IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-60272

Summary Calendar

BRENHAM NURSING AND REHABILITATION CENTER,

Petitioner,

v.

UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES,

Respondent.

Petition for Review of a Decision of the

Department of Health and Human Services

No. A-15-1

Before KING, CLEMENT, and OWEN, Circuit Judges.

PER CURIAM:*

Petitioner Brenham Nursing and Rehabilitation Center (Brenham), a 

skilled nursing facility in Brenham, Texas, seeks review of a final decision of 

the United States Department of Health and Human Services (DHHS)

affirming a civil monetary penalty against it for noncompliance with Medicare 

participation requirements. For the reasons stated below, we dismiss 

Brenham’s petition for review.

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

February 4, 2016

Lyle W. Cayce

Clerk

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I

The noncompliance determinations at issue in this appeal arise from 

Brenham’s response to the following incident. On April 12, 2013, two certified 

nurse assistants (CNA Q and CNA R) discovered that a cognitively impaired 

101-year-old resident (Resident 4) had extensive bruising covering much of her 

body, as well as swelling in some areas. The CNAs reported the bruising to a 

charge nurse (LVN B), who was “stunned” and immediately informed 

Brenham’s Director of Nursing (DON); LVN B subsequently completed an 

incident report. The DON told surveyors he initially thought that the bruising 

was caused by a hematological disorder, but ruled out the possibility after 

reviewing Resident 4’s laboratory results, ordered four days after the bruising 

was discovered. He then surmised that the bruising was caused by a Hoyer 

Lift, a device used to transfer debilitated patients. Resting on this causation

theory, Brenham’s management did not report the bruising to state officials.

State surveyors, inspecting Brenham on behalf of the Centers for 

Medicare and Medicaid Services (CMS), discovered Resident 4’s bruising and 

the aftermath during a survey that began on April 22, 2013. They reported 

that Brenham was noncompliant, at an “immediate jeopardy” level, with the 

following regulations: (1) 42 C.F.R. § 483.13(c), requiring Brenham to “develop 

and implement” policies to prevent “mistreatment, neglect, and abuse of 

residents”; (2) 42 C.F.R. § 483.13(c)(2)-(4), requiring Brenham to report and 

thoroughly investigate suspicions of abuse and neglect; and (3) 42 

C.F.R. § 483.75, requiring Brenham to “effectively and efficiently” administer 

the facility to promote resident well-being. Acting on the surveyors’ findings, 

CMS initially imposed per instance civil monetary penalties (CMPs) totaling 

$8,500. Five days later, however, CMS rescinded the per instance penalties 

and replaced them with per-day penalties totaling $84,400. 

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Brenham filed an administrative appeal challenging both the 

noncompliance determinations and the resulting CMPs. After a hearing, an 

administrative law judge (ALJ) upheld CMS’s enforcement actions. DHHS’s 

Departmental Appeals Board (DAB) affirmed. Having exhausted its 

administrative remedies, Brenham timely appealed to this court.1 

II

This court has jurisdiction to review the imposition of civil monetary 

penalties pursuant to 42 U.S.C. § 1320a-7a(e).2 We conduct our review 

according to the deferential standards of the Administrative Procedure Act and 

will uphold “agency actions, findings, and conclusions” unless they are

“‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance 

with the law’ or ‘unsupported by substantial evidence.’”3 Additionally, the 

Secretary’s factual findings, “if supported by substantial evidence on the record 

considered as a whole, shall be conclusive.”4 

III

Brenham challenges the violations as unsupported by substantial 

evidence. Alternatively, Brenham contends that CMS’s immediate jeopardy 

findings are clearly erroneous, and further, that the penalty amounts selected 

within the applicable ranges are unreasonable. Finally, Brenham claims that 

the increased, per-day penalties arising from CMS’s revision of the CMPs

violates due process.

 

1 See 42 CFR § 498.95.

2 42 U.S.C. § 1320a–7a(e) (“[T]he court shall have jurisdiction of the proceeding 

and . . . shall have the power to make and enter . . . a decree affirming, modifying, remanding 

for further consideration, or setting aside, in whole or in part, the determination of the 

Secretary . . . .”).

3 Cedar Lake Nursing Home v. U.S. Dep’t of Health & Human Servs., 619 F.3d 453, 

456 (5th Cir. 2010) (quoting 5 U.S.C. § 706(2)(A),(E)).

4 Id. 456 at n.3 (quoting 42 U.S.C. § 1320a–7a(e)).

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A

Substantial evidence exists on the record as a whole to support the

Secretary’s determination that Brenham was not in substantial compliance

with 42 C.F.R. § 483.13(c), § 483.13(c)(2)-(4), and § 483.75. Substantial 

compliance is “a level of compliance with the requirements of participation 

such that any identified deficiencies pose no greater risk to resident health or 

safety than the potential for causing minimal harm.”5 We address each 

noncompliance determination separately.

