Sunday, May 4, 2014

Closing Hospice Part XXII: Recalling Hospice

Copr. Sacramentorea
In March, I mentioned “Summing Up” my hospice concerns. As time went by, there was more to sum up.

The importance I attach to these epistles bears repeating, not to wear you down, but perchance to listen, to accept the premise that something could have been done to right a terrible wrong.

Just because we can’t make a difference today--after a year of my begging--is no reason to give up. We can still make a noise about our loss which should not be borne in silence or suffered in vain. We can resolve that our loss will not happen again, despite who’s managing hospice. Our loss is one too many.

Besides, Billy the Bard got it wrong: “All’s well that ends well,” worked well 400 years ago, but not today.

Our hospice didn’t end well.

While I was preparing these comments, another government-condoned fiscal horror popped up. IRS employees used government credit cards for porn, liquor, $100 meals, car rentals and hotels without a twinge of conscience or any fear of being caught. Their bosses were doing it, too.


The IRS can’t even monitor its own travel expenses. Vouchers were submitted by agents (and approved) who never took a trip. But because the law did not specifically prohibit the submission of a bogus travel chit, no law was technically broken.

Rather, in my opinion, it was shattered—beyond recognition—along with the citizens’ faith in their government.
Copr. Planned Parenthood

In August, 2013 (months after hospice closed), Planned Parenthood submitted bogus claims to get reimbursed for performing abortions that the government prohibited. That organization received over a half billion dollars in grants. (That's over four times what the government was seeking from hospice.)

Unlike hospice, Planned Parenthood ends lives before they begin. Hospice cares for folks at the other end of their life allotment.

A double standard or a painful irony?

Let’s assume that everything and everyone associated with hospice was corrupt, felonious, evil and greedy, with no redeeming value.

That assumption raises the likelihood that some effort should have been expended to clean house before tearing it down.
Copr. Car

Copr. Wikipedia
When new automobiles are recalled for mechanical or safety reasons, the factory isn’t closed and no one is fired. Problems are identified; remedies proposed.  The cars aren't trashed, they're fixed. Closing hospice on the assumption that it wasn’t worth fixing, belies our tradition of solving problems rather than accepting defeat.
Copr. Financial
Copr. Creation
Edison spent years looking for the perfect filament; Beethoven scratched through dozens of notes looking for the perfect one. 

Even in its demise, we should learn something to make the next hospice better and longer lived.

On December 3rd, I met two representatives of Scripps and was politely informed that Scripps would not examine the books for the reasons hospice closed.

I mentioned my suspicion that a timely audit might have precluded the closing. Again, I was politely informed that Scripps would conduct a daily audit and never run afoul of the Feds! That sounded like over-kill, but what do I know? Unless you're Scrooge, that attitude, however, was striking.

Copr. NationalGeographic
Did NASA scrap the space program after the first tragedy…or the second…or the third? Even with its spectacular failures, money still poured in…with nary an audit. (The 2013 NASA budget alone was $17 billion, more than what hospice owes.)

In contrast, the only solution Medicare offered hospice was to dissolve it. One mistake; one solution.

Copr. FrenchGourmet San Diegolcom
Last year, a exquisite French restaurant in Pacific Beach was cited for hiring 17 illegal aliens who were not French chefs. The only charge was against the hiring protocol of management; not against the food, the service or the ambience. A fine was levied and the restaurant re-opened. Check, please.

Speaking of Pacific Beach, have you ever heard of a bar losing its license for over-serving a patron, or for a murdered or raped patron? Or that the number of drunk-driving citations is linked to the number of licenses?

Which is causing greater harm? One naughty restaurant or numerous bars scoffing at ABC rules. Parenthetically, there wouldn’t be any bars in Pacific Beach if the ABC laws were enforced. Would the council respond if that occurred? Just think of the lost revenue. Which is exactly what the council is thinking of.

But when hospice was cited, it was closed forthwith with no chance of reopening. Its books and doors closed so quickly, no one noticed—including this council.

I don’t understand how a French restaurant staffed with illegal aliens or a bar that over-serves drunken patrons can stay open and hospice can’t. There’s a triple standard here: one for gourmet diners, one for drunks and one for people about to die.

