Saving Zambarano - Monday Night's Hearing Was Like The Land of Oz

We continue to watch the ongoing situation with the Eleanor Slater Hospital (ESH) system and the State's continued attempts to shut it down. There have been a couple of developments this week including one that may have a positive outcome, but before we discuss this, let's look at this past Monday's Senate oversight hearing in Rhode Island.

Was it "inconsistent testimony" or lies?

Last Monday evening, the first Senate oversight committee hearing was held regarding the future of ESH. For those who watched this and had knowledge of this issue at hand, it seemed like an alternate reality with the black hole of government sucking in the truth that was apparent for all to see while spurting out their own spun and re-spun version of the issue. Those representing the administration of the hospital certainly saw things much differently than did the doctors, advocates, and parents of residents receiving services at the facility. No surprise there.

This administration's explanations of what is currently happening and why it is happening was so far removed from the ongoing events that State Senator Jessica De La Cruz issued a press release the following morning highlighting her and Representative David Place's concerns:

“Last night, the Senate held its first oversight hearing regarding Eleanor Slater Hospital (EHS), in which we heard from members of the hospital administration. Unfortunately, some of the administration's testimony was inconsistent with reports and testimony received by doctors, mental health, and patient advocates. Clearly, future oversight hearings will need to address these discrepancies. Fortunately, tonight the Senate passed a new rule that allows the Committee Chair to require that testimonies offered are sworn in. Rhode Islanders expect and deserve open, honest, and forthright testimony, especially from their state government.

Representative David Place and I are renewing our calls that all hospital discharges cease and admittance begins immediately until oversight hearings conclude and Disability Rights Rhode Island investigation is complete.”

Kitchen Shut Down

And then another controversy came to light this week as this public battle played out -- the state fire marshall just happened to find "unsafe conditions and practices" forcing the inside kitchen to shut down and employees to prepare meals on outside grills for residents of Zambarano Hospital. A coincidence or an intimidating pressure tactic aimed at pointing out the structural inefficiencies of this old building to advance their agenda?

Kitchen cited - an intimidation tactic?

In the criminal justice field, there exists an old axiom that a grand jury can indict a ham sandwich, and in the world of licensing, an inspector can find an "unsafe practice" without blinking an eye.

I recall an incident that occurred nearly three decades ago when I was the director of a behavioral treatment program in Taunton, Massachusetts. I had a respectful but vociferous disagreement with the licensing agency about a policy they made that was solely political and impacted the clinical integrity of the work we did at the program.

When the relicensing inspection time came about, I made sure that everything was in impeccable order, and on the day of the reinspection, I had everything laid out on a large table including client charts, employee documents, policy manuals, etc. The inspector spent an inordinate amount of time on the documents, and ended up citing me on two things - first, "the lack of a specific tornado policy" because I had the tornado, hurricane, blizzard, and flooding protocol in one policy under "severe storms", and second, the fact that I had charts laid out on a table for inspection and not "stored securely in a locked filing cabinet" even though I didn't pull these out until the morning of the inspection and the door to the room being used was locked.

Strangely enough, I had assisted another agency update their policy manual earlier that month and this same severe storm policy passed with flying colors while the previous year, I was praised for having "great organization" on the day of inspection. In other words, I had ruffled some feathers in the office and those "in charge" gave me a "slap" to remind me who was really the boss. So I learned early in my career that politics always trumps common sense and ethics.

But getting back to the kitchen issue. On March 24, WPRI reported that:

The R.I. State Fire Marshal has reported “unsafe conditions and practices” requiring immediate repair inside kitchens at the state-run Zambarano hospital facility, forcing workers there to cook some meals outdoors on grills.

Target 12 has confirmed the state fire marshal’s office sent a letter to multiple state agencies last Friday amid ongoing inspections of the Burrillville-based facility, a unit of the Eleanor Slater Hospital system. The inspection concluded certain cooking operations must stop until they are fixed and re-inspected.

“This letter serves to notify you that the cooking operations at Zambarano Hospital have unsafe conditions and practices that need to be immediately abated,” Fire Marshal chief deputy James Gumbley wrote in the letter.

Gumbley tied the dangerous conditions and practices to the kitchen’s cooking exhaust system, adding, “cooking operations that produce grease-laden vapor are not to be conducted until such a time as remedies are completed which are satisfactory of the Office of the State Fire Marshal.”

WPRI also pointed out some discrepancies in the state’s explanation as to why now and what this meant. State officials have since struggled to explain the fallout from the inspection. State spokesperson Randy Edgar told Target 12 Friday the unsafe conditions wouldn’t prevent staff from cooking indoors.

