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Feeling Lucky? Apparently LHH management took risks with regulations that lost big time at Centers for Medicare and Medicaid.

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

Laguna Honda Puzzle

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.

• • • • • • • • • • 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.

 
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:

quotes

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.”

  • 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

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-outreport 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

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