When the new Laguna Honda Hospital and Rehabilitation Center opens in late 2009, another light will have gone out in San Francisco Spanish for St. Francis with help from the San Francisco Board of Supervisors.
To be more precise, St. Francis of Assisi, co-founder of the Franciscan Order that focused on providing care for the poor and sick, would be shocked to learn that Laguna Honda will open with 420 fewer lights than originally planned.
In 1999, voters were assured that if they passed a $299 million bond measure to rebuild Laguna Honda Hospital, that it would be built with 1,200 beds for elderly and disabled medically-indigent San Franciscans who need long-term care. Prominent City fathers ranging from then-Mayor Willie Brown, to the Director of Public Mitch Katz, to then-City Attorney Louise Renne, to Senator Diane Feinstein repeatedly assured voters Laguna Honda's historic mission would be preserved. For over a hundred years, Laguna Honda first served as an alms house for the poor and chronically ill, and for sixty years since 1950, has served as both a Rehabilitation Center and a skilled nursing facility providing long-term care to indigent San Franciscans.
But in October 2006, six residents of Laguna Honda hospital joined as Plaintiffs in the Chambers vs. City and County of San Francisco lawsuit, alleging that they were being improperly institutionalized at Laguna Honda, claiming that the City was not doing enough to place residents into the most integrated setting appropriate to their needs.
That claim flies in the face of reason. A document issued a month later, in November 2006 Current Levels of DPH Community Placement [Options] for Single Adults by the San Francisco Department of Public Health documents that DPH manages 8,259 community-based placement locations. Elsewhere, the Mayors Office of Housing indicated that another 1,844 units were either under construction, had been completed, or are in pre-construction planning, for a total of 10,103 placement options. However, if the 420 beds at Laguna Honda are not constructed, as the Chambers Plaintiffs are demanding, the Department of Public Health will only have 863 institutional skilled nursing beds in which to place patients needing long-term nursing care. This is a ratio of 92 percent community-based to only eight percent institutional-based placement options, so the Chambers Plaintiffs assertion San Francisco is not doing enough to create community-based options is pure folly.
Board of Supervisors resolution #336-99, authored by then Supervisors Sue Bierman and Mark Leno, was adopted on March 3, 1999, acknowledging San Francisco's commitment to developing sufficient institutional care, in addition to developing [community-based] alternatives to institutional care for seniors and people with disabilities. Fast forwarding to the Chambers case, San Franciscos Board of Supervisors is now poised to turn out the lights by violating its resolution 336-99 if it agrees to reduce a sufficient level of beds at Laguna Honda to an insufficient level of skilled nursing beds to meet current and future needs.
Just three-and-half months after the Chambers Plaintiffs filed their First Amended Complaint regarding Laguna Honda Hospital in October 2006, the Court issued on February 1, 2007 a Joint Case Management document outlining a time line for how the Chambers case would be heard. It proposed that discovery was scheduled to run through May 30, 2008, expert discovery would be completed by September 12, 2008, a hearing on dispositive motions would be held on December 18, 2008, and an alternative dispute resolution process would be completed by January 2009. The document stipulated the Chambers Plaintiffs wanted to take depositions from 40 witnesses, and the City, as Defendant, wanted to take depositions from 33 witnesses. But fast tracking to one year later, Deputy City James Emory answered a public records request on February 8, 2008 stating that no depositions whatsoever had been taken at all.
The Joint Case Management agreement then opted to engage in settlement negotiations in the absence of taking depositions, and the settlement agreement document was rushed through by negotiating the settlement terms before Defendant makes any commitment of funding to construct a fourth building. As early as February 2007, the City appears to have caved in to turning out the lights of the 420-bed West Tower that is on hold, reducing Laguna Honda in the process to only 780 of the planned 1,200 beds.
The Joint Case Management document goes a long way towards explaining the failure of the City Attorneys office to adequately represent residents at Laguna Honda who chose to stay there, who have no method of opting out of the settlement agreement, and who will not be fairly represented by PAI as unnamed class members.
Rather than litigating and having the facts and truth about Laguna Honda be heard fairly before a judge at trial, the City caved in and agreed to negotiate a settlement agreement. But a lousy job of negotiating seems to have occurred, possibly right on cue from the Mayors office, since a May 7, 2007 Wall Street Journal article Battle on the Home Front reported that Mayor Newsom still wants to restrict the nursing homes size to 780 beds in the buildings already under construction ....
The City of St. Francis is projected to have a deficit of 3,000 to 4,000 skilled nursing beds just 12 short years from now, in the year 2020, just as San Francisco will have 10,000 people over the age of 85 who will have Alzheimers, many of whom will eventually need skilled nursing level of care.
In November 2007, the proposed Chambers settlement agreement was suddenly made public. The agreement places a cap of 780 beds at Laguna Honda, and also stipulates that Laguna Honda's mission will be for 90-day short-stay and rehabilitation patients; the agreement says nothing about Laguna Honda's historical mission of providing long-term care.
Supervisor Chris Daly recently expressed concern about the flight of African American's from San Francisco:
Supervisor Chris Daly, Bayview Newspaper, February 6, 2008
The same problem exists with the proposed Chambers settlement agreement: It will force hundreds of elderly and disabled San Franciscans to leave our City, since there is already an insufficient number of skilled nursing beds in San Francisco. Although, the Department of Public Health first claimed it had begun negotiations with out-of-county service providers in order to find discharge locations for Laguna Honda residents, another recent public records request revealed that there are no records responsive to the request for contracts being negotiated to provide skilled nursing care in other counties. Simply dumping them into out-of-county facilities, and displacing them from their friends and family, is not what I would call San Francisco values.
