Starting July 1, the state Department of Health is required to conduct annual unannounced inspections of nearly 2,000 care facilities for the elderly and disabled.

It’s a mandate that advocates for Hawaii’s rapidly aging population have demanded for more than 20 years after too many stories of neglect and avoidable deaths. They underscored how most states put policies like this in place long ago, which experts have said is now the national standard to protect such vulnerable citizens.

But some Hawaii lawmakers are trying to water down the law they created in 2016 by making it optional instead of mandatory. The law’s implementation has already been delayed three years thanks to a last-minute amendment by Rep. Della Au Belatti.

Rep John Mizuno Chair Health and Human Services Comm Briefing on Homeless solutions.

Rep. John Mizuno has put forward a bill with three of his colleagues to make unannounced inspections discretionary rather than mandatory.

Cory Lum/Civil Beat

Leading the charge on the House side is Rep. John Mizuno, who receives much of his campaign contributions from care home operators and industry representatives who have lobbied against unannounced inspections.

House Bill 692, co-sponsored by Reps. Joy San Buenaventura, Calvin Say and James Tokioka, would make the Department of Health’s unannounced inspections of care facilities discretionary.

It’s a simple piece of legislation that just changes one word: “may” replaces “shall” in the existing statute. It applies to adult day health and care centers, community care foster family homes, developmental disabilities homes, adult foster homes and several types of long-term care facilities that almost 13,000 elderly residents call home.

Mizuno chairs the Health Committee, the bill’s first stop en route to passage this session, which opened earlier this month and wraps up May 2. It has to clear two other committees before a final vote by the full House.

He said Wednesday that the measure is meant to open up a discussion with the Department of Health about whether it’s ready to implement the law as planned or if it makes more sense to wait another year or longer.

“I don’t think I’m going to get political points for this one,” Mizuno said. “It’s a balancing test. If we don’t need it, we can scuttle the bill. If they need more inspectors, we can use the bill as a vehicle to add more positions.”

Mizuno received about $4,000 in campaign funds during the past election cycle from care home operators and others in the industry — more than any other lawmaker. His top contributors include the Alliance of Residential Care Administrators, the United Group of Home Operators and several care facility owners.

He said it will be difficult for his bill to make it through the House since it was referred to three committees. If he does not hear it next week, he said it will likely die.

Mizuno’s counterpart in the Senate, Roz Baker, has introduced a companion measure that has an easier path. Senate Bill 525 was only referred to the Commerce, Consumer Protection and Health Committee, which she chairs.

Mizuno, Buenaventura, Say, Tokioka and Baker all voted in favor of the 2016 law to implement unannounced inspections starting this July. The 25-member Senate passed it unanimously and it cleared the 51-member House with just six no votes.

Co Chair Senator Roz Baker speaks during marijuana working group meeting held at the Capitol.

Sen. Roz Baker has introduced a companion measure in the Senate to make unannounced inspections optional.

Cory Lum/Civil Beat

Gov. David Ige’s administration does not support the proposed change.

Keith Ridley heads the department’s Office of Health Care Assurance, which handles inspections, certification and licensing for these facilities. He said Wednesday that he is drafting testimony that supports mandatory unannounced inspections — consistent with the position his office took when the law passed in 2016.

In a hearing on the bill that year, the Department of Health told the House Finance Committee that its preference was to conduct its relicensing and recertification inspections unannounced “in order to maximize the readiness of the care homes or dispensaries for an inspection at any time by the department.”

Contact Key Lawmakers

Health officials told lawmakers at the time that the state already does unannounced inspections for nursing homes as required by the federal government for Medicare facilities. Applying the policy to the growing number of smaller, neighborhood-based care facilities “is seen as an improved safeguard for the public.”

Ridley’s boss, Health Director Bruce Anderson, has a history of supporting mandatory unannounced inspections.

When he was health director in 1999, he ordered a change in the department’s 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.

A manslaughter case was prosecuted against 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.

Keith Ridley during hearing with Chair Rep Mizuno on unlicensed care homes.

Keith Ridley, who heads the state Office of Health Care Assurance, has said his office supports mandatory unannounced inspections.

Cory Lum/Civil Beat

Legislators ultimately compromised on a bill in 2003 that let the health department do unannounced inspections but did not require it. Since then, the problem has persisted.

In 2013, 88-year-old Nona Mosman died much like Tanouye. 

Inspection reports for the care home, obtained through a Civil Beat request made under Hawaii’s open records law, showed that officials visited the home during announced visits as part of the annual certification process. But there was no indication of any unannounced inspections until a complaint was received that led to Mosman’s removal shortly before her death.

A deputy medical examiner ruled it a homicide, linking her death 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 caregiver was convicted of manslaughter after authorities discovered she was working another full-time job and leaving her duties to her unqualified father.

When Hawaii lawmakers finally passed the bill in 2016 to mandate unannounced inspections, the state long-term care ombudsman, John McDermott, was excited. But he was concerned about the provision Belatti inserted to delay the start date until 2019.

“That just gives them plenty of time to undo it,” he said shortly after the bill passed.

New Director, New Direction?

Anderson returned as acting health director in June, and Ige appointed him in December to serve a full term, subject to Senate approval.

The Office of Health Care Assurance already has serious issues with its licensing and inspection process, as a seething November audit highlighted.

The audit, which focused on 497 adult residential care homes in 2016 and 2017, found that the office does not make it standard practice to do follow-up visits to care homes to ensure the correction of deficiencies, such as mislabeled medication, wrong dosages given or medication administered or discontinued without a physician’s orders. And there are often no consequences for care homes that do not correct these errors.

Oxybenzone Hearing Capitol DLNR Bruce Anderson, DLNR Chief of Aquatic Resources. 31 jan 2017

Bruce Anderson, seen here in 2017 when he headed the Division of Aquatic Resources, is back at the helm of the Department of Health.

Cory Lum/Civil Beat

Anderson has said the situation is improving but more work needs to be done.

In its latest report to the Legislature, the Office of Health Care Assurance recommends lawmakers maintain statutory language to require relicensing inspections to be unannounced starting July 1.

That’s a turnaround from its 2018 report to the Legislature when it recommended delaying the effective date until July 1, 2021.

Only 4 percent of the 1,556 inspections conducted last year were unannounced, according to the report. That means in 1,483 cases, inspectors gave the care facilities a heads up that they were coming.

The report said the office would monitor its need for overtime and determine if “alternative unannounced inspection schedules could be created” to avoid ongoing overtime or whether additional funding would be necessary.

The report also notes that it was unannounced visits — a quick check on a facility, not a comprehensive inspection — that discovered unsupervised elderly residents at two care homes last year. Both facilities were cited for violations.

But the report notes that “the department suspects there may be more homes that are leaving residents unsupervised or in the hands of unqualified persons,” which it describes as a “very unsafe practice with potential for great harm to the residents.”

Two care homes were closed involuntarily due to findings of abuse or neglect, the report says, and more than 40 enforcement letters were issued. Enforcement actions resulted in the issuance of $389,135 in federal civil monetary penalty fines on 13 cases.

Read the full report below:

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