Urine-filled diapers, soiled sheets and a softball-sized bed sore. That’s how social workers found 88-year-old Nona Mosman in the spring of 2013.
Her health rapidly declining, the state moved Mosman out of the community care foster family home in Waipahu where she’d been living for several years and placed her in a nursing facility in Honolulu to receive a higher level of care.
It was too late. Mosman died four days later.
The deputy medical examiner ruled her death a homicide, linking it to decubitus ulcers frequently found in cases of neglect. They’re caused by the pressure of lying in the same position for a prolonged period, which is why Mosman was supposed to be repositioned every two hours.
Mosman’s primary caregiver, 36-year-old Jennifer Polintan, was convicted of manslaughter for failing to provide the proper care. She was working another full-time job and left Mosman in the care of her father, Francisco Polintan, who was unqualified to tend to her needs.
Jennifer Polintan is now behind bars, her business shut down and the home in foreclosure.
Health officials, national experts and state lawmakers question whether there’s a fundamental flaw in Hawaii’s care home system that is also to blame.
“It’s just an empty shell when it comes to accountability.” — Richard Mollot, Long Term Care Community Coalition executive director
Unlike in many other states, Hawaii does not mandate unannounced inspections as part of its annual certification process for community care foster family homes — like the one Mosman lived in — and similar facilities in neighborhood settings that only serve a few clients, including adult residential care homes. Officials have the authority to make unannounced visits, but say limited resources often prevent them.
By contrast, the state’s skilled nursing facilities face unannounced inspections, whether it’s prompted by complaints or their license renewal. That’s because federal law requires it and the state typically conducts its license surveys in conjunction with the Medicare review. This includes the 49 nursing homes in Hawaii.
“It’s just an empty shell when it comes to accountability,” Richard Mollot, executive director of the New York-based Long Term Care Community Coalition, said of the inspection system for small care homes. “It’s very worrisome because of this whole shift to move people out of nursing homes so people can get care in less institutional settings. But it’s become this tremendous crapshoot.”
With the increasing cost of nursing homes and institutionalized setting, more people are turning to smaller, more affordable care homes in neighborhoods, especially people who don’t yet need the extensive care that nursing homes provide.
The median annual cost of care in Hawaii for a private room in a nursing home is $135,000, according to an April study by Genworth. That’s double or even triple the cost of staying in residential care homes or community foster homes.
Nationally, nursing home beds and facilities are decreasing. There were 1.74 million beds and 16,749 facilities in 2008, but that dropped to 1.72 million beds and 16,516 facilities in 2013.
Meanwhile, the number of licensed board and care facilities has steadily risen over the same five-year period, going from 1.13 million beds and 50,116 facilities to 1.27 million beds and 53,376 facilities.
Civil Beat reviewed seven years of inspection reports for Polintan’s home, from the time it opened for business in 2007 until its certificate to operate was revoked in 2013.
Polintan’s facility, Divine Home Health Care, was one of roughly 1,100 community care foster family homes in Hawaii that collectively provide 2,800 beds to serve people who can no longer live on their own and want to age in a residential setting.
The CCFFHs are part of the state’s growing network of almost 1,700 long-term care facilities offering more than 12,000 beds, which includes nursing homes, adult residential care homes and assisted living facilities.
The inspection reports for Polintan’s home, obtained through a request made under Hawaii’s open records law, show that officials visited the home during announced visits as part of the annual certification process. There is no indication of any unannounced inspections until a complaint was received that led to Mosman’s removal shortly before her death.
They identified deficiencies of varying degrees over the years. Background checks for the caregivers were out of date, as were CPR and first aid certifications. Evacuation plans weren’t available, fire drills weren’t conducted and there was no documentation for medication training at one point.
These types of problems are found in inspection reports for a number of other care homes. Redacted versions of the most recent inspection reports are available online, as required by a law passed in 2013 over the objections of the care home industry, which argued that it was a privacy violation and could be misleading to the public.
Officials worked with Polintan, as they do other operators, to bring the home into compliance soon after each inspection and keep it running.
“The home looks perfect even though it may not be. It’s a little bit of a game there.” — John McDermott, Hawaii long-term care ombudsman, referring to announced inspections
John McDermott, Hawaii’s long-term care ombudsman, said these inspections given with notice are effectively not inspections. He has been advocating for years to get the state to mandate unannounced inspections, but his efforts have been thwarted by care home operators who collectively are politically powerful in Hawaii.
McDermott routinely hears stories about care home operators gearing up for their annual inspection — giving the home a thorough cleaning, ensuring the appropriate staff are present and readying other items to be checked off the list.
“The home looks perfect even though it may not be,” he said. “It’s a little bit of a game there.”
