Perhaps the Maltreatment Sky is Not Falling, After All

April 5, 2017

By Sam Orbovich & Katherine B. Ilten

Recent news reports, fueled by official maltreatment intake statistics, have left the public concerned that thousands of Vulnerable Adult Act (VAA) mandated maltreatment reports are going uninvestigated without good reason. Some observers use these statistics to criticize the hardworking caregivers employed at skilled nursing facilities, assisted living facilities, group homes for persons with disabilities and home health providers. Still others use them to characterize the primary lead investigatory agencies—the Minnesota Department of Health Office of Health Facility Complaints (OHFC) and the Office of Inspector General at the Department of Human Services (DHS)—as ineffective and languid bureaucrats.

These intake statistics may not be reliable indicators of a broken maltreatment protection system. The reported increase in uninvestigated maltreatment reports is largely attributable to a change in how mandated reporters are now directed to contact the state, and not to an upsurge in poor quality care or lackadaisical lead agencies.

In 1992, in an effort to revamp the VAA, Attorney General Skip Humphrey assembled the VAA Working Group. The group began identifying what changes were necessary. Many members assumed the best approach would be to funnel all mandated reports into a single, state-wide telephone bank run by one of the two primary VAA lead agencies, the OHFC or the DHS.

The group members who rejected that single-point-of-contact idea were officials from several Minnesota counties. In 1992, counties were already used as the first call for help in many maltreatment situations. That “first call” status stemmed from the fact that Minnesota relied on its counties for Adult Protection, to deploy local law enforcement, or to inspect many of the DHS-licensed waiver programs. As one county representative emphasized during a Working Group meeting, “I am here to tell you…” a single contact point at the state would not work as well as allowing each individual county to triage the maltreatment reports arising within its borders. They reasoned if each county could operate and control its own common entry point it could screen the reports of actual maltreatment from those calls complaining about minor matters of little consequence.

The counties won that argument, and by 1994 the updated VAA required that all mandated reporters file maltreatment reports by telephone to each county’s Common Entry Point (CEP). The duties of a county CEP included that it “must screen the reports of alleged or suspected maltreatment for immediate risk…” and “must refer calls that do not allege abuse, neglect or exploitation” elsewhere to resolve “the reporter’s concerns.”

Any person who has ever contacted a bank, a cable television company or an insurance company knows there is a big difference between an automated computer-generated contact and a real person on the other end of the phone. From 1994 until recently, the first VAA reports telephoned by mandated reporters enabled county intake staffers (who were trained to screen abuse, neglect, financial exploitation or accident) to have a meaningful conversation with the reporter. The counties performed their live screening function well and acted as a real-time filter, redirecting less important complaints from the lead agencies elsewhere.

This first-filter screening function by counties became even more important when the Legislature added more categories of incidents that did not fall to the level of maltreatment, including a caregiver’s therapeutic error with, or without, injury.

Due to changes prompted by DHS and OHFC, the State of Minnesota dropped the counties’ 87 common entry points and replaced them with the new Minnesota Adult Abuse Reporting Center (MAARC) online intake system. It will come as no surprise to the thousands of mandated reporters throughout the state that when all county telephone calls converted to MAARC clicks, Minnesota lost its first-tier triage function.

Instead of calling a real live person at the county level who would perform the important screening function of separating potential maltreatment from inconsequential matters, now providers and the public are directed to complete an online form with the MAARC requested information, and click “send.” Once sent, that contact is now—apparently—forever characterized as a “maltreatment” report, thereby jolting the state’s intake statistics to far greater numbers than what the former real CEP screening operators yielded. To make matters worse, the MAARC website does not allow reporters to self-categorize their reports as “therapeutic error with injury,” suspected accidents, or just plain uncertain. Everything arriving at MAARC’s door is seen as potential maltreatment.

Since all mandated reporters face disqualification from their career or criminal prosecution for intentionally not reporting maltreatment, it was not uncommon for reporters to “play it safe,” and call in a questionable incident, only to learn that the county CEP concluded the report was appreciated, but unnecessary.

For those who may be using these statistics to criticize the maltreatment prevention efforts of OHFC or DHS, that criticism may be misplaced. In fact, both OHFC and DHS aggressively pursue potential maltreatment reports, not only by issuing Public Reports and licensing sanctions, but also by opposing contested case appeals, fair hearings and IIDRs filed by licensed providers contesting those determinations or related sanctions. If anything, our office has seen far too many situations where OHFC or DHS construe the facts incorrectly, and pursue maltreatment where there was none.

What Can Licensed Providers Do?

Although there is no new “maltreatment crisis,” as recent news stories suggest, licensed providers should take the following proactive steps in light of the increased media attention:

  • Remind staff of their mandatory reporting duties;
  • Review facility maltreatment reporting policies;
  • Re-orient staff to the VAA definitions for neglect, abuse, therapeutic error with injury and therapeutic error without injury; and
  • Recognize the risks of failing to contest unwarranted allegations of maltreatment or failure to report.

Sam Orbovich served as an active member of Attorney General Skip Humphrey’s Working Group from 1992-1994. For more information on Minnesota’s maltreatment intake statistics, contact Sam Orbovich or Katie Ilten.