And despite subsequent sprinting to update entry forms, posters and advertising, El Tour officials and directors of Tu Nidito, the agency that once included the children's hospice, could not shake complaints by a former Tu Nidito nurse and her husband.
Tu Nidito has been the popular El Tour's charity of choice in 1994 and from 1997 through this year. Its board boasts a range of powerful Tucsonans that includes Jim Murphy, the former longtime head of the sprawling Pima County health care system. The former hospice has now restyled itself into an organization that provides various non-medical services to terminally ill children and their families or to families who have lost a child.
El Tour, itself tax-supported with more than $410,000 contributed from Pima County and the City of Tucson in the last eight years, has pumped at least $110,000 a year into Tu Nidito.
Funding from the county and city has become almost automatic. In the city, El Tour is actually budgeted as an outside agency and, after a few years of $20,000 contributions from county contingency funds, El Tour is now in the county's regular outside-agency lineup for $30,000 a year.
What was until a few weeks ago formally named Tu Nidito Children's Hospice has been the lure, says County Administrator Chuck Huckelberry.
"That's the way it is advertised to us," Huckelberry says.
Bolstered by the record number of riders in the November 18 event--5,377, up about 800 from last year--El Tour is expected to hand over more than $100,000 to Tu Nidito this year, said Richard DeBernardis, the president of the Perimeter Bicycling Association of America and the force behind El Tour de Tucson.
Precise amounts are difficult to track. Figures from Tu Nidito's records, El Tour records and Tu Nidito's tax return sometimes conflict. This is made more complicated by the money Tu Nidito, like other beneficiaries, pays to El Tour to cover the race's costs; El Tour later reimburses the charities for much of that payment.
Tu Nidito also draws contributions from other organizations. The Angel Charity of Tucson, for example, gave Tu Nidito $100,000 this year.
AS ELIZABETH McCUSKER, the 39-year-old executive director of Tu Nidito, puts it, "We've weathered the storm."
After Tu Nidito's license surrender, McCusker's own failed courthouse attempt to silence critics, and complaints lodged at Tu Nidito with the state Department of Public Safety, the Internal Revenue Service and the Arizona Accountancy Board, the storm may not yet have subsided.
For Tu Nidito hospice, which was licensed in 1996, the storm first stirred a year ago. In the month following the 1999 El Tour, Tu Nidito landed a much-needed, full-time registered nurse, Anne Peters, who with her husband, Stuart, had moved to Tucson from Ireland two years earlier.
Until Peters was hired, Tu Nidito had struggled to get nurses for its hospice program from University Medical Center.
Seven days into her job at Tu Nidito, Peters arrived from a hospital visit in the morning to find investigators from the state Department of Health Services.
Soni L. Marvin, a health care facilities inspector, reported that Tu Nidito failed to follow state regulations in nine instances. According to Marvin's report, Tu Nidito failed to ensure that one of its two fill-in nurses from UMC (covering at a time when Tu Nidito's hospice had no nurses of its own) did not receive orientation on Tu Nidito's policies and procedures, practices of pain management, on-call practices, documentation standards and forms.
Marvin's report also noted that Tu Nidito:
· failed to ensure personnel records were maintained for all staff and that they contained job descriptions;
· failed to ensure each patient's care plan was reviewed by the hospice care team at least monthly (in this case, progress notes on a patient were dated 11/15/99, "but did not contain a plan of care with specificity of services to be provided and their frequency"; McCusker, the report noted, "stated the new clinical coordinator knew the patient's treatment plan was outdated and planned to correct it soon");
· failed to ensure each care plan contained the types and frequency of prescribed therapy to be administered (at the time, Tu Nidito's hospice had only one patient, yet the treatment plan on hand covered the period October 1 through December 1 with no update; moreover, a staff progress note dated November 15 did not contain the types and frequency of prescribed therapy);
· failed to maintain administrative control and responsibility for the provision of all services. This citation notes that Tu Nidito hospice, by October 21, 1999, had no nurses. It contracted with UMC for nurses to make home visits, but in the cases of two patients, nurses were called but did not respond. In the case of an 8-year-old girl suffering from a terminal neurological condition, the mother, alarmed by her child's 104-degree temperature, phoned for a nurse one night at 3 a.m. She was told no nurse was available. About five hours later, the mother called back and was told no nurse would be available until the next day. The child was instead taken by ambulance to Tucson Medical Center, where she was admitted for treatment of aspiration pneumonia.
