     Case: 11-60568     Document: 00511863175         Page: 1     Date Filed: 05/22/2012




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

                                                                            FILED
                                                                           May 22, 2012

                                     No. 11-60568                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



CEDAR LAKE NURSING HOME,

                                                  Petitioner
v.

UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES,

                                                  Respondent



                       Petition for Review of a Decision of the
                      Department of Health and Human Services
                                      (A-11-29)


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        Cedar Lake Nursing Home (“Cedar Lake”), a nursing home participating
in the Medicare program, petitions for review of a final decision of the
Departmental Appeals Board (“the Board”) of the U.S. Department of Health
and Human Services (“HHS”) affirming an imposition of civil monetary penalties
against Cedar Lake. We conclude that the Board’s decision was supported by




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-60180

substantial evidence and that the penalty assessed was reasonable, and
therefore dismiss the petition for review.
      The Texas Department of Aging and Disability conducted a survey of
Cedar Lake from April 13 to 16, 2009. Based on that survey, the Centers for
Medicare and Medicaid Services (“CMS”) determined that Cedar Lake was not
in substantial compliance with 42 C.F.R. § 483.25(k) because it had failed to
provide two residents with proper respiratory care and that its noncompliance
posed immediate jeopardy to resident health and safety. Specifically, CMS
determined that Cedar Lake appealed that determination to an administrative
law judge (“ALJ”). After a teleconference hearing and briefing, the ALJ upheld
CMS’s determinations and its imposition of a $9,500 civil monetary penalty for
the violations. Cedar Lake then appealed to the Board, which affirmed. The
agency decision was based on findings of fact, which we review for substantial
evidence. Cedar Lake Nursing Home v. U.S. Dep’t of Health & Human Servs.,
619 F.3d 453, 456 (5th Cir. 2010); 42 U.S.C. § 1320a–7a(e).
      Substantial evidence in the record supports the agency’s determination
upholding CMS’s determination of noncompliance. Both the accounts of the
state surveyors and the notes of Cedar Lake’s own employees shows that the
state survey revealed that the portable oxygen tank of an 81-year old female
resident, identified as Resident 16, was empty and that Resident 16’s oxygen
saturation level fell below the level required by the applicable standard of care.
When Resident 16 was put to bed at her request, Cedar Lake nursing staff
members failed to properly connect the tubing for her oxygen concentrator. After
the concentrator was property connected, Resident 16’s condition notably
improved. The record evidence further indicates that Cedar Lake staff failed to
consult the physician of a 72-year old male resident identified as Resident 18,
regarding the proper level at which his sleeping oxygen saturation was to be
maintained by use of a “bi-level positive airway pressure machine.”

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                                No. 11-60180

      Moreover, the Board’s decision affirming the amount of the civil monetary
penalty was reasonable. In arguing that the $9,500 penalty was unreasonable,
Cedar Lake repeats its argument, rejected by the ALJ and the Board below, that
it does not have a history of “uncorrected” regulatory violations. As the Board
explained, however, Cedar Lake does indeed have a history of noncompliance
with applicable regulations and has previously been subjected to several lesser
civil monetary penalties. See, e.g., Cedar Lake, 619 F.3d at 456-58 (rejecting
Cedar Lake’s challenge to a previous final determination upholding imposition
of a $5,000 penalty for a February 2008 violation of accident prevention
standards).   The Board correctly determined that the ALJ considered the
appropriate criteria in upholding the penalty amount. Therefore, the Board’s
decision in this respect was not unreasonable.
      For the foregoing reasons, we conclude that the Board’s determination was
supported by substantial evidence and otherwise reasonable. We therefore
DISMISS Cedar Lake’s petition for review.




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