A senior citizens advocacy organization is suing the Hawaii Department of Health for failing to post inspection reports online for care homes that serve seniors and the disabled.
In 2013 the Legislature passed Act 213, requiring DOH to post inspection reports for 1,702 facilities throughout the state on its website. The reports provide information about the safety and health records of care homes — information that advocates say is important when deciding on a facility for a loved one.
Act 213 went into effect in January of last year. While about 1,300 reports have been posted online, it appears hundreds more, covering 2015 and 2016, have not. The reports are supposed to be posted within five days of a facility being inspected.
More troubling, say members of Kokua Council, which filed the lawsuit in First Circuit Court on Monday, is that DOH might not actually be inspecting all the homes in violation of federal and state laws, which would explain the missing online inspection reports.
Kokua Council is asking that the court order DOH to post all the reports within five days.
“We did this with great reluctance,” said Larry Geller, president of Kokua Council, at a news conference Monday to discuss the lawsuit. “Going to court is about the last thing we expected to do to resolve this issue. However, it’s turned out to be very necessary.”
Kokua Council is also suing over what it says are failures by DOH to comply with the state’s public-records law. After months of delays in posting the inspection reports, Kokua Council filed a request with DOH in December asking specifically for the inspection reports for adult residential care homes — a subset among 11 categories of facilities that are subject to Act 213 — and a list of all licensed facilities.
Keith Ridley, chief of DOH’s Office of Health Care Assurance, partially denied the request because some of the reports were not finalized, while others don’t exist, according to an email he sent to Lance Collins, an attorney for Kokua Council, in February.
“When we don’t inspect a facility … an inspection report is not generated. Therefore it does not exist and there is nothing to release,” Ridley wrote. “In other instances, the reports are not finalized. Any deficiencies or citations initially observed may be determined to not be a deficiency or citation during the review process, and they are removed from the report.”
Ridley said that it “would be unfair to the public and to the residential care home to publicize a report before it is finalized.”
Collins said that the law states that the reports are to be posted five days after an inspection, not five days after DOH determines that the report is finalized.
Collins said that Ridley’s comments raised concerns about whether DOH is completing all the inspections.
As for the approximately 500 adult residential care homes in Hawaii, he said that by law these facilities must be inspected annually in order to be licensed.
Collins estimates that about 600 to 700 of the reports for the years 2015 and 2016 are missing from DOH’s website.
Kokua Council is also asking for the reports to be largely unredacted.
In a sampling of online reports reviewed by the Honolulu Star-Advertiser, DOH has redacted deficiencies or violations that were initially listed on the documents. The department has also blacked out the names of compliance managers.
Collins said that the redactions don’t seem to be warranted under state and federal privacy laws.
“For one reason or another, the Department of Health has decided to fail in its obligation to protect seniors and their families making these difficult decisions about long-term care facilities,” said Collins.
The lawsuit comes after ongoing political pressure to try and get DOH to comply with Act 213.
In October members of the Legislature’s Kupuna Caucus sent a letter to Gov. David Ige, urging him to assist in getting DOH to post the reports.
They noted that the law was passed so that families didn’t have to file formal records requests with DOH in order to get inspection reports — a process that could take two weeks and require them to pay for the documents.
“The law removed this requirement and expense by providing a simple, cost effective solution to the problem that is already in effect in may other states: Inspection reports posted on the web that may be reviewed immediately, with no delay, and at no cost to families,” Sens. Suzanne Chun Oakland and Les Ihara and Rep. Gregg Takayama wrote in a letter to Ige.
Ige did intervene, but the reports continue to lag.
Ridley told the Star-Advertiser that his department lacks adequate resources to post the reports.
“This is a resource dilemma. Resources are needed to help us achieve the requirements established by the Legislature,” he said by email. “Without those resources the requirements are like an unfunded mandate where an action is required but no resources are provided to perform the action. As a result, the department is unable (not unwilling) to do the work.”
However, the department’s claims that it needs more staff to post the reports have also been controversial.
The Legislature appropriated $148,000 to DOH for fiscal years 2014 and 2015 to hire two new employees and cover the costs of support equipment and website development. However, DOH never advertised the jobs and never hired anyone.
DOH spokeswoman Janice Okubo told the Star-Advertiser in October that there was disagreement among staff as to whether the Legislature intended for the jobs to be temporary or long-term civil service positions, leading to delays in moving forward with the job postings.
After funding lapsed, the department found funds to hire a temporary worker in January, but the person left the position about two months later, said Okubo.
“The program will need to determine if funds are available which are otherwise earmarked for other purposes and can be used to hire another temporary position,” she said by email.
Okubo said that the Legislature did not provide funds for a permanent position this session.
Asked whether DOH had not been timely completing inspections, Ridley said that some facility reports just weren’t ready for posting, while a lack of staff might also cause delays.
“Often, reports are not completed within five days of conducting the inspection,” he said. “They are not finalized nor has the facility had a chance to answer the report. As a result, the reports are incomplete. Due to lack of staff, inspections could be delayed.”
He said some facilities must be inspected annually; others, every two years. He did not immediately have a figure for how many reports haven’t been posted online.
