                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 06-1868



LIBERTY COMMONS NURSING AND REHAB CENTER -
JOHNSTON,

                                                         Petitioner,

           versus


MICHAEL O. LEAVITT, Secretary of the United
States Department of Health & Human Services;
U. S. DEPARTMENT OF HEALTH & HUMAN SERVICES,

                                                        Respondents.


On Petition for Review of an Order of the United States Department
of Health & Human Services. (A-05-91; CR1294)


Argued:   May 23, 2007                      Decided:   July 20, 2007


Before WILLIAMS, Chief Judge, MOTZ, Circuit Judge, and HAMILTON,
Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


ARGUED: Joseph L. Bianculli, HEALTH CARE LAWYERS, P.L.C.,
Arlington, Virginia, for Petitioner. Sonia Gaye Burnett, Assistant
Regional Counsel, UNITED STATES DEPARTMENT OF HEALTH & HUMAN
SERVICES, Office of the General Counsel, Washington, D.C., for
Respondents. ON BRIEF: Daniel Meron, General Counsel, Christine A.
Bradfield, Acting Chief Counsel, Region IV, UNITED STATES
DEPARTMENT OF HEALTH & HUMAN SERVICES, Office of the General
Counsel, Washington, D.C., for Respondents.
Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

     A North Carolina nursing facility challenges the determination

of the Department of Health and Human Services that the facility’s

noncompliance   with   federal     regulations   was   at   the   “immediate

jeopardy” level under the regulatory framework.         Finding no error,

we affirm the agency’s determination.        We also reject the nursing

facility’s contention that the agency’s review process violated the

Administrative Procedure Act or due process requirements.



                                     I.

     Federal regulations require that nursing facilities receiving

Medicare   funds   comply   with   certain   safety    requirements.      If

surveyors find a facility has failed to comply, they assess the

level of the noncompliance to determine the appropriate penalty.

See, e.g., 42 U.S.C. 1395i-3(h) (2006); 42 C.F.R. §§ 483.1 et seq.

(2006); § 488.301 (2006).     Liberty Commons, a nursing facility in

Benson, North Carolina, participates in and receives funds from

Medicare, and was surveyed for regulatory compliance on October 23,

2003.   The North Carolina State Department of Health and Human

Services conducted the annual survey as an agent for the Centers

for Medicare and Medicaid Services (CMS), an agency of the federal

department of Health and Human Services (HHS or “the Secretary”).

     The surveyors found that Liberty Commons had neglected to

provide proper care to residents, in violation of 42 C.F.R. §


                                     3
483.13(c) (2006).         In particular, one resident of the facility,

referred to as Resident #2, was cared for on October 21, 2003, by

a nurse’s assistant wearing latex gloves, even though the resident

had a documented allergy to latex of which the nursing facility was

aware.      The resident then complained of shortness of breath, and

was hospitalized.

      CMS found that the following series of staff errors at the

nursing     home    had   led    to   this    noncompliance:          (1)   the   nurse’s

assistant was unfamiliar with the resident and his allergy; (2)

warning     signs    about    the     latex       allergy     were   missing    from   the

resident’s room; (3) the nurse’s assistant did not receive a verbal

warning at the beginning of her shift about the allergy; and (4)

the nurse’s assistant failed to consult the resident's record until

the   end    of     her   shift.        Accordingly,           CMS    found    that    the

noncompliance was at the “immediate jeopardy” level, and the

Secretary imposed a civil monetary penalty.

      Liberty       Commons     challenged        the   CMS    decision     through    the

administrative adjudication process provided by HHS.                          Following a

January 12, 2005 hearing, an Administrative Law Judge (ALJ) upheld

the findings of noncompliance and immediate jeopardy, but reduced

the fine against the nursing facility. The ALJ found that although

Liberty Commons had a plan for preventing this type of violation --

i.e. providing care to patients with known allergies -- it was lax

in implementing this plan and had not sufficiently trained its


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staff,   and      that   the    multiple    failures     to   alert    the     nurse’s

assistant constituted “persuasive proof that [the] problem was

systemic.”

