                              UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

                                             2
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

                                       3
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

                                                4
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,

                                          5
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.



                                         6
                                                 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.



                                                  7
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

                                               9
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.



                                                10
        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

                                                11
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.




                                              12
                                         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

                                         13
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

                                              15
duration of the penalties imposed were reasonable.   Accordingly,

we affirm the Secretary’s final determination on these issues.



                                                         AFFIRMED




                               16
