An ‘Immediate Jeopardy’ Violation Puts LHH's Recertification at Further Risk
DPH Reveals Troubling Laguna Honda Developments
Playing With Fire — Thankfully Avoided — by the Skin of Our Teeth
•••••••••• December 6, 2022 ••••••••••
LHH was hit in December with an “Immediate Jeopardy” violation related to a fire response eight months after the scandal surfaced of Laguna Honda Hospital (LHH) losing its Federal certification last April, which then triggered the potential closure of our beloved skilled nursing facility and halted all new admissions fully a year ago on January 14, 2022.
Key Documents Continue to Evade Public Scrutiny
Revised Closure Plan
As the Westside Observer has extensively reported, the ongoing secrecy about LHH by the Department of Public Health (SFDPH) and our Health Commission remains a significant problem. Over a dozen times, the LHH Settlement Agreement mentioned a Revised Closure Plan. It remains a secret and shrouded in mystery because it has yet to be made public, despite repeated public records requests submitted to obtain it.
Just as SFDPH initially delayed the release of the LHH Settlement Agreement and kept it hidden from public review, SFDPH continues to delay the release of LHH's Revised Closure Plan.
Quality Improvement Expert Contract
The contract with Health Services Advisory Group (HSAG) to perform duties as LHH's CMS-required Quality Improvement Expert (QIE) still needs to be released to the public. (CMS, the Centers for Medicare and Medicaid Services, regulates all nursing homes nationwide and administers federal reimbursement to skilled nursing facilities.)
The LHH Settlement Agreement temporarily paused the Closure Plan involving mandatory forced discharges and transfers of LHH's residents that may begin again on February 2.
The QIE contract began on November 1. It was not reviewed and approved by the Health Commission until January 3, 2023. It may still take weeks before the actual QIE contract becomes a public document. However, a Contract Request Form that contains a bare-bones description of the purpose of the contract was presented to the Health Commission on January 3 for approval.
Root Cause Analysis
In addition, LHH's ‘Root Cause Analysis’ (RCA), a report that was due to CMS by December 1, 2022, remains shrouded in secrecy. SFDPH has also refused to release it despite multiple repeated public records requests submitted to obtain it. SFDPH claims LHH's QIE contractor, HSAG, had not provided a copy of the RCA to LHH or to SFDPH.
The RCA's purpose was to determine factors precluding LHH from achieving and maintaining substantial compliance with Federal reimbursement participation requirements and to ensure substantial long-term compliance in the future. The RCA was to examine every one of the 26 deficiencies identified in CMS and California Department of Public Health (CDPH) inspection surveys between October 14, 2021, and April 14, 2022.
Remarkably, a monthly Executive Team Report that LHH's acting CEO, Roland Pickens, presented on January 10 to the Health Commission's LHH-JCC (a Joint Conference Committee consisting of three Health Commissioners and LHH's top managers) reported:
‘The theme throughout the RCA is that over time, Laguna Honda has grown out of sync with high-performing skilled nursing (SNF) homes and often operated more like an acute care hospital.’
The January 10 Executive Team Report claims the RCA describes in detail the reasons behind LHH's decertification and highlights key areas that need to be addressed. It's too bad the RCA is being kept so secret.
As the Westside Observer reported last September, LHH's acting CEO, Roland Pickens, admitted to the Health Commission that LHH followed the wrong regulatory guidelines. It was using California's Title 22 ‘Acute Care Hospital Guidelines,’ not CMS' ‘Skilled Nursing Facility Regulatory Guidelines,’ thereby causing substantial noncompliance, which led to LHH its decertified status.
If we ever get to see the full RCA report, we'll see if Pickens' included the admission in the RCA report. If he didn't include it, then HSAG did a terrible job writing the RCA because following the wrong regulations was a substantial contributing factor to CMS decertifying LHH. Clearly, LHH had been acting like an acute care hospital, not a skilled nursing facility.
