Code Gray: A Litigator’s Guide to Elder Abuse Investigations

by Joel Smith and Kara K. Rahimi

Hospitals and care facilities use various codes to quickly relate information in an emergency. While these differ from facility to facility, Code Blue could mean someone is in cardiac arrest, Code Red often means there is a fire, Code Pink may mean there is a pediatric crisis. Perhaps now is the time to enact a universal Code Gray for emergencies involving elderly or vulnerable patients.

Recent data indicates that some 25,000 complaints are filed with the state of Minnesota every year concerning allegations of abuse and neglect of vulnerable adults, including in nursing homes and assisted living facilities. The Minnesota Department of Health (MDH) is responsible for investigating these matters through the Office of Health Facility Complaints (OHFC). But, as the MDH acknowledges, “[i]n recent years, OHFC has not met Minnesotans’ reasonable expectations for investigating maltreatment complaints.”1 This acknowledgement followed an in-depth investigation reported by the Star Tribune in a series of articles entitled “Left to Suffer” in November 2017. That series addressed the problem that “[e]ach year, hundreds of Minnesotans are beaten, sexually assaulted or robbed in senior care homes. Their cases are seldom investigated, leaving families in the dark.”2

Additionally, in March 2018, the Office of the Legislative Auditor (OLA) issued a lengthy report, concluding that “OFHC has not met its responsibilities to protect vulnerable adults in Minnesota” based upon poor internal operations and the then-present complex regulatory scheme.3 Complaints to the MDH/OHFC increased from 19,054 in 2015 to 22,581 in 2016, including reports from individuals and from providers. During FY 2017, the MDH was unable to timely process the complaints it received. Although Minnesota law states that vulnerable adult investigations “shall” be completed within 60 days (Minn. Stat. § 626.557, subd. 9c(e)), OLA found it took, on average, 140 days for OHFC to complete the investigations in 2017. Only 12 percent of complaints that year were completed within the 60-day requirement.

In late 2017, the MDH partnered with the Minnesota Department of Human Services (DHS) in an effort to address OHFC’s significant performance shortfalls. On August 8, 2018, the MDH announced that it had cleared the backlog of maltreatment cases, which included 2,321 reports that had not been triaged and 826 triaged cases that had not yet been investigated. 

Despite claimed improvements in performance, the average time to completion of the investigation is still well beyond the statutory 60-day time period: in December 2019 average days to close was 143 and in January 2020 the average was 162 days. At the same time, the number of “substantiated” reports has increased to some 30 percent in 2018, as compared with the 16 percent in 2012. The MDH reports that in January 2020, OHFC substantiated 55 of 135 investigated complaints, with 6 investigations being inconclusive and 74 being unsubstantiated.4

This article addresses the importance of MDH investigations and how to use these investigations to protect your client’s interests.

Who Performs Vulnerable Adult Investigations?

The MDH licenses and regulates nursing homes pursuant to Minnesota Rules, Chapter 4658. Likewise, the MDH licenses and regulates facilities commonly known as “assisted living facilities.” The MDH not only licenses these facilities, it is responsible for overseeing the operation, safety, and quality of care in Minnesota’s nursing homes and assisted living facilities. These responsibilities include investigating concerns about neglect and abuse of the vulnerable adults who depend on caregivers to keep them safe. 

A vulnerable adult in Minnesota is generally anyone who is over the age of 18 and “possesses a physical or mental infirmity or other physical, mental, or emotional dysfunction” impairing the person’s ability to adequately provide for their own care without assistance.5 The same MDH investigation process applies for all vulnerable adults, including those who are elderly.

The Legislature recently changed the legal structure for licensing assisted living facilities. For the first time, the MDH will issue licenses for assisted living facilities starting August 1, 2021.6

What Are Vulnerable Adult Investigations?

