“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 ••••••••••
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.
... it tells us that they are maintaining secrecy to potentially cover up the loss of greatly needed skilled nursing facility services in San Francisco.”
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 firstname.lastname@example.org.
December 6, 2022