The RCA was supposed to be a roadmap to develop recommendations and corrective actions for an ‘Action Plan’ required by the LHH Settlement Agreement. That plan was due to CMS on January 6, 2023. The January Executive Team Report also clearly stated:
‘The Action Plan is our new blueprint for how we will accomplish CMS recertification and remain compliant and successful for the long term. The Action Plan includes hundreds of improvements — many of which are already underway and many more we will do over the coming weeks and months as we work toward recertification.’
There are many unanswered questions, including whether LHH is going to lose 120 of its beds ... whether the disastrous ‘flow project’ — admitting behaviorally disturbed patients from SFGH into LHH ... will be curtailed, whether mandatory forced discharges of LHH's residents will resume on February 2 ...”
Those hundreds of improvements may have been identified and described in the Action Plan as necessary. Still, it suggests just how far LHH strayed from nursing home standards of care regulations. It also suggests how bad LHH mismanagement had become.
The trouble is SFDPH is now also keeping the Action Plan secret. In response to a public records request, SFDPH has invoked a 14-day delay until January 20. The response claims, ‘DPH staff will need to consult with another City office regarding your request’ before it can produce and release the Action Plan. So, let's assume another City office approves its release. It's also too bad the Action Plan is being kept so secret, like everything else.
LHH may also be keeping secret a California Department of Public Health (CDPH) Form 2567 inspection report regarding a fire response ‘Immediate Jeopardy’ violation LHH received in December.
Immediate Jeopardy Violation Threatens Recertification
Meeting Canceled — then suddenly reinstated — on short notice
On December 9, Health Commission secretary Mark Morewitz initially e-mailed a notice canceling the LHH-JCC's December 13 meeting, saying, ‘LHH staff and leaders are needed at this time to complete the current CMS survey taking place at the hospital.’ Rarely are the LHH-JCC's once-monthly meetings canceled.
90-day surveys are required by the LHH Settlement Agreement. Morewitz was referring to the first 90-day Monitoring Surveys that followed LHH's decertification on April 14. Unannounced, the Surveyors descended on LHH on November 28. In paragraph 14, the LHH Settlement Agreement stipulated that at any time after October 10, LHH would be subject to unannounced on-site, federal surveys. These surveys would occur at least once every 90 days to assess LHH's progress toward compliance with the Settlement Agreement and substantial compliance with Federal nursing home regulations.
Something drastic must have happened at LHH on December 9 because, by 4:35 p.m., Morewitz sent another e-mail resurrecting the JCC's Tuesday, January 13 meeting. Besides a mandatory Public Comment agenda item, the only other item on the January 13 agenda turned out to be yet another Closed Door meeting of the JCC.
We have now learned what drastic issue may have revived the December 13 meeting for closed-session deliberation. A Regulatory Affairs report presented to the LHH-JCC meeting on January 10 disclosed that the initial exit interview and debriefing following the 90-day survey should have been held on December 2.
Unfortunately, since the December Monitoring Survey had identified an Immediate Jeopardy (I.J.) citation related to LHH's response to a fire, the I.J. triggered an Extended Survey and a Fire Life Survey. Initially, the I.J. may have triggered cancellation of the JCC's December 13 meeting, but they may have decided it needed urgent attention from the Commissioners in a closed session discussion.
An I.J. suggests a facility is not in substantial compliance with CMS regulations. That appears to be why the JCC meeting went from canceled back to reinstated on short notice.
Details of what transpired will eventually become a public document on a CDPH Form 2567 inspection report regarding the fire response ‘Immediate Jeopardy’ violation. Until that document is made public, we won't know if the violation represented an isolated, pattern, or widespread severity of an event. More than likely, LHH-JCC Commissioners and LHH's top managers were informed of, and already know, the severity of the event.
Three Plans of Correction required — but not submitted timely?
