SUFFERING IN SILENCE: HAWAI'I'S ELDERLY VICTIMS
Few laws protect elderly

By Mike Gordon
Advertiser Staff Writer

Attempts to strengthen the rules that protect Hawai'i's seniors from abuse and neglect have failed several times since 1999.

Topping the list is the contentious issue of unannounced annual inspections of the 545 adult residential-care homes licensed by the state Department of Health.

An attempt to change the in-house rule that governs inspections has taken so long — three years and counting — that several legislators this session introduced bills that would make the practice a law. In the meantime, a draft of the same in-house rule change, delivered in October to the governor's office, was caught in the change of administrations and is still awaiting approval.

A hearing room at the State Capitol was crowded this month during a hearing on care-home inspections. State officials are pushing for unannounced inspections, but care-home owners say such actions would be a violation of privacy. Richard Ambo • The Honolulu Advertiser

Each home is inspected by the Health Department, which under current "administrative rules" gives care-home owners some advance notice of when they are coming.

At least 25 states allow for unannounced inspections. In New Mexico, the state long-term care ombudsman can conduct undercover investigations.

The debate here began in November 1999, when then-Health Director Bruce Anderson ordered that annual inspections be unannounced.

But implementing the change was put on hold. Other sections of the department's care-home rules also were under review, so Anderson said the change could wait until those were finished.

Inspections were discussed at meetings between state regulatory officials and care-home owners trying to reach a compromise. Nothing was resolved.

Rep. Marcus Oshiro, D-39th (Wahiawa), said he waited patiently for the rule change until this session, when he introduced his own bill, which includes a $5,000 fine for those who warn a care-home owner about an inspection date.

"It is hard to straddle the fence on this one," Oshiro said. "I have grown impatient and very suspect of the rule-making process. And I think the public policy choice here is quite clear."

Oshiro's bill was held in committee after legislators incorporated similar language — minus the fines — from another House bill dealing with annual unannounced inspections. Only one other bill that addresses inspections remains alive this session.

In a recent poll, AARP Hawai'i found that 90 percent of its 140,000 members strongly supported unannounced inspections of care homes. The group is highly critical of the current situation, noting that other licensed businesses, such as restaurants, are subject to inspections at any time.

"The fact that we treat our hamburgers in this state better than we treat our elderly is a very sorry thing," said Greg Marchildon, executive director of AARP Hawai'i.

Care-home owners consider unannounced inspections an "invasion of privacy," said Ron Gallegos, president of the 270-member Alliance of Residential Care Administrators.

The practice would be too disruptive to everyone living in the home, he said. And care-home owners have told him it would be troubling for their own families, Gallegos said.

He called the inspectors "Gestapo fault finders" who would have the right to instruct residents to disrobe to check for decubitus ulcers. These types of ulcers, also known as pressure sores, have been linked to several neglect deaths since 1999.

"Our main issue is the health and safety and welfare of the elderly living in our homes," Gallegos said. "We feel there has to be a balance between protecting the safety of the resident and protecting the rights of privacy of the home owner. Where is the cutoff point?"

Anderson, the former health director, said he has never accepted the argument made by care-home owners that they should be exempt from inspections because they operate out of their home with family members living nearby.

Being a licensed, money-taking business negates that, he said.

"If you are accepting money to take care of other people, then you should be willing to be inspected," he said. "Any other licensed business would accept that as part of their basic conditions of operations."

John McDermott, state ombudsman for long-term care, says several initiatives that would require background checks for caregivers failed even though nobody testified against them. Richard Ambo • The Honolulu Advertiser

Okumura said the state worked hard to forge a compromise with care-home owners, who never wavered from their opposition to unannounced inspections.

"We gave them every opportunity to voice their concerns," she said. "We said if you come up with something more concrete on why it can't occur, we may think twice about this."

The final draft contained the words "may conduct" unannounced inspections, which health officials say gives them the flexibility to choose when they want to visit a home.

"I think I am OK with that," Okumura said. "I guess the operators feel that as we change administration or staff there may be a change in the interpretation. I think once we have set a precedent, we will adhere to it."

