     Case: 15-60315      Document: 00513485063         Page: 1    Date Filed: 04/28/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                      No. 15-60315                              FILED
                                                                            April 28, 2016
                                                                           Lyle W. Cayce
RIVER CITY CARE CENTER,                                                         Clerk

              Petitioner

v.

UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES,

              Respondent




                  Petition for Review from the United States
           Department of Health and Human Services Appeals Board
                                    (A-15-5)


Before DAVIS, SOUTHWICK, and COSTA, Circuit Judges.
PER CURIAM:*
       River City Care Center petitions this Court to review an administrative
law judge’s (ALJ) order sustaining civil money penalties for violating
numerous federal regulations in its treatment of a resident. Because
substantial evidence supports the ALJ order, we DENY the 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-60315
                                         I.
      River City is a nursing facility in San Antonio, Texas. On April 23 at 3:45
a.m., one of its residents complained to the staff about shortness of breath and
congestion. In response, a nurse administered oxygen to the Resident in an
attempt to alleviate her symptoms. However, before giving the oxygen, the
nurse did not contact a physician about the Resident’s complaint. At the time,
the only physician’s order regarding shortness of breath was an instruction to
provide nebulizer treatments to the Resident. The Resident had not needed
oxygen previously, and so, no standing order for the resident to receive it
existed.
      Around 11:00 a.m. that same day, the Resident once again complained
of shortness of breath to the River City staff. This time, the nurses contacted a
physician who ordered a chest x-ray of the resident “stat.” The results of the x-
ray arrived at roughly 1:30 and revealed that the Resident suffered from a mild
pulmonary edema and congestive heart failure. The staff of River City called
the physician’s office but did not reach him. Rather than try again, the staff
left a note for the next shift of nurses to call the physician. They never called.
      Later in the afternoon on April 23, River City nurses took the Resident
off oxygen to test her room air tolerance; her oxygen levels plummeted. The
nurses then re-administered oxygen in an increased amount. They also
withheld medication from the Resident, because she seemed lethargic and did
not eat. The staff did not contact a physician about either of these changes in
treatment.
      Thereafter, River City decided that the Resident may need hospice
services, hospice evaluated and accepted the resident, but River City did not
tell the Resident’s family about this change – even though the staff knew that
her sister was a family contact. The Resident’s sister only learned of the
hospice evaluation when she called River City herself. Resident continued to
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                                        No. 15-60315
receive hospice care until April 27 when she was moved to a hospital by her
sister.
       The Texas Department of Aging and Disability investigated how River
City treated the Resident and determined that it violated numerous federal
regulations. 1 CMS agreed with the Department’s findings and imposed money
penalties against River City totaling $68,950. Specifically, CMS imposed an
“immediate jeopardy” penalty of $4050 per day for each day between April 23,
2013 and May 6, 2013. 2 It also assessed a “less than immediate jeopardy”
penalty of $250 per day between May 7, 2013 and June 24, 2013.
       River City appealed these penalties to an ALJ who sustained them. The
ALJ agreed that River City failed to substantially comply with numerous
federal regulations. First, River City violated § 483.10(b)(11) when it failed to
communicate the significant changes in Resident’s condition with her
physician and family. 3 Second, River City violated § 483.13(c) when it failed to
implement its own policies that required physician and family consultation. 4
River City violated § 483.20(k)(3)(i), because when it administered continuous



