                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 05a0284n.06
                              Filed: April 13, 2005

                                                  No. 04-3018

                              UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT


WINDSOR HEALTH CENTER,                                   )
                                                         )
Petitioner,                                              )    ON PETITION FOR REVIEW OF
                                                         )    FINAL DECISION OF DEPARTMENTAL
v.                                                       )    APPEALS BOARD OF THE UNITED
                                                         )    STATES DEPARTMENT OF HEALTH
MICHAEL O. LEAVITT,* Secretary,                          )    AND HUMAN SERVICES
United States Department of Health and                   )
Human Services; and                                      )
UNITED STATES DEPARTMENT OF                              )
HEALTH AND HUMAN SERVICES,                               )
                                                         )
Respondents.                                             )


        Before: GILMAN and SUTTON, Circuit Judges; and McKEAGUE, District Judge.**

        PER CURIAM. Petitioner Windsor Health Center (“Windsor”), a skilled nursing facility

in Youngstown, Ohio, has petitioned for judicial review of a final decision of the Departmental

Appeals Board of the United States Department of Health and Human Services. The decision,

affirming the administrative law judge’s summary judgment, is said to be the product of an improper

shifting of the burden of proof. Upon due consideration of the record, we find no error.

        The Appeals Board’s decision upholds the imposition of a civil penalty for Windsor’s

noncompliance with a Medicare program participation requirement. Windsor was found not to have

_________________________

         * Michael O. Leavitt, sworn in as Secretary of the Department of Health and Human Services on January 26,
2005, is substituted for outgoing Secretary Tommy Thompson as defendant in this case, sued in his official capacity.
          ** The Honorable David W. McKeague, United States District Judge for the Western District of Michigan,
sitting by designation.
been in substantial compliance, from November 30, 2000 to December 21, 2000, with the

requirement that it “ensure that each resident receives adequate supervision and assistance devices

to prevent accidents.” 42 C.F.R. § 483.25(h)(2). This determination was based primarily on two

accidents. On July 24, 2000, a wheelchair-bound resident, “Resident 49,” sustained a fractured right

tibia when, upon being wheeled into her room, her leg struck the footboard of her bed. On

November 28, 2000, a second resident, “Resident 57,” fell while showering, suffering a laceration

on her forehead that required seven stitches. After investigation of these incidents, the Centers for

Medicare & Medicaid Services (“CMS”) determined that Windsor was not in compliance with

Medicare program requirements and imposed a civil money penalty of $550 per day, totaling

$11,550 for the 21-day period of noncompliance.

        On review, the ALJ first determined, on the record presented, that an evidentiary hearing was

not necessary. The ALJ concluded that CMS had made a prima facie showing that Windsor had

failed to provide Residents 49 and 57 with adequate supervision to prevent the accidents, and that

Windsor had failed to respond with evidence sufficient to create a genuine issue of material fact.

The ALJ therefore granted CMS’s motion for summary judgment, upholding CMS’s finding of

noncompliance and finding the penalty imposed reasonable. On appeal, the Appeals Board, in a 19-

page final decision, affirmed in all respects. Windsor now challenges the award of summary

judgment to CMS, contending that it was entitled to an evidentiary hearing. Windsor does not

challenge the amount of the civil monetary penalty in this appeal. We review the Appeals Board’s

decision de novo. Livingston Care Center v. U. S. Dept. of Health & Human Servs., 388 F.3d 168,

172-73 (6th Cir. 2004).



