           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                       2        MeadowWood Nursing Home v. HHS                 No. 02-4115
        ELECTRONIC CITATION: 2004 FED App. 0107P (6th Cir.)
                    File Name: 04a0107p.06                                   Before: DAUGHTREY and COLE, Circuit Judges;
                                                                                       POLSTER, District Judge.**
UNITED STATES COURT OF APPEALS                                                                 _________________
                  FOR THE SIXTH CIRCUIT                                                              COUNSEL
                    _________________
                                                                         ARGUED: Shirley Moscow Michaelson, OFFICE OF THE
 MEADOWWOOD NURSING             X                                        CHIEF COUNSEL, Chicago, Illinois, for Respondents.
                                 -                                       ON BRIEF: Shirley Moscow Michaelson, OFFICE OF THE
 HOME,                                                                   CHIEF COUNSEL, Chicago, Illinois, for Respondents.
                    Petitioner, -                                        Geoffrey E. Webster, Columbus, Ohio, for Petitioner.
                                 -   No. 02-4115
                                 -
           v.                     >                                                            _________________
                                 ,
                                 -                                                                 OPINION
 UNITED STATES DEPARTMENT -                                                                    _________________
 OF HEALTH AND HUMAN             -
 SERVICES, and TOMMY             -                                          MARTHA CRAIG DAUGHTREY, Circuit Judge. By
 THOMPSON, Secretary of          -                                       means of the petition now before us, MeadowWood Nursing
                                 -                                       Home seeks review of a civil monetary penalty imposed by
 HHS,
                                 -                                       the Secretary of Health and Human Services (HHS) upon a
                  Respondents. -                                         finding that MeadowWood had failed to comply with certain
                                N                                        Medicare/Medicaid regulations. A survey conducted by the
  On Petition for Review from the Final Decision of the                  Ohio Department of Health on behalf of HHS turned up
        Secretary of Health and Human Services.                          several deficiencies in the facility, including MeadowWood’s
                      No. A-02-65.                                       failure to maintain the nursing home as free of accident
                                                                         hazards as possible, as required by 42 C.F.R. § 483.25(h)(1).
            Argued and Submitted: February 3, 2004                       Waiving review of all other violations for which civil
                                                                         penalties were imposed, MeadowWood now appeals only the
               Decided and Filed: March 2, 2004*                         § 483.25(h)(1) penalty assessed by the Centers for Medicare
                                                                         and Medicaid Services, which was sustained by an
                                                                         administrative law judge for the HHS Departmental Appeals
                                                                         Board and then upheld by an appellate panel of the Appeals
                                                                         Board. We conclude that the Secretary’s decision finding

    *
      This decision was originally issued as an “unpublished decision”       **
filed on March 2, 2004. On April 13, 2 004, the court designated the           The Honorable Dan Aaron Polster, United States District Judge for
opinion as one recommend ed for full-text publication.                   No rthern D istrict of O hio, sitting by designation.

