            Case: 12-13698    Date Filed: 02/26/2013   Page: 1 of 4

                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT

                       ________________________

                             No. 12-13698
                         Non-Argument Calendar
                       ________________________

                             Agency No. A-12-32


BIBB MEDICAL CENTER NURSING HOME,

                                                       Petitioner,

                                    versus

DEPARTMENT OF HEALTH AND HUMAN
SERVICES,

                                                       Respondent.



                       ________________________

                      Petition For Review of a Decision of the
                      Department of Health and Human Services
                       ________________________
                             (February 26, 2013)


Before DUBINA, Chief Judge, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:
              Case: 12-13698     Date Filed: 02/26/2013   Page: 2 of 4



      This case comes to us on a petition for review of a final decision of the

Secretary of the United States Department of Health and Human Services (“the

Secretary”) issued by the Secretary’s Departmental Appeals Board (“the Board”)

that affirmed an administrative law judge’s (“ALJ”) finding that petitioner , Bibb

Medical Center Nursing Home (“nursing home”), was not in substantial

compliance with federal health and safety standards and that the noncompliance

posed immediate jeopardy to its residents’ health and safety. The Board affirmed

the ALJ’s decision, concluding that it was supported by substantial evidence and

free from legal error. More specifically, the Board determined that the ALJ had

applied the correct legal standards in finding that the immediate jeopardy

determination was not clearly erroneous.

      Any person adversely affected by a determination of the Secretary may file a

petition for review in the appropriate court of appeals within 60 days of the

Secretary’s decision. 42 U.S.C. §§1320a--7a(e), 1395i-3(h)(2)(B)(ii). The

findings of the Secretary are conclusive “as supported by substantial evidence on

the record considered as a whole.” Id. §1320a-7a(e). Substantial evidence means

such 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

(internal quotation marks omitted) (1971); see also, Fla. Med. Ctr. of Clearwater,

Inc. v. Sebellius, 614 F.3d 1276, 1280 (11th Cir. 2010) (the court must “abide” by
                                           2
               Case: 12-13698     Date Filed: 02/26/2013    Page: 3 of 4

the Secretary’s decisions unless they are “arbitrary, capricious, an abuse of

discretion . . . or unsupported by substantial evidence in the record taken as a

whole.”) (internal quotation marks omitted).

      In this case, the record demonstrates that Resident 1 had a history of

developing pressure sores during her stay in the nursing home. In October 2010,

Resident 1 developed sores that were not properly reported, treated, or prevented.

As a result, the Centers for Medicare and Medicaid Services (“CMS”) found the

nursing home not in compliance with the minimum federal standards and imposed

a $3,550 per day civil monetary penalty (“CMP”) from October 7, 2010, through

November 13, 2010. The nursing home did not dispute the noncompliance, nor did

it dispute the amount of the CMP imposed or CMS’s finding concerning the

duration of noncompliance. Instead, the nursing home challenged CMS’s

determination that the noncompliance posed immediate jeopardy. The ALJ and the

Appeals Board disagreed and found that the nursing home failed to prevent and

properly treat the serious pressure sores on Resident 1’s heels. The Appeals

Board’s focus was not on an instance of failing to provide care to an individual

resident, but on whether the noncompliance evidence by one or more failures was

likely to cause serious injury or harm to a resident if not corrected.

             After reviewing the record and reading the parties briefs, we conclude

that the nursing home has failed to show that the Secretary’s immediate jeopardy

                                           3
              Case: 12-13698    Date Filed: 02/26/2013   Page: 4 of 4

finding is clearly erroneous. Moreover, we conclude the Secretary’s finding of

immediate jeopardy is supported by substantial evidence in the record. Immediate

jeopardy exists if the nursing home’s noncompliance has caused or is likely to

cause “serious injury, harm, impairment or death to a resident.” 42 C.F.R. §

488.301. “[T]he regulation only requires that the nursing home’s noncompliance

is likely to cause harm to ‘a resident.’” Liberty Commons Nursing & Rehab. Ctr. –

Johnston v. Leavitt, 241 F. App’x. 76, 80 (4th Cir. 2007) (citing 42 C.F.R.

488.301). Actual harm is not a prerequisite for an immediate jeopardy finding. Id.

      Accordingly, for the aforementioned reasons, we deny the petition for

review.

      PETITION DENIED.




                                         4
