LHH’s Delayed Inspections Delays Admissions

Laguna Honda Hospital’s Endless Waiting Game

Anonymous Complaints Under State Review
Staff Report Their Personal Trauma
Health Commission Claims it Has No “Levers to Pull”

by Patrick Monette-Shaw

• • • • • • • • • • November 28, 2023 • • • • • • • • • •

San Franciscans remain pretty concerned about what may be taking so long, having Laguna Honda Hospital’s (LHH) Medicare recertification site visit inspections begin. At this rate, the resumption of admissions to LHH is probably four months away. San Franciscans will be lucky if admissions restart before April 2024.

Somewhat shocking — on November 14, San Francisco's Health Commission president — herself a physician — asserted the Commission has no “levers to pull” to move recertification along to resume admissions to LHH.

LHH’s CEO and San Francisco’s Health Commission keep asserting they are at the mercy of federal inspectors showing up to conduct sequential facility inspection surveys to become recertified in the Medicare reimbursement program and become fully recertified. LHH’s CEO and Health Commission seem to have thrown in the towel, feigning their hands are tied. That has resulted in their collective impotence.

It's worth remembering that Laguna Honda was decertified in April 2022. It's also worth remembering the inspection process LHH is waiting to have started involves a four-month process from the date of the first site survey, which is supposed to be a full extended inspection. That's followed by a mandatory, 90-day reasonable assurance waiting period [to ensure corrective actions are  sustained long term], followed by a second complete inspection survey to ensure that Laguna Honda Hospital remains in “substantial compliance.”  That will stretch over a probable four-month period before LHH gains full certification and is allowed to resume admitting patients.

At this point, it's highly probable that Laguna Honda may not gain full recertification — allowing for admissions to the facility to resume again — until April of 2024. A full two-year decertification period is both almost unheard of and shameful. 

It’s shameful because the halt of new admissions for a full two years forces the dumping of vulnerable San Franciscans needing skilled nursing facility level of care at Laguna Honda into out-of-county placements for what now seems like an eternity. LHH's admissions policy, finally revised in September 2023, now contains a provision to re-admit patients forcibly evicted and exiled under mandatory discharges in the summer of 2022 during the botched, then aborted "LHH Closure Plan,” as the first priority for re-admission to LHH (provided they didn’t die) when admissions are allowed to resume.

We'll wait to see if LHH and the Health Commission actually make concerted efforts to reach out to those patients who have been evicted and offer them priority to return to LHH.

But for the hundreds of San Francisco residents denied admission to LHH during the past two years (but not actually evicted, since they were never admitted and placed out-of-county, instead), they may fall into the fifth category of admissions priority — but only if there is some meaningful and effective outreach effort made to identify the patients dumped out of county while LHH admissions were halted.

What’s the Inspection Hold-Up?

It’s worth revisiting the recent timeline of events.

It took the Health Commission until August 1, 2023, to approve a resolution allowing Laguna Honda to begin reapplying for recertification as a Medicare and/or Medicaid (Medi-Cal) provider. At that point, LHH had been decertified for 15 months and 18 days. And at that point, LHH had been awarded $40.4 million to hire outside consultants to come in and fix Laguna Honda's mismanagement problem. Problems that dated back for almost 20 years of running LHH as an acute-care hospital rather than as a Skilled Nursing Facility (SNF).

On August 11, LHH submitted its Medi-Cal recertification application to the California Department of Public Health (CDPH), which surprisingly quickly approved it. LHH was recertified as a Medi-Cal (only) provider on August 16, 2023.

Then, on August 23 LHH submitted a “change of information application” for Medicare recertification to the Centers for Medicare and Medicaid Services (CMS), with the legal assistance of San Francisco City Attorney David Chiu’s staff. LHH informed its governing body, the Health Commission, on September 12 that “[LHH is] subject to a full survey by CMS, which could happen at any time, and without notice:”

But it was the wrong type of application, which Chiu and his staff should have had the legal competence to have known. So, LHH had to go back to the drawing board and submit the correct Medicare recertification forms. On September 15, LHH submitted the correct application, losing almost a month in the process. On October 10, LHH again informed the Health Commission that "[LHH is] subject to a full survey by CMS, which could happen at any time, and without notice:”

Sadly, LHH informed the Health Commission's LHH-JCC (Joint Conference Committee consisting of three Health Commissioners and LHH's senior management team) on Tuesday, November 14, that LHH is still waiting for the first recertification inspection survey to begin. 

Now, just after Thanksgiving, and given the end-of-year and New Year holidays are just weeks away, it's improbable to imagine site visit inspections happening before January 1, 2024. The four-month process may begin then.

Essentially, LHH sat by idly for over two months without attempting to get local, State, and Federal legislators to intervene and move the entire survey inspection process along expeditiously.

Of interest, former San Francisco Health Commission President Daniel Bernal — who had simultaneously been former House Speaker Nancy Pelosi’s Chief of Staff for two decades and should have had an inside track exerting federal pressure — took no action to try to speed up the Medicare inspection survey process before he recently stepped down from the Health Commission to take a Vice Chancellor job at UCSF, doubling his salary to approximately $350,000.

[Bernal had to seek a San Francisco Ethics Commission waiver to take the UCSF gig, crying poor that he would face “an extreme financial hardship" without being granted the Ethics waiver, which he needed for retirement purposes to avoid “incurring more debt,” apparently given he had only earned $174,058 working for Pelosi during 2022. Ethics Commission staff had determined Bernal would not have faced “extreme financial hardship,” but Ethics Commission appointees approved his waiver request, anyway. Observers wondered whether Pelosi had greased some wheels at Ethics, as many other San Francisco politicians reportedly had done by submitting letters supporting Bernal's cries.]

[As for me, I have a hard time empathizing with Bernal’s whine that his retirement based on his $174,000 salary servicing Pelosi was a “hardship.”  After all, my own City employment retirement is based on a third of that, at a final salary after 16 years of about $60,000. I haven't whined about facing a "financial hardship.”  But I’ve never pretended or aspired to be part of the gay “A-Crowd” Castro community. And I waste no time contemplating a pension based on earning a $350,000 salary.]

At the very least and at a bare minimum, Bernal could have simply picked up the phone and reached his boss, Pelosi, asking her to intervene to get the U.S. Health and Human Services Secretary Xavier Becerra, California Health and Human Services Agency Secretary Dr. Mark Ghaly, or the California Department of Public Health Director Dr. Tomás Aragón — the latter two of whom are both Newsom appointees — to get LHH’s Medicare survey inspection ball bouncing or rolling!

Also of concern, although District 7 Supervisor Myrna Melgar had taken the lead previously in trying to light fires under San Francisco's congressional delegation to initiate and spur action, Melgar herself has been curiously missing in action on advocating for a prompt start to CMS' inspections of Laguna Honda. San Franciscans may need Melgar's rapid interventions now more than ever.

Are Anonymous Complaints Slowing Inspections?

As a reminder for readers, LHH was warned at least three times after it was decertified in April 2022 that it should not get any more "Immediate Jeopardy” inspection violation citations (that pose a potentially severe risk of jeopardizing residents' health) and that LHH should additionally reduce the number of “Actual Harm” citations it had been receiving (a step lower on the severity scale). Unfortunately, LHH did rack up another “Immediate Jeopardy” citation on May 8, 2023, that put LHH at risk of not gaining Medicare recertification.

Also, regrettably, LHH’s Quality Management Department presented its monthly “Regulatory Affairs Report” for the period ending in October to the LHH-JCC Commissioners on November 14. The report — which summarizes so-called “facility-reported incidents” (FRI’s) nursing homes are required to report to California’s Department of Public Health — was potentially more worrisome.

Among other details, the “Survey Updates” section of the report showed three “Facility Reported Incidents” were investigated on-site at LHH on October 20 and October 30 — all involving “Anonymous Complaints” that are apparently still under review by CDPH’s District Office as of November 14. The news was somewhat alarming.

It's unknown whether LHH staff, residents, or their family members are filing anonymous complaints or why they feel compelled to file them anonymously.

Ten months into the calendar year 2023 (through October 31), LHH had reported 31 anonymous complaints, up admittedly by just one more than in the calendar year 2022. But there are still two months to go, and LHH has averaged 4.4 anonymous complaints per month so far in 2023.

Most on-site investigations are typically resolved on-site, rather than involving District Office review and decision-making. So, it’s potentially concerning that the three anonymous complaints investigated in October were not resolved during the October site visits but were instead elevated to review by CDPH's District Office. And it's unknown if the three anonymous complaints investigated all occurred during October or had perhaps occurred earlier, and CDPH had just gotten around to investigating them due to backlogs in CDPH.

Regardless, concerned observers are worried about whether those anonymous complaints may have slowed CMS commencing the Medicare recertification inspection survey, since it may take some length of time before we learn from potential CMS Form 2567 inspection reports become public, just what problems the anonymous complaints may have uncovered, and whether LHH received additional serious State deficiency violation citations and/or fines — again.

Observers know that “exit survey” de-briefing procedures traditionally used during site visits typically involve informing LHH about what particular “F-Tag” inspection code standards may have been involved, investigated, or violated — and whether violations involved substandard patient care by definition. Have LHH and the Health Commission already been de-briefed in closed session on what problems the anonymous complaints uncovered during an exit meeting — information LHH and the Health Commission may have decided to keep secret temporarily?

Again, the concern is that the investigations of anonymous complaints may be slowing down the start of LHH’s Medicare recertification site survey inspections, delaying and exacerbating the resumption of new patient admissions.

Other Clues in the “Regulatory Affairs Reports”

There were other clues in the “Regulatory Affairs Report” presented to the LHH-JCC on November 14.

A preliminary analysis of the data reveals that there have been a few significant changes in some of the “Facility Reported Incidents” (FRIs) LHH has reported to CDPH over the past two calendar years after it was decertified.

Although there were 65 fewer facility-reported “abuse incidents” overall in 2023 (albeit with two more reporting months to go), there was a concomitant offsetting increase of 31 additional “serious incident" FRI, including more injuries of unknown source, major injuries, other adverse events, and disease outbreaks, for a net decrease of 34 FRIs across the two years.

I am not a clinician and have no clinical training. It is difficult to draw sound conclusions without a longer baseline since the types of incidents reported vary from year to year.

Some observers rightly wonder whether LHH staff had been spending so much time trying to “manage” residents with behavioral health problems that staff didn't have the "bandwidth” to help prevent other types of serious incidents.

The subcategory of “resident-to-resident abuse” in the facility-reported “abuse incidents” category is clearly significant, having dropped from 94 incidents reported in 2022 to just 44 such incidents in 2023. It seems clear the decline was probably due to the cessation of LHH admissions in April 2022, particularly of younger, behaviorally-disruptive patients dumped out of SFGH into LHH for ease of discharge from an acute hospital setting.  

Across the seven categories in the “serious incidents” section, the increase of 31 additional incidents in 2023 (from 40 to 71 such incidents in 2023) is significant, even when comparing just two calendar years in the baseline of years compared.

As for the “other serious incidents” category, the data shown will probably rise further in the next two months when the November and December data are eventually released.

The 71 total incidents in 2023 may be presumptive indicators of both distracted and overburdened LHH staff and potentially enhanced reporting requirements under CMS's and CDPH's watchful eyes. For example, the rise in “major injuries” from 4 to 8 in 2023 could have been due to staff distraction or, alternatively, understaffing in some nursing job classification codes. Major injuries are always fully reported, so it’s unlikely the increase would have been due to enhanced reporting requirements.

The doubling of “major injuries" is worrisome and may have perhaps been even more worrisome to CMS in deciding when to begin LHH's Medicare recertification inspection process.

By contrast, the rise in the vague subcategory of “staff neglect” incidents to six in 2023 — when there had been zero in 2022 — might be due to more stringent reporting requirements. (It’s not yet known if reporting of this type of incident had been required in years prior to 2022, or if it's an entirely new F-Tag category of incidents introduced during recent CMS "Phase 3" regulatory changes applicable to skilled nursing facilities.)

Reasonable clinical observers suspect the overall increase in the seven “serious incidents” category types may likely be due to both staff distraction — caused by the chaos from repeated inspection surveys, external consultants hovering over staff, the influx of new and additional clueless interim administrators brought over from SFGH and the San Francisco Health Network (SFHN) to act as decertification “incident response commanders” but who lacked actual experience working in skilled nursing facility settings, and the resulting pressure from increased staff meetings and incessant monitoring of staff to regain certification — plus potentially enhanced reporting of the “abuse incidents” subcategories.

If staff shortages occurred in some job classifications, that might have been a factor. Having to guide and orient per diem registry service nurses could also have been a distraction from focusing on direct patient care, even though staffing may have been temporarily boosted.

Still, it’s fair to report on these trends, without drawing overly firm conclusions, given just the two years of data.

However, CMS and CDPH obviously have access to 10 or more years of the facility-reported incidents LHH has been reporting, and CMS knows this data better than anyone (although LHH and the Health Commission should have access to this data at their fingertips, too).

Of interest, the preliminary FRI analysis also showed there has been a significant increase in the number of FRIs at LHH still awaiting investigation and resolution by CDPH staff. The data shows that at the end of December 2022, 185 FRIs were awaiting CDPH review. That climbed to 289 unreviewed FRIs by the end of October 2023, an increase of 104 over ten months. In other words, there are now almost 100 more uninvestigated FRIs (289) than the 192 FRI's LHH had reported in the first ten months of 2023.

This is an indicator of how far behind CDPH is in investigating facility-reported incidents in nursing facilities all over the State of California!

Any reasonable observer would have to wonder whether LHH's history of FRIs has also contributed to the delay in CMS even beginning LHH's Medicare recertification inspections that continue delaying the resumption of new admissions.

Is Another Factor LHH’s Medical Director Vacancy?

Perhaps another factor contributing to the delay in beginning LHH’s Medicare survey inspections is the unwarranted delay in hiring a new Medical Director for Laguna Honda.

Back on February 1, 2023, CMS "Regional Survey and Operations Group” located in Sacramento wrote a letter to LHH’s acting CEO, Roland Pickens, essentially ordering LHH to “prioritize efforts expeditiously" to install permanent leadership and demonstrate progress in doing so no later than May 19. CMS expected LHH's new Medical Director to join the California Association of Long-Term Care Medicine (CALTCM) to receive “coaching” before February 28, 2023.

In response, LHH posted a job opening announcement online on February 10 to recruit a Medical Director, listing an annual salary of up to $306,878 plus a fringe benefits package worth 32.2% above the base salary.

In addition, LHH entered into a $92,071 contract with Berkeley Search Consultants as far back as October 1, 2020 — two years before it was decertified in April 2022 — to recruit an LHH Medical Director. As of July 11, 2023, LHH had been billed by Berkeley Search Consultants for a second invoice, bringing the costs to $46,035. It's not yet known if LHH has been invoiced and paid Berkeley Search Consultants for two more invoices on the remaining balance of $43,065 for hiring a Medical Director for LHH or if LHH switched to a different executive recruiting company.

That LHH hadn't completed hiring and onboarding its new Medical Director by November 14, 2023, probably has not escaped CMS and CDPH's attention. Can that also be contributing to the delay of starting LHH’s first Medicare inspection survey?

Health Commission Claims It’s Powerless to Help

During the LHH-JCC November meeting the Health Commission's newly-elected president, Laurie Green, MD stated at 0:20:17 on audiotape:

"I think it would be helpful for us to kind of review this whole issue with CMS [and State] surveyors coming [for LHH’s Medicare recertification inspection] because if I understand correctly, we have no levers to pull [to initiate the survey inspection process], including we tried our darnedest at the very beginning, at the very outset of all of this to have some of the … um … our very connected politicians intervene, and even that did not yield great results. I don't think the surveyors will come out this week … and next week is Thanksgiving.

So, it’s hard to know when they will be here [show up to conduct the first Medicare inspection], and if I understand correctly, hopefully [they’ll show up] by the end of the year. But they prioritize [when they'll show up], and all we can do is ask [that they start the inspections]. What is our ability to reach out and try to give them a little nudge [to move this along]?”

An LHH staff member, possibly  Laguna Honda’s new CEO, Sandra Simon, replied to Green saying:  “You're correct in that we don't really … have no way to know. There's really no way for us to influence … after that, it's just a waiting game.”

Here we are 19 months following LHH decertification in April 2022, and the Health Commission is still claiming it is powerless, without political levers to pull. The Commission seems content to just sit back and idly play the “waiting game.”

That's not good enough.

After all, LHH has been awarded $40.4 million in consultant contracts in the 19 months since decertification in April 2022 and has the approval to spend another $8 million on consultants. Then there's the $37 million currently approved to repair LHH's facilities (which is outrageous because the replacement hospital that opened in 2010 is only 13 years old). Additional facility repair costs needed haven't been fully disclosed.

All told known expenses to position LHH for Medicare recertification have reached at least $120 million, not including the $8 million approved for more consultants. The $120 million is projected to grow even higher. San Franciscans are tired of the expenses that keep accruing during this endless “waiting game” — not to mention the unknown costs of human suffering.

Surely, the Health Commission can pull some levers and beg San Francisco’s congressional delegation — and our Governor, U.S. Senators, and Mayor — to demand that CMS expedite the survey inspections so that admissions to Laguna Honda can resume by April 2024. Vulnerable San Franciscans needing admission to LHH deserve no less.

LHH Staff Report Their Personal Trauma

Another report dated March 10, 2023 — but only released in response to a public records request on November 17 — pointed to a potentially complicating issue facing LHH’s staff.

The report was prepared by Health Management Associates (HMA), which has been awarded at least $5.9 million in consulting contracts since May 2022 to help Laguna Honda prepare to submit its application to obtain Medicare recertification. HMA was "engaged” (a.k.a., “commissioned’ or “hired”) to conduct seven focus groups among LHH staff to assess staff training and educational needs to care for residents with behavioral health and substance use disorders.

The report revealed, somewhat surprisingly, that LHH staff have been suffering from their self-reported “trauma.”

Of interest, the “Themes” sub-paragraphs on numbered page 6 of HMA’s report states:

“A consistent theme across all focus groups was the compounded trauma the LHH staff have experienced over the past four years. LHH has been locally and nationally identified by the horrific abuse scandal in 2019 …”

And this gem:

“Several staff noted the ongoing negative publicity with LHH means they [staff, not patients] can never escape the trauma, and it impacts all areas of their lives.”  Anonymized quotes from staff also included these gems:  “There is stigma and layers of trauma.”  “We never healed from the abuse scandal; EAP never showed up.” … “We were abandoned [by the CMO, CNO, CEO, Quality who had left, all gone].”

“EAP” refers to an “Employee Assistance Program,” that typically provides counselors to help care for staff.

Imagine how LHH’s abused and traumatized LHH’s residents felt — especially since residents may not have had access to their own EAP, and had to turn to suing Laguna Honda and the City, instead.

Some LHH staff behaved horrifically during the 2019 sexual abuse scandal. Only a handful were fired, and Laguna Honda’s CEO, Mivic Hirose, and other senior staff were let go. Despicably, Hirose held onto a still-financially lucrative "golden parachute” transfer within SFDPH working in “medical informatics,” despite having no training or experience beyond surgical nursing training.

Any staff “trauma” brought on by the patient sexual abuse and cover-up scandal that occurred was a direct result of bad management and outright mismanagement, which flourished under Hirose. Period.

Any staff trauma so severe that it’s mentioned by staff four years later suggests LHH had become a truly dangerous place for anyone to work. And it identifies the major cruelty and cluelessness on the part of management. Direct care staff are typically the most vulnerable caregivers on the totem pole. But bashing the staff is what management always does to cover up the cruelty and neglect of their staff.

It's somewhat shocking to learn in 2023 of the trauma LHH staff endured four years ago, which appears to have gone unaddressed — when not ignored altogether — by senior leadership of San Francisco's Department of Public Health, SFHN managers, and even the Health Commission.

San Francisco Congressional Delegation’s Inaction

Are San Francisco City Hall officials in cahoots with San Francisco’s congressional delegation claiming their impotence to move LHH's Medicare recertification inspection process along? (Think former House Speaker Nancy Pelosi, U.S. Senator Diane Feinstein’s replacement stand-in (Laphonza Butler), and California’s other U.S. Senator, Alex Padilla.)

They may not be alone, given that Governor Gavin Newsom, Mayor London Breed, and San Francisco’s 11-member Board of Supervisors may all have taken a hands-off “waiting game” approach to helping kick-start LHH’s Medicare recertification site visits and inspection process that will take four months to complete — once the magic bouncing ball starts rolling.

As we've seen time and time again ever since decertification, those most obviously harmed by these ongoing problems are the residents, and the ever-increasing number of San Franciscans dumped into out-of-county facilities — denied admission to Laguna Honda.

Our Congressional delegation's inaction is almost as sadistically obscene as CMS initial decertification itself.

Will LHH’s admissions resume by May 2024, if we’re lucky? Or, will this keep dragging out indefinitely, ad nauseum?

This seemingly endless “waiting game” must end!

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 monette-shaw@westsideobserver.com.

November 28, 2023

Supervisor Peskin’s Bogus Rationale

Sudden Death of Remote Public Comment

Two Remote Callers Spoke Offensively for a Combined 26 Seconds.
Each Was Immediately Cut-off for Violating Board Rules.
Peskin’s Whopper Wrongly Punishes Everyone

by Patrick Monette-Shaw

• • • • • • • • • • November 4, 2023 • • • • • • • • • •

Supervisor Aaron Peskin overreacted on September 26 — within a mere 30-second period — during a  Board of Supervisors meeting when he decided to end remote public comment after two callers used antisemitic speech that violated Board Rules.

Supervisor Peskin, abetted by seven other District Supervisors, decided that fighting antisemitism was more important than the democratic process. He prevailed.

It was sad news because antisemites and racists essentially prevailed — shutting down essential democratic remote participation in City government. Anti-democratic forces were alive and well — inside City Hall! 

Was Peskin fighting fire with a blowtorch?

San Franciscan’s ability to provide remote public comment during public meetings died on October 17. There’s concern that sudden death may soon spread like the plague from the Board of Supervisors to other City policy bodies in rapid order.

America’s democracy was founded on the precept that the citizenry has a “right to know” what our government is doing in our names and on our behalf. San Franciscans clearly prefer retaining our rights to provide public comment on what our City government is doing for us. San Franciscans have not ceded our public voices to the Board’s whim. It was an overreaction. They were palpably annoyed with public comment violators.

Peskin decided instantly and on the spot his remedy would be to end remote public comment for everyone — except, we later learned, people with disabilities — who are willing to disclose details of the nature of their disability publicly. 

That effectively punishes hundreds, if not thousands, who want to participate remotely in our local government, whether or not they have a disability. Even worse, it will force those who have disabilities to disclose in advance what their special needs are. In order to call in remotely, disabled persons must seek burdensome "reasonable accommodation” exceptions. Or else they must face the burden of traveling to City Hall to attend in-person meetings.

You can safely bet that these new draconian procedures will rapidly spread to other Boards, Commissions, and other policy body meetings throughout the City and remain in effect for what’s likely to be a very long time.

On October 17, Peskin lined up seven of the other ten Supervisors to vote to pass his Motion to suspend remote public comment indefinitely, knowing the Motion needed eight votes to pass.

He got his eight votes. Only Supervisors Dean Preston (D-5), Joel Engardio (D-4), and Myrna Melgar (D-7) voted to oppose Peskin’s anti-democratic legislation.

Triggering Peskin’s Ire

The Board of Supervisors adopted somewhat recently — as did the Health Commission, and perhaps other City Boards and Commissions — a Resolution that they would begin their meetings by reading the “Ramaytush Ohlone Land Acknowledgement:”

We acknowledge we are on the unceded ancestral homeland of the Ramaytush Ohlone who are the original inhabitants of the San Francisco Peninsula. As the indigenous stewards of this land and in accordance with their traditions, the RamaytushOhlone have never ceded, lost nor forgotten their responsibilities as the caretakers of this place, as well as for all peoples who reside in their traditional territory. As Guests, we recognize that we benefit from living and working on their traditional homeland. We wish to pay our respects by acknowledging the Ancestors and Relatives of the Ramaytush community and by affirming their sovereign rights as First Peoples.”

As far as is known, the Land Acknowledgement may be the only reparations “paid” to the RamaytushOhlone. That scrap of paper isn’t worth much and won’t build “generational” wealth across subsequent generations of Indigenous tribe Peoples.

Since my ancestry includes an admittedly scant 1/64th Native American Indian roots, I find the RamaytushOhlone Land Acknowledgement somewhat of an insult. It certainly never helped my family build “generational” wealth.

Our Board of Supervisors began its September 26 meeting by reading the “Ramaytush Ohlone Land Acknowledgement” before it was scheduled to reach Agenda Item #28, “Accepting the Final San Francisco Reparations Plan,” a massive 398-page document from the “African American Reparations Advisory Committee."  The document seemingly addressed only reparations to San Francisco’s African-American residents—no reparations to the RamaytushOhlone.

But before hearing the Reparations plan at Item #28, the Board took up agenda item #26, General Public Comment, first. Somehow, a caller claimed to have heard a reference to the Reparations Plan even before agenda item #28 was called.

At the tail end of the Public Comment Peskin’s ire was set aflame.

26-Second Trouble on September 26

The last two remote Public Comment callers made offensive remarks that violated Board rules, visibly angering Peskin.

A partial verbatim transcript of the Public Comment period is available online. [Warning: The two speakers’ unedited offensive remarks were transcribed verbatim.]

The first offender, Mr. “Kater,” spoke at 3:12:30 (hours:minues:seconds) on tape and volunteered his name, transcribed in the link above. (He may have used an alias, as is anyone’s right.)  He didn’t use actual offensive or obscene words per se. Still, he asserted white Americans of European ancestry shouldn’t have to pay reparations, wrongly claiming “all" the slave ships that brought enslaved Black people to America were Jewish-owned ships.

Kater was allowed to speak for just 20 seconds of the three minutes allotted to each speaker before his remote connection was abruptly terminated — within 27 seconds. That was a demonstration that the Board of Supervisors currently has the technical ability to cut off and silence offensive speakers almost instantly!

Kater, of course, was wildly wrong, as widely respected Jewish scholars have researched and well documented. Kater’s assertion that Jewish people owned all slave ships was factually incorrect. 

Jewish Scholars Research

Various Jewish scholars have acknowledged the minimal role of Jews in the African, British West Indies, and Caribbean slave trades from the mid-1560s to the 1700s. One scholar, Jonathan D. Sarna, edited a book titled "Jews and the Civil War: A Reader.”  Sarna is a leading commentator on American Jewish history, religion and life, and is the only American Jewish historian ever elected to the American Academy of Arts and Sciences.

Part 1 of Sarna’s book is titled “Jews and Slavery.”  Chapter 1 contains an essay by Seymour Drescher titled “Jews and New Christians in the Atlantic Slave Trade." One published review of the Drescher chapter notes that across the two centuries of the Atlantic slave trade between the years 1500 and 1700, there were three phases, which resulted in approximately 8.3 million Africans being transported to the New World to be sold as slaves. The Drescher extract noted:

“… the slave trade opened up transoceanic niches of entrée and refuge that gave New Christians an initial advantage in human capital over other merchants, but it also suggests that Jewish merchants were marginal collective actors in most places and during most periods of the Atlantic system.” [emphasis added]

[Note: "New Christians” appears to reference so-called descendants of Iberian Jews who converted to Christianity during or after the Iberian Inquisition in 1483.]

That’s not the only scholarly research acknowledging that Jewish merchants played only marginal roles during the slave trade.

Eli Faber’s book, “Jews, Slaves, and the Slave Trade: Setting the Record Straight” — was written, in large part, to counter lies in a widely debunked Nation of Islam book, “The Secret Relationship Between Blacks and Jews” (1991), which contained hysterical, inaccurate, and antisemitic canards — clearly documents that there were almost no Jews involved in the African slave trade.

Harvard’s Henry Louis Gates, Jr. condemned “The Secret Relationship”as “the bible of the new antisemitism." Still, as Finkelman noted, the book has been widely read and believed by many African Americans because the Nation of Islam published it.

A Johns Hopkins University Press journal published a review of Faber’s book by Paul Finkelman, a Professor of Law Emeritus at Albany School of Law. Finkelman concluded Faber’s data made the point over and over again Jews were only minor players in the African trade. However, some slaves were indeed transported on Jewish-owned ships or on ships in which Jewish merchants may have held a financial interest.

Second Offensive Caller

The second offensive caller chose to remain anonymous — not stating his name. That’s allowed because under California’s Public Records Act, the Brown Act, and San Francisco’s Sunshine Ordinance, people are allowed to provide anonymous testimony orally or in writing and anonymously request public records. That anonymity is enshrined in State law. Anonymity isn’t a crime or a sign of cowardice. Some people do so for entirely legitimate reasons.

Unfortunately, the second [last] caller on September 26 used a derogatory slang term for Jews, followed by the “N”-word, which nearly everyone finds grossly offensive. Many San Franciscans have both Black and Hispanic multi-ethnic nieces and nephews and find that word personally offensive.

Fortunately, that last caller received a mere six seconds of airtime before his remote phone connection was also abruptly disconnected by either Clerk of the Board, Angela Calvillo, SFGOV-TV staff, or staff of the Department of Technology, who were quick on the draw to sever his phone connection.

So, the meeting was flawed by two callers for just 26 seconds before quick action shut them up. It’s clear the City already has the technical ability to get this done without needing changes to State law, as Peskin now wrongly claims.

As well, the Clerk of the Board’s draft September 26 meeting minutes show the last two callers were effectively dealt with; page 14 of the minutes reports: 

• [Second to-last-]Speaker; shared concerns regarding the Reparations Plan. (This member of the public made a comment that violated the City’s policy on discriminatory or harassing remarks; therefore, Clerk Calvillo discontinued their time.) 
• [Last-]Speaker; spoke on various concerns. (This member of the public made a comment that violated the City’s policy on discriminatory or harassing remarks; therefore, Clerk Calvillo discontinued their time.)

“Discontinued their time" is a polite way of saying someone quickly snipped their remote phone connections.

Peskin’s Mad Dash

As the verbatim transcript details, it took Peskin just 24 seconds between the cut off of the first speaker’s phone connection at 3:12:50 on audio; the last caller cut off at 3:13:13, and Peskin’s announcement of his instantaneous decision to end all remote call-in testimony. Peskin stated at 3:13:14 he would introduce a change to the Board’s rules.

Peskin proposed legislation within three days (by September 29) to amend Board Rules of Order 1.3.3, Remote and In-Person Public Comment, to discontinue and eliminate taking remote public comment at all meetings of the Board of Supervisors and its various Committee meetings. He claimed the process for accommodating exceptions for people with disabilities would be forthcoming. 

We learned — only after the full Board passed the legislation on October 17 — that a new “Inquisition Screening Group” will force people to disclose the root cause of their medical disabilities (see below).

Peskin’s legislation to amend the Board’s Rules of Order was crammed through writing and rapidly placed on the Rules Committee’s October 16 meeting agenda.

Peskin’s Lies:  October 16 Rules Committee

By the time the October 16 Rules Committee rolled around, at least nine members of the public had submitted written public testimony in the background Public Correspondence files for Agenda Item 4, all opposing Peskin’s legislation to end remote public comment. The written testimony prominently included San Francisco’s Sunshine Ordinance Task (SOTF) remarks, strongly opposing the proposed Board Rules change.

In my own written testimony, I noted I strongly oppose antisemitic comments in any setting, especially during public meetings. But Peskin’s proposed legislation ending remote comment was an over-reaction and goes too far, even if Peskin is right to be greatly offended by displays of antisemitism.

I noted eliminating remote public comment will not fix the problem of speakers attending in person to make repugnant, or antisemitic comments. I agreed with the SOTF: greater care should be taken to immediately cut off the microphone of speakers attending in person who make antisemitic remarks. That’s the quickest and most effective means to silence abhorrent abuse of Free Speech. [I only learned later by reviewing the September 26 meeting minutes and listening to the audio of the hearing the two remote caller’s “microphones” (phone connections) had, in fact, been relatively immediately cut off.]  

Not to be outdone by the lies of the two miscreant public callers on September 26, Peskin appears to have departed from the truth himself during the October 16 Rules Committee’s hearing.

First up, Peskin essentially deflected (OK, lied) at about 0:32:49 on audiotape when the Rules hearing began, saying he had been “reluctant” to introduce the change to eliminate remote public comment. As shown above, there was no reluctance on his part, given that within 24 seconds on September 26, he raced hell-bent to an on-the-spot, premature conclusion to end remote comment, ostensibly to punish two miscreant remote callers.

Peskin bemoaned having callers hide behind anonymity. That may have also been a falsehood since one of the speakers provided his name (perhaps an alias) while the other one didn’t provide a name. But it’s a virtual certainty that the Webex remote videoconferencing system adopted by the City during the pandemic displays the phone numbers of remote callers.

Then, at 0:41:38 on audio on October 16, Peskin suggested San Francisco would need to lobby the California Legislature to obtain changes to State law, specifically the Brown Act. Peskin neglected to mention California’s 2023–2024 legislative session is well underway, and he would need to find sponsors in both the Senate and Assembly to carry any such legislation. It’s doubtful legislative changes could be developed in the current legislative cycle, which typically takes a year or longer.

It would involve a very high bar to eliminate provisions in State law allowing for anonymous written and oral public comment.

Then, at 0:42:22 on audiotape, Peskin claimed seven years ago the Clerk of the Board had placed a “query” with San Francisco’s Department of Technology about what it might cost to implement technology to develop a delay feature for public comment during live SFGOV-TV cable TV broadcasts of Board meetings. He claimed the estimate provided to Clerk Angela Calvillo came in with a $10 million price tag.

That’s ludicrous. There’s already a delay mechanism broadcasting over SFGOV-TV (if not in Board Chambers). If you call in and provide remote public comment by phone, you can hang up, ending your call, and then hear it delayed on broadcast cable TV several seconds later. So, Peskin deliberately misled viewers and his Board colleagues about delay measures.

Given the Clerk of the Board terminated phone connections, cutting off the two abusive callers on September 26, SFGOV-TV or Webex already appears to have “kill switch” technology in place during actual meetings being broadcast, making a $10 million expenditure a bogus rationale (i.e., another “lie”). And it’s a virtual certainty San Francisco’s City Attorney’s Office has given its blessing to cut the connections of remote callers under the color of existing law, or Calvillo’s team wouldn’t be doing it — risking potential lawsuits against the City and expensive litigation.

The City doesn’t appear to need a change to the Brown Act to terminate abusive callers, since the Board is already doing so within the City’s existing legal authority.

For good measure, at 0:42:12 on audio, Rules Chairperson Matt Dorsey whined (on October 16) that he wants to "remove the cloak of anonymity.”  Good luck, Dorsey, getting the State legislature to remove provisions in State law providing public speakers’ anonymity who have legitimate reasons to protect their personal identities. Ask judges and witnesses involved in Trump’s various felony prosecutions about protecting their identities.

Because remote testimony was still permitted, Dorsey opened public comment at about 0:44:49 on audiotape.

Eloquent Opposition

When public comment began on October 16, 34 speakers provided oral testimony, including four who spoke in person in Board Chambers and 30 who called in. All 34 opposed Peskin’s legislation. Not one caller, and none of the nine written testimonies, supported Peskin’s rule change. The testimony demonstrated how passionately San Franciscans feel about retaining their rights to participate remotely in the policy-making of our Board of Supervisors.

Most notably, the fourth in-person speaker was a brave City employee, but he did not state his name and didn’t explicitly state he was speaking as a private citizen on his personal time, not as an employee.

The speaker indicated it was “hard to come up here as a City employee.”  He indicated so much money has already been spent implementing the remote call-in capabilities, apparently on the Webex system adopted at the start of the COVID pandemic in March 2020. He testified that some City Boards and Commissions had just installed their hybrid remote-comment systems the week before. 

He indicated the City had just spent another $100,000, which would go to waste. He indicated that with the new systems:

It’s very simple. [Currently,] we can cut people [callers] off. Period.”

This was further evidence that Peskin’s legislation was unnecessary. The City already has the technology to cut off offensive callers. Peskin doesn’t need to beg California’s legislature to develop amendments to the Brown Act, or other State laws.

In the end, taking impassioned testimony from the additional 30 remote callers and the expert testimony of one brave City employee had absolutely zero effect. What other proof did Peskin and the Rules Committee need?

The Rules Committee turned a blind eye and a deaf ear. Dorsey took a roll call vote on a motion to forward a recommendation to the full Board the next day as a Committee Report. He, and Rules Committee members Ahsha Safai and Matt Dorsey, voted unanimous approval to forward Peskin’s legislation.

Full Board Hearing October 17

Before the full Board hearing on October 17, another 13 written letters had been submitted to an additional “Public Correspondence" background file. All 13 also opposed Peskin’s blowtorch. No oral public testimony was taken; oral testimony is only allowed during Committee-level hearings.

At the full Board meeting, Peskin opened by noting on audiotape (0:27:14) all Supervisors were in attendance on September 26 when “… a number of … white supremacists participated remotely, as those cowardly individuals like to hide in the anonymity of the Internet and remote public comment …”.

By a “number of,” Peskin meant “two.”  He expected the other 10 Supervisors to ignore that 1)  One of the callers identified himself by name, so wasn’t cowardly by hiding behind anonymity, and 2)  Ms. Calvillo had cut off both remote speakers within just seconds each, deplatforming both.

At 0:28:18, Peskin expected all Supervisors to believe that California’s Legislature needs to amend the Brown Act, and perhaps other State laws, to develop a State-level legislative  “fix,” saying “[changes] might allow us to block [phone] numbers from sources of hateful speech [made by previous known callers].”

That’s nonsense. Which no Supervisor should have swallowed. All 11 Supervisors apparently developed amnesia overnight — that a City employee testified just a day before at Rules that the Board already has systems in place to cut off or mute remote and in-person speakers.

Doesn’t Peskin understand that really determined White Nationalists and antisemites, having learned their phone numbers would be electronically blocked, would just migrate to unknown or untraceable burner phones or different phone numbers (assuming they aren’t already using burner phones)? Does Peskin also expect the State Legislature to outlaw burner phones, too?

After Peskin made his opening remarks, he called on three other Supervisors who signaled they wanted to comment prior to the Board’s Clerk taking a Roll Call vote. Supervisors Dean Preston, Joel Engardio, and Myrna Melgar spoke in opposition, followed by Supervisor Shamann Walton.

At  0:34:45 on audiotape, Supervisor Walton falsely tried to pull the wool over our eyes, saying:

“… I just want to be really clear that this will not have a negative effect on people with disabilities, it will not have a negative effect on seniors. And, you know, it’s not just about the racists and demonizing comments that people make when they call in.  …  But for me, it’s also about the fact I don’t want to represent people from Florida or Texas in their communities here in the [San Francisco] Board of Supervisors, and people have taken advantage of that through remote public comment. …

"Really just want to make sure that people understand we are not eliminating remote public comment for people who have disabilities, for people who are seniors, and for people who are not capable of coming in to these [Board] Chambers [to provide in-person comment] …

"So, I want to make clear on that and want to make sure that anyone who creates that narrative [that remote public comment for seniors and those who are incapable of attending in Board Chambers was being eliminated] that everyone understands that’s actually not factual.” 

That now appears to have been another probable fabrication because two days later, on September 19, the Board published its set of agendas for meetings the week of October 23, including entirely new procedures to request an ADA accommodation to seek remote call-in permission did not include a provision for seniors, and did not provide for people inapable of coming to Board chambers. It provided the new process — only for people with disabilities seeking reasonable accommodation — was made entirely contingent on whether the disabled person would be willing to publicly divulge the exact nature of their disability to Supervisors’ “Disability Inquisition Screening” staff.

Walton tried hard to disclaim negative effects. But of course there are:  Despite Walton’s rhetoric, senior citizens who don’t have a disability are negatively affected. There’s no process for them to request reasonable accommodation not covered by the ADA. People who aren’t capable of coming in — say, a working mom or a student taking a class — who can’t take two to three hours to come to City Hall to make one-, two-, or three-minute in-person testimony are negatively affected because there’s no process for them, either.

Walton may not want the narrative that rights previously granted are now taken away from seniors without disabilities and those unable to attend in person. I’m here as the first (but surely not the only) person to say, “I’m here to create that narrative,"… because it’s a fact, those rights are being eliminated.

Most telling, Walton disclosed that the Board knows they receive calls from Florida and Texas. They can only know that because the technology used by all San Francisco policy bodies displays all remote caller’s phone numbers on current broadcast and computer equipment. San Francisco’s City Attorney’s Office should be able to access that data and prosecute actual hate speech when justified.

Full Board Passes Peskin’s Nonsense

Before the Clerk of the Board took a Roll Call vote, notably there was not a peep of discussion from the other six Supervisors — Hillary Ronen, Rafael Mandelman, Catherine Stefani, Connie Chan, Ahsha Safai, and Matt Dorsey — sitting there like bumps on a log.

None of the 11 Supervisors mentioned the City employee who had bravely spoken the day before, who had concluded:  “We can [currently] cut people [callers] off.  Period."  All 11 likely knew that the employee had essentially pulled the rug out from under Peskin’s rationale. Rationale that belied currently available remedies. It was pure bs.

Receiving an eight-to-three Roll Call vote, Peskin got his victory — with Preston, Engardio, and Melgar bravely dissenting.

The vote was a dark day, and an ugly stain on San Francisco’s history. It was a day when the racists and antisemites won, effectively shutting down democracy for thousands of  San Franciscans. Apparently eight of our Supervisors felt no shame in doing so, letting the bad guys win.

My Records Request and Responses

On Tuesday October 17, prior to the start of the Board’s 2:00 p.m. meeting to consider Peskin’s legislation I submitted a records request to Board Clerk Calvillo and “courtesy copied” Peskin.

My records request asked for a numbered list of each and every remote “Zoom Bombing” or remote “Webex” incident during Board of Supervisors and Board Committee meetings, and a separate breakout of any disruptive incidents by people attending meetings in person in Board chambers, including the date of each incident, which forum had been interrupted, the meeting name (full Board vs. Committee), the type of violation (hate speech, verbal abuse of staff or public figures, etc.), and any “interventions” taken by Board staff during a given meeting to end abusive speech or hate speech, cutting off the speaker’s microphone in Board Chambers, immediate disconnection of the violator’s Webex connection, muting of remote callers, etc.). I asked for the total number of such incidents since March 2020.

Calvillo’s office responded "Our office does not have any records that contain a list or tally of" incidents, essentially inviting me to review the published meeting minutes of every Board and Committee hearing held since 2020 and inviting me to review SFGOV-TV videotapes of each of those meetings. Possibly, one could tally the number of such incidents themselves. [Of Note, Calvillo routinely cuts off speakers who talk off-topic to any agenda item at hand, but that’s quite different from cutting off a speaker making on-air racial slurs or antisemitic remarks, and other forms of hate speech.]

Upshot:  For all we know, there may well have been just a single “hate speech” incident on September 26 behind Peskin’s decision to end all remote public comment, since the Clerk’s Office doesn’t maintain a running tally of such incidents.

Draconian New “Accommodation” Process

From here on out, only people with a City-verified disability who “require remote access as a means of reasonable accommodation under [the] “ADA” (Americans With Disability Act) [emphasis added], will be permitted to call in remotely. And in order to do so, they’ll have to "out” just what their disability entails.

Starting with all Board and Committee meeting agenda’s published after October 19, agenda’s now bury in the fine print reads, in part: “If you require remote access as a means of reasonable accommodation under ADA, please contact the Clerk’s Office to request remote access, including a description of the functional limitation(s) that precludes your ability to attend in person.”

Now, disabled people who want to participate remotely by calling-in to speak must disclose their medical conditions publicly as the price of “admission.”  They must kiss  their medical records protections under HIPAA goodbye. 

An entirely new ADA section was added to all agenda’s after Peskin’s legislation passed on October 17. It never existed before the COVID pandemic descended in March 2020 or after the Board adopted its remote-Webex call-in system. For the past three years, the remote participation process never required remote callers to seek accommodation permissions beforehand nor required callers to self-disclose descriptions of their disability.

Will I have to reveal all of my medical conditions to the Board of Supervisors’ Medical Records Inquisition Staff if I seek accommodation to participate via call in? Does controlling old-age urinary incontinence qualify as a disability? Would that count? What about other non-disabled seniors with incontinence "issues"? Does the San Francisco Inquisition deserve to learn this? Will it be leaked to the media, no pun intended?

Accommodation requests must now be made at least 48 hours in advance of any given meeting, which is ridiculous since the Sunshine Ordinance and the Brown act provide that meeting agendas only have to be posted 72 hours in advance of meetings. That means people seeking accommodation will have just 24 hours to make arrangements.

In the end, even though I consider myself disabled by other medical conditions, as a matter of equity I have to wonder whether I should continue to use ADA accommodation exceptionalism privileges when I know my neighbors who aren’t disabled — and one who is a single Turkish working mom and Uber driver who can’t afford to take off from work for two hours to attend meetings in person — are denied the same opportunity I might obtain, only because of multiple disabilities.

Just as important, neither Peskin nor any of the other seven Supervisors who passed ending remote public comment said one word about how ending remote public comment will affect elderly, non-disabled Jewish San Franciscans, given Supervisor Walton’s falsehoods.

I wonder how many of San Francisco’s Jewish seniors who aren’t disabled will inequitably be harmed by eliminating remote public comment?

Where Do We Go From Here?

I’ll advocate through my membership with the ACLU and California’s First Amendment Coalition (FAC), asking they do whatever they can to block attempts by Peskin and his colleagues to amend California’s State constitution — or change the Brown Act, CPRA, and San Francisco’s Sunshine Ordinance — to eliminate anonymous public comment, attempts to require speakers pre-register to speak and provide proof of their real names, or have to reveal the root cause of their disability to be granted ADA accommodation to call in remotely. That would devolve into an authoritarian State Police. Peskin must surely know this.

After all, these laws and the U.S. Constitution guaranteeing Freedom of Speech should not be misconstrued as mere speed-bump impediments to navigate around for a legitimate but aspirational goal of curbing and eliminating hate and antisemitic speech in our Public Square.

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 monette-shaw@westsideobserver.com.

November 4, 2023

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

Help Save 120 Beds at Laguna Honda Hospital

Please Sign My Petition

Given our severe shortage of Skilled Nursing beds, DPH claimed it would do “everything it can” to save LHH’s 120 beds. But it hasn’t submitted a written waiver request yet!

Please share this petition widely with your contacts, I’d really appreciate your help.

by Patrick Monette-Shaw

• • • • • • • • • • 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.

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

Given that:

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 monette-shaw@westsideobserver.com.

October 4, 2023

Petition to Help Save Laguna Honda Hospital Beds Needs Support

Laguna Honda Still Risks Losing 120 of Its Beds Following Partial Recertification

LHH Has Received Only Partial Recertification.
Still Faces Four-Month Process for Full Recertification.
San Franciscans and Greater Bay Area Need to Support Petition

Help Save 120 Beds at Laguna Honda Hospital

Please Sign My Petition

Given our severe shortage of Skilled Nursing beds, DPH claimed it would do “everything it can” to save LHH’s 120 beds. But it hasn’t submitted a written waiver request yet!

Please share this petition widely with your contacts, I’d really appreciate your help.

by Patrick Monette-Shaw

• • • • • • • • • • September 1, 2023 • • • • • • • • • •

It’s great news that California’s Department of Public Health (CDPH) approved Laguna Honda Hospital and Rehabilitation Center’s (LHH) application for recertification on August 16 as a Medicaid (Medi-Cal) provider.

But the facility remains at risk of losing 120 of its 780-bed capacity, ostensibly because of a federal regulations change, and must clear a few more hurdles. Luckily, there’s a provision to save those beds.

Meanwhile, San Franciscans, our Greater Bay Area neighbors, and Californians concerned about losing these crucially needed beds can sign a Change.org petition urging LHH to submit a written waiver request to CDPH to save the 120 beds.

Unfortunately, LHH still faces at least two significant hurdles following its partial victory in obtaining Medicaid (Medi-Cal) certification. It still must submit another application to the Centers for Medicare and Medicaid Services (CMS) seeking recertification as a Medicare provider. Then, it must pass two separate facility survey inspections successfully, separated by a 90-day "reasonable assurance” waiting period to ensure that remedial corrective actions LHH has implemented over the past 18 months remain sustained. 

That’s likely to be a four-month process before LHH is “made whole" and allowed to resume admitting patients again. New patient admissions haven’t been allowed for the 18 months since April 2022.

After Laguna Honda lost certification in April 2022, CMS and CDPH advised LHH orally (not in writing) that LHH would have to reapply to become both Medicare and Medicaid providers to qualify for CMS’ Federal reimbursement programs, LHH could no longer have two patients sharing a common bathroom.

That would require closing one bedroom in each of 120 three-person suites. LHH would lose 120 beds.

But that ignores a provision allowing waivers to be submitted requesting up to four patients per room. Such waivers have reportedly been granted to some skilled nursing facilities in California for up to six patients per room. 

LHH Exceeds Federal Standards

The rule in 42 CFR §483.90(f), Bathroom Facilities, says nothing about — is totally silent on — how many nursing home residents can share a bathroom. The paragraph only says, "each resident room must have its own bathroom equipped with at least a commode and sink.”

It was a creative misinterpretation of CMS’ own rules because a provision allows waivers to be submitted requesting permission to have more than two patients per room.

Admittedly, §483.90(e)(1)(i), Resident Rooms, restricts nursing home facilities to no more than four patients per room, but if they are decertified and have to apply for Federal recertification, they can have no more than two patients per bedroom. 

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 that having more than two patients per room “will not adversely affect residents’ health and safety" — provided the facility meets specific requirements.

So, managers can solve this problem by simply submitting a written waiver request asking to keep all 120 of its three-person suite bedrooms. When architects designed LHH’s replacement hospital that opened just 13 years ago in 2010, the three-person suites were pre-approved by California’s Office of Statewide Hospital Planning and Development (OSHPD, subsequently renamed “HCAI”). Such rooms complied with California’s building standards codes for hospitals. The room occupancy didn’t become an issue until late Summer 2022, following LHH’s decertification on April 14, 2022.

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).

They have sliding doors between each bedroom and a 79 sq. ft. short hallway inside the three-person suites — essentially making them all private, single-person rooms, not shared bedrooms. The issue of two-person rooms should essentially be moot, given LHH’s actual circumstances.

It’s clear LHH’s bedrooms exceed requirements in the 42 CFR §483.90 regulations. CMS’s gripe about LHH’s three-person suites is essentially a bogus quibble.

Had LHH not been decertified in April 2022,  this problem would never become an issue, and CMS and CDPH would not have claimed LHH must give up its three-person suites.

LHH and its governing body — the San Francisco Health Commission — repeatedly stated during open sessions of the Commission’s meetings during the past year that they fully plan to keep all of LHH’s 780 beds and have planned to submit the waiver request once LHH was recertified.

Indeed, Laguna Honda’s previous acting CEO, Roland Pickens, has repeatedly testified to the Health Commissioners: "We are doing everything we can to pursue the process [submitting a waiver].”  Pickens asserted that maintaining the 120 beds at risk of loss is a high priority for the Health Commission, the Department of Public Health, and LHH. So far, the new CEO and licensed Nursing Home Administrator, Sandra Simon, hasn’t spoken publicly about saving LHH’s 120 beds.

When CDPH approved LHH’s Medi-Cal recertification on August 16, Medi-Cal restored funding to 95% of LHH’s patients whose healthcare payor source is Medi-Cal.

All LHH should do now is submit its written waiver request to CDPH, the same regulatory agency that just restored LHH’s Medi-Cal certification!

SNF Bed Supply and Demand

LHH’s census in October 2021 of 710 patients has shrunk to 490 patients as of August 22, 2023. That 220 patient census loss suggests new patients who could have filled those beds faced out-of-county discharges.

Between 1997 and 2022, San Francisco lost 1,381 Skilled Nursing Facility (SNF) beds. Losing LHH’s 120 beds will push that to 1,501 beds lost, leaving only 2,161 remaining. 

An April 2023 San Francisco Department of Public Health report documented that 4,186 patients were discharged to out-of-county SNF’s across all reporting private-and public-sector San Francisco hospitals during calendar year 2022.

If we lose LHH’s 120 beds, more elderly and disabled low-income San Franciscans will be dumped out-of-county. We can’t afford to lose these beds! 

Petition Needs Stronger Bay Area Support

A Change.org petition requests LHH submit its written waiver request immediately to CDPH to retain all of LHH’s beds threatened with permanent removal. The petition has gained 1,420 signatures so far. But it needs stronger support by San Franciscans and our allies in the greater San Francisco Bay Area to demonstrate broad community resolve to help permanently save these beds.

Community support is critically needed. Please support this petition by signing it today and encourage others to sign on, too!

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 monette-shaw@westsideobserver.com.

September 2023

MIlking it to the Max

Laguna Honda Hospital Begs for $18 Million More for Consultants

The Consultant’s Bottomless Piggy Bank

LHH Reinstated: Medi-Cal Recertification and on August 16

Medicare Application Will Be Next Submission.

Breaking news received just before the Westside Observer’s press deadline: Laguna Honda Hospital (LHH) submitted an application for reinstatement as a Medi-Cal (Medicaid) provider only with the State of California Department of Public Health (CDPH) on Friday, August 11. On August 16, LHH was granted its Medi-Cal recertification.

But to become fully operational, LHH still needs to submit an application to CMS to become a Medicare provider, which is the program that pays for skilled nursing rehabilitation of patients in LHH’s Rehabilitation Center, and patients needing skilled nursing care in a “distinct-part skilled nursing facility.”

Unfortunately, before new admissions to LHH are allowed to restart, Laguna Honda faces an almost four-month process (described below) before it can hope to resume full normal operations and become “whole.” “Denial of Payment for New Admissions” (DPNA) was halted on January 14, 2022, and all new admissions were effectively halted on April 14. It's unclear who may have paid for the 67 admissions occurring between January 14 and April 13, 2022. Apparently, it wasn’t Medicare or Medi-Cal who might have picked up the DPNA tab unless LHH was able to appeal and overturn the DPNA successfully.

by Patrick Monette-Shaw

• • • • • • • • • • August 16, 2023 • • • • • • • • • •

LHH’s continuing follies in preparing to submit its application to regain full certification appears to have been grimmer than thought. Unsure it was making sufficient progress towards returning to “substantial compliance” with Federal regulations before submitting its applications, LHH may have panicked. It suddenly applied for and received emergency permission from San Francisco’s Civil Service Commission on June 5, 2023, to spend another $18 million on consultants to help pull its act together.

Help Save 120 Beds at Laguna Honda Hospital

Please Sign My Petition

Given our severe shortage of Skilled Nursing beds, DPH claimed it would do “everything it can” to save LHH’s 120 beds. But it hasn’t submitted a written waiver request yet!

Please share this petition widely with your contacts, I’d really appreciate your help.

Dialing for Dollars

That’s on top of the $64.9 million already spent — including $30.5 million on consultant contracts, $22.3 million in lost Medi-Cal reimbursement, and a combined $12 million on other expenses — that the Westside Observer reported about in our two-part series (Part 1 and Part 2).

So, the new $18 million approved to hire additional consultants would push known expenses to date up to a revised total of $82.9 million — assuming new consulting contracts may have already been issued since June 5 or will be issued soon.

[Note: I have predicted total costs will rise to between $80 million and $100 million, but I didn't expect they would rise so quickly. And there's still a good $15 million or more expected from additional patient lawsuits and costs of the City Attorney's time and expenses that won't be known for another year or longer.)

Why Are Additional Consultants Needed?

Despite the $30.5 million spent to hire the four consultant firms between May 2022 and April 2023 — Health Management Associates (HMA), Health Services Advisory Group (HSAG), Tryfacta Inc., and Moss Adams Consulting reported in July in the Westside Observer — and despite the expertise and best efforts of the four consulting firms, they apparently haven’t collectively been able to right LHH’s ship. LHH's "Titanic"-sized mismanagement appears to have struck at least one gigantic iceberg. Or two icebergs, if you count LHH's staff intransigence.

We get clues about the ongoing problems at LHH from the seven “Monthly Monitoring Reports,” the six so-called “Root Cause Analysis” reports, and successive “Action Plan” reports describing the now 700-plus corrective action “milestones." HSAG was awarded $16.9 million in contracts to identify plans of correction and write and produce (across its management consulting contracts and separate "Quality Improvement Expert” (QIE) contract). That $16.9 million yielded an iceberg of cookie-crumb clues into LHH’s continuing and massive mismanagement problems, and more of these reports are still being produced before they’re released.

Chief among the clues is HSAG's repeated mention of the “lack of critical thinking skills” among LHH staff. That presents a formidable barrier to all consultants because their highfalutin recommendations won't work if LHH’s staff can’t understand and absorb them.

As the Westside Observer has previously reported, LHH’s staff have had great trouble developing corrective “milestones" remedial actions. From the QIE's first seven “Monthly Monitoring Reports” issued through August 10 for the January to July 2023 timeframe, 676 “deliverables” staff were charged with developing, 223 — 33%, fully one-third — required revisions and resubmissions to the QIE. The QIE noted in its August 10 report that some “deliverables required mitigation plans to address ‘barriers’ identified during implementation,” but the QIE hasn’t reported the total number across all 676 deliverables that required subsequent “mitigation.”

As we reported previously, common reasons for the revisions included: 1) Lack of specificity with the information provided, 2) Information provided wasn’t what had been requested, 3) Information provided wasn’t for the period identified in the milestone, and 4) General inattention to details (documents not dated, lacking a title, or without track changes so revisions could be identified).

Other common reasons for revisions included: 5) Lack of appropriate data analysis to ensure a data-driven approach to activities, and 6) Lack of clarity and details in deliverables that matched the problems identified in the “Action Plan” descriptions.

All of this suggested that LHH staff with no prior experience working in skilled nursing facilities couldn't recognize the problems and understand what they had been asked to do. They had provided inappropriate corrective actions requiring substantial additional coaching and training.

Reading between the lines of the reports and between the ice floes, it sounds like LHH’s staff culture has degraded to the point that near-constant handholding and “coaching” are still needed, along with teach-back training. That may be the direct result of 19 years of packing LHH with obedient toadies transplanted from SFGH and the San Francisco Health Network (SFHN) beginning in 2004 and earlier, with the then-stated goal of saving SFGH a miserly “$1.7 million annually” via the misguided and disastrous “Flow Project” — rather than retaining and hiring competent licensed Nursing Home Administrators and managers with demonstrated skills and experience running skilled nursing facilities, which is what LHH has always been.

After all, regular readers may recall that it took HSAG — under its contract to be LHH’s “Quality Improvement Expert” — to openly admit in its first “Root Cause Analysis” report submitted to CMS on December 1, 2022, to surprisingly finally (and courageously) admit that “LHH’s management had been running Laguna Honda Hospital as if it were an acute care hospital,” not as a skilled nursing facility.

That single damning “root cause" HSAG finding must have landed like a newly sharpened, $16.9 million icepick in the heart of LHH’s acting CEO, Roland Pickens, and LHH’s so-called “governing body” — the San Francisco Health Commission — that had given the green light (minus an iceberg-spotting lighthouse) to the SFGH-to-LHH “Flow Project” nearly 20 years ago in 2004, ice floes be damned.

The “Pitch” to Secure $18 Million for More Consultants

Knowledgeable observers tracking LHH's recertification debacle suspect that HMA and HSAG may have advised LHH to hire additional consultants that can work directly with staff to impart the critical thinking skills (disguised as teaching “performance improvement” and “quality improvement”) needed to implement the consultant’s previous highfalutin recommendations LHH staff are apparently having difficulty absorbing.

Readers may recall that even before the “Form 1” application to the Civil Service Commission was submitted on June 5 seeking authority to issue another $18 million in consulting contracts, on April 4, LHH’s governing body — the Health Commission — had approved a $4.1 million contract for Moss Adams to perform “Lean Management,” “True North,” “Kaizen,” and “Hoshin Kanri” consulting services to Laguna Honda’s senior management staff and its “incident command structure,” weirdly for an “air traffic control” system.

Then on May 14, LHH’s acting CEO, Roland Pickens, announced to CMS and the U.S. Department of Health and Human Services a new $7 million-plus contract to perform a “Consistent Care at the Bedside Initiative” (CCBI) by “soliciting" to hire an additional consultant. [Note: It later turned out the CCBI initiative wasn't for a new contract or a new consultant; that funding came by rearranging chairs on the deck of Titanic via re-allocating funding from a previously-funded $7.3 million contract awarded to HSAG on January 30, who just happens to be LHH’s QIE].

So, just two months after announcing the $4.1 million Moss Adams contract on April 4, and just 17 working days after announcing the $7 million CCBI initiative on May 14 — for a combined total of $11.1 million — LHH raced to the Civil Service Commission on June 5, tin cup outstretched as only a con knows how, begging for another $18 million?

Indeed, in its application seeking Civil Service authorization to issue the additional $18 million in consulting contracts, LHH all but threatened the Civil Service Commission, saying: “Failure to approve this contract may result in the inability to successfully obtain [LHH’s] recertification and may jeopardize the future of Laguna Honda Hospital’s ability to act as a skilled nursing facility for the most vulnerable residents of San Francisco.” [Cue the Titanic’s miniature violins.]

“The first $30.5 million spent for our consultant contracts haven’t fix problems completely. We recommend you spend another $18 million for additional consultants." Was that the unspoken or intended message sent and received?

“Invented” Justification

The “Personal Services Contract Form 1” the SF Department of Public Health pitched on behalf of LHH to the Civil Services Commission on June 5 is titled “Specialized Consulting Services for Long Term Care Facilities” for LHH. It contains really dubious rationales begging for almost another $20 million to throw at the “consultants’ wailing wall,” hoping promises of more LHH “reforms” might prevent LHH’s closure.

Responding to section “1-A, Description of Work” about the types of services to be contracted out, LHH asserted the potential contracts to be issued will:

• Include improvement topics in the area of providing technical assistance in the area of recertification; and participation as subject matter experts on LHH standing committees;
• Provide consulting services for the Nursing Home Administrator, Director of Nursing, Closure Plan, Infection Prevention, Quality Assurance and Performance Improvement (QAPI), Behavioral Health and serve as a resource for education on nursing home regulations and best practice protocols;
• Develop training curriculum and conduct instructional sessions for as-needed topics as identified by LHH leadership;
• Participate in Leadership and Executive team meetings and provide consulting services to support the coordinated efforts and preparation for CMS reapplication;
• Provide consulting services for the selection and interviewing process for candidates being considered for key leadership positions that are currently being occupied by interim staff;
• Provide consulting services for the development of a transition plan with LHH staff that describes the transition tasks from the selected vendor to LHH staff and assures sustainability post recertification;
• Provide clinical as-needed consultants for each of the 13 nursing units to assess the current day-to-day staff activities and identify areas of improvement so consistent care is provided that is in alignment with the regulations.

Responding to section “1-B, Description of Work” about why the consulting services are necessary and the consequences of denying the $18 million request, LHH tossed in for good measure: “The [consultant] services are necessary to complete all the required steps to obtain recertification of Laguna Honda Hospital, and to establish an ongoing framework to ensure that the improvements that have been made are operationalized and continue post-recertification.”

In section 3-A, Description of Required Skills and Expertise," LHH claimed, "The contractor must provide a team of consultants with extensive knowledge and experience in regulations, implementation and operation of long term care facilities and in particular experience responding to, and implementing, plans of correction. The team provided will typically consist of individuals with direct clinical experience who also have the ability to navigate in non-clinical settings and respond to various regulators and [hospital] leadership.”

That is patently ridiculous! LHH managers have been preparing "Plans of Correction” responding to State survey inspection deficiencies for at least the past 24 years )since I began working there in 1999), and even before that. If LHH managers don't know how to write effective “Plans of Correction," they have no business working there! Period.

Asked in section 3-B, Description of Required Skills and Expertise,” which, if any, civil service City employee job classification codes normally perform the work the proposed consultants will perform, LHH responded listing job classifications 1803, Performance Analyst I; 1805; Performance Analyst II; 2591, Health Program Coordinator 2; 2593, Health Program Coordinator 3; 0923, Manager II; 0931, Manager III; and 0932, Manager IV.

Of interest, none of those job codes typically include individuals with direct clinical experience and education. However, some of the "manager" job classifications may be able to respond to various government inspectors and regulators and LHH's leadership about non-clinical issues.

By comparing the “scope of work” to be performed promised in the $18 million APSC application to the scope of work in the actual contracts previously awarded to HSAG and HMA, it’s clear the proposed services under PSC #40941-22/23 mirror almost to a “T” the exact same kinds of services HMA, HSAG, and Moss Adams have been performing all along for LHH, ever since May 2022.

Other Oddities in the Civil Service “Form 1” Application

The Civil Service “Form 1” asked in question “1-C, Description of Work” whether requested consulting services had been provided in the past and if so, under which previous Personal Services Contract (PSC) number. LHH answered by saying that previous PSC #49607–15/16 providing “complementary services” focusing on “other areas” have been performed through the multiple contracts awarded to HMA and HSAG totaling $20.15 million awarded beginning on May 9, 2022. PSC #49607–15/16 was titled “Consulting for Assessment, Evaluation, Planning, Training, Grants, Media, and Tech. Assistance," which was titled quite differently than providing the $18 million for consulting services for long-term care facilities under PSC #40941-22/23.

It’s not clear if the Civil Service Commission didn’t understand, or missed it, that the very same kinds of services have, in fact, been provided in the past … and we’re talking the very recent past since May 2022.

The consulting services through the Moss Adams contract are being provided under PSC #48902–20/21, and other consulting services by Tryfacta, Inc. are being provided under PSC #44743–21/22 — neither of which PSC’s were mentioned in the PSC #40941-22/23 application seeking additional authority to enter into $18 million more in consultant contracts for Laguna Honda.

Indeed, part of the Moss Adams contract was to assist with developing and remediationof all“Plans of Correction (POCs),” including [contributing to] writing the RCA [Root Cause Analysis reports], and development of the “Action Plans” [corrective action “milestones”]. So why does LHH need another $18 million to continue helping develop "Plans of Corrections" that LHH managers should already know how to write? Can anybody say, “duplication of consultant efforts”?

When asked in “Form 1” question “1-C, Description of Work” whether any contracts eventually awarded under the new PSC #40941-22/23 will eventually need to be renewed beyond December 31, 2024, LHH lamely answered, "Only if the need continues to be present." Theoretically, once "knowledge transfer" occurs from the consultants to LHH's own staff to flesh out LHH staff skill sets and is completed, shouldn't the need for extending consulting contracts eventually come to a grinding halt? Or is the City's piggy bank for consultants so deep — and LHH's existing staff so untrained — that LHH will keep finding new reasons to keep shoveling on lucrative consulting contracts through December 2024 … even after it obtains recertification?

The Civil Service asked in section “6-E, Additional Information” whether a board or commission had determined (prior to submitting the PSC application) whether contracting out the work outside the Civil Service merit system is the most effective way to provide this service. LHH simply answered "No."

This portends the Health Commission — as LHH's "governing body” — may not have been informed beforehand that LHH was seeking authority from the Civil Service Commission to spend $18 million more on consulting services. The Health Commissioners may not even learn about it until LHH submits an actual new contract for Health Commission budgetary approval.

Similarly, Civil Service asked in section “6-F, Additional Information” whether the proposed work will be completed by a contractor with a current PSC contract with LHH or the Department of Public Health. Again, LHH simply answered, "No." Suppose any contracts are eventually awarded under the new $18 million authority. In that case, we'll have to see whether or not the current contractors will get lucrative consulting gig extensions using the new $18 million. Alternatively, we'll have to see what the consulting specialty for some new consulting outfit is and why they were chosen to augment the work being performed by HMA and HSAG.

Inching Towards Recertification and New Admissions

Of interest, the Civil Service “Form 1” application described the lengthy process involved in obtaining recertification.

Given a first application to become a Medicaid (Medi-Cal) provider was submitted on August 11, and once LHH submits its second application to become a Medicare provider, it will kick off what is likely to be a four-month process before admissions to LHH can resume outlined in the Civil Service application:

“Laguna Honda Hospital will be seeking reinstatement and execute a new CMS Provider Agreement, which can only occur if it can show [it is] back in substantial compliance with all applicable Medicare [and Medicaid] Conditions of Participation. The reapplication process will include [submitting two] applications [one to the Feds and one to the State], an initial [full extended] survey [inspection], a three-month reasonable assurance period [to ensure corrective actions are being sustained long term], and a second [inspection] survey to ensure that Laguna Honda Hospital remains in substantial compliance." That will stretch over a probable four-month period before LHH gains full certification and is allowed to resume admitting patients.

To date, LHH has not explicitly discussed this extensive four-month process during open sessions of the Health Commission's public meetings. It's unclear whether the seven-member Health Commission has even been informed that recertification involves a grueling four-month process from the date application forms are submitted.

Although LHH submitted only its Medi-Cal recertification on Friday, August 11, it's unclear as of Tuesday, August 15, when LHH plans to submit its Medicare recertification application. But it will probably be four months from now, perhaps in mid-November at the earliest, before LHH can admit patients with Medi-Cal as their payor source, if — and it’s a big “if" — LHH is allowed even to begin admitting only Medi-Cal patients.

The rationale justifying the $18 million proposed to hire additional consultants essentially amounts to more hollow, empty promises to improve LHH to avoid shutting it down. But why any additional contracts would be needed, or justified, through December 2024 — if LHH passes its recertification — hasn’t been explained.

Apparently, to cover all of its bases and perhaps prime the pump, LHH asserted in its Civil Service application that it needs to “establish an ongoing framework to ensure that the improvements that have been made are operationalized and continue on post-recertification.”

After all, consultants have been on the ground at LHH for 15 months already (starting in May 2022). Why consultants may be needed for an additional 16 months through December 2024 seems to be excessive.

It appears to be more like suckling at the teats of cash-cow City funds, just to fatten the consultant’s coffers.

August 16 Update:

News broke at 1:30 p.m. on Wednesday, August 16 — just before submitting this article to the Westside Observer — reporting that “CDPH and the California Department of Health Care Services recertified Laguna Honda Hospital in the Medicaid [Medi-Cal] provider program ‘effective immediately’.” [Emphasis added.]

No information was immediately available about the four-month process involving the requirement to undergo two facility inspections separated by the 90-day “reasonable assurance" between inspections. There was also no word immediately about how soon LHH can actually resume admissions of Medi-Cal patients.

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 monette-shaw@westsideobserver.com.

August 16, 2023

Part 2 of the Two-Part Series

Costs to Rescue Laguna Honda Hospital Inch Up. Again.

LHH’s Mismanagement Costs Reach $64.9 Million

Complying With CMS Regulations Could Avoid Costs.
LHH Managers Choose Non-Compliance, Instead.
Were We Blackmailed Into Using Public Funds for Lobbyists?

Help Save 120 Beds at Laguna Honda Hospital

Please Sign My Petition

Given our severe shortage of Skilled Nursing beds, DPH claimed it would do “everything it can” to save LHH’s 120 beds. But it hasn’t submitted a written waiver request yet!

Please share this petition widely with your contacts, I’d really appreciate your help.

by Patrick Monette-Shaw

• • • • • • • • • • August 2023 • • • • • • • • • •

When Part 1 of this two-part article was published in the Westside Observer on July 17, costs to rescue Laguna Honda Hospital stood at approximately $64.1 million. I predicted they would likely increase within a few weeks. They did.

I had indicated that Part 2 of this article would explore the State and Federal fines, penalties, and lawsuit expenses, plus additional miscellaneous expenses, subtotaling approximately $11.4 million not discussed in Part 1. But in the past 12 days, public records reveal that the additional costs climbed by $731,685 — to a revised subtotal of $12 million.

So, the total known costs to rescue LHH now stand at a revised total just shy of $64.9 million ($64,864,489) to date. Costs are projected to climb by another $1 million before September 1, 2023.

Here’s Part 2.

Fines, Penalties, and Lawsuit Expenses

To date, we know of at least $4.9 million in various expenses related to fines, penalties, and lawsuits involving Laguna Honda Hospital’s mismanagement over the years, as shown in Table 4.

Sadly, there has been zero accountability for LHH employees who contributed to these expenses, particularly no consequences for LHH's senior management team, who were directly and primarily responsible. Many of the costs were completely avoidable, as the Health Commission and San Francisco’s Board of Supervisors surely must know.

After all, had LHH's managers simply remained in compliance with Center for Medicare & Medicaid Services' (CMS) nursing home regulations, they could have avoided all $5 million of the fines, penalties, and lawsuit expenses. They chose non-compliance instead.

Of note, the yellow shading shown in Table 4 highlighting currently unknown costs portends that these lawsuit expenses will climb significantly during the coming months, in part because:

• Lawsuit #2, the Alfred Coutts case involving an additional 2019 patient sexual abuse lawsuit, will likely involve another potential $800,000 settlement, like the settlement awarded to Omar Abdullah.
• Although stalled in San Francisco Superior Court, the Tommy Johnson et al. (case # CPF-20-517064) and the Delland Felder (case # CGC-22-599447) lawsuits will probably prevail when they advance later in 2023 or 2024. The Johnson class action case may involve a $1 million-plus settlement, and the Felder class action case — like the Public Guardian settlement — may also involve another $2 million.
• The Sanchez, Lieu, Pham v. CCSF lawsuit (case # CGC-23-606373) following wrongful deaths of LHH patients evicted from LHH in the summer of 2022 will also likely prevail. It won't be surprising if it, too, involves a $2 million-plus settlement. A second such wrongful death lawsuit is reportedly being considered.
• The City Attorney’s time and expenses fighting the $2.2 million settlement awarded in the Public Guardian / Public Guardian lawsuit (case # CGC-21-592296) has not yet been released. Still, it's known the City Attorney's Office (CAO) fought that case vigorously and spent significant time trying to derail the case. 
• On July 20, the CAO asserted that even though San Francisco’s Board of Supervisors and the Mayor have approved the $2.2 settlement award, “the settlement is not yet entirely finalized. Thus, the matter is still open on our end.” 
• That’s because once the Supervisors and Mayor approve any proposed settlement, formally closing out a lawsuit is contingent on the CAO receiving signed releases from the Plaintiffs and parties to a given suit, which takes some time. Once the CAO receives signed releases, it takes approximately two weeks before the City Controller issues the settlement check owed. Then, the CAO must wait to close a case for several more weeks because it has to wait for a “Request for Dismissal” to be entered with the Court before the CAO can prepare its request to close out the case.
• The CAO suggested the Westside Observer follow up approximately 30 days after July 20 to check the case status and whether the CAO can finally release the total costs of the City Attorney's time and expenses fighting the lawsuit.
• The City Attorney’s time and expenses captured in the CAO’s CityLaw database for all four of the above lawsuits will likely involve close to, or over, a minimum of $100,000 each.
• The CAO’s legal representation of Laguna Honda Hospital (LHH) following its decertification began when the CAO mounted legal efforts via “Informal Dispute Resolution” proceedings on December 27, 2021, challenging LHH’s "Statements of Deficiencies” (California Department of Public Health [CDPH] Form 2567) findings from an inspection survey conducted on October 14, 2021.  
• LHH went on to mount three formal Appeals to CDPH and the U.S. Department of Health and Human Services (DHHS), dated February 16, then April 25, and finally on May 28, 2023 — continuing to challenge the "Statements of Deficiencies,” and beginning to challenge LHH’s decertification and termination from Medicare on April 14, 2022. The three appeals were consolidated into a single U.S. DHHS Departmental Appeals Board docket number C-22-555 on June 2, 2022.
• Eventually, the CAO filed a lawsuit on LHH’s behalf in the United States District Court – Northern District of California on August 3, 2022 — formally moving from just “Dispute Resolution” and “Departmental Appeals” administrative steps to a formal lawsuit challenging LHH's decertification. The lawsuit was assigned as Case Number 3:22-CV-4500.
• In addition, the "LHH Settlement Agreement," dated November 10, 2022, designated the City Attorney's Office as lead contact for all documents, reports, and correspondence between CMS, CDPH, and Laguna Honda Hospital regarding the Settlement Agreement. The Agreement specifically named Sara Eisenberg, Chief of Complex and Affirmative Litigation in the City Attorney's Office, along with at least two other Deputy City Attorneys (DCA), as the City's principal contacts for everything related to LHH's attempts to seek CMS recertification. The time and expenses incurred for Ms. Eisenberg and the additional DCAs since April 2022 for multiple aspects to surmount LHH’s decertification will be significant, along with additional City Attorney staff assigned to defend LHH between October 2021 and the decertification in April 2022. The longer it takes for LHH to become recertified and prevent its closure, the more the CAO's expenses will continue climbing.
• Of note, the “LHH Settlement Agreement" stipulated that the CAO was required to file a “Notice of Dismissal” of Case Number 3:22-CV-4500, formally withdrawing the lawsuit with prejudice. Despite the withdrawal, the CAO now asserts that the case has not been "closed out” yet.
• The CAO has combined all of the administrative proceedings — starting with the “Informal Dispute Resolution” phase, to the consolidated “Appeals” docket, plus the formal lawsuit and the “LHH Settlement Agreement” — under the protective umbrella of Case Number 3:22-CV-4500. Now, the CAO refuses to release details of the costs of City Attorney time and expenses for each of these distinct procedural steps and claims it won't release any of these costs until it closes out Case Number 3:22-CV-4500. The CAO has refused to disclose any of those time and expense amounts since December 2021 that are captured in its CityLaw database. That databse records each City attorney's time spent on each case number, on the theory that releasing the City Attorney’s expenses might jeopardize its litigation strategy by sharing that data with opposing Counsel, who might somehow develop an unfair advantage by knowing those expenses during litigation.
• The public will not learn any details of the combined costs of the CAO’s time and expenses until many months after LHH gains re-admission to the Medicare reimbursement program, is fully recertified (assuming it eventually will be), and resumes admitting patients — which appears will probably not happen by the end of December 2023.
• We’ll have to wait until Case Number 3:22-CV-4500 is fully and formally closed out. That isn't likely to happen until mid-2024. You can safely bet that the CAO’s time and expenses will be substantial during the two to three years between October 2021 and between August and December 2023 — or sometime in 2024. Those expenses will likely approach $5 million all by themself.

Before it’s all over, the fines, penalties, and lawsuit expenses shown in Table 4 will probably climb from this preliminary $5 million to between $10 million and $15 million — if not substantially more. Again, had LHH simply remained in compliance with CMS' regulations, these expenses dating back to 2019 could have been completely avoided.

Miscellaneous Expenses

Table 5 summarizes at least $7.2 million in additional miscellaneous expenses to rescue Laguna Honda, most of which are thought to be required for LHH to gain its recertification. Many of them are tied directly to LHH's mismanagement during the recent past. Some of the expenses are based on estimates extrapolated from public records.

