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The state is coming down hard on Cedarbrook Residential Center, a McDowell County adult care home that was previously the beneficiary of a legal settlement in which the North Carolina Department of Health and Human Services agreed to fabricate a four-star rating and withdraw more than $350,000 in fines for serious violations.
The N.C. Department of Health and Human Service’s Division of Health Service Regulation’s Adult Care Licensure Section notified Cedarbrook on Oct. 23 that the state was suspending new admissions to the facility, Carolina Public Press has learned. The facility’s owner, Frederic Leonard, has challenged that penalty and has a hearing scheduled with the North Carolina Office of Administrative Hearings next week.
The facility is the subject of a previous Carolina Public Press investigative report, which detailed accusations levied against the facility and the response by state regulators.
Responding to complaints at the 80-bed site in Nebo that houses many residents with mental health issues, state inspectors visited Cedarbrook in late September and early October and cited five A2 violations, the second-most serious category of issues, along with five B violations.
The 189-page statement of deficiencies produced by the investigators details similar problems to the ones Cedarbrook has been penalized for in the past, though it did not include any of the A1 violations, the most serious category, which surveyors cited multiple times in their November 2015 complaint investigation that led to the settlement in September 2016.
In the new inspection, surveyors described bathrooms as smelling strongly of urine and feces, cracked ceilings, a resident’s room that flooded after heavy rains, moldy smelling rooms, and dirty floors and walls.
One resident told surveyors that the bottoms of her feet were black and a wound on her foot was dirty because of unclean floors, they reported.
Cedarbrook received one of the A2 penalties for lax supervision of residents after one resident was able to ingest hand sanitizer and mouthwash, despite having a history of hospitalizations for swallowing those kinds of products. Surveyors reported seeing another resident eating out of the trash. A third resident was illegally smoking inside the building. A fourth, with a history of violent outbursts, lacked appropriate monitoring despite showing signs of increasing aggressiveness, investigators said.
Another A2 penalty related to resident rights. Surveyors said several residents reported a Cedarbrook staff member threatening them with a knife and another verbally threatening them, while several other staff members spoke to residents “in a dismissive, sharp, provoking and disrespectful manner.”
The staffer accused of the knife threats admitted to carrying a knife but denied threatening anyone, surveyors said.
Another resident’s guardian described conditions in the resident’s room as “deplorable” and said the resident’s sheets were stained with urine and feces whenever the guardian visited the facility.
Surveyors said they visited the resident’s room at around 2 p.m. on Oct. 2 and found the room smelling strongly of urine and feces with a soiled incontinence pad on the bed and the sheets and pillowcases stained yellow and brown.
The resident told surveyors that no one from the facility’s staff had checked on him that day and that the resident had no other choice but to lie on a soiled bed.
Surveyors also cited the facility for failing to maintain state-mandated staffing ratios during six shifts, “resulting in inadequate staff to meet the supervision, incontinence care and bathing needs of residents.”
Residents also told surveyors that many residents weren’t given regular assistance with bathing, resulting in some smelling strongly of body odor much of the time, according to the statement of deficiencies.
Surveyors said they also conducted confidential interviews with staff members, one of whom said residents should not be treated the way those at Cedarbrook were.
The state has not yet issued a new star rating for Cedarbrook, but DHHS spokesperson Christine Mackey told Carolina Public Press on Thursday, Nov. 2, that “a new rating will be issued.” She said the statutes for regulating adult care homes require time for the facility to pursue informal dispute resolution before a new rating is released
While Cedarbook could still pursue an informal dispute resolution through DHHS, taking the case before an administrative law judge with the Office of Administrative Hearings takes the matter away from DHHS and instead starts a legal process.
The facility’s current four-star rating (a perfect rating in the state system) issued following the settlement replaced a zero-star rating that resulted from the November 2015 inspection.
The state’s website chronicling current and past star ratings no longer includes the zero-star rating, but shows Cedarbrook’s earlier rating of four stars based on a 2014 inspection that did not find any serious issues.
Previous citations and settlement
Following the November 2015 inspection and imposition of penalties, Cedarbrook accused the state of treating it differently from other facilities and petitioned the OAH for withdrawal of the citations and fines. The citations at that time included some elements that are not present in the new citations, such as lax supervision leading to resident sexual misconduct and prostitution, residents wandering off and fights between residents.
The facility was also cited in 2015 for operating a work program in which residents earned credits at a facility store. The new statement of deficiencies refers to that program’s continued existence but did not include it as a violation this time.
