     Case: 15-60272      Document: 00513369046         Page: 1    Date Filed: 02/04/2016




              IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit

                                     No. 15-60272                                  FILED
                                   Summary Calendar                          February 4, 2016
                                                                              Lyle W. Cayce
                                                                                   Clerk
BRENHAM NURSING AND REHABILITATION CENTER,

                     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
                                     No. A-15-1


Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       Petitioner Brenham Nursing and Rehabilitation Center (Brenham), a
skilled nursing facility in Brenham, Texas, seeks review of a final decision of
the United States Department of Health and Human Services (DHHS)
affirming a civil monetary penalty against it for noncompliance with Medicare
participation requirements.          For the reasons stated below, we dismiss
Brenham’s petition for review.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                No. 15-60272
                                       I
      The noncompliance determinations at issue in this appeal arise from
Brenham’s response to the following incident. On April 12, 2013, two certified
nurse assistants (CNA Q and CNA R) discovered that a cognitively impaired
101-year-old resident (Resident 4) had extensive bruising covering much of her
body, as well as swelling in some areas. The CNAs reported the bruising to a
charge nurse (LVN B), who was “stunned” and immediately informed
Brenham’s Director of Nursing (DON); LVN B subsequently completed an
incident report. The DON told surveyors he initially thought that the bruising
was caused by a hematological disorder, but ruled out the possibility after
reviewing Resident 4’s laboratory results, ordered four days after the bruising
was discovered. He then surmised that the bruising was caused by a Hoyer
Lift, a device used to transfer debilitated patients. Resting on this causation
theory, Brenham’s management did not report the bruising to state officials.
      State surveyors, inspecting Brenham on behalf of the Centers for
Medicare and Medicaid Services (CMS), discovered Resident 4’s bruising and
the aftermath during a survey that began on April 22, 2013. They reported
that Brenham was noncompliant, at an “immediate jeopardy” level, with the
following regulations: (1) 42 C.F.R. § 483.13(c), requiring Brenham to “develop
and implement” policies to prevent “mistreatment, neglect, and abuse of
residents”; (2) 42 C.F.R. § 483.13(c)(2)-(4), requiring Brenham to report and
thoroughly investigate suspicions of abuse and neglect; and (3) 42
C.F.R. § 483.75, requiring Brenham to “effectively and efficiently” administer
the facility to promote resident well-being. Acting on the surveyors’ findings,
CMS initially imposed per instance civil monetary penalties (CMPs) totaling
$8,500. Five days later, however, CMS rescinded the per instance penalties
and replaced them with per-day penalties totaling $84,400.


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                                       No. 15-60272
       Brenham filed an administrative appeal challenging both the
noncompliance determinations and the resulting CMPs. After a hearing, an
administrative law judge (ALJ) upheld CMS’s enforcement actions. DHHS’s
Departmental Appeals Board (DAB) affirmed.                         Having exhausted its
administrative remedies, Brenham timely appealed to this court. 1
                                              II
       This court has jurisdiction to review the imposition of civil monetary
penalties pursuant to 42 U.S.C. § 1320a-7a(e). 2                We conduct our review
according to the deferential standards of the Administrative Procedure Act and
will uphold “agency actions, findings, and conclusions” unless they are
“‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with the law’ or ‘unsupported by substantial evidence.’” 3 Additionally, the
Secretary’s factual findings, “if supported by substantial evidence on the record
considered as a whole, shall be conclusive.” 4
                                             III
       Brenham challenges the violations as unsupported by substantial
evidence. Alternatively, Brenham contends that CMS’s immediate jeopardy
findings are clearly erroneous, and further, that the penalty amounts selected
within the applicable ranges are unreasonable. Finally, Brenham claims that
the increased, per-day penalties arising from CMS’s revision of the CMPs
violates due process.




       1   See 42 CFR § 498.95.
       2    42 U.S.C. § 1320a–7a(e) (“[T]he court shall have jurisdiction of the proceeding
and . . . shall have the power to make and enter . . . a decree affirming, modifying, remanding
for further consideration, or setting aside, in whole or in part, the determination of the
Secretary . . . .”).
         3 Cedar Lake Nursing Home v. U.S. Dep’t of Health & Human Servs., 619 F.3d 453,

456 (5th Cir. 2010) (quoting 5 U.S.C. § 706(2)(A),(E)).
         4 Id. 456 at n.3 (quoting 42 U.S.C. § 1320a–7a(e)).

