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GREENSBORO — No new residents are getting into Cedarbrook Residential Center for now, after a judge declined Tuesday to lift a state ban on new admissions immediately at the 80-bed adult care home in McDowell County.
Frederic Leonard, Cedarbrook’s owner, told Administrative Law Judge Randall May that his business is losing money as long as admissions remain suspended, as they have been since Oct. 23.
But after listening to testimony and presentations of evidence from both Cedarbrook’s and the state’s lawyers during Tuesday’s hearing in Greensboro, May decided to take more time in deciding whether to grant the temporary restraining order that Leonard is requesting.
Cedarbrook, located in Nebo, received the suspension of admissions in late October following a joint inspection by the McDowell County Department of Social Services and the state Division of Health Service Regulation, a branch of the Department of Health and Human Services.
State and county surveyors reported filthy living conditions, improper care and supervision of residents, missed or improperly administered medications and insufficient staffing in a 189-page statement of deficiencies.
Leonard testified Tuesday that the state’s catalog of alleged violations were full of inaccuracies and misstatements. Howard Williams, an attorney at the Brooks Pierce law firm who, along with Joey Ponzi, represented Cedarbrook at the hearing, said surveyors were looking for a “gotcha” moment during their visit to the facility.
Leonard told Judge May that several of the problems investigators alleged about the facility could be explained. For example, Leonard suggested, surveyors didn’t understand the facility’s timekeeping system and did not seek more detailed information that would have explained how Cedarbrook staff administered medications.
The statement of deficiencies also described a resident who told surveyors that he was forced to lay on top of an incontinence pad covered with urine and feces stains because the staff at the facility didn’t regularly check on him. Surveyors interviewed that resident’s brother, who said this was the normal state of the resident’s bed whenever he came for visits, according to the statement of deficiencies.
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Leonard told the hearing that the stains were due to the resident eating and drinking coffee in his bed and that the resident wasn’t bowel incontinent. However, attorneys for the state showed a photograph of the bed from one of the days of the survey, showing a visibly stained incontinence pad rather than just sheets.
Leonard’s attorneys sought the temporary restraining order to restore admissions on the grounds that the state’s allegations didn’t represent the reality of resident life at the facility, and because the ban is causing a serious financial strain.
Leonard said the facility has lost six or seven residents since the suspension was put in place, meaning the census at the facility is down roughly 10 percent since regulators visited in September.
Derek Hunter, an assistant attorney general with the North Carolina Department of Justice, argued on behalf of DHHS that the suspension of admissions was necessary to “shield new residents from the problems.”
Hunter said the suspension was designed to give the facility time to fix problems, rather than the state immediately closing the facility outright or revoking the facility’s license.
Leonard’s attorneys accused DHSR Adult Care Licensure Section Chief Megan Lamphere, who was also in attendance at the hearing, of having Cedarbrook’s closure as her end goal.
Adult care homes like Cedarbrook house disabled individuals who require substantial care and help with feeding, bathing and medication. However, these facilities are not nursing homes and provide living assistance rather than medical care. They are also not retirement centers, as a large portion of residents may be mentally ill or cognitively impaired adults of any age.
A four-part Carolina Public Press investigation in July examined these facilities in North Carolina and the state’s oversight of them.
This isn’t the first time Cedarbrook has been the target of state regulators or that lawyers for the two sides have faced off before an administrative law judge. In 2015, the DHSR published a 400-page statement of deficiencies that detailed allegations of mistreatment, drug use, residents engaged in prostitution, violence and lax supervision at Cedarbrook.
At that time the facility received a zero-star rating. After two additional negative inspections in early 2016, Cedarbrook faced fines of more than $350,000. Leonard petitioned the Office of Administrative Hearings to “withdraw” the negative findings, financial penalties, suspension of admissions and low rating.
The state eventually offered to settle that case, giving Leonard each of those things, as well as creating a new four-star rating. However, neither party admitted to wrongdoing or agreed to pay the other’s court costs.
A few weeks prior to that 2016 settlement, Administrative Law Judge David Sutton granted a temporary restraining order to lift the suspension of admissions until the full case could be tried. However, Sutton did not otherwise rule on the merits of that case.
An OAH spokesperson has also clarified that an order from Sutton ordering the parties to comply with the terms of the settlement did not examine whether the agreement was legal.
During Tuesday’s hearing, Ponzi asked Leonard whether Cedarbrook had been the subject of any media reports.
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Apparently referencing Carolina Public Press’ investigation of the facility and a radio interview with CPP managing editor Frank Taylor on WUNC’s “The State of Things,” Leonard said the news coverage has caused “suffering.”
He said he took issue with the reports appearing in October that quoted from the allegations in the withdrawn statements of deficiencies, described the facility’s settlement with the state and characterized its new four-star rating as “fabricated.”
However, Judge May asked Leonard to withhold his opinion of any news articles about the allegations related to Cedarbrook, as not material to the decision now under consideration.
It’s not clear when the judge will issue a decision on the admissions ban.
No date has been set so far for the next hearing as Cedarbrook challenges the state’s actions.
DHHS spokesperson Chris Mackey told CPP last week that a new star rating for Cedarbrook is expected after the new inspection, but will not be determined until Cedarbrook’s owners have a chance to contest the negative findings through an informal dispute resolution with DHHS.
Since Cedarbrook is currently challenging DHHS in court rather than through the agency’s own procedures, it’s not clear how that might affect the timing of a new rating.