Visibly frustrated, but looking more exhausted than anything, Hawaii’s only long-term care ombudsman approached Sen. Suzanne Chun Oakland as other lawmakers cleared the conference room at the Capitol.
John McDermott wanted to know why his office would not be receiving any additional help next fiscal year, which starts July 1. He has pleaded with lawmakers for years to give him a couple extra bodies so he can effectively do his job.
Competing priorities. Limited funding. Those were the answers he received April 26 after a committee of House and Senate lawmakers decided to provide no additional positions at one of their final meetings last legislative session.
The ombudsman is tasked with investigating and resolving complaints related to the health, safety, welfare and rights of more than 12,300 residents living in 1,700 long-term care facilities, including nursing homes, adult residential care homes, community care foster family homes and assisted living facilities.
As of now, Hawaii has one full-time paid ombudsman, fewer than any other state. The National Institute for Medicine recommends one ombudsman for every 2,000 long-term care residents, which means Hawaii should have six.
“It was a big disappointment. We were asking for a measly $300,000.” — John McDermott, long-term care ombudsman
McDermott sought $300,000 for three ombudsman specialist positions — one each for Maui, Kauai and the Big Island — to help him handle the unique challenges an island state presents.
He figured he could find a way to somehow cover Oahu, where the vast majority of facilities are located, by freeing up all the time and money spent flying to the neighbor islands.
A few lawmakers were sympathetic, including Chun Oakland, but it wasn’t enough to convince the ones making the final decisions on matters affecting the budget, namely Senate Ways and Means Chair Jill Tokuda and House Finance Chair Sylvia Luke.
“It was a big disappointment,” McDermott said Wednesday. “We were asking for a measly $300,000. The Legislature managed to find an extra $5 million for homeless that the governor wasn’t even asking for, and so once again, the neighbor islands get ignored.”
The ombudsman positions were just one aspect of the effort to improve state oversight of long-term care facilities during the legislative session that opened Jan. 20 and ended May 5.
A review of the budget and bills that passed shows the Department of Health received a small fraction of the resources it sought to beef up inspections, increase public access to records and otherwise boost safeguards for elderly residents.
As a result of lawmakers’ decisions on funding requests, health officials are evaluating whether they will be able to meet certain state mandates, particularly the posting of inspection reports of care facilities on the department’s website.
And while lawmakers finally decided to change the state policy from announced inspections to unannounced, they pushed back the start date to July 1, 2019.
Keith Ridley, who heads the department’s Office of Health Care Assurance, which licenses and oversees a wide range of long-term care facilities, described the legislative session as “fine” overall.
“There was a good exchange by the community as well as by the department on several of the bills that came up,” he said Tuesday.
“We got some of the things that we asked for in the budget through the great support of the department and governor’s office,” he said. “There were other things we didn’t get. While we’re disappointed in those, we will move on and do what we can with the resources we have.”
Ridley’s office received three of the seven nurse positions that Gov. David Ige had included in his administration’s budget proposal. Ridley said that will improve licensing inspections for the Medicare Section, which includes skilled nursing facilities, adult day health centers and hospitals.
The three extra nurses take the office to 39 positions overall and inch the budget up to $5.2 million for fiscal 2017, which starts July 1.
“Overall, our office needs additional staffing resources,” Ridley said.
The other positions the department sought would have boosted inspections for the State Licensing Section, which includes adult residential care homes, community care foster family homes, assisted living facilities and developmentally disabled domiciliary homes.
These are generally smaller facilities in neighborhood settings that provide a wide range of care, part of a growing industry in Hawaii, one of the fastest-aging states. Many elderly people here follow a national trend in looking to avoid spending their last years in larger institutions.
The department’s request for $22,466 to hire a clerical worker to post inspection reports online was nixed from the $13 billion overall state budget.
The Health Department has struggled to comply with the posting requirement ever since lawmakers mandated it in 2013.
The legislation gave the department 18 months to figure out how it would comply with the law, but the Jan. 1, 2015, deadline to start posting the reports came and went without action. It’s been sporadic over the past year.
Lawmakers initially provided two positions and $148,000 as requested by the department to meet the mandate. But no one was hired in the first two years, and the appropriation was not renewed in the next biennium budget.