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                                    No. 15-60272
                                          A
      Substantial evidence exists on the record as a whole to support the
Secretary’s determination that Brenham was not in substantial compliance
with 42 C.F.R. § 483.13(c), § 483.13(c)(2)-(4), and § 483.75.          Substantial
compliance is “a level of compliance with the requirements of participation
such that any identified deficiencies pose no greater risk to resident health or
safety than the potential for causing minimal harm.” 5          We address each
noncompliance determination separately.
1.    42 C.F.R. § 483.13(c)
      Federal law requires skilled nursing facilities to “develop and implement
written policies and procedures that prohibit mistreatment, neglect, and abuse
of residents.” 6 Brenham insists on appeal that it substantially complied with
§ 483.13(c) because there is no evidence of abuse or neglect and it had
anti-abuse policies in place, which it implemented through training.
      Whether Resident 4’s bruising was potentially linked to abuse or neglect
is at the heart of this appeal. Brenham claims that it is “uncontested” that
Resident 4’s bruising was due either to a hematological disorder or pressure
from a Hoyer Lift. But Brenham mischaracterizes the record; the surveyor
testimony Brenham references only notes that Brenham asserted these
theories. Brenham also cites a surveyor worksheet that states “there are no
identified concerns” regarding the requirement that residents be “free from
unexplained physical injuries” and “resident abuse.”         But Brenham omits
surveyor testimony explaining that the worksheet is prepared on initial rounds
and does not represent complete review. As the DAB stated, copious survey




      5   42 C.F.R. § 488.301.
      6   42 C.F.R. § 483.13(c).
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                                       No. 15-60272
notes “evidence[] . . . clear concern about the unexplained source of the
bruising and the potential for abuse.”
       The ALJ ultimately rejected Brenham’s causation theories, deeming
them “hypotheses” that were “not grounded in fact.” The DAB affirmed, citing
the following undisputed evidence: (1) though Resident 4’s bloodwork indicated
her blood cell counts were slightly low, Brenham’s management ruled out a
hematological disorder as a possible cause; (2) CNA Q told surveyors that
Brenham’s DON instructed her to corroborate the Hoyer Lift causation theory,
but CNA Q and CNA R nevertheless denied transferring Resident 4 with a
Hoyer Lift; (3) LVN B told surveyors that Hoyer Lift equipment was not
present in Resident 4’s room; (4) Resident 4’s care plan did “not address
transfers at all, much less call for use of a Hoyer Lift”; and (5) both Resident
4’s physician and Brenham’s medical director opined that the bruising should
have been reported.
       Brenham nevertheless contends that the ALJ and DAB improperly
discounted its expert testimony supporting Brenham’s causation theories. But
as the DAB noted, the expert testimony fails to address undisputed record
evidence and is, as both the ALJ and DAB noted, often inconsistent with such
evidence. We cannot say that the DAB’s affirmance of the ALJ’s decision to
discount the expert testimony was improper. 7 Further, Brenham’s Hoyer Lift
theory, even if accepted, does not rule out the possibility that staff improperly
used the device in an abusive or neglectful manner. We accordingly affirm the
DAB’s conclusion that Brenham was obligated to treat Resident 4’s bruising as




       7 See Harris v. Apfel, 209 F.3d 413, 417 (5th Cir. 2000) (“A finding of no substantial
evidence is appropriate only if no credible evidentiary choices . . . support the decision. In
applying this standard, we may not re-weigh the evidence or substitute our judgment for that
of the Commissioner.” (footnote omitted)).
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                                       No. 15-60272
potentially linked to abuse or neglect; substantial evidence indicates the
bruising was, at the least, an injury of unknown origin.
       This leads us to the further determination that Brenham was not in
substantial compliance with § 483.13(c)’s requirement to implement policies to
protect residents from abuse and neglect. In its argument to the contrary,
Brenham fails to recognize that “implement” is not limited to training 8 and
indeed, as the DAB noted, the cited deficiency was largely grounded in
Brenham’s failure to effectuate its policies.
       Brenham’s “Accidents and Incidents” policy, which incorporates state
standards regarding suspicions of abuse, requires Brenham to immediately
report and investigate suspected neglect or abuse, including “injuries of an
unknown source.” 9 As the DAB noted, Brenham’s “Facility Abuse Prohibition”
policy similarly requires Brenham “to develop and implement a systematic
process to investigate allegations of abuse, neglect and/or exploitation so that
such events can be accurately and timely investigated and reported to the
proper authorities.”
       It is uncontested that Brenham did not immediately report the injury.
Moreover, as explained in further detail in the § 483.13(c)(3) analysis below,
the DAB’s conclusion that Brenham’s “investigation” was cursory and thus far
from a “systematic process” is supported by the record, as is the overall
conclusion that Brenham failed to protect its residents from possible neglect or