The Hawaii Department of Health’s Office of Health Care Assurance, headed by Keith Ridley, has official oversight over almost every care home in the state. It took on CCFFHs in 2014, which were under the Department of Human Services until the Legislature transferred the responsibility.
Ridley said unannounced inspections happen, but didn’t have data available to show how often or for what facilities. Civil Beat asked for those numbers last month under Hawaii’s Uniform Information Practices Act and is awaiting a response.
Unannounced inspections are most often done in response to complaints or follow-ups to announced inspections to ensure the facility is following through with something it had to fix, Ridley said.
Like most agencies tasked with regulating the adult care home industry and protecting the welfare of the state’s growing elderly population, the Office of Health Care Assurance is strapped for resources, limiting its ability to do inspections.
“It would certainly help if we did have more inspectors,” Ridley said.
The state contracts with Community Ties of America, which has its corporate headquarters in Nashville and a local office in Kaneohe, to serve as the primary regulatory reviewer to license CCFFHs and other care homes in Hawaii.
The state has separate teams that conduct inspections, Ridley said. There’s one for assisted living facilities and adult residential care homes, and another for skilled nursing facilities. Each team has roughly 10 inspectors, he said.
For the certification of Polintan’s community care foster family home, CTA sent one of its “compliance managers” out to inspect and license the facility.
The company routinely renewed Polintan’s certificate to operate and agreed to let her add a third client in her home three months before Mosman died. Her previous certificates allowed two clients.
CTA’s David Ayling thanked Polintan for her “hard work and willingness to serve the elderly and disabled of Hawaii” in a letter dated Feb. 14, 2013.
Her health deteriorating, Mosman started receiving end-of-life care April 20, 2013. It was a hospice nurse who noticed that the pressure ulcers on Mosman’s hip and heel were uncovered despite instructions and supplies given to the caregiver. A bed sore on her left hip extended to the bone, according to the autopsy report.
A complaint was filed with Adult Protective Services and Mosman was transferred to Nuuanu Hale on May 10. She died there May 14.
DHS denied Civil Beat’s request to see a copy of the complaint. A spokesperson cited a state statute that specifically seals such complaints — even redacted versions — noting that the goal is to create an atmosphere in which complainants feel confident their identity will be protected.
Some other states make the complaints public but black out information regarding the identity of the complainant, the reported victim, all witnesses and the protected health information.
The complaint prompted social workers to visit Polintan’s home unannounced on May 15, the day after Mosman died. During the inspection they discovered log books that seemed to have been forged and an unapproved caregiver looking after the remaining two clients.
Health inspectors conducted a second unannounced inspection May 20 and found similar problems. Community Ties of America took action to close the facility 10 days later.
“The absence of an approved caregiver to supervise and address client care needs jeopardizes the health, safety and welfare of your clients. Therefore, it has been deemed necessary to immediately remove your clients from your home,” CTA regional manager Mitzi Hester wrote in a letter to Polintan on May 30, 2013.
The identities of the caregivers are blacked out in the copies of the inspection reports provided to Civil Beat. Ridley said his office “typically would redact any proper name.”
But the criminal case against Polintan, filed by the Hawaii Attorney General’s Office last year, brought the names to light.
Polintan owned the care home and served as the primary caregiver, common throughout the industry.
But she was often gone 10 hours a day while working a second job at Schofield Barracks, leaving the care of Mosman and her other clients in the hands of her father, a nursing assistant who was unqualified under state law to serve as a substitute for such long periods of time.
Her father’s girlfriend, Lolita Schimmel, who as a certified nursing assistant met the substitute caregiver requirements, helped keep the overseers at bay by signing the log books as if she was providing care in Jennifer Polintan’s absence, according to court records and inspection reports.
Deputy Attorney General Michael Parrish, who works in the state’s Medicaid Control Fraud Unit, prosecuted all three of them. He described the Polintans as “abject failures as caregivers.”
Jennifer Polintan pleaded guilty as part of a deal with the state. She was sentenced to a year in jail for manslaughter and was ordered to pay $13,868 restitution to the state and Mosman’s family, plus a $600 fine.
She apologized to the family during her sentencing hearing, saying she loved Mosman and cared for her like she was her own mother, who was also in Polintan’s care at the home.
Her attorney, Victor Bakke, argued that Polintan was wrongly being blamed for the death of a woman who was already receiving end-of-life care.
Polintan’s father was sentenced to 30 days behind bars for endangering Mosman’s welfare. Schimmel paid a $10,000 fine.