After repeated follow-up questions about the situation, however, the explanation changed on Wednesday. “The kitchen staff are also occasionally using outside grills,” state spokesperson Robert Dulski wrote in an email to Target 12, adding that they are normally used during summer cookouts for patients.

Southcoast Seniors Radio Show

On Connelly Law's Southcoast Seniors Radio Magazine this past Thursday, we featured Amy Fredette and Shirley Pacheco, both of whom had or have loved ones who received treatment at Zambarano Hospital. Amy and Shirley expressed their skepticism of the administration's motives for the closing of the kitchen following the fire marshall's inspection and the conflicting testimony at Monday's hearings - listen to the show by clicking on the video box below.

On the final segment of the show, Kathleen Heren, Rhode Island’s long-term care ombudsman, had her own views of the situation, stating previous “failed administrations” ignored these problems that are now suddenly being cited by state inspectors. Ms. Heren also strongly agreed with Senator De La Cruz’s assessment that Monday's testimony was inconsistent with the reality of the situation at Zambarano.

Just prior to the radio show airing on Thursday, a story written by Eli Sherman appeared on WPRI's website reporting that progress had been made on the Medicaid issue that stopped federal reimbursement for ESH. To quickly review the Medicaid issue, this concern stretched back to 2009 when the American Recovery and Reinvestment Act was signed into law, which required all public and private healthcare providers and other eligible professionals to adopt and demonstrate “meaningful use” of electronic medical records (EMR) by January 1, 2014, in order to maintain their existing Medicaid and Medicare reimbursement payments. The administration did not comply with these requirements resulting in reimbursement being halted in 2019.

Sherman's report stated;

The federal government on Thursday approved a state request to restart Medicaid billing at the embattled Eleanor Slater Hospital, positioning Rhode Island to recoup millions of dollars in state money spent on services during the past year.

The U.S. Centers for Medicare & Medicaid Services approved Rhode Island’s so-called “State Plan Amendment” submitted roughly one year ago. The state had sought approval to bill the federal government for certain medical services provided through the state-run hospital system.

“We have reviewed the proposed amendment,” CMS Acting Director Rory Howe wrote in the letter. “This letter is to inform you Rhode Island is approved.”

Eleanor Slater, with units in Cranston and at its Zambarano facility in Burrillville, fell out of compliance with the federal government in the fall of 2019 and stopped billing for Medicaid reimbursement. The state has since spent more than $100 million in general revenue to pay for services that might have otherwise been covered.

State approved once again to receive CMS money

It wasn’t immediately clear how much the state would recoup, but the federal approval means Rhode Island will be eligible to retroactively bill for at least some services dating back to April 1, 2020. However, state officials warned they will not likely be able to recover all of the state money spent during that time.

“The hospital is determining the fiscal impact, based upon a patient’s insurance coverage eligibility, their length of stay in the hospital, and the billable services they received,” said Randy Edgar, spokesperson for the R.I. Department of Behavioral Healthcare, Developmental Disabilities and Hospitals, which oversees Eleanor Slater.

The federal approval comes as a welcome sign to state budget-crunchers, who have watched the state-run hospital system gobble up state revenue for more than a year.

It also comes at a time when the hospital is under intense scrutiny, as Gov. Dan McKee has proposed closing two units in Cranston and building a $65 million long-term care facility on the Zambarano campus in Burrillville. State officials have also been trying to discharge some patients that they argue could be receiving similar levels of care outside of a hospital setting, which is required under federal law dating back to the 1960s.

The effort, along with the governor’s proposal, has been met with pushback from advocates and union groups, who argue the hospital provides a unique set of services for people with psychiatric and complex medical needs that they wouldn’t likely find elsewhere.

Falling Out of Compliance?

So let's dig into Mr. Sherman's report. He uses the phrase "fell out of compliance" in regard to the Medicaid reimbursement fiasco, but it was much more serious than that - it could best be described as negligence.

As Attorney RJ Connelly III stated in his written testimony to the Senate hearing, "an article in the Providence Journal, Eleanor Slater Hospital (Cranston and Burrillville), has been 'hemorrhaging tens of millions of dollars' when the state 'fell out of compliance' with the Centers for Medicare and Medicaid Services (CMS) in September of 2019, resulting in Rhode Island's inability to collect reimbursement monies from the federal government. Using the phrase, 'fell out of compliance', does not comport with the entire sordid story of why the administration wants to force residents out of Zambarano."

