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!
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 RCAReport 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.
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.
Even though LHH’s consultants have now released three monthly follow-up Monitoring Reports ... because LHH received substantial additional substandard care deficiencies ... more details of the complete picture are still dripping out, like a leaky faucet.”
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.
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 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.
Granny dumping is defined by the Oxford English Dictionary as "the abandonment of an elderly person in a public place such as a hospital or nursing home.
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
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!
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.
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. ”
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.
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.
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
Previous Articles by Patrick Monette Shaw
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
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!
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.
"Dr. Kerr, Dr. Rivero and Monette-Shaw"
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.
When interloping managers from SF General Hospital and SF Health Network 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.”
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 RCAreport 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:
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 Observerarticle, “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 Comparewebsite.
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 “NoActual 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
Maybe the Chinese could help us find the missing “Revised Closure Plan” ? Or help us find out why Colfax, Pickens, or the Health Commission, et al, refuse to hire a qualified Nursing Home Administrator as the Feds require?
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 ••••••••••
Acting CEO Roland Pickens
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.
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 ... where the nearest fire extinguishers were. ”
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.
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.”
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.
Baljeet Sangha
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.
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.
Did 20 Years of Mismanagement Prompt Federal Intervention?
The Bungled Management at Laguna Honda
Patrick Monette-Shaw
An Insider’s History
by Patrick Monette-Shaw
•••••••••• February 10, 2023 ••••••••••
Mitch Katz
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.
Larry Funk, the last LHH CEO to hold a Nursing Home Administrator license
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.
John Kanaley
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.
Dr. Edward Chow
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.
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.”
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. Terry Hill
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.
Former CEO Mivic Hirose
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.
Gayling Gee's book Available on Amazon
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 Observerreported 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.
Michael Phillips
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!
Roland Pickens
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 LHHSettlement 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 Agreementtemporarily 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.
Acting CEO Roland Pickens
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 Observerreported last September, LHH's acting CEO, Roland Pickens, admitted to the Health Commission that LHH followed the wrong regulatory guidelines. It was using California's Title 22 ‘Acute Care Hospital Guidelines,’ not CMS' ‘Skilled Nursing Facility Regulatory Guidelines,’ thereby causing substantial noncompliance, which led to LHH its decertified status.
If we ever get to see the full RCA report, we'll see if Pickens' included the admission in the RCA report. If he didn't include it, then HSAG did a terrible job writing the RCA because following the wrong regulations was a substantial contributing factor to CMS decertifying LHH. Clearly, LHH had been acting like an acute care hospital, not a skilled nursing facility.
The RCA was supposed to be a roadmap to develop recommendations and corrective actions for an ‘Action Plan’ required by the LHH Settlement Agreement. That plan was due to CMS on January 6, 2023. The January Executive Team Report also clearly stated:
‘The Action Plan is our new blueprint for how we will accomplish CMS recertification and remain compliant and successful for the long term. The Action Plan includes hundreds of improvements — many of which are already underway and many more we will do over the coming weeks and months as we work toward recertification.’
There are many unanswered questions, including whether LHH is going to lose 120 of its beds 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 ....”
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.
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 FireLife 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.
Director Grant Colfax, MD
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.
LHH Recertification Strategy Update presented to Health Commission on January 3, 2023. It was presented six months after two consultants — Health Management Associates (HMA) and Health Services Advisory Group — were hired to begin work in May 2022.
Colfax's Strategy Update in an org chart format contains several troubling issues.
Recertification teams lack necessary skilled nursing experience
First, of five teams Colfax has belatedly assembled to focus his strategy for LHH's recertification, six of the eight managers are serving in acting capacities, and only one of them is an LHH employee. The rest are managers from SFDPH and the San Francisco Health Network (SFHN) who don't have experience running skilled nursing facilities. That's exactly the type of manager who wrongly took the path of operating and mismanaging LHH as an acute care hospital.
No wonder the Action Plan identified hundreds of necessary improvements that need to be implemented. And no wonder these managers led LHH in the wrong direction — the goal should be a high-performing skilled nursing facility.
Why are capital projects included in the recertification plan?
Second, the ‘Facilities, Operations, and Capital Projects’ team includes a focus on capital projects. What capital projects are involved in obtaining CMS recertification?
Are the Capital Projects related to the plan to place one cohort of elderly and disabled patients needing skilled nursing care in one of LHH's two patient towers, and to place the other cohort of patients with behavioral and mental health problems in the second patient tower? Or alternatively, is the long-stalled housing project planned for LHH's campus pushed by former District 7 Supervisor Norman Yee and now by his replacement, Myrna Melgar, now part and parcel of the recertification efforts? How does the housing scheme intersect with recertification?
There is a pending Capital Project to replace LHH's kitchen floor, as the Westside Observer previously reported in October 2022. SFDPH responded to a public records request saying the kitchen floor is a $4.4 million capital project, and indicated there's no contract for it yet and no timeline has been scheduled.
It's thought LHH's recertification is not contingent on the kitchen floor project being completed and is not a major concern of CMS, unless CMS has changed its mind. Since there is no timeline scheduled for the kitchen floor project, why does Colfax's Strategy Update team focus on capital projects?
Notably, the ‘Facilities, Operations, and Capital Projects’ team is being led by a Director of Operations and DPH's Chief Operating Officer — Prasanthi Patel and Greg Wagner, respectively. Ms. Patel holds a relatively low-level job classification as a 2593, Health Program Coordinator III. She earned just $126,618 in total pay in the fiscal year that ended on June 30, 2022.
For her part, Patel has been the director of SFDPH's Children's Oral Health Program for 6 years and 10 months and has been LHH's acting Deputy Director of Operations for just 9 months. Deputy Directors typically do not have a 2593 job classification code. What experience as a children's oral health program director qualifies Patel to be managing operations for a skilled nursing facility as a Deputy Director, even if only in an ‘acting’ capacity?
... it's now been six months since the mess at Laguna Honda Hospital has received any attention from the Board of Supervisors. The Board owes it to San Franciscans to step in and intervene by scheduling a follow-up hearing quickly.”
Mysterious and still missing Revised Closure Plan
Third, Colfax's ‘Revised Closure Plan’ team is led by two employees: Terry Dentoni as the acting-Chief Nursing Officer, and Claire Horton as the acting-Chief Medical Officer. That team will focus on the Revised Closure Plan SFDPH has kept hidden from the public since the LHH Settlement Agreement was announced on October 12 — which Settlement Agreement mentioned the Revised Closure Plan 18 times.
Claire Horton has been the Chief Medical Officer of the San Francisco Health Network for 2 years and 7 months, was previously SFGH's Chief of Staff for 2 years and 1 month, and had been Medical Director of SFGH's Richard Fine Health Clinic for 8 years. Neither Horton nor Dentoni have on-the-job experience in a skilled nursing facility or experience in gerontology.
It is troubling Colfax's Recertification Strategy Update includes Dentoni and Horton managing the potential resumption of the Closure Plan involving mandatory forced discharges and relocation of LHH's medically fragile residents who are at risk of transfer trauma.
Is LHH culpable in the 12 Deaths of 57 Discharged Patients?
Also during the January 10 LHH-JCC meeting, LHH’s acting CEO Roland Pickens informed the three Health Commissioners that LHH may appeal 12 “Class B” citations CDPH issued against LHH on December 20.
The citations involve LHH’s role in what are believed to have been 12 patient deaths among the 57 patients discharged and transferred from LHH to out of county facilities and to a medical respite homeless shelter, before LHH’s cruel closure plan was paused following their deaths. The 12 deaths represent 21% of the first 57 mandatory discharges.
CDPH’s 12 citations confirmed 11 of the patients had died, including one who died in a medical respite homeless shelter. It is thought the twelfth patient also passed away even though CDPH didn’t report it on the citation.
“Class B” citations that are sustained can carry fines of up to $3,000 each. CDPH levied the maximum fines and LHH was assessed a total of $36,000 in fines.
Pickens assertion to the Commissioners LHH would appeal appears to be incorrect. The appeal process spelled out in California Health and Safety Code 1428 stipulates LHH had just 15 working days after service of the citations to appeal. As of January 11, CDPH’s web site showed no appeals had been filed within the 15-day window.
The Westside Observer will have a more detailed article about the 12 citations, and LHH’s chaotic and negligent discharge processes last summer in our next issue.
Resumed patient discharges just weeks away
City Attorney David Chiu
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 LHHSettlement 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.
Health Commission President Dan Bernal, Vice-President Laurie Green, MD, Edward Chow, MD, Susan Belinda Christian, JD, Cecelia Chung, Tessie Guillermo and Suzanne Guirado, Ph. D
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."
Dr. Teresa Palmer
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
Dr. Derek Kerr
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
Chart courtesy of EduPristine.com
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.
CEO Roland Pickens
For example, last September, the Westside Observerreported 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 LHHSettlement 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!
Patrick Monette-Shaw
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
Patrick Monette-Shaw
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.
Former Board President Angela Alioto
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).
Judge William Alsup
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
City Attorney David Chiu is flanked by Mayor London Breed and Louise Rene
As the Westside Observerreported 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 ownafter 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
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).
“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.
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 Observerreported 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 Chroniclereported 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
Patrick Monette-Shaw
•••••••••• 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.
City Attorney David Chiu
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.
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.”
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 thatLaguna 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
Patrick Monette-Shaw
•••••••••• 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.]
Interim CEO Roland Pickens testifies at Board of Supervisors
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.
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”
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
Former CEO Mivic Hirose
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.
Former CEO John Kanaley
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.
Former Director Mitch Katz
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.
Director of Public Health, Grant Colfax
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.”
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
Patrick Monette-Shaw
•••••••••• 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 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 “ComprehensiveCare 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
The temporary “pause” in Laguna Honda's transfer plan helps, but the problems are not fixed.
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
Patrick Monette-Shaw
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:
...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!”
“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.
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 theother 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 majoritydidn’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?
Whatever happened to Baby Louise? She's back.
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
The City has not protected the vulnerable elderly and disabled in our most revered nursing home.
Understanding Severity of LHH Inspection Violations
Cohorting Two Patient Populations Is A Terrible Idea
Patrick Monette-Shaw
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 throwsand in the eyeof 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.
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.”
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 Observerarticle, “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.
... 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.”
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 ShouldRequest 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
CMS' requirement, that Laguna Honda plan for the relocation of all patients by September 15 is draconian, but the loss of 120 more skilled nursing beds is Kafkaesque.
Laguna Honda Hospital—the rest of the story
LHH Cuts 120 Beds, Hires More Management Fat
Patrick Monette-Shaw
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.
Interim CEO Roland Pickens testifies at Board of Supervisors
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.
San Francisco has lost 465 of its skilled nursing beds in the last six years.Photo Courtesy of CommuniCare Health ServicesInterim CEO Roland Pickens
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
Former CEO Larry Funk
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.
Former Director Mitch Katz
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.
Former CEO John Kanaley
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.”
Former CEO Mivic Hirose
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?
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.
Former CEO Michael Phillips
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.
...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?”
Growing Doubts
Interim CEO Roland Pickens
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
Interim CEO Roland Pickens
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.
“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. ”
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.
Interim CEO Roland Pickens
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
Two Candidates Didn’t Stand a Chance … of advancing to the AD-17 State Assembly run-off election in April.
My April 19 Run-0ff Election Recommendation
Vote for Campos, Not Haney, for Assembly
Patrick Monette-Shaw
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 Observernoted, 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.
Results of the State Assembly primary race in District 17 Graphic courtesy of SF Chronicle
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.
… 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.”
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 Standardreported 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.
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.
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.
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 — 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.orgpublished 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.
[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
For four years the City has been dependent on Epic Systems to keep track of the Health Department's statistics.
Looking for Out-of-County Discharge Data in the Underwear-and-Socks Drawer
Health Department Busted for Violating FOIA Laws
Patrick Monette-Shaw
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.
... 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 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.)
Modern programs can scan for any field with a touch of the finger Photo courtesy of tylertech.com
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!)
... 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.”
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.
Dr. Teresa Palmer
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.
Years after a stroke in 2016, recently Ken Zhao requires a ventilator and waits to learn if there is a place for him in San FranciscoIn happier days Ken shows his dad how to take a "selfie"
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
Ahsha Safai's Office
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
Candidates for State Assembly District 17: David Campos, Matt Haney, Thea Selby and Bilal Mahmood
Why I'm Supporting David Campos
A San Francisco Leader for the State Assembly
Patrick Monette-Shaw
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.
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!”)
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.
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
Patrick Monette-Shaw
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.
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. ”
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.
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
Not in the market for affordable housing? Closings at The Avery are currently underway with one-bedrooms priced from $1,695,000, two-bedrooms from $1,995,000, three-bedrooms from $3,585,000 and a spectacular penthouse collection starting from $11,750,000—if you rush now.
Why No Status Updates?
Where’s the Housing?
Patrick Monette-Shaw
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.
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”
.
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”
Supervisor Aaron Peskin
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.
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.”
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.
Between the three affordable housing bonds San Francisco already has (the 2015, 2016, and 2019 affordable housing bonds), we’re 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.”
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
Granny dumping is defined by the Oxford English Dictionary as "the abandonment of an elderly person in a public place such as a hospital or nursing home, especially by a relative; it was introduced in the early 1980s by professionals in the medical and social work fields.
Another Public Health Crisis:
Why Dumping Patients Out-of-County Is Wrong
by Patrick Monette-Shaw
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.
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.”
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
Table 1 Source: SF Dept. of Public Health
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.
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.”
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
A chart showing the polling averages since July 14 for whether to keep California Gov. Gavin Newsom in office or remove him with dots representing each poll. “Keep” is polling at an average of 48.8 percent, and “Remove” is polling at an average of 47.6 percent. Graphic: fivethirtyeight.com
California Wildfires and PG&E Bailout Play a Big Role
Will Newsom Escape Recall?
by Patrick Monette-Shaw
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.
Mayor Breed joins Newsom at campaign headquarters
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.
Newsom in Big Basin promises change
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.
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”
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
The Camp fire caused by a worn 97-year-old hook, burned 240 square miles, left 85 dead, destroyed 18,804 buildings. California politicians continue to take "donations" from PG&E
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.
Alice Stebbins
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 ProPublicainvestigation subsequently revealed Stebbins had been correct.
Lobbyist Jason Kinney
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 Newsreported 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
Gavin explains on Ch. 7 ABC
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.
Scott Wiener comes with some baggage
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
Leaving side two blank may be a mistake
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 Newsreported, 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.
Was it worth it?
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
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 Observerreported 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.
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”
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 CompStatreport 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 CompStatreport 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).
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.”
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
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.
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.”
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 websitereports 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
Photo: Courtesy of Yahoo! News
Pleas for Law Enforcement Budget Reform
To Defund, or Not Defund, SFPD?
by Patrick Monette-Shaw
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.
T he Controller’s voter guide statement clearly indicated that the Board of Supervisors have complete discretion to reallocate 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, 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 Chroniclereported 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
Never underestimate the power of a man with a banjo
What's Holding Up Affordable Housing?
One-man Lawsuit Stalls 2019 Affordable Housing Bond
by Patrick Monette-Shaw
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.
Indeed Mr. Denny — perhaps spellbound by the Libertarian Party’s slogan “Minimum government, maximum freedom” — has single-handedly held the 2019 Bond hostage with his futile lawsuit to overturn passage of the 2019 Bond, despite the fact that 143,055 San Franciscans voted in favor of passing the Bond.”
Michael Denny
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 Perlawsuit 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 grounds 1, 2, 3, 5, and 7 since his challenges alleging the lack of impartial analysis of ballot measure applies only to pre-election activities, and that Denny had not demonstrated that the so-called forbidden activities had affected the outcome of voters passing “Prop. A” in November 2019.
Despite having lost his pre-election and post-election lawsuits about the 2019 Affordable Housing Bond, Denny chose to file an appeal to the Court of Appeal on March 26, 2020. It took the Superior Courts Appeals Division until August 28, 2020 to complete that the appeal had been certified by the Court of Appeal.
It’s almost as if Denny, other members of LPSF, and LPSF itself may believe that filing lawsuits to challenge the 2019 Affordable Housing Bond will somehow get government out of the way and allow developers to build whatever types of housing that they wish.
Of San Francisco’s 511,325 registered voters there are just 2,906 registered Libertarians, a paltry 0.6% of registered voters (as of April 5, 2021). It’s shocking that the LPSF political party representing less than one percent of San Francisco’s registered voters, yet a single LPSF member has managed to hold the 2019 Affordable Housing Bond hostage to get the government “out of the way” of housing developers.
Indeed Mr. Denny — perhaps spellbound by the Libertarian Party’s slogan “Minimum government, maximum freedom” — has single-handedly held the 2019 Bond hostage with his futile lawsuit to overturn passage of the 2019 Bond, despite the fact that 143,055 San Franciscans voted in favor of passing the Bond.
It’s not yet known if the Court of Appeals has concluded hearing Denny’s appeal, or whether Denny will petition the State Supreme Court to review any decision from the Court of Appeal.
What is currently known, is that the City of San Francisco is confident and expects it will prevail, regardless of the Supreme Court’s decision.
While Mr. Denny may have been within his First Amendment rights to file his lawsuit, it’s clear his lawsuit delayed issuing the first tranche of the 2019 Bond. The Controller’s Office of Public Finance presented a bond issuance timeline on September 19, 2020 indicating it planned to sell the Bonds in November 2020, but they weren’t sold until five months later in March 2021. City Hall sources have confirmed there was a nexus between Denny’s lawsuit and the five-month delay selling the first tranche of the bond. The introduction of the request to the Board of Supervisors seeking authorization to sell the bonds may have also involved additional months of delay.
Mr. Denny, Nicholas Smith (who is also an LPSF member), and Starchild (who is now LPSF’s chairperson), filed an earlier lawsuit (Superior Court Case number CGC19575070) on April 5, 2019 also challenging the November 6, 2018 Embarcadero Seawall Earthquake Safety Bond, alleging many of the same issues Denny raised challenging the November 2019 Affordable Housing Bond. Although the Superior Court dismissed the Seawall lawsuit, Denny, Smith, and Starchild appear to have also appealed that dismissal to the Court of Appeals.
Loose Ends
As far as the 2019 Affordable Housing Bond goes, several loose ends remain unanswered.
Language in the legal text in the November 2019 voter guide indicated that as part of oversight of, and transparency involving, 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 has not created such a web page or made it available on-line.
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 presented to the Mayor and Board of Supervisors, responding by saying:
“Other than the information provided to the Board (and previously sent to you) when seeking their approval for the first issuance of the 2019 Affordable Housing Bond, there have been no subsequent reports to the Board.”
MOHCD was referring to the October 6 report presented to the Board of Supervisors seeking authorization to sell the $252.6 million first tranche of the 2019 Bond. By not producing an annual report on the 2019 Bond, MOHCD is signaling that it decided it didn’t need to comply with the oversight promises made in the legal text in the 2019 voter guide.
Finally, MOHCD previously indicated that Mercy Housing’s feasibility analysis concerning its proposal to build 375 senior housing units on the campus of Laguna Honda Hospital would be provided by January 15. MOHCD still hasn’t responded by the submission deadline for this article to a recent records request to obtain that feasibility analysis, even though the Board of Supervisors were advised on October 6, 2020 that the first tranche of the 2019 Bond would include allocating $3 million for predevelopment of only 100 senior housing units at LHH, not 375.
The secrecy involving placing housing on LHH’s campus continues, unabated.
[Full Disclosure: I took out a paid argument in the 2019 voter guide opposing the 2019 Affordable Housing Bond, not because I believe San Francisco government should get out of the way of housing developers and not because I oppose affordable housing. Instead my paid argument was because of MOHCD’s truly rotten track record and performance on San Francisco’s 2015 Affordable Housing Bond, since it appears that bond will produce less than 1,000 new affordable housing units, voters weren’t told beforehand that MOHCD would reserve up to 30% of new units would be allocated for the homeless, too much of the bond was earmarked for infrastructure rather than housing units (including infrastructure to support 125 market-rate units), and because a $42 million program for middle-income rental units promised to voters was unilaterally eliminated by MOHCD post-election.]
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 2021
Mayor’s Reckless Nursing Home COVID Reporting
by Patrick Monette-Shaw
Patrick Monette-Shaw
As I wrote last November, Mayor London Breed — aided and abetted by Dr. Grant Colfax and the Department of Public Health — have failed miserably when it comes to reporting of COVID cases in San Francisco’s skilled nursing facilities (SNF’s), which data is more robustly publicly available elsewhere. It should be easily and readily available on local government web sites.
To repeat, it took until November 6 — fully eight months after Breed shut down Laguna Honda Hospital to visitors and then issued her first COVID-19 Shelter-in-Place order — before DPH under Breed’s reckless watch began publicly reporting data about COVID cases in San Francisco’s SNF’s on DPH’s COVID Data Tracker web site.
When DPH did begin reporting limited local SNF COVID data on-line in November on its new “COVID-19 in Skilled Nursing Facilities (SNFs)” web page, DPH decided to present data only on the number of COVID cases among residents of the 19 SNF’s in the City, eliminating reporting cumulative case reporting for healthcare workers (staff) at the 19 facilities.
DPH decided to present data only on the number of COVID cases among residents of the 19 SNF’s in the City, eliminating reporting cumulative case reporting for healthcare workers (staff) at the 19 facilities.”
That was patently ridiculous, because on-line data published on both the federal Centers for Medicare and Medicaid Services (CMS) and California’s Department of Public Health (CADPH) web sites have been presenting data reporting COVID cases and deaths for both SNF residents and SNF staff all along.
For good measure, DPH decided to pad its SNF data by including COVID cases from the SNF operated by the VA Medical Center located on Clement Street near 40th Avenue. That’s ridiculous, first because those SNF beds are reserved only for armed services members who have received a service-related disability determination, and excludes those who have served in the military but do not have a documented service-related disability; and second, because that facility is not licensed as a SNF by the State of California since it is a federal facility, and is not included in COVID SNF reporting on either the CMS or CADPH web sites.
Reckless COVID Case Discrepancies
Edited DPH web site screen captured on January 12, 2021 presenting data through December 31, 2020
It’s crucial that members of the public, and families of patients in SNF’s, receive accurate and up-to-date information about COVID cases in local skilled nursing facilities, in part to decide whether the risk of acquiring COVID in a SNF warrants taking their relatives out of a problematic SNF for safety reasons.