“When people make a conscious decision to bring a dependent adult into their home under the guise of providing care, and are getting paid to provide that care, then it is inexcusable and can have tragic consequences when they fail to do so,” Hawaii Attorney General Doug Chin said in a statement last March announcing that an Oahu jury had found Francisco Polintan guilty.
Deputy Attorney General Chris Young, who heads the Medicaid Control Fraud Unit, said unannounced inspections would help hold the care home industry accountable.
The elderly population is incredibly vulnerable and reluctant to file a complaint, Young told Civil Beat. Getting testimony is a challenge too, given the doubt that the defense can cast on poor memories.
“The victims in these cases are akin to children,” Young said.
Prosecutors often rely on physical evidence, such as bed sores, to help prove a case, he said.
The AG’s Office receives numerous referrals from Adult Protective Services about suspected cases of abuse and neglect, Young said.
Hawaii’s Adult Protective Services Program investigates roughly 1,000 cases of abuse or neglect each year:
APS has investigated roughly 1,000 reports of abuse or neglect in each of the past five years, according to DHS’ most recent annual report to the Legislature, submitted last December.
Roughly a quarter of the cases were categorized as caregiver neglect. This includes both the care provided by professionals in licensed care homes and by family members at personal residences.
For the fiscal year that ended June 30, APS investigated 978 cases, 376 of which were for caregiver neglect.
For decades, the AG’s Office only saw a fraction of the elderly abuse and neglect cases that APS receives. That changed with a new policy in the early 2000s. APS used to make the determination of whether a case rose to the criminal level and would then forward on the case, but now all the cases are sent to the AG’s Office to decide since it has more expertise on that front.
Elliott Kano, APS administrator, said his agency is focused primarily on the client’s welfare. Social workers inspect homes with that in mind and look for threats of imminent harm.
“We’re not a punitive department,” he said. “We are the helping profession.”
When the AG’s Office lacks jurisdiction, it sends cases to county prosecutors for their review, another improvement made in recent years. There used to be an assumption that because a case went to the AG, the AG would be handling it.
The Medicaid Control Fraud Unit, which is funded by a federal grant, can’t take cases if all the clients in the care home are paying out of their own pocket. Those go to the county prosecutor.
Honolulu Prosecutor Keith Kaneshiro has been “very receptive” to taking on cases the AG cannot, Young said.
“Hawaii is a small place,” Young said. “We have limited resources. Prosecutors and law enforcement understand that and work together to get things done.”
Since 2000, the number of licensed care homes has more than tripled and the number of abuse complaints has more than doubled as Hawaii’s elderly population has grown.
Ridley described his resources to do inspections as “insufficient,” something seconded by his new boss, Health Director Ginny Pressler, whom Gov. David Ige appointed in December.
Pressler said a shift to mandatory unannounced inspections as part of the annual certification process would be a “good idea.”
But state officials said it’s a challenge to make that actually happen.
For most care homes, the law requires the licensing or certification inspection to be announced, but allows unannounced inspections at any other time. Resources hamstring that.
The state conducts announced inspections as part of its annual or biannual certification process by giving care home operators a “ballpark” timeframe, Ridley said, which amounts to telling them a day of the week and what month. A Thursday in October, for instance.
If not mandated by the Legislature, the Department of Health would have to go through a lengthy rule-making process to change its policy.
Former Health Director Bruce Anderson attempted to do this 16 years ago, ordering a change in rules to require unannounced inspections. But by the time the rules were sent to the governor the administration was changing hands. Ben Cayetano was leaving, Linda Lingle was arriving, and it never happened.
Legislators took up the issue after media reports about several deaths in care homes due to neglect or abuse.
James Pietsch, director of the University of Hawaii’s Elder Law Program, told the Honolulu Advertiser in 2003 that elder abuse and neglect was “a hidden epidemic” in Hawaii.
Parrish prosecuted a manslaughter case against 40-year-old Raquel Bermisa for the death of Chiyeko Tanouye, who died from bed sores in 1999 at age 79. Bermisa was sentenced to 20 years in prison in 2001, but Cayetano commuted her sentence to four years.
Bermisa, who had operated a five-client home, failed to implement a treatment plan, similar to what authorities say happened in the Polintan case.
Rep. John Mizuno remembers the debate that engulfed the Capitol.
“It was a big issue,” he said.
AARP members were out in force wearing their red shirts during legislative hearings and waving signs that said “Unannounced” and “Pass House Bill 914,” Mizuno recalled. An AARP poll in 2003 found that 90 percent of its members favored unannounced inspections.
On the other side were caregivers explaining that they were already buried by strict state regulations and had to be on call 24 hours a day. They underscored the service their industry provides to Hawaii, saving residents millions of dollars.
