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January 10, 2023

An “Immediate Jeopardy” Violation Risked Recertification

Troubling Laguna Honda Hospital Developments

Playing With Fire Thankfully Avoided by the Skin of Our Teeth

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 at Laguna Honda Hospital (LHH) resulting in it 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, risking undoing progress since May when the consultants were brought in to fix decades of mismanagement of LHH.

Key Documents Ongoing Secrecy

As the Westside Observer has previously reported extensively, the ongoing secrecy about LHH by San Francisco’s Department of Public Health (SFDPH) and our Health Commission remains a major problem.  The LHH Settlement Agreement mentioned over a dozen times a Revised Closure Plan, which remains secret and shrouded in mystery because it has not been made public, despite repeated public records requests submitted to obtain it.

Just as SFDPH initially delayed release of the LHH Settlement Agreement and kept it hidden from public review, SFDPH continues to delay release of LHH’s Revised Closure Plan.  The contract with Health Services Advisory Group (HSAG) to perform duties as LHH’s CMS-required Quality Improvement Expert (QIE) has also still not been released to the public.  (CMS stands for the Centers for Medicare and Medicaid Services, which regulates all nursing homes nationwide and administers federal reimbursement to skilled nursing facilities.) 

The LHH Settlement Agreement provides that LHH’s Revised Closure Plan involving mandatory forced discharges and transfers of LHH’s residents that were temporarily paused may begin again on February 2.

The QIE contract began on November 1, but the contract wasn’t 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, although 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.

In addition, LHH’s “Root Cause Analysis” (RCA) that was due to CMS by December 1, 2022 remains shrouded in secrecy because SFDPH has refused to release it, too, also 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 long-term substantial compliance in the future.  The RCA was to examine every one of the 26 deficiencies identified in CMS and California Department of Public Health (CDPH) inspection surveys between October 14, 2021 and April 14, 2022.

Remarkably, a monthly Executive Team Report that LHH’s acting CEO, Roland Pickens, presented on January 10 to the Health Commission’s LHH-JCC (a Joint Conference Committee consisting of three Health Commissioners and LHH’s top managers) reported:

“The theme throughout the RCA is that over time, Laguna Honda has become 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.

The Westside Observer had reported last September that LHH’s acting CEO, Roland Pickens, admitted to the Health Commission last August that LHH had been following the wrong regulatory guidelines by using California’s Title 22 “Acute Care Hospital Guidelines,” not using CMS’ “Skilled Nursing Facility Regulatory Guidelines,” thereby causing substantial noncompliance which led to LHH being decertified by CMS.

If we ever get to see the full RCA report, we’ll see if Pickens’ admission last August was included in the RCA report.  If it wasn’t included then HSAG did a terrible job writing the RCA, because following the wrong regulations was a substantial contributing factor of CMS decertifying LHH.  LHH had clearly been acting like an acute care hospital, not like a skilled nursing facility.

As well, 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 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.”

That hundreds of improvements may have been identified and described in the Action Plan as being necessary suggests just how far LHH had strayed from being in sync with nursing home standards of care regulations.  It also suggests how badly LHH mismanagement had become.

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, saying “DPH staff will need to consult with another City office regarding your request“ before it can produce and release the Action Plan, assuming another City office approves releasing it.  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.

Troubling Developments Threatened Recertification

On December 9, Health Commission secretary Mark Morewitz initially e-mailed a notice cancelling 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 cancelled.

Morewitz was referring to the first 90-day Monitoring Survey of LHH following LHH’s decertification on April 14.  The 90-day surveys are required by the LHH Settlement Agreement.  State inspection surveyors had descended on LHH on November 28 for the unannounced survey.  The LHH Settlement Agreement reached on October 12 stipulated in paragraph 14 that at any time after October 10, LHH would be subject to unannounced on-site, federal surveys at least once every 90 days to assess LHH’s progress towards compliance with the Settlement Agreement, and progress towards achieving substantial compliance with Federal nursing home regulations issued by CMS.

Something drastic must have happened at LHH, because by 4:35 p.m. on December 9 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 holding the December 13 meeting for closed session deliberation.  A Regulatory Affairs report presented to the LHH-JCC meeting on January 10 reported that the initial exit interview and debriefing following the 90-day survey should have been held on December 2. 

Unfortunately, because 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, as well as a Fire Life Survey.  Initially the I.J. may have triggered cancelling the JCC’s December 13 meeting, but they may have decided it needed urgent attention from the Commissioners in a closed session discussion.

I.J.’s suggest a facility is not in substantial compliance with CMS’ regulations.  That appears to be why the JCC meeting went from cancelled back to being held on short notice.

Details of what tr-anspired 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.

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 during 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 had to be submitted belatedly in November.

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 had 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 that 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 Regulatory Affairs Report news 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 CMS apparently accepted it, resolving the fire incident violation. 

It bears repeating 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 obtaining recertification.  The initial plan developed by the two consultants had said for a long time that LHH was preparing to re-apply to CMS for recertification in August or September, with the goal of actually becoming 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 money across the $26.7 million in contracts that have been awarded to consultants to date?

Suddenly — and either comically, or tragically, depending on your point of view — along came San Francisco’s Director of Public Health, Grant Colfax, MD, who presented an “LHH Recertification Strategy Update” to the full Health Commission on January 3, 2023.  [Note:  Colfax’s chart has been embellished for this article with the names of the incumbent managers and their respective salaries.]

Wait.  What?  Shouldn’t the Recertification Strategy have been developed back in May at the outset of the now $26.7 million in external consultant contracts that have been awarded to HMA, HSAG, and Tryfacta?  As in, putting the horse before the cart.  Why is Colfax’s new strategy being rolled out eight months after efforts to obtain recertification began?

Noticeably missing from a new strategy to obtain CMS recertification is any mention of rapidly hiring a Nursing Home Administrator (NHA) and an Assistant Nursing Home Administrator (ANHA) at LHH.

Colfax’s Strategy Update in an org chart format contains a number of troubling issues.

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 managers 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 into not being a high performing skilled nursing facility.

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 placing one cohort of elderly and disabled patients needing skilled nursing care in one of LHH’s two patient towers, and the other cohort of patients with behavioral and mental health problems placed 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 housing 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 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 have a 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?

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 had mentioned the Revised Closure Plan 18 times.

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 or 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.

Also during the January 10 LHH-JCC meeting, LHH’s acting CEO Roland Pickens informed the three Health Commissioners that LHH may appeal the 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.

The Settlement Agreement stipulates LHH’s responsibilities pursuant to the Revised Closure Plan to transfer and discharge LHH residents will be resumed on February 2, 2023 unless CMS provides notice in writing providing that LHH resident transfer and discharges may be postponed to a later date.  SFDPH and LHH have not indicated publicly whether CMS has provided a written notice that the Closure Plan will be delayed past February 2. 

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 you read this article, we may be just 14 working days before forced discharges from LHH resume.

Given the possibility 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 releasing 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 Acion 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 year 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 is worth it.

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 applying 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 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 wildly 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 because of using SFDPH managers brought in to run a skilled nursing facility they know next to nothing about.  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 had to be 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 whether to make a formal recommendation about the policies and procedures to the full Health Commission, saying 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 towards obtaining its recertification.  The Board of Supervisors could go a long way toward forcing 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 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” of 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” team will include an emphasis on capital projects at LHH, among other urgent questions needing immediate attention.

After all, CMS may next require that all skilled nursing facilities can only have one-person 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 a 31.2.% 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 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.

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