OAH Docket No. 12-1800-17060-2
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE COMMISSIONER OF HUMAN SERVICES
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In the Matter of the Maltreatment Determination and Disqualification of Margie Kleven
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FINDINGS OF FACT, CONCLUSIONS, AND RECOMMENDATION |
A hearing in this matter was conducted by Administrative Law Judge Steve M. Mihalchick on March 20, 2006, in the Conference Room of the Alexandria City Hall, 704 Broadway Street, Alexandria, MN. The record remained open for the receipt of posthearing briefs. The hearing record closed on April 5, 2006, with the receipt of briefs by the Department and the Appellant.
Matthew P. Franzese, Leuthner Law Office, 218 3rd Avenue East, Suite 102, Alexandria, MN 56308, appeared on behalf of Margie Kleven (Appellant). Amber Hawkins, Assistant Attorney General, 1400 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101, appeared for the Department of Human Services (the Department).
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. The Commissioner may adopt, reject, or modify these Findings of Fact, Conclusions, and Recommendations. Under Minn. Stat. § 14.61, the final decision of the Commissioner shall not be made until this Report has been made available to the parties to the proceeding for at least ten days. An opportunity must be afforded to each party adversely affected by this Report to file exceptions and present argument to the Commissioner. Parties should contact Kevin Goodno, Commissioner, Department of Human Services, 444 Lafayette Road, St. Paul, MN 55155 to learn the procedure for filing exceptions or presenting argument.
If the Commissioner fails to issue a final decision within 90 days of the close of the record, this report will constitute the final agency decision under Minn. Stat. § 14.62, subd. 2a. The record closes upon the filing of exceptions to the report and the presentation of argument to the Commissioner, or upon expiration of the deadline for doing so. The Commissioner must notify the parties and the Administrative Law Judge of the date on which the record closes.
Under Minn. Stat. § 14.62, subd. 1, the Commissioner is required to serve his final decision upon each party and the Administrative Law Judge by first class mail or as otherwise provided by law.
At issue in this matter is whether Appellant engaged in acts constituting abuse under Minn. Stat. § 626.5572, subd. 2, by making disparaging remarks to vulnerable adults, inducing a vulnerable adult to make vulgar statements, or engaging in derogatory conduct, particularly about a vulnerable adult’s anatomy. Also at issue is whether such conduct, if proven, constitutes recurring maltreatment under Minn. Stat. §§ 245C.14, subd. 1(a)(3) and 245C.15, subd. 4. If that conduct constitutes maltreatment, the further issue arises as to whether the resulting disqualification should be set aside under Minn. Stat. § 245C.22 due to Appellant not posing a risk of harm to vulnerable persons.
The Administrative Law Judge finds that Appellant repeatedly spoke to a vulnerable adult using derogatory names and that such conduct constitutes abuse. The Administrative Law Judge also finds that Appellant induced a vulnerable adult to swear, which constitutes abuse. Appellant’s repeated conduct constitutes recurring maltreatment.
With the finding of recurring maltreatment, Appellant is disqualified from direct contact with persons in licensed programs. At issue is whether Appellant poses a risk of harm to the vulnerable adults who she wishes to serve. If so, then her disqualification for the recurring maltreatment should not be set aside under Minn. Stat. § 245A.04, subd. 3b.
The Administrative Law Judge finds that Appellant poses a risk of harm to the persons to be served and concludes that her disqualification for the recurring maltreatment should not be set aside.
