Libertywood Nursing Center v. Kathleen Sebelius ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1077
LIBERTYWOOD NURSING CENTER,
Petitioner,
v.
KATHLEEN SEBELIUS, Secretary of the United States Department
of Health and Human Services,
Respondent.
On Petition for Review of an Order of the Department of Health
and Human Services. (A-11-106)
Argued: December 4, 2012 Decided: February 28, 2013
Before MOTZ, FLOYD, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Joseph L. Bianculli, HEALTH CARE LAWYERS, PLC,
Arlington, Virginia, for Petitioner. Erin Stacey Shear, UNITED
STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, Atlanta,
Georgia, for Respondent. ON BRIEF: William B. Schultz, Acting
General Counsel, Dana J. Petti, Chief Counsel, Region IV,
Christine Bradfield, Deputy Chief Counsel, Region IV, UNITED
STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, Atlanta,
Georgia, for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Libertywood Nursing Center is a skilled nursing facility,
which provides care to Medicare and Medicaid beneficiaries in
North Carolina. Libertywood appeals the final determination of
the Secretary of the United States Department of Health and
Human Services (DHHS) that imposed a civil monetary penalty for
its failure to substantially comply with certain Medicare
regulatory requirements. The Centers for Medicare and Medicaid
Services (CMS), a division of the DHHS, made the initial
determination that Libertywood was in noncompliance and assessed
the civil monetary penalty. Thereafter, an Administrative Law
Judge (ALJ) and the Departmental Appeals Board (DAB) upheld the
determination and assessment. We have jurisdiction to consider
this appeal pursuant to 42 U.S.C. § 1320a-7a(e) and 42 U.S.C.
§ 1395i-3(h)(2)(B)(ii). For the reasons that follow, we affirm.
I.
On August 27, 2009, Libertywood admitted Resident 2 to its
facility. His admitting diagnoses included Parkinson’s disease,
chronic kidney disease, and progressive dementia. He was
consistently disoriented and semi-ambulatory with the use of a
wheelchair. Dr. Timothy Beittel, then the medical director for
Libertywood and Resident 2’s attending physician, wrote that
Resident 2 had a history of problematic behavior, “including
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hitting [and] groping staff [and] patients.” A few days after
being admitted, a Libertywood staff member made a notation in
Resident 2’s file stating that he engaged in “sexually
inappropriate behavior towards female staff.” The file also
notes that on the same date that Dr. Beittel made a “Referral to
Psychiatry and Psychologist.” Dr. Beittel later testified,
however, that Resident 2 did not receive psychotherapy due to
his cognitive deficiencies.
According to Libertywood’s Nurse’s Notes, on September 6,
2009, “[Resident 2] rolled [his wheelchair] beside [Resident 5]
and began fondling her left breast. [The] nurse moved him to
[the] other side of [the] day area and will monitor.” An hour
and fifteen minutes later, another resident reported that
“[Resident 2] returned to [Resident 5] and put his hand under a
blanket on her lap. She stated [that] he was feeling [her] all
over, around her diaper.”
Thereafter, on September 8, 2009, a staff member wrote in
the Nurse’s Notes that “Resident [2] had [his] hand under
[another resident’s] clothing at supper.” After this incident,
there is a September 9, 2009, entry in Resident 2’s Care Plan,
which states that he “ha[d] become increasingly aggressive in
seeking sexual relationships with others.” To address the
problem, the Care Plan lists fourteen methods of intervention,
including, but not limited to, redirecting Resident 2 when he
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displayed inappropriate sexual behavior, administering his
medications and monitoring the side effects, evaluating his
medications to ensure that they were effective in managing and
decreasing his sexually inappropriate behavior, one-to-one
monitoring, and “encourag[ing] [his] participation in activities
to aide in distracting and preventing aggressive sexual
behaviors.”
On September 15, 2009, Resident 2 told another resident
that “he wanted her for tonight.” Subsequently, on September
20, 2009, the Nurse’s Notes reflect that Resident 2 “wheels
himself up to different female residents and tr[ies] to put
[his] hands on their body[.] [W]hen ask[ed] to move away [he]
goes to another female resident.” According to the Notes, the
staff member “spoke to [Resident 2] and told him not to be
putting his hands on other residents.” Resident 2 responded:
“Well I guess I better go wash my hands since I touched
everyone.” He then went to his room and washed his hands.
