363 F.3d 583 | 6th Cir. | 2003
Before: BOGGS, Chief Judge; BATCHELDER, Circuit
Judge; and OBERDORFER, Senior District Judge. [**] UNITED STATES COURT OF APPEALS _________________ FOR THE SIXTH CIRCUIT _________________ COUNSEL ARGUED: Geoffrey E. Webster, Columbus, Ohio, for W OODSTOCK C ARE C ENTER , (cid:88) Petitioner. Sheila Ann Hegy, OFFICE OF THE CHIEF (cid:45) Plaintiff-Petitioner, COUNSEL, Chicago, Illinois, for Respondent. ON BRIEF: (cid:45) Geoffrey E. Webster, Eric B. Hershberger, Columbus, Ohio, (cid:45) No. 01-3889 v. for Petitioner. Sheila Ann Hegy, OFFICE OF THE CHIEF (cid:45) >
COUNSEL, Chicago, Illinois, for Respondent. (cid:44) T OMMY T HOMPSON , (cid:45) _________________ S ECRETARY , and U NITED (cid:45) S TATES D EPARTMENT OF (cid:45) OPINION (cid:45) H EALTH AND H UMAN _________________ (cid:45) S ERVICES , (cid:45) BOGGS, Chief Judge. Woodstock Care Center Defendants-Respondents. (cid:45) (“Woodstock”), in an action against United States Department (cid:78) of Health and Human Services (“HHS”) and Tommy Thompson, in his capacity as Secretary of the HHS, seeks
On Review of the Departmental Appeals Board of the review of a Civil Monetary Penalty (“CMP”) imposed against United States Department of Health and Human Services. Woodstock by the Health Care Financing Administration No. 00-00356—Walter H. Rice, District Judge. (“HCFA”), [1] an agency within HHS. A survey of Woodstock, a long-term care facility for mentally disturbed residents
Argued: May 8, 2003 participating in the federal Medicare and Ohio Medicaid Decided and Filed: November 17, 2003 [*] programs, discovered numerous incidents in which residents had been able to escape from the facility (referred to as “elopement” by the parties) or to assault other residents. [**] The Honorable Louis F. Oberdorfer, Senior United States District Judge for the District of Columbia, sitting by designation. Administrative Law Judge (“ALJ”) and the Departmental asked. At 2 a.m., he once again attempted to scale the fence Appeals Board (“DAB”) within HHS, both of which affirmed. but failed. At 2:40 a.m., R11 called 911 and asked the police We affirm as well. to rescue him from Woodstock. At 4:45 a.m., he finally
managed to climb the fence and escape. At 5:30 a.m., he was I discovered by a Woodstock staff member wandering the streets without shoes or coat, despite the low temperatures in Woodstock is a long-term care skilled nursing facility the January night, and was convinced to return. On February (“SNF”) in Ohio that participates in the federal Medicare and 17 or 19, Woodstock installed an alarm on the fence, but due the Ohio Medicaid programs. It houses forty-three residents, to lack of training of Woodstock’s staff, the alarm only half of whom were diagnosed with dementia and more than became operational on March 15. two-thirds of whom displayed behavioral symptoms of dementia. On February 17, 1998, inspectors of the Ohio R11 was also violent towards other inmates. Despite Department of Health, under delegated authority from HHS having a known history of assault, he was assigned to share to supervise facilities like Woodstock, and acting upon a a room with a 73-year old resident with organic brain complaint by a Woodstock employee, launched a survey of disorder. R11 assaulted his roommate on three occasions in the facility, which concluded on March 4. The inspectors, December 1997. The first assault resulted in a scalp registered nurses with training and extensive experience in laceration that required stapling. A later assault included R11 such surveys, conducted four more visits to Woodstock, on pulling these staples. R11 also assaulted two other residents March 8, 11, and 15 and April 29. During their survey, they
while at Woodstock. In response, R11 received counseling noted the following incidents. and had his medication altered, but without effect. R11 received his first psychological evaluation on March 2, 1998. Resident 11 [2] was admitted on September 29, 1997, and On March 7, he assaulted another resident. suffered from organic brain disorder, ethanol alcohol dependency, and seizures. R11 wore an electronic tracking Resident 3, a 81-year old woman suffering Alzheimer’s device, which triggered an alarm when the device passed disease and advancing dementia, was admitted on January 4, through any door to the outside world. On January 3, 1998, 1998. Prior to her admission, she had been a frequent visitor R11 made his first attempt at elopement. He was discovered to her husband, also a resident at Woodstock. On the day of missing at 11:25 p.m. and was returned eighty minutes later her admission, another visitor who remembered R3 as a after being found in a roadside ditch by a cornfield, two miles