Based upon the proceedings herein, the Administrative Law Judge makes the following:
1. The Alexandria Minnesota State Operated Community Services Program (the Facility or Alex-MSOC) is a Department-operated group home in Alexandria, Minnesota. The Facility opened in June, 2000.[1] The Alex-MSOC is part of a program, begun in the early 1990s, to move developmentally disabled persons out of large institutions and into small community-based group homes.[2] At all times relevant here, the Alex-MSOC operated under supervision from managers at the Fergus Falls Regional Treatment Center.[3]
2. Alex-MSOC is home to four developmentally disabled adult males. Each of the residents, also known as clients, is low functioning and non-verbal. The clients will be referred to individually as VA1, VA2, VA3, and VA4, the same identifiers that were used in the Investigative Memorandum referred to below.[4]
3. Alex-MSOC is situated in a duplex that was remodeled to accommodate the needs of the program. The front door opens in to a living area and adjacent kitchen, communal dining area, and an alcove used as the Facility’s office. A hallway runs the length of the building off of the communal area, providing access to the clients’ bedrooms. There are four bedrooms, one for each client. There are two bathrooms, one accessed through the kitchen and the other at the end of the hallway. [5]
4. Generally, two staffers are present during the busy periods when the clients are awake and in the Facility. One staff person works from 10 p.m. to 8 a.m., joined by another staffer at 7:00 a.m. on weekdays who works until 9:30 a.m. On weekdays, after their morning routine, the clients leave for various development programs. One client leaves at 8:00 a.m. The other three leave by 9:30. The Facility is unoccupied by staff or clients through the middle of the day on weekdays. Two staffers come in to work at 2:00 p.m. (one shift ends at 8:00 p.m. and the other at 10:00 p.m.). The clients return to the Facility by 3:00 p.m. The clients are usually in bed by 8:00 p.m.[6]
5. The clients at Alex-MSOC function mentally at about the level of a normal eighteen-month old child. They cannot communicate verbally. They do not use words to communicate, either oral or written.[7] With very few exceptions related to their daily routine, the clients do not understand words spoken to them.[8] They have some signs and behaviors to indicate some needs. VA1 cannot dress himself and wears an incontinence brief. VA2, VA3, and VA4 can dress themselves, with prompts. [9] Due to their inability to provide self-care, the clients are assisted with most of their activities of daily living, including bathing, shaving, and meals.
6. Appellant has worked in the adult care field for over thirty years. She began working for the State of Minnesota in 1998. Appellant began working in the Alex-MSOC when it opened in 2000. She worked there until May 2004. Appellant was a Human Services Technician responsible for providing direct care and supervision to the four clients residing in the Facility.[10]
7. Appellant began work at the Alex-MSOC at three-quarter time, working Thursdays and Fridays 2:00 p.m. to 10:00 p.m., Saturdays from 8:00 a.m. to 4:00 p.m., and Sundays from 8:00 a.m. to 4:00 p.m. She would occasionally work additional shifts. On Thursdays, Appellant worked with Diane King, Mental Retardation Residential Program Lead. On Fridays and Saturdays, Appellant worked with RP (another Human Services Technician). On Sundays, Appellant worked with Rosemary Zins, LPN.[11]
8. Appellant described a number of interpersonal problems between herself and staff members and supervisors at the Facility. Appellant noted that Diane King disliked Appellant from the first day that Appellant worked there.[12] Early in her time working at the Facility, Appellant made a comment about VA2 that he was “ugly.” King took Appellant aside and said that such comments were completely unacceptable. Appellant told King that the comment described VA2’s angry outbursts, particularly when he would throw things in the Facility, not VA2’s appearance.[13]
9. Appellant understood that abuse of vulnerable adults was prohibited. [14]
10. VA4 exhibited a behavior at Alex-MSOC where he would dig in the garbage. Staff members were instructed to redirect VA4 from the behavior by removing the garbage. Under VA4’s plan of care, he would only be directed to his room if he was having a tantrum that put other clients at Alex-MSOC at risk.[15]
11. Searle observed VA4 in the kitchen engaging in this behavior when Appellant intervened. Appellant did not remove the garbage. Instead, Appellant got upset with VA4 and roughly pushed him down the hallway into his room. Searle observed this conduct and noted that physical redirection was unnecessary.[16] Searle also observed another staffer, RP, yell at VA4 to get him to stop digging in the garbage.[17]
12. Appellant asserted that, due to VA4’s size and unwillingness to cease going after the garbage, Appellant needed to push VA4 to get him into his room. VA4 would usually have a tantrum after being separated from the garbage, she believed it was necessary to move him to his room, as directed in his plan of care. Appellant maintained that all staffers were authorized to use that level of force to redirect clients.[18]
13. Jennifer Searle, LPN, worked with Appellant on a few occasions at the Alex-MSOC. Searle has heard Appellant refer to VA2 as an “asshole.” Searle observed Appellant do that directly to VA2 with a sweet tone of voice and smiling while they were in the living room area on one occasion. VA2 responded to that comment by smiling. Other clients may have been present in the room at the time.[19] No indication was given that the references caused anyone emotional distress.