• Across the 25 staff positions included in Rows 1 through 4 in Table 5, the new positions and re-assigned positions at LHH will cost $4,661,617 — 71.3% of the $7.2 million total.
• Row 1 of Table 5 involves an LHH budget “program change request” submission document that reveals LHH is adding another 15 full-time equivalent staff employees (and deleting one full-time equivalent employee) for a net gain of 14 job classification code positions at an increased cost of $2.5 million annually going forward, including fringe benefits.
• None of the 15 positions listed in the program change request include Registered Nurses (RNs), Licensed Vocational Nurses (LVNs), Certified Nursing Assistants (CNAs), Patient Care Assistants (PCAs), or Home Health Aides (HHAs) that provide direct patient care staff at the bedside. (Nor do the 15 positions include Supervising Nurses or Nurse Managers that typically don't provide direct patient care.) Although some community advocates have asserted bedside Nursing employees at LHH may be understaffed and overworked, resulting in inattentive staff, the “program change request” adds not one position for any of these Nursing professionals.
• That will not improve or fix the substandard care problems of LHH's residents that led to LHH's decertification.
• Row 2 in Table 5 involves hiring six additional Stationary Engineers in job classification code 7334 at an estimated cost of $945,000 annually, including salaries and fringe benefits. Stationary Engineers repair and maintain mechanical equipment (such as heating and air conditioning systems) to keep the buildings operating safely, effectively, and within regulations. That LHH needed to add six engineers suggests its Plant Services Department had been understaffed to perform routine and preventive maintenance.
• On Row 4, adding an "Executive Director of Facilities” and an “Emergency Manager" at a combined cost of $533,185 in salaries and fringe benefits suggests the Plant Services Department had been seriously understaffed. That said, the "Executive Director" title seems to be a little over the top. Wouldn't the title of "Director” have worked?
• The four positions on Rows 3 and 4 appear to have been existing job requisitions previously authorized and funded within SFDPH that were reassigned to LHH’s budget and given new job titles, job descriptions, and duties.
• LHH's new Nursing Home Administrator is not included in Table 5 because she will also serve as LHH's CEO, an existing, approved, and funded position.
• LHH is recruiting for additional managerial positions, but it's unknown whether they are previously approved requisitions within SFDPH being transferred to LHH's budget or are entirely new positions.
• LHH's “Kitchen Floor Replacement Project," identified as a Capital Improvement project, will likely cost several million dollars. Repair and replacement were long overdue. The floor needed replacement because a cart-wash area for heavy food carts had been poorly designed by the building’s architects in 2008. They chose glass for the floor tiles design. Shortly after the hospital opened in June 2010, the flooring severely cracked and didn't drain properly, leading to an ongoing problem causing mold in the kitchen. 
• The City filed a lawsuit on December 12, 2011, in Alameda Superior Court (Case # RG13679711) against Stantec Consulting Services, Inc. and Stantec Architecture, Inc. This joint venture began when Anshen + Allen Architects, in partnership with Gordon H. Chong Partners, was first awarded the contract to design LHH in 2000.
• I covered this story in my March 2012 Westside Observer article, disclosing the City's lawsuit against Stantec alleging professional negligence. Two years later, the Board of Supervisors settled the case, recovering $15.3 million from Stantec for the City. But that excluded releasing Stantec from further lawsuits and liability for  "latent defects" that may have still been outstanding when the settlement was reached.
• The City's lawsuit filed in December 2011 alleged, among other issues, that the replacement project’s costs exceeded the budget by at least $100 million, including about $71.6 million in "change orders" (changes made during the construction of the replacement hospital) that the City wanted to recover, plus compensatory damages and general damages. 
• [Note:  Although I had documented as early as May 2010 that the change orders for LHH's rebuild had already reached $71.6 million, by January 26, 2012, LHH admitted the change orders then totaled $87.45 million. The Citizens' General Obligation Bond Oversight Committee received a "close-out” report that documented the cost of the LHH Replacement Project’s change orders eventually reached $94.6 million — which represented fully half of the $183.4 million in project total cost overruns.]
• If anything, Line 9 in Table 5 shows additional new Capital Improvement Funds to replace LHH's kitchen floor is particularly outrageous because the $15.3 million the City received from the settlement of the Stantec lawsuit was deposited into the City’s General fund, not used immediately to repair LHH's kitchen floor. Alternatively, since Stantec was not released from any further lawsuits and liability from "latent defects,” LHH’s defective kitchen floor should have been repaired long before now using a “latent defect” funding source and not require taxpayers foot the bill using more scarce Capital Improvement Funds.
• It's disgraceful that it has taken over a decade to replace LHH's kitchen floor. LHH declined to provide an estimated date for the completion of the floor replacement project.
• As for the sudden new $692,449 expense on Line 10 in Table 5, the public only learned during LHH-JCC's July 11 meeting that, in order to prepare LHH for submission of its planned application to CMS to become recertified, LHH had launched a "Restraint Free Journey” program involving “improvements" in LHH’s patient beds. That was odd because back in 2009, LHH had purchased state-of-the-art Hill-Rom beds for the new hospital after extensive investigation and testing of available beds during LHH’s “restraint reduction initiative" that had been underway for several years.
• It was thought then that the Hill-Rom beds could be customized using either full-length or half-length side rails or have side rails removed completely.
• LHH suddenly reported on July 11 that to reduce the use of patient “restraints” during the previous six months, LHH had begun “partnering with every resident to have their bed exchanged with an ‘equivalent’ bed." Many LHH patients and their families were reluctant to do so because the project involved eliminating all bedside rails that patients were accustomed to that prevented injuries from falling out of their beds. But to reduce the potential of injuries from patient entrapment in the side rails, LHH was adamant that the bed rails be removed and alternative mobility devices such as trapezes be installed to assist patients in getting in and out of their beds safely.
• The $692,499 in the new restraint reduction project expenses have replaced 368 “equivalent" beds, and another 283 beds have had their side rails removed. 50 assistive trapezes and perhaps another 50 quarter-rail rotating assistive devices were purchased. The response to a records request did not indicate the cost of an additional contract to hire a "biomedical engineering” consultant firm to perform ongoing bed maintenance that will run annually.
• As for a recurring “facility” membership fee as a professional organization, comparing Lines 14 and 16 in Table 5 is eye-popping and offensive. CMS and CDPH essentially told LHH that in order for LHH to have its application to become recertified in the Federal Medicare and Medicaid reimbursement program even considered, LHH was required to join the California Association of Health Facilities (CAHF). That would mean paying per-bed fees as an organization, not employee membership fees. That was particularly offensive to taxpayers because CAHF — by its own admission — is principally a lobbyist, not a professional membership organization.
• Googling "CAHF" returns an acknowledgment from CAHF that it "has a proven track record of promoting and protecting the long-term care profession’s interests and practices through aggressive lobbying, grass roots campaigns, and fighting for policies that support access to quality long-term care services at the local, state and federal levels.”
• There you have it:  CAHF itself admits it is primarily a lobbyist organization.
• Line 12 in Table 5 shows that CAHF’s $833 inaugural “registration” fee is almost triple the annual $300 membership fee charged by the California Association of Long-Term Care Medicine (CALTCM). Worse, CAHF's $46,655 per-bed yearly membership fee is 155.5 times higher than CALTCM's annual $300 flat fee.
• It’s obscene that CMS and CDPH blackmail publicly-run skilled nursing facilities by requiring them to use taxpayer dollars to join self-proclaimed lobbyist organizations as a condition of gaining recertification in the Medicare reimbursement system. It's too bad there aren't local San Francisco laws prohibiting extorting taxpayer funds to enrich lobbying organizations.
• Rows in Table 5, highlighted in pink, blue, and green, represent additional recurring (not one-time) expenses that will continue accruing in each future Fiscal Year.

The $7.2 million to date in LHH’s “miscellaneous” recertification-related expenses shown in Table 5 will climb even higher.

LHH Staffing Increases

As LHH prepares to submit its application for CMS certification, it’s clear LHH isn’t significantly increasing its direct patient care staffing, despite the addition of 21 new positions shown on Rows 1 and 2 in Table 5 above and the shuffling around of four additional positions.

That’s in part because San Francisco’s new “Annual Salary Ordinance" (ASO) for the Fiscal Year that began on July 1, 2023, for the next two-year budget through June 30, 2025 — finally passed by our Board of Supervisors on July 25 — does not show a significant difference in LHH’s budgeted and authorized “Full-Time Equivalent” (FTE) positions by job classification code numbers, compared to the previous ASO for the Fiscal Year that ended on June 30, 2023.

The new two-year ASO, just adopted, authorizes 1,503.92 FTEs starting on July 1, 2023, compared to the previous ASO for the period ending on June 30, 2023, which authorized 1,482.90 FTEs. That represents an increase of just 21.02 additional FTEs between June 30 and July 1, 2023. Then on July 1, 2024, LHH will add another 3.85 FTEs, pushing the total FTEs added during the two-year budget cycle to a total of 24.87 additional FTEs.

Of those additional 24.87 FTE positions, there will be a total increase of just 7.1 FTE Nursing positions that provide direct patient care.

FTE staffing levels of CNAs, PCAs, and HHAs will all remain flat (unchanged) between the two ASOs across Fiscal Years. There will be an increase of 3.1 FTE RNs and an increase of 4 FTE LVNs, despite neither increase having been requested in the "program change request” submitted to SFDPH and then forwarded to the Mayor’s Budget Director. 

Given that between the additional 14 FTE positions included in the “program change request" plus the 6 FTE positions for Stationary Engineers total of 20 of the additional 24.87 FTEs were approved in the ASO. It's unclear how LHH juggled adding 7.1 Nursing FTEs that provide direct patient care.

Weirdly, LHH’s monthly “Vacancy Reports by FTE” presented to the Health Commission's LHH-JCC — a Joint Conference Committee consisting of three Health Commissioners and senior management of Laguna Honda — reported that LHH had a total of 1,430.1 FTEs in August 2022, and 1,454.6 FTEs in January 2013, even though the ASO had authorized LHH to have 1,482.90 FTEs during the entire Fiscal Year 2022–2023. 

Why the “Vacancy Reports by FTE" reported that LHH had 52.8 and 28.3 fewer FTEs, respectively, in those two monthly reports than the FTEs authorized in the ASO is unknown. And it's unknown why the monthly reports don't consistently report a single authorized FTE headcount every month.

A future article may explore the massive increase in the sheer number of Directors of Nursing, separate Nursing Directors, and Nursing Manager positions that have evolved on LHH’s published Organization Charts between March 2022 (after LHH was decertified in April 2021) and LHH’s proposed “pilot” Nursing re-organization chart LHH’s acting CEO, Roland Pickens announced on June 2022, followed by LHH’s most recent organization chart released on July 25, 2023, which has grown extremely complex. 

An extract of just the Nursing “leadership” team on the July 25 organization chart shows a potentially highly bloated, top-heavy Nursing hierarchy that has evolved over the past year as LHH has struggled to prepare for its recertification application. The extract shows 62 positions (by incumbents’ names, job classification codes, and organizational functions) in LHH’s Nursing management structure. 

The organization chart still appears to be in rapid flux. A June 23, 2023 version presented to the Health Commission contained a "box” labeled as “RNs – 3 FTEs” as reporting to an “Infection Control Nurse Manager” (perhaps Keith Howard). However, the July 25 organization chart removed Mr. Howard's name and the box for the three RNs reporting to the “Infection Control Nurse Manager.”  The chart now lists the “Infection Control Nurse Manager” position as being vacant.

CMS began requiring Skilled Nursing Facilities to have at least a part-time “Infection Preventionist” beginning on November 28, 2019. But California has stronger standards and began requiring skilled nursing to have full-time, dedicated “Infection Preventionists” on January 1, 2021, who must be a Registered Nurse or a Licensed Vocational Nurse. Unfortunately, LHH's recent iterations of its organization chart do not show any boxes listing a functional area of responsibility labeled as an Infection Preventionist displaying the name of an incumbent.

The July updated chart also added a “Nursing Director Restraints Co-Lead” — ostensibly for the “Restraints Reduction” initiative — not included in the June 23 version. Why LHH needed to assign a Job Classification Code 2324, "Nursing Supervisor," to lead this effort isn't known. The 2324 Nursing Supervisor job classification can earn up to $10,728 bi-weekly salaries, which translates to $368,743 between salary and fringe benefits annually.

While CMS began requiring all skilled nursing facilities to have an “Infection Preventionist” as far back as 2019, it's worrisome that LHH's org chart doesn't display one. That's because, in part, as recently as LHH's third "90-Day Monitoring Survey” inspection in June 2023 continued receiving deficiencies involving F-Tag F880 for “Infection Prevention and Control” citations.

A Final Word

Costs not included in this two-part series article do not include expenses over the past 13 years of LHH having been reduced from its planned 1,200-bed rebuild to just 780 beds in 2010. The 420 beds eliminated from the replacement project — suggested as a cost-cutting measure by the architects and Turner Consulting — has resulted in the City placing Medi-Cal patients the City conserves into far away, out-of-county skilled nursing facilities. That has had a direct cost to the City, and untold costs in human suffering to San Franciscans dumped away from their families, friends, and support networks.

How much further will the now $64.9 million in escalating costs will rise? It will probably easily reach $80 million or more, with zero accountability for LHH's former and current managers.

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 atmonette-shaw@westsideobserver.com.

August 2023

Part 1 of the Two-Part Series

Laguna Honda’s Mismanagement Costs Reaches $64.1 Million

Costs to Rescue Laguna Honda Hospital Soars. Again.

Help Save 120 Beds at Laguna Honda Hospital

Please Sign My Petition

Given our severe shortage of Skilled Nursing beds, DPH claimed it would do “everything it can” to save LHH’s 120 beds. But it hasn’t submitted a written waiver request yet!

Please share this petition widely with your contacts, I’d really appreciate your help.

by Patrick Monette-Shaw

• • • • • • • • • • July 17, 2023 • • • • • • • • • •

Various costs related to Laguna Honda Hospital’s mismanagement over the years and its efforts to obtain Federal recertification continue to climb. Expenses — now reaching $64.1 million — will likely climb significantly. Yet its multiple problems can only be described as a hot mess.

New Contracts Totaling $11.4 Million Raise Questions, Including a $4.1 Million “Air Traffic Control” Contract Amendment to Triage Incoming Requests for Information from Mayor Breed

Costs associated with Laguna Honda Hospital's (LHH) mismanagement involve at least four major “buckets” of spending: Consultant contracts trying to assist LHH obtain recertification; lost Medi-Cal revenue budgeted to cover LHH's operations; State and Federal fines, penalties, and lawsuit expenses involving substandard care of LHH’s patients; and miscellaneous expenses, including neglected repairs to LHH’s physical buildings, hiring of crucial additional staff, and professional association fees.

By the time LHH gains its recertification, costs will likely escalate to between $80 million and $100 million.

This two-part series addresses each of the four main buckets of associated expenses. Part 1 of this article explores the $52.7 million between the consulting contracts and lost Medi-Cal revenue. Part 2 addresses the additional $11.4 million in expenses, likely to rise before Part 2 is published.

Consulting Contracts

Within a month of being decertified in April 2022, LHH and the San Francisco Department of Public Health (SFDPH) set out on a spending binge. They hired consulting firms to help LHH straighten out the hospital's mismanagement and assist with efforts to get LHH recertified by the U.S. Centers for Medicare and Medicaid Services (CMS).

SFDPH initially awarded a combined $9 million in May 2022 to three consulting firms to help rescue LHH and prevent its closure following its April decertification, as shown in Table 2. The initial $9 million rapidly ballooned to $16.3 million.

Two contracts totaling $11.4 million — the $7.3 million contract awarded to Health Services Advisory Group (HSAG) in January 2023 and the $4.1 million contract awarded to Moss Adams approved in 2023 — are problematic, raising questions
 that remain unanswered.

Seeking to create the first three contracts — with Health Management Associates (HMA), Health Services Advisory Group (HSAG), and Tryfacta, Inc. — as somewhat open-ended, SFDPH proposed that each of the three contracts could extend to $10 million each — with each having flexible terms of up to ten years. But San Francisco’s Board of Supervisors balked. They weren't willing to allow SFDPH to increase the contracts without additional Board of Supervisor oversight and pre-approval, especially not for ten-year contract terms.

That hasn’t stopped SFDPH. A little over a year after the contracts were enacted, they've increased to $30 million anyway. SFDPH may ask for additional contract amendments in short order or seek additional new contracts.

Concerns about oddities in the contracts include:

• Health Management Associates (HMA) Contract HMA’s initial contract and its first amendment totaling nearly $5.9 million, was to develop a preliminary assessment of factors that led to LHH's decertification. That included performing two unofficial “mock surveys” designed to mimic official Federal and State survey inspections. HMA sought to help identify LHH's deficiencies and lack of compliance with Federal nursing home standards.

The first mock survey was conducted in June and July 2022, revealing 96 deficiencies. Each could have resulted in actual State citations during an actual survey recertification survey. Such deficiencies would prevent LHH from being recertified. [The Westside Observer reported on that first mock survey in March 2023.]

The second mock survey initially planned for September 2022 was postponed. It was never conducted. It's unknown if the canceled second mock survey reduced HMA's $5.9 million contract.

Has HMA reported to or briefed the Board of Supervisors or the Health Commission in the first six months of 2023? Its contract theoretically ended on June 30, 2023. Because LHH is so far behind schedule to become recertified, will HMA seek an additional contract amendment at an additional cost through the end of 2023? Has the need for HMA's services ended, or is HMA still advising LHH?

• Health Services Advisory Group (HSAG) Contracts, A little over a month after awarding HSGA its first contract for $1.8 million in May 2022, SFDPH raced to tack on a $5.2 million amendment by June 15, 2022, pushing HSAG’s first contract to $10,436 shy of $7 million.

On June 15, 2022, HSAG's contract amendment to its first contract essentially funded using HSAG consultant staff to perform quality improvement tasks. It also filled the roles of LHH's Nursing Home Administrator (NHA) and Assistant Nursing Home Administrator (ANHA) consultants at $400 per hour. It also funded an Infection Preventionist position and a Discharge Transfer Coach position at $325 per hour. LHH could have actually hired employees to perform those positions at a far lower cost. The initial contract and its amendment were for May 9 to December 22, 2022.

HSAG's third contract, awarded on January 30, 2023, for $7.3 million, essentially extended the first contract that ended in December 2022 to cover the period from January 1 through December 31, 2023. The contract justification initially claimed the contract would continue using HSAG consultant staff to perform LHH’s NHA, ANHA, Infection Preventionist, and Discharge Transfer Coach positions. Following questions raised by one of the five Health Commissioners, SFDPH and LHH asserted the third contract was not for a fixed amount. They would only be based on monthly invoices as needed and billed, suggesting that HSAG might not use the entire $7.3 million.

Initially thought to have been somewhat benign, HSAG’s January 2023 $7.3 million contract awarded in January 2023 became problematic in May, raising troubling questions.

However, after LHH was warned twice not to sustain any more “Immediate Jeopardy” deficiencies and citations —risking complete termination of CMS funding and possible complete closure — LHH racked up another “Immediate Jeopardy” citation on May 8, 2023. At that point, LHH’s acting CEO, Roland Pickens, raced to submit a letter to the U.S. DHHS and CMS on May 14 claiming that LHH would roll out a new “Consistent Care at the Bedside Initiative” (CCBI) by “soliciting” to hire an additional consultant for $7 million ($1 million monthly for May to December).

Significantly, LHH rolled out the CCBI project precisely because it admitted in its May 14 letter to DHHS and CMS it recognized “some LHH staff demonstrate [bedside] practices that will jeopardize recertification” because of “instances where some LHH staff are at times unable to consistently and reliably deliver safe, regulatory-compliant, and policy-compliant care at the bedside.”

Pickens' May 14 letter specified “[LHH] would solicit and hire additional consultants at a cost of over $1 million per month to observe and advise frontline staff and management on every floor, in every unit, for each shift” for the new bedside consistent care initiative” — borne out of provoking an “Immediate Jeopardy” on May 8 and offered as a “fix” to show CMS “[LHH] was serious about ... a final push toward regulatory compliance.”

LHH has 13 patient units (wards), and there are three shifts, which suggests there might be 39 consultants - “monitors” hired to cover the three shifts on each of the 13 units. But Pickens seems to have done an about-face a month and a half later, informing the full Health Commission on June 20 that HSAG would provide one “monitor” per unit with previous “Director of Nursing” equivalent job experience splitting their time across the three shifts, saying monitors will observe “… some days they will work day shift, other days they will work night shift, and other days they will work on evening shift” (at approximately 0:58:24 on videotape).

That's a significant departure from what Pickens claimed to CMS and the U.S. Department of Health and Human Services in his May 14 letter: it would hire consultant monitors for “every floor, every unit, on each shift.”  So which is it? Monitors on every unit on each shift? Or every unit, but on random shifts?

It’s unclear whether having the CCBI “monitors” working on random shifts will help retrain all staff who are jeopardizing recertification. Or if the random monitors will reach all staff not consistently providing regulatory-compliant bedside care.

There is no new consultant and no new $7 million contract. Instead, a public records request revealed that SFDPH and LHH would seemingly use and repurpose the same $7.3 million HSAG was awarded in January 2023, using HSAG consultants to staff the “CCBI” project.

There was no mention in either HSAG’s first contract, its amendment, or HSAG’s third contract that either of the two contracts would focus on a “Consistent Care at the Bedside Initiative” at $1 million per month to improve the quality of care provided to LHH's residents.

Necessary progress toward substantial compliance with Federal regulations showing dismal effect, LHH threw this new $7 million CCBI program at the problem, hoping that might spur progress.

Reasonable questions about the contract include: Why wasn't the “CCBI” project necessary in June 2022, at the outset of corrective actions, to help LHH gain recertification? Why did it suddenly become an issue in May 2023, only six days after LHH had racked up another “Immediate Jeopardy” violation on May 8? Alternatively, when HSAG was awarded its third contract in January 2023, why wasn't the need for the “CCBI” project identified then? Was this initiative dreamt up to spend down the $7.3 million contract awarded in January 2023 to ensure HSAG would be rewarded with the spending?

It’s also unclear whether HSAG invoiced any of the funding awarded in January to perform LHH's NHA, ANHA, Infection Preventionist, and Discharge Transfer Coach positions or whether those funds were sitting there encumbered but unused, and so were repurposed to fund the CCBI project — just to somehow spend down the money.

SFDPH awarded HSAG's second $2.7 million contract to perform “Quality Improvement Expert” (QIE) duties on behalf of LHH. These duties were required as a mandatory provision of CMS’ “LHH Settlement Agreement,” adopted on November 10, 2022. The QIE produces “Root Cause Analysis” (RCA) and corresponding “Action Plan” corrective milestone reports following each successive “90-Day Monitoring Survey” site inspection. The QIE’s first RCA report clearly and rightfully revealed that LHH was decertified for running Laguna Honda as an acute-care hospital rather than a Skilled Nursing Facility (SNF). It was not following CMS regulations applicable to nursing homes.

That mismanagement of LHH should never have happened because LHH has been licensed as a “distinct-part SNF” for decades. SFDPH and its governing body, the San Francisco Health Commission, had to have known the difference because distinct-part SNFs receive a significantly higher patient financial reimbursement rate. That has been a significant bone of contention for other free-standing SNFs in San Francisco. They receive significantly less Medi-Cal reimbursement for performing essentially the same level of patient care. Distinct-part SNFs are facilities affiliated with a hospital. LHH is licensed for 11 acute care beds plus 769 skilled nursing beds, as the Health Commission surely must know. Given those 769 beds, the Health Commission should have known LHH needed to follow the correct licensing regulations.

The QIE must also submit monthly “Monitoring Reports” to CMS summarizing the progress towards substantial compliance with nursing home regulations. LHH is paying for the QIE contract, but the QIE reports to CMS, not to LHH or SFDPH.

The QIE was thought to be the only contractor responsible for developing and approving the “Action Plan” milestones. That may not be true.

All told, HSAG was awarded $16.9 million in lucrative contracts to help LHH regain its CMS recertification.

Tryfacta, Inc. Contract The $3.5 million contract with Tryfacta is to fill as-needed positions that LHH cannot fill for staff vacancies. That contract hasn't been particularly controversial.

Moss Adams Contract The Moss Adams contract is the most bizarre of LHH’s four principal consultants. Initially awarded in December 2021, the contract grew to just under $10 million in approximately one year. How much of the $10 million is to assist LHH's recertification efforts is unclear.

A third Moss Adams contract amendment that SFDPH signed on January 15, 2023, was eventually granted. It wasn't presented to the Health Commission for approval until April 4. The amendment was problematic even before it was first discovered in April. SFDPH suppressed the news that the contract involved LHH since June 2022. It was not made public or shared with the Health Commission. That contract, and its beleaguered history, raise troubling questions.

On April 23, 2021, SFDPH released a Request for Proposals (RFP #10-2021) to obtain “Lean Consulting Services,” seeking consultant services to support the implementation and the spread of “LEAN” as a management strategy. It proposed to streamline processes and create a more patient-focused system of care. The RFP was issued a full year before the hospital was decertified in April 2022. The RFP made no mention that the Lean consulting services would include or involve LHH.

On December 11, 2021, SFDPH first contracted Moss Adams, LLP, for Lean consulting work for SFDPH writ large (#1000024026). The initial contract, approved by the Health Commission, was for a not-to-exceed $2,147,119 award. It didn't state that it included consulting for LHH. The gig was initially for two years ending December 10, 2023. The initial budget was for “Hoshin Kanri,” Lean transformation, “Kaizen,” and other services, including a Hoshin initiative focusing on COVID “transition,” a Hoshin initiative for “Mental Health San Francisco,” and other Lean “coaching” services. The Hoshin Kanri method is meant to eliminate the waste from inconsistent direction and poor communication.

The initial contract provided no actual scope of work for Laguna Honda Hospital. It was not mentioned — throughout the contract — but it declared Hoshin strategy services for LHH “can be added for an additional cost.”

Three months after LHH was decertified in April 2022, a first amendment to the Moss Adams contract was awarded on June 10, 2022, increasing the initial $2.1 million contract by $2,068,961 to a new not-to-exceed $4,126,080 total. Included in the $2 million contract increase was a new Hoshin initiative titled “LHH Transition,” which was budgeted at $1,638,967. The scope of work for the LHH component amending the contract stated:

“[to] support Laguna Honda’s recertification efforts in the Centers for Medicare and Medicaid Services Provider Participation Program, the goal of our work is to support [LHH’s] Incident Command leadentaining critical processes related to information flow in the Incident Command structure. The specific functions [include] implement, deploy, and facilitate Hoshin strategy deployment, [including rship in establishing and maiwith ] an overarching ‘air traffic control’ that supports [LHH’s] Executive Sponsor and [the two LHH] Incident Commanders in making sure that targets are clearly set and communicated, work is coordinated and well organized among the Incident Command Sections and Branches, risk processes are clearly understood and utilized, communication holes identified and filled, and driving the timely completion of deliverables and milestones, as well as a regular cadence of streamlined reporting to ensure a high functioning system. Included in Hoshin facilitation is an Executive Advisory function to serve the Executive Sponsor [LHH’s acting CEO, Roland Pickens] in identifying strategic issues and risks and make recommendations for how to mitigate those risks.”

The “air traffic control” process is described elsewhere as “establishing critical processes within the Incident Command structure, in particular, to handle and triage communication processes for inbound requests for information from key external stakeholders — “the Mayor’s Office and SFDPH leadership.”

For readers unfamiliar with the management concepts of “Lean,” “Kaizen,” “Hoshin Kanri,” and “True North,” a half-page tutorial, or primer, on the concepts is available on this author's website.

On December 20, 2022, SFDPH issued a “Program Budget Revision” amendment to the Moss Adams contract to reallocate funds within the $4.2 million amended contract, clarifying that the contract was for $4,126,080, not $4,216,080 as had been listed in the first Amendment. The “Hoshin LHH Initiative” for Laguna Honda was increased by $116,565 to a revised total of $1,755,532.

Then a DPH Contracts Report oddly dated May 4, 2023, was presented to the Health Commission's “Finance and Planning Committee” meeting on April 4, 2023 — which is when the public first learned that the Moss Adams contract had been amended nine months earlier in June 2022 to include supporting the LHH recertification effort.

Page six of the April 2023 Contracts report increased Moss Adams' contract by $5,861,213 to a total contract of $9,987,293 — which is just $12,707 shy of a $10 million contract that typically requires Board of Supervisors approval. Is the Board of Supervisors aware of this nearly $10 million contract boondoggle?

The April amendment increasing the Moss Adams total contract to $9.99 million represents a 365.1 percent change increase over the initial $2.1 million contract. The Contracts Report stated, in part:

“This contract amendment will make a substantial addition to service hours in support of Laguna Honda’s recertification efforts in the Centers for Medicare and Medicaid Services Provider Participation Program. In those efforts, Moss Adams services will support the Incident Command leadership in establishing and maintaining critical processes related to information flow in the Incident Command structure. This will include streamlined and documented process for Incident Command structure and reporting; Communication triage process for inbound requests from key external stakeholders (e.g., Mayor’s Office and DPH Leadership.”

And shockingly, the “Service Description” in the April Contracts Report and the second Moss Adams contract amendment both state:

“The primary outcome of the comprehensive system is remediation of all Plans of Correction (POCs), including the RCA [Root Cause Analysis reports], Action Plan [corrective action “milestones”] and other initiatives, to sustain survey readiness both through recertification and on an ongoing basis.”

Wait. What? Wasn’t the development of the RCA’s, Action Plans, etc. adequately funded with the $2.7 million contract awarded to HSAG as LHH’s “Quality Improvement Expert”? Why does LHH need two consulting firms to develop these documents? Does LHH need to throw another $4.1 million contract at Moss Adams to develop work its QIE should perform?

In addition, Contract Amendment #2 — signed on January 15 but not presented to the Health Commission’s subcommittee for three months until April 4 — stated that Moss Adams will assist with “Leadership development of coaching competency for 4 Nurse Directors and 6 Nurse Managers.” One problem is that a revised organization chart released on July 12 shows that LHH has at least 13 Nurse Manager positions and at least 4 Nurse Director positions — plus at least three different Director of Nursing (DoN) positions and another five Nursing Operations Supervisor positions. So only a small handful of LHH's senior Nursing leadership team are being trained on Lean and Kaizen “coaching” skills. And there was no mention that Moss Adams will be training LHH’s new Nursing Home Administrator or its two new Assistant Nursing Home Administrators.

No explanation has been offered as to why the Health Commission had not even been publically informed about the LHH component before April 2023.

Indeed, during the April 4 Finance and Planning Committee meeting, Commissioners Chow and Guillermo complained that the Health Commission and its LHH-Joint Conference Committee (LHH-JCC) had never been told that Moss Adams was assisting with LHH's recertification. The pair of Commissioners asserted on April 4 that it was the first time they heard about this particular contract being expanded to include consulting for Laguna Honda Hospital.

And both Commissioners specifically asked that SFDPH, via LHH’s acting CEO, Roland Pickens, schedule a presentation to the LHH-JCC to discuss what Moss Adams’ Lean consulting contract is doing for LHH's recertification.

The LHH-JCC has not scheduled an agenda item on the Moss Adams contract at either its April 11, May 9, June 13, or July 11 meetings, so now, four LHH-JCC meetings later, and there's been no opportunity for the public to know about this contract.

Of the now nearly $10 million Moss Adams contract, the LHH portion shown in one summary in Amendment #2 indicates the LHH portion is now $4,137,632, including $746,130 in travel expenses. The LHH portion appears to have grown by $2.5 million — up from $1,68,967 since June 2022, representing a 152.5 percent change increase. Elsewhere, a different summary claims the LHH portion is only $3,391,500.

But as discussed below, the $10 million contract includes $3.3 million in expenses not apportioned to specifically-named projects, so the actual amount apportioned to the “LHH Hoshin Initiative” may be significantly higher. After all, Amendment #2 added $5,861,213 to the existing contract, which amendment was pitched in the “Contracts Report” as “making a substantial addition to service hours in support of Laguna Honda’s recertification.”

SFPDPH extended the Moss Adams contract period in Amendment #2 to December 31, 2024. It's unknown why the contract is needed through 2024.

Additional Moss Adams Contract Oddities

The rapid growth during the 14 months between December 2021 and January 2023 in the Moss Adams contract merits a closer examination.

Table 3 raises disturbing questions:

• The $3.4 million shown in Table 3 for the LHH Hoshin Initiative does not include $746,130 in anticipated travel expenses for the LHH component shown in a different table in Amendment #2, which brings the LHH subtotal to $4.1 million.

• Between the COVID Transition Hoshin Initiative and Mental Health SF Hoshin Initiative, the initial combined $996,035 was reduced by $282,817 to just $713,218 during subsequent contract amendments reallocating funds within the budget.

• Between items “C,” “D,” and “E” — “Implement and Deploy,” “Improve,” and “Enable and Lean Management” — the initial budget of $996,035 soared by $3.3 million to a total of $4,192, 40% of the now $10 million total contract.

• Shouldn’t those three components have been itemized for each of the three separate Hoshin Initiatives (items “A,” “B,” and “F”)?

• Since the Moss Adams staff performing this consulting gig are headquartered in Seattle, WA, why did the travel budget soar by $1.6 million, from $70,248 initially to $1.7 million?

• The “Contingency” amount initially budgeted at $230,048 dropped by $208,473 to just $21,575 between December 1, 2021 and January 15, 2023. Does that mean over $200,000 in contingency fees have already been spent?

• Given that the April 4 Contracts Report informed the Health Commissioners that the Moss Adams contract was being increased by $5.9 million mainly to support LHH's recertification efforts, is it realistic to believe the LHH Hoshin Initiative portion of the contract is only $4.1 million — or would the LHH portion be realistically and significantly higher if the separate $4.2 million in the non-itemized “overhead” (items “C,” “D,” and “E”) of the budget was accurately apportioned and itemized among each of the three Hoshin Initiative projects (items “A,” “B,” and “F”)?

• And if so, how much more might the total Consultant Contracts costs shown in Table 2 of this article increase to show a more accurate amount of the Moss Adams contract is being spent to support recertification?

Obviously, scheduling a briefing on the Moss Adams contract during a Health Commission LHH-JCC meeting might better educate both the Health Commissioners and the public by providing answers to questions raised in this article.

And another pertinent question to ask is: Does Mayor London Breed need an “air traffic control” Hoshin Kanri contract to field her incoming information inquiries to LHH’s “Incident Command” structure and new “Executive Sponsor” (Roland Pickens’ new job title now that LHH has a new CEO, Sandra Simon)?

Lost Medi-Cal Revenue

As Table 1 above reports, SFDPH acknowledged in its May 12 Third Quarter Revenue and Expenditures report for Fiscal Year 2022–2023 (through March 31, 2023) that LHH has a $22.3 million loss in Medi-Cal revenue, given the halt on new admissions starting in April 2022.

That lost revenue is strange since SFDPH has repeatedly assured the Board of Supervisors that Medi-Cal revenue to LHH typically involves approximately $200 million annually.

Therefore, why SFDPH only reports a shortfall of $22.3 million in lost Medi-Cal revenue seems ridiculously underreported. The Fourth Quarter report through June 30, 2023, will become available in August or September to learn whether the total amount of lost Medi-Cal revenue has increased.

Part 2 of this article will explore the State and Federal fines, penalties, and lawsuit expenses, plus the additional miscellaneous expenses, that total approximately $11.4 million — which will likely increase during the next few weeks.

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 monette-shaw@westsideobserver.com.

June 15, 2023

Why Didn't This Happen Years Ago Department

It Took Decertification for the Health Commission to Correct Its 20-Year-Old Mistake — Running a Nursing Home Without a Licensed Nursing Home Administrator

LHH Finally Hires a Licensed Nursing Home Administrator

Help Save 120 Beds at Laguna Honda Hospital

Please Sign My Petition

Given our severe shortage of Skilled Nursing beds, DPH claimed it would do “everything it can” to save LHH’s 120 beds. But it hasn’t submitted a written waiver request yet!

Please share this petition widely with your contacts, I’d really appreciate your help.

by Patrick Monette-Shaw

•••••••••• June 15, 2023 ••••••••••

After 20 years without a licensed Nursing Home Administrator at the helm of Laguna Honda Hospital (LHH), that will change starting on June 26, 2023. At last someone knowledgeable about Federal nursing home regulations will be in charge.

Laguna Honda’s last licensed Nursing Home Administrator — the venerated Lawrence Funk — was ousted in 2004 after he quarreled with then-Director of Public Health, Mitchell Katz. Katz, in a fit of pique, forced Funk out as LHH's long-time CEO.  LHH's staff had widely respected Funk, and under his leadership, LHH had routinely passed CMS and California Department of Public Health (CDPH) inspection surveys for years, albeit with occasional hiccups, without LHH ever facing decertification.

Funk had been forced out because he supported LHH’s doctors who had resisted admitting dangerous, robust behavioral health patients from San Francisco General Hospital (SFGH) that LHH could not safely care for. In 2003 and early 2004, Katz began his now widely discredited "Flow Project" of patients at SFGH that were occupying expensive acute-care hospital beds and burning through unbillable “administrative days" at SFGH. These were patients for which they could not find discharge locations. Katz wanted to solve a budget problem by simply dumping those patients into LHH — a hospital that wasn’t licensed to provide for their care, nor the proper clinical staff to provide behavioral health care.

Katz solved his problem by getting rid of Funk. Next up on Katz’s chopping block was disbanding the LHH Medical Service Department’s physician screening committee comprised of doctors, psychiatrists, and psychologists who regularly screened SFGH patients before admission to determine whether LHH could safely care for them without placing other residents, such as elderly dementia patients, and LHH staff in harm's way.

With Funk out of the way and the screening committee disbanded, Katz had a green light to turn LHH into a place where he could discharge SFGH patients with mental health problems. Katz believed LHH should provide the same type of mental health services that had previously been provided at the former "Mental Health Rehabilitation Facility” (MHRF) on SFGH’s campus. It had been closed down and converted to other purposes.

In the 20 years in between, LHH’s parade of subsequent CEOs after Funk — first John Kanaley, followed by Mivic Hirose, then Michael Phillips, and finally its acting CEO for the past year, Roland Pickens — never had a licensed Nursing Home Administrator (NHA) on staff. That might have stood in the way of the dumping scheme that Katz and the subsequent Directors of Public Health — first Barbara Garcia and the current Director of Public Health, Grant Colfax relied on to balance the budget.

The lack of a licensed NHA contributed in part to the loss of certification by the Centers for Medicare and Medicaid Services (CMS) in April 2022. That happened because LHH's subsequent CEOs weren't following CMS’ regulations governing skilled nursing facilities.

The hospital is finally gaining a licensed NHA, but it only came at the cost of and as a direct result of decertification.

After it was decertified, LHH hired three outside consultants to help apply for recertification. One of the firms — Health Management Associates (HMA) — has been awarded $5.9 million in contracts; it notified LHH's administrators as early as June 2022 that it needed to hire an industry-standard NHA position rapidly to provide skilled nursing regulations expertise. this was essential to attain compliance with CMS regulations specific to nursing homes.

Then, in November 2022, a second consultant — Health Services Advisory Group (HSAG) hired in part to perform the role as a CMS-approved “Quality Improvement Expert” (QIE) — awarded a total of $17.3 million in contracts to date. It prepared its first “Root Cause Analysis” (RCA) report, submitted to CMS on December 1. They noted, "The facility does not have a nursing home administrator on staff, which also contributes to the lack of knowledge specific to nursing home regulations and operations.”

Despite CMS’ urging that LHH hire and “on-board" an NHA as rapidly as possible, the QIE's subsequent “Action Plan” for LHH dawdled, giving LHH until February 28, 2023, to even write a simple job description for an NHA position, and until April 30 to begin posting a job vacancy and job announcement for this critical position. 

Dawdling Gratified — Long Overdue NHA Finally Hired

After LHH dragged its feet for an entire year, to the consternation of CMS, the new NHA is set to begin her employment at LHH on June 26.

During the Health Commission’s June 6 meeting, Director of Public Health Grant Colfax reported that a Nursing Home Administrator — Sandra Simon — has finally been hired for LHH.  LHH notified its staff of the hiring decision on May 31, 2023. The staff notice indicates Simon is deemed a “Medicine Woman” in her lineage.

Ms. Simon will serve as LHH’s Nursing Home Administrator (NHA) and Chief Executive Officer (CEO) starting on June 26. As the May 31 notice to staff indicates, she reportedly has over 20 years of experience as an NHA. According to her LinkedIn profile, she has a bachelor’s degree in Gerontology (the scientific study of old age and the process of aging) from San Diego State University. 

Ms. Simon served as the Chief Administrative Officer at the San Francisco Campus for Jewish Living for 10 years, between October 2003 and June 2014. She held dual roles in her most recent position: As the Campus Director for the Holgate Center Campus, which includes the Friendship Health Center where she serves as its NHA. Both facilities are in Portland, Oregon, and appear to share the same campus. Linked-In reports she’s held those dual positions for seven months.

Before that, Simon served as the NHA for two Prestige Care, Inc. facilities in Oregon, one for just nine months and another for three years and four months. The Friendship Health Center of the Holgate Center Campus is licensed as a skilled nursing facility having 100 "Medicare-certified" (licensed) beds; during its most recent CMS health inspection, it had an average daily census of 68.7 residents. The Prestige Care and Rehabilitation – Menlo Park Care Center where Simon served as its NHA for nine months, is also a licensed skilled nursing facility having just 83 "Medicare-certified" (licensed) beds; during its most recent CMS health inspection, it had an average daily census of 70.4 residents.

That contrasts with Laguna Honda, which is licensed, and Medicare certified for 769 beds (plus 11 beds licensed for in-hospital acute care). LHH had an average daily census of 563.3 residents during its most recent health inspection on April 19, 2021. It's not known how many staff members the Friendship Health Center or the Prestige Care Menlo Park facility had compared to LHH’s approximately 1,460 employees. [Note: LHH also contracts for an unknown number of additional licensed “registry" Nursing staff, including RNs, LVNs, and Certified Nursing Assistants (CNA) staff who fill in as per diem, temporary employees.]

What is known is that per CMS the two facilities in Portland, Oregon had an overall nursing staff turnover rate of 61.6% and 46.3%, respectively, and a high turnover rate of Registered Nurses (RNs) at 80% and 70% turnover, respectively. Perhaps Ms. Simon may have an idea why the Nursing turnover rates at those two facilities were so high. 

Unfortunately, for some unknown reason, LHH doesn't report its nursing staff, or RN, turnover rates to CMS. That may be because LHH relies so heavily on nursing staff and RNs provided through the so-called “registry” staffing contracts, and has for decades.

An Internet search revealed Ms. Simon is the Founder and Executive Director of Yoga Punx PDX, a non-profit “bringing the transformative and healing practices of Yoga, with a harm reduction approach and trauma-informed lens to those healing from trauma, substance use disorder, and violence.” It's not known if she was chosen to be LHH's NHA and CEO for her experience with patients having substance use disorders.

Given the healthcare acuity and disease progression of many of LHH’s residents — particularly a large percentage of those having advanced dementia or Alzheimer’s — they likely may not benefit from Yoga interventions.

Prior to LHH’s current acting CEO, Roland Pickens, LHH’s previous CEO, Michael Phillips (who was abruptly terminated in June 2022 following LHH’s April 2022 decertification) had previously been picked as LHH’s CEO for his experience at a 118-bed Behavioral Health Unit at Silver Lake Medical Center in Los Angeles.

Observers wonder whether Simon has been told she will a) potentially be saddled with a superimposed State-funded management team operating in parallel tandem with her as LHH’s NHA, and b) That she may report directly to Pickens as the CEO of the San Francisco Health Network (SFHN), rather than to the Director of Public Health, Dr. Grant Colfax.

And it’s not known whether she understands the implications she may be saddled with, especially LHH's current crop of intractable administrators who were largely imported from SFGH and the SF Department of Public Health. So, it's unclear whether she'll be able to fix the mess that LHH's managers, who lacked experience working in skilled nursing facilities willfully created by transgressing Skilled Nursing Facility regulations for going on 20 years — or at least for the past seven years since the patient sexual abuse scandal began in 2016 —  which the Health Commission and City Hall went along with for 20 years. Simon will be up against obdurate managers previously transplanted from SFGH and the San Francisco Health Network (SFHN) to run LHH.

And it's unclear whether Simon, as LHH’s new NHA, will be protected from — or hobbled by — being coerced by the “Flow Project” crowd still in place. Will they be reluctant to let LHH function as a stand-alone skilled nursing facility independent of SFGH, like a bad hangover?

Areas of Concern

Simon’s longevity in her last three positions is somewhat troubling.  Her LinkedIn profile reports that she was Campus Director at the Holgate Center for just seven months. And she served as the Nursing Home Administrator for the Prestige Care, Inc. Menlo Park facility for just nine months. The profile shows a gap year of no employer between the Menlo Park facility and her employment before that as a Nursing Home Administrator for another Prestige Care Inc. facility in Forest Grove, Oregon for three years and four months.

What Laguna Honda Hospital really needs is an NHA who will commit to serving as its CEO for however long it takes to obtain recertification and sustain compliance for several years with CMS’ nursing home regulations to prevent a recurrence of the mismanagement of Laguna Honda.

A chart based on CMS’ “Nursing Home Compare" website data raises some concerns. Among other things, it shows that in Simon’s last two positions, the Registered Nurse hours per resident per day were well below the average hours per RN in Oregon facilities — at 27 minutes and 32 minutes, respectively, compared to the Oregon State average of 44 minutes. And the rates of RN turnover were significantly higher at both facilities at 80% and 70% respectively, higher than the Oregon average of 58% and the national average of just 51% turnover. Hopefully, Ms. Simon will have an understanding of why RN staff turnover was so high at both facilities.

To be fair, given the slow pace of CMS facility inspections, the data for both the Holgate Center and Prestige Care Menlo Park facilities were from CMS inspections that predated Simon’s start date at either facility.

The Friendship Health Center on the Holgate Center has a CMS 2-of-5 Star “Below Average” overall rating, the same as Laguna Honda’s current 2-Star rating.  The Prestige Care Menlo Park facility currently has a 1-Star rating.

An Astute Observer’s Perspective

Dr. Teresa Palmer — a gerontologist who had formerly worked at Laguna Honda Hospital, has worked for 20 years in other Bay Area medical facilities and is a board member of the SF Gray Panthers advocacy group — submitted astute written testimony for inclusion in the Health Commission's June 6 meeting minutes. Her testimony speaks for itself and addresses additional issues of concern:

“A new nursing home administrator will not be able to assist in saving Laguna Honda intact unless she is empowered to act independently, and in the best interests of Laguna Honda residents.

"If direct care staff are chronically short and/or constantly moved around there is NO WAY to adequately create and follow required care plans—because care staff does not know their residents. Immediate jeopardy citations will continue.

"In addition, if there is pressure to admit new residents to any open bed in order to facilitate "flow" at SFGH, or if those with unstable, undertreated and acute behavioral disorders are not adequately screened, chaos and "immediate jeopardy" citations will continue.

"If immediate jeopardy citations continue, we will lose Laguna Honda.

"Will Ms. Simon be given the latitude and support she needs to do the job right?  Or is she being hired for her obedience?”

What’s Left Undone

For my part, I congratulated Ms. Simon during the June 6 Health Commission meeting for having been hired as LHH's NHA. Director Colfax indicated that two new additional Assistant Nursing Home Administrators have been offered positions, but he didn't indicate when they will begin employment. 

Clearly, there's been a restructuring change in LHH's organization because the NHA will serve concurrently as LHH’s CEO, but the hospital hasn’t submitted a revised organization chart to the Health Commission.

Colfax also indicated California Department of Public Health inspectors showed up at Laguna Honda to conduct the third 0-Day "Monitoring Survey," which is a full, comprehensive inspection prior to eligibility to apply for its recertification. The third survey will be followed by a fourth "Root Cause Analysis” report to CMS, corrective actions if any new “milestones” are identified, and a period in which to demonstrate sustained compliance before it can submit an application.

And finally, Colfax indicated LHH’s current acting CEO, Roland Pickens, isn't going anywhere any time soon and will remain at LHH until the hospital obtains its recertification. For the foreseeable future, there will be multiple layers of duplicative managers at LHH — including potentially State-installed crisis managers — stepping on each other’s feet.

So, Dr. Palmer’s concern that Ms. Simon might not be given the latitude and support she needs to do the job right and be empowered to act independently, remains a real concern and a potential risk.

Will LHH "Immediate Jeopardy" citations cease with Simon at the helm? Time will tell.

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 monette-shaw@westsideobserver.com.

June 15, 2023

Final Warnings for Laguna Honda

Laguna Honda Admits Its Own Staff Jeopardizes Its Recertification

Help Save 120 Beds at Laguna Honda Hospital

Please Sign My Petition

Given our severe shortage of Skilled Nursing beds, DPH claimed it would do “everything it can” to save LHH’s 120 beds. But it hasn’t submitted a written waiver request yet!

Please share this petition widely with your contacts, I’d really appreciate your help.

by Patrick Monette-Shaw

•••••••••• June 15, 2023 ••••••••••

As an astute observer of Laguna Honda Hospital's (LHH) now year-long problems seeking recertification to prevent its closure noted, "Replacing LHH's previous competent managers with 'Flow-Project'-friendly, but incompetent and clueless, managers from San Francisco General Hospital (SFGH) and elsewhere in San Francisco's Department of Public Health (SFDPH) led to the collapse of LHH as a venerable institution.”

All you have to do is look at LHH's ongoing problems — receiving "Immediate Jeopardy" citations — which led to that collapse. 

In the last issue of the Westside Observer, my colleague, Dr. Teresa Palmer, reported that LHH received notice from the Centers for Medicare and Medicaid Services (CMS) on May 18, extending the date that evictions might resume, one day before the mandatory, involuntary discharges of LHH’s residents were scheduled to begin on May 19. The pause has been extended to September 19, 2023, just three months from now. 

In a harsh rebuke, CMS noted that since LHH has already received multiple extensions to the mandatory discharges several times, no further extension requests will be entertained or granted. If LHH doesn't get recertified soon and is ordered to close completely, that's it. Game over.

Dr. Palmer’s May 26 article didn't wade into the other news in CMS' May 18 letter: That, among other issues, Laguna Honda Hospital was slapped with another “Immediate Jeopardy” (“I.J.”) regulatory violation on May 8, 2023. The “I.J." finding suggests LHH cannot provide adequate care for patients it still harbors. Turns out the new “Immediate Jeopardy” citation (the most severe type of patient care deficiencies) involved problems with the care plan for a resident who had attempted suicide in the facility that was not followed.

It took a few days for public records to be released, uncovering the timeline leading to LHH receiving the “I.J.”

Observers wonder whether the new “I.J.” factored into CMS warning that it will allow no further extensions on the pause of discharges. LHH should take this as a fair warning that it's now “September 19 ... or bust.”

Uncovering the New “Immediate Jeopardy”

LHH hid and downplayed the new “Immediate Jeopardy" citation it received on May 8. LHH effectively hid news of the citation for ten days between May 8 and May 18. Still, it inadvertently came to light when unrelated news surfaced announcing CMS had finally agreed to extend the pause on patient transfers from May 19 to September 19.

We only learned indirectly of the citation in CMS' May 18 letter. CMS wrote on May 18 that it had “endeavored” to notify LHH earlier — by May 8 — of CMS’ decision, but “LHH’s immediate jeopardy violation, however, delayed CMS’s decision" to extend the pause on discharges. CMS asserted it had waited to "receive reasonable assurance from Laguna Honda that the facility’s immediate jeopardy had been abated.” 

CMS hoped to respond by May 8 to City Attorney David Chiu’s May 3 letter requesting the extension on mandatory discharges. But CMS indicated due to the new “Immediate Jeopardy," it decided to wait to respond to Chiu’s letter.

Of some interest, LHH’s acting CEO Roland Pickens had previously testified — or implied — multiple times to the Health Commission meetings in April that LHH had submitted the request to extend the pause of mandatory discharges to CMS. But it became clear in CMS' May 18 letter that LHH and the City — via Chiu — had deliberately waited until May 3 before submitting a formal written request to CMS seeking the extension.

Sudden Letter Announces New Patient Care Initiative

We also learned in CMS’ May 18 letter that Pickens submitted a letter to the U.S. Department of Health and Human Services (U.S. DHHS), which controls CMS. Two days after CDPH lifted the "Immediate Jeopardy” at LHH on May 12, Pickens raced to submit a letter to DHHS and CMS on May 14, trying to reassure the Federal agencies that LHH was taking extraordinary steps to address its latest “Immediate Jeopardy" problem. Pickens did so, knowing "Immediate Jeopardy" citations could precipitate the end of LHH's "Settlement Agreement” with CMS.

Six days after receiving the “Immediate Jeopardy” citation on May 8, Pickens’ May 14 letter suddenly announced a new $7 million-plus initiative to provide consistent and compliant care at patients’ bedsides. Importantly, it seems LHH put the new initiative into place because they reached a damning conclusion:

“After 12+ months of significant and intensive work to ensure LHH is recertification survey ready, some LHH staff demonstrate practices that will jeopardize recertification.”

Is the new programming merely to pass recertification or to truly improve bedside patient care? It’s fair to ask: Why LHH didn't put this programming in place 12 months ago?

Pickens’ May 14 letter, obtained under a Westside Observer public records request, asserted that due to the May 8 citation, LHH decided to roll out a new patient care program called the “Consistent Care at the Bedside Initiative" (CCBI). It would hire “additional consultants at a cost of over $1 million per month to observe and advise front-line staff on every floor, in every unit, for each shift."  For its part, CMS claimed the new CCBI program will “foster culture change among front-line workers [at LHH] providing bedside care.” Apparently, CMS accepted the news of this new initiative at face value.

There are a couple of notable concerns with this new initiative. First, two weeks after obtaining Pickens' letter, the Westside Observer received a response to a subsequent records request which revealed that LHH had not hired an additional consultant for $1 million plus per month; it's the same consultant LHH has had since May 9, 2022 — Health Services Advisory Group (HSAG), which has chalked-up $17 million in multiple contracts to help regain LHH's recertification.

And it's not a new contract. SFDPH asserts it is funding the "new" initiative through the same $7.2 million contract (Contract ID # 1000027889) awarded to HSAG in February 2023. One glaring problem is that when that contract was initially issued, there was no mention of any CCBI program. The scope of services for the contract (Appendix B-1) was titled "Laguna Honda Pre-Certification," and it listed no such "care at the bedside” initiative.

The lion’s share of the “Scope of Services” for the contract was for temporary consulting staffing for Nursing Home Administrator positions and Director of Nursing positions provided by HSAG at a total of $1,065,600 in billable consultant staffing hours and consultant staffing for a Senior Quality Improvement Specialist, an Infection Preventionist, and Discharge Transfer Coaching staff at a total of $3,354,975 in billable consultant staffing — all at hourly rates of $400 per hour. There was no mention anywhere in that contract of the CCBI program or any "culture change” interventions.

The new initiative is now necessary to fix the ailing, snail-paced progress toward substantial regulatory compliance following its decertification 13 months ago, given stubbornly persistent problems.

It appears this sudden new initiative may be a last-ditch effort to counteract CDPH’s proposal to install its own State-hired management and crisis management team at LHH — akin to a form of receivership — to help ward off the complete closure of the facility.

Downplaying the Severity of the May 8 “Immediate Jeopardy”

As in the past, LHH and SFDPH have deliberately chosen to minimize the severity of the May 8 “Immediate Jeopardy” citation. First up was LHH acting CEO Pickens, who addressed the Board of Supervisors on May 9. Pickens misinformed the Supervisors (at around 1:12:56 on videotape):

“As you know, we are required by California law if there is an unusual resident or patient occurrence, we are required to report it. While they [State surveyors] came out to [investigate] one of those self-reports last week [the week of May 1 to May 5] on one of these ‘self-reports’ they found a case where a resident’s care plan was not followed appropriately that had the potential to cause harm. No harm was caused, but since they were there, they pointed that out to us. We submitted our Plan of Correction for that issue on yesterday [May 8].”

It later turned out, per the “Regulatory Affairs Report” at the Health Commission's subcommittee (LHH-JCC) on June 13, that the “self-report" Pickens had tried to pawn off wasn't a self-reported "Facility Reported Incident” (“FRI"). Instead, it appears that when State inspectors showed up at LHH on May 1 through May 5, they were there to investigate an "anonymous complaint," not an FRI. That appears to have resulted in the "Immediate Jeopardy” citation. Someone — perhaps a family member or friend of the resident involved or an LHH staff member — may have filed an anonymous complaint over the incident.

And contrary to Pickens' attempts to downplay the incident to the Board of Supervisors, by definition, “Immediate Jeopardy” citations involve actual jeopardy-to-resident incidents (Level 4 severity), not incidents causing “No Actual Harm” (Level 2 severity).

On May 16, LHH brought in Baljeet Sangha — a mid-level manager at the San Francisco Health Network (SFHN), as one of two "Incident Commanders” leading LHH’s recertification efforts (LHH's decertification was not a mere "incident") — addressed the Health Commission providing a status update on LHH. He told them, in part (at 0:5:56 on videotape):

“CDPH found a case where a care plan was not being followed appropriately and that had the potential to cause harm. No harm was caused, but the potential was there so they pointed that out and our Plan of Correction was submitted last week and was accepted this past Friday [on May 12].”

Sangha was either lying or trying to use his best spin control for the Health Commissioners. He should have known by May 16 about Pickens' May 14 letter to DHSS acknowledging that the May 8 citation involved an "Immediate Jeopardy" violation — a Level 4 severity, a step above “Actual Harm" citations at Level 3 severity. The citation doesn't appear to have involved just "potential” harm to a resident (Level 2 severity).

Of interest, neither Pickens nor Sangha mentioned this new $7 million-plus CCBI intervention to the Board of Supervisors on May 9, the LHH-JCC on May 9, or the Health Commission on May 16. It needs to be clarified whether the Health Commission even knows about this new bedside-focus intervention that LHH claimed it has rolled out.

Not to be outdone, Naveena Bobba — one of the Department of Public Health’s Deputy Directors — asserted in an e-mail to Supervisor Myrna Melgar on May 18 transmitting CMS’ May 18 letter extending the pause on transfers to September 19, that the incident in question had not caused harm to a patient:

“As mentioned at the LHH Hearing before the Board of Supervisor last week [on May 9] by Interim CEO Roland Pickens and at the Health Commission this past Tuesday [May 16], you’ll note the serious finding investigated by the state and that has now been closed out. There was a finding regarding a resident’s care plan not being followed appropriately that had the potential to cause harm. Importantly, no harm was caused.”

There you have it:  After struggling for over a year to get LHH staff to prepare and follow individualized care plans for its residents — a significant reason LHH was decertified in April 2022 — the consultants have been unable to get LHH staff to implement and then follow patient’s care plans. And cavalierly, Bobba disdainfully misclassified the citation as only having the potential to cause harm (at a Level 2 severity) rather than having involved more than actual harm, which is what “Immediate Jeopardy” citations involve.

And to delay the details behind the actual event that precipitated the "Immediate Jeopardy” citations from becoming public, SFDPH and LHH have slow-walked another Westside Observer public records request placed on May 23 to obtain both CDPH’s Form 2567 anonymous complaint survey inspection report and the Plan of Correction LHH claimed it had submitted by May 12 to convince CDPH to close the "Immediate Jeopardy” violation. Both documents may eventually shed more light on what caused the "Immediate Jeopardy” citation.

CMS’ Other Dire Warnings

As Dr. Palmer reported, in addition to CMS' warning in its May 18 letter that no further extensions on the pause on transfers would be considered or awarded again, CMS also noted that although it was extending Federal Medicare and Medicaid (Medi-Cal in California) reimbursements for the remaining current residents at LHH to March 19, 2024, it also asserted that there would be no further extension of Federal reimbursements beyond that date.

Luckily, CMS extended the November 10, 2022, "LHH Settlement Agreement” itself from expiring on November 14, 2023, to March 19, 2024. That will give LHH more time to obtain recertification status under a Medicare or Medicaid provider agreement and allow resumption of new admissions (CMS stopped admissions -effective April 2022) — with the caveat that LHH may be required to resume mandatory discharges as early as September 20, 2023. 

But notably, CMS’ May 18 letter warned LHH again that any further “Immediate Jeopardy” citations may be considered a material breach under Paragraph 3-c of the “Settlement Agreement.”

Dire Looming Threat:  State Take-Over

The May 18 letter seems to say CMS is now imposing even stricter final warnings on LHH than in either the November 2022 "Settlement Agreement” or an earlier warning letter on February 1. It's unclear whether the Health Commission and the Board of Supervisors get the message that this might be LHH's "Last Chance Motel.”

The letter clearly states that “California will submit a plan for resident transfers and placements by July 31, 2023, and that plan will include: a State-led crisis response team, with State-hired temporary management installed at the facility." The May 18 letter doesn't indicate when a State-imposed closure plan might take effect, when a State-hired crisis management team might be installed at LHH, and whether either remedy might happen before September 19. That decision may come down to whether LHH receives any more “I.J.” (Level 4 severity) or “Actual Harm” (Level 3 severity) citations between now and July 31 or between now and September 19.

The CMS letter suggests this is LHH's last chance and will now face ongoing and stricter monitoring. It sounds like LHH's recently adopted “Revised Closure Plan" may be subsumed by a closure plan authored by the state, suggesting CMS means business, that LHH may have to close. 

Left unsaid is whether the state will order LHH into receivership, an option that appears to be a remaining remedy CMS and CDPH have left in their toolkits.

This closure/receivership threat — that CDPH will apparently install a state-hired and state-led temporary management crisis response team at LHH, presumably operating in a dual-management reporting structure. It's another slap to LHH's management team.

LHH Frets: Some Staff Jeopardize Recertification

In addition to Pickens’ observation in his May 14 letter to CMS that some staff continues to demonstrate practices that may jeopardize recertification, even LHH's Quality Improvement Expert (QIE) — HSAG — has documented the same concern about LHH's staff not being fully compliant with regulations.

One keen observer of LHH’s slow efforts at gaining recertification noted:

“Pickens’ letter to CMS confirms our worries that LHH has just not been moving fast enough … I am glad more is being done [to improve care at the bedside]. I am relieved to see the letter from Pickens. It does seems like LHH needs to move faster to not get shut down (since the problem now clearly seems to be within LHH/SFDPH). Maybe this [new programming] will help!”

She's being optimistic. It's unclear whether the new CCBI program will move recertification along any faster since LHH plans to fund the $1 million-plus monthly initiative through at least December 2023.

The QIE's concerns about LHH's staff are worrisome.

Fourth QIE “Monitoring Report”

Two days after Pickens admitted to DHHS that some LHH staff may threaten LHH's recertification. Two days before we learned in CMS' May 18 letter announcing yet another "Immediate Jeopardy" citation, a report surfaced that also acknowledged LHH’s staff continue to threaten LHH's recertification. That report — dated May 10, 2023 — was written for, and submitted to CMS, the very agency that will ultimately determine whether to accept LHH back into the Medicare and Medicaid reimbursement system. CMS is painfully aware of the problems with LHH’s staff not following Federal regulations.

On May 16, SFDPH public records staff released the Quality Improvement Expert’s (QIE) fourth monthly “Monitoring Report,” which is required by the November 2022 “LHH Settlement Agreement" between LHH, CMS, and CDPH. The "Monitoring Reports," due on the 10th day of each month, are designed to report LHH’s progress towards returning to substantial compliance with federal nursing home regulations and standards of caring for patients so it can apply for CMS recertification.

Sadly, the fourth Monitoring Report notes at least five times in four of the 11 different foundational categories of root cause problems — including Resident Quality of Care, Quality Assurance and Performance Improvement, Infection Control and Prevention, and Resident Rights and Freedom From Harm — that LHH’s management team and bedside caregivers “lack critical thinking skills” on how to correct problems at the facility.

Also, sadly, the QIE reported in its fourth report on May 10 — five months after the first RCA report dated December 1 that was submitted to CMS: "… [LHH] staff do not understand the intent of the regulations as it relates to using less restrictive alternatives prior to using restraint devices and that documentation requirements are not clearly understood by the resident care team." The QIE also reported: "LHH must increase a sense of urgency in care plan individualization …  and accountability standards to improve progress [with preparing and following patients’ care plans].”

That the QIE informed CMS that there had been no sense of urgency in getting LHH’s line staff to develop and then follow patients’ care plans should alarm San Franciscans and our Board of Supervisors. That LHH staff don’t uniformly share a “sense of urgency” in returning to substantial compliance is particularly disturbing, partly because there is no discipline dispensed for non-compliant job performance.

In the QIE’s first “Root Cause Analysis” (RCA) report dated December 1, 2022, in the major foundational Root Cause Category #2, Infection Prevention and Control, the Analysis and Findings section stated in part:

“The facility does not have a progressive disciplinary action for non-compliant behaviors. As such, staff have learned that even if they choose not to follow policies, there is a low likelihood of them losing their position or being reprimanded.”

It's shocking that some staff may have learned there are no consequences for not complying with policies around infection prevention and control that CMS is so concerned about.

Also, in the QIE's first RCA report, in the major foundational Root Cause Category #5, Resident Rights and Freedom from Harm, Root Cause 6 involved a lack of strong accountability standards. The QIE asserted: “Organizational accountability does not include progressive disciplinary action for consistent, documented, non-compliant staff behaviors affecting resident rightsand dignity.” 

Wow! No accountability for staff screw-ups? No disciplinary action to weed out staff transgressors? Has that been a problem, all along? Because CMS was informed about this problem seven months ago in December, what’s taking so long to fix the problem?

Again, in the QIE’s first RCA report, in the major foundational Root Cause Category #7, Competent Staff, Training, and Quality of Care, Root Cause 3 involved a lack of accountability for mandatory educational requirements. The consultant noted, "There are no consequences for employees and medical staff not completing mandatory education, resulting in some staff providing care without the tools and knowledge necessary for optimal resident outcomes.”

The QIE recommended LHH develop and implement progressive disciplinary actions for non-compliance regarding mandatory education and training.

Beyond the issue of disciplinary actions for non-compliant staff behaviors, the QIE was concerned in the major foundational Root Cause Category 6, Comprehensive Care Plans and Quality of Care in the first RCA report about the many problems with resident care plans. The QIE identified Root Cause #5, EHR [Electronic Health Record system] not optimized for SNF setting and lack of [Staff] EHR knowledge, saying, "The Epic EHR utilized is not customized for the SNF setting and staff have limited knowledge of full EHR capabilities. This results in increased burden to staff to update and modify care plans, which increases the likelihood that residents have care plans with generic, acute-care–based interventions rather than comprehensive, resident-centered care plans.”

The problems with LHH’s inadequate resident care plans existed even before decertification in April 2022 and remained a continuing problem in May 2022, long after hiring the consultants. Despite their best efforts, the consultants have been unable to fix the “culture” around care planning, to the point the QIE conceded in May — five months after the first RCA report was submitted to CMS — that there is still a “lack of urgency” around adequate care plans.

It’s too bad the QIE didn’t also recommend that LHH develop progressive disciplinary procedures for LHH staff who may believe there are no consequences for not following a resident’s care plan.

Pickens offered a ray of hope in this regard when he wrote to DHHS on May 14, in which he pointedly noted: 

“LHH is committed to accountability. Accordingly, we have initiated a comprehensive investigation into all the circumstances leading to the immediate jeopardy finding. LHH will take appropriate disciplinary action against LHH personnel as warranted by the results of that investigation.”

As any parent knows, one of the hardest lessons their young children learn is that their actions have consequences. LHH's non-compliant staff need to relearn this basic lesson the hard way if necessary.

LHH Waves a White Flag

Unfortunately, Pickens' May 14 letter addressed to officials at both DHHS and CMS who have been monitoring LHH's recertification progress included another damning admission. The "SBAR" exhibit — for Situation – Background – Assessment – Recommendations — on dealing with the May 8 “Immediate Jeopardy” seems to be LHH running a white flag up the flagpole of the two agencies having the discretionary authority on whether to recertify LHH and look favorably on its application to become recertified in the coming months. The SBAR section admitted:

“Despite 12 months of significant investments in root cause analyses, process redesign, staff training and education, and enhanced enforcement of individual accountability, there continue to be instances where some LHH staff are at times unable to consistently and reliably deliver safe, regulatory-compliant, and policy-compliant care at the bedside, as evidenced by: our own internal key performance indicators; on-going serious regulatory survey findings (including a recent immediate jeopardy finding); and CMS QIE observations.

12 months into the journey of process improvement and regulatory compliance, it is clear by multiple measures that LHH cannot be assured of a successful CMS Recertification Survey without a focused level of targeted observation and recommended action in key areas. Specifically, we continue to see the necessary critical assessment, evaluation, communication, and thinking skills in some bedside clinicians and supervisors/managers.”

Given that the QIE has recently stated in its fourth monthly “Monitoring Report” that LHH staff have shown a lack of critical thinking skills, it’s thought there’s a typo in the last sentence above, omitting the words “a lack of” — suggesting they authors had intended to write:

“Specifically, we continue to see a lack of the necessary critical assessment, evaluation, communication, and thinking skills in some bedside clinicians and supervisors/managers.”

Pickens' sent a letter on May 18 to Stacy Sanders, a legal Counsel to Secretary Xavier Becerra at DHHS. Becerra has previously stated that since DHHS is required by law to ensure that patients are cared for safely and with the care they’re supposed to have, DHHS has no choice by law but to say that the safety of patients must come first. DHHS has to make sure everyone is following the rules and regulations.

Suppose you were the regulatory agency that would determine whether to recertify LHH. Would you do so given that by LHH’s admission as late as May 2023 — being now in its third “90-Day Monitoring Survey," and due for its fifth monthly "Monitoring Report” from the QIE on June 10 — LHH is still having problems getting staff to deliver “regulatory-compliant, and policy-compliant care at the bedside” by multiple measures and indicators?

So, if you were Becerra, would you recertify a facility that, as recently as May 14, acknowledged its staff is not consistently and reliably delivering safe, regulatory-compliant, and policy-compliant care to patients?

Ongoing “Immediate Jeopardies”: We Will Lose LHH

After being decertified in April 2022, Laguna Honda Hospital (LHH) was forcefully warned twice — first last November, and again in February — not to get any more “Immediate Jeopardy" citations for substandard patient care violations during official state inspection on-site surveys.

That’s because those “I.J.” citations can be material breach violations of LHH’s “Settlement Agreement," and effectively end its attempts to become recertified. Has this misnamed “God’s Hotel” met its Last-Chance Café?

Ominously, because the first two warnings not to get any more “I.J.’s” apparently weren’t enough, in its May 18 letter, CMS felt it had to warn LHH a third time:

“Thus, to ensure that funding will not be terminated under Paragraph 3 of the Agreement, Laguna Honda must ensure that no immediate jeopardy occurs at its facility for the duration of the Agreement and proposed Amendment.”

By “proposed amendment," CMS means extending the “LHH Settlement Agreement” through March 19, 2024.

LHH was first warned in the November 10, 2022 LHH “Settlement and Systems Improvement Agreement” (hereinafter the “Settlement Agreement”) that among the circumstances that might constitute LHH’s material breach of the Agreement included paragraph 3-c, “CMS determines that Immediate Jeopardy to resident health and safety occurred …."

Then, after entering into the “Settlement Agreement, and after the QIE’s first RCA report was submitted to CMS on December 1, that’s when LHH racked up four “Immediate Jeopardy" citations during its first “90-Day Monitoring Survey” that wrapped up on December 16.

Subsequently, in a February 1, 2023 letter to LHH, CMS warned the hospital for a second time that the hospital must not receive any further “I.J.” citations and must reduce the number of “Actual Harm” citations in the Level 3 severity category. CMS reminded LHH that paragraph 3 of the "Settlement Agreement” provided CMS discretion to terminate the entire Agreement if LHH received any further “I.J.’s ."  (LHH received four "I.J."s and five "Actual Harm” citations in December.)

But along came May 8 with news LHH had again received another “I.J.”

Notably, LHH also received four “I.J.” citations during LHH’s patient sexual abuse scandal in 2019, which set LHH on its path to being decertified in April 2022. It also racked up another 13 “I.J."s deficiencies during a "mock survey" inspection dress rehearsal on June 22 (after decertification) before it went on to get four of the nine "I.J.” official citations six months later in December 2022.

Despite the Florence Nightingale statue standing watch over LHH's main entrance for 86 years as an inspiration to the hospital's employees and its residents, LHH managed to rack up nine "Immediate Jeopardy" deficiency citations during official State survey inspections in the three years between July 12, 2019, and November 28, 2022. 

Of the combined 22 “I.J."s, 13 of them were at the highest scope of "widespread,” rated with the letter “L” as having been pervasive in the facility. The nomenclature assesses the combined severity and scope together, abbreviated as “S/S.”

A reasonable person might have hoped the Florence Nightingale statue might have warded off further staff “I.J." negligence. But that didn't happen.

LHH has been mum about whether it has developed progressive disciplinary policies and procedures to deter documented non-compliant staff behaviors contributing to the facility receiving “I.J.” citations. Another separate Westside Observer public records request two weeks ago on this issue still needs a response.

Will LHH’s third warning not to get any further “I.J.'s" be the charm? As in, three strikes, you’re out.

After all, LHH has been holding a losing hand and may be running out the clock.

The San Francisco Gray Panthers advocacy group noted:  "At the rate things are going, SFDPH/LHH may not sufficiently improve in time to avoid closure procedures and discharges for every resident beginning September 19, 2023.”

And as our colleague Dr. Terry Palmer testified to San Francisco’s Health Commission on June 6, “If immediate jeopardy citations continue, we will lose Laguna Honda Hospital.”

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 monette-shaw@westsideobserver.com.

June 15, 2023

Those Who Forget History Are Condemned to Repeat It’ Is Apropos
Laguna Honda's Recurring Lack of Succession Planning May Well Repeat.

Part 2: Qualitative Analysis of LHH’s “Root Cause” Problems
Pre-Mortem of a Hospital: First Anniversary

Help Save 120 Beds at Laguna Honda Hospital

Please Sign My Petition

Given our severe shortage of Skilled Nursing beds, DPH claimed it would do “everything it can” to save LHH’s 120 beds. But it hasn’t submitted a written waiver request yet!

Please share this petition widely with your contacts, I’d really appreciate your help.

by Patrick Monette-Shaw

•••••••••• May 15, 2023 ••••••••••

As a reminder, April 14, 2023, was the first anniversary of LHH’s decertification. LHH claims it will apply for CMS recertification potentially by September 2023. That’s extremely doubtful.

Despite three consulting firms now having been on-site at LHH for nearly a full year helping LHH correct its deficiencies, the status of the hospital still needs to be determined. Risks for obtaining its recertification remain — not fully abated.

As I indicated in my March 31 article, Doctors Derek Kerr and Maria Rivero published a terrific article on February 23 in the Westside Observer summarizing a portion of the qualitative root causes that led to LHH’s decertification that appeared in the first “Root Cause Analysis" (RCA) report. San Francisco's Department of Public Health succeeded in keeping it secret for nine weeks after it was submitted to CMS on December 1. The first RCA report was released on February 8, along with the second RCA report dated January 31, which was also submitted to CMS. Their article is a must-read for anyone interested in the fate of LHH and its dwindling resident population. As of April 22, 2023, LHH's census dropped to just 530 residents, compared to 710 residents on October 14, 2021.

Kerr and Rivero's February article covered the first 48-page RCA Report prepared by Health Services Advisory Group (HAG). This consultant has been paid $17.3 million to date to assist LHH in obtaining recertification from CMS.

Their February article explored five of the first eight overarching problem categories in the first RCA report exploring the causal root factors leading to LHH’s decertification on April 14, 2022. Their article didn’t report on Categories 4, 5, and 8.

A caption to an illustration in their article asserted that the first RCA gave readers a complete picture of LHH's problems.

In my own article on March 31, I focused on the massive mound of quantitative data of the past three-year history of LHH’s citations for deficiencies uncovered during survey inspections by the California Department of Public Health (CDPH) on behalf of CMS.

I take slight issue with saying the two RCA reports gave us a complete picture of LHH's problems. Even though LHH’s consultants have now released three monthly follow-up Monitoring Reports assessing LHH’s progress, I still believe we may not yet know the complete picture of what transpired at LHH. In fact, because LHH received substantial additional substandard care deficiencies following its second 90-Day Monitoring Survey report that ended in mid-March, more details of the complete picture are still dripping out, like a leaky faucet. The QIE’s fourth monthly “Monitoring Report,” and the third RCA report with additional “milestone" corrective actions haven’t been released to the public yet. The third 90-Day Monitoring Survey is scheduled to start in late May or June.

It was shocking to learn of the 63 detailed root causes that were uncovered and that will require 451 corrective actions to resolve 138 citations LHH has received. LHH had violated 78 separate patient care-related “F-Tags” — many multiple times each — plus an additional 20 “K-Tag” violations of facility “physical plant” deficiencies across the three years and four months since the sexual abuse of patients scandal at LHH surfaced in 2019. The 98 various types of “Tag” deficiencies led to the 138 citations documented in State inspection survey reports between July 2019 and November 2022.

This second article will review more qualitative narratives culled from the two RCA reports released so far. LHH’s residents deserve to have this qualitative information preserved for historical reasons, along with the quantitative analysis from my first article in this series. And preserved. LHH’s residents deserve to be cared for safely without repeats of the many problems described below.

More on LHH’s Institutional Comorbidities
 
A second 90-Day Monitoring Survey that began on March 13 is planned to take a week and conclude on March 17, 2023, it will be followed by a third RCA report and a third additional “Action Plan” that hasn’t been released yet. It’s overdue by weeks.

In addition, as of May 12, there’s been a delay releasing the third part of inspection Form 2567’s from the second Monitoring Survey, so we don’t know all of the problems uncovered yet during that second survey. Nor have we seen how many additional Action Plan “milestones” will be required in addition to the initial 451 corrective actions now underway. So, I’m very hesitant to conclude that we have seen a complete picture of LHH’s problems that were decades-long in the making.

The first RCA report asserted, "The QIE identified and defined problems, investigated and collected supporting information specific to 21 survey citations, and analyzed and identified the root cause of each identified problem. The RCA specifically addressed deficiencies identified during surveys between October 14, 2021, and April 13, 2022, and all deficiencies that were discovered and disclosed to LHH by the California Department of Public Health (CDPH), CMS, or a contract surveyor after those surveys.”

One problem is that the QIE never identified the sources of documents it may have been provided and reviewed after the April 13, 2022, CDPH Form 2567 inspection survey report. So, the public has no idea of what other deficiencies have been discovered at LHH. They may have been disclosed to LHH but haven't been disclosed to members of the public.

HSAG as the QIE explained, "The report is organized by the eight foundational root cause categories that represent the systems-level areas needing significant improvement for LHH to sustain long-term compliance.” The first eight categories were:

1. Quality Assurance & Performance Improvement (QAPI)
2. Infection Prevention and Control
3. Behavioral Health and Substance Abuse
4. Medication Management and Administration
5. Resident Rights and Freedom from Harm
6. Comprehensive Care Plans and Quality of Care
7. Competent Staff, Training, and Quality of Care
8. Emergency Preparedness Program

Let’s start by reviewing the other three main categories Kerr and Rivero hadn’t discussed.

