* Th is decisi on was ori ginal ly i ssued as an “unpublished decision”

fil ed on March 2, 2004. On Apr il 13, 2 004, the court designated the opinion as one recommend ed for full -text publication. 1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206 ELECTRO NIC CIT

ATION: 2004 FED App . 0107P (6th C ir.) File Name: 04a01 07p.06


### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________ M EADOW W OOD N URSI NG H OME , Petitione r,

v.
U NITED S TAT ES D EPARTMENT OF H EALTH AND H UMAN S ERVICES , and T OMMY T HOMPSON , Secretary

of HHS, Responde nts. X - - - -> , - - - - - - - - N No. 02-4115

On Petition for Review from the Final Decision of the Secreta ry of Healt h and Huma

n Service s. No. A-02-65. Argued and Submitted: February 3, 2004 Decided and Filed: March 2, 2004 * 2 MeadowWood Nursing Home v. HHS No. 02-4115

** The Honorable Dan Aaron Polste r, Unit ed States Distr ict Judge f or No rthern D istrict of O hio, sitting b y design ation. Befor e: DAUGH TREY and C OLE, Circuit Judg es; POLSTER, District Judge. **

_________________ COUNSEL ARGUED: Shirley

Moscow Mic

haelson, OFFI CE OF THE CHIEF COUNSEL, Chicago, I llinois, for Respo nden ts. ON BRIE F: Shirley Moscow Michae lson, OFFICE OF TH E CHIEF COUNSEL, Chicago, I llinois, for Respond ents

. Geoffrey E. Webster, Columbus, Ohio, for Petitioner.

_________________ OPINION

_________________ MARTHA CRAIG D AUG HTREY, Ci rcuit Ju dge. By means of the petition now before us, MeadowWood Nursing Home seeks review of a civil monet ary penalty imposed by the Secretary

of Health and Human Services (HHS) upon a finding that MeadowWood had failed to comply

with certain Medicar e/Medic aid

regulations. A survey

conducted by t

h e Ohio Department of H ealth on behalf of HHS turned up several deficiencies in the facility, including Me adowWood’s failure to maintain the nur sing home as free of accide nt hazards as possible, as required by 42 C.F.R. § 483.25(h)(1). Waiving review o f all othe r violations for wh

ich civil penalties were imposed, MeadowWood now appeals only the § 483.25(h)(1) penalty

assessed by

the Centers for Medicare an d Medicaid Services, which was sustained by an administrative law judge for the HHS Departmental Appeals Board and then u

pheld by an appe llate pan

el of the Appeals Board. We conclu

de th at the Secretary ’s decision findingNo. 02-4115 MeadowWood Nursing Home v. HHS 3

certain equipment in the facility unsafe i s supported by substantia l evidenc e, and we

theref ore aff irm. PROCEDURALAND FACTUALHISTORY
M eado wWoodNursing Home is a 53-bed long-term-c are facility in rural

southwes tern Ohio . In July 1998, officials of the Ohio Depa

rtme nt of Health, acting on behalf of the Centers for Medicare and Medic aid Services, conducted a survey to deter mi ne w hether the facility was in compliance with the federal requirements for nursing homes participating inMedicare/Medicaid programs. The y discovere d, among other deficiencies, that at

least 12 of the 53 beds in the facility were unsafe due to malfunctioning side ra ils. The two most

ser ious cases involved residents designated inthe report as Resident 2 and Resident 3 . Residen

t 2, a fra il, 100-year -ol d man, was injured after he fell from a bed tha t was known to have a side rail that collapsed easily

. He wa s nevertheless returned to t he same bed

and was s till in it almost a week later

when the side rail again collapsed without warningwhil e it w as being inspecte d by

the surve

yors. Resident 3 , who suff

ered fr om multiple

mental imp airments butwas physically

stron g a nd even violent at t imes, experienced

two falls from

his bed. The first occurred when a side ra il collapsed as he shook it, and the second when the bracket connec ting the

rail to the

bed sn a pped altogether. Resident 3 was the n moved t o a different bed that had a 3-4 inchgap between the side rail and the mattress, which created a risk for entrapment.
As a result of the condition of these two beds and some 10 or 12 others, the Ohio Department of Health concluded that MeadowWood

was not in substantial co mplian ce with 42 C.F.R. §483.25(h)(1), which re quires th at a fac ility