14. Heather Danner, LSW (a Human Service Technician at Alex-MSOC) worked with Appellant from five to ten times over an eighteen month period at the Facility. Danner heard Appellant refer to VA2 as an “asshole” on several instances.[20] Danner usually heard the reference in a sweet tone of voice, but occasionally Danner heard Appellant say it with an aggressive, angry tone. Danner noted that these comments, when not directed at VA2, were within hearing of the other clients. Danner also heard RP call VA2 an “asshole.”[21]
15. Appellant acknowledged calling clients “asshole.” She indicated that she did not call any client that name directly. She did not consider describing VAs as “assholes” constituting abuse.[22] Appellant also described that term as being in common use in the Facility. Appellant denied making these sorts of comments generally in the hearing of clients. Another comment, that she called VA2 “ugly,” Appellant described as meaning VA2’s angry outbursts, particularly when he would throw things in the Facility.[23]
16. Appellant maintained that Zins also spoke to clients and called them “asshole” in a sweet tone of voice.[24] Appellant acknowledged that calling clients “asshole” was wrong and that she now understood that such behavior has consequences. Appellant did note that none of the clients ever gave any indication of emotional distress in response to such comments.[25]
17. On February 24, 2004, Zins arrived at the Facility and observed that VA2 was present with Appellant. Appellant called Zins over and said that she had been teaching VA2 to say “fuck you.” VA2 was attempting to repeat what Appellant had been saying and due to his inability to verbally communicate, the sounds VA2 was making resembled “ruh roo.” Appellant treated the activity as being funny.[26]
18. Searle did not hear Appellant make any sexual comments regarding clients. Searle did hear other staffers make comments regarding Appellant engaging in behavior with a sexual connotation regarding clients.[27]
19. Searle and Danner heard Appellant make comments about the size of VA3’s penis. The comments were to the effect that the penis was rather large and it was a waste on VA3. The other clients would be in the vicinity when the comments were made.[28] Danner could not say affirmatively that the clients understood what was being said by staff. She did note that the clients understood directions given them as part of their daily routines. Danner characterized making derogatory comments about clients’ bodies or referring to clients as “assholes” as wrong, on the chance that a client would understand the comment or reference.[29]
20. Tara Lind, a Human Services Technician at the Alex-MSOC, was caring for VA3 and for the first time, Lind was overseeing his bath. She noted that VA3’s penis was reddened and enlarged. Lind saw Rosemary Zins, a nurse working at Alex-MSOC pass by the bathroom. Lind stopped Zins and inquired what was the situation regarding VA3’s penis. Zins asked what Lind meant and Lind responded, ”It [VA3’s penis] is as big as a pop can.” Lind meant the comment in a clinical manner and she made the comment quietly, so that none of the clients could hear. Zins responded by giggling and saying “that’s our [name of VA3].” Lind overheard Zins telling Appellant about the “pop can” comment later that day. Lind was embarrassed by the manner in which the comment was passed on and Lind never repeated the comment.[30]
21. Several staff, including Appellant, made references to the size of VA3’s penis. Appellant used the “pop can” description as did RP.[31] None of these comments were made in the hearing of the clients.
22. On a Saturday in September, 2003, Zins came in to the Alex-MSOC. Appellant and RP were working at that time. RP held up a cucumber from the kitchen counter and told Zins that RP and Appellant had measured up the cucumber against VA3’s penis. RP also said she had mentioned this in a telephone conversation to her mother and that her mother had laughed. Zins later asked Appellant if this was true. Appellant told Zins that it did not happen and that Appellant was “a liar.”[32] Appellant had not physically compared the cucumber to VA3’s penis.
23. RP made a comment that she and Appellant had gotten into bed with VA3, just to see what his reaction would be. When Appellant heard the story from other staffers, she denied that any such thing had happened.[33] Appellant did not get into bed with VA3 at any time.