Not only does DPH’s on-line “COVID-19 in Skilled Nursing Facilities” web page exclude reporting COVID cases among SNF staff, but it also reports resident cases in the 19 (to 20) SNF’s into a single aggregate summary. Ideally, DPH should be releasing and publishing up-to-date resident and staff COVID cases for each individual SNF on-line, since each SNF is required to provide daily updates to DPH. Displaying public data for the 19 separate SNF’s is not rocket science and would not require very much effort by DPH staff to maintain and update daily.
As of Tuesday, January 12 DPH reported 487 cumulative COVID cases and 53 COVID-related deaths for residents across the 20 SNF’s, but the edited screen shot shown here indicates that data was for the period ending December 31, 2020 — fully 12 days ago. By contrast, CMS’ web site reported data through December 27 that became available on January 7 publicly reported there were 298 cumulative COVID cases among residents across the 19 SNF’s in San Francisco and 50 deaths.
The difference between CMS’ data ending December 27 vs. data DPH is itself reporting through December 31 represents an increase of three resident deaths, and a whopping 189 additional resident COVID cases across those four days. It will take some time before the CMS data reports the same data as DPH reported for December 31.
More than likely, the 487 COVID cases among SNF residents DPH reported on January 12 is now far higher, given the surge in cases now underway and the likelihood the British COVID variant has probably been long on the loose in the Bay Area.
The screen shot also misrepresents the percentage of deaths among SNF residents to all COVID deaths in San Francisco. The 24% reported appears to use a more recent denominator for the 53 SNF resident deaths as of December 31. In reality, there were actually 194 total COVID deaths in San Francisco, so using 194 as the denominator means that the 53 SNF deaths as of December 27 represented 27.3% of all COVID deaths in the City, not 24%. This is but one example of SFDPH fudging its numbers.
DPH claims the data it presents on its SNF page needs a seven-day lookback lag period — compared to just a three-day lag for most all other COVID reporting elsewhere on its larger COVID Data Tracker web site. For example, the data reported on January 12 for Sexual Orientation cases on SFDPH’s COVID Data Tracker web site is updated daily and only lags back to January 9. If DPH can use a three-day look back period for most of the subsets of data it updates daily, it should use the same three-day lookback for reporting SNF data, which should also be updated daily — not 12 days or longer and only updated twice a week, on Wednesday’s and Friday’s.
To the extent San Francisco’s Board of Supervisors mandated that DPH publish sexual identity data on DPH’s COVID Data Tracker web site, the Board of Supervisor should mandate that DPH list the data for each of the 19 SNF’s and be updated daily.
LHH’s Family and Resident COVID Reporting
The federal CMS web site provides COVID data for each of the 15,000 SNF’s nationwide; CMS has an 11-day lag in case reporting. The most recent CMS data for the week ending December 27 became available for download on Thursday January 7, reporting there were 103 cumulative COVID cases among LHH staff, and 32 cumulative cases among residents.
However, LHH’s resident/family web page that I just inadvertently stumbled across, which had only recently become available, reported that as of January 8 there had been 149 staff and 53 resident cumulative cases. That represented an increase of 46 staff infections and 21 resident cases since the December 27 CMS report.
Four days later on January 12, the LHH resident/family web page reported that as of January 11 there were 157 cumulative staff COVID cases at LHH and 58 resident cases, another increase of eight more staff and five more residents across just three days since January 8. That’s an increase of 54 cumulative COVID staff cases and an increase of 26 cumulative resident cases since December 27.
To the extent LHH can update its resident/family COVID information web page daily, why is it the SFDPH only updates its SNF facility web site just twice a week, with an excessive lag in daily reporting?
I have to wonder how long it is going to take CMS to report updated LHH data for the week ending January 14.
So much for Breed’s reckless claim LHH was a national model on how to prevent the spread of COVID cases in SNF’s!
Postscript
The day after this article was submitted for publication, SFDPH updated its “COVID-19 in Skilled Nursing Facilities (SNFs)” web page on January 13, reporting case data through January 5, 2021 — given the seven-day lag DPH claims is needed for data validation. DPH should have provided data through January 6. That web page only reports SNF resident cases, and excludes any mention about SNF staff infections.
CMS reported that through December 27, there was a cumulative total of 379 staff COVID infections across the 19 SNF’s. SFDPH’s COVID in SNF’s web page mentions nothing about staff infections at all.
The data through January 5 reported a total of 564 cumulative resident COVID cases among residents and 59 COVID-related resident deaths across the 20 SNF’s. The previous update dated December 31 had reported 487 cumulative cases and 53 resident deaths from COVID.
That means in the intervening five days between the two most-recent reports, there were 77 additional SNF patient COVID infections and six more patient COVID deaths.
Again, CMS had reported that as of the week ending December 27, there were just 298 cumulative resident COVID infections in the 19 SNF’s and 50 deaths. So, SFDPH’s January 5 data suggests that in the nine days between December 27 and January 5 there were an additional 266 resident COVID infections (to 564) and nine additional COVID patient deaths in San Francisco’s 19 SNF’s.
Five of the additional nine patient deaths appear to have been residents of LHH, because CMS’ data reported LHH had one COVID patient death as of December 27 and LHH’s new Resident/Family COVID-19 Information Page web page reported a total of six COVID patient deaths as of January 13.
The Board of Supervisors needs to rapidly mandate that SFDPH immediately address its recklessly anemic SNF data reporting on-line by improving data reported, including — at minimum — cumulative SNF staff infections by facility name, and resident cases and deaths by facility name, and do so daily, not twice a week.
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 2021
Open Space or Empty Space?"
Invisible Affordable Housing on Public Land
Laguna Honda Housing Project Reduced to 100 Units?
by Patrick Monette-Shaw
Patrick Monette-Shaw
The adage “the more things change, the more they stay the same” has never been truer than when it comes to placing 100% affordable housing projects on San Francisco’s public lands.
Back in early 2019, Mayor Breed and her allies started planning to place “Prop. E” on San Francisco’s November 2019 ballot, hoping to convince voters that placing 100% affordable housing or teacher housing projects on public parcels throughout the City would help speed up affordable housing production in the City.
As I wrote in July 2019 (“Breed’s Blank Check: Re-Zoning Public Lands”), Breed and her allies asserted that placing housing on public parcels would save massive amounts of time in gaining approval to get affordable housing projects through the maze of zoning processes in the City and significantly reduce the time it takes get through the proposed projects pipeline.
During her June 11, 2019 press conference, Breed stated, in part:
“When we have an opportunity on public property that’s underutilized to build 100% affordable or teacher housing, we can do it without going through a lengthy two-year re-zoning planning process.
As I reported in July 2019, the San Francisco Chronicle published an article on June 21, 2019 with a sidebar that then showed land-use entitlements and re-zoning typically occur during environmental review of housing project developments during Step 4-A, a step that can take 12 to 24 months. (The sidebar has now vanished from the Chronicle’s web site.) The Chronicle reported that the re-zoning portion of the environmental review is concurrent and simultaneous with detailed design, permitting, and financing steps during the same 12- to 24-month period. Obviously, streamlining the re-zoning portion is not going to streamline the design, permitting, and financing process. Step 4 will still take up to 24 months.
Breed and her allies asserted that placing housing on public parcels would save massive amounts of time in gaining approval to get affordable housing projects through the maze of zoning processes in the City and significantly reduce the time it takes get through the proposed projects pipeline.”
There had been no real need to rezone all public land for 100% afford housing or teacher housing projects, precisely because the Board of Supervisors routinely rezones parcels — and does so relatively quickly. It has approved Special Use Districts in the past. They had that authority to do so all along.
Little has changed in the now nearly two years since Breed began planning her ballot measure, or in the 13 months since voters passed “Prop. E.” The status quo has essentially stayed the same. There was never any real need to re-zone public land Citywide.
Rip Van Winkle Oversleeps
During 2019 and 2020, the Board of Supervisors took a Rip Van Winkle-size nap. It overslept and just woke up.
Although the Board of Supervisors claimed to a City Hall source in June 2019 that it “only saw the Mayor’s [re-zoning public land] proposal” the night before she submitted it to the Elections Department on June 18, 2019, on the very same day the Department of Elections had two competing re-zoning measures posted on its web site, both carrying date-stamps of June 18, 2019. One of the two measures included one from four members of the Board of Supervisors (Supervisors Sandra Lee Fewer, Aaron Peskin, Shamann Walton, and Matt Haney).
Following the December 14 hearing, members of the public still have no idea of what specific projects are in the portfolio of affordable housing projects Peskin referred to on December 7.”
It’s thought that no public hearings were held at the Board of Supervisors before the four submitted their ballot proposal to the Department of Elections. Instead, it was introduced during a Board of Supervisors meeting on June 18 (on the same day it was submitted to the Elections Department) and assigned to the Board’s Rules Committee. The first hearing on the Board’s ballot measure was heard at its Rules Committee on July 11.
What this suggests is that the four Supervisors had to have been planning to introduce the measure long before June 18 in order to be certified “as to form” by a Deputy City Attorney.
The Board of Supervisors and Mayor Breed finally duked it out, and instead of placing competing ballot measures on the same ballot, Breed withdrew her version and a compromise bill reached voters on November 5, 2019 that voters passed.
The Board of Supervisors then began its Rip Van Winkle nap. Nothing further was heard officially about placing affordable housing on public land until December 7, 2020. That’s when the Board of Supervisors Land Use and Transportation Committee (LUT) scheduled a hearing to explore:
“… strategies the City can pursue to maximize the creation of affordable housing on public land, with a goal of 100% affordable, including a review of public land that’s been developed for housing or is under consideration for future development” and other related issues.
Why did the Board wait for at least 13 months to even begin considering strategies? Due to time constraints since the December 7 meeting lasted long, the LUT continued the hearing to its next meeting on December 14. But before the December 7 hearing was adjourned, I was able to testify verbally by calling into the hearing. I testified, in part:
“For at least the last 22 months — nearly two years — the Board of Supervisors has dragged its feet to consider strategies to maximize creating affordable housing on public land, given planning that had been underway as far back as March 2019 (or earlier) to place “Prop E” on the November 2019 ballot.
… So, it’s somewhat ironic that the Board of Supervisors is just getting around to holding today’s hearing to ‘explore strategies to maximize creating affordable housing on public land.’ It’s kind of like Johnny-come-lately coming late to the party, two years late.”
It was completely ridiculous that nearly two years had passed before the Board of Supervisors got around to exploring strategies to place affordable housing on public land. Wasn’t there any urgency?
I also testified on December 7:
“As part of today’s hearing, I urge the LUT Committee to require that MOHCD rapidly issue an inaugural quarterly report to Citizen’s General Obligation Bond Oversight Committee CGOBOC on planned projects for the 2019 Affordable Housing Bond. Here we are 13 months after passage of the $600 million bond in November 2019, and CGOBOC has not yet received any written reports from MOHCD describing projects planned for any of the various categories of affordable housing promised to voters in the bond.
Yes, 13 months after the bond was passed by voters neither CGOBOC, nor members of the public, nor the Board of Supervisors have any idea of what specific affordable housing projects will receive funding from the 2019 Bond.”
Following my testimony, Supervisor Peskin responded, saying:
“I appreciate the fact that the City, by and through MOHCD — and I’m not responding to the [previous] speaker [Patrick Monette-Shaw] — could communicate better about affordable housing deliveries. Having said that, we actually have a good portfolio to show.”
Supervisor Peskin’s rejoinder was wholly inadequate. While he acknowledged Mayors Office of Housing and Community Development (MOHCD) isn’t communicating well — with either members of the public, or with (CGOBOC) who performs oversight of all bonds passed by voters — Peskin’s assertion that there may be a “good portfolio” of affordable housing projects being funded by over $1 billion across three various affordable housing bonds was cavalier, because the portfolio of projects being funded by the 2019 Affordable Housing Bond is not available to members of the public as of today’s date.
The Board of Supervisors may have a general idea of proposed projects that may be funded from the first tranche of the 2019 Bond now moving forward, but MOHCD has admitted that documents submitted during the recent bond approval process are not an adequate report of planned bond-funded affordable housing projects.
When the LUT Committee held its continued hearing on December 14, MOHCD presented a PowerPoint presentation that dealt mainly with general criteria for placing affordable housing on public land. And the hours-long hearing on December 14 (available for review on the SFGOV-TV web site) didn’t really explore any new strategies to maximize the creation of affordable housing on public land.
Instead, the hearing was mostly a rehash of the difference between public land owned by City departments supported by the General Fund (which the Board of Supervisors has authority to legislate over) vs. public land owned by City “enterprise” departments — the latter of which are self-supporting departments that do not require or receive General Fund budget allocations from the City budget and whose revenue is restricted on how it can be spent because they generate their own revenues by charging fees for services — which the Supervisors do not have authority to legislate over.
A significant amount of discussion involved the appropriateness of placing market-rate housing on public land. MOHCD prefers mixed-use projects that include market rate housing to help subsidize the cost of building 100% affordable housing projects.
Of interest, during the December 14 hearing an oblique reference was made in passing that soon-to-be-replaced President of the Board of Supervisors, Norman Yee, “may have thought [the Supervisors] didn’t need a hearing to discuss one site that is in progress for affordable housing.” An inquiry has been placed to discover which site Supervisor Yee may have thought it unnecessary to hold a public hearing about.
Following the December 14 hearing, members of the public still have no idea of what specific projects are in the portfolio of affordable housing projects Peskin referred to on December 7.
Silence on Proposed LHH Housing Proposal
On October 6, the Board of Supervisors Budget and Finance Committee had to hold a hearing to approve moving forward with issuing the first $252.6 million tranche (slice, or portion) of the $600 million 2019 Affordable Housing Bond passed by voters in November 2019. The first tranche has not actually been sold, and it is thought won’t be sold until February 2021.
The presentation MOHCD made to the Budget and Finance Committee on October 6 indicated that $3.0 million of the first tranche would be allocated for construction of 100 of units senior housing on LHH’s campus. The $3 million is most likely for predevelopment expenses.
It’s not yet known if the 375 units of senior housing proposed by the developer, Mercy Housing, has been scaled back to just 100 units, or whether more housing units for LHH will receive additional allocations from subsequent tranches of the 2019 Bond. It’s also not yet known whether Mercy Housing has completed its financial feasibility analysis about whether the proposed 375 units are actually financially viable, which feasibility analysis may require Board of Supervisors approval.
To date, no public hearings have been held on the LHH housing proposal by either the Board of Supervisors or by the Department of Public Health’s Health Commission, which owns the land at LHH.
Of note, MOHCD and the Board of Supervisors had sold the first tranche of the $310 million 2015 Affordable Housing Bond on October 19, 2016, 12 months after voters approved the 2015 Bond. It appears the first tranche of the 2019 Bond will take at least 16 months before it is actually sold. There has been no explanation of why it is taking significantly longer for the first tranche of the 2019 Bond to be sold, and whether the delay may be COVID-related.
Also of note, within eight months of passage of the 2015 Bond, MOHCD issued its second report to CGOBOC on July 28, 2016 identifying projects by name planned to be funded by the 2015 Bond. But here we are 14 months after passage of the 2019 Bond, and MOHCD hasn’t issued to CGOBOC (or to anyone else, including members of the public) a preliminary status report of which projects (by name or location) will be funded by the 2019 Bond.
MOHCD claims it has not issued an initial report of proposed 2019 Bond-funded projects because the first 2019 Bond tranche hasn’t been issued. This stands in stark contrast, because MOHCD had released a report of 2015 Bond-funded projects at least three months before the first tranche of the 2015 Bond was issued. Why did MOHCD make a sudden change in its processes?
Is this something else that soon-to-be former-Supervisor Yee may have thought unnecessary, because it would alert members of the broader public of his pet LHH housing project, which is an inappropriate location for seniors and people who are disabled?
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 30, 2020
Photo courtesy of facebook.com/SFGHFoundation
Dear Supervisors ...
Naming of Zuckerberg SFGH and Trauma Center
by Patrick Monette-Shaw
This Resolution is long-overdue, but woefully inadequate.
Simply “urging” City departments to establish clear standards for naming rights for public buildings and public properties via an essentially unenforceable Resolution such as this is akin to “souffle is for people without teeth” — meaning, there is no real teeth to this Resolution.
To begin with, when Priscilla Chan and Mark Zuckerberg donated money to buy medical equipment for the replacement SFGH, the Health Commission did not have then — and does not have now — a formal process or procedure in place to name any of its buildings or property after any donor or after anyone.
This is similar to the Department of Public Health naming the main hallway in the replacement Laguna Honda Hospital Pavilion Building the “Louise H. Renne Esplanade” via Health Commission Resolution 15-10 a decade ago in 2010.
The same resolution simultaneously named a community meeting room in the Pavilion Building in the replacement hospital as the “John T. Kanaley Community Center.”
Those naming rights were granted without any public input, and without Board of Supervisors review and pre-approval.
SFGH isn’t Zuckerberg’s personal plaything, ”even if he and his wife did donate $75 million, in part to purchase fixtures and equipment for the replacement hospital. Just because his net worth is $101.2 billion as of November 2020, and Priscilla Chan’s net worth is $50 billion, that’s no reason for Zuckerberg’s name to despoil the good name of SFGH.
Ms. Renne had pledged to raise funds for fixture, fixtures, and equipment (FFE) for the LHH Replacement Hospital project … but in the end, her Foundation raised not one penny for the FFE. The State of California forced Renne to shut down her LHH Foundation in 2013. Naming that hallway after her — after she had failed to raise any funds for the hospital — was a complete joke.
Similarly, before his untimely death in 2009 Mr. Kanaley was widely despised for running roughshod over LHH’s staff, which the Health Commission had to have been aware of; that community room shouldn’t have been named in his honor.
SFGH isn’t Zuckerberg’s personal plaything, even if he and his wife did donate $75 million, in part to purchase FFE for the replacement hospital. Just because his net worth is $101.2 billion as of November 2020, and Priscilla Chan’s net worth is $50 billion, that’s no reason for Zuckerberg’s name to despoil the good name of SFGH.
Given the many scandals involving Zuckerberg and his Facebook platform, the Board of Supervisors should vote today that the Department of Public Health must remove the word “Zuckerberg” from the name of our General Hospital.
Go back to the drawing board and set a formal City policy — via an enforceable Ordinance — requiring that all City departments must obtain pre-approval from the Board of Supervisors before naming any City buildings (or portions of buildings) or any City property after any person.
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, 2020
Breed’s COVID-19 Recovery Sputters
by Patrick Monette-Shaw
Patrick Monette-Shaw
When it comes to our local COVID crisis, Mayor London Breed was pinned between “Yes” and “No” when it came to reopening San Francisco. She appears to have recklessly raced towards “Yes.”
As the San Francisco Examinerreported, one of Breed’s biggest actions to expand reopening of businesses and activities in the City was her decision on September 30 to allow restaurants to increase indoor dining capacity from 25% to 50%. At that point, San Francisco’s cumulative COVID cases stood at 11,275 confirmed cases, as publicly reported in daily postings online on the Department of Public Health’s (DPH) COVID Data Tracker webpage. Another 3,048 COVID cases occurred between October 1 and November 21, 21.3% of the cumulative total over a two-month period.
Sixteen days later on October 16, the Examinerreported Breed was publicly pushing getting children back into classrooms. Acknowledging opening schools wouldn’t be easy and tough choices would be required, Breed said “The School District and the Board of Education need to do what needs to be done to get our kids back in school.”
Tracking San Francisco’s COVID Data Tracker daily since it was rapidly developed and first rolled out online on approximately March 21, 2020 and paying close attention to the COVID data, many were alarmed by Breed’s insistence about getting kids back into the classroom for in-person education.
... paying close attention to the COVID data, many were alarmed by Breed’s insistence about getting kids back into the classroom for in-person education.”
DPH’s COVID Data Tracker reports 1,632 (11%) of the City’s cumulative COVID cases as of November 21 have involved children younger than 18 years old. Some observers believe pushing schools to reopen when 11% of our local COVID cases are among school-age children is simply reckless.
Breed’s anxiety about getting kids back in school sounded eerily like President Trump's tweets about the same issue. Like Trump, Breed is worried about reopening our economy and our public schools as quickly as possible. Does she think kids bringing COVID to other students and teaching staff and home to their families and their grandparents isn’t reckless?.
Of interest, on Thursday, November 19 Mayor Bill de Blasio ordered New York City’s entire public school system be shut down again to combat the rise in coronavirus cases.
Reckless Reporting of COVID Waves
Director of Public Health, Grant Colfax
Leading into Wave 2 of COVID cases in San Francisco, Mayor Breed held regular press briefings televised from City Hall, during which she regularly trotted out DPH’s Director of Public Health, Grant Colfax.
Then the pair went on hiatus, around the same time that Trump’s White House Coronavirus Task Force went into hiding.
It was not until around November 16 — well into Wave 3 — when Breed and Colfax came out of bunkers in their basements, begging San Franciscans to again change their behaviors and announcing news San Francisco had seen a roughly 250% increase in COVID cases between October and November.
But as the table above shows, the number of cases reported daily on DPH’s COVID Data Tracker reported no such thing: The daily reports showed there were just 1,067 COVID cases reported in October, and 1,924 cases reported in November (as of November 11). That’s nowhere near a 250% increase in cases reported.
And the Tracker web site does not display for members of the public any weekly or monthly summaries, and its difficult trying to capture summaries comparing month-over-month data sets. Instead, the web site features daily updates and cumulative data from onset of data collection to the current date.
On November 20 the Examinerreported Colfax claimed 217 COVID cases had been reported during the week of October 12, and 768 newly diagnosed cases were reported during the week of November 16. He indicated the quadrupling of additional cases over a one-month period portends San Francisco’s health care system could soon be struggling again to deal with the burden of the virus.
While the change from 212 cases to 768 cases does represent a 262.3% increase (through November 16, with almost half of November remaining), Colfax is rounding up from a 3.62 increase to a four-fold increase. He’s guessing cases quadrupled, but he ignores that occurred not during a traditional one-month period, but across 35 days (October 12 and November 16 inclusive).
The best members of the public can tell from the daily reports, updated online, is that rather than 212 cases during the week of October 12 there may have been 186 cases reported in the week ending October 12 (between October 6 and October 12) — or alternatively 228 cases reported in the week beginning October 12 (between October 12 and October 18), not the 212 cases Colfax claimed. He didn’t provide a date range to define the week.
