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Abuse goes unpunished at Hawaii's care homes

The state issues no sanctions despite mistreatment of elderly residents in long-term care facilities

By Rob Perez

LAST UPDATED: 1:32 a.m. HST, Jul 4, 2011

In a state where nursing homes are rarely sanctioned, authorities did not penalize one of Hawaii's premium institutions for its failure to protect defenseless elderly residents from a sexually abusive caregiver who eventually was fired, prosecuted and deported for his crimes.

Kahala Nui, an upscale East Honolulu nursing home, escaped any sanctions even though it failed to thoroughly investigate allegations of mistreatment by the caregiver as far back as April 2008, according to federal documents obtained by the Star-Advertiser through a Freedom of Information Act request.

In one case from October 2008, the facility didn't examine or interview a cognitively impaired woman who said she was struck by the caregiver, the records show.

Mark Genetiano, a certified nurse aide, remained on the job even after co-workers witnessed him over several months in 2009 pinching the breasts of severely demented women under his care, according to the documents and police reports. While nursing home workers are required to report suspicions of abuse, the workers told inspectors they were too scared of Genetiano to report him.

Only after the then-24-year-old was seen striking a resident with a hairbrush in June 2009 did Kahala Nui's administration suspend him, contact regulators and launch an internal investigation, which brought to light the previously unreported sex assaults, the records show. The administration confronted Genetiano, who had worked at Kahala Nui since March 2007, with its findings, fired him and contacted police.

Genetiano pleaded guilty last year to six counts of third-degree sexual assault for abusing four women, completed a one-year prison sentence and was deported to the Philippines in January. He could not be reached for comment.

The lack of any sanctions against Kahala Nui reflects what some say is a troubling trend in Hawaii: Regulators rarely penalize nursing homes for deficient care, even if the deficiencies bring harm to residents.

The Centers for Medicare and Medicaid Services, the federal agency that oversees most nursing homes nationally, imposed only one sanction against a Hawaii facility last year, the lowest number among the 50 states, according to CMS data. North Dakota also had just one sanction.

Over the past six years, the agency took enforcement actions against 4 percent of Hawaii institutions that were cited for a certain level of deficiencies, compared with a national average of 30 percent, the data show. Only North Dakota, at 3.5 percent, had a lower percentage. In 2006 and 2007, no Hawaii nursing homes were penalized. The sole sanction imposed by CMS last year was against Maluhia, a state-run nursing home that was under extra scrutiny at the time because it had fared poorly in previous inspections.

Maluhia was fined $4,225 for failing to supervise a male resident with a history of acting inappropriately, including touching a fellow resident's thigh, records show. Despite that history, the staff failed to supervise him properly in July 2009 while inspectors were at the facility, posing immediate jeopardy to residents' safety, regulators determined.

The safety alert was lifted after Maluhia made corrections, including placing the resident in one-on-one supervision, the records show.

"We try our best to provide a safe, secure, caring environment," said Maluhia spokesman Miles Takaaze.

The majority of deficiencies cited by regulators in Hawaii typically are minor and don't directly affect care. But critics say the lack of sanctions even for serious deficiencies shows that regulators are too soft.

"There's a complete breakdown of oversight," said Charlene Harrington, emeritus professor of sociology and nursing at the University of California, San Francisco. "There's something really wrong."

The Genetiano case was one of four that the Star-Advertiser analyzed based on public inspection reports from 2009, 2010 and this year. Each of the cases resulted in harm to one or more residents but did not result in sanctions.

All four were evaluated by state inspectors, who cited the institutions for deficiencies but ultimately did not recommend sanctions because the problems had been corrected.

CMS must approve any sanctions and typically relies on recommendations from the state.

When the newspaper questioned CMS officials about the four cases, they said the deficiencies were serious enough that the state should have declared an "immediate jeopardy" in each instance. Such a designation automatically would have resulted in some type of sanction.

"We have some issues with these (cases)," said Paula Perse, long-term care branch manager for CMS' Region 9, which oversees Hawaii facilities.

The Star-Advertiser reported Sunday that the federal government has determined that the state has rated deficiencies at levels less severe than the facts warrant. Besides the Kahala Nui case, the newspaper looked at these cases:

» Yukio Okutsu State Veterans Home in Hilo failed to monitor the anticoagulent medication of an elderly man, who subsequently was hospitalized with a toxic level of Coumadin, an anticoagulant medicine, and irregular heart rhythms, according to a February 2010 inspection report. The man's blood-clotting rate had been tested more than a month before his hospitalization, but the nursing home didn't follow up on getting the lab results, which showed "critical abnormal lab values."

