Regulators Signaled they are Receptive to a Waiver to Retain Laguna Honda’s 120 Skilled Nursing Beds
Board of Supervisors and Health Commission Must Take Action
Petition Signatures to Save LHH's 120 Beds Submitted
• • • • • • • • • • October 4, 2023 • • • • • • • • • •
Laguna Honda Hospital and Rehabilitation Center (LHH) has faced the threat of mandatory, permanent forfeiture of 120 of its beds for over a year.
A citizen’s petition initiative posted on Change.org was launched on April 7 to elicit public support to save those beds and demonstrate broad citizen resolve that our elected and appointed City officials do everything they can to preserve these beds for future generations of San Franciscans.
Over the past five months, 1,627 signatures have been obtained so far (after excluding three people who signed more than once).
The initial petition signatures were submitted to San Francisco Board of Supervisors president Aaron Peskin, and president of San Francisco’s Health Commission, Dan Bernal, on Tuesday, September 12. The petition submitted to San Francisco’s governing bodies is available on-line.
The ball is now in their court. The Board of Supervisors and the Health Commission should direct Laguna Honda Hospital to immediately submit a written waiver request directly to the director of the California Department of Public Health (CDPH), Tomás Aragón, seeking to retain all of LHH’s 120 three-person suites that essentially contain private — not shared — bedrooms. Submitting a waiver request is all that's needed. It has been stalled for months.
The petition submitted on September 12 includes a summary of the petition, a summary of significant people who signed on to the petition (including former Laguna Honda Hospital employees, Bay Area healthcare clinicians and concerned Bay Area citizen leaders), compelling comments posted on Change.org from people who signed the petition; the complete petition; and the names of the 1,627 people who initially signed on (arranged by jurisdiction — including San Franciscans, folks in the Greater Bay Area, other California jurisdictions, allies around the United States, and a handful of people from foreign countries).
Signatories to the petition came broadly from the following jurisdictions:
A quarter — 410 of the 1,627 petition signatures came from San Francisco and the Greater Bay Area, and 35% came from Californians, demonstrating a broad community desire to permanently save LHH’s desperately needed 120 beds.
The Change.org petition remains open on-line for people who would still like to support it.
Additional signatures will be greatly appreciated.
As the Westside Observer reported on August 31, luckily there’s a relatively-easy procedure to save those beds, which Federal and State regulators are open to considering and granting.
Federal and State Regulators Open to the Waiver
A verbatim transcript of a portion of a San Francisco Board of Supervisors Committee of the Whole hearing on May 9, 2023, shows LHH acting CEO Roland Pickens informed the Supervisors there’s a waiver process, and CMS has indicated it’s open to the waiver and is willing to work with LHH to save the 120 beds.
between 1997 and 2022 San Francisco lost 1,381 Skilled Nursing Facility (SNF) beds in county. If LHH loses 120 of its beds it will push that to 1,501 beds lost, leaving only 2,161 remaining. As for demand … 4,186 patients were discharged to out-of-county … during calendar year 2022.”
Pickens said he’s confident LHH meets the requirements for the waiver, and CDPH will need to approve it.
Recertification Applications Submitted in August 2023 … and Partly Granted
Pickens has claimed submitting a waiver request to save LHH’s 120 beds to CDPH was contingent on first applying to CDPH to obtain Medicaid (Medi-Cal) recertification and separately to the Centers for Medicare and Medicaid Services (CMS) to obtain Medicare recertification.
LHH submitted its Medi-Cal application on August 11, and CDPH approved it — surprisingly — five days later on August 16. Given that this initial hurdle was apparently resolved, LHH then submitted its application for Medicare certification on August 23. It's unknown whether LHH will have to pass two consecutive survey inspections — separated by a 90-day waiting period to ensure the sustainability of regulatory compliance — before CMS will actually grant the Medicare application or if that has already occurred.