       8  See Honey Grove Nursing Ctr. v. U.S. Dep’t of Health & Human Servs., 606 F. App’x
164 (5th Cir. 2015) (per curiam) (“[A] policy that exists only on paper provides no benefit to
the residents . . . . Procedures which are not carried out in practice are worthless. Training
or other measures to implement a policy can only be understood as sufficient if those
measures are calculated to ensure neglect is prevented.” (quoting Life Care Ctr. of Gwinnett,
DAB 2240, 2009 WL 1176324, at *4 (DHHS 2009))).
        9 TEXAS DEP’T OF AGING & DISABILITY SERVS., PROVIDER LETTER #06-43 – GUIDELINES

FOR                       REPORTING                      INCIDENTS                     (2007),
http://www.dads.state.tx.us/providers/communications/2006/letters/pl2006-43.pdf.
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                                 No. 15-60272
abuse. Brenham’s only response is that the policies were not triggered insofar
as Brenham “made the reasonable business and professional conclusion” that
Resident 4’s bruising was not attributable to abuse or neglect or an “injury of
unknown origin[].”      Because we reject that premise, we affirm the DAB’s
noncompliance determinations respecting § 483.13(c).
2.    42 C.F.R. § 483.13(c)(2)-(4)
      Substantial evidence also supports the Secretary’s noncompliance
findings regarding § 483.13(c)(2)-(4). These provisions provide:
      (2) The facility must ensure that all alleged violations involving
      mistreatment, neglect, or abuse, including injuries of unknown
      source . . . are reported immediately to the administrator of the
      facility and to other officials in accordance with State law . . . .

      (3) The facility must have evidence that all alleged violations are
      thoroughly investigated, and must prevent further potential abuse
      while the investigation is in progress.

      (4) The results of all investigations must be reported to the
      administrator or his designated representative and to other
      officials in accordance with State law (including to the State
      survey and certification agency) within 5 working days of the
      incident . . . .
Given our conclusion that Resident 4’s bruising was, at minimum, an injury of
unknown source, and the undisputed fact that Brenham did not timely report
the incident or the results of its preliminary investigation, we affirm the DAB’s
noncompliance determination regarding §§ 483.13(c)(2) and (c)(4)’s reporting
requirements.
      Regarding § 483.13(c)(3), the ALJ found that “[t]here is no evidence
showing” that Brenham “initiate[d] an extensive investigation into the causes
of Resident # 4’s bruising or even into the extent and seriousness of the
resident’s injuries.”    Brenham claims that it “did investigate and take
appropriate action.”

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                                  No. 15-60272
      The evidence is largely undisputed; the parties only dispute whether
Brenham’s “investigation” satisfied § 483.13(c)(3). The record evidence shows
that Brenham prepared a two-page incident report, indicating no suspicion of
abuse or neglect, and obtained a one-paragraph statement from CNA Q
recounting her discovery of the bruising and subsequent report to LVN B. The
record does not show, as the ALJ and DAB noted, that Brenham coordinated
an investigation, interviewed its staff, identified persons with access to
Resident 4, or followed up on the possibility of abuse or neglect once its
causation theories proved baseless. Brenham’s expert testimony, concluding
that Brenham complied with § 483.13(c)(3), does not undercut the DAB’s
conclusion; it contains only the conclusory assertion that “[a]n investigation
was completed and the outcome of that internal investigation indicated the
cause of Resident # 4’s bruising was from the Hoyer Lift sling, not from any
‘unknown origins’ or from abuse or neglect.” We note further that a state
surveyor did not concede compliance with § 483.13(c)(3) as Brenham claims;
rather, the surveyor merely acknowledged Brenham’s incident report and the
CNA’s statement, but noted that she would “have expected them to take it
further than that . . . . You know, do a much [sic] thorough investigation.”
      We conclude that the DAB’s conclusion affirming the ALJ’s § 483.13(c)(3)
noncompliance determination is supported by substantial evidence.
3.    42 C.F.R. § 483.75
      Finally, Brenham was cited for violating 42 C.F.R. § 483.75, which
requires any skilled nursing facility to “be administered in a manner that
enables it to use its resources effectively and efficiently to attain or maintain
the highest practicable physical, mental, and psychosocial well-being of each
resident.” The ALJ found this deficiency was supported by the lack of reporting
and adequate investigation, as well as Brenham’s failure to timely notify
Resident 4’s treating physician or the facility’s medical director of the incident.
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                                    No. 15-60272
      As discussed above, there was evidence that the investigation was
inadequate. We note that there is some dispute regarding when Resident 4’s
physician was notified. The incident report prepared on April 12, 2013 states
“physician notified,” though Resident 4’s physician told surveyors he was
informed of the bruising eleven days after the bruising’s discovery, while the
survey was ongoing. Absent evidence to corroborate the incident report, the
ALJ found the “physician’s own recollection” the “best and most credible
evidence.” Brenham does not challenge ALJ’s determination in this regard and
in any event, substantial evidence supports the § 483.75 deficiency.
                                          B
      Brenham further challenges the resulting CMPs.             CMS assessed a
$6,600 per-day immediate jeopardy level penalty for the period from April 22,
2013 through April 25, 2013, and a $2,000 per-day non-immediate jeopardy
level penalty for the period from April 26, 2013 through May 24, 2013, when
CMS concluded that Brenham remedied the violations.
      Brenham first argues that the immediate jeopardy findings are clearly
erroneous because Resident 4’s bruises had begun to heal by the time of the
survey. “Immediate jeopardy” is defined as “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.” 10
The DAB rejected Brenham’s argument, concurring in the ALJ’s conclusion
that the immediate jeopardy determination was not premised on Resident 4’s
bruising, but rather on Brenham’s deficient response to the incident and the
resulting risk of future abuse or neglect to Resident 4 and Brenham’s other
residents. Brenham does not challenge this reasoning and we find no clear
error regarding the DAB’s conclusion.