Similarly, again calculating from the daily update Tracker reporting, rather than 768 cases during the week of November 16 there may have been 675 new COVID cases reported in the week ending November 16 (between November 10 and November 16) — or alternatively, 658 cases reported in the week beginning November 16 (between November 16 and November 22), not the 768 cases Colfax had claimed.
To the extent San Francisco is soon forced to roll back from the State’s Yellow Tier (the least restrictive) to the Purple Tier (the most restrictive) and re-impose more stringent lockdown protocols, this may be a result of Breed’s too-rapid re-opening of various businesses in a rush to revive the City’s economy and get kids back into public school. That, too, may prove to be callously reckless.
Nursing Home Recklessness
Breed — aided and abetted by Dr. Colfax and the Department of Public Health — have failed miserably when it comes to COVID cases in San Francisco’s skilled nursing facilities (SNF’s) for which data is publicly available.
Wierdly, data is either difficult to come by or simply not publicly available about COVID cases in other “congregate” living facilities in the City, such as board and care homes, Residential Care Facilities for the Elderly (RCFE’s), city jails, juvenile detention facilities, and other congregate settings.
Skilled Nursing Facilities Data
Sadly, it took until November 6 before DPH — under Breed’s reckless watch — began publicly reporting data about COVID cases in San Francisco’s SNF’s on DPH’s COVID Data Tracker web site.
And when it did begin reporting local data, DPH chose to only report data on the number of COVID cases among residents of the 19 SNF’s in the City. DPH is reporting just 208 COVID cases of residents in SNF’s, 1.5% of all COVID cases in San Francisco.
Completely absent on Tracker is data about the 216 (or more) known COVID infections among staff in the 19 SNF’s — which we know about from other public data sources. Why DPH chose to exclude data about staff infections is unknown, and hasn’t been explained. It should be something the San Francisco Board of Supervisors should immediately look into.
After all, we know of at least 412 COVID cases (between staff and residents) in the City’s SNF’s, despite Tracker reporting 208 resident-only COVID cases. Of those 208 cases, there have been 33 resident deaths, which alarmingly represents 21% of San Francisco’s current 158 COVID-related deaths, despite resident cases being just 1.5% of all COVID cases.
Back on May 24, San Francisco’s Board of Supervisors pushed DPH into tracking and posting on Tracker the number and percent mix of COVID cases among gays, lesbians, and bisexuals. Through November 21, Tracker has reported there are 476 COVID cases among gays and lesbians, 4.2% of San Francisco’s total COVID cases to date. As of November 21, there has been just one COVID-related death among gays and lesbians, representing just 0.8% of the City’s current 158 COVID deaths. There have been another 83 COVID cases among bisexuals (0.77% of total COVID cases in the City). Those Sexual Orientation and Gender Identity (SOGI) COVID cases barely exceed the 412 COVID cases in SNF’s.
By contrast, the U.S. Centers for Medicare and Medicaid Services (CMS) has been reporting the number of residents and staff COVID cases in all 15,000+ SNF’s nationwide since it first began reporting them on May 24.
Around the same time, the California Department of Public Health began reporting on-line COVID cases for both staff and residents in the state’s roughly 1,244 SNF’s.
California’s Department of Social Services also began posting data on-line for COVID cases in RCFE’s and Adult Residential Facilities (ARF’s).
Since the first CMS report May 24 about COVID cases among staff and residents in SNF’s, there have been 25 weekly updates. As of November 1:
Nationwide, there has been an increase of 405,661 COVID cases, to a total of 538,934 cases across the 15,000 SNF facilities.
In California SNF’s, there has been an increase of 35,619 COVID cases, to a total of 44,395 cases across the 1,224 SNF facilities.
At Laguna Honda Hospital, there has been an increase of 26 COVID cases, to a total of 92 cases at the facility.
Reckless Disregard for SNF Resident Visitation
Mayor Breed and DPH have shown callous disregard for the rights of SNF residents to have in-person, in-facility visitation with their families, friends, and caregivers.
After guidance from CMS allowing in-person visitation in SNF’s provided some conditions are met, the California Public Health Department also issued guidance authorizing in-facility visitation of residents in SNF’s.
San Francisco’s DPH issued guidance on September 4 allowing only outdoor and window-based visitation for SFGH and LHH patients, and also for other private SNF’s in the City. The guidance did not permit indoor visitation.
It was an egregious delay of CMS and State guidelines, since DPH still appears to be refusing to follow state guidelines about honoring human rights of the residents by allowing indoor visitation in the many facilities that are COVID-free, provided other conditions are met.
California Department of Public Health released updated guidance recently allowing indoor visits in 46 Red-, Orange-, and Yellow-Counties, along with other precautions and conditions — such as visitor screening for fever, everyone wear masks, and hand washing when entering the facility. Facilities must not have had any new COVID cases among staff or residents for the past 14 days.
An important caveat includes not allowing indoor visits in Purple Tier counties, which San Francisco is now at risk of becoming. Purple Counties have higher COVID prevalence, typically involving not being allowed to have indoor visitation.
Dr. Louise Aronsen, a noted geriatrician at UCSF, said she thinks we can safely say there is abundant evidence that 1) Ongoing visitation restrictions are leading to irreversible declines and deaths among nursing home residents, 2) Nursing home residents are being deprived of their civil and human rights in ways other populations are not — with the possible exception of prisoners, and 3) SFDPH leaders have been informed of this growing evidence-base repeatedly over a five-month period.
In addition to DPH leaders knowing this, so too must Mayor Breed. San Francisco’s November surge in COVID cases is intimately tied to Breed’s reckless re-opening of the City too soon.
If there’s one thing Breed knows, it’s the art of the tongue (with apologies to singer/songwriter Joni Mitchell).
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, 2020
No on Prop. A; Yes on Prop. E
Mayor Breed’s recent TV ads now claim the bond is for the City’s COVID “economic recovery.” That’s pure spin control, when not outright propaganda
Breed’s Prop. A Propaganda
by Patrick Monette-Shaw
Patrick Monette-Shaw
Just days before the November 3 election, Mayor Breed is desperately attempting to use blatant spin control to urge voters to pass the three-pronged “Prop. A” bond measure.
Prop A Bond Measure
As I wrote in the September 2020Westside Observer, San Franciscans are being asked to approve a hybrid $487.5 million general obligation bond measure that purports to tackle three disparate issues and three distinct types of projects. Tack on $472.5 million in interest projected by the City Controller. This bond will cost $960 million, just shy of $1 billion, between paying down the principal and interest.
$207 million (42.5 percent) for a vast spectrum of substance abuse, mental health, and homelessness “facilities.”
Since March 2000 voters passed three parks bonds totaling $800.5 million in principal and interest. If this new bond passes, the $239 million parks portion will cost approximately $470 million in principal and interest, pushing park bonds to approximately $1.3 billion.”
There ought to be a law prohibiting “ganging” three disparate issues into a single bond measure!
Since March 2000 voters passed three parks bonds totaling $800.5 million in principal and interest. If this new bond passes, the $239 million parks portion will cost approximately $470 million in principal and interest, pushing park bonds to approximately $1.3 billion. Perhaps we have too many parks and playgrounds, given San Francisco’s dwindling population of children as their parents flee to lower-cost environs.
Since March 2000, voters passed two bonds for street repaving and improvements totaling 1.2 billion in principal and interest. If this new bond passes, the $41.5 million street repaving portion will add $81.7 million in principal and interest, pushing street repaving bonds to a total of $1.3 billion.
The $207 million for homeless facilities enumerates 11 distinct types of facilities, including permanent and transitional supportive housing, shelters (currently closed during the COVID pandemic), psychiatric skilled nursing, respite, detox and sobering, and board-and-care facilities, among others. The $207 million won’t go far spread thinly across 11 facility types.
One problem is the City may have suspected voter fatigue might well doom another standalone $200 million homeless housing bond so soon after passage of the $600 million 2019 Affordable Housing bond, and the City may have deliberately “ganged” the street resurfacing and parks projects onto the November 2020 “Prop. A” bond to avoid voter fatigue killing another homelessness bond. Tossing in parks and street repairs may have been done to sweeten moods of voters.
But Mayor Breed’s recent TV ads now claim the bond is for the City’s COVID “economic recovery.” That’s pure spin control, when not outright propaganda. The TV add only discusses the street repair and parks projects, which (admittedly) may lead to jobs for City workers. But if my memory serves me, Breed’s TV ad does not mention the 11 types of homeless housing, again perhaps to avoid voter fatigue.
It’s thought the wheels were set into motion on this bond language long before COVID descended across America. So, in reality this bond is not — and was never planned to be — a COVID economic recovery bond. She’s blatantly spinning this propaganda just to garner sympathy votes for the homeless housing portion of “Prop. A.” Don’t believe her spin!
Vote “No” on Prop. A!
“Prop. E” Removes Police Minimum Staffing from City Charter
Elsewhere, I have encouraged San Franciscans to pass “Prop. E” because the City Controller’s payroll database for the fiscal year ending June 30, 2020 clearly shows the city already has 440 more sworn officers than mandated by the Charter.
The City Controller’s payroll database ending June 30, 2020 (FY 2019–2020) revealed SFPD had 2,411 named sworn officers, (including Police Officers, Sergeants, Lieutenants, and Captains) currently on the payroll, fully 440 more than the minimum staffing of 1,971 mandated by the 1994 changes to City Charter.
However, converting the reported regular hours worked plus the overtime hours worked by all of those 2,411 named officers into so-called “full-time equivalent” (FTE) positions — via dividing the total hours worked across all officers by 2,080 hours (annual hours for one employee) — calculates to 2,605 sworn officer FTE’s on the payroll, 634 more than the 1,971 mandated.
At a cost of $155,000 annually for each officer’s salary and fringe benefits, the excess 634 sworn officers may cost $98.3 million more than the Charter requires.”
At a cost of $155,000 annually for each officer’s salary and fringe benefits, the excess 634 sworn officers may cost $98.3 million more than the Charter requires.
The San Francisco Examiner’s editor preliminarily accepted my single Op-Ed on “Prop. A” and “Prop E,” but suggested I publish them as separate Op-Ed’s. Then the Examiner’s managing editor quibbled about my calculations and rejected both Op-Ed’s — even though the police overtime has nothing to do with the logic I presented urging voters to reject “Prop. A” — after I tried explaining to the Examiner that City Controller staff agreed my conversion of regular hours worked plus overtime hours worked by the 2,411 police officers indeed translates to 634 full-time equivalent employees (not merely 440 more officers) more than the 1,971 sworn officers mandated by the City Charter when their overtime hours are added to their regular hours, and the resulting total is extrapolated to full-time equivalent “warm bodies.”
The Controller’s Office expressly confirmed “[Sworn officer] FTE’s based on total hours worked in [FY 2019–2020] is 2,605, when overtime hours are included.” End of story, which didn’t sway the Examiner.
Upshot: My math is correct, per the City Controller, but the Examiner won’t budge an inch on an appeal I submitted clarifying the City Controller confirmed I am essentially correct, even if the Examiner has never seen official City records showing I’m right and that there’s nothing wrong with my math skills.
You can lead managing editors to water, but it’s no guarantee they’ll drink the water. Such hubris!
Vote “Yes” on Prop. E!
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 2020
Isolating Seniors on Northwest Parking Lot
Laguna Honda: Inappropriate for Housing
by Patrick Monette-Shaw
Six days after the City yanked funding in 2018 for a 150-unit senior project on the Forest Hill Christian Church property in 2018, Supervisor Norman Yee pitched a proposal to the Mayor’s Office of Housing and Community Development (MOHCD) thirty months ago in March 2018 to build 160 units of senior housing on Laguna Honda Hospital’s (LHH’s) campus.
Patrick Monette-Shaw
MOHCD promptly shot down Yee’s proposal, saying LHH’s campus “wasn’t big enough,” as noted in July 2018 Westside Observer. Indeed, the Assisted Living Workgroup of the so-called Long-Term Care Coordinating Council (LTCCC) appears to oppose Yee’s LHH housing proposal. The LTCCC prefers smaller six-bed facilities spread throughout the City, not “Monster-in-the-Mission”-sized developments.
Like an ostrich in search of a sand dune to bury his head in, Yee pressed ahead. At long last, news quietly surfaced on July 7 that Mercy Housing California has been chosen as the developer for the LHH housing project, after Mercy proposed building up to 375 units of independent housing and assisted living units.
If LHH was too small for 160 units, how is it now suddenly big enough for up to 375 units?
If LHH was too small for 160 units, how is it now suddenly big enough for up to 375 units?”
Yee’s pitch to place housing on LHH’s campus was a terribly misguided idea. There’s actually very little land on LHH’s campus that can be pressed into service for housing. Essentially, only two spots on the northwest side of the campus are viable, because the campus has largely been built out.
There are many reasons why the housing proposed for LHH’s campus is inappropriate. They include:
Eliminates Future Expansion of the Hospital: The spots where Yee and MOHCD envision placing housing on LHH’s campus are the last two large pieces of undeveloped land on the campus for construction. If Yee succeeds in placing senior housing on the same spot as the 420-bed skilled nursing tower that was eliminated due to cost overruns on the LHH replacement facility rebuild, it will permanently impede the City’s ability to build out additional medical facilities on LHH’s campus as the City’s population increases and ages.
Lack of Neighborhood Serving Retail: There’s absolutely no neighborhood-serving retail within an eight-block radius of the Laguna Honda Hospital campus. After hiking three to flour blocks down the hills to even get off of LHH’s campus, the closest grocery store and pharmacy — Mollie Stone’s and CVS — are on Portola Drive, at least an eight-block walk up steep hills, and difficult to access by public transportation.
Inadequate Public Transportation:LHH operates and funds a wheelchair accessible shuttle van using hospital employees to provide transportation for hospital employees and visitors between the Forest Hill MUNI Station and the hospital’s main entrance in its new Pavilion building. The shuttle van only operates five days a week, every 30 minutes between 6:30 a.m. and 6:00 p.m., leaving employees, patients, and visitors without a van transport on weekends and evening hours.
Transportation / Parking Impacts: The project will affect both transportation and traffic flow in the surrounding neighborhoods, and also exacerbate problems with parking on the campus.
My July 2018 article announced that the Department of Public Health is renovating the old “M” and “O” patient “finger wings” into administrative offices for up to 480 DPH employees being relocated from the Civic Center area, funding the project by issuing $60 million in Certificates of Participation. Obviously, adding almost 500 more employees plus 375 elderly renters onto the campus will affect transportation in the neighborhoods, and on-campus parking.
There will be additional drop-off and pick-up traffic by adding a childcare center and an Adult Day Health Care facility.
Alternate Site Is Even More IsolatedThe full version of this article documents several more reasons why the proposed housing site is more, not less isolated, and wholly inappropriate.
LHH Neighbors Ignore Project Scope Creep: Several LHH neighbors — including Joe Bravo, Walter Caplan, Dave Yoo, George Wooding, Midtown Terrace homeowners neighbors Timothy and Anne Poirier, Fr. Mesrop Ash, Evernease McKnight, Dena Williams, Andrew Sparks, Peggy de Silva, and Janis and Frank Lee — may be unaware of, or are ignoring, the scope creep to 375 housing units.
There’s much more to this story.
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 2020
COPs & Robberies & Bond Measures
by Patrick Monette-Shaw
Laguna Honda Hospital's old wings highlight a problem with COP's
No, this article isn’t about the uptick in a variety of crime increases and robberies facing the City and Westside residents. And COP’s in this article title doesn’t refer to police officers.
Instead, the acronym refers to another funding mechanism the City uses wantonly — Certificates of Participation (COP’s) — that don’t require voter approval but adds further principal and interest. Between general obligation bonds and COP’s, San Franciscans are essentially held hostage to what amounts to financial robberies.
There have been 16 general obligation bond measures since 2000. If this new bond passes, the 17 bonds will reach $6.2 billion in principal, plus an estimated $4.3 billion in interest, for a total of over $10.5 billion in bond debt service.
Problem is, Citizens’ General Obligation Bond Oversight Committee has held only one meeting in 2020, on January 27. Then COVID detonated. Unfortunately, CGOBOC never figured out holding remote meetings accessible to the public. CGOBOC hasn’t held meetings since January, and as of September 1, hadn’t developed a meeting schedule for the remainder of the fiscal year. As if public transparency regarding bond spending is no longer required.”
Oversight of bond spending was assigned to the Citizens’ General Obligation Bond Oversight Committee (CGOBOC) when it first created in March 2002, requiring each City department sponsoring a given bond to present formal status reports to CGOBOC twice annually. The following year, a ballot measure passed creating a City Services Auditor program mandating CGOBOC review all auditor reports in an additional role as the Citizens’ Audit Review Board, increasing CGOBOC’s workload. CGOBOC also performs oversight of the City’s employee whistleblower program.
Once again, we’re faced with a San Francisco general obligation bond measure purporting to tackle three disparate issues. The November Prop. “A” bond proposes a hybrid $487.5 million bond for three distinct type of projects, under the claim CGOBOC will provide bond oversight. Tack on $472.5 million in interest projected by the City Controller. This bond will cost $960 million, just shy of $1 billion.
This hodgepodge bond includes $239 million (49 percent) for parks improvements, $41.5 million (8.5 percent) for street repaving and curb ramps, and $207 million (42.5 percent) for a vast spectrum of substance abuse, mental health, and homelessness “facilities.” There oughta be a law prohibiting“ganging” three disparate issues into a single bond measure!
PARKS As for parks, since March 2000 voters passed three parks bonds totalling $800.5 million in principal and interest. If this new bond passes, the $239 million parks portion will cost approximately $470 million in principal and interest, pushing park bonds to approximately $1.3 billion. Perhaps we have too many parks and playgrounds, given San Francisco’s dwindling population of children as their parents flee to lower-cost environs.
STREETS Since March 2000, voters passed two bonds for street repaving and improvements totalling 1.2 billion in principal and interest. If this new bond passes, the $41.5 million street repaving portion will add $81.7 million in principal and interest, pushing street repaving bonds to a total of $1.3 billion.
HOMELESS FACILITIES The $207 million for homeless facilities enumerates 11 distinct types of facilities, including permanent and transitional supportive housing, shelters (currently closed during the COVID pandemic), psychiatric skilled nursing, respite, detox and sobering, and board-and-care facilities, among others. The $207 million won’t go far spread thinly across 11 facility types.
The CGOBOC Bottleneck
Despite its massive workload, CGOBOC changed its processes in late 2019: Beginning in 2020, the committee now meets only five times annually, and sponsoring Departments will present just one formal written status report on their bonds annually. A CGOBOC member assigned as liaison to a bond’s sponsoring City Department is supposed to make an informal update halfway through each year. As an aside, CGOBOC’s liaison to the Mayor’s Office of Housing and Community Development (MOHCD) on the 2015 and 2019 Affordable Housing Bonds — Jane Natoli — did not prepare an informal update for CGOBOC’s May 19, 2020 meeting, which reasonable people expected she would have prepared and submitted remotely, even though that meeting was cancelled due to COVID.
Problem is, Citizens’ General Obligation Bond Oversight Committee has held only one meeting in 2020, on January 27. Then COVID detonated. Unfortunately, CGOBOC never figured out holding remote meetings accessible to the public. CGOBOC hasn’t held meetings since January, and as of September 1, hadn’t developed a meeting schedule for the remainder of the fiscal year. As if public transparency regarding bond spending is no longer required.
Only on September 21 did CGOBOC get around to announcing its first remote meeting will finally be held on October 19 (assuming, of course, that the meeting isn’t cancelled again due a lack of quorum).
Of the $10.5 billion in principal and interest on the 17 bonds, over $1 billion involves Affordable Housing bonds. We’ve received no information about the spending of either the 2015 or 2019 Affordable Housing bonds since January. This new bond won’t receive sufficient oversight from CGOBOC.
An Example of Bad COP’s: Laguna Honda Hospital
As part of its exit strategy to vacate its seismically-unsafe headquarters building at 101 Grove Street adjacent to City Hall, the Department of Public Health announced in 2018 that it would issue $60 million in COP’s to convert LHH’s old wings into office spaces to accommodate moving 480 DPH employees from the Civic Center area to LHH’s campus, identifying the “O” and “M” patient “finger wings” at the rear of the old main hospital as the two buildings that would be renovated (which had previously been targeted for complete asbestos and hazard materials abatement before being completely demolished).
Then, a City Controller’s memorandum dated August 31, 2020 surfaced, showing the price tag of the COP’s for the LHH office conversion project had jumped to at least $84 million. The increase from $60 million to $84 million across just two years for the same project represents a 40% change increase since 2018.
The report on August 31 said the project had been switched to the “K” and “M” finger wings.
A subsequent records request uncovered that during the past two years the City fretted that it would lose a potential new site for future additional development on the campus using the location of the “L” and “O” finger wings. Wanting to preserve the “O” wing for potential demolition for future development or other re-use, the City switched the COP’s to renovating the “K” and “M” wings.
As designs progressed, structural engineering consultants informed the City that seismic renovation of the “M” wing was somehow tied structurally to the “O” wing. So, the City was forced to revert back this September to using the COP funding for renovating the initial “M” and “O” wings first envisioned. That delay tacked on $13 million, pushing costs from $60 million to $73 million.
During this two-year delay, Department of Public Works staff also realized the project could not simply replace selective windows — apparently included in the initial $60 million budget — but all windows would need to be replaced to meet the goal of a “natural ventilation ”system. DPW also identified additional seismic upgrades are necessary, and full hazardous abatement is required, rather than localized abatement.
DPW’s concerns tacked on an additional $11 million, pushing the budget for needed COP funding to $84 million. The pro-rata share apportionment of the larger COP Exit Strategy project will require approximately $52.4 million in interest payments, pushing the LHH renovation project portion to a total price tag of $136.4 million.
Rather than spending $136.4 million to renovate the two 90-year-old buildings, wouldn’t it make more prudent fiscal sense to demolish both of the two wings completely, and dedicate that $136.4 million toward new buildings that could last for another 90 years? This a prime example of why COP-funded projects are so bad for San Franciscans, which should be funded by capital improvement funds from the General Fund.
Vote “No” on Prop. A! It's another COP-out.
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 23, 2020
Open Space or "An Empty Lot (SFExaminer)?"
On Housing Proposal for Laguna Honda Hospital’s Campus
District 7 Candidates' Cavalier Responses
by Patrick Monette-Shaw
District 7Patrick Monette-Shaw
I distinctly recall a conversation I had a decade ago with a then-sitting district Supervisor when I sought help with an issue regarding Laguna Honda Hospital (LHH).