     The   ALJ      further     concluded      that   even    if   there      was   not

sufficient medical evidence to establish that Resident #2 did have

a latex allergy, an “immediate jeopardy” designation was still

appropriate because of “the weakness of [Liberty Commons’] system

for protecting its residents demonstrated by the series of errors

that occurred in providing care to Resident #2.”                           It is not

disputed that at the time of the incident, Liberty Commons believed

Resident #2 did have a latex allergy.                 The ALJ inferred from the

treatment given to Resident #2 “that other residents would be

jeopardized when placed in similar circumstances and that there

would be a likelihood of serious injury, harm, or death as a

consequence”       and   that    “[t]he     systemic     failure      to    implement

protective measures . . . would jeopardize any resident who is

dependent on a staff to treat him or her subject to safety

precautions.”        Several other residents of Liberty Commons had

allergies to foods or other substances, so the facility’s “systemic

failure”     to     handle      residents’      allergies      with        appropriate

precautions could endanger them, as well as future residents with

allergies or special needs.          See Respondent’s Br. at 18.

     Liberty       Commons      appealed    the    ALJ   decision      to    the    HHS

Departmental Appeals Board (DAB).                 The DAB, in a June 12, 2006


                                           5
decision, held that (1) the ALJ’s conclusion that Liberty Commons

was not in substantial compliance was supported by substantial

evidence, and (2) the immediate jeopardy finding was not clearly

erroneous.

     Liberty Commons concedes that it failed to comply with the

regulatory requirements.    It contends, however, that the Secretary

erred in determining that the noncompliance rose to the “immediate

jeopardy” level.     It maintains that because the evidence does not

sufficiently establish that Resident #2 actually had a latex

allergy or suffered serious harm because of the noncompliance,

neither he nor any other particular, identifiable resident was

likely to be harmed by its particular violations on October 21,

2003.   Liberty Commons also asserts that the DAB applied the wrong

burden of proof in its review of the ALJ decision.                  Br. of

Petitioner at 41-50.



                                  II.

                                   A.

     The   federal   regulation   at    issue   here   defines   “immediate

jeopardy” 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.”   42 C.F.R. § 488.301.       Liberty Commons does not dispute




                                    6
that this provision controls the case; it merely disagrees with how

the Secretary has interpreted and applied the regulation.

       “When the question before the court is whether an agency has

properly interpreted and applied its own regulation, the reviewing

court     must    give     the   agency’s    interpretation     ‘substantial

deference.’” Maryland General Hosp. v. Thompson, 308 F.3d 340, 343

(4th     Cir.    2002).      That    said,   “an    interpretation   that   is

inconsistent with the plain language of an unambiguous regulation

cannot be upheld simply because the interpretation, standing alone,

seems reasonable enough.”           Id. at 347.    Thus, we must defer to the

Secretary’s reasonable interpretation of the regulation so long as

it is not inconsistent with the plain language of the regulation.

Moreover, we must defer to the agency’s findings of fact “if

supported by substantial evidence on the record considered as a

whole.”     42 U.S.C. § 1320a-7a(e) (2006).

        Liberty Commons argues that the Secretary has misinterpreted

and misapplied the regulation in question in finding that the

facility was in noncompliance at the “immediate jeopardy” level.

Liberty Commons rests its case -- as it must given the deference

owed to the agency’s interpretation of its regulation -- on its

reading of “the regulation’s plain language,” Br. of Petitioner at

39, which it asserts is “clear and unambiguous,” id. at 22.

Liberty Commons reads the “the plain language” of the regulation to

state     that    an      “immediate    jeopardy”     finding   “requires   a


                                         7
determination of [the noncompliance’s] impact on one or more of the

facility’s     actual   residents.”         Petitioner’s     Reply     Br.    at    9

(emphasis added).

       But these are the words of Liberty Commons, not of the

regulation.     By its terms, the regulation only requires that the

nursing   home’s     noncompliance    is    likely    to    cause    harm    to    “a

resident.”      42 C.F.R. § 488.301 (emphasis added).                   The word

“actual” does not appear in the regulation; the phrase “one or

more” does appear in the regulation, but in reference to the

nursing home’s noncompliance with “one or more requirements” of the

regulatory scheme, not as a modifier of “resident.”                   Cf. Br. of

Petitioner at 22; Petitioner’s Reply Br. at 9.