That theoretically shouldn’t matter, because it is CDPH that actually grants the waiver request as a State licensing issue, and there’s no reason to believe CDPH would approve the Medi-Cal recertification but not approve the 120-bed waiver request. It’s a decision left up to Tomás Aragón, Director of CDPH, not at the discretion of CMS. It’s likely Aragón was involved in and approved awarding LHH’S recertification as a Medi-Cal provider on August 16.
Aragón formerly served as Director of the Population Health Division in San Francisco’s Department of Public Health, and had reported tov Director of Public Health, Grant Colfax. In January 2021, Aragón was appointed Director of CDPH by Governor Gavin Newsom, formerly Mayor of San Francisco. [Colfax became Director of Public Health in February 2019 following the ouster of Barbara Garcia.]
By the stroke of his pen, Aragón could more than likely approve a written waiver request to allow LHH to retain all of its three-person suites — which are essentially all single, not shared, bedrooms — and save the 120 beds. All LHH now needs to do is submit its waiver request to Aragón.
Other Regulatory Prerequisites Met
As previously reported, LHH’s patient bedrooms and suites exceed the minimum square footage restrictions. Each bedroom in the three-person suites averages 125 sq. ft. (45 sq. ft. larger than the 42 CFR §483.90 regulation of 80 sq. ft.-per-resident minimum for shared rooms, or 25 sq. ft. larger than 100 sq. ft. for single-person rooms).
And each large bedroom has its own sliding door into the shared hallway inside the suite. That essentially makes them all private, single-person rooms, not shared bedrooms. The issue of two-person rooms should essentially be moot.
On September 12, Pickens may have wrongly claimed the petition must be submitted to CMS, not to CDPH.
That appears to be incorrect because 42 CFR §483.90 clearly states waiver requests should be submitted to "… CMS, or in the case of a nursing facility to the [State] survey agency." Because 95% of LHH’s beds are considered to be Medi-Cal beds in a “distinct-part nursing facility” (DP-NF), that’s the appropriate regulatory agency the waiver request should be submitted to.
This appears to be yet another needless delaying tactic by Mr. Pickens.
Fortunately, 42 CFR §483.90(e)(3)(ii) clearly states CMS, or the State survey agency — in this case, CDPH — may grant a variation to the two-patient per room rule specified in §483.90(e)(1)(i) if the facility demonstrates in writing the variation to having more than two patients per room “will not adversely affect residents’ health and safety.”
So, this problem can be solved by LHH simply submitting a written waiver request asking to keep all 120 of its three-person suite bedrooms. Now!
SNF Bed Supply and Demand
As previously reported, between 1997 and 2022 San Francisco lost 1,381 Skilled Nursing Facility (SNF) beds in county. If LHH loses 120 of its beds it will push that to 1,501 beds lost, leaving only 2,161 remaining. As for demand, an April 2023 San Francisco Department of Public Health report documented that 4,186 patients were discharged to out-of-county SNFs across all reporting private - and public-sector San Francisco hospitals during calendar year 2022.
Clearly, demand for SNF beds outstrips San Francisco’s supply of them.
If we lose 120 beds at LHH, more and more elderly and disabled low-income San Franciscans will be dumped out-of-county, like night follows the day.
It’s Time LHH Submit Its Waiver Request
There’s a waiver process, and CMS and CDPH have indicated openness to considering a bed waiver request;
Pickens is confident LHH meets waiver requirements to save LHH’s 120 beds;
CDPH — perhaps CDPH’s director, Tomás Aragón, himself — approved and granted LHH’s application to become Medi-Cal recertified on August 16, and that hurdle has been crossed;
LHH submitted it’s application to become Medicare recertified on August 23, and CMS will likely approve that application; and
- Since at least 1,627 people have signed on to this Change.org petition to save LHH’s beds, demonstrating broad community determination to prevent the loss of these urgently-needed skilled nursing facility beds for generations of San Franciscans to come,
Therefore, the San Francisco Board of Supervisors and the Health Commission should direct Laguna Honda Hospital to immediately submit its waiver request directly to CDPH’s director, Tomás Aragón It's time they take this overdue action.
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.
October 4, 2023