      10   42 C.F.R. § 488.301.
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                                        No. 15-60272
      We further affirm the DAB’s conclusion that the penalties selected from
the applicable penalty ranges are reasonable.                The regulations permit
penalties in a range of $3,050 to $10,000 per day for immediate jeopardy level
noncompliance and $50 to $3,000 per day for “deficiencies that do not
constitute immediate jeopardy, but either caused actual harm, or caused no
actual harm, but have the potential for more than minimal harm.” 11                     In
determining the appropriate penalty, CMS considered, as it must: (1) the
facility’s history of noncompliance, (2) the facility’s financial condition, (3) the
factors specified in § 488.404, and (4) the facility’s degree of culpability. 12 The
factors in § 488.404 address the scope and severity of the deficiencies and the
interrelationship among cited deficiencies. 13
      Relying on the “extremely serious” nature of Brenham’s noncompliance
as well as its culpability, the ALJ concluded that the CMPs were reasonable
under the statutory factors. The ALJ highlighted that Brenham’s failures
jeopardized not only Resident 4, but also Brenham’s other residents. Further,
the ALJ noted that Brenham “ignored the possibility of abuse,” instead relying
on unsupported hypotheses, and cited the undisputed fact that Brenham’s
DON requested CNA Q to support the Hoyer Lift theory, despite her denial
regarding its use. The ALJ concluded that these facts justified the penalties,
even crediting Brenham’s history of compliance.                   It further noted that
Brenham provided no evidence regarding its financial condition, though CMS
provided an opportunity for it to do so.               The DAB adopted the ALJ’s
conclusions.
       We conclude that the DAB’s determination as to the reasonableness of
the CMPs is not arbitrary or capricious or unsupported by substantial


      11 42 C.F.R. § 488.438(a)(1)(i)-(ii).
      12 42 C.F.R. § 488.438(f).
      13 42 C.F.R. § 488.404.

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                                    No. 15-60272
evidence. Brenham’s response, coupled with the effect of that response—the
possibility that Brenham residents were exposed to future abuse or neglect
with little protection from management—renders the DAB’s weighing of the
statutory factors reasonable. 14
                                           C
      In passing, Brenham contends that DHHS’s revision of CMPs, increasing
the penalties from per-instance fines to per-day fines, violates due process.
That DHHS initially imposed a lower, per-instance penalty does not by itself
amount to a due process violation. 15 Nor is it the case that DHHS committed
a “taking” merely by its letter notifying Brenham of the increased penalties.
That letter did not purport to immediately collect the penalty before a hearing,
as Brenham seemingly implies. Rather, it apprised Brenham of its rights to
challenge the CMPs.
      Insofar as Brenham claims it was not given adequate notice of the final
penalties, CMS’s statement of deficiencies provided Brenham with ample
notice of the claimed violations, the facts supporting the violations, and the
immediate jeopardy findings. Brenham’s due process argument is without
merit.
                                      *         *      *
      For the foregoing reasons, we DISMISS Brenham’s petition for review.




      14  Brenham contends that the rescission of CMPs imposed after a subsequent June
2013 survey is somehow illuminating here. That those CMPs, based on different facts and a
separate survey, were annulled after a dispute resolution process is of no import here.
       15 To the extent Brenham is challenging CMS’s choice of remedy—per-instance versus

per-day monetary penalties—that is not appealable. 42 C.F.R. § 488.408(g).
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