UMC claimed it lacked documentation for the mother's first call and, based on the second call, advised the mother to take her child, then seriously ill, to Urgent Care. Marvin notes that Tu Nidito's "contract with UMC (home health nurses) was for the provision of home nursing care visits when called."
The second patient, also an 8-year-old with a terminal illness, developed an ear problem, prompting the mother to call for the UMC nurse on November 10, 1999. The call was not returned. Nor was a call returned the following day. Finally, the mother called a doctor. The UMC nurse showed up the next day, but without an otoscope to assess the child's ear. Not until the doctor made a home visit on November 13 did the child get medication for an ear infection.
In response, McCusker told the state inspector that Tu Nidito was "not aware a problem existed and denied there was trend of their only two patients having the same problem with on-call nursing coverage."
The Department of Health Services further charged that Tu Nidito:
· failed to be available on call to patients and/or families 24 hours a day, seven days a week (state regulations require that hospice service include nursing, respite, volunteer and bereavement services, and that "each hospice shall be available on call to patients and or families 24 hours a day, seven days a week");
· failed to maintain a registered nurse on staff who ensured supervision of nursing care;
· failed to maintain subsequent assessment in its clinical record ("The problem of delinquent documentation continued to exist at the time of the [December 7, 1999] investigation," Marvin noted);
· failed to use findings of a quality assurance process to correct identified problems. Tu Nidito, inspector Marvin noted, "had no documented evidence (that a) quality assurance process was used with the problem of the on-call nursing care, with the lack of a plan of care or with the missing documentation or nursing visits."
Marvin gave McCusker until January 3, 2000 to answer the statement of deficiencies with a plan of correction.
The key deficiency--lack of a registered nurse on Tu Nidito's social-worker-heavy staff--seemingly had already been corrected with the hiring of Anne Peters on December 1, 1999.
PETERS, IN REGULATORY and court papers, says she could get no clear answers from McCusker on fundamental issues such as expenditure limits, contracts, insurance authorizations, volunteer scheduling or physician orders.
In one case, Peters said in a written statement, McCusker asked her to look at a patient's chart. The physician's plan of treatment had not been signed by the doctor or anyone else for two months. "Liz McCusker told me that she had filled out the physician's plan of treatment and that I could sign it if I wanted to," Peters wrote. "I declined as I had no idea whether the plan was accurate with regard to medications, etc. Liz McCusker had never seen the patient."
"It doesn't matter if we lose the hospice license," Peters recalls McCusker telling her as the inspector left. "We still have Pathways," another Tu Nidito program.
McCusker, who came to Arizona from Oklahoma and to Tu Nidito from the job of regional manager for the Make A Wish Foundation, denies she had that exchange with Peters.
For Peters, it only got worse.
On her 15th straight day on the job, Peters was caring for a child who was dying from cancer. She worked 24 straight hours. At one point, Peters says, she asked for permission to buy morphine to ease the child's pain and for ativan to lessen his anxiety.
Peters then got help from El Rio Clinic, which supplied the two medicines. The boy died that weekend.
McCusker denied in an interview that Peters called her for medications for the dying boy.
Peters notified the Arizona Department of Health Services, and a subsequent inspection was kicked off when McCusker called the agency shortly after 9 a.m. the following day.