On February 7, 2008 the Board of Supervisors Rules Committee voted to forward the proposed settlement agreement without a recommendation by Rules to the full Board for Supervisors for consideration of whether to pass the settlement agreement on first reading of a new ordinance.
Section 67.12(3) of the Sunshine Ordinance), provides:
The agenda for any meeting in which a settlement subject to this Section is discussed shall identify the material terms of the settlement.
But the Board of Supervisors February 12 agenda failed to include any of the material terms of the Chambers settlement agreement, as required by the Citys Sunshine Ordinance that stipulates any legal settlements the City proposes entering into must disclose the material terms within the agenda item notice. And the ordinance the Board of Supervisors considered to accept the Chambers settlement on February 12 also failed to fully disclose the material terms of the settlement, in that there is no mention in the ordinance that Laguna Hondas decades-long mission to provide long-term skilled nursing care for those who chose to receive it at Laguna Honda is being removed, since the Chambers settlement dictates that Laguna Honda's mission will be for 90-day, short-term care and rehabilitation, and never anywhere in the settlement mentions that Laguna Honda can continue providing long-term care. In addition, neither its agenda nor the ordinance listed the material term that a cap of 780 beds will be imposed at Laguna Honda. As well, as of February 12, there is no provision in the Chambers settlement for patients who chose to receive skilled nursing care at Laguna Honda to opt out from being forced to be a class member to the Chambers settlement agreement; they will be forced by the Court to abide by any rulings the Court orders.
During the February 12 Board of Supervisors meeting Supervisor Sean Elsbernd questioned Deputy City Attorney James Emery about whether the proposed Chambers settlement agreement will restrict Laguna Honda to only 780 beds. Emery responded, in effect, that the plain language really doesnt mean what it plainly says. The City is attempting to use spin control that the term upon completion of the current construction, the 780 bed limit will not exist in perpetuity, and the City will be permitted to later build the remaining 420 beds if it finds money to do so.
Elsbernd and Emery may be ignoring the published minutes of the Mayors Long-Term Care Coordinating Council's January 10 meeting. Those minutes document that Protection and Advocacy, Inc.'s (PAI) lawyer Elissa Gershon lead counsel for the Chambers Plaintiffs answered a question about whether the 780-bed cap means something different to PAI and the City and County. She noted that her expectation is that no more than 780 beds will be built at LHH. Clearly, the 780-bed restriction is being interpreted differently between the parties to the Chambers lawsuit, despite Elsbernds potentially well-rehearsed questioning of Emery, and spin control of City officials to the contrary.
Elsbernd also grilled Emery regarding whether the Chambers stipulation that narrows Laguna Hondas mission to provide 90-day short-term care and rehabilitation services will prevent Laguna Honda for caring for long-term care patients. Emery denied that long-term care patients would be excluded.
Shamefully, the Board voted February 12 to accept the Chambers settlement on its first reading, with a vote of 8-to-2. Supervisors Chris Daly and Ross Mirkarimi cast the two dissenting votes against passing the ordinance on first reading. Supervisor Alioto-Pier, for her part, quietly slipped out of Board chambers just before the vote so as not to have to go on record, being found voting absent when it came to turning out Laguna Hondas lights.
Testimony I presented to the Board of Supervisors and the Health Commission shows that a snapshot of Laguna Honda residents on October 31, 2007 illustrates that only 16 percent of then-current residents would qualify for retention if the Chambers settlement proposal restriction regarding 90-day short-term care were to be enforced. As well, during the past five-and-a-half years between January 2002 and December 2007, only 24 percent of the 3,199 admissions to Laguna Honda were to its rehabilitation units. Obviously 84 percent of LHH's residents would not meet the 90-day short-stay provisions of the Chambers settlement, and it would be a simple matter for the Board of Supervisors to amend the Chambers language to specify in writing that Laguna Honda can continue to provide long-term care.
If they do not add that language into the settlement on second reading of its ordinance, the Supervisors will be throwing the switch to turn out the lights to 420 beds, and also turning out the lights to long-term care. Both problems could easily be corrected with a stroke of the Board's pen, along with introducing an opt out mechanism for Laguna Honda residents who chose to stay. The public health implications have not been adequately considered in the one-year rush to reach a negotiated, not litigated, settlement of the Chambers case between October 2006 when first filed, and November 2007 when the settlement agreement was quietly and obscurely posted to PAIs web site.
Shamefully, there has been a complete media blackout of the proposed Chambers settlement agreement. Not one drop of ink has been spared by the Citys major dailies, neighborhood daily newspapers, or by alternative weekly newspapers in covering the shameful Laguna-Hondas-safety-net-lights-are-about-to-go-out story.
The Chambers agreement will be voted on again at a second reading by the Board of Supervisors on February 26. Before then, contact the Board of Supervisors and Mayor to advocate that they remedy the Chambers settlement agreement before voting to turn out the lights to 420 of St. Francis of Assisis beds.
Monette-Shaw is a healthcare and skilled nursing advocate. For additional information, visit www.stopLHHdownsize.com
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