The First “Root Cause Analysis” Report

The first “Root Cause Analysis” report identified three additional main categories of problems, including:

4. Medication Management and Administration

The consultants uncovered four separate “root causes” in this category alone.

The “problem statement" for this category issued a damning assessment: "LHH medication management and administration policies are inconsistently applied, resulting in resident medication safety issues and non-compliance with Federal regulations.”

The report asserted: “LHH licensed nursing staff are not compliant with medication management policies and procedures, such as managing the safe storage of medications, disposing of medications appropriately, checking expiration dates on medications, and securing medication carts. This results in non-compliance with safe storage and disposal of drugs and biologicals.”

The high-priced consultants claimed, "LHH pharmacy and nursing leadership will collaborate to develop a program that regularly validates effective medication management that includes safe storage, accurate labeling, appropriate medication disposal, and checking expiration dates.” This collaboration should have been standard operating procedure all along. How it became a major issue is worrisome but a sign of just how far out of regulatory compliance LHH's lax nursing staff had become.

5. Resident Rights and Freedom from Harm

The consultants uncovered another eight “root causes” in this category alone.

The “problem statement” for this category revealed other concerning issues: "LHH daily operations have several characteristics that limit a holistic focus on residents’ well-being … [including] limited resident-centered care practices … poorly implemented interventions after abuse allegations … lack of consistent leadership, and [lack of] management oversight to ensure residents rights are consistently met.”

What a mouthful!

Among the eight root causes, one of the worst, from my perspective, is Root Cause 5: “LHH staff have not fully embraced resident-centered, evidence-based concepts, such as consistent nursing assignment, hourly rounding, or no-pass zones, resulting in a lack of awareness of resident needs, a clean and safe homelike environment, and prolonged response to call lights. This increases the likelihood of a decrease in quality of life and a dignified existence for residents.”

Just as troubling is Root Cause 6: Lack of strong accountability standards. The consultant’s asserted: “Organizational accountability does not include progressive disciplinary action for consistent, documented, non-compliant staff behaviors affecting resident rights and dignity.” Wow! No accountability for staff screw-ups? No disciplinary action to weed out staff transgressors? Has that been a problem all along?

Another shocker was Root Case #8: Lack of a formalized restorative nursing program. The consultant revealed: “LHH does not have a formalized restorative nursing program with defined ownership. The current process is not designed to maintain the functional ability of residents, resulting in inconsistent assessments for mobility and care planning and poor implementation of specific interventions. This increases the likelihood that residents could be at increased risk for harm due to declines in range of motion, mobility, and quality of life.”

As a reminder, back in 1998, the US Department of Justice launched an investigation into LHH's failures to prevent its patient's further functional decline by not providing adequate physical therapy, occupational therapy, and speech-language pathology "restorative” therapeutic services. LHH had developed two Restorative Care program components, which LHH’s current administration had allowed to slip into decline (again). It's a wonder the US DoJ hasn't come knocking on LHH's door again, although it remains a concern of CMS under Xavier Becerra's leadership at the US Department of Health and Human Services (DHHS). Perhaps LHH’s Jennifer Carton-Wade — initially an Occupational Therapist who climbed through the ranks to become a current “Administrative Director” in LHH’s “C-Suite” — can explain (but hasn’t to date) why she allowed LHH’s Restorative Care Program to go missing in action again in 2014 under her “leadership” in LHH’s Rehabilitation Services Therapy department.

8. Emergency Preparedness Program (EPP)

The last category in the first “Root Cause Analysis” report prepared by the consultants included six more “root causes” in this category.

The consultant’s problem statement indicated, "LHH’s EPP does not have elements in place, such as readily available emergency information, resulting in an ineffective program that lacks standardization across the facility. LHH also has gaps in regular training and exercises, contributing to an EPP that is out of compliance with Federal emergency preparedness requirements.”

Shockingly, Root Case #6 in this category concluded: “Residents and resident representatives are unaware of their responsibilities as outlined in the emergency plan, which is not provided to them at the time of admission, nor are they included in EPP exercises, resulting in residents and visitors not being prepared during an emergency. This increases the likelihood of harm.”

Excluding residents from emergency preparation drills also seems to run counter to LHH's decades-long claim that "residents come first.”

The additional three problem categories discussed above are just as alarming and just as damning!

As Kerr and Rivero had reported, the sixth category involving “Comprehensive Care Plans and Quality of Care" asserted: “Resident care plans are not individualized and are not being used effectively as an accessible tool for the [Interdisciplinary Care Teams] to plan and document care and accomplish individualized care goals … and overall quality of life for residents. This results in LHH not delivering care that meets professional standards of quality. This leads to poor resident outcomes in areas such as accident hazards, respiratory care, pain management, dietary needs, and range of motion.”

Becerra, DHHS, CMS, and CDPH are rightly concerned about the substandard quality of care provided at LHH. DHHS and CMS arerequired to make sure that LHH’s patients are cared for safelyand with the care that they're supposed to have. They have no choice by law and Federal regulations but to say the safety of LHH’s patients must come first. That’s why they’re trying to get LHH back into substantial compliance with CMS’ regulations. That’s what CMS is supposed to do!

The Second “Root Cause Analysis” Report

Two months after the first Root Case Analysis report, dated December 1, 2022, was submitted to CMS, LHH's QIE wrote a second Root Cause Analysis report, dated January 31, based on the first “90-Day Monitoring Survey” that was conducted and completed at LHH in December. The second RCA report uncovered three additional foundational root cause categoriesneeding significant improvement at LHH, presented below.

9. Fire and Life Safety

The consultant’s problem statement indicated, "LHH fails to fully follow the Fire and Life Safety (FLS) code throughout the facility, which could lead to an unsafe environment for residents and staff. … LHH staff fail to recognize and report out-of-compliance safety issues. This was evidenced in the [first 90-Day] monitoring survey with 21 K-tag findings, including, but not limited to, means of egress, fire alarm control functions, sprinkler systems, elevators, and electrical equipment.”

The report listed by name and number only 20 of the 21 K-Tag citations (creatively mischaracterized as mere “findings”),
suggesting one of the 20 specific Tag numbers may have been cited twice for separate incidents.

The consultants further noted a Root Cause #3 in this category. Lack of code compliance knowledge: "The LHH Facilities Department lacks thorough regulatory and code compliance knowledge, resulting in a limited ability to proactively identify potential life safety issues. This increases the risk that important issues are not fixed in a timely manner.” Isn’t knowledge of code compliance regulations a prerequisite for jobs in the Facility Services Department?

Root Cause #4 in this category, Ineffective preventative maintenance program, reported, “LHH does not have a formal preventative maintenance program, resulting in a lack of proactive, consistent maintenance on equipment throughout the facility. This increases the risk that equipment may break or be out of service.”

For instance, elevators have often been out of service for long periods, even though the building is just 13 years old.

Another grave concern. How can a facility of this size and importance not have a formal schedule for, and actively monitored, preventative maintenance programs? That's a sure sign of gross mismanagement. Does that happen at SFGH, affecting acute-care hospital patients, too?

10. Resident Quality of Care

As if the three categories of Infection Prevention and Control, Resident Rights and Freedom from Harm, and Comprehensive Care Plans and Quality of Care uncovered in the first RCA report weren't alarming enough, along comes the new category of Resident Quality of Care that was uncovered during the second RCA report.

The consultant's problem statement for this category reported, "LHH does not adequately maintain programs with monitoring, training, and feedback mechanisms to ensure consistent resident quality of care. This was evidenced in the [first 90-Day] monitoring survey that identified that LHH lacked an effective wound management program that meets … the nutritional needs of residents and ensures proper positioning of residents … which could result in actual harm. In addition, the survey identified inconsistent practices for residents in need of tube feeding and pain management practices.”

In fact, the consultant reported State surveyors had cited LHH for 14 F-Tag violations in the Resident Quality of Care category alone during the first 90-Day Monitoring Survey, including three of five “G” Severity and Scope violations during the entire survey. “G” citations represent isolated “Actual Harm” violations that don’t rise to the level of “Immediate Jeopardy.”

The consultant shoehorned the 14 violations into four Root Causes for this category, including Root Cause #1, Lack of a functioning wound care program,” noting “LHH leadership did not ensure the wound care program continued to function appropriately after the retirement of a wound care nurse, resulting in a lack of individualized interventions being put into place. This worsened resident wounds and increased the risk of actual harm to the resident.”

The consultant’s recommendation was that “LHH … develop and implement an effective wound care program” and asserted that LHH, through its QAPI (Quality Assessment and Performance Improvement) program’s governing body, “will also create a process to ensure the wound care program can continue during staff turnover.”

Duh! Isn’t succession planning to continue programs when an existing staff member departs a routine practice at LHH? The answer may be “No,” because when the prior leaders of LHH’s separate “Restorative Care Nursing" program had staff turnover, that program also bit the dust due to poor succession planning: same problem, different program.

Worse, the consultant reported Root Cause #4, Inconsistent resident pain assessment documentation found that “Documentation of pain management is not consistently present in the EHR [Electronic Health Record system named “Epic”]. This results in a lack of consistent evidence of resident pain assessments before and after prn [medication not actually scheduled, and taken “as needed”] pain medication administration and before routine pain medication. This increases the risk that resident pain is not properly managed through individualized care plans.”

The failures of many modules in the Epic database cited repeatedly in the first two RCA reports have contributed heavily to many other deficiencies that caused LHH’s decertification. Epic was not initially designed for managing electronic medical records of skilled nursing facility residents. It was purchased for SFGH acute care patients and shoehorned into tracking Laguna Honda patients’ medical records.

After all, in Category 6, Comprehensive Care Plans and Quality of Care in the first RCA report, the consultants identified Root Cause #5, EHR not optimized for SNF setting and a lack of [Staff] EHR knowledge: "The Epic EHR utilized is not customized for the SNF setting and staff have limited knowledge of full EHR capabilities. This results in increased burden to staff to update and modify care plans, which increases the likelihood that residents have care plans with generic, acute-care–based interventions rather than comprehensive, resident-centered care plans.”

No wonder the failures of LHH’s care plans have remained a continuing problem and of continuing concern to CMS and CDPH!

It’s obvious the Epic database SFDPH rolled out in August 2019, including at LHH, has contributed significantly to many of the deficiencies and citations that led to LHH's decertification in April of 2022, three years after Epic was purchased and implemented. What a profound “original sin”!

11. Food and Nutrition Services

The consultant’s problem statement for this category said “The LHH Food and Nutrition Services (FNS) program lacks consistency in documenting residents’ nutritional intake in the EHR[the Electronic Health Record database “Epic”], resulting in failure to properly assess intake adequacy and to follow through with treatment plans. In addition, LHH’s menu management system is not routinely monitored to ensure residents receive the correct meals, as prescribed. Furthermore, LHH lacks a systemic approach to monitor weight variance and wound status and to assess intervention effectiveness. This places residents at risk for not having their nutritional needs met and other adverse outcomes.”

The admission LHH’s menu management system and staff weren’t ensuring that residents received their correct meals is alarming. Isn’t this basic for a skilled nursing facility seeking recertification?

The consultant squeezed the three F-Tag violations into four root causes for this category, including Root Cause #1 Menu management system not routinely verified, stating “LHH’s FNS [the Food and Nutrition Services Department] does not have a system in place to routinely update and verify information in its menu management system, resulting in incorrect nutrient analysis of menus served and missing food items. This increases the risk that residents do not receive meals based on their prescribed dietary order to promote optimal health and safety.”

Of the three F-Tag violations in this category, one included F692, Nutrition/Hydration Status Maintenance, assessed as a “G” citation representing isolated “Actual Harm” violations that don’t rise to the level of “Immediate Jeopardy.”

The consultant recommended that LHH identify an on-site menu management system "superuser" to manage the menu management system, conduct routine quality assurance audits, and create a process to include reviews of menu item accuracy for quality assurance.

According to former LHH staff, the FNS department had developed processes even before 2010 to test meal-tray ticket items to ensure the proper diet textures, diabetic diets, and other dietary preferences were being correctly delivered to specific patients. Unfortunately, their disguised processes to test menu tray accuracy was discovered, rendering it somewhat useless when not challenging to maintain their quality assurance process checks and balances.

As for Root Cause #3, Lack of EHR knowledge and inconsistent data-entry practices; in this category, the consultants reported "LHH’s Epic “EHR system is not fully configured for the SNF setting and staff lack EHR knowledge, creating challenges in completing accurate documentation. This results in incomplete nursing documentation (with missing data entry on oral diet, snack, and supplement intake), decreasing clinicians’ ability to conduct accurate assessments due to the lack of essential resident information.”

The consultants were referring, in part, to the failure of Nursing staff to document estimates of food and nutrition intake in patients’ medical records to assist nutritionists and registered dietitians' collaboration during Interdisciplinary (Care) Team meetings (IDT). The consultants reported, "The LHH staff reported that the Food and Nutrition Services (FNS) program lacked consistency in documenting residents’ nutritional intake in the electronic health record (EHR).” That appears to be misplaced blame.

Dietitian’s are trained in medical nutrition therapies, but Nursing staff frequently assist as patients eat during meals. Shouldn't Certified Nursing Assistants (CNAs) or other Nursing aide staff assisting patients during meals be documenting this in the medical records?

The dietary intake problems in Category 11, Food and Nutrition Services, are related more to the Nursing Department's failures than the FSN Department's, but the consultants chose not to wade into additional criticisms of the Nursing staff. That said, there are admittedly problems with the third-party food menu management software LHH contracts from the CBORD corporation. The consultant claimed, "LHH staff reported that the Food and Nutrition Services (FNS) program lacked consistency in documenting residents’ nutritional intake in the electronic health record (EHR).” But the EHR documentation should have been performed by Nursing, not Food and Nutrition staff.

Hire Competent Staff Having Previous Relevant Experience

As Kerr and Rivero concluded their February article:

“The root cause of this debacle is the colonization of Laguna Honda Hospital by SF General [Hospital] via the DPH ‘Flow Project.’ Economics played a role. But hubris drove the deformation of LHH. The ‘best and the brightest’ from DPH and SFGH devalued long-term care for the elderly.

"Now, outside experts affirm that even LHH’s newly installed ‘leaders’ don’t know what they’re doing. It’s shameful that federal and state regulators had to force the DPH to redress the incompetence it rammed into LHH.”

That’s still true. Now 12 months after LHH was decertified in April 2022, it’s still unclear whether these leaders know what they are doing, despite hiring so-called outside “expert” consultants.

We can only hope that when LHH finally hires and “on-boards” a licensed Nursing Home Administrator as its CEO — which it hasn't had for 20 years since its last licensed NHA, Larry Funk, was forced out in 2004 — that history won’t repeat itself by not actively engaging in succession planning, and hiring and retaining LHH staff who are actually knowledgeable about — and have previous relevant experience with — substantial compliance with Federal nursing home regulations.  

Otherwise, LHH’s current debacle may well repeat itself since, as things stand, LHH’s future has a poor prognosis.

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 monette-shaw@westsideobserver.com.

May 2023

San Franciscans Need to Raise Their Objections — Now

Laguna Honda Hospital’s Revised Closure Plan —Just Released

We Need to Demand: No Complete Closure of Laguna Honda

No Bed Cuts and Admissions Must Resume

Help Save 120 Beds at Laguna Honda Hospital

Please Sign My Petition

Given our severe shortage of Skilled Nursing beds, DPH claimed it would do “everything it can” to save LHH’s 120 beds. But it hasn’t submitted a written waiver request yet!

Please share this petition widely with your contacts, I’d really appreciate your help.

We Also Need to Hold City Managers and Employees Responsible for LHH's Mess Accountable, Up to and Including Termination

by Patrick Monette-Shaw

•••••••••• May 2023 ••••••••••

On Friday, April 21, news reared its ugly head that Laguna Honda Hospital (LHH) is still expected to accomplish — and is moving closer toward — full closure.

April 14, 2023 was the one-year anniversary of LHH’s decertification and the halt of any new admissions. San Francisco residents seeking SNF level of care at LHH have been dumped out-of-county ever since.

That’s because the “LHH Revised Closure Plan” obtained last Friday through a public records request placed by the Westside Observer states the Centers for Medicare and Medicaid Services (CMS) and the California Department of Public Health (CDPH) expects LHH must discharge its remaining 537 residents as of April 14 before November 13, the same date all federal Medicare reimbursement to the hospital is scheduled to cease.

The closure plan: LHH's full "Anticipated Closure Date" is November 13, 2023. No if’s, and’s, or but’s.

The “Revised Closure” plan is available online. The meat of the 56-page plan is between pages 1 and 27, with most of the key information on pages 1 through 4.

The Backstory

If CMS and CDPH force LHH to close completely, we will lose seven times more desperately needed skilled nursing beds than the 120 beds a recent Change.org petition had initially set out to save. Now we’re back to needing to save all 769 beds at LHH!

LHH mostly serves low-income, medically indigent patients, who will likely face discharges, exile, and displacement to out-of-county facilities. away from their families, friends, and support networks. LHH is currently licensed for 769 patient beds, which will vanish if the facility is forced to close completely.

Last November, CMS required LHH to submit a revised “Closure and Patient Transfer and Relocation Plan,” because LHH’s initial Closure Plan in May 2022 had been a poorly thought-out disaster, and 12 of 56 patients discharged from LHH last summer died within two months of their mandatory transfers. We can’t let that happen again!

LHH submitted its Revised Closure plan last December 21, and it has taken four months of back-and-forth negation and more required changes to the closure plan, before CMD/CDPH approved it on April 18. The Westside Observer finally obtained it under a public records request last Friday.

Discharges of all patients were supposed to have been completed by September 13, 2022, but were paused on July 22 due to 12 patient deaths post-discharge. Further transfers were extended only until February 2, and extended again to May 19. The discharges have been expected to resume as early as May 20, 2023, if CMS/CDPH don't extend the pause of mandatory discharges even further. Unfortunately, that doesn’t appear to be under active consideration. Hopefully, the pause might be extended again, but it’s extremely doubtful.

As one observer, a former geriatrician MD at LHH. notes: “The evidence of what a disaster this will be for hundreds of residents and their families is within the[revised closure] plan itself.”

Between October 14, 2021, and April 14, 2023, LHH's patient census has dropped by 157, from 710 residents to now just 537. The revised closure plan shows that of LHH’s 537 current remaining residents, 34 patients have advanced dementia and are at high risk of wandering and elopement who are on a locked/secured memory unit; 142 require memory care for moderate-to advanced-cognitive deficits; 85 are monolingual patients needing SNF level of care; 34 patients need shorter-term skilled nursing rehabilitation; 44 are HIV/AIDS patients; 43 are receiving palliative care or hospice care; and 105 residents have complex medical problems needing total care and high levels of support. All of them are at high risk of eviction.

For those interested a table showing the net attrition by types of patient care in the one-year period between the initial closure plan in May 2022 and the new revised closure plan is available online, here.

The closure plan reports that as of December 21, 2022, there were only 1,228 skilled nursing beds in San Francisco (which has worsened with the closure of "The Marina on the Green” SNF, losing 32 beds two weeks ago). Of those 1,228 SNF beds, only one — yes, 1 — bed is available for LHH patients. San Francisco only has 15 beds available in Residential Care Facilities for the Elderly; 30 beds available in Residential Supportive Housing; 9 beds available in Residential Substance Abuse Treatment facilities; zero available beds in SNFs that provide mental health services; and 28 available beds in board-and-care homes, respite facilities, and shelters (which are — obviously — unsafe for patients needing medical care).

That totals approximately 98 beds available in various types of facilities in San Francisco — including the single skilled nursing facility bed available. Unfortunately, the Closure Plan doesn’t wade into describing whether any of the 98 beds in San Francisco facilities accept patients with Medi-Cal as their insurance payor source. 99.1% (532) of LHH’s patients' residents are on Medi-Cal. Just one current resident is in a Medicare-managed Care HMO plan.

There are virtually no places in-county for LHH's current 537 residents. They’ll likely wind up in out-of-county facilities.

As one person who left a comment on this Change.org petition noted, “Current and potential residents shouldn't be penalized due to the incompetence of overcompensated bureaucrats and/or their hired guns.” She was referring to LHH managers brought in from San Francisco General Hospital and SFDPH who had no experience with skilled nursing facilities and were running LHH as if it were an acute-care hospital, which by LHH’s own admission led to LHH’s decertification one year ago on April 14, 2022.

Key Highlights in Revised Closure Plan

Some key takeaways in the "LHH Revised Closure Plan” LHH has been “negotiating” with CMS/CDPH for the past four months include:

• There is no mention of whether CMS and CDPH have decided yet whether to further extend the pause on transfers scheduled to end on May 19 and perhaps resume on May 20. We won’t know until we’re told, but it’s something we San Franciscans should continue to advocate against with D-7 Supervisor Myrna Melgar and the full Board of Supervisors during their May 9 Committee of the Whole Hearing at the full Board, that will probably be scheduled at 3:00 p.m. and may take public comment both in-person and remotely.
• Footnote #6 on page 3 seems to suggest that if LHH gains its re-certification and admissions of new patients might resume, patients previously discharged to other skilled nursing facilities (mostly out-of-county) since last summer “could expect to return,” and perhaps be re-admitted from out-of-county facilities. That “could" remains a big "if.”
• We'll see if re-admit candidates get moved to the top of any waiting lists for new admissions or empty beds. That’s why LHH’s planned and potentially required 120-bed cut issue needs to be resolved concurrently. It is a big deal!
• Page 4 states “Laguna Honda may, in its discretion, discharge patients who no longer meet the requirements for SNF level of care, as well as patients who present a danger to other residents and the institution, are unable to have their needs met at LHH, and require placement in a different setting outside of Laguna Honda.”
• This appears to be a CDPH clarification finally adding some clarity about so-called CMS Phase 3 regulations around behavioral health patients being potentially inappropriately placed at LHH where they don’t receive the most appropriate level of care and treatment services they deserve to receive, and retention long-term of patients once they no longer have skilled nursing level-of-care needs at LHH.
• Page 5 of the Revised Closure Plan specifically states: “As the Closure Plan is implemented, Laguna Honda, in conjunction with DHCS, will provide a daily update to CMS and CDPH on the progress in transferring patients, including where they are being transferred until all patients are transferred.”
• Since the Plan doesn’t specifically state this, if the Closure Plan does go into effect on May 19, the pause on transfers is not extended, and mandatory discharges resume on May 20, we will need to advocate strongly with Supervisor Melgar and the Board of Supervisors to require that SFDPH and LHH resume posting weekly progress reports in the same format they had used last summer on a public website, at minimum, so we don’t have to place public records requests each week to track the progress of discharges.
• There may be a potential glimmer of hope that the current pause on discharges and transfers might be extended beyond May 19. Pages 32–33 states: “Laguna Honda plans to transfer or discharge all patients by the new anticipated closure date of November 13, 2023 (unless CMS agrees to pause transfers and involuntary discharges initiated pursuant to the revised Closure Plan or Laguna Honda is recertified in either the Medicare or Medicaid programs).”
• That may be another big “if,” since LHH is way behind even beginning to apply for re-certification, and is still struggling to demonstrate to CMS and CDPH that LHH is making significant progress toward substantial compliance with CMS' regulations for skilled nursing facilities.

How You Can Help

First, sign the Change.org petition. It would help immensely to document to the Board of Supervisors, the Health Commission, LHH, and CMS and CDPH that there is strong community resolve to preserve our beloved skilled nursing facility and rehabilitation center. Please share the petition widely with your friends, families, co-workers, and social media contacts to help garner more signatures in a public display of unity. The Change.org petition is available at https://chng.it/wzzKhRKHxv .

Signing on could be the most important thing you could do today!

As well, San Francisco’s Gray Panthers organization has declared that "we must continue the community outcry to every agency involved. San Franciscans, present and future, must not suffer and die due to lack of services at Laguna Honda."

Local officials, State officials and Federal government officials all need to hear from San Franciscans that Laguna Honda must be saved with all beds intact, and we need admissions to restart. You can follow the Gray Panther’s “Call to Action” here to obtain advice on talking points and provide testimony to the Board of Supervisors.

We must all help to protect the City’s most vulnerable residents at Laguna Honda!

Monette-Shaw is a columnist for San Francisco’s Westside Observer, and a member of the California First Amendment Coalition (FAC) and the ACLU. He operates stopLHHdownsize.com. Contact him at monette-shaw@westsideobserver.com.

May 2023

April 14, 2023 is the first anniversary of LHH's decertification.

A Secondary Analysis of LHH’s “Root Cause” Problems
Pre-Mortem of a Hospital: One-Year Anniversary

Root Cause Factors Refute DPH Claims Minimizing LHH’s Violations

Help Save 120 Beds at Laguna Honda Hospital

Please Sign My Petition

Given our severe shortage of Skilled Nursing beds, DPH claimed it would do “everything it can” to save LHH’s 120 beds. But it hasn’t submitted a written waiver request yet!

Please share this petition widely with your contacts, I’d really appreciate your help.

by Patrick Monette-Shaw

•••••••••• April 10, 2023 ••••••••••

It’s taken two months to wade through reading, digesting, and reflecting on the two root causes analysis (RCA) reports Laguna Honda Hospital (LHH) commissioned to uncover the underlying factors that led to LHH's decertification from the Medicare Program, along with other documents released on February 8. Background material for this article totals 669 pages, hence this in-depth article.

[Note: I ask for readers’ indulgence with this necessarily long article meant to help preserve the historical record of LHH’s mismanagement.]

LHH's residents deserve to have this history told. And read. And preserved. They deserve to be cared for safely.

It was shocking to learn of the 63 detailed root causes uncovered. These causes now require 454 corrective actions to resolve 138 citations LHH has received. LHH violated 78 separate patient care-related “F-Tags” — many multiple times each — plus an additional 20 “K-Tag” violations of facility “physical plant” deficiencies across the three years and four months since the sexual abuse of patients scandal at LHH surfaced in 2019. The 98 various types of "Tag" deficiencies led to those 138 citations.

The sheer volume of the 138 citations involving the 78 F-Tag violations was even more shocking to the cadre of dedicated current employees and alums who served at LHH over the years. They are mostly not responsible for the current sad situation at LHH and will suffer from the negative publicity. They are people who feel proud of their work providing LHH’s residents with high levels of care.

The alums don't have to be present at LHH today to surmise the origins of these citations. Most remain shocked because citations had never been so severe, with so many basic patient care regulations violations.

When interloping managers from San Francisco General Hospital (SFGH) and the San Francisco Health Network (SFHN) began running LHH in the past three years like an acute care hospital instead of a skilled nursing facility, the citations mushroomed. The inept managers are principally responsible for the current mess at LHH, not LHH's caring and dedicated staff.

Even more shocking are the bald attempts by San Francisco City officials, including the Board of Supervisors, who have tried desperately to diminish the scope and severity of the 138 deficiencies and citations, and the causal factors that led to them.

To dispel attempts to diminish the severity of LHH's patient care violations falsely, consider a few numbers.

One-hundred and thirty-eight. One-hundred and twenty-three. Two-hundred and sixty-one.

Those may not sound like huge numbers, but 138 is the shocking number of actual substandard patient care violations plus facility physical plant citations LHH has racked up as a result of State survey inspectors during the three-year, four-month period following the patient sexual abuse scandal that first rocked the hospital in July 2019. That's a lot of violations over a short period.

Add in another 123 substandard care violations uncovered during an unofficial inspection conducted by LHH’s in-house consultant, Health Management Associates (HMA), during LHH’s first “mock survey” done in June 2022 to prepare LHH for an official recertification survey by the California Department of Public Health (CDPH). There was no explanation why a planned second "Mock Survey" was never held.

LHH tried to minimize the 123 “Mock Survey" findings by claiming there were only 101 unduplicated F-Tag violations, creatively excluding 22 repeated F-Tags.

That totals 261 patient care and facility violations of Federal regulations, suggesting severe problems with regulatory compliance provided to LHH's vulnerable residents. At every opportunity LHH, the Board of Supervisors, and City officials have minimized the severity and scope of the violations.

But there's no escaping that 261 problems — requiring up to 454 corrective actions identified as necessary — can't simply be brushed off as outliers or “minimal,” as the “minimizers” have asserted. The problems were primarily due to inept management brought into LHH, who had no experience whatsoever managing a skilled nursing facility.

It isn't about LHH's ability to walk and chew gum at the same time, as Supervisor Myrna Melgar cavalierly asserted, along with her pal, Supervisor Hillary Ronen.

LHH has been in the throes of potential closure, for now, a full year following its decertification on April 14, 2022, as a participating provider in the Federal government's Centers for Medicare and Medicaid (known as Medi-Cal in California) Services (CMS) participation program for skilled nursing facilities (SNF’s).

To receive reimbursement from CMS, SNF's must substantially comply with approximately 211 "F-Tags" required by various Federal regulations designed to protect nursing home residents and other regulations. LHH was found to have extensively violated those regulations during the past three years.

It wasn't always this way. LHH was typically in substantial compliance with CMS regulations and routinely passed State inspections with few, if any, regulatory violations. What is new is the recent massive mismanagement of LHH.

When a trove of records was released belatedly on February 8, we began learning the severity and scope of just how severe LHH's violations have been. The documents read like a pre-mortem of a hospital's potential death spiral.

Doctors Derek Kerr and Maria Rivero published a terrific article on February 23 in the Westside Observer summarizing a portion of the root causes that led to LHH’s decertification in a report the Department of Public Health had kept secret for nine weeks. Their article is a must-read for anyone interested in the fate of LHH and its dwindling resident population.

Kerr and Rivero have been an investigative whistleblower and watchdog team for the Observer for approaching 20 years. [Disclosure: When Dr. Rivero served as LHH’s Medical Director, she extended my job offer when I was hired at LHH in 1999. A decade later, I helped proofread and format their seminal "Critical Analysis of the Ja Report” in 2009 about a behavioral health program proposed for LHH.]

LHH’s Institutional Comorbidities

Kerr’s and Rivero’s article in February covered the initial 48-page Root Cause Analysis (RCA) Report prepared by Health Services Advisory Group (HAG). This consultant has been paid $17.3 million to date to assist LHH in obtaining recertification from CMS. That report was released on February 8 following drawn-out public records requests to obtain it.

I only take slight issue with an editor’s caption to an illustration accompanying their article that suggests the initial RCA report dated December 1, 2022 finally gives us a complete picture of LHH's problems and the path to recovery. A complete picture is premature, given that there was a second 36-page RCA report describing LHH’s first “90-Day Monitoring Survey” dated January 31, 2023, and a 49-page “Action Plan” report listing 454 corrective actions needed to fix LHH’s mismanagement.

A second 90-Day Monitoring Survey that began on March 13 planned to take a week, but that was concluded on March 17. It will be followed by a third RCA report and a potential additional “Action Plan.” I’m hesitant to conclude we’ve seen a complete picture of LHH’s problems decades-long in the making.

Just as individual patients often have multiple, co-existing, long-term medical conditions — known as comorbidities that may develop independently of one another but may not directly cause each other — hospitals, institutions, and skilled nursing facilities can also develop multiple long-term, systemic, and chronic conditions that threaten their survival.

Kerr and Rivero’s February Westside Observer article explored five of the first eight problem areas in the first RCA report exploring the causal root factors leading to LHH’s decertification, including:

• Quality Assurance & Performance Improvement (QAPI),
• Infection Prevention and Control,
• Behavioral Health and Substance Abuse,
• Comprehensive Care Plans and Quality of Care, NS
• Competent Staff, Training, and Quality of Care

But following the Fire Life Safety inspection resulting in four “Immediate Jeopardy” citations over a fire alarm debacle during the first 90-Day Monitoring Survey CMS and the California Department of Public Health (CDPH) conducted at LHH in December, the list of eight problem areas grew to 11, including the last three:

• Medication Management and Administration
• Resident Rights and Freedom from Harm
• Emergency Preparedness Program
• Fire and Life Safety
• Resident Quality of Care
• Food and Nutrition Services

The additional three problem categories outline significant problems State inspectors uncovered between December 1 and December 16 after the first 90-Day Monitoring survey wrapped up.

The final two categories, Resident Quality of Care and Food and Nutrition Services were among the most damning, which will be reviewed in detail in an upcoming article.

Back in May 2015, Drs. Kerr and Rivero’s Westside Observer article, “Laguna Honda’s Falling Star,” documented LHH’s CMS five-star rating plummeted to just two stars. Four years following their 2015 article, LHH’s patient sexual abuse scandal surfaced in June 2019. That was when CMS slapped LHH with its then-new red stop-hand warning icon for consumers. Since then, LHH sank to its current pathetic one-star CMS rating. The warning icon remains next to LHH's name to this day on CMS’ Nursing Home Compare website.

The 261 Citations

In the three years and four months, since news reports surfaced reporting LHH's sexual abuse scandal, the hospital racked up 261 citations across 12 State survey inspections.

• LHH received only ten citations in the July 2019 inspection survey of LHH’s sexual abuse scandal, including four separate “Immediate Jeopardy” citations.
• Then LHH received 17 more citations four months later, in November 2019.
• The near-fatal patient fentanyl overdoes in July 2021, triggered a succession of eight separate State survey inspections beginning on October 14, 2021, and running through April 13, 2022, during which LHH ignored successive CMS and CDPH warnings that it faced potential decertification for worsening violations. Across those eight consecutive surveys, LHH racked up 22 citations, including another citation alleging a pattern of “Immediate Jeopardy” violations, until CMS finally resorted to decertifying LHH on April 13, 2022. It is thought CMS had the option of placing LHH in receivership, but didn’t.
• Fast forward to LHH’s first 90-Day Monitoring Survey that began on November 28, seven months after being decertified. At that point, LHH received a whopping 56 patient-care-related citation violations, plus 20 “physical plant” (facility) violations, for a total of 76 violations — representing a combined 28.8% of the 261 total citations across the actual official survey inspections and the unofficial “Mock Survey” citations.
• [Note: The 261 citations excludes an additional 23 (if not higher) deficiencies LHH just received following its second “90-Day Monitoring Survey” that just concluded, described below.]
• The jump from 22 citations in the eight survey inspections between October 2021 and April 2022 to receiving 76 citations during the first “90-Day Monitoring Survey” in December — more than three times higher than the 22 that led to LHH’s decertification in April 2022 — is particularly disturbing, since LHH’s three external consultants were brought on board in May 2022 to fix LHH and stop receiving further citations.
• Assuming the 23 new deficiencies identified in the second “90-Day Monitoring Survey" that just concluded all involve patient care, not facility "F-Tag" violations, they will represent a reduction of just under half of the 56 patient care violations received during the first "90-Day Monitoring Survey" in November and December. While that represents some progress, it remains worrisome. Nine months after DPH hired three consultant groups to fix the substandard care , LHH continues to rack up citations.

LHH racked up 118 patient care citations in those intervening three years and four months. Chart 1 shows LHH also amassed 20 citations related to "physical plant” deficiencies uncovered during the first 90-Day Monitoring Survey for a total of 138 citations across the 12 formal State survey inspections.

Toss in another 123 rated and un-rated citations uncovered during an unofficial “Mock Survey” conducted by LHH’s consultant Health Management Associates (HMA), which has been paid $5.8 million to date to assist LHH in CMS recertification. That brings total citations for various known LHH deficiencies to 261 — clearly a symptom of mismanagement of the hospital in this LHH pre-mortem.

A full-page version of Chart 1 is available online.

Spoiler Alert

Unfortunately, just before publication of this secondary analysis article, news surfaced that the numbers presented here may be under-reported.

On March 21, LHH’s acting CEO, Roland Pickens, announced during a Health Commission meeting that LHH’s second CMS/CDPH “90-Day Monitoring Survey” had concluded, apparently on Friday, March 17. He gushed that LHH had only been slapped with an additional 23 new deficiencies that he didn’t describe or summarize, and which haven’t been released to the public yet.

Another records request has been placed to obtain CDPH’s new Form 2567 report rapidly, rather than having to wait for HSAG to write a third “Root Cause Analysis” report and another follow-up supplementary “Action Plan” for CMS.

The potential 23 new citations will push LHH's total citations since July 2019 to a new record of 284 citations, up from 261. Hopefully, LHH hasn't received another "Immediate Jeopardy," which CMS had warned against.

During the March 21 Commission meeting, Pickens claimed LHH had received 124 deficiencies during its first “90-Day Monitoring Survey.” He appears to have been confused, or he misspoke, because the second “Root Cause Analysis” report documented 76 citations (50 related to patient care plus 20 “facility" citations). Pickens may have been trying to compare and contrast the new 23 deficiencies to the 76 deficiencies (but wrongly claimed 124) in an effort to claim LHH has been making progress on implementing reforms and reducing the number of citations.

If LHH received 23 additional patient-care-related deficiencies, that would still be more than the 22 citations that led to LHH's decertification across the eight separate inspection forms. While a reduction from 76 to 23 between two surveys indicates progress, 23 more citations suggest LHH is still not ready to pass an actual recertification survey!

How many additional "milestone” corrective actions will be needed in another “Action Plan" to fix the 23 new citations? We still need to determine if the new corrective milestones will have to be corrected by May 13, along with the other 454 milestones. This portends that LHH must undergo a third “90-Day Monitoring Survey,” which probably won’t start until mid-June.

Attaining actual CMS recertification looks farther and farther away, to the detriment of LHH's current residents. And San Franciscans needing admission to LHH will be denied, given the continuing ban on new admissions.

By the time LHH received the new 23 deficiencies on March 21, LHH had not updated the Health Commission about whether, between November 18 and December 16 (or after), all 123 deficiencies identified in the "Mock Survey" conducted in June had been cured. Only 63 were fully resolved, with the remaining 38 unresolved by November 18. Following LHH’s dashboard report for the week ending November 18, LHH stopped publicly presenting its weekly dashboard reports in December, so it’s unclear whether those 38 remaining deficiencies were ever fully resolved.

A reasonable person would assume management would have resolved the 38 outstanding deficiencies in the five months between June and November. The status of their resolution vanished into thin air before LHH was hit with the 23 new citations.

Scope of the Citations

Across the 12 surveys between June 2019 and April 2022, another perspective is the sheer numbers within each "scope" category. An alternative Chart 2 available online is helpful for visualizing the 261 citations:

Chart 2 summarizes the citations by severity and scope, showing:

• Twenty-two — a significant 8.4% — of the 261 citations involved the Level 4 “Immediate Jeopardy” severity, including 13 “L” citations, representing the number of patients who had faced immediate jeopardy.
• Seventeen of the citations involved “Actual Harm” that had not risen to the level of posing immediate jeopardy to patient’s health and safety, ranging from “Isolated” to “Widespread.”
• The 22 “Immediate Jeopardy” and 17 “Actual Harm" citations combined, comprise 14.9% of the 261 violations.
• 162 of the citations involved “No Actual Harm,” but had the potential for more than minimal harm, including 67 during the first “90-Day Monitoring Survey” alone that began at the end of last November.
• Another 33 citations had “No Actual Harm,” but had the potential for minimal harm.

It was beyond the resources of this article to tally the number of individual residents identified anonymously across the 12 survey inspection reports that had earned the 261 citations. But given LHH's typical resident census was 710 people, and the scope ranged from isolated to widespread incidents, it’s reasonable to imagine that the aggregate number of patients affected may have neared or exceeded the 710 residents.

For instance, just one inspection — on July 12, 2019, involving the sexual abuse allegations that had earned four “Immediate Jeopardy” scope ratings of “pattern” or “widespread” — had found 21 residents had been harmed by physical, mental, verbal, and sexual abuse, and chemical and physical restraints. And it found that five residents endured life-threatening complications due to purloined medications from LHH staff that their physicians had not prescribed.

About the “F-Tags”

Want to get into the weeds? Table 1, available online, lists the titles of each of the 78 separate “F-Tag” (patient care) violations. CMS is thought to have 211 separate "F-Tag" criteria all skilled nursing facilities nationwide are required to comply with; 48 of the 211 — 22.7% — involve sub-standard care, by definition.

So, the 78 F-Tags LHH violated — accounting for 118 actual survey patient care citations and an additional’ 57 “Mock Survey” patient care F-Tags findings in the 261 citations — represents 37% of all 211 F-Tags.That suggests LHH’s widespread and potentially willful disregard of the “F-Tag” CMS standards.

This bears repeating: The sheer volume of citations during the three years was mismanaged — as if it were an acute care hospital, not a skilled nursing facility (SNF) — is a symptom of, and a result of, LHH managers having no experience in running SNF's.

Add in 38 “K-Tag” (physical plant) violations across LHH’s actual inspection report citations plus the “Mock Survey” findings, out of an unknown number of total “K-Tags.” Again, that suggests LHH’s willful neglect to keep its “physical plant” in safe operating condition to house its vulnerable residents.

About the “Federal Regulatory Groups”

As for “Federal Regulatory Group” categories, Table 2, also available online, illustrates that the 118 citations LHH received for “F-Tag” patient care violations across the 12 inspections spanned 17 of 21 Regulatory Groups.

• Three of the 17 groups shown in Table 2 exclusively involve sub-standard patient care (Freedom From Abuse and Harm, Quality of Care, and Quality of Life). They accounted for 37 — 31.3% — of the 118 citations.
• Two other Regulatory Groups that don’t exclusively involve sub-standard patient care — “Comprehensive Resident-Centered Care Plans” and “Resident Rights” — also racked up 37 (31.3%) of the 118 citations involving patient care.

The “Regulatory Groups” are analogous to organs and parts of the body, such as the brain (Hospital Administration), heart (Nursing Department), liver (Quality Management Department), lungs (Medical Services Department), stomach, kidneys, and skin (encompassing the “physical plant"), and eyes, arms and legs, etc. The scope and severity of LHH's diseased citations necessitated this pre-mortem, if you will. LHH's prognosis? Poor.

Suppose you agree to the sheer quantitative numbers in this preliminary analysis of root causes leading to LHH’s decertification and its subsequent inspections are scary. In that case, the qualitative narrative in a planned next installment is even scarier.

About the Causal “Root Factors”

The consultants hired to root out the causal factors that led to LHH’s decertification did yeoman’s work, but stopped short of holding anybody accountable. Had LHH corrected its “culture of silence” — which the consultants themselves admitted they uncovered — back in 2019 when LHH had claimed it would develop a "culture of [patient] safety” with a “60-Day Reform Plan” it would roll out (discussed further, below), perhaps CMS wouldn’t have decertified LHH in April 2022.

The need for LHH to implement a "culture of managers" qualified to run SNF's was never mentioned.

Table 3 is a detailed list of the 63 underlying root causes grouped by each of the 11 major problem categories across the first two RCA reports exploring the causal root factors leading to LHH’s decertification. A sampling of some of the more shocking root causes includes:

• Quality Assurance and Performance Improvement (QAPI) program not aligned to skilled nursing facility (SNF) setting
• Lack of nursing involvement [in infection prevention and control
• Inadequate electronic healthcare record [system] (EHR)
• Insufficient hand hygiene and personal protective equipment (PPE) audits
• Non-compliance with safe medication management practices
• Lack of proactive interventions to prevent [resident] abuse
• Lack of formalized restorative [care] nursing program
• Ineffective [patient] care planning by interdisciplinary [care] team
• Lack of leadership with SNF [skilled nursing facility] experience, regulatory knowledge
• Lack of fire and life safety awareness
• Use of outdated clinical nutrition standards of practice

There are other equally alarming root causes contained in Table 3 online.

As Kerr and Rivero rightly noted in their February 23 article that although HSAG bravely exposed many of the underlying root causes that led to LHH's decertification, HSAG omitted to mention that the disastrous “Flow Project" of SFGH patients routed to LHH beginning in 2004 was the start of LHH's decline. Kerr and Rivero noted:

“The Root Cause Analysis [reports] omits [that] foundational history, but covers its grim outcome” and also observed the report "exposes the ignorance and mismanagement that befell the hospital.”

Sadly, none of the managers who allowed these root causes to germinate and then flourish, have been held accountable. None have been terminated to date, except LHH's recent CEO, Michael Phillips, who served for just two years, long before the problems had begun. Nobody else has been held accountable.

Defrocking the “Minimizers”

I’m reminded of comedian and former U.S. Senator Al Franken’s 2003 book, “Lies … and the Lying Liars Who Tell Them.” Franken asserted God had suggested he title his book, “Bearers of False Witness and the False Witness That They Bear." It was great that Franken worked with God's suggestion, updating it to modern vernacular. His book put me on alert 20 years ago for liars.

I became a columnist for the Westside Observer because the truth matters, since too many people lie to attain power and abuse people. Locally, lying to us undermines our trust in DPH. Public figure or private, lies impose real harm.

Me? I have to keep doing my part to give voice to LHH's voiceless.

For those who have continued to minimize LHH’s problems, deception has been the point all along: Theatrical propaganda from unreliable narrators. I wonder if God will defrock them for bearing False Witness, as Pappas was defrocked.

The minimizers need to stop their deliberate misinformation.

Sadly, LHH, as we have known it, may not survive its pre-mortem, if lies continue leading to its post-mortem.

- - - - - - - - - - - - - - - - -

The full version of this article posted on the author's website includes additional information about LHH’s planned “60-Day Reform Plan” published in August 2019 it claimed would be implemented following its patient sexual abuse scandal. Had that Reform Plan worked, LHH might have avoided decertification in 2022. There's also additional information on the methodology LHH's consultants used in their recent reports, and a section on three politicians attempting to minimize the severity and scope of LHH’s citations.

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 monette-shaw@westsideobserver.com.

April 10, 2023

Centers for Medicare & Medicaid (CMS) Isn't Playing Around as Managers May Believe

Temporary Reprieve on Evictions, But Harsh Warnings

CMS Orders Laguna Honda Hospital to Expedite Hiring Nursing Home Administrators

by Patrick Monette-Shaw

•••••••••• February 22, 2023 ••••••••••

One day after a relatively useless Board of Supervisors hearing about LHH held on January 31st, Centers for Medicare & Medicaid Services (CMS) approved — on February 1st — a temporary extension of the pause on transfers and discharges scheduled to end on February 2nd, to May 19th.

The reprieve to May 19th from CMS is good news, particularly for LHH residents facing the potential transfer trauma and death resulting from mandatory, forced eviction from LHH.

But in the same letter, CMS issued several dire warnings and other bad news to LHH.

Fire Alarm

As the Westside Observer reported in January, a fire alarm went off during the “90-day Monitoring Survey” to regain recertification. That resulted in an “Immediate Jeopardy” citation, imposed when there are immediate risks to residents' health or safety, which are one step higher than “actual harm” violations.

Still, the fire alarm debacle triggered an “Extended Survey” and a second separate “Fire Life Safety Survey.” Thus the contingent of surveyors grew from 14 to “over” 25, who hung around until December 16th, and a myriad of other problems surfaced.

Pickens misinformed the Supervisors that the June '22 “Mock Survey” conducted by in-house consultants had identified 300 “milestones” that might prevent recertification.

As the Westside Observer noted, the recertification “Mock Survey” uncovered 101 deficiencies, not 300. Of those 101 deficiencies, only 63 had been fully resolved by November 18th, with 38% remaining.

Unfortunately, Pickens' misstatements do not serve to inform the Board. They may have no idea that 38% of the deficiencies identified during the June “Mock Survey” still hadn't been fixed as of November 18th.

LHH's fire alarm 81-page “Plan of Correction” (PoC) was resubmitted to the California Department of Public Health (CDPH) on January 8th. Since the first version may have proposed insufficient remedies and corrections.

Pickens “Immediate Jeopardy” version

“So, for example, when the fire alarm went off there should be an overhead [public address system] announcement “Fire alarm, fire detected such-and-such part of the building.” Well, that overhead announcement didn't happen.” Nor did the requirement that everyone exit the building. “If an alarm goes off right now in this building [City Hall] we all need to exit. Well, when that happened, in December, not all of the staff exited appropriately. And so, the surveyors saw that.

“So, it's unfortunate that everything that should have happened with that fire alarm system didn't happen. So, the good thing is that it was identified, and we were able to respond to it immediately.”

No “good” thing happened as a result of the failed fire alarm announcement, Pickens added:

“... we had to quickly do several things. One was, we brought over the Fire Life Safety expert from Zuckerberg San Francisco General (SFGH) … deployed him to Laguna Honda as a Disaster Service Worker, and made him exclusively responsible for improving and enhancing the Fire Life Safety program at Laguna. We also brought on additional consultants, because one of the findings was that we need to do a better job of training staff so that they can understand exactly what their role was for Fire Life Safety.”

Doesn't LHH have a Fire Life Safety expert of its own? Why isn't LHH's Building and Grounds Maintenance Supervisor, Arnold Brunswick, qualified to do Fire Life Safety inspections and repairs? What about Diana Kenyon, Building and Grounds Maintenance Superintendent? Isn't she required to perform Fire Life Safety inspections and repairs?

A public records request revealed that the SFGH fire safety “expert” Gregory Chase — like Kenyon — has a job classification code of “7120 Building and Grounds Maintenance Superintendent.” His title at SFGH is “Facilities Services Director.” However, deemed an “expert” for LHH, it's unknown if he's getting paid extra. Kenyon and Chase each earned $160,007 in regular pay (excluding fringe benefits). Still, Chase snapped up an additional $75,390 between overtime pay and “other pay” (perhaps for carrying a pager), for total of $235,398 in FY21–22.

Why were additional expensive consultants needed to train employees on Fire Life Safety? CMS had only cited a handful of employees who didn't know what RACE is (Rescue, Alarm, Contain, Extinguish/Evacuate) despite its prominence on their ID cards nor where the nearest fire extinguishers were.

The violation didn't just involve the public address system.

In fact, the Fire Life Survey PoC revealed 24 deficiencies in CMS' citation of the survey results, including smoke detectors — turned off for six months, faults with the beam smoke detectors in the Pavilion Building, fire sprinklers not appropriately maintained, obstructed fire sprinklers, uninspected portable fire extinguishers and smoke beam detectors, smoke barrier doors didn't close fully sometimes not at all, an elevator out of order, an untested emergency (EPS) generator, daisy-chained surge protectors (forbidden by the Fire Code), among other more minor issues. Pickens withheld this crucial information from the Board of Supervisors.

Three Dire Warnings

“Yes Men,” dispatched from SF General Hospital and the Department of Public Health, comprise the management at LHH. Those senior managers have no experience managing any skilled nursing facility, which concerns CMS deeply.

During 2004-5, after the closure of the Mental Health Rehabilitation Facility (MHRF), when the “flow project” moved behavioral health patients from SFGH, they also removed “long-term care” from LHH's mission statement.

The extended pause on transfers to May 19th only extends Federal reimbursement for current residents to the November 13th deadline. That's when Federal funding ends. CMS warned, “manage its resources, including plans to safely discharge and transfer residents, accordingly with that date in mind.”

Second, CMS warned that during follow-on 90-day Monitoring Surveys, more “Immediate Jeopardy” findings would not be tolerated.

There were also findings alleging actual harm to LHH's residents and “multiple quality of care concerns,” including individualized care planning violations, which Pickens withheld from the Board of Supervisors.

CMS implied that any more “Immediate Jeopardy” or “actual harm” findings might trigger CMS to potentially end the “LHH Settlement Agreement” entirely, making recertification all but impossible.

The phantom “Revised Closure Plan”

CMS had a more direct warning regarding the resumption of mandatory evictions to resume on May 19th.

It's unknown when LHH submitted its “Revised Closure Plan” — mentioned in the Settlement Agreement 18 times, but they refused multiple records requests from the Westside Observer. It was required when 12 patients died under the Initial Closure Plan.

Fed up with LHH's delay, CMS wrote: “For any resident transfer/discharge, Laguna Honda must follow the approved, revised closure plan process, in order to continue to receive extended federal funding. At this time, Laguna Honda's draft revised closure plan has not been approved. CMS, CDPH, and the California Department of Health Care Services provided feedback on Laguna Honda's plan on January 13 and 18, 2023, and we have not yet received a revised version in response.

“If Laguna Honda does not timely complete its revised closure plan, CMS reserves the right to pursue all remedies and enforcement measures under the settlement/systems improvement agreement. CMS further reserves all its rights under the settlement/systems improvement agreement, including its right to terminate the agreement pursuant to Paragraph 3.”

Failure to Respond

CMS could terminate its reimbursement for current residents through November 23rd. There would be no Medicare and Medicaid funding at all.

Footdragging: Nursing Home Administrator

Exasperated with LHH's footdragging to hire a licensed Nursing Home Administrator and a licensed Assistant Nursing Home Administrator, CMS noted that plans to post job vacancy announcements for the two positions on April 30th, are insufficient.

“LHH should prioritize efforts to expeditiously install permanent leadership with appropriate experience in nursing home administration.”

CMS set two deadlines: 1. demonstrate “tangible progress” toward hiring leadership with nursing home experience by May 19, and 2. provide a detailed timeline by February 15th about hiring and onboarding licensed Nursing Home Administrators.

Acting CEO, Roland Pickens provided an organization chart on June 30th, on 36-inch paper. It was unprintable and illegible when zoomed in to read. Irritated, Health Commissioner Chow requested a readable copy.

The Nursing Home Administrator position is buried two layers down in the chart. An Administrator would face an uphill internal struggle. LHH's last licensed Nursing Home Administrator was Larry Funk in 2004, who also served as CEO.

The new Nursing Home Administrator should also be the CEO. Most nursing homes do not have a CEO and a Nursing Home Administrator.

San Francisco Health Network's Baljeet Sangha has no experience in skilled nursing facilities. He told the Health Commissioners the goal was to add sustainable City positions to take over the work of consultants and consultant nurse administrators. By the end of 2022, the new leadership positions would be evaluated to determine if the model is effective. Commissioner Guillermo asked for evaluation data of the leadership model and a timeline for recruiting LHH positions. Sangha claimed job postings might be posted by the end of the year 2022.

SFDPH has “no responsive records” for either the evaluation data Guillermo requested or the evaluation analysis report on the model's effectiveness due by year's end.

CMS expects LHH to fast-track the hiring with a detailed timeline.

Joining California Association of Health Facilities

CMS requires LHH to join the California Association of Health Facilities (CAHF), and staff needs to enroll in its “Leadership Academy” to “install permanent leadership with appropriate experience in nursing home administration.”

Why did CMS require affiliation with CAHF, rather than the National Association of Directors of Nursing Administration of Long-Term Care [NADONA] — a more traditional Skilled Nursing Facility (SNF) association? CAHF does not focus on SNFs. Instead, its main focus is legislative advocacy.

CAHF is a trade organization with an extensive history of legislative advocacy for California nursing homes, according to its website. It “strives, through advocacy, to provide a credible, respected voice for long-term care with elected officials, state agencies, stakeholder organizations, print, broadcast, and social media.”

Beyond that, CAHF has no focus on developing nursing home administrators other than through its “Leadership Academy.”

The Leadership Academy

“... an enriching experience designed to grow leadership skills ...” Leadership students will develop a “Quality Assurance Performance Improvement” (QAPI) for their organization's facility.

LHH already has Quality Management and Nursing Education departments to help employees develop QAPI programs. And the consultants — hired at $26.7 million — are teaching staff to develop QAPI projects. So why more QAPI projects?

Pickens' reported that LHH had joined CAHF, which had accepted six staff to the Leadership Academy.

The six employees are:

• Prasanthi Patel, MPH; Administrative Director of Operations, LHH Operations Department, 2593 Health Program Coordinator III, typically not considered senior managers of nursing facilities.
• Arnold Brunswick;-Facility Services, LHH Facilities Department, 7203 Bldg. & Grounds Maintenance Supervisor.
• Elvis Lavarreda, CDM, CFPP; Food Service Director, Food and Nutrition Services Department, 0923 Manager II.
• Lucia Angel, MHA; LHH Chief of Staff, LHH Administration, 2593 Health Program Coordinator III.
• Susan Duong, RN; Director of Nursing, South Tower, LHH Nursing Department, 2324 Nursing Supervisor.
• Rowena Patel, MSN, BSN, RN, GNP-BC; Director of Nursing North Tower/Pavilion, LHH Nursing Department, 2324 Nursing Supervisor.

Only three of the six — Lavarreda, Duong, and Rowena Patel — are indicated on the “Leadership Organizational Chart,” linked above and midlevel on LHH's organizational structure.

A public records request revealed the fees to join CAHF include $78,359 to date, including a membership application fee ($833), membership dues July to December 2022 ($23,746),  membership dues January to December 2023 ($46,655), and CAHF’s Spring  2023 “Leadership Academy” enrollment for five LHH staff members ($7,125), given one complimentary Academy enrollment scholarship.  

Going forward, LHH must pay annual membership dues of approximately $53,000 annually, based on the $78 per-bed fees if LHH retains licensure for all its 769 beds, plus additional $1,425 per student “Leadership Academy” registration fees.

Pickens and Sangha should get the boot, too, and now — before CMS pulls the plug.

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  Contact him at monette-shaw@westsideobserver.com.

February 22, 2023

Did 20 Years of Mismanagement Prompt Federal Intervention?

The Bungled Management at Laguna Honda

An Insider’s History

by Patrick Monette-Shaw

•••••••••• February 10, 2023 ••••••••••

Laguna Honda Hospital’s leadership problems have had a long, “colorful” history. Senior managers were moved in, managers who would obediently “go with the flow” — changing the hospital’s mission and patient population.

Back in 2003 and 2004, then-Director of Public Health Mitch Katz instituted his disastrous “flow project” to discharge dangerous, robust, and behaviorally challenged younger patients from SFGH into LHH, mixing them in with elderly vulnerable patients, many with dementia, creating a volatile milieu for both patient populations.

I served as a secretary for a decade in LHH’s Rehabilitation Services Department between 1999 and 2009. I saw it all.

Katz started by forcing successive changes to LHH’s Admissions Policy because he remained angry that LHH’s medical staff and hospital administrators had refused to accept and admit dangerous psychiatric patients from SFGH. 

Katz then ousted LHH’s then Executive Administrator, Larry Funk — an at-will “exempt” employee. Actually, Funk was the last LHH CEO to hold a Nursing Home Administrator license.

LHH Manager’s “Go With the Flow” History

LHH’s then-Chief Operating Officer (COO), Robert Christmas, offered himself to Katz for the CEO position. Katz declined, telling Christmas, “you are too nice for the job.” Instead, Katz wanted somebody who was not so nice.

So, Katz appointed John Kanaley as Funk’s replacement in November 2004. Kanaley fit the “not so nice” job description very nicely.

But Katz was interested in more than the “flow project” for behavioral health patients.

Katz aggressively pursued putting in place a management team at LHH who would “go with the flow” — meaning who would “go along to get along” (to keep their jobs).

When news surfaced Funk had been forced out, 415 LHH staff — including nurses, certified nursing assistants, social workers, activity therapists, dietitians, physical therapists and occupational therapists, hospital volunteers, psychologists, and clerical and secretarial employees, among others — signed a petition to the then-president of the Health Commission, Edward Chow, MD urging that Funk be restored immediately to his position as CEO. 

Another 32 members of LHH’s Medical Services Department of doctors and psychiatrists signed a separate petition to Dr. Katz and the entire San Francisco Health Commission, including Dr. Chow, expressing their wholehearted support of Funk and urging Katz to reinstate Funk as CEO. Within weeks of Kanaley’s appointment, a contingent of LHH’s high-level senior administrators met with Dr. Katz regarding concerns about Kanaley’s appointment and lack of credentials, experience, and qualifications. 

Katz reportedly told the contingent it didn’t matter because he wanted somebody who would “kick the [LHH] doctor’s asses.” That’s why Katz’s lap dog, not-so-nice Kanaley, was brought on: To kick doctor’s asses, which Kanaley set about doing. It wasn’t long before Bob Christmas vanished as COO.

Kanaley’s prior job experience was in “facilities management,” not hospital administration. 

He served 14 years in facilities management in SFGH’s Plant Services Department. He had earned a master’s degree in public health in 2001 — just three years before being appointed LHH’s executive administrator — authoring a thesis involving the evaluation of hazardous waste operations.

Many people believed Kanaley was sent to perform hazardous employee removal of LHH’s staff. 

Kanaley had no experience running a skilled nursing facility whatsoever and certainly no experience or training to run a 1,200-bed nursing home with approximately 1,500 employees.

Flexing their biceps, Katz and Kanaley forced LHH’s Medical Director, Dr. Terry Hill, to resign, and eliminated Mary Louise Fleming’s position as LHH’s Director of Nursing. 

Dr. Hill is thought to have been recruited in 1999 for his experience in geriatric medicine by Dr. Maria Rivero, LHH’s then-Medical Director. He was a noted researcher with a keen knowledge of how data analysis improves the healthcare realm. Hill served five years before being forced out in 2004 for opposing changes to LHH’s admission policy after John Kanaley was brought on. Hill is a Fellow of the American College of Physicians (FACP), and a member of the California Association of Long Term Care Medicine — the latter being an organization CMS wants LHH managers to join as LHH works towards becoming recertified.

Soon after, Dr. Paul Isakson became LHH’s Medical Director, along with Assistant Medical Director Dr. Tim Skovrinski, but they were eventually pushed out, too, after they continued to oppose Katz’s attempts to change LHH’s admissions policy. 

After Kanaley promoted Hirose to the sole Director of Nursing in 2006, Hirose engineered a coup by forcing Gayling Gee from the Co-Director of Nursing to be LHH’s Chief Operations Officer. Hirose herself was an SFGH management transplant to LHH; Hirose’s background had been as a medical/surgical nurse.

Four months after Kanaley promoted Hirose to CEO in July 2009, Ms. Gee spoke out during a Health Commission meeting advocating to save LHH’s Adult Day Health Center (ADHC) program, using her First Amendment rights as a private citizen. Hirose retaliated. She told Ms. Gee on a Friday to get out within 24 hours, forcing Gee out permanently. Everybody was stunned by Hirose’s ruthlessness on behalf of Kanaley simply because Gee had opposed a management decision to close the ADHC.

Gee’s ouster was clearly retaliation for exercising her First Amendment rights during a public meeting. It wasn’t the last time that Hirose engaged in retaliatory termination since she was principally involved in wrongfully terminating Dr. Derek Kerr in 2010.

And so it went, replacing LHH employees little by little with SFGH staff transplants with no skilled nursing facility experience.

As the Westside Observer reported in September 2009, soon after Dr. Derek Kerr and Dr. Mario Rivero — who had had the temerity to write The Ja Report: A Job Half Done, A Critical Analysis of: Evaluation & Assessment of LHH Behavioral Care & Service Access: A Final Report’ — were also pushed out. Their Critical Analysis of the Ja Report exposed attempts by Katz and others to severely trim LHH’s medical staff and replace physicians with registered nurses, social workers, and psychologists, which would have led to adverse health outcomes for LHH’s vulnerable patients admitted for medical reasons.

Katz brazenly dismantled LHH’s “Patient Screening Committee,” comprised of physicians and psychiatry staff who reviewed whether individual SFGH patients were safe to admit to LHH.

Former City Attorney Louise Renne had Marc Slavin — her spokesperson while City Attorney — dispatched to LHH to rebrand the hospital’s image. 

Slavin hunted me out on his third day at LHH and told me he was there to stop the negative publicity — including me — about LHH. Slavin essentially served as LHH’s shadow CEO, propping up Hirose when not running the entire show. He inserted himself into clinical decisions, which was totally inappropriate.

After Funk was forced out, LHH’s succession of CEOs included Kanaley (lasting five years until he suffered a heart attack and died), Hirose (10 years, until the patient sexual abuse scandal surfaced), and Michael Phillips (who lasted for just two years until the near-fatal drug overdoses in the fall of 2021).  

Phillips had served as CEO of Silver Lake Medical Center, a dual-site hospital and 118-bed LPS Designated Behavioral Health Unit in San Gabriel Valley and a 116-bed acute care hospital in Los Angeles. 

It’s assumed Phillips was brought in after a nationwide search to replace Hirose because he had experience running a facility for behavioral health patients; Katz would have approved of Phillips to assist his “flow project.”

After shedding Phillips, Pickens was fingered for the CEO gig. None of Funk’s successors during the past 18 years had ever worked in a skilled nursing facility, let alone possessed a Nursing Home Administrator license. It’s been 20 years of mismanagement and institutional neglect!

By Pickens’ own admission, the parade of inept CEOs led to an LHH managed as an acute care hospital rather than a skilled nursing facility. Of LHH’s 769 licensed beds, only six are licensed as acute medical units. 
Most LHH patients needing acute medical care are transferred to an external acute-care hospital. LHH’s other 763 beds are licensed as a handful of acute medical rehabilitation beds, medical rehabilitation skilled nursing beds, or skilled nursing beds. (LHH’s Acute Medical Unit had an average patient census of just 2.51 patients per day in 2020, 2.94 patients daily during 2021, and 3.26 patients on average daily in 2022.) Why Pickens et al. were running LHH as an acute care hospital having only an average daily census of no more than 3.26 patients needing short-term acute care is unknown.

Within San Francisco’s Department of Public Health, its San Francisco Health Network (SFHN) —  run by CEO, Roland Pickens, who was tapped to be LHH’s acting CEO — joined the management history of LHH. SFHN had initially been created as a division to pull together the SF Department of Public Health’s (SFDPH) 13 primary care clinics.  Separately, SFHN has 10 clinics that provide medical care for San Francisco youth.

SFHN collaborates with the San Francisco Community Clinics Consortium (SFCCC), a private-sector non-profit organization. 

Both SFHN and SFCCC stood up to serve low-income, uninsured, and medically underserved people to provide comprehensive primary, preventive, and ambulatory care, dental, and mental health services, that admittedly are desperately-need services.

And therein lies the problem: SFHN was not initially created to provide management of LHH. But the SFDPH, SFGH, and SFHN managers who took over running LHH essentially ran LHH into the ground through gross mismanagement. SFHN’s long-arm-of-the-law power grab sucked LHH into SFHN’s management vortex.

As one observer puts it: 
“Ineptitude of LHH ‘go with the flow’ administrators brought in from SFGH to mismanage the show, and the ‘flow project’ of patients, are inseparable: The underlying vision of LHH as a second-rate location (to SFGH) that did not need independent or knowledgeable management … with LHH staff as servants of the ineptitude.”

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 ,.26 patients during calendar year 2022.]. Contact him at monette-shaw@westsideobserver.com.

February 10, 2023

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 ••••••••••

by Patrick Monette-Shaw

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.

The new patient safety violation came dangerously close to scuttling efforts the expensive consultants hired to help LHH regain its certification have made. It put their progress to fix decades of mismanagement since May at risk.

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 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.’

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?

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 monette-shaw@westsideobserver.com.

January 13, 2022

“Root Cause Analysis” Key Report Missing in Action?

Costs to Rescue LHH Climb to $20 Million

Who's keeping score of progress on Laguna Honda Hospital Settlement Agreement compliance?

•••••••••• December 6, 2022 ••••••••••

by Patrick Monette-Shaw

Looming deadlines are worrisome because keeping Laguna Honda Hospital (LHH) open is contingent on SFDPH complying with terms in the LHH Settlement Agreement, including meeting deadlines.

But first, a clarification to my October 21 article, "LHH Settlement Agreement Requires Re-Certification," that I submitted for publication just before going in for surgery on October 24.

I had written:

"Clearly, the Commission rammed the settlement agreement through the approval process without disclosure to the public. They denied the public's right to see or weigh in on full details of the agreement — despite multiple public records requests, including two records requests from the Westside Observer. The agreement, shrouded in secrecy, will be heard next by the Board of Supervisors."

During its October 18 meeting, the Health Commission approved the terms of the proposed settlement agreement. It is still unknown whether the Commission approved a summary of the framework terms in principle presented to it by the City Attorney's Office during a 60-minute closed session on October 18, or if the Commission had seen the full details — or any — of the final language in the 23-page Settlement Agreement. Reading, digesting, and comprehending 23 pages of legal text within 60 minutes would be remarkable.

One of my Westside Observer colleagues, Teresa Palmer — a retired MD specializing in geriatric medicine and a Board member of San Francisco's Gray Panthers — managed to obtain an electronic copy of the LHH Settlement Agreement. She received it on October 21 from City Attorney David Chiu's office by e-mail on the same date I submitted my article even though Chiu participated in a meeting with members of the Gray Panthers on Monday, October 17. Palmer submitted an e-mail to the City Attorney's Office (CAO) at 1:20 p.m. on October 21, complaining that "the actual terms of the settlement have not yet been released."

Palmer's persistence paid off. At 5:01 p.m. on Friday October 21, the CAO finally provided a copy of the Settlement Agreement in PDF file format to Palmer by e-mail, notably after closing time just before the weekend. That was the first time members of the public were allowed to see it — after the Health Commission had already agreed on October 18 to approve the Settlement.

The metadata of the Settlement Agreement PDF file provided some information. The 23-page Agreement was created on October 12 and modified at 3:56 pm, in the afternoon of October 21, before it was provided to Palmer.

The document's author was listed as Sara Eisenberg, an Assistant Chief Attorney in the City Attorney's Office.

Public records show Eisenberg earned $255,548 in total pay (excluding fringe benefits) during the fiscal year ending June 30, 2022. She is listed in the Agreement as a contact person to receive correspondence and documents from the Centers for Medicare and Medicaid Services (CMS) and California Department of Public Health (CDPH) regarding the Settlement.

It's unknown whether Eisenberg created and authored the document herself on behalf of the City Attorney and LHH or if it was created by legal staff working in either CDPH or in CMS. Nor is it known whether various iterations of the Agreement were exchanged among the three agencies during the development of the settlement terms.

Looming Settlement Agreement Deadlines

My other Westside Observer colleague, Dr. Derek Kerr, wrote a terrific article in November outlining the regulatory straitjacket LHH imposed by the terms in the Settlement Agreement and its contractual deadlines.

"Quality Improvement Expert" Deadline November 4

Kerr reported that LHH was required to hire a Quality Improvement Expert (QIE) LHH by November 4, and the QIE "must conduct a 'Root Cause Analysis' for every deficiency identified in CMS and CDPH surveys" since near-fatal patient overdoses in July 2021. CMS and CDPH had cited LHH for 26 deficiencies between October 14, 2021 and April 13, 2022 alone.

LHH and SFDPH were allowed to pick a QIE. Still, it was contingent on LHH submitting the qualifications of the QIE to CMS and CMS' subsequent determination of whether the QIE was qualified to perform the tasks required under the Settlement Agreement before CMS would approve the QIE chosen.

The Board of Supervisors approved the LHH Settlement Agreement on the First Reading on November 1 and on Second Reading a week later on November 8. Supervisors authorized the SF Department of Public Health (SFDPH) to enter into a sole source contract with a QIE approved by CMS in an amount not to exceed three million dollars, for a one-year and three-month term through December 31, 2023.

LHH may be anticipating that attaining CMS re-certification will take another full year — to December 2023 — after LHH had first hoped to reapply in September 2022 and become recertified by CMS by December 2022.

"Root Cause Analysis" Deadline December 1

Among other things, the Root Cause Analysis was supposed to determine "the factors that resulted in CMS concluding that LHH violated a federal regulation and to ensure long-term substantial compliance in the future with federal [CMS} participation requirements" [paragraph 10 on page 10 of the Settlement Agreement].

The Analysis was explicitly supposed to address the deficiencies that involved: ensuring that all LHH residents receive appropriate and sufficient supervision and that LHH implements proper interventions to keep LHH residents safe from accident hazards, including illegal drug use; developing comprehensive care plans and completing comprehensive assessments of all residents; ensuring that residents admitted to LHH with limited ranges of motion receive appropriate treatment and services to increase their range of motion, or prevent further decrease in their range of motion; ensuring pain management to residents who require those services; establishing and maintaining an infection prevention and control program; and other deficiencies.

It would be funny — if it weren't so sad — that a Root Cause Analysis was even needed, as if the causes of the deficiencies CMS alleged LHH had violated weren't known or obvious. What's sad is that SFDPH, LHH acting CEO Roland Pickens, the Health Commission, and even CDPH and CMS are all acting like — or pretending — the root causes were unknown.

For starters, here are a couple of clues:

1) LHH seems to have violated its own admission policies,
2) The Flow Project routed inappropriate SFGH behavioral-health patients to LHH where they wouldn't receive the appropriate mental health and substance abuse help that they need, and
3) When LHH flunked its April 14, 2022 CPDH inspection survey, State inspectors observed 15 LHH nursing staff who were not following COVID infection precautions.

As late as October, LHH was still struggling with nursing staff around infection control compliance following the first Mock Survey preparing for CMS re-inspections.

Also obvious are the decades of mismanagement of LHH by SFGH and SFDPH managers lacking experience in skilled nursing facilities —brought in to meddle with LHH's operations.

For example, last September, the Westside Observer reported that LHH acting CEO Roland Pickens — himself brought in from SFDPH's upper management — clearly acknowledged to the Health Commission on August 16, 2022 that LHH had been following the wrong regulatory guidelines. LHH used California's Title 22 "Acute Care Hospital Guidelines," not CMS' "Skilled Nursing Facility Regulatory Guidelines" and CMS' Critical Element Pathways (CEP's). Pickens admitted, on August 16: "had we been utilizing CEP's in the past, perhaps the facility could have been more in line with regulatory compliance …" and might not have been slapped with 26 deficiencies and found in noncompliance by CMS, which led to LHH's decertification.

How much more obvious do the Root Causes need to be?

As a reminder, the Flow Project was created 18 years ago, in 2004 as a budget-cutting move to transfer SFGH patients with mental health problems to LHH; the results have been disastrous. Mixing, also known as "cohorting," different patient populations — such as frail elderly patients with Alzheimer's and other dementias with younger able-bodied patients with substance abuse and mental health diagnoses — in a single facility. It's not a good idea because neither patient population receives the appropriate level of care they need. CMS' focus on LHH appears to be based on CMS' potential concerns with cohorting different patient populations in a single facility.

For its part, SFDPH does not want to admit that it has grossly violated long-standing nursing home regulations with the Flow Project for nearly two decades. Simultaneously, it is loathe to admit that it understaffed, did not train, and could not retain staff at LHH to provide behavioral health care.

Along with documenting the root causes of each deficiency, the Analysis report must include recommendations for changes and improvements necessary to achieve and maintain CMS regulatory compliance going forward. The Settlement Agreement required on page 13 that the QIE submit its Root Cause Analysis and recommendations report in writing to CMS by December 1.
There are at least three problems with the QIE and Root Cause Analysis report.

First, although LHH was supposed to hire a QIE by November 4, SFDPH responded on November 28 to a Westside Observer public records request placed on November 22 for the name of the QIE that LHH had hired and the contract awarded to the QIE, saying the contract "agreement is still under negotiation and has not been finalized, thus it is exempt from disclosure under SF Administrative Code §67.24(e)(1)." SFDPH initially failed even to name the company it had hired to be its QIE, and failed to respond to a follow-up request seeking the name of the company. [The Settlement Agreement specifically stipulated: "No one who currently or in the past 24 months has been an employee of LHH or has any other conflict of interest under applicable laws, may act as a QIE pursuant to this Agreement."]

During the November 8, 2022 meeting of the LHH-JCC (a Joint Conference Subcommittee of the Health Commission consisting of three Health Commissioners and senior managers of LHH), LHH's acting CEO Roland Pickens presented the Executive Team report. It included a miserly two-sentence bullet point that barely mentioned in passing that "LHH anticipates working with a Quality Improvement Expert to complete a root cause analysis," but didn't mention the name of the company appointed to be the QIE. [In hindsight, Pickens' choice of wording using "anticipates" was odd, because by November 8 the Settlement Agreement stipulated that a QIE was supposed to have been hired by November 4 and the full Settlement Agreement was passed on First reading by the Board of Supervisors on November 1.]

Unfortunately, because of SFDPH's lack of transparency in producing the QIE contract, it's not yet known whether the external QIE was actually hired and began work on November 4, or what the QIE contract states, if anything, about what the QIE's role is with the Root Cause Analysis.

Second, it appears the "Root Cause Analysis" written report may not have been submitted to CMS by the December 1 deadline. The Westside Observer placed another records request to SFDPH on December 1, seeking the QIE's Root Cause Analysis report and recommendations due to CMS on December 1.

Shockingly, on December 2 SFDPH public records staff responded surprisingly promptly, saying:
"[SFDPH] conducted a diligent search for records responsive to your request. We have found none. Accordingly, we have no records to produce in response to your request." For good measure SFDPH added:

"As of today, SFDPH does not have possession, custody, or control of the record responsive to your request. You are free to submit a records request to CMS to obtain a copy of the record you seek."

If LHH had requested and obtained an extension to CMS' December 1 deadline, or if CMS had agreed to revise the Settlement Agreement to remove the requirement to produce and submit a Root Cause Analysis, shouldn't SFDPH public record staff simply say so? Wouldn't a "diligent" search for records have turned up either of the two possibilities? Alternatively, why would SFDPH deflect by suggesting that the Westside Observer should submit a records request to CMS to obtain a document SFDPH or LHH should have in their possession, or should have retained? That's very odd.

The Settlement Agreement states in paragraph 10-c that "The QIE will submit the Report in writing to CMS," with a clear — albeit somewhat elliptical — inference that by "report," the Agreement was referring to the "Root Cause Analysis" document. Could SFDPH's public records staff not have understood that the "analysis" and "report" are one-in-the-same document?

Interested observers are having a hard time understanding how the QIE, reportedly being paid up to $3 million, would have the authority to complete a Root Cause Analysis and submit it directly to CMS without providing a copy of the Analysis report to LHH, SFDPH, and Ms. Eisenberg in the San Francisco City Attorney's Office.

One observer wonders if SFDPH is playing the delay game by not releasing the "Root Cause Analysis" report instead of being fully transparent? Are they taking a page from Donald Trump's Delaying-Tactics 101 playbook? Does not being transparent tell us that SFDPH and LHH know what they are doing?

No, it tells us that they are maintaining secrecy to potentially cover up the loss of greatly needed skilled nursing facility services in San Francisco.

Another observer worries that the "Root Cause Analysis" report and the "LHH Revised Closure Plan" are not being discussed outside of closed sessions of the Health Commission and Board of Supervisors meetings. It may suggest that SFDPH will not make the necessary changes at Laguna Honda going forward.

A third observer wonders whether SFDPH, having been unable to locate the Root Cause Analysis report, will be a deliberate, planned failure to comply with the terms of the Settlement Agreement.

That SFDPH and LHH may not have a copy of the "Root Cause Analysis" is problematic in its own right, because the Settlement Agreement specifically stipulated CMS reserved the right to require changes to the Root Cause Analysis before CMS approved it. And further, it provides that CMS would respond in writing to the Root Cause Analysis by December 11, 2022 or the Analysis would be deemed approved [as submitted].

Given SFDPH’s history of flouting San Francisco’s Sunshine Ordinance to delay the release of public records — particularly its delay in releasing the LHH Settlement Agreement and the Revised Closure Plan involving the potential closure — the Westside Observer had already submitted a concurrent FOIA request. The request to CMS to obtain the “Root Cause Analysis” report was dated December 1, even before SFDPH suggested we were “free to submit a records request to CMS.”

Given the critical importance of keeping Laguna Honda Hospital open for its current and future residents, the Westside Observer placed the FOIA request. Hopefully, CMS will produce the Root Cause Analysis SFDPH claimed it didn’t have in its possession, custody, or control.