The Minnesota Vulnerable Adults Act contains explicit instructions about the investigation of complaints involving abuse, maltreatment, and financial exploitation.7 The statute describes whether the data gathered during the investigation is to be maintained as public or private as those categories are defined in the Minnesota Government Data Practices Act (“Data Practices Act”).8

The MDH is mandated to investigate situations involving suspected maltreatment of a vulnerable adult.9 Maltreatment can be abuse, neglect, or financial exploitation. These words are defined by statute, but “abuse” generally involves involuntary servitude or physical, emotional, mental, or sexual abuse. “Neglect” generally involves a failure to provide for basic needs of the vulnerable adult. And “financial exploitation” can be by a person with a fiduciary or non-fiduciary relationship with the vulnerable adult. 

The MDH can reach one of four conclusions when investigating a report of maltreatment: (1) substantiated, (2) inconclusive, (3) false, or (4) no determination will be made.10 The MDH’s findings and conclusions are set forth in a written Adult Maltreatment Report. The public report does not disclose the identities of the persons associated with the investigation.11

After the MDH releases its investigation report, an interested person or entity has only 15 days to submit a request for reconsideration in writing.12 This small window gives a limited amount of time to address any concerns with the regulatory investigation. The regulatory action is not, necessarily, the final action taken to address the concerns resulting in the report being made. Civil litigation can follow the administrative investigation, pursuant to Minn. Stat. § 256.045, subd. 7.

What about Witness Interviews?

When the MDH investigates a nursing home, state law13 requires it to: 

(1) interview the alleged victim;
(2) interview the reporter and others who may have relevant information;
(3) interview the alleged perpetrator;
(4) examine the environment surrounding the alleged incident;
(5) review pertinent documentation of the alleged incident; and
(6) consult with professionals.

The MDH audio records the witness interviews when it investigates on behalf of the state. Witnesses are first provided the standard “Tennessen Warning,” which is a statement required under Minnesota law14 to advise witnesses of potential consequences of their decision to speak with the investigator. Specifically, witnesses are told: 

It is the practice of this Office to record all interviews. Information that you provide may be used in an investigative report. Some of the information may be private data and can only be made available to the Offices of Health Facility Complaints, the Commissioner of Health, and, in some cases, law enforcement, the Attorney General’s office, health licensing boards and to the Nurse Aide Registry and/or to the Minnesota Department of Human Services. It is possible that your identity might be revealed to persons participating in a hearing if a determination should result in a hearing. You have the right to decline the interview. 

Minnesota law requires the MDH to maintain the data it acquires in its investigations, including the witness interview recordings.15

These recorded interviews can be very important to any future litigation and can be requested from the MDH, with the party seeking the discovery paying for transcription by a third-party provider. Even after paying the third-party vendor to transcribe the witness statements, the MDH occasionally refuses to produce them, or may redact them to hide the identity of the witnesses and other persons associated with the investigation.

DISCOVERY AND LITIGATION FACTORS

Can Unredacted Investigation Records Be Obtained? 

Although the redacted statements are helpful, they are incomplete and not the best evidence for litigation. Therefore, a subpoena on the MDH, pursuant to Rule 45 of the Minnesota Rules of Civil Procedure (“Rule ___”), to produce the unredacted records important to a client’s case may be necessary. These records could include witness interview transcripts, the audio recordings of the interviews, and the Private Identifier key (which identifies the individuals referenced in the public MDH investigative report). The MDH must then either comply with the subpoena or serve objections pursuant to Rule 45.03(b)(3). If the MDH fails to respond, it would be necessary to file a motion to compel the MDH’s compliance with the subpoena. 

A motion to compel is pursuant to the Data Practices Act. That act sets forth a two-pronged test for courts to use when determining whether to release data. First, the court must determine if the information is otherwise “discoverable” (i.e., relevant) under the rules of evidence and of civil procedure.16 Second, if the data is discoverable, the court “shall decide whether the benefit to the party seeking access to the data outweighs any harm to the confidentiality interests of the entity maintaining the data, or of any person who has provided the data or who is the subject of the data, or to the privacy interest of an individual identified in the data.”17 To address this requirement, the court must first order the MDH to produce the documents to the court confidentially and then, following an in camera review, the court must order the MDH to disclose all information that meets the two-pronged requirement.18

Prong No. 1: Is This Evidence Discoverable? 

The evidence contained in the MDH investigation file is discoverable under Rule 26.02(a), which allows parties to obtain discovery regarding any matter, not privileged, that is relevant to a claim or defense of any party. The information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.