In addition to the I.J., the Regulatory Affairs report presented on January 10 indicated LHH had to submit three Plans of Correction on November 28 involving a Patient Care Policies and Procedures violation (Title 22 §72523), a Patients' Rights violation (Title 22 §72527-a-10), and a Nursing Services violation involving implementing patient care plans (Title 22 §72311-a-2).
We learned during the LHH-JCC meeting on January 10 that all three of those violations occurred during State inspection surveys in 2021, which should have had Plans of Corrections for the three violations submitted within 10 days. Why the December Regulatory Affairs report indicated the Plans of Correction were presented on November 28, 2022 (a full year after the violations occurred in 2021) wasn't explained, nor was there any indication whether the initial Plans of Corrections may have been rejected, requiring revised Plans of Correction that had to be submitted belatedly in November.
Immediate Jeopardy Violations may terminate the Agreement
An I.J. is the highest severity (at Level 4) in CMS' Severity and Scope matrix classifying regulatory violations. If an I.J. is not fixed immediately CMS can terminate the facility's CMS funding, which is what happened to LHH in April 2022.
An I.J. is defined as a crisis situation in which the provider's noncompliance with one or more requirements of participation in the CMS' Medicare reimbursement provider program has caused, or may be likely to cause, serious injury, harm, impairment, or death to a nursing home resident.
The Settlement Agreement provides that Immediate Jeopardy deficiencies can trigger termination of the Agreement itself, and again terminate LHH's participation in Medicare's reimbursement funding program.
The news from the Regulatory Affairs Report — that LHH had been cited with an I.J. violation — suggests that LHH had to have its external QIE develop a new Root Cause Analysis to identify why the fire response incident was cited. And the QIE may have had to develop an updated Action Plan or Plan of Correction to address the I.J. citation.
LHH is figuratively playing with fire — no pun intended — when it comes to achieving its recertification.
The LHH Settlement Agreement provides that CMS would consider whether an Immediate Jeopardy finding has been promptly remedied and removed. Luckily, we learned during the LHH-JCC meeting on January 10 that LHH promptly submitted an action plan in response to the I.J. citation, and apparently, CMS accepted it, resolving the fire incident violation.
It bears repeating that the violation came dangerously close to scuttling the entire LHH Settlement Agreement.
An Overdue LHH Recertification Strategy?
It has taken nine months since LHH was decertified in April 2022, and eight months since two of LHH's consultants — Health Management Associates (HMA) and Health Services Advisory Group (HSAG) — began their contracts to guide LHH toward recertification. The initial plan, developed by the two consultants, had indicated for a long time that LHH was preparing to re-apply to CMS for recertification in August or September, to become recertified by the end of December 2022.
As far as is now known, LHH hasn't submitted application forms to CMS to obtain recertification. And it's not known how soon LHH will submit the required forms. What's taking these consultants so long? Haven't they been paid enough? So far $26.7 million in contracts have been awarded to consultants to date.
Suddenly — and either comically, or tragically, depending on your point of view — along came San Francisco's Director of Public Health, Grant Colfax, MD, who presented an ‘LHH Recertification Strategy Update’ to the full Health Commission on January 3, 2023. [Note: Colfax's chart has been embellished for this article with the names of the incumbent managers and their respective salaries.]
Wait. What? Shouldn't the Recertification Strategy have been developed back in May at the outset of the now $26.7 million in external consultant contracts that have been awarded to HMA, HSAG, and Tryfacta? As in, putting the horse before the cart? Why is Colfax's new strategy being rolled out eight months after efforts to obtain recertification began?
Noticeably missing from a new strategy to obtain CMS recertification is any mention of rapidly hiring a Nursing Home Administrator (NHA) and an Assistant Nursing Home Administrator (ANHA) at LHH.
Colfax's Strategy Update in an org chart format contains several troubling issues.
