Lawmakers sneaked a bill through this past session to extend a law that critics say compromises the health and safety of Hawaii’s elderly and disabled.

Two years ago the adult foster care home industry lobbied lawmakers for regulatory changes to help them make ends meet. They convinced lawmakers and the governor to lower the required qualifications level for caregivers in order to allow foster home operators to hire people to do the same work for less money.

The effort, which involved dozens of care providers writing hundreds of letters, succeeded over the objections of consumer protection groups and the Department of Human Services, which is the agency that oversees such facilities.

Under the current law, a “nurse aide” can substitute for a “certified nurse aide” for up to 28 hours per week at foster homes with at least three clients. Both groups must undergo state-approved training, but the certified nurse aides have to pass a rigorous (and costly) exam.

Maria Estrata, president of The Primary Care Providers, argued at the time the law was passed that permitting nursing aides to act as substitutes would provide enough flexibility to ensure that homes stay in business. The group’s roughly 500 members comprise about 35 percent of the community-based caregivers in the state.

Without these facilities, she insisted, Hawaii will face a health care crisis as its population ages.

Patricia McManaman, the interim director of Human Services at the time, cautioned in her February 2011 testimony that, “For the health, safety and welfare of each client residing in the (Community Care Foster Family Home) the substitute caregiver must be as knowledgeable and competent as the primary caregiver.”

Hesitant lawmakers included a two-year sunset provision in House Bill 739 as a short-term compromise to force them to revisit the law. (It was set to automatically expire on June 30.)

The bill also required the department to assess how well the law was working and to share their findings with the Legislature before the 2012 session started. The agency’s December 2011 report, just over one page long, said that while there were no complaints during the 14-week survey period, there isn’t enough information to know how well the law is working.

Two years later, critics lament a lack of data necessary to assess whether the use of less-qualified substitute nurses is compromising the care of elderly and disabled residents in foster homes.

But, Hawaii’s long-term care ombudsman John McDermott said Tuesday, that “Having a caregiver who is only a nurse aide is just not adequate.”

The foster home residents have very serious, complex medical issues that require skilled care, he said.

Regardless, the Legislature voted to extend the sunset date until July 1, 2014.

“The program has worked well and there have been no indications of compromised care of clients due to having a (nurse aide) rather than a (certified nurse aide) or higher,” Susan Yamamoto, the department’s administrative assistant, said Tuesday.

The department’s position is that limitations on the number of hours that a nurse aide is permitted to care for residents has been helpful in preventing any adverse actions that could jeopardize the health, welfare or safety of clients.

Sunset Clause Became Bartering Chip

There was little public discussion on the decision to extend the law. That is because instead of drafting a bill for the sole purpose of extending this legislation’s repeal date as lawmakers have done for other laws, they introduced House Bill 268. It would have extended the repeal date to 2016, while also changing regulations detailing the minimum age and education level for caregivers in such jobs.

The bill, which was referred to the Human Services and Consumer Protection committees, never got a hearing. Lawmakers turned to Plan B, tacking the measure on as an amendment to another bill. House Bill 529, requiring care home businesses to hold sufficient liability insurance, was ideal because it was related to the industry and, better yet, headed for passage.

Rather than just amend the bill to address the sunset concern, lawmakers and state officials used it as a bartering chip with the industry to help secure other adult care home legislation. They saw it as a chance to improve aspects of the system, such as public access to information, that the industry has long resisted.

“It’s a tradeoff,” Vice Speaker John Mizuno told Civil Beat last week. He introduced the liability insurance bill this past session, as well as the original bill to let nursing aides serve as substitutes in 2011.

The adult care home industry wanted lawmakers to kill House Bill 120, which would require the state to post the facilities’ inspection reports online. The reports are already public record, but the department requires the public to request the records in writing, pay for copies, and wait as long as 15 days.

Passage of the bill on online inspection reports was uncertain midway through the session, so Mizuno said he encouraged lawmakers to attach the sunset provision to the liability insurance bill.

The liability insurance bill sailed through House committees in January and February. When it reached the Senate in March, the Human Services Committee, chaired by Sen. Suzanne Chun Oakland, added the provision to extend the sunset date another year.

Chun Oakland confirmed Tuesday that Mizuno and the foster care home industry did approach her about pushing the repeal date back. But she said Mizuno must be assuming she was open to attaching it to another bill as a tradeoff; she said she makes decisions on bills based on their individual merits.

For example, she said the care home industry wanted to lower the age requirement for caregivers from 21 to 18, but she couldn’t agree to it so didn’t include it in the bill.

The fact that the Department of Human Services didn’t have any concerns about extending the sunset date another year, Chun Oakland said, made her feel comfortable about including it. If the agency was worried or if there were complaints, she said, there’s no way she would have agreed to the extension.

The department closed 15 of the 475 community care foster family homes that are allowed to use nurse aides as substitutes for certified nurse aides between July 1, 2011, and Dec. 31, 2012, according to Yamamoto. None of the closures were related to care issues by nurse aides, she said.

Mizuno said he hasn’t heard of any bad things happening in community care foster homes under the new law.

“If they’re not getting the proper care, we can’t have that,” he said. “Consumer protection has always got to be No. 1.”

Lawmakers did not include anything in the bill to require the department to come back before the next session and report on how well the law has worked, which was the case with the original legislation. But that may be because two new working groups were formed and a big departmental transition is in the works.

The state is in the process of transferring oversight of the community care foster home program to the Department of Health, which already manages licensing and inspections for other types of long-term care facilities. The program’s transfer becomes effective July 1, 2014.

Lawmakers created working groups to help implement the online inspections bill, and to aid in the transition of long-term care oversight from the Department of Human Services to the Department of Health.

Chun Oakland said she expects any concerns about the level of qualification for caregivers to be aired during these sessions. The first meeting for the transition group is July 10.

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