I was shocked then — and still am — by his response, in which he indicated that Supervisors tend to take a hands-off approach when it comes to issues about facilities in other Supervisor’s districts, and they routinely defer to D-7’s Supervisor (regarding LHH).
It was preposterous, precisely because LHH is not an “asset” reserved for — and subject to the whims of — a single district Supervisor. It’s a citywide public healthcare facility, and always has been.
It would be analogous to a Supervisor saying they were reluctant to address issues involving San Francisco General Hospital, which is located in District 10. Clearly, SFGH is also a citywide resource available to all San Franciscans, regardless of the districts they live in. Obviously, all 11 Supervisors should be involved in issues regarding both LHH and SFGH since their constituents rely on both public health facilities.
The Westside Observer featured an article in August 2020 surveying six candidates for District 7 Supervisor ... The questionnaire sent to candidates barely mentions whether housing on LHH’s campus is appropriate, but responses to three questions were informative.”
The Westside Observer featured an article in August 2020 surveying six candidates for District 7 Supervisor in the November 2020 election to replace Supervisor Yee, who is termed out. The questionnaire sent to candidates barely mentions whether housing on LHH’s campus is appropriate, but responses to three questions were informative.
“CEQA Streamlining” Question
The six candidates were asked whether the Planning Department’s “streamlined” Standard Environmental Requirements (SER) run counter to CEQA, and whether they support it. CEQA is California’s 50-year old Environmental Quality Act that was signed into law in 1970 by then-Governor Ronald Reagan a year after the National Environmental Policy Act was implemented at the federal level. CEQA was designed to supplement the new federal law with even stricter standards regulating pollution and preserving the natural environment. CEQA requires California’s public agencies and local governments to measure the environmental impacts of development projects or other major land use decisions, and to limit or avoid those impacts when possible.
Five of the six D-7 candidates don’t support the Planning Department’s SER. Only Mr. Pinto supports it.
Candidate Matranga replied saying “CEQA provides an important opportunity to study impacts of irresponsible development, such as landslides. I oppose the current SER proposal because the public will be shut out of the process and projects would be pushed through without discussion.” Matranga was the only one of the six candidates to even come close to noting that LHH’s campus is located in a landslide-prone neighborhood. He was not the only candidate to express concerns about shutting members of the public out of the discussion and development processes.
Candidate Murase thoughtfully responded by writing “I stand with the Sierra Club opposing the SER Ordinance being pushed through now while environmental advocates and the public are struggling against a global pandemic. … There must be full discussion on legislation that could undermine CEQA.”
Engardio wrote, “While I support less bureaucracy and more government efficiency, I am disappointed that the planning department chose to initiate changes during the pandemic when the community could not gather to express their views and concerns. … Planning has said the streamlining is not meant to avoid CEQA environmental review, but the manner in which they tried to push it through with minimal public input does not instill confidence. Developments that will change our neighborhoods for generations deserve robust community-driven review.”
Unfortunately, following his first two unsuccessful attempts at being elected D-7 Supervisor, Engardio neglected to mention there has been zero — not robust — community-driven input or review of Supervisor Yee’s proposal to build 375 senior housing units on LHH’s campus during the two-and-a-half-years since Yee introduced his proposal in March 2018.
Melgar responded to the candidate questionnaire saying she doesn’t support the Planning Department’s SER change, writing “CEQA is an important tool. This proposal attempts to shortcut community process by assuming environmental impact, and requiring mitigation of those impacts upfront. The problem with this approach is that it gives staff all the power, and assumes that community input is not valuable. I disagree.” Melgar also didn’t mention that there has been no community processes on Yee’s LHH housing proposal.
Candidate Nguyen replied, saying, “I oppose the SER Ordinance. As a general rule, I vocally oppose measures that reduce transparency and oversight, especially given the corruption at City Hall. SER would give the Planning Department and Planning Commission too much unilateral control over environmental issues. CEQA is one of California’s most important environmental safeguards and should be protected.”
Martin-Pinto was the only D-7 candidate who backed Planning’s change. Has he studied, or thought about the problem? Martin-Pinto wrote simply “I support any process that reduces bureaucracy and simplifies approval processes.” Apparently, Martin-Pinto doesn’t care whether members of the public are completely shut out of the process when it comes to development in their respective neighborhoods.
Of note, none of the six candidates mentioned anywhere in any their responses that the Mayor’s Office of Housing and Community Development(MOHCD) and Supervisor Yee’s LHH housing proposal has been designed over the past two-and-a-half years to avoid a new — or any additional — CEQA review of Yee’s LHH housing proposal. MOHCD and Yee are hoping to “grandfather” the now 375 housing units proposed for LHH’s campus by shoehorning it on to LHH’s initial CEQA review in 2002, despite the intervening 18-year period. They are willfully ignoring the fact that the now proposed 375 housing units are far more than the 240 assisted living units proposed in the CEQA review for the entire LHH rebuild project, but were never built.
the now 375 housing units proposed for LHH’s campus by shoehorning it on to LHH’s initial CEQA review in 2002, despite the intervening 18-year period. They are willfully ignoring the fact that the now proposed 375 housing units are far more than the 240 assisted living units proposed in the CEQA review for the entire LHH rebuild project, but were never built.
“Balboa Reservoir, Parkmerced, and Laguna Honda Housing”
Three or four 6-story buildings will likely be required to house 375 tenants
Candidates were asked — given the work-from-home and telecommuting trends resulting from the COVID pandemic — whether they support the need for the Balboa Reservoir development, Parkmerced expansion, and housing development on Laguna Honda’s campus.
Five of the six candidates responded without any apparent clear understanding.
Candidate Matranga replied predictably saying lamely “Many of these projects have been approved by the current Board of Supervisors. I believe it is critical that the incoming Supervisor ensure that promises made to our community are promises kept.”
What Matranga appears to have missed is that the full Board of Supervisors has not approved Supervisor Yee’s questionable proposal to build housing on LHH’s campus, and neither has San Francisco’s Public Health Commission, which essentially owns the land. Clearly, Yee’s LHH housing proposal has not been “promised,” so this can’t possibly be about keeping promises kept.
Murase responded by writing “No, we still need all of these developments because they represent important additions to housing stock, especially affordable and family-friendly units.” How did she completely miss understanding that the proposed LHH housing is not for family-friendly units?
Engardio wrote “The pandemic has not lessened the need westside residents have when it comes to senior housing to age safely in place near their neighborhood or middle-income housing for their adult kids and grandkid to remain in San Francisco. A reasonable amount of housing at Balboa Reservoir (with ample parking) could be helpful. But we shouldn’t give the public land away for a song!”
What escaped Engardio is that the senior housing Yee is proposing for LHH’s campus that the MOHCD is now trying to shove through does not provide for building the senior housing throughout the entire City or anywhere near their current neighborhoods. Instead, Yee is aiming to cram 375 housing units into a single neighborhood, District 7, that he represents. And the housing at LHH is not for middle-income adult kids of the seniors.
MOHCD floated this conceptual isometric design of the alternate LHH site in March 2019, six months before releasing an RFQ/RFP for the project in November.
Melgar, for her part, responded “No, all [of] those projects should go forward. … We are still very far from solving our housing shortage, particularly housing for middle income families.” Melgar doesn’t appear to understand that the housing proposed for LHH is not housing for middle-income families. Instead, it appears to be housing restricted to seniors earning between 30% and 80% of AMI, which is considered to be low-income housing.
Mr. Nguyen responded by saying “No. All of the developments above need to continue.” Clearly, Nguyen put no thought into this.
Candidate Martin-Pinto was the only one of the six D-7 candidates who appeared to have put any original thinking into his response, writing “Before we up-zone all of San Francisco which could have permanent, unintended, adverse effects, we need think about whether this is necessary.”
Martin-Pinto clearly missed the biggest adverse effect: if Yee succeeds at placing senior housing on the same spot as the 420-bed skilled nursing tower that was eliminated due to cost overruns on the LHH replacement facility rebuild, it will permanently impede the City’s ability to build out additional medical facilities on LHH’s campus as the City’s population increases to address hospital surge capacity.
The spot where Yee and MOHCD want to place housing on LHH’s campus is the last large piece of undeveloped land on the campus for construction. If it is used for housing, there will be no space left to build additional medical facilities on the campus as the City’s needs and population evolve.
Laguna Honda Community Trails / Photo courtesy trailforks.com
“Open Space” Question
Many neighborhoods surrounding LHH refer to the campus as the “Laguna Honda Hospital Open Space Reserve.” Whether or not it is formally designated as an Open Space worthy of protection, the trails are referred to as the Laguna Honda Community Trails System, which has received Open Space funding to restore the trails.
Candidates were asked whether they support preserving “Open Space” in the City for future generations. Open Space is broadly defined as undeveloped land not intended for housing or commercial purposes that is generally publicly-owned and open to the public. Indeed, as land owned by a government agency LHH’s campus is zoned “P” [Public], which prohibits any residential uses and essentially bars building residential housing on public parcels, unless the Board of Supervisors creates a Special Use District — which has not happened.
Five of the six candidates didn’t equivocate. Candidate Ben Matranga said he favors preserving Open Space, and opposes privatizing public parks. Candidate Emily Murase said she is committed to preserving these for current and future generations. Candidate Vilaska Nguyen says he supports preservation of our Open Spaces, and says we need to fight to protect and maintain them. Candidate Joel Engardio said there is limited open space in San Francisco, and added “We can’t give precious parkland space up for anything else.” Candidate Stephen Martin-Pinto responded saying he supports preservation of open space, because “There is little of it left and we need to protect what remains.”
The five of them should all fight aggressively to oppose privatizing any portion of LHHs campus, which is both public land and parkland, via LHH’s urban trails.
Only candidate Myrna Melgar hedged her bets, responding by saying “Some revenue producing buildings on parklands provide enjoyable amenities to parkgoers as well as needed revenue. As long as there is a transparent process that includes public input, follows contracting rules, and provides for periodic performance review of operators, I support revenue producing buildings on parklands.”
One problem Melgar all but ignores is that there has been absolutely zero public input regarding Yee’s proposal to build housing on LHH’s campus, and there has been nothing transparent about it since Yee first pitched his proposal back in March 2018. Another problem she ignores is that placing housing on LHH’s campus is not revenue-producing for the City. It would only be revenue-producing for a private-sector developer chosen to build the housing project.
Notably, none of the six candidates bothered to mention the Laguna Honda Trails, which encircles most of the perimeter surrounding the Laguna Honda Hospital campus and is considered to be Open Space. The trails were restored through a partnership between the San Francisco Urban Riders (SFUR), Laguna Honda Hospital, and other organizations to help construct a citywide network of bike-friendly trails. The trails also double for other uses, like hiking and trail running.
Nor did any of the six candidates bother to mention Laguna Honda Hospital’s entire campus — including its hiking and dirt bike’s trails system encircling the campus — has been locked down to members of the public and under quarantine for over six months, since March 6 when Mayor Breed issued her shelter-in-place quarantine due to the COVID-19 pandemic.
If housing is built on LHH’s campus, when the next inevitable pandemic hits San Francisco will the housing be exempt from some future campuswide quarantine, or will occupants of the housing also be forced into lockdown mode?
Yee has acknowledged that he had been working for four years, since 2016, to bring senior housing to 250 Laguna Honda Boulevard. Then he moved it to LHH’s campus. Four years later, Yee’s vision for his legacy project has gone nowhere, and should be abandoned.
All six D-7 candidates should re-evaluate their policy positions regarding placing housing on LHH’s campus. It’s a citywide resource, not a plaything of any incumbent D-7 Supervisor. District 7 voters and their supervisorial candidates should not forget that.
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 2020
City Managers Reject Breed’s Budget Plea
by Patrick Monette-Shaw
Pivoting from the COVID-19 fast ball to solving the City’s budget deficit slow ball, Mayor Breed pulled out her cudgel. She struck out.
She should have reached for an SFGH surgical scalpel. That might have prevented her own senior City managers represented by the Municipal Executives’ Association (MEA) from almost instantly rejecting her budget plea.
Patrick Monette-Shaw
Displaying sheer hubris, Mayor Breed demanded in the Examiner on July 31 that City employees postpone scheduled raises in December, raises Breed claims will save between $55 million and $270 million. They were actually raises due July 1, 2020 that had been first postponed automatically by explicit language incorporated into labor union contracts members had ratified and adopted before July 2019. Of course, she’s not mentioning that she’s now demanding a second delay to the long-scheduled raises.
That’s not a balanced budget; it’s a gaping hole she plans to solve by kicking pay-raises bargained for in good faith down the road.”
Stomping her foot and shaking her curls, Breed asserted that if City employees don’t agree to re-open and hopefully re-ratify their contracts by agreeing to delay raises they desperately need, layoff’s will ensue. She didn’t mention contracts between the City and its labor unions have not formally been forced to re-open since then-Mayor Newsom forced unions to re-open contracts in February 2009 to accept unpaid furlough days in lieu of a scheduled 3.75% pay raise.
Re-opening contracts to approve negotiated side letters mid-course may be routine. But re-opening contracts to alter negotiated scheduled pay raises rarely happens, even in San Francisco. You could count that using a single hand.
The $55 million represents just four-tenths-of-one-percent (0.4%) of the $13.7 billion City budget for FY 2020–2021 she submitted last week to the Board of Supervisors.
Breed’s second-year budget for FY 2021–2022 is $12.6 billion, for a combined total of $26.3 billion across the two fiscal years (FY 2020–2021 and FY 2021–2022). She also wants employees to defer additional raises already negotiated for FY 2021–2022, and claims she’ll save up to $270 million by deferring wage hikes in both years. Although $270 million would represent just 1% of the $26.3 billion combined two-year budget, both the $55 million and $270 million amounts Breed is tossing around appear to be bogus numbers.
Breed Ignored Two Budget Hurdles
When Mayor Breed met with her director of public policy and finance, the City Controller, and the Board of Supervisors’ Budget Analyst to prepare the March 2020 Joint Report required before developing the City budget for Fiscal Years 2020–2021 and 2021–2022 starting on July 1, 2020, all four knew the first hurdle involved a $1.7 billion budget shortfall.
When they met, they knew a second hurdle involved 50 separate union contracts staring them in the face that contractually promised pay raises on July 1, 2020.
They introduced a first-year budget of $13.7 billion for FY 2020–2021, adding another $1.4 billion above Breed’s $12.3 billion budget for FY 2019–2020, essentially ignoring the $1.7 billion budget shortfall. In fact, when the FY 2020–2021 budget was initially introduced in July 2019 and adopted as the then-second-year budget, it stood at $11.9 billion. But it grew by $1.7 billion to $13.68 billion when it became the first-year budget for FY 2020–2021, as if Breed and company had simply tacked the whole $1.7 billion shortfall onto the second-year budget adopted in July 2019, as if they were playing a game of pin the tail on the donkey or Whack-A-Mole.
When the four met to develop the new budget, they also knew the majority of contracts with City unions — including the MEA, MUNI transit employees, SEIU Local Per Diem Nurses, and SEIU Local 1021 Miscellaneous — all contained contract language to award employees three percent raises on July 1, 2020 and a half-percent raise on December 26, 2020, plus similar raises totaling an additional 3.5 percent during 2021. The contracts contained written clauses to postpone each of the four raises for up to six months.
The Examiner reported Breed said “I want to be very clear — if the unions don’t agree to delay their raises, then we will be forced to lay people off. We will be forced to cut city services.” She essentially threatened City employees, suggesting her hiring binge as mayor was somehow the employees’ fault.
Forcing Contract Re-Opener
The budget Breed announced and submitted to the Board of Supervisors on July 31 was not a balanced budget, as required, because it assumes she will succeed at hoodwinking City employees into delaying their scheduled pay raises for the next two years to reportedly save her $270 million. The only way she can do that legally is if unions members voluntarily agree to re-open their contracts, and she only has until December to get this done.
That’s not a balanced budget; it’s a gaping hole she plans to solve by kicking pay-raises bargained for in good faith down the road.
Breed’s playing a new game of raise-revoker, via a contractual do-over to postpone the July 1, 2020 raise a second time. Back in 2018, the City first got around to finally building into written labor agreements explicit language allowing postponing raises for up to six months when the City can demonstrate looming budget deficits of over $200 million. The three percent raises she wants postponed in January are actually the same three percent raises that were due on July 1, 2020 but automatically postponed, given existing contract language.
But she’ll have to get all unions to agree to re-open, and then re-ratify, their contracts to postpone that raise a second time to June 2021. If she succeeds, she’ll be the first mayor to ever pull the stunt of delaying a single pay raise twice. That’s not much different than Donald Trump stiffing his contractors and employees.
Cost of Raises Disputed
Within 24 hours after the Examiner article appeared in print, the MEA — which represents the highest-paid managers across the City who do such things as analyzing budget data for the Mayor — sprang into action and wrote to its MEA members on August 1 opposing Breed’s demand to forgo raises. The MEA’s position — standing in solidarity with all other labor unions — is: No layoffs. No wage cuts. And no furloughs.
MEA members — who all have a better understanding of City data than Breed does — documented that delaying the 3% raise due July 1 and delaying the 0.5% raise scheduled for December 26 would save Breed just $46.4 million, not the $55 million Breed claimed. And the MEA asserted the 3.5% raises for the following year in 2021 would save $48 million, for a combined total of $94.8 million across the two years, not the $270 million B.S. Breed pulled out of thin air.
The $270 million claim never made any sense. If the budget savings would have even been $55 million in the first year, why would it have mushroomed to $270 million in savings the second year? Breed’s math, once again, simply doesn’t add up. Maybe math isn’t her forte.
Breed Asserts Her “Sacrifice”
Piously, Breed flung gasoline on the fire, saying “I don’t think this is too much to ask. We all need to do our part to share in that sacrifice.” This is more hubris: What sacrifice has Breed shared in?
On July 1, 2018 she became mayor and her salary increased from $121,448 as a member of the Board of Supervisors to $322,073 as mayor through June 30, 2019 — a whopping 165.2 percent change increase in salary. That’s not what most folks call sacrifice.
Despite that $200,625 raise in pay, she accepted $5,600 split between two payments during 2019 from her subordinate, Mohammed Nuru, which she only belatedly got around to officially reporting to the Ethics Commission on May 29, 2020. Nuru first gifted Breed a $4,809 car repair bill on January 10, 2019.
After Nuru’s first gift Breed received another $28,462 raise on July 1, 2019 pushing her salary to $350,535 through June 30, 2020 — an additional 8.8 percent change increase in salary. Folks don’t call that a sacrifice, either.
Inexplicably, she then received Nuru’s second gift of a paltry $719 for a car rental 12 months later on Christmas Eve in December 2019 — after having pocketed $229,000 in City pay raises. Why was there a one-year delay between Nuru’s two gifts to her?
Decade-Long Mayoral Hiring Binge Was Unsustainable
If Lee or Breed learned nothing else as mayor, they should have at least learned that their decade-long patronage hiring binge of employees earning over $100,000 annually was unsustainable.
When Ed Lee was sworn in as Mayor on January 11, 2011 he inherited former Mayor Newsom’s FY 2010–2011 City budget of $6.6 billion. Two years later, London Breed was sworn in as a City Supervisor in January 2013; she became Board president two years later in January 2015. The ten budgets Lee and Breed submitted between FY 2011–2012 and FY 2020–2021 increased the City budget by $7.1 billion — to a staggering $13.7 billion — a 108% percent increase over Newsom’s final budget.
Lee and Breed added 8,398 City employees, resulting in 42,381 paid positions now on the City payroll through June 30, 2020. The extra 8,398 paid positions involved $1.48 billion in additional salaries (plus fringe benefits), pushing the City Controller’s payroll to $3.98 billion in total pay (before benefits).”
Lee and Breed added 8,398 City employees, resulting in 42,381 paid positions now on the City payroll through June 30, 2020. The extra 8,398 paid positions involved $1.48 billion in additional salaries (plus fringe benefits), pushing the City Controller’s payroll to $3.98 billion in total pay (before benefits).
Of the $1.48 billion in additional payroll costs since FY 2010–2011, 97% of the increase ($1.44 billion) went to the additional 8,630 employees now paid over $100,000 in total salaries. The 18,008 employees who earn over $100,000 now cost $2.7 billion annually. Just $42.3 million of the increased salaries went to employees earning less than $100,000 annually; there are now 24,373 employees who earn less than $100,000 as of June 30, 2020, down by 232 fewer employees in FY 2010–2011.
Among the new hires were 150 additional senior managers hired at MUNI (at an increased cost of $25.9 million), and 287 senior managers hired or promoted in the 50-plus additional City departments (at an increased cost of $74.3 million). Combined, the 437 senior managers have cost the City an additional $100.2 million in salaries (excluding benefits) alone.
Across that decade, Lee and Breed added 1,953 additional employees earning over $200,000 annually, at an increased cost of $458.8 million. In 2010–2011, there were just 267 employee earning over $200,000 at a total cost of just $60.3 million. The now 2,220 employees earning over $200,000 now cost a combined $519 million annually. The increase from 267 to 2,220 employees earning over $200K annually represents a 731.5 percent change increase.
Stepping down the salary food chain to those earning over $100K, the additional 8,630 employees earning over $100,000 annually pushed the total to now 18,008 employees earning over $100K, at a combined cost of $2.7 billion as of June 30, 2020. The 18,008 have average salaries of $150,012 (each) compared to the 24,373 City employees earning less than $100,000 annually, who have average salaries of just $52,591 annually (each). There’s that equity problem again!
Breed’s Own Hiring Binge
Lest anyone say the senior manager and excessive salaries hiring binge was all Ed Lee’s fault, a look at Breed’s own record is in order.
The City Controller’s payroll database shows that in the one-year period between FY 2018–2019 to FY 2019–2020 Breed eliminated 2,956 employees (from 27,329 down to 24,373) earning less than $100,000 in order to save her $38.1 million cut from the City payroll.
Across the same one-year period, Breed added 1,197 employees earning between $100,000 and $249,999 at an increased cost of $203.2 million, and also added an additional 135 employees paid over $250,000 at an additional cost of another $38.3 million. That was in her budget submissions, not Lee’s budgets.
On paper, it looks like the $38.1 million Breed saved by eliminating the 2,956 employees earning less than $100,000 was used to fund the $38.3 million awarded to the extra 135 employees earning over $250,000. Patronage cost-shifting never looked more transparent.
