                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                                                                 F I L E D
           IN THE UNITED STATES COURT OF APPEALS
                                               August 30, 2007
                    FOR THE FIFTH CIRCUIT
                                                                              Charles R. Fulbruge III
                                                                                      Clerk

                                     No. 07-60005
                                   Summary Calendar


WOODLAND VILLAGE NURSING CENTER

                                                  Petitioner
v.

UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES

                                                  Respondent



                  On Appeal from the Department of Appeals Board
           of the United States Department of Health and Human Services
                                      No. 06-38


Before WIENER, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
       Petitioner Woodland Village Nursing Center (“Woodland Village”) is a
skilled nursing facility located in Diamondhead, Mississippi that provided care
to Medicare beneficiaries. Woodland Village appeals a final agency decision of
the Secretary of Health and Human Services (the “Secretary”) imposing a civil
monetary penalty (“CMP”) on Woodland Village for noncompliance with certain
Medicare participation requirements. The Secretary, acting through the Centers


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                          No. 07-60005

for Medicare and Medicaid Services (“CMS”), assessed the CMP against
Woodland Village after a survey by the Mississippi State Department of Health
revealed that Woodland Village was not in substantial compliance with a
Medicare regulation requiring it to provide residents with sufficient fluids to
maintain proper hydration and health.1 An administrative law judge (“ALJ”)
upheld CMS’s determination that a care deficiency existed with respect to one
resident but reduced the amount of the CMP from $600 per day to $100 per day
upon finding that CMS failed to make a prima facie showing of any care
deficiencies with respect to three other residents.2 Woodland Village appealed
the ALJ’s decision to the Department of Health and Human Services’
Departmental Appeals Board (“DAB”), which affirmed the Secretary’s
noncompliance finding and imposition of the $100-per-day CMP.3 On appeal to
this court, Woodland Village challenges the Secretary’s noncompliance finding
as unsupported by substantial evidence and asserts that the imposition of a
CMP constituted an abuse of discretion.
       “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). For the reasons set forth in the DAB’s thorough opinion, we
affirm the Secretary’s factual findings with regard to the deficiency supporting


       1
          See 42 C.F.R. § 483.25(j) (“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. . . .
Hydration. The facility must provide each resident with sufficient fluid intake to maintain proper
hydration and health.”).

       2
           The $100-per-day CMP was assessed from July 16, 2002, the date on which the Mississippi
State Department of Health performed the survey, to September 19, 2002, the date on which Woodland
Village was found to be in substantial compliance with 42 C.F.R. § 483.25(j). See 42 C.F.R.
§ 488.438(a)(ii) (authorizing penalties in the range of $50-$3000 per day “for deficiencies that do not
constitute immediate jeopardy, but either caused actual harm, or caused no actual harm, but have the
potential for more than minimal harm”).

       3
          The DAB’s decision constitutes the final decision of the Secretary and is reviewable by this
court. See 42 U.S.C. § 1320a-7a; 42 C.F.R. § 498.90.

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                                 No. 07-60005

the CMP. We agree with the DAB that substantial evidence supports the finding
that, with respect to Resident #4, Woodland Village failed to comply with the
hydration regulation set forth in 42 C.F.R. § 483.25(j).
      Because the Secretary’s noncompliance finding is supported by substantial
evidence, neither the ALJ nor the DAB abused its discretion in upholding the
imposition of the CMP. See 42 C.F.R. § 488.438(e). Moreover, we agree with the
DAB’s determination that substantial evidence supports the reasonableness of
the imposition of a $100-per-day CMP. Woodland Village’s assertion that its
resident-care deficiency did not cause actual harm or the potential for more than
minimal harm is without merit.
      Accordingly, the decision of the Departmental Appeals Board is
AFFIRMED.




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