visitor held open the door for her, allowing her to escape. away. In response, Woodstock installed a camera trained on While she was only able to walk with the aid of a walker, she made it past a large, unfenced pond and rubble from a burned building to a nearby busy street corner. She was found there forty-five minutes later by Woodstock staff, who convinced [2] In compliance with federal privacy regulations, all residents are
her to return. referred to exclusively by a number (“Resid ent N ” or “R N ”) in all pu blic court do cuments. No. 01-3889 Woodstock Care Center v. Dept. 5 6 Woodstock Care Center v. Dept. No. 01-3889
of Health and Human Serv. of Health and Human Serv. Resident 5, a 74-year old man suffering from Alzheimer’s patients at risk and was therefore out of compliance with a disease and dementia, was admitted on January 2, 1998. At total of eighteen administrative requirements. While the admission, he was heavily medicated and barely aware, or underlying incidents had largely occurred before the “snowed.” Over the following months, Woodstock staff beginning of the survey, HCFA found that the conditions that experimented with altered dosage levels in order to allow him allowed them to occur had existed at least from March 4, to return to a more active mental state. However, whenever when the survey concluded, through March 16, when dosage levels sank too low, R5 became highly agitated and Woodstock took sufficient corrective measures. With respect demanded to leave. On one occasion, on February 20, he to the most serious administrative violation, deemed to be at became “unsnowed” unexpectedly and managed to escape the level creating immediate jeopardy to the residents, HCFA through a long, unlocked window, opening to an unfenced concluded that a sufficient remedy was in place on March 15. area, of the room in which Woodstock had placed him. He HCFA assessed a CMP against Woodstock of $33,650: was returned to Woodstock, displaying scratches, thirty $3,050 for each of the eleven days there was immediate minutes later. jeopardy to residents and $50 for each of the two remaining
days. HCFA also ordered additional monitoring of Resident 17, a 70-year old man diagnosed with Woodstock. However, HHS eventually rejected the schizophrenia, dementia, and Parkinson’s disease, was inspectors’ recommendations to terminate Woodstock’s admitted on December 2, 1997. R17, who had a history of provider agreement. verbal and physical aggression, delusions, combative behavior, and refusal of care and medications, was on On March 30, 1998, HCFA issued to Woodstock a Notice medication for seizures, Parkinson’s disease, and of Imposition of Remedies. Woodstock requested a hearing, anxiety/agitation. While on medication, R17 suffered violent under 42 C.F.R. § 498.40, in front of an HHS ALJ. At the mood swings between gentle states and extreme aggression. hearing, the three inspectors who had participated in the While at Woodstock, he committed more than half a dozen survey and three of Woodstock’s employees testified. The assaults against other residents. He attacked one resident four ALJ issued a decision in favor of HHS on all issues. times, causing hematoma on multiple occasions. The Woodstock appealed to the DAB, which affirmed the ALJ’s assaulted resident also needed 35 sutures to close a head decision in its entirety. Woodstock then filed a complaint wound caused by R17 breaking a chair on his head. R17 also against HHS in the United States District Court for the attacked several other residents. A total of 130 episodes of Southern District of Ohio. In it, Woodstock alleged that the R17's verbal and physical aggressiveness and combativeness DAB’s decision was not supported by reliable, probative, and were recorded. Nevertheless, R17 received no psychological substantial evidence, that the rationale supporting the decision or psychiatric care. On February 19, 1998, he committed was arbitrary and capricious, that the decision was contrary to another assault and was found wearing a belt around his neck. 42 C.F.R. § 482.25(h)(2), and that it violated Woodstock’s Woodstock discharged him to the Veterans Administration “federal Constitutional due process rights.” The district court the same day. concluded that the circuit courts of appeal have exclusive
