Cedar Lake Nursing Home v. United States Department of Health & Human Services ( 2012 )


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  •      Case: 11-60568     Document: 00511863175         Page: 1     Date Filed: 05/22/2012
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    May 22, 2012
    No. 11-60568                          Lyle W. Cayce
    Summary Calendar                             Clerk
    CEDAR LAKE NURSING HOME,
    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
    (A-11-29)
    Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
    PER CURIAM:*
    Cedar Lake Nursing Home (“Cedar Lake”), a nursing home participating
    in the Medicare program, petitions for review of a final decision of the
    Departmental Appeals Board (“the Board”) of the U.S. Department of Health
    and Human Services (“HHS”) affirming an imposition of civil monetary penalties
    against Cedar Lake. We conclude that the Board’s decision was supported by
    *
    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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 11-60568   Document: 00511863175      Page: 2   Date Filed: 05/22/2012
    No. 11-60180
    substantial evidence and that the penalty assessed was reasonable, and
    therefore dismiss the petition for review.
    The Texas Department of Aging and Disability conducted a survey of
    Cedar Lake from April 13 to 16, 2009. Based on that survey, the Centers for
    Medicare and Medicaid Services (“CMS”) determined that Cedar Lake was not
    in substantial compliance with 42 C.F.R. § 483.25(k) because it had failed to
    provide two residents with proper respiratory care and that its noncompliance
    posed immediate jeopardy to resident health and safety. Specifically, CMS
    determined that Cedar Lake appealed that determination to an administrative
    law judge (“ALJ”). After a teleconference hearing and briefing, the ALJ upheld
    CMS’s determinations and its imposition of a $9,500 civil monetary penalty for
    the violations. Cedar Lake then appealed to the Board, which affirmed. The
    agency decision was based on findings of fact, which we review for substantial
    evidence. Cedar Lake Nursing Home v. U.S. Dep’t of Health & Human Servs.,
    
    619 F.3d 453
    , 456 (5th Cir. 2010); 42 U.S.C. § 1320a–7a(e).
    Substantial evidence in the record supports the agency’s determination
    upholding CMS’s determination of noncompliance. Both the accounts of the
    state surveyors and the notes of Cedar Lake’s own employees shows that the
    state survey revealed that the portable oxygen tank of an 81-year old female
    resident, identified as Resident 16, was empty and that Resident 16’s oxygen
    saturation level fell below the level required by the applicable standard of care.
    When Resident 16 was put to bed at her request, Cedar Lake nursing staff
    members failed to properly connect the tubing for her oxygen concentrator. After
    the concentrator was property connected, Resident 16’s condition notably
    improved. The record evidence further indicates that Cedar Lake staff failed to
    consult the physician of a 72-year old male resident identified as Resident 18,
    regarding the proper level at which his sleeping oxygen saturation was to be
    maintained by use of a “bi-level positive airway pressure machine.”
    2
    Case: 11-60568    Document: 00511863175    Page: 3   Date Filed: 05/22/2012
    No. 11-60180
    Moreover, the Board’s decision affirming the amount of the civil monetary
    penalty was reasonable. In arguing that the $9,500 penalty was unreasonable,
    Cedar Lake repeats its argument, rejected by the ALJ and the Board below, that
    it does not have a history of “uncorrected” regulatory violations. As the Board
    explained, however, Cedar Lake does indeed have a history of noncompliance
    with applicable regulations and has previously been subjected to several lesser
    civil monetary penalties. See, e.g., Cedar 
    Lake, 619 F.3d at 456-58
    (rejecting
    Cedar Lake’s challenge to a previous final determination upholding imposition
    of a $5,000 penalty for a February 2008 violation of accident prevention
    standards).   The Board correctly determined that the ALJ considered the
    appropriate criteria in upholding the penalty amount. Therefore, the Board’s
    decision in this respect was not unreasonable.
    For the foregoing reasons, we conclude that the Board’s determination was
    supported by substantial evidence and otherwise reasonable. We therefore
    DISMISS Cedar Lake’s petition for review.
    3
    

Document Info

Docket Number: 11-60568

Judges: Dennis, Clement, Owen

Filed Date: 5/22/2012

Precedential Status: Non-Precedential

Modified Date: 11/6/2024