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State lawmakers faced a dilemma in the waning days of the legislative session as they considered a bill promoted as a way of reuniting a couple married 67 years.

On its surface, the story was solid. Noboru Kawamoto, a 94-year-old decorated World War II veteran, and his wife Elaine have been separated for several months, ever since he moved into a type of care home that only allows one private-pay client.

He needed nursing-facility care but wanted a residential instead of institutional setting. He found that in a community care foster family home in Kaneohe operated by Jonathan Hanks.

House Vice Speaker John Mizuno, on the House floor April 27, continues to look at ways to get around state regulations so a married couple can live in the same community care foster family home.

Cory Lum/Civil Beat

But under current law, only three clients are allowed in a CCFFH. And two of the three must be on Medicaid — the low-income demographic that these state-regulated homes were created to serve.

would have allowed the Department of Health to make an exception for private-pay couples who are married or in a civil union to live in a CCFFH.

But another consideration was at play. The care home Noboru lives in already has three clients, so someone would have to go. And that someone would be on Medicaid if the Kawamotos were both to live there.

“I was so focused on getting Elaine and Noboru back together, I didn’t think of that other Medicaid client,” said House Vice Speaker John Mizuno, who introduced the bill in January and championed it throughout the session.

“This is what we didn’t foresee in this case,” he said. “It’s a dilemma.”

“I’m very disappointed that there are people promulgating misinformation at the expense of this poor couple. That’s the tragedy here.” — Sen Jill Tokuda

That’s a different line than he took after the bill died May 1. He immediately issued a statement that said, “I am unable to explain in words my emotional feelings and how a state regulation can deny a couple married for 67 years the right to live with each other. I’m going to say something that no lawmakers would say, my whole office is crying, the Hanks and Kawamotos are crying, we’re human and we are hurt. I’m hurting inside, we are all hurt.”

Sen. Jill Tokuda, who chairs the powerful Ways and Means Committee, has been targeted by Hanks and others for her role in stopping HB 600. People have written letters to the editor of the Honolulu Star-Advertiser and taken to Facebook, calling her “despicable” and saying she and her colleagues should be “ashamed” of themselves.

TV and newspaper reports on the Kawamoto story, social media posts and House press releases over the past three months have rarely mentioned the fact that other options exist for married couples to live together in an adult care home and pay with their own money.

“I’m very disappointed that there are people promulgating misinformation at the expense of this poor couple,” Tokuda said. “That’s the tragedy here.”

Health officials, state lawmakers and care home operators have continued to explore other avenues to address the issue since the legislative session ended May 7. But so far, all signs point toward the law needing to be changed if two private-pay clients are to live in a CCFFH.

The Kawamotos and the Kaides

The Kawamotos seemed like the perfect poster couple for Mizuno to demonstrate why an exception to the law was so important.

Noboru, often flashing a charming smile at legislative hearings, and Elaine are like many aging couples. They enjoy simple things like watching TV and just want to spend the rest of their days together. Elaine lives in an adult residential care home, or ARCH, some 20 miles away in Punaluu and visits her husband on weekends.

Hanks, the care home operator, brought Noboru to the Capitol for the hearings on the bill that were held during the four-month-long session, strongly advocating for the legislation’s passage.

Jonathan Hanks, front right, sits next to Noboru Kawamoto, wearing white, during a February legislative meeting. Kawamoto is a private-pay resident at Hanks’ community care family foster home in Kaneohe.

Cory Lum/Civil Beat

To Mizuno and other supporters of HB 600, lawmakers just needed to pass the legislation and the couple could live happily ever after — just like the Legislature did in 2009 for Sidney and Terry Kaide on the Big Island.

HB 600 was needed because there was a two-year sunset provision in  live together in a CCFFH while paying out of their own pocket.

But HB 600 supporters tended to ignore one big difference: There was a vacancy in the care home for the Kaides to live together as soon as the bill became law.

Not so in the Kawamoto case. In addition to Noboru, Hanks has two clients on Medicaid staying at his home, Mizuno said, so one of them would have to go to make room for Elaine since three is the limit for a CCFFH.

“What do you tell that other person? Take one for the team?” Mizuno said. “And the very basis for the community care foster family home is it exists for Medicaid clients. So what message does it send? It’s now taking money over the Medicaid clients.”

Instead of the happy ending the Kaides received, complete with a bill-signing ceremony by then-Gov. Linda Lingle, the celebration of HB 600’s passage would have been followed by a debate over the Medicaid client who would have to leave the home.

“I was so focused on getting Elaine and Noboru back together, I didn’t think of that other Medicaid client.” — House Vice Speaker John Mizuno

“From the get-go, that was the case,” said Mizuno, acknowledging he was aware all along that Hanks’ facility was at capacity. “There’s no doubt that was on the minds of the Department of Health, Department of Human Services and state lawmakers.”

It’s possible that one of the residents on Medicaid could have voluntarily moved. Arrangements of this nature may already have been in the works and just not discussed publicly.

Hanks did not return messages seeking comment.

He is still pushing to reunite the Kawamotos in his facility. The Kaneohe Neighborhood Board, of which Hanks is a member, carved out time at its meeting last week to talk about community concerns over HB 600.

