BY ALEX HOEFT AND MAYUMI ELEGADO | Moonshine Ink
Editor’s note, Sept. 23: Following decisions made by the California Department of Public Health and Department of Health Care Services on the violation of multiple resident policies, the Centers for Medicare and Medicaid Services (CMS) has issued its own findings, as well as an imposition of remedies.
The following penalties have been imposed on Tahoe Forest Hospital:
- A civil penalty of $225 per day since April 22 (the entry date of the CDPH survey) and continuing until CMS deems appropriate. Through Sept. 23, that total amounts to $34,875.
- Denial of Medicare payments for new admissions, effective Sept. 8.
- Withdrawal of nurse aide training and competency evaluation programs. Current classes may continue until finished, but new classes are not allowed to commence.
In a Sept. 15 e-notice addressed to Harry Weis, president and CEO of Tahoe Forest Hospital, CMS required an acceptable plan of correction for the recognized deficiencies by Friday, Sept. 25. Without an approved plan and allegation of compliance, CMS can terminate the hospital’s Medicare and Medicaid participation.
The notice stated, in part: “If such substantial compliance is not achieved and maintained, you will be informed by future notice of the exact date of termination. You are reminded that Congress has mandated that under no circumstances will termination of a facility be effective later than six months from the last day of the survey documenting the facility’s failure to be in substantial compliance … In this case, since the survey in question was completed on June 8, 2020, under no circumstances will the termination be effective later than Dec. 8, 2020. It is emphasized, however, that the termination date may be implemented sooner (after proper notice).”
The hospital or its legal representative is allowed to appeal the imposition, and may request a hearing before the U.S. Department of Health and Human Services (which houses CMS).
Alternatively, the hospital can waive its right to a challenging hearing and accept CMS’s determination of TFH not being in compliance for the surveys conducted on June 8 by California public health and on Sept. 11 by CMS. Such acceptance would reduce the civil money penalty by 35%.
Moonshine Ink reached out to the hospital and its board for comment, and received the following from Board Chairwoman Alyce Wong: “On behalf of the board of directors of the Tahoe Forest Health System, we cannot comment on this inquiry as it is a pending legal matter, nor would we comment on any patient care publicly. The board has been apprised of the situation and continues to support the health and safety of all patients, residents and employees.”
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, one named Guadalupe “Lupe” Muñoz, were helping his wife get out of her bed and into her wheelchair.
Bill expressed his agitation through curse words, set down the water cups, and elbowed Muñoz in the back.
It wasn’t his 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 named Cathy when he’d struck her in the back.
The two incidents were seemingly the last straw for the care facility. Maggie Link, director of the skilled nursing facility, made the decision on the morning of April 20 to transfer Bill to the Tahoe Forest Hospital emergency room for evaluation. Bill’s doctor, Gregg Paul, backed up the decision, which stated Borden’s welfare and needs couldn’t be met at the facility and cited 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.
Physically, they’re not far from one another — a few hundred feet or so of walls, windows, and the TFHS’s willpower separate the two. Bill waits in the medical/surgery unit at the hospital while Beverly remains in the first-floor room they shared for two and a half years, located on the south end of the hospital campus. 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 (CANHR), told Moonshine his organization sees hundreds, maybe thousands of abuse and neglect cases a year from the nearly 1,300 nursing homes across the state. CANHR is a small organization, and often doesn’t have the time nor resources to help every person who calls.
But Bill’s case is “among the worst I have ever seen,” Dark said. “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.”
She also told Jon to not pick up his father. When he refused to pick Bill up from the ER, Jon received a call from the hospital’s risk manager, Todd Johnson. The following is what Jon told Moonshine was said, and what he declared to the Superior Court of the State of California for Nevada County:
“Jon,” Johnson said over the phone, “you really need to come pick up your dad.”
“I was advised not to.”
“If you don’t come pick him up, he’s going to be sleeping on a plastic chair in the ER.”
Jon said at this point he was crying and couldn’t figure out what to do.
