department must assess a fine of $1,000 for each determination of maltreatment of a vulnerable adult under Minn. Stat. § 626.557.[99]
8. These Conclusions are reached for the reasons set forth in the Memorandum below, which is hereby incorporated by reference into these Conclusions.
Based upon the foregoing Conclusions, and for the reasons stated in the Memorandum attached hereto, the Administrative Law Judge makes the following:
RECOMMENDATION
IT IS HEREBY RECOMMENDED that the Commissioner of Human Services:
(1) affirm the maltreatment determination against Metro Work Center, Inc.; and
(2) affirm the order to forfeit a fine.
The Protective Order entered on December 22, 2006, shall remain in effect.
Dated: August __25_, 2006
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/s/ Barbara L. Neilson |
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BARBARA L. NEILSON |
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Administrative Law Judge |
Reported: Taped (6 tapes); no transcript prepared.
MEMORANDUM
As set forth in the Findings above, it is evident that Metro Work Center does attempt in several ways to ensure that its employees are familiar with the Risk Management Assessment Plans (RMAPs) of all 57 of the vulnerable adults who attend the Center as well as those assigned to their caseloads. Both Cyndi Sroga (the team leader for the caseload that included B.K. in September 2004) and Darlene Magnuson (the prior team leader) knew of B.K.’s choking risk and ensured that they or other staff members sat with B.K. or at her table during lunch time. Unfortunately, however, neither Ms. Magnuson nor Ms. Sroga were in the lunchroom on September 8, 2004, and the four direct care employees who were present that day (Michael Hayes, Julie Rohlik, John Plumb, and Laura Fowell), did not know B.K.’s choking history and were unfamiliar with the requirement in the RMAP that staff sit with her during mealtimes and remind her to chew before swallowing.[100] As a result, no one sat with B.K., reminded her to chew her food, made sure she ate appropriately-sized portions, or prevented her from eating large handfuls of popcorn or inedible items, and B.K. choked on popcorn and/or aluminum foil. While it is possible that B.K. may have choked even if staff had been sitting with her, observing what she was eating, and providing appropriate verbal cues, it is likely that her risk of choking would have been reduced if that supervision had occurred. The fact that the four employees did not know that they were to sit with B.K. at lunch to guard against choking shows that the training on B.K.’s RMAP conducted at Metro Work was inadequate to ensure compliance with the risk prevention measures set forth in her RMAP. Although it is likely that these employees were told of B.K.’s choking risk and risk prevention plan or read about it months before, it is also likely that they simply forgot this requirement in the intervening months when they did not work directly with B.K. and the earlier training thus was ineffective.[101]
Metro Work attempted during the hearing to place the blame for the choking incident on Mr. Plumb or on B.K.’s residential facility. However, Mr. Plumb’s conduct in leaving the lunchroom or offering food to B.K. after the first choking episode and the actions of B.K.’s residential facility in providing popcorn or uncut food did not form the basis for the Department’s maltreatment finding against Metro Work. Rather, the Department’s finding of maltreatment by Metro Work was based upon the facility’s failure to properly train its employees on B.K.’s RMAP and their resulting failure to adequately supervise her during lunch. It is clear that Metro Work staff working with B.K. should have known and followed the risk prevention requirements of the RMAP. Since B.K. ate lunch daily at Metro Work, the facility’s argument that the RMAP choking prevention plan applied only to her residential facility was not persuasive.[102] The Department provided evidence that it took mitigating factors into consideration in reaching its conclusion as required by Minn. Stat. § 626.557, subd. 9c(c), and demonstrated by a preponderance of the evidence that it properly found that the facility was responsible for the maltreatment, not an individual employee.
Metro Work also asserted that this incident was the result of “therapeutic conduct” and that maltreatment thus should not be found. Minn. Stat. § 626.5572, subd. 20, defines “therapeutic conduct” to mean “the provision of program services, health care, or other personal care services done in good faith in the interests of the vulnerable adult by: (1) an individual, facility, or employee or person providing services in a facility under the rights, privileges and responsibilities conferred by state license, certification, or registration; or (2) a caregiver.” Under Minn. Stat. § 626.5572, subd. 17(c) (4) and (5), neglect should not be found if an error is made by an individual in the provision of therapeutic conduct to a vulnerable adult and certain other circumstances are also present. In this regard, Metro Work argues that Mr. Plumb’s “error in judgment” by leaving B.K. during lunch was made in good faith since he was looking for another consumer; Metro Work provided necessary care in a timely fashion in terms of administration of the Heimlich maneuver, calling 911, and having B.K. transported to the hospital; Metro Work properly reported the incident; B.K. was restored to her pre-existing condition; there was no pattern of errors by Mr. Plumb and no evidence of prior maltreatment by Metro Work; and Metro Work took corrective action after the incident by unilaterally banning popcorn and implementing daily RMAP reviews.