Where’s the Surgical Scalpel?
Breed’s message to her own employees was essentially “Let them eat cake.” They instantly understood she wasn’t watching their backs. She was watching her own backside, by doing the least amount of budget planning she could get away with. What she didn’t count on was that her own employees wouldn’t be so dumb by shooting themselves in the foot.
It’s clear Breed wanted to balance her budget on the backs of the City’s lowest-wage employees by demanding contracts be re-opened and all employees forgo scheduled raises. Luckily, the MEA seemed to have found its cojones. Instead of simply caving into her demands, the MEA sang Breed a sweet song: “Gee, Officer Krupke, Krup you!”
Instead of using an across-the-board budget cudgel that all employees forgo pay raises, Breed should have pulled out one of SFGH’s scalpel’s to surgically chop City salaries over $100,000 from the top, since those salaries seem to have metastasized during her watch. Maybe Director of Public Health Grant Colfax — wearing a face mask — could show Breed how to wield a scalpel, not a cudgel.
No layoffs! No wage cuts! And no furloughs.
An expanded version of this article with tabular data is available on the author’s web site at stopLHHdownsize.com.
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 2020
Is Hiding Data an Effective Strategy Against the Virus?
COVID-19’s Cruel Visit to Laguna Honda
by Patrick Monette-Shaw
Patrick Monette-Shaw
Four months into the pandemic, San Franciscans and Californians obtained little transparency from Mayor Breed or Governor Newsom, and even less accountability.
Both Breed and Newsom reversed course over the June 27 weekend, rolling back their premature re-opening plans. After all, neither of them has been transparent about COVID in nursing homes in the City and across the state.
Since COVID-19 surfaced four months ago SF’s Department of Public Health (SFDPH) refuses to report the number of infections among staff and patients in its 21 skilled nursing facilities (SNFs) on its website. That’s not transparency. It’s dereliction.
It’s not known why the data reported by each Skilled Nursing Facility directly to California Department of Public Health is considerably higher than the data reported to Center for Medicare and Medicaid Services, and whether the discrepancy is due to President Trump wanting CMS to “slow down” the testing and positive test results numbers nationwide. Nor is it known whether future reports to CMS will clear up the 5,410 disparity reported for California”
Similarly, California’s Department of Public Health (CDPH) refuses to accurately report the number of staff and patient infections in each of its 1,224 SNFs on its website. That’s not transparency either. SNFs are required to report each new COVID case within two hours. Promptly posting the full data — without “scrubbing” — should be relatively quick and easy.
Rather than aggregated data for each facility, CDPH obscures facility-level data by “de-identifying” cases — reporting only “<11” for facilities having fewer than 11 cases, claiming it does so to comply with the Health Insurance Portability and Accountability Act (HIPAA), the federal health privacy law. This is a pretext to avoid disclosing crucial data. Nothing in HIPAA prohibits releasing aggregate data that doesn’t include patient identifiers, so hiding behind HIPAA is bogus — there’s no way to identify patients from aggregated data.
COVID Visits San Francisco SNFs
While Mayor Breed announced on May 6 that San Francisco hadn’t flattened its COVID curve, data posted to the SFDPH’s COVID-19 Tracker website documented in the week ending May 9, 341 new positive cases, the highest weekly case total since March 7 when data collection began.
Mayor Breed knew that record was shattered in the week ending June 27 when weekly cases soared to 503, pushing total cumulative positive cases to 3,561, due, in part, to cases at Laguna Honda Hospital (LHH) that rose from 7 cases on March 26, to 29 cases on May 18, to 80 cases as of June 21, long after LHH prohibited visitors on March 6.
She also knew San Francisco had six additional COVID-related deaths during the 14-day period ending June 27 (over 10% of the City’s 50 deaths).
For Governor Newsom’s part, he knew that in the one-week period ending June 27, California reported an additional 35,567 cases — over 5,000 new cases each day and 406 additional COVID-related deaths statewide.
Finally, Newsom knew the Center for Medicare and Medicaid Services (CMS) reported an increase of 5,751 infections among staff and residents across California’s 1,224 nursing facilities in the five-week period ending June 21, pushing the statewide total to 14,527 infections in SNFs alone.
No wonder both Breed and Newsom reversed course on premature re-opening: The curve in the state hasn’t been “crushed,” let alone “flattened,” particularly not in SNFs and other congregate settings, like prisons.
Reviewing the timeline is instructive:
• It’s been four months — fully 124 days — since Mayor Breed issued her initial Statement of Local Emergency on February 25.
• As early as March 6, the City closed LHH to all visitors. Soon after, Health Officer Tomás Aragón prohibited non-essential visitors from all long-term care facilities within City limits.
• Over 100 days have passed since Breed’s shelter-in-place order on March 16, and since Newsom’s order on March 19. It’s 95 days six staff and one patient at LHH tested positive for COVID back on March 26.
• The next day, Breed wrote the U.S. Department of Health and Human Services begging for 110 federal employees to help “slow the spread of COVID-19 [and protect] our vulnerable skilled nursing residents.” (The feds sent only six federal doctors; her office claims she received no written response.)
• During April and May press briefings, she brought Dr. Grant Colfax, Director of DPH, to present updates and case counts at LHH. On May 1, news surfaced that DPH would conduct testing of staff and residents in all SNFs beginning on May 4 (it actually began at LHH May 6).
• On May 15, Dr. Colfax said cases at LHH rose from 7 (March 27) to 29 cases (18 staff / 11 residents). That was the last publicly released LHH’s case count. Breed’s press conferences essentially vanished.
• On June 2, DPH informed its Commission that testing in 17 of the 21 Skilled Nursing Facilities (SNFs) was complete.
• In response to a public record request for the number of COVID-positive patient tests uncovered in the completed 17 SNFs, and a list SNFs not yet completed, DPH had no: “responsive records at this time.” Tossing in — “We are committed to protecting the privacy and confidentiality of patients.”
CMS to the Rescue
Since last May, President Trump has successively claimed “If we didn’t do any testing, we would have very few [COVID] cases,” as if there would be no cases if there were no testing to detect new cases. As if!
Trump claimed in Tulsa on June 20, “When you do testing to that extent, you’re going to find more people; you’re going to find more cases. So, I said to my people, ‘Slow the testing down, please’.”
That was after Trump’s administration, on May 12 called for expanded testing of all nursing homes by the end of May.
Luckily, CMS came to the rescue, so we now have a modicum of facility-level data regarding infections in SNFs.
Despite Trump’s call for slowing down, his own CMS rolled out a new dashboard on its website reporting case counts for infections of both staff and nursing home residents in the 15,400 SNFs nationwide. All SNFs are now required to submit weekly update reports electronically to CMS.
Unfortunately, there’s an 11-day lag between reported data before CMS posts it. The data for the first week ending May 24 became available June 4. The latest data released on July 2 is worrisome.
CMS’ Nursing Home Data for California
Though SFDPH and CDPH chose not to release data for SNFs, data from CMS’ website became available.
It reveals that as of June 21, San Francisco’s 19 SNFs had 186 cases (104 staff / 82 residents), plus 18 deaths (all patients), up 26 cases since the week ending May 24, when there were 160 cases. Data for June 21 also reported 49 “suspected weekly COVID cases” (5 staff / 44 patients) that may convert to confirmed cases.
As for Laguna Honda, the data reveals (as of June 21), 80 cases (52 staff / 28 patients), up from 66 cases on May 24. The 52 staff cases at LHH represents 50% of the 104 staff infections across all 19 San Francisco SNFs. Data for June 21 also reported an additional 9 “suspected weekly COVID cases” at LHH (4 staff /5 patients).
The Mayor and the Health Commission knew these numbers as early as June 2 when SFDPH informed the Health Commission that 17 of San Francisco’s 21 SNFs had completed testing. (This may include two SNFs the City may utilize outside the City, whereas CMS only counts San Francisco’s 19 SNFs.)
CDPH and CMS’ Nursing Home Data Discrepancies
Comparing CDPH’s website to data posted on CMS’s new website revealed additional problems with the accuracy of the data.
The number of patient and staff deaths in SNFs statewide differ by 398 deaths (CMS reported a total of 1,991 staff and patient deaths in California SNFs through June 21, whereas data on CDPH’s website for June 21 reported 2,388 deaths).
Beyond deaths, the discrepancy of confirmed COVID positive infections reported by the two agencies differed remarkably.
CMS’s website reported 14,527 confirmed cases across California (6,089 staff /8,438 residents) as of June 21, but CDPH’s website reported a total of 19,937 confirmed cases (7,655 staff /12,282 patients) as of June 21, a difference of 5,410 total confirmed cases in California SNFs. It’s not known why the data reported by each SNF directly to CDPH is considerably higher than the data reported to CMS, and whether the discrepancy is due to President Trump wanting CMS to “slow down” the testing and positive test results numbers nationwide. Nor is it known whether future reports to CMS will clear up the 5,410 disparity reported for California.
Unfortunately, neither the CMS or CDPH websites include confirmed case counts or deaths that have occurred in Residential Care Facilities for the Elderly (RCFE’s) and other types of assisted living facilities; both of the two sites report data only for California SNFs.
California’s Department of Social Services (CDSS), which licenses RCFE’s in California, does post on-line separate data for COVID cases and deaths in RCFE’s and Adult Residential Facilities (ARF’s). Unfortunately, it doesn’t appear that there is a website that reports COVID infections and deaths in RCFE’s and ARF’s nationwide.
As of June 21, CDSS reported 2,969 confirmed COVID cases in RCFE’s and ARF’s, pushing the total from 19,937 (CDPH) confirmed cases (only) in SNFs to 22,906 confirmed COVID cases statewide.
Similarly, there were an additional 398 staff and patient deaths in RCFE’s and ARF’s, which pushed the death toll from 2,388 in (only) SNFs to a total of 2,786 deaths across the various types of elder care facilities statewide as of June 21.
The June 21 CMS data reported 1,566 suspected weekly cases in SNFs nationwide, including 49 suspected cases in 19 SNFs in San Francisco, and nine suspected cases at LHH.
Avoiding Transparency and Accountability
Adding to the dearth of transparency regarding infections in nursing homes across California, Mayor Breed has avoided accountability, failing to respond to multiple requests:
• No comment on having only 29 infections at LHH (18 staff / 11 residents) reported by Dr. Colfax on May 19, to 80 confirmed cases (52 staff / 28 residents) reported to CMS for the week ending June 21.
• No comment on the cases rising to 186 cases (104 staff / 82 residents) across all 19 SNFs in the City by June 21, given that Dr. Aragón ostensibly locked down SNFs to visitors two months earlier.
• CMS has reported 18 COVID-related deaths in San Francisco SNFs since the week ending May 24. Neither Breed, Colfax, nor Aragón have mentioned those 18 deaths (although DPH’s COVID-19 Tracker website does publish cumulative death data). Those 18 deaths represent 38% of San Francisco’s 48 COVID-related deaths as of June 21.
• No comment regarding COVID-19 Data Tracker deficit of information any of its sub-pages about cases and data in SNFs.
The devastation from COVID isn’t over. Not even close. Pausing the re-opening is justified, because the worst yet to come. Surely Breed and Newsom know this. Secrecy and misinformation from the highest levels of government have worsened the affects from COVID-19.
Forbes was right: The most important statistic is that well over 42% of COVID-related deaths in the U.S. have come from the 0.6% of the nation’s population living in nursing homes. None of these lives were “disposable” or “expendable.”
“How much worse will COVID-19’s cruelty in skilled nursing homes get before it gets better?” “Why can’t you produce truly transparent COVID-in-nursing-home data?”
A slightly expanded version of this article — containing a table showing data by facility name for each of San Francisco’s 19 SNFs — is available at stopLHHdownsize.com. A companion piece, written to be an historical summary of the first four months of the COVID pandemic nationwide and in California, is also available on the author’s website.
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 2020
COVID-19’s Impact on Affordable Housing Production
Public Records Are “Essential” in a Pandemic
by Patrick Monette-Shaw
M ayor London Breed is to be congratulated for issuing her shelter-in-place (SIP) Order on March 13 hoping to contain spread of the COVID-19 virus and flatten the curve from the global pandemic, and its impact on San Franciscans. She did so before Governor Gavin Newsom issued a statewide SIP three days later.
... journalists and citizens know trade-offs need to be made, including restricting inspection of records at City Hall ... But suspending access to public records altogether, even temporarily, is clearly dangerous to open government. That’s why transparency is even more essential during states of emergency ....”
Patrick Monette-Shaw
Hopefully, now that wider COVID-19 testing is belatedly beginning to occur in our City, her relatively early actions may sustain flattening of the curve.
But curiously, Breed’s SIP Order on March 13 raised some questions. That Order followed Breed’s declaration of a local emergency announcement on February 25. One question is why it took 17 days following the declaration of emergency before she issued her SIP order on March 13, particularly since she had issued an order closing Laguna Honda Hospital to visitors a week earlier on March 6.
Declaring a state of emergency is a procedural measure allowing a county to leverage state funds and mutual aid resources if cases of the virus are confirmed locally. The declaration of an emergency allowed San Francisco officials to secure emergency state and federal funding, and other resources and personnel, to accelerate emergency planning and expand capabilities for a rapid response.
Another question involves Santa Clara County, which issued its local emergency declaration on February 3 when its first two COVID-19 cases caused by international travel were initially reported. Why did it take Breed 22 days after Santa Clara had issued its emergency declaration before she issued San Francisco’s emergency declaration order? As our South Bay neighbor, weren’t the two counties coordinating on a regional basis with all nine Bay Area counties to simultaneously announce and implement uniform emergency declarations regionally?
Breed Clamps Down on Open Government
Breed’s antipathy to our local Sunshine Ordinance is well known, and dates back years to when she was president of the Board of Supervisors. On April 4, 2018 the Sunshine Ordinance Task Force ruled 7-to-0 that Breed had failed six times between 2015 and 2017 to respond to public records requests, and had failed to appear or send a representative on her behalf to 10 Sunshine Task Force hearings to explain why she had ignored responding to the records requests. The Task Force referred her failures to then District Attorney George Gascón for enforcement. (Predictably, Gascón took no action so Breed skated.) In addition, back in 2015 Breed initially voted as the lone dissenter on a Board of Supervisors vote on legislation requiring all City supervisors to publicly disclose their appointment calendars.
During an emergency, or a national public health crisis, journalists and citizens know trade-offs need to be made, including restricting inspection of records at City Hall and offices of other City agencies, and delays responding to records requests because of understaffing of government agencies. But suspending access to public records altogether, even temporarily, is clearly dangerous to open government. That’s why supporting government transparency is even more essential during states of emergency, to prevent long-term damage to our open government once the COVID-19 crisis eventually passes. (Unfortunately, it may be with us for a long, long time.)
Breed essentially has no patience for public records requests, following in the footsteps of her mentor, Wille Brown. Her record while on the Board reflects that she did not support open government.
Part of Breed’s March 13 Order temporarily suspended San Francisco Sunshine Ordinance §§67.25(a) and (b), the “Immediate Disclosure Request” provision in Sunshine that strengthened the California Public Records Act (CPRA) to provide for expedited release of public records. Ten days later, Breed issued a supplementary Order on March 23, further temporarily suspending Sunshine Ordinance §§67.21(a) and (b), which provide that members of the public can inspect or examine records in person at City offices open to the public, provided they comply with CPRA.
While it may be totally understandable that many City offices are closed during the COVID-19 pandemic because employees may be furloughed, are working and telecommuting from home, or assigned other duties as disaster service workers, suspension of portions of the Sunshine Ordinance is a matter of public concern. It’s also completely understandable that city agencies may have fewer resources to dedicate to public records requests, some city employees may be unfamiliar with particular records or may be physically separated from the records, and appropriate redactions may be harder to make due to employees working remotely.
What is not understandable is why Breed clamped down on our local Sunshine Ordinance, when Governor Newsom’s emergency orders did not waive responsibilities to respond to public records under CPRA. Breed shouldn’t have done so with San Francisco’s Sunshine Ordinance.
The City Attorney’s Office noted on March 30 that City agencies still have a legal duty provide public records promptly, have a legal duty to advise records requestors of the date on which an agency expects to actually produce requested records, and a duty to provide the records on a rolling basis. The City Attorney noted City agencies should make reasonable efforts to provide records to the extent feasible, and cannot adopt a blanket policy unnecessarily delaying or denying records requests carteblanche during Breed’s suspension of Sunshine.
The City Attorney’s “opinion” (which is an opinion, not a matter of settled law) gives the green light for City agencies to delay even starting to search for a given public record for a period of time, perhaps including not having to start a search for public records until after Breed’s temporary shelter-in-place order is lifted on May 3. But what happens if she extends her Order into June or July? Will that add even further delays in starting records searches?
Mayor’s Office of Housing and Community Development (MOHCD) Of grave concern, in response to a public records request about progress on the RFQ to select a developer for a senior housing project on the campus of Laguna Honda Hospital, the Mayor’s Office of Housing and Community Development (MOHCD) issued its “Emergency Policy on Sunshine [records requests]” on April 3, stating that it “may even be[come] necessary for MOHCD to delay the start of a search for records until [Breed’s] stay-at-home Order is lifted [in May].”
To a whistleblower, citizen watchdog, and columnist like me, that sounds like a dog whistle that MOHCD may end up implementing a blanket policy unnecessarily delaying or denying records requests carte blanche for any affordable housing projects currently being developed, in the pipeline, or under consideration.
After all, MOHCD is in the process of administering $1.2 billion in Affordable Housing Bond-funded projects (including the $310 million affordable housing bond passed in 2015, the $600 million affordable housing bond passed in 2019, plus the remaining $261 million from the PASS bond that was re-allocated to fund affordable housing).
Public records involving MOHCD’s stewardship of the affordable housing bonds should not be subject to having to wait for Breed’s stay-at-home order to be lifted before records searches even begin. How many other City departments have implemented, or are considering implementing, blanket policies to delay the start of searches for public records until Breed’s SIP Order is eventually lifted?
Advocacy Groups Support Transparency During COVID-19 Crisis
Obviously, openness in government is essential to the functioning of any democracy. California’s State Constitution stipulates in Article 1, Section 3(b)(1) “The people have the right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.”
On March 20, over 130 organizations — including the California First Amendment Coalition, the Society of Professional Journalists, and the Electronic Frontier Foundation — signed a letter calling for custodians of public records at all levels of government to leverage technology resources to make governance more inclusive, more credible and more accessible, and not to suspend compliance with public records laws providing transparency and accountability. Another article notes that legitimacy of government decision-making requires a renewed commitment to transparency during emergencies, particularly public health emergencies, now more than ever.
Surely in the heart of Silicon Valley, we currently have the technology to make transparency happen.
After all, the City’s current state-of-the-art technology enables staff working from home to remotely access all of their e-mail records, and other computer files on departmental network drives, so long as their respective City departments have made the features available with network permissions. While I’m not a lawyer or a technology expert, I know from past employment with the City that costs to provide remote network access are either non-existent because they’re included in the City’s Microsoft Outlook basic configuration contract, or minimal additional cost for such things as VPN access or network “authentication” permissions, given that the City has a $12 billion annual budget.
For mission-essential City employees, the technology is already largely in place to increase government transparency. That technology needs to be expanded to all boards and commissions, not just City employees.
Essential City Boards and Commissions
Unfortunately, too many policy bodies that provide essential functions have suspended their meetings indefinitely. Among them are agencies involved in affordable housing production. It’s time for Breed to re-visit which City boards, commissions, and policy bodies are essential and should fully resume their operations using remote meeting access.
Citizens’ General Obligation Bond Oversight Committee (CGOBOC) Breed’s various Orders have restricted construction of commercial buildings, but allow affordable housing construction to continue as an “essential” service.
However, the Citizens’ General Obligation Bond Oversight Committee (CGOBOC) has been affected by Breed’s Orders. CGOBOC not only is monitoring oversight of the $1.2 billion in affordable housing bonds, it also provides oversight of public health and safety bonds, parks bonds, Earthquake Safety and Emergency Response (ESER) bonds, Road Repaving and Street Safety (RRSS) bonds, other transportation and road improvement bonds, and other bonds.
Each bond program will have all issuances in the same appearance on the CGOBOC agenda, e.g., all Parks bonds regardless of year issue are all heard together during a single CGOBC meeting, and all three Affordable Housing Bonds are presented during a single meeting.
CGOBOC currently meets only five times per year, with meetings typically restricted to two or three hours each. Formal reports and presentations on the status of each Bond are made only once annually. Each bond is updated verbally by the CGOBOC member assigned as a liaison to various City departments at the CGOBOC meeting nearest to six months from their formal presentation date.
CGOBOC’s January 2020 meeting crammed in including reports about multiple Parks bonds, the ESER bond, a liaison report on the public safety bonds, and the three Affordable Housing Bonds. Strangely, next to nothing was presented in January reporting on the $600 million Affordable Housing bond passed in November 2019.
Then, after Breed had issued her local emergency declaration on February 25 and her SIP order on March 13, CGOBOC cancelled its March 16 meeting, which was to have heard formal presentations on the RRSS bonds and transportation bonds, and the six-month liaison report on the Parks bonds.
CGOBOC’s next meeting is scheduled for May 18 to hear liaison reports on the ESER and Affordable Housing bonds — provided it isn’t cancelled, too. But at this point, it’s doubtful that City boards and agencies like CGOBOC will resume their public meetings just 15 days after the SIP order is scheduled to be lifted on May 3, and for all we know now Breed may choose to extend the SIP again. Anthony Fauci believes SIP orders should remain in place at least through the end of May, not May 3.
Breed should not end social distancing and reopen San Francisco’s economy until we know the infection rate is nearly zero. That means not just flattening the curve. It means crushing the curve completely. That’s not going to happen within 15 days from May 3. That suggests she needs to turn to rapidly expanding remote meeting access for policy bodies like CGOBOC and MOHCD.
Breed needs to make sure CGOBOC’s meetings continue to be held — remotely, if necessary — and ensure each CGOBOC member and relevant City departments are able to hold meetings remotely by beefing up their state-of-the-art technology and access to conduct meetings remotely. Their meetings, involving essential bond-funded infrastructure and housing construction, should not continue being cancelled until we have a vaccine against COVID-19, perhaps a year to 18 months from now. If the Board of Supervisors is using technology successfully to hold remote meetings, then all policy bodies dealing with essential City business should be equipped for remote meetings, too.