       The use of the indefinite article “a” -- and no other modifier

-- before “resident” suggests that the regulation does not require

that   the    noncompliance    jeopardizes     “one    or    more    actual”       or

identifiable     residents.     If    the    Secretary      had    intended    that

specific requirement, he would have used that language in writing

the rule.      Moreover, because no actual harm to a resident is

required for an “immediate jeopardy” finding, only “likely” harm,

the definition as a whole encompasses future harms to an as yet

unidentified     resident.     If,    as    Liberty   Commons       insists,      the

regulation required otherwise, there would be no need to include

the word “likely” -- for an actual resident either would or would

not    have   been   harmed.    For    these    reasons,      we    believe       the


                                       8
Secretary’s view -- that “a resident” has a broader meaning and

does not require establishing harm from a particular, identifiable

compliance violation to a particular, identifiable, resident -- is,

at the very least, a reasonable interpretation of the regulation’s

language, to which we must defer.                See Maryland General Hosp., 308

F.3d at 343.

     Accordingly, Liberty Commons cannot prevail.                          Substantial

evidence supports the ALJ’s determination that the facility's

noncompliance problem was “systemic.”                 That is, the noncompliance

consisted not merely of using latex on a single resident believed

to be allergic to latex, but also of failing to follow the

necessary    plan    and   procedures        to     protect    residents      who   have

allergies.    As the ALJ found, “the weakness of [Liberty Commons’]

system for protecting its residents [is] demonstrated by the series

of errors that occurred in providing care to Resident #2.”                          For

this reason, the ALJ concluded that “[t]he systemic failure to

implement protective measures . . . would jeopardize any resident

who is dependent on a staff to treat him or her subject to safety

precautions.”        Finding     no    error,       we   affirm      the   Secretary’s

determination       that   the   noncompliance           met   the   requirement     of

“immediate jeopardy” under the governing regulation.

                                            B.

     Liberty Commons further contends that the burden of proof the

Secretary    applied       during     the        administrative      review    process


                                            9
“offend[s]” the Administrative Procedure Act (APA), 5 U.S.C. § 500

et seq. (2000), and due process of law.             Br. of Petitioner at 23;

41-50.   In particular, Liberty Commons objects that, after the ALJ

found it was not in compliance, the DAB placed the burden on it,

the    petitioner,     to   show   that     CMS’s   determination      that    the

noncompliance was at the “immediate jeopardy” level was clearly

erroneous, rather than requiring the Secretary to again establish

this during the appeals procedure.

      This    argument      ignores    the    relevant     regulation,        which

explicitly sets forth the burden of proof with respect to the level

of    noncompliance:     “CMS’s    determination     as    to   the    level    of

noncompliance . . . must be upheld unless it is clearly erroneous.”

See 42 C.F.R. § 498.60 (2006).         In light of the clear instructions

in this regulation, which the Board unquestionably followed, we

construe Liberty’s argument here to be either that (1) HHS lacks

statutory authority to have issued this regulation, or (2) the

regulation is unconstitutional.           Neither is the case.

      The APA, on which Liberty relies, only creates default rules

for agency adjudications.          But Congress, in the Social Security

Act, 42 U.S.C. §§ 1302, 1395hh (2006), empowered HHS to create

regulations    for   its    Medicare      adjudications,    and   so    the    APA

provision relied on by Liberty Commons simply does not apply to

this case.    Moreover, we find no support for the position that the

agency appeal procedure violates the Constitution’s Due Process


                                       10
Clause.      The purpose of the statutory and regulatory framework is

to   guide    the   distribution    of    Medicare    funds       to     appropriate

facilities -- namely, those that comply with safety regulations.

To be sure, Liberty Commons was due some process before being

sanctioned and fined for a regulatory violation, see Mathews v.

Eldridge, 424 U.S. 319, 334-35 (1976).              But, it received a full

evidentiary hearing before an ALJ, followed by an opportunity to

appeal the ALJ’s decision to the DAB.             Balancing the Government’s

interests in spending Medicare funds appropriately and protecting

the safety of nursing home residents, and a nursing home’s interest

in   the   financial   and   reputational      cost      of   the   noncompliance

finding, we can only conclude that the process Liberty Commons

received      was   sufficient     to    reduce    the     risk     of    erroneous

deprivation. Id. Because Liberty Commons received all the process

it was due, its constitutional due process claim must also fail.



                                        III.

      For the foregoing reasons, the order of the Secretary is

                                                                           AFFIRMED.




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