The Administrative Law Judge concludes that the “therapeutic conduct” provisions of Minn. Stat. § 626.5572, subd. 17(c), do not apply in the present situation. The Department did not find that Mr. Plumb or any other Metro Work employee made an error in judgment in providing therapeutic conduct to B.K. The Department’s maltreatment finding was not based solely upon Mr. Plumb’s offering B.K. food after she had choked, but rather on the fact that no Metro Work employee in the lunchroom was aware of B.K.’s choking history and no employee was sitting with B.K. during lunch or providing the supervision contemplated by her RMAP.
It appears that Metro Work had ample opportunity during the DHS investigation and reconsideration process to provide the Department with documents it believed were important. Although the DHS investigation would have been more thorough if Ms. Sroga had been interviewed or if employee training records had specifically been requested, that information was provided during the hearing and was carefully considered by the Administrative Law Judge. Moreover, even if the first impression of the DHS investigator initially assigned to the complaint was that Mr. Plumb should be found responsible for maltreatment, the Department has supported its finding after completion of the full investigation that Metro Work should be found responsible. Based upon the record as a whole, it is recommended that the Department’s finding of maltreatment and the fine levied against Metro Work be affirmed.[103]
B.L.N.
[1] Ex. 1 at DHS-1; Testimony of Melanie Daniel, Dianna Krogstad.
[2] Testimony of D. Krogstad.
[3] Testimony of M. Daniel, Michael Hayes, Laura Fowell, D. Krogstad; Ex. 14 at DHS-65.
[4] Testimony of M. Daniel, L. Fowell, Darlene Magnuson.
[5] Testimony of D. Krogstad, D. Magnuson
[6] Testimony of D. Krogstad, John Plumb, D. Magnuson.
[7] Testimony of M. Hayes, D. Krogstad, J. Plumb.
[8] Testimony of M. Hayes, Julie Rohlik, L. Fowell, D. Krogstad, J. Plumb, D. Magnuson, Cyndi Sroga; Ex. 25; Ex. 65 (at 8/26/04).
[9] Testimony of M. Hayes, D. Krogstad, D. Magnuson, C. Sroga.
[10] Testimony of M. Hayes, J. Rohlik, L. Fowell, D. Krogstad, J. Plumb, D. Magnuson, C. Sroga; Exs. 59 (at 1/15/04), 60 (at 1/28/04 and 1/30/04), 62 (at 5/13/04), 63 (at 5/24/04), 64 (at 6/7/04), 65 (at 8/26/04), 66 (at 8/30/04), and 69 (at 12/16/04).
[11] Testimony of M. Hayes, D. Krogstad, J. Plumb, D. Magnuson, C. Sroga.
[12] Testimony of M. Daniel, D. Krogstad; Ex. 1 at DHS-2, 6, 7-8; Ex. 15 at DHS-73.
[13] Ex. 3 at DHS-27; Ex. 15 at DHS-73.
[14] Ex. 14 at DHS-65a-66.
[15] Ex. 38 at 4, item 2.
[16] Testimony of D. Krogstad, D. Magnuson; Ex. 14 at DHS-70; Ex. 38 at 4 (item 2) and 12.
[17] Testimony of D. Magnuson.
[18] Testimony of D. Krogstad, D. Magnuson; Exs. 42, 45, 48, 49, 52, 53, 54, 56, 58.
[19] Testimony of J. Plumb, D. Magnuson.
[20] Testimony of C. Sroga, J. Rohlik, J. Plumb, D. Krogstad; Ex. 44.
[21] Testimony of C. Sroga.
[22] Testimony of J. Rohlik, D. Krogstad, J. Plumb, C. Sroga; Ex. 3 at DHS-24; Ex. 10 at DHS-52; Ex. 18 at DHS-84; Ex. 40 at 6; and Ex. 44.
[23] Testimony of D. Krogstad; Exs. 16, 17, 19, 20.
[24] Testimony of J. Plumb, J. Rohlik, C. Sroga.