Meanwhile, the Honolulu City Council will consider a proposed resolution to urge the Hawaii State Association of Counties to “support continuing state efforts to allow two individuals who are married or in a civil union to live in the same community care foster family home under certain conditions.”

Money Over Medicaid?

Perception is a problem. Mizuno said care home operators can earn twice as much from a private-pay client compared to the amount the government gives them for someone on Medicaid.

So even if the motivations are pono, the nagging reality at the end of the day is the state would be prioritizing the needs of someone with the means to pay for nursing care out of their own pocket over those of a low-income person dependent on government support.

Before HB 600 was amended, it would have made an exception for two private-pay clients in each home as long as they were related by blood, marriage or even friendship.

Care home operators urged lawmakers to pass the bill when it was first heard in February, explaining how the change would “help us not to struggle to make ends meet,” as Elma Tierra put it. She’s president of the Adult Foster Home of the Pacific, one of many care homes in Waipahu.

But the notion of making an exception for CCFFHs to have two private-pay clients rankles some ARCH operators.

There are over 1,100 CCFFHs statewide (roughly 83 percent of which are on Oahu) providing more than 2,800 beds. There are about 228 ARCHs, a type of facility that can accept several clients depending on which type of certification it has, offering just over 1,100 beds. The vast majority of ARCH clients pay privately.

Hawaii’s population is rapidly aging, which could mean more than enough private-pay clients for all the different types of operators. But there’s still concern that if CCFFHs are suddenly allowed to take on an additional private-pay client, that could mean fewer for ARCHs.

Some CCFFH operators would have liked to have seen an exception to not only allow two private-pay clients but also the allowance of a fourth bed.

Mizuno said there’s no way the state will do that, at least for now.

Safety is an issue. John McDermott, the state long-term care ombudsman, has repeatedly cautioned against relaxing regulations for care homes. The death of 88-year-old Nona Mosman and subsequent prosecution of her caregiver has only reinforced his position.

Mosman died in May 2013 while living in a Waipahu CCFFH run by Jennifer Polintan. In January, Polintan was sentenced to a year in prison for manslaughter after it was revealed that she had another full-time job and had left the care up to her unqualified relatives.

“I support a situation where two people can age together safely,” Tokuda said. “There have been some significant things that have happened when you don’t have safeguards in place.”

‘Sufficient Options Already in Place’

Tokuda, who represents Kaneohe, said there are options for the Kawamotos, including Expanded-ARCHs, for them to live together right now.

An Expanded-ARCH offers a limited number of beds in each home to provide care at the nursing-facility level.

Depending on the certification, six or more clients could be in any one home paying with their own funds. There are roughly 270 E-ARCHs providing over 1,600 beds in Hawaii, of which about 89 percent are on Oahu, according to state health officials.

Keith Ridley, who heads the state office that oversees most adult care homes, told Tokuda in a May 8 letter that there are “sufficient options already in place” for married couples.

Keith Ridley, at a legislative hearing in February, heads the state office that oversees most adult care homes.

Cory Lum/Civil Beat

He said married couples who want to pay out of their own pocket should choose to live in an E-ARCH, where care is comparable to a CCFFH.

“Please be assured the Department of Health has reached out to the Kawamotos through Mr. Kawamoto’s private case management agency on multiple occasions as well as to the care home operator to ensure that the Kawamotos are aware of their ability to live together in a state licensed E-ARCH where private pay individuals and married couples may reside,” Ridley wrote.

“I have been assured by the private case management agency and by the current caregiver that Mr. Kawamoto is aware of his options,” he said.

Ridley also told Tokuda that the departments of Health and Human Services are continuing to work together to identify short- and long-term solutions that “serve the broader good for the community as well as those truly rare and unique circumstances where compassion can and should be shown by the state.”

The departments said in a joint statement that health officials have been in communication with legislators to follow up, but at the same time respect the privacy of the Kawamotos and treat their care and decisions as confidential.

The statement noted, “In the event that other couples find themselves in circumstances similar to Mr. and Mrs. Kawamoto, it is important to note that there are various care options for seniors requiring services for their daily living.”

Waiver in the Rules

Mizuno has asked if it would be possible for the Department of Health to grant a waiver to let the Kawamotos pay privately to live together in Hanks’ CCFFH, but the Attorney General’s office has indicated the law needs to be changed first.

There is a provision in the governing the Health and Human Services departments that allows for exceptions. The language is simple enough: “Exceptions to the requirements of this chapter may be made at the discretion of the department.”

But that only applies to the requirements of administrative rules, not Hawaii Revised Statutes, which don’t allow two private-pay clients to live in a CCFFH, Attorney General Doug Chin said.

Lawmakers won’t be calling a special session to reconsider HB 600, Mizuno said. However, the bill is still technically alive in conference committee and could be taken up at the start of the next session in January.

“It’s a very personal bill and sometimes when a bill dies, part of us dies with it,” Mizuno said, sounding a far more conciliatory note than he did the night the bill died.

“It would not be prudent to point the finger at anyone,” he said. “If anything, we need to collaborate and work better together. Although it is heartbreaking, we need to move forward.”