24. Appellant told Zins that there was something “just not right” about how RP was bathing VA3. Appellant suggested that when she or Zins was working with RP, they should give VA3 his bath, rather than RP. On other occasions, Appellant told Zins that RP was drying VA3 “too well” in the genital area or shaving VA3 before he put any clothes on after his bath. Appellant believes that these comments were being passed on to supervisors at Alex-MSOC and that they were aware of this conduct and would investigate this conduct as possible maltreatment by RP.[34]
25. Arlene Barber, Community Residential Supervisor for the Alex-MSOC received information that indicated some form of abuse was occurring at the Facility. Barber initiated an investigation with Dick Hedin, another MSOC Supervisor.[35]
26. The Department received complaints of possible maltreatment by RP of clients at the Alex-MSOC.[36] In the course of the investigation, the Department included suspected maltreatment of clients at the Alex-MSOC by Appellant, related to Appellant’s use of inappropriate nicknames and the allegation regarding the cucumber.[37]
27. An investigation by MSOC was initiated as a result of the information received. A separate maltreatment and licensing investigation by the Department’s Division of Licensing (“Licensing”) was also begun. On April 1, 2004, Barber placed Appellant on suspension for two days. The suspension was based on Barber’s conclusion that Appellant had made inappropriate comments to clients and had failed to report possible abuse of a vulnerable adult as required by the Vulnerable Adult Act (Minn. Stat. § 626.557).[38] By the end of April 2004, Barber transferred Appellant to the Elbow Lake-MSOC. At about that time, Appellant completed the on-line vulnerable adult standards course.[39]
28. An ongoing internal investigation by MSOC management continued into Appellant’s conduct as an employee.[40] On May 4, 2004, Barber placed Appellant on investigatory leave with pay. The investigatory leave was based on the allegations of possible misconduct by Appellant in the treatment of clients.[41]
29. On June 7, 2004, Barber placed Appellant on suspension for three days. The suspension was based on Barber’s conclusion that Appellant had made inappropriate contacts with other staff regarding an ongoing investigation, had made a comment akin to a threat to a coworker regarding reporting Appellant’s conduct, and had appeared for work showing signs that Appellant was not fit for duty.[42]
30. Investigator Vicki Anderson had begun a Licensing investigation of the Alex-MSOC on February 3, 2004. Anderson conducted interviews and site visits between February 19 and May 18, 2004. The four clients were not interviewed. Information about the clients was drawn from their individual service plans (ISPs) and their risk management plans. Nine staffers and direct care providers were interviewed.[43]
31. On December 23, 2004, Licensing issued an Investigative Memorandum (the Investigative Memorandum), written by Anderson, that reported the results of the investigation.[44] The Investigative Memorandum noted Appellant’s contentions regarding the allegations that she was engaging in inappropriate conduct. The investigator found by a preponderance of the evidence that Appellant had made statements constituting “malicious language” toward VA2 and VA4. The investigator found by a preponderance of the evidence that Appellant had “engaged in non-therapeutic, derogatory, and humiliating conduct toward VA3.” Regarding the impact of these incidents, the Investigative Memorandum reported that, “together, the conduct of SP2 [Appellant] toward VA2, VA3, and VA4 could reasonably be expected to have produced emotional distress for VA2, VA3, and VA4.[45]
32. The investigation applied a “reasonable person” standard for determining maltreatment. As applied, the issue was whether the particular conduct could be reasonably expected to produce emotional distress.[46] The investigation did not consider whether the vulnerable adults could understand what they were hearing.[47] The investigation did not consider the tone of voice or the meaning intended in applying the reasonable person standard.