Recertification teams lack necessary skilled nursing experience
First, of five teams Colfax has belatedly assembled to focus his strategy for LHH's recertification, six of the eight managers are serving in acting capacities, and only one of them is an LHH employee. The rest are managers from SFDPH and the San Francisco Health Network (SFHN) who don't have experience running skilled nursing facilities. That's exactly the type of manager who wrongly took the path of operating and mismanaging LHH as an acute care hospital.
No wonder the Action Plan identified hundreds of necessary improvements that need to be implemented. And no wonder these managers led LHH in the wrong direction — the goal should be a high-performing skilled nursing facility.
Why are capital projects included in the recertification plan?
Second, the ‘Facilities, Operations, and Capital Projects’ team includes a focus on capital projects. What capital projects are involved in obtaining CMS recertification?
Are the Capital Projects related to the plan to place one cohort of elderly and disabled patients needing skilled nursing care in one of LHH's two patient towers, and to place the other cohort of patients with behavioral and mental health problems in the second patient tower? Or alternatively, is the long-stalled housing project planned for LHH's campus pushed by former District 7 Supervisor Norman Yee and now by his replacement, Myrna Melgar, now part and parcel of the recertification efforts? How does the housing scheme intersect with recertification?
There is a pending Capital Project to replace LHH's kitchen floor, as the Westside Observer previously reported in October 2022. SFDPH responded to a public records request saying the kitchen floor is a $4.4 million capital project, and indicated there's no contract for it yet and no timeline has been scheduled.
It's thought LHH's recertification is not contingent on the kitchen floor project being completed and is not a major concern of CMS, unless CMS has changed its mind. Since there is no timeline scheduled for the kitchen floor project, why does Colfax's Strategy Update team focus on capital projects?
Notably, the ‘Facilities, Operations, and Capital Projects’ team is being led by a Director of Operations and DPH's Chief Operating Officer — Prasanthi Patel and Greg Wagner, respectively. Ms. Patel holds a relatively low-level job classification as a 2593, Health Program Coordinator III. She earned just $126,618 in total pay in the fiscal year that ended on June 30, 2022.
For her part, Patel has been the director of SFDPH's Children's Oral Health Program for 6 years and 10 months and has been LHH's acting Deputy Director of Operations for just 9 months. Deputy Directors typically do not have a 2593 job classification code. What experience as a children's oral health program director qualifies Patel to be managing operations for a skilled nursing facility as a Deputy Director, even if only in an ‘acting’ capacity?
... it's now been six months since the mess at Laguna Honda Hospital has received any attention from the Board of Supervisors. The Board owes it to San Franciscans to step in and intervene by scheduling a follow-up hearing quickly.”
Mysterious and still missing Revised Closure Plan
Third, Colfax's ‘Revised Closure Plan’ team is led by two employees: Terry Dentoni as the acting-Chief Nursing Officer, and Claire Horton as the acting-Chief Medical Officer. That team will focus on the Revised Closure Plan SFDPH has kept hidden from the public since the LHH Settlement Agreement was announced on October 12 — which Settlement Agreement mentioned the Revised Closure Plan 18 times.
Claire Horton has been the Chief Medical Officer of the San Francisco Health Network for 2 years and 7 months, was previously SFGH's Chief of Staff for 2 years and 1 month, and had been Medical Director of SFGH's Richard Fine Health Clinic for 8 years. Neither Horton nor Dentoni have on-the-job experience in a skilled nursing facility or experience in gerontology.
It is troubling Colfax's Recertification Strategy Update includes Dentoni and Horton managing the potential resumption of the Closure Plan involving mandatory forced discharges and relocation of LHH's medically fragile residents who are at risk of transfer trauma.
Is LHH culpable in the 12 Deaths of 57 Discharged Patients?
Also during the January 10 LHH-JCC meeting, LHH’s acting CEO Roland Pickens informed the three Health Commissioners that LHH may appeal 12 “Class B” citations CDPH issued against LHH on December 20.
The citations involve LHH’s role in what are believed to have been 12 patient deaths among the 57 patients discharged and transferred from LHH to out of county facilities and to a medical respite homeless shelter, before LHH’s cruel closure plan was paused following their deaths. The 12 deaths represent 21% of the first 57 mandatory discharges.
