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“Unreasonable and unjustified.”
That’s how Circuit Court Judge Karen Nakasone described the manner in which the state Health Department blacked out large portions of inspection reports for a Honolulu nursing home before it made the documents public.
She ruled Thursday that the department violated the state open records law by redacting information to the point that the reports are worthless to those who rely on them to help make decisions about placing a family member or loved one in a long-term care facility.
“The redactions were excessive,” Nakasone said, even when factoring in state and federal privacy laws. “What is left is not useful.”
But the judge sidestepped a decision on whether the department was also breaking the law by not posting inspection reports for care facilities on its website within five working days as the Legislature mandated through a bill it passed in 2013.
She said the Kokua Council for Senior Citizens, represented by attorney Lance Collins, did not convince her that the state has been violating the Legislature’s directive. But she left the door open for the group to bring the case back with more evidence and try again.
The department has flouted the law requiring inspection reports to be posted online, citing insufficient staff resources. The bill provided funding for two positions for the first two years but no one was ever hired and the funding lapsed.
The department’s Office of Health Care Assurance, headed by Keith Ridley, has generally just posted batches of reports — often heavily redacted — but only after public pressure from media reports, complaints from lawmakers and Gov. David Ige, who stepped in and made the agency put some reports online.
Without online access to the inspections, the public has to request the documents in writing, wait two weeks or longer, then pay for the copies and time it took the department to black out the parts it considered confidential.
Supporters of online posting point to the dozens of other states that already do this. They contend timely access is critical in cases where a patient is being discharged from a hospital but is not well enough to return home and therefore needs to find a facility that can provide the necessary care.
Kokua Council sued the state in July over these issues. The group, which advocates for the elderly, tried to reach an agreement out of court with Ridley and Deputy Attorney General Angela Tokuda. But they ultimately had to bring it before Nakasone to decide.
“The issue of over-redaction cuts to the core of protecting the public interest,” Jim Shon, president of the Kokua Council, said after the hearing. “It’s a real victory for every senior citizen and family that may have to make the gut-wrenching decision of where to place a loved one.”
Collins, too, was pleased with the judge’s decision on the redaction issue, noting that even the names of the people doing the inspection and providing the care have been blacked out in some reports.
But concerns linger over how far the ruling will stretch.
The department could just go back and redo the inspection report for Liliha Healthcare Center that the judge cited in her ruling as a violation of the Uniform Information Practices Act. Collins said that report was chosen as an example of the department’s redaction policy.
What Kokua Council is hoping, and what Collins advocated for during the hearing, is for the department to revise its redaction policy with the ruling in mind. Otherwise, Collins said he may be left with no other choice than to present the judge with all the inspections currently available so she can decide on a case-by-case basis. There were 1,837 posted online as of Thursday.
Nakasone balked at that idea.
“If there’s 500 reports, I have 500 cases,” she said. “There’s just no way.”
It’s unclear what the state intends to do. Ridley and Tokuda declined to comment after the hearing.
Collins also took issue with the department’s overall redaction policy, which he said the state withheld from his group for months.
The Office of Health Care Assurance created the policy Dec. 15, 2015, and revised it Aug. 10. But it wasn’t signed by Ridley until Jan. 24, according to court documents.
Collins said he plans to file a motion challenging the department for not going through an administrative rules process to create the policy, including public hearings.
The policy errs on the side of keeping information confidential. For instance, the policy says if there’s more than one item to be redacted in a single paragraph then the entire paragraph can be redacted “for simplicity and efficiency.”
It says patient names, family and visitor names and other individually identifiable information should be redacted, such as birth dates, health diagnoses and prior home addresses. But it doesn’t stop there.
“When in doubt on whether to redact information that could directly or indirectly lead to the identification of the patient/resident, redact the information in order to optimize patient/resident confidentiality,” the policy says.
Nakasone said she understands the need to protect privacy interests and confidential information, but said the department’s policy fails to include anything about serving the public’s interest for which the online-posting law was intended.
The legislation, which Gov. Neil Abercrombie signed into law in 2013, says the information posted in the report should be “fair to care home operators and useful to the public.”
The heads of groups who lobby lawmakers on behalf of the care home operators have long opposed posting the inspection reports online.
Lilia Fajotina, who was president of the Alliance of Residential Care Administrators when the bill was under consideration, has said the inspection reports are vague and would only confuse the public.
Lawmakers have bent to the care home lobby’s demands for years. Even the online posting law includes a provision allowing any report on a facility with a violation to be removed from the website after three years.
Last year, the Legislature took up the issue of surprise inspections. As of now, long-term care facilities — aside from nursing homes that fall under federal law — receive a heads up from the department prior to the inspection.
National experts and advocates for the elderly in Hawaii have said the inspections are virtually worthless if the facility knows in advance.
Lawmakers passed a law requiring unannounced inspections, but delayed the start date until July 1, 2019.
Read the redaction policy and more in the court documents below.