1. 42 C.F.R. § 483.13(c)

Federal law requires skilled nursing facilities to “develop and implement 

written policies and procedures that prohibit mistreatment, neglect, and abuse 

of residents.”6 Brenham insists on appeal that it substantially complied with 

§ 483.13(c) because there is no evidence of abuse or neglect and it had 

anti-abuse policies in place, which it implemented through training. 

Whether Resident 4’s bruising was potentially linked to abuse or neglect 

is at the heart of this appeal. Brenham claims that it is “uncontested” that

Resident 4’s bruising was due either to a hematological disorder or pressure 

from a Hoyer Lift. But Brenham mischaracterizes the record; the surveyor

testimony Brenham references only notes that Brenham asserted these

theories. Brenham also cites a surveyor worksheet that states “there are no 

identified concerns” regarding the requirement that residents be “free from 

unexplained physical injuries” and “resident abuse.” But Brenham omits 

surveyor testimony explaining that the worksheet is prepared on initial rounds 

and does not represent complete review. As the DAB stated, copious survey 

 

5 42 C.F.R. § 488.301.

6 42 C.F.R. § 483.13(c).

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notes “evidence[] . . . clear concern about the unexplained source of the 

bruising and the potential for abuse.” 

The ALJ ultimately rejected Brenham’s causation theories, deeming 

them “hypotheses” that were “not grounded in fact.” The DAB affirmed, citing 

the following undisputed evidence: (1) though Resident 4’s bloodwork indicated 

her blood cell counts were slightly low, Brenham’s management ruled out a 

hematological disorder as a possible cause; (2) CNA Q told surveyors that 

Brenham’s DON instructed her to corroborate the Hoyer Lift causation theory, 

but CNA Q and CNA R nevertheless denied transferring Resident 4 with a 

Hoyer Lift; (3) LVN B told surveyors that Hoyer Lift equipment was not 

present in Resident 4’s room; (4) Resident 4’s care plan did “not address 

transfers at all, much less call for use of a Hoyer Lift”; and (5) both Resident 

4’s physician and Brenham’s medical director opined that the bruising should 

have been reported. 

Brenham nevertheless contends that the ALJ and DAB improperly 

discounted its expert testimony supporting Brenham’s causation theories. But 

as the DAB noted, the expert testimony fails to address undisputed record 

evidence and is, as both the ALJ and DAB noted, often inconsistent with such 

evidence. We cannot say that the DAB’s affirmance of the ALJ’s decision to 

discount the expert testimony was improper.7 Further, Brenham’s Hoyer Lift 

theory, even if accepted, does not rule out the possibility that staff improperly 

used the device in an abusive or neglectful manner. We accordingly affirm the 

DAB’s conclusion that Brenham was obligated to treat Resident 4’s bruising as 

 

7 See Harris v. Apfel, 209 F.3d 413, 417 (5th Cir. 2000) (“A finding of no substantial 

evidence is appropriate only if no credible evidentiary choices . . . support the decision. In 

applying this standard, we may not re-weigh the evidence or substitute our judgment for that 

of the Commissioner.” (footnote omitted)).

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potentially linked to abuse or neglect; substantial evidence indicates the 

bruising was, at the least, an injury of unknown origin.

This leads us to the further determination that Brenham was not in 

substantial compliance with § 483.13(c)’s requirement to implement policies to 

protect residents from abuse and neglect. In its argument to the contrary, 

Brenham fails to recognize that “implement” is not limited to training8 and 

indeed, as the DAB noted, the cited deficiency was largely grounded in 

Brenham’s failure to effectuate its policies. 

Brenham’s “Accidents and Incidents” policy, which incorporates state 

standards regarding suspicions of abuse, requires Brenham to immediately 

report and investigate suspected neglect or abuse, including “injuries of an 

unknown source.”9 As the DAB noted, Brenham’s “Facility Abuse Prohibition” 

policy similarly requires Brenham “to develop and implement a systematic 

process to investigate allegations of abuse, neglect and/or exploitation so that 

such events can be accurately and timely investigated and reported to the 

proper authorities.” 

It is uncontested that Brenham did not immediately report the injury. 

