Ding, dong. Broward Health’s Wicked Witch is Dead

In Broward Health, Corporate Management, OIG, Original Content by Dan Lewis1 Comment

Andrew Klein

Beginning just before the September 26 Board meeting, things began to change at Broward Health precipitated by the completely unfounded and unprecedented, personal attack against Commissioner Klein by corporate counsel Lynn Barrett.

Change, primarily because Chairperson Klein had the temerity to exercise his oversight responsibilities and question Corporate Counsel Barrett. 

Barrett, never particularly willing to issue a legal opinion herself, used the well-respected former Florida attorney general Bob Butterworth and his law partner Jesse Diner to chastise Chairperson Klein publicly by proxy.  As it turned out, as was her habit, Barrett only gave Butterworth and Diner only a partial story – but just enough to lend credence to their carefully worded board presentation. 

The real message, of course, was for commissioner Gregoire, who had previously thanked General Butterworth for her appointment to the Board, to keep to the Barrett line that Barrett was there to save the District and together with Butterworth and Diner were under attack by the emerging board majority of Commissioner’s Klein, Ure & Berry.

Leaving the Board meeting of September 26th, Barrett knew that there were now three solid votes to immediately suspend her based on the tenor of the board comments.  Four votes are needed for termination. Then, on Oct 3, 2018 – Beverly Capasso, Broward Health’s chief executive, abruptly resigned, giving no reason for quitting just eight months after being hired.

According to the Sun-Sentinel story by David Fleshler;

Beverly Capasso

“Internal tensions at Broward Health, which is run by a board appointed by Gov. Rick Scott, have worsened in the past few months. Capasso and her senior staff had clashed with Broward Health’s general counsel, Lynn Barrett, over legal fees to outside law firms, such as Foley & Lardner, with some board members joining in questioning the size of payments. As of June, for example, the system had paid the Foley firm more than $2.6 million.”

“Board Chairman Andrew Klein said Barrett engaged in the “weaponization” of the outside law firm, using it to attack her bureaucratic enemies, including anyone who questioned legal fees. Capasso’s departure, he said, appeared to be a consequence of these conflicts.”

“I think, unfortunately for anyone who’s followed Broward Health for the past few years, her departure is not surprising,” he said. “When you have the weaponization of the IRO, that doesn’t make an ideal environment.”

10/03/2018 Sun-Sentinel Story
Ray Berry

Immediately after Capasso’s resignation, Commissioners Berry and Ure asked Chairperson Klein to call an emergency/special meeting of the Board for this Thursday, October 11, at 10:00 am.

Chris Ure

Commissioner Ure, once a Barrett supporter was now seeing through her misrepresentations and incompetence, particularly with her legal advice that resulted in a criminal charge against him for violating the Sunshine laws – a charge Ure strongly contests as patently unfair (and I think he has a point).

Barrett, sensing her imminent suspension, failed to notice the emergency meeting properly and again turned to Butterworth and Dinar to suggest that the meeting was improper. A second meeting was suggested for the 12th where proper notice could be given – but this meeting too failed to happen primarily due to “confusion” artificially created by Barrett in the “clerical” determination of whether the meeting was a “special” or “emergency” meeting (The District’s by-laws treat each type of meeting differently). To his credit, rather than being caught between the pretibial rock and hard-place, Chairperson Klein decided to be patient until the regular October Board meeting on the 31st.

Nancy Gregoire

During the intervening days before the scheduled October 31st meeting, Commissioner Nancy Gregoire, a highly respected appellant attorney of some note, had both the time and focus on speaking with many community leaders concerned about Broward Health, and the opportunity to visit with many of Broward Health’s leading physicians. She learned what her board colleagues, Commissioners Klein, Ure, and Berry already had learned – Barrett had misled the Board on many occasions and was, at the very least, disruptive to Broward Health and a real impediment to the system through her needless distractions which prevented the focus on the Board’s oversight responsibilities and the health of the community.

Commissioner Gregoire, after careful investigation and thought, joined the Board majority and became the fourth vote for termination. Ironically, had the emergency or special meeting of the Board occurred – which Barrett fought so hard to prevent, Barrett would probably still be employed because Commissioner Gregoire had not had the time to change her mind by that time.

Broward Health Corporate Counsel Lynn Barrett was terminated at the must see October Board meeting (click to view the video), Beverly Capasso’s resignation was accepted, and Mr. Gino Santorio with broad system-wide support was unanimously made acting CEO.

[Note: Beginning in October, Broward Health began to live stream all their sunshine meetings. These videos can be viewed for all Board committees as well by going to Broward Health Calendar pag  , select the month and scroll to the meeting and look for the “Watch Meeting Video” link at the bottom of the meeting description. I strongly urge you to view the October 31st Board meeting. These videos are of exceptional quality and means I no longer need to video the meetings. I thank Alan Goldsmith and his capable staff in making this happen!!]

Barrett weaponized the federally mandated 2015 Corporate Integrity Agreement (so-called “CIA”) and used it to punish those who questioned her regardless of their position. She did this expanding the scope of the Federal oversight to matters of only local concern and by creating a pervasive atmosphere of abusive legal inquisition primarily by abusing her discretion in hiring and directing legal counsel, by implicitly threatening employee’s jobs and livelihood, and by promoting a big lie.