A September 29, 2009, entry in the Nurse’s Notes states
that Resident 2 had been redirected six times when he was seen
“attempting to be inappropriate with residents at different
times.” Then on October 6, 2009, a staff member wrote that
Resident 2 “rolled up [b]ehind [a] female [resident] [r]eached
over [her and] stuck his hand [d]own her shirt.” The staff
member moved him away from the female resident. According to
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the Weekly Nurse Summary, he also grabbed a nurse’s “[b]reast
and [b]uttocks during shower” that same day.
On October 14, 2009, Resident 2 rolled up in his wheelchair
to a female resident and asked, “[R]eady to go to bed?” Staff
then removed him from the area. The Weekly Nurse Summary also
notes that a staff member observed Resident 2 touching a female
resident’s breast on this date.
Then on October 17, 2009, Resident 2 went into Resident 1’s
room and “started fondling [her] on the breast and touching
[her] on the vagina.” Resident 1 informed Resident 2 that “she
was married” and “don’t do that[,] but Resident [2]
continued[.]” Resident 1 had a disease that prevented her from
defending herself. Resident 1 later stated that “she did not
feel safe [at Libertywood].” The administrator subsequently
ordered one-to-one supervision of Resident 2 from 9:00 AM to
8:00 PM each day and ordered the staff to make checks on him
every fifteen minutes the rest of the time.
Nevertheless, on November 13, 2009, at 7:50 AM, before one-
to-one supervision commenced, Resident 2 “[r]olled over to [a
female resident] and had his hand up her shirt touching her
[b]reast.” A staff member removed him from the area and asked
“him to quit touching other [r]esidents.” Immediately
thereafter, Libertywood changed the one-to-one schedule to begin
at 7 AM and end when Resident 2 went to bed. Four days later,
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on November 17, 2009, Resident 2 transferred to another nursing
home.
Thereafter, the North Carolina Department of Health and
Human Services, on behalf of CMS, completed a survey in response
to a complaint that had been filed against Libertywood. The
survey found that Libertywood was not in substantial compliance
with certain Medicare requirements. Moreover, it revealed that
the noncompliance posed immediate jeopardy to the residents’
health and safety. Consequently, CMS imposed a civil monetary
penalty of $3,700 per day for Libertywood’s noncompliance from
September 6, 2009, through November 17, 2009, and a $100 per day
civil monetary penalty from November 18, 2009, until December
11, 2009.
Libertywood timely requested a hearing on CMS’s
determination. Thus, on September 30, 2010, an ALJ convened a
hearing on the matter, after which she affirmed CMS’s
determination. In sum, the ALJ held that Libertywood “was not
in substantial compliance with the Medicare program
requirements, its deficiencies posed immediate jeopardy to
resident health and safety, and the penalties imposed [were]
reasonable.” Libertywood subsequently appealed the ALJ’s
decision to the DAB, which affirmed the ALJ’s decision in its
entirety. Libertywood’s appeal to this Court followed.
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II.
Libertywood raises three issues in its appeal: (1) whether
there is substantial evidence to support the Secretary’s final
determination that it was not in substantial compliance with 42
C.F.R. § 483.25(h); (2) whether the Secretary’s finding of
immediate jeopardy is clearly erroneous; and (3) whether there
was any basis for the duration of the per diem penalty after
Resident 2 was transferred from its facility. Although
Libertywood’s Statement of Facts also incorporates a great deal
of argument, we will address only those claims contained in the
argument section of its brief. See Fed. R. App. P. 28(a)(9)(A)
(requiring the argument section of the opening brief to contain
the “appellant’s contentions and the reasons for them.”)
Pursuant to 42 U.S.C. § 1320a-7a(e), “[t]he findings of the
Secretary with respect to questions of fact, if supported by
substantial evidence on the record considered as a whole, shall
be conclusive.” Substantial evidence is “such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971)
(quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938))
(internal quotations omitted). “It consists of more than a mere
scintilla of evidence but may be somewhat less than a
preponderance.” Shively v. Heckler, 739 F.2d 987, 989 (4th Cir.
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1984) (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir.
1966)).
We will overturn an agency’s conclusions in a case such as
this only when we find those conclusions to be unreasonable.
See Evans v. Sullivan, 928 F.2d 109, 111 (4th Cir. 1991). The
existence of judicial review of agency findings, however, does
not mean that “a court may displace [an agency’s] choice between
two fairly conflicting views, even though the court would
justifiably have made a different choice had the matter been
before it de novo.” Universal Camera Corp. v. NLRB, 340 U.S.
474, 488 (1951).
A.
