August 18, 2020 Moonshine Minutes

Illegal dementia discharge

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Transcript

Part 1: (Alex)

Around 7 a.m. on the morning of April 20, Charles Borden, known as Bill by friends and family, was upset.

He’d left the room he shared with his wife, Beverly, at the Tahoe Forest Health System’s long-term care center to fill two cups of water. When he came back, two certified nursing assistants were helping his wife get out of her bed and into her wheelchair.

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Bill expressed his agitation through curse words, set down the water cups, and elbowed one of the CNAs in the back.

Today’s Moonshine Minutes cover an alarming situation actively taking place at Tahoe Forest Hospital. I’m Alex Hoeft, news reporter for Moonshine Ink, and co-author for this piece..

It wasn’t Bill Borden’s first outburst in 24 hours. The previous day, Bill, who’s diagnosed with dementia, had been alone in the care center’s dining room with another resident when he’d struck her in the back.

The two incidents were seemingly the last straw for the care facility. Later that morning of April 20, the decision was made to transfer Bill to the Tahoe Forest Hospital emergency room for evaluation, citing welfare and needs that couldn’t be met at the facility and concern for the safety of individuals on site.

It’s now been nearly four months since the Bordens, married for 55 years and reportedly rarely apart, have seen each other. The Bordens ask for each other every day, able to connect via FaceTime, but nothing more.

Fighting for their unification is their son Jon Borden, who’s poured his time and energy into asking, begging, and then legally demanding his father be allowed to return to Beverly’s side.

But the hospital district administration just won’t budge, continuing to express its concern for the safety of staff and residents alike. However, TFHS’s refusal goes against what multiple state agencies have ruled: that the hospital did not follow protocol in either transferring Bill nor allowing him to return to the care facility, and that he should legally and rightfully be reunited with his wife until proper steps can be taken.

The situation has floored even those who are so often in the midst of and defending rights for nursing home residents. Mike Dark, staff attorney with California Advocates for Nursing Home Reform, told Moonshine that Bill’s case is “among the worst I have ever seen. And that is partly because it involves a married couple that were living together, spending their last time together in a facility. We had the facility go so far as to accuse Mr. Borden, a man with dementia, of posing an unlawful danger of violence, which is a terribly cruel thing to do even if it’s part of a legal strategy they have. I don’t understand as human beings why they thought that was okay.”

After Bill was looked over by emergency room staff and then denied readmittance to the care facility — information that was shared with his son Jon, Kathy Freeman, Nevada County volunteer ombudsman, stepped in.

“He called and he asked a very good question: He said, do I need to get an attorney?” Freeman recalled. “I said, you know, I think you do.”

Part 2: (Becca)

It’s not that the facility wanting Bill out of their care was illegal — there are multiple state laws and regulations protecting residents from illegal eviction; rather, the manner in which administrative staff went about attempting to discharge him is what resulted in a state citation and continuing civic penalties since July 16 and until Bill is readmitted to the care facility. And at least for the time being, with the type of care Bill needs and most nursing homes not accepting new patients in the pandemic, Bill remains in the emergency room rather than a shelter.

I’m Becca Loux, associate editor for Moonshine Ink.

Both the California Department of Public Health and the Department of Health Care Services ruled that TFHS violated the bed-hold policy that requires notification of a resident’s bed being held for seven days after a transfer or therapeutic leave; the return policy that allows a resident to return to their bed after a transfer or leave; and a violation of the discharge planning process.

Information presented in this reporting came from state agency and court rulings, as well as interviews with those involved. Despite publicly available documentation on the case, which includes the names of individuals involved, TFHS declined to comment on the situation, pointing to the pending litigation, the Health Insurance Portability and Accountability Act of 1996 (more commonly known as HIPAA), California Medical Information Act, and confidentiality for this case specifically.

As power of attorney for both his parents, Jon Borden gave permission for the hospital to co nmment on the situation based on what was already publicly available, but the hospital maintained its silence.

Paige Thomason, marketing and communications director for the health system, wrote in an email: “We do understand that sometimes community members or their representatives will contact local media to attempt to create pressure to influence a certain outcome. [TFHS] is committed to ensuring optimal safety for all of our patients and team members, including those involved in this inquiry.”

Thomason further explained that because the health system can’t provide direct comments regarding the case, “the community should understand our legal and ethical restrictions and our responsibility to protect the privacy and personal circumstances of all of our patients.”

Part 3: (Alex)

Bill Borden’s proximity to both the CNA he elbowed and the resident he struck could’ve been avoided.