The requested MDH evidence is relevant when the MDH investigation materials concern the same incident forming the basis of a plaintiff’s civil complaint. The requested MDH evidence is essential to the plaintiff’s proper investigation, discovery efforts, and the accurate presentation of the evidence in the trial of this case. As the Hon. George F. McGunnigle found regarding a request for such information:

Allowing the plaintiff access to the uncensored documents will: 1) avoid any unwarranted informational advantage to the defendants gained by the defendants’ extensive involvement in the MDH investigation and Fair Healing; 2) allow the plaintiff a fair opportunity to evaluate potential witnesses (the documents contain the identities and knowledge of fact witnesses who can speak directly to the core issues of the present litigation; and 3) allow all parties and the Court to evaluate witnesses’ prior statements and testimony for purposes of impeachment.19

Judge McGunnigle reached this conclusion after reviewing the MDH investigation file in camera inspection of the MDH investigation file, and he ordered production of the MDH investigation to the plaintiff in that nursing home litigation case.

In addition to the uncensored transcripts, copies of the actual audio recordings of the witness interviews may also be sought. Production of an accurate copy of the audio recordings allows all parties the ability to verify the accuracy of the transcripts and investigative report and allows jurors to listen to the primary source of evidence gathered shortly after the alleged neglect was reported to government authorities.

Prong No. 2: Are the Competing Interests Balanced?

Under the second prong of the Data Practices Act, the court must consider if the benefit to the injured vulnerable adult outweighs any harm to the confidentiality interests of the MDH or individuals identified in the report. As Judge McGunnigle found in Kaliher, release of nonpublic data poses no threat of complication to a prior MDH investigation since the MDH investigation is generally closed at the time of the later request. And, because a person being interviewed is given the Tennessen Warning prior to being interviewed, that person is on notice that their identity may be revealed and may be shared with the Attorney General’s Office, as well as licensing boards. The disclosure of witness identities in any subsequent civil litigation is not likely to be found as chilling as the initial admonition that a witness’s career could be jeopardized as a result of talking to the MDH investigator. As the Hon. John L. Holahan found:

[P]arties involved in the [liability] incident . . . and in the events surrounding that incident were given adequate warning of possible release of their names and other identifying information through Tennessen Warnings given at the time of the investigation and no further notice is warranted.20

Like Judge McGunnigle, Judge Holahan also ordered the MDH to produce its investigation following an in camera review.

Further, even if the witnesses could be independently identified, the potential for prior inconsistent statements warrants discovery of such evidence, as the Minnesota Supreme Court long ago explained:

Not only may impeaching testimony be the subject of impeachment itself, but in this case the information which plaintiff seeks bears on the fundamental issue of the nature and extent of the injuries which [the plaintiff] sustained in this accident. She is entitled to know what evidence defendant will produce on this issue in view of his denial that her condition is serious or is attributable to this accident.21

Is a Protective Order Necessary? 

If the court finds any confidentiality concern associated with disclosing the requested data, the court “may fashion and issue any protective orders necessary to assure proper handling of the data by the parties.”22 The following language is typical of the protective orders in these cases: “The parties shall use the documents produced in response to this order only for purposes of the litigation that is the subject of this lawsuit. At the conclusion of the litigation, including any appeal, the parties shall destroy all documents produced in response to this order.” 

Are Vulnerable Investigations Admissible in a Civil Action?

When the MDH substantiates a finding of maltreatment, vulnerable investigations are admissible in a civil action. Pursuant to Minn. Stat. § 626.5573, “[a] violation of sections 626.557 to 626.5572 shall be admissible as evidence of negligence” in a civil negligence action. (Emphasis added.) In addition, the MDH’s legally authorized investigative report may be admissible pursuant to Rule 803(8), as an exception to the hearsay rule for public records and reports, “[u]nless the sources of information or other circumstances indicate lack of trustworthiness[.]” Agency findings are admissible based on this hearsay exception.23

If a party opposes the admission of the MDH investigation, it has the burden to prove the report’s untrustworthiness.24

What Effect Does Civil Litigation Have on the Facility’s Ability to Appeal the Investigation Outcome?