A bill two years ago tried to put more bite into a law used often by the attorney general when prosecuting care-home owners who abuse or neglect their residents. The change would have added a degree of felony punishment for the misdemeanor charge of endangering the welfare of an incompetent person.

The bill sought first- and second-degree sanctions against people "who intentionally or recklessly act in a manner likely to be injurious to the physical or mental welfare of these vulnerable adults," Cayetano wrote in his June 18, 2001 veto statement, but amendments to the bill during the session reduced the legal protection.

Among his objections was language that would require elderly victims to prove they had been subjected to "physical pain," something he said would be difficult because of their age or disabilities.

"The unfortunate result is that otherwise egregious conduct would go without prosecution," he said.

And the final version of the bill did not address the issue of neglect, he said. As originally written, the bill allowed prosecution of cases where harm — physical or mental — was "very likely to occur."

The bill was supported by the state's Executive Office on Aging and the attorney general.

"One of the arguments we brought is, you have this statutory scheme for children but why not for adults?" said Camille Chun-Hoon, legal services developer for the Executive Office on Aging.

"You have a parallel statute already in existence," she said. "But you don't have the same statute for adults who are not capable of caring for themselves. That would give them more options."

Michael Parrish, a deputy attorney general, has used the misdemeanor charge in two recent cases in which care-home residents died. He said he would like the felony option.

Bruce Anderson Former state health director says he supported stronger measures to protect the elderly, including unannounced care-home inspections. Advertiser library photo • Feb. 28, 2002

Ron Gallegos President of the Alliance of Residential Care Administrators says unannounced inspections of care homes would be an "invasion of privacy." Advertiser library photo • Feb. 11, 2003

Former Gov. Ben Cayetano Suggested tougher punishment for those who neglect the elderly but later vetoed bill on the matter, saying protections had been reduced. Advertiser library photo • Nov. 19, 2002

"In these types of cases, you are not going to have that affirmative conduct where someone hit someone else," he said. "It follows the lines where there is a failure to do something."

Anderson, health director at the time, said the Health Department supported the tougher option for the care-home owners it licensed.

"As it is, if an individual is found to be guilty, typically their license is revoked and they are fined," Anderson said. "But certainly that doesn't seem to be appropriate for situations where individuals die for lack of appropriate care."

Creating a law requiring a criminal background check for people who work with dependent adults, whether in care homes or through elder adult programs, has proven difficult even though 36 other states have been able to create them.

Laws have been proposed in the past four legislative sessions but all have died, said John McDermott, Hawai'i's long-term care ombudsman.

"And they failed with nobody testifying against them," he said. "It was always a matter of money."

During the same period, though, legislators approved criminal background checks for teachers, foster parents, prospective adoptive parents, Health Department subcontractors working with mental-health patients and certain types of childcare providers, said McDermott, who has tracked the measures.

"Our seniors are not really good advocates," McDermott said. "They are tired, intimidated, scared. They are worried they might look foolish. They worry that the Legislature might grill them."

In contrast, the Department of Human Services mandated criminal background checks through an administrative rule change in July 2000, said Linda Chun, the assistant program administrator in the Social Services Division for the department. Two years later, the department beefed up the process by requiring a check of their confidential records to see if an employee had a record of abuse, Chun said.

Both reviews are Hawai'i only, she said.

Sen. Suzanne Chun Oakland, D-13th (Kalihi, Nu'uanu), has introduced several different background-inspection bills, including one this year that requires the Department of Health to conduct the checks for operators and employees at care homes. The bill was held in committee last week, however.

Most people involved with this vulnerable population of adults "want to do the right thing," she said.

"There are a few that just don't have the right intent, and they were not originally from Hawai'i," she said. "We are finding they were banned from care elsewhere and are finding a haven in Hawai'i."

Just how many inappropriate employees — if any — would be found with this kind of system is hard to estimate, McDermott said.

"We will never know that until after we do it," he said. "Every state that has done this found they had people with questionable records working with dependent adults."

Reach Mike Gordon at mgordon@honoluluadvertiser.com or 525-8012.