After all, on March 17, 2020 the Board of Supervisors authorized their full Board and Sub-Committee meetings to convene remotely and allow for remote public comment, pursuant to restrictions on videoconferencing and teleconferencing that have now been lifted. All City policy bodies and City Departments should immediately implement videoconferencing and teleconferencing.
Stalled LHH Housing Project
Anecdotal reports have surfaced that MOHCD has had trouble getting affordable housing funds out the door for at least three months, even before Breed issued her SIP Order. And one project, the proposed 280-unit housing project on Laguna Honda Hospital’s campus Supervisor Yee proposed as his legacy, has run into a different roadblock.
In December 2019 I published “LHH Housing Proposal Ignores Dire Shortage of Skilled Nursing Facility Beds,” exploring why Supervisor Yee’s housing proposal was so hush-hush, in which I reported MOHCD had released an RFQ on November 18, apparently prematurely since the property was not then, and is not now, under MOHCD’s jurisdiction.
The RFQ indicated a selection panel would hold interviews with prospective bidders during the week of February 17 or the week of February 24, and an announcement of the developer team chosen would be made during the week of March 9. Yee managed to stack the selection panel with two hand-picked District 7 neighbors. And an external consultant to the Department of Public Health, whose company is on track to receive $7.2 million for bond planning services through the year 2023, Mark Primeau, appears to have also been added to the selection panel, replacing an actual DPH employee.
On March 10, MOHCD responded to a records request saying the selection process had been delayed until March 30, 2020, ostensibly because MOHCD needed additional time to organize the interview and review panel. MOHCD’s March 10 response was ridiculous on its face because a source who requested anonymity independently confirmed subsequently that the interviews with potential developers were, in fact, completed during the week of March 9, albeit two weeks later than the planned week of February 17 interview schedule initially announced.
Since then, even though the interviews were completed and the selection panels’ bidder scoring sheets were reportedly provided to MOHCD, MOHCD’s staff have dragged their feet for over a month, and have apparently not completed review of the external selection panelists’ interviews.
Does that mean the announcement of the developer chosen is being held hostage until Breed eventually lifts her SIP Order? If MOHCD staff do not have access to either videoconferencing and teleconferencing capabilities, or network permissions to remotely access all of their e-mail records and other computer files on departmental network drives, they should be provided with such technology immediately. After all, if Yee’s housing proposal for LHH’s campus proved not to be financially viable during or following the developer interviews, then MOHCD should move along and select another senior housing project elsewhere in the City.
COVID-19 We may have to prepare to go through a similar COVID-19, or a COVID-20, resurgence in the fall perhaps with more shelter-in-place orders, and perhaps further restrictions on physical (social) distancing and public meetings. We can’t allow funding and development of affordable housing to face further delays. As much as the public records are essential during this pandemic, so too are affordable housing units essential.
In future articles, I’ll explain why I have thought all along that placing this housing on LHH’s campus was terribly misguided from the beginning. But shut down of access to essential public records remains worrisome.
“It’s a Newspaper’s Duty to Print the News and Raise Hell”
A Civic Duty: Digitize Neighborhood News
by Patrick Monette-Shaw
Patrick Monette-Shaw
The deckhead for this article is a Wilbur Storey quote 159 years ago in an 1861 article in the then-Chicago Times. Back then, newspapers and journalists were unafraid of taking on the “Establishment” and raising some hell. It’s a sentiment widely held by those of us who’ve been privileged to publish in the Westside Observer over the years, and with which I strongly agree.
As the Observer migrates to an on-line-only news outlet printing the real news, please continue to support us as we start our new journey in raising hell.
The City’s mainstream media are not covering the real news of our hyper-local neighborhood communities, and in particular are not covering neighborhood and local news in granular detail as we do here at the Westside Observer.
Indeed, 50 years ago Time Magazine published an article1 in November 1970 noting large-circulation mainstream newspapers tend to be part of the Establishment, and, therefore, part of the problem. The Time article reported “San Francisco’s Examiner and Chronicle, for instance, are so comfortably settled that the … City has become one of the worst-newspapered cities in America.”
The Westside Observer has been a leading source of neighborhood news on the west side of San Francisco for the past 12 years, and even before it took over the West of Twin Peaks Observer.”
Time went on to praise Bruce Brugmann, publisher of the former San Francisco Bay Guardian Weekly, for improving the state of journalism in San Francisco.
During the past 50 years, the Examiner has gotten somewhat better after it added reporters Joe Fitzgerald Rodriquez, Laura Waxman, Joshua Sabatini, and others. But the Chronicle continues to omit covering local news in-depth, when not altogether, and buries local news often in the back pages of its paper. That leaves us still being one of the worst-newspapered cities!
Because the mainstream media ignores the problem of inadequate local news coverage, it’s left to our local neighborhood newspapers to flesh out details of local news.
As citizen-journalists, Observer columnists share a sense of duty to dissent by researching news that affects our neighborhoods, and to build opposition to City policies where needed. We’re here as an antidote to flesh out and publish news and raise hell! And we’re intent on evolving with the times.
The Westside Observer has been a leading source of neighborhood news on the west side of San Francisco for the past 12 years, and even before it took over the West of Twin Peaks Observer. In 2008, the San Francisco Neighborhood Newspaper Association had 20 local monthlies in the City. But with the recent news the Observer is ending its print edition, there will now be only eight neighborhood monthly newspapers in print in the entire City. Like other neighborhood papers, the Observer is expanding its former web site into an on-line-only publication.
The Observer grew into the best damn newspaper in town with great leadership from its publishers and a stable of contributing authors covering the entire spectrum of topics — from neighborhood issues not covered at all by our local daily newspapers to in-depth reporting, analyses, and commentary on citywide issues also not covered in any meaningful way by the mainstream media.
Our columnists are largely engaged citizens who routinely place public records requests to uncover details of stories the mainstream media neglect to research.
I’ve reflected on how I got here.
On a cool, slightly-cloudy 52-degree morning, I trudged up the 100-step staircase for my first day of employment at Laguna Honda Hospital (LHH) on May 17, 1999. I had no idea how my life would suddenly change.
I fretted the whole way up about whether I’d survive a six- to twelve-month probationary period, because I had been a very vocal “accountability” critic of the then-director of Public Health, Dr. Mitch Katz, and the San Francisco AIDS Foundation. So, I fretted about the potential for political payback, hoping I could last long enough to pass probation.
I published “The Fleecing of AIDS in America: Part 1 — San Francisco AIDS Foundation’s Unfair Distribution of AIDS Walk Funds” on July 15, 2001 after having stopped fretting about passing probation.
On July 20, 2003 I launched my first public website — TheLastWatch.com — dedicated to exposing accountability problems with “AIDS Inc.” By then I was no longer afraid of Katz, or then-Mayor Willie Brown. On October 1, 2004 I launched stopLHHdownsize.com to try to prevent eliminating one-third — 420 — of the 1,200 beds planned for the LHH replacement hospital.
In November 2004 I filed my first San Francisco Superior Court lawsuit against the City involving the downsizing of LHH, with pro bono representation from public-interest public-health ace lawyer Lynn Carman. The lawsuit sought to require the City use all of the Tobacco Settlement Revenues (TSR) to offset the LHH replacement project cost overruns, and sought to recover $25 million misappropriated from the TSR account earmarked to rebuild LHH.
In February 2008, I filed a second San Francisco Superior Court lawsuit against the City involving the Chambers Settlement agreement, again represented by Mr. Carman. The lawsuit sought to stop the Chambers Settlement mandate to eliminate 420 beds from the 1,200-bed rebuild project. I lost both public-interest lawsuits.
Also in February 2008, the Westside Observer published my first article “Downsizing Laguna Honda: Who Gets the Boot” which focused on reducing LHH to just 780 beds, and which patients would be forced out, perhaps out-of-county.
In March 2012, I received a James Madison Freedom of Information Award in the Advocacy category from the Society of Professional Journalists–NorCal Chapter for my articles in the Westside Observer as an advocate for LHH’s patients.
In January 2019 SPJ-NorCal awarded the Westside Observer the James Madison award in the Community News Media category, indicating the Observer “stands out among San Francisco’s neighborhood newspapers for fostering citizen journalism based on public records disclosures that shed light on city government and promote community engagement.”
Please bear with a slight digression: While employed at LHH I audited a UC Berkeley Extension course in writing after hours, where I stumbled across a seminal September 1997 essay written by Wendy Kaminer in The Atlantic, titled “A Civic Duty to Annoy.” Kaminer was then a contributing editor of The Atlantic, a public-policy fellow at Radcliffe College, and president of the National Coalition Against Censorship.
A Civic Duty to Annoy instantly became my all-time favorite essay. Kaminer’s premise was not that we have a civic duty to annoy others just for the sake of aimlessly annoying them. Instead her premise was that communities are not composed solely of people who share a single monolithic point of view, and never engage in conflict. She argued communities are built on compromise, compromise presupposes disagreement, tolerance presupposes the existence of people and ideas we might not like, and one test of tolerance is provocation.
Read her essay. You’ll understand why Kaminer concluded the piece writing “When you sit down to dinner with your disagreeable relations, or comrades who bask in their rectitude and compassion, you have a civic duty to annoy them” — to provoke them to think, to challenge their assumptions and beliefs, and to re-examine their premises.
I had no idea the Observer would continue to publish me for the past dozen years. I’m grateful to Mitch and Alice Bull, and Doug Comstock, in addition to my fellow Westside Observer columnists from whom I’ve learned so much, including Doctors Derek Kerr, Maria Rivero and Theresa Palmer who were also my co-workers at LHH, George Wooding, John Farrell, Glenn Rogers, Nancy Wuerfel, Kathy Howard, Lou Barberini, and Steve Lawrence, among many other Observer feature writers.
If you want award-winning news for the neighborhood and the whole City, follow us in our transition to an on-line-only publication. Please join us as we continue to digitize the news, raise hell, and provoke debate. We promise not to disappoint!
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 2020
Proposed Laguna Honda Housing Ignores Dire Shortage of Skilled Nursing Beds
by Patrick Monette-Shaw
Patrick Monette-Shaw
Thirteen days after San Francisco voters passed the $600 million Affordable Housing Bond on November 5, and also approved allowing construction of 100% affordable housing and teacher housing projects on public land zoned “P, Public” that previously barred residential housing on public parcels, the Mayor’s Office of Housing and Community Development released a Request for Proposal (RFP) to build housing on Laguna Honda Hospital’s (LHH) campus on November 18. Neither the Health Commission nor the Board of Supervisors held public hearings before the RFP was issued.
Project Proposal The RFP claims the project will include everything but the kitchen sink, including an unspecified number of independent senior housing rental units in studio and one-bedroom apartments restricted to those earning 30% to 80% of Area Median Income ($25,850 to $68,950 for a one-person household). Another portion of the project calls for an unspecified number of assisted living units, and an unspecified number of Residential Care Facility for the Elderly (RCFE) units, which are similar but a different kind of facility, collectively referred to as the “Assisted Living” component of the project.
... the City has dumped at least 1,659 San Franciscans into out-of-county facilities between July 2006 and June 2019 ... Despite having been asked repeatedly to sponsor legislation requiring all facilities report their number of out-of-county discharges annually, Yee has failed doing so.”
The Illusive Assisted Living Component The assisted living component hinges on a future “financial feasibility study” MOHCD hasn’t conducted. Worrisome, MOHCD, at its sole discretion, may elect to make the Assisted Living component a separate project under a separate RFP to ensure creating a financially viable sub-project. It may vanish if not viable financially.
The project also calls for an early childhood education center, and an Adult Day Health Center (ADHC) for an unspecified number of adults needing day care.
Where’s the Site? MOHCD claims the project will be built on an “unbuilt lot” adjacent to the two new patient towers of the LHH replacement hospital.
Laguna Honda's 'Unbuilt' Property"
The San Francisco Examiner reported November 21 city officials “envision” at least 200 units will be built. It’s unclear whether the 200 units are for the entire project, or just for the independent rental housing component of the project.
Approval Uncertain MOHCD is proposing to transfer the undeveloped lot site, subject to final approval by the Board of Supervisors and the Health Commission, to a qualified developer through a long-term ground lease. A prominent West Side leader who has attended multiple pre-planning sessions with Supervisor Norman Yee and his staff believes the project will be awarded two-thirds ($100 million) of the $150 million portion of the Affordable Housing Bond earmarked for senior housing.
This suggests the earmarked senior housing funds may largely benefit a single Supervisorial District, Supervisor Yee’s.
Major problems with the proposal.
First, the “undeveloped site” is a northeast spot on the Laguna Honda Hospital (LHH) campus that went undeveloped when 420 of the Skilled Nursing Facility (SNF) beds were eliminated from the planned hospital rebuild in 2010 after cost overruns soared to nearly $200 million.
In February 2016 the Health Commission documented San Francisco had lost 1,163 hospital-based and freestanding SNF beds between 2001 and 2015, a 52.3% decline in SNF beds.
The report also documented San Francisco faces a 1,745-bed SNF gap between supply and demand within 14 years, by 2030, in part because 192,000 San Franciscans aged 65 and older will comprise 20% of San Francisco’s population by 2030.
Second, the City has dumped at least 1,659 San Franciscans into out-of-county facilities between July 2006 and June 2019 from our two public hospitals and two of the six private-sector hospitals, in large part because of the severe shortage of in-county SNF beds. Despite having been asked repeatedly to sponsor legislation requiring all facilities report their number of out-of-county discharges annually, Yee has failed doing so.
The report also documented San Francisco faces a 1,745-bed Skilled Nursing Facility gap between supply and demand within 14 years, by 2030, in part because 192,000 San Franciscans aged 65 and older will comprise 20% of San Francisco’s population by 2030.”
Third, the proposed site is extremely far away from the Forest Hill MUNI station, making use of public transportation extremely difficult, given that the slope of LHH’s campus hills are prohibitively steep for elderly people to walk up, or down.
Fourth, there are virtually zero nearby neighborhood amenities — like grocery stores, restaurants, and pharmacies — within walking distance of the proposed site.
Fifth, prioritizing space for a childhood pre-school over space for SNF or Residential Care Facilities for the Elderly (RCFE) beds, or senior housing, is simply obscene. Seniors do not find “purpose,” as Yee alleges, babysitting three- and four-year-old barely-verbal preschoolers.
Sixth, LHH eliminated its long-existing Adult Day Health Care (ADHC) from the rebuild project, which should have been included in the replacement hospital.
Finally, the proposed site should be reserved for additional SNF beds, to capitalize on economies of scale and ready access to LHH’s existing medical services like the physical therapy and occupational therapy gyms, therapeutic swimming pool, nutrition services that provide meals to patients, and the hospital’s cafeteria, among others.
Yee’s Problem Yee may want a legacy of building more housing for the elderly, but he’ll forfeit a legacy of addressing the dire shortage of SNF beds.
Yes, there’s dire need for more senior housing and RCFE facilities. But failing to address the also-dire shortage of medical-based SNF beds may kill us all, or exile us out of county.
It’s time to stop pitting the need for additional SNF beds against the need for senior housing and RCFE beds. We desperately need more SNF beds on that “vacant” spot of land.
Here we are six months after first learning from Mayor London Breed about the outrageous abuse of 23 to 130 patients at Laguna Honda Hospital (LHH) dating back to 2016. We’re no closer to getting answers about key questions because the scandal remains shrouded in secrecy as an on-going State investigation.
On October 23, LHH’s leadership was finally fingered as primary contributor to the patient abuse and failure to report the abuse.
What’s the Police Department — specifically its Special Victims Unit — doing? Why hasn’t the State Attorney General’s Elder Abuse Unit filed charges against the perpetrators? And why hasn’t CDPH denounced the abuse and publicly released its findings?”
Fines Imposed On September 3, the federal Centers for Medicare and Medicaid Services (CMS) imposed a $1 million fine against LHH for the 156 days between February 6 and July 11, 2019 during which patient’s health and safety were in immediate jeopardy. Since 2007, LHH has been fined at least $1.35 million, but has only had to pay $966,295 because it received some 35% discounts by waiving its rights and not contesting the determinations and fines. The fines are expected to soar significantly higher.
The accompanying chart shows LHH received five major sub-standard care deficiencies in the California Department of Public Health (CDPH) July 12, 2019 survey, including the worst “L” finding, and received five additional lesser deficiencies during CDPH’s September 3 resurvey.
City Attempts to Protect Officials Even before Breed’s June press conference, LHH CEO Mivic Hirose was forced to step down, and LHH’s Director of Quality Management was removed. The City tried to block release of the director’s name claiming it was a “personnel matter,” but public records and a Google search easily revealed the name of the director — Regina Gomez, RN.
The two leaders were pushed out even before CDPH released its 61-page investigation July 12 survey report. The report revealed Hirose and Gomez were interviewed by CDPH investigators three times between May 29 and June 19 in the presence of a Deputy City Attorney and LHH’s Director of Nursing (DON). A Google search and public records revealed the DON was Madonna Valencia, RN.
Hirose, Gomez, and Valencia were also interviewed individually between May 29 and June 5. But Valencia wasn’t pushed out until October 7. What else surfaced to force her out three months after Hirose and Valencia were ousted?
On October 23, 2019 CMS rolled out a new abuse icon on its Nursing Home Compare website to alert the public about nursing homes cited for abuse violations. LHH’s CMS rating was promptly slapped with the red-hand “stop” icon.
During a Government Audit and Oversight (GAO) hearing on October 23, Supervisor Norman Yee asked whether LHH’s leadership had either ignored, or didn’t know about, the patient abuse scandal. Acting LHH CEO Margaret Rykowski responded, saying:
“[SFDPH’s] review … did identify deficits in executive- and management-level positions as a primary contributor … that allowed cases of abuse … to occur, perpetuate, go unreported, and be improperly investigated over extended periods of time. We’ve made initial steps [changing LHH’s] executive leadership, and will continue to make more, as needed.” Which “deficits” weren’t stated.
Some observers wonder whether the patient abuse went unreported to CDPH because LHH was then under a two-year period during which it could lose its license completely if it received a second “Class AA” citation from CDPH. “Class AA” fines are levied if abuse or neglect were a proximate cause of a patient death. LHH had received a “Class AA” citation and a $100,000 fine on December 23, 2016. As early as November 2, 2017 — within the first year — one of the five patients who had been drugged tested positive for Methadone he hadn’t been prescribed. He was drugged eight additional times with different opioids through August 2018. He died on September 2, 2018 while the two-year rule was still in effect. It’s probable LHH may receive another “Class AA” citation for his death.
Pensions, Penalties Pending? During the same GAO hearing, Supervisor Aaron Peskin asked whether it is true the terms of separation of the six nursing assistants apparently fired by May 6 include “the fact they can no longer access pensions.” As of November 22, that question hasn’t been answered, but should the three LHH leaders forced out also lose access to their fat City pensions?
Peskin also asked whether the City Attorney could sue the perpetrators for civil monetary penalties to help recover the City’s fines. Should the City Attorney should also sue the three LHH leaders for their failure to report the abuse to the State?
Many key questions remain. The California Advocates for Nursing Home Reform asked on September 11: What’s being done to bring the perpetrators to justice? What’s the Police Department — specifically its Special Victims Unit — doing? Why hasn’t the State Attorney General’s Elder Abuse Unit filed charges against the perpetrators? And why hasn’t CDPH denounced the abuse and publicly released its findings?
After all, the drugging of patients with unprescribed opioids was first detected and reported to LHH’s Medical Director, Dr. Michael Mcshane, as early as February 26, 2018 by doctors at other hospitals where five patients had been transported with life-threatening conditions, including respiratory arrest. Mcshane replied the same day that an internal investigation was underway at LHH. Did Mcshane ever conclude that internal investigation?
Culture of Silence In his November Westside Observer article, former LHH physician, Dr. Derek Kerr — wrongfully terminated in June 2010 in retaliation for whistleblowing — asked what had happened with investigations by LHH’s physician-run Medical Quality Improvement Committee and its Performance Improvement and Patient Safety Committee, since both committees have offered only silence. That mirrors LHH’s pandemic culture of silence.
Personally, I wonder why the San Francisco District Attorney’s Office hasn’t announced criminal charges in this scandal?
Oversight? A key part of DPH’s leadership problems extends to Health Commissioners Dr. Edward Chow and Dr. David Sanchez who have served as Commissioners for 30 years and 22 years, respectively. Both men served repeatedly on the Commission’s LHH Joint Conference Committee that is charged, in part, with receiving LHH’s Quality Management reports.
Hirose, Gomez, Valencia, Chow, and Sanchez all had to have known the December 2016 “Class AA” citation’s two-year period hadn’t ended. Is that why the patient abuse wasn’t reported to the State?
On November 19, CDPH responded to a records request saying “CDPH cannot comment on an ongoing investigation.” Why has CDPH’s investigation dragged on from at least May 29 to November 19 without conclusion? Stay tuned.
A greatly expanded version of this article with significant details is available at stopLHHdownsize.com.
Monette-Shaw operates stopLHHdownsize.com. Contact him at monette-shaw@westsideobserver.com.
December 2019
HSH Department head Jeff Kositsky told the packed audience at the Port Commission hearing that the city will dedicate beat officers to the Navigation Center site. Photo: KALW.org
Multiple Efficacy Problems Questioned
Invisible Successes Navigating the Homeless
by Patrick Monette-Shaw
Patrick Monette-Shaw
When it comes to solving the City’s multiple homelessness-related problems, San Franciscans desperately want the Emperor’s New Clothes to cover backsides of City officials, not “invisible successes” waltzing around exposing their rear ends.
Department of Homelessness and Supportive Housing (HSH) director Jeff Kositsky blurted that the Homeless Outreach Team’s (HOT) successes are invisible during a September 18 Board of Supervisors hearing to extend the HOT contract for two years at a cost of $15 million. Despite concerns about the HOT program’s effectiveness and efficacy, the full Board approved the contract extension.
Kositsky’s invisible successes may extend to the efficacy of additional homelessness services provided by HSH, including the contentious Navigation Centers and the dubious Healthy Streets Operations Center (HSOC).
The SFPD data didn’t include Part II crimes that are charged as either felonies or misdemeanors, including assault-and-battery, sexual battery, vandalism, weapons offenses, and drug abuse violations, among other crimes.”