In fact, based on a care plan created March 4 of this year, neither of the women should’ve been anywhere near him.

As an ombudsman, Kathy Freeman’s role is a semi-neutral one: while she advocates for residents at long-term care facilities throughout Nevada County, she also utilizes mediation tactics to work with care center staff.

Freeman said: “We were very aware of the concerns the facility had and we were trying to work with the facility [regarding Bill]. I especially was interested in trying to find a path that would bring both the facility and the family together, and I thought we had that up until March. I really thought we were working with the facility and coming up with a care plan that would work.”

Leading up to the March meeting, the care facility had implemented numerous interventions to help Bill feel more comfortable. These methods included adjusting medication, evaluating his psychiatric state, and refocusing him to positive behaviors.

During the care plan conference, it was recognized by all the parties, Jon said, that his father had two triggers when it came to his violent outbursts: the specific CNA and resident. 

Jon Borden told us the game plan was to minimize interactions with trigger situations or people. “We all agreed … It wasn’t me talking — it was during a care conference meeting which Dr. Paul was present; Maggie [Link, director of the skilled nursing facility] was present; Todd Johnson, the risk manager, was present; Laura Murtha, the supervisor, was present; Kathy [Freeman], the ombudsman. It was a group of educated, hands-on people, and Maggie should’ve walked out the door and gave her marching orders to her staff. And nothing really happened.”

Multiple certified nursing assistants interviewed by the Department of Public Health confirmed that they weren’t informed of the care plan.

On April 20, Freeman notified her program manager, Sergio Landeros, and her office of the alarming situation unfolding, that Bill had been barred from returning to the long-term care facility without proper protocol being followed. She also cross-reported the unfolding circumstances to the state department of health on April 21. The ombudsman program HQ, realizing the unlawfulness of the situation, reached out to California Advocates for Nursing Home Reform (also known as CANHR), a frequent partner for legal support.

By April 22, CANHR’s Mike Dark, officially representing Bill, had also requested an investigation with the Department of Health Care Services.

A DHCS hearing was held on May 5, and by May 15 the agency had issued the decision that Bill be readmitted to the long-term care facility. According to Jon’s declaration to the Nevada County superior court, three days later, Karen Baffone, chief nursing officer for the hospital, called Jon and told him his father would not be readmitted, despite the DHCS decision.

On June 9, the department of public health  issued its own findings in the form of a statement of deficiencies, which lists out state violations committed by the health facility and requires a plan of correction for each violation in return.

In an Aug. 3 email, Olivia Tucker, an attorney with the agency, told Dark the TFHS has not submitted an acceptable corrective plan. In addition to the continuing civil penalty applied each day from July 16 until Bill is readmitted, Tucker explained that the CDPH plans to issue a directed plan of correction, meaning the facility must take constructive action within certain timeframes.

Part 4: (Becca)

On June 23, the hospital doubled down on its refusal to readmit Bill by filing a petition for a workplace violence restraining order with the superior court in Nevada County — an attempt to protect its care staff from further aggression by Bill. This petition came after both the CDPH and the DHCS issued their decisions. The temporary restraining order (or TRO) was granted on June 24, with a hearing set for July 13.

Mike Dark told us: “These restraining orders, it’s like a kind of person who shows up with a gun at work, the kind of person who punches out a secretary working in a corporate office. They brought that kind of petition for workplace violence against an 80-year-old man with dementia who couldn’t lift a half gallon of milk because they so couldn’t bear being forced legally to readmit him and bring him back to his wife, even if only for long enough for the family to try to find another place to go once the pandemic had passed.”

He saw the TRO as another attempt at barring Bill from the long-term care facility; a proactive move, as Dark described it, by the hospital to prevent the enforcement of the CDHCS and CDPH orders.

On July 15, Judge Angela Bradrick ruled that, while recognizing that TFHS’s claims that it no longer has “the capacity to treat someone with [Bill’s] behavior problems,” the appropriate procedure to remove Borden from the care facility was not followed. Additionally, “the court finds that [Bill’s] medical condition (dementia) explains and/or excuses his unlawful violence.”

The temporary restraining order was immediately dissolved with the judge’s ruling.

Part 5: (Alex)

The transfer of Bill to the emergency room followed by a refusal of readmittance to the long-term care facility is actually a common tactic countrywide. Formally, it’s known as an illegal discharge; casually, it’s been called patient dumping.