Last October, Chun Oakland, Rep. Gregg Takayama and Sen. Les Ihara sent Ige a letter calling on him to take whatever action is needed to get the department to resume posting the reports on its website and close a growing backlog.
The department soon complied, but that appears to be coming to an end again.
“We’ll have to figure out how to proceed at this point and determine whether we’re able to meet the requirement to post those inspection reports without jeopardizing other requirements,” Ridley said.
Most states post the inspection reports online for care facilities, and it’s a federal requirement for nursing homes.
McDermott has said it’s essential for families to be able to check the violation histories of care facilities when deciding — often on short notice — where to place a loved one.
Without the online posting, the process in Hawaii can take two weeks to request the records and receive them, plus the family must pay for the copies and time it took government workers to produce the reports.
“I don’t know how they can get away with totally violating the law,” McDermott said, referring to the department not posting inspection reports as required by state law.
At one point this session, lawmakers were on track to require unannounced inspections starting July 1.
In March, she had her staff find out what other states are doing and learned, as Civil Beat reported last year, that unannounced inspections have become the national standard.
But in the last days of the session in late April, as she was negotiating the final language of the bill with her Senate counterpart, Roz Baker, Belatti put forward an amendment to delay the start date to 2019.
“That gives them plenty of time to undo it,” McDermott said, when asked about the decision to postpone it three years.
Belatti also included provisions to require the Health Department to submit annual reports over the next three years that include:
“We want to get a sense of what is their workload, visiting and inspecting these facilities,” Belatti said. “I think it’s going to yield a lot of data, and we’ll begin to see what is the outcome of these unannounced visits and announced visits.”
For inspectors, “visits” are different from the “inspections” that are done during relicensing. Inspections can last for several hours, and the inspectors file written reports on the conditions they find that become publicly available. The visits are typically much shorter, sometimes lasting half an hour or less, and the reports are not posted online.
Some care home operators have said they are OK with the state doing unannounced visits; but for decades, industry groups have fought every move to require unannounced inspections for licensing, and this past session was no different.
The care home operators are a potent political lobbying force. They donate to lawmakers’ campaigns, testify at hearings and organize rallies. During the final days of this past session, a group of care home operators roamed the Capitol halls, delivering large gift baskets to the offices of select lawmakers.
The care home operators have said they need to know when the inspectors are coming so they can get their paperwork in order and make sure they are home with their clients and not out running errands like picking up medicine. They’ve also cited privacy concerns.
“Please kokua our small, family owned businesses that provide affordable long term care solutions for our frail and elderly kupuna,” Wannette Gaylord, president of the Alliance for Adult Residential Care Homes, told lawmakers in her testimony opposing the unannounced-inspections bill.
“Without our homes, we would have even a larger homeless problem,” she added.
Belatti said the data will highlight the needs of the department in terms of its staffing.
“If they are understaffed, it will become very clear to us because of the number of inspections that they are doing,” she said. “Everyone is concerned about patient safety, and that’s why we worked so hard to get this compromise.”
The bill also mandated unannounced inspections for medical marijuana dispensaries and production centers, but the start date for those is July 1 of this year.
Last year, Civil Beat reported on how many inspections and visits the Health Department does of long-term care facilities and how many inspectors conduct them — looking over five years of data obtained through an open-records request.
The data revealed that the number of inspectors had remained stagnant or slightly declined while the number of facilities increased.
Health officials, national experts and state lawmakers have said that mandating unannounced inspections would significantly improve the overall accountability of the care home industry and potentially save lives.
Nona Mosman died in 2013 after social workers discovered the 88-year-old with softball-sized bed sores at a three-bed community care foster family home in Waipahu.
Her primary caregiver, Jennifer Polintan, was working another full-time job and leaving Mosman in the care of her father, who was unqualified to tend to her needs.
Routine announced inspections failed to uncover the situation. It took a complaint to trigger an unannounced visit, but by that time, it was too late.
Polintan was sentenced to prison after being convicted of manslaughter, and the business was shut down.
In a press conference May 4, Ige gave state lawmakers a “resounding B” as a grade for their work this past session.
When it comes to improving oversight of long-term care facilities, that’s too high a grade to the ombudsman.
“The governor’s a lot more generous in his grading,” McDermott said. “For vulnerable seniors, I would give them a D.”