       1 A nursing facility is required to comply with federal regulations to participate in
Medicare. The Centers for Medicare & Medicaid (CMS) use state agencies to investigate
compliance with these regulations. Based on “surveys” from the state agency, CMS may
impose money penalties for noncompliance. The penalty imposed by CMS depends on the
seriousness of the facility’s noncompliance. The penalty against the facility will continue until
it attains substantial compliance with the regulations. 42 C.F.R. 488 et seq. Here, the
Department survey for noncompliance ranged from April 23 – when Resident’s health began
its downturn – until May 6 – when the Department conducted its investigation.
       2 Immediate jeopardy is “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.
       3 “A facility must immediately inform the resident; consult with the resident’s

physician; and if known, notify the resident’s legal representative or an interested family
member when there is. . .a significant change in the resident’s physical, mental, or
psychosocial status.” 42 C.F.R. § 483.10(b)(11).
       4 “The facility must develop and implement written policies and procedures that

prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident
property.” 42 C.F.R. § 483.13(c).
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                                       No. 15-60315
oxygen without a physician’s order, it did not use the professional standard of
care. 5 Finally, River City violated § 483.25, because it did not provide services
for the Resident to attain her highest practicable level of functioning. 6
       After the ALJ’s decision, River City appealed to the Appeals Board for
the Department of Health and Human Services (DAB). DAB agreed with the
ALJ findings and upheld the penalties levied against River City. Now, River
City appeals the ALJ and DAB judgments to this Court. 7
                                            II.
       We review a finding of fact by an administrative agency for substantial
evidence. 8 Substantial evidence is deferential to the agency, and it requires
only “more than a mere scintilla” of evidence. 9 Stated differently, it only
requires sufficient evidence that “a reasonable mind might accept as adequate
to support a conclusion.” 10
                                             III.
       River City’s argument is two-fold. First, it argues that the evidence does
not support the ALJ finding that its treatment violated federal regulations.
Second, even if it did violate the regulations, River City asserts that the
penalties imposed for its violation are not reasonable. We disagree.




       5   “The services provided or arranged by the facility must. . .[m]eet professional
standards of quality.” 42 C.F.R. § 483.20(k)(3)(i).
        6 “Each resident must receive and the facility must provide the necessary care and

services to attain or maintain the highest practicable physical, mental, and psychosocial well-
being, in accordance with the comprehensive assessment and plan of care.” 42 C.F.R. 483.25.
        7 See 42 U.S.C. § 1320a-7a(e) (“Any person adversely affected by a determination of

the [ALJ or DAB] may obtain a review of such determination in the United States Court of
Appeals for the circuit in which the person resides, or in which the claim was presented.”).
        8 See 42 U.S.C. § 1320a-7a(e) (“The 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.”).
        9 Lewis v. UNUM Life Ins. Co. of Am., 188 F. App’x 259, 263 (5th Cir. 2006).
        10 Girling Health Care, Inc. v. Shalala, 85 F.3d 211, 215 (5th Cir. 1996).

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                                            No. 15-60315
      Substantial evidence supports the ALJ’s finding that River City was not
in substantial compliance with federal regulations. Despite River City’s main
argument that the Resident suffered no significant change in condition, she
had extensive respiratory problems that previously did not exist. Before April
23, Resident did not need oxygen; after April 23, she did. She had shortness of
brief, no longer ate, and appeared lethargic. Moreover, the x-ray results
revealed a new diagnosis that had not previously existed – congestive heart
failure.
      Despite the obvious change in Resident’s condition, the River City staff
did not immediately notify her family. Similarly, the River City staff did not
consult with a physician on the Resident’s symptoms and how they should be
treated. Instead, the staff acted on its own to begin oxygen treatments and
reduce her medications. Therefore, as articulated by the ALJ, River City’s
actions did not conform to numerous federal regulations.
      Also, the penalties imposed on River City are not unreasonable.
Reasonableness is assessed through statutory factors, including: seriousness
of the offense, financial condition of the facility, the facility’s degree of
culpability, and any history of non-compliance by the facility. 11 River City
offered little argument as to how the penalty was unreasonable other than to
dispute the underlying factual basis for the federal regulatory violations.
Moreover, given the extensive and pervasive failure of River City to consult
with physicians and the Resident’s family on significant changes in her
condition, the amount of the penalty was not unreasonable.
                                                 IV.
      For these reasons, we DENY the petition to review the decision of the
Appeals Board for the Department of Health and Human Services.


      11   42 C.F.R. § 488.438(f)(1)-(4).
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