Dark said: “What this really comes down to is the fact that there’s lots of incentives for nursing homes to want to get rid of certain patients who are difficult, patients who are emotional, who cry a lot, who ask for lots of attention.” 

But the most troubling type of patient dumping, he continued, happens to those often with behavioral problems at nursing homes who are sent to an emergency room for something. 

Once the patient is out the door, the facility refuses to readmit him or her.

Dark says this refusal of readmission is so common that laws have actually been put in place to try to prevent it. One of these laws involves a seven-day bed-hold — basically, the facility must keep the patient’s bed open for seven days, inform the resident and/or representative of this hold, and readmit the resident if wanted.

Part 6: (Becca)

Another reason long-term care facilities might look to oust patients is financial. Like many facilities, TFHS is certified to accept Medicare and Medi-Cal as forms of coverage. But there’s a history preceding the back end of this coverage, said Sergio Landeros, who oversees ombudsmen across seven California counties.

“Nursing homes were designed to be a temporary place. It wasn’t designed for you to be there the remainder of your life. But as the aging population is growing and as more and more older adults are being placed long term in a nursing home because they need 24-hour care, there is such thing as a long-term care service.”

Medicare serves as a federal health insurance program for those over 65. Medical bills are covered through the trust funds of those who’ve paid into them. Medi-Cal, essentially California’s version of Medicaid, steps in as an assistance program for low-income individuals or those whose Medicare funds have run out. The asterisk in many long-term care facilities is that Medi-Cal does not pay the same amount as Medicare.

Dark explained it: “Sometimes, especially if patients are on Medi-Cal, they maybe are bringing in $300 a day, whereas if they can get a patient on MediCare, they could be making $1,000 a day … But [Medicare] only lasts for up to 90 days, more frequently 30 days. Nursing homes like Medicare patients because those 30 days are lucrative days. But then at the end of those 30 days, they’re in a bind because they don’t want to keep them.”

Hence, the second common method of patient dumping, continued Landeros: getting rid of Medi-Cal residents because facilities want to have more open beds for Medicare patients who can come in for temporary rehab, then leave after a few weeks.

Both Bill and Beverly are covered through Medi-Cal, having run through their Medicare coverage at a previous facility.

Freeman emphasized that while dementia patients may be difficult, “[nursing facilities] are supposed to provide proper protection of all residents, they’re supposed to provide proper supervision. If that involves a specialized staffing that’s one of the things that they’re to provide. Most importantly, though, the home itself — and I’m talking generically here — any nursing facility should be able to have people who are trained in dementia care.”

Part 7: (Alex)

No one who spoke with Moonshine could put their finger on exactly why the hospital is disregarding state decisions and dealing with daily fines to prevent Bill from returning to the facility. But they have their ideas.

Dark questioned whether the motive could be financial, or if there are political concerns at play.

The events that have taken place since April 20 resulted in an about-face in what was a decent relationship between Jon and the hospital. During the early stages of the coronavirus pandemic hitting Truckee, Jon says he received a call from Ted Owens, executive director over governance and business development.

As a backup plan for a potential COVID-19 case surge and spill-over into the hospital’s long-term care facility, Owens allegedly asked Jon (who owns the Truckee Donner Lodge and the Inn at Truckee) if the hospital might place its facility residents in Jon’s lodging, and Jon agreed.

“I had memorandums of understanding with the hospital,” he said. “Fast forward a week later, this shit happened with my dad and they [went from] my ally to my biggest enemy in one phone call.”

Part 8: (Becca)

COVID-19’s presence has put a freeze on the transfer of residents to new long-term care facilities, which is why Bill has remained in the hospital. But once restrictions lift, Jon says he can’t wait to move his parents out of TFHS: “I trust the hospital as far as I can throw them.”

A week shy of Bill’s four-month mark of separation from Beverly, and he’s had zero incidents or outbursts, according to Jon.

Because the situation is still ongoing, Dark explained that he and Jon have to walk a careful line.

“The family’s really terribly angry at what the district did, but we’re so dependent on them doing the right thing, too,” he said. “What we want most of all, whatever our anger, is for Bill and Bevrerly to be reunited … This is a family that has really been split in a terrible time of crisis and even if it’s just for a few months, even if [the health system] continue[s] to pursue their other legal avenues, I sure hope they do the right thing.”

Read the full story in more detail at moonshineink.com, titled Dementia Discharge.

Interested in hearing more stories like this from an independent news source? Become a Moonshine Ink Member today! More information on how to do so is on our website.

Until tomorrow, everyone.

 

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