                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 05a0826n.06
                                 Filed: October 7, 2005

                                           No. 04-3989

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


SANCTUARY AT WHISPERING                       )
MEADOWS,                                      )
                                              )
       Petitioner,                            )
                                              )
v.                                            )
                                              )   ON APPEAL FROM THE
TOMMY THOMPSON, Secretary, United             )   DEPARTMENT OF HEALTH AND
States Department of Health and Human         )   HUMAN SERVICES
Services; and UNITED STATES                   )
DEPARTMENT OF HEALTH AND                      )
HUMAN SERVICES,                               )   OPINION
                                              )
       Respondents.                           )
                                              )




Before: GUY, BATCHELDER, and GILMAN, Circuit Judges.

       RONALD LEE GILMAN, Circuit Judge. The Sanctuary at Whispering Meadows is a

nursing facility that participates in the Medicare and Medicaid programs. In October and November

of 1999, a survey conducted on behalf of the Centers for Medicare & Medicaid Services (CMS)

determined that Whispering Meadows was not in substantial compliance with Medicare regulations

regarding the prevention and treatment of pressure sores. CMS imposed a civil monetary penalty

(CMP) of $2,800 on Whispering Meadows as a result of the noncompliance. Whispering Meadows

appealed the imposition of the penalty to an administrative law judge (ALJ), who concluded that the

facility was not in compliance with the regulations and that the amount of the penalty was
Whispering Meadows v. Thompson
No. 04-3989

reasonable. The Departmental Appeals Board (DAB) of the Department of Health and Human

Services (HHS) affirmed the judgment of the ALJ in a thorough and well-reasoned opinion that was

supported by substantial evidence. We therefore AFFIRM the decision of the DAB.


                                       I. BACKGROUND

       Federal law requires that facilities participating in the Medicare and Medicaid programs

submit to periodic inspections, known as surveys, to ensure that they are in substantial compliance

with all federal requirements for skilled nursing facilities. These surveys are generally conducted

by the health departments of the various states on behalf of CMS.

      The Ohio Department of Health conducted such a survey at Whispering Meadows in October

and November of 1999. During this survey, Whispering Meadows was found to be out of

compliance with 42 C.F.R. § 483.25(c)(1), which requires participating facilities to ensure that “[a]

resident who enters the facility without pressure sores does not develop pressure sores unless the

individual’s clinical condition demonstrates that they were unavoidable.” In particular, the survey

found that one patient, R2 (referred to by the designation used by the government to protect his

privacy), had been admitted to Whispering Meadows without pressure sores and had subsequently

developed them after beginning to take psychoactive drugs that decreased his mobility. The

surveyor reviewed R2’s medical records and concluded that the pressure sores were not clinically

unavoidable.

        CMS agreed with the surveyor and imposed a CMP of $2,800 on Whispering Meadows.

Whispering Meadows appealed CMS’s determination, but an ALJ upheld the findings of the Ohio



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No. 04-3989
Department of Health and the imposition of the CMP. The DAB affirmed the ALJ’s decision. On

appeal to this court, Whispering Meadows claims that the ALJ erred by applying an incorrect burden

of proof, that the facility was in substantial compliance with all applicable nursing home standards,

and that the CMP imposed was excessive.


                                           II. ANALYSIS

A.      Standard of review

       This court must affirm the Secretary’s findings if they are “supported by substantial evidence

on the record considered as a whole.” 42 U.S.C. § 1320a-7a(e). This “standard of review is highly

deferential” with respect to issues of both law and fact. Woodstock Care Ctr. v. Thompson, 363

F.3d 583, 588 (6th Cir. 2003). In reviewing the Secretary’s interpretation of HHS regulations, the

court “may overturn the Secretary’s decision only if it is arbitrary, capricious, an abuse of discretion

or otherwise not in accordance with the law.” Id. (citations and quotation marks omitted).

B.      The burden of proof imposed upon Whispering Meadows

      We must first address Whispering Meadows’s claim that the ALJ applied the wrong burden-

of-proof formulation in requiring the facility to show compliance with the regulations by a

preponderance of the evidence. According to Whispering Meadows, the burden-of-proof standard

enunciated in Hillman Rehabilitation Center, D.A.B. No. 161 (1997), violates section 7(c) of the

Administrative Procedure Act (APA), which places the burden of proof on the “proponent of a rule

or order.” 5 U.S.C. §556(d). Whispering Meadows also claims that the Hillman rule is a substantive

rule that was not promulgated under the APA’s notice-and-comment procedures.



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No. 04-3989
       We need not review the DAB’s decision regarding the proper standard of review, however,

because the evidence in this case is such that HHS would prevail regardless of which party bears the

burden of proof. Thus, the ALJ’s assignment of the burden of proof did not affect the disposition

below. See, e.g., Batavia Nursing & Convalescent Ctr. v. Thompson, 129 Fed. Appx. 181, 184 (6th

Cir. 2005) (unpublished) (declining to consider whether the Hillman rule violates the APA because

substantial evidence supported the finding that the facility was out of compliance).           We will

eventually be required to examine the merits of Hillman and rule on the burden-of-proof issue, but

this case, in which the evidence so clearly favors HHS, is not the appropriate vehicle for that

consideration.

C.     The ALJ’s conclusions that Whispering Meadows was not in compliance with
       42 C.F.R. § 483.25(c)

       Federal regulations require nursing facilities to ensure that a resident who enters the facility

without pressure sores does not develop pressure sores unless the individual’s clinical condition

demonstrates that they were unavoidable. 42 C.F.R. § 483.25(c). The DAB issued a lengthy and

well-reasoned opinion that upheld the ALJ’s conclusion that the pressure sores were not

unavoidable. In particular, the DAB relied on several findings that demonstrate the failure of

Whispering Meadows to aggressively prevent and treat R2’s pressure sores, including the following:

(1) R2 was placed on psychoactive medication that decreased his mobility in June of 1999, but his

plan of care did not take this into account until August of 1999; (2) R2’s plan of care called for daily

skin assessments, but the physician’s orders and treatment records called for weekly rather than




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No. 04-3989
daily assessments; and (3) during the periods of greatest susceptibility to pressure sores, the nursing

records document only sporadic repositioning of R2.

      Substantial evidence also supports the ALJ’s decision to credit the determination of the nurse

surveyor over Dr. Nagle’s conclusions that the pressure sores found on R2 were unavoidable. The

nurse surveyor appeared at the hearing, testified under oath, and was subject to cross-examination,

whereas Dr. Nagle did not appear. Moreover, Dr. Nagle’s opinion was submitted as a letter rather

than an affidavit affirmed under penalty of perjury. The letter also failed to describe the analytical

process that led the doctor to conclude that R2’s pressure sores were unavoidable.               Most

significantly, the ALJ noted that Dr. Nagle first expressed the opinion that R2’s pressure sores might

be unavoidable only after it became apparent that the resident’s condition would have a serious

negative impact on Whispering Meadows.

D.     The ALJ’s conclusion that the amount of the CMP was reasonable

      In affirming the ALJ’s holding, the DAB did not abuse its discretion in finding that the CMP

of $2,800 imposed by CMS was reasonable. CMS is permitted by the regulations to impose a

penalty ranging from $1,000 to $10,000 for deficiencies of this type. 42 C.F.R. §488.438(a)(2).

In this case, the CMP is relatively low, and sufficient evidence supports the ALJ’s finding that the

penalty will not compromise resident health and safety at Whispering Meadows.


                                        III. CONCLUSION

       For all of the reasons set forth above, we AFFIRM the decision of the DAB.




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