When OHFC substantiates maltreatment against a facility or caregiver, the facility or caregiver can seek administrative reconsideration within 15 days. If dissatisfied with the MDH response to a request for reconsideration, the facility or caregiver can then continue with an appeal pursuant to Minn. Stat. § 256.045, subd. 3(a)(4). But, the facility or individual can only do so 

. . . when there is no district court action pending. If such action is filed in district court while an administrative review is pending that arises out of some or all of the events or circumstances on which the appeal is based, the administrative review must be suspended until the judicial actions are completed. If the district court proceedings are completed, dismissed, or overturned, the matter may be considered in an administrative hearing.25

What Interest Does the Federal Government Have in the State’s Vulnerable Adult Investigations?

Most nursing homes participate in the Medicare/Medicaid program, which requires them to comply with federal nursing home regulations to qualify for federal reimbursement.26 As such, the federal government may claim an interest in the state investigation. In a recent case, when the MDH was asked to produce its unredacted investigation records in accordance with the Data Practices Act, the U. S. Department of Human Services intervened and removed the matter to federal court. The federal government argued federal law preempts disclosure under state law, claiming: (1) the state investigator was essentially a “federal” employee; (2) the witness interviews were conducted by the investigator as part of a federal investigation; (3) the state health department does not have authority to disclose evidence from a federal investigation; and, therefore, (4) the state court does not have authority to order the state health department to disclose this witness evidence. Donovan Frank, a U.S. district court judge, rejected the federal government’s argument and denied its motion to quash the state subpoena against the MDH.27 Judge Frank found: 

Because the Court finds that the subpoenaed documents are not subject to federal law, removal was improper. While DHHS [U.S. Department of Health and Human Services] contends that MDH was acting under the Secretary of DHHS pursuant to Section 1864 of the [Social Security Act] and the corresponding Agreement, this ignores the nature of the joint investigation. Although it is true that MDH was in part acting under the Secretary of DHHS with respect to determining whether [the nursing home] was in compliance with federal regulations, MDH was also acting independently pursuant to the Minnesota Vulnerable Adults Act, and its own licensing requirements . . . [T]he Court finds that [the plaintiff’s] request for the Minnesota records should have been processed pursuant to the [Data Practices Act].28

The federal government initially appealed Judge Frank’s order but then withdrew its appeal. The matter has been remanded to the Hennepin County District Court to rule on the motion to compel the MDH’s compliance with the state subpoena. 

Conclusion

Vulnerable adult investigations may provide critical information for cases where victims have been injured in nursing homes and assisted living facilities. Some of the investigations by the MDH are thorough and well-founded. Others may leave people wondering about the result. When the MDH substantiates neglect or abuse of a vulnerable adult, the department’s investigation provides key evidence in support of the injured person’s pursuit of justice in the civil courts against those who caused the harm. And, even if there is no harm found by the MDH, there may still be relief available through a civil suit.

 

 

Joel E. Smith is active in the Minnesota Association for Justice (MAJ, formerly known as the Minnesota Trial Lawyers Association). He currently serves on MAJ’s Board of Directors. Smith also served on MAJ’s Board of Directors previously (1994-2004) and on its Executive Committee. Smith has served as the Chairperson of MAJ’s Nursing Home Litigation Committee. He is also active in the Minnesota State Bar Association (currently serving on its Governing Council for the Elder Law Section) and has served as the Co-Chairperson for the MSBA’s Vulnerable Adults Committee. Smith is a Leadership Forum member of the American Association for Justice (AAJ, formerly known as the Association of Trial Lawyers of America) and is actively involved in AAJ's Nursing Home Litigation Group.

Kara Rahimi is an attorney with the Kosieradzki Smith Law Firm. She graduated cum laude from Hamline University School of Law in 2008 where she served as an associate editor on the law review. Rahimi is licensed to practice law in Minnesota as well as the United States District Court for the District of Minnesota. She is a member of the Minnesota State Bar Association, the Minnesota Association of Justice (formerly known as the Minnesota Trial Lawyers Association), the American Association of Justice (AAJ, formerly known as the Association of Trial Lawyers of America), and is a member of AAJ’s Nursing Home Litigation Committee.