According to a state Health Services report, McCusker said she was going to fire Peters because Peters had complained to the Department of Health Services that Tu Nidito provided her with no clinical support and that she was overwhelmed as the only nurse. McCusker charged that Peters talked with doctors on Tu Nidito's advisory board without going through her, and that Peters complained of Tu Nidito's focus on social work rather than on nursing.
McCusker also asked that Tu Nidito's hospice license be put into "abeyance for a while," according to the state report.
According to the report, McCusker twice during that conversation said she was going to "terminate" Peters "today." But later that afternoon, when inspectors arrived at Tu Nidito's offices in the Wells Fargo Bank building, 555 N. Wilmot Road, McCusker "stated she was not going to terminate the nurse and denied she had told (the inspector) she intended to do so," according to the report.
McCusker, according to state records, said she was going to give Peters some time off and that a nurse named Donna would fill in.
In an interview, McCusker said "I don't believe I told them I was going to fire the nurse."
And Murphy, Tu Nidito's board president, said that while McCusker has authority to make personnel decisions, she could not have unilaterally fired the nurse because that would have meant the elimination of the hospice program--a decision the board would have to make.
When pressed by inspectors, however, McCusker said she "hadn't actually talked with Donna to see if she was willing to provide nursing coverage." She said she planned to talk to Donna after the nurse got off her shift at UMC.
Twelve minutes into the state inspection, McCusker presented inspector Soni Marvin with Peters' faxed resignation.
Work was underway that afternoon to transfer Tu Nidito's sole remaining hospice patient to Tucson Medical Center. Shortly thereafter, Murphy gave inspectors a letter requesting temporary license suspension or, if that was not available, suggesting a voluntary surrender of the license.
"The day we surrendered our hospice license, their (state health officials') behavior was a little strange," said Murphy, who had a number of encounters, pleasant and unpleasant, with state officials during his long tenure in Pima County. "It seemed like a very unusual set of circumstances, particularly the resignation coming in (when it did)."
To Murphy, it seemed contrived.
EL TOUR WAS gearing up for its next big ride. Posters, applications and other material said the 2000 El Tour de Tucson would benefit Tu Nidito Children's Hospice, which, according to El Tour promotional material, "supports terminally ill children and their families by providing them with comfort-oriented medical care by pediatric specialists as well as psychological and spiritual support that allow the dying child to remain in the comfortable surroundings of their home rather than having to endure extended hospital stays. The funds you raise ensure that these services are available."
Bicyclists, for much of the year, were told their contributions, made in conjunction with El Tour's variety of entry fees, would go to Tu Nidito hospice. For example, the registration form that encouraged submission by June 30 said a rider who pledged at least $1,000 for Tu Nidito Children's Hospice plus a processing fee, ranging from $10 to $35, would have the entry fee waived in addition to getting El Tour goodies like a t-shirt and poster.
In fact, Tu Nidito, according to McCusker and Murphy, stripped the term "Children's Hospice" out of its name in its own publications and letterhead as early as 1998. An official name change with the Arizona Corporation Commission and the Internal Revenue Service, however, came only this fall.
"It was an honest error," says Richard DeBernardis, the father of El Tour de Tucson.
DeBernardis, whose event has enjoyed perennial and lavish coverage from the city's biggest newspaper, the Arizona Daily Star, says it costs about $1 million to stage the ride. Previous beneficiaries include the Tucson Association for the Blind and Visually Impaired. El Tour has also enjoyed an affiliation with the Leukemia Society, a charity that lures riders from around the country to Tucson and gets contributions that this year totaled $3 million.
Tu Nidito's tax returns show that El Tour contributed $150,500 last year. But bank statements reveal that Tu Nidito paid El Tour $32,345 on December 16, 1999--the very month that the internal crisis was swirling at Tu Nidito.
DeBernardis says his contracts with El Tour de Tucson's beneficiaries include a provision for them to pay the Perimeter Bicycling Association of America to help cover event bills.
Murphy says the finances are easily tracked and that accountants say that net figures can be used to show bottom-line numbers on what Tu Nidito ultimately derives from El Tour de Tucson. Although the individual pieces of paperwork look confusing, he says, everything balances out properly in the end.