One of an elderly man's internal organs was punctured in January when a Leahi Hospital nurse replaced the man's feeding tube with one larger than what the doctor ordered, according to an April report. In her notes, the nurse reported difficulty in inserting the tube. Once the feeding began, the man became pale, clammy and restless, and started moaning. He was transported to another hospital, where he was placed in intensive care and underwent surgery. A physician told Leahi that the tube was "not in place," according to the inspection report.

» Yukio Okutsu failed to take adequate precautions after a male resident was found with his hand under a fellow resident's shorts, touching her thigh, the 2010 report said. Less than a month later, he was found with his hand on a female resident's breast, and weeks later he was discovered holding and kissing the hand of a female resident in a wheelchair.

"These cases are just nightmares," said Toby Edleman, senior policy attorney for the Center for Medicare Advocacy in Washington, D.C.

In the Kahala Nui case, the state cited the institution for failing to ensure that all alleged violations of mistreatment, neglect or abuse were thoroughly investigated and reported immediately to the facility administrator and to other officials in accordance with state law. The state based its citation on record reviews and staff interviews regarding nine residents whom Genetiano allegedly mistreated between April 2008 and June 2009, the records show. The state also concluded that Kahala Nui failed to protect the residents from further potential abuse.

Allegations of abuse involving Genetiano were submitted to the nursing director or administrator of Kahala Nui's Hiolani Care Center in August 2008, October 2008 and June 2009, according to the records.

Edleman said she was puzzled why the Kahala Nui case didn't lead to sanctions. "If that doesn't, then what does?" she said. "What will it take?"

Keith Ridley, head of the state's Office of Health Care Assurance, which performs the nursing home inspections, said his office initially informed Kahala Nui that it was going to recommend a $3,500 penalty if corrections weren't made. But once the caregiving staff was retrained on abuse policies and procedures, including the requirement to immediately report any incidents, and because Genetiano was fired, his office did not recommend any sanctions to CMS, Ridley said.

Similarly, Ridley's office told Yukio Okutsu that a $3,500 penalty for each of the two cases would be recommended if corrections weren't made. But when the fixes were made, no sanctions were recommended.

The state also didn't recommend a sanction in the Leahi case because that institution likewise corrected the deficiency by, among other things, revising policies for feeding-tube care, including prohibiting licensed nursing staff from doing tube replacements.

Given that corrections were promptly made in all four cases, Ridley said, "The system worked." But, he added, "We take these (cases) as lessons learned and always try to improve going foward."

Pat Duarte, chief executive of Kahala Nui, issued a statement to the Star- Advertiser noting that the safety, care and comfort of the facility's residents always have been top priorities and that it has established strict policies and procedures to ensure compliance with regulations and industry standards of care. "The incidents of 2009 were dealt with by administrators swiftly, the perpetrator was terminated and action was taken to ensure justice was served," he added. "We have now put that unfortunate chapter behind us."

Representatives of Leahi and Yukio Okutsu also said their facilities focused on ensuring residents' safety and enhancing the training of their staffs.

A family member of one of Genetiano's sex assault victims has sued Kahala Nui Senior Living Community, which owns the nursing home, Greystone Management Services Co., which had managed it, and Genetiano over the 2009 assaults, seeking unspecified damages.

"The facts indicate that there was a total breakdown in the safety net designed to ‘ensure a safe, secure environment' and protect helpless potential victims," attorney Richard Wilson wrote in a court filing on behalf of his client, the son of a victim.

Kahala Nui's attorneys asked that the nursing home be dismissed from the lawsuit, arguing that if the plaintiffs suffered injuries as alleged, the injuries were caused by Genetiano, not the other defendants.

Regulators and industry officials say the nursing home oversight system is designed to ensure quality care while requiring quick fixes when deficiencies are identified. The intent of the system, they say, is not to penalize — unless a problem is particularly egregious — but to prompt improvements, with the goals of providing residents a high quality of care and of life.

"Unless an incident is the result of a systemic, willful and ongoing disregard of those goals, the focus should be on working together to ensure it never happens again," said Bob Ogawa of the Hawaii Long Term Care Association.

Fines wouldn't necessarily result in better care, but would take money away from improving that care, Ogawa and others said.

But advocates for nursing home residents question whether the lack of sanctions undermines quality, creating a climate in which institution officials know they'll get second chances even if they fail to adequately respond to repeated behavior problems. "There's certainly no deterrent value," said Edleman, the Washington, D.C., attorney.

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