South Florida Sun-Sentinel (Sunday)
Broward Health gets it right, then wrong
Given all the troubles facing Broward Health in recent years, you would think today’s board of commissioners would go above and beyond to ensure their behavior is on the up and up.
But that’s not what happened at last week’s board meeting after commissioners approved a $975,000 settlement with former CEO Pauline Grant, a highly respected hospital administrator who was fired at an ambush commission meeting two and a half years ago.
The size of the settlement clearly communicates that today’s leaders believe their predecessors got it wrong in acting as though Grant had violated a federal antikickback statute.
It’s also alarming to learn the district’s former general counsel, Lynn Barrett, went above and beyond her duty to notify federal officials of the accusation.
District officials say Barrett hired lawyers to lobby the federal government to pursue a criminal case against Grant, an avenue that placed the district — her employer — in peril. For if a CEO is proven to have acted with criminal intent, an organization can be held liable and face catastrophic penalties.
The Department of Justice has declined to pursue criminal charges, records show. But a civil case remains open that, if the government believes the allegations, could result in substantial fines.
It’s possible there’s more to this matter than what we’ve learned from public records and interviews. But from what we know, we continue to believe the allegation against Grant was trumped up.
It came from an orthopedic surgeon excluded from the oncall trauma rotation at Broward Health North, the hospital Grant ran for 13 years before being named interim CEO of the district. (Broward Health is a system of five publicly-owned hospitals and about 30 outpatient sites that serves the northern two-thirds of the county and provides a safety net for people of lesser means. Formally known as the North Broward Hospital District, it levies property taxes to help meet its mission.)
The unnamed surgeon, referred to as “Dr. A” in records, alleged that in deciding who was given trauma cases, Grant and other decision-makers favored doctors who sent more patients to the hospital.
The alleged kickback? Grant received a bonus if the hospital met its financial goals.
The rest of the story
Grant’s lawyers say Barrett and the multi-million-dollar legal team she hired with the public’s checkbook omitted key details in alerting the feds about the allegation.
That is, trauma surgeons are chosen not just by the CEO, but by the trauma director and in this case, the orthopedic trauma director. And in their collective judgment, Dr. A lacked the skill and experience to handle complex orthopedic trauma cases.
Grant told Barrett’s legal team she picked surgeons based on quality, not their patient volume. She denied ever telling Dr. A otherwise. But because she failed
to respond to one of his accusatory letters, Barrett’s muscle decided “the allegation must be true,” according to a 13-page report prepared by Mitchell Berger, one of Grant’s lawyers.
Perhaps Grant should have forcefully written Dr. A to say his lack of experience disqualified him. District officials say that lapse might have been her one mistake.
But it’s not uncommon for leaders to disengage from accusations leveled by a crank. Sometimes, further response only adds fuel to a fire. Failing to respond doesn’t prove anything, in our view. And who knows if it would have helped. Continuing to question a surgeon’s qualifications could also open a can of worms.
Broward Health commissioners had good reason to settle with Grant. For one thing, they saw the report her lawyers sent the federal government after interviewing people high and low.
It said:
■ Orthopedic surgeons given on-call trauma contracts said they were never asked for — nor did they ever offer — a quid pro quo. No evidence was offered to the contrary.
■ Hospital staff made up the trauma-call schedules without regard to how many patients a physician referred.
■ After pestering Grant’s boss, Dr. A was given trauma call, but was later removed after three committees found his care wanting.
■ Dr. A’s accusation went beyond Grant. He said she and two medical chiefs gave contracts to surgeons “who provided kickbacks in exchange for calls.” But Barrett’s hired guns targeted only Grant, with whom the general counsel had “a long history of animosity.”
To us, Grant and the medical chiefs were well within their rights to deny on-call trauma cases to a surgeon they considered unqualified. Their duty, first and foremost, was to patient safety.
And here’s our bottom line: If the district’s legal eagles thought Grant was running a kickback scheme at Broward Health North, why didn’t they go after the medical chiefs who supposedly colluded with her and the doctors who supposedly played the game?
We tried to ask Barrett, who’s since been let go, but she didn’t
respond to our phone calls or emails.
A weak and risky case
The other reason it made sense for Broward Health to settle with Grant is because there was risk in proceeding. Had the district not settled, it was soon headed to trial on her lawsuits. Grant alleged wrongful termination and Sunshine Law violations at that December 2016 ambush meeting.
The events surrounding that meeting led State Attorney Mike Satz to criminally charge five Broward Health officials with breaking the Sunshine Law. A judge dismissed the charges five months ago, but Satz is appealing.
Meanwhile, Grant’s civil-court case continued. And if jurors heard what happened the day she was fired, it’s likely they would have found the board guilty of violating the public meetings law and imposed a substantial verdict.
Here’s why. Case law says a public board’s agenda must include all topics on which it may take action, giving the public a chance to comment. But the vote to fire Grant wasn’t on the agenda. And commissioners never explained why they were firing her.
How is that possible? How could board members suddenly vote to fire a 25-year employee without a word of explanation, unless, of course, they had spoken behind closed doors or participated in a series of rapid-fire individual meetings that shielded public disclosure. Both violate the Sunshine Law.
