*

This decision was originally issued as an “unpublished decision”

filed on March 2, 2004. On April 13, 2004, the court designated the

opinion as one recommended for full-text publication.

1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0107P (6th Cir.)

File Name: 04a0107p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

MEADOWWOOD NURSING

HOME,

Petitioner,

v.

UNITED STATES DEPARTMENT

OF HEALTH AND HUMAN

SERVICES, and TOMMY

THOMPSON, Secretary of

HHS,

Respondents.

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No. 02-4115

On Petition for Review from the Final Decision of the

Secretary of Health and Human Services.

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 Polster, United States District Judge for

Northern District of Ohio, sitting by designation. 

Before: DAUGHTREY and COLE, Circuit Judges;

POLSTER, District Judge.**

_________________

COUNSEL

ARGUED: Shirley Moscow Michaelson, OFFICE OF THE

CHIEF COUNSEL, Chicago, Illinois, for Respondents.

ON BRIEF: Shirley Moscow Michaelson, OFFICE OF THE

CHIEF COUNSEL, Chicago, Illinois, for Respondents.

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

_________________

OPINION

_________________

MARTHA CRAIG DAUGHTREY, Circuit Judge. By

means of the petition now before us, MeadowWood Nursing

Home seeks review of a civil monetary penalty imposed by

the Secretary of Health and Human Services (HHS) upon a

finding that MeadowWood had failed to comply with certain

Medicare/Medicaid regulations. A survey conducted by the

Ohio Department of Health on behalf of HHS turned up

several deficiencies in the facility, including MeadowWood’s

failure to maintain the nursing home as free of accident

hazards as possible, as required by 42 C.F.R. § 483.25(h)(1).

Waiving review of all other violations for which civil

penalties were imposed, MeadowWood now appeals only the

§ 483.25(h)(1) penalty assessed by the Centers for Medicare

and Medicaid Services, which was sustained by an

administrative law judge for the HHS Departmental Appeals

Board and then upheld by an appellate panel of the Appeals

Board. We conclude that the Secretary’s decision finding
No. 02-4115 MeadowWood Nursing Home v. HHS 3

certain equipment in the facility unsafe is supported by

substantial evidence, and we therefore affirm.

PROCEDURAL AND FACTUAL HISTORY

MeadowWood Nursing Home is a 53-bed long-term-care

facility in rural southwestern Ohio. In July 1998, officials of

the Ohio Department of Health, acting on behalf of the

Centers for Medicare and Medicaid Services, conducted a

survey to determine whether the facility was in compliance

with the federal requirements for nursing homes participating

in Medicare/Medicaid programs. They discovered, among

other deficiencies, that at least 12 of the 53 beds in the facility

were unsafe due to malfunctioning side rails. 

The two most serious cases involved residents designated

in the report as Resident 2 and Resident 3. Resident 2, a frail,

100-year-old man, was injured after he fell from a bed that

was known to have a side rail that collapsed easily. He was

nevertheless returned to the same bed and was still in it

almost a week later when the side rail again collapsed without

warning while it was being inspected by the surveyors.

Resident 3, who suffered from multiple mental impairments

but was physically strong and even violent at times,

experienced two falls from his bed. The first occurred when

a side rail collapsed as he shook it, and the second when the

bracket connecting the rail to the bed snapped altogether.

Resident 3 was then moved to a different bed that had a 3-4

inch gap 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 compliance with 42

C.F.R. §483.25(h)(1), which requires that a facility “must

ensure that . . . [t]he resident environment remains as free of

accident hazards as is possible.” Among the remedies

proposed to HHS was the payment of a civil monetary penalty

at the “immediate jeopardy” level of $3,050 per day for the

4 MeadowWood Nursing Home v. HHS No. 02-4115

10-day period from July 23 through August 1, 1998.

“Immediate jeopardy” means a situation in which a facility’s

non-compliance has caused, or is likely to cause, serious

injury, harm, impairment, or death to a resident. 42 C.F.R.

§ 488.301. The report also recommended a reduced penalty

of $50 per day for 132 days from August 2 through

December 1, 1998. HHS suspended payment for new

Medicare/Medicaidadmissions effective September 29, 1998,

and proposed to terminate its provider agreement with

MeadowWood in the absence of substantial compliance with

pertinent federal regulations.

MeadowWood disputed the findings of non-compliance and

filed a request for hearing in accordance with 42 C.F.R.

§§488.408(g). An administrative law judge held a four-day

hearing and sustained the imposition of the penalty.

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 arguments that

it was in substantial compliance, that there was no evidence

that its residents were in immediate jeopardy, and that it was

being held to a strict liability standard for events 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 whether the proper legal

standards were employed. “Substantial evidence is defined as

such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion. In our review, we do not

consider the case de novo, nor resolve conflicts in the

evidence, nor decide questions of credibility.” Myers v.

Secretary of Health & Human 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 record and the

record on appeal, we conclude that there was substantial

evidence to support the decision of the administrative law

judge to affirm the imposition of penalties under 42 C.F.R.

§483.25(h)(1). Moreover, we find no basis for

MeadowWood’s claim that it was held to a standard of strict

liability. In addition to the evidence supporting a finding of

immediate jeopardy with regard to two of the residents, the

administrative law judge found that 12 other beds were being

maintained in an unsafe condition, that nursing home aides

were not properly operating the beds, and that there was no

evidence of a routine maintenance program. The judge also

found that MeadowWood had not presented credible evidence

to the contrary. 

In reviewing the decision of the administrative law judge,

the appeals panel likewise rejected the provider’s argument

that it was being held to a strict liability standard:

The sequence of the events relating to Resident 2

discredits MeadowWood's claims that only a strict

liability standard could lead to holding it responsible for

the failures of the bed rails because the events were

unpredictable. . . . Far from imposing a strict liability

standard, the ALJ's treatment of the allegations relating

to Resident 3 illustrates that he considered carefully

whether each accident or hazard presented foreseeable

risks that MeadowWood could practicably have

prevented.

We likewise conclude that the factual record is replete with

evidence that MeadowWood was on notice that the condition

of the beds in its facility posed a risk of injury to the residents

and could have taken steps to avoid the harm that befell at

least two of them as a result of the unsafe conditions that

existed in the nursing home. We thus find no merit to

MeadowWood’s attempt to re-cast what is essentially a

dispute of fact into a legal issue – indeed, we think that the

strict liability argument is essentially a red herring.

6 MeadowWood Nursing Home v. HHS No. 02-4115

Moreover, even without the deference normally accorded to

determinations by the Secretary in administrative proceedings

such as this, we conclude that the record contains substantial

evidence to sustain the decision to impose the remedies at

issue.

CONCLUSION

For the reasons set out above, we AFFIRM the decision of

the Secretary finding MeadowWood Nursing Home in noncompliance with 42 C.F.R. § 483.25(h)(1) and imposing civil

monetary penalties therefor.