[25] Testimony of C. Sroga, J. Plumb, J. Rohlik.
[26] Testimony of D. Krogstad, J. Plumb; Ex. 65
[27] Ex. 18.
[28] Testimony of C. Sroga.
[29] Testimony of J. Rohlik.
[30] Testimony of J. Plumb.
[31] Ex. 3 at DHS-24.
[32] Testimony of D. Krogstad, J. Plumb.
[33] Testimony of C. Sroga.
[34] Testimony of C. Sroga, D. Krogstad, L. Fowell; Ex. 10 at DHS-52.
[35] Testimony of D. Krogstad; Ex. 43.
[36] Testimony of J. Rohlik; Ex. 1 at DHS-2-3.
[37] Testimony of M. Daniel, M. Hayes.
[38] Testimony of M. Hayes.
[39] Testimony of D. Krogstad.
[40] Testimony of M. Hayes, L. Fowell, J. Plumb; Ex. 1 at DHS-2, 3, 5; Ex. 8 at DHS-47; Ex. 10 at DHS-52; Ex. 13 at DHS-61.
[41] Exs. 27, 70; Testimony of M. Hayes.
[42] Testimony of M. Hayes, J. Rohlik.
[43] Ex. 10 at DHS-52; Ex. 70.
[44] Ex. 13 at DHS-63; Ex. 70; Testimony of J. Rohlik, J. Plumb.
[45] Ex. 70; Testimony of L. Fowell.
[46] Exs. 27, 70; Testimony of M. Hayes.
[47] Testimony of J. Plumb, M. Hayes, J. Rohlik; Ex. 1 at DHS-5; Ex. 3 at DHS-24; Ex. 13 at DHS-60.
[48] Testimony of M. Hayes, L. Fowell, J. Plumb, C. Sroga; Ex. 1 at DHS-3, 4; Ex. 3 at DHS-24; Ex. 8 at DHS-46; Ex. 10 at 52; Ex. 11 at DHS-54; Ex. 12 at DHS-57.
[49] Testimony of M. Hayes, J. Rohlik, L. Fowell; Ex. 1 at DHS-2, 3; Ex. 3 at DHS-27; Ex. 4; Ex. 8 at DHS-46; Ex. 10 at DHS-51-52; Ex. 11 at DHS-53; Ex. 12 at DHS-57; Ex. 13 at DHS-60.
[50] Testimony of M. Hayes, L. Fowell; Ex. 13 at DHS-60.
[51] Testimony of M. Hayes, J. Rohlik, L. Fowell, J. Plumb; Ex. 1 at DHS-2, 3; Ex. 4; Ex. 8 at DHS-46; Ex. 13 at DHS-61.
[52] Testimony of M. Hayes, J. Plumb, J. Rohlik, L. Fowell; Ex 1 at 2, 4; Ex. 8 at DHS-46, 48, Ex. 11 at DHS-53.
[53] Testimony of M. Hayes; Ex. 8 at DHS-47; Ex. 9 at DHS-48; Ex. 11 at DHS-54.
[54] Ex.1 at DHS-3, 4, 5, 6, 7; Ex. 3 at DHS-24-25; Ex. 13 at DHS-61.
[55] Testimony of L. Fowell; Ex. 1 at DHS-5, 6, 7; Ex. 3 at DHS-24 and 25; Ex. 4; Ex. 11 at DHS-53; Ex. 13 at DHS-61; Ex. 19 at DHS-87.
[56] Ex. 1 at DHS-2, 4, 5, 7; Ex. 3 at DHS-25; Ex. 8 at DHS-47; Ex. 11 at DHS-54; Ex. 12 at DHS-56; Ex. 13 at DHS-61-62.
[57] Ex. 1 at DHS-3, 4, 5, 6; Ex. 12 at DHS-58; Ex. 13 at DHS-62.
[58] Ex. 1 at DHS-2; Ex. 3 at DHS-25; Ex. 8 at DHS-47.
[59] Testimony of D. Krogstad; Ex. 1 at DHS-4, 7; Ex. 3 at DHS-25; Ex. 4; Ex. 7 at DHS-45; Ex. 11 at DHS-54; Ex. 12 at DHS-56; Ex. 19.
[60] Ex. 1 at DHS-6; Ex. 6.
[61] Ex. 7.
[62] Testimony of M. Daniel; Ex. 1 at DHS-7; Ex. 22 at DHS-107.