In mid-2016, Cedarbrook gained a temporary stay on an admissions ban that the state imposed at that time, though had the case gone to trial that stay could have been lifted and the admission ban might have gone back into effect. Leonard testified in a deposition that the restriction on admissions was causing severe financial harm.
In September 2016 as the case was about to go to trial, the state offered Cedarbrook a settlement in which neither part would admit wrongdoing, but the state would withdraw all penalties and issue the new star rating. After presenting the agreement to an administrative law judge, the state and Cedarbrook disagreed over some minor provisions of the settlement.
The judge ordered the parties to comply with the settlement in a January 2017 ruling.
However, Administrative Law Judge David Sutton has told CPP through a spokesperson that this ruling included no consideration of the merits of the settlement or even the legality of the settlement, a question which neither party raised.
Timing of action
The timing of the new crackdown on Cedarbrook follows statewide attention after Carolina Public Press’ investigation into adult care homes appeared in July and its initial report on the Cedarbrook case in October.
In its previous investigation of the Cedarbrook settlement, CPP identified concerns about whether a state agency should legally be able to set aside regulatory action and create a fictional rating for a home with serious violations simply because the company objected with a lawsuit, especially in a case in which the state has not admitted to any wrongdoing.
After many discussions with DHHS this year for the four-part series on adult care homes, CPP notified DHHS in August that the Asheville-based nonprofit news organization was developing an article about Cedarbrook and seeking related public records. In mid-September, CPP sent an email to the agency, warning that the upcoming report would raise serious questions about whether the state should have settled the case and offering DHHS officials the opportunity to share their side of the situation.
At that time CPP indicated its first article might appear as early as Sept. 20, though its publication faced delay for several weeks as CPP examined new information that came to light.
“Our primary goal is protecting the safety and welfare of the state’s most vulnerable citizens,” DHHS Deputy Secretary Mark Benton said Sept. 20, in a response to CPP’s offer. “While it’s likely that both sides will debate the merits of this case for some time, we are focused on ensuring that the care in all our facilities is both safe and appropriate. We are hiring additional investigators, providing more training and working collaboratively with county (Departments of Social Services) agencies on our shared responsibility to conduct routine and unannounced inspections of adult care facilities.”
Because a change in administration had occurred, CPP also reached out to Rick Brajer, the DHHS secretary under former Gov. Pat McCrory, to offer Brajer the opportunity to comment, but he said through a spokesperson that he preferred to defer to the new administration.
CPP also contacted McDowell County Department of Social Services officials in early September about whether additional surveys had been conducted. The agency responded that it could not discuss the situation due to ongoing litigation. The nonprofit organization Disability Rights NC, which has a federal mandate and funding to advocate for disabled residents of the state, has sued McDowell DSS for access to its Cedarbrook records.
State statute provides for Adult Care Licensure Section surveyors to conduct inspections, while the state’s 100 county DSS agencies conduct more frequent site visits. In practice, DSS agencies generally handle most complaint investigations. A CPP analysis of three years of public records on the 1,200 adult care homes operating in the state reviewed violations and penalties imposed from county to county, finding substantial disparity in the way various counties interpret their duties to oversee adult care homes.
As part of the settlement with Cedarbrook, the state agreed to let McDowell DSS take the lead in future inspections.
On Sept. 25, surveyors from both the state and McDowell DSS visited Cedarbrook to conduct both an annual inspection and respond to one or more complaints. Their work continued through Sept. 29. They returned again on Oct. 2, according the statement of deficiencies.
In response to a question from CPP, DHHS spokesperson Mackey confirmed Oct. 6 that the agency and DSS had “recently completed a joint survey of Cedarbrook and our findings will be publicly posted in the near future once the report has been finalized.”
On Oct. 19, CPP’s report on the Cedarbrook case appeared on its website. One of the writers also talked about the case on WUNC’s “The State of Things,” a live public radio broadcast heard statewide.
It’s not clear when Cedarbrook learned about the new citations, but the state issued a letter with the license suspension on Oct. 23. CPP learned of these developments on Wednesday, Nov. 1, and the new statement of deficiencies appeared on the state website.
A hearing on Cedarbrook’s request to block the ban on new admission is scheduled for a hearing Tuesday, Nov. 7.
In response Wednesday, Nov. 1, to a CPP request for comment on the new citations and Cedarbrook’s appeal, Mackey said, “The Department remains focused on ensuring that the care provided in all adult care facilities in North Carolina including Cedarbrook is both safe and appropriate.” She also confirmed other details about the case.
CPP has spoken with Cedabrook’s attorneys and invited Leonard to comment. They had not responded to this invitation prior to publication of this article.