Many Problems With Navigation Centers
San Francisco’s population is estimated to now be 897,166 and our 2019 homeless count stands at 9,700, representing just 1% of City residents. The San Francisco Examiner reported October 5, 2019 Mayor London Breed is merely covering up the homeless by “pushing them from one neighborhood to another in a fruitless game of whack-a-mole.”
In March 2018 the Westside Observer published an article reporting on a mayoral debate before the June 2018 special election. Mayoral candidate Angela Alioto noted “Navigation Centers are also dead-ends, good for 120 days, then back out on the street.” Alioto was overly optimistic about 120-day length-of-stays.
In October 2019, the Westside Observer published a terrific article by Lou Barberini. He noted both Mayor Breed and Kositsky issued identical public statements, wrongly claiming: “In general, we know the data shows there is no link between the creation of a Navigation Center and an increase in crime in the surrounding area.”
Barberini reported Breed and Kositsky relied on data compiled from SFPD’s Crime Data Warehouse. Barberini noted SFPD’s data included only four Navigation Centers, and excluded crime data regarding a fifth Navigation Center at Civic Center, a known high-crime area.
The “in general” nonsense is worse than Barberini reported. SFPD also failed to analyze before-and-after crime data for a sixth Navigation Center at 1950 Mission in another high-crime area, which closed in 2018. Worse, data provided to Breed only included eight FBI Uniform Crime Reporting Part I crimes, typically charged as felonies.
The SFPD data didn’t include Part II crimes that are charged as either felonies or misdemeanors, including assault-and-battery, sexual battery, vandalism, weap ons offenses, and drug abuse violations, among other crimes.
You can’t arrive at “in general” guesswork by omitting analyzing two of the six Navigation Centers, and omit analyzing Part II crime data. Were Breed and Kositsky trying to fool Embarcadero-area neighborhoods?
In their rush to proclaim no correlation between placement of Navigation Centers and crime rates, Breed and Kositsky ignored obtaining data from another source: 9–1–1 call center data from five Navigation Centers.
Data 9–1–1 supplied revealed 786 initial calls for service were placed from five Navigation Centers during the periods they have been operating. Fully 456 (58%) of the calls were related to clients experiencing medical issues.
Significantly, 219 (28%) of the 786 calls were related to criminal activity, of which 51 (23.3% of 219) calls involved assault-and-battery, an FBI Part II offense. Fights, verbal threats against staff or other, and people with weapons categories accounted for 87 (40.2%) of the 219 calls. A whopping 71 (32.4% of 219) calls involved trespassers, something undoubtably of interest to Embarcadero neighbors. Fully 116 (53% of 219) calls were placed from the Civic Center Navigation Center.
The 9–1–1 call center data goes a long way towards disproving the false “in general” assertion there’s no correlation between placement of Navigation Centers and increased crime.
The expanded version of this article explores another source of data shedding some light on correlation to increased crime rates: Critical Incident Report forms each Navigation Center is required to submit to multiple Kositsky employees.
High Costs of Navigation Centers
The high costs associated with Navigation Centers isn’t fully known. It’s approaching at least $101 million, with costs expected to rise as one “temporary” Center closes and replacement temporary Centers are constructed.
The accompanying table shows costs involved with seven Navigation Centers.
• $38.8 million has been spent between capital construction expenses and costs to lease sites. How much more will it cost to open additional Navigation Centers in every supervisorial district, and replace temporary Centers closed? • The $61.5 million in costs to operate the Navigation Centers will climb significantly when Kositsky awards a contract to operate the Embarcadero Navigation Center.
Kositsky’s staff eventually coughed up an explanation of the initial time-limited Navigation Center lengths of stays. Homeward Bound clients being sent back to other jurisdictions receive one- to three-day stays. Homeless individuals referred by HSOC partner organizations can stay for up to seven days. Other homeless individuals referred by Kositsky’s outreach staff can stay for up to 30 days, and can receive a one-time 30-day extension in certain circumstances. Homeless people having a priority status in Coordinated Entry or HSH Outreach programs can stay until they gain housing in permanent supportive housing.
This is part and parcel of the whack-a-mole problem, and nowhere near close to Ms. Alioto’s optimism of 120-day stays. Breed’s focus on forcing the homeless into 30-day and 7-day Navigation Center stays is not a sustainable substitute for real solutions to house the homeless.
HSOC Fiasco
The HSOC was created and activated on January 16, 2018 to coordinate efforts among City departments.
During a June 13, 2019 Budget and Finance Committee hearing, chairperson Sandra Lee Fewer noted: “Police officers [at] the Richmond [District Police] Station are saying ‘Yeah, officers get pulled for HSOC, and they don’t replace them. We’re short officers at district stations.’ [Whenever] HSOC or anyone comes in and does a sweep, we’re just seeing more homelessness, moving it around. … [Pulling] officers from [District] stations and outlying stations is a problem.”
Fewer said a mouthful on June 13! She said a second mouthful on June 21 when she chaired another Budget and Finance Committee hearing focused on staffing of the HSOC, saying: “I’m hearing from my own [Richmond] District [police] officers that, yeah, they get pulled off [their regular job duties] to go to the HSOC.”
One source, speaking on condition of anonymity, reported that one District police station is so shorthanded a lieutenant recently instructed a group of officers during lineup before starting their shifts “not to arrest anyone,” because the Station didn’t have enough cops to manage the District if two officers got tied up processing an arrest. Is Supervisor Fewer aware this is how bad the situation has gotten?
Is this a new “get-out-of-jail-free” card: “We don’t have enough officers to process your arrest because they’re deployed to the HSOC, so we’re not going to arrest you”? That essentially turns the concept of “nobody is above the law” on its head.
The HSOC’s efficacy was also called into question June 21.
• Supervisor Fewer repeatedly asked, but was unable to obtain an answer, about the total number of FTE’s (full-time-equivalent employees) the HSOC has, because the Board of Supervisors hasn’t seen the HSOC’s entire budget.
• Fewer asked Kositsky what impact the HSOC is having on the homeless population and whether HSOC is just duplicating efforts by the HOT team. Kositsky lamely responded the HSOC is intended to coordinate efforts across multiple City departments. • Supervisor Hillary Ronen peppered Kositsky with questions, fretting: I’m not sure it makes sense to continue to add additional staff to [the HSOC], because I’m not sure it’s having the intended impact.”
Kositsky responded saying they were having a hard time because staff were being swapped in and out of the HSOC, so “we’re struggling to capture data, because we don’t have any full-time staff [at the HSOC].” Kositsky stated to Supervisor Norman Yee that “our budget request is primarily to improve data collection.” Homeless people need actual housing, not better data collection. • Fewer concluded the June 21 hearing noting: “We just gave a nod to $4 million worth of new FTE’s to HSOC but I haven’t seen a [single] metric on impact and what [HSOC] has been doing, how well it’s been operating, and how many [employees] there are in HSOC.” She added: “There is much more that we need to know about the efficacy” of the HSOC.
A City Controller’s report on the HSOC noted that of referrals submitted by SFPD homeless outreach officers to the HSOC, “At present, there is no means to track how many HSOC referrals result in linkage to care.” Another “invisible success”?
The Controller reported the HSOC was activated in January 2018 as a working group to implement a combination of collaborative efforts across multiple departments using existing staff, not as a budgeted sub-unit cost center in any City department.
That changed in the FY 19–20 budget process. During Budget and Finance Committee hearings in June, 11 new budgeted positions to support the HSOC costing $4 million were approved and added to departmental budgets starting on October 1, 2019. Supervisor Fewer, clearly exasperated at times, couldn’t get a straight answer about how many police officers are assigned to the HSOC. Police Chief Bill Scott eventually indicated 40 police officers are detailed to the HSOC.
Still unanswered is how much it costs (in dollars and employees) to temporarily divert 40 police officers to the HSOC.
No Bang for the Bucks Efficacy
Expenditures on invisible successes from questionable efficacy of the HOT Teams, the HSOC, and the Navigation Centers are probably not going to save the tourism industry, or bring the American Medical Association back. Nor will it help solve San Francisco’s homelessness problems in providing the homeless stable housing.
The expanded version of this article at stopLHHdownsize.com includes additional data and discussion, including data obtained from “Critical Incident Reports” that each Navigation Center is required to submit to Kositsky’s Department of Homelessness.
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 2019
Vote “No” on Prop. “E,” Public Land Re-Zoning!
“Local Control” Excludes Neighborhood Input
Patrick Monette-Shaw
by Patrick Monette-Shaw
California cities have long been in a protracted war with the State over who should control housing decisions. Local control over housing and land-use policies were at risk, which the State sought to usurp.
Why would San Francisco seek to usurp hyperlocal (at the neighborhood level) input into local land-use policies? That’s essentially what Prop E — to re-zone public land (except parks) citywide in San Francisco — on the November ballot seeks to do. Prop E makes things worse, stripping out neighborhood input into local processes. It screams: “We don’t want neighborhood input.”
Sadly, two bills — AB-1487 (Assemblyman David Chiu) and AB-1486 (Assemblyman Phil Ting) — each contain provisions to allow privatization and appropriation of regional public lands. Both bills are sitting on Governor Gavin Newsom’s desk awaiting his signature.”
As the Westside Observerreported in July 2019, news surfaced June 19 that the Elections Department had received two dueling ballot measures to re-zone San Francisco’s public lands: One submitted by Mayor Breed, and the second submitted by four Supervisors (Supervisors Peskin, Fewer, Walton, and Haney).
Both proposed measures reeked of State Senator Scott Wiener’s various legislation designed to strip and override local planning rules by fiat, eliminating local control, like Wiener’s misguided SB-50 attempt to rezone the entire state. Sadly, two bills — AB-1487 (Assemblyman David Chiu) and AB-1486 (Assemblyman Phil Ting) — each contain provisions to allow privatization and appropriation of regional public lands. Both bills are sitting on Governor Gavin Newsom’s desk awaiting his signature.
Developers covet acquiring public land because it provides the private affordable housing industry opportunities for massive financial gain.
No public hearings were held prior to placing either of the dueling measures on the San Francisco ballot. After the Board of Supervisors blocked Breed’s separate Charter change ballot measure on July 11, she was forced to negotiate with the Board. Breed eventually backed down and withdrew her re-zoning Ordinance, leaving the re-zoning Ordinance proposed by four Supervisors on the ballot — now designated as Prop E — but without enough time to work out a compromise to the final ballot language before going to voters.
Clearly, San Francisco neighborhoods need better means for controlling land use, not just adding more housing, and each neighborhood should have input in controlling land-use decisions regarding public land in their own neighborhoods!
Prop. “E’s” Origins
Mayor Breed initially claimed to rationalize placing her citywide re-zoning measure on the ballot, only because it had taken over two years to re-zone the Francis Scott Key Annex on public property to allow building a teacher housing project. Breed ignored the fact that the project was delayed principally because design wasn’t yet completed and wasn’t awarded City funding before July 30, 2019. Breed’s pretext was laughable.
We debunked Breed’s baseless and untruthful claim in the Westside Observer. In July we reported that re-zoning — even if zoning changes take 6 to 12 months — occurs during Environmental Review while the developer works simultaneously on detailed design, permitting, and financing that can take up to 24 months. Eliminating re-zoning will not shorten the 24-month concurrent processes.
In our September article, even Supervisor Shamann Walton (D-10) noted on July 11, 2019 that the Annex should have been re-zoned “a couple of years ago.” Walton added, “We should not be giving away publicly owned land for market rate developments calling it affordable teacher housing.”
The Board promised trailing legislation would be written to reconcile differences between the two dueling measures. Now at the end of September, no trailing legislation has been presented during Board of Supervisors hearings. Adding to the insult that no public hearings were held beforehand, voters will also likely not see the trailing legislation before voting on Prop E.
Still unclear is whether developers will be given public land at no cost, whether they’ll purchase land outright at market-rates (income to the City), or if they’ll get long-term leases of the land. The ballot measure contains no discussion of whether developers will acquire public lands through fee simple sale, long-term ground lease, or prices below market-rate appraisal value. That issue wasn’t even included in the ballot measure, and a City Hall source thinks the issue won’t be clarified in the trailing legislation, either
It’s also unclear if the re-zoning measure will eliminate full CEQA review on each project, or whether the CEQA reviews will remain on a case-by-case basis. That likely also won’t be addressed in the trailing legislation, which may focus only on a peripheral issue involving 50% pass-through to tenants.
Prop E could deprive your ability and rights to improve projects through local jurisdiction appeal process hearings and may eliminate the Planning Commission’s discretionary review process to alter, change, or disapprove re-zoning of each parcel zoned “P – Public.”
Alphanumeric State Soup
Seven recent State legislative bills aim at eliminating local control over land-use and housing decisions. Two are discussed here briefly:
AB-1487, San Francisco Bay Area Housing Development Financing, Assemblymember David Chiu, Assembly District 17, co-authored by Senator Wiener. AB-1487 would allow for Bay Area regional ballot measures to raise money for affordable housing, perhaps through a parcel tax, gross receipts tax, employee head tax, commercial linkage fees, and bonds, or a combination of the sources.
Zelda Bronstein published a terrific article exploring AB-1487. I highly recommend reading her in-depth article. She noted pro-growth advocates view the bill as an opportunity to “facilitate the private appropriation and exploitation of the region’s public lands.”
Bronstein uncovered documents that show in early December 2018 the MTC and San Francisco Foundation helped fund a secret 42-person delegate, three-day junket to New York City, including Assemblyman Chiu and Chiu’s then-Chief of Staff, Judson True. The trip claimed to be “a learning session on New York’s housing funding and finance system.”
Bronstein reported that shortly after True returned from the New York jaunt, Mayor Breed announced on December 18 that she was appointing him as her Director of Housing Delivery. [True earned $108,084 in 2018 as Chiu’s Chief of staff; his salary working for Breed starting January 2019 jumped to $188,000 annually.] True’s job for Breed mainly involves streamlining the City’s permitting processes, which explains, in part, why Breed placed her competing measure to re-zone public lands citywide in one fell swoop to allow housing on public parcels.
After all, True helped craft the AB-1487 provision to allow privatization, appropriation, and exploitation of the region’s public lands.
Bronstein noted that acquiring public land presents key opportunities for developers to defer land acquisition costs, provides a possibility of receiving discounted land prices, and a chance to leverage the public land contribution or discount as a “local match” for competitive funding programs — all for financial gain — by acquiring land through fee simple sale, long-term ground lease, or prices below market-rate appraisal value.
Mayor Breed reportedly supports AB-1487. It was submitted to Governor Newsom for signature, which he will likely sign into law.
AB-1486, Surplus Land, Assemblymember Phil Ting, Assembly District 19, co-authored by Senator Nancy Skinner. AB-1486 is designed to ease privatization of public land, mirroring AB-1487’s goal of facilitating the private-sector appropriation of regional public land.
AB-1486 will require public agencies to offer their “surplus” land for development before leasing their property. It requires local agencies to offer the right of first refusal to affordable housing developers, schools, and parks before selling, leasing, or otherwise conveying their public land.
It was submitted to the Governor, which he may also sign into law.
Prop E Ain’t Necessary
Planning Department staffer AnMarie Rogers has noted that public land must be rezoned for residential uses, re-zoning to a density zone of RH-2 or greater. But Prop E doesn’t actually re-zone the Public land from “P – Public” to RH-2 or above; it simply expands Planning Code Section 211.1 by adding a new subparagraph “(i)” to expand principally-permitted uses in “P Zones” to include residential uses for 100% Affordable or Educator Housing projects. “P Zones” currently prohibit residential housing of any type.
Proponents assert Prop E “unlocks” and “repurposes” public “underutilized” lands to build affordable housing.
City Supervisors have already allowed placing housing on parcels zoned “Public” via case-by-case variances or creating Public Use Districts. Prop E ain’t necessary!
San Francisco’s 2006 voter guide included former City Attorney Louise Renne’s paid argument against Prop D to re-zone Laguna Honda Hospital, arguing it would permit private facilities on public lands. Calvin Welch’s argument against D worried it might allow private developers to build for-profit facilities on public land in public use districts.
Awarding public land so private developers can enhance profits is against the interests of the people.
Keep public lands in neighborhoods’ — people’s — hands. Vote “No” on Prop E.
The expanded version of this article available at stopLHHdownsize.com contains additional brief discussion of SB-728, SB-50, SB-167, SB-330, SB-592, AB-1487, and AB-1486, four of which Senator Wiener authored or co-authored.
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 2019
Vote “No” on Prop A: It’s a Lottery in Bond Disguise
Who Affordable Housing Bond Leaves Behind
Patrick Monette-Shaw
by Patrick Monette-Shaw
During the Board of Supervisors Rules Committee hearing on July 11, 2019 Supervisor Sandra Lee Fewer repeatedly asked: “Who are we leaving behind?”
If the $600 million Affordable Housing Bond passes this November, we’ll climb to over $1 billion across three general obligation bonds for affordable housing, plus $659.6 million in estimated bond interest, with little middle-income housing to show for it.
The 1996 bond promised building 3,000 new apartments, and home ownership loans for 1,000 families. Only 1,812 units — 60% — were produced. Just 340 loans were issued. Given 1996 failures, voters wised up and rejected two affordable housing bonds, one in November 2002 and one in November 2004, totaling $450 million.
Since 2014, the city has produced 710 affordable middle-income units, 710.” That is just 14.2% of the 5,000 middle-income units goal Mayor Lee had set for MOHCD. What an admission of failure!”
Voters should reject the 2019 bond, too, based on performance of the 1996 and 2015 bonds.
Kate Hartley, former Director MOHCD.
November 2015 Bond Disaster
Consider obvious problems with the $310 million bond voters passed in November 2015:
• Bond Issuance Delay: Now almost four years later, 30.5% ($92.5 million) of the bonds haven’t been issued and won’t be until sometime after October 2019.
• Housing Construction Delay: As of April 2019, four of nine projects funded by the bond were in construction; five projects still being designed hadn’t begun.
• Teacher Housing Delay: A Westside Observer July 2019 article debunked Mayor Breed’s untruthful assertion that the delayed teacher housing at the Francis Scott Key Annex site hadn’t broken ground only because of a two-year delay in re-zoning the parcel to allow constructing housing on public land. Breed should know $29 million for the project won’t be allocated until the third bond tranche is issued after October 2019. The project remains in the design phase.
The “Unit Counts” Bouncing Ball
Given its focus only on the number of units produced, the Mayor’s Office of Housing and Community Development (MOHCD) appears to have inflated its data, with the total unit count bouncing around over time. In June 2015, before being presented to voters, MOHCD claimed the bond would produce 1,435 units. In September 2017, MOHCD asserted 1,785 units would be produced. It’s probably more like only 1,003 units.
• Between the March 2019 loss of 53 senior housing units at 735 Davis, and loss of 56 planned senior units at 1296 Shotwell, 109 units for seniors were removed from bond spending. In December 2018, MOHCD removed 516 units previously included in the total counts because they were only for pre-development projects that shouldn’t have been counted. Pre-development expenses include “soft costs” like architectural, engineering, and legal fees, and other pre- and post-construction expenses.
• Inexplicably, MOHCD is still including in the total units count 445 Public Housing “units” — including 125 market-rate units — that are actually infrastructure projects for roads, sewers, etc. The 445 units are being constructed from other sources of funding, not from the bond. Infrastructure projects fund new streets, gas, sewer, and electricity, or new sidewalks, streetlights, and landscaping, not new or rehabilitated housing units.
• The 2015 bond allocates just $9.5 million (12%) for construction of 72 actual public housing units; the remaining $70.5 million is for pre-development or infrastructure expenses for the 445 units.
Removing the 445 infrastructure-only “units” essentially reduces the bond total unit count to just 1,003 units — 70%, almost one third less than the 1,435 promised. No wonder voters feel betrayed.
“Failure to Build” Middle-Income Housing
On July 11, 2019 MOHCD’s then-director, Kate Hartley, surprisingly blurted during her opening presentation to the Board of Supervisors: “We have failed in our efforts to build affordable middle-income housing.” She further claimed it costs MOHCD $100,000 more per unit to build middle-income housing because of the lack of federal and state funding sources. She then noted:
“If we’re putting $100,000 extra to put an apartment that is affordable to somebody at 100% of AMI, or 120% of AMI, then that means less affordable housing to other groups of people who are desperately in need, like people experiencing homelessness.”
There you have it: MOHCD isn’t interested in spending $100,000 extra for middle-income housing units (other than for educators), because it would negatively affect those who are homeless. Hartley was, in effect, pitting middle-income households against the homeless, holding middle-income households hostage.
The 2015 bond will produce just 121 middle-income rental units, 82 for teachers and only 39 for non-teachers.
November 2019 $600 Million Bond
With a straight face, MOHCD and the City claim the 2019 bond will produce or preserve 2,755 units — nearly triple the 1,003 units funded by the 2015 bond.
The 2019 bond has six sub-categories of projects identified, in part, by four focus groups convened by Board President Norman Yee and Mayor Breed. Concerns about the six categories are described in the expanded version of this article.
Of interest:
• $150 million is for Public Housing, $64 million (41.8%) of which is for infrastructure projects including seven new streets, calling into question whether constructing the actual housing will be from other funding sources
• $30 million is allocated to a misnamed Middle-Income Housing category, promising 90 units. It’s not middle-income housing. Instead, it’s a lottery program for the Down Payment Assistance Loan Program (DALP) and the Teacher Next Door (TND) program of forgivable loans, both for purchase and ownership of market-rate units. The category may fund middle-income construction, but only if cost-effective opportunities arise. The category doesn’t include funds for middle-income rental housing. The DALP loans are highly profitable, because the City collects a significant share of capital gains appreciation when properties are re-sold
• $150 million is earmarked for senior housing, claiming 500 new senior housing units will be created. Unfortunately, no meaningful gap analyses were used to measure housing preferences expressed by San Francisco’s senior populations for independent rental housing, vs. affordable board-and-care homes, vs. assisted living facilities, vs. skilled nursing facilities. This is important because over 1,659 San Francisco residents have been dumped into out-of-county facilities due to a severe shortage of such facilities in San Francisco.
$1 Billion Across Three Bonds
What housing are we getting for the $1 billion across the 1996, 2015, and 2019 bonds?
• Nearly 83% ($835 million) of the combined $1 billion were or are budgeted for public housing and low-income housing, including low-income housing for seniors and low-income residents in the Mission District
• Another 8.3% ($84.4 million) is, or was, budgeted for DALP and TND loans to purchase market-rate ownership units, reserved for households earning between 80% and 200% of AMI. Translating 200% of AMI in 2019 is $172,400 for a one-person household and up to $246,300 for a four-person household. It’s hard to find much solicitude or empathy for households earning 200% of AMI.
