           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            June 15, 2009
                                     No. 08-60917
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk




HOTEL REED NURSING CENTER,

                                                   Plaintiff-Petitioner,
versus

UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES,

                                                   Defendant-Respondent,




                  Petition for Review of Final Agency Decision
       of the Secretary, U.S. Department of Health and Human Services,
                Departmental Appeals Board, Appellate Division
                                    No. 2154




Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*


       Hotel Reed Nursing Center (“Hotel Reed”) was a nursing home providing
care to Medicare patients. As a Medicare participant, it was required to follow

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-60917

certain regulations and was subject to the jurisdiction of the United States De-
partment of Health and Human Services, Centers for Medicare and Medicaid
Services Division, which found that Hotel Reed was not complying with several
of the Medicare regulations. It imposed a penalty of $4000 per day between Feb-
ruary 11 and March 12, 2002, because the breach of requirements caused “im-
mediate jeopardy” to patients, followed by a penalty of $250 per day for less dan-
gerous violations from March 13 until April 16, 2002.
      Hotel Reed appealed the decision at a hearing before an administrative
law judge, who upheld the findings of noncompliance and immediate jeopardy
but lowered the penalty amounts to $3050 per day for the first period and $200
per day for the second. Hotel Reed appealed to the Departmental Appeals
Board, appellate division (“DAB”), which affirmed. The DAB rested its decision
only on the violation of 42 C.F.R. § 483.25(h)(2), failing to provide adequate su-
pervision of residents, and did not consider the other violations. Hotel Reed ap-
peals the final agency decision as permitted by 42 C.F.R. § 498.90.
      The agency’s decision is based on findings of fact, which we review for sub-
stantial evidence. See 42 U.S.C. § 1320a-7a(e); Morris v. Shalala, 207 F.3d 744,
745 (5th Cir. 2000). There is substantial evidence in the record to show that Ho-
tel Reed committed regulatory violations that caused immediate jeopardy during
the period in question.


                                         I.
      Resident 10 was diagnosed with depression, psychosis, and paranoid schiz-
ophrenia. Her mental status was deteriorating. She had psychotic episodes, in-
cluding one in which she believed she had witnessed a murder and could de-
scribe it in vivid detail. Despite this condition, Hotel Reed nurses and adminis-
trators allowed her to sign out of the facility and walk alone across a busy street,
which had no traffic light, to a pier to smoke cigarettes. The pier jutted out 1700

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feet over water deep enough for fishing and did not have railings in some places.
The DAB concluded that allowing a person in Resident 10’s mental state to walk
alone in this kind of area violated the requirement in § 483.25(h)(2) that “[t]he
facility must ensure that . . . [e]ach resident receives adequate supervision and
assistance devices to prevent accidents.” The available evidence is quite suffi-
cient to reach that conclusion.
      A single violation is enough to support the penalties levied, but further in-
cidents bolster the conclusion. Resident 9, known for hoarding, secreted three
prescription pills in her room and was once found alone inside the medication
room. And Resident 14 checked himself out of the facility, was drunk when he
returned, and was allowed to leave again while still in a drunken state. These
incidents are further evidence that Hotel Reed was not providing adequate su-
pervision to protect its residents from accidents.


                                        II.
      To support the higher monetary penalties, there must be substantial evi-
dence in the record to show that Hotel Reed’s lack of supervision caused immedi-
ate jeopardy. “Immediate jeopardy means 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.
      The same evidence that shows inadequate supervision to prevent accidents
is also sufficient to show immediate jeopardy. The accidents that could have be-
fallen Resident 10 as she crossed the street and walked onto the pierSSbeing hit
by a car or falling into the waterSSwould have likely caused serious injury or
death. Similar concerns applied to Resident 14 when he left the facility while
drunk. Resident 9 was found unsupervised in the medication room, where she
had access to medications that, if taken improperly, likely could have caused se-

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rious injury or death.
      Hotel Reed’s insistence that serious injury or death was only “possible,”
not “likely,” is unconvincing. Hotel Reed does not point to any evidence provid-
ing information about the probability of serious injury or death to the residents
in their conditions. The record contains sufficient evidence to support the agen-
cy’s decision that accidents were likely in the situation and that serious injury
or death would likely result from an accident.
      AFFIRMED.




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