By the time you read this article, there may be just five or six days to CMS' internal December 11 deadline to approve the Root Cause Analysis or request any necessary changes. If SFDPH can't locate the document as it claims, how will LHH be able to revise the Analysis if CMS requests modifications?

The "Action Plan"

Third, the Settlement Agreement stipulated explicitly that the external QIE(s) will assist LHH in developing an Action Plan based on and responding to the findings and recommendations presented in the Root Cause Analysis report. The Action Plan must include improvement solutions identified as recommendations. LHH is supposed to submit the Action Plan to CMS and CDPH for review and approval by January 6, 2023.

CMS will also have final approval of the proposed Action Plan. CMS has until January 17 to provide initial comments about the Plan to LHH, or the Action Plan will be deemed to be approved. If CMS does request any changes to the Action Plan, LHH and its QIE will have ten days from receipt of CMS' proposed revisions to make the requested changes. Once CMS approves the final Action Plan, LHH will cooperate with the QIE to promptly implement the Plan, which must be fully implemented by May 13, 2023.

But if LHH doesn't agree to the Action Plan CMS approves, or if LHH refuses to implement any material aspect of the Plan without good cause, CMS may terminate the entire Settlement Agreement and again discontinue discretionary Federal funding to Laguna Honda Hospital.

Again, by the time you read this on December 6 or so, there will be roughly 30 calendar days before the Action Plan is due to CMS on January 6, of which at least five days will be lost to the Christmas and New Year holidays.

As Dr. Kerr noted, the Settlement Agreement "includes many other technical requirements that will severely challenge LHH managers and staff. Each of these requirements creates potential pitfalls and penalties," leaving LHH little wiggle room.

Costs to Rescue LHH Rise to $20 Million

As I wrote in the Westside Observer in early September, the costs of rescuing LHH were capped at just over $15 million, primarily for three consulting contracts. One contract was with Health Management Associates (HMA), for $3.7 million, and a second contract was with Tryfacta, Inc. to provide LHH with as-needed staffing. The third contract was with Health Services Advisory Group (HSAG), initially for $1.8 million, but subsequently received a first amendment increasing the contract by $5.2 million to just under $7 million.

The HSAG contract was issued as a sole-source contract based on the firm's experience as CMS' federally-assigned Quality Improvement Organization (QIO) for California. You have to wonder whether CMS is paying HSAG to be its QIO for California, and if that portends a semblance of dual loyalty to LHH and CMS on the part of HSAG.

The three contracts and the single amendment totaled $14.27 million. Still, SFDPH asked San Francisco's Board of Supervisors to allow it to increase the three contracts to $10 million each and allow SFDPH to extend the three contracts to terms of 10 years each without needing to return to the Board of Supervisors for contract extension permission.

The Board balked at the ten-year terms, holding them to their initial terms through the end of December 2022 (except the HMA contract, which runs through June 2023), and prevented each of the three contracts from ballooning to $10 million apiece.

So, observers thought the costs to rescue LHH from closure had been capped to a more reasonable $15 million combined expense. Turns out, the observers were wrong.

As noted, the LHH Settlement Agreement approved on the second reading by the Board of Supervisors on November 8 authorized LHH to enter into a sole source contract to hire a Quality Improvement Expert at up to $3 million. Because SFDPH refuses to release public records providing the contract for the QIE, we don't know how close that contract will be to the $3 million authorized.

Then, on November 15, the Board of Supervisors agreed to award a First Amendment of $2 million to HMA, pushing its contract to a total of $5.86 million, as shown in Table 1, with no change to the contract term through June 30, 2023.

The HMA contract amendment involves the minor expansion of two of the initial contract scope of deliverables, including developing and integrating a comprehensive education rollout plan and infection control program enhancements.

Why that's worth an additional two million dollars isn't clear.

With the $5 million increase to the costs of rescuing LHH, it's unknown whether the now $20 million total will continue to rise before LHH obtains CMS re-certification, perhaps in mid- or late-2023. What is known is that the costs of City Attorney legal time and expenses that will be charged back to LHH and SFDPH may likely involve another million dollars more.

Update on LHH's So-Called "Revised Closure Plan"

Again, presumably, the Health Commission and Board of Supervisors should have been aware that the LHH Revised Closure Plan was mentioned 19 times in the Settlement Agreement. And presumably, the seven members of the Health Commission and 11 members of the Board of Supervisors should have asked to see a copy of the revised Plans to close LHH before agreeing to accept the terms of the Settlement Agreement.

But as of November 28, when asked again to provide a copy of the Revised Closure Plan, SFDPH Public Records Request staff continues to insist the Revised Plan is confidential attorney-client privileged under SF Admin. Code §67.24 and California Government Code §6254(k), and it will only be provided as a courtesy after it is formally submitted to CDPH (which has presumably seen it as a signatory to the Settlement Agreement).

LHH, through SFDPH, is attempting to have its $20 million cake and eat it, too.

LHH and the Health Commission have downplayed the controversy over the potential closure of LHH — essentially engaging in gaslighting — and have been less than transparent with members of the public about whether they are meeting various deadlines swirling around the LHH Settlement Agreement.

All along, SFDPH and LHH have failed to show that they know what they are doing. It's long past time for them to be more honest and transparent with the public they serve!

In order to keep LHH open, observers had been hoping LHH and SFDPH were meeting CMS deadlines. News that surfaced on December 2 that the Root Cause Analysis report due to CMS on December 1 was missing in action at SFDPH is deeply troubling.

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 monette-shaw@westsideobserver.com.

December 6, 2022

Renne's Grandstanding Gambit Goes Belly-up

LHH Patients' Class Action Lawsuit Tossed Out

Public still denied basic information about the surviving Settlement

•••••••••• November 21, 2022 ••••••••••

by Patrick Monette-Shaw

Because she had not exhausted available administrative remedies, former City Attorney Louise Renne's lawsuit, attempting to represent patients of Laguna Honda Hospital, appears headed for defeat.

Current City Attorney David Chiu effectively snatched away any chance of success Renne had at prevailing in her lawsuit.

As the Westside Observer has previously reported, former City Attorney Renne has a long history of grandstanding on issues related to Laguna Honda Hospital (LHH), in part to be seen as a loyal ally of the hospital and to burnish her image and legacy.

As I reported in August 2022, Renne and her allies have long sought to take credit for the Tobacco Settlement Revenue lawsuit. She claimed that she conceived and won slightly over $1 billion in City revenue by 2060. The Settlement money was used, in part, to pay for the LHH rebuild project. Renne had done no such thing.

Indeed, Supervisor Angela Alioto developed the novel strategy to sue Big Tobacco in 1996. Just five minutes before the Supervisors were scheduled to vote to approve suing the tobacco companies, Renee waltzed into then-Board President Alioto's office in an attempt to stop the Board from supporting the lawsuit. Alioto had already lined up the eight votes necessary to prevent a mayoral veto by then-Mayor Willie Brown.

Separately, Renne formed her non-profit Laguna Honda Foundation to raise money to buy furniture, fixtures, and equipment (FFE) for the new LHH replacement hospital. Still, as reported last August, she raised not one penny for the rebuild or the FFE, but was rewarded with having the hospital's new lobby named in her honor — a misplaced reward if there ever was one.

Renne filed a class action lawsuit on behalf of four LHH patients at risk of being discharged from the hospital. Perhaps she wanted to be seen for her philanthropic efforts on behalf of LHH and its residents following the loss of LHH's Centers for Medicare and Medicaid (CMS) funding stream.

Judge Tosses Renne's Class Action Lawsuit

On August 3, 2022, Renne's law firm filed a class action lawsuit on behalf of four LHH residents alleging that CMS' decision to terminate funding to Laguna Honda didn't provide for their safe and orderly transfer to alternative skilled nursing facilities. The termination, therefore, violated the Americans with Disabilities Act, the Rehabilitation Act, and the Administrative Procedure Act (United States District Court for the Northern District of California, Case No. 3:22-cv-04501).

On November 11, a Google Alert e-mail tagged for any news involving Laguna Honda Hospital reported:

"Patients and residents of Laguna Honda Hospital can't proceed with a proposed class action challenging a plan to close the skilled-nursing facility until administrative remedies have been exhausted with the Department of Health and Human Services, a federal court in California ruled."

The Google alert contained a link to a November 10 Bloomberg Law story but prevented reading the full article restricted behind a paywall. However, Bloomberg Law's Help Desk kindly provided access to the full article.

Judge William Alsup of the U.S. District Court for the Northern District of California denied Renne's lawsuit seeking class action certification on behalf of other similarly situated LHH residents. Alsup's November 9 ruling asserted the Court lacked subject matter jurisdiction and said the case should be dismissed on the same grounds.

Reportedly, CMS and the California Department of Public Health (CDPH) argued to Alsup that the Court lacked jurisdiction over the case because the plaintiffs hadn't presented their claims to the U.S. Department of Health and Human Services and had not exhausted administrative remedies.

Alsup said that Renne and her clients' claims — including claims for benefits under the Americans with Disabilities Act and the Rehabilitation Act that are subject to administrative review — "arise under the Medicare Act and must be channeled through DHHS before judicial review becomes available." He also noted that the Medicare Act does not allow plaintiffs to circumvent the administrative review process by seeking judicial remedies.

Alsup went a step further. He asserted that, even if the LHH patients' claims that the LHH Closure and Patient Relocation plan violated the Administrative Procedures Act and patients' due process rights, those claims are "inextricably intertwined" with a claim for benefits subject to administrative review by DHHS.

Of note, although current City Attorney David Chiu had filed three administrative appeals with the DHHS and his own separate Federal lawsuit (United States District Court for the Northern District of California, Case No. 3:22-cv-4500-WHA), Renne and her clients were not parties to Chiu's legal remedy actions.

Alsup gave the plaintiffs 14 days to contest the dismissal of Renne's District Court case. The Renne Law Group did not respond to a request for comment about this article by press time and didn't respond to whether it intends to contest Alsup's dismissal of the case.

Renne , having served for 16 years as San Francisco's City Attorney, should have known she could not hopscotch bypassing DHHS administrative review by filing a lawsuit in a Federal trial court.

City Attorney David Chiu Withdrew DHHS Appeals and Lawsuit

As the Westside Observer reported on October 25, just six days after news surfaced on October 12, City Attorney David Chiu had struck a problematic Settlement Agreement deal with CMS and CDPH. San Francisco's seven-member Health Commission entered an hour-long closed session on Tuesday, October 18. It approved the proposed settlement agreement that had not been provided to members of the public for review in advance.

Then on November 1, San Francisco's Board of Supervisors also entered into closed session and approved the proposed settlement agreement on first reading. A week later, City Supervisors approved it on second reading on November 8. The next day, Mayor Breed approved the settlement on November 9, on the same date Alsup tossed out Renne's lawsuit.

The Settlement Agreement required Chiu to withdraw his three appeals to the U.S. DHHS, and also withdraw his own Federal lawsuit. By withdrawing his appeals and lawsuit, Chiu had to have known he was dooming Ms. Renne's separate class action lawsuit to failure.

Paragraph 36, "Withdrawal of Appeal" (page 18) of the Settlement Agreement states LHH must withdraw its appeal with prejudice pending before the U.S. Department of Health and Human Services, Departmental Appeals Board, Civil Remedies Division, Docket No. C-22-555.

Paragraph 37, "Dismissal of Complaint" (page 19) states the City and County of San Francisco must file a Notice of Dismissal of its lawsuit, Case No. 3:22-CV-4500, also with prejudice that had been pending in U.S. District Court for the Northern District of California.

Paragraph 38, "Waiver of Appeal Rights" stated LHH agreed to waive all of its rights to administratively or judicially challenge CMS and CDPH over LHH's decertification and termination from Federal reimbursement by CMS.

"Dismissal with prejudice" means that Chiu cannot refile the same claims again in the same court or with DHHS.

Some observers initially thought Alsup's ruling couldn't stop Renne from trying to work with DHHS again to mount new administrative appeals on behalf of LHH residents. But the dismissal with prejudice provisions in the Settlement Agreement suggests Chiu all but threw Renne and her LHH lawsuit clients under the bus.

At this point, it seems extremely unlikely Renne would prevail in contesting Alsup's dismissal of her lawsuit.

"Revised LHH Closure Plan" Missing in Action

Chiu's Settlement Agreement approved by the Health Commission and Board of Supervisors made reference to a "Revised LHH Closure Plan" 19 times. Presumably Chiu must have seen, or perhaps helped write, the Revised Closure Plan. Also presumably, someone on the seven-member Health Commission and 11-member Board of Supervisors — or perhaps the Mayor herself — must have asked to see the Revised Closure Plan before approving the Settlement Agreement.

Paragraph 41 of the Settlement Agreement, "Public Disclosure" (page 20) states the Agreement is subject to disclosure in accordance with the Freedom of Information Act (FOIA) and/or in accordance with all applicable [local] laws and processes. All parties — the City of San Francisco, CMS, and CDPH — had consented to public disclosure of the Agreement and information about the Agreement.

In response to a records request to San Francisco's Department of Public Health (SFDPH) for a copy of the "Revised LHH Closure Plan," SFDPH responded saying that once the Revised Closure Plan is submitted to the California Department of Public Health it will be made public, despite the Agreement saying public disclosure is required.

SFDPH essentially admitted the Revised Closure Plan exists, but that SFDPH doesn't want members of the public to see it quite yet. You have to wonder why not. And you have to wonder whether Ms. Renne has seen it.

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 monette-shaw@westsideobserver.com.

November 21, 2022

Postscript

On November 14, Mr. Chiu formally withdrew his three U.S. DHHS Appeals with prejudice.  On November 15, Chiu also formally withdrew his U.S. District Court Federal lawsuit, again with prejudice.

Judge Alsup’s full Order dismissing Ms. Renne’s class action lawsuit on behalf of four LHH residents became available following publication of this article.  Of note, Alsup’s full Order repeated multiple times that the four plaintiffs may seek judicial review of the LHH relocation plan on their own after the City and County of San Francisco exhausts administrative remedies (but apparently not as a class action case).  He noed that judicial review by plaintiffs — after the City and County exhausts administrative remedies — “is favored,” provided that they litigate for themselves once the DHHS administrative procedures eventually run their course.

Of interest, when Alsup wrote his Order and when Bloomberg ran its article on November 10, Chiu’s appeals were still technically “pending” before a DHHS Administrative Law Judge.  But when Chiu withdrew his DHHS appeals four or five days later, Chiu essentially aborted the Appeals process, thereby not fully exhausting administrative remedies, as if the Appeals had never been filed.

It is thought the four LHH residents probably have no further judicial recourse, because the DHHS administrative remedies were simply withdrawn with prejudice, and not “exhausted” by the City before a DHHS Administrative Law Judge on the residents behalf — since withdrawing a case before its completion is thought not to have fully exhausted an available prescribed remedy.

City Attorney Alleged LHH Should Not Need Re-Certification … But

LHH Settlement Agreement Requires Re-Certification

City Attorney’s Legal Defenses Were “Dead to Rights,”
But Then He Rolled Over and Played Dead

•••••••••• October 25, 2022 ••••••••••

by Patrick Monette-Shaw

The proposed settlement involving Laguna Honda Hospital (LHH) requires the approval of the San Francisco Health Commission, the Board of Supervisors, and Mayor London Breed. It is a smokey backroom political deal that required City Attorney David Chiu to drop his Federal lawsuit and the three administrative appeals he had filed in exchange for the settlement agreement. These lawsuits named US Department of Health and Human Services secretary Xavier Becerra. It is a grave, costly mistake!

Why is it that after first saying LHH should not have to face re-certification, Chiu then did an about-face and agreed to drop both his Federal lawsuit and the three administrative appeals that only essentially delays LHH’s application for re-certification?

The settlement agreement is shrouded in secrecy and is not a transparent process shared openly with members of the public.

City Attorney’s Legal Filing Efforts

Chiu’s diligent efforts in filing his three appeals and his Federal lawsuit are known and open to the public.

Federal Lawsuit in US District Court

Chiu’s Federal lawsuit — filed in US District Court on August 3rd, 2022 — clearly stated that LHH should not have to be re-certified at all, and that CMS had improperly terminated LHH’s provider participation agreement and federal funding. Chiu had written:

“Further, Laguna Honda should not need to be recertified at all. Laguna Honda has filed three successive administrative appeals challenging the Centers for Medicare & Medicaid Services’ (“CMS’s”) termination of the facility and the statement of deficiencies that led to CMS’s decision to terminate Laguna Honda as a Medicare and Medicaid provider. If Laguna Honda is successful in its administrative appeals, Laguna Honda will obtain an order finding that CMS improperly terminated Laguna Honda’s Medicare and Medicaid provider agreements, and restoring Laguna Honda as a Medicare and Medicaid provider.”

Had Chiu prevailed with his Federal lawsuit, the entire fiasco would have ended abruptly, and LHH would have been “made whole,” ending the complete dispute.

Count One of Chiu’s lawsuit was titled “Violation of APA (5 USC § 706(2)(A) — Arbitrary and Capricious.” 

The Administrative Procedure Act (APA) governs arbitrary and capricious conduct, which is defined as “willful and unreasonable action without consideration or regard for the facts and circumstances.” Arbitrary and capricious is a standard for judicial review and appeal, often seen in administrative law cases (such as the three administrative appeals Chiu filed with the US DHHS.).

The APA requires courts — including the US District Court, Northern District of California — to “hold [as] unlawful and set aside” [any] agency action that is “arbitrary, capricious [or] an abuse of discretion,” which is what Chiu had alleged.

Count Two of Chiu’s lawsuit was titled “Violation of Procedural Due Process under the United States Constitution.” Chiu alleged CMS had terminated “Medicare and Medicaid reimbursements {to LHH] without just cause before the validity of Laguna Honda’s termination as a Medicare and Medicaid provider has been adjudicated through the administrative appeals process.” Therein, LHH was deprived of due process protections under the US Constitution.

Chiu’s lawsuit concluded with a “Prayer For Relief” asking the District Court to “Issue an injunction requiring Defendants to extend Medicare and Medicaid funding to Laguna Honda until Laguna Honda’s administrative appeal is finally resolved …” 

So, the California Department of Public Health (CDPH) acted arbitrarily and capriciously when it recommended that CMS terminate LHH’s Medicare and Medicaid provider agreement, and suspended all new admissions to LHH. CDPH and CMS violated LHH’s due process protections under the US Constitution.

Then, Chiu did an about-face and agreed to drop his assertion of due process violations in exchange for agreeing to the proposed smokey backroom deal settlement agreement on October 12th, 2022. 

Why would he drop his sound Federal lawsuit? What was in it for the City or for LHH? What is in it for Chiu?

Administrative Appeals to US DHHS

Chiu’s three administrative appeals to the US DHHS Department Appeals Board were crystal clear: He sought to have CMS’ survey findings and cited deficiencies reversed and rescinded, and sought to have LHH’s termination as a CMS provider reversed and overturned.

Chiu’s second appeal, dated April 25th, 2022 stated:

“For all of the reasons set forth herein [for an expedited Appeal], Laguna Honda respectfully requests that the DHHS, Departmental Appeals Board reverse CMS’ survey findings and imposition of remedies, including CMPs and DPNA between January 14th, 2022 and February 2nd, 2022, related to CDPH’s findings and rescind the deficiencies under F689 issued under Statements of Deficiencies dated December 16th, 2021 and January 21st, 2022 …”

The acronym “CMPs” stands for Civil Monetary Penalties, and “DPNA” stands for Denial of Payment for New Admissions. CDPH and CMS had levied penalties of $409,000 against LHH, it is thought, which Chiu believed were excessive and should have been reversed (overturned as fines improperly levied).

Chiu’s third appeal dated May 282, stated:

“CMS terminated Laguna Honda’s provider agreement as of April 14th, 2022. This appeal challenges the notice of termination and seeks to reverse that termination because CMS based that six-month cycle on the flawed F689 deficiency tag finding. … 

Because a successful outcome to this appeal would mitigate the harm to those patients, Laguna Honda respectfully requests an expedited hearing.”

Again, why would Chiu drop his three sound administrative appeals to the US DHHS Department Appeals Board, since they were crystal clear? The survey findings, monetary penalties, and denial of new admissions (DPNA) should all have been reversed, the deficiencies should have been reversed. And the CMS termination notice should also have been overturned, eliminating the need for LHH to apply for CMS re-certification with two CDPH re-certification inspection surveys.

By dropping both the Federal lawsuit and the three appeals, Chiu essentially agreed to require that LHH face re-certification by CMS. This left the ban on new admissions in place when patients desperately seek admission, and left the unresolved problem of permanently eliminating 120 beds at LHH.  

Why would Chiu agree to it?

Sudden Smokey Backroom Deal “Settlement Agreement”

The Westside Observer received an automated press release via e-mail from the California Department of Public Health (CDPH) Office of Public Affairs (OPA) on October 12th. It contained a joint statement between CMS, CDPH, and the City and County on developments related to LHH, indicating the three agencies had reached an “agreement in principle” to settle ongoing administrative proceedings and federal court litigation. It’s thought to be a tentative settlement agreement.

Later the same day, San Francisco City Attorney David Chiu’s office issued the same joint statement press release, and San Francisco’s Department of Public Health (SFDPH) and LHH also issued the same press release.

The Joint Statement indicated LHH will be allowed to continue receiving Medicare and Medicaid reimbursements for LHH’s [current] patients through November 13th, 2023.

The sudden proposed settlement agreement is contingent on LHH addressing quality improvements needed to ensure resident health and safety. The agreement asserts LHH as “aiming” to seek re-certification. “Aiming” is a dubious term, at best, and not at all reassuring.

The proposed agreement indicates transfers and discharges of current residents will remain paused only until February 2nd, 2023, with a possibility of a further extension contingent on LHH’s performance. 

The press release indicated the “City” (presumably the City Attorney’s Office) will submit the settlement agreement “in principle” to the Health Commission and Board of Supervisors, and the settlement agreement “will be executed and implemented once the Board [of Supervisors] and Mayoral approval have been secured.”

Slouching Towards Bethleham (and Bedlam)

The era of providing skilled nursing care to San Francisco’s most vulnerable and poorest residents is clearly falling apart, and the center has not held. But there may be no “second coming” to save skilled nursing beds from extinction.

The CDPH Press Release on October 12th and subsequent media coverage suggest additional issues not addressed in the agreement, including LHH’s 120-bed cut, the continued halt of admissions, perhaps until November 2023, and several other unresolved issues.

Health Commission Approves Settlement Agreement

On October 18th, within just six days following CDPH’s October 12th Press Release, the seven-member Health Commission entered an hour-long closed session. The session included City Attorney advice regarding Chiu’s Federal lawsuit in US District Court (Case No. 3-22CV-4500) against US DHHS and Xavier Becerra — and the proposed settlement agreement.

After deliberating with Chiu, the Health Commission voted to waive the attorney-client privileged portion of the Closed Session and disclose that the Commission had taken action to approve the proposed settlement.

Clearly, the Commission rammed the settlement agreement through the approval process without disclosure to the public. They denied the public’s right to see or weigh in on full details of the agreement — despite multiple public records requests, including two records requests from the Westside Observer. The agreement, shrouded in secrecy, will be heard next by the Board of Supervisors.

City Attorney Chiu participated in a Zoom call with members of the San Francisco Gray Panthers advocacy group and other invited public health advocates on Monday, October 17th prior to the Health Commission’s meeting. 

He did so because City officials were concerned about whether the Gray Panthers would support the settlement agreement. Were City officials worried about the support of other community groups?

Unresolved Issue: Eliminating 120 Beds

To put this in context, CMS adopted a new rule in 2016 requiring that any new skilled nursing facilities built after 2016 applying to obtain CMS provider participation reimbursement agreements could only have two-person bedrooms. When LHH began its application for re-certification, CMS asserted that LHH was starting over as a facility seeking new admission to the provider participation program; CMS considered it to be a new facility that must comply to the 2016 two-person new rule.

LHH, which opened in 2010, has 120 three-bedroom suites that were permissible when the architects designed the LHH replacement facility. So, LHH would now have to convert 120 three-bedroom suites to two-person rooms, therein losing 120 beds. That will result in forcing more and more patients who need long-term skilled nursing care into out-of-county facilities, adding up to hundreds of patients every few years.

During the Zoom call with the Gray Panthers prior to the Health Commission’s meeting, in response to a direct question about CMS’s insistence that LHH permanently eliminate 120 beds, Chiu would only meekly hide behind saying that the settlement agreement is “silent on the issue.”

City Attorney David Chiu and the full Health Commission both had to have known that, had Chiu prevailed, de-certification would be overturned. That means LHH would not need to apply for re-certification at all (which Chiu had alleged in his Federal lawsuit). Nor would it be held to the two-person bedroom 2016 rule, which would prevent having to eliminate 120 beds at LHH.

As it is, LHH lost 420 beds due to the massive cost overruns during the rebuild of the replacement project. It went from the planned 1,200 beds to just 780 beds when it opened. Losing another 120 beds at LHH means San Francisco will have lost a total of 540 SNF skilled nursing facility (SNF) beds at the LHHs campus alone. This loss ignores an already acute shortage of SNF bed capacity in-county, forcing more people into out-of-county placements. If LHH loses the 120 SNF beds, it will shrink from 769 to just 649 beds — just over half of the 1,200 beds it had for decades prior to its replacement project in 2010.

LHH’s acting CEO, Roland Pickens, suddenly started referring to the issue of the two-person bedrooms during the Health Commission’s October 18th hearing as an issue involving two-person bathrooms, rather than bedrooms. The sudden change to referring to it as a bathroom problem wasn’t explained, and none of the Health Commissioners asked about it.

Unresolved Issue: Blocking New Admissions

Chiu may not have informed the Gray Panthers and other invited healthcare advocates during the October 17th Zoom call that the proposed settlement agreement is probably also “silent” on the resumption of new admissions to LHH. Still, that appears to be the case because CDPH’s Press Release and media coverage have not mentioned whether the settlement agreement will allow new admissions to resume, assuming the Board of Supervisors approves the settlement agreement.

New admissions to LHH have already been blocked for seven months, since April 2022, because CMS has refused to pay for Medicare and Medicaid new admissions through the DPNA penalty when CMS decertified LHH. 

LHH has not sought other funding reimbursement sources (including supplemental City or State funding sources) since April 14th. It may take until November 2023 for LHH to obtain re-certification, given LHH’s slow progress in readying staff for CMS and CDPH reinspection surveys, which portends new admissions to LHH may end up blocked for a 19-month period.

Both the 120-bed reduction problem and the halt of new admissions to LHH reportedly result in a backlog of patient discharges from SFGH at great expense for an acute care hospital, preventing new admissions to SFGH.

Unresolved Issue: LHH Nursing Home Administrator

As the Westside Observer reported on June 5, 2022 the last time LHH was run by a licensed Nursing Home Adminstrator (NHA) was 18 years ago between 1998 and 2004 when Larry Funk was CEO. Funk was replaced when he and LHH doctors voiced opposition to the “flow project” — placing younger, able-bodied behavioral health patients from SFGH into LHH. It was an act of expedience due to the lack of behavioral health beds and facilities in San Francisco. Funk and several doctors opposed the move because LHH was not equipped and adequately staffed to provide the appropriate level of care to mental health patients.

LHH has been under the thumbs of SFDPH and SFGH management since 2004, with disastrous results.

The proposed settlement agreement is also “silent” about hiring both a NHA and an Assistant Nursing Home Administrator that Mr. Pickens had indicated on June 30 would be hired. The Health Commission didn’t disclose whether it is taking action to fill the NHA and ANHA positions at LHH quickly — since nursing home administrators are licensed to be experts in following CMS regulations governing skilled nursing facilities.

The Board and the Commission must end the flow project. And the settlement agreement must include hiring the needed NHA and ANHA positions. The Board of Supervisors and the Mayor must take action to budget for, prioritize, and rapidly hire the NHA and ANHA positions! 

Other Unresolved “Silent” Issues

Although members of the Health Commission may have received information on other unresolved issues during its closed session meeting on October 18th, the public was not informed about other significant issues.

First, was the S203,885 payment the Health Commission agreed the City must pay to settle Chiu’s Federal lawsuit is a new additional fine? Or was Chiu able to renegotiate the $409,000 fines and civil monetary penalties CDPH and CMSA had previously assessed against LHH? The public deserves the truth about this significant issue.

Second, was former City Attorney Louise Renne asked to drop and withdraw her separate Federal class action lawsuit filed on behalf of LHH residents? Was that a part of the settlement agreement Chiu reached?

Finally, the San Francisco Chronicle reported on October 13th that Chiu claimed “the settlement also includes a new [important] dispute resolution process [for the future] to avoid the kind of crisis that Laguna Honda and its regulators landed in this year.” Unfortunately, no details of any proposed new “dispute resolution process” has been made publicly available. And was the Health Commission informed of any new processes during its Closed Session briefing by the City Attorney? It’s hard to believe Chiu’s withdrawn Federal lawsuit would have pushed CDPH or CMS into issuing any new rulemaking efforts or dispute resolution regulations.

Failure to disclose these facts significantly disadvantages San Franciscans and the City’s most vulnerable residents who rely on Medicaid for their healthcare coverage. Denying full details of other potentially “silent” provisions in the settlement agreement before it is adopted and enacted by the Board of Supervisors and Mayor London Breed further relinquishes the public’s rights.

The whole Settlement Agreement should be public information immediately available. Otherwise, the Board of Supervisors will vote on it without input from an informed public.

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 monette-shaw@westsideobserver.com.

February 12, 2023

Ongoing Problems Threaten the Hospital’s CMS Re-Certification

Worrisome Laguna Honda Hospital Issues

•••••••••• October 12, 2022 ••••••••••

by Patrick Monette-Shaw

LHH’s Federal Funding Set to End in a Month, on November 13

LHH Not Prepared for CMS Re-Inspection as of September 16

LHH Behind Schedule Submitting CMS Re-Enrollment Forms

Health Department is Eliminating Certified Nursing Assistants,

Job Classification, De-Skilling Them to Patient Care Assistants

Update on City Attorney David Chiu’s U.S. DHHS Appeal

Laguna Honda Hospital (LHH) was fortunate when the Centers for Medicare and Medicaid Services (CMS) agreed to extend federal reimbursement to cover the costs of care for LHH’s residents through November 13.

We’re now just one month away from when federal funding for LHH is poised to end on November 13.  It’s unclear if LHH will seek an extension of the funding from CMS beyond November 13. Mayor London Breed and San Francisco officials have been curiously silent on whether the City will seek an extension beyond November 13 or might step in to pick up the costs of caring for LHH’s remaining 591 residents. And Governor Gavin Newsom’s office has also not indicated whether the State might step in to help with emergency funding.

When State surveyors inspected LHH on October 14, 2021, LHH’s census was 710 residents. At 591 residents still remaining at LHH as of September 26, that means 119 residents have either been discharged, have died, or were transferred to other hospitals for acute care conditions and have not returned to LHH.

Involuntary discharges of residents, most probably to out-of-county facilities, may resume on November 11. 

Most worrisome, the July 12 LHH Executive Team presented a report to the LHH-Joint Conference Committee (LHH-JCC) indicating (on page 7) that LHH would submit forms to obtain CMS Re-Enrollment by mid-August to begin the re-certification process, hoping to have CMS conduct an initial facility survey inspection by early September. It appears LHH may be well behind schedule, since it is thought the LHH-JCC has not been updated on whether LHH submitted the re-enrollment forms to CMS in mid-August, and the initial CMS facility survey was not conducted in September. LHH hasn’t indicated just how far behind schedule it is.

Some members of the community are worried about whether City Attorney David Chiu is going along with the shutdown plan for LHH, because of the lack of information on when Chiu’s three appeals — now consolidated into a single docket number case — before U.S. DHHS Administrative Law Judge Steven Kessel will be heard. Chiu faced an October 5 deadline to file prehearing exchanges about his appeals. [More below.]

Only a handful of issues relating to the situation at LHH have recently become available.

Reduction in Costs of External Consultants

The Westside Observer’s September 13 issue reported that three retroactive contracts San Francisco’s Department of Public Health (SFDPH) had issued to assist Laguna Honda Hospital (LHH) prepare for federal and state inspections and apply for Centers for Medicare and Medicaid (CMS) re-certification in order to allow LHH to resume patient admissions and avoid closure might conceivably cost up to $30 million in consultant fees, at $10 million for each contract. The three contracts had been introduced to the Board of Supervisors with terms potentially up to 10 years each.

The Observer is pleased to update readers that the three contracts appear to have been held to slightly over $15 million. On Wednesday, September 21, the Board of Supervisors heard the Tryfacta and Health Services Advisory Group (HSAG) contracts. The Committee adopted recommendations made by its Budget and Legislative Analyst (BLA) that the Committee amend its proposed Resolution by removing the provisions allowing SFDPH to extend the two contracts’ terms to up to 10 years, and/or increase the amount of both contracts to $10 million each. The Committee passed an amendment adopting the BLA’s recommendations, and forwarded a positive recommendation to the full Board of Supervisors to approve the amended Resolution, which will be heard in mid-October.

Given scheduling constraints, the Budget and Finance Committee hasn’t yet heard the third contract — for Health Management Associates (HMA) — by October 7, but by report SFDPH is expected to withdraw its proposal to potentially increase HMA’s contract to $10 million with a 10-year term.

The contracts will reportedly be held to their proposed original amounts, saving the City $15 million. The Tryfacta and HSAG contracts will end in December 2022, while the Health Management Associates (HMA) contract will end on June 30, 2023.  It remains unclear why the HMA contract needs to run until June 2023. As we had reported in September, LHH hoped to obtain CMS re-certification by December 2022.

As we also alerted readers in September, it will take ongoing vigilance by community advocates to monitor whether SFDPH will come back again and propose increasing the three contract amounts through additional amendments at a later date.

LHH Unprepared to Pass CMS Re-Certification

From the BLA report issued on September 16, 2022 the Observer first learned LHH was not prepared as of July 19 — months after the three contractors were brought on board — to pass a CMS re-certification survey in November, as initially planned:

“To prepare for recertification with CMS, DPH is undertaking mock surveys to simulate the pending CMS recertification review expected in November 2022. The first mock survey by DPH and Health Management Associates was completed in two phases in June and July 2022 and found that Laguna Honda Hospital would not pass a CMS certification survey.”

The September BLA report provided in a footnote a hyperlink to an 11-page report released by LHH’s acting CEO Roland Pickens dated as far back as July 19 that reported, in part:

“Based on the [first] mock survey results, Laguna Honda would not pass a CMS certification survey if it was conducted today. The mock surveyors cited 39 federal regulations violations, also known as  ‘tags’ [F-tags] as part of the statement of deficiencies. These tags reflect deficiencies hospital-wide [sic] and span nearly all disciplines including infection control, resident rights, freedom from abuse, neglect, exploitation; quality of care; and more.”

Why does infection control still remain a huge problem at LHH?

The report prepared by HMA is available here or here (if it is disappeared on-line), and contains nine pages of alarming findings of the on-going problems at LHH, despite the three consultant contracts that began as early as May, if not before.

The mock survey was conducted between June 22 and June 28 to assess LHH’s compliance with CMS’ Conditions of Participation for Skilled Nursing Facilities (SNF’s) and Acute Care hospitals. The mock survey revealed a total of 39 ongoing F-Tag deficiencies that correspond to federal regulations in 13 out of 21 of CMS regulatory groups.

The alarming mock survey findings included:

• Infection Control: Surveyors observed numerous failures to adhere to infection control policies and procedures including following proper hand hygiene and changing gloves, isolation precautions, and appropriate PPE use between activities or residents …
  
• Quality of Care: HMA surveyors noted a delay in care transferring residents to [the five-bed] Laguna Honda acute unit or other acute hospitals. There were also observations of failure to offer residents pain medication before treatments.
  
• Quality Assurance and Performance Improvement (QAPI): There was a failure to develop a systemic and data driven QAPI program, noting poor documentation that supports corrective actions to ensure resident safety.
  
• Food and Nutrition Services: There were noted failures to provide updated menus, multiple residents expressed dissatisfaction with food, and snacks were not offered at bedtime.  Also observed several clinical staff not following proper food handling procedures.
  
• Resident Assessments: Record reviews noted incorrectly coded resident MDS (minimum data set) transmitted to CMS.
• Comprehensive Resident Centered Care Plans:  Resident care plans are generic and not resident centered to each resident’s care goals.
• Nursing Services:  Observed multiple instances where staff failed to ensure timely assistance to residents in assisting residents with eating.

There were seven additional findings in other categories in the HMA summary of violations of the first mock survey. 

Director of Public Health Grant Colfax was scheduled to present an update on the LHH Recertification and Closure Plan to the Health Commission on October 4, 2022, but he gave a scant update mentioning only that he was pleased with progress on the LHH units/neighborhoods in implementing their Quality Assurance and Performance Improvement (QAPI) plans. While that is clearly of interest to CMS for re-certification of LHH, Colfax mentioned nothing else about the many problems LHH is facing to pass re-certification survey inspections, described in more detail below. We’re just a month out from when federal reimbursement is set to in November, and the only thing Colfax could bring himself to comment on was the QAPI initiative.

As part of the plan of corrections following the mock survey, LHH CEO Pickens announced that a Nursing Home Administrator (NHA) position has been added. Pickens failed to mention that the NHA is actually an HSAG employee, who is a temporary authorized through December 31, 2022.

For its part, the July 19 HMA report noted that a Nursing Home Administrator consultant position was added to the HSAG contract to provide expertise to attain compliance with regulations specific to nursing homes. That’s because experienced, licensed Nursing Home Administrators are required to be well versed on CMS regulations SNF’s are required to comply with.

The Westside Observer placed a records request on September 5 to see whether LHH has actually advertised job posting announcements, or had begun to recruit, for a permanent Nursing Home Administrator (NHA) and an Assistant Nursing Home Administrator (AHNA) that Pickens had included on his June 30 LHH major reorganization org chart. SFDPH responded saying it has “no responsive records,” apparently meaning the job postings have not been released and no recruiting efforts to fill the two positions have begun since July.

LHH hasn’t employed a Nursing Home Administrator for the past 18 years, when it replaced Larry Funk with John Kanaley as LHH’s CEO, as reported in July. Had SFDPH realized the value of having LHH run by a NHA deeply experienced with CMS regulatory compliance, LHH might not now be in the mismanagement mess it is has been in for well over a decade.

One observer wondered whether recruiting for the NHA and AHNA positions is being delayed until LHH learns whether it will pass its two CMS recertification inspections, because if it doesn’t pass recertification there might be no need for either of the two positions.

Scope of Services Expanded for HSAG

Neither the initial HSAG contract nor its First Amendment adding $5.2 million to the contract went into much detail about the scope of services to be provided for the now $6,989,564 total contract.  The initial HSAG contract was for HSAG to perform survey readiness assessments and mock CMS audit surveys of Laguna Honda Hospital.

Perhaps as a result of the dismal findings from the first mock survey, for the Board of Supervisors Budget and Finance September 21 meeting the BLA revealed more details about the scope of services HSAG is to perform to justify increasing the total contract amount to just under $7 million.

HSAG’s expanded scope of services includes seven areas, including:

• Conducting instructional sessions for hospital staff and creating a weekly “Teach-Back” document for managers to validate staff knowledge regarding the topics of focus for each week.
• Focused reviews of [patient] care plan development, medication management, and patient chart review to address gaps identified in the mock survey findings.
• Providing unit-based rounding (13 patient units across three nursing shifts daily with 70 data points of review per unit), staff interviews, and documentation review to identify system vulnerabilities and present mitigation strategies.
• And four other tasks essentially involving hospital administrative duties.

Why Is a Budget Wonk an LHH “Incident Commander?”

Baljeet Sangha is the Chief Operating Officer and Deputy Director of the San Francisco Health Network [of community primary care clinics and centers] in the San Francisco Department of Public Health.  He was appointed as the Laguna Honda Hospital CMS Recertification Co-Incident Commander. He’s a Manager VIII and earned $289,192 in the Fiscal Year ending June 30, 2022. 

The other Co-Incident Commander is Troy Williams, Chief Quality Officer for the San Francisco Department of Public Health’s Community Health Network, and was formerly SFGH’s Director of Quality Management. Williams’ job classification is as a Nursing Supervisor. He earned $326,388 in FY 2021–2022, including $62,582 in “other pay.” Williams, and Maggie Rykowski, SFDPH’s Chief Integrity Officer (whose job classification is also as a Nursing Supervisor) are prominently shown at the top of LHH’s August 2022 organization chart, along with Sangha. In earlier years, SFGH staff were not included on LHH’s org chart. It’s a clear signal that LHH is under the thumbs of this trio of SFDPH managers who have no experience running a skilled nursing facility.

During the September 21 Budget and Finance Committee Hearing on the HSAG Contract, Supervisor Connie Chan asked Mr. Sangha:  “What exactly do we expect for results and delivery?”

Sangha’s response to Chan was vague, but he did toss in:

“Those daily ‘roundings’ [across all shifts on the 13 resident neighborhoods] blow up into observations that in any one week can be 6 or 7 thousand observations, which entail [observing] an individual [employee] walking out of [a resident’s] room, have they performed hand hygiene and are they wearing the correct PPE[Personal Protective Equipment] and then through the whole cycle of the care delivery in the particular area. We are monitoring this and benefiting from the HSAG team coaching just-in-time teach-backs to make sure we effect culture change [of the employees] and partnering with staff and the Labor [Union] partners in those moments. That is really what we are tracking.”

In his reply to Chan’s question about what the City can expect in the way of results on the now almost $7 million contract, Sangha focused on HSAG providing daily roundings to observe whether nursing staff have performed hand hygiene and whether they are they wearing the correct PPE, and HSAG providing just in time teach-backs to effect culture change.

Sangha’s testimony to the Committee was less than reassuring, given the $7 million contract and his salary level as a senior manager. His performance was even less reassuring about his Co-Incident Commander duties at LHH.

To the extent potential closure of LHH and loss of CMS certification is seen as an “incident” needing co-commanders, FEMA defines an incident commander as:

“[An] individual [assigned to be] responsible for all incident activities, including the development of strategies and tactics, and the ordering and release of resources. The Incident Commander has overall authority and responsibility for conducting incident operations and is responsible for the management of all incident operations at the incident site.”

My memory from when I was an LHH employee is that LHH’s CEO retained overall authority for preparing for CMS survey re-inspections when they rarely occurred, although senior nursing management and the Nursing Education Department staff were delegated responsibility for ensuring nursing staff were properly educated and trained on CMS F-Tags and strategies to pass an inspection.

So, why is a SFDPH senior “budget wonk” manager from SFDPH’s Health Network of community primary care clinics who probably has no job experience in a skilled nursing facility environment a Co-Incident Commander of the effort to help LHH regain CMS re-certification — rather than, say, an experienced, licensed Nursing Home Administrator? 

This is precisely why LHH has so many problems: SFGH and DPH senior managers having meddled for decades in LHH’s management and operations, with disastrous results!

As a former LHH employee noted in a September 2022 letter-to-the-editor of the Westside Observer:

“The current DPH/LHH leadership can not claim ignorance of SNF standards of care or choose which guidelines they will follow.  Their attempt to allocate up to ten million dollars to health care consultants is to redirect attention away from their inadequate administration of San Francisco health care.”

The letter’s author hit the nail on the head as several Westside Observer contributors have noted in many recent articles: LHH’s main problem is that of too much meddling from SFGH and DPH managers who have no experience in skilled nursing facility operations and following CMS’ regulations!

The letter echoed former District 1 Supervisor Sandra Lee Fewer’s observation in the August Richmond Review that “[The problems of substandard care at LHH] clearly could have been prevented and could have been remedied.”

LHH’s August COVID Outbreak and Infection Control Problems

It was somewhat concerning that Sangha alluded on September 21 to potentially continuing problems monitoring staff compliance with COVID-19 infection control precautions, such as hand hygiene and PPE.

After all, when LHH flunked its April 14, 2022 California Department of Public Health (CPDH) inspection survey that led to LHH losing its CMS certification on the same day, of the 22 F-Tag violations on the April survey report one involved F-Tag 880 Infection Control and Prevention. The State inspectors observed 15 nursing staff not following COVID precautions, including 9 Certified Nursing Assistants (CNA’s), 3 Licensed Vocational Nurses (LVN’s), 1 Patient Care Assistant (PCA), and 2 Registered Nurses (RN’s) not following precautions. Inspectors observed the staff not wearing gowns, not wearing N-95 respirators, wearing eye protection on the top of their heads, not wearing face shields, and donning gloves without first performing hand hygiene.

During its September 20 meeting, the Health Commission was presented a report by LHH’s acting-CEO Roland Pickens on behalf of LHH’s Executive Team, that revealed (on page 11) that when it comes to infection control preparedness for a CMS recertification survey, 70% — just 9 — of the facility’s 13 neighborhoods were in survey readiness compliance as of September 16. The other four unit neighborhoods were still not in survey readiness compliance as of September 16. Obviously, that’s not good.

One observer with clinical experience noted:

“If the staff hasn’t been trained and can’t even be educated to pass basic stuff like how and when to wash hands, and don and doff gloves [or gowns] … that is pretty severe mismanagement.”

It’s worrisome that we’ve reached the end of September, and Sangha and his team are still having to do “just-in-time teach-backs” of COVID infection control issues to direct patient care nursing staff.

And it’s troubling — but no great surprise — that the San Francisco Examiner ran an article on September 23, 2022 announcing that LHH had its biggest COVID-19 outbreak in August 2022, reaching 55 COVID-positive patient cases on August 25. LHH has long touted its national reputation in protecting LHH’s residents from COVID infections, and only had six patient deaths between 2020 when the pandemic began and 2021.

Unfortunately, the LHH COVID dashboard the Examiner quoted has had more deaths than the 8 deaths the Examiner reported. As of October 5 the dashboard now reports LHH had 5 additional patient COVID deaths during 2022, bringing total patient deaths to 11.

Indeed, the dashboard reports show that while LHH had a total of 78 patient COVID cases during 2020 and 2021 combined, LHH has had a total of 211 patient COVID infections during 2022. In addition, while the Examiner didn’t mention it, LHH had a total of 287 COVID infections among staff during 2020 and 2021 combined, but has had a total of 829 COVID infections among staff during the first nine months of 2022.  That suggests LHH’s infection control procedures may be lacking.

To be fair, it should be noted visitor COVID restrictions and precautions were relaxed in 2022 to allow for increased visitor access, which may have affected the increase in COVID cases among LHH’s residents and staff. LHH asserts it has increased visitor precautions since the August outbreak by reinstating on-site COVID testing to show negative results before visitors are allowed to enter the facility, and has implemented stricter PPE requirements for LHH staff.  Unfortunately, staff non-compliance with infection control measures remains an on-going problem.

The end of the Examiner’s article updated on September 28 quoted Pickens as saying: “At least until November 13 we are fighting one battle, and that battle is recertification.” But to many observers, the biggest battle LHH should be waging is improving the quality of the patient care LHH is mandated to provide, and rapidly improving staff compliance with infection control precautions urgently needed to pass re-inspection surveys.

Since all hospitals and skilled nursing facilities have to report their COVID cases and deaths to the California Department of Public Health (CDPH) which is then transmitted to CMS, CMS and CADPH inspection surveyors must be well aware of LHH’s August COVID outbreak and COVID cases and deaths during 2022 — at the same time that LHH is seeking CMS re-certification and continues to have ongoing infection control prevention deficiencies.

Update on LHH Acute Unit

In my September 2022 article, I neglected to include some relevant information concerning Pickens’ assertion LHH had been following the State of California’s Title 22 “Acute Care Hospital” guidelines, rather than focusing on CMS’ regulations governing skilled nursing facilities.

I neglected to note that LHH’s acute medical unit has just five beds. By contrast, LHH has a license for well over 700 skilled nursing facility (SNF) beds, and is considered to be a “distinct part SNF” affiliated with an acute care hospital. The main reason LHH has long held Distinct-Part SNF designation and held on to its five-bed acute unit licensing is because reimbursement to distinct-part SNF’s is significantly higher than reimbursement to free-standing SNF’s not affiliated with an acute care hospital. Historically, LHH’s acute medical unit is rarely used, because residents who need intensive acute care are routinely transferred to actual acute care hospitals for optimal care.

Of note, at some point in 2022 the LHH Executive Team stopped reporting the average daily census of patients in LHH’s acute medical unit to the LHH-JCC Commissioners, lessening transparency of hospital operations.  When Pickens raised the ruse that LHH had been following acute care hospital State guidelines rather than federal nursing home regulations, he neglected to say that for a number of years LHH’s acute unit has typically had an average daily census of less than one patient during any given month.

Indeed, meeting minutes of the LHH-JCC’s March 12, 2019 meeting contains testimony from Dr. Derek Kerr that asserted:

“Previously, this Committee addressed the low census on the Acute Rehab Unit, and a Kaizen exercise was organized to boost referrals. Not yet addressed is the very low census on the Acute Medical Unit — just 0.18 patients/day last year.”

The Acute Rehab Unit is for non-LHH patients admitted for intensive physical medicine and physiatry rehabilitation. It is not staffed with acute care nurses, and is not equipped with acute care medical equipment. Patients in the Acute Rehab Unit simply need intensive acute rehabilitation therapy. 

By contrast, the Acute Medical Unit is for LHH residents who need short-term acute medical care following medical decompensation who can be cared for in-house for a short period of time rather than being transferred to an acute care hospital having with more advanced medical equipment. 

Pickens’ claim LHH had been following acute care hospital guidelines was simply a ruse meant to deflect from LHH’s failure to comply with CMS’ guidelines.

LHH Personnel Staffing

An August 2022 report to the LHH-JCC showed that the vacancy rate of unfilled positions across all of LHH was 12%, which is considered to be relatively high for a City department.

Behavioral Health/Mental Health Staff

Given LHH’s high percentage of behaviorally challenged residents, the 48.8% vacancy rate among behavioral health staff at LHH is very concerning.

Of 1.0 budgeted FTE Psychiatric technicians, the single position is vacant, for a 100% vacancy rate. However, Pickens June 3 Pilot Org chart said there would be two psych tech positions. Does that mean that of both psych tech positions are vacant?  Of 2.0 budgeted FTE Clinical Psychologists, both positions are vacant, also for a 100% vacancy rate.

Of 2.0 budgeted FTE Psychiatric Social Workers, one of the positions is vacant, for a 50% vacancy rate. Of 5.0 budgeted FTE Senior Psychiatric Physician Specialists, 2.2 FTE positions are vacant, for a 42.7 vacancy rate.

How can LHH be providing an appropriate level of care for these residents safely with an almost 50% vacancy rate?

Nursing Staff

The August 2022 report to the LHH-JCC showed that the vacancy rate of unfilled positions across the eight job classification codes in LHH’s Nursing department is just under 10%, which suggests the quality of care being provided to LHH’s residents may be suffering, with overworked staff. 

Of note, the vacancy rate for nursing staff in the Certified Nursing Assistant (CNA), Patient Care Assistant (PCA), and Home Health Aide (HHA) job classifications stood at a combined 12.3% vacancy rate with a combined vacancy of 63 positions.  This doesn’t bode well for passing a CMS reinspection survey.  

There are some important differences in the job duties between the three job classifications. The main differences between them involve levels of education, license obtained, and salary levels. 

CNA’s are often responsible for setting up medical equipment such as IV drips and oxygen supplies, measuring vital signs, and observing changes in the patient’s condition, in addition to services provided by a PCA or HHA. CNA’s receive extensive training and certification from an authorized program, undergo supervised clinical experience, and passing the equivalent of a state license (certification) examination.

PCA’s — a.k.a., Personal Care Aides — typically assist with personal-care issues, including bathing, toileting, dressing, and grooming. HHA’s receive training, usually from a vocational school or community college, and then must also pass a state certification exam. They help with dressing, toileting, and checking vital signs. HHA’s can also assist with braces, artificial limbs, and caring for patients’ skin. Administration of medication is typically restricted to Licensed Vocational Nurses and Registered Nurses.

Mr. Pickens’ Executive Team Report for the August 9 LHH-JCC meeting reported on slide 20 that “40 patient care assistants would be on-boarded on September.” In response to a records request, SFDPH indicated that “offers were made to over 40 candidates, of which 28 accepted and either already started in September or will start in October.” That suggests that only 70% of the 40 anticipated  new hires were “on-boarded,” but SFDPH neglected to indicate how far into October some of the new hires will be brought on board.  Alternatively, the 28 new PCA’s represent just 44.4% of the 63 combined vacancies between CNA’s, PCA’s, and HHA’s. Again, this doesn’t bode well for passing a CMS reinspection survey, either, given the time it will take to train them on LHH’s operations and the overall staffing shortage.

LHH has “deskilled” many CNA positions to PCA’s and HHA’s as a budget-cutting measure.  De-skilling refers to changing the way a job is done so less skill is needed to do it, skilled labor is diminished, special skills to do the work is removed, and organizations can save money by paying workers less. 

Average annual total pay throughout SFDPH (not just at LHH) for a 2,080 hour-per year (full-time position) in the fiscal year ending June 30, 2022 for a CNA was $100,719 — compared to $81,063 for a PCA, and $76,701 for an HHA, all excluding fringe benefits. Deskilling the CNA positions saves the Department of Public Health a significant amount of money.

In the six years between FY 2015–2016 and FY 2021—2022, across SFDPH (including both SFGH, LHH, and its San Francisco Health Network clinics), the number of CNA positions has dropped by 45 (from 131 to 86) at the same time PCA positions increased by 22 (from 545 to 567).

A response to another public records request revealed that throughout SFDPH’s various divisions — SFGH, LHH, and its community primary care health facilities — the Department is eliminating CNA positions and converting those positions to lower-paid Patient Care Assistants through attrition.

You have to wonder why the CNA’s have allowed their union, SEIU Local 1021, to agree to the deskilling and elimination of their job classification code and jobs. After all, Local 1021’s current president is Theresa Rutherford, who began her employment with San Francisco’s Department of Public Health as a CNA working at LHH. Now that Rutherford is collecting an inflated salary working full-time for the Union, does she no longer care for the plight of her former LHH CNA co-workers?

Nutrition Services

Of the 22 F-Tag deficiencies across the nine different Regulatory Groups of CMS violations during LHH’s State survey between October 14, 2021 and April 13, 2022 that resulted in CMS de-certifying LHH, none of the deficiencies involved the Food and Nutrition Services regulatory group governed by Federal Code of Regulations §483.60. In other words, LHH’s Nutrition Services Department had not been found to have violated any of CMS’ F-Tags.

However, the HMA report following LHH’s first mock survey in late June noted severe problems with the Nutrition Services Department involving menus, food, and snacks at bedtime, noted above.

With that said, it’s very curious why the as-needed staffing contract with Tryfacta stated an immediate need to hire seven full-time equivalent (FTE) dieticians and two Dietetic Technician’s FTE’s on a temporary basis, between June 17 and December 17, 2022 — although if LHH has not yet regained CMS certification by December 17, we may see Tryfacta’s contract extended for a longer period of time.

Indeed, as the table included here shows, the Dietician and Dietetic Technician positions currently have no staffing vacancies. So, it’s not known why LHH’s Nutrition Services Department needed to be staffed up with a total of nine additional FTE positions.

There are three issues regarding Nutrition Services and LHH’s kitchen, which appear to be separate issues potentially unrelated to the CMS re-inspection survey.

First, the need to replace LHH’s kitchen floor has been presented to the three JCC Health Commissioners during LHH-JCC meetings. By report, when the replacement hospital was opened in 2010, the kitchen floor contained embedded glass, which broke due to heavy kitchen equipment and carts being used. That led to severe water damage in the kitchen, which then led to mold problems. No information has been provided about the project timeline or whether the project has been completed. A records request was placed to find out the budgeted dollar amount to replace LHH’s kitchen floor and the project timeline.

Second, by report the freezers in LHH’s kitchen have been broken down for months and LHH reportedly had to rent freezer truck(s) parked in LHH’s parking lot. Another records request was placed to find out whether the freezers have been replaced yet, and the dollar amount to replace the freezers.

Third, during the LHH kitchen floor replacement project a vendor will presumably be required to provide food and meal delivery to LHH’s residents that meets State standards, including menus that address appropriate diets, texture modifications, variety, and cultural and resident preferences. Another records request was placed to find out whether an RFQ or RFP has been issued seeking qualified vendors to provide food and meal delivery to LHH’s residents during the LHH kitchen floor replacement project, and whether a vendor been selected.

SFDPH responded to the three records requests by invoking a 10-day extension allowed by the Sunshine Ordinance, and said responses to the three records requests will be provided by October 13, 2022.

Status of City Attorney’s Appeals to U.S. DHHS

There are concerns in the community that Mayor London Breed and those who serve her are posturing about rescuing Laguna Honda Hospital and may not be doing enough.

As I wrote in the end of July (“City’s Pathetic Defense of LHH”), City Attorney David Chiu had filed three appeals with the U.S. Department of Health and Human Services (DHHS) on February 15, April 25, and May 28, challenging findings by California Department of Public Health surveys and CMS’ decision to terminate LHH’s participation in CMS’ provider  reimbursement program.

On June 2, 2022 DHHS Administrative Law Judge (ALJ) Steven Kessel issued an order consolidating Chiu’s three appeals into a single docket number (C-22-555). Kessel set an August 31 deadline for CMS and an October 5 deadline for City Attorney Chiu to submit any “prehearing exchanges.” 

According to DHHS’ Department Appeal Board web site, unless an Administrative Law Judge directs otherwise, a prehearing exchange (or here) includes: lists of proposed exhibits and proposed witnesses; copies of proposed documentary exhibits; written statements (sworn affidavits or statements made under penalty of perjury) of all proposed witnesses offered in lieu of direct testimony; any prior statements of proposed witnesses other than those offered by proposed witnesses that relate to issues which might be raised at hearing; and a prehearing brief that provides a party’s written arguments about all matters of law and fact(s) at issue in the case.

Presumably, LHH’s October deadline was set so that our City Attorney could potentially raise any objections to materials and issues CMS may have chosen to submit to Kessel.

Other rules for prehearing submission requirements include:  The ALJ may order other prehearing submissions in addition to those stated above; in complex cases, the ALJ may order two exchanges of proposed exhibits and lists of exhibits and witnesses; each party must file all of its prehearing submissions at one time even if it files the submissions prior to the deadline the ALJ established, and may not file its submissions piecemeal; untimely submissions are prohibited; and a party may not call a witness at an oral hearing who was not listed on that party’s witness list or offer an exhibit not listed or timely furnished to the opposing party.

On October 5, the Westswide Observer submitted a records request to the City Attorney Chiu’s office requesting the entire packet of prehearing exchanges Chiu filed with Judge Kessel. The City Attorney’s office responded to our immediate disclosure records request providing Chiu’s prehearing exchanges on an expedited basis on the same day.

The single PDF file provided by Chiu’s office is a 4,891-page document, and is 357 megabytes in file size. The Observer extracted Chiu’s Prehearing Exchange Brief to Administrative Law Judge Steven Kessel, and also extracted Chiu’s Witness and Exhibit lists.

In the Introduction section of Chiu’s Prehearing Exchange Brief (starting on page 6) he asserts that the California Department of Public Health (CDPH), “erroneously assessed a violation of 42 C.F.R. Section 483.25(d) based on the mere presence of illicit drugs and contraband in the facility.”

§483.25 of the Code of Federal Regulations governs “Quality of Care.”  There are 17 F-Tags covered under this section and all of them constitute sub-standard quality of care. Chiu’s initial Appeal filed on February 15, 2022 and two additional appeals focused heavily on asserting CDPH had wrongly found violations around incidents involving F-Tag 689, “Free of Accident Hazards/Supervision/Devices.” Chiu’s three appeals filed with the U.S. DHHS Appeals Board have respectfully disagreed that any of the illicit drugs and contraband found with LHH residents cited as incidents were “accidents” or “hazards” under F-Tag 689.

Chiu’s 30-page Brief asserts CDPH applied a strict liability standard against LHH, in error. 

As a quick summary, the Introduction to his Brief states “Laguna Honda requests the court overrule CMS’s remedies and its decision to terminate Laguna Honda’s Medicare provider agreement. Laguna Honda also requests that the court find that CMS erred when denying payments for new admissions, and when assessing the civil monetary penalties associated with Section 483.25(d).”

According to DHHS’ Department Appeal Board a hearing date before Judge Kessel has not been set yet. Watch this space.

As strong as Chiu’s Brief appears to be at having a shot of prevailing on its merits, having seen a few of Judge Kessel’s rulings in a handful of other cases there are concerns Chiu’s Prehearing Brief and three Appeals may not convince Kessel.

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 monette-shaw@westsideobserver.com.

October 12, 2022

Taking Ownership of SFDPH’s Mistakes

Rising Costs to Rescue Laguna Honda Hospital

Potential Bombshell News

LHH Was Following State Acute Care Hospital Regulations, Not Federal Long-Term Care Skilled Nursing Facility Regulations

Failure to Implement “Critical Element Pathways” Education May Have Affected LHH’s Loss of CMS Certification

•••••••••• September 13, 2022 ••••••••••

by Patrick Monette-Shaw

Recent Developments

All advocates and San Franciscans who support Laguna Honda Hospital and Rehabilitation Center (LHH) want — above all else —our beloved skilled nursing facility to remain open. 

They want to secure re-certification of LHH by the Centers for Medicare and Medicaid (CMS) to resume receiving federal funding to rescue the hospital and preserve its mission to care for the most vulnerable among us, particularly elderly and disabled residents who rely on Medi-Cal funding for healthcare in their time of great need.

We all knew this might come with a hefty price tag.  But just how large will that price tag grow?

How could LHH failto implemented training on CMS’ “Critical Element Pathways” program before now, and how could LHH have been following the wrong Federal and State regulatory guidelines?

Escalating Consultant Costs

As Dr. Derek Kerr first reported in the Westside Observer on June 22, 2022, the San Francisco Department of Public Health (SFDPH) — through its governing body, the Health Commission — approved two contracts with external consultants hired to guide LHH back through the process of re-gaining CMS certification.  One contract with Health Management Associates was for $3.7 million, and a second contract with Health Services Advisory Group (HSAG) was for $1.8 million, for a combined cost of $5.5 million.

Two months later, the Health Commission’s August 2 agenda announced a third contract with Tryfacta, Inc. to provide as-needed staffing during the LHH Re-certification Project for the period June 17, 2022 to December 31, 2023, which I reported for the Westside Observer on August 17, 2022.  [It turns out the December 31, 2023 ending date for the Tryfacta contract listed on the Health Commission’s meeting agenda was an error by the Health Commission’s Secretary; the initial Tryfacta contract is set to run only until December 17, 2022.]

The as-needed staffing contract with Tryfacta has an immediate need to hire seven full-time equivalent (FTE) dieticians and two Dietetic Technician’s FTE’s.  The contract specifies there may be optional or future needs to hire 14 other types of clinical occupations, including Registered Nurses, Certified Nursing Assistants and Certified Medical Assistants, Pharmacists, Social Workers, and Physicians, among others, but didn’t indicate how many FTE’s in each job classification category may be needed.

More news about the LHH contracts broke on September 1 when the Board of Supervisors meeting agenda for Tuesday, September 6 was posted on-line.  It turns out all three of the contracts to assist LHH had not yet been approved by the Board of Supervisors, and were introduced for retroactive approval on September 6.  The Board did not vote on the three contracts on September 6, because they still face a hearing before the Board’s Budget and Finance Committee for potential approval.

Most disturbing, the initial HSAG contract is already seeing its first amendment, increasing the contract by $5.2 million to a total of $6,989,564 — just $10,000 shy of $7 million.

That brings the three consulting contracts to a total of $14.4 million.  There are $793,873 in other known costs of the LHH crisis, shown in Table 1, pushing total costs of the LHH crisis to date to $15 million, and counting.  That $15 million represents a 172.7 percent change increase within just over two months from the $5.5 million in costs for the first two consulting contracts we learned about from Dr. Kerr in June.

Those costs could get much worse, because the Board of Supervisors was presented on September 6 with the three Resolutions that were introduced by the Department of Public Health on August 12, 2022 while the full Board was out for its August recess.  All three Resolutions were referred to the Board’s Budget and Finance Committee but have not yet been scheduled for Committee-level public hearings.

The three Resolutions involve retroactive approval of the HMA contract, the HSAG contract and its first contract Amendment, and the Tryfacta contract.

Of interest, the $5.2 million HSAG contract amendment includes $ 1,468,800 (28.25 percent of the $5.2 million total) for two of LHH’s new positions — an apparently licensed Nursing Home Administrator (NHA) and a licensed Assistant Nursing Home Administrator (AHNA).  HSAG’s contract amendment itemizes 3,672 hours being billed at $400 an hour for the two positions, but it’s not clear or known yet whether that is to “rent” HSAG consultant staff to fill those two positions on an interim basis, or whether the contract is for training costs to educate LHH new employees who may have already been hired to fill those two positions.  On the one hand, it sounds like LHH may take until the end of 2022 to recruit and hire employees for the two positions.  On the other hand, SFDPH and LHH staff have not been forthcoming answering public records requests about the question of whether LHH has actually hired the HMA and AHNA positions, or whether LHH is just “renting” HSAG through December 17 to fill the two positions temporarily.

Nor has SFDPH indicated whether there will be additional HSAG contract amendments to continue providing HSAG consultant staffing to fill the NHA and ANHA positions, or training LHH staff following December 17, 2022, when HSAG’s contract is set to end — assuming LHH may not hire staff to fill those two positions by December.

Trojan Horse Caveat in the Three Resolutions

Unfortunately, each of the contracts with the three consultants contained a potential Trojan Horse dancing through the legislative language, similar to the following:

“ … and to authorize the Department of Public Health to enter into any amendments or modifications to the contract that do not otherwise materially increase the obligations or liabilities to the City and are necessary or advisable to effectuate the purposes of the contract or this Resolution.  …

FURTHER RESOLVED, That the Board of Supervisors authorizes DPH to extend the term and/or increase the amount of the agreement, not to exceed ten (10) years or $10,000,000, to the extent that DPH determines, in consultation with the City Attorney, that such modification is in the best interests of the City, does not otherwise materially increase the obligations or liabilities of the City, is necessary or advisable to effectuate the purposes of the agreement, and is in compliance with all applicable laws; … ”

Although the language said SFDPH couldn’t materially increase the “obligations” of each contract, the language also seemed to authorize SFDPH that it could raise each contract to not exceed $10 million.  

One knowledgeable observer believed this may have provided wiggle room for SFDPH to increase each of the three contracts to $9,999,999 — a dollar shy of each $10 million-per-contract threshold — that might push the contracts to $29,999,997, without SFDPH having to come back to the Board of Supervisors for approval to increase the costs of the three contracts.

The possibility that the current $14.2 million total costs of the three contracts might be raised to a total of $30 million seemed excessive to most observers, even to all of us who want LHH to be saved and preserved for future generations.

The Westside Observer alerted City Hall that the three contracts could be increased to $10 million each.  Sources indicated on September 7 that the legislative language allowing these excessive increases will be removed from the proposed Resolutions when they are heard by the Board of Supervisors’ Budget and Finance Committee.  We’ll see if that actually occurs.  The three Resolutions were not scheduled for the Budget Committee’s weekly meeting on September 14.  It will take ongoing vigilance by community advocates to monitor whether SFDPH will come back again and propose increasing the contract amounts through additional contract amendments at a later date.

LHH’s History of Incompetent Management

The current crisis facing LHH that began in October 2021 and resulted in LHH losing it CMS certification and loss of federal reimbursement in April follows a long history of incompetent management at Laguna Honda Hospital.  For instance, back in 2019 a scandal involving patient sexual abuse at LHH that dated back to 2016 erupted, forcing the ouster of LHH’s then-Chief Executive Officer, Mivic Hirose. 

As I reported for the Westside Observer in December 2019, when Hirose was fingered along with other LHH “leaders” as having contributed to the lax environment that contributed to the patient sexual abuse at LHH, she reportedly bemoaned the fact that under her own leadership, LHH did not have a “culture of patient safety,” when in fact LHH celebrates the national Patient Safety Awareness Week annually.  It had been Hirose’s job to instill that culture of safety among her own nursing staff.

After all patient safety is precisely why CMS and State inspection surveyors routinely inspect nursing homes in the first place.

Instead, Hirose instilled a culture of silence, which remains an on-going problem at LHH to this day.  As I noted in 2019, “A culture of patient safety is particularly vulnerable to fatality if it collides with a culture of silence speeding out of control, careening throughout a hospital for over a decade-and-a-half.”

LHH’s patient sexual abuse scandal in 2019 has cost the City $1.8 million between fines and lawsuit settlements.  But that amount will likely rise, because only one of the three patients who filed lawsuits involving their sexual abuse at LHH has been settled, for $800,000.  The other two lawsuits have not yet been settled, or announced by the City.

LHH’s lack of a culture of patient safety is still ongoing, as witnessed by the recent events we have been reporting on in the Westside Observer since May regarding the threat of closing LHH. 

As my 2019 article noted, Hirose began her career at SFGH in 1985 as a Medical-Surgical Staff Nurse, and became SFGH’s Medical/Surgical Nursing Director in 1999.  In 1999 Hirose transferred to LHH and became LHH’s co-Director of Nursing.  She’s essentially a SFGH management transplant, like many other senior managers at LHH.

Take John Kanaley.

Way back in 2003 and 2004, then-Director of Public Health Mitch Katz instituted his disastrous “flow project” to discharge dangerous, robust behaviorally challenged younger patients from SFGH into LHH, mixing them in with elderly vulnerable patients, many of whom had dementia’s, creating a volatile milieu for both patient populations.  Katz forced LHH’s Medical Director, Dr. Terry Hill, to resign, eliminated Mary Louise Fleming’s position as LHH’s Director of Nursing, and ousted LHH’s then Executive Administrator, Larry Funk.

Katz appointed John Kanaley as Funk’s replacement in November 2004.  There were serious concerns about Kanaley’s appointment, given his lack of credentials and qualifications.  Kanaley’s prior job experience was in facilities management, not hospital administration, and certainly not as a Nursing Home Administrator, as Funk had been.  Like Hirose, Kanaley had no experience working in a skilled nursing facility environment.  Katz reportedly told a contingent of senior LHH staff that it didn’t matter because he wanted somebody who would “kick the [LHH] doctor’s asses.”

Hirose was forced to resign as LHH’s CEO, but managed to land a cushy Golden Parachute job with San Francisco’s Department of Public Health.  In the fiscal year that just ended on June 30, 2022 (FY 2021–2022), Hirose managed to earn $248,600 in total pay as a Clinical Nurse Specialist.  [Clinical nurse specialists typically are not involved in direct patient care in any way.]  LHH’s then-Quality Management Director (Regina Gomez) and then-Director of Nursing (Madonna Valencia) were also forced out, and replaced by SFGH staff, at least temporarily.

And when LHH’s replacement CEO, Michael Phillips, was forced out in June 2022 — with the apparent approval and consent of SFDPH’s current Director of Public Health, Grant Colfax — he too was replaced by another SFGH long-time employee, Roland Pickens, who has a 20-plus year career at SFGH, including as SFGH’s Chief Operating Officer.

This long history of SFGH management transplants came from a culture of running an acute-care hospital at SFGH, a totally different culture than running a long-term care skilled nursing facility.  Unfortunately, the culture of acute-care management employees has exacerbated the culture of silence among nursing home trained staff too intimated by senior managers at LHH to speak out.

Much of LHH’s lack of culture of patient safety is related to the many ongoing state survey inspections involving what are known as “F-Tag” violations.

F-Tags and Critical Element Pathways

As I reported in the Westside Observer on July 19, LHH has known for years that if it violates CMS’ “Conditions of Participation” and receives substandard care F-tag violations, it could be decertified.  As it was, LHH had passed its CMS and State inspection surveys for well over three decades. 

I reported that when Congress passed the 1987 Omnibus Budget Reconciliation Act, CMS began developing rules and regulations for Skilled Nursing Facility (SNF) providers, to assure uniformity in survey processes of nursing facilities nationwide focused on guidance to protect the quality of care patients receive in SNF’s such as LHH, not arbitrary Kafkaesque rules.  Those rules involved incremental development of 21 separate Federal Regulatory Group categories that apply to Long-Term Care (LTC) facilities regulated by CMS.  Across all 21 regulatory groups applicable to LTC SNF’s, there are a total of 211 different named F-tags.  [A recent “LTC F-Tags Phase 2 Crosswalk” file posted on CMS’ website suggests there may be up to 249 F-Tags.]

I reported F-Tags (a.k.a., Federal-tag number) correspond to a specific regulation included within a Code of Federal Regulations.  For example, “F744” involves “Treatment/Service for Dementia” — a substandard quality of care deficiency — which refers to Federal Regulation 483.40 regarding “Behavioral Health.”  The F-Tags help nursing home inspection surveyors categorize violations that impact nursing home residents.

LHH’s own staff and the Department of Public Health had to have known about the F-Tag rules for 35 years, that they had followed mostly uneventfully for well over two decades.  After all, LHH has had a Department of Education and Training in its Nursing Department long before 1999 when I first started working there.  The Nursing Department’s Education and Training staff should have been educating LHH employees about the various F-Tag requirements all these years in order to pass annual inspection surveys.

LHH’s Nursing Education and Training Department also should have known that CMS had rolled out and began implementing a new Critical Element Pathways (CEP) program in November 2017, when Mivic Hirose was still LHH’s CEO.  Maybe Hirose was too busy implementing her culture of silence milieu among staff, and forgetting about developing a culture of patient safety to have noticed CMS’ new CEP program.

The CEP program appears to be under CMS’ Quality, Safety and Oversight Group in its Center for Clinical Standards and Quality.  The Center for Clinical Standards and Quality/Quality, Safety and Oversight Group has been updating its “Revised Long-Term Care Surveyor Guidance” to State Survey Agency (SSA) Directors for nursing home survey inspectors — who in our case, are affiliated with the California Department of Public Health (CDPH) — given that the CEP’s have been being rolled out since 2017.

The CEP’s involve investigative protocols to inspect quality of patient care concerns that arise and are not otherwise uncovered when examining F-Tags violations.  The CEP’s are used for investigating potential care areas of concern identified during on-site facility inspections.  CMS is apparently still updating the CEP’s and expects to complete the updates for download from the CMS website by October 24, 2022.

The current 41 CEP’s include very detailed questions, and depending on the responses received the CEP’s then guide surveyors through potential F-Tag violations to cite, if appropriate.  Two samples of the CEP’s include:

• Specialized Rehabilitative or Restorative Services Critical Element Pathway (CMS Form 20080, developed and dated May 2017)  This four-page form begins with instructing surveyors to observe a number of factors, beginning with observing residents receiving restorative therapy services as required per their assessments, plan of care, and physician orders.
  
  Surveyors then interview residents, their family or their representatives, and interview facility staff, including nurses and therapy aides, about what the current goals and restorative therapy interventions for the resident are.  Surveyors are then to review the resident’s medical records — including in the facility’s electronic health records (EHR) system, in LHH’s case, it’s “Epic” database system which has been somewhat problematic. 
  
  The records review seeks to determine whether the therapy or restorative services were provided and implemented as ordered, whether the care plan was comprehensive and documented in the records appropriately, and whether the services matched the level of assistance described in the resident’s plan of care and clinical record, among other issues.
  
  Based on observations, interviews, and records review, the surveyors are then guided through making up to eight Critical Element Decisions.  Those decision points include whether the facility provided or obtained the required specialized rehabilitative services, and if not, the CEP advises the surveyor to cite F-Tag F825, which is a Federal Code of Regulations #483.65 Specialized Rehabilitation Services violation. 
  
  An example of another decision point includes whether the facility provided the appropriate treatment and services outlined in the resident’s plan of care to maintain, restore, or improve the functional ability of the resident, and if not, the CEP advises the surveyor to cite F-Tag F676, which is a Federal Code of Regulations #483.28 Quality of Life violation.
  
  The decision points identify another six potential F-Tag violations based on the surveyor’s assessment and findings.  Additionally, this CEP suggests the surveyor should investigate eight other F-Tags for violations that could potentially apply to rehabilitative or restorative care.
  
• Accidents Critical Element Pathway (CMS Form 20127, developed and dated July 2015)  This six-page form begins with surveyors observing a number of factors, including whether care-planned interventions were in place for such things as residents who smoke; have potential entrapment issues with side rails, during staff-assisted transfers; need restraints; have a history if resident-to-resident altercations; are at risk for wandering; or need falls prevention interventions.
  
  Surveyors then interview residents, their family or their representatives, and interview facility staff, including nurses and therapy aides, and particularly by interviewing the facility’s direct care staff members such as nurses aides, therapy or restorative care staff, and nurses about the areas of concern specified above.
  
  The CEP directs surveyors to review records, including nursing notes, therapy notes, and interdisciplinary care team notes to see if preventative interventions for any of these areas of concern were documented in the resident’s medical records, particularly to check whether physician orders were not being followed, or whether care-plan interventions were not implemented.  The surveyors are directed to check whether records were revised to reflect any changes in the resident’s condition, whether any injuries related to an accident were assessed and treatment interventions developed and documented, and whether changes involving the resident’s risk factors were correctly identified and communicated to the staff and physicians.
  
  Again, based on observations, interviews, and records review, the surveyors are then guided through making up to five Critical Element Decisions.  Those Accident decision points include whether the facility developed a plan of care with interventions and measurable goals in accordance with the assessment, resident’s wishes, and current standards of practice to prevent accident(s), and if not, the CEP advises the surveyor to cite F-Tag F279 [an old F-Tag number that has been renumbered to F-Tag F656 named Develop/Implement Comprehensive Care Plan], which is a Federal Code of Regulations #483.211 Comprehensive Resident-Centered Care Plan violation.
  
  An example of another Accident decision point includes whether the facility reassessed the effectiveness of the interventions and reviewed and revised the plan of care, and if not, the CEP advises the surveyor to cite F-Tag F280 [an old F-Tag number that has been renumbered to F-Tag F657 named Care Plan Timing and Revision], which is also a Federal Code of Regulations #483.211 Comprehensive Resident-Centered Care Plan violation.
  
  The decision points identify another three potential F-Tag violations based on the surveyor’s assessment and findings.  Additionally, this CEP suggests the surveyor should investigate 30 other F-Tags for care area violations that could potentially apply to accidents.
  

Bombshell News:  LHH Had Been Utilizing Wrong Federal Regulations

On August 16, LHH’s interim CEO, Roland Pickens made a PowerPoint presentation on the status of the “LHH Closure Plan and CMS Recertification” to the full Health Commission.  In it, Pickens noted that LHH is undertaking three major education initiatives, including focusing on Critical Element Pathways (CEP), a relatively new program from CMS that state surveyors from California’s Department of Public Health (CDPH) use during on-site inspections of skilled nursing facilities in the State.

Pickens asserted the CEP program seeks to engage and support middle managers so they can support frontline staff.  Pickens claimed Laguna Honda will continuously use CEP’s to reinforce staff education and assess current hospital practices against the CMS regulations and F-Tags.