But Johnson wasn’t finished: “Or I can discharge him to the homeless shelter.”
TFHS: Mum’s the word
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.
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.
Additionally, the CDPH pointed to the failure of implementing a care plan which resulted in the lack of safety for Cathy, the resident with whom Bill had physical and verbal encounters.
Pursuant to California Health and Safety Code section 1425, the hospital is currently being fined $50 each day until Bill returns to extended care. That cost is in addition to a $2,000 penalty for violating a patient’s rights. These monetary citations are regulated by the CDPH.
Information presented in this article 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 gave permission for the hospital to comment on the situation based on what was already publicly available, but the hospital maintained its silence.
“We do understand that sometimes community members or their representatives will contact local media to attempt to create pressure to influence a certain outcome,” wrote Paige Thomason, marketing and communications director for the health system, in an email. “[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.”
The hospital’s in-house counsel, Matt Mushet, shared a similar statement.
No care for the care plan
Bill’s proximity to both Muñoz and Cathy 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, 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 had met Bill and Beverly at the end of 2019, shortly after she’d begun volunteering in her role. She was thus aware of his past outbursts and attended the care plan conference, meeting Jon there for the first time.
“We were very aware of the concerns the facility had and we were trying to work with the facility [regarding Bill],” Freeman said. “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, as reported in the Cal-DHCS decision. These methods included adjusting medication, evaluating his psychiatric state, and refocusing him to positive behaviors. In February, Bill had been temporarily discharged from the Tahoe Forest Hospital facility and sent to Senior Bridges of Northern Nevada Medical Center for evaluations and medication adjustment. Ultimately it was determined that a change in medication would not change Bill’s behaviors. He was readmitted to the TFH facility on Feb. 12.
During the conference, it was recognized by all the parties, Jon said, that his father had two triggers when it came to his violent outbursts: Muñoz and Cathy. The game plan was to minimize interactions with trigger situations or people.
“We all agreed,” he continued. “… It wasn’t me talking — it was during a care conference meeting which Dr. Paul was present; Maggie [Link] 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.”
In an interview with the CDPH on April 28, Muñoz told the agency representative, “I was never told not to go into [Bill’s] room.” Other certified nursing assistants interviewed confirmed that they also 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 CANHR, a frequent partner for legal support.
By April 22, CANHR’s Dark, officially representing Bill, had also requested an investigation with the CDHCS.
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 CDPH 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.
“As the facility has not had a previous refusal to readmit or transfer discharge violation in the past 12 months, CDPH is unable to treble the state citation penalty,” Tucker wrote. “Moreover, CDPH will alert DHCS so they may exercise their enforcement authority. And CDPH has notified [Centers for Medicare and Medicaid Services] that CDPH has not yet received an acceptable [plan of correction] to address the federal deficiency.
“Finally, CDPH will continue to … treat this situation with the utmost care and seriousness it deserves.”
Dissolved, not resolved
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 Muñoz from further aggression by Bill. This petition came after both the CDPH and the DHCS issued their decisions. The temporary restraining order (TRO) was granted on June 24, with a hearing set for July 13.
“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,” Dark said. “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.
During the restraining order hearing, outside counsel for the hospital, Jon di Cristina, told Judge Angela Bradrick that the hospital intended to appeal the health care services decision. Moonshine was unable to confirm with the hospital whether this has been done.
On July 15, Judge 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.
It’s not you, it’s us
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.
“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,” Dark said, describing patients “who are difficult, patients who are emotional, who cry a lot, who ask for lots of attention.” He said throughout the state, facilities do “things like put a person who’s paralyzed in a wheelchair and park them under an overpass. They will take someone and put them in a homeless shelter. They’ll put them in a motel, they’ll buy them two nights and then they’ll walk away.”
But “maybe the most troubling kind of patient dumping that happens involves people often with behavioral problems, often with dementia, at nursing homes who are sent out to an emergency room for something,” Dark explained. “It can be that they have a UTI and they’re delirious; it could be there was an incident involving staff; it could be they have a slight fever.”