Granted, there’s a great difference between fudging federal funds and hiring undocumented cooks. Both ran afoul of federal laws, but faced different federal interpretations.


The Rule of Law can be elastic or unyielding, depending on who’s holding it or to whom it’s being applied.

Sunday, April 20, 2014

Closing Hospice Part XXI: An Appeal for Hospice

If the government wants to recover money from hospice—like $50 million as first reported, or $200 million (mentioned by Scripps), or $115 million (Union-Tribune), it should look at its own books first to find far more money doing far less good.

For years, Medicare reimbursed hospice at $170 per patient day. 
After a certain whistle blew, Medicare learned that the funds had been misappropriated through inaccurate or incomplete books covered in fudge. 

With that, there should have been a parade of auditors marching through Hillcrest with briefcases swinging and with pens held high.

But what if the reports did not show anything nefarious but did show a casual regard by Medicare in visiting hospice facilities. What if ten years had passed before the books were examined? Would a hospice bookkeeper get the impression that nothing was amiss and that the status quo might as well stay status for another day or two of quo?

If an audit was that lax, why should the only option be to close the doors? A warning whistle (which the whistle-blower had unwittingly provided), rather than a death knell, should have echoed through the land whenever government money is wasted and not just Medicare money.

But from my perch high atop my horse, that’s not what happened.

Did hospice receive the same respect and care that it had provided to its many patients over many years? Why didn't government auditors apply palliative treatment for the “end-of-life” crises facing hospice? Without being able to gather any of the facts surrounding its demise, I've concluded that the plug was pulled on hospice before alternatives were considered.

The ugly head of a double standard pops up. If hospice was audited—and I have no evidence that it was—the government seems to have looked askance at its own ledgers.

If Medicare’s actions toward hospice were applied throughout our legal system, there wouldn't be any appeals. The verdict, without a trial, would be final and fatal and kangaroos would cram our courts.
The First Amendment grants the right to petition the government to redress grievances. There are two problems with that: 1) there has to be a grievance and, 2) you have to petition for redress. If neither of these occurred, nothing will happen because nothing was wrong.

With unseemly haste, hospice acquiesced to its fate before the grievances (that is, the charges) could be challenged and well before a redress could be considered.

In our courts, the most heinous criminal has a right to appeal. Some cases take years to settle, granting the plaintiff time to figure out what happened and work toward righting a wrong.

In our “Hospice Court,” however, an appeal was not an option. The race from rumor to ruin broke all records.

Sunday, April 13, 2014

Closing Hospice, Part XX, The Summing Up; Second of two parts

(Speech delivered to the San Diego City Council on April 8, 2014. Second of two parts.)
*     *     *     *     *
Depending on your viewpoint, you are either in good company or bad.
Marti Emerald
No one at any level of government—which now includes you, with one notable exception whose initials are “Marti Emerald”—has responded to my repeated pleas to find out why hospice closed.
The paltry coverage in the media gave only one side of the story, seldom an enlightening education. In vain, I’ve tried to find out why hospice was subjected to a different set of standards that other government-funded programs enjoy.
Consider the hypocrisy: Medicare questions hospice about misappropriated funds that led to its destruction. In contrast, government programs, involving far more misappropriated money, were neither scrutinized nor stopped. Even after horrendous waste is brought to the attention of government agencies mandated to curb waste and fraud, the government, following the golden path of good intentions, buys 143,000 trailers for Katrina victims, costing $2.7 billion. Not one was ever used because the carpets contained formaldehyde. Of these, 130,000 were sold for ten cents on the dollar, or $270 million, a bit more than the government will ever see from the hospice auction. The remaining 15,000 were stored for $225 million. Equally inexplicable, not one of those trailers went to Oklahoma to shelter the victims of their hurricane, or the victims of the western fires and floods in Colorado.
Free Trailer Parking Jam
If your home was blown away, or burned away or washed away, would you refuse a free trailer because the carpet smelled funny? The idea of opening the windows and doors (in swampy, fetid New Orleans) never reached a sentient brain in Washington because there weren’t any.
U.S. Capitol Dome
Note the similarities to the Dome
Knowing how well my wife was treated at hospice makes the loss personal and my efforts to save hospice, frustrating and futile.
Because the hospice building is still there, so is the shred of hope. I’m begging you to tell your congressman (including former councilman Scott Peters) what’s happening to and in San Diego and that the letter of the law need not trump its spirit.
Do not assume that hospice isn’t your concern because it’s not in your district or you’ll never need it. It’s in the district of San Diego, not La Jolla or Clairemont. If you ever need hospice, do you think the admissions panel will care where you live or that you must die in six months?
Oh, I forgot. There is no admissions panel because there’s no hospice. Silly me.