One problem is that CMS’ CEP program is not “new.”  It was developed long before CMS rolled it out in November 2017.  Why LHH is just learning of the CEP processes five years after they were implemented and LHH is now implementing them in LHH’s educational arsenal wasn’t explained.  And Pickens didn’t mention whether the CEP state surveyors may have apparently used since 2017 may have contributed to LHH having flunked its serial state inspections between November 2021 and April 14, 2022, setting off LHH’s current crisis.  A Health Commissioner asked a pointed question to this effect, but Pickens dodged and deflected from answering the direct question on August 16.

During Pickens’ slide presentation, he first indicated (on videotape) that incorporating the CEP’s into LHH’s staff education curriculum will get LHH on the right track towards CMs recertification:

“[CEP’s are] basically a tool that high-functioning nursing facilities use to ensure that all staff at the skilled nursing facility are aware of what the requirements are, but also are aware of how they in their discipline or Departments are expected [to perform] to ensure that, overall, the skilled nursing facility maintains [CMS regulatory] compliance.  So, these 39 critical pathways are being rolled out at Laguna.  There are 39 and we’ll talk a little bit more about how we’re implementing those, roughly every week, we go through 10 of the 39, so that on a monthly basis, we’ve covered all 39 of those CEP’s every month at Laguna.  It’s an on-going process and not a one-and-done.  It’s baking into the fabric of Laguna Honda Hospital.  This [is a] core element of using Critical Element Pathways, and these are the same tools that the [federal and state surveyors] use when they do the [inspection] surveys at Laguna.  So, we feel confident by incorporating this as the pillar in staff education that we’re on the right track.”

Pickens was mistaken.  There are not 39 CEP’s; there are 41 CEP’s. 

Given the two examples of CEP’s in this article above — the Accidents CEP and the Rehabilitative or Restorative Services CEP — it is hard to believe that whichever LHH staff are being trained on the CEP’s can digest and fully comprehend their education about 10 different CEP’s each week.  That may be an ambitious Johnny-come-lately, wishful-thinking goal in hoping to pass CMS’ rigorous recertification process.

Following Pickens’ slide show on August 16, Health Commissioner Tessie Guillermo specifically asked him whether the Critical Element Pathways may have played a role in previous regulatory inspection surveys of LHH.  In effect, Guillermo was asking whether LHH’s failure to follow the CEP’s may have played a direct role in LHH flunking it inspection surveys, and whether that may have contributed to CMS decertifying LHH in April 2022.  It’s a legitimate question … that deserves an honest answer.

Rather than answering Guillermo’s direct question, Pickens dodged answering, but blurted out a damning admission, however inadvertently, that LHH had been using the wrong regulatory guidelines:

“And an analogy would be that, you know, we’ve talked before that one of the findings that Laguna was structured more like an acute care hospital, so Laguna really focused on, for example, the State of California Title 22 [regulations]:   For acute hospitals [are] driven by the Title 22 regulations and that’s okay if you’re a [general acute care hospital] — but Laguna is a skilled nursing facility.  Like San Francisco General, they [LHH] utilize Title 22 general acute care hospital guidelines and the Joint Commission [on Accreditation of Hospital] guidelines as their pathways towards regulatory compliance.  So, while Laguna wasn’t a Joint Commission survey [facility], but it [LHH has] a State of California license so it had been using Title 22 and not using the CEP [guidelines] which are the standards for skilled nursing facilities, and Laguna wasn’t using them.  But now we are using the CEP’s [guidelines] and so, one would hope, one would think that perhaps had we been utilizing CEP’s in the past, perhaps, the facility could have been more in line with regulatory compliance and we’re moving forward to put that in place, because now we’ve learned and been educated that CEP’s are what high performing nursing homes use to maintain their [regulatory] compliance developed by CMS.”

There you have it:  Pickens seems to have clearly acknowledged LHH had been following the wrong regulatory guidelines by using California’s Title 22 “Acute Care Hospital Guidelines,” not using CMS’ “Skilled Nursing Facility Regulatory Guidelines” and CMS’ CEP’s.

Pickens also clearly stated that “had we been utilizing CEP’s in the past, perhaps, the facility could have been more in line with regulatory compliance …”— say, between October 2021 and April 14, 2022 when LHH’s problems with state surveyors began and LHH lost it’s CMS certification — LHH might have come into compliance with CMS” regulatory guidelines, and might have prevented it being ordered to discharge and transfer all of LHH’s residents out of county.

The meeting minutes of the Commission’s August 16 meeting reported that Pickens also said “that prior to the current LHH consultants coming on board, CEPs were not on LHH’s radar.  Instead, much of the LHH regulatory focus was on Title 22 acute hospital and Joint Commission guidelines. [Pickens] noted this was a deficit.”

For his part, Health Commissioner Edward Chow was quoted in the meeting minutes that “The LHH-JCC [the Health Commission’s LHH-Joint Conference Subcommittee] has been following the state regulatory results, but the existence of the CEPs was not mentioned in the JCC meetings until recently.” 

This appears to be another damning admission that apparently even the Health Commission was unaware that CMS had rolled out and implemented the CEP program in November 2017, and that Pickens and senior members of LHH’s management team had not educated or mentioned to the three Health Commissioners assigned to the LHH-JCC “until recently” that LHH was going to rapidly focus on rolling out the CEP’s as part of LHH’s education arsenal to regain CMS certification!

That’s where the problem of LHH’s long culture of silence history comes in.  To the extent LHH was following the wrong regulatory guidance of Title 22 acute-care hospital regulations, LHH’s Nursing Education and Training Department, LHH’s Director of Nursing (DON), LHH’s senior nursing department managers, and even LHH’s front-line nursing staff all should have spoken up and broken the culture of silence by saying something like:  “Wait!  We should be following CMS’ skilled nursing facility regulations, not Title 22.”

Apparently, the culture of silence is so ingrained and embedded at LHH that nobody spoke up … leading to LHH’s current dire situation.

The Board of Supervisors should investigate further and get a clear answer to Commissioner Guillermo’s direct question of whether the lack of implementing the Critical Element Pathways when CMS first rolled them out in 2017 may have played a role in previous regulatory inspection surveys of LHH, and whether that failure may have contributed to LHH losing its CMS certification.

After all, if the answer to that question is “Yes,” then anyone and everyone who was involved in not implementing the Critical Element Pathways program much earlier at LHH should also be terminated.  It should not be just former LHH CEO Michael Phillips whose head rolled and was terminated.  And if it involved Director of Public Health Grant Colfax, then he should be terminated, too.

As I wrote on the August 22 issue of the Westside Observer, former-District 1 Supervisor Sandra Lee Fewer had published a commentary in the August 5 Richmond Review/Sunset Beacon that SFDPH hadn’t taken ownership of the problems at LHH.  Fewer had astutely noted that “[The problems of substandard care at LHH] clearly could have been prevented and could have been remedied” and that “… [San Francisco’s] Department of Public Health and CMS need to own this …”

I agreed with Fewer that SFDPH hadn’t acknowledged ownership that it was itself responsible for the violations and potential closure of LHH, and it was long past time the health department and the Health Commission take ownership of its mistakes. 

Perhaps Pickens’ admission to the Health Commission on August 16 — that the lack of implementing the Critical Element Pathways program at LHH earlier may have contributed to LHH’s decertification, and Pickens’ acknowledgement that LHH had been following the wrong regulatory guidelines by using California’s Title 22 “Acute Care Hospital Guidelines,” rather than using CMS’ “Skilled Nursing Facility Regulatory Guidelines” had been a major mistake — may have been the first step in LHH and SFDPH taking ownership of its past mistakes.  We can only hope so.

Among other of LHH’s problems, its culture of silence must be stopped in order to end its substandard quality of patient care inspection violations!

Afterword

LHH’s CEO Roland Pickens is set to update the Health Commission’s LHH-JCC on Tuesday, September 13.  Unfortunately, his PowerPoint presentation shows on pages 8 through 10 that as far as LHH’s CMS recertification preparation goes, three Weekly [CMS] “Survey Readiness and Compliance Assessments” show that as of September 2, LHH is not meeting 90% or
greater progress towards its goals:

• The Environment of Care (EOC) standard as of September 2 showed 88% compliance, with only 10 of LHH’s patient care units prepared for CMS reinspection.  In the week between August 13 and August 19, only 5 of LHH’s 13 units were in EOC compliance.
  
  Pickens reported that key areas for improvement still include:  1) Call light response time; 2) Trash, linen, and cleanliness compliance; 3) Medication cart compliance; and 4) Biohazard/sharps containers. 
  
• The Hand Hygiene (HH) standard as of September 2 showed 78% compliance, but with only 4 of LHH’s patient care units prepared for CMS reinspection, nowhere near close to the 90% goal.  For the three weeks between August 6 and August 26, none of LHH’s 13 units were in HH compliance.
  
  Pickens reported that key areas for improvement still include: 1) Proper glove use; and 2) Ensuring soap and water is utilized when necessary [to wash hands].
  
• The Infection Prevention and Control (IPC) standard as of September 2 showed 87% compliance, but again with only 7 of LHH’s patient care units prepared for CMS reinspection.  For the three weeks between August 6 and August 26, none of LHH’s 13 units were in IPC compliance.
  
  Pickens reported that key areas for improvement still include:  1) PPE (personal protective equipment ) properly stocked on units; 2) Donning and doffing of PPE appropriately; 3) Clean linen compliance; and 4) Prompt disposal of open food items.
  

This presentation about LHH’s preparedness for a CMS reinspection survey should alarm the three Health Commissioners assigned to the LHH-JCC, and should alarm both the full Health Commission and the City’s Board of Supervisors.  After all, LHH’s problems in passing CMAS and CDPH on-site survey inspections reared its ugly head in October 2021.  We’re now just weeks shy of that one-year anniversary, and reportedly just weeks away from the CMS recertification survey inspections process to begin.

Is this what San Franciscans are getting for its $15 million investment to date for the three consultant contracts designed to help guarantee LHH obtains CMS recertification?

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 monette-shaw@westsideobserver.com.

September 13, 2022

Database Compounds Problems for Seniors at Laguna Honda

Useless “Epic” Database System

Good News:

LHH Pausing License Change to Remove 120 Beds

Bad News:

“Epic” Database Continuing Problems and LHH’s Missing-in-Action “Restorative Care” Program

•••••••••• August 18, 2022 ••••••••••

by Patrick Monette-Shaw

Before reporting problems involving the Department of Public Health's (DPH) $164 million database named "Epic" that affects patients discharged from Laguna Honda Hospital (LHH), a quick status update on the potential closure the Westside Observer has covered.

Recent Developments

On August 1, the Westside Observer published several articles indicating that the discharges of LHH residents have been temporarily "paused." Since then, there have been some significant developments.

• DPH Hasn’t Taken Ownership of the Problems at LHH.
• Another San Francisco westside neighborhood newspaper, the Richmond Review/Sunset Beacon, published a commentary by former-District 1 Supervisor Sandra Lee Fewer on August 5, in which she astutely noted that:

(The problems of substandard care at LHH) "clearly could have been prevented and could have been remedied. This is huge. Either people made mistakes, didn't care enough to be diligent, or lacked leadership and follow through. Regardless, DPH and Center for Medicare and Medicaid Services (CMS) need to own this …”

Fewer is correct, just as she so often was when she served on the Board of Supervisors: SFDPH and our Health Commission downplayed, even before mid-April when the potential closure of LHH was announced, that the severity of patient care violations that occurred at LHH between October 14, 2021 and April 14, 2022 were due to mistakes DPH staff made over a long, long time. Fewer noted that DPH hasn't acknowledged ownership and that it is itself responsible for the violations and potential closure of LHH! It's long past time DPH and the Health Commission take ownership of their mistakes.

• Laguna Honda Halted Prematurely Changing Its License to Eliminate 120 Beds 
• LHH is governed by the LHH-JCC, a Joint Conference Committee consisting of LHH senior managers and three Health Commissioners. The LHH-JCC’s agenda for Tuesday, August 9, announced LHH “anticipated applying for a reduced license in early September.”  A slide presentation for August 9 indicated the bed reduction from 769 to 649 beds was 66% complete, and completion was anticipated by August 19, 2022. An Environmental Services team had been working to clean the de-occupied patient spaces.
• Hearing of the plan to apply in early September to remove 120 SNF beds from its license was very concerning. It was premature and may have undercut the third appeal City Attorney David Chiu filed with the Federal DHHS Administrative Law Judge on May 28. Chiu's appeal challenged CMS' termination notice and seeks to reverse California Department of Public Health's (CDPH) deficiencies; if Chiu prevails, the requirement to eliminate 120 beds may go away.
• Advocates planned to ask the three LHH-JCC Health Commissioners to direct LHH, on behalf of the full Health Commission to halt any further work to complete the bed reduction and the application for a reduced license. The decision to apply for a new license should be made by a roll-call vote of the full Commission, not by three Commissioners on a subcommittee. The time has passed for the Health Commission to climb back into the driver's seat regarding the potential closure of LHH and permanent reduction of beds and patients at LHH.
• Luckily, Commissioner Edward Chow spoke up during the August 9 LHH-JCC meeting. He asked its management team to halt all major decisions involving LHH; wait until the conclusion of two Federal lawsuits, and wait for the outcome of three appeals pending before the DHHS Administrative Law Judge. If CMS' decertification is overturned, that may negate having to cut 120 beds and prevent the discharge of its current residents. There will be no need to apply for recertification. LHH's acting CEO, Roland Pickens replied that the hospital would "circle back" with Chiu's office to see if the hospital could postpone changing its license until later in the potential closure process. The community and the Board of Supervisors will need to continue monitoring this issue.


...all residents of long-term care skilled nursing facilities have the right to request all their medical assessments and care plans before being referred for relocation to another care facility... whether the records are in an electronic healthcare record or paper-based charts.”

• Changing Patient Admission Decisions
• Community advocates continue to push the Health Commission to ensure LHH's Medical staff are free to independently screen and reject patients from SF General Hospital (SFGH) who are unsuitable or unsafe. Time has long passed for DPH and LHH to discontinue repeating past mistakes from the failed 18-year “Flow Project” that has jeopardized patient safety at LHH.
• LHH’s Facility-Reported Incidents (FRI’s) Continue Unabated 
• LHH racked up another 23 Facility Reported Incidents (FRI's) in July alone, according to the LHH-JCC Regulatory Affairs Report for July 2022. It was presented on August 9. While CMS is breathing down the necks of LHH's management and nursing leadership, the fight continues to regain its CMS certification. 
• The report included another eight resident-to-resident FRI's, seven staff-to-resident incidents, and another seven anonymous complaints. Comparatively, LHH had only two anonymous complaints in March, no anonymous complaints in either April or May, and three anonymous complaints in June 2022. Management did not explain the sudden surge in anonymous complaints in July. None of the three Health Commissioners on the JCC bothered to ask.
• Over the past four months, there were a total of 43 resident-to-resident incidents and 21 staff-to-resident incidents. Between March and June, a total of 75 FRI’s were reported. The additional 23 FRI's in July pushes the total FRI's to 98 across five months. Why are FRI's going up and not down?
• Mounting Costs of Seeking Recertification for LHH 
• In May, the Health Commission announced hiring two consulting firms to ensure LHH could pass its recertification inspections. One, Health Management Associates with a $3.78 million contract, the other, Health Services Advisory Group, Inc. with a $1.78 million contract. 
• The Health Commission just approved a new $3.5 million contract with Tryfacta, Inc. on August 2, providing as-needed staffing during the Re-certification Project. It includes social workers from June 17, 2022 to December 31, 2023 — without explaining why it may take up to another 16 months. We've been led to believe that recertification would be completed by the end of 2022.
• That brings the minimum cost of the LHH “mistakes" that former Supervisor Sandra Lee Fewer referred to up to a staggering $9 million. And there's still a long way to go with the mounting expenses, including but not limited to the three appeals and the federal lawsuit City Attorney David Chiu filed. Will nobody be held accountable for the "significance" of the errors in judgment at LHH?
• Health Commission’s Continued "Closed Session" Secrecy
• The Health Commission has been hiding behind “Closed Session” secrecy, which continues unabated.
• Can we believe Acting CEO Roland Pickens, Director of Public Health Grant Colfax, and Mayor London Breed when they assert they “have nothing to hide?" Do they really believe in being fully transparent? The LHH-JCC must vote to disclose what secrets they are still trying to hide behind the veil of a “Closed Session.” They need to tell patients, their families, the Board of Supervisors, and all San Franciscans what they know about the progress toward recertification and the hospital’s Closure Plan. 
• It’s part and parcel of former-Supervisor Fewer's call for the Health Commission and DPH to take ownership of the deliberate cover-up of problems at LHH.

Laguna Honda Mock Survey Problem Involving “Epic” Database Erupts

In September, as they slouch to regain certification, the hospital is conducting "mock surveys" designed to mimic an actual reinspection survey conducted by CDPH.

During the LHH-JCC meeting, Mr. Pickens announced that the first mock survey, conducted in late June and July, comprised two phases. Results of the second phase showed five areas with high severity findings in the areas of Infection Control, Environment Free of Hazards, Food Safety, Medical Equipment Maintenance, and Pharmacy Services. The "Environment Free of Hazards” finding remains a continuing concern. It is problematic because many of the citations LHH received between October 2021 and April 14, 2022, involved “hazards” that the City Attorney's three appeals disputed.

Pickens indicated that, in preparation for the second mock survey, all hospital staff would undergo education and training in the first three weeks of August. Nursing staff will receive an additional fourth week of training between August 22 and August 28, focusing on developing and documenting “Comprehensive Care Plans” and other “Resident Assessments" as well as related assessment documentation.

Benson Nadell, Program Director of the SF Long-Term Care Ombudsman Program, testified to the Board of Supervisors, which handles oversight of complaints filed on behalf of residents of LHH and other San Francisco nursing homes on July 26:

“I want to focus on one issue:  The kind of paperwork or information package being sent by Laguna Honda to the various receiving nursing homes." (Nursing homes that patients are discharged to). "That package of information may be inadequate. "

"There is no sample available to the Ombudsman's Office or to anyone outside of Laguna Honda. We've received phone calls from family members — all the time — who have loved ones there who can't visit [nursing homes] in Burlingame or some of the others because of COVID."

"I'm homing in on this assessment and care planning process. LHH conducted a mock survey [recently in preparation for a formal re-survey by the California Department of Public Health] and one of the 13 findings [from the mock survey] was that the [patient's] care plans were not "person-centered" but used a generic assessment and care plan, which may have been attributable to [LHH's] "Epic" electronic [healthcare] record [EHR] system. I don't know [for sure]. But if the care plans and assessments are not person-centered, then the information at the receiving nursing home will be only focused on very sandwiched and condensed [care plans], only on the level of care. Also, there is the assumption of an equivalency of one nursing home with another.”

Notably, Nadell acknowledged that the “care plans" used in the mock survey may have been generic forms from the Epic database. But if his concern is correct — during an actual "live" CDPH survey — the care plans are not “patient-centered," not tailored to each patient, it will spell disaster. It will hamstring the attempts to pass an actual recertification survey inspection.

WSO spoke with Blanca Castro, California's Long Term Care Ombudsman and director of the State Long-Term Care Ombudsman Program at the California Department of Aging on August 10, 2022.

Ms. Castro noted that LHH was in the middle of the discharge and transfer process as required by their federal and state-approved closure plan, which has been temporarily paused as of July 28, 2022, at the direction of the CMS. She said the state has not indicated yet if or when the LHH discharges may resume.

Castro noted that all residents of long-term care skilled nursing facilities have the right to request all their medical assessments and care plans before being referred for relocation to another care facility. This is the case whether the records are in an electronic healthcare record or paper-based charts. That includes a wide variety of patient care assessments, not just their physical healthcare assessments.

“If nursing home residents or their families are not being provided with the care plans needed to receive the proper level of care unique to their needs prior to discharge to a different facility, they should work with the Ombudsman assigned to the facility they are currently in, to demand they be provided with their medical records to ensure their patient safety. While the care plans are important documentation, there are other assessment forms that should be requested and provided, too.” Castro said. 

She added that families should check their loved one's records and specifically ask for copies of those records if they feel any records may not have been provided. They have the right to request and receive all records, including medical records and all patient assessments conducted.

Mr. Nadell’s program in San Francisco can be reached at 415 751- 9788. Ms. Castro's State program can be contacted at StateOmb@aging.ca.gov.

Two Decades Later: "Restorative Care” Treatment Problems Return

The Westside Observer has learned that Health Managements Associates (HMA) — one of the two consultants hired at a combined cost of $5.6 million to assist DPH regain certification and avoid closure — published an “Initial CMS Recertification Survey Readiness Assessment" on June 13, 2022. HMA indicated that among other "Quality of Care” concerns for the CMS inspection surveys and mock surveys, the issue of comprehensive “restorative care” programs has returned front and center after a hiatus of almost two decades.

HMA wrote, in part:

“Quality of Care concerns exist as a comprehensive resident restorative program has not been implemented, and the activities offered are inadequate given the lack of evening offerings. Nationally, there has been a focus on ensuring appropriate restorative programming and activities have been implemented as a lack of limited programming and interaction during the COVID-19 pandemic has driven a noted decline in functions in SNF residents.”

HMA may not know, that a robust restorative care program had been rolled out and implemented at LHH, as early as 2004 and then updated in 2009.

In early May 1998, the US Attorney General’s Civil Rights Division had written to then-San Francisco Mayor Willie L. Brown (which is still available on the Internet). It had courtesy copied then-City Attorney Louise Renne the letter noting:

“… that nursing home residents have the right to receive care and services necessary to ‘attain or maintain the highest practicable physical, mental, and psychosocial well-being.’  These services include ‘specialized rehabilitative services,’ such as physical, occupational and speech therapy, as well as recreational and stimulating activities.

Similarly, the lack of adequate physical therapy services in a nursing home typically results in more residents losing functional abilities, resulting in residents being confined to their wheelchairs or beds due to a deterioration of their physical abilities and overall health.

A significant reason for the failure to provide adequate speech, occupational, and physical therapy services appears to be the lack of staffing. Due to inadequate numbers of staff, the therapy staff serves more in a consultant role than as actual members of the interdisciplinary team. Therapy staff relies exclusively on referrals from the in-house staff or family members. According to discussions with therapy staff, they develop a therapy program for a resident, provide some staff training, and then rely on the nursing staff to implement the program.

There also is a lack of sufficient resident activities at LHH, violating the federal statutory rights of nursing home residents. … LHH's Director of Activities agrees that there is insufficient activity staff to provide adequate stimulation and activities for LHH residents …

LHH is not meeting its residents' specialized rehabilitative therapy and activity needs. As a result, the facility is not helping residents attain their highest practicable physical, mental, and psychosocial well-being, as required, and residents suffer an increased risk of morbidity, mortality and deterioration.”

While HMA may be correct, it wasn’t always this way.

Restorative care involves optimizing and maintaining a patient’s physical, mental, and psychosocial functioning and determines the extent to which a resident of a skilled nursing facility should receive rehabilitation or/and restorative services. Restorative care programs are typically designed by rehabilitation clinicians and sometimes nursing staff, and are implemented by certified nursing assistants and therapy aides with specialized training. The collaborative implementation of restorative care services increases the chances for nursing home residents to improve or maintain their functional abilities.

I was hired at LHH in 1998 to support three new senior rehabilitation clinicians in Physical Therapy, Occupational Therapy, and Speech Pathology. Our team of four set about hiring additional rehabilitation clinicians (people with master’s degrees in their specialties) and four Restorative Therapy Aides — Certified Nursing Assistants with skills and training in restorative care therapy techniques — all supervised by Rehabilitation Clinicians. The Restorative Care program grew quickly, and eventually, we satisfied the US Department of Justice that we were helping patients regain and maintain their functional abilities. The program was a success, and soon we were getting many regular referrals from hospital physicians who noted our programs had a positive effect on residents.

To implement our restorative care program, we had to seek approval and authorization from the chairperson of the LHH Policy and Procedure Committee, the Executive Administrator of LHH, and the Director of the San Francisco Department of Public Health. Those who signed off on the Restorative Care – Level I program included: Dr. Lisa Pascual, Chief of LHH's Rehabilitation Services Department, Dr. Hosea Thomas, LHH's then-Interim Medical Director, Mivic Hirose, LHH's then Executive Administrator and Dr. Mitchell Katz, then the director of the Department of Public Health. They all enthusiastically supported our program.

Our restorative care program had two levels: 

Restorative Care — Level I:  The Level I program, was a structured program of therapeutic activities provided by the Rehabilitation Services department and supervised by Rehabilitation clinicians. Level I care was provided by therapy staff at centralized and decentralized locations. In general,  in situations where the program required specialized equipment or therapeutic physical approaches that were of sufficient complexity Level I care was indicated. It could not be easily performed by Unit Nursing staff on wards or in neighborhoods.

LHH physicians could request one or more types of restorative care for their patients depending on resident needs. That included Gait/Exercise, Activities of Daily Living, Upper-Extremity Exercise, Tone Management, and Range of Motion, all tailored to the level of care a given resident required.

The Level I program was held in a treatment gym outside of the main swimming pool in the replacement hospital. It was the perfect spot, separate from the main physical therapy and occupational therapy treatment areas, giving restorative care patients a unique and quieter space to regain functional independence.

Restorative Care — Level II was a decentralized program of therapeutic activities referred by a physician. The distinguishing feature of Level II  was that the Nursing staff provided the care on the unit.

One idea was that the unit-based care could be provided in evening hours; rehabilitation staff typically worked 9:00 a.m. to 5:00 p.m.

Unfortunately, the Level II restorative care program existed mostly on paper and was never rolled out and implemented, in part because of constraints on unit Nursing staff. As a result, implementing restorative care evening hours to augment programs done by Activity Therapy Department staff flew out the window and never returned.

The Center Did Not Hold

Although the Restorative Care — Level I program had a lot going for it, it couldn’t withstand the Nursing Department, which was a hotbed of intrigue. The center of LHH’s restorative care program could not hold, and the program vanished into the night.

Within two years of moving into the replacement hospital in 2010, the Nursing Department staged a coup and transferred the Restorative Care – Level I program out from under the control and supervision of the Rehabilitation Services Department supervision by the Nursing Department. The four Restorative Care Therapy Aides were known until that time as “Physical Therapy Aides” in the City Controller’s payroll database. They were no longer supervised by a licensed physical or occupational therapist. How the Nursing Department got around the supervision requirement isn’t known.

What is known by HMS Assessment is that the four therapy aides were unhappy with their change in supervision, which created a hullabaloo over changes to the program, including it supervision by Nursing and its removal from the specialized treatment gym in the Pavilion building.

Then there was former LHH CEO Mivic Hirose.

In July 2013, the Westside Observer published my article “Of Mold and Men," in which I reported on Hirose's treatment of  LHH employees. I wrote in part:

“Slavin’s disappearance is reminiscent of the hit-job on LHH’s former Chief Operating Officer, Gayling Gee, who had vied with Mivic Hirose for the job as LHH’s Director of Nursing when both women served as Co-Directors. 

"Within just days of Hirose's promotion to being LHH's CEO, and after Ms. Gee spoke out during a Health Commission meeting advocating to save LHH’s Adult Day Health Program, using her First Amendment free-speech rights as a private citizen on her own time — rights for City employees protected by San Francisco’s Sunshine Ordinance — Ms. Gee was told by Hirose on a Friday to get out within 24 hours. [Gee] cleared out her office on Saturday. On Monday, nobody said a word about Gee's forced ouster, lest word would get back to Mivic. After serving for two decades at LHH, there was no going-away party for Gee — and no thanks for her dedicated services.”

Former LHH physician Victoria Sweet published a book "God’s Hotel" in 2012 using LHH as a backdrop. [I'd recommend it, were it not for the fact that the stories Sweet used to illustrate complex concepts used only aliases for LHH staff, and used not one date to place historical events into context. I dislike the book intensely.]

But Sweet’s book clearly describes the centuries-old battle between medicine — doctors, who wanted control to correlate medical treatments with patients outcomes — and nurses — who objected, mainly on the grounds that patients weren’t “things” to be experimented on. The age-old battle for control of hospitals was hard fought, including at LHH.

Sweet acknowledged that the dynamic between the Department of Medicine, the Nursing Department, and Hospital Administration needed to be held in close check to advance optimal patient outcomes.

For over 20 years of my involvement with Laguna Honda, the same battle for control raged on, but LHH’s Nursing Department was never held in close check. Just look at LHH's history of Nursing violations uncovered during CMS and CDPH hospital inspections. It's hard to argue with the survey results.

Hirose waged much of the battle for control of LHH before she was forced out in 2019 over the patient sexual abuse scandal. [Hirose is still a senior management employee in DPH]. Sweet never became involved in trying to stop the transformation of LHH away from its traditional medical model of patient care.

Additional Problems With DPH's "Epic" Database

In June 2021, I published an initial article on the DPH's new $164.7 million Electronic Healthcare Records (EHR) database known as "Epic" which was rolled out and went live in August 2019.

DPH suddenly began claiming the database could no longer track which patients at SFGH and LHH had been discharged out-of-county. It was probably untrue and a difficult to believe assertion. California's Public Records Act (CPRA) §6253.9(a)(2) specifically requires local government agencies to extract and produce aggregated, de-identified data from databases the City maintains, such as the Epic database, and not to include HIPAA-protected client-identifying data.

In February 2022, I published a follow-up article on the Epic database reporting on ridiculous claims DPH made about why the Epic database could not report out-of-county discharges from the two county hospitals.

First, to the extent it turns out to be true, the Epic database is unable to export and provide individualized "patient centered” care plans and other assessments, which would be just as damaging — or even more damaging — than the revelation it's unable to track patients discharged out-of-county. The problem needs to be fixed immediately.

Second, another damning admission is that Epic does not have robust reporting capabilities. This involves aggregate data regarding the number of physician referrals for “Restorative Care” treatments in both the Physical Therapy, or PT — (lower body mobility) and the Occupational Therapy, or OT (upper-body mobility) departments.

On June 20, 2022, the Westside Observer placed a records request to DPH. It asked if LHH’s Medical Records Form — "Physician Order Form/Consultation Request” — was still being used by LHH physicians to order treatments for patients to prevent functional declines. Further, it asked whether the order form had been tied into the Epic database to submit electronically. DPH's public records staff responded within two days by providing the forms on June 22 showing that physicians orders for restorative care are submitted on-line in Epic.

On June 29, a follow-up records request DPH sought:

“A cross-tab report showing the aggregate number of on-line Epic requests placed for three types of Physical Therapy inpatient consult requests — a) Home evaluations, b) Community re-integration, and c) Restorative care program therapies — stratified by calendar year for 2020, 2021, and year-to-date for 2022 after Epic was rolled out and went live in August 2019”

It also requested similar data for the same three services offered for LHH's Occupational Therapy inpatient consult requests submitted by LHH physicians. DPH Public Records staff invoked a ten-day extension and finally responded on July 12, 2022, saying: 

Regarding Record Request #22-3790:

“The EPIC database is comprised of protected health information under various protections, including but not limited to 45 CFR Part 160, Part 164 Subparts A & E; Cal. Civil Code Sec. 56.10; and Cal. Govt. Code Sec. 6254(c) and is not a public record. Additionally, no other document or report containing the information you seek exists; thus, there are no responsive documents.”

DPH Public Records staff say they don't have to comply with CPRA §6253.9(a)(2), but they’re wrong. The entire Epic database cannot possibly be protected by California Government Code §6254(c), particularly since a limited amount of aggregate, de-identified physician referrals —  that don’t include protected health information about any identifiable patient — had been requested.

Unless DPH reverses course and provides the aggregate, de-identified data about the aggregate number of physician orders submitted for restorative care treatments provided in the past three fiscal years, and complies with CPRA §6253.9(a)(2) rapidly, yet another Sunshine Complaint regarding the Epic database is likely.

It’s bad enough CMS and CDPH are breathing down LHH's necks about substandard care violations and LHH's Medicare reimbursement. But LHH should not compound its problems with the federal DOJ Civil Rights Division investigating LHH's restorative care program, again — two decades later — for allowing residents’ functional decline.

____________________________________________________________

HMA’s June 13 Preliminary Readiness Assessment report admitted that its principal limitation was that it could not access DPH's and LHH's "Epic" database. Because the CMS/CDPH reinspection survey process is driven by care delivery processes documented in patients' electronic health records, hopefully, HMA's inability to get into Epic has been solved by now.

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 monette-shaw@westsideobserver.com.

August 18, 2022

One Informal Dispute Resolution Request, Three Appeals

City’s Pathetic Defense of Laguna Honda

July 28, 2022 Late-Breaking News:

Two Board of Supervisors Resolutions Passed July 26 — One to U.S. DHHS Secretary Xavier Becerra and One to Governor Gavin Newsom and Tomás Aragón — Finally Helped Pause LHH Residents’ Discharges

by Patrick Monette-Shaw

•••••••••• August 1, 2022 ••••••••••

News surfaced late Thursday afternoon announcing a temporary pause of any further discharges of LHH residents, at least for the time being, until LHH regains Centers for Medicare and Medicaid Services (CMS) re-certification.

But it wasn’t the efforts of City officials like Laguna Honda Hospital (LHH) CEO Roland Pickens, Director of Public Health Grant Colfax, City Attorney David Chiu, or even Mayor London Breed who accomplished this great victory.

The victory was due in large part to community activists trying to prevent further transfer trauma-induced patient deaths by working closely with the Board of Supervisors — particularly District 7 Supervisor Myrna Melgar, who rallied the Board of Supervisors into passing two urgent Resolutions on July 26 she introduced — before the Board went out on summer recess for the month of August. It was Melgar who achieved this potentially temporary victory!

The announcements received on Thursday, July 28, that LHH resident discharges and transfers have been temporarily paused first came in from Supervisor Myrna Melgar, then from a Mayor Breed press release, and finally from Roland Pickens, who had the audacity to suggest:

“Laguna Honda worked with, and at the direction of, CMS, the California Department of Public Health (CDPH) and the California Department of Health Care Services (DHCS) to pause the discharge and transfer of all [LHH] residents.”

Pickens’ revisionist history sausage-making has already begun. LHH had not worked at halting or pausing any of the LHH resident discharges at all, and had done no such thing. For their parts, Breed, Chiu, and Colfax had also done nothing to seek Federal injunctive relief to halt or pause discharges and transfers of LHH residents before the Board of Supervisors passed the two resolutions on July 26, below. They’re grandstanding off of Melgar’s tenacity.

The Two Resolutions the Board of Supervisors Passed on July 26

The resolution was to U.S. Department of Health and Human Services (DHHS) Secretary Xavier Becerra. It sought to suspend the Centers for Medicare and Medicaid Services (CMS) requirement to relocate and transfer LHH’s vulnerable patients to gain recertification. It also attempted to extend coverage of Medicare and Medicaid payments until CMS determines LHH’s recertification, potentially in late December.

The second “imperative” resolution sponsored and introduced as an emergency item by Supervisor Melgar and initially co-sponsored only by Supervisors Mandelman and Peskin. It urged Governor Newsom and California Department of Public Health ( CDPH) director Tomás Aragón to proclaim a state of emergency in San Francisco County relating to the imminent risk of displacing LHH’s elderly and medically infirm patients. The “imperative” resolution also urged director Aragón to withdraw CDPH’s approval of the LHH Closure and Patient Relocation and Transfer Plan that requires the transfer of all patients within four months.

By the time the two resolutions were introduced, four LHH patients died shortly after their discharges from LHH. It was caused, in part, by transfer trauma, a known medical risk to the elderly and disabled. Both Resolutions passed on July 26 with a unanimous vote of 11 to zero.

Westside Observer’s Recent Reporting

My Westside Observer colleague Dr. Kerr kindly called LHH’s anemic efforts to halt the discharges a “muffled defense” on July 19. Given late-breaking public records just released on July 22 after Kerr’s article was published, I believe LHH’s appeals, and legal actions should more appropriately be called a “pathetic defense.” 

News broke on April 14, 2022 that CMS terminated LHH's Provider Participation Agreement, halted new admissions, cut off federal funding for its current patients, effective September 15, and ordered LHH to discharge all of its then 681 patients by September 13.

The Westside Observer website has carried the excellent investigative reporting by Dr. Derek Kerr since news of the LHH scandal began, including in April 2022, May, June, July 5, and a second article on July 19, titled “City’s Muffled Defense of Laguna Honda.” [I have also published Westside Observer articles about LHH on July 5 and a second one on July 19.]

Two Board of Supervisors Hearings

It took San Francisco’s Board of Supervisor two months before it got around to scheduling a Committee of the Whole (CoW) hearing on the LHH crisis that surfaced on April 14. That hearing wasn’t held until June 14 — as if there were no great urgency for the Supervisors to become involved in saving LHH’s residents and the hospital itself.

LHH’s then CEO, Michael Phillips was quickly and unceremoniously deposed, and his employment ended on June 2. He was replaced by an acting CEO, a 30-year employee of the Department of Public Health (SFDPH), Roland Pickens, who up until then was Director of SFDPH’s Community Health Network, consisting of 14 community health centers and clinics.

During the June 14 CoW hearing, Pickens delivered a PowerPoint slideshow to the Board of Supervisors addressing what actions LHH was taking in compliance with CMS’ instructions and orders to discharge patients and begin efforts to regain CMS certification. Pickens made no mention of any legal efforts LHH, SFDPH, or the City Attorney’s Office had taken to halt the closure of the hospital and stop the “mandatory” discharges of residents to out-of-county facilities.

Unfortunately, the Board of Supervisors didn’t query Pickens during the June 14 CoW hearing, and none of the 11 Supervisors asked Pickens what legal remedies SFDPH or LHH were pursuing to push back on CMS’ termination of LHH’s Provider Participation Agreement.

Following the June 14 CoW hearing, to her credit, Supervisor Melgar took it upon herself to individually write to DHHS Secretary Xavier Becerra on June 16 in her capacity as District 7 Supervisor soliciting his help to protect LHH’s residents.

Also following the June 14 CoW hearing, I submitted public testimony to the Board of Supervisors Government Audits and Oversight (GAO) Committee on June 29 asking it to schedule a hearing before the end of July – rapidly. Supervisor Aaron Peskin also requested a quick hearing about the situation at Laguna Honda Hospital. After Peskin submitted his hearing request on May 3, it was assigned to the GAO Committee. On June 13, the hearing request was referred to SFDPH the day before the June 14 CoW hearing at the full Board.

That GOA hearing was finally held on July 21 — two-and-a-half months after Peskin called for the hearing and almost a month after I had requested it in writing asking GAO Committee chairperson, Dean Preston, to schedule another hearing before the end of July when the Board was scheduled to go out on summer recess for the month of August. 

During that hearing, Supervisor Hillary Ronen expressed utter outrage that CMS was picking on LHH patients who may have been merely using marijuana, since pot is legal by prescription in California. I agree with Ronen to the extent I’ve had a medical prescription for marijuana for I can’t now remember how many years, long before it was approved statewide for recreational use. But Ronen was misguided, precisely because the illegal substance abuse going on at LHH of concern to State surveyors had included fentanyl (a very strong opioid), amphetamines, methamphetamines, and benzodiazepines, among others — none of which are permitted as recreational drugs.

Unfortunately, it appears Ronen may not have been informed by Pickens, or may not have read the 211 pages across the eight State inspections of LHH between October 2021 and April 14, 2022, that the substance abuse involved much stronger drug abuse at LHH. The State surveyors were not concerned so much by pot infractions by LHH’s residents. The surveyors were quite concerned about the illicit drugs.

During the GAO hearing on July 21, once again, Pickens made no mention of any legal efforts LHH, SFDPH, or the City Attorney’s Office were taking to halt the closure of the hospital and stop the “mandatory” discharges of LHH residents to out-of-county facilities. Deputy City Attorney Anne Pearson told the GAO Committee members at the end of the hearing that City Attorney David Chiu had filed three administrative appeals challenging deficiencies LHH received on October 14. Still, she offered no further information about the appeals.

San Francisco’s Tepid Legal Efforts to Fight Back

As Dr. Kerr reported in his July 19 Westside Observer article, after CMS decertified LHH on April 14, rhetoric flared from Health Director Grant Colfax and the Health Commission vowing they would pursue “all available options." The legal options LHH and the City Attorney’s Office pursued have been tepid, at best, and very disappointing. Colfax nor the Health Commission have mentioned during any Health Commission meetings what, if any, legal efforts it's pursuing.

Let me acknowledge that I am obviously not a lawyer, but from reading many legal briefs filed by the City and County of San Francisco in various legal venues over the course of my 20 years as a columnist, what follows seems to potentially be sloppy lawyering if they are trying to rescue Laguna Honda Hospital for future generations of San Franciscans.

Spoiler Alert:  An observer who has followed LHH’s closure crisis and read through Pickens’ Dispute Resolution request and City Attorney David Chiu’s three appeals, concluded it’s doubtful the four filings are of any public interest. And also, it was difficult to stay awake reading the filings, but difficult to plough through the sophistry and hair-splitting in the three appeals.

First Stab: LHH’s December 27 Informal Dispute Resolution Request

On December 27, Pickens, submitted his “Request for Informal Dispute Resolution” (IDR) to the Long-Term Care division of California’s Department of Public Health (CDPH). It challenged the deficiencies identified following the October 14, 2021 survey inspection of LHH conducted by State surveyors.

Even though Pickens and LHH knew, during the State’s exit interview issued on October 14, what the deficiencies the State had identified. Apparently, CMS’ process is to wait for the issuance of an official “Statement of Deficiencies and Plan of Correction” form to a hospital or skilled nursing facility (SNF) like LHH to learn what the official deficiencies identified were. It seems LHH didn’t receive the official “Statement of Deficiencies” until two months later, on December 16. Ten days later, Pickens submitted his request for Dispute Resolution on December 27, ostensibly along with LHH’s Plan of Correction for the October 14 State survey.

Pickens’ IDR request relied almost exclusively on the deficiency titled “Free of Accident Hazards/ Supervision/ Devices.”

Pickens pooh-poohed the citation assessed against LHH with a “severity-and-scope” rating of “H” — meaning a pattern had been identified involving actual harm that did not rise to the level of immediate jeopardy to resident health and safety. Of note, of the eight survey inspections the State surveyors conducted at LHH between October 14, 2021 and April 13, 2022, surveyor’s cited LHH five times during subsequent on-site inspections, not just once on October 14. That suggests ongoing and continuing deficiencies.

In fact, during a second LHH revisit for an earlier inspection survey (perhaps the October 14 initial survey) on March 28, 2022, State surveyors found other violations, including one resulting from a patient on oxygen found smoking in their room. But this time LHH was slapped at a “severity-and-scope” rating of “K” — meaning a pattern had been identified involving immediate jeopardy to residents' health and safety that placed all residents in an unsafe living environment. So, within the six-month period between October and March 28, the severity had risen from an “H” “actual harm” to a “K” “immediate jeopardy,” since both Pickens and later City Attorney Chiu had tried to downplay that “no actual harm” had been done.

Pickens claimed the violation wasn’t applicable because the identified incidents that caused the deficiency finding didn't involve “accidents” — ignoring the word “hazards” in the deficiency’s title. He went on to claim:

“… [none] of the other incidents … involved an ‘accident’…and all of the other incidents where a patient either chose to, or because of their addictions were compelled to, use or possess drugs or alcohol or possess contraband … There [was] no … evidence presented … that any of the incidents, including the incidents where the patients were hospitalized or fell … were an avoidable accident and resulted in a pattern of deficiencies … [and hadn’t] led to actual harm to any patient.”

Pickens went on to claim:

“Because [LHH] is required to afford its patients all of the rights required under the Patient’s Bill of Rights, [LHH] cannot mandate substance use treatment; it can only offer treatment and resources to … patients who have an identified history of substance use …  Patients still have the right to refuse treatment … Laguna Honda cannot ignore a patient’s privacy rights, so staff must perform [safety] searches [for contraband] within the limits of the law.”

Pickens asserted the alleged incidents of actual harm found by State surveyors did not rise to the level of “avoidable accidents." But like City Attorney Chiu who followed him, Pickens ignored the word “hazards” in the title, which State surveyors view as useful in identifying, evaluating, and analyzing hazards and risks. Several types of accident hazards are incorporated within the regulation, including patients' smoking — particularly smoking near oxygen tanks and equipment — including patient supervision, resident-to-resident altercations, elopement, and patients’ vulnerability.

Laguna Honda’s Quality Management Department reported to the LHH-Joint Conference Committee of the Health Commission in its Regulatory Affairs Reports, that between March and July 2022 there had been 28 Facility-Reported Incidents involving resident-to-resident altercations. It’s not yet known if all 28 incidents rose to the level of violations, because those survey inspections may not have been completed.

Then Pickens claimed that most incidents reported by State surveyors did not constitute actual harm. "Even if we include the four incidents that involved behavior changes that involved actual harm, the majority of the findings listed in the deficiencies did not constitute actual harm." Pickens was hair-splitting that although some of the incidents involved actual harm, because the majority didn’t, the four incidents that did should just be creatively ignored and downplayed, as being essentially moot.

Pickens asserted that the State surveyors failed to establish a “pattern” that constituted “substandard quality of care.” That was complete nonsense because the violations, are defined as being “substandard quality of care."

Pickens concluded, saying the violation had been “misplaced,” and asked in his Informal Dispute Resolution request that the deficiencies should be dismissed entirely or reduced to a lower rating because they were isolated incidents, not widespread ones.

Seven months after Pickens filed his IDR, neither he nor SFDPH responded to a records request filed by the Westside Observer — until today, July 29. WSO asked for information regarding the outcome of the IDR. As of today, SFDPH claimed that it had “no responsive records,” regarding the status of Pickens’ IDR request, whether the deficiencies had been rescinded. Nor would they disclose whether Pickens’ request to reduce the “severity-and-scope” rating of “H” issued in the Statement of Deficiencies to a severity-and-scope finding of either a “G” as an isolated deficiency, or an “F ”as a widespread deficiency that caused no actual harm.

More remarkably, SFDPH claimed today that the Observer’s records request to obtain LHH’s “Plan of Correction” from LHH’s October 14, 2021 State surveyor’s inspection is still being researched and won’t be provided until August 4, an obvious stalling and delaying tactic.

That’s patently untrue.

One remedy in the “Resubmitted Plan of Correction” included in the March 28 Form 2567 includes a provision regarding safety searches of patients — including those “out on pass." Any contraband, paraphernalia, and/or illicit substances found will now be seized and shall be disposed of, particularly for patients who are on oxygen.

That seems a contradiction of Pickens’ and, later, the City Attorney's claims. They assert that patients' privacy rights and self-determination allow them to keep and use illicit substances and drug paraphernalia. Further, they might not be seized and disposed of in the absence of “reasonable suspicion” any given patient may have such contraband in their possession.

Today SFDPH's claim that it can’t release a Plan of Correction until next week is ludicrous in the face of the Plan of Correction that was resubmitted and included in the March 28 survey report.

What’s taking the CDPH's State Survey Agency (SSA) so long to rule one way or another on Pickens’ IDR request? There are  plenty of folks who would love to know how that IDR turned out, perhaps even San Francisco’s Board of Supervisors.

[You’re welcome, of course, to read more of Pickens’ Dispute Resolution request if you can stay awake long enough.]

Second Through Fourth Stabs: City Attorney’s Three Appeals to U.S. DHHS Administrative Law Judge

City Attorney David Chiu filed an initial appeal to U.S. Health and Human Services secretary Xavier Becerra on February 15, 2022. The appeal was addressed to an Administrative Law Judge in DHHS’ Department Appeals Board in the Civil Remedies Division, which had to be filed within 60 days of a CMS “Enforcement Notice.”  It’s unclear when LHH may have received such an enforcement notice and whether any such notice may have been filed shortly after CDPH’s October 14 inspection at LHH.

Chiu subsequently filed a second appeal on April 25, challenging the remedies CMS imposed in its letter to LHH on February 24. The letter required LHH to achieve substantial compliance before April 14, or CMS would terminate its Medicare and Medicaid provider participation agreement. LHH had ample warning that termination from CMS was actively considered. Why was Chiu’s second appeal filed 11 days after the April 14 compliance deadline on April 25?

Chiu then filed a third appeal on May 28, challenging CMS’ actual March 30 Notice of Termination. He requested an expedited hearing, but apparently, it is not being expedited. The second and third appeals essentially regurgitated the same legal arguments Chiu raised in his first appeal on February 15. There were no substantial new or additional legal arguments in the subsequent appeals.

Of note, neither Pickens’ Dispute Resolution request nor Chiu’s three federal appeals sought injunctive relief to halt the discharges of LHH’s residents immediately. The four efforts only sought administrative remedies.

Chiu’s three appeals are aimed at overturning the decertification of LHH, which might nullify the decertification order, resume admissions to LHH, and potentially restore the 120 beds LHH was ordered to eliminate — if his appeals prevail. But in the interim, discharges and transfers out of LHH would have continued until the DHHS appeals process concludes — had Melgar’s two resolutions passed by the Board of Supervisors not brought the pause of LHH residents transfers and discharges.

U.S. DHHS Administrative Law Judge

On June 2, 2022, DHHS Administrative Law Judge Steven Kessel issued an order consolidating Chiu’s three appeals into a single docket number (C-22-555). Kessel set an August 31 deadline for CMS to submit any “prehearing exchanges” (documents) and set LHH’s “prehearing exchanges” due date for October 5, 2022.

Kessel did not set an actual date for hearing Chiu’s now consolidated appeals. We don’t know whether Kessel’s court calendar will permit a hearing before the end of October, or whether the case will drag on well into November or December before being resolved.

An Alternative Viewpoint

Again, although Chiu raised the issue of patients’ right to privacy, dignity, and self-determination that might be violated through patient clinical safety searches to prevent drugs and contraband. Dismissing drug use and smuggling that may protect a handful of patients' rights could perhaps lead to LHH becoming the City’s next Tenderloin neighborhood.

While protecting residents' civil rights is clearly a San Francisco value, Chiu seems to forget that in a congregate setting like LHH, one resident’s civil rights “floor” is another resident’s civil right to be free from hazards “ceiling.”

Why Did City Supervisors Drag in Louise Renne?

During the July 21 Board of Supervisors Government Audit and Oversight hearing on LHH’s closure, Supervisors dragged in somewhat-disgraced former-City Attorney Louise Renne. Why? I’m still scratching my head trying to figure that out.

First, at the start of the July 21 GAO hearing, Renne claimed she was there “representing a number of LHH patients and their families” (at about 3:26:44 on videotape). She didn’t mention whether she was representing them in a legal capacity, or just as a concerned supporter of LHH’s residents.

Shortly after, she volunteered she had read all of the violations reported in the 211 pages of CDH’s Form 2567 inspection reports. I find that hard to believe.

Second, when questioned by the Board, she was asked if she had filed any lawsuits about the patient discharges. She replied that she had not.

Let’s consider some of Renne’s past history

During the June 2010 grand opening ribbon-cutting ceremony for the LHH rebuild replacement hospital, speaker after speaker — including then-District 7 Supervisor Sean Elsbernd, State Senators Leland Yee and Mark Leno, the Director of Public-Health Mitch Katz, and Mayor Gavin Newsom — all repeatedly praised Renne for having thought of and won the Tobacco Settlement Revenue lawsuit that paid for the LHH rebuild project. Renne had done no such thing.

It was Angela Alioto who conceived a novel legal cause of action: San Francisco should not sue as a consumer for product liability; it should instead sue as the employer of a consumer. Why? Because as an employer, the City was obliged to pay for healthcare to treat smoking-related illnesses suffered by City employees harmed from smoking tobacco.

Indeed, just five minutes before the Board of Supervisors were scheduled to vote in 1996 to approve suing the tobacco companies, Renee waltzed into Board President Angela Alioto’s office in an attempt to stop the Board from approving the lawsuit. That, in part, was to appease Mayor Willie Brown — who was notorious for stuffing campaign contributions from tobacco lobbyists into his war chest. Renne claimed the City didn’t have $1 million to pay for the lawsuit, which was complete nonsense.

San Francisco’s Fiscal Year 2008-2009 City Budget stood at approximately $6.5 billion. Basic math and common sense tell you that there are 6,500 separate $1 million pools of cash in $6.5 billion. Couldn't they find a mere $1 million chunk of money in 6,500 one-million chunks? Alternatively, the Department of Public Health’s budget that Fiscal Year was $.158 billion, which had 1,580 one-million such chunks. Who was Renne trying to fool with her outlandish claim the City didn’t have $1 million?

Renne also ignored the massive return on investment: Spending a paltry $1 million for a lawsuit that could rake in $1 billion in tobacco settlement revenue for the City over the 60-year life of Alioto’s planned lawsuit — assuming she prevailed — was also a common-sense math problem most ten-year-old’s would have understood as a great return on investment. What was Renne thinking?

Renne’s gambit didn’t work because Alioto had a veto-proof support from eight Supervisors to prevent a mayoral veto by Willie Brown. The Supervisors passed Alioto’s resolution unanimously, directing Renne to use a specific lawsuit strategy to file the lawsuit. Due to her novel legal strategy, Alioto has brought in (or is on track to bring in) one billion and two million dollars in revenue to the City by June 30, 2060!

In fact, Alioto’s successful lawsuit may be the largest settlement award in City history. Hopefully at the end of the first 60-year term, a Court of competent jurisdiction might extend the life of the lawsuit, and perhaps bring in an additional $1 billion in revenue to the City’s coffers.

Shamefully, Renne and Mayor Brown eventually outsourced filing the lawsuit to a private law firm in order to spare Brown the embarrassment of suing his own campaign donors. 

All of this is something I wrote about as the “San Francisco Hospital Examiner” for an early (and primitive) San Francisco Examiner website called “www.examiner.com.” My article, and an accompanying slideshow about Ms. Alioto’s 1997 memoir, “Straight to the Heart — Political Cantos,” are both still available on my own website.

Renne’s Other Embarrassing Scandals

In addition to the tobacco lawsuit embarrassment, Renne’s non-profit LHH Foundation ran into other embarrassments.

Renne ostensibly created her Louise Renne Foundation specifically to raise $15 million in charitable donations to purchase new furniture, fixtures, and equipment for the LHH replacement facility that opened in June 2010. In the end Renne raised not one penny towards such a purchase.

In addition, Renne’s Foundation ran into various troubles with San Francisco’s Health Commission, as I wrote for the Westside Observer in December 2012. Renne formed her Foundation in 2004 — without a written memorandum of understanding (MOU) with either the City, Laguna Honda Hospital, or the Health Commission. She obtained IRS designation as an independent non-profit charitable foundation. 

But oddly, Renne also claimed her Foundation was simultaneously a client of “Community Initiatives,” a different non-profit charitable foundation acting as Renne’s “fiscal sponsor.” You can’t be both an independent IRS charitable non-profit foundation and at the same time use a “fiscal sponsor” to report your Form 990 to the IRS.

Hiding behind a "Fiscal Sponsor" made it virtually impossible to track donations to, and expenses of, Renne’s Foundation. That’s one reason Fiscal Sponsors are used, in the first place.

Eventually Community Initiatives dropped Renne’s Foundation as a “sponsored project,” reportedly unexpectedly on January 14, 2013. Renne’s Foundation was no longer a sponsored project of Community Initiatives, per its CEO, Melanie Beene.

The Health Commission had long been worried about the lack of reporting concerning the Renne Foundation’s finances. Her Foundation failed to disclose either its income and expenses, or the three categories of spending the IRS requires that non-profits report on Form 990’s:  Fundraising, Management and General, and Program Services spent on actual services. The three categories are used to evaluate the financial accountability of non-profits. The Foundation’s Form 990 submitted in 2011 to the IRS reported zero income and expenses as a Community Initiatives fiscal sponsored client.

The Health Commission tried, repeatedly over the years, to obtain the Renne Foundation’s financial data, but they had repeatedly been rebuffed by Renne, who stridently refused to cooperate with the Health Commission.

In preparation for a December 14, 2011 meeting with then-Health Commission president Steven Tierney and its then-vice president, Sonia Melara, Renne submitted a letter to the Health Commission dated December 8, 2011. In a footnote, she claimed that her foundation had been having difficulty raising funds because:

“… two hospital physicians and others then employed at the hospital made public assertions that the hospital could not safely accommodate the flow of patients from San Francisco General Hospital. They placed an initiative on the [June 2006] ballot, Proposition D, which sought to limit the hospital’s safety net mission.”

There’s that pesky “flow project” from SFGH problem again that has caused so many of the problems at LHH over the past 18 years since 2004.

Renne was being both disingenuous and factually incorrect: I was there and participated in supporting "Prop. D."  "Prop. D" did not set out to "limit" serving safety net patients. Instead, it was intended to protect vulnerable elderly and disabled safety net patients who needed skilled nursing care in a safe environment. Given the dangerous mix of aggressive, younger, able-bodied, behavioral health and substance-abusing patients from SFGH who were stuffed into LHH. They, too, would not receive the appropriate level of care and safety they needed.

By two physicians, Renne was undoubtedly referring to the LHH physicians, Director of Medical Services, Dr. Maria Rivero, who was on the Patient Screening Committee, and Dr. Kerr. By "and others," Renne was referring to me and others who had been writing articles for the precursor publication of the Westside Observer about the downsizing of LHH’s 1,200 patient beds to just 760 beds due to the massive cost overruns of the replacement hospital.

The Commission summoned Renne again to a Health Commission meeting on March 6, 2012; she dragged along Derek Parker, Vice President of the Board of Directors of Renne’s foundation, to accompany her to the hearing. Parker had somewhat of a conflict of interest in that Parker had served in various roles at Anshen + Allen, the architects who designed Laguna Honda’s new facilities, including as a principal, as its former CEO, as a member of its Board of Directors, and as its Director Emeritus.

Renne and Parker were unable to answer a number of pointed questions about their plans to outsource operations of LHH's Gerald Simon Theater. Why LHH's patient gift shop had still not re-opened — two years after the hospital's grand opening in June 2010, nor basic questions about finances of Renne’s foundation. 

In addition to the problem of not re-opening a gift shop, my December 2012 article also reported Renne had invested time and money on a plot to take over operations of LHH's Gerald Simon Auditorium. We learned that Renne’s foundation commissioned a draft report in July 2011 from AECOM, titled “Demand Assessment for Gerald Simon Theater.”

The assessment claimed Gerald Simon auditorium needed to be “rebranded” as distinct from the hospital itself, probably with a new name to convey it as a community theater, not as an auditorium exclusively for LHH’s residents. The report indicated that in order to generate about $156,000 in annual revenue, a community theater at Laguna Honda would have to hold approximately 12 events each month, and noted resident use of the auditorium would probably be of concern when scheduling rental events. 

Luckily Renne could not complete her coup to take over LHH residents' auditorium.

Renne’s December 2011 letter to the Health Commission also noted she wanted to be “helpful” in restarting LHH’s “Adult Day Health Care" (ADHC) program, which was previously run by staff in the hospital's Activity Therapy Department. Space had not been included in the replacement hospital buildings for an ADHC, and ended operations of the ADHC in LHH’s old buildings in 2008 or 2009 in anticipation of the grand opening of the new facilities. 

The ADHC program bused in elderly and disabled San Franciscans, or people with Alzheimer's and other dementia's living in the community who couldn't be left unattended, and needed cognitive stimulation and safe-caring to give medical respite to their families during the day. Now 14 years later, no ADHC program has resumed at LHH, although there are plans to add an ADHC to the senior housing proposed on LHH's campus.

Renne claimed during the Health Commission meeting that her foundation had made numerous “gifts” to LHH, but the Commission noted it had been unable to find any documentation of those gifts, which had to have been approved by the Health Commission and by the Board of Supervisors during agendized public meetings of both oversight bodies.

Following an apparent investigation by the Registry of Charitable Trusts, a division of California’s Attorney General, the Registry forced Renne to dissolve her foundation; she notified the Registry on January 15, 2013 her foundation ceased operations on January 15, 2013 and claimed there were no remaining assets in her foundation.

Why City and State officials in 2010, and our current crop of Supervisors keep attempting to use revisionist history to excuse Renne’s past actions is entirely inexplicable. So disgraceful has her involvement been over the years, she should not be trotted out and thanked for her service to LHH, or for winning the tobacco settlement lawsuit. Such trotting remains a complete myth.

Monette-Shaw is a columnist for San Francisco’s Westside Observer newspaper, and a retired City employee. He received a James Madison Freedom of Information Award in the “Advocacy” category from the Society of Professional Journalists–Northern California Chapter in 2012. He's a member of the California First Amendment Coalition (FAC) and the ACLU. Contact him at monette-shaw@westsideobserver.com.

August 1, 2022

Understanding Severity of LHH Inspection Violations

Cohorting Two Patient Populations Is A Terrible Idea

by Patrick Monette-Shaw

•••••••••• July 19, 2022 ••••••••••

During the Board of Supervisors' June 14 hearing on Laguna Honda Hospital’s “Notification of Closure and Patient Transfer and Relocation Plan ," the SF Department of Public Health (DPH) continued to downplay the severity of problems at Laguna Honda Hospital. It was a bald attempt to throw sand in the eye of the bull, hoping to misdirect the Board of Supervisors.

That strategy worked. The Board of Supervisors ignored the big pink elephant waltzing through the room. In that hearing, DPH failed to educate the Supervisors about the severity of the inspection violations or problems impacting the quality of care patients face at Laguna Honda Hospital (LHH). The violations led CMS to yank LHH’s certification and funding.

It didn't appear some supervisors grasped the severity of the crisis after Roland Pickens, LHH’s interim acting CEO, delivered his dog-and-pony slideshow. They used words like "abandoned" and "coming after" our elderly.

It isn’t the state or feds who have abandoned caring for San Franciscans. Our City officials are doing that on their own and have been for a long time. And it’s simply not true. Federal and state government inspectors were not deliberately “coming after” elderly and disabled San Franciscans who require skilled nursing care. After all, LHH relies heavily on approximately $200 million in federal reimbursements. That $200 million does not indicate that 700 San Franciscans were “abandoned." Respectfully, some supervisors might want to modify their statements.

State regulators were simply enforcing regulations in effect since Medicare was created 57 years ago. Since the 1987 Omnibus Budget Reconciliation Act passed, the Centers for Medicare and Medicare [Medi-Cal in California] Services (CMS) has thoughtfully refined, developed, and implemented standards. California’s Department of Public Health (CDPH) follows those standards. Health departments across the nation use standardized survey guidelines. They are designed to be “reasonable” or “justifiable” to protect patients' quality of care and to improve their health in Skilled Nursing Facilities (SNF’s) such as LHH. They are not arbitrary Kafkaesque rules.

Later during the June 14 hearing, Supervisor Dean Preston stated:

“I understand that sometimes the rules are structured a certain way and you’ve got to follow those rules” (at 5:08:28 on tape).

While some supervisors believe nursing home regulations may be “arbitrary” or arcane, Preston seemed to get it: The rules are there for a good reason. Otherwise, you may be penalized for not following the rules. 

What’s obvious to most folks is that LHH’s staff and DPH “abandoned” following the rules they’ve known about for 35 years and had followed them uneventfully (mostly) for over two decades.

Perhaps DPH hadn't fully briefed the supervisors about LHH’s severe violations. While the public may feel that CMS rules and regulations governing skilled nursing facilities are capricious or that they constituted regulatory persecution of the City and LHH, supervisors should know better.

Federal CMS Reimbursement Participation Rules Are Clear

So, where did CMS’s rules and regulations governing nursing homes come from? They came from a long history of developing nursing home regulations. Fifty-seven years ago, President Lyndon B. Johnson signed legislation establishing Medicare and Medicaid programs.

Thomas Morford wrote a 1988 article titled “Nursing home regulation: History and expectations” in the Health Care Financing News, a publication of CMS. A struggle eventually arose, he noted, to develop Federal regulations governing nursing homes when Medicare coverage for hospital services began in 1965. The struggle focused on two central concerns:  Physical safety and adequacy of treatment and services for patients. What follows in this section you’re now reading is primarily excerpted from Morford’s article.

Developing regulations for nursing homes centered on improvement in the patient's physical functioning, or at least no further deterioration in functional abilities than was unavoidable. Early regulations rarely terminated skilled nursing facilities from participating in Medicare or Medicaid; the focus was to get facilities into CMS programs and correct problems over time.

Morford noted that nursing home regulations and their enforcement remained essentially unchanged into the 1980s. Then in the '80s, attempts focused on issuing regulations with new standards for facilities to meet, along with an effort to issue new enforcement regulations.

Another significant step was developing and implementing the patient care and services survey process, the first significant step in implementing a state-of-the-art, outcome-oriented review of nursing homes. CMS eventually assigned the survey process to the Public Health Departments in each state, tasked with using survey guidelines CMS developed. State surveyors observed and interviewed residents of SNF’s and arrived at compliance decisions based on outcomes of patient care. The result was a vastly improved survey process, providing a better way to assess and encourage compliance with new regulations for Skilled Nursing Facility (SNF) providers. The process assured uniformity in survey processes nationwide.

Following the passage and enactment of the 1987 Omnibus Budget Reconciliation Act, Congress eventually passed nursing home legislation. It incorporated two proposed rules published in the 1987 Federal Register — rules developed by the Institute of Medicine (IOM). One rule dealt with nursing homes' requirements to participate in the Medicare and Medicaid reimbursement program. The second dealt with processes the Federal government would employ to enforce compliance with the requirements.  

Respectfully, supervisors should have known that, since the 1987 Omnibus Budget Reconciliation Act, CDPH has followed CMS standards. It has used survey guidelines designed to be “reasonable” or “justifiable” to protect the quality of care patients receive in SNF’s such as LHH. No rule is arbitrary.

Generally, nursing homes would not be terminated from participation in Medicare and/or Medicaid. Instead, it was hoped, incremental penalties such as fines or denial of payment would be used. And optionally, CMS managers could be appointed to take over and oversee a facility’s operations, rather than terminating a facility’s provider participation in CMS’ reimbursement program.

We owe a debt to Morford for his article about the history of the development of nursing home rules and regulations.

CMS and state surveyors apparently decided termination of “Provider Participation Agreements” and CMS reimbursement should become stronger compliance and enforcement tools. But they have rarely been used.

Medicare Provider Participation Agreements

CMS has the authority to terminate Medicare and Medicaid Participation Agreements for noncompliance with conditions of participation. Noncompliance includes:

• F-tag inspection standards, and especially for SNF providers with repeated or uncorrected “Substandard Quality of Care” citations

• a severity-and-scope “Immediate Jeopardy” (IJ) “F,” “H,” “I,” “J,” “K,” or “L” combined “S/S” citations. (See discussion, below.)

Violation of its “Conditions of Participation” could result in decertification. Or one of three IJ severity-and-scope ratings, or other substandard care F-tag violations, could mean LHH faces decertification. It’s improbable they weren’t aware of this.

A termination notice contains information regarding the provider’s/supplier’s right to appeal the termination. It's unclear whether LHH appealed the termination notice or availed itself of other remedies. Remedies could include a hearing before an Administrative Law Judge, or one of two types of Informal Dispute Resolution following each CDPH state survey inspection.

“Medicare Provider Participation Agreement” specified “Conditions of Participation” requiring LHH maintain “substantial compliance” with “F-tag” requirements. LHH also knew if it failed to correct recurring survey deficiencies, it might result in termination. LHH received multiple warnings of its looming Provider Participation termination.

What Have “F-tags Got to Do With It?

In 1984, Tina Turner had a hit song “What’s Love Got to Do with It?”  The same could be asked about F-Tags.

F-tags (a.k.a., Federal-tag number) correspond to a specific regulation within the Code of Federal Regulations. For example, “F744” regarding “Treatment/Service for Dementia” — a substandard quality of care deficiency — refers to Federal Regulation 483.40 regarding “Behavioral Health.”  As another example, “F697” regarding “Pain Management” — another substandard quality of care deficiency — refers to Federal Regulation 483.25 regarding “Quality of Care.”

The list of Federal Regulatory Groups that apply to Long-Term Care (LTC) facilities regulated by CMS includes 21 separate categories of regulatory groups. These include Resident Rights; Resident Assessments; Quality of Life; Quality of Care; Nursing Services; Infection Control; Physical Environment; Food and Nutrition Services; Specialized Rehabilitative Services; Comprehensive Resident-Centered Care Plans; Freedom From Abuse, Neglect and Exploitation; and Physician Services; among other group categories.

Across all 21 regulatory groups applicable to LTC SNF’s, there are a total of 211 different named F-tags.

“Substandard Quality of Care’” is a technical, regulatory term indicating a facility did not meet one or more F-Tag requirements. Of the 211 F-tags, 45 involve Substandard Quality of Care. A finding of substandard quality of care indicates a significant deficiency (or deficiencies), which must be addressed and corrected quickly to protect the health and safety of a facility’s residents.

An “Immediate Jeopardy” (“IJ ") citation involves “a situation in which the provider's noncompliance has caused, or may likely cause, serious injury, harm, impairment, or death to a resident." Once a hospital or healthcare organization gets an IJ rating, it's given a time frame to fix the deficiency. If not, CMS could terminate the facility’s CMS funding. IJ citations can be accompanied by a baseline $100,000 fine, plus up to $10,000 per day retroactive to the date of the incident.

What is CMS’ “Severity and Scope” Table?

The seriousness of any given F-Tag deficiency determines the Severity and Scope (a.k.a., “S/S”), an alphabetic supra category assigned to any given violation or deficiency F-tag number.The Severity ratings include:

• Level 1, “No Actual Harm With Potential for Minimal Harm"

• Level 2, “No Actual Harm With Potential For More Than Minimal Harm That Is Not Immediate Jeopardy”

• Level 3: “Harm That is Not an Immediate Jeopardy”

• Level 4: “Immediate Jeopardy to Resident Health or Safety."

Coupled with the “Severity” level assigned, is the “Scope” level involved, including “Isolated,” which suggests few patients were affected or a situation occurred only occasionally. “Pattern” in which surveyor’s documented the pattern of patients affected involves more than three residents but less than 75% of the nursing home population.
"Widespread,” which may have affected a greater number of patients throughout the facility or systemic failure in a facility.

None of the ratings and F-tags appear to be “arbitrary" or left to the discretion of a surveyor. If a facility can document that a surveyor was being flagrantly punitive, and clearly in error, the facility can appeal the violations and findings. They can be overturned, which would reflect badly on the surveyors’ continued employment (and perhaps their future pensions) by the state DPH or CMS.

Quantitative Data:  LHH Inspections, F-Tag’s and Severity-and-Scope Violations

Between LHH's initial October 14, 2021 inspection and its March 28 inspection survey, LHH faced five additional inspection surveys, racking up 13 severity-and-scope findings over CMS deficiencies. LHH had to revise its multiple plans of correction. LHH knew if it failed to correct the recurring survey deficiencies, it might result in termination. LHH received warnings of looming termination.

LHH then flunked its April 14 final survey, racking up 9 more severity-and-scope findings (for a total of 22 since October). What DPH and the Board of Supervisors haven’t yet acknowledged is that CMS apparently found good cause to terminate LHH from the Medicare Provider Participation program and did so.

Had LHH passed the survey, it wouldn’t have been terminated, wouldn’t now have to face recertification, and wouldn't have lost 120 beds.

The IJ S/S “K” citation severity involved F-tag #689 that LHH received during its CDPH March 28, 2022 resurvey and LHH’s plans of correction as a Substandard Quality of Care violation in the 483.25 “Standard of Care” group in the “Federal Regulatory Groups for Long-Term Care."

Across the seven inspections conducted at LHH between October 14, 2021 and March 8, 2022, CDPH examined at least 17 “Facility Reported Incidents” (FRI’s) in addition to other inspection areas involved in “Abbreviated Standard Survey” resurveys, and plans of correction.

Unfortunately, the Regulatory Affairs Report agenda item presented during the July 12 LHH-JCC meeting disclosed that between May and June 2022 LHH reported an additional 35 FRI’s to CDPH that CDPH has not started investigating as of July 12.  The May 10 LHH-LHH meeting had reported 40 earlier FRI’s, for a total of 75 FRI’s between March and June, 2022. The May Regulatory Affairs Report had also reported pending CDPH site visits to LHH had 270 pending FRI’s.

This is somewhat alarming because if there are any additional “S/S” citations issued when CDPH gets around to investigating those 35 FRI’s, it may further jeopardize LHH’s ability to gain CMS re-certification.  That’s scary precisely because LHH may still not be in substantial compliance with CMS regulations.
[Note]  The LHH-JCC is a joint Health Commission sub-committee comprised of three Health Commissioners and members of LHH’s senior management team.]

In addition to the 17 FRI’s CDPH investigated during its first seven LHH survey inspections, the additional 35 FRI’s LHH’s Quality Management Department staff reported to the LHH-JCC on July 12 after LHH had already lost its CMS certification totaled 52 FRI’s. LHH can’t afford to rack up any more FRI’s between July and August as it slouches toward submitting its recertification at the end of August and a CDPH resurvey around September 15. FRI’s are self-reported by LHH.

Visualizing Violations That Led to LHH’s Decertification

Visualizing the CDPH deficiencies and violations that led to CMS yanking LHH’s Medicare funding is useful. Table 1 summarizes the Federal Regulatory Groups that apply to Skilled Nursing Long-Term Care facilities, and the 16 F-Tag’s violated that led to LHH receiving a total of 22 F-Tag deficiencies.

Table 1:  Summary of Eight CDPH Inspection Findings

The first chart below depicts the 22 “Severity-and-Scope” ratings LHH received during eight CDPH survey inspections conducted at LHH between October 14, 2021 and April 14, 2022. It’s a different way of visualizing the table above.

DPH and LHH have diminished and downplayed the severity of the 22 “S/S” citations.
By way of comparing and contrasting the chart above, the second chart below depicts the 10 “Severity-and-Scope” ratings LHH received during inspection surveys conducted in response to the costly patients sex abuse scandal at LHH in 2019, which costs have totaled at least $1.8 million to date, with two patient lawsuit settlement awards and costs of City Attorney time and expenses still not concluded.

Qualitative Narrative of CDPH Findings

Dr. Kerr reported in a May 22 Westside Observer article, “Turmoil and Crackdown at LHH,” several problems caused by mixing behavioral health [mental health] and substance abuse patients in 2014 among the vulnerable elderly population. LHH was unable to provide adequate care and treatment then and still is now 18 years later. These problems haved existed since 2004 and led to the “Patient Flow” disaster of discharging SFGH patients to LHH.

For instance, Kerr reported in October 2021 that two LHH residents overdosed on fentanyl and methamphetamine. One of them spent weeks hospitalized for drug-related seizures, and the other ended up on a ventilator for respiratory failure. During a CDPH inspection survey, 23 of 37 sampled patients possessed contraband, including syringes, drugs, and drug paraphernalia. Kerr also reported that State inspectors determined Nurses lacked “the specific competencies and skill sets necessary to perform clinical [safety] searches [for contraband smuggled into the facility], thereby posing a risk to residents and staff.”  He also noted that LHH reported 17 FRI’s to CDPH involving cases of resident-to-resident altercations that month, practices “placing all residents into [an] unsafe living environment.”

He also reported that CDPH inspectors found significant discrepancies between written physician orders and what nurses had entered into patient Care Plans.
• A patient needing range-of-motion (ROM) exercises to improve their mobility and prevent further decline in physical functioning didn’t receive the exercises. (F-Tag #688 “Increase/Prevent Decrease in ROM/Mobility,” a Quality of Care violation).
• An oxygen-dependent patient received lower amounts of oxygen than prescribed.
• There were violations by nursing staff of COVID-19 protection precautions.
• A crash cart used to store and transport medical supplies for an emergency (typically stored in an unlocked central area for nurses) was instead stored in a locked area, slowing access to the cart.

Kerr’s series of articles are well worth reading. But the situation was actually much, much worse.

First, during the CDPH inspection survey on March 28 just before LHH was terminated from CMS participation, LHH received an F-Tag #645 violation. That tag involves “PASARR Screening for MD & ID (Mental Disorder/Intellectual Ability).” PASARR stands for Pre-Admission Screening and Annual Resident Review. PASARR is a federal program implemented in 1987 to prevent individuals with mental illness (MI), intellectual disability (ID), or related conditions (RC) being inappropriately placed in a Medicaid-certified nursing facility like LHH for long-term care.

The intent of F645 is to ensure that each resident in a nursing facility with one of these conditions is screened prior to admission and that those people who are identified to have MD/ID are evaluated and receive the care and services that they need in the most appropriate integrated setting, unless special circumstances exist.

During the March 28 inspection, CDPH noted an LHH resident initially admitted in April 2021 for a stroke and schizophrenia had a significant change of status on 7/13/22. Still, there was no PASARR re-assessment completed when it should have been. [Note:  It’s thought the change of status was in July 2021 and may have been a typo.]  The PASARR re-assessment may not have been done during the nine-month period between July 2021 and March 2022 when CDPH discovered the problem.

Second, results of the October 14, 2021 CDPH survey report showed 18 Nursing staff had reported to CDPH inspectors that they had received no formal training on conducting clinical safety searches of patients and their rooms for illegal contraband. They included 2 Nurse Managers, 4 Certified Nursing Assistants (CNA’s), and 6 Patient Care Assistants (PCA’s) and 6 Registered Nurses (RNs). One RN said they had last received safety search training eight years earlier in 2013. Another RN said they had last received such training three years earlier in 2019.

Five months later, during CDPH’s March 2022 resurvey, LHH staff reported more damning information to CDPH inspectors. A Nursing Director reported:

“LHH needed to address the root cause of how these substances and contraband get into the hands of our residents and continue to flow into the facility. Our team have exhausted most options in helping eliminate or minimize the contraband and illicit substances [getting] into the unit.”

A Chief Nursing Officer told inspectors, among other things:

“For clinical [safety] searches, she expected Nursing staff to call the onsite Sheriff for observation and to follow basic safety procedures. …  acknowledged [LHH’s] current policy on illicit contraband substances and, [LHH’s] search [policies] needed to be updated, along with a more robust Nursing education.”

The lack of training on safely conducting clinical safety searches obviously contributed to the rampant illicit drug use by LHH’s patients.

Most damning, apparently when reviewing a patient’s chart, CDPH stumbled across a note a Psychiatrist MD (PD #1) had written on March 18 — prior to the March 28 CDPH inspection — stating:

“During motivational interviewing (a type of talk therapy by skilled mental health providers he was using), a resident engaged in smoking an unknown substance out of foil. The PD’s note indicated the resident had a ‘history of Fentanyl/Opioid use disorder,’ meaning addiction or use of unprescribed substances. PD #1 stated the substance [ab]use by Resident #2, who shared a room with a bed-bound resident, and the use of [an] igniter was a safety issue [apparently a safety issue for his roommate and hospital staff.]

The chart notes indicated that in an interview with PD #1 on March 18, the Psychiatrist MD stated:

“The level of mental health care provided in LHH was like a community clinic, [but] Resident #2 needed a higher level of mental health interventions for his addiction(s) [ostensibly a facility higher than a community clinic].”

There you have it: LHH’s ability to provide mental health care beyond a community clinic level is virtually nonexistent.