CDPH’s 12 citations confirmed 11 of the patients had died, including one who died in a medical respite homeless shelter. It is thought the twelfth patient also passed away even though CDPH didn’t report it on the citation.
“Class B” citations that are sustained can carry fines of up to $3,000 each. CDPH levied the maximum fines and LHH was assessed a total of $36,000 in fines.
Pickens assertion to the Commissioners LHH would appeal appears to be incorrect. The appeal process spelled out in California Health and Safety Code 1428 stipulates LHH had just 15 working days after service of the citations to appeal. As of January 11, CDPH’s web site showed no appeals had been filed within the 15-day window.
The Westside Observer will have a more detailed article about the 12 citations, and LHH’s chaotic and negligent discharge processes last summer in our next issue.
Resumed patient discharges just weeks away
In fact, SFDPH responded on January 10 to a records request seeking written communication from CMS extending the pause on discharges. SFDPH confirmed it does not have a written notice from CMS postponing mandatory patient discharges from LHH beyond February 2 to a later date, as stipulated in the LHH Settlement Agreement. DPH said it found no records responsive to a public records request for any such CMS notice received.
That may be because Pickens admitted during the LHH-JCC meeting on January 10 that San Francisco's City Attorney was still working on drafting and submitting a letter to CDPH requesting that the pause on discharges and transfers be extended.
By the time this article is written, we may be just 14 working days before forced discharges from LHH resume.
Given the possibility that the Revised Closure Plan may go into effect just three weeks from now on February 2, it's incumbent on the LHH-JCC and full Commission to release the Revised Closure Plan to members of the public and LHH's captive audience residents immediately. Continuing to refuse to release the Closure Plan is simply inhumane, when not entirely unethical.
Fourth, the two ‘LHH Co-incident Commanders’ on Colfax's Strategy Update organization chart leading the Root Cause Analysis and Action Plan efforts, and LHH's so-called ‘top-to-bottom assessment,’ are Troy Williams, a Nursing Supervisor who serves as SFGH's Chief Quality [Management] Officer, and Baljeet Sangha, the Chief Operating Officer of the San Francisco Health Network within the San Francisco Department of Public Health. Sangha had worked in various roles in operations and materials management for 8 years at SFGH, left for a 3-year and 8-month stint in operations at the Alameda Health System, and returned to the San Francisco Health Network 1 year and 11 months ago to serve as DPH's COVID Task Force Lead and is now SFHN's Chief Operating Officer.
Like others on Colfax's Recertification Strategy team, neither Williams nor Sangha have on-the-job experience in a skilled nursing facility.
Colfax's team of eight managers staffing his Recertification Strategy gambit earned a total of $2.3 million in total pay in the Fiscal Year that ended on June 30, 2022. It's not clear that this $2.3 Million Club will pay off.
Hiring a licensed Nursing Home Administrator (NHA) and a licensed Assistant Nursing Home Administrator (ANHA) — both with extensive on-the-job experience running a skilled nursing facility and knowledgeable about nursing home regulations — at LHH would be a much smarter Recertification Strategy, and would likely cost far less than $2.3 million.
LHH's Rushed Policies and Procedures Update
As LHH lurches toward its application for recertification, the hospital is in a mad-dash rush to update its policies and procedures to obtain compliance with CMS' new Phase 3 requirements — requirements that LHH should have known went into effect in November 2019. The LHH-JCC's three Commissioners were asked to review each of 123 policies and procedures presented to it for consideration during its January 10, 2023 meeting. The 123 policies showing revision marks posted on the Health Commission's web page engulf 619 pages. That's a prohibitive amount of reading for Health Commissioners.
During the LHH-JCC's January 10 meeting, Roland Pickens claimed that ‘timing was not in [LHH's] favor’ to make sure LHH's policies and procedures were in compliance with CMS' ‘;new’ Phase 3 regulations.
