Case: 11-10619 Date Filed: 07/18/2012 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-10619
________________________
Agency No. A-10-76
AZALEA COURT,
llllllllllllllllllllllllllllllllllllllll Petitioner,
versus
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES,
CENTERS FOR MEDICARE & MEDICAID SERVICES,
llllllllllllllllllllllllllllllllllllllll Respondent.
________________________
No. 11-13072
________________________
Agency No. A-10-76
WEST PALM BEACH HEALTHCARE ASSOCIATES, LLC,
f.k.a. Azalea Court,
llllllllllllllllllllllllllllllllllllllll Petitioner,
Case: 11-10619 Date Filed: 07/18/2012 Page: 2 of 5
versus
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Centers for Medicare & Medicaid Services,
llllllllllllllllllllllllllllllllllllllll Respondent.
________________________
No. 11-14210
________________________
Agency No. A-10-76
WEST PALM BEACH HEALTHCARE ASSOCIATES, LLC,
f.k.a. Azalea Court,
llllllllllllllllllllllllllllllllllllllll Petitioner,
versus
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES,
CENTERS FOR MEDICARE AND MEDICAID SERVICES,
llllllllllllllllllllllllllllllllllllllll Respondent.
________________________
Petitions for Review of a Decision of the
Department of Health and Human Services
________________________
(July 18, 2012)
Before WILSON, ANDERSON and HIGGINBOTHAM,* Circuit Judges.
*
Honorable Patrick E. Higginbotham, United States Circuit Judge for the Fifth Circuit,
sitting by designation.
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PER CURIAM:
In these consolidated appeals we review a final decision of the Secretary of
Health and Human Services that upholds the imposition of a civil money penalty
for a skilled nursing facility’s failure to maintain compliance with Medicare
participation requirements concerning health and safety. With the benefit of oral
argument and after carefully considering the briefs and the record, we dismiss the
petitions in the cases numbered 11-10619 and 11-13072, and we deny the petition
in the case numbered 11-14210.
Skilled nursing facilities that participate in the Medicare and Medicaid
programs may be subject to civil money penalties if they are not in substantial
compliance with minimum standards of care. 42 U.S.C. § 1395i-3(h). The
Petitioner, Azalea Court, is a skilled nursing facility that participates in Medicare
and Medicaid. Multiple deficiencies were identified during a survey of Azalea
Court, and the Secretary concluded that residents were in “immediate jeopardy.”
See
42 C.F.R. § 488.301.
The findings of fact made by the Secretary are conclusive if supported by
substantial evidence. 42 U.S.C. § 1320a-7a(e). Substantial evidence means “such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales,
402 U.S. 389, 401,
91 S. Ct. 1420, 1427
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(1971) (quoting Consolidated Edison Co. v. NLRB,
305 U.S. 197, 229,
59 S. Ct.
206, 217 (1938)). We review the Secretary’s conclusions of law de novo.
Emerald Shores Health Care Assocs. L.L.C. v. U.S. Dep’t of Health & Human
Servs.,
545 F.3d 1292, 1296 (11th Cir. 2008).
As an initial matter we address our jurisdiction to review the three petitions
before the Court. Each petition challenges the same substantive conclusions, but
each was filed at a different time during the proceedings. Twice, we questioned
whether the Department Appeals Board of the U.S. Department of Health and
Human Services had issued a final and appealable decision. There is no dispute,
however, that the third petition for review, No. 11-14210, is timely. Because we
have jurisdiction over the third petition and each petition is substantively the
same, we need not address whether we have jurisdiction to review the first two
petitions.
Azalea Court devotes a substantial portion of its briefs to the argument that
the Secretary did not properly allocate the burden of proof in the administrative
proceedings. We need not decide the issue, however, because the evidence weighs
heavily in favor of the agency and we would deny the petition regardless of who
bears the burden of proof. Azalea Court had a deficient system for preventing
elopement. It failed to control the hazards of residents who smoke. And it
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neglected the wound care of Resident 3. There is more than substantial evidence
that supports each of the Secretary’s conclusions, and we agree that each
deficiency rises to the level of immediate jeopardy.
Azalea Court also argues that the Secretary acted arbitrarily and
capriciously by assessing a per diem civil monetary penalty rather than a penalty
based on a particular instance of noncompliance. We find no error in the penalty
imposed. The Center for Medicare and Medicaid Services may impose a civil
money penalty for “the number of days a facility is not in substantial compliance
with one or more participation requirements . . . .”
42 C.F.R. § 488.430(a).
Azalea Court’s noncompliance posed an immediate jeopardy, and the per diem
monetary penalty properly accounts for each day of noncompliance.1
The petitions in the cases numbered 11-10619 and 11-13072 are
DISMISSED, and the petition in 11-14210 is DENIED.
1
We have not considered Petitioner’s argument that the regulations are unconstitutionally
vague. The argument was raised for the first time in this appeal, and no extraordinary
circumstances exist that excuse the failure to preserve the argument. See 42 U.S.C. 1320a-7a(e).
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