LHH Failed to Pursue CMS Remedies to Decertification

Potential remedies to resolve LHH’s violations included incremental penalties, such as fines or denial of payment, or optionally, CMS managers could be appointed to take over in a “receivership” to oversee LHH’s operations — rather than terminating LHH’s provider participation in CMS’ reimbursement program.

From my perspective, CMS should have stepped in by exerting receivership to take over LHH’s operations, temporarily removing DPH and the Health Commission from control over LHH. That would have been a far better option to protect LHH’s current and future patients, and protect SNF beds already in critically short supply in San Francisco, instead of permanently eliminating those beds San Franciscans will need in the future.

LHH claimed it had “no responsive records" to public records requests concerning a written waiver to agree to forego a hearing to contest the citations and fines. A hearing could earn a 35% reduction in the Civil Monetary Penalties (CMP) assessed against LHH — but which would have amounted to an admission of LHH’s guilt regarding the violations. The records request also sought to learn how much of the $409,000 in CMP fines had been paid or placed in escrow to date; LHH also claimed it had “no responsive records.”

Also, page 8 of the April 30, 2022 CMS letter “Notice of Survey Findings … and termination of Medicare Provider Agreement” notified LHH that if it disagreed with the determination to impose remedies — including possible termination of LHH’s Provider Participation Agreement — LHH could request a hearing before an Administrative Law Judge of the US DHHS Appeals Board.

Page 6 of the same CMS letter notified LHH of alternate opportunities for either an Informal Dispute Resolution (IDR) or Independent Informal Dispute Resolution (IIDR) hearing — one or the other, but not both — following each CDPH state survey visit between October 2021 and March 2022. In response to a records request placed by the Westside Observer, DPH invoked a ten-day extension, indicating it would respond by July 25.

So, at this point, it's not clear whether LHH appealed the termination notice or availed itself of other remedies. DPH’s delay in acknowledging what remedies it has pursued and by what date is more than curious.

Back to Déjà vu and the 2006 “Prop. D”

In an act of déjà vu, we’re right back where we started with the flow project of 2004 — mixing behavioral and substance abuse patients in cramped proximity with the vulnerable elderly, which led to “Prop. D” in 2006:  Everything that could possibly go wrong with this patient mixing, is once again going wrong.

Beginning in early 2022 DPH and LHH falsely alleged CMS violations and deficiencies at LHH are minor and correctable. But CMS and CDPH have also always viewed them as alarming and serious deficiencies. It seems the Board of Supervisors may have fallen for DPH’s deceit and minimizations. It’s obvious that fixing the drug/contraband problem and COVID-19 infection prevention procedures, among other issues, are life-or-death matters. They need to be fixed before LHH gains CMS recertification.

Dr. Terry Palmer, a Geriatrician who worked at LHH for over a decade, believes that DPH and LHH need to negotiate with CMS to stop all discharges now. She notes, “People who really need to stay in a skilled nursing facility should stay at LHH until it is recertified.” Palmer has also stated:

“And for those who don’t need SNF level of care, the Mayor, Board of Supervisors, and DPH need to work with the nonprofit sector to find or create beds for people who have addiction issues or mental illness and who need a board-and-care home with supportive services and staff. The people of San Francisco shouldn’t be paying for this by permanently losing SNF beds at LHH that they may one day need to inhabit.

The people of San Francisco need ALL of these 760 skilled nursing beds. We need Laguna Honda to devote all 760 of LHH’s licensed beds to SNF care, because there is already a severe shortage of in-county SNF beds.”

During the Board of Supervisors hearing on June 14, it sounded as if DPH contemplates splitting the two patient towers at LHH into separate kinds of facilities. One for SNF patients and one for “behavioral health” (a.k.a., mental health) patients. DPH would do so by “cohorting” (grouping and restricting) the two patient populations in each building. That would be difficult, because both Patient Towers are connected to the Pavilion Building connecting the two Towers with amenities shared by both Towers.

The South Tower has 300 beds, while the North Tower has 420 beds. If the South Tower is used for LHH’s current 135 behavioral health patients, DPH may be emboldened to admit an additional 165 “behavioral health” patients. That would eliminate another 165 SNF beds desperately needed in-county for SNF patients. And it would portend more out-of-county SNF patient discharges with the loss of SNF beds for the elderly and disabled LHH has traditionally served.

Alternatively, if DPH were to decide to expand placement and admit 265 additional “behavioral health” patients into the 400-bed North Tower, that scenario suggests only 300 SNF patients would remain at LHH and at least 146 additional SNF patients would be dumped out-of-county — because they are easier to dump out-of-county than are “behavioral health” patients.

That might blow a hole in Dr. Palmer’s assertion that we need “all 760 of LHH’s licensed beds for SNF care,”although she might be assuming the 120 beds being eliminated due CMS’ “two-bed per room rule” is somehow found invalid and overturned, and we get to keep all 760 beds.

Worrisome, several members of the Board of Supervisors seemed receptive to this plot on June 14.

Where Do We Go From Here?

Notably, between the announcement of LHH’s Closure and Patient Relocation and Transfer Plan on May 13, 2022, there have only been 48 patients actually discharged since May 16 when the LHH Closure Dashboard began reporting statistics, plus an additional patient census reduction of another 12 patients who died or fled LHH AWOL/AMA, for a total census reduction of 60 patients.

Of the patient census as of May 16, those 60 patients no longer at LHH represent a mere 8.8% reduction from the then-681 patient census. That would leave 621 patients facing rapid out-of-county discharge over the next two months before September 15. The discharge of 621 patients in the next 60 days will probably not succeed or occur smoothly, protecting residents' rights. Those discharges need to be monitored carefully and closely.

In additon:

1. SFDPH Must Be Ordered to Be More Transparent About LHH Closure Dashboard  During the Board of Supervisors June 14, 2006 Committee of the Whole hearing on the LHH closure plan, interim LHH CEO Roland Pickens stated at 4:39:28: “So, again, our goal is to be transparent. We have nothing to hide.” 

In contemporaneous reporting from SFDPH’s July 17 remote “Laguna Honda Stakeholder Meeting,” the City’s Public Guardian announced two conserved patients who had been discharged during LHH’s closure plan to out-of-county SNF’s died within days following their discharges. DPH must be ordered to work closely with the Public Guardian’s Office and San Francisco’s SNF Ombudsman to obtain and report post-discharge patient deaths publicly on SFDPH’s on-line LHH closure statistics Dashboard to be as transparent as possible about patient outcomes post-discharge. 

Additionally, although SFDPH’s Dashboard for July 11 shows 48 patients have already been discharged, another 10 patients have died at LHH and two residents fled AWOL or against medical advice, for a total census reduction of 60 residents.  Although SFDPH has been reporting the in-house patients deaths and AMA/AWOL data in a different daily/weekly report to CDPH, LHH has so far failed to include that data on its weekly Dashboard updates.  SFDPH must be required to report that data, and also report the post-transfer discharge outcome data of deaths on the Dashboard.

2. The Board of Supervisors Should Request CMS Place LHH Into Receivership  Since receivership is an option under CMS’ authority over SNF’s, the Board of Supervisors should formally request that U.S. Health and Human Services Director Xavier Becerra, Governor Gavin Newsom, and San Francisco’s Congressional delegation rapidly request CMS impose Federal authority place LHH under CMS Receivership and oversight, and take LHH out of the hands of the San Francisco Department of Public Health and the Health Commission who have both failed to provide adequate oversight of LHH for years and years.  Doing so might help re-open admission to LHH to patients of private-sector City acute-care hospitals who have been forced to discharge their patients needing skilled nursing level of care to out-of-county facilities for years, and might re-open admission of patients from home who have been denied admission to LHH and who languish on a admission waiting list because SFDPH has restricted admission to LHH to only SFGH “Flow Project” patients, also for years and years.

3. The Board of Supervisors Must Halt Any Plans to Split LHH Into Two Types of Patient Populations  Given the discussion raised by LHH Acting CEO Roland Pickens during the June 14, 2022 Committee of the Whole hearing on LHH’s closure plan, this Board needs to stop SFDPH’s plan to “cohort” the two patient populations into each of LHH’s two Patient Towers dead in its tracks.  If that “plot” continues to advance, the already critical shortage of SNF beds in the City will only worsen for generations of San Franciscans to come far into the future.  That plan must be permanently taken off the table as an option, now!

4. Halt Hiring Additional Senior Nursing Management at LHH  LHH’s interim CEO, Roland Pickens, announced during the July 12 LHH-JCC meeting that after he released his pilot LHH restructuring organizational chart on June 30 showing the hiring of 10 senior new Nursing management positions — including 1 Chief Nursing Officer (CNO), 1 Nursing Home Administrator (NHA), 1 Assistant Nursing Home Administrator (ANHA), 3 Directors of Nursing (DON), and 4 Assistant Directors of Nursing (ADON) — LHH has just hired an additional “Nurse Executive,” separate from the June 30 pilot org chart.  Why are 11 new senior Nursing management positions, rather than Nursing line staff, necessary?  SFDPH must be ordered — along with its two new consultants at a cost of $5.5 million — to stop hiring any more senior Nursing management staff!

5. Direct Expansion of LHH’s Restorative Care/Functional Maintenance Program and Hire More Restorative Care Therapy Aides  As you may know, the Health Management Associates consultants June 13 Preliminary Assessment Report noted CMS is concerned about LHH’s restorative care program to prevent decline in patients functional abilities. That is of concern for CMS recertification of LHH, too, and had been of concern to the U.S. Department of Justice who had found in 1998 (and written a letter to then-Mayor Willie Brown) that LHH patients’ civil rights were being abused because of decline in their functional abilitiies.

Before my job classification code was eliminated in an SFDPH-wide budget cutting move in late 2010, I supported a team of senior Rehabilitation Services clinicians in LHH’s Rehab Services Department for a decade. In August 2009 those clinicians created a two-prong “Restorative Care Program” (RCP), initially called the “Functional Maintenance Program’ (FMP); they created LHH’s restorativre care program to address the Justice Department’s concerns.  The two prongs involved a centralized Level 1 restorative component in the Rehab Services Department located adjacent to the new aquatic therapy swimming pool in the replacement hospital that was stocked with costly specialized gym equipment. They hired hired four restorative care Therapy Aides having specialized training in rehab and restorative therapy techniques, and were supervised by senior Physical Therapists and Occupational Therapists.

The second prong was a separate Level 2 ward-based Nursing restorative care program component, including evening hours programming on each ward. Unfortunately, the ward-based Level 2 Nursing restorative care component was never really created or implemented. 

Following the opening of LHH’s replacement hospital in 2010, a few years later the Nursing Department staged a coup and took over the Level 1 restorative care component, taking it from a centralized program to a ward-based program placed under Nursing Department supervision.  It’s thought Nursing supervisors do not have formal graduate school education and training iin phsyical therapy and occpational therapy techniques in such areas as range-of-motion exercises, gait exercise training, upper-extremity exercise, or activties of daily living training skills

It’s reported that the Level 1 restorative care program has essentially ended. That program should be restored to its former purpose, quickly, in order to assist in regaining CMS recertification.

• As well, SFDPH just responded to a recent public records request the Westside Observer placed seeking aggregate de-identified patient data from SFDPH’s “Epic” Electronic Healthcare Records (EHR) database for the number of physician referrals for Physical Therapy and Occupational Therapy restorative care treatment requests placed in the two years since the Epic database went live in 2019. Sadly, SFDPH responded once again that it had “no responsive records.”  Epic can’t track either the number of out-of-county discharges, or the number of restorative care referrals, and the HMA consultants were having trouble even accessing the Epic database to check on other types of patient care plans that are supposed to exist in the Epic database. That’s not going to help LHH regain CMS certification, either.

6. Appoint New Health Commissioners  Mayor Breed needs to be asked to replace several Health Commissioners, including Dr. Edward Chow who has served on the Commission for 30 years preventing “fresh blood” on the Commission — and who serves on the LHH-JCC and has known about the systemic failures of LHH’s management team for years — must be removed for having contributed to the CMS closure mess at LHH. Like former CEO Michael Phillips, Chow needs to be held to account, too, along with other LHH-JCC Commissioners.

7. Terminate LHH Housing Project Contract  The Board of Supervisors should immediately direct MOHCD to cancel and terminate Mercy Housing’s contract to build up to 269 independent housing and assisted living units on LHH’s campus — including market-rate units — and direct MOHCD to re-allocate that grant award to another housing developer for other senior housing projects. After all, three years after Mercy Housing was awarded the contract in 2019, Mercy is no closer to beginning construction, first purportedly due to delays from the COVID pandemic, and now due to the LHH’s CMS closure fiasco.

The crisis with LHH obtaining CMS recertification should not further delay construction of senior housing that could be built faster in other areas of the City.

There’s a lot the Board of Supervisors should do before they go into recess for all of August in a full-month absence. 

Monette-Shaw is a columnist for San Francisco’s Westside Observer newspaper, and a retired City employee. He received a James Madison Freedom of Information Award in the “Advocacy” category from the Society of Professional Journalists–Northern California Chapter in 2012. He's a member of the California First Amendment Coalition (FAC) and the ACLU. Contact him at monette-shaw@westsideobserver.com.

July 19, 2022

Laguna Honda Hospital—the rest of the story

LHH Cuts 120 Beds, Hires More Management Fat

by Patrick Monette-Shaw

The potential threat of closing Laguna Honda Hospital (LHH), as Westside Observer readers are likely aware, is a result of losing eligibility for the Centers for Medicare and Medicaid (CMS) reimbursement program for low-income elderly and disabled San Franciscans. This would be a disaster for patients, families, and their beloved skilled nursing facility.

This article supplements Dr. Derek Kerr's current article in this edition of the Westside Observer.

Admissions Halted, Reimbursements Iffy

CMS halted new admissions to LHH on April 14 and is only continuing to reimburse the City for LHH’s patients through September 15. It has tied recertification to a demonstration of its progress toward discharging all 686 patients — 96.5% of whom are on Medi-Cal — before September 15.

LHH’s census of 686 patients as of May 6 was noted in LHH’s Notification of Closure and Patient Transfer and Relocation Plan. There were 710 patients on October 14, 2021, but by June 26, 2022, the number dropped to 644 — down 66 patients in the past six months. That’s significant lost revenue for LHH.

It’s all but guaranteed that LHH will not be able to find skilled nursing facilities that accept Medi-Cal patients either within the City, in the nine neighboring Bay Area counties, or even in-state by September 15, since few nursing homes do.

Even though that crisis is just beginning and nowhere near complete, another problem emerged overnight on June 30: LHH suddenly decided to eliminate 120 of its current 769 patient beds.

Imminent Closure of 120 of LHH’s Beds

A source informed the Westside Observer late in the evening of June 30, that LHH’s Interim CEO, Roland Pickens wrote to staff announcing an immediate reorganization —July 1, 2022, claiming that CMS is “requiring" a reduction of 120 beds, a 15.6% change decline from 769 beds to just 649.

The reason for eliminating 120 beds — which Pickens claimed was required by CMS — needs attention.

That reduction comes on top of downsizing LHH from 1,200 beds to just 780 beds in the replacement hospital that opened in 2010. Eliminating those 420 patient beds in the new Patient Towers represented a 35% change decline in LHH’s bed capacity. Combined, the reduction from 1,200 long-term care beds at LHH to just 649 as of July 1 amounts to a 46% decline.

This week, reports have touted that LHH represents 34% of all skilled nursing facility (SNF) beds in San Francisco. That may have been based on a 2016 report titled “Framing San Francisco’s Post-Acute Care Challenge." It reported 2,542 skilled nursing beds in San Francisco (presumably after the 420 beds were eliminated from the LHH rebuild project). If LHH represents 34% of all SNF beds in the City, the total number of beds appears to have declined by 282 in the past six years. That suggests LHH’s remaining 649 SNF beds will represent just 28.7% of all SNF beds in the City, not 35%.

That's 282 beds lost citywide in the past six years. LHH is now poised to eliminate an additional 120 SNF beds, which portends 402 SNF beds will be lost since 2016 — almost as many as the 420 SNF beds removed from the LHH rebuild in 2010. 

No wonder so many SNF patients have already been discharged out of the county. We do know that between July 1, 2006, and December 31, 2019, there have been a minimum of 1,746 out-of-county discharges, albeit that represents just a fraction of the discharges given significant gaps in unreported data. SF's Department of Public Health (DPH) now claims its new Electronic Health Record system — Epic — can’t identify how many out-of-county discharges there have been between SFGH and LHH since 2019. Because DPH hasn’t provided updated discharge data from the City’s private sector hospitals since July 1, 2018, we have no idea how many more than 1,746 out-of-county discharges there have been during the past 16 years.

Sadly, we do know that with CMS’ requirement that LHH needs to discharge all 686 residents it had as of May 6 or risk not being recertified for CMS reimbursement, the number of out-of-county discharges will continue to climb sharply. 

Change Pickens' Nursing Home Administrators to "Management Fat”

Pickens' letter announced other substantial changes — being implemented immediately — including hiring a Licensed Nursing Home Administrator (NHA) and an Assistant Nursing Home Administrator (ANHA). Pickens claimed:

“The NHA and ANHA will be advising and supporting members of the Laguna Honda senior management team (CEO, Administrative Director 1, and Administrative Director 2) and teaching these members of the senior management team how to incorporate and implement the roles of NHA and ANHA into the day-to-day operations of our skilled nursing facility, with a focus on CMS regulatory compliance and patient safety.”

It's unclear who the two “Administrative Directors” Pickens referred to are.

Pickens didn't note that an organizational chart he included shows that the NHA position will report to LHH’s CEO (currently Pickens), which is marked on the org chart as “No Supervision.”  Presumably, the NHA position will be advisory and will not supervise any subordinate direct reports. 

One would expect that LHH’s Director of (DON) Nursing and two Assistant Directors of Nursing would report to the new Nursing Home Administrator position. How can Pickens or Grant Colfax hope to improve LHH’s organizational structure if the NHA position will not supervise direct reports?

This is patently ridiculous. My Aunt “Punky” (my father’s sister) was an NHA administrator, and she didn’t report to a CEO of a nursing home. She served essentially as the facility’s CEO.

What’s more, LHH’s last licensed NHA — Lawrence Funk — was actually LHH’s CEO. In essence, he supervised the entire hospital, albeit through layers of direct reports.

An Historical Perspective

Laurence (Larry) Funk joined LHH in 1987 serving in senior management positions for 17 years, including as LHH CEO between 1998 and 2004. But when then-Director of Public Health Mitch Katz introduced his disastrous “flow project” in 2004, it shunted angry, able-bodied and violent behavioral male patients from SFGH, forcing LHH to accept them. That precluded screening by LHH's Physician Screening Committee. Funk — an experienced NHA — bravely stood up to Katz and objected but was soon replaced because of his objections. He was the last CEO at LHH to actually hold an NHA license. While Funk served as CEO, LHH passed all of its CMS surveys without ever losing CMS certification and reimbursement.

Katz appointed John Kanaley as Funk’s replacement in November 2004, a man whose prior job experience was in “facilities management,” not hospital administration. He served 14 years in facilities management in SFGH’s Plant Services Department. Kanaley earned a master’s degree in public health in 2001 — just three years before being appointed LHH’s executive administrator. He authored a thesis involving the evaluation of hazardous waste operations and removal. Many people believed Kanaley was hired to perform hazardous employee removal of LHH’s staff. Kanaley had no experience whatsoever running a skilled nursing facility (SNF) and certainly no experience or training in running a 1,200-bed nursing home involving approximately 1,500 employees.

In March 2004 Katz launched his misguided attempt to convert LHH into a “psychosocial rehabilitation center for the urban poor” by instituting his notorious “flow project” to divert patients discharged from SFGH into LHH. Katz had unilaterally changed LHH’s admissions policy over the strong objections of LHH doctors concerned about patient safety. Katz’s botched plan was eventually halted by then-Mayor Gavin Newsom and then-District 7 Supervisor Sean Elsbernd.

When news surfaced that Katz had forced Funk out, 415 LHH staff — including nurses, certified nursing assistants, social workers, activity therapists, dieticians, physical therapists and occupational therapists, hospital volunteers, psychologists, and clerical and secretarial employees, — signed a petition to restore Funk as CEO. The petition was addressed to Edward Chow, MD, President of the Health Commission. Chow himself advocated returning Funk to his position.

Another 32 members of the Medical Services Department (doctors and psychiatrists) signed a separate petition to Dr. Katz and the Health Commission, expressing their wholehearted support of Funk and urging Katz to reinstate Funk as CEO. Within weeks of Kanaley’s appointment, a contingent of LHH’s high-level senior administrators met with Dr. Katz regarding concerns about Kanaley’s appointment and lack of credentials, experience, and qualifications. Katz reportedly told the contingent it didn’t matter because he wanted somebody who would “kick the (LHH) doctor’s asses.” 

Kanaley wasn’t the first, and not last, LHH CEO without an NHA license. When Kanaley suddenly dropped dead in 2009, Katz appointed Mivic Hirose, RN, as LHH’s CEO. Hirose wasn’t licensed as an NHA either, but she obediently tried to support Katz’s plan to turn LHH into a psychosocial rehabilitation facility to protect Katz’s flow project.

In 2005, a ruckus ensued over implementing a “psychosocial rehabilitation” model of care that had been exported to LHH by Mozietta Henley, RN, Ph.D. She was shunted from the former Mental Health Rehabilitation Facility (MHRF) to LHH, toting along her “BioPsychoSocialSpirtual” (BPSS) model of care proposal that was never tested — and never implemented — at the MHRF. (And never really implemented at LHH either.)

Comically, Henley’s model of care became the impetus for a small California Health Care Foundation $50,000 grant that CEO Hirose was awarded for “Social Rehabilitation."  To curry favor with Katz, Dr. Lisa Pasual, Chief of physical medicine Rehabilitation Services for LHH — who was my boss, was co-awarded the grant. 

Hirose's January 2005 grant — which created a stir at City Hall — ended up a notorious flop, probably an embarrassment to the California Health Care Foundation. The final presentation focused primarily on using photos of the Nursing Team enjoying their grant-funded catered lunches and was a mere word salad.

LAGUNA HONDA CRISIS

July 12th
6 to 7:30 PM

Call to Action

How Do We Demand Honest Problem Solving Instead of Political Posturing?

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Or check the Gray Panthers’ website.

During Kanaley's and Hirose's tenures as CEO, LHH eventually passed all of their CMS surveys and re-survey’s without ever losing CMS certification and reimbursement.

Readers may recall Hirose was forced out in June 2019 after serving as CEO for a decade when the LHH patient sexual abuse scandal erupted. She was replaced by Michael Phillips, FACHE — a board-certified Fellow of the American College of Healthcare Executives. Phillips didn’t hold an NHA license either, and like Kanaley, Phillips had no experience running an SNF.

After conducting a 10-month nationwide search, Phillips was hired in April 2020 to replace Hirose. He had recently served as CEO of the Silver Lake Medical Center in Los Angeles. That comprised a dual-site 234-bed acute care Medical Center, including a 118-bed LPS Designated Behavioral Health Unit in the San Gabriel Valley and a 116-bed acute care hospital in downtown Los Angeles.

Knowledgeable observers suspect Phillips was hired at LHH based on his behavioral health unit experience, which could have come in handy with LHH’s increasing behavioral health patient mix and the "flow project." He served as CEO for barely over two years until just after CMS yanked its certification, leaving LHH the task of discharging up to 686 patients and the potential loss of close to $200 million annually in CMS reimbursement.

Phillips was the first CEO to fail to pass CMS surveys and the re-survey’s that resulted in the loss of certification and reimbursement. He left LHH abruptly on June 2, 2022, probably involuntarily.

In the end, LHH has gone for the past 17 years without a licensed NHA, ever since Funk was deposed and his replacements, first Barbara Garcia in 2011 after Katz was forced out in 2010, and then Dr. Grant Colfax, who became Garcia’s replacement in February 2019.

Notably, in the combined 21 years Funk, Kanaley, and Hirose served as LHH’s CEO, the hospital always retained its CMS certification and reimbursement.

“CMS-Required” Bed Reduction

As Dr. Derek Kerr adroitly reports in his current article “Karma or Persecution: Laguna Honda’s Ordeal” in the Westside Observer, the reduction of 120 beds was caused by the decrease of three-person rooms to two-person rooms “ordered" by CMS, according to Pickens. It is “intended to increase the quality of personalized care experiences." But that order may not actually be coming from CMS.

Growing Doubts

First, Pickens offered no evidence or public records documenting that DPH received any such recent "order” from either CMS or California's Department of Public Health (CDPH). Indeed, of the seven CDPH inspection surveys between October 2021 and March 2022 records indicate no mention of or deficiency issued regarding occupancy violations. Pickens didn’t cite any “order" regarding three-bed rooms that were received separate from, or in addition to, those seven inspections. 

Second, why would the architects' design for the LHH replacement facility for the new hospital have included three-person rooms if that violated specifications for designing long-term care skilled nursing facilities (SNF) when it opened in 2010?

Third, it was assumed that both the two-person and three-person rooms designed and built at LHH were "suites,” perhaps containing a shared bathroom but with clear dividers, walls, and doors between each patient's private bedrooms.

How can this be a new design requirement for long-term care skilled nursing facilities? How many other new SNF’s were constructed nationwide in the past 20 years that may also now be out-of-compliance with three-person rooms, and what will it cost to reconfigure or convert those rooms to remain in compliance with CMS reimbursement rules?

Is there suddenly a new “current regulation” that Pickens refers to that now requires two-person rooms in new SNF construction projects? Shouldn’t the new regulation have grandfathered in the existing three-person rooms constructed in earlier SNF construction projects?

Why would LHH choose to delete 120 patient beds while simultaneously adding layers of management fat by adding the NHA and ANHA positions, probably costing a minimum of $400,00? An Associate Hospital Administrator earns about $160,000 (exclusive of benefits). By way of contrast, Patient Flow Nurse Manager, Maria Chavez-Lagasca, earned $244,458 in the year ending June 2021, while Mr. Phillips earned $301,746, again exclusive of fringe benefits. It’s unknown when DPH may have added a “Patient Flow Nurse Manager” to LHH’s staff that it had never had before.

There is no money for beds, but plenty for nursing management “fat" salaries.

More Management Fat

LHH has engaged in two contracts to regain certification. They are with Health Management Associates (HMA) and Health Services Advisory Group (HSAG). Both contracts are premised on the need to improve:  Executive Leadership, Organizational Structure, Medical Staff, Nursing Operations, Hospital Governing Body, and overall Management, among other issues.

In addition to adding the new NHA and ANHA positions, there are more named positions in the aggressive hiring plans.

HMA’s “preliminary assessment report” specifically states:

“The existing Laguna Honda nursing leadership structure did not provide sufficient resources and management bandwidth to effectively operate resident care units and support unit staff. HMA and Health Services Advisory Group (HSAG) jointly recommended an immediate modification to the nursing structure. One of the key changes recommended is to create three Director of Nursing (DON) positions. Two of the DONs would take responsibility for all units in a tower at Laguna Honda and would have a (single) Assistant Director of Nursing (ADON) reporting to each [DON]. In addition, it recommends a new DON position to take responsibility for Nursing Operations, including services that are shared to support all units, such as Staffing, Education, etc.”

However, Pickens’ org chart shows a total of: Two DON’s (one for each Patient Tower), four ADON (two ADON’s for each of the two DONS), and the third DON, plus the NHA and AHNA. That's at least seven, if not more, new hires. All of these positions, starting at the DON management level, report to LHH’s “Chief Nursing Officer” — who reports to the facility CEO.

Do similarly-sized SNF’s nationwide all have a Chief Nursing Officer, three Directors of Nursing, four Assistant Directors of Nursing, a Nursing Home Administrator, an Assistant Nursing Home Administrator, multiple Nurse Managers, multiple Charge Nurses, and many Clinical Nurse Specialists overseeing various practice-area specialties? These additional positions don’t provide direct patient care of patients — in addition to the SNF’s CEO. Why not add 12 Drummers Drumming, 11 Pipers Piping, 10 Lords a Leaping, 9 Ladies Dancing, 8 Maids a Milking, 7 Swans a Swimming, 6 Geese a Laying, 5 Golden Rings, 4 Calling Birds, 3 French Hens, 2 Turtle Doves, and a Partridge in a Pear Tree? Or an unknown number of additional catered lunches for nurses purloined from restricted Patient Gift Fund accounts?

Remarkably, Pickens’ org chart shows that the North Tower ADON will indirectly supervise a Psych Tech, and the South Tower ADON will also indirectly supervise a second psych tech.

This is remarkable, because in 2010 (or earlier) LHH’s single Psych Tech position was eliminated in a DPH-wide budget-cutting move. So, adding two Psych Tech backs onto LHH’s staff may be a step in the right direction and an encouraging sign. Some observers question whether that may be insufficient. At around 4:24:24 on videotape of the Board of Supervisors Committee of the Whole hearing about the potential closure of LHH, Pickens noted that about 20% of LHH’s then 674 patients — approximately 135 residents — had behavioral health “needs.” Of note, Pickens didn’t mention whether or not those “needs” involve actual primary or secondary psychiatric diagnoses. 

Also, during the June 14 Board of Supervisors hearing Supervisor Mandelman asked general questions about LHH’s locked units (4:25:29 on tape). For her part, Supervisor Melgar stated definitively that “There are folks who are under conservatorship who need extensive care in locked facilities,” (at 4:25:29 on tape).

DPH’s now required daily and weekly reports to CMS and California DPH have reported only that there is a singled ‘Locked/Secured Memory Care unit” only in the North Tower-Mezzanine unit, thought to have approximately 60 beds, at most. Does LHH hold a psychiatric license to care for patients?

Will just two Psych Techs be enough to help 135 behavioral health patients?

It’s not known why Pickens suddenly implemented this pilot organizational restructuring just 16 days after the June 14 Board of Supervisor hearing, and just 23 days after the Health Commission approved funding for the two contracts.

[Note:  An extract of LHH’s pilot organization chart is available on my web site.  The entire chart is too large to post on-line in a readable format because the fonts are so small. The org chart focuses on the bloated Nursing management structure.]

The org chart extract shows a total of six Nurse Managers and six Charge Nurses — even before getting to the line RN and CNA staff nursing who actually perform the day-to-day bedside direct nursing care to patients. The Nursing Department’s “Nursing Operations” staffing is top-heavy with senior nursing staff who typically do not provide any direct patient care.

DPH Nurse Managers average $217,283, before fringe benefits. It seems  Nursing Department new hires will cost well over $2 million annually in base pay and overtime alone, before fringe benefits.

Just ten years ago there was a single DON (not three) and a single ADON (not four).

Proximity in Time

Another issue involves the spatial proximity in time. 

The two external consultants DPH hired to help LHH achieve CMS recertification — HMA and HSAG — were awarded “emergency” no-bid contracts worth a combined total of $5,560,612. San Francisco’s Health Commission approved the contracts on June 7, 2022. Additional costs continue to accrue.

Barely three weeks after the contracts were awarded, DPH announced the elimination of 120 beds at Laguna Honda.

Both consultants provided “preliminary assessment reports” of their initial recommendations on how to help ensure recertification. They were submitted to DPH — and shared with the Board of Supervisors by June 13, 2022. Only HMA’s “preliminary assessment report” has been made public. 

Nothing to Hide? Sunshine Denied.

In response to multiple records requests to obtain HSAG’s “preliminary assessment report,” DPH first invoked a 14-day extension to produce the report, citing the need to “consult with another interested City Department or agency” (probably the City Attorney's Office). Then on June 28, DPH changed its tune, claiming the report is totally exempt under California’s Public Records Act. DPH even refuses to provide any unredacted parts of the report.

What is in the HSAG preliminary assessment report the DPH is afraid of sharing with members of the public or LHH’s residents and their families? That opaque secrecy is the exact opposite of Pickens’ testimony to the Board of Supervisors on June 14 that DPH’s “goal is to be transparent. We have nothing to hide.”

The proximal period between the HSAG “preliminary assessment report” potentially shared with the Supervisors on June 13 and Pickens' June 30 letter — seven days later —  has raised concerns. It may have been HSAG — rather than CMS — that asserted the three-room rule, used to justify eliminating those 120 SNF beds.

Although Supervisor Aaron Pekin called for the Board of Supervisors to schedule a second hearing in July before the Board's Government Audit and Oversight Committee to discuss these germane issues, no such hearing has been scheduled.

Such a hearing could be held before the end of July. Why postpone a hearing — now scheduled months away — for September 13 before the Full Board? Patients facing out-of-county discharges should not have to wait another ten weeks before a hearing to take up the issue of the sudden and permanent elimination of 120 beds at LHH.

Is eliminating 120 SNF beds in a county already critically short of SNF beds a good idea? Is forcing the elderly and disabled out-of-county a good idea? The Board needs to step in and intervene to stop this and probe for answers.

Dedication: This article is dedicated to Larry Funk, who was removed as CEO but retained on staff to oversee the completion of LHH's rebuild. Funk had privately encouraged me to continue to work to stop the downsizing by cutting 420 SNF beds. Funk stood in stark contrast to my boss, Dr. Lisa Pasqual, who was under enormous pressure from Mitch Katz and John Kanaley to muffle dissent. Pascual frequently flew into my office, slammed the door shut, shouting “Can’t you please tone down your Westside Observer articles?”  To which I always replied by counting on my fingers:  1) I write my articles after hours and off the clock, 2) I value my First Amendment protections, and 3) The answer is ‘No, Lisa, I am not going to ‘tone myself down,” knowing I had long passed probation and couldn’t be fired for off-the job protected speech.

Mr. Funk would want to continue fighting to stop the cut of another 120 beds at LHH.

Monette-Shaw is a columnist for San Francisco’s Westside Observer newspaper, and a retired City employee. He received a James Madison Freedom of Information Award in the “Advocacy” category from the Society of Professional Journalists–Northern California Chapter in 2012. He's a member of the California First Amendment Coalition (FAC) and the ACLU. Contact him at monette-shaw@westsideobserver.com.

July 5, 2022

My April 19 Run-0ff Election Recommendation

Vote for Campos, Not Haney, for Assembly

by Patrick Monette-Shaw

About the time you read this, San Francisco’s Department of Elections will have already put your mail-in ballot for the April 19 Assembly run-off election into U.S. mail, so keep an eye out for it. Be sure to return your ballot promptly so special interests don’t steal this election from San Francisco voters!

As expected, David Campos and Matt Haney advanced following the special February 15 primary election and will face off in the April run-off election. As predicted, Ms. Selby and Mr. Mahmood were knocked out of contention and didn’t advance to the run-off.

Unqualified Candidates

As the January’s Westside Observer noted, neither Selby or Mahmood had ever held elected office and neither had legislative track records under their belts. Most voters consider the lack of previous elected office and lack of a legislative record as non-starters, disqualifying them from serious consideration due to lack of relevant job experience.

Selby raised $114,133 for her election through February 24, 2022 and obtained 5,261 votes (5.61%) of the 93,778 ballots cast by East Side voters eligible to vote in Assembly District 17.

By contrast, Mahmood raised $947,849, 58% of which he had contributed to himself ($550,000) — 46% higher than the $649,000 voluntary spending cap limit California’s FPPC had set for 2021–2022 for primary elections, which Matt Haney and David Campos had agreed to.

Mahmood did snag 20,895 votes (22.3%) of the 93,778 ballots cast by East Side voters eligible to vote in the February 15 primary election. He more than likely received substantial votes from YIMBY voters in AD-17, since both California YIMBY and YIMBY Action endorsed Mahmood, given their focus on advocating for market-rate housing, not affordable housing and their theory that affordable housing will eventually “trickle down.” YIMBY Action has asserted its e-mail list numbers around 10,000 people, many of whom live in AD-17 and were urged to vote for Mahmood.

Notably, the San Francisco Chronicle published a graphic showing the breakouts showing which precincts each of the four candidates won on February 15th. The map shows Mahmood snagged votes primarily in precincts in or adjacent to Pacific Heights and Dogpatch/Central Waterfront precincts, but few other precincts on the East Side of the City.

Qualified Candidates

It has largely gone unreported that the February 15 primary resulted in a mere difference of less than eight-tenths of one-percent of votes between the two unvanquished candidates, Campos and Haney. Haney finished with 36.44% of the 93,778 ballots cast during the AD-17 primary Special election, and Campos finished with 35.67%.

That’s a difference of just 0.77%. Haney garnered 34,174 votes compared to Campos’ 33,448 votes — a difference of only 726 votes. With Selby and Mahmood now out of the picture, the April 19 run-off election couldn’t be a tighter race.

The Chronicle map of precincts above shows the of East Side voters, Campos largely prevailed in the Mission District, Excelsior, Bayview-Hunters Point, Glen Park, and Forest Hill neighborhoods, and other precincts, including parts of Matt Haney’s own Tenderloin precinct. Haney largely prevailed in other East Side precincts. But of course, there was crossover between voters in the same precincts.

Now it will come down to which candidate is viewed as more credible, and their ability to turn out voters. Unfortunately, Bilal Mahmood wound up endorsing Matt Haney, as did YIMBY action, both putting their thumbs on the scale.

Notably, on Tuesday, March 15 Campos announced Ms. Selby has now endorsed and is supporting him in the April 19 run-off election.

Campaign Fundraising

Although the voluntary spending cap limit for the February 15 primary was $649,000 that Haney and Campos had agreed to, California’s FPPC increases the voluntary spending cap limit for 2021–2022 for run-off and general elections to $1,135,000 ($1.135 million). As of March 11, Haney’s fundraising committee had already raised more than the $1.135 million voluntary spending cap for the April 19 run-off election, but will probably keep raising additional contributions he can roll over to the June 7 primary and November 2022 general elections for a full Assembly term.

Indeed, the San Francisco Standard reported on February 1 prior to the February 15 special election primary that Haney admitted he had already rolled over $200,000 from his Recipient Committee ID #1441330 he set up for the June 7 primary and November 2022 general election cycle to his Recipient Committee ID #1442544 he set up for the February 15 primary and April 19 run-off elections.

Haney claims he has strong grassroots donor support and, in a January 3 press release that he will not accept corporate PAC (political action committee) donations. But in the real world, both claims appear to be wishful thinking.

Overall Contributions by Dollar Amounts

Campaign contribution data for the AD-17 Assembly election posted on the Secretary of State’s web site as of March 11 reveals interesting information about both the Haney and Campos campaigns.

Table 1:  Campaign Contributions, as of March 11, 2022

Despite Haney’s claim of strong grassroots support, Table 1 illustrates several key take-aways:

• First, 65.3% ($750,800) of the $1.15 million Haney raised to date came from the 131 donations of $4,900 and above, representing just 13.3% of Haney’s 982 donors through March 11.
  
  By contrast, only 35.6% ($244,900) of the $687,938 Campos has raised to date came from the 47 donations of $4,900 and above, representing just 4.3% of Campos’ 1,099 donors through March 11.
  
• Conversely, just 12.6% ($145,382) of Haney’s $1.15 million total donations came from the 638 donations of $500 and below, representing 65% of Haney’s 982 donors. Although Haney can claim 65% of his contributors are small-dollar donors, they contributed only 12.6% of his funds raised. That does not suggest a grassroots campaign.
  
  Again, by contrast, 28.3% ($194,378) of Campos’ $687,938 total donations came from the 891 donations of $500 and below, representing 81.1% of Campos’ 1,099 donors. Campos can rightly assert 81.1% of his contributors are small-dollar donors, contributing almost 30% of his funds raised. That suggests it’s Campos who is running a grassroots campaign.
  
• Somewhat shockingly, Table 1 shows that Haney had to refund 19 contributions totalling $45,204 — 3.9% of Haney’s total funds raised. That many refunds and the dollar amount of the refunds is not typical, but an outlier for any candidate. Of the 19 refunds, three that totaled $1,300 were to individuals and companies not involved in land-use and building issues that could come before San Francisco’s Board of Supervisors. The remaining $43,905 in refunds to the other 16 donors appear to have been to donors potentially having business before the Board of Supervisors, like real estate developers and property managers, among others.
  
  Even before the February 15 special election primary election, 48Hills.org reported on January 21, 2022 that “at least three [real estate] developers who have projects pending or recently approved by the city have donated to Sup. Matt Haney’s campaign for state Assembly,” and that Haney had agreed to return the illegal donations. The three donations totaled $10,545.
  
  Haney claimed his campaign compliance team didn’t catch the illegal donations during their initial donation background acceptance approval process, because “there is no universal way to search everyone who has or may possibly have in the future a land use matter in front of the city.” By January 10 the Secretary of State’s campaign finance reports showed across Haney’s two Recipient Committee ID # accounts, he had received just 138 donations. Most campaign compliance teams should have been able to spot those three illegal donations.
  
  But the situation was much worse. By February 24, campaign finance filing documents revealed Haney’s team had issued 17 refunds that totaled $19,646, which then grew in the two weeks between February 24 to March 11 to 19 refunds totalling the $45,204. It’s unclear why it took nearly two months (since January 21) for Haney’s team to get a handle on the illegal donation problem, or whether he’ll have to issue additional refunds.
  
• Most of the time, refunds are typically issued only due to clerical contribution errors. Indeed, of the three refunds Campos issued totalling $5,100, one was because a donor had hit the wrong button on an ActBlue donation screen and had not intended to donate $4,900 to Campos’ campaign.

Overall Contributions by Donor Category

The campaign contribution data posted on the Secretary of State’s web site sheds light on the types of donors contributing to each candidate.

The FPPC Form 460 that every campaign is required to file with the Secretary of State must categorize each donor as being from either “Individuals,” “Committees,” “Other,” “Political Parties,” or “Small Contributor Committees.” Unfortunately, the Form 460 are highly unreliable, extremely time-consuming to analyze without introducing errors, and beyond time constraints of citizen journalists.

Instead of relying on the 460 forms, the donor categories shown in Table 2 were a classification system which were clearly evident by the name of the individual donors in the Secretary of State’s data.

Table 2:  Donor Category, as of March 11, 2022

Table 2 shows the major types of donor categories. Of interest:

• Labor union organizations and labor union political action committees accounted for 81 (8.2%) of Haney’s 982 total donors, who contributed fully $409,435 (35.6%) of the $1.15 million Haney had raised through March 11.
  
  By contrast, labor union organizations and labor union political action committees accounted for just 14 donations (1.3%) of Campos’ 1,099 total donors, who contributed just $67,200 (9.8%) of the $687,938 total donations Campos had raised through March 11.
  
  The huge difference between the $67,200 (9.8%) Campos raised from unions and union PAC’s compared to the staggering $409,435 (35.6%) Haney raised from unions and union PAC’s speaks volumes.
  
• Significantly, of Haney’s 81 union and union PAC donations $311,428 (76.1%) was donated by 55 building and construction trade unions and laborer unions (BCTL unions), 68% of the 81 unions and union PAC’s. The $311,428 donated by the BCTL unions represents fully 27.1% of the total $1.15 million Haney raised through March 11.
•  
• By comparison, the14 labor union PAC’s that donated $67,200 (9.8%) of Campos’ total campaign donations through March 11 represent nurses and other healthcare workers, teachers and educators, hotel and restaurant hospitality workers, transportation workers (like MUNI employees), and a broad spectrum of professional and technical employees.
  
• Donations from organizations, organization political action committees (PAC’s), and companies accounted for 76 (7.7%) of Haney’s 982 total donors, who contributed $187,196 (16.3%) of the $1.15 million Haney raised through March 11.
  
  By contrast, donations from organizations and organization PAC’s accounted for just 20 (1.8%) of Campos’ 1,099 total donors, who contributed $53,491 (7.8%) of the $687,938 total donations Campos raised through March 11.
  
  Of note, Haney accepted $70,946 (5.1%) in donations from companies and corporations, compared to zero such donations to Campos’ because he had pledged to run a corporate-free campaign.
  
• Although donations from individuals accounted for 806 (82.1%) of Haney’s 982 total donors, they contributed just $598,690 (52.1%) of the $1.15 million Haney raised through March 11 (before adjusting downwards for the Returned Donations, all of which were refunds to individuals — other than one $1,000 contribution to a single company).
  
  Again by contrast, donations from individuals accounted for 1,062 (96.6%) of Campos’ 1,099 total donors, who contributed $572,347 (83.2%) of the $687,938 total donations Campos raised through March 11 (before adjusting downwards for the Returned Donations, all of which were refunds to individuals).
  
  Mr. Campos appears to have strong grassroots support from individuals in terms of both the percentage of individual donors and the amount his individual donors raised towards his total contributions.

Candidate Endorsements

Endorsements posted on each candidate’s web site as of March 10 illustrate what level of key support they have — beyond campaign donations — and from whom, to help voters assess how to cast their votes. As always, the shifting data is instructive.

Table 3:  Endorsements, as of March 10, 2022

Table 3 illustrates, in part, the level of endorsements from elected officials, organizations, and individuals and community leaders who ostensibly choose which given candidate better “plays well with others” when deciding whom to endorse.

Interestingly:

• Of each candidate’s total endorsements as of March 10, Campos’ 245 endorsements suggest his endorsers believe he “plays well with others” 2.3 times more than Haney’s 105 endorsers.
  
• Including all elected officials, Haney’s endorsements page lists just 14 named elected officials, 4.4 times fewer than Campos’ 61 elected official’s endorsements.
  
• Campos received 18 endorsements from current and former City Supervisors, compared to just 2 for Haney. It’s clear that the majority of Haney’s current and former colleagues on the Board of Supervisors are backing Campos, not Haney.
  
• Campos received 2 endorsements from former San Francisco Mayors: Art Agnos and Willie L. Brown, Jr.
• Beyond San Francisco’s elected officials, Campos received 41 endorsements from other state and other elected officials, 3.4 times more than Haney’s 12 such endorsements.
  
• Campos not only received more on-line endorsements from community organizations, he received twice as many endorsements from Democratic political clubs in San Francisco.
  
• Campos received three endorsements from San Francisco neighborhood newspapers by March 10 compared to Haney’s single endorsement from a corporate mainstream newspaper — the San Francisco Examiner. San Francisco’s progressive Bay Guardian newspaper, the Bay Area Reporter serving the LGBTQ community, and the San Francisco Bay View newspaper serving African American San Franciscans.
  
• When it comes to endorsements from individuals and prominent community leaders, Campos received 141 such endorsements, 4.8 times more than Haney’s 30 endorsements.
  
• The only category of endorsements in which Haney fared better than Campos are the 24 labor unions plus the 15 building and construction trades unions.
  
  Of interest, of those 39 labor union endorsements, just 15 (38.5%) are headquartered in San Francisco, although a handful of the remaining 24 unions have affiliated local union branch offices in San Francisco and may have union members who actually live in the City.
  
  As noted in Table 2 above, 55 building and construction trade unions and laborer unions have donated $311,428 to Haney, fully 27.1% of the total $1.15 million donated to Haney’s campaign through March 11.
  
• By contrast, the six labor unions who have endorsed Campos include AFT Local 2121 that represents City College of San Francisco faculty, the United Educators of San Francisco that represents teachers in San Francisco schools, the Transport Workers Union Local 250A that represents MUNI employees, UNITE HERE Local 2 that represents hospitality workers in San Francisco’s hotel and restaurants, NUHW that represents healthcare workers, and IFPTE Local 21 (International Federation of Professional and Technical Engineers), which is San Francisco’s most influential union after the MEA (Management Executives Association) representing a broad spectrum of professional and technical employees across a wide variety of occupations. Local 21 has contracts with 35 local government agencies throughout the Bay Area.
  
  All six unions choose Campos, in part, because they know he “plays well with others” after having worked with him during his eight years serving on San Francisco’s Board of Supervisors.

Between March 1 and March 10, Haney posted just 7 additional endorsements, while Campos posted 50 additional endorsements, to their respective campaign web sites.

Why Haney is the Wrong Choice

There are a number of reasons why Haney is the wrong choice to represent AD-17.

First, as the Westside Observer reported on January 10, Haney was sworn in to represent San Francisco District 6 on the Board of Supervisors on January 8, 2019. At the point he announced he was running for State Assembly, he had served barely two-and-a-half years as a City Supervisor, raising a question of whether he is using his incomplete first four-year term on the Board of Supervisors as a steppingstone to the State Assembly.

As we reported on January 10, an important reason not to vote for Haney in the Assembly run-off election is that if he is elected to the Assembly, Mayor Breed will appoint a temporary replacement to serve out the remainder of Haney’s first term as D-6 Supervisor, disenfranchising and depriving D-6 voters of their choice and voice in who they want representing them at City Hall.

But there’s much more.

Haney’s Petty Lawsuit Over Campos’s Ballot Designation

Haney damaged credibility when he engaged in a petty lawsuit challenging Campos’ official occupation designation on the ballot. It’s clearly the least-important issue voters face in the run-off election and is of scant interest to voters. Haney spent an unknown amount of money mounting and waging his lawsuit.

Although Haney had first filed an administrative complaint with California Secretary of State Shirley Weber over the issue, after Weber conducted an investigation, she allowed Campos to list “civil rights attorney” as his occupation on the February 15 primary ballot. Haney pressed ahead and filed a formal Superior Court lawsuit against Ms. Weber on February 24, alleging that Campos was “deliberately attempting to deceive voters.” Haney’s campaign claimed that there was nowhere else Campos refers to himself as a “civil rights attorney.”

Campos had used “civil rights attorney” as his occupation as far back as 2008 when he mounted his first campaign to become a City Supervisor. Voters who have followed Campos over the past 14 years have long known that Campos prides himself for his civil rights work as an attorney for several decades.

The San Francisco Examiner reported on March 2 that after Haney had complained for months over Campos’ choice to list his occupation as a “civil rights attorney,” a Sacramento Superior Court Judge ruled on March 1 that Campos had to change his occupation on the ballot to “criminal justice administrator.”

Despite Haney winning his Superior Court lawsuit, San Francisco’s Department of Elections allowed Campos to use “civil rights attorney” as his occupation in the Voter Information Pamphlet for the April 19 run-off special general election that arrived in San Francisco voter’s mailboxes on March 17.

Ironically, in the Voter Information Pamphlet, Haney asserts he secured record investments in housing, public safety, and small business relief (following the COVID pandemic) as Chair(person) of the Board of Supervisors Budget and Finance Committee.

But Haney became chairperson of the Budget and Finance Committee on January 10, 2021 replacing former-Supervisor Sandra Lee Fewer as Budget chair and served as chair of the Budget Committee for just over one year, when Board President Shamann Walton removed Haney from both the Budget and Finance Committee and the separate five-member Budget and Appropriations Committee. Haney’s candidate statement in the April 19 Voter Guide may lead voters to think he’s still Chairperson of the Budget Committee.

During his one-year stint as Budget Chair, Haney presided over development of a single fiscal year City budget and knowledgeable observers don’t recall “record budget investment” increases in any of these three policy areas (housing, public safety, and small business relief) in the FY 2021–2022 budget adopted.

Haney’s Allegation Campos Doesn’t “Play Well With Others”

Haney’s allegation reported in the Chronicle that Campos is “not being a good team player,” appeared disingenuous since  Campos served on the San Francisco Democratic County Central Committee (DCCC) for five years and was elected Chair between 2017 and 2021. Campos is currently one of two Vice Chairs of the California Democratic Party.

Campos’ Affordable Housing Record

Haney — and independent expenditure committees supporting Haney — have alleged Campos was responsible for the “Monster in the Mission” battle in 2015 over a proposal by a private developer, Maximus, to build 330 units of housing at 16th and Mission in San Francisco’s Mission District, many of which were proposed to be market-rate housing, not affordable housing.

But the “Monster in the Mission” opponents were community activists, whom YIMBY members and building and construction trades unions attacked. They were in Campos’ District coincidentally and were simply “anti-displacement.” The Mission District has lost 8,000 Latino residents over the past decade; the Mission had been 52% Latino a decade ago but is now down to 40%.

It’s patently unfair — and factually incorrect — to label either those who opposed massive displacement as being anti-housing. Campos’ introduced legislation at the Board of Supervisors to create a temporary moratorium on building more market-rate housing for 90-day days, which legislation was never approved by the Board of Supervisors that even then-Supervisor London Breed had supported and had voted for.

48Hills.org has provided great reporting about the housing issue, noting that the 16th and Mission site is now on pace to be fully 100% affordable housing, which hopefully will prevent additional displacement from the Mission.

Haney’s Housing Record

As the Westside Observer reported in January, Haney, who claims he brought 5,000 new housing units to District 6, has never stratified how many of those units were affordable housing vs. market-rate housing.

48Hills.org published a rejoinder that —Haney hasn’t created any housing. The Board of Supervisors don’t build housing. Private developers build housing: 

“The only role Haney — or any supervisor — has in building housing is voting on appeals of Planning Commission decisions (and working with neighbors and community groups to cut deals to get private development projects approved), changing zoning laws, or organizing for and approving money for affordable housing projects.”

Haney’s Supporters Advocate for Legislative Carve-Outs

Various of Haney’s supporters have advocated for legislative and policy carve outs, although not directly with Haney. Still, it should be of concern to voters.

Safai’s Proposed Charter Amendment Carve-Out

On January 24, 2022 Supervisor Ahsha Safai (who has endorsed Haney) introduced a Charter Amendment via an Ordinance sponsored only by him — but ostensibly on behalf of Mayor Breed — to place a ballot measure on the June 7, 2022 ballot at the Board of Supervisors Rules Committee purportedly to streamline review of permits for affordable housing. As 48Hills.org has reported, we really don’t need more “streamlining” legislation, since that’s not the main impediment to getting housing projects approved and built.

First, Safai’s Charter Amendment contained a provision to increase the definition of “affordable” housing units for households having incomes of up to 140% of Area median income (AMI); that would drastically expand the definition of “affordable” to include allowing a family of four to earn up to $186,500. How many San Francisco households earn $186,500 annually?

Second, Safai’s Charter Amendment contained another provision to enshrine prevailing wage protections for housing construction workers in the City Charter, a provision that was roundly rejected by members of the Board of Supervisors Rules Committee and members of the public who testified against Safai’s Charter change proposal.

It was painfully clear Safai was doing the bidding of the building and construction and laborers’ unions in attempting to add a carve-out to include prevailing wage standards in our City Charter, which would have become nearly impossible to remove from the Charter in the future without having to go back to voters to get the provision removed.

Thankfully, Safai’s Charter change measure was tabled and didn’t advance out of the Rules Committee. It won’t appear on San Francisco’s June 7 municipal ballot, although Safai may try another way to get it placed on a future ballot.

Building and Construction Unions Pressured for Prevailing Wages Carve Out

Back in 2019, building and construction trade unions — that are now spending heavily to back Haney — succeeded in pressuring MOHCD into a carve-out regarding prevailing wage protections for their union members.

A facsimile of a June 6, 2019 letter from the San Francisco Mayor’s Office of Housing and Community Development (MOHCD) to Larry Mazzola, Jr., president of the San Francisco Building & Construction Trades Council (BCTC), shows MOHCD’s then Executive Director, Kate Hartley, sought to allay concerns raised by Mazzola, who is also the Secretary-Treasurer of the Plumbers and Pipefitters Union Local 38 in San Francisco.

Mazzola phoned Hartley about his concerns supporting the $600 million Affordable Housing Bond on San Francisco’s November 2019 ballot. Mazzola had sought reassurance that MOHCD would support and facilitate union labor to the greatest extent possible on the affordable housing projects. In Hartley’s first draft of a written reply to Mazzola on May 31, 2019 she noted that on the $310 million 2015 Affordable Housing Bond MOHCD had documented BCTC union participation rates of between 99.25% to 100% on the 2015 Bond projects. She assured Mazzola that the planned projects for “covered categories” of projects for the 2019 Bond would also include at least 90% BCTC union participation rates.

Mazzola apparently didn’t like Hartley’s first draft, and demanded and obtained changes.

First, Hartley agreed to strike out and remove a reference that some of the 2019 Bond projects might involve (factory built) “modular construction” assembled off site without using BCTC union labor. That may prevent MOHCD from future consideration of using modular construction for any housing projects, whether for the homeless or low-income households. It was a huge win for Mazzola, but a huge loss for the rest of us.

As a matter of practice, construction trade unions oppose modular construction precisely because it may not involve paying prevailing wages to their union members. Second, although Hartley had assured Mazzola that “existing public housing sites which receive bond funding [would be] subject to prevailing wage requirements,” Mazzola apparently wanted stronger prevailing wage language, so Hartley added an additional paragraph assuring him that the prevailing wage and apprenticeship requirements referenced for Covered Work projects would be included in the loan agreements MOHCD executes with affordable housing project developers/owners. Mazzola not only prevailed against MOHCD on the prevailing wage issue, the modular housing language also vanished.

Mazzola’s Hatred of Modular Construction

Mazzola and the construction trades unions deeply fear modular housing. Back in March 2021, the San Francisco Chronicle published an article about efforts in San Francisco to use modular construction of housing units for homeless people. The article reported on a project to build affordable housing for the homeless at 833 Bryant Street across from the former Hall of Justice, which was vigorously opposed by Mazzola and his union.

The Chronicle reported the modular housing project is being built in a factory in Vallejo that contracts with the Carpenters Union of Northern California, faster and cheaper than typical affordable housing projects in San Francisco. Instead of projects taking six years or longer to construct at an average of $700,000 per unit, the 833 Bryant project will take just three years and average $383,000 per unit. That shaves off three years to bring affordable housing projects to market in the lease-up stage, and costs 82.8% less per unit. Who can oppose shaving three years off of desperately-needed housing production?

Imagine how many fewer people wouldn’t be homeless in San Francisco (or statewide throughout California) if we had more modular housing projects for the homeless. For that matter, how many more San Franciscans could afford to purchase homes, or rent apartments, were there more modular affordable housing projects for everybody else who isn’t actually homeless?

No wonder Mayor London Breed may be open to more modular projects, as was Bilal Mahmood in his efforts to win election to Assembly District 17. The Chronicle reported that even Haney was open to the idea of more modular housing projects. As far as that goes, YIMBY California and San Francisco’s YIMBY Action should be advocating for more modular housing projects, too, after having endorsed and supported Mahmood during the February 15 primary.

As president of the San Francisco Building and Construction Trades Council, Larry Mazzola opposes everything about modular housing.

The Choice Is Clear

As a knowledgeable, prominent, and astute African American friend of mine notes: “Haney was doing great for a while, especially on Treasure Island, but when he decided to try to jump to the State legislature, he made a hard right turn.” She meant Haney did a hard right turn from “progressive” to “moderate,” willing to bow to the building and construction trades and laborer unions.

If Haney wins on April 19, we’ll have another compliant legislator in Sacramento all too eager to restrict local land use decisions and affordable housing projects in San Francisco.

Otherwise, if you want a more qualified Assemblyman with a long list of accomplishments and strong grassroots support, cast your vote for Campos as soon as you receive your vote-by-mail ballot!

[Full Disclosure:  I have donated to Mr. Campos’ election campaign for State Assembly.]

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 monette-shaw@westsideobserver.com.

MARCH 2022

Looking for Out-of-County Discharge Data in the Underwear-and-Socks Drawer

Health Department Busted for Violating FOIA Laws

by Patrick Monette-Shaw

“Help, I lost my patient!”

That painful cry from a certified nursing assistant frantically searching for a patient she had lost track of when I worked at Laguna Honda Hospital for a decade is still painful to remember, even though it would have been somewhat comical to witness at the time had it not involved patient safety.

But what happens when a Public Health Department loses track of its patients who have been dumped (discharged) out-of-county?

That’s nowhere near “comical.” In my eyes, it borders on criminal neglect, intentional obstruction, or governmental incompetence.

San Francisco’s Department of Public Health claimed way back on September 16, 2020 that its new replacement Electronic Healthcare Records (EHR) database — named Epic — that was rolled out and went live on August 3, 2019 and has cost the City at least $167.4 million, does not track patients discharged out-of-county. Wait!  What?

I suspected then DPH’s claim was probably an outright lie, however unintentional. Ironically, it was an epic-sized lie. The Westside Observer first reported on this in June 2021.

It was a brazen, bizarre claim, because DPH had been extracting out-of-county discharge data from its SFGetCare database and its previous EHR database — the Invision/LCR system from Siemen’s Corporation — for at least eight years since 2013 and had provided me with retrospective data dating all the way back to July 1, 2006. DPH responses to subsequent records requests I have placed over the years revealed that at a minimum 1,746 San Franciscans have been dumped out-of-county from SFGH and Laguna Honda Hospital and a handful of other private-sector hospitals in San Francisco.

It took me over a year before I could prove it was a lie, until I finally won a Sunshine Complaint before San Francisco’s Sunshine Ordinance Task Force (SOTF) on October 6, 2021, which ruled in my favor that the records are public records and must be released under California Public Records Act (CPRA) §6253.9(a)(2) that specifically requires local agencies to extract aggregate data from databases they maintain.

According to testimony that noted geriatrician Teresa Palmer, MD has provided to San Francisco’s Board of Supervisors, obtaining out-of-county discharge data statistics is an integral part of evidence-based processes of looking at the gaps in healthcare services, and various types of severe healthcare facility shortages in San Francisco, to help improve citywide healthcare planning.

DPH’s “Big Lie” Led to Sunshine Complaint

As I periodically have, I placed a new records request with SFDPH on July 6, 2020 to obtain out-of-county discharge data for the period of January 1, 2020 to June 30, 2020. After fighting with DPH for months over the delayed response to my records request, DPH suddenly claimed on September 16, 2020, that its “Epic” database “doesn’t track out-of-county discharges.”

On May 4, 2021, I finally and belatedly filed a formal Sunshine Ordinance Task Force complaint over DPH’s failure to provide aggregate out-of-county discharge data as it had previously extracted and provided for years. On May 7, 2021, the Task Force’s Administrator notified DPH that it was required to respond in writing within five days to the allegations I had raised in the Complaint. DPH never responded in writing, let alone within five days.

On June 6, 2021 Epic Systems Corporation’s Media Relations Department responded to a media inquiry I had placed in my role as a long-time columnist for the Westside Observer newspaper. Epic’s Media Relations Department revealed out-of-county discharge data I had requested from DPH is, in fact, contained in structured database fields in Epic’s “Patient Flow” module —. Epic’s Media Relations Department informed me that Epic’s standard configuration (i.e., its “base” enterprise package) includes discharge destinations/dispositions, including the name of the City discharged to in Epic’s “Patient Flow” module. (If the city discharged to ≠ “San Francisco,” it’s an out-of-county discharge.)

After consulting with its in-house subject-matter experts, Epic’s Media Relations Department also confirmed that the Patient Flow module includes database fields for Discharge Disposition — the broad category of where a patient is discharged to, e.g., returned to home vs. discharged to a skilled nursing facility, a rehabilitation facility, a Long-Term Care Acute Hospital (LTCAH), or perhaps a Residential Care Facility for the Elderly (RCFE) — and the actual discharge location (including the name, address and City, phone number, and type of facility). A facsimile of a sample Epic screen I created (shown here) illustrates what an Epic Discharge Note screen looks like.

On July 21, 2021 I placed a records request to DPH seeking information on who at DPH had determined Epic doesn’t track out-of-county discharges. On August 2, 2021 I received a thread of 29 e-mails from DPH, but the e-mail exchanges reveal DPH’s information systems staff were stuck on — barking up the wrong tree — quibbling about the technical difficulties they might face trying to track the zip codes patients were discharged to. That, too, was patently ridiculous because the discharge note screen in Epic clearly shows Epic contains a structured database field that captures the name of the City any given patient is discharged to, including the facility name, type of facility, and level of care (medical or skilled nursing level of care) that the new facility would need to provide.

Rather than struggling with zip codes, DPH’s I.T. staff should only need to look at the name of the City any given patient is discharged to. Because if the name of the City is not “San Francisco,” then ergo, the patient was discharged out-of-county. It couldn’t be any simpler. Why DPH staff chose to focus on the zip code database field, when they should have been looking for the name of the city in the City database field in the Patient Flow discharge notes module, isn’t known. It’s kind of like looking for a cashmere sweater in your socks and underwear drawer. Or like looking for your checking account balance in your Instagram or TikTok account. (Looking for information in the wrong place rarely yields results!)

On July 20, 2021 SOTF’s Complaint Committee held a preliminary jurisdictional hearing on my complaint. The Complaint Committee ruled:  1) That the records requested were and are, in fact, public records and the complaint was within the Task Force’s jurisdiction, 2) That DPH provide to the Complaint Committee answers to three remaining questions the Committee had about the complaint within a two-week period dating from July 20 from a knowledgeable subject-matter expert familiar with DPH’s databases, and 3) That my complaint be referred to the full Sunshine Task Force for a hearing on the merits of the complaint.

Once again, DPH did not respond within two weeks (or ever, as of February 6, 2022) to the Complaint Committee’s request a knowledgeable subject-matter expert provide additional information the Complaint Committee had requested on July 20.

Sunshine Task Force Rules: SFDPH Violated Two Public Records Laws

On October 6, 2021 the full Task Force held a hearing on the merits of my Complaint. Again, DPH did not send a knowledgeable person familiar with the Epic database as a subject matter expert, and instead sent Public Information Officer Cristina Padilla, who was unable to answer three remaining questions Task Force members still had about the complaint; Padilla claimed she would ask DPH subject matter experts and would provide answers to the full Task Force. Padilla was also unable to answer whether DPH staff had requested technical assistance from Epic Corporation on how to locate and extract the requested data. It’s thought Ms. Padilla also never provided any follow-up answers she may have gotten (if any) from DPH’s subject matter experts to the Task Force, before she, too, suddenly left her position at SFDPH.

Prior to taking a roll call vote on October 6 on the motion a SOTF member introduced, finding DPH violated four provisions in the Sunshine Ordinance, the Task Force took public comment on the motion on the floor. Teresa Palmer, MD testified in support of the motion. Palmer, a noted geriatrician, testified that she has worked with and is very familiar with Epic, having used it at Kaiser, at UCSF, and at Sutter. She further stated she’s aware Epic contains discharge disposition locations, there is data entry in Epic about discharges and locations of discharge, and the data can be found by writing a proper database query.

Given my own experience writing ad hoc database queries while employed at Laguna Honda Hospital assisting with developing its Rehabilitation Services Department’s home-grown Microsoft Access database tracking patient’s scheduled and required physical assessment forms, scheduling patient’s functional maintenance exercise sessions to prevent their potential physical decline, scheduling patients for other rehab clinician therapy appointments, and tracking Medi-Cal billing and reimbursement information to generate revenue for the hospital, I know this doesn’t involve rocket science. Now 20 years later, I distinctly remember having written a database query and formatted a “Discharge Outcomes Report” way back in 2001 for the LHH Rehab Department’s Community Re-integration Program, a report that included details on the destinations patients were discharged to, the types and level social services they would need given their specific circumstances to support them post-discharge, and which cities patients were discharged to.

I believe a proper database query to extract data from Epic would be very simple and take very little time for an experienced DPH information systems professional to write. If I could do it at LHH 20 years ago, then Epic I.T. professionals at DPH can surely write such ad-hoc queries now, given advances in computer technology during the past two decades.

There you have it: Both clinicians like Dr. Palmer who have worked with Epic, and Epic Corporation’s own Media Relations Department, have acknowledged Epic clearly contains the locations of cities patients are discharged to, despite DPH’s lie that Epic is incapable of tracking out-of-county discharges. Why DPH’s staff are barking up the wrong tree and confounding the issue by trying to figure out zip codes is simply comical. It’s clear DPH staff are looking in the underwear and-socks drawer to find that elusive cashmere sweater — along with the out-of-county discharge data!

The Task Force ruled seven-to-zero in my favor on October 6, 2021 ruling that DPH violated Administrative Code Sections §67.21(b), for incomplete records production (and essentially the “timeliness of response” issue); §67.21(c), for failing to provide me with assistance; §67.27, for failing to provide justification for redactions; and §67.22(b), for not sending a knowledgeable (subject-matter expert) representative to either of SOTF’s two hearings on my complaint.

The Task Force also ordered DPH to produce the remaining outstanding records that haven’t been produced since first requested on July 6, 2020 within five days after the Order of Determination would be issued, and referred the complaint to the Task Force’s Compliance and Amendments Committee for further monitoring.

Unfortunately, it took months before the SOTF issued its long delayed Order of Determination (O.D.) published January 31, 2022 — four months after I won my Sunshine complaint on October 6, 2021 — finally ordering DPH to produce the improperly withheld records within five days, ostensibly no later than February 8, 2022.

We’ll have to wait to see if DPH complies with the O.D. and resumes producing the records it had long provided, but has now long withheld improperly. As a “pink” person, I’m not going to hold my breath because I’m afraid of turning blue in the face while waiting.

SOTF’s O.D. essentially found that DPH had violated two laws:  Both California’s FOIA law — the California Public Records Act (CPRA) — and San Francisco’s Sunshine Ordinance. As noted above, CPRA §6253.9(a)(2) requires local government agencies across the State to extract aggregate data from electronic databases they maintain, like Epic, since they are essentially public records. The SOTF has authority under San Francisco’s Sunshine Ordinance to cite violations of our local Ordinance, California’s Public Records Act, and California’s Brown Act — the latter two of which Mayor London Breed can’t suspend, even during a COVID-style or other local emergency.

Legislation Requiring Hospitals Report Out-of-County Discharge Data

On November 9, 2021 Supervisor Ahsha Safai’s introduced a draft Ordinance to require public- and private-sector hospitals operating in San Francisco report a limited amount of data about out-of-county discharges, but only for patients being discharged out-of-county who need sub-acute level of care. Safai’s Ordinance was assigned to the Board of Supervisor’s Public Safety and Neighborhood Services (PSNS) Committee.

The first PSNS hearing on Safai’s Ordinance is scheduled for February 10, 2022 at 10:00 a.m.

Medical sub-acute level of care is for medically complex, high-maintenance patients, including those who are ventilator- or tracheostomy-dependent and who need close observation and nursing care long-term. It’s best that a sub-acute SNF unit be located in a hospital-based setting to provide rapid access to an ICU if a patient’s health deteriorates rapidly. These facilities are separate and distinct from patients who need sub-acute level of care in psychiatric facilities.

While Safai’s draft legislation may be a commendable and long-overdue first effort, it’s woefully inadequate as currently written and introduced. And his legislation totally ignored previous testimony from community- and healthcare-advocates about what the legislation should include.

Along with other health care advocates including Dr. Palmer and others, I have been requesting this legislation since at least 2018. Indeed, for the Board of Supervisors PSNS Committee hearing on September 26, 2019, testimony was presented for agenda item #4 titled “Hearing - Sub-Acute Care in San Francisco” [File #190725].

For instance, San Franciscans for Healthcare, Housing, Jobs and Justice (SFHHJJ, or alternatively H2J2) submitted written testimony to the PSNS Committee dated June 18, 2019 urging that the Health Commission and Board of Supervisors:

“Direct the Department of Public Health to collect to the maximum extent feasible from all acute care hospitals and SNF facilities located within San Francisco comprehensive and specific data and information, for the past three years and prospectively, about all San Francisco residents who have been discharged to out-of-county facilities to receive SNF, Subacute SNF care, or RCFE care; to support the enactment of legislation by the Board of Supervisors to mandate all acute care hospitals and SNF facilities in San Francisco to provide such data and information; to prepare and publicly publish, within four months a written report covering all such data and information collected …”.

Of note, H2J2 specifically requested that SFDPH collect from all acute care hospitals and all SNF’s, and obtain data for the previous three to five years to provide historical context about just how severe the out-of-county discharge problem is.

We need an ordinance assuring that SFBOS will receive regular reports about how many San Francisco residents are discharged out of county from acute hospitals and acute psychiatric facilities due to the lack of services and severe lack of appropriate facilities in San Francisco.

The importance of collecting out-of-county discharge data goes way beyond Safai’s single focus on the issue of just requiring data reporting about the number of patients discharged out-of-county who need sub-acute SNF level of care. How can we know if we are properly planning to care for the longer-term physical and mental health issues of our senior citizens and people with disabilities if we have no idea who — and how many people —are getting dumped out of county for sub-acute SNF, psychiatric, and all other types of long term care? This is an interest that seniors, disability, and mental health advocates all agree on.

This proposed legislation would go a long way toward helping collect evidence-based data for looking at the gaps in services, improving citywide healthcare planning, and help identify the types of in-county facilities that are in severely short supply to assist in finding sources of funding to build out additional in-county capacity. It would also go a long way towards helping City officials craft San Francisco’s Health Care Master Services Plan, which identifies current and projected needs for health careservices for San Franciscans, with a focus on vulnerable populations.

Dr. Palmer has testified that this information is easy to collect with modern hospital electronic healthcare records systems. She notes SFDPH’s past attempts were unable to get voluntary cooperation on reporting out-of-county discharge data from private-sector hospitals, even though those hospitals have state-of-the-art EHR systems that could be easily mined to collect and report the data. Indeed, given SOTF’s ruling DPH has refused to provide out-of-county discharge data, as of this date, two full years, illustrates that SFDPH, itself, has been less than cooperative providing FOIA-requested information on a regular basis of SFGH’s own out-of-county discharge data.

CPMC/Sutter closed the last remaining sub-acute SNF facility in the city at St. Luke’s Hospital in 2018 after stopping all new admissions from only its affiliate CPMC hospital chain for at least a year before then, so all new patients — even from CPMC’s affiliate hospitals who need sub-acute SNF level of care — were forced to leave the City and County of San Francisco for at least the past four years. But it’s much worse than that, because CPMC stopped admitting patients from any other San Francisco hospital way back in 2012.

That means it has now been a full decade since patients needing sub-acute SNF level of care have endured being dumped out-of-county. No other county in California has zero in-county sub-acute facility capacity in their jurisdictions, as San Francisco now has.

And four years after CPMC shut down any new admissions to its temporary replacement sub-acute SNF moved to CPMC’s Davies Hospital campus, San Francisco has still not yet identified and opened any of the 70- to 90-projected sub-acute SNF beds anywhere else in the City that DPH has documented to the Board of Supervisors the City desperately needs. Efforts to open any new sub-acute SNF beds in San Francisco have stalled for four years, since former-Director of Public Health Barbara Garcia — who had been working to solve the problem — was unceremoniously fired.

Recommended Amendments to the Legislation

As Dr. Palmer recently testified to the PSNS Committee, hospital discharges to sub-acute SNF facilities “are less than 1% of total hospital discharges.” Obviously, Safai’s first draft of a proposed Ordinance requiring hospitals to report data only on the number of discharges to out-of-county facilities to receive sub-acute level of care is going to miss the vast universe of discharges to facilities that provide levels of healthcare other than sub-acute SNF care. The legislation should not apply only to patients needing sub-acute care.

Safai’s legislation must be vastly amended — or replaced entirely with a revised Ordinance containing a much broader scope — while the Board of Supervisors has this long-overdue opportunity to do so.

Particular recommendations include, but are not limited to:

• Require Data Reporting Focus on San Franciscans: Safai’s first draft requested stratifying the number of patients facing transfer out-of-county for sub-acute SNF level of care for both city residents and non-city residents. That stratification — which is rightfully important and might help illuminate regional needs and trends particularly for out-of-county patients admitted to San Francisco’s only Level 1 Trauma Center at SFGH — should focus primarily on San Francisco residents facing out-of-county disenfranchisement and displacement from their surrounding neighborhoods. The data to be collected should focus only on San Francisco residents at the time of their hospital, or other facility, admission. Filtering for only San Franciscans is thought to be accomplished easily.
  
• Expand Facilities That Will Be Required to Report Data: Safai’s first draft required only “general acute-care hospitals” report out-of-county discharge data to San Francisco’s Department of Public Health. That must be broadened to require all public- and private sector acute-care medical hospitals (including UCSF and Benioff Children’s Hospital), acute psychiatric hospitals, Long-Term Care Acute Hospitals (LTACHs) like Kentfield on St. Mary’s Hospital campus (think Ken Zhao, who Kentfield discharged out-of-county), and hospital-based skilled nursing facilities (LHH and the Jewish Home) report the same data.
  
• Expand the Types of Facilities Patients Are Discharged To: Safai’s first draft required San Francisco facilities collect and report data on patients discharged out-of-county only for those who are discharged for sub-acute SNF level of care and failed to stratify the types of care to be provided.
  
  Aggregate data must be reported on
• 1) The types of facilities patients are discharged to [including to other acute care facilities, long-term care acute hospitals, skilled nursing facilities (SNF), sub-acute skilled nursing units (sub-acute SNF), Residential Care Facilities for the elderly (RCFE’s), other types of assisted living facilities, etc.];
• 2)  The type and level of care to be provided out-of-county (acute medical care vs. skilled nursing care, psychiatric care, custodial care, etc.);
• 3) The number of patients discharged to each named facility (aggregating data on the names of each facility); and
• 4) The name of the City patients are discharged to — all to identify trends.
  
• Change “Request Data Reporting” to “Require Data Reporting”: Safai’s first draft stipulated SFDPH would have to request the data annually from the reporting hospitals. That must be changed to require the reporting hospitals and facilities to provide the data annually, without DPH having to request annually that the reporting hospitals do so.
  
• Require Data Mining from Hospital’s Electronic Healthcare Records (EHR) Databases: Given that hospitals are required to have robust electronic healthcare database as part of federal requirements for Medicare and Medicaid billing reimbursement, the legislation should direct all hospitals to provide this data by “data mining” from their Electronic Healthcare Records (EHR) database systems such as “Epic,” and Epic’s “Care Everywhere” module that is widely used by hospitals across California and also used by SFDPH. Several hospitals in San Francisco also use Epic as their EHR database.
  
• Require Annual Health Commission Public Hearings: Although Supervisor Safai’s first draft of this legislation stated DPH will have to deliver a written report to the Public Health Commission, there is no language clearly requiring the Health Commission hold a public hearing. There’s also no requirement SFDPH or the Health Commission submit the data to the Board of Supervisors, as other legislation has done in the past. For instance, then-District 7 Supervisor Sean Elsbernd managed to pass a Board of Supervisors Ordinance requiring LHH to submit detailed quarterly and annual reports to the Board of Supervisors on the number of Laguna Honda Hospital admissions, discharges, and other patient demographic and outcome data to the Board of Supervisors, which was required and produced for over eight years.
  
• Require Annual Board of Supervisors Public Hearings: Safai’s first draft of this legislation did not include — or bother to even mention — requiring the Board of Supervisors or its Public Safety and Neighborhood Services Committee to hold a public hearing on the out-of-county data collected to help identify and document the severe shortage of various types of in-county facilities available in San Francisco in order to assist with identifying potential sources of funding to build out additional capacity of facilities in-county.
  
• Specified Reports Format: Safai’s first draft asserted the Director of Public Health could issue rules or guidelines regarding the amount of information and the format of the reports Hospitals would be required to report to DPH and the Health Commission. That provision must be struck out entirely, replaced with mandated report elements each hospital or other reporting facility is required to report.
  
• Retrospective Data: Despite many healthcare advocates’ assertions for at least the past four years that data to be collected for previous years retrospectively to help identify trends, Safai’s legislation ignored those advocates and requires nothing in the way of collecting retrospective data. That, too, must be corrected.
  