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.
Landeros, who oversees ombudsmen (volunteer or not) across seven California counties, echoed Dark’s comments regarding patient dumping and pointed to facilities commonly invoking section 5150 state code that allows an adult who is experiencing a mental health crisis to be involuntarily detained. It’s used in situations “where you’re having a so-called aggressive resident [you don’t] want to deal with anymore,” he said, “and [you]’re trying to find ways to get rid of the person.”
(Jon speculated that because his father is ambulatory and most other residents are confined to wheelchairs or other walking aids, he’s more of an annoyance to long-term care center staff. “Dr. Paul already told me, if your father wasn’t mobile we’d have no problem with him,” Jon said.)
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, Landeros explained.
“Nursing homes were designed to be a temporary place,” he said. “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.
“Sometimes, especially if patients are on Medi-Cal,” Dark furthered, “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,” she said. “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.”
Additionally, Dark says, hospitals are paid by public money for doing so. “These nursing homes will get 9, 10, 12, $15,000 a month to care for them. So yes they’re expected to deal with it but yes they’re also compensated for it very well.”
Jon isn’t the first person to have TFHS staff eager to push his parent out. Larry Hahn, owner of Coldstream Adventures, said his own mom was a resident at the facility for nearly three years. Hahn pointed to the money aspect as to why his mother was discriminated against (she didn’t have Medicare), as well as her unruliness.
“They were trying to get me to get her out of there and I refused to do it,” Hahn said. “A couple times they had all her luggage and everything on the curb of the care facility when I was supposed to pick her up for a day event.”
Hahn didn’t have the resources to give his mom the care she needed, and because he refused, the hospital administration would allegedly make him feel guilty: “‘You would do this to your mother?’” he said of their comments.
Direct care staff was always kind to his mother, Hahn said. It was the admin staff that dished out the attempts at discharge. Jon, too, pointed to the health system’s administration as the main culprit.
In response to general questions about the long-term care center, not related to specific patients, the hospital also declined to comment.
No more Mr. Nice Guy
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.
“I think it’s because they made a poor decision and, it’s like when you’re going through a legal battle, you can’t show that you’re bleeding so you have to double down on your decisions,” Jon said. “It’s more than doubled.”
Dark questioned whether the motive could be financial, or if there are political concerns at play.
The financial hits so far to the health system could expand if compliance isn’t met or an appeal doesn’t waive the current charges. Landeros said that if a care facility receives multiple citations, the CDPH can actually stop them from receiving more Medicare patients until the actions deemed deficient are corrected.
That would be a bigger blow than the citations the hospital is currently dealing with, which are often, as Landeros stated, more like a “slap on the wrist” to health facilities.
“That’s just my vision of it,” he said. “Some facilities will comply and fix the issue. In this case, if the facility took back the resident and promised to solve it right … But most cases the facility will just take a citation and try to go on with their business and things like that.”
A class action lawsuit filed against the California Department of Health and Human Services is demanding state agencies to better enforce hearing decisions. Matt Borden (no relation) is an attorney involved with the case who included Bill’s situation as part of his case. Moonshine reached out to Matt for comment, but did not receive a response.
Jon provided an official declaration for the lawsuit, laying out the situation over two pages. He also says he may file a civil lawsuit, too.
“I don’t even know, I think four people need to lose their jobs,” Jon said, referring to Mushet, hospital counsel; Link, director of the care facility; Karen Baffone, chief nursing officer; and Dr. Paul, his father’s physician at the facility. “I can’t believe the care my parents have not been able to see and they’ve been neglected because of this whole legal game.”
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.”
During the first couple of months of the situation, Jon said he was trying to play nice and give the hospital the opportunity to do the right thing. Now, however, he feels differently. He’s reached out directly to a TFHS board member with all the documentation to make sure the official was aware of the situation, but hasn’t heard back. Moonshine reached out to all five board members, also with no response.
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.”