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The state’s failure to post inspection reports of state-licensed care facilities online has prompted advocates for the elderly to go to court to force the state to comply with the law.
The Hawaii Department of Health has failed to comply with the law for the past 18 months. The Kokua Council for Elderly Citizens has been writing letters to the agency urging officials to post the records.
On Monday, the group filed a lawsuit against Health Director Virginia Pressler to get a judge to order the department to follow the law.
“For one reason or another, the Department of Health has decided to fail in its obligation to protect seniors and their families making these difficult choices about long-term care facility placement,” said Lance Collins, a public interest attorney who is representing the council, an advocacy group for seniors that was founded in 1977.
Civil Beat has reported extensively on the issue since the law was passed three years ago.
More than 12,300 residents live in roughly 1,700 long-term care facilities throughout Hawaii, including nursing homes, adult residential care homes, community care foster family homes and assisted living facilities. These range from smaller homes in residential settings with one or two clients per facility to larger institutions with dozens or more beds.
The state generally licenses the facilities on an annual basis and is required to post the inspection reports that occur during relicensing on its website within five days of the inspection.
But the department’s Office of Health Care Assurance, headed by Keith Ridley, has struggled with this mandate from its inception.
The Legislature unanimously passed the bill in 2013, but gave the department until Jan. 1, 2015 to start posting the inspection reports online. The agency missed that deadline despite the 18-month lead time.
Some of the reports started going up a few months later after public pressure and political prodding, but then the process stopped.
Last October, Sen. Suzanne Chun Oakland, Rep. Gregg Takayama and Sen. Les Ihara sent Gov. David 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 later stopped again.
Health officials have blamed a lack of resources. But Kokua Council board members say there’s no excuse for the department’s continued foot-dragging.
When lawmakers first passed the law, they authorized $148,000 for fiscal years 2014 and 2015 to provide two positions and equipment that the department said it needed to implement the new requirement.
One position was for the department’s Developmentally Disabled Division, which oversees some 295 developmentally disabled adult foster homes that each provide care for up to two people with intellectual or developmental disabilities.
The other position was for the Office of Health Care Assurance, which oversees the other types of facilities that predominantly serve seniors.
Neither agency hired anyone to fill the positions before the money lapsed, but the Developmentally Disabled Division has been regularly posting its reports. Officials said bureaucratic red tape made it hard to quickly create and then fill a new position.
The department’s request this past legislative session for $22,466 to hire a clerical worker to post inspection reports online was nixed from the $13 billion overall state budget. Ridley has said the department is unable — not unwilling — to do the work.
There were 1,307 reports posted as of Monday, and the vast majority were from 2015.
No new reports have been posted since mid-March when the temporary person the department hired in earlier this year left, Ridley said Monday. The department used money from a vacant position to pay for the temporary worker.
It’s unclear how large the backlog is at this point, but health officials have said they don’t intend to post more reports without additional resources.
Ridley has called it an “unfunded mandate” that could jeopardize other priorities. He also oversees the budding medical marijuana dispensary program.
“We will again determine if moneys are available which are otherwise earmarked for other purposes and that can be used to hire another temporary person,” Ridley said. “Otherwise, posting inspection reports without additional staff or available money means taking someone else off of conducting inspections.
“This means that inspections can be posted but at the expense of delaying or not conducting inspections which are also required by law or by delaying or not processing applications from persons who wish to open a new facility or home,” he said, adding that his office will also again work through Human Resources to hire a temp to redact and post the inspections.
Larry Geller, former president of Kokua Council and current member of its board of directors, said at a press conference Monday that the decision to file the lawsuit was made with “great reluctance” but that it had become necessary.
Geller said it’s critical to have free access to the inspections online and in a timely manner so people can easily check out the history of a facility before placing a loved one there — a decision that often has to be made on short notice due to a sudden illness or accident.
Geller described the online posting requirement as “part of the fabric of protection” for seniors.
Prior to the law, accessing the reports started with a written request to the department and then a wait of roughly two weeks or longer while the agency tracked down the records and blacked out parts it considered confidential. Then requesters were charged for the copies and time it took to produce the documents.
“Most families don’t have that time,” Geller said. “And then of course you could get the report and find out that the facility is unsatisfactory or by the time you get the report the bed is no longer available.”
In addition to asking the First Circuit Court to require the department to start posting the reports online within five days of the inspection as required by law, the suit seeks an order compelling disclosure of unlawfully redacted information.
Collins said the department is making redactions that far exceed “individually identifiable health information,” which may be excluded. The agency is blacking out the names of care home operators, for instance, and some of the findings from the inspections.
“We’re not sure what’s so secret,” Collins said, likening the department to the National Security Agency.
This is something the department could easily fix, Geller said, noting that the reports can be designed so no redactions are necessary just as the federal government has done for nursing homes.
The lawsuit also asks that all completed inspection reports be posted online.
Kokua Council members suspect some of the inspections may not have even been done as required.
In December, the council asked for the inspection reports for adult residential care homes and an expanded type of that facility that allows several clients per home. There are roughly 500 of these care homes with about 2,700 beds, but at that time there were no inspection reports posted online for them.
By Jan. 29, the department had posted 271 inspection reports for adult residential care homes. But the next week, health officials told Kokua Council that no more would be posted because they either did not exist or the reports weren’t finalized.
Ridley said in a letter to Collins that this was due to a lack of resources. He added that the department did not maintain a list of non-final reports so was unable to say how many there were. And he said the list posted online of adult residential care homes constituted the complete inventory at that time.
“Inspection reports are redacted of any personal and protected health information or personal information which could lead to determining the identity of a patient prior to posting reports,” Ridley said Monday.
The heads of groups that lobby lawmakers on behalf of the care home operators have long opposed posting the reports online.
Lilia Fajotina, who was president of the Alliance of Residential Care Administrators when the bill was under consideration, has said the citations are vague and confusion would arise if the public tried to make sense of them.
The bill became law regardless, and Ige has said that he supports it.
The state has 20 days to respond to the lawsuit.
Read the lawsuit below.