33. The Investigative Memorandum recounted the statements made by staffers who observed the use of derogatory names by Appellant, one who witnessed Appellant instructing a client to say “fuck you,” and one who witnessed the statements regarding cucumber incident. The Appellant’s statements to the investigator were recounted. The investigation concluded that maltreatment was committed by Appellant toward VA 2, VA3, and VA4, but the absence of an injury compelled the conclusion that the maltreatment was not serious. The investigation concluded that maltreatment by Appellant was recurring.[48]
34. By written notice of December 23, 2004, the Department notified Appellant that it had substantiated that Appellant had committed maltreatment of vulnerable adults involving emotional abuse by using derogatory language toward three clients. The Department concluded that these acts of maltreatment were recurring and therefore Appellant was disqualified from any position allowing direct contact with persons served by programs licensed by the Department or similar programs. The notice also indicated that it had been determined that Appellant posed an imminent risk of harm to persons served by such programs and must be immediately removed from any position allowing direct contact. The notice set forth Appellant’s rights to request reconsideration of the maltreatment, disqualification, and risk of harm determinations.[49]
35. On January 10, 2005, Appellant requested reconsideration of the maltreatment, disqualification, and risk of harm determinations.[50]
36. Jennifer Park of the Department’s Division of Licensing reviewed the information in the Investigation Memorandum and the request for reconsideration submitted by Appellant. She found that the facts support the maltreatment determination, that it was recurring, and that the disqualification was correct. She did a risk of harm assessment using a Department worksheet. She rated eight of the eleven listed factors as “high risk” and two as “medium risk,” Park did not rate the length of employment factor because she had no information on it. She concluded that Appellant posed an imminent risk of harm and recommended that the disqualification not be set aside.[51]
37. In concluding that “moderate harm” was suffered by the clients, Park relied on the fact that the verbal conduct was repeated. Park concluded that VA2 and VA3 suffered “short term damage” through Appellant engaging in repeated abusive language to more than one adult.[52] Park acknowledged that she had no actual evidence of any harm to any of the VAs involved.[53] One of the factors to be considered is whether the subject has completed any related training or rehabilitation. In concluding that higher risk was posed by Appellant not completing appropriate training, Park relied on the absence of information provided to her.[54]
38. Division of Licensing Supervisor Laura Plummer Zrust reviewed the information in the Investigation Memorandum and the request for reconsideration submitted by Appellant. She reviewed the risk of harm worksheet completed by Park and approved the rating that Park had arrived at.[55]
39. On May 3, 2005, the Department issued a Notice of Reconsideration of Maltreatment Determination and Notice of Reconsideration of Disqualification to Appellant. The Notice stated that the Commissioner of Human Services had determined that the maltreatment determination was appropriate. The Commissioner also determined that the information used to disqualify Appellant was correct and that the maltreatment was recurring, which is a disqualifying characteristic under Minn. Stat. § 245A.04, subd. 3d. Finally, the Commissioner determined that Appellant had failed to demonstrate that he did not pose a risk of harm to persons served by covered programs and denied Appellant’s request to set aside the disqualification.[56] The notice informed Appellant of her right to request a contested case hearing.
40. On May 23, 2005, Appellant submitted a request for a contested case appeal of the disqualification and maltreatment determination.[57] The Department issued a Notice of and Order for Pre-hearing Conference and Hearing on January 4, 2006.
1. The Administrative Law Judge and the Minnesota Department of Human Services have authority to consider and rule on the issues in this contested case hearing pursuant to Minn. Stat. §§ 14.50 and 245A.08.
2. The Department gave proper notice of the hearing, and all relevant substantive and procedural requirements of law or rule have been fulfilled.
3. Under Minn. Stat. § 626.5572, subd. 15, "maltreatment" means “abuse,” “neglect,” or “financial exploitation.” Minn. Stat. § 626.5572, subd. 2(b), defines abuse, in relevant part, as:
Conduct which is not an accident or therapeutic conduct as defined in this section, which produces or could reasonably be expected to produce physical pain or injury or emotional distress including, but not limited to, the following:
(1) hitting, slapping, kicking, pinching, biting, or corporal punishment of a vulnerable adult;
(2) 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;
(3) use of any aversive or deprivation procedure, unreasonable confinement, or involuntary seclusion, including the forced separation of the vulnerable adult from other persons against the will of the vulnerable adult or the legal representative of the vulnerable adult; and
(4) use of any aversive or deprivation procedures for persons with developmental disabilities or related conditions not authorized under section 245.825.
4. Appellant’s conduct of attempting to have a vulnerable adult say “fuck you” is abuse under Minn. Stat. § 626.5572, subd. 2(b)(2), because it is conduct involving language toward a vulnerable adult which would be considered by a reasonable person to be disparaging, derogatory, and humiliating.