Libertywood contends the Secretary’s determination that it
was not in substantial compliance with 42 C.F.R. § 483.25(h) is
unsupported by substantial evidence. Pursuant to 42 C.F.R.
§ 483.25(h), a skilled nursing home facility participating in
the Medicare program must ensure that “[e]ach resident receives
adequate supervision and assistance devices to prevent
accidents.” To determine whether a nursing home complied with
§ 483.25(h)(2), we “look[] at two factors: whether a risk of an
‘accident’ was foreseeable and whether the facility’s response
was adequate under the circumstances.” Liberty Commons Nursing
8
& Rehab Ctr.—Alamance v. Leavitt, 285 F. App’x 37, 44 (4th Cir.
2008).
After the first incident on September 6, 2009, when
“[Resident 2] rolled [his wheelchair] beside [Resident 5] and
began fondling her left breast[,]” the nurse moved him and wrote
that she would monitor him. But just one hour and fifteen
minutes later, another resident reported that “[Resident 2]
returned to [Resident 5] and put his hand under a blanket on her
lap. She stated [that] he was feeling [her] all over, around
her diaper.” On this date, it became foreseeable that Resident
2 posed a threat to the health and safety of its female
residents.
As noted above, there is a September 9, 2009, entry in
Resident 2’s Care Plan, which states that he “ha[d] become
increasingly aggressive in seeking sexual relationships with
others.” The Care Plan lists fourteen methods to address the
problem. But, from our review of the record, it appears that
this plan generally was not followed. Instead, as the ALJ
observed, it appears that between September 9, 2009, and October
17, 2009, Libertywood’s staff’s interventions consisted simply
of separating Resident 2 from the resident he had just
inappropriately touched and instructing him not to touch her
again. The staff also occasionally conducted checks every
fifteen minutes on Resident 2. As to encouraging Resident 2’s
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participation in activities, he spent just thirty minutes a day
in occupational therapy.
After the October 17, 2009, incident when Resident 2 went
into Resident 1’s room and “started fondling [her] on the breast
and touching [her] on the vagina,” Libertywood began one-to-one
monitoring from 9 AM to 8 PM, and checks every fifteen minutes
at all other times. On November 13, 2009, however, at 7:50 AM,
Resident 2 “[r]olled over to [a female resident] and had his
hand up her shirt touching her [b]reast.” Immediately
thereafter, Libertywood changed the one-to-one schedule to
begin at 7 AM and end at 8 PM.
We are of the firm opinion that there is substantial
evidence to support the Secretary’s final determination that,
after the first inappropriate touching on September 6, 2009, the
incidents that followed were foreseeable but Libertywood’s
responses were inadequate. It was not until the October 17,
2009, incident that Libertywood instituted any meaningful
measures to control Resident 2’s inappropriate sexual behavior,
when it commenced one-to-one supervision. But, even then, it
failed to require the one-to-one supervision at all times when
Resident 2 was out of bed, although it was foreseeable that he
might inappropriately touch the female residents without such
supervision. In fact, he did just that on November 13, 2009.
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Although Libertywood did not have the benefit of hindsight,
it was required by the regulations to exercise insight and
foresight. Unfortunately, however, there is little evidence
that it exercised either. Therefore, because the risk that
Resident 2 would continue his inappropriate behavior was
foreseeable, yet Libertywood’s response was woefully inadequate
under the circumstances, we hold that the Secretary’s
determination that Libertywood was not in substantial compliance
with 42 C.F.R. § 483.25(h) is supported by substantial evidence.
B.
Libertywood also argues that CMS’s “immediate jeopardy”
determination is clearly erroneous. Pursuant to 42 C.F.R.
§ 488.301, “[i]mmediate jeopardy means 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.” In civil money
penalty cases “CMS’s determination as to the level of
noncompliance of a[] [skilled nursing facility] or [nursing
facility] must be upheld unless it is clearly erroneous.” 42
C.F.R. § 498.60(c)(2). A finding is clearly erroneous when,
although there is evidence to support the finding, the reviewing
court considering all the evidence is “left with a definite and
firm conviction that a mistake has been committed.” Evergreen
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Int’l, S.A. v. Norfolk Dredging Co., 531 F.3d 302, 308 (4th Cir.
2008).
Libertywood maintains that it was Resident 2’s behavior,
and not Libertywood’s noncompliance with the applicable
regulations, that caused any harm that might have occurred to
the female residents. But, it was Libertywood’s noncompliance
with the governing regulations that made Resident 2’s
inappropriate behavior possible. Had Libertywood instituted
adequate measures to control Resident 2’s inappropriate sexual
behavior, which was foreseeable, the behavior would not have
continued.
