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

Hawaii's violator blacklist outdated, full of gaps

By Rob Perez
Advertiser Staff Writer

To protect Hawai'i's frail seniors, the state maintains a list of certified nurse aides deemed unfit to work in long-term-care facilities.

The aides placed on the list have abused, neglected or stolen from their clients and are flagged to warn nursing homes, adult foster homes, care homes and other healthcare providers not to hire them.

There's just one problem.

The list hasn't been updated by regulators for more than two years and is full of holes.

Some Hawai'i CNAs who are on a similar federal blacklist because of their transgressions do not appear on the state list.

Others have not been added because the state has a backlog of cases to process.

And the Department of Human Services, which regulates Hawai'i's nearly 1,000 foster homes, has never referred a foster-home CNA for inclusion on the list because the agency lacked administrative rules to do so until recently, according to state officials.

The flawed list is among the many weak points in Hawai'i's long-term-care system.

It is a telling example of how oversight can fall short of protecting the public, despite the efforts of government regulators.

"It makes one question the commitment that a government body has to protecting its most vulnerable citizens," said Colette Browne, a University of Hawai'i gerontology professor. "That's what just jumps out at you."

The gaps also raise questions about whether some problem CNAs are slipping through the cracks and practicing unchecked.

Certified nurse aides are the worker bees of the long-term-care system, the ones who typically provide direct care to the aged and disabled, feeding them, bathing them, dressing them. Most do admirable work under challenging conditions, healthcare professionals say. But as in any profession, unscrupulous ones can taint the rest.

When CNAs are determined by a criminal court or an administrative agency to have abused, neglected or exploited clients, they are supposed to be added to the state's so-called findings list, effectively banning them for life from working at a long-term-care facility in Hawai'i.

But the state hasn't added a name since December 2007 even though there have been multiple cases of CNAs mistreating clients since then.

Gerald Chung, a Medicare certification officer with the Department of Health, which oversees a variety of facilities, including nursing homes, care homes and assisted living facilities, said his agency is processing a backlog of cases to add more names to the list.

Some offenders have been kept off the list because of a legal loophole.

When CNAs plead guilty or no contest to abuse-related charges but persuade the court to defer acceptance of the plea, they remain off the list, provided they stay out of further trouble. Once the nurse aides meet the court-imposed conditions of the deferral, their record is expunged, as if the offense never occurred.

So even though a CNA effectively admits to the charge in court, no conviction is recorded, and that's among the factors DOH cites in keeping the aide off the list.

The federal government, however, takes the opposite approach.

Even if the healthcare worker gets a deferral, the admission to the offense is enough to get that person on the federal blacklist, called an exclusions list.

Donald White, a U.S. Department of Health and Human Services spokesman, said that generally speaking a deferred adjudication is considered a conviction under federal law for the purposes of administering the exclusions list.

The difference in approaches may explain why Hiltrudes Sabugo, a CNA who in 2008 pleaded guilty to endangering the welfare of a 77-year-old O'ahu man after fracturing his ribs while moving him, was placed on the federal list but is not on the state list. In fact, Sabugo, who received a deferred plea, is listed by the state as a CNA in good standing.

It also may explain why Rygena Adams, a care home worker, was not placed on the state list even though she was placed on the federal list in 2006 after pleading no contest to several counts of endangering her clients.

Adams and another caregiver had left several residents at the care home unattended for several hours. They were prosecuted in 2005 after inspectors showed up unannounced and found the residents there alone, state records show. Adams was granted a deferred acceptance of her no contest plea.

Neither Adams nor Sabugo could be reached for comment.

The newspaper found several other cases of Hawai'i CNAs on the federal list but not on the local one.

The state used to take the position that a deferred plea was not enough to keep a CNA from the findings list.

In 2005, the attorney general's office argued in court documents that the state would be violating federal regulations and, more importantly, failing to protect the sensitive nursing-facility population if it didn't place CNAs with deferred pleas on the Hawai'i list.

But the state's position subsequently changed, partly because of turnover in personnel, differences in interpretation of the regulations and because of feedback from federal officials, Chung said. His agency is seeking further clarification from the federal government.

James Pietsch, who heads the University of Hawai'i's elder law program, said the current policy fails to protect the public. He likened its effects to allowing a day-care worker who abused a child to return to the facility because of a legal technicality.

"This is abhorrent to the idea of justice," Pietsch said. "You shouldn't get two bites of the apple."

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