• Create a “Certificates of Preference” Repatriation Program: Safai’s first draft of this legislation did not include creating a Certificates of Preference program to expatriate San Francisco residents involuntarily discharged out-of-county, so they have preference for being returned to San Francisco as additional facility capacity becomes available in-county.
  

Please contact the full Board of Supervisors and members of its PSNS Committee and urge them to rapidly expand, support, and pass this urgently needed legislation.

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 monette-shaw@westsideobserver.com.

February 2022

Why I'm Supporting David Campos

A San Francisco Leader for the State Assembly

by Patrick Monette-Shaw

Just two weeks from now, ballots for the special February 15 primary election to replace District 17 Assemblyman David Chiu will start being mailed out by San Francisco’s Elections Department, so watch for your ballots to arrive in U.S. mail. As you may remember, Chiu resigned to accept Mayor Breed’s appointment to replace former San Francisco City Attorney Dennis Herrera.

Of the four candidates running to replace Chiu in the Assembly, only two candidates have relevant experience applicable for the job.

[Spoiler alert:  Of the two potentially viable candidates, it’s not current San Francisco D-6 Supervisor Matt Haney!]

The Four Candidates for Assembly

The four candidates seeking to replace Chiu in the State Assembly include:

Thea Selby

Selby’s website claims she is the only female Democrat elected citywide running for the Assembly. It’s an essentially meaningless and convoluted claim since most voters don’t consider whether any candidate has previously been elected citywide to any office as a valid qualification to be elected to some other office.

The citywide election she asserts she won for a seat on San Francisco City College Board of Trustees is clearly not a policy body that crafts or enacts legislation. Is she qualified to author statewide legislation given her lack of crafting legislation at the municipal level?

It appears Selby is potentially using her tenure on a relatively obscure Board of Trustees as her steppingstone to the State Assembly. Indeed, CCSF faculty and students have previously asserted “We at City College are tired of aspiring politicians using our beloved educational institution as a steppingstone” [to higher political office].

Selby’s experience includes two-year stint as a Board of Supervisors appointee to San Francisco’s Citizen’s General Obligation Bond Oversight Committee (CGOBOC) to a seat reserved for candidates having experience in the business community. She served on CGOBOC between 2011 and 2013, including a stint as Chairperson of CGOBOC.

Her predecessor as CGOBOC’s Chairperson was Abraham Simmons, a then- and current- U.S. Attorney who had served on San Francisco’s Civil Grand Jury. Simmons was subsequently appointed to the CGOBOC seat reserved for previous members of the Civil Grand Jury.

While Simmons was chairperson of CGOBOC in 2010 and 2011, I brought to his and the Committee’s attention that I had learned while working at the Capital Planning section at the Recreation and Parks Department, that the Department of Public Works had a robust software program to track “change orders” on major capital improvement bond measures, like the Laguna Honda Hospital (LHH) rebuild general obligation bond.

I had learned “change orders” often significantly drive up costs of capital improvement bond-funded projects, an issue I covered for the Westside Observer newspaper on the massive $185 million in cost overruns on the bond-funded Laguna Honda Hospital replacement project. LHH’s glut of change orders led to one-third of the patient skilled nursing beds being eliminated, downsizing the hospital from 1,200 to 780 beds, resulting in many patients being dumped out-of-county.

Simmons took the problem seriously and promised CGOBOC would begin monitoring change orders on every General Obligation Bond program as part and parcel of CGOBOC’s oversight on bond-funded projects.

Unfortunately, subsequent CGOBOC chairperson’s Thea Selby and Rebecca Rhines (who served between 2013 and 2015) studiously avoided expanding CGOBOC’s focus to involve change order cost overruns. Selby and I clashed repeatedly over the issue during CGOBOC meetings, and she was somewhat hostile to my persistent testimony critical of her disinterest in the issue.

Selby’s website claims “that she demanded accountability on the Citizens’ General Obligation Bond Oversight Committee by increasing the number of mandatory committee meetings to better oversee $7 billion in taxpayer-funded city bonds.”  She asserts that when she was Chair of CGOBOC she took the committee from a “sleepy committee” overseeing a few bonds to a committee capable of overseeing the then-current $7 billion in G.O. bonds. She claims that under her leadership in 2010 and 2011, the frequency of CGOBOC meetings were increased to provide better oversight of G.O. bond-funded projects. Unfortunately, her disinterest in the change orders issue adversely affected CGOBOC’s oversight.

Nearly a decade later, after Selby’s term ended, CGOBOC reduced the frequency of its meetings to only six per year (every other month) — resulting in even less oversight — even though voters had passed even more general obligation bonds, increasing the G.O bonds issued to over $10 billion (including interest on the bonds) with other bonds having been retired.

Thea’s list of endorsements on her website is set in white text on a difficult-to-read photographic background. Of Selby’s 37 endorsements listed (as of January 6, 2022) only three are current elected officials: Oakland Mayor Libby Schaaf, California State Treasurer and former San Francisco Supervisor Fiona Ma, and State Senator Connie Leyva (representing Senate District 20, the Inland Empire in Southern California, including San Bernardino and Riverside). Leyva is not seeking re-election when her term ends in 2022. Selby’s endorsements do not include any San Francisco elected officials other than Fiona Ma, nor any labor unions.

Selby is not the only candidate without a legislative track record. A poll conducted by Tulchin Research between December 14 and December 19 shows Selby dead last, garnering a mere 4% of probable voters.

Bilal Mahmood

Mr. Mahmood asserts he is a civil servant and entrepreneur “with experience in both the public and private sectors committed to delivering bold solutions to San Francisco's most difficult problems in the state legislature.”

Mahmood’s background is in neuroscience, but says he has experience working in both government and business.

Mahmood’s Linked-In profile notes that he led policy research for the National Advisory Council on Innovation and Entrepreneurship for the U.S. Department of Commerce for one year, between 2010 and 2011. His claim to be a civil servant appears be limited to the one year he served in the Department of Commerce as an appointee of former President Barrack Obama, not as an elected official. As of January 6, 2022 Bilal’s website for his run for the State Assembly contains no links listing who may be endorsing him for this election.

Mahmood does not appear to have ever run for, or held, elected public office in either San Francisco or California. So, like Ms. Selby, Bilal doesn’t have a legislative track record.

The Tulchin Research poll between December 14 and December 19 shows Mahmood in third place, garnering 14% of probable voters.

Matt Haney

Supervisor Matt Haney received his law degree from Stanford Law School in 2010 focusing on education law. He was elected to the San Francisco Board of Education in November 2012, given his background is in education.  

Haney was elected to San Francisco’s Board of Supervisors in November 2018 and was sworn in to represent San Francisco District 6 on January 8, 2019. Therefore, he has served just two years as a City Supervisor, raising a question of whether he — like Ms. Selby — is potentially using his incomplete first four-year term on the Board of Supervisors as a steppingstone to the State Assembly.

His website for election to the Assembly claims he “Rezoned the city to allow affordable housing to be built everywhere by co-sponsoring the ‘Affordable Homes for Educators and Families NOW‘ ballot initiative” in November 2019 that became “Proposition E” on the municipal ballot. He’s stretching the truth for a number of reasons.

First, although Haney co-sponsored along with three other City Supervisors and supported “Prop. E” on the ballot, he did not rezone the entire City to allow affordable housing that could be built “everywhere” all by himself. Instead, “Prop. E” asked voters to approve allowing building only 100% affordable housing — not all affordable housing — only on public land owned by the City or school districts, not “everywhere.”  And the ballot measure didn’t re-zone those “P, Public” parcels of land; Prop. E just changed the Planning Code to allow residential housing only for educators and 100% affordable housing projects on parcels zoned “public.”

Second, it’s thought that most of the housing projects that may be approved under “Prop. E” will be targeted only to educators and teachers, and only to a lesser extent other San Franciscans who also desperately need access to affordable housing.

On Friday, January 7 the first campaign flyer from Haney’s campaign arrived in San Franciscan’s mailboxes; voters suspect they’ll be inundated with many more flyers from his campaign and other Independent Expenditure Committees likely to be supporting hm. His flyer claims he brought 5,000 new units of housing to his District. Haney didn’t stratify how many of the 5,000 units are market-rate units vs. affordable housing units.

It’s unlikely the 5,000 units of new housing Haney claims he has brought to District 6 — which includes the Tenderloin, Civic Center, Mid-Market, SOMA, Yerba Buena, Rincon Hill, South Beach, Mission Bay, and Treasure Island neighborhoods — during the short two-year period he has represented D-6 have predominantly been affordable housing.

On January 3, 2022 Haney’s campaign issued a press release announcing his campaign has raised over $675,000 for his bid to represent California’s 17th Assembly District. His campaign reported that the “majority” of contributions came from San Francisco residents. His press release claimed over 400 San Francisco residents had contributed by January 3, including over 300 residents in AD-17. He claims the donations highlight strong grassroots support from San Franciscans.

Of note, the maximum allowable contribution to California Assembly candidates is $4,900 per person. That suggests Matt would have needed to accept 138 donations of $4,900 each to reach $675,00 in donations, which is unlikely given the median income of D-6 residents. Alternatively, if 400 San Franciscan’s had donated to Haney’s campaign by January 3, they would have needed to donate $1,688 each to reach a campaign war chest of $675,000. Again, it’s a stretch to believe Tenderloin or Treasure Island residents have $1,688 in disposable income to donate that much in so-called grassroots donations.

Because it’s a statewide election, campaign contributions are not yet posted on the San Francisco Ethics Commission’s website. And as of January 7, the California Secretary of State’s website reports it hasn’t received any campaign contribution disclosure filings in electronic format from any of the four candidates for the D-17 Assembly seat, so there’s no way to check the veracity of Haney’s press release, see the names of the people donating to Haney’s campaign and at what dollar amounts in contributions, or whether the “majority” of contributions are really from “grassroots” donors.

Those mandatory campaign finance disclosure documents may not become available before San Francisco voters begin receiving their vote-by-mail ballots in the next two weeks to learn who has donated $675,000 to his campaign.

And there are no reports available yet about how much more money has been contributed to date to so-called “Independent Expenditure Committees” supporting Haney.

Haney asserts his campaign will not accept donations from corporation PAC’s. By contrast, Campos asserts his will be a corporate-free campaign. That distinction may be relevant, allowing Haney to accept corporate donations, just not from corporate PAC’s.

That’s why, in part, there are credible concerns that Haney and other corporate-backed candidates — like Mayor Breed’s “Angel” investor Ron Conway — are raising millions of dollars to support Haney and defeat Campos, and possibly falsely claim Haney has “grassroots” support. Don’t fall for their Big Lie.

As it is, Haney’s website shows that as of January 6 he had a total of only 91 endorsements, including just 13 elected officials, 28 community leaders, and 50 labor unions, mostly from the trade unions.

Perhaps the most important reason not to vote for Haney in the special February primary Assembly election is that if he is elected, it will hand Mayor London Breed the opportunity to appoint a temporary replacement to serve out the remainder of Haney’s first term as D-6 Supervisor, disenfranchising and depriving D-6 voters of their choice and a voice in who they want representing them at City Hall. Voting for Haney is a vote for Breed’s agenda!

The Tulchin Research poll between December 14 and December 19 showed Haney in second place, garnering only 25% of probable voters.

David Campos

Of the four candidates, Mr. Campos appears to have the most relevant education and job experience and has the longest and most robust resume among San Francisco politicians.

Campus graduated from Stanford University with a degree in political science and went on to earn his law degree from Harvard Law School in 1996. He served as a Deputy City Attorney for the City and County of San Francisco between 1999 and 2004. He then served as general counsel for the San Francisco Unified School District between 2004 and 2007, and concurrently served as a member and vice president of the San Francisco Police Commission between 2005 and 2008.

Campos ran for Supervisor in San Francisco and served on San Francisco’s Board of Supervisors between 2008 and 2016, serving two full four-year terms, and creating a comprehensive legislative record. One website lists many of Campos’ legislative accomplishments while on the Board of Supervisors, including landmark legislation on issues of local and national significance, including immigration, transportation, policing, housing, health care, labor and employment, small business, women’s and LGBTQ rights, and homelessness, among others. The website summarizes other specific key legislation he accomplished.

Campos has emphasized his work on San Francisco’s sanctuary city policy, and on healthcare, transportation, and energy as among his most significant legislative achievements. He introduced CleanPowerSF in 2012 to buy electricity generated from renewable source rather than from PG&E. He also advanced legislation for free Muni passes for youth, worked to expand San Francisco’s sanctuary city ordinance, and closed a loophole in the City’s Healthy SF program, among other legislative accomplishments

Following his service on the Board of Supervisors when he was termed out in 2016, Campos was appointed as a Deputy County Executive in Santa Clara County in March 2017. He served concurrently as a member of the San Francisco Democratic County Central Committee (DCCC) between 2016 and 2021 and was elected within the DCCC as Chair of the San Francisco Democratic Party between 2017 and 2021. Campos is currently one of two Vice Chairs of the California Democratic Party.

When Campos ran against former San Francisco Supervisor David Chiu in November 2014, Campos lost by a mere 2.12%, a difference of just 2,625 votes shy of winning the D-17 Assembly seat. Campos lost in large measure because of Independent Expenditure Committee attack ads funded, in part, by Mayor Breed’s newest pal, Ron Conway.

In stark contrast to other candidates vying for election in the State Assembly race, Campos’ website as of January 6 lists that he has approximately 224 endorsements — including 136 community leaders; 28 major labor unions, democratic clubs, and other community organizations; and 60 endorsements from current and former elected officials (including six of the current 11 members of San Francisco’s Board of Supervisors, Assemblyman Phil Ting, State Senator Dave Cortese representing Senate District 15, and somewhat surprisingly, from former Mayor Willie Brown).

Brown should know who the best candidate to represent San Francisco in Assembly District 17 is, after Willie spent 30 years representing San Francisco in the State Assembly and as Speaker of the Assembly. As former Assemblymembers, Willie Brown and Phil Ting are on the right track!

In addition to the six current members of the Board of Supervisors who have endorsed Campos, an additional 11 former members of San Francisco’s Board of Supervisors have endorsed Campos, too. Combined, the 17 former and current City Supervisors also know Campos is the best candidate to represent Assembly District 17 residents.

The labor unions and other organizations supporting Campos in his run for the Assembly, include the International Federation of Professional and Technical Engineers (IFPTE) Local 21, National Union of Healthcare Workers, Transport Workers Union Local 250A, UNITE HERE Local 2, United Educators of San Francisco, San Francisco Tenants Union, Chinese Progressive Association Action Fund, Rose Pak Democratic Club, Bernal Heights Democratic Club, and the District 11 Democratic Club, among others.

Given that 39% of Californians are Latino or Hispanic but only 25% of State legislators are Hispanic, it’s high time San Franciscans elect a Latinx individual — Campos — to represent the City in the State Assembly!

The Tulchin Research poll between December 14 and December 19 showed Campos is in first place, at 30% of probable voters.

Should Campos win with more than 50% of the vote in the February 15 primary, San Franciscans can avoid spending more millions on a run-off election in March. Cast your vote for Campos as soon as you receive your vote-by-mail ballot, and encourage voters you know to do the same. (Don’t let Ron Conway’s “dark money” buy himself another election!)

Postscript: Defining “Grassroots” Donations

Haney’s campaign web site asserts he is receiving significant grassroots campaign donations and he’s running a grassroots campaign.  But how is “grassroots” defined?

After submitting this article to the Westside Observer for publication, I learned that the San Francisco Examiner had published and then updated an article on Friday, January 7 about campaign contributions pouring into various upcoming San Francisco election campaigns, including the race for who will represent San Francisco’s eastern neighborhoods in the State Assembly.  The article contained preliminary data of campaign donations for all four of the candidates seeking election to State Assembly D-17.

In the article, the Examiner reported that Haney’s current self-reported $675,000 in donations included “more than a dozen labor groups [especially construction trade unions that donated] $9,700 apiece … the spending limit for organizations.”  Actually, Haney has received 15 $9,700 donations totaling $145,000 in campaign contributions.

The Secretary of State (SoS) doesn’t require candidates file their initial campaign contribution disclosure reports until January 31, 2022, which is long after mail-in ballots will start arriving in AD-17 residents’ mailboxes and early voting begins.  But the SoS does require that donations of $5,000 or above from a single contributor or organization be reported to the State within 10 days of receipt of the donation.  The SoS also requires that donations of over $1,000 from a single contributor be reported within 24 hours during each 90-day election cycle, so the preliminary electronic data now currently available gives us some data to consider while starting to decide which candidate to vote for.

The Examiner’s article was based, in part, on the preliminary data in the SoS’ “advanced search” feature at https://powersearch.sos.ca.gov/advanced.php.  But the Examiner article relied on self-reports from each of the four candidates’ campaigns for greater accuracy.

Haney’s web site claims he has received endorsements from 50 “organizations,” most of them labor unions, including 21 of which are construction trade unions.  It’s not clear yet how many of those labor unions have donated either the $9,700 maximum that applies to “organizations” or how many of the 50 unions contributed at the $4,900 maximum that applies to individuals.  We won’t learn that until the mandatory electronic campaign finance disclosure records become available on January 31.

Most observers don’t consider that the $9,700 maximum that applies to organization, or the $4,900 maximum that applies to individuals, to be “small-dollar” grassroots donations.

Preliminary Secretary of State Data

Analyzing data downloaded from the SoS web site reveals initial data about how much money each of the four candidates for Assembly have raised so far, independent from their self-reporting data.

The table above reveals some significant information:

• 74.8% of 138 donations to Haney’s official campaign (not IE Committees supporting him) as of January 7 involved 66 donations at the $9,700 and $4,900 maximums allowable.
  
  Oddly, the preliminary data downloaded from the SoS web site revealed that the donations to Haney to date include two different Recipient Committee ID numbers :  ID #1441330 (named “Matt Haney for Assembly 2022”) and ID #1442544 (named “Haney for State Assembly 2022”).  It’s not yet known why there are two separate recipient committees for Haney, and it’s not yet known if one or the other may be a committee created so he could potentially roll over campaign donations made in 2018 towards his election to the Board of Supervisors in 2019 to his campaign for State Assembly.  The SoS data shows that four different construction trade organizations (unions) each made two $9,700 donations to each of Haney’s two Recipient Committees.
  
• By contrast, just 51% of 72 donations to Campos’ official campaign have involved 18 donations at the $4,900 maximum allowable.
  
• Of the $383,200 Mahmood had reported to the SoS by January 7, fully 78.3% came from the four donations he contributed to himself, since he declined to agree to campaign contribution limits.  By contrast, 48Hills reports Campos and Haney had agreed to the campaign spending cap of $649,000. 
  
  (This doesn’t explain why the Examiner had reported on January 7 that the Haney campaign had asserted by way of “self-report” that donations to Haney to date had reached $675,000 — $26,000 more than the $649,000 “cap.”  It’s also not known whether Haney’s campaign may have recently decided to back out of the spending cap.)
  
  Although 48Hills reported that it thinks Haney will reach the $649,000 cap from donations of $4,900 or less, Table 1 above shows that the SoS web site reports that at least $178,000  — 33.7% —  of Haney’s donations received as of January 7 involved contributions of more than $4,900.
  
• Selby has reported just $21,950 to the SoS to date.  As a reminder, the Tulchin Research conducted in mid-December 2021 showed Selby dead last, at just 4% of probable voters.

Independent Expenditure Committees Supporting Haney

The 48Hills web site published an article on January 10 announcing that money is starting to flow in to several Independent Expenditure Committees that will probably unfairly smear David Campos over his support for an Assembly bill — AB-1400, Guaranteed Health Care for All — to establish an American Health Benefit Exchange to facilitate the purchase of qualified health benefit plans by qualified individuals and qualified small employers  The bill was principally co-authored, in part, by then-San Francisco Assemblyman David Chiu (who is now San Francisco’s City Attorney), Assemblyman Phil Ting, and State Senator Scott Wiener.  The bill was introduced in the State Assembly on February 19, 2021.  AB-1400 was referred to the Assembly’s Committee of Health on January 6, 2022 and was being heard in Committee on the evening of January 11.  It needs just eight Assembly members to advance out of Committee, and is expected to secure the eight votes.  (Stay tuned.)

AB-1400 seeks to bring universal healthcare, via single-payer legislation, to Californians and is supported by both Matt Haney and David Campos. 

48Hills reported that an Independent Expenditure Committee (IE) formed to support Haney (and oppose Campos) has already raised $270,000, including $200,000 from building trade unions to date.  You can be sure of two things:  1)  This IE Committee will receive much more in campaign donations before the February 15 election most probably in the hundreds of thousands of dollars, and 2)  They will mount nasty attack ads against Campos over the single-payer healthcare issue, turning a blind eye to the support of AB-1400 by Haney, Wiener, Chiu, and Ting.  You can be sure of that because IE Committees do not have any restrictions on how much money they are allowed to raise.

To the extent that AB-1400 advances out of the Assembly’s Committee on January 11, the IE Committee seeking to smear Campos will be wasting it’s money and time, and should just quietly shut up and go home!

The IE will be seeking to buy a politician — Haney — it feels more comfortable with.

Distrust in Voting Rights

We’re supposed to be a country founded on the principle of “one man [person], one vote.”  Voters understand that campaign contribution laws are meant to protect the ability of all citizens and all voters to affect the outcome of elections, not to advance the interests of unions and IE Committees.

Along with the two voting rights bills currently stuck in the U.S. Senate, not enough is being done about campaign finance reform legislation to constrain “dark money” in elections at all levels of government, including dark money from labor unions and IE’s.

Take for instance the $500 maximum that individuals are allowed to contribute to candidates running for San Francisco elected offices, and the maximum $2,900 cap individuals can donate to candidates running for federal office.  How did it come to be that individuals can donate $4,900 each to candidates running for California Senate and Assembly, and individuals can donate up to $32,400 to candidates running to become California’s governor, but so-called “organizations” can donate up to nearly $10,000 each to candidates running for the State Senate and Assembly?  That’s not what I call “one man, one vote,” or adequate “voting rights” when so-called labor unions and other “organizations” can go buy themselves elections of candidates running for California State Assembly.

IE Committees granted unregulated campaign finance donations are another reason voters have grown to distrust in elections given who are buying themselves politicians.

To repeat, cast your vote for Campos as soon as you receive your vote-by-mail ballot!
Watch this space.

[Full Disclosure:  I have made a “small-dollar” campaign donation to Mr. Campos’ election campaign for State Assembly.]

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 monette-shaw@westsideobserver.com.

January 2022

Proposed Housing on Laguna Honda Hospital Campus

Senior Housing on “Cortese List” (Toxic) Site

Mercy Housing Plans to Evade CEQA Oversight Despite its Legal Requirements in Unsafe Conditions

by Patrick Monette-Shaw

Who knew large portions — if not all — of LHH’s campus may be on the State of California’s “Cortese List” of toxic land sites having hazardous materials that haven’t been mitigated? The sites would be very expensive to remediate, and may involve removing tons and tons of soil.

Fifteen months ago in October 2020, I published an article titled “LHH:  Inappropriate Site for Senior Housing.” The article outlined multiple reasons why former Supervisor Norman Yee’s proposal to build senior housing on Laguna Honda Hospital’s campus was (and still is) a really bad idea, including the fact that isolating seniors on a remote parking lot on the campus is inhumane. As far back as 2006, some disability rights advocates asserted the LHH location would be like institutionalizing them.

At the time the article was written, I had no idea what the Cortese List was or what it portended. It may be the most important reason why the LHH campus is wholly inappropriate for seniors, people with disabilities, and children (given plans for a Day Care center as part of the housing project).

All the concerns I raised in October 2020 remain valid and worthy of reading carefully, because of the difficult topography and very steep elevation of the site, along with other problems seniors and people with disabilities would face, being so isolated on LHH’s campus and a sense of being “institutionalized” far from their own neighborhoods.

Although I have been following the rebuild of Laguna Honda Hospital since 1999, documents recently released from the Mayor’s Office of Housing and Community Development (MOHCD) in response to a long-stalled public records request newly reveal, that both proposed alternative locations on the campus are on the Cortese List. One of the documents is Mercy Housing California’s 50-page draft Laguna Honda Senior Living Master Plan dated September 17, 2021. Pages 7 and 10 of the Master Plan report the two optional sites on LHH’s campus are on the Cortese List.

I don’t recall reading in the 2001 and 2002 draft or final Laguna Honda Hospital Replacement Project EIR’s anything about LHH being on a Cortese List site, or any plans to do Cortese remediation (other than doing a very limited amount of asbestos abatement in a few of the administrative areas of the old main hospital). Nor do I recall reading anything in the Anshen + Allen architectural reports and Turner Construction Company documents presented to the Health Commission about LHH being a Cortese List location and remediation plans. And I also don’t recall reading anything in MOHCD status reports presented to San Francisco’s Citizen’s General Obligation Bond Oversight Committee about progress on the Replacement Project bond measure that LHH’s campus was a Cortese List site.

The other document just released is an accompanying 62-page analysis titled “Affordable Assisted Living in San Francisco: Feasibility Study” dated September 8, 2021 prepared for Mercy Housing California.

Cortese List History

State Senator Dominic Cortese

Back in 1985, then-California Assemblymember Dominic Cortese authored a law to enact a list of hazardous-waste sites in the State; the list quickly became known as the “Cortese List.” He created the list, in part, to highlight the potential dangers of developing projects on sites that could pose severe health risks to construction workers and future occupants without mitigation efforts designed to clean up or eliminate hazardous substances.

Six years later, in 1991 then-Assemblymember Samuel Farr passed AB-869, a bill that prohibits any project from being exempt under CEQA if located on a Cortese List site. Farr’s law was in response to actual instances of construction projects having been carried out on Cortese List sites without thorough environmental analysis due to CEQA exemptions.

The list is an annually-updated planning document used to inform the public about the location of hazardous materials release sites — say the Bayview-Hunters Point Shipyard, for example. California’s Department of Toxic Substance Control (DTSC) and the State Water Resources Control Board (SWRCB), along with other state and local agencies, are required to include listing certain contaminated sites on the Cortese List, presumably until the sites are fully abated and remediated. California Public Resources Code §21084 states CEQA exemptions cannot be granted for projects on Cortese List sites for any reason or under any condition.

CEQA exemptions are usually reserved for projects that do not have any possibility of posing a significant impact on the environment or human health, according to state law.

Unfortunately, many local entities and jurisdictions eventually found a creative way to intentionally bypass CEQA environmental review requirements of Cortese List sites by granting so-called “common sense” exemptions, claiming those types of exemptions aren’t subject to Public Resources Code §21084. That quickly became a barn door-wide loophole allowing entities — including, somewhat shockingly, even San Francisco’s Planning Department — to implement development projects on Cortese List sites by issuing “common sense” loophole exemptions without notifying the public about potential health risks to a project’s construction workers or the surrounding community.

State Senator Dave Cortese

Along came Dominic Cortese’s son, current State Senator Dave Cortese, who introduced SB-37 Contaminated Site Cleanup and Safety Act on December 7, 2020 to close the “common sense” exemption loophole that is used to get around toxic site development rules. SB-37 is unofficially named the “Dominic Cortese ‘Cortese List’ Act of 2021” in honor of his father. SB-37 bolsters the Public Resources Code to confirm all types of exemptions, including CEQA exemptions, that explicitly allow “common sense” objections cannot be granted to projects on Cortese List sites.

Thanks to SB-37 and the Cortese List, CEQA requires that a clean-up plan for a contaminated site must be presented for at least a 20-day public review and comment period so the public may review the plan and ensure that it is adequate to safeguard the health and safety of neighbors, future residents, construction workers, and others.

Clearly, a 20-day review period — which many view as completely inadequate to begin with and should be extended to a longer period of time — wouldn’t take the skin off of anyone’s nose (not even the noses of developers)!

San Francisco Board of Supervisors Supported SB-37

Supervisor Gordon Mar

Then came San Francisco Supervisor Gordon Mar, the lead sponsor of Board of Supervisors Resolution #205-21. The Board’s Resolution sought to affirm The City’s support of State Senator Cortese’s SB-37 to prohibit local jurisdictions from issuing any “common sense” exemptions to sites included on the Cortese List.

Resolution 205-21 asserts that a categorical exemption cannot be issued for a project proposed for construction on any Cortese List site, as established by CEQA statutes in Section 21084(d), and it also states that preliminary mitigated negative declarations under CEQA require a clean-up plan for a contaminated site that must be presented to the public for at least a 20-day public review and comment period. The Resolution also asserts Public Resources Code §21084 states CEQA exemptions cannot be granted for projects on Cortese List sites for any reason, presumably not even the “common sense” exemption.

Mar was joined by seven other supervisor’s to gain a mayoral veto-proof piece of legislation, including current D-7 Supervisor Myrna Melgar who was formerly president of the San Francisco Planning Commission.

The Resolution was heard by the Board’s Land Use and Transportation Committee on May 3, 2021. The next day it was passed unanimously by the full Board (including by Melgar) on May 4, essentially preventing Mayor Breed from vetoing it.

Public comments posted on the Board of Supervisors web site as background materials for the hearing on Resolution #205-21 included this notable comment:

“SB 37 will close a loophole that has been improperly exploited by the San Francisco Planning Department to allow projects built on contaminated sites to evade CEQA review. SB 37 will help to safeguard public health and safety by ensuring that contaminated sites are properly cleaned up before development projects are allowed to proceed.” [Emphasis added]

A 48Hills article about the Board of Supervisors challenging the Planning Department over construction on toxic sites is informative and well worth reading.

The City and County of San Francisco already requires preparation of clean-up plans for contaminated sites pursuant to our City’s Maher Ordinance — a program managed by San Francisco’s Department of Public Health — with associated costs for mitigation in a process developers are familiar with. Unfortunately, the Maher Program doesn’t involve a public process or public comment periods to provide citizen oversight.

The Board’s Resolution was passed unanimously to affirm SB-37’s requirement that remediation plans for Cortese List projects be presented to the public for a brief 20-day review period prior to Planning Department CEQA review and approval.

Strangely, Mayor London Breed returned Resolution #205-21 unsigned to the Board of Supervisors on May 14, 2021. Why would Breed oppose merely supporting getting rid of the CEQA “common sense” loophole (unless it was of no concern to her so she could — unimpeded — advance her housing and construction agendas)? Why would she oppose a mere Resolution from the Board, which has little effect in law? And why would Breed oppose a mere 20-day review period for the members of the public who elected her to office?

Planning Department’s Environmental Review

San Francisco’s Planning Department maintains a web page with a searchable map showing project locations throughout the City that have either completed environmental reviews (shown using green dots) vs. project locations that are currently receiving environmental reviews (shown using blue dots). The page is titled “CEQA Exemptions,” but the text claims that the map displays Exemptions (Categorical, Statutory, and Community Plan Exemptions), Mitigated Negative Declarations, and Environmental Impact Reports related to applications filed with the San Francisco Planning Department. The types of exemptions granted for each project are not reported on-line.

In the accompanying illustration, the map on the top is from the Planning Department’s “CEQA Exemptions” web page enhanced with a pink overlay outlining the LHH campus perimeter, plus green dots where environmental review is complete. There are no blue dots showing any sites on the campus currently receiving reviews. The bottom map adds yellow overlays of the “Site A” and “Site B” proposed housing locations. It doesn’t appear Planning has performed “Cortese List” environmental reviews of the two locations with yellow shading.

It’s thought that Mercy Housing’s project for LHH’s campus has not yet filed a formal application with the Planning Department. But there are no blue dots on the map showing any environmental reviews that may be underway anywhere on LHH’s campus.

Mercy’s Senior Living Master Plan Concerns

Former Supervisor Yee.

As I’ve previously written, former Supervisor Yee, Mercy Housing, MOHCD, and the Department of Public Health have been planning to piggy-back and creatively shoehorn the proposed LHH senior housing project onto the EIR conducted in 2002 for the LHH replacement hospital rebuild to prevent having to perform another CEQA review. Obviously, the proposed “Site A” and “Site B” locations are not the same locations proposed for an assisted living facility on the east side of LHH’s campus in the 2002 LHH EIR, so it should require a new EIR.

Should Mercy Housing receive an SB-35 “clearance letter” from the State for its LHH housing project on this Cortese List site, it essentially means no CEQA review will occur because the project is subject only to a “ministerial” approval process, and the project will not be subject to applicable neighborhood notice requirements. That would essentially mean that there will be no 20-day review and comment period for a clean-up plan to be presented to the public.

“Ministerial approval” means a process for development approval that involves little or no personal judgment by public officials as to the wisdom or manner of carrying out a given project. It’s thought the City’s existing Maher Program has all along utilized objective evaluation criteria that are outside the scope of “personal judgments,” and, therefore, are outside the scope of ministerial approval processes.

SB-35 amends Government Code §65913.4 to require local entities streamline the approval of certain housing projects by providing a ministerial approval process. Developers must document that their project site is zoned for residential use or residential mixed-use development, or a general plan designation that allows residential use or a mix of residential and nonresidential uses. The LHH campus is not zoned principally for housing. Instead, the campus is zoned “P, Public” which until recently did not permit any residential housing; voters recently approved allowing only residential uses for 100% affordable housing and educator housing projects on sites zoned “P.” The campus has also not been re-zoned as a “Special Use District” by the Board of Supervisors to allow residential uses.

Mayor London Breed

Mercy’s proposed senior housing project is not planned to be a 100% affordable housing project because it envisions a good percentage of the units will be market-rate units to help fund future ongoing operating costs. Mercy Housing’s draft Master Plan for senior housing on LHH’s campus wrongly asserts that the housing “Site A” option is zoned “OS, Open Space,” and “Site B” is zoned as “80-D,” which is not a zoning code but rather the height and density code.

To qualify for the streamling and ministerial provisions provided by SB-35, housing projects have to provide on-site affordable housing to households earning 80% AMI or less.  Alternatively, SB-35 also applies to mixed-income projects if at least 50% of the proposed units are affordable to qualifying households.  In both cases, SB-35 requires that the proposed site be zoned for residential use.  To repeat, Mercy Housing’s proposal for senior housing on LHH’s campus does not appear to meet SB-35’s residential zoning requirement because LHH’s campus is zoned “P, Public” and allows limited residential housing only for 100% affordable housing and educator housing projects, not 50% mixed-income projects. 

Mercy’s financial feasibility study analyzed the feasibility of 80 to 95 licensed assisted living units or unlicensed housing-with-enhanced-services units, plus 169 to 174 independent senior housing units.  By its own admission, Mercy’s feasibility study noted the licensed assisted living units in a Residential Care Facility for the Elderly (RCFE) model of assisted living would need to include market-rate units for private-pay clients paying up $6,000 or more per month.  The feasibility study did not indicate how many — or what percentage — of the 80 to 95 assisted living units would need to be market-rate units to pencil out.  And the feasibility study creatively excluded reporting whether, or how many of, the 169 to 174 independent senior housing units may also be market-rate units in order for the project to pencil out as financially feasible.   We have no idea how many of the total 249 to 269 total units Mercy is proposing would be market-rate units.

Obviously, including market rate units on LHH’s campus does not qualify under San Francisco’s November 1999 voter-approved “Proposition E” that allows only100% affordable housing or educator housing projects on sites zoned “Public.”  Prop. E made no provision for any market-rate units on public lands, even if SB-35 applies to mixed-income projects with at least 50% of the proposed units are affordable to qualifying households.

Mercy’s senior housing project at LHH project should not be eligible for ministerial approval under SB-35 to evade being subject to CEQA and a new EIR under Senator Cortese’s SB-37.

Developers seeking SB-35 approval are also required to demonstrate that their development is not located on a parcel that is listed as a hazardous waste site under California Government Code §65962.5, or a hazardous waste site designated by the Department of Toxic Substances Control pursuant to Health and Safety Code §25356.

Mercy Housing clearly knows SB-35 approval for building on a Cortese List site requires a “clearance letter” issued by the California Department of Toxic Substances Control or by California’s State Water Board. Mercy Housing’s draft LHH Senior Housing Master Plan didn’t indicate whether or not the proposed senior housing project has received such a “clearance letter” yet, or when it may expect to receive one.

These clearance letters should not be exploited in an end run in order to evade the legislative intent of either Senator Cortese’s SB-37 or the legislative intent of Board of Supervisors Resolution 205-21.

Subverting SB-37 for Cortese List Sites Is Wrong!

Although LHH’s campus sits in her district (but is a citywide resource for all Supervisorial Districts), Supervisor Melgar must know that the will of the Board of Supervisors is to prohibit the Planning Department from exploiting and issuing any more “common sense” CEQA exemptions for Cortese List sites. Melgar should take the lead on ensuring the Cortese List two alternative locations proposed for Mercy’s Housing independent living housing project and the potential additional assisted living project on LHH’s campus are fully remediated.

SB-37 is not completely dead in the State Senate but is in a temporary inactive status. The Board of Supervisors should find a way to honor the intent of SB-37 by requiring a CEQA review of LHH’s campus Cortese List site before Mercy Housing is allowed to proceed.

Supervisor Myrna Melgar.

Supervisor Melgar must know California Public Resources Code §21084 states CEQA exemptions cannot be granted for projects on Cortese List sites for any reason, in particular not “common sense” exemptions.

As far as that goes, California’s Department of Toxic Substances Control and the State Water Board must both know that the legislative intent of the State Senate is that no more “common sense” exemptions be issued to proposed projects on Cortese List sites. Neither State agency should issue Mercy Housing a “clearance letter” to obtain SB-35 approval and evade full CEQA review, or evade SB-37.

It’s probable that if Mercy Housing is required to clean up and remediate either, or both, of the two proposed sites for its senior housing and assisted living projects it may kill any chance either project will pencil out as being financially feasible. But not mitigating the toxic contamination may well contribute to killing actual senior citizens and people with disabilities.

I-Team investigative journalist Dan Noyes noted on ABC Channel 7 on December 7, 2021 “Your government doesn’t aways tell you the truth.” That pretty much sums up whether LHH, San Francisco’s Department of Public Health and Planning Department, and others are telling San Franciscans the truth about developing senior housing on the toxic Cortese List sites on Laguna Honda Hospital’s campus.

[A follow-up article is planned for January 2022 to explore additional concerns in Mercy Housing’s just-published “Laguna Honda Senior Living Master Plan” and its separate financial “Feasibility Study.”]

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 -. Contact him at monette-shaw@westsideobserver.com.

December 22, 2021

Why No Status Updates?

Where’s the Housing?

2019 Affordable Housing Bond’s Invisible Ink

by Patrick Monette-Shaw

Where’s the housing promised by the 2019 Affordable Housing Bond? Where are status reports informing San Franciscans about what progress, if any, has been made on the Bond?

In November 2019, San Franciscans passed yet another affordable housing bond — to the tune of $600 million. During the past two-plus years since, we’ve received what can only be called “invisible ink”: Absolutely no new public reports about the planned list of all housing projects to be funded across the life of the entire Bond have been published since 2019 — and there’s no ink reporting what housing (if any) may have been brought online so far.

The $600 million 2019 Affordable Housing bond pledged allocating funding to five main categories of projects:

Despite a voter guide legal requirement that the Mayor’s Office of Housing and Community Development (MOHCD) provide annual reports about progress being made issuing the 2019 Bond and the status of projects, MOHCD has not produced any status reports about the entire Bond. Bi-annual status reports about projects funded by the 2015 Bond have typically been 40-page reports, including details about each project being funded.

Notably, the 2015 Bond status reports began appearing within two months of the election, in January 2016, with specific, named projects appearing within eight months, in June 2016. Why should 2019 Bond status reports be different? Why are we now at 25 months following the 2019 election and we’ve received absolutely no status update progress reports?

On October 22, 2021, MOHCD responded to a public records request saying MOHCD staff are currently working on the first 2019 Bond report using data as of June 30, 2021. MOHCD asserted that because it would be the very first report on the 2019 Bond and because of recent staff turnover on MOHCD’s two teams managing the Bond, it was taking longer than MOHCD expected to finalize the report, and adding that MOHCD expects to finish the first report by December 31, 2021.

We’ll see if MOHCD’s December 31 target date comes to fruition.

Invisible “Good Portfolio to Show”

As I reported on December 30, 2020 in my article “Invisible Affordable Housing on Public Land” San Francisco’s Board of Supervisors Land Use and Transportation Committee (LUT) held a hearing on December 7, 2020 to consider strategies the City could pursue to maximize creating affordable housing on public land.

I testified during that hearing that the LUT Committee should require MOHCD to rapidly issue an inaugural quarterly report naming the specific planned housing projects by street address for each of the various categories of funding in the 2019 Affordable Housing Bond.

Following my testimony, Supervisor Aaron Peskin interjected, saying that although MOHCD isn’t communicating well with members of the public or with CGOBOC, “… We [the City] actually have a good portfolio to show.”

Peskin’s rejoinder was wholly inadequate, precisely because the portfolio of all projects being funded by the 2019 Affordable Housing Bond was not then available to members of the public. And a comprehensive list of all projects to be funded by the Bond still isn’t available now.

The Board of Supervisors may have a general idea of the proposed projects to be funded by the bond from documents included as background material in the legislation authorizing issuing the first tranche of the 2019 Bond, but it’s not easily accessible to members of the public and isn’t available on MOHCD’s web site.

Language in the legal text in the November 2019 voter guide stated that as part of oversight and transparency of the 2019 Housing Bond, the City would (“shall”) create a web page outlining and describing the bond program, including progress and activity updates. As of April 1, MOHCD hadn’t created such a web page or made it available on-line.

MOHCD finally created and rolled it out on-line live on April 13, 2021 fully a year-and-a-half after the November 5, 2019 election passing the Bond.

Problem is, the only three documents posted so far on the web site are all documents created prior to the November 2019 election. No progress status reports, or annual or quarterly reports to MOHCD or annual reports to the Board of Supervisors on progress on the 2019 Bond have been posted on-line yet — fully two years following the 2019 election.

Worse, MOHCD later admitted via e-mail that the documents Peskin may have been referring to were submitted during the approval process to authorize selling the first tranche of the Bond, but the documents were not an adequate replacement for any required reports of planned bond-funded affordable housing projects.

When the LUT hearing was held on December 7, 2020, 13 months had already elapsed following passage of the $600 million bond in November 2019, and CGOBOC (the Citizen’s General Obligation Bond Oversight Committee) hadn’t received any written reports from MOHCD describing specific projects by name planned for any of the various categories of affordable housing promised to voters in the bond for either projects being funded by the first tranche of Bond spending, let alone all projects to be funded over the life of the entire Bond.

Nor had members of the public or the Board of Supervisors been presented any documents describing which specific affordable housing projects were to receive funding from the entire 2019 Bond.

Fast forward another year to December 2021. It’s now been 25 months following passage of the 2019 Bond, and MOHCD still has not presented a report to either CGOBOC or to the Board of Supervisors describing planned projects by name and location across the entire Bond.

One Minute, 29 Seconds

Never underestimate the power of a man with a banjo. One disgruntled Libertarian’s frivolous lawsuit held San Francisco’s 2019 Affordable Housing Bond hostage.

On April 6, 2021 I published an updated article, titled “Lawsuit Stalls 2019 Affordable Housing Bond,” which reported that a citizen’s lawsuit filed in San Francisco Superior Court on December 26, 2019 delayed progress on the Housing Bond. That article focused on CGOBOC’s March 22, 2021 meeting that included a single agenda item for MOHCD to present updates to CGOBOC on the 2015, 2016, and 2019 Affordable Housing Bonds.

During CGOBOC’s March 22, 2021 meeting, MOHCD spent a miserly one minute and 29 seconds updating CGOBOC members about progress on the $600 million 2019 Affordable Housing Bond. MOHCD merely reported that a list of projects to be funded by the 2019 Bond had been approved by San Francisco’s Capital Planning Committee and the Board of Supervisors on October 6, 2020, and that the first $252.6 million tranche of the 2019 Bond would be sold by the end of March. The first tranche was sold on March 30, 2021.

Unfortunately, the list of projects approved by the Capital Planning Committee on October 6, 2020, only named a handful of projects by street name and location that were to be funded by the first Bond tranche, not all projects envisioned for the entire Bond when subsequent tranches of the Bond are issued. So much for Peskin’s assertion that the City has “a good portfolio to show.”

Language in the legal text in the voter guide also promised that an annual report on the 2019 Bond would be provided to the Mayor and the Board of Supervisors. MOHCD indicated on April 6, 2021, that no annual report was provided to the Mayor and Board of Supervisors.

Senior Housing and Housing at Laguna Honda Hospital

As the table above shows, one of the five main categories of projects to be funded by the 2019 Bond will eventually be allocated $150 million to produce 500 Senior Housing rental units, ostensibly senior housing spread throughout the City. The Senior Housing category was issued $21.2 million from the first tranche of $252.6 of the Bond in March 2021.

A few glimmers of information about the Senior Housing component of the 2019 Bond just surfaced.

Background materials posted on-line on December 2, 2021 for CGOBOC’s next meeting on December 6, 2021 included CGOBOC’s combined Annual Report (prepared by the City Controller’s Office) for fiscal year 2019–2020 and fiscal year 2020–2021 — even though annual reports are supposed to be issued annually, not every two years combining multiple years into a single report. [Note:  CGOBOC’s just-issued 14-page Annual Report is also not an adequate replacement for required reports of planned bond-funded affordable housing projects and should not be confused with the typical 40-page Bond progress reports.]

Of the 13 separate General Obligation Bonds still under CGOBOC’s oversight authority — park bonds, road improvement bonds, earthquake and seismic safety bonds, etc. —  CGOBOC included just five paltry sentences about the 2019 Affordable Housing Bond in its new annual report. Sadly, among the five sentences CGOBOC included was this gem: 

“The Committee looks forward to an update on expenditures and to taking an in-depth look at the first phase of the bond program’s scope, schedule, and budget.”

What a mouthful of an admission, and misplaced irony!  After two years without any meaningful information on the 2019 Bond having been provided to CGOBOC by MOHCD — including the miserly one minute and 29 second oral update during CGOBOC’s March 2021 meeting — CGOBOC now admits it is looking forward to an “in-depth update” on the Bond’s scope, schedule, and budget.

No kidding!  Members of the public have also been looking forward to an in-depth update (including a written 40-plus page report) for now going on over two years since passage of the Bond in 2019.

At the end of the 14-page annual report, CGOBOC provided a breakout on the 13 bonds including each bond’s revised budget, the amount issued for each bond, along with the amount expended and amount encumbered on each bond.

Notably, of the $21.2 million issued so far for the Senior Housing category in the first tranche of the 2019 Housing Bond, $13.4 million has reportedly already been expended and an additional $3.7 million has been encumbered, for a combined total of $17.1 million. That leaves approximately $4.1 million that are ostensibly unencumbered.

We have no idea of what specific, named projects the $17.1 million has been spent on to date (between expenditures and encumbrances) in the Senior Housing category. No wonder CGOBOC is looking for an in-depth update because it doesn’t know what the $17.1 million has been spent on to date, either!

We do know from other documents, that of the $150 million allocated for Senior Housing projects funded by the 2019 Bond, $3 million has apparently been set aside to fund Mercy Housing’s planned senior housing projects on the campus of Laguna Honda Hospital. Of that $3 million only $30,862 has been made in completed payments, possibly for a financial feasibility analysis of placing assisted living on LHH’s campus.

Looking Forward

Unfortunately, the 2019 Bond will not be heard again until CGOBOC February 28, 2022, meeting — so we’ll have to wait to see if MOHCD issues a Bond status report at the end of December 2021 as promised, or if we’ll have to wait until February to obtain status updates for each project by street location.

By then, CGOBOC will have lost some historical and institutional knowledge about the three housing bonds still under it’s purview. Transgender bicycle activist Jane Natoli had been appointed as a CGOBOC member several years ago by Mayor Breed. Natoli became CGOBOC’s liaison to MOHCD on the 2015 Affordable Housing Bond and the 2016 Housing Bond, but not the liaison to MOHCD on the 2019 Affordable Housing Bond. Natoli’s six-month interval Liaison Report’s to CGOBOC have not been that thorough, or even helpful, to members of the public. Breed recently picked Natoli to be a commissioner on the Airport Commission so she is no longer a CGOBOC member.

Natoli is being replaced by CGOBOC member Timothy Mathews as liaison to MOHCD on housing bonds. That is somewhat worrisome, because CGOBOC’s annual report just released also reported that:

“[CGOBOC] Member Mathews is interested [sic: in] the potential intersection of Prop K and Prop I from the November 2020 election authorizing the creation and funding of municipal social housing, and this 2019 Housing Bond.”

Readers may recall that “Prop. K” in 2020 was titled “Affordable Housing Authorization,” that “would authorize the City to own, develop, construct, acquire, or rehabilitate up to 10,0000 units of low-income housing.” For its part, “Prop. I,” titled “Real Estate Transfer Tax,” is the subject of a current messy battle between the Board of Supervisors and Mayor Breed. The Supervisors want to allocate $64 million from the “Prop. I” increased tax revenues to “social housing” programs under the “Small Sites” program, which funds acquisition of small apartment buildings housing rent control tenants. Breed wants to allocate the $64 million to the City’s “COVID reserves” budget account.

It’s not known why member Mathews wants to create an “intersection” between the 2019 Bond and “Prop. K” or “Prop I.” As it is, the 2019 Bond already allocates $220 million to the low-income housing category and another $150 million to public housing category for a total of $370 million, which represents almost 62% of the $600 million 2019 Bond. In addition, the 2015 Bond had allocated $100 million to the low-income housing category, which was almost one-third of the $310 million 2015 Bond.

If any kind of “intersection” is needed, the intersection that needs the most help at this point is for middle-income housing units, which have been shortchanged for decades, driving middle-class, middle-income San Francisco households out of the City since Willie Brown was mayor, and even before.

Finally, flyers have begun arriving in residential San Francisco mailboxes put out by a group called “Build Affordable Faster San Francisco,” a so-called “community information program” of TODCO. The new flyers are calling for selling ASAP another $1 billion in additional Affordable Housing Bonds in San Francisco.

Between the three affordable housing bonds San Francisco already has (the 2015, 2016, and 2019 affordable housing bonds), we’ve already issued over $1 billion in such bonds. And we’ve gotten little to show for it, even after having monitored MOHCD’s performance with bonds since the 2015 Housing Bond, making it questionable about issuing another $1 billion in affordable housing bonds. After all, CGOBOC’s so-called “oversight” has been de minimis, when not utterly pathetic.

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 monette-shaw@westsideobserver.com.

December 2021

Another Public Health Crisis:

Why Dumping Patients Out-of-County Is Wrong

by Patrick Monette-Shaw

Why is the healthcare system of a great city like San Francisco turning its back on its most vulnerable citizens who all too frequently are discharged out-of-county due to severe shortages in a wide array of healthcare facilities in the City?

As noted in September 2017, one of the world's greatest cities should not be sending its most fragile residents into exile because they need levels of care unavailable in-county in San Francisco.

There are great benefits to knowing how many San Francisco residents are, or have been, involuntarily discharged to out-of-county facilities, what their age ranges are, what kind of facilities they were discharged from and types of facilities they’re discharged to, and what part of San Francisco they had lived in. These are all evidenced-based measures of what types of services and types of facilities are inadequate in San Francisco.

Policymakers and elected officials need to obtain such data to guide and inform decisions about building out additional facility capacity in-county.

With modern state-of-the-art Electronic Healthcare Record (EHR) databases currently in use at all acute-care hospitals and acute psychiatric facilities in the City to track patients’ medical records, aggregate out-of-county discharge data can easily be extracted from EHR databases without breaching an individual patient’s healthcare privacy and confidentiality protected by HIPAA (Health Insurance Portability and Accountability Act). HIPAA was enacted into law in August 1996 to reform the insurance market and simplify healthcare administrative processes.

Impacts on People Discharged Out-of-County

There are a number of adverse impacts to people who face being dumped out-of-county, including but not limited to:

• Immediate separation from their friends, families, and communities they have lived in for years, and the sense of isolation that brings.
  
• Severed long-term relationships patients have developed with their primary care physicians and other healthcare providers, destroying caregiver support systems they had built and nurtured over long periods of time.
  
• Isolation from neighborhoods and communities patients had relied on for their sense of identities and belonging.
  
• Being disenfranchised from San Francisco and stripped of their residency status and voting rights on ballot issues of interest to them.
  
• Increased risk of “transfer trauma,” a diagnosis that is known to increase morbidity and mortality from the trauma of being relocated. San Francisco’s Ombudsman, Benson Nadell, testified in 2017 to San Francisco’s Health Commission that transfer trauma is a documented effect from relocation of frail disabled persons, because “Caregiver relationships are disrupted; the nexus of communications necessary to preserve continuity of care are broken; [and] the [patient is] moved from the familiar to the unfamiliar.”
  When nursing home patients are transferred out-of-county, family members report that they visit less frequently, and patients spend more time in bed. Many of these patients die within a year, even without terminal diagnoses.
  
• There are no certificate-of-preference programs, or other mechanisms, to help San Franciscans dumped out-of-county return to San Francisco should additional beds in facilities appropriate to their needs be built out, or become available through vacancies via attrition.

Moving physically - or mentally-challenged patients out of San Francisco is clearly detrimental to their health, given the uncertainties of a new location and skilled nursing staff. It leaves fragile patients stranded, miles away from their families and friends.

Changes to the quality of care patients receive when they are transferred to another county that has lower standards of care compared to the care they had been receiving in San Francisco, is a well known adverse effect from out-of-county transfers. This is compounded by the loss of familiar surroundings and accessibility to support from their families.

Why Out-of-County Discharges Matter

If your healthcare needs deteriorate as you age or acquire a disability and you need more care than you know how to get in your own home, or you don’t have a home, you are likely to end up a patient in an acute-care hospital. This is true for the physically ill, as well as the mentally ill. The ideal outcome of an acute hospitalization is to stabilize a patient before discharging them to a location — whether to their own home or to a specialty facility — where they can access the level of care they need.

Unfortunately, acute hospital and acute psychiatric beds are both very expensive, and patients who no longer need them must leave to free the bed up for the next person. Acute-care facilities are profit-driven, even when they claim to be a non-profit hospital. They have a financial incentive to get patients in and out of an acute care hospital as quickly as possible to free up an acute-facility bed for the next patient. Hospitals work aggressively to discharge patients to a so-called “post-acute” lower level of care as a profit-driven strategy to maximize their revenues.

Where do patients go, since there are not enough services or facilities in San Francisco for them? Out of county of course, away from their families, friends, caregiver support systems, and familiar places that preserve their personhoods and quality of life.

A report considered by both San Francisco’s Department of Public Health (SFDPH) and the San Francisco Health Commission in February 2016 — “Framing San Francisco’s Post-Acute Care Challenge” — documented that all public-sector and private-sector hospitals cited out-of-county placement as necessary to transfer patients from acute-care facilities to lower levels of care. Sadly, the report failed to even examine or recommend building out additional capacity in-county.

Unfortunately, five years ago on February 19, 2016 the San Francisco Examiner published an article discussing the “Post-Acute Care Shortage” report that was presented to the Health Commission on February 16. That article quoted then- Health Commissioner David Pating, MD — a psychiatrist and Chief of Addiction Medicine at Kaiser San Francisco Medical Center — as having said: “I hope we will consider out-of-City [i.e., out-of-county] and maybe even multi-county [discharge placement] options.”

It was shocking to hear a psychiatrist like Pating advocate for breaking up therapeutic bonds patients had created for years with their healthcare and mental health providers by increasing out-of-county discharge placements. Pating, of all people, should have known about the emotional and therapeutic trauma patients endure when access to their caregiver support systems are abruptly severed. And it was obvious Pating didn’t understand that all along, all hospitals in San Francisco have been discharging patients to a variety of, and multiple, counties (Pating’s “multi-county” proposed solution). Thankfully, Dr. Pating is no longer a member of the Health Commission!

When it comes to patients — whether private-pay or those who rely on Medi-Cal — needing sub-acute skilled nursing facility (“sub-acute SNF”) care 24/7 for medical conditions that require ventilators, or tracheostomy care with frequent suctioning, it is best done on a hospital’s campus having an on-site ICU. All acute care hospitals other than CPMC’s own hospitals have had to transfer sub-acute patients out-of-county since 2012 when CPMC stopped admitting patients from all other hospital systems to its sub-acute SNF unit, despite it being the only such facility remaining in San Francisco.

Then CPMC stopped accepting any new patients to its sub-acute SNF at St. Luke’s Hospital in 2017 — even from its own hospitals — leaving San Francisco without any in-county sub-acute SNF beds at all, the only county in California without such beds. Progress began in 2017 and 2018 to open new sub-acute SNF beds, but no replacement sub-acute unit has opened in the City during the past four years. For the past four years, an unknown number of new patients needing sub-acute SNF level of care have been discharged out-of-county.

It is traumatic enough for patients who need SNF or assisted living level of care to face being placed in such types of facilities. But discharging them to another county adds to their trauma at a time when they need to feel the support of their own community and see familiar faces.

Tip of an Iceberg?

We know that a minimum of 1,746 San Franciscans have been discharged out-of-county between July 1, 2006 and December 31, 2019 from data shown in Table 1 this author has obtained from San Francisco’s Department of Public Health over the years in response to successive public records requests.

Patient Dumping in San Francisco

The data shows just the tip of the out-of-county discharge iceberg, because of many gaps in the data provided.

Table 1: Out-of-County Discharges, July 1, 2006 — December 31, 2019

The gaps in data about the true number of out-of-county discharges is incomplete due to a variety of factors:

• First, 921 — 53% — of the 1,746 discharges are from San Francisco’s two public-sector hospitals, SFGH and Laguna Honda Hospital.
  
• Second, the 825 additional out-of-county discharges were from a small subset of the eight private-sector acute medical hospitals in San Francisco, including CPMC’s three campuses (Davies, Van Ness, and Mission Bernal/old St. Luke’s Hospital), Chinese Hospital, St. Mary’s Hospital (perhaps including Kentfield Hospital on St. Mary’s campus), St. Francis Memorial Hospital, Kaiser Hospital, and UCSF.
  
  Although SFDPH had requested out-of-county discharge data from all eight private-sector hospitals as part of a so-called Post-Acute Care Collaborative report titled “Framing San Francisco’s Post-Acute Care Challenge” in 2016, only four of the eight hospitals provided their out-of-county discharge data to DPH — CPMC’s three campuses and UCSF, and then only for two fiscal years (FY 2015–2016 and FY 2016–2017). The remaining four hospitals — Chinese Hospital, St. Mary’s, St. Francis, and Kaiser — did not provide DPH with the data requested in 2016. That was patently ridiculous precisely because all hospitals have been using Electronic Healthcare Records (EHR) systems for decades. Those four hospitals must have records stored electronically they could have provided to SFDPH.
  
• Third — and most worrisome — is that DPH itself has failed to produce additional out-of-county discharge data from SFGH for two years since December 2019, wrongly claiming that it’s new EHR database (named “Epic”) is unable to track out-of-county discharges, which as I’ve previously reported is pure nonsense (see my June 2021 article “SFDPH’s Epic Lie: A $167.4 Million Database That Couldn’t”). [Note: I will be writing a follow-up article soon because I filed and won a Sunshine complaint against DPH over SFGH’s claim Epic is unable to track out-of-county discharges.]

Vignettes of Patients Discharged Out-of-County

A sampling of stories about patients dumped out of county include:

Gordon

• A case of a middle-aged gay patron of San Francisco’s Cinch Saloon who suffered a stroke, fell off a bar stool, and sustained a traumatic brain injury one evening while at the tavern. I’ll call him “Gordon.” He was taken to SFGH, where he languished for months. His close friends tried to get him admitted to Laguna Honda Hospital. They were rebuffed and were told Gordon needed “too much” physical medicine rehabilitation therapy — physical therapy, occupational therapy, and speech pathology — and couldn’t be admitted to LHH. It’s well known that delays in receiving rehabilitative therapy following strokes leads to poorer patient outcomes and progressive functional decline.
  
  He languished for months in an acute-care ward at SFGH — at acute-care hospital billing rates — until he was discharged out-of-county in 2011 to a skilled nursing facility in Antioch specializing in dementia and Alzheimer’s patients. Gordon was socially and culturally isolated from his friends and family without anybody to communicate with, given the number of dementia patients he was thrust into. He languished there isolated for more months, since his friends were unable to endure the obstacles of travelling to Antioch to visit him. Gordon’s family had to fight to get him discharged to take him back to Ohio for care.
  

  ---

Billy

• “Billy,” who had faced a major surgery in San Francisco, and was eventually discharged out-of-county to a facility for mental health patients in the South Bay.  He had been told he would receive post-surgery occupational therapy (OT) and physical therapy (PT) to resume being able to walk.  Although the facility provides on-site OT and PT, Billy is making few gains toward post-surgery independence, in part because Medicaid (Medi-Cal in California) restricted his post-hospitalization OT and PT to just five sessions.
  
  He’s now surrounded in the facility by residents who are decades older and unable to communicate due to dementias.  He has nobody with whom to converse.  There’s no phone in his room, and whether he is brought a limited-time use phone is at the sole discretion of staff on duty.  Staff have turned down his requests to use a phone multiple times.  There is no on-site resident library and no resident access to computers, so Billy misses out on email, social media, music, on-line education, entertainment, and information-searching.  He’d like to buy an iPad, but staff told him there’s no wi-fi, even though he can see staff down the hall working on their computers. 
  
  Sadly, it appears San Francisco dumped him into the South Bay, and forgot about him.  His San Francisco social worker and his conservator aren’t checking in with Billy, and aren’t returning calls he’s left for them.  These isolating practices may be categorized as abuse, yet San Francisco maintains no oversight, as if “out-of-sight, out-of-mind” is OK.
  
  Billy’s friends in San Francisco find the two-hour one-way commute to visit him in the South Bay overwhelming; sadly, he has not received any visitors, which adds to his sense of isolation.  Billy is reluctant to complain, fearing he would face transfer to an even worse facility, perhaps even further away.  Being forced to find a different facility to relocate to — often on short notice — is a familiar and frequent concern of many patients who’ve been discharged out-of-county.  Many patients also fear being retaliated against if they voice too many complaints about the quality of care being provided to them.  Retaliatory relocation is a fear many patients and their families share.
  

---

Paul

• Then there’s a patient I’ll call “Paul,” who had been living in a rent controlled unit in San Francisco.  He developed problems in two of his toes, so his caregivers made an outpatient podiatry appointment at a clinic affiliated with a private-sector hospital in the City.  Unfortunately, he was not prepped properly for the podiatry procedure, and not given antibiotics or a foot soaking solution after the two toenails were removed.  Two days after being sent back home, Paul developed severe infections in his toes and quickly became severely disoriented, possibly from sepsis.  He was admitted to a different acute care hospital in San Francisco, and spent a month-and-a-half hospitalized as doctors tried to resolve the infections in his toes, and reconstruct the top of his foot.  His medical team worried the infection might migrate to other bones in his foot, and considered if they would have to amputate both toes, or possibly his whole foot.
  
  All of this — including costs of the month-long hospitalization — might have been completely avoidable, had the outpatient podiatory procedure to remove Paul’s toneails administered antibiotics.
  
  During his hospitalization, Paul’s medical team at the hospital recommended that rather than discharging him to his home, he should be placed in a short-term skilled nursing facility (SNF) in San Francisco until the infections were resolved.  When his insurance ran out to cover the short stay in a SNF, he still had a large open wound on his foot, so his caregivers tried to get him admitted to Laguna Honda Hospital for more rehabilitation, but LHH declined to admit him (in part because he was not an SFGH patient).  His family was forced to place Paul in a studio unit in an assisted living facility in Daly City in May 2021, rather than a facility in Richmond that would have been too far away to visit him daily.  Although progress has been made resolving the infections in his toes and foot, Paul’s family eventually concluded Paul should remain in the assisted living facility with nursing staff providing open wound care three times per week.
  
  On October 28, his family received a notice his monthly fees (i.e., rent) would be raised by $500 per month, above the $3,730 he had been being charged.  The $500 monthly rent increase to $4,230 represents a 13.4% increase.  Paul’s family reached out to the Ombudsman in Daly City, which is a state-mandated patient advocacy and oversight program.  His family also reached out to the California Advocates for Nursing Home Reform (CANHR).  The Ombudsman program and CANHR informed Paul’s family about a recent California Assembly Bill, AB1482, that was signed into law in 2019.  AB 1482 limits rent increases in cities and counties across the state — even if the local jurisdictions do not have local rental control laws — to just 5% plus the percentage change in the cost of living, or a maximum of 10%, whichever is lower.
  
  The most recent Consumer Price Index (CPI) percentage increase for all Urban Consumers in the San Francisco-Oakland-San Jose region for the 12-month period ending October 31 was 1.1%, as posted by the U.S. Bureau of Labor Statistics.  That suggests Paul’s rent increase should have been a total of 6.1%, not the maximum of 10%, and certainly not the 13.4% increase the assisted living facility tried to pawn off on him.  The notice of the $500 increase should have been more like a $227.53 monthly increase (to a total of $3,957.53) using the 6.1% figure, but it’s not known if these facilities can get away with creatively rounding up to the full 10% maximum, instead of the actual 6.1% CPI increase.  His family is now working with healthcare advocates to obtain the lower 6.1% rate — which would be less than half of the $500 monthly rent increase.
  
  Just two weeks after receiving notice of the rent increase on October 28, the assisted living facility then announced to Paul’s family that it was selling its Daly City facility to help finance a luxury assisted living facility in San Francisco.  News reports have documented that the new assisted living facility in San Francisco plans to charge between $16,600 and $27,000 per month — $199,000 to $324,000 annually ! — for a two-bedroom unit.  Other assisted living corporate operators are also abandoning lower-cost assisted living facilities in favor of assisted living facilities for well-heeled, more profitable clients.
  
  Paul’s current facility is now being sold to another company that is already planning an additional rent increase in early 2022.  His family is worried they will have to move him again, perhaps even further away.

These vignettes of patients discharged out-of-county are far from being isolated cases. Patient advocates, physicians, and mental health professionals have all reported many stories like this involving patients discharged far away, painfully.

Canaries in the Coal Mine

I began my quest for out-of-county discharge data after badgering the Laguna Honda Hospital Joint Conference Committee (LHH-JCC) — a subcommittee of the San Francisco Health Commission made up of Health Commissioners and senior staff of LHH — for months during 2012 and 2013 to publicly release aggregate data on the number of LHH patients discharged out of county.

The first trickle of data I obtained was for 28 LHH patients discharged out of county during FY 2013–2014. SFDPH eventually produced retrospective out-of-county discharge data going back to July 1, 2006 and had been providing periodic updates about out-of-county discharge data up until the end of 2019, just before COVID came along in March 2020. That’s when SFDPH and SFGH creatively began claiming it’s $167.4 million Epic replacement EHR database is unable to track out-of-county discharges.

The takeaway here is that the known 1,746 out-of-county discharges to date represent canaries in the coal mine. We’re seeing just the tip of a very, very large out-of-county discharge iceberg submerged below the surface of the water that is now leaking into the coal mine. The actual number is certainly likely far, far higher. Without adequate reporting and repercussions, patient dumping of San Franciscans out-of-county following hospitalization is certain to keep increasing.

We must not lose sight of just how severe the out-of-county discharge epidemic has grown — which is now a public health crisis. If San Francisco does not add additional in-county capacity quickly, as our aging population increases there will be many, many more people simply evicted, exiled, and dumped out of county.

Members of San Francisco’s Board of Supervisors have been asked by a coalition of patient advocates for over four years to introduce and pass an Ordinance requiring that all hospitals in the City report aggregate data annually to SFDPH about San Franciscans discharged out-of-county. The Public Safety and Neighborhood Services Committee of our Board of Supervisors will soon hold a hearing on a very limited and currently inadequate draft Ordinance. As of this writing, the draft legislation requires hospitals to report out-of-county discharges only for those needing sub-acute SNF care placement.

The legislation must be amended to include all categories of out-of-county discharges stratified by all types of facilities San Franciscans are discharged to, among other sorely-needed amendments.

Watch this space.

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 monette-shaw@westsideobserver.com.

November 23, 2021

California Wildfires and PG&E Bailout Play a Big Role

Will Newsom Escape Recall?

by Patrick Monette-Shaw

Many people are questioning whether Governor Gavin Newsom will escape being recalled. It’s a valid question at this late date. 

As of August 16, polls showed Newsom had lost ground in recent polling about his prospects to survive the recall election on September 14. Newsom was in a dead heat, with 52% of likely registered voters opposing recall, and 48% supporting recall. The margin of error of the polling wasn’t announced, but it bodes ill for Governor Gavin.

An August 18 analysis of other polls by Nate Silver’s FiveThirtyEight polling aggregation website shows that 48.8% of voters are against (“No”), and 47.6% are for it (“Yes”). Newsom’s one-point margin is extremely thin, and may worsen; he needs 50%+1 (“No”) to survive, so he’s under water.

Newsom’s situation is so dire, I received U.S. Mail on August 17 from the California Democratic Party asserting the recall election is tightening and extremely close, and begging me to donate up to $2,500 to help Newsom save his job. I’m a retiree and don’t have that kind of disposable income sitting in my bank account. That’s putting aside that I wouldn’t spend that level of a political campaign donation to save Newsom his job, because there are too many other deserving Democrats facing tough national election and re-election contests next year whom I desperately want to support. Newsom won’t get a dime from me, any more than I’d give Donald Trump one of my dimes.

What the California Democratic Party didn’t know was that I had already received my ballot from the San Francisco Department of Elections on August 13, filled it out the same day, and sent it back the following day on Friday, August 14. I had already returned my ballot before learning I had inadvertently voted the way Newsom later recommended — which recommendation may well end up spelling his own doom. (More about that later.)

I won’t be at all surprised if Newsom doesn’t escape unscathed.

For the first half of August, the Bay Area was inundated by a single TV ad broadcast almost non-stop opposing Newsom’s recall. The ad featured — somewhat ironically — only U.S. Senator Elizabeth Warren, a dyed-in-the wool “progressive” Democrat, who is supporting “moderate” Gavin Newsom. Warren’s unchanged ads claimed Republicans have “abused [California’s] recall processes.”

Tell that to victims of California’s wildfires, plenty of whom may suspect Newsom’s time in office involves misconduct, and/or political corruption.

Warren may not have understood California’s recall processes are limited to breaches of office, serious misconduct, or corruption, not just political disagreements between the two major political parties. The case for Newsom’s recall for breaches of office, misconduct, or corruption may not be that weak.

News surfaced on August 17 reporting Newsom pledged stronger wildfire responses during his visit to the devastated Big Basin State Park near Boulder Creek in Santa Cruz County. Newsom claimed hiring more firefighters, increasing forest management, and deploying new weather monitoring technology were priorities in spending the state’s nearly $80 billion budget surplus this year. Given the devastation from wildfires that have happened since 2017 — and in particular, wildfires occurring now in 2021 — Newsom should have pledged stronger wildfire responses long before now.

Perhaps the recall election caused Newsom to make new, albeit belated, pledges. California’s wildfires may well be something voters care about deeply as they consider how to vote on his recall.

Newsom’s 2019 “Brokerage” Role in AB-1054 to Protect PG&E

As far back as when Newsom was San Francisco’s mayor, his cozy relationship with PG&E was of great concern to San Franciscans worried about corruption in his City Hall “family.”  After he became Lieutenant Governor in 2011, Newsom’s cozy relationship with PG&E continued unabated.

Ten months after being sworn in as California’s governor in January 2019, “The Gavinator” — as Newsom nicknamed himself — shrugged off questions during a TV broadcast back on November 1, 2019 “about the appearance of a possible conflict of interest in trying to lead PG&E’s bankruptcy negotiations, insisting that he [was] not swayed by the $208,400 donation PG&E made to help him win the 2018 election.”

The TV report involved Newson’s announcement his “office would seek to ‘broker’ a deal to end PG&E’s bankruptcy,” and that Newsom had “inserted himself into a massively complex fight that pits fire victims, governments, shareholders, and bondholders against each other. Tens of billions of dollars [were] at stake.”  Not directly mentioned, but entirely relevant, PG&E’s own ratepayers — me included — wound up pitted against everybody else.

PG&E filed for bankruptcy protection on January 29, 2019 to shield itself from an estimated $30 billion in wildfire liabilities, including four wildfires that killed a total of 97 people in 2018:  The Carr fire, Mendocino Complex fire, Woolsey fire, and Camp fire, the latter of which killed 85 people and destroyed the Town of Paradise. That was on top of the 22 people who died as a result of the Tubbs fire in October 2017.

Illustrating that PG&E and Newsom were clearly in bed together, not too surprisingly, bankruptcy documents revealed PG&E offered to support its own bankruptcy plan but only if terms of the bankruptcy were “acceptable to Governor Newsom’s Office.”  Don’t hog the bedclothes, Gavinator.

Less than a month after PG&E filed for bankruptcy and just two months after Newsom became governor, a bill was introduced in the California Assembly on February 22, 2019 — AB-1054, Public utilities: wildfires and employee protection — that would take effect immediately as an urgency statute.

Some PG&E critics believe Newsom gave the company a priceless gift in the form of the hastily-written and hastily-passed AB-1054 that was aimed at protecting power monopolies from financial trouble when they start future wildfires.

Fire – Power – Money

Luckily, Sacramento-based ABC Channel 10 has been broadcasting a series of articles entitled “Fire – Power – Money” since 2019 examining connections between California’s wildfires, PG&E, and PG&E’s influence on California politics. The series of articles are by investigative reporter Brandon Rittiman, a graduate of the Walter Cronkite School of Journalism and Mass Communication at Arizona State University, who is a winner of regional Emmy awards and other awards. Fortunately, ABC Channel 7 in San Francisco has re-broadcast many of the segments in Rittiman’s Fire – Power – Money three seasons of episodes. They’ve probably been re-broadcast by other ABC TV affiliates in California.

Rittiman’s investigative series reveals how California’s state government under Newsom responded to PG&E’s deadly crimes by granting the company rewards and protection.

Rittiman’s reporting revealed that in October 2019 the California PUC approved a ratepayer surcharge to pay for a $21 billion wildfire fund that the state’s three big power companies can tap if their equipment ignites a wildfire that results in significant damages, provided the PUC determines the utilities had acted responsibly.

AB-1054 requires investor-owned utilities San Diego Gas & Electric, Southern California Edison, and PG&E to pony up half of the money in the $21 billion fund. The other $10.5 billion half comes from ratepayers across the state. One problem is that PG&E tied its share of contributions to wildfire victims by issuing shares in the company, which stocks have dropped precipitously in value. The loss in stock value has lowered PG&E’s compensation to victims of wildfires.

Between May 2019 and January 2021, my monthly PG&E bill more than doubled, including the now monthly “Wildfire Fund Charge” surcharge the California Public Utility Commission granted to PG&E following adoption of AB-1054 to help PG&E out of bankruptcy.

Under AB-1054, power companies were required to receive a first-of-its-kind safety certification from the state. In order to tap the wildfire fund, the companies must tie executive compensation to safety performance, establish wildfire safety committees on their respective boards, and meet other financial and safety measures. PG&E received its first safety certificate in 2020.

California’s PUC again certified PG&E as an officially “safe” utility for a second time in April 2021 under AB-1054 that Newsom had signed into law in 2019. The CPUC granted the electric monopoly its 2021 state safety certificate even though PG&E was charged in April with 33 crimes for sparking the 2019 Kincade Fire, is under investigation for possible murder charges from the 2020 Zogg Fire that killed four people, and had plead guilty in 2020 to 84 felony counts of manslaughter and one other felony for sparking the 2018 Camp Fire. All that was after a jury had convicted PG&E of six felonies in the deadly 2010 San Bruno gas explosion.

AB-1054 essentially helped bail PG&E out of bankruptcy, and provides that utility companies pre-certified with safety certificates as being “safe” aren’t required to prove they had acted reasonably before charging customers for costs of damages caused by wildfires, grants the utility companies the ability to tap into the state wildfire fund paid in part by their customers to pay damages to fire victims, and — disgustingly — caps [limits] the amount of damages utility shareholders would be on the hook for paying back to the wildfire fund, which in turn cuts compensation to actual wildfire victims.

Many believe the safety certificates were just rubber stamped.

Former California PUC director Alice Stebbins — who signed PG&E’s first safety certificate — claims she was told to sign it, and signed it because AB-1054 had essentially made PG&E’s certificate automatic, not that PG&E had actually become safe. Stebbins is pursuing a wrongful termination lawsuit against the state government alleging she was fired by PUC commissioners who are appointed by California governors because of her investigation of $200 million missing from CPUC’s books. A ProPublica investigation subsequently revealed Stebbins had been correct.

In an August 10, 2021 broadcast Rittiman reported Newsom had not only signed the new financial protections for PG&E into law, Newsom’s office had hired private lawyers at the New York offices of the O’Melvany and Myers law firm to draft the legislative language of AB-1054 in the Spring of 2019 before it was introduced in the state legislature. O’Melvany and Myers reportedly billed the state $3 million for its services drafting AB-1054.

In an August 11, 2021 segment, Rittiman reported that Newsom had brokered a bankruptcy plan that prioritized PG&E and French Laundry friend’s clients over PG&E fire victims. That’s when we belatedly learned Newsom’s 2020 French Laundry restaurant fiasco involved a birthday party for Newsom’s friend of almost 20 years, lobbyist Jason Kinney. Newsom apologized profusely for the French Laundry dinner, claiming “he was only human.”

Kinney ran a lobbying shop, Axiom Advisors, that had landed a major client in PG&E’s bankruptcy, a committee of companies PG&E owed money to. Axiom Advisors met periodically with the Governor’s office, and earned $400,000 in fees according to documents filed in bankruptcy court.

Rittiman’s investigative reporting about PG&E and California’s wildfires have been just terrific, despite the fact that Newsom and the governor’s office not only ducked answering many questions Rittiman had asked, it also stalled records requests under the California Public Records Act (CPRA), and declined or ignored Rittiman’s ten requests for interviews.

The Mercury News reported on July 21, 2021 that PG&E claims it plans to place 10,000 miles of power lines underground to reduce the possibility of sparking massive wildfires in Northern and Central California, asserting the 10,000 miles of undergrounding could cost up to $20 billion. California’s Utility Reform Network (TURN) estimates it will cost double that, possibly $40 billion, but it will probably take a decade before any such work will be completed. PG&E will most likely con the California PUC into another rate increase that will be tacked on to ratepaying customer’s PG&E monthly bills. [I can hardly wait to see my PG&E bill climb yet again.]

PG&E has over 100,000 miles of power lines. If undergrounding 10,000 miles of those power lines may take a decade to complete at $40 billion, will it take fully 100 years before all 100,000 miles are undergrounded and potentially cost $400 billion? Or will the entire state burn down by then?

For its part, KTVU Channel 2 reported in July 2018 that PG&E had been diverting money away from its power line undergrounding projects for decades to what PG&E called “other high priority system improvements.”  Channel 2 reported that in 2000, PG&E claimed there had been zero unspent dollars on power line undergrounding, but according to documents by 2016 nearly $44 million dollars had been left unspent. KTVU reported that according to the California PUC’s own study of its statewide undergrounding program there was a statewide balance of unused undergrounding money totaling about $1 billion.