Former Medical Director Dr. Normand Decelles further elaborated on this tale of falling "out of compliance". He told Connelly Law that he "was part of a workgroup which evaluated several computerized health information systems/electronic medical records for potential use at ESH. One was the VA Hospital's modular system that we could obtain and use at ESH for $10 (ten dollars) - the price of the CD. This $15 million hospital computer system was free upon request because it had been developed with Federal taxpayer dollars and was therefore in the 'public domain'. The decision was made not to obtain that system because it would obligate ESH to years of tech support at $250,000 per year."

Specialized services only at Zambarano

Connelly added, "the phrase 'fell out of compliance' should be re-written to say, 'the State of Rhode Island neglected this CMS mandate for nearly a decade.' So here we are, March 2021, twelve years later, and the 'hemorrhaging' of money is, in reality, a self-inflicted wound. Budget documents have indicated that the state was receiving around $60 million in CMS reimbursement for ESH that has now been cut off. To save $250,000 in tech support annually, they have lost at least $60 million per year in federal reimbursement money and placing this blame squarely on the backs of those in need of these services."

Sherman's report also read that "state officials have also been trying to discharge some patients that they argue could be receiving similar levels of care outside of a hospital setting" but does not go into a complete explanation of what the issues are with the unnamed state officials' argument.

Ms. Heren publicly commented on this situation in a press release scheduled for release in April, saying, “the administration has publicly stated that most residents do not meet the level of care and should go to a nursing home or home to their families…nursing homes cannot deliver the care the hospital can, nor do they have the knowledge to be able to manage behavioral issues.”

The administration had also floated the idea that some of these residents may be able to return home to family members, a ludicrous idea to many who understand the nature of the care needed for the patients and the burden this would place on many families. Attorney RJ Connelly III, stated, "In my interactions with the loved ones of residents at Zambarano, it is readily apparent that if they had the skill and ability necessary to take on this task, they surely would. But the nature of the needs of the residents is often so severe and specialized, that such an undertaking would be detrimental to both the resident and the family member. Further, many of the family caregivers themselves are elderly and may also be in need of services in the near future." Ms. Heren agreed, stating, “to suggest families can now become caregivers who may themselves be in their late sixties, is…absurd.”

So, amidst this battle is some good news -- the state is finally able to recoup monies from CMS for EHS operations, and, those in charge are aware that others are watching. But the performance of the administration at the oversite hearing is a continued reason for concern about the behavior of "state officials" who are supposed to protect the most vulnerable citizens of Rhode Island.

Off To See The Wizard

The testimony they provided was so far from the reality of the situation that it defied all good sense and logic. It's important to remember that these "officials" serve at the pleasure of the people who elected them and not the other way around.

Shirley Pacheco had her own experiences with elected officials, telling Southcoast Seniors that "the question I have asked a few government officials in RI over the years when different issues would arise concerning Zambarano is 'How would you feel if it were a member of your family in this facility - your child or your parent?' None of them ever answered my question, but I'm sure we all know that their reactions/decisions would be much different. It is sad to know that there are heartless, uncaring people running our government, with no concern or respect for those with disabilities."

The illusion is exposed

The hearing this past Monday reminded me of the classic story, "The Wizard of Oz", as Dorothy, the tin man, lion, and scarecrow shook in fear waiting to get an answer from the "all-powerful Oz", when suddenly a small dog yanked back the curtain to reveal a bumbling old man who was hiding behind all the smoke and mirrors - a fraud with no power once he was exposed for who he really was.

With government officials, the constituents who elect them do so in hopes that they will work for them when in all too many cases, they work for themselves, appointing unqualified individuals to positions -- not because of merit and ability -- but as political payback. Once in office, voters tend to view them as being grander and more powerful than we, the people, but in the end, this is an illusion that we allow them to perpetrate. This was on full display on Monday night. Hence, we get into the problems we have at Zambarano. This illusion can be confronted, as is being done now, and if this fails, we have the ballot box, the ultimate power.

As Attorney Connelly stated in his written testimony, "former Vice-President Hubert Humphrey, in his final recorded speech, said these words, "'...the moral test of government is how that government treats those who are in the dawn of life, the children; those who are in the twilight of life, the elderly; those who are in the shadows of life; the sick, the needy and the handicapped.'" How will the morals of Rhode Island be defined when it comes to the decision to keep Zambarano open?"

He continued, "in the end, this is about people, about a quality of life that may only be possible through the unique services provided by Zambarano Hospital and the caring and compassionate staff who work there. Our community is only as strong as the most vulnerable among us, so for the common good and in support of the residents, their families, and the staff."

We will continue to follow this situation.

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