Had Grant won, she could have gotten her job back, if she’d wanted it. Or perhaps received back pay for two and a half years, plus attorney fees.
For the district to win, it would have had to argue that Grant received a kickback — essentially admitting guilt in the federal case. At that point, it’s just a matter of how many zeros to write on the check.
“We looked at the evidence her attorney shared with us and realized that what was disclosed (to the federal government) was half a loaf,” Gabrial Imperato, recently the district’s interim general counsel, told the Sun Sentinel before last week’s vote.
“We’ve spent over $2 million defending this case … If we choose to litigate this, it’s going to cost us at least another $2 million. If we were to settle for less than half of what it will cost to go through litigation — and we don’t believe we have a strong case — it’s a good deal for us.
“With a settlement, we get the benefit of her cooperation” in the federal case, he added. That includes all the interviews and back-up material her attorneys collected.
You could argue it’s improper to settle with someone whose actions remain the focus of a federal civil investigation. One of Barrett’s outside lawyers told the feds the alleged scheme involved $41 million in federal Medicare, Medicaid and TriCare billings — all of the hospital’s orthopedic trauma charges over a six-year period.
No one we’ve spoken to believes the feds have a case, but you never know about such things. Once the wheels of bureaucracy grind, it’s possible tripwires will be found and a settlement will be made.
Still, we believe board members made the right call in settling the Grant case.
The same cannot be said, however, for what happened next.
A late-night coup
From the minute you walked into last week’s meeting, you got the sense something besides the Grant settlement was going down. And whatever it was, it was not on the agenda.
Sure enough, before the night was over, the board’s leadership had changed hands in what’s rightly been called a coup.
It reminded us of how Grant was fired under an agenda item called “Code of Conduct.” In this case, the agenda mentioned bylaw changes, but nothing about electing new officers.
It happened about six hours into the meeting, around 10 p.m., after most people had left. Commissioners were discussing new bylaws. All agreed they were needed.
The new bylaws were first presented — and amended — at the board’s June meeting and amended again later in committee. More amendments were made at this, their regular July meeting. Whether the changes were material or ministerial was the topic of tension.
It was impossible for the public to keep up because no beforeand-after comparison was available. A junior attorney said the changes were so substantial, such a comparison would be hard to provide.
Chairman Andrew Klein said current bylaws required any proposed change to be presented to the board and acted upon at the subsequent meeting. Vice Chair Christopher Ure agreed the vote should happen next month. But the other four commissioners were eager to vote, suggesting a mere comma could forever stall change. Words like “manipulation” and “smells rotten” were tossed about.
What was really going on
No one mentioned the elephant in the room. The bylaws changed the date of the board’s annual meeting — where officers are elected — from October to July. So if the bylaws passed that night, a board majority believed they could immediately gavel in their new annual meeting and elect new officers.
When it became clear that that’s where they were headed, Klein packed up and left, saying he wouldn’t participate in a vote he considered illegal. Ure, who’d had to leave but was on the phone, disconnected after insults were leveled. But Marie Waugh — who was on the phone after having left to attend her birthday dinner — agreed to return to create the quorum needed to vote.
At that point — with the concurrence of their new general counsel and outside counsel — Commissioners Ray Berry, Nancy Gregoire, Stacy Angier and Waugh voted to adopt the new bylaws and conclude their regular agenda. Then, they immediately convened the new annual meeting and elected Berry the chair, and Gregoire the vice chair.
The election took place without a word of discussion or debate. No one asked Berry or Gregoire if they even wanted their new roles or had the time they would take.
It appeared there was prior agreement about who the new officers would be.
But that’s impossible, right? For that would mean commissioners either talked behind closed doors or that staff passed the information along. The latter is what led the state attorney to charge their predecessors with Sunshine Law violations.
Ironically, earlier in the evening, commissioners bemoaned having to spend $1 million in public money to defend their colleagues against those charges. So you would think this board would tread very lightly with the Sunshine Law.
The bigger question, though, is why the rush? From what we’d heard, Broward Health had turned the corner on good governance. This late-night maneuver changed the optics.
If members were worried about delaying the election of new officers to next July — or October, as regularly scheduled — they should have raised it and discussed a solution. There was no need to beat about the bush. What we think
We believe the fix was in, that this vote was illegal and that it must not stand.
The Sunshine Law requires public boards to give the public a chance to speak on any issue coming before them. Broward Health failed to properly notice the annual meeting and the election of new officers — and denied the public a reasonable opportunity to speak.
We encourage the board to reconsider its vote. Absent that, we call on State Attorney Satz to investigate.
Meanwhile, we urge our state lawmakers to push legislation that requires appointed boards to receive regular Sunshine Law training. It’s unfair to ask taxpayers to continue to pay millions of dollars in legal fees to defend this board’s shenanigans. Editorials are the opinion of the Sun Sentinel Editorial Board and written by one of its members or a designee. The Editorial Board consists of Editorial Page Editor Rosemary O’Hara, Sergio Bustos, Steve Bousquet and Editor-in-Chief Julie Anderson.