Sunday, March 30, 2014

Closing Hospice, Part XX: The Summing Up (Part one of two parts.)

(Speech delivered to the San Diego City Council on March 25, 2014. First of two parts.)
*     *     *     *     *
Today is a milestone (for me), and a millstone (for you). Today is my 20th comment on hospice, two more than previous councils endured about councilman Byron Wear’s destruction of all his files on the day he left office. The council did nothing.
Byron Wear

Miramar Landfill (Katie Orr/KPBS)
Twenty means that I consider the loss of hospice more important than the loss of district files. Will the council do nothing again?
While you’ve been patient with these three-minute purgatories, you did have the opportunity on December 10 to move this issue to the agenda, with the opportunity to voice your opinion and, as a bonus, to silence mine. My Communications request didn’t even garner a motion or a second, not even from my councilman. It died, along with the hint of hope that I had hoped to spawn in the council.
San Diego City Council
As you numbingly know, I spoke about hospice early on when this council could have raised its voice to postpone the inevitable collapse.
But it wasn’t inevitable back then. The errors hospice was alleged to have committed could have been postponed and corrected. Had that happened—with your leadership—a more salutary outcome may have occurred.
Instead, as with Adam and Eve in the Garden, Hospice had no chance to apologize or make amends. God spoke like Donald Trump: “You’re fired! Out you go!”
Copr. TruthNet
In vain, I hoped that a public outcry would have drawn attention to the end of a program that dealt with the end of life. If not for us, then for our loved ones who could no longer care for themselves.
Joan Kroc’s faith in the program became tangible when she constructed a building and funded it. She probably thought its beneficiaries would have kept it. We are the beneficiaries and we didn’t.

We took her gift for granted and tossed it. We’re fortunate that art museum curators don’t have the same mindset or we’d be looking at empty walls and empty pits where great buildings once stood.
San Diego Hospice (2012)
My point? Where are the people who should care what becomes of our city and its world-renowned parts? We elect people like you who promise to do good things. When you assume office, we, in turn, assume—frequently erroneously—that you’ve done your homework to endorse what your predecessors have or have not done. Do we destroy what previous generations built just because we weren’t involved or weren’t asked or weren't there?
Entrance to Hospice (December, 2013)
Yes, that’s exactly what happened to hospice. We lose our sense of history by disparaging what our predecessors deemed valuable. Because hospice was a gift without strings and built without city money, we have collectively concluded that it had no value.
(Next: Part 2 of "Summing Up.")

Sunday, March 23, 2014

Closing Hospice, Part XIX: Defining & Surviving Fraud

(Speech delivered to the San Diego City Council on March 4th and 18th, 2014)
*     *     *     *     *
In the suit she filed in late 2012, Ms. Lori Rachac, a former employee of hospice, alleged that hospice committed fraud by misrepresenting and warping the admission and retention policies established by Medicare. I asked an attorney for a definition:

Fraud occurs when four conditions are present:

1) …an individual intentionally makes an untrue representation about a fact…

2) …which is believed by the victim…

3) …who relies upon the misrepresentation, and…

4) …suffers a loss attributed to the misrepresentation.


In short, someone’s lies produce someone else’s loss. Fraud benefits the defrauder by producing an advantage: election fraud, Ponzi schemes, kiting checks, diluting wine, claiming 55 dependents on your tax return to warrant a hefty refund.

Fraud benefits individuals or organizations. With individuals, the benefits may be direct (money or property), or indirect (promotions, bonuses, power, influence). With organizations (or employees acting on their behalf) the benefits are usually financial: insider trading, false insurance claims, embezzlement.

For now, let’s assume the worst about everything hospice did: with malice aforethought, it set about to defraud Medicare by falsifying its records. After years of this chicanery, the amount of money flowing into the coffers of hospice would have been staggering. And yet, no one noticed—at least not for several years.