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       Windsor’s arguments on appeal stem from the Appeals Board’s purported application of the

“Hillman standard,” which is said to have resulted in impermissibly shifting the burden of proof

from CMS to Windsor. First of all, Windsor’s objection to the “Hillman standard” per se is a red

herring. The Hillman standard is not mentioned in the ALJ’s decision. In the Appeals Board’s final

decision, it is mentioned only in a footnote, in relation to the standards governing assessment of

CMS’s motion for summary judgment. Specifically, the Appeals Board observed in passing that the

standard of review to be applied to the motion for summary judgment is consistent with the ultimate

burden-of-proof requirements recognized in earlier Appeals Board holdings, including Hillman

Rehabilitation Center, DAB Nos. 1611 (1997), and 1663 (1998); aff’d, Hillman Rehabilitation

Center v. United States, No. 98-3789 (GEB) (D.N.J. May 13, 1999). DAB Final Decision Dec. 22,

2003, p. 4, n. 2; J.A. 36.1 It is thus apparent that neither the ALJ nor the Appeals Board directly

applied Hillman – right or wrong – as binding precedent in this case. Reference to the Hillman

standard in the Appeals Board’s decision represents pure dictum, not integral to the ultimate

decision. It follows that Windsor’s collateral attack on Hillman as violative of Administrative

Procedures Act requirements is spurious. Moreover, the fallacy of Windsor’s Hillman argument

having thus been exposed, it is also clear that Windsor’s contention that the Appeals Board


       1
           The text of the footnote reference, in its entirety:

                These criteria are consistent with our holdings concerning the burden of proof in cases
       brought under 42 C.F.R. Part 498 to enforce compliance with participation requirements for SNFs
       and other long term care facilities. The applicable burden of proof requires CMS to come forward
       with sufficient evidence on disputed facts that together with the undisputed facts will establish a
       prima facie case that the facility is not complying with one or more participation requirements.
       The facility may rebut a prima facie case of noncompliance by showing, by a preponderance of the
       evidence, that it is in substantial compliance with participation requirements. Hillman
       Rehabilitation Center, DAB Nos. 1611 (1997), and 1663 (1998); aff’d, Hillman Rehabilitation
       Center v. United States, No. 98-3789 (GEB) (D.N.J. May 13, 1999); Cross Creek Health Care
       Center, DAB No. 1665 (1998) (same framework applies in long-term care facility cases involving
       CMPs).

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improperly required it, in accordance with Hillman, to adduce a preponderance of the evidence

simply to avoid summary judgment is unsupported.

       What is properly before the Court, however, is Windsor’s challenge to the standards actually

applied by the Appeals Board, defined as follows:

       Whether summary judgment is appropriate is a legal issue that we address de novo,
       viewing the proffered evidence in the light most favorable to the non-moving party.
       .... On the issue of whether a remedy is authorized, CMS is entitled to summary
       judgment if it has (1) made a prima facie showing that petitioner was not in
       substantial compliance with one or more Medicare participation requirements, and
       (2) demonstrated that there is no dispute about any material fact supporting its prima
       facie case and that it is otherwise entitled to judgment as a matter of law. .... CMS
       is not entitled to summary judgment if the petitioner has proffered evidence that
       would permit an ALJ to conclude that it was in substantial compliance with the
       participation requirements during the relevant period.

DAB Final Decision pp. 3-4; J.A. 35-36 (citations, footnote omitted). Applying these standards, the

Appeals Board concluded that CMS had both made a prima facie showing of noncompliance and

demonstrated that there was no genuine issue of material fact. The Appeals Board further found,

in connection with both predicate accidents, that Windsor proffered no evidence to support a finding

that it provided supervision adequate to prevent the subject accidents.

       Windsor does not dispute the facts upon which the Appeals Board decision was based.

Windsor insists, however, that those facts are not necessarily sufficient to warrant the inference that

it provided inadequate supervision to Resident 49 or Resident 57. Windsor reiterates speculative

arguments made first to the ALJ and then to the Appeals Board to the effect that the accidents might

not have been attributable to inadequate supervision. To the extent that the evidence presented by

CMS was not conclusive as to how the accidents actually occurred and how inadequate supervision

causally contributed to them, Windsor maintains that genuine issues of material fact remained that

required a hearing. Award of summary judgment to CMS despite these outstanding factual

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questions is said to be tantamount to imposition of strict liability.