While DeBernardis and El Tour continued to use Tu Nidito's defunct hospice program as financial bait, McCusker moved to silence Peters and her husband, Stuart, who embarked on a campaign to let donors and others know about Tu Nidito's troubles. McCusker describes Stuart Peters' ongoing charges and complaints as "harassment."
Within two weeks of surrendering the hospice license, McCusker sued Anne and Stuart Peters in Pima County Superior Court. She alleged defamation and simultaneously sought to zip the Peterses' lips with an injunction prohibiting them from saying anything about her and her post at Tu Nidito.
The restraining order, which was quickly denied, sought to bar either Peters from "making any untrue and defamatory statements concerning McCusker and McCusker's management and operation of Tu Nidito, including without limitation any such statements asserting fraudulent conduct ... (or) financial irregularities in the operation of Tu Nidito attributable to McCusker," and specified they could not say that McCusker faced criminal prosecution or that McCusker did any of the things Stuart and Anne Peters alleged.
McCusker sought $1 million in damages. The suit, however, was quickly dropped and McCusker paid $5,000 of the Peterses' legal bills.
"That's something my attorney (Jenne S. Forbes) worked out," McCusker said in an interview. "It's coming from her, a split in the fees."
McCusker remains bitter about the failed suit, despite not having suffered any of the obvious or requisite damages that would support her legal action, such as the loss of her job. Indeed, Murphy and Tu Nidito's board rallied around her.
"I've suffered. I've been investigated down to the color of my toenails," McCusker said. "I still hurt. I used to be 10 years younger."
In a settlement agreement, the Peters couple "agrees not to speak about Elizabeth McCusker or to discuss the terms of the settlement ... with any parties except when required to do so by court order, when requested to do so by governmental agency, and/or when questions are initiated by third parties requiring a truthful response."
"I'll tell you what the lesson learned from this is," McCusker said in an interview. "It's that people can say whatever they want about you and there is nothing you can do about it."
Another attorney, the understated but sharp Dennis Rosen, the same lawyer who has represented Fairfield Homes in its fight with Pima County over Canoa Ranch, is more than a little concerned about Stuart Peters.
In an August 7 letter to the Peterses' lawyer, Andrew Klausner, Rosen wrote, "I did not think your clients would be so brazen as to continue with their slanderous campaign ... please counsel your clients."
At issue were e-mails Stuart Peters posted on El Tour's website. Peters also has made allegations against Tu Nidito and El Tour to the Internal Revenue Service.
When Tu Nidito released statements about how they were given a "clean bill of health" by a "respected" outside auditing firm, Peters in August confronted accountant Susan Lilly of that firm, Cotton Parker and Johnson--now Clifton Gunderson--with his own findings. Rebuffed, he lodged a complaint with the Arizona Accountancy Board.
Murphy says that Lilly did the right thing by not talking about a client's finances without permission. The board, Murphy says, then authorized its accountants to talk to Stuart Peters. The firm sent Peters a letter of invitation.
Peters says he saw that as a hoax or trick to get him to reveal to the accountants and Tu Nidito just what documents he possessed.
"I had already been sued for $1 million and it seemed to me somebody was going to commit perjury or they are going to try to sue me," Peters said. "So I thought, I'll just produce them in court."
The state Accountancy Board, the same board that is pushing for $600 million from the respected auditing and management firm Arthur Andersen in connection with the monumental failure of the Baptist Foundation, is expected to receive a report on Tu Nidito and Peters' charges later this month.
FOR HIS PART, DeBernardis says that all the charges against Tu Nidito are unfounded.
Tu Nidito's troubles didn't hurt El Tour, DeBernardis says, as evidenced by the increase in the number of riders.