The big lie Barrett told was that Broward Health is a corrupt organization where everything and everybody was under intense federal scrutiny. In support of her lie, Barrett refers to the 70-million-dollar 2015 settlement with the Federal Government. What she doesn’t say is that the settlement involved only nine physicians (of 1,800 Broward Health Physicians) and that Broward Health admitted no wrong-doing. Also, even at 70-million dollars, it was cheaper to settle than fight the Government in the prevailing regulatory environment. Plus, Broward Health was sitting on more than 750 million dollars as a consequence of smart fiscal controls and extraordinary success at investing the public’s money.

Furthermore, any future federal scrutiny was suposed to be limited to arrangements between Broward Health and health care providers or vendors where payment could be a result of impermissible referrals (the Anti-Kickback and Stark laws). But Barrett, either intentionally or incompetently, theoretically expanded this scrutiny to all agreements in the organization. BTW – in this regard, Broward Health is and has been since the 2015 settlement agreement 100% compliant in its contracts and mostly compliant in its procedures.

To explain, following is an excerpt from the settlement presentation given to the Board of Commissioners by Broward Health’s previous (extraordinarily competent) Washington attorneys at Arent Fox, LLP who was later discharged by Barrett.  Jacques Smith provides this quick history which begins on page 19.  (click for the full text of the shade meeting): 

They [the Government] told us that they had narrowed down, based upon our advocacy efforts, the 27 physicians that were initially at issue, down to 11 physicians, which was a good sign. But unfortunately, the damages that the entity was facing were wide. We were looking at approximately $276 million in damages. This is $92 million in single damages, treble that, and not including any civil penalties. …

We came up with many arguments on your behalf, and then we proposed a settlement amount under $30 million, which we felt would be favorable to the entity [Broward Health].

In September 2014 the government countered and came back with a $98 million settlement offer, which had moved from their $276 million number. Of course, they did want attorney’s fees that they could get under the statute for the relator [Whistle-blower Dr. Michael Reilly]. And this $98 million settlement number was based upon their single damages estimate of $71.6 million that they had. …

In September of ‘ 14, of course, we had encouraged them to reduce the number of physicians below. We had got them down to the nine physicians.

By October of 2014, we came back with a counter, also with the board’s consent. And we suggested a recommended settlement under $51. 2 million. And this is after we engaged in consulting firms and economists to both run the numbers and look at the damage analysis.

The government came back in November 2014 with an $85 million settlement number, always asking for the statutory fees on top of that, and stayed with our number of nine physicians that they were most interested in.

By the time we got to December of last year, we had suggested $56 .3 million. That’s when we last met and visited with you guys. When turning for this year, the government came back with an $80 million settlement, still with nine physicians. …

We then suggested and made a larger move to $62.5 million with the idea of ending this. The government came down to $75 million, which was significant, that was a good move.

We settled at $69.5, plus relator’s [whistle-blower’s Dr. Michael Reilly] attorney’ s fees and interest that would begin accruing on June 18th, 2015, for the release on the nine physicians that they were most interested in and a cold comfort letter that we discussed before, and I’ll get into some detail on it a bit later, from the Department of Justice. But that this was all, of course, subject to the board’s approval.

That’s where we are today. We’ve got a handshake deal for $69.5 million, which is below the single damages number that they presented in this case.

You may be interested, how does this $71.6 million in single damages play out? Where do the damages come from? Well, the reality is, there is four physicians that were named in the subpoena that account for the lion share of your dollars.

The first is Dr. McCormack, and her alleged single damages in this case is $30 million. And that accounts for 42 percent of the single damages number.

The second is Dr. Rodriguez-Cortes, and he accounts for $11 million in the alleged single damages number. That’s approximately 15 percent.

Next, is Dr. Roskos, who accounts for approximately $9 million or 12 percent of the alleged damages.

And finally, the last number of the top four is Dr. Chizner. who accounts for approximately $8.5 million or 12 percent approximately of the alleged single damages.

The other nine physicians were minor relative compared to those four.

(click for the full text of the shade meeting)

Just for perspective – nine physicians of 1,800 working at Broward Health is less than 0.5%, – no more than a rounding error for Broward Health. 

With Barrett’s termination and the appointment of Mr. Santorio as CEO, Broward Health with its strong Board super majority including Commissioners Berry, Ure, Gregoire and Klein can now begin to hear the truth and heal itself by focusing on its mission of providing world-class healthcare to our community. There are some extraordinary caregivers and competent professionals among the 10,000 employees of Broward Health who can now breathe a sigh of relief. “Ding, dong, the wicked witch is dead” (Wizard of Oz, Munchkin’s song).

I’ve run out of space, so I must end here.  I’ll have more on this in future articles.

Comments

  1. If the Broward Health Board is indeed headed in the right direction, they will conduct a CREDIBLE regional and national search for a pedigree President/CEO.

    Broward Health has endured leadership incompetence for decades. Similar to Jackson, Broward Health needs a leader that can break the mold of tradition and take it to the next level.

    Recruit an Executive with a track record to eliminating cronyism, backroom deals and sustaining quality.

    Gina is helpful but does not have the skill set. If he is named permanent, it will be a matter of time before he owes someone and will make a decision, not in the best interest of the community.

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