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The Honolulu Advertiser
Posted on: Monday, March 29, 2010

State looks into new sanctioning powers


By Rob Perez
Advertiser Staff Writer

The majority of states, wanting to go beyond a federal enforcement system criticized for being ineffective or unwieldy, have established their own powers to penalize nursing homes for poor care.

Hawai'i is not one of them.

But that is expected to change.

Officials at the Department of Health, which regulates nursing homes in the state, say they are revising the rules to give the agency sanctioning options beyond what it has now: the power to revoke a license. That's an option the state has never used.

Instead, Hawai'i mostly relies on the federal government to sanction nursing homes for serious violations of care regulations.

But the feds rarely exercise those powers.

Since 2005, only six nursing homes in Hawai'i have been sanctioned, and the sanction rate here is the lowest in the country.

While the state is expected to add fining powers to its sanctions toolbox, officials already are expressing doubts about how effective those powers will be.

It's not clear precisely how many states have their own fining powers.

A representative with the Association of Health Facility Survey Agencies, a group that includes nursing home inspectors nationally, didn't have an estimate. But like other regulators, she said she believed a majority of states have such powers. Twenty five of 30 states that responded to an e-mail poll she sent in response to the Advertiser's query indicated that they did.

Louise Ryan, the long-term-care ombudsman for Washington state, said its system for sanctioning nursing homes is more effective and swifter than the federal one, which can drag on through appeals.

"The federal system is really cumbersome," Ryan said.

Washington routinely uses its fining powers and can resort to its most powerful weapon stopping new patient admissions for the most serious cases, Ryan said.

"It's a very effective tool in getting corrections," she said. "But it doesn't always lead to lasting quality."

In Nevada, state regulators impose fines for any deficiency that results in patient harm, according to Marla Williams, chief of the Bureau of Health Care Quality & Compliance.

The fines are based on the scope and severity of the deficiency, with $1,000 being the top amount.

California takes an even more aggressive approach. It can fine nursing homes up to $100,000 for deaths resulting from poor care. If an institution gets two AA citations the most severe type within two years, the state takes steps to suspend or revoke the operator's license.

"That sends a very clear message to providers," said Joseph Rodrigues, California's long-term-care ombudsman.

Hawai'i officials say nursing homes here already take seriously the knowledge that their licenses can be revoked, though that's an option regulators tend to avoid because of unintended consequences, including where to place all the displaced residents.

Although the health agency is revising its rules to permit a range of lesser sanctions, including fines, it expressed some reservations about how effective they might be.

Because most Hawai'i nursing homes already are subject to federal enforcement actions, the additional sanctioning powers may not have any new or significant effect on compliance while adding additional expenses for providers, regulators and consumers, the agency said.

A public hearing on the proposed rules is expected to be held in the next few months.

Rodrigues, the California ombudsman, believes nursing homes in his state pay more attention to providing quality care because of the threat of severe state penalties.

"I don't think I would sleep as well at night if I knew we were abandoning our system and just relying on the federal one," Rodrigues said.

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