                                                                    [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 11-10619
                                      ________________________

                                           Agency No. A-10-76


AZALEA COURT,

llllllllllllllllllllllllllllllllllllllll                         Petitioner,

                                             versus

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES,
CENTERS FOR MEDICARE & MEDICAID SERVICES,

llllllllllllllllllllllllllllllllllllllll                         Respondent.

                                     ________________________

                                            No. 11-13072
                                      ________________________

                                           Agency No. A-10-76


WEST PALM BEACH HEALTHCARE ASSOCIATES, LLC,
f.k.a. Azalea Court,

llllllllllllllllllllllllllllllllllllllll                         Petitioner,
                                                versus

UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Centers for Medicare & Medicaid Services,

llllllllllllllllllllllllllllllllllllllll                       Respondent.
                                      ________________________

                                            No. 11-14210
                                      ________________________

                                           Agency No. A-10-76


WEST PALM BEACH HEALTHCARE ASSOCIATES, LLC,
f.k.a. Azalea Court,

llllllllllllllllllllllllllllllllllllllll                           Petitioner,

                                                versus

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES,
CENTERS FOR MEDICARE AND MEDICAID SERVICES,

llllllllllllllllllllllllllllllllllllllll                       Respondent.
                                      ________________________

                              Petitions for Review of a Decision of the
                             Department of Health and Human Services
                                    ________________________

                                             (July 18, 2012)

Before WILSON, ANDERSON and HIGGINBOTHAM,* Circuit Judges.


         *
         Honorable Patrick E. Higginbotham, United States Circuit Judge for the Fifth Circuit,
sitting by designation.

                                                   2
PER CURIAM:

      In these consolidated appeals we review a final decision of the Secretary of

Health and Human Services that upholds the imposition of a civil money penalty

for a skilled nursing facility’s failure to maintain compliance with Medicare

participation requirements concerning health and safety. With the benefit or oral

argument and after carefully considering the briefs and the record, we dismiss the

petitions in the cases numbered 11-10619 and 11-13072, and we deny the petition

in the case numbered 11-14210.

      Skilled nursing facilities that participate in the Medicare and Medicaid

programs may be subject to civil money penalties if they are not in substantial

compliance with minimum standards of care. 42 U.S.C. § 1395i-3(h). The

Petitioner, Azalea Court, is a skilled nursing facility that participates in Medicare

and Medicaid. Multiple deficiencies were identified during a survey of Azalea

Court, and the Secretary concluded that residents were in “immediate jeopardy.”

See 42 C.F.R. § 488.301.

      The findings of fact made by the Secretary are conclusive if supported by

substantial evidence. 42 U.S.C. § 1320a-7a(e). Substantial evidence means “such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427

                                          3
(1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S. Ct.

206, 217 (1938)). We review the Secretary’s conclusions of law de novo.

Emerald Shores Health Care Assocs. L.L.C. v. U.S. Dep’t of Health & Human

Servs., 545 F.3d 1292, 1296 (11th Cir. 2008).

      As an initial matter we address our jurisdiction to review the three petitions

before the Court. Each petition challenges the same substantive conclusions, but

each was filed at a different time during the proceedings. Twice, we questioned

whether the Department Appeals Board of the U.S. Department of Health and

Human Services had issued a final and appealable decision. There is no dispute,

however, that the third petition for review, No. 11-14210, is timely. Because we

have jurisdiction over the third petition and each petition is substantively the

same, we need not address whether we have jurisdiction to review the first two

petitions.

      Azalea Court devotes a substantial portion of its briefs to the argument that

the Secretary did not properly allocate the burden of proof in the administrative

proceedings. We need not decide the issue, however, because the evidence weighs

heavily in favor of the agency and we would deny the petition regardless of who

bears the burden of proof. Azalea Court had a deficient system for preventing

elopement. It failed to control the hazards of residents who smoke. And it

                                          4
neglected the wound care of Resident 3. There is more than substantial evidence

that supports each of the Secretary’s conclusions, and we agree that each

deficiency rises to the level of immediate jeopardy.

       Azalea Court also argues that the Secretary acted arbitrarily and

capriciously by assessing a per diem civil monetary penalty rather than a penalty

based on a particular instance of noncompliance. We find no error in the penalty

imposed. The Center for Medicare and Medicaid Services may impose a civil

money penalty for “the number of days a facility is not in substantial compliance

with one or more participation requirements . . . .” 42 C.F.R. § 488.430(a).

Azalea Court’s noncompliance posed an immediate jeopardy, and the per diem

monetary penalty properly accounts for each day of noncompliance.1

       The petitions in the cases numbered 11-10619 and 11-13072 are

DISMISSED, and the petition in 11-14210 is DENIED.




       1
        We have not considered Petitioner’s argument that the regulations are unconstitutionally
vague. The argument was raised for the first time in this appeal, and no extraordinary
circumstances exist that excuse the failure to preserve the argument. See 42 U.S.C. 1320a-7a(e).

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