Pressing yellow Post-it notes on their shirts, roughly a dozen middle-aged women found seats in a conference room at the state Capitol Building just a few days before the legislative session ended.
Handwritten on the little pieces of paper was a simple, direct message to the lawmakers sitting at a table across from them: “Kill HB120!”
It was an 11th-hour rally among adult care home operators to defeat legislation that will require the Department of Health starting Jan. 1, 2015, to post online the annual inspection reports of the state-licensed facilities they run.
The powerful lobbying group failed that late-April afternoon to convince lawmakers to shelve House Bill 120, marking the end to a years-long battle to boost public access to inspection reports. Key compromises kept the legislation alive along with supporters going to great lengths to make their voices heard over the industry.
With the Legislature’s passage of the bill last month, Hawaii is on track to join 27 other states that place annual inspections of all long-term care facilities on their respective websites, state long-term care ombudsman John McDermott said.
“The passage of HB 120 is very significant — maybe more so than most people are aware,” he said. “The result of this legislation will be that the public will find the good facilities and keep their beds full and the homes providing poor care will now have a choice to make — do a better job or go into another line of business.”
The reports contain the violation histories of almost 2,000 long-term care facilities in Hawaii. The records are already public, but to view them the department currently requires a formal request in writing.
The process can take up to 15 days and the department charges for the time it takes to gather the records, redact names and make copies. That’s too long and costly for people like Wendy Silverthorne who only had a matter of hours to find a place for her mother who was getting discharged from a hospital but wasn’t well enough to return home.
Silverthorne, who grew up on Oahu but now lives in Washington, became the poster child behind the push for the bill.
“We still have the sense that most people have no idea that they need this legislation because you don’t know until you get into the situation,” she told Civil Beat last week. “It’s all about families being able to be informed and make educated choices. You often have to make those decisions within 24 hours, so you don’t have the luxury to wait.”
Advocates for putting the records online have tried to get lawmakers to pass this type of legislation for years since the department won’t do it on its own accord.
“The Legislature has now officially acknowledged that the public has the right to this information,” McDermott said. “We taxpayers pay for these inspections and the state only does inspections to protect the public so why not make getting that information as easy as possible?
“The technology is there,” he added. “And now so is the willingness to do the right thing, even though politically there were some roadblocks.”
‘Fair To The Care Home Operators And Useful To The Public’
The care home industry has strongly resisted efforts to open up access to inspection records every time it’s been tried and this session was no different.
Wearing Post-it notes at the conference committee hearing was minor compared to earlier scenes when the bill’s fate was less certain. Back in February, care home providers wore matching red shirts as they pushed kupuna in wheelchairs through the halls at the Capitol.
The industry’s lobbying effort would have succeeded again this past session if it weren’t for key compromises.
The bill was changed at one point in the House to allow the Department of Health to post the inspection reports rather than require it. And only the worst violations had to be included instead of everything that’s cited.
To appease the care home industry, lawmakers included language in the bill’s final form that requires the department to delete the inspection reports from the website three years after posting. The legislation also allows the department to include other information, such as positive attributes about the facilities, as it deems appropriate.
But one of the biggest reasons the bill was able to pass was its creation of a working group that is tasked with creating a new inspection form. The legislation requires the group to include stakeholders from all the pertinent parties and says the new form must be “fair to the care home operators and useful to the public.”
Senate Human Services Chair Suzanne Chun Oakland spawned the working group idea. Silverthorne and others heaped praise on her and Sen. Laura Thielen for bringing all the parties together and ushering the bill forward.
As a side note, Thielen said she used the language in HB 120 for a similar bill that will require the Department of Agriculture to post online the reports it does for pesticide spraying. Like the care home inspection reports, the information is already public but it takes time and money to access it.
Both bills are great for consumers, she said.
“If we’ve already made the policy call that the information should be public, we need to make it readily available,” Thielen said, adding that the bills’ passage also reflects a growing public expectation that such records be available online in the Age of Information.
Passing HB 120 required an orchestrated grassroots effort to overcome the well-oiled lobbying of the care home industry.
Silverthorne said she was surprised the bill passed since it left the House in such a diluted form after an outpouring of criticism from care home providers. She flew to Honolulu so she could testify in person before key Senate committees.
But Silverthorne said it was far from her individual effort that resulted in the bill passing. She said the real trick was supporters’ ability to rally people to testify on something that they hadn’t realized they might benefit from one day.
“It’s hard to be the little voice speaking for a large group of people that really need this to happen but have no idea that they need it,” she said. “Even here from the mainland, I was contacting friends and professionals I know in Hawaii. And although many took time to write testimony, it was not an organized lobby.”
Dissension Over Dollars
The Legislature passed the bill April 30 with only Reps. Rida Cabanilla and Bob McDermott (no relation to the ombudsman) voting against it.
Cabanilla, whose district includes many care homes, said she supported a House version of the bill that allowed the department to post only the most egregious violations that endanger a patient’s safety. She said anything beyond that is unfair to the care home industry.
Care home operators and lobbyists said in their testimony that they save the state millions of dollars in long-term care costs.
“These frivolous citations have nothing to do with the quality of care, nor the health, safety and welfare of residents,” Alliance of Residential Care Administrators President Lilia Fajotina told lawmakers in March.
Fajotina and others said posting the violations online would put them out of business, but didn’t provide any evidence to support their claim.
McDermott said he opposed the bill due to its associated costs and because he felt it was reinventing the wheel. He said his preference would be for consumers to rely on the Better Business Bureau for complaints against adult care home.
“For one, it seems to me people aren’t going to look to the government to monitor that,” the Republican lawmaker said. “And two, government is extraordinarily inefficient. The website won’t be updated and then people will blame the state.”
The Legislature appropriated $148,000 over the next two years to fund computer equipment, website and data development, staff support and two full-time positions for the Department of Health to implement the law.
Health Director Loretta Fuddy told lawmakers in February that the department could do the job for $46,000 a year, but upped the amount near the end of session after determining additional needs.