Moreover, as explained in further detail in the § 483.13(c)(3) analysis below, 

the DAB’s conclusion that Brenham’s “investigation” was cursory and thus far 

from a “systematic process” is supported by the record, as is the overall 

conclusion that Brenham failed to protect its residents from possible neglect or 

 

8 See Honey Grove Nursing Ctr. v. U.S. Dep’t of Health & Human Servs., 606 F. App’x 

164 (5th Cir. 2015) (per curiam) (“[A] policy that exists only on paper provides no benefit to 

the residents . . . . Procedures which are not carried out in practice are worthless. Training 

or other measures to implement a policy can only be understood as sufficient if those 

measures are calculated to ensure neglect is prevented.” (quoting Life Care Ctr. of Gwinnett, 

DAB 2240, 2009 WL 1176324, at *4 (DHHS 2009))). 9 TEXAS DEP’T OF AGING & DISABILITY SERVS., PROVIDER LETTER #06-43 – GUIDELINES 

FOR REPORTING INCIDENTS (2007), 

http://www.dads.state.tx.us/providers/communications/2006/letters/pl2006-43.pdf.

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abuse. Brenham’s only response is that the policies were not triggered insofar 

as Brenham “made the reasonable business and professional conclusion” that 

Resident 4’s bruising was not attributable to abuse or neglect or an “injury of 

unknown origin[].” Because we reject that premise, we affirm the DAB’s 

noncompliance determinations respecting § 483.13(c).

2. 42 C.F.R. § 483.13(c)(2)-(4)

Substantial evidence also supports the Secretary’s noncompliance 

findings regarding § 483.13(c)(2)-(4). These provisions provide:

(2) The facility must ensure that all alleged violations involving 

mistreatment, neglect, or abuse, including injuries of unknown 

source . . . are reported immediately to the administrator of the 

facility and to other officials in accordance with State law . . . .

(3) The facility must have evidence that all alleged violations are 

thoroughly investigated, and must prevent further potential abuse 

while the investigation is in progress.

(4) The results of all investigations must be reported to the 

administrator or his designated representative and to other 

officials in accordance with State law (including to the State 

survey and certification agency) within 5 working days of the 

incident . . . .

Given our conclusion that Resident 4’s bruising was, at minimum, an injury of 

unknown source, and the undisputed fact that Brenham did not timely report 

the incident or the results of its preliminary investigation, we affirm the DAB’s

noncompliance determination regarding §§ 483.13(c)(2) and (c)(4)’s reporting 

requirements.

Regarding § 483.13(c)(3), the ALJ found that “[t]here is no evidence 

showing” that Brenham “initiate[d] an extensive investigation into the causes 

of Resident # 4’s bruising or even into the extent and seriousness of the 

resident’s injuries.” Brenham claims that it “did investigate and take 

appropriate action.”

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The evidence is largely undisputed; the parties only dispute whether 

Brenham’s “investigation” satisfied § 483.13(c)(3). The record evidence shows 

that Brenham prepared a two-page incident report, indicating no suspicion of 

abuse or neglect, and obtained a one-paragraph statement from CNA Q 

recounting her discovery of the bruising and subsequent report to LVN B. The 

record does not show, as the ALJ and DAB noted, that Brenham coordinated 

an investigation, interviewed its staff, identified persons with access to 

Resident 4, or followed up on the possibility of abuse or neglect once its 

causation theories proved baseless. Brenham’s expert testimony, concluding 

that Brenham complied with § 483.13(c)(3), does not undercut the DAB’s 

conclusion; it contains only the conclusory assertion that “[a]n investigation 

was completed and the outcome of that internal investigation indicated the 

cause of Resident # 4’s bruising was from the Hoyer Lift sling, not from any 

‘unknown origins’ or from abuse or neglect.” We note further that a state 

surveyor did not concede compliance with § 483.13(c)(3) as Brenham claims; 

rather, the surveyor merely acknowledged Brenham’s incident report and the 

CNA’s statement, but noted that she would “have expected them to take it 

further than that . . . . You know, do a much [sic] thorough investigation.”

We conclude that the DAB’s conclusion affirming the ALJ’s § 483.13(c)(3) 

noncompliance determination is supported by substantial evidence. 

3. 42 C.F.R. § 483.75

Finally, Brenham was cited for violating 42 C.F.R. § 483.75, which 

requires any skilled nursing facility to “be administered in a manner that 

enables it to use its resources effectively and efficiently to attain or maintain 

the highest practicable physical, mental, and psychosocial well-being of each 

resident.” The ALJ found this deficiency was supported by the lack of reporting 

and adequate investigation, as well as Brenham’s failure to timely notify 

Resident 4’s treating physician or the facility’s medical director of the incident.

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As discussed above, there was evidence that the investigation was 

inadequate. We note that there is some dispute regarding when Resident 4’s 

physician was notified. The incident report prepared on April 12, 2013 states 

“physician notified,” though Resident 4’s physician told surveyors he was 

informed of the bruising eleven days after the bruising’s discovery, while the 

survey was ongoing. Absent evidence to corroborate the incident report, the 

ALJ found the “physician’s own recollection” the “best and most credible 

evidence.” Brenham does not challenge ALJ’s determination in this regard and 

in any event, substantial evidence supports the § 483.75 deficiency.