That was pure nonsense because the Phase 3 guidelines governing all skilled nursing facilities are not‘;new.’ The Phase 3 guidelines went into effect in November 2019, so LHH had at least three years in which to review all of its policies and procedures to ensure they were in compliance with Phase 3 requirements.
As it is, this is another symptom — when not a damning admission by Pickens — of just how derelict LHH's management team has mismanaged LHH's policies and procedures. That's because the SFDPH managers know next to nothing about running a skilled nursing facility. Of note, the LHH-JCC had been informed as early as October 11, 2022, by LHH's Chief Quality Officer, Nawzaneen Tali, that ‘the Phase 3 regulations are simply a revision to previous [CMS] regulations.’
It's inconceivable the three JCC Commissioners — or the full seven-member Health Commission — will be able to review, comprehend, and approve that volume of material. But as LHH's governing body, it's their ministerial duty to do so, especially since recertification is at stake.
The LHH-JCC should have scheduled a special meeting as a two-or-three day retreat to review all of the policies. The Commissioners should not have been rushed during its January meeting, since LHH should have been working on updating the 123 policies during the past three years.
The LHH-JCC only considered, on January 10, making a single recommendation to the Health Commission for all 123 LHH policies listed, including new policies, changes to policies, and removal of policies. The JCC was only required to recommend the policies for approval on the Health Commission Consent Agenda, portending individual policies won't be discussed before adoption.
On January 10, the LHH-JCC punted on voting to make a formal recommendation about the policies and procedures to the full Health Commission, indicating that the three JCC Commissioners would take the next week in which to buy more time so they can make a recommendation one way or the other when the Health Commission meets on January 17.
Notably missing from the policies under review was Nursing Policy D.1.0, the Restorative [Care] Nursing Program that is of keen interest to CMS and the U.S. Department of Justice. Why wasn't D.1.0 included?
Board of Supervisors Should Intervene
Given the new Immediate Jeopardy violation at LHH in December, the Board of Supervisors should intervene and hold a hearing to obtain a status update on LHH's progress toward its recertification. The Board of Supervisors could go a long way toward forcing the release of LHH's Quality Improvement Expert consultant contract, LHH's Root Cause Analysis report, LHH's Revised Closure Plan, and the now stalled Action Plan that SFDPH has refused to make available to members of the public.
There are many unanswered questions, including whether LHH is going to lose 120 of its beds or whether those beds will be saved, whether the disastrous ‘flow project’ — admitting behaviorally disturbed patients from SFGH into LHH — that contributed to LHH's problems will be curtailed, whether mandatory forced discharges of LHH's residents will resume on February 2, and why Dr. Colfax's recertification strategy will include an emphasis on capital projects at LHH, among other urgent questions needing immediate attention.
After all, CMS's next requirement may be that all skilled nursing facilities have one-person-only rooms, rather than two-person rooms. If CMS takes that next step, it could lead to the loss of an additional 120 beds at LHH, for a total loss of 240 of LHH's 769 beds. If that happens it would represent over 31% change reduction in LHH's current bed capacity, and would severely worsen the crisis of an already critically insufficient number of skilled nursing beds in San Francisco. That would obviously cause even more San Franciscans who need skilled nursing level of care into out-of-county facilities.
The full Board of Supervisors held a Committee of the Whole hearing on the crisis at LHH on June 14, and there were a few follow-up hearings at the Board's Government and Oversight (GAO) Committee in July.
But it's now been six months since the mess at Laguna Honda Hospital has received any attention from the Board of Supervisors. The Board owes it to San Franciscans to step in and intervene by scheduling a follow-up hearing quickly.
Monette-Shaw is a columnist for San Francisco's Westside Observer newspaper, and a member of the California First Amendment Coalition (FAC) and the ACLU. He operates stopLHHdownsize.com. Contact him at email@example.com.
January 13, 2022