Although it is true that only Resident 1 made a formal
complaint about Resident 2’s inappropriate behavior, stating
that “she did not feel safe [at Libertywood],” Libertywood
failed to conduct an investigation as to the degree of harm
suffered by the other female residents whom Resident 2
inappropriately touched. As the ALJ noted, “[Libertywood] can
hardly be allowed to benefit from such a disregard for the
welfare of its vulnerable residents.” Consequently, we decline
to hold that the Secretary’s determination of immediate jeopardy
is clearly erroneous.
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C.
Finally, Libertywood maintains that there was no basis for
the duration of the per diem penalty that CMS assessed after
Resident 2 was transferred from Libertywood. Libertywood bears
the burden of proving that the civil monetary penalty was
unreasonable. See Beverly Healthcare Lumberton v. Leavitt, 338
F. App’x 307, 316 (4th Cir. 2009).
As a preliminary matter, Libertywood asserts that the
Secretary erred in placing on it the ultimate burden of
persuasion to establish that it was in substantial compliance
with the applicable regulations after Resident 2 was discharged.
Specifically, Libertywood complains that instead of placing the
ultimate burden of persuasion on it to establish that it is in
compliance, see Hillman Rehab. Ctr. v. Health Care Fin. Admin.,
DAB No. 1611 (1997), the burden should be on the Secretary to
demonstrate that the facility is in noncompliance with the
governing requirements. We decline to reach this issue. Simply
stated, Hillman is applicable “only if evidence [is] in
equipoise.” Harmony Court v. Leavitt, 188 F. App’x 438, 440
(6th Cir. 2006). As we discuss herein, there is substantial
evidence to support the Secretary’s finding of noncompliance in
this case.
Again, pursuant to 42 C.F.R. § 483.25(h)(2), a skilled
nursing home facility participating in the Medicare program must
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ensure that “[e]ach resident receives adequate supervision and
assistance devices to prevent accidents.” Failure to do so may
result in a civil monetary penalty, which CMS may impose for
each day that the facility fails to be in substantial compliance
with the applicable regulatory requirements. See 42 C.F.R.
§§ 488.430(a), 488.440(b). There are two ranges of these
penalties, depending on the severity of noncompliance. With
a finding of immediate jeopardy, CMS may impose a daily civil
monetary penalty from $3,050-$10,000. Id. at
§ 488.438(a)(1)(i). When there is no immediate jeopardy, but
the deficiencies have either caused actual harm or have the
potential for more than minimum harm, the daily civil monetary
penalty can range from $50-$3,000. Id. at § 488.438(a)(1)(ii).
As noted earlier, CMS imposed a civil monetary penalty in
the amount of $3,700 per day beginning on September 6, 2009, and
continuing until November 17, 2009. CMS also levied a $100 per
day civil monetary penalty from November 18, 2009, until
December 11, 2009. Libertywood argues that there is no basis
for the civil monetary penalty that CMS imposed for November 18,
2009, to December 11, 2009.
“[O]nce a facility has been found to be out of substantial
compliance, it remains so until it affirmatively demonstrates
that it has achieved substantial compliance once again.”
Premier Living & Rehab Ctr. v. Ctrs. for Medicare & Medicaid
14
Servs., DAB 2146, at 23 (2008). To establish that a facility
has returned to substantial compliance with the governing
regulations, a resurvey is generally required. See 42 C.F.R.
§ 488.454(a)(1). Although 42 C.F.R. 488.454(e) provides that a
facility can demonstrate that it is in substantial compliance at
an earlier date than a resurvey, to do so it must “supply
documentation acceptable to CMS or the State survey agency that
it was in substantial compliance and was capable of remaining in
substantial compliance.” Id. at § 488.454(e).
Here, the resurvey occurred on December 29, 2009, and found
that Libertywood was “in substantial compliance [with the
participation requirements] as of December 11, 2009.”
Libertywood failed to provide any acceptable documentation that
it was in substantial compliance before that date. As such, we
are unable to say that it was unreasonable for CMS to assess the
per diem penalty after Resident 2 was transferred from
Libertywood.
III.
When the record is considered as a whole, there is
substantial evidence to support the Secretary’s final
determination that Libertywood was not in substantial compliance
with the Medicare program requirements, its deficiencies posed
immediate jeopardy to its residents’ health and safety, and the
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duration of the penalties imposed were reasonable. Accordingly,
we affirm the Secretary’s final determination on these issues.
AFFIRMED
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