• Combined, fully 91% ($919 million) is allocated to low-income housing or loans to purchase market-rate housing ownership units.
• Just 9% ($91 million) of the combined $1 billion is allocated to other categories of housing, including 1% ($10 million) for 39 middle-income rental housing for non-teachers, 4.8% ($49 million) for educator-only housing, and 3% ($30 million) for other affordable housing preservation.
The bonds should be renamed “Low-Income and Market-Rate Housing Bonds” to reflect truth-in-advertising.
Middle-Income Households Left Behind
Hartley replied to Supervisor Fewer on July 11: “We have failed to build affordable middle-income housing.” That’s who is being left behind.
Hartley also testified that spending $100,000 more for a middle-income housing unit (other than for teachers) might deprive housing for the homeless. God forbid funding housing equity for middle-income households might impair housing for the homeless.
• Between 2007 and 2014 San Francisco produced a paltry 19% of the RHNA target for middle-income households earning between 80% and 120% of AMI — while producing 109% of the RHNA target for market-rate units for Above-Moderate income households earning over 120% of AMI.
Hartley also admitted on July 11: “Since 2014, the city has produced 710 affordable middle-income units, 710.” That is just 14.2% of the 5,000 middle-income units goal Mayor Lee had set for MOHCD.
What an admission of failure!
Given the multiple problems described in this article, Vote NO on Prop A in November.
The expanded version of this article at stopLHHdownsize.com includes additional detail about the 2015 Bond.
Monette-Shaw is a columnist for 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 2019
A Land-Grab Developers Will Love
Nature trails near Laguna Honda
Breed’s Blank Check: Re-Zoning Public Lands
by Patrick Monette-Shaw
Mayor London Breed should be commended for advocating for more affordable housing development.
But she’s playing from State Senator Scott Wiener’s disastrous re-zoning playbook. Wiener’s failed SB-827 and SB-50 involved legislation that would have undermined a long list of local controls over housing development.
Similarly, Breed is trying to override neighborhood input into housing projects by trampling on San Francisco’s local land-use controls.
...when Breed placed the re-zoning measure on the ballot all by herself, she must have understood she would be depriving both members of the public and the Board of Supervisors of any public debate or discussion about the merits — or lack thereof — of her proposal.”
Observers wonder whether she and Wiener are pandering to developers expecting quid pro quo campaign contributions.
Breed is putting three ballot measures on the ballot this November — a $600 million general obligation bond; a Charter change measure to hand 100% affordable housing projects “by-right” status that will deprive neighborhoods of input during public appeals and discretionary reviews, and prevent challenges under CEQA; and an Ordinance to re-zone all public land (except Park and Recreation property) to permit housing where residential housing is currently prohibited.
All three measures have serious problems. This article focuses on the re-zoning measure, arguably the worst of the bunch.
Citywide Re-Zoning of Public Lands
On June 11, Breed staged a press conference about the City purchasing 1515 South Van Ness from Lennar Multifamily Properties. She stated: “We have to be aggressive when it comes to getting more housing in the City. … The other thing that I’m proposing is an Ordinance, which I don’t have to go to the Board of Supervisors [for], thank goodness.
Breed wanted to place the “aggressive” measure on the ballot all by herself so she could sidestep opposition from Supervisors and members of the public. Breed could have introduced the same Ordinance to the Supervisors, and the Board could have approved it without asking voters to weigh in. They’ve done so before.
Clearly, when Breed placed the re-zoning measure on the ballot all by herself, she must have understood she would be depriving both members of the public and the Board of Supervisors of any public debate or discussion about the merits — or lack thereof — of her proposal.
Teacher Housing Project Misinformation
During Breed’s June 11 press conference, she implied delays with the teacher housing project at 43rd & Irving are due solely to zoning issues. Breed claimed: “Everybody is wondering why Francis Scott Key is taking an additional two years. Because the property is not zoned for housing.”
That’s pure nonsense. The delay was caused by multiple factors, re-zoning the least of them.
The Chronicle reported April 24 “developers have yet to break ground, in part because they had to apply to rezone the parcel …” On June 21, 2019 the Mayor’s Office of Housing and Community Development (MOHCD) admitted the project is still in its “design phase.” Third graders know you can’t break ground and begin building a project still being designed.
The Chronicle mentioned nothing about the three-and-a-half-year delay during which MOHCD has stalled issuing the third and final $92.5 million portion, or tranche — fully 30% — of the $310 million 2015 Affordable Housing Bond that won’t be issued until the Fall of 2019. The delay issuing the bonds may have contributed to the project not having broken ground.
MOHCD issued a Request for Development Proposals for educator rental housing on October 3, 2017. Six months later, MOHCD awarded development rights for the project to MidPen Housing in April 2018. It then took MidPen another seven months before it submitted a Preliminary Project Assessment (PPA) to the Planning Department on November 19, 2018. It took another four months before MidPen submitted additional applications for the project to Planning in mid-March 2019, including an Environmental application (ENV), a Project Profile (PRJ), a Zoning Map Amendment (MAP), and a Planning Code Amendment (PCA).
MidPen submitted a General Plan Amendment (GPA) to Planning for the project on May 1, 2019 to create a Special Use District for the property. So, in reality, MidPen’s re-zoning application for the project has been before the Planning Department for under 60 days since May 2019, not the two-years Breed wildly claims to rationalize her citywide re-zoning of public lands.
On June 17, 2019 the Planning Department reported “No project-specific hearings or re-zoning hearings have taken place, nor have any been scheduled” by either Planning or the Board of Supervisors on MidPen’s various applications.
“Against the Interest of the People”
Against this backdrop, the San Francisco Examinerreported on June 15 that another housing project proposed for Balboa Reservoir is against the interests of the community.
Community members are concerned selling public land to private investors is a bad idea. Labor journalist and City College advocate Steve Zelzter said:
“You are turning public land over to private developers — it’s against the interest of the people of San Francisco. We should not trust developers to take care of our interests and needs.”
Dueling Ballot Measures
News surfaced June 19 that the Elections Department received two competing ballot measures for November dealing with re-zoning of public land: One ordinance submitted by Breed and a second ordinance by four Supervisors (Supervisors Peskin, Fewer, Walton, and Haney). A side-by-sidecomparison sheds some light on their differences.
The Affordable Teacher Housing Program component of Breed’s proposal requires no less than two-thirds of the housing units must be deed restricted for affordable units. The other third can apparently be market-rate units (on public land re-zoned). That’s essentially a giveaway to Senator Wiener’s and Breed’s developer friends and campaign donors, and amounts to awarding public lands to DIMBY’s (Developers Invading Municipal Back Yards).
Inexplicably, Breed’s measure prohibits building both the 100% Affordable Housing and Affordable Teacher Housing components in RH-1 and RH-1(D) zoned neighborhoods, portending no teacher housing would be built on the West Side.
Breed’s measure contains a poison pill titled “Conflicting Measures,” which says in the event her Ordinance and any other measure(s) regarding 100% affordable teacher housing and regulation of Public (P) zoned districts appear on the same ballot, then the other measure(s) shall “be deemed to be in conflict” and her Ordinance will prevail (provided she receives more affirmative votes), and the other measure(s) “shall be null and void in their entirety.”
According to a City Hall source who spoke on condition of anonymity, the Supervisors “only saw the Mayor’s proposal” the night before she submitted it to Elections. The source noted:
“I think the Supervisors were clear in their statements … that they would prefer to do this work legislatively at the Board. But given that the Mayor has refused to sit down with the Legislative branch about any of her [three ballot measure] proposals, this [dueling measure] creates space to negotiate and work toward a compromise.”
Breed prefers to work by fiat.
If a single compromise measure is reached between the Mayor and the Board of Supervisors, they have until August 2 to submit a consolidated measure to Elections.
The best course of action would be to withdraw both competing measures from the ballot, and continue the current practice of having the Board of Supervisors hear re-zoning applications on a project-by-project basis, allowing robust public debate on the merits and impacts of housing developments on affected neighborhoods.
Disconnect on Number of Parcels
The Chronicle’s April 24 article noted Breed’s re-zoning measure would affect “about” 500 parcels zoned for public use that currently prohibit building residential housing.
In June 2018, the Planning Department provided a list of 930 parcels zoned as “Public (P)” by various Assessor “Use Types.” Weirdly, the list didn’t include a category for “Recreation and Parks” properties. Well over two-thirds of the 930 Public parcels are not vacant land on which the City can build affordable housing.
Nine parcels are our public hospitals at SFGH and Laguna Honda Hospital, which represent just 0.98% of the 930 parcels that we should reserve for medical facilities, rather than housing, in the future.
If there is going to be a re-zoning carve-out exempting Rec and Park property, there should also be a carve-out exempting “P” parcels with an Assessor’s “Use Type” of hospitals, too.
Laguna Honda Hospital Land Grab
Healthcare advocates placed Prop. D on the June 2006 ballot to re-zone LHH’s campus for only elderly and disabled San Franciscans. Opponents launched a meritless and brutal disinformation campaign, falsely claiming developers were engaging in a land grab to hand over LHH’s campus to private developers. The ensuing hysteria sank Prop. D, which voters rejected.
Ironically, Breed now wants voters to approve re-zoning all public parcels (except parks) to hand over to private developers.
The Westside Observerreported in July 2018 Supervisor Yee began pitching a proposal to MOHCD in March 2018 to build a six-story building with up to 160 units of senior housing on LHH’s campus, with a full spectrum for those who need assisted living, skilled nursing, and independent living options.
MOHCD’s director, Kate Hartley, shot Yee down, flatly claiming LHH’s site “wasn’t big enough.” Hartley also noted LHH’s campus is a Public (P) parcel that prohibits residential housing.
Yee tried again in December 2018, proposing a significantly larger “Life Care Facility” for LHH’s campus. That proposal was shot down, too.
Obviously, if LHH’s site is “too small” it shouldn’t be re-zoned to build market-rate teacher housing on the property!
Secondarily, LHH has worked with community partners to develop hiking trails on LHH’s campus, such that its recreational land should also be exempt. The Laguna Honda Community Trail project sponsored by San Francisco Urban Riders has been improving and restoring over two miles of historic multi-use trails at LHH since 2017, funded in part by Supervisor Yee’s District 7 Participatory Budget.
Vote No!
Breed and the Board of Supervisors need to clean house streamlining other bureaucratic delays besides zoning. Neither of the competing ballot measures will solve the other problems.
Re-zoning should be handled legislatively. There’s no reason for voters to be weighing in on this when the Board currently has authority to do re-zoning on a parcel-by-parcel basis.
Vote “No”!
An expanded version of this article with additional discussion is available at stopLHHdownsize.com.
Monette-Shaw is a columnist for SF’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 2019
Failure to Sufficiently Reconsider
High Costs of Wrongful Arrests and Convictions
by Patrick Monette-Shaw
Can you exonerate the truly innocent in a legal system having binary verdicts available: “Guilty” vs. “Not Guilty”? Unfortunately, the answer may be “No.”
I was stuck by this reading Preet Bharara’s book “Doing Justice,” in which he noted “There’s no such thing as a verdict of innocence.”
Bharara was the U.S. Attorney for the Southern District of New York from 2009 to 2017, when President Trump fired him. In his book, Bharara recounts several stories of innocent people who had been wrongly accused and forever injured because of a failure to sufficiently reconsider evidence and facts at multiple points in the criminal justice system, leading to injustice against innocent people.
In the end, San Francisco taxpayers will end up forking over well upwards of $53 million because police officers hadn’t gotten it right. A cast of prosecutors, judges, defense lawyers, district attorneys, and jurors also didn’t get it right, because of their combined failure to sufficiently reconsider. And the failure to reconsider shattered these innocent men’s lives.”
He recounts the case of a man who spent 17 years in Sing Sing prison for a murder he hadn’t committed along with five other defendants who had also been falsely convicted in a second murder. In 2013, the convictions against all six were overturned; the defendants received $3.9 million from the state and New York City paid the wrongfully accused $40 million in 2016.
The Innocence Project reported in March 2016 that between 1989 and 2012, wrongful convictions cost California taxpayers at least $221 million, including $80 million for costs of incarceration, $68 million for lawsuit settlements, $68 million spent on trials and appeals, and $5 million in state compensation for wrongful imprisonment.
That included $12.6 million in San Francisco for 97 wrongful arrests and convictions, and legal settlements and fees during that 23-year period. There’s been additional wrongful convictions and settlements since then.
As the Westside Observer reported last March, San Francisco taxpayers have had to foot the $90.7 million bill for City Attorney time and expenses plus settlement awards in 359 prohibited personnel practice lawsuits brought by City employees involving on-the-job bullying, wrongful termination, harassment, discrimination, and other practices between 2007 and 2018.
Wrongful Arrests and Convictions in SF
On April 3 a records request was placed to the City Attorney’s Office seeking settlements awarded to plaintiffs, plus the City Attorney’s time and expenses involved in wrongful prosecution, wrongful conviction, and wrongful incarceration lawsuits concluded in San Francisco between January 1, 1990 and December 31, 2018.
The City Attorney’s Office (CAO) responded on April 29, providing an Excel file listing 366 lawsuits, but excluded one pivotal case, which makes it 367.
The data reveals taxpayers have had to pay $53.4 million, at minimum, in City Attorney time and expenses plus settlement awards for 367 lawsuits against the City for unlawful arrest, excessive force by law enforcement officers, and other causes.
The data shows:
• Of the 366 lawsuits fully settled, 227 (62%) involved unlawful arrest, and comprised $22.6 million (56.2%) of $40.3 million in total costs.
• Among the 366 lawsuits, another 98 cases (27%) involved excessive force by police officers and “Other” types of actions by the police, comprising an additional $15.9 million (40%) of total costs.
• Of the 366 lawsuits, plaintiffs received $15.7 million (39%) in settlements, while the City Attorney racked up $24.6 million in time and expenses, 61% of total costs.
• Adding in the known $13.1 million settlement in the Trulove lawsuit, total costs grows to at least $53.4 million, which will increase when the CAO finally settles Trulove’s case and releases the CAO’s time and expenses.
Had more of Bharara’s admonition to sufficiently reconsider been given before unlawfully arresting people and using excessive force, perhaps taxpayers would not have been on the hook for the $53.4 million (and growing) costs!
Four Cases: Wrongful Incarceration
Among the lawsuits filed in San Francisco, four men were innocent, but wrongfully incarcerated. Costs of their cases involve $30.8 million, and still growing.
• Caramad Conley: Conley was wrongfully convicted in 1994 and sentenced to serve two life-without-parole terms for a 1989 drive-by shooting that left two dead and injured 11 others.
Superior Court Judge Marla Miller ruled in December 2010 that Conley had been denied a fair trial, and was wrongly and unconstitutionally convicted, in part because material information was not provided to Conley’s lawyers. The lead police investigator in the case, Earl Sanders — who later became San Francisco’s Chief of Police briefly — knew a witness had committed perjury, but didn’t correct the false testimony. It wasn’t the only case in which Sanders withheld information from defense lawyers, a Brady offense.
Conley was released in January 2011 after serving 18 years in prison.
• John Tennison and Antoine Goff: Tennison then 17 and Goff then 19, were charged with first-degree murder of Roderick Shannon on August 19, 1989. Police claimed the pair of men had been identified by two teenage eyewitnesses, one girl 14 and another girl 11.
The Court ruled prosecutors and police had information that another person might have committed the crime but did not disclose it during the trial. Tennison and Goff had filed complaints alleging numerous Brady violations.
Prison Legal News reported that two SFPD investigators — Earl Sanders and Napoleon Hendrix — had coached the 11-year-old girl who witnessed the shooting and had suppressed a video-taped post-trial confession by Lovinsky Ricard, the actual killer. In 2002 Sanders and Hendrix were accused of misconduct and colluding with prosecutors in suppressing Ricard’s confession. That confession and other information was also never turned over to Tennison’s and Goff’s defense lawyers.
U.S. District Court Judge Claudia Wilken overturned Tennison’s conviction on August 26, 2003.
• Jamal Trulove: In 2010, Trulove was convicted of murdering his friend in 2007 at a Sunnydale housing project. A state appeals court overturned his conviction in 2014. A second jury acquitted him of murder at retrial in 2015, finding that the police had, essentially, framed him.
In 2016, Trulove sued four named SF police officers involved. “A federal jury determined that the two lead homicide inspectors on the case, Maureen D’Amico and Michael Johnson, not only made up evidence against Trulove but withheld evidence that would have helped him.”
CBS News reports Trulove accepted a $13.1 million settlement in exchange for the City dropping its appeal of the $14.5 million in damages a federal jury in Oakland had awarded him last year.
Of note, both the Conley and Tennison/Goff cases involved the same police investigators, Napoleon Hendrix (who has since died) and Earl Sanders, who retired in 2003. The Courts overturned the murder verdicts in both criminal lawsuits because investigators had illegally withheld exculpatory evidence.
In the Tennision and Goff lawsuit, the U.S. District court ruled that the prosecutor had a duty to ensure Brady evidence that came to light after conviction was provided to the defendants. That apparently didn’t happen.
The Brady doctrine is a pre-trial discovery rule based on the 1963 U.S. Supreme Court case, Brady v. Maryland. The Supreme Court ruled prosecutors are required to disclose any information and exculpatory evidence favorable to the defense, in part because Brady violations send potentially innocent people to prison.
When prosecutors withhold Brady violations they engage in the worst kind of prosecutorial misconduct and violate prosecutorial ethics.
Failure to Reconsider
After Tennison and Goff eventually filed a federal lawsuit in April 2004, it took nearly another six years before they received their settlement awards in July 2010 — 19 years after their belated-justice nightmare began. Strangely, the City Attorney’s Office claims the Tennison and Goff lawsuit was finally “settled” on August 21, 2014 — four years later!
Bharara reminds us people’s understanding of the truth — whether about the correctness of a fact, or the guilt of a person — should never be unalterable. That includes sufficiently reconsidering at every step during an investigation. We need to put ourselves in Conley’s, Tennison’s, Goff’s, and Trulove’s shoes: Combined, they spent a half century wrongly incarcerated for crimes they didn’t commit.
In the end, San Francisco taxpayers will end up forking over well upwards of $53 million because police officers hadn’t gotten it right. A cast of prosecutors, judges, defense lawyers, district attorneys, and jurors also didn’t get it right, because of their combined failure to sufficiently reconsider. And the failure to reconsider shattered these innocent men’s lives.
An expanded version of this article is available on the author’s web site at stopLHHdownsize.com.
Monette-Shaw is a columnist for the Westside Observer newspaper, and a member of the California First Amendment Coalition (FAC) and the ACLU. Contact him at monette-shaw@westsideobserver.com.
JUNE 2019
2015 Affordable Housing Bond Update
Affordable Housing That Wasn’t
by Patrick Monette-Shaw
In November 2015 voters approved a $310 million Affordable Housing Bond. The Westside Observer has reported on the bond several times. Now’s a good time for another review, because the mayor is proposing a second affordable housing bond, even before the first one is finished.
Mayor Breed wants to increase a new $300 million affordable housing bond planned for the November 2019 ballot by $200 million—to $500 million. Supervisor Matt Haney wants a $1 billion bond.
The Supervisors have until mid-July to approve a bond measure for the ballot.
The November 2015 ballots to approve the bond explicitly stated the question being put before voters was whether the bond would include a middle-income rental program. The legal text of the Affordable Housing Bond clearly stated in the November 2015 voter guide a portion of the bond would be used to create “Middle-Income Rental Housing.”
Problems With Bond Oversight
The slow pace of the 2015 housing bonds is troublesome. The Controller’s Office confirmed that as of April 2019 just $217.3 million — 70% — of the $310 million bond has been issued so far. The first tranche was issued on November 1, 2016 for $75.1 million; the second tranche was issued on May 23, 2018 for $142.1 million, two-and-a-half years after voter approval.
MOHCD claims the remaining third tranche — for $92.5 million, representing 30% — will be issued in the Fall of 2019, four years after voters approved the bond in 2015. Why is it taking so long?
The Citizen’s General Obligation Bond Oversight Committee (CGOBOC) oversees spending of general obligation bonds. Currently $4 billion across 12 bonds.
CGOBOC has done a terrible job so far holding the Mayor’s Office of Housing and Community Development (MOHCD) accountable for the bond spending. Successive updates from MOHCD keep shifting planned bond uses, and CGOBOC has done little to reign in MOHCD. Why does planned spending keep shifting so often?
When CGOBOC held its first hearing on the bond in January 2016 it had eight members, five are no longer there. Because the 2015 affordable housing bond is far from over, CGOBOC’s institutional knowledge of bond spending will be severely compromised when the three remaining members are termed out.
Housing Bond Unit Counts by Main Category
Lack of Metrics to Evaluate Bond Spending
When CGOBOC held its first hearing on the bond, several CGOBOC members expressed the need to develop “metrics” to assess bond spending and whether the right allocation decisions had been made.
CGOBOC members in January 2016 suggested several metrics, including the dollar amount allocated per project, the Area Median Income (AMI) targets, number of new units constructed vs. number of existing housing units preserved, household size, demographics targeted (e.g., populations such as the homeless, seniors, veterans, teachers, families, etc.), and the Supervisorial districts in which projects are actually developed.
It now appears MOHCD’s only metric is the number of units produced. To date, MOHCD hasn’t provided CGOBOC members with a breakout on the number of new housing units produced versus existing units rehabilitated or preserved.
Changes in Bond Spending
In 2014 and 2015, prior to placing the housing bond on the November 2015 ballot, successive documents from the Mayor’s office included several proposed programs that were subsequently eliminated, including a $17 million Middle-Income Rental Housing program, and a $25 million Expiring Regulations Preservation category to preserve existing rental units. The two sub-categories were introduced to CGOBOC in January 2016 but were eliminated by July 2016.
The number of units planned in each of four main housing categories have bounced all over the place in successive reports to CGOBOC shown in the table. Didn’t CGOBOC members notice during the past three-and-a-half years the drastic changes in planned bond uses?
Middle-Income Housing Cuts
Despite Mayor Lee’s observation in Time magazine in January 2014 that everybody assumed the middle-class were moving out of San Francisco, uses of the 2015 bond to help middle-in
