New care home law is called ‘a facade’

When Gov. David Ige held a bill-signing ceremony last week for a new law that aims to cut through the red tape that blocked certain elderly couples from living together in the same licensed care home, the one couple it was specifically designed to help was conspicuously absent.

That’s because Noboru Kawamoto, a 96-year-old World War II veteran of the famed 442nd Regimental Combat Team, and his wife, Elaine, 90, remain locked in a lawsuit with the state over the old law that kept them apart.

Jeff Portnoy, the couple’s attorney, said the new law is “a facade” and an obvious attempt by the state to avoid paying legal fees in a case that is expected to be heard later this month in U.S. District Court in Honolulu.

What’s more, Portnoy (who has also represented the Honolulu Star-Advertiser) says the law is filled with ambiguity and discretion and offers no guarantees for any other couples who face the same situation.

That wasn’t the feel-good picture painted by the governor and the bill’s sponsor in a ceremony July 6 at the Capitol.

The governor told an audience of senior-citizen advocates and caregivers that the law came about from a concerted effort to reunite the Kawamotos, who were prevented from living together over the past couple of years due to state regulations that prohibit two private-­pay patients from living in the same community care foster family home, a type of licensed care home that primarily serves Medicaid patients.

Ige said the new measure gives the state flexibility to allow two private-pay married patients, like the Kawamotos, to be cared for in the same type of care home as long as the facility also provides care and services to a third adult resident who is a Medicaid beneficiary.

“This is a difficult issue about trying to balance the individual interest against the community interest. And this measure provides a way for us to be able to respond to special conditions,” he said.

State Rep. John Mizuno, the bill’s author, who requested the signing ceremony, said he and other state officials worked hard on the effort, and he is proud of the final outcome.

“I am elated for the Kawamoto couple and their family,” Mizuno said in a statement. “I always felt that a state regulation should not deny a couple married for 69 years nor any married couple the right to live with each other.”

This is not the first time state lawmakers faced this issue. In 2009 they worked with state attorneys to draft a bill that allowed a Hilo couple, the late Sidney and Terry Kaide, the right to reside in the same Medicaid home.

The Kaide case is similar to the Kawamoto case, but the Kaide law expired, leaving the Kawamotos with no solution to their dilemma.

For most of the past three years, Noboru Kawamoto has been living in a foster family care home in Kaneohe while his wife lives in an adult residential care facility in Punaluu that does not provide the elevated level of care her husband requires.

Both want to live out their twilight years together, but, as with the Kaides, state licensing laws and related administrative rules had prohibited community care foster family homes from having more than one private-­pay client.

Responding to the Kawamotos’ predicament two years ago, lawmakers considered legislation to resurrect the Kaide law, only on a permanent basis. But the legislation stalled.

Last year state Health Director Virginia Pressler and state Human Services Director Rachel Wong formally opposed another attempt at changing the law. In a letter to the Legislature, they said there are other options that would allow the Kawamotos to live together. They said Noboru Kawamoto could move into the same facility where his wife lives — or the Kaneohe care home operator could obtain the same type of certification as the Punaluu home, which has no private-pay restrictions.

Lawmakers did not approve the proposed legislation.

That’s when the Kawa­motos filed suit. The complaint says it’s unconstitutional to allow spouses on Medicaid to live together in a state-­licensed care home and deny the same access to private-­pay clients.

Mizuno said lawmakers and state officials took great pains to craft a law so that it would not jeopardize hundreds of thousands of dollars in federal funding. In 2015 Medicaid funding in Hawaii reached $1.3 billion, representing 54 percent of the federal budget for the state, he said.

The new law says a care home must have a vacancy for at least six months and that the department must determine that no other care facility in the area has an opening. It also prohibits operators from giving the boot to any resident in order to accept a client who is paying out of his or her own pocket.

In addition, exceptions would be allowed as long as no Medicaid patients are seeking placement in the home that the married private-­pay individuals are seeking to occupy.

Mizuno said he expects the law to help anywhere from six to 12 couples who are facing the same obstacle as the Kawamotos.

But Portnoy argues that the law, as written, gives too much discretion to Health and Human Services Department officials and therefore offers no guarantees that any other couples in the same situation will be helped.

Portnoy, who is working the case pro bono, said the effort was clearly designed to render the Kawamotos’ lawsuit moot, and he expects state attorneys to try to have the case dismissed in an effort to avoid paying legal fees.

Asked for a response, state Attorney General Doug Chin offered the following statement:

“This law was debated openly over the course of the legislative session. It underwent a transparent process from start to finish, including multiple public hearings. It was subsequently passed by the Legislature and signed by Governor Ige.”

The complaint is scheduled to be heard July 24 before Judge Leslie Kobayashi in U.S. District Court.