As lawyers buy time in bid to close Sweet Brook, magistrate 'very concerned' about residents' well-being

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MALDEN — Over the next month, lawyers for a Williamstown nursing home and the Department of Public Health will exchange documents and other information related to the agency's move to close the facility.

The lawyers, James M. Strong and Heidi Hoefler from the Department of Public Health, and Anthony Cichello for Sweet Brook Rehabilitation and Nursing Center, met Thursday with the administrative magistrate at the Division of Administrative Law Appeals for a pretrial conference.

The facility has been under increased scrutiny from state and federal agencies since summer 2017, when surveyors responding to complaints discovered a laundry list of violations, including the alleged abuse and neglect of residents.

After several additional inspection reports, including one in March that allegedly found sexual abuse between residents, the Department of Public Health moved to revoke the facility's license in April.

A month later, an attorney for Sweet Brook appealed the move to the Division of Administrative Law Appeals, and Thursday's hearing was the first attempt to either settle or litigate the matter.

"I'm very concerned about their well-being," Administrative Magistrate Mark Silverstein said of the 69 residents who remain at the facility, which had about 100 patients before the surveys began in 2017, Cichello said.

Cichello, who has represented hundreds of nursing homes, said that the residents are being well cared for by staff and that the facility had brought in an outside company that will take over day-to-day operation as soon as next week.

"The department feels there are still significant concerns about resident safety," Strong said.

In addition to the more than 100 complaints that the DPH has received about the facility in the past two years, some of them alleging serious abuse, Sweet Brook owners owe more than $800,000 to MassHealth in user fees, Strong said.

Strong also mentioned that the federal Centers for Medicare & Medicaid Services — it's known as CMS — has placed the facility in a state known as "immediate jeopardy," freezing the ability to admit new patients, twice in the past two years: Aug. 30, 2017, and March 8, 2019.

The CMS removed the freeze both times.

The DPH is most concerned about a finding from March that staff failed to prevent sexual abuse between cognitively impaired residents. The abuse is believed to have occurred for as long as two years, and it appears that management had taken no action despite being "very much aware" of the situation, Strong said.

Cichello, though, said that there was only one resident at the facility who was alleged to have perpetrated the sexual abuse, and he has since been moved to another nursing home.

Sweet Brook appealed the March CMS report this summer, he said. It could take six months to a year for that appeal to be resolved.

Silverstein asked the DPH attorneys what they expected would happen if he decided to revoke the facility's license to operate in the meantime.

"If I did, who would run the place?" he asked.

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"It would close," Hoefler said.

Generally, the process to close a facility takes 60 days, and every resident would be evaluated by several health care providers and transferred to an appropriate facility for their needs, she said.

Hoefler said that there has been a large turnover in staff at the facility, with reports that the center administrator, Sharon LeBlanc, the director of nursing and the facility's on-staff social worker are no longer there. The local and regional ombudsmen are "boots on the ground," at the facility, she said.

"When people spread rumors that the facility is closing, it makes it very difficult to staff," Cichello said. "There are a lot of very good things going on at the facility."

There are plenty of nursing homes that repeatedly have landed in a state of "immediate jeopardy," but Cichello said the state has only moved to revoke the license of three facilities in the past 10 years. He questioned if targeting Sweet Brook is an abuse of discretion by the state.

Strong said that Cichello's allegations that the DPH actions are "scandalous" are not helpful and the sheer number of complaints that came in about the facility should show that's not the case.

"That's scary stuff," Silverstein noted. "I'm not going to delay this case a long time."

This case could be finished before the federal appeal is resolved, he said.

Silverstein said that he wanted to know if there was any way he could keep the doors of the facility from closing while keeping the residents safe. To do that, he would need to have a full understanding of the current financial, management and patient care.

He suggested that the two parties spend the next 30 days voluntarily exchanging information about the case and see if there could be a way to settle the issue. If not, the documents can be used in the litigation of the case, if it goes that way, he said.

At the next Division of Administrative Law Appeals hearing, on Sept. 17, Silverstein will ask for an update on the parties' discussions, as well as seek additional information about the new management group running operations at the facility.

"I want to see commitment to coming into compliance on a number of levels," Silverstein said to Sweet Brook's attorney. "But patient care assessment is a big one."

In the meantime, Sweet Brook is willing to provide ongoing reports from the new management company to the Department of Public Health while the case proceeds, Cichello said.

Strong said he is not currently authorized to settle the case and plans to follow through with the litigation, but he isn't opposed to talking with Sweet Brook's attorney.

The DPH is concerned that Sweet Brook is trying to drag out the case while residents' safety is in question, Strong said.

"We're all concerned about the residents, just to be clear," Cichello said.

Haven Orecchio-Egresitz can be reached at horecchio@berkshireeagle.com, @HavenEagle on Twitter and 413-770-6977.


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