5. Appellant’s repeated instances of directly calling a vulnerable adult “asshole” is abuse under Minn. Stat. § 626.5572, subd. 2(b)(2), because it is repeated oral language toward a vulnerable adult which would be considered by a reasonable person to be disparaging, derogatory, and humiliating.
6. Any individual who has engaged in serious or recurring maltreatment of a vulnerable adult must be disqualified from direct contact with or access to persons receiving services from the facility.[58] “Recurring maltreatment” means more than one incident of maltreatment.[59]
7. Appellant has engaged in recurring maltreatment of vulnerable adults and must be disqualified.
8. The Commissioner may set aside a disqualification if the Commissioner finds that the individual does not pose a risk of harm to any person served by the facility.[60] In determining that an individual does not pose a risk of harm, the commissioner shall consider the nature, severity, and consequences of the event or events leading to the disqualification, whether there is more than one disqualifying event, the age and vulnerability of the victim at the time of the event, the harm suffered by the victim, the similarity between the victim and persons served by the program, the time elapsed without a repeat of the same or similar event, documentation of successful completion by the individual of training and rehabilitation, and any other relevant information. In reviewing a disqualification, the Commissioner shall give “preeminent weight” to the safety of each person to be served by the facility.
9. At the time of the events found to constitute recurring maltreatment, Appellant posed a risk of harm to the residents of Alex-MSOC. The conduct she engaged in directly impacted on vulnerable adults. The testimony of Appellant at the hearing suggests a lack of recognition of that seriousness. Appellant still poses a risk of harm to vulnerable adults. She is not eligible to have her disqualification for recurring maltreatment set aside at this time.
10. The attached Memorandum is incorporated by reference.
Based upon the foregoing Conclusions, the Administrative Law Judge makes the following:
IT IS HEREBY RESPECTFULLY RECOMMENDED: that the Commissioner AFFIRM the determination of recurring maltreatment, the determination of disqualification of Margie Kleven, and the determination that the disqualification not be set aside.
Dated: May 22, 2006
/s/ Steve M. Mihalchick
______________________________
STEVE M. MIHALCHICK
Administrative Law Judge
Reported: Tape recorded, five tapes. No Transcript Prepared.
The maltreatment cited against Appellant is emotional abuse arising from comments made directly to clients or about clients to other workers in the course of client care. Emotional abuse is also alleged to have been committed by Appellant by her participation in the comparing of the size of a VA’s penis to that of a cucumber and a pop can, and in attempting to teach a VA to say “fuck you.”
The Appellant maintains that the conduct she engaged in does not constitute “maltreatment” as the term is defined in the Vulnerable Adults Act. There is no evidence in this record suggesting that any of the four clients actually heard and understood any such comment made in their presence. Similarly, there is no showing of any emotional harm experienced by any of the four clients coming from those comments. There was only evidence that it was inappropriate to do so because there was a slight possibility that the clients would understand. This is no doubt true as a job requirement, but it does not prove that there was abuse. The absence of any such showing is cited by Appellant as demonstrating that she did not violate that statute.
The “asshole” comments directly to the clients are different. The definition of abuse includes conduct “which produces or could reasonably be expected to produce physical pain or injury or emotional distress ….”[61] In this matter, there was no proven injury or emotional distress caused by the language cited by the Department. But, the definition of abuse includes “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….”[62]
The Department applied the “reasonable person” standard set out in the statute. As described by the Department, the issue was whether a reasonable person in that situation would find the comments to be emotionally harmful. The Department applied the standard by determining how a reasonable person who can hear and understand what is being said would react.
Appellant maintains that the specific language in the item on language only applies where physical pain or injury or emotion distress is experienced by the VA. This interpretation is contrary to the express language of the statute. The “reasonable person” standard is introduced where language is involved. There is no reason for stating a different standard if the legislative intent was to require emotional distress to the VA before a finding of abuse could be made.[63] The reasonable person standard applies to assess the language used to determine if abuse occurred.