We may never know how much money was pilfered from the government, but I’d hope that someone in Washington would. The suggested amount that Medicare is seeking from hospice seems to be elastic, probably because no one has examined the books since 1977, the year hospice services began in San Diego, and continuing through the construction of its 24-bed facility in Hillcrest in 1990 up until the doors, and books, and politicians' mouths slammed shut in April, 2013.

During all that time, the gears of government continued to turn and print money; lots of money.


When I spoke to a professional auditor and tax preparer, the axiom of good government (or any business wishing to stay in business) is a regular review of expenses vs. income.

With hospice, income was derived from donations, loans and government assistance, all of which have been considerable and constant. Expenses include the maintenance of the physical plant, the host of workers from the grounds keeper and office staff to the licensed pharmacists, physicians, interns and nurses who see to the daily needs of hundreds of patients over years of dedicated service.

And the cost? On a national basis, a lot. In 2008, the president’s first directive was to reduce fraud and waste in all government programs, with an emphasis on Medicare and, by implication, on hospice care.

(Medicare began in 1965; subsidized hospice services began in 1979 for 26 facilities nationwide. In 1982, Congress created a temporary Medicare hospice benefit. Four years later, the benefit became permanent.)
Continuing my assumption that the San Diego Hospice was engaged in fraud from its inception (or "only" in its recent years), we must consider the implications and effects of such behavior.

Although Medicare does not reimburse individuals, the amount of money being requested by hospice corporations (both non-profit and for-profit) is large and ever growing. What must have impressed Obama was the alarming growth of the annual charges. In one decade, government costs for hospice care, nationwide, ballooned from $2 billion to $13 billion.

Cynically, not all of this could have been attributed to honest, straightforward requests for reimbursement or even to the inevitable cost-of-living expenses that plague every enterprise and every person every day.

And yet, in our objectivity, transparency and fairness, we should look at other government programs whose expenses seem to have been overlooked or ignored. Last year, the government guaranteed a loan of a half-billion dollars to Solyndra, which projected a roseate future for its “green” solar panels.

But after filing for bankruptcy, Solyndra paid large bonuses to its corporate directors and was not required to repay the loan. Do the manufacturers of solar panels know something that hospice administrators don’t?

As a partial explanation for its hasty departure, the San Diego hospice was required to pay its creditors and repay Medicare for the payments it had received over the years. This was accomplished through an unusually quick liquidation in bankruptcy court, not the less draconian restructuring.

Without quibbling about the allegations of fraud cataloged by Ms. Lori Rachac in her “whistleblower” suit, we should ask if justice was served by destroying hospice or if any attempt was made to correct its legion of faults. A closed hospice can’t generate revenue to repay creditors or balance the Medicare books or do any good for anyone.

If the definition of fraud includes a benefit to the defrauder, we will probably have to wait for the court’s decision on that matter. From my limited and biased perspective, did anyone personally benefit from the behavior attributed to hospice, other than the patients in its care? Until all the facts are known, was anyone harmed? That’s not an excuse to pardon fraudulent behavior, but should be compared to other massive government programs that receive a lot more money than hospice and which never cause an auditor to look at the books and squirm.

Sunday, March 2, 2014

Closing Hospice, Part XVIII: Something Doesn't Add Up

(Speech delivered to the San Diego City Council on February 25, 2014)

Previously, I mentioned the absence of due process when hospice was silenced by the blast of a lone whistleblower. That singular, one-sided toot (even if accompanied by all the angels sounding their trumpets), silenced the voice of fairness.

Objectivity demands that we hear from the other side: the side
that contains thousands of testimonials from the families of patients who received care. The number of memorial plaques in the Hospice gardens and grounds testify to the number of families touched by hospice.

As for economics and tendentious fraud, if the government is seeking the return of millions of misappropriated funds representing thousands of fraudulent claims over many years, the arithmetic is suspect.

$1,000,000 copr.

Medicare reimburses hospice at $170 per patient per day. One million dollars—to give one example—would implicate 5,800 patient-days or 16 patient-years.

The $14 million the government first mentioned represents 225 patient years. The figure that drove hospice to its knees—$150 million—represents an unrecoverable, irredeemably fraudulent claim for 2,450 patient years, almost back to the time of Moses (or Charlton Heston).