Notes

1  https://www.health.state.mn.us/facilities/regulation/ohfc/docs/ohfcrfi18.pdf (accessed March 1, 2020).

2  http://www.startribune.com/senior-home-residents-are-abused-and-ignored-across-minnesota/450623913/.

3  https://www.auditor.leg.state.mn.us/ped/pedrep/ohfc.pdf (accessed March 9, 2020). The OFHC investigates claims of abuse, neglect, and financial exploitation. But it is also charged with investigating licensing complaints of the various providers.

4  According to the MDH’s online “Vulnerable Adult Protection Dashboard,” https://www.health.state.mn.us/facilities/regulation/dashboard.html (accessed March 12, 2020).

5  Minn. Stat. § 626.5572, subd. 21.

6  Minn. Stat. §§ 144G.08 – 144G.9999 (2019).

7  Minn. Stat. § 626.557, subd. 10b.

8  Minn. Stat. § 626.557, subd. 12b.

9  Minn. Stat. § 626.557, subd. 9b.

10  Minn. Stat. § 626.5572, subd. 8.

11  Minn. Stat. § 626.557, subd. 12b(b)(2).

12  Minn. Stat. § 626.557, subd. 9d.

13  Minn. Stat. § 626.557, subd. 10b.

14  Minn. Stat. § 13.04.

15  Minn. Stat. § 626.557, subd. 12b.

16  Minn. Stat. § 13.03, subd. 6; Northern Inns Ltd. v. County of Beltrami, 524 N.W.2d 721, 722 (Minn. 1994).

17  Minn. Stat. § 13.03, subd. 6.

18  State v. Renneke, 563 N.W.2d 335, 338 (Minn. Ct. App. 1997), abrogated on other grounds by State v. Underdahl, 767 N.W.2d 677 (Minn. 2009).

19  Kaliher v. Augustana Chapel View Homes, Inc., et al., Order, Minnesota District Court (Hennepin County), file no. 27-CV-06-17824, filed May 1, 2007.

20  Abrahamson v. Sholom Home West, Inc., et al., Order, at 4, Minnesota District Court (Hennepin County), file no. 27-CV-06-19305, filed 26, 2007.

21  Boldt v. Sanders, 111 N.W.2d 225, 228 (Minn. 1961).

22  Minn. Stat. § 13.03, subd. 6.

23  See, e.g., Chandler v. Roudbush, 425 U.S. 840, 864-64[864-?] (1976) (“Prior administrative findings made with respect to an employment discrimination claim may, of course, be admitted as evidence of a federal-sector trial de novo.”); Basset v. City of Minneapolis, 211 F.3d 1097, 1103, n. 12 (8th Cir. 2000) (the Department of Human Rights’ finding of probable cause was admissible evidence regarding issues of retaliation and intentional discrimination); Johnson v. Yellow Freight Sys., Inc., 734 F.2d 1304, 1309 (8th Cir. 1984).

24  Kehm v. Procter & Gamble Manufacturing Co., 724 F.2d 613, 618-9 (8th Cir. 1983) citing Baker v. Elcona Homes Corp., 588 F.2d 551, 558 (6th Cir. 1970), cert. denied, 411 U.S. 933, 99 S. Ct. 2054, 60 L.Ed.2d 661 (1979). See also Amtrust, Inc. v. Larson, 388 F.3d 594, 599 (8th Cir. 2004) (in an action to foreclose a mortgage, the party opposing a Notice of Abandonment that had been prepared by a bankruptcy trustee in another matter had the burden of establishing the Notice as untrustworthy under Rule 803(8); the court also determined that evidence that contradicts “information contained in the Notice ... address[es] the weight to be given the Notice, rather than its admissibility.”).

25  Minn. Stat. § 256.045, subd. 3(b) (emphasis added).

26  42 C.F.R. § 483 (2017).

27  In re Motion to Compel Compliance with Subpoena Directed to the Minnesota Department of Health, Pivec v. All Temporaries Midwest, Inc., et al., Memorandum Opinion and Order, Case No. 19-mc-35 (DWF/BRT), Doc. 31, filed Oct. 4, 2019.