                                  1
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certain equipment in the facility unsafe is supported by              10-day period from July 23 through August 1, 1998.
substantial evidence, and we therefore affirm.                        “Immediate jeopardy” means a situation in which a facility’s
                                                                      non-compliance has caused, or is likely to cause, serious
       PROCEDURAL AND FACTUAL HISTORY                                 injury, harm, impairment, or death to a resident. 42 C.F.R.
                                                                      § 488.301. The report also recommended a reduced penalty
  MeadowWood Nursing Home is a 53-bed long-term-care                  of $50 per day for 132 days from August 2 through
facility in rural southwestern Ohio. In July 1998, officials of       December 1, 1998. HHS suspended payment for new
the Ohio Department of Health, acting on behalf of the                Medicare/Medicaid admissions effective September 29, 1998,
Centers for Medicare and Medicaid Services, conducted a               and proposed to terminate its provider agreement with
survey to determine whether the facility was in compliance            MeadowWood in the absence of substantial compliance with
with the federal requirements for nursing homes participating         pertinent federal regulations.
in Medicare/Medicaid programs. They discovered, among
other deficiencies, that at least 12 of the 53 beds in the facility      MeadowWood disputed the findings of non-compliance and
were unsafe due to malfunctioning side rails.                         filed a request for hearing in accordance with 42 C.F.R.
                                                                      §§488.408(g). An administrative law judge held a four-day
   The two most serious cases involved residents designated           hearing and sustained the imposition of the penalty.
in the report as Resident 2 and Resident 3. Resident 2, a frail,      MeadowWood then appealed to a three-member panel of the
100-year-old man, was injured after he fell from a bed that           Departmental Appeals Board, which affirmed the decision of
was known to have a side rail that collapsed easily. He was           the administrative law judge. In its current petition for review
nevertheless returned to the same bed and was still in it             of these decisions, MeadowWood renews its arguments that
almost a week later when the side rail again collapsed without        it was in substantial compliance, that there was no evidence
warning while it was being inspected by the surveyors.                that its residents were in immediate jeopardy, and that it was
Resident 3, who suffered from multiple mental impairments             being held to a strict liability standard for events over which
but was physically strong and even violent at times,                  it did not have notice or control.
experienced two falls from his bed. The first occurred when
a side rail collapsed as he shook it, and the second when the                                DISCUSSION
bracket connecting the rail to the bed snapped altogether.
Resident 3 was then moved to a different bed that had a 3-4              Judicial review of decisions under 42 U.S.C. § 1320a-7a(e)
inch gap between the side rail and the mattress, which created        is limited to determining whether the findings are supported
a risk for entrapment.                                                by substantial evidence and whether the proper legal
                                                                      standards were employed. “Substantial evidence is defined as
   As a result of the condition of these two beds and some 10         such relevant evidence as a reasonable mind might accept as
or 12 others, the Ohio Department of Health concluded that            adequate to support a conclusion. In our review, we do not
MeadowWood was not in substantial compliance with 42                  consider the case de novo, nor resolve conflicts in the
C.F.R. §483.25(h)(1), which requires that a facility “must            evidence, nor decide questions of credibility.” Myers v.
ensure that . . . [t]he resident environment remains as free of       Secretary of Health & Human Services, 893 F.2d 840, 842
accident hazards as is possible.” Among the remedies                  (6th Cir. 1990) (internal citations omitted).
proposed to HHS was the payment of a civil monetary penalty
at the “immediate jeopardy” level of $3,050 per day for the
No. 02-4115       MeadowWood Nursing Home v. HHS                 5    6    MeadowWood Nursing Home v. HHS             No. 02-4115

   After careful review of the administrative record and the          Moreover, even without the deference normally accorded to
record on appeal, we conclude that there was substantial              determinations by the Secretary in administrative proceedings
evidence to support the decision of the administrative law            such as this, we conclude that the record contains substantial
judge to affirm the imposition of penalties under 42 C.F.R.           evidence to sustain the decision to impose the remedies at
§483.25(h)(1).       Moreover, we find no basis for                   issue.
MeadowWood’s claim that it was held to a standard of strict
liability. In addition to the evidence supporting a finding of                              CONCLUSION
immediate jeopardy with regard to two of the residents, the
administrative law judge found that 12 other beds were being            For the reasons set out above, we AFFIRM the decision of
maintained in an unsafe condition, that nursing home aides            the Secretary finding MeadowWood Nursing Home in non-
were not properly operating the beds, and that there was no           compliance with 42 C.F.R. § 483.25(h)(1) and imposing civil
evidence of a routine maintenance program. The judge also             monetary penalties therefor.
found that MeadowWood had not presented credible evidence
to the contrary.
  In reviewing the decision of the administrative law judge,
the appeals panel likewise rejected the provider’s argument
that it was being held to a strict liability standard:
  The sequence of the events relating to Resident 2
  discredits MeadowWood's claims that only a strict
  liability standard could lead to holding it responsible for
  the failures of the bed rails because the events were
  unpredictable. . . . Far from imposing a strict liability
  standard, the ALJ's treatment of the allegations relating
  to Resident 3 illustrates that he considered carefully
  whether each accident or hazard presented foreseeable
  risks that MeadowWood could practicably have
  prevented.
   We likewise conclude that the factual record is replete with
evidence that MeadowWood was on notice that the condition
of the beds in its facility posed a risk of injury to the residents
and could have taken steps to avoid the harm that befell at
least two of them as a result of the unsafe conditions that
existed in the nursing home. We thus find no merit to
MeadowWood’s attempt to re-cast what is essentially a
dispute of fact into a legal issue – indeed, we think that the
strict liability argument is essentially a red herring.