jurisdiction over challenges to CMPs and therefore transferred Based on these reports and memoranda submitted by the the case to us. inspectors and on their recommendation, HCFA concluded that Woodstock had allowed conditions to persist that placed No. 01-3889 Woodstock Care Center v. Dept. 7 8 Woodstock Care Center v. Dept. No. 01-3889
of Health and Human Serv. of Health and Human Serv. II we must defer to it.’” St. Francis , 205 F.3d at 944 (quoting Shalala v. Guernsey Memorial Hosp. , 514 U.S. 87, 94-95 Some issues, while prominent earlier in the litigation, need (1995)) (internal alterations omitted). not concern us here. There are no substantial disputes remaining about the underlying facts. While the parties stress Federal regulations impose significant requirements on different facts and slight discrepancies remain on issues such SNFs, such as Woodstock, that participate in the federal as the exact length of certain elopements, the facts as stated Medicare and state Medicaid schemes. “Each resident must above are consistent with both accounts. Nor is there any receive and the facility must provide the necessary care and question regarding jurisdiction. The parties also agree on the services to attain or maintain the highest practicable physical, applicable standards of review. Woodstock has not appealed mental, and psychosocial well-being, in accordance with the the seventeen incidents of non-compliance at levels below comprehensive assessment and plan of care.” 42 C.F.R. those presenting immediate jeopardy to residents, so we need § 483.25. “The facility must ensure that . . . [e]ach resident not consider the daily CMP of $50. The sole issue remaining receives adequate supervision and assistance devices to is whether the undisputed facts constituted, as a matter of law, prevent accidents.” 42 C.F.R. § 483.25(h)(2). “Deficiency a violation of 42 C.F.R. § 483.25 that created immediate means a [facility’s] failure to meet a participation requirement jeopardy to the residents. specified in the Act or in [42 C.F.R. §§ 483.1-80].” 42 C.F.R.
§ 488.301. “Substandard quality of care means one or more We have jurisdiction to review imposition of CMPs. “Any deficiencies related to participation requirements under . . . person adversely affected by a determination of the Secretary § 483.25, . . . which constitute either immediate jeopardy to under this section may obtain a review of such determination resident health or safety; a pattern of or widespread actual in the United States Court of Appeals for the circuit in which harm that is not immediate jeopardy; or a widespread the person resides.” 42 U.S.C. § 1320a-7a. “Upon such
potential for more than minimal harm, but less than filing, the court shall have jurisdiction of the proceeding and immediate jeopardy, with no actual harm.” 42 C.F.R. of the question determined therein.” Ibid. Our standard of § 488.301. “Immediate jeopardy means a situation in which review is highly deferential. “The findings of the Secretary the provider’s noncompliance with one or more requirements with respect to questions of fact, if supported by substantial of participation has caused, or is likely to cause, serious evidence on the record considered as a whole, shall be injury, harm, impairment, or death to a resident.” 42 C.F.R. conclusive.” 42 U.S.C. § 1320a-7a. “In reviewing the § 488.301. Secretary [of HHS]’s interpretation of regulations, courts may overturn the Secretary’s decision only if it is ‘arbitrary, HHS is authorized to impose a CMP on a SNF that is out of capricious, an abuse of discretion or otherwise not in compliance with § 483.25. “The Secretary may impose a accordance with the law.’” St. Francis Health Care Ctr. v. civil money penalty in an amount not to exceed $10,000 for Shalala , 205 F.3d 937, 943 (6th Cir. 2000) (quoting Thomas each day of noncompliance.” 42 U.S.C. § 1395i- Jefferson Univ. v. Shalala , 512 U.S. 504, 512 (1994)). 3(h)(2)(B)(ii). “Penalties in the range of $3,050-$10,000 per “Further, courts are to ‘give substantial deference to an day are imposed for deficiencies constituting immediate agency’s interpretation of its own regulations.’” St. Francis , jeopardy.” 42 C.F.R. § 488.438(a)(1)(I). “The per day 205 F.3d at 943 (quoting Thomas Jefferson Univ. , 512 U.S. at [CMP] may start accruing as early as the date that the facility 512). “In sum, if ‘it is a reasonable regulatory interpretation was first out of compliance, as determined by [HHS] or the No. 01-3889 Woodstock Care Center v. Dept. 9 10 Woodstock Care Center v. Dept. No. 01-3889