Referring to clients at Alex-MSOC as “asshole” on a repeated basis is sufficient to trigger an abuse finding under the Vulnerable Adults Act. A “reasonable person” understands that this sort of language is demeaning and hurtful. Moreover, the reasonable person need not be the person subjected to the language, he or she may be a person observing or evaluating the language. The Vulnerable Adults Act requires that such persons be treated with dignity. As “abuse” is defined in the statute, the Appellant’s conduct rises to the level of disparaging and derogatory language that constitutes maltreatment.
The Department also maintains that references to VA3’s genitalia are the sort of conduct that be found by “a reasonable person to be disparaging, derogatory, humiliating, harassing, or threatening….” By the terms of the rule, the conduct must be addressed to the vulnerable adult. The conversations about VA3 were not addressed to the clients and were not understood by the clients. The possibility of any of the clients hearing them was extremely remote, if they were nearby. There is no evidence that they attempted to listen to conversations. To the contrary, they were very difficult to communicate with. Moreover, it is not likely that a reasonable person would consider the comments to be derogatory or humiliating. As discussed in the Findings, the cucumber incident consists of a comment made in the kitchen by a different staffer, not involving actual physical comparison of the vegetable with the genitalia of VA3.[64] This conduct, while lewd and improper for the workplace, is not Appellant’s conduct and it does not constitute the sort of conversation directed at a vulnerable adult that supports a finding of abuse under Minn. Stat. § 626.5572, subd. 2(b).
Appellant’s conduct regarding VA2, attempting to teach him to say “fuck you,” is the sort of conduct found by “a reasonable person to be disparaging, derogatory, humiliating, harassing, or threatening….” This is precisely the sort of conduct that the Vulnerable Adults Act prohibits as offensive to a VA’s dignity. That conduct supports a finding of abuse under Minn. Stat. § 626.5572, subd. 2(b).
An incident which was discussed at the hearing was Appellant pushing VA4 toward his bedroom to divert him from digging in the garbage. This conduct was not originally relied upon in the Licensing investigation to support the maltreatment determinations. Therefore, no such conclusion is made here.
Appellant disputed the statements and testimony of several witnesses. The ALJ finds the testimony of Searles and Danner to be credible. On the other hand, there was no credible testimony to support a conclusion that Appellant participated in any physical comparison of VA3’s penis to a cucumber. Similarly, there is no credible evidence that Appellant got into bed with VA3 at any time. The Appellant’s denials regarding those alleged incidents are credible regarding allegations of conduct with sexual overtones.
The ALJ has accepted some of the evidence presented through the interviews with Zins. Since that witness was unavailable for cross-examination, this evidence has not been given the same weight as testimonial evidence presented at the hearing. Zins description of the “fuck you” incident has been found to be credible. The Appellant’s testimony denying the “fuck you” incident is not credible.
The Department has demonstrated more than two instances of abuse, meeting the recurring standard for disqualification under Minn. Stat. § 245C.15, subd. 4(b)(2). Disqualification precludes Appellant from having direct contact with clients (or persons served in any other licensed setting, such a daycare) unless the disqualification is set aside. A disqualification can be set aside if the person demonstrates that no risk of harm is presented to persons in these programs.
A number of factors must be considered in assessing the risk of harm.[65] The Department’s assessment relied on the verbal communications as both constituting abuse and resulting in emotional harm. Those communications do constitute abuse, but the resulting actual harm was somewhere between minimal and nonexistent.
Assessing Appellant’s conduct for the risk of harm she poses to vulnerable persons, the ALJ notes that her conduct did not cause any physical injury or emotional distress that would be considered serious. Appellant’s testimony and argument was directed at denying that the statements occurred and providing reasons for others to provide false accusations or false testimony. Appellant has not demonstrated that she now understands the limitations on language directed at VAs, even when those persons do not understand what is being said.
Regarding the future prospect of Appellant using derogatory language toward vulnerable persons, Appellant testified at the hearing that she knew using terms like “asshole” was wrong, but that they “just slipped out.” The ALJ has considered the number of such comments and the episode involving attempting to get a vulnerable adult to say “fuck you.” The ALJ concludes that Appellant does pose a risk of harm to vulnerable persons and her disqualification should not be set aside at this time.
[1] Testimony of Barber, Tape 2, Side 1.