And, because the government spends $7 million per minute, that loss would be eclipsed in 21 minutes.

Wouldn’t you think that Medicare or the GAO would get suspicious seeing all that money flow out of Washington?

$1,000,000,000; copr.
Not really. All they ever see is money flowing out of Washington, never to return.

But even if the hackles of suspicion were raised, should the government’s only response be to curse hospice to Hell rather than work for its salvation? Even recalcitrant drug addicts, murderers and terrorists get a better deal and a lot of free legal advice to mend their sinful ways.

Now that the dust has settled and the doors to hospice are closed and the fire sale is over, will Medicare recover a fraction of the amount it sought in bankruptcy?

If we agree that all the errors were purposefully and egregiously made, does the granting agency—after years of hands-off indifference—have an obligation to conduct an audit before invoking the finality of the Salem Witch Trials?
"Arresting a witch" copr. Harpers, v. 67, 1883

Sunday, February 16, 2014

Closing Hospice, Part XVII: Blowing Whistles in the Wind

(Two-part speech delivered to the San Diego City Council on January 28th and February 4th, 2014)
*     *     *     *     *
Throughout history, whistle-blowers have received mixed reviews. The righteous will applaud their effort while remaining aloof and avoiding involvement; the indignant will smell a rat probably because they’re also doing something that could attract a whistle-blower’s wrath. In such cases, some heads will nod their approval, some tongues will wag their dissent or, sometimes, heads will roll.

There’s a precedent for this: some companies reward whistlers with a percentage of the monies recovered. A variant occurs when rewards are paid for suggestions that produce an economic benefit or work-place improvement. Some governments have passed “Whistle-blower Protection” laws.

In 2000, the champion of all whistle-blowers was lauded in her namesake movie, Erin Brockovich. Erin could not accept the status quo and blew her whistle loud and long against a company doing bad things. Other whistleblowers seem to have a different motivation: petulance, retribution, notoriety or, in the case of hospice, to expose wrong-doing while remaining oblivious to the unintended consequences, or the specter of a reward.

With hospice, after the whistles fell silent, did anything improve? Images of The Three Little Pigs come to mind. With a single huff and a single puff a lone wolf blew down the house that Hospice built. (The children’s tale had a happier ending.)

If closing hospice was the goal, then the “good” that was achieved has yet to be measured against the sudden release of over 1,200 patients back to their families with little time to plan for their return.

Two explanations surface: 1) the whistleblower was terminated for cause and fell prey to petulance rather than to an epiphany that galvanized her energies to improve the conditions she deemed worthy of improvement, or 2) the potential 15% to 30% reward sullied her objectivity and the charitable opinion of hospice she might have previously held.

Although I have not verified the amounts involved, some of the numbers mentioned as a basis for a reward bounce between $14 million and $150 million. Whatever the amount recovered, a percentage of that could motivate anyone to have their whistles ready.

I applaud whistleblowers unreservedly if their motive is wrapped in righteousness, their goal is to expose “wrongdoing” and their courage is sufficient to effect “right-doing.” I do not question why Ms. Rachac aimed her ire at the admission and retention policies at hospice, but I do question the government’s response in incorporating the whole of Ms. Rachac’s complaint into their own without waiting for due process to kick in or to conduct their own, independent review.

Which brings me to: First-year law students know that Due Process underpins our judicial system. It allows—requires—that both sides have an equal opportunity to discover facts relevant to the case and to submit these to an objective tribunal.

In a parallel universe, the former mayor of San Diego was recently confronted by several women who supported each other in their claim of inappropriate behavior. Whatever the claim, due process would have allowed fairness to be pursued by both sides.

Where are the supporters validating Ms. Rachac’s claim that hospice fudged its figures? Where is the corroborating evidence? Did the news media ferret out other employees who harbored the same suspicion?

A one-sided discussion of anything is hardly lofty and yet if only one side of the hospice issue is aired (even if by angels), it should be balanced by giving the devil his due.

As with the mayor, we may have side-stepped due process. With elected officials and hospice, efficiency and expediency may have trumped other considerations in our rush to judgment. It does save time, though.

Now that Ms. Rachac has “succeeded” in ways she could not have imagined, with hospice gone, can we say the same about due process?