               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 05a0650n.06
                           Filed: August 3, 2005

                                          No. 04-3687

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT


BATAVIA      NURSING                       &    )
CONVALESCENT CENTER,                            )
                                                )
       Petitioner,                              )
                                                )   ON APPEAL FROM A DECISION OF THE
v.                                              )   DEPARTMENTAL APPEALS BOARD
                                                )
TOMMY THOMPSON, Secretary, United               )
States Department of Health and Human           )
Services; UNITED STATES                         )
DEPARTMENT OF HEALTH AND                        )
HUMAN SERVICES,                                 )
                                                )
       Respondents.




       Before: ROGERS and SUTTON, Circuit Judges; FORESTER, District Judge.*
       ROGERS, Circuit Judge. Batavia Nursing & Convalescent Center (“Batavia”) appeals a

decision of the Secretary of Health and Human Services imposing civil money penalties on Batavia.

The Centers for Medicare and Medicaid Services (“CMS”) assessed the penalties against Batavia

after a survey by Ohio Department of Health officials revealed numerous deficiencies in care, in

violation of Medicare participation requirements. An ALJ found that CMS had correctly identified

deficiencies, but lowered the amount of the money penalties. Batavia appealed the ALJ’s decision




       *
       The Honorable Karl S. Forester, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
No. 04-3687
Batavia Nursing & Convalescent Ctr. v. Thompson

to the Department of Health and Human Services’ Departmental Appeals Board, which affirmed the

decision. On appeal to this court, Batavia challenges the agency’s findings of noncompliance.

Further, Batavia argues, the ALJ incorrectly imposed the ultimate burden of persuasion in the civil

money penalty adjudication on Batavia, rather than on CMS. Finally, without any developed

argumentation, Batavia asserts that the agency imposed an unreasonable amount of money penalties.


       “The findings of the Secretary with respect to questions of fact, if supported by substantial

evidence in the record, shall be conclusive.” 42 U.S.C. § 1320a-7a(e) (2001). For the reasons set

forth in the DAB’s thorough opinion, we affirm the agency’s factual findings with regard to the

deficiencies supporting the civil money penalty. Substantial evidence supports the agency’s

conclusion that Batavia failed to comply with Medicare participation standards. Further, it is

unnecessary to consider whether the ALJ, following Hillman Rehabilitation Center v. United States,

DAB No. 1611 (1997), incorrectly placed on Batavia the burden of persuasion. Because the

evidence is not in equipoise in this case, Hillman is not dispositive of the result here. See Fairfax

Nursing Home, Inc., v. United States Dep’t of Health & Hum. Servs., 300 F.3d 835, 840 n.4 (7th Cir.

2002). By failing to raise reasons, other than Batavia’s asserted compliance with Medicare

participation standards, that the agency imposed an unreasonable money penalty, Batavia has

forfeited this argument.


       The decision of the Departmental Appeals Board is AFFIRMED.




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