The Senate was willing to mandate unannounced inspections at the time, but the House wasn’t. The two chambers compromised on a bill that gave the Department of Health the authority to do unannounced inspections but did not require it for the annual certification process, which critics said is often the only time a home is inspected.
“By the time a complaint arrives, it might be too late.” — Rep. Sylvia Luke
Rep. Sylvia Luke, who co-introduced a bill in 2003 to allow unannounced annual inspections, said the whole point of the law is to have the department be more proactive. The bill she introduced, House Bill 846, was similar to the one that passed that year.
“By the time a complaint arrives, it might be too late,” she said.
Lawmakers don’t know to what extent the department is doing unannounced inspections, Luke said, adding that the information should not have to be obtained through a formal public-records request.
Luke and other lawmakers said it may be time for the Legislature to revisit the statute governing inspections.
“There’s been more and more attention on elderly issues just simply because our population is aging,” she said. “Especially in Hawaii, there’s a big sense of responsibility to take care of our elderly population.”
Rep. Marcus Oshiro, another co-introducer of the legislation in 2003, said mandatory unannounced inspections are “a no-brainer.”
“Announced inspections is when care homes can create a scenario that’s contrived,” Oshiro said. “We have unannounced for work sites … so why shouldn’t we have it for care homes, especially for a population that is physically limited and mentally challenged?”
Mizuno, who represents Kalihi Valley where many care homes are located, said changing the current policy would be hard.
“The care home operators would come out in droves to oppose it,” he said.
The industry has “political clout with certain members” of the Legislature, Oshiro said, which has made it hard to pass measures driven by the consumer side.
“They’re a pretty potent and influential lobby,” he said.
That’s not just the case in Hawaii.
Lori Smetanka, director of the National Ombudsman Resource Center and head of the National Citizens’ Coalition for Nursing Home Reform, said she regularly hears from states across the country that the industry is very powerful.
“It’s extremely difficult to have legislation that might be something they oppose actually be enacted into law,” she said.
Mizuno said he’d be surprised to see lawmakers consider legislation mandating unannounced inspections next session, which starts in January, in large part because it’s an election year and would be too controversial.
“There are a few bad apples and those are the ones that should be shut down because they give the industry as a whole a bad name.” — Rep. John Mizuno
Mizuno said he understands consumer advocates who think the care homes just ramp up for the announced inspection, leaving questions about how things are operating the rest of the year. But he also sees validity in the point of view of many care home operators who don’t want lengthy unannounced inspections interrupting client doctor appointments, recreational outings or a trip to the pharmacy.
“The majority of care home operators do a great job,” Mizuno said. “There are a few bad apples and those are the ones that should be shut down because they give the industry as a whole a bad name.”
Sen. Josh Green, a Big Island emergency room physician who has seen cases of neglect first-hand, said there should be both announced and unannounced inspections.
“The nature of knowing you have to be checked periodically helps them keep their quality up,” he said.
Announced inspections are a “huge driver” in hospitals, which will work for months to get everything in order, Green said. “Everyone is certainly on their best and on their game for the inspection.”
Lilia Fajotina is president of the Alliance of Residential Care Administrators, which represents adult residential care home operators statewide. The homes are found in neighborhoods throughout Hawaii but are mostly consolidated in Waipahu, Pearl City and nearby towns.
She said the current inspection system works well.
Fajotina is opposed to the state conducting unannounced inspections as part of the facility’s certification process.
In May she received noticed from the state that the Waipahu care home she runs would be inspected on a Wednesday in November. She said that’s a fair process.
“For the annual inspection, they should give us the month so we can prepare all the documents that we have to do,” she said. “They have to check our records of the clients so they should give us a time.”
But Fajotina does not object to all unannounced inspections. She said if someone calls the Department of Health and files a complaint about a care home being over capacity, for instance, officials should go there and check each room to see if they are hiding a patient inside.
“For the annual inspection, they should give us the month so we can prepare all the documents that we have to do.” — Lilia Fajotina, Alliance of Residential Care Administrators president
Ridley said part of the reason the state does announced inspections for the licensing and certification process is that officials want to make sure someone is actually home when they visit.
“Part of what we expect a resident care home to do is engage their clients in activities outside the home,” Ridley said. “We want to make sure someone is there and that’s why that inspection is announced.”
He declined Civil Beat’s request to talk to a state inspector about the Polintan case or even generally about how inspections are done.
“They’re busy doing what they’re doing,” he said.
Smetanka said many long-term care residents and staff report a real difference in the quality of care and the conditions in the facility when they know that inspectors are coming — food gets better, more staff are on hand and activities improve.
“We think that providers should be providing good care on a daily basis,” she said. “They should not have to be prepping up for an inspection.”