Elder abuse bills take spotlight

By Mike Gordon
Advertiser Staff Writer

Efforts to strengthen the rules that protect Hawai'i's seniors from abuse and neglect have the support of two key Cabinet members in Gov. Linda Lingle's administration.

Mark J. Bennett, the new attorney general, supports a bill before the Legislature that would allow the state to sue care-home owners who abuse or neglect a resident. The so-called "Elder Justice Act" would also allow for enhanced financial compensation when a court finds that an elderly person was victimized.

Both issues have prompted bills this legislative session.

Fukino said she prefers an administrative rule change over a law.

Surprise inspections have been a contentious issue since November 1999 when Fukino's predecessor, Bruce Anderson, authorized them. Anderson put the change on hold, however, because other related rules were also being reviewed.

Care-home operators and state licensing officials debated their use but never reached a compromise.

A draft of the changes, which allows for unannounced annual inspections without any set schedule or warning, was submitted to the governor's office in October but was not approved by the Lingle administration until Friday. Fukino could not schedule public hearings on the issue without that approval.

Fukino said she does not feel that unannounced annual inspections should be a complete surprise.

"If you are doing a routine inspection, you know, I don't think it is unfair to give a person a week's heads-up because it is unlikely you will be able to fix anything significant in that time," Fukino said.

Currently, the department conducts surprise inspections to check on complaints or to ensure that previously identified problems have been corrected. But owners of care homes are given a tentative schedule for their annual inspection.

"What we are looking for with unannounced visits is evidence of abuse and neglect," Fukino said. "With a week's notice, you can't cover up decubitus ulcers or weight loss."

Fukino said that if legislative efforts fail this session, she will push to get the administrative rule changed because she feels it is a better option.

"I don't think we need pages and pages of statutes that are relatively inflexible," she said. "I think the Legislature is well intended in many of its proposals but I think the public is better served with rules."

John McDermott, the state's ombudsman for long-term care, said giving care-home owners a week's notice "is ridiculous."

"If you give them a month's notice or seven days notice, any notice means it is not an inspection," he said.

AARP Hawai'i, whose membership has overwhelmingly supported unannounced inspections, also feels the notice is unacceptable.

"It is unacceptable to have a one-day notice, a one-hour notice or a seven-day notice," said Greg Marchildon, executive director of 140,000-member Hawai'i group. "I would ask Dr. Fukino to go to the dictionary and look up the word 'unannounced'."

The proposed "Elder Justice Act," alive in bills in both the Senate and the House, would give the attorney general another way to prosecute care-home owners, who under current law can be prosecuted only under a misdemeanor criminal charge in cases of abuse or neglect.

"It's a good idea," Bennett said. "It is a valuable tool. It helps fight elder abuse which is a distinct problem in our society."

Only seven other states allow for this kind of civil remedy for abuse and neglect cases.

Each bill proposes fines that range from $500 to $1,000 for every day of neglect or abuse.

Bennett called the fight against elder abuse and neglect an important issue nationwide.

"It is an area that is coming under more and more scrutiny because there simply is no question that there are those who abuse the elderly," he said. "Often, the people abused are in no position to fight back themselves."

Thomas Grande, an attorney in private practice who helped draft the bills, said civil penalties are needed because under current Hawai'i laws, most cases do not rise to the level of criminal intent.

"For what I would estimate as most of the cases of abuse, you don't have a civil remedy," Grande said. "You can't go into court and impose fines against someone."

The bills also would allow the courts to triple the judgments awarded to victims.

"The legislation, if enacted, would serve as a deterrent to the type of conduct that we would like to see prohibited," said Michael Parrish, a deputy attorney general in the Medicaid Investigation Division.

Since 1999, the attorney general has prosecuted four cases of abuse and neglect that were linked to the deaths of care-home residents, but only one case was brought to court as a felony. The rest were misdemeanors.

Parrish said the attorney general might have been able to pursue the civil action in the misdemeanor cases, but without the legislation in its final form, he could not say for sure.

The House Judiciary Committee approved its version of the bill Tuesday but only after amending it to include unannounced annual inspections of care homes. The Senate Judiciary Committee will vote on its version of the bill today.

In a three-part series last week, The Advertiser documented that at least 10 elderly people have died from neglect or abuse since 1999, and that during the past decade, 33 people 65 and older died in cases where decubitus ulcers — pressure sores associated with neglect — were the underlying causes of death. The Advertiser also reported that laws that would have strengthened protections for the elderly have been rejected for years.

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