By DANIEL MAYEDA
Background: Five years ago, the nonprofit organization Keiro entered into an agreement to sell to a for-profit corporation called Pacifica its four residential facilities that had served Japanese and Japanese American senior citizens for many years. These included a retirement home, an intermediate care facility (ICF), and two skilled nursing homes.
This was a highly controversial decision because, among other things, Keiro had been built by contributions of donations and volunteer time over several decades to ensure that Japanese/Japanese American elderly would have a place to go as they aged that would provide culturally sensitive healthcare and a supportive community.
When the planned sale of the facilities became known to the Japanese American community, many people protested in a variety of ways. One effort was to ask that the California attorney general stop the sale based on a state law that requires the AG’s Office to approve of the transfer of healthcare facilities from a nonprofit entity to a for-profit one.
Due in part to the outcry, the AG’s Office approved the sale but only after imposing on Pacifica and any operators of the facilities that it retained several “sale conditions” intended to ensure that the facilities’ residents would continue to enjoy services that were similar in kind, level and cost to those that they were accustomed to under Keiro’s ownership.
Most of these sale conditions were to last for five years from Feb. 6, 2016. To ensure that Pacifica would comply with the sale conditions, the AG’s Office established a process by which Pacifica, the head administrators of each of the four facilities, Keiro, and a newly created Community Advisory Board (CAB) would present annual reports certifying that everyone was in compliance for the past year.
Pacifica’s Non-Compliance with the Sale Conditions: As determined by the lack of certified annual reports, Pacifica has not been in full compliance with the sale conditions for most of the past five years. Based on evidence of various aspects of Pacifica’s non-compliance, the CAB has refused to certify the annual reports since 2018.
The Two Nursing Homes Have Become COVID-19 Hotbeds: The two former Keiro nursing homes, now called Kei-Ai Los Angeles Healthcare Center and Kei-Ai South Bay Healthcare Center, have shockingly high percentages of COVID-positive residents and staff.. This is due in part to Pacifica’s decision to make Kei-Ai Los Angeles a designated facility for accepting asymptomatic but likely still contagious COVID patients who are discharged from area hospitals. Such patients are supposed to be put into isolation units to protect other nursing home residents but the facilities are not set up to be able to maintain isolation of COVID patients.
Based on public records, Kei-Ai Los Angeles has 229 (out of fewer than 290 occupancy) and 162 staff who have tested positive, with 80 COVID-related deaths and counting. Kei-Ai South Bay has 84 residents (out of 100 occupancy) and 65 staff who have tested positive, with 16 COVID-related deaths so far. **The Los Angeles Times** reports that Kei-Ai Los Angeles has the highest number of infections and deaths of residents of all skilled nursing and assisted living facilities in the state. https://www.latimes.com/projects/california-coronavirus-cases-tracking-outbreak/nursing-homes/
Pacifica’s Intention to Convert the ICF to Market Rate Housing: Pacifica has indicated its intent to shut down the ICF in Boyle Heights, move out its nearly 90 residents, and convert the building to market rate housing. Although such an action would be forbidden by the sale conditions, Pacifica apparently believes that it will be free of any restrictions on its maintenance of the facilities after Feb. 6, 2021.
Pacifica’s efforts in this regard are opposed by the ICF residents, the Boyle Heights Neighborhood Council, Congresswomen Judy Chu and Maxine Waters, State Assemblyman Al Muratsuchi, Los Angeles City Councilman Kevin de Leon, and many others.
The ICF residents have no good alternatives if the facility is shut down in the short term. Their need for care is greater than that offered by the Sakura Gardens Assisted Living (Retirement Home) and given the COVID situation, they are scared to death at the thought of moving into the nursing homes.
Amendment of the Sale Conditions Due to Unforeseen COVID Emergency: The California Code of Regulations that gave the AG’s Office the legal authority to impose the sale conditions in the first instance itself provides for amendment of the sale conditions where there has been “a change in circumstances that could not have reasonably been foreseen at the time of the attorney general’s action.” CCR Sec. 999.5(h).
The current state of emergency of the COVID-19 pandemic is clearly a change in circumstances, unforeseen in February 2016, that materially alters the impact of the sale conditions and that amply justifies amending those conditions.
Koreisha respectfully suggests the sale conditions be amended/extended for a minimum of a two-year period or through the end of the state of emergency for the Kei-Ai nursing homes, whichever is later.
Koreisha further requests that the sale conditions be extended to prevent the closure of the ICF until Pacifica is able to demonstrate that there are adequate alternative culturally-sensitive and affordable facilities to which the residents of the ICF can be transferred without fear of COVID contagion.
Keiro Can Play a Crucial Role in Saving the ICF and Its Residents: Because Keiro entered into the original agreement with Pacifica regarding the sale of the facilities and is a party to the imposition of the sale conditions, it may be deemed a necessary party to any decision by the AG’s Office to amend or extend them. All it would take to help save the residents of the ICF is for Keiro to request that the AG’s Office amend or extend the sale conditions to prevent Pacifica from shutting down the ICF for a reasonable period of time in light of the pandemic.
Through this simple act that only it is in a position to take, Keiro can save the ICF and help unify the Japanese American community around what we all agree is an imperative — rescuing nearly a hundred desperate seniors who have nowhere else to go. Pacifica is days away from being freed to do what it wishes; the time for Keiro to act is now.
Daniel Mayeda is a lawyer with Ballard Spahr, which is providing pro bono representation to Koreisha Senior Care & Advocacy. He is also a clinical professor at the UCLA School of Law.