As of 2021, even after massive fines and criminal conviction of PG&E the corporation is reportedly still handing out significant bonuses to PG&E executives.

PG&E Induced Wildfires

It’s thought that since 2010, wildfires PG&E appears to have caused have destroyed 20,000-plus homes and displaced very large numbers of people. The Camp fire alone displaced approximately 40,000 people.

A quick review of deaths between 2010 and 2020 caused by PG&E-related wildfires and the San Bruno gas pipeline explosion compiled from a mix of civil settlements, CAL FIRE determinations, and felony convictions (including conviction for the Camp fire) documents 143 deaths between the Butte fire, NorCal Firestorms (including the Tubbs fire), Camp fire, Zogg fire, and the San Bruno explosion. The 143 deaths included one suicide following the Camp fire, and 22 deaths from the Tubbs fire that CAL FIRE had cleared PG&E of, but which PG&E paid civil damages for anyway during its bankruptcy proceedings.

That averages 13 deaths per year.

Recent California Wildfires

Take the recent history of wildfires in California. While it is clearly true that climate change-induced years of statewide drought have contributed to California’s increasingly catastrophic wildfires, bad actions of electric and gas companies — think PG&E — have clearly contributed to our State’s wildfire problems.

Consider Wikipedia’s lists of California wildfires that are based on data from the California Department of Forestry and Fire Protection, a.k.a., CAL FIRE. [Note:  The following data does not suggest that PG&E was responsible for every one of the 20 largest, the 20 most destructive, or the 20 deadliest fires documented on Wikipedia.]

• Largest Fires:  Wikipedia reports that of California’s 20 largest wildfires between 1932 and 2020, six of them occurred in 2020 alone, destroying over 2.7 million acres and 6,072 structures, and killing 21 people. Those six fires include the August Complex fire, the SCU Lightning fire, the Creek fire, the LNU Lightning Complex fire, the North Complex fire, and the SQF Complex fire.

• Most Destructive Fires:  Wikipedia reports that of California’s 20 most destructive wildfires between 1932 and 2020, six of them also occurred in 2020 alone, destroying over 2.25 million acres and 8,644 structures, and killing 22 people. Those six fires include the North Complex fire, the Glass fire, the LNU Lightning Complex fire, the CZU Lightning Complex fire, the August Complex fire, and the Creek fire.
  
  The towns of Berry Creek and Big Creek were mostly destroyed in 2020.
  
  Add in the Dixie fire that has now burned for 39 days (since July 14) and has destroyed another 721,298 acres, which translates to approximately 1,127 square miles — 23 times the size of San Francisco County. So far, the Dixie fire has destroyed 1,247 structures (including over 650 homes), and damaged another 90 structures as of August 22. It has completely destroyed the Town of Greenville. PG&E admitted it’s power lines probably started the Dixie fire on July 14, although CAL FIRE is still investigating the cause of the blaze.
  
  The Dixie fire is burning in the same mountainous canyon where PG&E’s negligence sparked the 2018 Camp fire. And the Dixie Fire is now threatening payments from the AB-1054 wildfire victim fund to previous PG&E victims.

• Deadliest Fires:  Wikipedia reports that of California’s 20 deadliest wildfires between 1932 and 2020, seven of them occurred between October 2017 and 2020, destroying over 1.2 million acres and 31,219 structures, and killing 151 people. Those seven fires include the North Complex fire, the LNU Lightning Complex fire, the Camp fire, the Carr fire, the Atlas fire, the Redwood Valley Complex fire, and the Tubbs fire. [Note:  Newsom became California’s Lieutenant Governor in January 2011; he’s known about California’s worsening wildfires for over a decade.]
  
  The Town of Paradise was totally destroyed by the November 2018 Camp fire.

The Gavinator Ducks Questions

All too frequently Newsom claims he is not naïve (one of his pet claims), but his hubris may be getting the better of him. On August 19, 2021 Newsom was interviewed by ABC Channel 7 in San Francisco. He claimed in response to a direct question about his potential mistakes that any of his “mistakes” as Governor should be excused because “I’m a human being.”  [Newsom had used the identically lame I’m only human excuse to justify his French Laundry dinner with Axiom lobbyist Kinney.]  Newsom’s naïve excuses ignore that voters are human beings, too, and they’re probably not happy hearing that claim from him yet again.

The Gavinator also ducked answering a direct question on August 19 about whether he has been delaying issuing additional state COVID-related mandates due to the recall election. Newsom’s evasion answering that question during what is clearly a public health-related Delta crisis, lowered what little remaining respect I had for him.

In addition to Newsom’s pathetic record on wildfires and PG&E, there are other issues voters are very concerned about, including the meltdown at California’s Employment Development Department’s (EDD) that handles unemployment claims, which has become a huge political liability to Newsom.

After EDD wrongly paid out over $31 billion in fraudulent EDD claims following the start of the COVID-19 pandemic, thousands of Californians who wound up unemployed had their EDD accounts frozen, unable to collect unemployment benefits despite not having engaged in fraud. Although Newsom reportedly formed a strike team at the very end of July 2020 to overhaul EDD’s outdated technology, he’s largely avoided commenting on the beleaguered department and the plight of the unemployed, knowing it’s likely at the top of mind to a very large number of voters, Democrats and Republicans alike.

Newsom’s Questionable Surrogates

Along with Senator Warren, Newsom’s choice of surrogates is worrisome.

On August 13, Newsom kicked off his no-on-recall campaign at an event at Manny’s Restaurant in San Francisco, dragging along some of his surrogates, including Mayor Breed (who was just hit with a large Ethics Commission fine), embattled District Attorney Chesa Boudin (who may soon face his own recall election), State Senator Scott Wiener (who has angered single-family homeowners across the State), and Assemblymember David Chiu, among others. Newsom and these state Democrats are clearly worried the recall election is far closer than they want voters to believe.

Newsom is in such a precarious position he’s lined up Vice President Kamala Harris (and is hoping to line up President Biden) to come to California on August 27 to help campaign against his recall. That will more than likely be way too late, since many voters will have already had two weeks to return their ballots, as I have. I fully expect a blizzard of campaign mailers will flood my U.S. mailbox in the next three weeks, which will also be far too late and a waste of Newsom’s money.

Recent polling is also showing that messaging from the Democratic party — and messaging from Newsom’s surrogates — is just not working to rally voters. Apparently, framing the recall election solely in terms of party line loyalty, or fear of right-wing Republican Larry Elder becoming governor may be demobilizing and may not be helping, the opposite of what Newsom desperately needs. Courage California, (formerly named the Courage Campaign), came begging in my e-mail on August 21 for a $75 donation to help Newsom figure out his messaging. They won’t get a dime from me either, despite my disgust and distaste for Mr. Elder. If Newsom can’t figure out his own messaging, why is he governor?

Five days after I voted on August 13, I received the California Voter Guide in U.S. Mail, too late for the guide to have been of any use. I was somewhat shocked skim-reading it and discovering Governor Gavin’s “Governor’s Recall Argument” in the state voter guide was written entirely in the third person, whereas the majority of candidates seeking to replace him should Newsom be recalled wrote their voter guide statements using the first person. Sounds like a “messaging” problem to me.

Newsom doesn’t seem to get it that voters want to hear him speak in the first person, not read a voter guide statement one of his aides or a political consultant may have written using the third person. Newsom’s statement read eerily like what we’d read from disgraced and disgruntled Donald Trump, asking voters using third-person language “do you distrust Trump?”

Newsom bragged in his voter guide Recall Argument that his $100 billion “California Comeback Plan” would include $600 direct relief payments to two-thirds of California’s working families. Newsom had announced the relief payments on May 10, 2021 — a mere 14 days after the petition to recall him from office was verified and determined to have a sufficient number of signatures by California’s Secretary of State on April 26. The coincidence in timing between the two dates is odd.

Problem is, those $600 relief payments do not appear to have been made, and voters may not receive them before the September 14 recall election. Is this another messaging problem?

Some observers believe Newsom is showing more gall than desperation, and is out of touch with even likely Democratic voters, given Boudin and his ilk campaigning for Newsom. Some people wonder whether Newsom’s surrogates may have found the event at Manny’s, rather than at the French Laundry, more palatable but still questionable.

Breed’s Ethical Lapses

On August 2, 2021 Breed acknowledged responsibility for and agreed to pay $22,792 in administrative penalties to the San Francisco’s Ethics Commission for four counts of ethics violations of San Francisco Campaign & Governmental Conduct Code. The four counts included two counts for failing to disclose campaign contributions for construction of her 2015 Gay Pride Parade float and the contributions had exceeded the $500 maximum allowable; one count for use of her City title for personal purposes and potential gain in her letter to then-Governor Jerry Brown seeking commutation of her brother’s prison sentence; and one count for accepting gifts from Mohammed Nuru, Breed’s subordinate employee as the then-director of DPW.

For the four-count stipulation, Breed had faced a total of $35,584 in maximum administrative penalties. She got off lucky with the reduced administrative penalty of $22,792 she agreed to pay.

Newsom’s Recall Recommendations

Newsom’s potentially naïve recommendation — Don’t vote for any of the candidates in Question 2 — may well contribute to his own undoing.

Many folks, including me, wonder whether Newsom and his campaign team are pursuing an extremely risky strategy by urging voters to vote “no” on the first ballot question involving whether he should be removed from office, and advising voters not to vote at all on the second ballot question of which candidate should replace him if he loses on the first question.

As the [San Jose] Mercury News reported, in response to a question about Newsom’s current strategy and whether it might backfire by on him by effectively allowing Republicans to pick his successor should he lose on the first ballot question, “Newsom said he is focused on getting people to vote no and called the second question ‘moot’ if [enough] people turn out.”

That’s a big “if.”  Newsom seems to be naïvely ignoring what might happen if voter turnout is low. His strategy effectively disenfranchises Democratic voters from choosing who should replace him. That strategy may well end up backfiring on Newsom and his surrogates, handing California a Republican governor who could appointment a successor to 88-year-old U.S. Senator Dianne Feinstein and, therefore also threaten the Biden administration’s agenda along with control of the U.S. House of Representatives and the U.S. Senate, and ignoring that a Republican governor would likely eliminate COVID prevention and vaccination mandates across the state on day one.

Newsom, Senator Warren, and other Newsom surrogates are desperately trying to frame the recall as a fringe Republican movement backed by right-wing extremists, Trump supporters, and QAnon conspiracy theorists. But Newsom isn’t telling the whole story about who supports his recall, trying to omit that a significant number of Democrats and independent voters — who combined, dominate California’s electorate — also signed the recall petitions.

Newsom and his surrogates don’t like mentioning that 300,000 registered Democrats had signed the recall petition, fully 20% of the 1,495,709 minimum petition signatures that were required for the recall petitions to be declared valid. How many Independent voters signed the recall petitions hasn’t been widely reported. Newsom’s response to his recall campaign, and Rittiman’s coverage of PG&E and wildfires, read like a tragic soap opera of Newsom’s own doing.

When I returned my ballot to San Francisco’s Elections Department on Friday the 13th — often a very unlucky day — I did as Newsom later recommended and didn’t vote on Question 2. I may live to regret having done so should Newsom lose on Question 1, since elections have consequences, which is true despite being a cliché.

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 monette-shaw@westsideobserver.com.

August 25, 2021

Police Commission’s Staffing Guidance

Is the Commission Serious about Staffing Redeployment?

by Patrick Monette-Shaw

On June 16, San Francisco’s Police Commission passed a Resolution prescribing methodologies Police Chief “Bill” Scott should use to prepare the Police Department’s 2021 staffing report required by the November 2020 “Prop. E” ballot measure that removed from the former City Charter the mandate to have a minimum of 1,971 sworn police officers in SFPD. 

The Resolution specifying the methodologies to be used by Chief Scott passed unanimously by the five Commissioners present on June 16, given the absence of Police Commissioner Larry Yee.

Unfortunately, there are problems with the methodologies the Police Commission adopted and transmitted to the Chief. The most glaring problem is that the Police Commission’s Resolution made no mention that Scott’s report must include an analysis of the current number of full-duty sworn officers. There are other shortcomings to the methodologies the Commission adopted.

“Prop. E” required that the Police Commission adopt a policy by July 1 prescribing the methodologies the Chief may use in evaluating police staffing levels, and further requires the Police Commission to hold a public hearing regarding the Chief’s staffing report by December 31, 2021. The Commission directed Chief Scott to provide a verbal update during a public meeting of the Commission by August 31 on progress on developing his staffing report, and include any foreseen need to deviate from the methodologies the Commission directed he use.

The Westside Observer reported in June 2021 that during May and June San Francisco’s Board of Supervisors Budget and Appropriations Committee held hearings on each City Department’s proposed two-year budgets for Fiscal Year 2021–2022 and Fiscal Year 2022–2023.

As we reported last June, Police Chief William Scott proposed to the Police Commission in February 2020 that police officer staffing beginning July 1, 2020 should be increased to 2,715 sworn officers — 744 more than the 1,971 sworn officers previously mandated as the minimum in the former City Charter. We also reported that based on the total number of hours sworn officers had worked during the fiscal year that ended on June 30, 2020 SFPD had 2,605 full-time equivalent (FTE) sworn staff based on the total number of regular- plus overtime-hours they had worked, 634 more than what the Charter had mandated.

Finally, we noted in June that one red herring is the notion that reductions to SFPD sworn police officers must be done using a 1:1 ratio of replacing police officers with civilian counterparts.

Somewhat shocking — but not too surprising, given that the Board of Supervisors has not yet finished developing and adopting the City’s next two-year budget — news reports surfaced during June 2021 on ABC Channel 7 broadcasts that SFPD and the Mayor began claiming SFPD was facing staffing shortages of approximately 200 police officers. Some observers suspected the 200-officer shortage was rolled out hoping to affect outcomes of SFPD’s next budget award. The observers wondered whether San Francisco’s Police Officers Association (POA) was involved in the 200-officer shortage claim.

At about 5:20 p.m. on July 5, Channel 7 broadcast a report about increased burglaries and robberies in the City. The broadcast featured Deputy Chief David Lazar, who suddenly asserted that SFPD is approximately 400 officers short. Those observers then wondered how the officer shortage grew from 200 to 400 within a single month.

[An unverified rumor — not yet reported in, or verified by, the mainstream media — has surfaced that between 72 and 100 SFPD officers turned in their guns during June alone, decamping for other jurisdictions or opting to retire from City employment. It’s unclear if the rumor may also have originated from the POA. At this point it remains just a rumor.]

Methodologies the Commission Adopted

The methodologies the Police Commission adopted in its Resolution directs Chief Scott to focus on four main areas of interest to the Commission:

• Workload-based methodology, taking into account the time needed to complete tasks, multiplied by volume, to assess the total number of workload hours for each position;
  
• Ratio-based methodologies, including span-of-control analyses, support to other staff, and ratios based on other variables such as instructor-to-student ratios, or the number of “Part 1” crimes to each available officer;
  
• Non-scalable methodologies, including selective analyses for positions that provide the Department with a specific capability or analysis of unique roles that do not scale, such as senior leadership positions; and
  
• Fixed-hours methodology, for positions whose staffing needs are based on a fixed number of hours that need to be staffed (e.g., SWAT and K9).

In addition, the Commission’s Resolution includes additional guidelines to be used in the police staffing report, including that the Chief must ensure his staffing analysis includes discussion of:

• Staffing redeployment strategies, and consideration of the potential impact of the Street Crisis Response Team to future disposition (re-assignment or reduction) of sworn police officers;
  
• Calls for service and the potential impact on police staffing levels from transferring the primary response duties for 9–1–1 “Priority C” calls — calls where there is no present or potential danger to life or property — to other City agencies for homelessness, mental health, substance abuse, well-being, and traffic enforcement issues;
  
• The relationship between the amount of time dedicated to foot or vehicle-patrols in each Police District;
  
• Civilianization opportunities to maximize the number of sworn officers performing operational duties; and
  
• Other factors the Chief may deem appropriate.

Problems With Police Commission’s Methodologies

There are a number of problems with some of the methodologies the Police Commission laid out.

FBI UCR Part 1 Crimes

For the ratio-based methodologies, it’s curious why the Police Commission may only be concerned about UCR Part 1 crimes.

The FBI’s Uniform Crime Reporting (UCR) program collects official data about crime trends across the United States. The UCR is a nationwide, statistical effort of approximately 18,000 city, university and college, county, state, tribal, and federal law enforcement agencies that voluntarily report data on crimes brought to the attention of the FBI.

Part 1 crimes are collectively known as “Index” crimes because those crimes are considered quite serious, tend to be reported more reliably than others, and reports are taken directly by the police, not by a separate agency. Part 1 crimes are broken into two categories: Violent crimes and property crimes.

Part 1 violent crimes include: Aggravated assault, forcible rape, murder (including non-negligent manslaughter), robbery, human trafficking (commercial sex acts), and human trafficking (involuntary servitude). [Note: The two human trafficking offenses were added to the UCR in 2013.]

Part 1 property crimes include: Arson, burglary, larceny-theft, and motor vehicle theft.

Some observers suspect SFPD doesn’t want the public to easily access murder and homicides statistics. Indeed, SFPD’s Crime Dashboard website — which has a feature to easily display aggregated year-to-date crime data — does not include or display murders and homicides, as shown in the Crimes Dashboard for the period ending July 4, 2021. Instead, members of the public are forced to go to another website page for monthly “CompStat” (computer statistics) reports and manually compute murder data for a given year from 12 separate monthly reports.

The Police Commission should direct Chief Scott to include the homicide/murder data on the Crime Dashboard website, so members of the public don’t have to go to the CompStat web site to find monthly reports reporting the homicide data, and then have to compile annual homicide data manually.

Table 1 illustrates SFPD’s Crime Dashboard comparing apples-to-apples periods during the COVID pandemic between March 17 and June 15, 2020 to the same post-COVID three-month period in 2021:

It’s clear aggravated assaults, robberies, and larceny thefts (including, but not limited to, shoplifting) were each up by statistically significant percentages (22.2%, 10.4%, and 44.1%, respectively) in 2021, and total Part 1 Crimes (excluding murders that are not reported in the Dashboard) were up by an overall 20.3%.

Indeed, the CompStat report for May 2021 shows that comparing May 2021 to May 2020 murders were up 100%, robberies were up 28%, aggravated assaults were up 20%, overall larceny thefts were up 49%, and thefts from vehicles were up 105%.

Before Bill Scott was hired as Police Chief, his predecessor’s reports contained sub-categories for each Part 1 crime category. For example, the CompStat report for November 2016 just before Scott became Chief included Robbery data broken out for sub-categories of robberies involving firearms, knives or other cutting instruments, other dangerous weapons, and strongarm robberies not involving a weapon. Similarly, the Burglary category reported sub-categories for forcible entries, unlawful entries without force, and attempted forcible entries.

But when former-Mayor Ed Lee appointed Scott as Police Chief in January 2017, the CompStat monthly report for January 2017 no longer reported any of the various sub-categories of data.

As well, Chief Scott appears to have added a section to the CompStat monthly reports showing Part 1 Arrests, in addition to the Part 1 Crimes in the January and February 2017 monthly reports. Then, the Arrests section was quickly removed from the March 2017 report and was no longer reported.

The Police Commission should also direct Chief Scott (and future Chiefs) to resume reporting the Arrests data, in addition to the Part 1 Crimes, to the CompStat monthly reports. Perhaps resuming public disclosure of Part 1 Arrests data might spur embattled District Attorney Chesa Boudin to actually prosecute those who are arrested, rather than let them off the hook and return them to the community to repeat their offenses.

San Francisco reportedly has more larcenies per capita than every other city in the U.S. From 2009 to 2018, property crimes dropped 23% across the country while property crimes in San Francisco increased 46%, which represents a 66% point spread.

FBI UCR Part 2 Crimes

It’s curious that the Police Commission choose to exclude requiring Chief Scott to analyze the FBI’s Uniform Crime Reporting (UCR) system’s Part 2 crimes in developing staffing recommendations. The UCR system may only collect actual Arrest data for Part 2 crimes.

Part 2 crimes include:  Simple assault, curfew offenses and loitering, embezzlement, forgery and counterfeiting, disorderly conduct, driving under the influence, drug offenses, fraud, gambling, liquor offenses, offenses against the family, prostitution, public drunkenness, runaways, sex offenses, stolen property, vandalism, vagrancy, and weapons offenses.

There is a pyramid of crimes. The ones at the bottom — Part 2 crimes — are considered to be the most venial crimes, but perhaps the most voluminous and which may occur far more frequently than Type I crimes. Observers note that SFPD doesn’t have the time, or political will, to tend to the “small stuff,” like Part 2 crimes. One knowledgeable observer wonders whether the Police Commission may just be “decriminalizing” Part 2 crimes because so many people of color may go to jail for them.

It’s hard to believe there have been zero Part 2 crimes and arrests in San Francisco over the years. San Franciscans deserve to be told about the Part 2 data. The Police Commission should direct Chief Scott to begin reporting Part 2 crime data in CompStat monthly reports to provide the public with increased police accountability and transparency.

Span of Control

Law enforcement agencies typically use military style chains of command, with higher-ranking staff supervising the ranks just below them.

Based on a seat-of-the pants, quick-and-dirty analysis, the 2,411 named sworn police officer staff in the City Controller’s payroll database for the period ending June 30, 2020 the average spans of control appear to be pathetically low.

For instance, of the 519 sergeants in SFPD as of June 30, 2020 each may supervise an average of just 3.36 of the 1,746 Police Officers, which suggests a big span-of-control problem. Clearly, the Police Commission should closely watch Chief Scott’s span-of-control analysis when he submits his recommended staffing report later in 2021.

Current Sworn Officer Staffing

Most concerning, the Police Commission failed to direct Chief Scott to take into consideration current staffing levels of sworn officers in SFPD using the number of Full-Time Equivalent (FTE) officers currently on the City’s payroll.

There are a number of ways of looking at the current levels of SFPD sworn officer staffing.

Table 2 presents the number of sworn officers on the City payroll for the past three fiscal years. It shows that as recently as June 30, 2020 the City had 194 more FTE officers than the actual 2,411 named sworn officers on the payroll (based on their regular hours plus overtime hours worked).

Of note, Table 2 shows that, in the three year period between July 1, 2017 and June 30, 2020 almost half — 46.4% — of the 194 extra FTE’s involved 90 “supervising” officers (80 additional Sergeant FTE’s and 10 additional Lieutenant FTE’s).

Table 3 below shows that as of June 30, 2020, SFPD had 2,605 FTE’s compared to the 2,411 named officers on the City payroll, a difference of 184 additional “equivalent” sworn officers based on their hours worked.

Another way of looking at the current level of sworn officers is by comparing the computed FTE’s to the former City Charter and to other reports. Before “Prop. E” passed in November 2020, the previous Charter mandated that SFPD have a minimum of 1,971 sworn officers. But as of June 30, 2020 the 2,411 officers on the City payroll involved 634 more FTE officers than the 1,971 the former Charter had mandated. Two other indicators paint a slightly different picture of excess sworn officers.

• One of the other indicators in Table 3 involved the Matrix Consulting Group’s recommendation in early 2020 to increase sworn officers to 2,107 FTE’s, ostensibly an increase above the 1,971 minimum sworn officers prescribed by the former City Charter. Matrix Consulting had been hired by the Police Commission to help analyze SFPD staffing needs.
  
  Table 3 also shows that the 2,605 FTE police officers on the City payroll as of June 30, 2020 involved nearly 500 more officers than the 2,107 FTE’s Matrix Consulting recommended several months before the end of June 2020.
  
• The other additional indicator in Table 3 is from the CompStat reports listing monthly Part 1 UCR crime statistics posted on SFPD’s web site. Weirdly, every monthly report going back five years to the last report former Police Chief Greg Suhr authored in April 2016 (and before) all show in the report header that SFPD had 2,217 sworn officers. [Perhaps Police Command staff overlooked ever adjusting the number of sworn officers displayed on the CompStat monthly reports, and perhaps no SFPD clerical staff ever pointed out this error.]
  
  That said, the 2,217 sworn officers reported on the CompStat reports involved 246 more officers than the 1,971 sworn officers mandated by the former City Charter. More significantly, Table 3 shows that the 2,605 FTE police officers on the City payroll as of June 30, 2020 involved almost 400 more sworn officers (388, actually) than the 2,217 listed on the CompStat reports.

Meanwhile, the City Controller’s payroll database shows that over the last three fiscal years, the payroll costs (excluding fringe benefits) for the current sworn police officers — excluding Commanders, Assistant Chiefs, and Deputy Chiefs on SFPD’s Command Staff — grew by $36.3 million as of June 30, 2020.

Current Staffing Redeployment

Although the Police Commission rightly noted Chief Scott needs to consider the potential impact of the Street Crisis Response Teams — that Mayor London Breed introduced about a year ago — when considering potential strategies for redeployment of sworn officers, the Commission made no mention that the Board of Supervisors’ Budget and Appropriations Committee is considering reallocation of Police budget dollars to an additional Compassionate Alternative Response Team (CART) program.

The Commission also failed to direct Chief Scott to consider redeployment or elimination of police officers assigned to SFPD’s Airport Division, given that the Budget and Appropriations Committee may also be considering replacing SFPD staffing at the Airport with staff from the Sheriff’s Department, instead.

Finally, the Police Commission did not consider or issue guidance requiring Chief Scott to analyze Police Cadets and Community Police Services Aides staffing, whose numbers have grown substantially — particularly at the Airport — to handle such things as traffic control duties instead of sworn officers.

My reporting in September 2020 noted Community Police Services Aides are paraprofessionals who perform a variety of police-related duties for the San Francisco Police Department, including directing traffic, issuing citations for parking violations, processing complaints, and completing reports, among other duties.

There has been a 97.2% change increase in Community Police Services Aides, from 145 in 2009 to 286 in FY 2019–2020. And there’s been a 139.5% change increase in total pay (excluding fringe benefits) for just the Police Services Aides — from $9.3 million in 2009 to $22.2 million ending June 30, 2019.

To the extent consideration is being given to transfer traffic control duties from sworn POLICE officers to civilians, the Police Commission should also consider whether those duties should also be transferred from Police Services Aides to civilians.

Civilianization

The Police Commission did not issue guidance to Chief Scott about prioritizing restoration of positions the Commission had previously identified and approved for civilianization in the initial FY 2021–2022 proposed budget. According to the Board of Supervisors’ Budget and Legislative Analyst’s May 12, 2021 report on Law Enforcement staffing, Mayor Breed’s proposed FY 2020–2021 budget deleted 45 of previously-approved 75 civilianization positions that were vacant, a loss of 30 positions that had been earmarked for civilianization.

The Board of Supervisors restored funding for nine of those positions, for a total of only 39 civilianized positions. But that left 37 of the 75 previously-approved civilianization positions eliminated. The Commission should have directed Chief Scott to again revisit civilianizing those previously-identified 37 positions, in part because “Prop. E” explicitly directed the Police Commission to “civilianize as many positions as possible.”

Conspicuously, the Police Commission did not explicitly direct Chief Scott to civilianize positions in SFPD’s Media Relations unit or positions staffing the Police Commission.

A possible solution:  There are at least two SFPD positions that should be rapidly civilianized, both involving highly-paid Police Sergeants.

The first involves Sgt. Michael Andraychak, the Officer-in-Charge-of SFPD’s Media Relations Unit and SFPD’s spokesperson. He was paid a total of $215,186 (excluding fringe benefits) in the year ending June 30, 2020, including $33,350 in overtime pay and $24,371 in so-called “Other Pay.” There are likely additional sworn officers staffing SFPD’s Media Relations units the Police Commission — if not the Board of Supervisors — might consider civilianizing.

The second involves Sgt. Stacy Youngblood, Secretary to the Police Commission. He was paid a total of $180,153 (also excluding fringe benefits) in the year ending June 30, 2020, including $19,065 in overtime pay and $4,350 in “Other Pay.”

Between Andraychak and Youngblood, the pair of Sergeants were paid a total of $395,340 in the year ending June 30, 2020, including a whopping $52,595 in combined overtime pay. [The pair may have been paid substantially more in the fiscal year that just ended on June 30, 2021.]  Surely the two could be replaced by civilians and returned to performing sworn officer duties (say, foot patrols or larceny thefts, aggravated assault, and robbery investigations).

While the Police Commission has made a commendable start in beginning to develop methodologies the Police Chief should follow in future years, the Commission has a lot of work yet to do to meaningfully address SFPD’s sworn officer staffing.

Again, the Police Commission might remember that one red herring: reductions to SFPD’s sworn police officer staffing must be done using a 1:1 ratio of replacing police officers with civilian counterparts.

 “Prop. E” specifically noted that the Commission is not required to accept or adopt any recommendations Chief Scott may eventually submit when he issues his recommended staffing report. Nor are the Board of Supervisors.

Should the Police Commission and City Supervisors flex their collective muscles?

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 monette-shaw@westsideobserver.com.

July 2021

Can You Trust a Public Health Department That Lies?

A $167.4 Million Database That Couldn’t

by Patrick Monette-Shaw

Help, I lost my patient!

Ifirst heard that plaintive cry from a Certified Nursing Assistant (CNA) running up and down stairs and hallways when I worked at Laguna Honda Hospital (LHH) for a decade. She couldn’t find a patient she was supposed to be monitoring as a “sitter” using 1:1 observation.¹ 

The sight of the distressed nurse would have bordered on being comical, had it not involved patient safety. Luckily, the patient was eventually found safe. But had the outcome been different, the nurse would have been in a lot of trouble and may have faced discipline for failing to provide 1:1 patient monitoring she had been assigned to.

But what if “Help, I lost my patient!” turned out to apply to an entire Public Health Department that claimed it didn’t track patients who had been discharged out of county from its hospitals?

Imagine that the San Francisco Department of Public Health (SFDPH) had initially obtained Board of Supervisors budget approval for a $341.9 million overhaul of its electronic health record (EHR) system for patients of its public hospitals and clinics network. The $341.9 million was offset by $161.6 million in savings by eliminating existing contracts and other operating costs, for a revised project total of $181.3 million. (Funding for the replacement EHR was later reduced to needing just $167.4 million.)

Then imagine the same Department asserted after the new EHR was rolled out and implemented when it went live almost two years earlier in August 2019, that the new system doesn’t track whether patients were discharged out of county.

That claim was complete hooey! But it’s remarkably like losing your patient and unable to do post-discharge follow-up.

DPH’s History of Lying

I began a quest for out-of-county discharge data after badgering the Laguna Honda Hospital Joint Conference Committee (LHH-JCC) — a subcommittee of the San Francisco Health Commission — for months during 2012 and 2013 to publicly release aggregate data on the number of LHH patients discharged out of county. The then-chairperson of the LHH-JCC was Health Commissioner David Sanchez, who finally agreed during the LHH-JCC’s November 21, 2013 meeting that LHH would begin reporting out-of-county discharge data beginning in January 2014, mid-year into FY 2013–2014.

The first trickle of data I obtained was for 28 LHH patients discharged out of county during FY 2013–2014. SFDPH even produced out-of-county discharge data for LHH patients going back to July 1, 2006 and continued providing me with periodic updates of out-of-county discharge data during the past eight years. As of the date of this article, San Francisco hospitals have discharged at least 1,746 San Franciscans out-of-county, but the data is wildly incomplete for several reasons.

On January 3, 2020 I placed a records request to SFDPH seeking data on out-of-county discharges from SFGH and LHH between July 1, 2019 and December 31, 2019. After several months of being stonewalled due to COVID, I persisted by placing numerous follow-up requests. SFDPH finally claimed on September 16, 2020 that its recently replaced electronic health records (EHR) system named “Epic”:

“… does not track OOC discharges, meaning the requested information is not readily available. Instead, the numbers must be counted manually, which will be time-consuming and involve use of scarce public resources. In addition, we are not required to create a document not already in existence. Admin. Code §67.21(1).” 

First, DPH’s claim that it is not required to create documents not in existence was patently ridiculous, because California Government Code §6253.9(a)(2) — which is part of the California Public Records Act (CPRA) — specifically requires local agencies to extract aggregate data from databases they maintain. It was even more ridiculous because DPH had been extracting data on out-of-county discharges for at least eight years, since 2013.

SFDPH seems incapable of understanding that extracting data from existing databases housing the records is not the same thing as creating new records.

Second, it turns out that Epic, the new EHR system, does in fact track discharge destinations. SFDPH had lied, however unintentionally.

I continued questioning DPH’s public records staff, asking whether SFGH was continuing to use another database known as SFGetCare that dates back to 2006, which I strongly believe captures out-of-county discharge information. Despite the public records staff having asked SFGH repeatedly whether it was still using SFGetCare, they apparently never received a clear answer from SFGH.

When I pushed DPH’s public records staff again on May 4, 2021 for discharge data for two more different time periods (between 7/1/20 and 12/31/20, and between 1/1/21 and 4/30/21) DPH again responded on May 19, 2021:

“DPH’s electronic records system does not currently track out of county discharges.”

This is complete nonsense, and more than likely a lie (however inadvertent). If that were true, then the $100 million to $167 million budgeted would make Epic the database that couldn’t — the polar opposite of The Little Engine That Could.

SFDPH’s wild assertion that its new Epic database does not track patients who have been discharged out-of-county is not the first time DPH has been caught lying.

Back on May 29, 2014 DPH’s then- and current-Transitions Manager, Kelly Hiramoto, claimed to then-Supervisor David Campos during a Board of Supervisors hearing that DPH had no way of ascertaining out-of-county discharge data because “a database had not worked as designed.” DPH’s then-Director of Public Health, Barbara Garcia, who was present during that hearing, didn’t correct Hiramoto’s falsehood for Campos.

Subsequently, DPH’s then-Public Information Officer, Nancy Sarieh, claimed in response to one of my records requests on June 9, 2014 that the database that “had not worked as designed” was the SFGetCare database. I knew then Sarieh’s claim was complete nonsense, because the SFGetCare database had been rapidly prototyped from a database I had helped develop for over a decade while an employee at LHH that I knew damn well had contained discharge destination tracking.

As I wrote four years ago in December 2017, I was concerned seven years ago in 2014 about the risk of reputational harm to RTZ Associates so I e-mailed RTZ’s owner, Rick Zawadski, on June 20, 2014 seeking a request for comment on Sarieh’s claim the SFGetCare database didn’t work as designed. He replied on June 23, saying:

“RTZ Associates stands behind the functionality and integrity of the software we have developed for the City of San Francisco, and any data fields related to LHH Diversions requested by the City of San Francisco are fully functional and work as designed.”

Zawadski was being diplomatic in countering Hiramoto’s and Sarieh’s misinformation — their lie.

Why would SFDPH and San Francisco’s Department of Aging and Adult Services (DAAS) collaboratively spend over $13 million across an almost 20-year period (between 2003 and 2021) for many enhancements to the functionality of SFGetCare, including adding additional new modules? Why would anyone continue to pay for something that didn’t work?

That Hiramoto and Sarieh were able to lie is due, in part, to the fact that City employees testifying during Board of Supervisors hearings are not required to do so under oath, or under the penalty of perjury; they can — and do — lie during official Board meetings. [That may be why disgraced public officials like Mohammed Nuru, the former head of the Department of Public Works, get away with corruption.]  And sadly, there’s no requirement in San Francisco’s Sunshine Ordinance or in CPRA that public records staff in each City department abstain from lying. They’re not under oath, either.

Of interest, the fifth amendment to RTZ’s contract indicated DPH intends to migrate functionality of several SFGetCare modules into DPH’s EHR system purchased from Epic

SFDPH may also have cast reputational harm — however inadvertently — when it claimed Epic Corporation’s EHR system doesn’t track patients discharged out-of-county.

The Long, Winding Road to Epic’s Intergalactic Headquarters

You have to love a corporation that appears to have a sense of humor. Epic Systems Corporation’s website reports its Intergalactic Headquarters is located at 1979 Milky Way in Verona, WI — about nine miles southwest of Madison, WI. Epic has nine international offices, including in Saudi Arabia; the United Kingdom; Denmark; The Netherlands; Finland; Dubai, UAE; Melbourne, Australia; and Singapore.

Epic lists no offices on planets other than on Earth, and there are no intergalactic offices listed anywhere within the Milky Way Galaxy, or anywhere between the Milky Way, the Triangulum Galaxy, the Canis Major Dwarf Galaxy, the Sagittarius Dwarf Elliptical Galaxy, or the Andromeda Galaxy. We’ll have to see how soon Epic grows into a truly intergalactic corporation. Meanwhile, Epic Corporation’s sense of humor is at least refreshing, albeit hyperbolic.

That said, Epic was founded with one-and-a-half employees in a basement in 1979. Forty-one years later, Epic has grown into an employee-owned corporation having 10,000 employees as of 2019. Its revenue has grown to $2.9 billion as of 2018 (ostensibly annual revenue) from its academic medical centers, community hospitals, city governments, and other clients. In San Francisco, Epic’s clients include the San Francisco Department of Public Health, UCSF, Sutter Health (including CPMC facilities), Kaiser Permanente Hospital, and Brown and Toland Physician Services — each of whom appear to be using Epic’s MyHealth internet portal for patients to communicate with their doctors and hospitals.

SFDPH’s Road to Epic’s Intergalactic HQ

Since 2010, SFDPH had relied on its Invision and Lifetime Clinical Record (LCR) system from Siemens Medical Solutions USA, Inc. (acquired by Cerner Corporation in 2015), for DPH’s electronic medical records system that had been in use for over 20 years. DPH faced risking or losing a substantial portion of its $650 million annual revenue from Medi-Cal (Medicaid). Medicare, and commercial insurance companies unless it consolidated multiple legacy computer systems, many outdated, into a single platform to unify EHR systems between hospitals and clinics. Cerner did not plan to support DPH’s EHR systems after the year 2020.

SFDPH began its trek down the road to Epic’s intergalactic headquarters in 2016.

Beginning with investments made in the FY 2015–2016 budget under then-Mayor Ed Lee, SFDPH began laying the foundation for its new enterprise-wide EHR. In early 2016, the Board of Supervisors authorized then Director of Public Health Barbara Garcia to enter into negotiations with UCSF Medical Center for shared use of UCSF’s existing EHR, called Advanced Patient Centered Excellence (APeX). After two years of planning and infrastructure preparation, DPH began negotiating sharing use of APeX as the Health Commission’s and DPH’s top departmental priority. DPH’s goal was to begin implementation in FY 2016–2017.

In 2016 the Board of Supervisors authorized DPH to negotiate directly with the Regents of UCSF for shared use of UCSF’s EHR system that had evolved from APeX into a potential sublicensing accreditation agreement between UCSF and Epic Systems Corporation, because UCSF had become an Epic “Community Connect” partner.

After negotiating with UCSF for six months but unable to reach a fair and reasonable agreement for both entities, DPH began a competitive solicitation program to procure its own EHR system. Eventually, Epic City Government, LLC — a wholly-owned subsidiary of Epic Systems Corporation — was awarded a ten-year contract term with SFDPH for $167.4 million, including a $17.9 million contingency amount, with an option to extend the contract for one or more terms.

The contract involved installing and hosting Epic, along with migrating and archiving data from DPH’s previous EHR system into Epic.

To date, vendor payments in the City’s DataSF database shows that almost $93 million has been spent, or is in the remaining balance, for Epic’s purchase and implementation.

Of the $89.1 million spent to date, $65.4 million (73.4%) has been paid to Epic City Government. It’s not yet known whether the $23.7 million paid to other vendors to date is in addition to the $167.4 million contract with Epic, or if the $23.7 million is coming from additional sources of funding. The ongoing operating costs and annual fees to Epic for maintenance and hosting are estimated by the Board of Supervisors Budget and Legislative Analyst (Harvey Rose’s LLC) to be $20 million.

SFDPH issued a press release on August 20, 2019 indicating that its Epic electronic health record system went live with its August 3 Wave 1 launch, presumably after the migrating and archiving of data from SFDPH’s previous EHR system into Epic had been completed. The Wave 1 launch involved DPH’s largest patient care facilities at SFGH, LHH, primary care and specialty outpatient clinics, and numerous ancillary service programs. An infographic shows Wave 2 involves other ancillary services (including Jail Health Services) that appear to mostly have gone live during 2020; DPH says it may be still rolling out portions of Wave 2. Planning for unknown features yet to be rolled out during Wave 3 is apparently just beginning.

The infographic rolled out a “whole person care” module named “Coordinated Care Management” in the third quarter of calendar year 2020 during Wave 2 implementation. The module supports programs for people with intellectual and developmental disabilities, mental health challenges, and other social barriers

DPH has not responded yet to a records request asking whether SFDPH may have purchased an additional and optional Epic add-on module known as “Clinical Case Management” (CCM), and if it did when it may have been rolled out. One of the primary features of the CCM module includes additional Discharge Placement tools that case managers and discharge planners can use to track the discharge destinations being considered for any given patient and which destination is ultimately chosen.

Epic HQ Refutes SFDPH Nonsense (Lie)

Epic’s web site describes Epic and its EHR features, indicating the standard base “enterprise” Epic package includes a Patient Flow module is included; it’s a standard component, not an add-on. The Patient flow module includes a “LOS Reduction” feature with discharge management tools for discharge planners and members of interdisciplinary care teams. LOS refers to length-of-stay reduction to help shorten patient stays in acute care hospitals.

After consulting with its in-house subject-matter experts, Epic’s Media Relations Department confirmed that the Patient Flow application includes database fields for Discharge Disposition — the broad category of where a patient is discharged to, e.g., returned to home vs. discharged to a skilled nursing facility, a rehabilitation facility, a Long-Term Care Acute Hospital (LTCAH), or perhaps a Residential Care Facility for the Elderly (RCFE) — and the actual discharge location (including the name, address and city, phone number, and type of facility).

Epic’s Media Relations department indicated Epic also has an optional “Clinical Case Management” add-on module with primary features for Discharge Placement that case managers can use to track which discharge destinations were considered and which location was ultimately chosen.

Epic's Media Relations staff also indicated that in addition to standard reporting tools, information systems computer professionals can write their own custom, facility-specific, ad-hoc database queries into Epic’s various components, including its Patient Flow, LOS Reduction, or Clinical Case Management modules.

According to the City Controller’s payroll database for the period ending June 30, 2020 SFDPH had 156 Information Systems employees on its staff, collectively paid $20.7 million, including 46 “I.S. Engineers,” 102 “I.S. Business Analysts,” and 8 “I.S. Programmer Analysts.”

Surely at least one of those 156 DPH employees should know computer programming well enough to be able to write a simple ad hoc database query in Epic (and store it for subsequent re-use) to extract aggregate data on how many patients have been discharged out-of-county.

After all, during my decade assisting with developing a Microsoft Access relational database at LHH, I learned that a selection of records combination query is as easy to write as “Like San Francisco” against a patient’s address and city at the time of admission, plus “Not Like San Francisco” against the patient’s address and city at the time of discharge … even if the two data points are stored in separate tables within the same database.

That data combination would obviously identify only San Franciscans who were discharged out-of-county, precisely because San Francisco is the only city in San Francisco County. Ergo: any patient not discharged to an address in San Francisco automatically was an out-of-county discharge. The simple query logic to identify which data to extract is obvious, even to me in spite of my not being a computer programmer.

Since Epic’s subject matter experts double-checked and confirmed that the discharge destination data is a standard feature incorporated into Epic’s base enterprise system, having to write such a database query would only be required if Epic doesn’t already include such a built-in “canned” report in its standard reports.

Following the patient sexual abuse scandal at LHH announced in June 2019, its disgraced CEO, Mivic Hirose, was let go but her golden parachute landed her a cushy $230,464 annual salary job as an Informatics Clinical Nurse Specialist in SFDPH’s Information Technology unit assisting the Clinical Informatics team with configuring, testing, implementing and training clinical staff on aspects of Epic’s EHR package. Hirose’s resume showed she has no formal training or on-the-job experience in computer science, information systems, or informatics. Perhaps that’s why SFDPH falsely claimed Epic doesn’t track out-of-county discharges.

My own healthcare clinician contacts and my primary care physician — whose group practice is affiliated with Brown and Toland, an Epic client — have confirmed discharge disposition data is available in Epic’s core enterprise package, secondary confirmation that SFDPH’s claim Epic doesn’t track out-of-county discharges is a lie, when not pure hooey.

SFDPH brags on its COVID-19 data web page that San Francisco’s “response to the coronavirus emergency is grounded in data, science and facts,” and claims DPH is “committed to providing accurate, reliable reports to the public.”

If DPH really believes in providing accurate and reliable facts to the public, how can you trust this public health department about COVID or anything else, when it lies about whether its $187 million EHR database is able to track how many of its patients have been discharged out-of-county?

1   1:1 observation is used to provide safety to patients who may be suffering from cognitive impairment, may be at risk of falling, or who may cause harm to themselves or others. It requires keeping a patient within sight at all times of the day and night.

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 monette-shaw@westsideobserver.com.

June 28, 2021

Pleas for Law Enforcement Budget Reform

To Defund, or Not Defund, SFPD?

by Patrick Monette-Shaw

This article is dedicated to George Floyd, Ken Zhao, and Dr. Terry Palmer’s 103-year-old mom, Berenice Palmer

When the Board of Supervisors five-member Budget and Appropriations Committee scheduled a meeting for 11:30 a.m. on May 12, 2021 as a lead-up to eventually adopting the City’s budget for Fiscal Year 2021–2022, nobody suspected it would involve a marathon eight-and-a-half hour Committee meeting.

The third item on the Committee’s agenda included a hearing to receive a Budget and Legislative Analyst report providing a budget and policy analysis of City law enforcement functions that could be performed by other City agencies and other functions that do not provide public safety. The hearing did not explicitly address defunding the Police Department.

But by the time the Committee’s meeting adjourned at 8:08 p.m., the five supervisors had received an earful of public testimony demanding the defunding of San Francisco’s Police Department.

First Up:  Free MUNI Pilot Program

The first two agenda items on May 12 involved a proposal for San Francisco Municipal Transportation Agency (SFMTA) to implement a Free MUNI Pilot program; the two items were heard together. The two items involved a proposed Ordinance to appropriate $9.6 million from the City’s COVID Contingency Reserve to the SFMTA for a three-month trial of free MUNI service during July, August, and September 2021. During the hearing, Committee chairman Matt Haney introduced an amendment to increase the appropriation from $9.6 million to $12.5 million.

MUNI director Jeffrey Tumlin testified to the Committee that the thing he is most concerned about is full-service restoration because MUNI is now only at 50% of pre-COVID capacity since San Francisco’s Department of Public Health won’t allow more people on the buses. He indicated the source of the proposed funding is the biggest reserve fund that had been designated as part of the City’s COVID-recovery system. Tumlin indicated that money is one-time funding that is going to run out at some point, and would need to be recategorized from a contingency account to a reserve account. He indicated MTA’s priorities are focused right now on addressing the severe over-crowding that it is experiencing and MTA’s capacity to take on more riders, in part given a shortage of MUNI drivers.

Despite Tumlin’s concerns about the source of the funding and current capacity of MUNI’s system, Haney’s amendment to increase the appropriation passed on a five-to-one vote (with Supervisor Dean Preston being allowed to vote, even though he is not a member of the Budget and Appropriations Committee, and with Supervisor Hillary Ronen excused because she had not yet joined the hearing).

Does this portend that at $12.5 million for just a three-month “trial period,” that free MUNI service for a full 12 months might cost $50 million annually? If so, after this COVID-contingency reserve fund runs dry (out of money), where will the Board of Supervisors come up with $50 million annually to continue providing free MUNI rides?

Given poor time management by Chair Haney, the Committee members, invited speakers, and Tumlin droned on and on for two-and-a-half hours before the Committee voted to continue the Free MUNI Pilot item to its May 19 meeting. Haney then recessed the meeting at 1:55 p.m. for lunch and reconvened the meeting at 2:25 p.m., at which point Ronen finally showed up.

Third Up:  Law Enforcement Staffing

Leading up to adopting next year’s City budget, the Committee’s third agenda item was about law enforcement staffing (beginning at 2:43:40 on audio and video tape).

The Committee received a Budget and Legislative Analyst’s (BLA) report from Harvey Rose’s LLC ahead of the May 12 hearing. Of note, the BLA was asked to provide an analysis of alternatives to services currently provided by law enforcement agencies, and were specifically asked to answer the following questions: (1) Can the City provide a civilian response to 9–1–1 calls related to homelessness and mental health crises?, (2) What is the public safety impact of certain Police assignments?, (3) Are there funded alternatives to certain programs currently carried out by the Police Department?, (4) Are there opportunities to civilianize work-ordered services provided by the Police and Sheriff Departments to other City departments?, and (5) Are there opportunities to reduce administrative costs at the Police and Sheriff Departments?

BLA’s Apples-to-Oranges Analysis

Unfortunately, BLA employees Nicolas Menard and Dan Goncher essentially used an apples-to-oranges analysis during the Budget and Appropriations Committee meeting on May 12.

Page 24  of the BLA report on Law Enforcement staffing authored by Goncher stated “In June 2020, the Police Department reported it had “1,828 ‘full duty sworn staff’ in the City.” Goncher went on to report the BLA estimated SFPD had 40 fewer Police Officers in May 2021 — presumably 1,788 full-duty sworn officers — due to historical attrition and the Board of Supervisors cancelation last summer of the Spring 2021 SFPD Police Academy class.

On page 25 of the BLA report, Goncher also estimated that because the Board of Supervisors had eliminated General Fund-funded Police Academies in FY 2021–2022, SFPD’s sworn officer staffing will decrease by approximately an additional 80 officers, presumably to a total of 1,708 sworn officers.

One question is:  Since when does the BLA rely on self-reporting from a City department, rather than the BLA performing its own fact-checking, or relying on other more credible sources of information to verify facts? Another question is:  Why was the 40-officer reduction a mere “estimate”? Couldn’t the BLA ascertain the actual number of SFPD retirements and other attrition that occurred between June 2020 and May 2021?

The Westside Observer learned that in response to a public records request questioning the BLA’s usage of the term full duty sworn staff, Mr. Menard responded saying “A full-duty officer refers to the headcount of sworn staff that are available for duty (so does not count people on leave). This is distinct from full-time equivalent (FTE), which is a budget measure of full-time positions.” The BLA’s definition of “full duty” as excluding officers out on leave is an extremely narrow interpretation. Full-duty officers are the oranges, here.

Clearly, the BLA, Goncher, and Menard all know what FTE’s are — the apples here — and know that FTE is the preferred term, since it is typically used throughout San Francisco city government and by the Board of Supervisors, as well as all by governments and companies around the country (and likely the world) as the typical unit of measuring headcount staffing.

For example, if you have two employees who both work only half time at 20 hours per week, their combined forty hours weekly represents just 1.0 FTE, since 40-hour work weeks are the norm for one person. Alternatively, if you have two employees who both work full-time at forty hours per week and each of them work overtime for another 20 hours each week, their combined 120 hours worked equals 3.0 FTE’s (not 2.0 full-duty people, since neither one is out on leave).

Menard and the BLA should not have conflated the number of officers available for work — sworn people who are not out on leave — with the separate issue of the total number of full-time equivalent hours those people are actually working.

Why didn’t the BLA use the budget measure terminology of FTE’s in its report to this Budget Committee, given that FTE’s is the typical “budget-speak” the Committee is accustomed to using?

Actual SFPD Sworn Officer Staffing

Rather than having relied on SFPD’s June 2020 self-reported data about full duty sworn staff, the BLA should have been aware that Police Chief William Scott had presented his two-year budget proposal for SFPD on February 12, 2020 to the Police Commission.

Scott’s budget proposal was for the two-year FY 2019-2020 and FY 2020–2021 budget cycles. He reported SFPD then had 2,581 sworn officer FTE’s and proposed increasing them to 2,715 for the fiscal year starting July 1, 2020 — an increase of fully 134 additional FTE’s.

The 2,715 sworn officer FTE’s Scott proposed beginning on July 1, 2020 included 887 more FTE’s than the 1,828 “full duty sworn staff” that the BLA had cited going into July 2020. The 2,715 sworn FTE’s Scott proposed involved 1,007 more FTE officers than the 1,708 full duty sworn staff than the BLA had implied would remain after attrition going into July 2021.

Alternatively, the BLA should have turned to the City Controller’s Office to ascertain (if only for purposes of fact-checking) just how many sworn officer FTE’s had been on the City payroll at the end of June 2020. I’ve obtained the City Controller’s payroll database at least once each year for many, many years under public records requests. The BLA should have had that payroll data available at its fingertips.

As shown in the bar chart accompanying this article, my analysis of the City Controller’s payroll database for the fiscal year ending June 30, 2020 showed the City had somewhere between 440 and 634 more sworn officers on the City payroll than mandated by the former City Charter.

The Controller’s payroll database for the fiscal year ending June 30, 2020 revealed SFPD had 2,411 named sworn officers, (including Police Officers, Sergeants, Lieutenants, and Captains), fully 440 more than the minimum staffing of 1,971 mandated by the 1994 changes to City Charter.

The BLA should have known that the 2,411 named sworn officers on the City’ payroll as of June 30, 2020 involved 583 more officers than the 1,828 “full duty” officers as of June 2020 that SFPD tried to palm off on the BLA.

As well, as shown in Table 1, when you add up the total number of regular-time hours worked plus the total number of overtime-hours worked by the 2,411 named officers on the City payroll and divide the total by 2,080 hours (representing a 1.0 FTE) — a methodology the City Controller’s Office confirmed was a valid calculation — the 2,411 named sworn officers mushrooms to 2,605 FTE officers based on their total hours worked. There were actually 634 more sworn officers on SFPD’s payroll than the minimum staffing of 1,971 formerly mandated by the City Charter before voters weighed in last November and approved revising the Charter to remove the SFPD minimum staffing requirement.

The City Controller had indicated each officer costs $155,000 annually. Having 634 more sworn officers than required costs the City approximately $98.3 million each and every fiscal year!

Matrix Consulting Group, the consultant chosen by the Police Commission in consultation with the City Controller to assess police staffing levels issued a report in early 2020 that recommended a low-ball increase to 2,107 sworn officer FTE’s — which means that with 2,605 sworn police officer FTE’s on the City payroll as of June 30, 2020 the City had 500 more than what Matrix Consulting had recommended! Those 500 excess sworn police officers cost the City $77.5 million annually.

Law Enforcement Budgets

The BLA report noted that in the four years between FY 2017–2018 and FY 2020–2021, SFPD’s budget increased by $79.6 million to a total of $667.9 million. The Sheriff’s Department budget also increased by $13.2 million to a total of $245 million. Between the two law enforcement agencies, their combined budgets in FY 2020–2021 totaled $922.9 million.

The BLA’s law enforcement budget data potentially appears to be massively under-reported. Data available in the SF OpenBook dashboard on the City’s web site (sfgov.org) reports that in FY 2020–2021, the City’s combined “Public Protection” budgets stood at $1.13 billion — fully $213 million more than the $922.9 million the BLA reported to the Board of Supervisors Budget and Appropriations Committee on May 12, 2021.

For it’s part, the San Francisco Chronicle reported on June 13, 2020 that in the decade between FY 2010–2011 and FY 2019–2020 SFPD’s budget increased from $523.5 million to a total of $692.3 million — a 32.2% change increase of $168.8 million across that decade — not merely the $79.6 million increase the BLA reported across just four fiscal years. The Chronicle article helped document that on average, approximately 88.9% of SFPD’s budget historically comes from the General Fund.

There’s surely room to whittle away at SFPD’s and the Sheriff’s budgets and their General Fund support.

Chief Scott’s presentation to the Police Commission in February 2020 noted that SFPD budgeted funds to provide interdepartmental services (work orders) to eight City agencies — including to MUNI/MTA; the Port Authority; Human Services Agency; the Main Library and Eureka Valley Branch Library; Department of Children, Youth, and Their Families; Treasure Island; and the Moscone Convention Center, along with other smaller partnerships — totaling $6.7 million in FY 2020–2021, a 13.8% change increase from $5.9 million in FY 2019–2020. SFPD’s work orders just for MUNI/MTA totaled $4.4 million in FY 2020–2021, a 17% change increase from $3.77 million in FY 2019–2020.

As part of its mandate to identify whether there are alternatives to services currently provided by law enforcement agencies, the BLA itemized various work-order services provided by SFPD to 14 different agencies and programs for FY 2021–2022 totaling $8.76 million, but its not clear what kind of appetite either the Board of Supervisors or taxpayers may have to cut back on those services. That appetite is in question, in part, because $3.44 million of the $8.76 million is for a 15-officer dedicated unit to respond to 9–1–1 calls on MUNI. Otherwise, MUNI would have to rely on regular, non-dedicated, police officers, which might end up decreasing police response time for MUNI-related 9–1–1 calls.

More promising for cuts may be the additional $22.3 million the Sheriff’s Department has budgeted for FY 2021–2022 to provide security for the City’s public health facilities, including SFGH, Laguna Honda Hospital, and DPH Clinics.

Police Civilianization

The BLA report contains a one-page discussion about civilianization of the Police Department, noting that the Board of Supervisors “could choose to fund the civilianization positions recommended by the Police Commission in FY 2021–2022 [starting July 1, 2021] or enhance funding for civilianization positions based on the recommendations of prior staffing studies.” But the BLA incorrectly and disingenuously claimed:

“In November 2020, voters approved Proposition E, which modified sections of the City Charter pertaining to Police Department staffing. City Charter Section 4.127 requires the Police Commission to annually review Police Department staffing to ‘civilianize as many positions as possible’ and submit a report to the Board of Supervisors each year that identifies opportunities for civilianization. City Charter Section 16.123 states that no sworn officer may be laid off in the processing of civilianization.”

The BLA’s “summary” of “Prop. E” isn’t entirely accurate because of what the BLA had left out!

While the BLA accurately reported that the replacement text of Charter §4.127 requires the Police Commission to conduct an annual review to civilianize as many positions as possible, that legal text is way down in §4.127. The BLA completely omitted that before that text appears in the revised Charter, the Charter explicitly states:

“By no earlier than October 1 and no later than November 1 in every odd-numbered calendar year, the Chief of Police shall transmit to the Police Commission a report describing the department’s current number of full-duty sworn officers and recommending staffing levels of full-duty sworn officers in the subsequent two fiscal years. The report shall include an assessment of the Police Department’s overall staffing, the workload handled by the department’s employees, the department’s public service objectives … ”

In other words, the main focus of changes to §4.127 was to remove the specific minimum number of 1,971 police officers from the Charter and replace it with a requirement that the Chief of Police prepare a report assessing and analyzing overall staffing in the Police Department, and only secondarily to focus on the process involving civilianization.

While the new Charter also uses the term “full duty sworn officers,” it is thought “full duty” was more broadly intended to assess the full-time equivalent of officers working full-time (not just those who are not out on leave).

The Charter goes on to say the Police Commission must hold a public hearing regarding the Chief’s staffing recommendations report during the Commission’s consideration and approval of SFPD’S proposed budget every fiscal year, but the Commission is not required to accept or adopt any of the Police Chief’s recommendations.

It’s obvious the Police Commission is empowered to do much more than just “civilianize as many positions as possible.”

Indeed, the City Controller’s statement on page 76 in the November 2020 voter guide also advised voters that the Police Commission is not required to accept or adopt any recommendations in Chief Scott’s staffing report when it considers and approves SFPD’s proposed budget every fiscal year. [By extension, the Board of Supervisors are also not required to adopt recommendations from Chief Scott or from the Police Commission when approving SFPD’s upcoming two-year budget.]

Of note, the Controller’s voter guide statement clearly indicated that the Board of Supervisors have complete discretion to re-allocate funding formerly set aside for the minimum sworn police officer staffing, and additional discretion to use any portion of that funding for any public purpose. Clearly, Charter §4.127 is not restricted to just civilianization; rather the Charter section is more broadly intended to address all SFPD staffing, not just civilianizing jobs.

Demands to Defund SFPD

Former Supervisor Norman Yee introduced a Charter Change ballot measure on May 19, 2020 titled “Police Department Staffing Levels,” which was assigned to the Board of Supervisors Rules Committee.

Yee’s Charter Change proposal did not explicitly cut police staffing levels. Instead, it merely sought to eliminate the artificial “minimum” staffing level of 1,971 sworn police officers set in stone in the Charter in 1994, which was based at the time on 40-year-old data obtained in the 1980’s. Yee’s Charter Change proposal only sought to put in place a process for regular evaluations of police officer staffing levels.

It only requires the Police Chief to periodically analyze staffing levels and submit a report to the Police Commission, and requires the Police Commission to consider the Chief’s report.

The Police Officers Association (POA) attempted to derail Yee’s Charter Change and keep it off of the ballot, but eventually the City’s Department of Human Resources ruled it only involved a management issue that wasn’t subject to meet-and-confer processes the POA could object to.

Developing the ballot measure legislation had been a years-long project for Yee, which he had begun long before the murder of George Floyd in Minneapolis on May 25, 2020. Indeed, San Francisco Deputy City Attorney Alicia Cabrera had signed off on Yee’s legislation “Approving it as to Form” days before Yee introduced it.

Although Yee had introduced it just six days before Floyd’s death, Yee had been working on developing it during 2019, before nationwide calls had begun to defund the police. By the time the Rules Committee held hearings and recommended that the full Board of Supervisors vote on whether to place it as “Prop. E,” on the November 2020 ballot, Yee’s legislation had gained a total of 10 Supervisors as co-sponsors (excluding District 2 Supervisor Catherine Stefani). Eventually, Stefani joined with the Board and it was placed unanimously on the ballot by all 11 City Supervisors.

The “defund the police” slogan became common during the summer of 2020 following the nationwide George Floyd protests. By the time of the November 2020 election, the drumbeat calling for defunding police had grown deafening. Yee’s Charter Change was passed by 71.3% of San Francisco voters.

So, it came as no real surprise that during the Budget and Appropriations Committee hearing on May 12, the vast majority of public comments on agenda item 3 phoned in to the remote virtual hearing called for defunding SFPD (beginning at 6:04:20 on tape and lasting for over two hours).

Of approximately 91 public commenters given one minute each, 40 callers explicitly used the word “defund” in their testimony. Another 25 callers used terminology like divest (rather than the word defund) from policing and jails, and instead reinvest those funds away from law enforcement to finance investing in community services to support San Franciscans — like housing, education, and accessible health care programs. That totaled 65 callers — 71.4% of the 91 — who support re-allocating SFPD funds.

Just seven callers explicitly stated they don’t want SFPD defunded. An additional seven callers said they want SFPD academy classes resumed and funded, along with staffing levels increased for foot beat patrols. Those 14 callers represented just 15.4% of the 91 callers during public comment. The views of the majority could not have been clearer.

Please bear with some redundancy:  The City Controller clearly noted the Board of Supervisors have complete discretion to re-allocate funding formerly set aside for the minimum sworn police officer staffing, and additional discretion to use any portion of that funding for any public purpose — like financing increased investments and alternatives in community services.

Before public comment had been opened, representatives from the Sheriff’s Department noted their Department needed to retain the $24.7 million in savings from closure of County Jail #4. To his credit, Supervisor Shamann Walton indicated he was having trouble “trying to understand the conundrum of how we close the jail, but we have still high expenses in terms of personnel, because it would seem to me [that] closing the jail would coincide with [the need for] less funding [to the Sheriff’s Department].”

Several people who phoned in to provide public comment also noted closing County Jail #4 had saved the City over $24.7 million from the Sheriff’s budget alone, not to mention the police budget.

The BLA report also noted:

“The Board of Supervisors could make it City policy for the Sheriff to assume law enforcement responsibilities at the Airport and request the Airport Commission to enter into a Memorandum of Understanding with the Sheriff. This would allow Police assigned to the Airport to instead be assigned to duties in the City … ”

Indeed, Chief Scott’s two-year budget proposal presented to the Police Commission on February 12, 2020 reported that in FY 2020–2021 SFPD had 332 sworn police FTE’s at the Airport. Given the City Controller’s estimate of $155,000 each year for each police officer, that translates to $51.5 million annually in police staffing at the Airport. All the Supervisors need to do is come up with the political will to enact significant law enforcement reforms NOW, before passing the next two-year City budget for FY 2021–2022 and FY 2022–2023.

There’s no point delaying law enforcement budget reforms for another two-year period by kicking the can down the road again to a nebulous “sometime in the future.”

Indeed, language now incorporated in revised Charter §4.127 specifically states:

“The Chief of Police may, but is not required by this Section 4.127 to, submit staffing reports regarding full-duty sworn officers to the Police Commission in even-numbered years.”

The president of the Police Commission, Malia Cohen — formerly president of the Board of Supervisors representing District 10, current Board president Shamann Walton’s district — could, and should, demand along with the full Board of Supervisors and particularly Chair of the Budget Committee Matt Haney, that Chief Scott rapidly produce a police staffing report now, even before the first report is due between October 1 and November 1, 2021.

One red herring is having to wait until October 2021 before receiving a SFPD staffing report from the Chief of Police. Given nationwide calls to defund law enforcement and reinvest those savings into desperately-needed and alternative services, a police staffing report should be expedited. The Board of Supervisors must require that the Police Chief produce a staffing report annually, not biannually.

Another red herring is the notion that reductions to SFPD sworn police officers must be done using a 1:1 ratio of replacing police officers with a civilian counterpart. To the extent San Francisco had 634 more sworn police officers on the City payroll as of June 30, 2020 than the 1,971 minimum mandated by the former City Charter does not mean that all 2,605 SFPD sworn FTE’s must be replaced with civilian employees.

As we reach the first anniversary of George Floyd’s death, leaving San Francisco’s bloated sworn police officer staffing levels unaddressed and unresolved is an insult to racial inequities highlighted during last year’s protests following his murder, and an insult to Floyd’s legacy.

It’s clear the Board of Supervisors have a menu of options that could save substantial millions of dollars annually from law enforcement budgets.

Now is the time — as part and parcel of nationwide calls for police reform — to drastically reduce the bloated number of sworn police officer positions in SFPD based on their number of FTE hours worked. In addition, the Board of Supervisors should eliminate police academy classes for the next two fiscal years and allow attrition due to retirements to further reduce sworn officer staffing levels at SFPD without resorting to 1:1 civilianized replacements.

Any savings from reducing the number of sworn police officers and eliminating police academy classes should be re-allocated to the Department of Public Health to fund providing gap subsidies to facilitate opening a sub-acute Skilled Nursing Facility (SNF) — since the City currently has no such public- or private-sector facility in the City — to halt out-of-county patient dumping of patients, like Ken Zhao, who require sub-acute level of care.

That’s because another complete canard would have you believe the City can’t come up with the $3 million to $5 million that appears to be needed to open a sub-acute SNF facility somewhere in the City.

Surely, this Board of Supervisors can identify $5 million in cuts to law enforcement budgets and mandate those savings be earmarked to open a sub-acute SNF rapidly. The lives of people like Ken Zhao who need one in-county, matter.

Drastically reducing the number of sworn police officer FTE’s is intrinsically linked to defunding SFPD.

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 monette-shaw@westsideobserver.com.

June 2021

What's Holding Up Affordable Housing?

One-man Lawsuit Stalls 2019 Affordable Housing Bond

by Patrick Monette-Shaw

Who knew the $600 million Affordable Housing Bond passed by voters in November 2019 has been delayed and held hostage to a citizen’s lawsuit first filed in San Francisco Superior Court on December 26, 2019?

Clearly, the Mayor’s Office, the City Controller’s Office, and the Mayor’s Office of Housing and Community Development (MOHCD) have done everything they can to keep this news out of media reporting.

As far as is known, this news is being exclusively reported for the first time here in the Westside Observer newspaper.

It was very disappointing when the San Francisco Citizens’ General Obligation Bond Oversight Committee (CGOBOC) — which is charged with oversight of all voter-approved G.O. bonds — held a hearing on March 22 to receive updates on three separate Affordable Housing Bonds that were presented.

Between the three presentations made by MOHCD and the question-and-answer period from CGOBOC members, the three bonds were discussed and dispensed with, within a record-setting 34 minutes flat.

Fully 60% of the 34 minutes involved the 2016 Bond, which repurposes unused funds left over from the 1992 Seismic Safety Loan Program general obligation bond. It focuses only on preservation and seismic safety of properties at-risk of conversion to market-rate uses in order to preserve the affordability of existing rental housing, protect residents at risk of displacement, and improve seismic safety. The 2016 Bond doesn’t finance new affordable housing construction or acquisition of properties without seismic improvements.

The 2015 Bond involves $310 million for new and rehabilitated affordable housing projects and the 2019 Bond involves $600 million for the same purposes.

Considering the hearing involved over $1 billion in Affordable Housing Bonds, a mere 34 minutes does not suggest adequate oversight is being performed by CGOBOC.

There was next to no news presented during the March 22 CGOBOC meeting about the status and progress of San Francisco’s $600 million Affordable Housing Bond passed nearly a year-and-a-half ago in November 2019.

Then on March 30, I received a Google alert about Laguna Honda Hospital (LHH) that I had set up 20 years ago to receive any news involving the hospital. The alert indicated LHH is being leveraged as collateral — again! — for an additional $80.2 million issuance of Certificates of Participation (COP’s). [Editor’s Note:  COP’s are a form of long-term municipal debt that requires payment of both principal and interest, but do not require voter approval to issue.]

Curious about the new COP’s for $80.2 million, I contacted the City Controller’s Office. I was shocked while talking to City Controller staff when I stumbled across news that a lawsuit has been stalling the 2019 Affordable Housing Bond.

Here’s what has recently been learned.

March 22 CGOBOC Hearing

As has been reported in the past, CGOBOC converted from semi-annual updates about each bond measure under its oversight to just a single formal annual presentation from each bond’s sponsoring City Department, plus an informal update six months later from the CGOBOC member assigned as a liaison to a given bond.

The March 22 CGOBOC meeting included a single agenda item for the Mayor’s Office of Housing and Community Development (MOHCD) to present updates to CGOBOC on the 2015, 2016, and 2019 Affordable Housing Bonds.

MOHCD presented updates on the 2015 and 2016 Housing bonds in extremely fast and sketchy updates:  Just 3 minutes and 13 seconds on the 2015 Bond, and 10 minutes and 5 seconds on the 2016 Bond.

For their part, CGOBOC members asked a paucity of questions on both Bonds, spending just 9 minutes asking questions and getting answers on the 2015 Bond, and 10 minutes and 13 seconds asking questions and getting answers on the 2016 Bond.

MOHCD indicates 98% of the first tranche of the $310 million 2015 Bond, 93% of the second tranche, and just 12% of the third tranche of the 2015 Bond have been spent to date. Spending of the remaining 2015 Bond amount is expected to accelerate in 2023, eight years after passage of the 205 Bond! What’s taking so long?

MOHCD indicated the 2015 Bond has produced 400 housing units to date, and another 379 units are currently in construction, for a total of 779 affordable housing units. MOHCD claims another 740 are in predevelopment, but as I have reported in the past, spending for the vast majority — at least 454 — of those 740 units are not actual new or rehabilitated affordable housing units. Rather, MOHCD is padding its total housing units produced by the 2015 Bond by tacking on additional units that will be constructed with non-Bond proceeds that are served by infrastructure projects funded by the 2015 Bond, such as roads and sidewalks in the Sunnydale and Potrero public housing projects.

Indeed, the Sunnydale and Potrero public housing projects involve renovating or replacing existing public housing units to reach eligibility for accelerating moving them from HUD’s Section 9 program (Public Housing Operating Fund) into its Section 8 program (rental housing for low-income and elderly tenants). That work was supposed to have started over a year ago, but starting that work was delayed due to COVID.

The only other news about the 2015 Bond is that MOHCD informed CGOBOC verbally that Midpen’s teacher housing project at the Francis Scott Key annex site at 43rd and Irving Street is not going to open until 2025, contradicting MOHCD’s accompanying written report that indicated construction is expected to be completed in 2023. MOHCD didn’t indicate to CGOBOC why it may end up taking an entire decade to get the teacher housing project at Francis Scott Key completed. Sadly, no CGOBOC members bothered to ask why it may take an entire decade. The failure to ask that question reeks of rotten and weak “oversight.”

As for the $600 million 2019 Affordable Housing Bond, MOHCD spent a miserly one minute and 29 seconds on March 22 updating CGOBOC members about progress on the 2019 Bond.

MOHCD merely reported that a list of projects to be funded by the 2019 Bond had been approved by San Francisco’s Capital Planning Committee and the Board of Supervisors on October 6, 2020, and that the first $252.6 million tranche of the 2019 Bond (“Social Bonds – Affordable Housing 2019, Series 2021A”) would be sold by the end of the month of March. Indeed, the delivery date of that first tranche of the 2019 Bond occurred on March 30, 2021, which appears to have taken a month longer, because it was previously reported in October 2020 that the first tranche was projected to be sold by February 2021.

That was completely ridiculous. The first tranche of the 2015 Affordable Housing Bond was sold on Wednesday, October 19, 2016 — 11 months after voters approved the bond in November 2015. No member of CGOBOC bothered asking why it took 17 months to sell the first tranche of the 2019 Bond when it had taken only 11 months to sell the first tranche of the 2015 Bond. More rotten oversight by CGOBOC.

Sadly, CGOBOC members spent no time at all asking any questions or getting answers about the 2019 Bond.

During the March 22 hearing, CGOBOC member Jane Natoli made some remarks in her role as CGOBOC’s liaison to MOHCD on the 2015 Bond and 2016 Bond. She spent a total of 4 minutes and 32 seconds presenting her Liaison Report.

She pointedly noted that no CGOBOC member had been appointed — or had volunteered — to be CGOBOC’s liaison to MOHCD on the 2019 Bond. Perhaps that’s why CGOBOC members raised absolutely no questions about the 2019 Bond.

Although $150 million — fully 25% — was set aside for Senior Housing in the 2019 Bond, no CGOBOC members asked any questions about why only 100 senior housing units may be being funded from the Bond for the senior housing project at Laguna Honda Hospital, after the developer selected by MOHCD for the project (Mercy Housing) had proposed building 375 senior housing units at LHH.

For my part, I provided remote oral testimony by phone and 150-word written public testimony for inclusion in the March 22 CGOBOC meeting minutes, indicating that it was absurd that neither members of the public nor CGOBOC members have been presented a list of projects to be funded by the 2019 Bond. That stands in stark contrast to the 2015 Bond, because just three months after voters passed the $310 million Affordable Housing Bond in November 2015 MOHCD presented its initial planning report to CGOBOC in January 2016, and by June 2016 MOHCD presented a preliminary detailed list by street location to CGOBOC and the public.

At the end of the section of the meeting about the three Affordable Housing Bonds on March 22, Natoli appears to have gotten the message and pointedly noted that CGOBOC should be given a list about what is being funded by the 2019 Bond.

CGOBOC is now scheduled to hold its next hearing on all three Affordable Housing Bonds on December 6, 2021, a little earlier than a full year between formal report presentations.

Notably, MOHCD didn’t share with CGOBOC members on March 22 that a lawsuit may be stalling progress on the 2019 Bond. You’d think MOHCD would have been upfront about the lawsuit to the very committee — CGOBOC — providing oversight on all three Affordable Housing Bonds. But you’d be wrong.

New $80.2 Million COP’s

The Google alert I received on March 30 about Laguna Honda Hospital indicated a $80.2 million COP’s Series 2021A (Multiple Capital Improvement Projects) would use LHH’s North and South patient residence towers plus LHH’s Pavilion Building, along with San Francisco’s San Bruno Jail complex, as leased assets to secure the COP financing.

Proceeds of the Series 2021A COP’s will be used to finance acquisition of property for purposes of relocating the operations of San Francisco’s Hall of Justice building.

When I contacted the City Controller’s Office with questions about these new COP’s, Controller staff indicated my memory was correct that LHH’s two residence towers and its Pavilion Building has previously been used as “collateral” multiple times in the past for several different COP-funded projects, including for Road Repaving and Street Safety (RRSS), in addition to General Obligation Bond funding voters had previously passed at the ballot box for other RRSS projects.

Almost lamely, Controller staff admitted concerns have been raised about the LHH property having been repeatedly used as leased-asset collateral in the “pool” of assets the City relies on to secure COP financing. The Controller’s staff indicated the Controller’s Office is working with the City’s Real Estate Division to identify other City property and assets that can be added to the asset pool in the future.

The Citizen’s Lawsuit Stalling Affordable Housing Bond

On December 26, 2019 Michael Denny filed an In Pro Per lawsuit in San Francisco Superior Court against John Arntz, San Francisco’s Director of Elections and City Attorney Dennis Herrera contesting San Francisco’s 2019 municipal election (San Francisco Superior Court case number CPF19516970). The lawsuit is a special Superior Court proceeding, alleging multiple violations of California’s election code and San Francisco’s municipal election code regarding the November 2019 “Proposition A” $600 million Affordable Housing Bond.

In Pro Per is used to describe people who handle their own cases, without the benefit of a licensed lawyer. Mr. Denny — a previous Secretary of the Libertarian Party of San Francisco (LPSF) — has filed multiple lawsuits in the recent past as an independent citizen, not in his role as a member of LPSF. LPFS itself appears to be ineligible to be listed as a complainant on lawsuits filed independently by its members.

It should be noted that LPSF was the official opponent of the November 2019 “Prop. A” in the voter guide, even though it may have been ineligible to sign on to Denny’s Superior Court lawsuit. LPSF asserted in its official Opponents Argument in the November 2019 voter guide that “affordable housing programs in reality make housing less affordable,” and that “affordable housing programs are NOT an incentive to build more housing.” 

Just like the YIMBY’s who misguidedly believe market-rate housing will somehow trickle down to create affordable housing, LPSF apparently believes San Francisco’s government should “get out of the way” and allow developers to build whatever they want.

LPSF members — including Denny on at least two occasions — have filed lawsuits in the past requesting election results be invalidated, asserting that local governments can present bond measures on ballots — but the ballot measures must include a true and impartial synopsis of the purpose of the proposed measure, and must use language that is neither argumentative nor likely to create prejudice for or against the measure.

Denny’s lawsuit challenging the 2019 Affordable Housing Bond asserted seven contested grounds of action alleging highly arcane technical violations.

The first ground alleged that the question put to voters on the ballot did not contain the phrase “shall the measure be adopted?” that is required by California Election Code 13119(a), using instead the phrase the “… shall the City and County of San Francisco issue $600,000,000 in general obligation bonds?”.

The third ground alleged California Election Code 13119(c) requires official ballot statements use “language that is neither argumentative nor likely to create prejudice for or against the measure.”  Denny alleged much of the language used in the official ballot statement and the voter guide used terminology presenting reasons to pass the Bond measure, therein creating prejudice favorable for the measure.

The remaining five grounds Denny presented in his lawsuit were equally as arcane.

On February 5, 2020 Superior Court Judge Ethan P. Schulman dismissed Denny’s Superior Court lawsuit. In doing so, Schulman noted Denny had raised substantially identical claims in a separate pre-election challenge, which the Superior Court had previously dismissed on demurrer (i.e., that the petitioner’s claim(s) were irrelevant or invalid). Schulman further noted Denny’s post-election challenges were simply a continuation of his prior pre-election challenge of the same “Prop. A” ballot measure by substantially raising the same claims and issues, again.

Schulman dismissed Denny’s grou