"It's been a hassle in one sense. It's unfortunate that he (Peters) has a personal gripe. It did take some time and energy, discussing it with the lawyers and telling the AG (state Attorney General's Office) that the errors in our material were an innocent mistake. We print a lot of material in advance and it was all done in good faith. I do wish he'd direct his energies in another direction."
Tu Nidito's three-year contract with El Tour expires this year. So as DeBernardis peddled damage control to protect El Tour's reputation, so did Murphy on behalf of Tu Nidito, which obtains one-third of its funding through El Tour.
Murphy is knowledgeable and experienced in the battles within bureaucracies and medical services. A one-time phone company cable splicer, he rose to power with election first to the City Council, then to the County Board of Supervisors. Twenty-five years ago he gave up his board seat in southside District 2 to Sam Lena in exchange for a powerful and more lucrative position as an assistant county manager. He rose and fell in political favor but held his job, in different organizational schemes, as head of the county's huge medical and health system until his retirement in early 1997. He was sometimes criticized for cronyism and budget problems, but in fairness Murphy was instrumental in saving the system when it was under strong attack in 1993 from then-Supervisor Ed Moore and his then-colleagues Paul Marsh and Mike Boyd.
In July--four months before Tu Nidito's big fundraiser, El Tour de Tucson--Murphy wrote to donors that "the last nine months or so have been very challenging for everyone associated with Tu Nidito. While filled with many distractions, this time period and circumstances gave us the opportunity to review who we are, what we are doing and how we are doing it."
Tu Nidito has gathered into its nest several support services under different names. These include Candlelighters, for families with a child with cancer or that have lost a child to cancer; Angels By Your Side, for families that have lost a child; STAR, an information and referral service; and Pathway, for sick children who can benefit from social workers or spiritual counselors.
Murphy boasted of the clean bill of health he says auditors and an outside consultant gave Tu Nidito. And he said that the board, which includes Deputy County Administrator Enrique Serna, county human resources director Gwyn Hatcher and former city parks director Jim Ronstadt, "unanimously voted to restore the nursing component of hospice and provide the full range of services, preferably directly or in collaboration with another agency." Tu Nidito has not yet set a date for reviving its hospice.
In an August memo he sent in response to cyclists' concerns, Murphy described the surrender of the hospice license as a carefully planned move.
"The decision to discontinue the nursing component of hospice services was made after considerable deliberation by our board of directors, our professional staff, and community advisors," Murphy wrote.
According to state records, it was more of a spur-of-the-moment, face-saving move made during the February inspection.
"One of the reasons for this action," Murphy wrote on August 14, "was the fact that we found it difficult to find adequate nursing staff to cover so few patients, without undue expenses to the program. Consequently, several months ago, we voluntarily surrendered our hospice care license."
In the end, Tu Nidito's survival may come down to this soft-spoken politician, a man in retirement who has just as many health care interests now as he had when he worked for the county.
Murphy repeatedly says that all Stuart Peters has lobbed doesn't stick with "anybody" who has reviewed the complaints, ranging from auditors to the Attorney General's Office, which will neither confirm nor deny the existence of an investigation.
Peters says he is driven by his "social conscience," and by what he says is his firm belief that donors are being tapped by a poorly-run organization for a program that does not exist.
"Sixty-nine dollars spent in a year on medicine?" Peters asks incredulously about a financial statement entry for the period when Tu Nidito operated its hospice. "Come on."
McCusker praised Murphy for "staying on and seeing this through." Murphy has been there before, under fire for stacking jobs for friends, for covering for ill-trained and unprepared staff, for facing sanctions from regulatory bodies.
Whether Peters' complaints are well-founded or the result of a personal grudge, they have become so persistent that only Murphy, through his connections with hospitals, the Pima Council on Aging, and politicians, has the power to keep Tu Nidito afloat.
When he was on the firing line at the county, wise observers noted his resilience. Luis Gonzales, a Democratic activist and former state senator whose faction lost in the Murphy-Lena political musical chairs, was one of those.
"He has many chits out there," Gonzales said, "that he can call in."