       This Court has recognized the validity of summary judgment procedures in Medicare

program compliance proceedings as a possible alternative to an in-person hearing. Livingston, 388

F.3d at 172; Crestview Parke Care Center v. Thompson, 373 F.3d 743, 750 (6th Cir. 2004). The

standards governing summary judgment procedures are familiar and well-established. They are well

summarized in Livingston, where the court noted in particular that “one of the principal purposes

of the summary judgment rule is to isolate and dispose of factually unsupportable claims or

defenses.” 388 F.3d at 172-73, quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). A

moving party may demonstrate that there is no genuine issue of material fact by presenting evidence

on an essential element of its claim or defense so one-sided as to compel the conclusion that it must

prevail as a matter of law. Id. at 173. To avoid entry of summary judgment in the face of such a

showing, the non-movant must “act affirmatively” by presenting significantly probative evidence

– more than a mere scintilla – on which the fact-finder, in this case the ALJ, could reasonably find

for the non-movant. Id.; Crestview, 373 F.3d at 747.

       Here, it is clear that the ALJ and the Appeals Board correctly evaluated CMS’s motion for

summary judgment. In relation to the injuries accidentally sustained by both Resident 49 and

Resident 57, CMS was correctly deemed to have made out a prima facie case that Windsor provided

inadequate supervision to prevent the accidents. A prima facie showing is sufficient evidence “to

establish a fact or raise a presumption unless disproved or rebutted.” Black’s Law Dictionary (8th

ed. 2004). To rebut this prima facie showing and defeat the motion for summary judgment, Windsor

was not required, as it now argues, to show adequate supervision by a preponderance of the

evidence. It had only to “act affirmatively” and present some evidence, some significantly probative


                                                  5
evidence, more than a scintilla, to support a reasonable finding that the supervision provided was

not inadequate to prevent the accidents.

        Windsor undisputedly presented no additional evidence. Cf. Crestview, 373 F.3d at 754

(finding weak evidence sufficient to create a genuine issue of material fact). Instead, Windsor

relied then, and relies now, on arguments – arguments that the evidence presented by CMS is

insufficient to make out a prima facie case; arguments that the accidents might have occurred

anyway, in spite of perfectly adequate supervision. Each of these arguments is directly and, in our

opinion, properly addressed in the Appeals Board’s decision. For the reasons articulated by the

Appeals Board, none of Windsor’s arguments is sufficient to undermine the integrity of CMS’s

prima facie showing. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587

(1986) (holding that non-movant “must do more than simply show that there is some metaphysical

doubt as to the material facts.”).

        Nor do we accept Windsor’s characterization that award of summary judgment to CMS, in

the absence of conclusive evidence on the immediate cause of each accident, is tantamount to

imposition of strict liability. In Crestview, the court specifically held that 42 C.F.R. § 483.25 is not

a strict liability regulation. 373 F.3d at 754. Indeed, Windsor was afforded ample opportunity to

present evidence, in response to CMS’s prima facie case, demonstrating that the supervision

provided was not inadequate to prevent the accidents – evidence, for instance, that either of the

accidents was caused by an “act of God” or the deliberate tortious or criminal act of a third person

or some other unforeseeable circumstance that could not be prevented by adequate supervision. It

utterly failed to do so.

        This is thus precisely the sort of case for which summary judgment procedures represent an


                                                   6
efficient and appropriate alternative to an evidentiary hearing. Indeed, in the absence of evidence

supporting its defense, Windsor is at a loss to explain how affording it an evidentiary hearing before

the ALJ could be expected to result in a different outcome. Windsor gave the ALJ and the Appeals

Board, and now gives this Court, no reason to believe that an evidentiary hearing would be other

than a needless and burdensome formality.

       Accordingly, considering the Appeals Board’s decision on the extant record de novo, we find

no error. The Appeals Board’s final decision, affirming the award of summary judgment to CMS

and upholding the imposition of the civil monetary penalty, is therefore AFFIRMED.




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