“must ensure t hat . . . [t]he resident environment remains as free of accident hazar ds as i s pos sibl e.” Am ong the remedies proposed to HHS was the pay

ment of a civil mone

tary penalty a tthe “immediate jeopardy ” level of $3,050 per day for th e 4 MeadowWood Nursing Home v. HHS No. 02-4115
10-day period fro m July 23 through August 1, 1998. “Immediate

jeopardy”

means a situation in which a facility’s non-compliance has caused, or is likely to ca us e, serious in ju ry, harm, impa

ir ment, o r death t

o a resid ent. 42 C.F .R. § 488.301. The report

also recommended a

reduce d penalty of $50 per day f

or 132 d a ys from Au gust 2 throu gh December

1, 1998. HHS suspended pa ymen t for new Medi care/M edicaid admissions eff ective September 29, 1998, and proposed

to termina

te its provider

agree ment with MeadowWood

inthe absence of substantial compliancewith pertine nt feder al reg ulations. MeadowWood disputed the finding s of non-complian ce an d file d a request for hearing in ac cordance with 42 C .F.R

. §§488.408(g). An administrative law judge held a fou r-day hearing and sustained the imposition of t he pe na lt y. MeadowWood

then appealed

to a three-member panel of the Departmental Appeals Board, which affirmed the decision of the administrative law judge. In its current petition for review of these decisions, MeadowWood renews its arg uments that it was in substantial compliance, that there w as no evidence that it s r es id en ts we re in im me di at e j eo pa rd y, and that it was being held to a strict l iability standar d for eve nts over which it did not have notice or control.

DISCUSSION Judicial review of decisions under 42 U.S.C. § 1320a-7a(e) is limited to determining whether the findings are supported by substantial evidence and wh ether the proper legal standards were employed. “Substantial evidence is defined as suchrelevant evidenceas a rea sonable mind might accept as adequa te to support

a conclu sion. I

n our rev ie w, w e do not consider the case de novo , nor resolve conflicts in the e vidence, nor decide questions of credibility .” Myer s v

. Secreta ry of Health & Hum an Services , 893 F.2d 840, 842 (6th Cir. 1990) (internal citations omitted).No. 02-4115 MeadowWood Nursing Home v. HHS 5

After careful review of the administrative rec ord and the record on appeal, we conclude t hat there was substantial evidence to support the dec isio n of the administrative law judge to affir

m the imposi

tion of pe nalties u nd er 42 C.F .R. §483.25(h)( 1). Mo reover, we find no basis for MeadowWood’s claim

that it wa s held to a standard of strict li ab il it y. In a

ddition to the eviden

ce supporting a

findin g of immediate

jeopard y with reg ard to tw o of the residents, the administrative law ju dge found that 12 other beds were being maintained

in an unsafe condition, that nur sing home aides were not properly oper

ating the beds, and that there was no evidence of a rout

ine mainte

nance progra

m. The judg e also found that Mea dowWood ha

d not pres e nted credibl e evidence to the contrary

. Inreviewing the decision of the administrative law j u dge, the appeals panel likewise rejected the provider ’ s ar gument that it was being held to a strict liability standa rd: The sequenc e of the e

vents r el ating to

Resident 2 discred its Meado wWoo d's cl aims that only a strict liability standar d could le ad to holdi

ng it re sponsible

for the failur es of the bed rails because the events were unpredic table

. . . . Far fr

om imposing

a strict l iability stand a rd, the ALJ's treatment of the alleg ations relating to Resident 3 illustrate s that he c onsidere d caref ully whether each accident or hazard prese nted f ore seeable risks tha t MeadowWood could practicably have prevented.
We likewise conclude that the fac tual rec ord is re

plete wit h evidence that MeadowWood was onnotice that the condition of the beds in its facility posed a risk of injury to the residen

ts and could have taken steps to avoi d the harm that befell at least two of themas a r esult of the unsafe conditions that exi sted in the nur sing home . We thus fin d no merit t

o Me adowWood’s attempt to re-ca st what is e ssentiall y a dispute of fact into a l ega l issue – indeed, we think that the strict liabi lity argum ent is essen tial ly a red her ring. 6 MeadowWood Nursing Home v. HHS No. 02-4115
Moreover, even

wi thout the d

efere nce normally

accord ed to determinations by t

he Secre tary in administ

rative p roceed ings suchas this, we conclude that the record contains substantial eviden ce to su stain the decision to impose the remedies at issue. CONCLUSION
For the reasons set out

above, we AFFI

RM the decision of the Secretary

finding MeadowWood Nursing Home in non

compliance with 42 C.F.R. § 483.25(h)(1) and imposing civil monetary pena

lties therefor.