649 F.3d 293
5th Cir.2011Background
- Windsor Place Nursing & Rehab Center participates in Medicare/Medicaid and was surveyed by CMS via the Mississippi State Dept. of Health.
- Sept. 24, 2004 survey found Windsor noncompliant with four regulations; three are at issue here, leading to CMPs and a proposed DPNA.
- A later Oct. 22 visit noted continued noncompliance on a fourth, and Oct. 28 visit found additional violations; Windsor remedied some by Oct. 27 but not all.
- Windsor challenged the CMS determinations before an ALJ; the DAB affirmed with limited reversals, and Windsor petitioned for review in 2009.
- The Fifth Circuit has jurisdiction to review final CMS actions under the APA, reviewing for substantial evidence and whether actions were arbitrary, capricious, or unlawful.
- The court ultimately dismissed Windsor’s petition, upholding the DAB’s determinations and the imposition of CMPs and DPNA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Windsor failed to perform a significant-change assessment. | Windsor argues no single-significant-change impact across multiple health areas. | CMS contends the record shows a significant change affecting multiple health areas including nutrition and pain. | Substantial evidence supports noncompliance. |
| Whether Windsor failed to follow its own preventive care plan for pressure sores (unavoidability). | Windsor maintained it provided early, more-than-routine care to prevent sores. | DAB found Windsor did not continue preventive measures in Jan–Feb 2004. | DAB’s finding of noncompliance upheld. |
| Whether Windsor’s residents had accessible call bells, as required by § 483.25(a)(3). | Windsor claimed call bells were accessible. | Evidence showed several residents could not reach call bells; witnesses did not rebut. | |
| Call bells were not accessible; noncompliance sustained. | |||
| Whether the self-administration of drugs regulation (§ 483.10(n)) and the date of substantial compliance supported DPNA. | Windsor argues substantial compliance before Dec. 21, 2004. | The record shows substantial compliance was not verifiable until Dec. 21, 2004. | DAB’s substantial-compliance date and DPNA imposition upheld. |
Key Cases Cited
- Livingston Care Ctr. v. Ctrs. for Medicare & Medicaid Servs., 388 F.3d 168 (6th Cir. 2004) (unavoidability requires routine preventive care for pressure sores)
- Cedar Lake Nursing Home v. U.S. Dep't of Health & Human Servs., 619 F.3d 453 (5th Cir. 2010) (APA review and substantial-evidence standards for CMS decisions)