B

Brenham further challenges the resulting CMPs. CMS assessed a 

$6,600 per-day immediate jeopardy level penalty for the period from April 22, 

2013 through April 25, 2013, and a $2,000 per-day non-immediate jeopardy 

level penalty for the period from April 26, 2013 through May 24, 2013, when 

CMS concluded that Brenham remedied the violations.

Brenham first argues that the immediate jeopardy findings are clearly 

erroneous because Resident 4’s bruises had begun to heal by the time of the 

survey. “Immediate jeopardy” is defined as “a situation in which the provider’s 

noncompliance with one or more requirements of participation has caused, or 

is likely to cause, serious injury, harm, impairment, or death to a resident.”10 

The DAB rejected Brenham’s argument, concurring in the ALJ’s conclusion 

that the immediate jeopardy determination was not premised on Resident 4’s 

bruising, but rather on Brenham’s deficient response to the incident and the 

resulting risk of future abuse or neglect to Resident 4 and Brenham’s other 

residents. Brenham does not challenge this reasoning and we find no clear 

error regarding the DAB’s conclusion.

 

10 42 C.F.R. § 488.301.

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We further affirm the DAB’s conclusion that the penalties selected from 

the applicable penalty ranges are reasonable. The regulations permit 

penalties in a range of $3,050 to $10,000 per day for immediate jeopardy level 

noncompliance and $50 to $3,000 per day for “deficiencies that do not 

constitute immediate jeopardy, but either caused actual harm, or caused no 

actual harm, but have the potential for more than minimal harm.”11 In 

determining the appropriate penalty, CMS considered, as it must: (1) the 

facility’s history of noncompliance, (2) the facility’s financial condition, (3) the 

factors specified in § 488.404, and (4) the facility’s degree of culpability.12 The 

factors in § 488.404 address the scope and severity of the deficiencies and the 

interrelationship among cited deficiencies.13

Relying on the “extremely serious” nature of Brenham’s noncompliance 

as well as its culpability, the ALJ concluded that the CMPs were reasonable 

under the statutory factors. The ALJ highlighted that Brenham’s failures 

jeopardized not only Resident 4, but also Brenham’s other residents. Further, 

the ALJ noted that Brenham “ignored the possibility of abuse,” instead relying 

on unsupported hypotheses, and cited the undisputed fact that Brenham’s

DON requested CNA Q to support the Hoyer Lift theory, despite her denial 

regarding its use. The ALJ concluded that these facts justified the penalties,

even crediting Brenham’s history of compliance. It further noted that 

Brenham provided no evidence regarding its financial condition, though CMS 

provided an opportunity for it to do so. The DAB adopted the ALJ’s 

conclusions.

We conclude that the DAB’s determination as to the reasonableness of 

the CMPs is not arbitrary or capricious or unsupported by substantial 

 

11 42 C.F.R. § 488.438(a)(1)(i)-(ii).

12 42 C.F.R. § 488.438(f).

13 42 C.F.R. § 488.404.

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evidence. Brenham’s response, coupled with the effect of that response—the 

possibility that Brenham residents were exposed to future abuse or neglect 

with little protection from management—renders the DAB’s weighing of the 

statutory factors reasonable.14 

C

In passing, Brenham contends that DHHS’s revision of CMPs, increasing 

the penalties from per-instance fines to per-day fines, violates due process.

That DHHS initially imposed a lower, per-instance penalty does not by itself 

amount to a due process violation.15 Nor is it the case that DHHS committed 

a “taking” merely by its letter notifying Brenham of the increased penalties. 

That letter did not purport to immediately collect the penalty before a hearing, 

as Brenham seemingly implies. Rather, it apprised Brenham of its rights to 

challenge the CMPs.

Insofar as Brenham claims it was not given adequate notice of the final 

penalties, CMS’s statement of deficiencies provided Brenham with ample 

notice of the claimed violations, the facts supporting the violations, and the 

immediate jeopardy findings. Brenham’s due process argument is without 

merit.

* * *

For the foregoing reasons, we DISMISS Brenham’s petition for review.

 

14 Brenham contends that the rescission of CMPs imposed after a subsequent June 

2013 survey is somehow illuminating here. That those CMPs, based on different facts and a 

separate survey, were annulled after a dispute resolution process is of no import here. 15 To the extent Brenham is challenging CMS’s choice of remedy—per-instance versus 

per-day monetary penalties—that is not appealable. 42 C.F.R. § 488.408(g).

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