[63] Testimony of D. Krogstad.
[64] Exs. 4, 6, 30.
[65] Testimony of D. Krogstad; Ex. 36.
[66] Testimony of D. Krogstad; Ex. 1 at DHS-6; Ex. 3 at DHS-24-25; Ex. 9 at DHS-48-49; Ex. 19 at DHS-86-88; Ex. 20 at DHS-89.
[67] Testimony of M. Hayes, J. Rohlik, J. Plumb, L. Fowell, D. Krogstad; Ex. 1 at DHS-2, DHS-3, DHS-4, and DHS-7; Ex. 3 at DHS-26-27.
[68] Ex. 3 at DHS-27.
[69] Ex. 3 at DHS-27; Ex. 8 at DHS-47; Testimony of M. Hayes.
[70] Testimony of D. Krogstad, M. Hayes; Ex. 9 at DHS-49.
[71] Testimony of D. Krogstad; Ex. 24 at DHS-112.
[72] Ex. 40 at 2, item (b).
[73] Ex. 25; Testimony of M. Hayes.
[74] Testimony of D. Krogstad, J. Plumb, C. Sroga, M. Hayes; Exs. 45, 48, 49, 52, 54.
[75] Exs. 55, 57; Testimony of D. Krogstad, J. Rohlik, L. Fowell.
[76] Ex. 56; Testimony of L. Fowell. See also Ex. 25 (Ms. Fowell signed off as reading the RMAP on September 3, 2004).
[77] Testimony of D. Krogstad, J. Plumb, M. Hayes; Ex. 1 at DHS-3, 6; Ex. 3 at DHS-25-26; Exs. 45, 54, 57.
[78] Testimony of M. Hayes; Ex. 1 at DHS-3; Ex. 8 at 47; Ex. 9 at DHS-48.
[79] Ex. 11 at DHS-54.
[80] Testimony of J. Plumb; Ex. 1 at DHS-3 and DHS-6; Ex. 10 at DHS-52; Ex. 13 at DHS-62-63.
[81] Testimony of M. Hayes, J. Rohlik, L. Fowell, J. Plumb; Ex. 1 at DHS-3; Ex. 3 at DHS-24, 27.
[82] Ex. 1 at DHS-5; Ex. 3 at DHS-27.
[83] Ex. 3 at DHS-27.
[84] Testimony of D. Krogstad.
[85] Testimony of J. Plumb, D. Magnuson, C. Sroga, D. Krogstad.
[86] Testimony of D. Krogstad; Exs. 30, 36.
[87] Testimony of M. Daniels.
[88] Ex. 1 at DHS-1; Ex. 2; Testimony of M. Daniels.
[89] Exs. 1-21; Testimony of M. Daniel.
[90] Ex. 1; Testimony of M. Daniel.
[91] Testimony of M. Daniel.
[92] Ex. 21.
[93] Ex. 1 at DHS-7-8; Ex. 22; Testimony of M. Daniel.
[94] Ex. 23; Testimony of M. Daniel.
[95] Exs. 24-25; Testimony of M. Daniel.
[96] Ex. 26; Testimony of M. Daniel.
[97] Minn. Stat. § 626.557, subd. 1.
[98] Minn. Stat. § 626.5572, subd. 17(a).
[99] Minn. Stat. § 245A.07, subd. 3(b)(4).
[100] Although she is not a direct care provider, it is significant that not even Metro Work’s Executive Director was familiar with B.K.’s choking history or her risk prevention requirements. She told the DHS investigator that employees were not required to sit with BK while she ate, and that it was safe to presume that staff did not know that they were supposed to sit with BK. See Ex. 3 at DHS 26-27.
[101] With the benefit of hindsight, perhaps Metro Work should require newly-assigned teams and lunchroom staff to get together in advance of taking responsibility for new consumers to discuss and review their RMAPs with the assistance of the prior team, or organize its workforce so that there are fewer caseload changes and more consistency in staff working with particular individuals to ensure greater familiarity with particular consumers and their risks.
[102] Even though the most recent RMAP refers to the dietary plan posted on the kitchen wall at B.K.’s residence, the choking prevention plan clearly applies to mealtimes either at home or at Metro Work.
[103] Metro Work also asked that the citation issued by the Department under Minn. Stat. § 245B.07, subd. 5(b), be withdrawn. This contested case hearing does not encompass issues raised in that citation. See Minn. Stat. §§ 245A.07 and 245A.08.