[2] MSOC is the current name. Originally the program was known as the Community Services Program – State Operated Community Services (CSP-SOCS or CSP).
[3] Testimony of Barber, Tape 2, Side 1.
[4] Ex. 8.
[5] Testimony of Searle, Tape 1, Side 1.
[6] Testimony of Searle, Tape 1, Side 1; Testimony of Kleven, Tape 4, Side 1.
[7] Testimony of Lind, Tape 4, Side 1.
[8] Testimony of Searle, Tape 1, Side 1.
[9] Testimony of Searle, Tape 1, Side 1.
[10] Testimony of Kleven, Tape 4, Side 2 and Tape 5, Side 1.
[11] Testimony of Kleven, Tape 4, Side 2.
[12] Testimony of Kleven, Tape 5, Side 1
[13] Testimony of Kleven, Tape 4, Side 2.
[14] Testimony of Kleven, Tape 5, Side 1.
[15] Testimony of Searle, Tape 1, Side 2.
[16] Testimony of Searle, Tape 1, Side 1.
[17] Testimony of Searle, Tape 1, Side 2.
[18] Testimony of Kleven, Tape 5, Side 1.
[19] Testimony of Searle, Tape 1, Sides 1 and 2.
[20] Testimony of Danner, Tape 2, Side 1.
[21] Testimony of Danner, Tape 1, Side 2.
[22] Testimony of Kleven, Tape 5, Side 1.
[23] Testimony of Kleven, Tape 4, Side 2.
[24] Testimony of Kleven, Tape 4, Side 2.
[25] Testimony of Kleven, Tape 4, Side 2.
[26] Ex. 8, at 11.
[27] Testimony of Searle, Tape 1, Side 1.
[28] Testimony of Danner, Tape 1, Side 2.
[29] Testimony of Danner, Tape 1, Side 2.
[30] Testimony of Lind, Tape 4, Side 1.
[31] Ex. 8, at 11-12.
[32] Ex. 8, at 12.
[33] Testimony of Kleven, Tape 5, Side 1.
[34] Testimony of Kleven, Tape 5, Side 1.
[35] Testimony of Barber, Tape 2, Side 1.
[36] Testimony of Janecek, Tape 2, Side 2.
[37] Ex. 8.
[38] Ex. 1.
[39] Testimony of Kleven, Tape 5, Side 1.
[40] Testimony of Barber, Tape 2, Side 2.
[41] Ex. 4.
[42] Ex. 5.
[43] Ex. 8.
[44] Ex. 8.
[45] Ex. 8, at 13-14.
[46] Testimony of Janecek, Tape 3, Side 1.
[47] Testimony of Janecek, Tape 3, Side 1. Licensing would find maltreatment even where the vulnerable adult expressly stated that the comments did not cause emotional distress, if the reasonable person standard was met. Id.
[48] Ex. 8, at 14-15.
[49] Ex. 7.
[50] Ex. 10.
[51] Ex. 12.
[52] Testimony of Park, Tape 3, Side 2.
[53] Id.
[54] Testimony of Park, Tape 3, Side 2.
[55] Ex. 12.
[56] Ex. 11.
[57] Ex. 13.
[58] Minn. Stat. § 245C.14, subds. 1 and 2, and § 245C.15, subd. 4(b)(2) (2003)(formerly found in Minn. Stat. § 245A.04, subd. 3d(a)(4)).
[59] Minn. Stat. § 245C.02, subd. 16 (2003)(formerly found in Minn. Stat. § 245A.04, subd. 3d(a)(4).
[60] Minn. Stat. § 245C.22, subd. 4 (2003)(formerly Minn. Stat. § 245A.04, subd 3b(b)).
[61] Minn. Stat. § 626.5572, subd. 2(b).
[62] Id.
[63] To accomplish the interpretation asserted by Appellant, the effect would be change the statute from the objective standard of “a reasonable person” to the subjective standard of whether the particular VA experienced emotional distress.
[64] Such physical conduct would constitute “treatment of a vulnerable adult” under Minn. Stat. § 626.5572, subd. 2(b)(2), and would compel a different conclusion.
[65] Minn. Stat. § 245C.22, subd. 4(b).