of Health and Human Serv. of Health and Human Serv. State.” 42 C.F.R. §488.440(a)(1). “The per day [CMP] is prevent accidents.” 42 C.F.R. § 483.25(h)(2). The cited computed . . . for the number of days of noncompliance until incidents, regardless of whether they were accidents or not, the date the facility achieves substantial compliance, as constitute valid probative evidence as to whether Woodstock determined by [HHS] or the State.” 42 C.F.R. § 488.440(b). adequately supervised the residents. A resident so ill-
supervised that he has the opportunity to assault other In the current case, HHS concluded that Woodstock had residents repeatedly and severely may well also be failed to “ensure that . . . [e]ach resident receives adequate inadequately supervised to prevent accidents. More supervision and assistance devices to prevent accidents.” 42 significantly, a resident who has eloped and wanders an C.F.R. § 483.25(h)(2). In particular, HHS found that environment dangerous to him or her is completely without Woodstock had not taken the relevant security precautions, any supervision. Again, this is so regardless of whether the such as closer supervision of residents known to be violent or
elopement itself can legally be characterized as an accident. flight risks, including physical restraint where necessary, better psychological and psychiatric counseling and Woodstock also contends that HHS, in imposing a CMP, medication of such residents, and more effective perimeter held it to a strict liability standard and, under any standard of security. This failure resulted in immediate jeopardy to reasonable care, it had not acted wrongly. Woodstock residents. In particular, eloping residents suffered minor contends that the attacks and elopements were unprovoked injuries during their escapes and suffered the risk of more and unpredictable and could not have been prevented. serious injuries. Aggressive residents inflicted serious However, the ALJ and the DAB explicitly held that the injuries on other residents. Next, HHS concluded that the standard Woodstock faced was not a strict liability standard. conditions that allowed such incidents to occur existed from Rather, they found that Woodstock had failed to take all at least March 4 through March 14. For each of these eleven reasonable precautions against residents’ accidents. The days that the conditions were known to exist, HHS imposed question whether Woodstock took all reasonable precautions the minimum daily CMP for conditions creating immediate is highly fact-bound and can only be answered on the basis of jeopardy to residents, $3,050. The ALJ and the DAB expertise in nursing home management. As such, it is a affirmed this judgment. question the resolution of which we defer to the expert
administrative agency, the HHS. But even from our inexpert Woodstock contends that § 483.25(h)(2) is not applicable perspective, numerous actions undertaken by Woodstock to the incidents listed because none of them were “accidents.” would appear to be negligent. For example, allowing R11 to Rather, Woodstock argues, the elopements and assaults were continue to share a room with a helpless resident whom he intentional acts by the residents and intentional acts cannot be
had already several times severely assaulted seems to border characterized as accidents. The ALJ rejected this argument on recklessness. So does failing to restrain R11 after several by pointing out that the assaults were not intentional on part escape attempts in one night until he finally succeeded, as of the victims and therefore may be regarded as accidents. well as keeping R5 in a room with a large, unlocked window, However, we need not rule on the validity of this contention, despite the fact that he was known to be an escape risk. On which could render practically every assault or murder an this basis, we uphold HHS’s finding that Woodstock failed to accident, because, as the DAB recognized, the legal issue here meet the requisite standard of care. is whether Woodstock “ensure[d] that . . . [e]ach resident receive[d] adequate supervision and assistance devices to No. 01-3889 Woodstock Care Center v. Dept. 11 12 Woodstock Care Center v. Dept. No. 01-3889
of Health and Human Serv. of Health and Human Serv. Woodstock argues that at common law there was no III presumption of negligence against nursing homes whose For these reasons, we AFFIRM the Department of Health residents escape and nursing homes were not the insurers of and Human Service’s imposition of civil monetary penalties. the safety of their patients but needed only exercise reasonable care. This is only marginally relevant. In the current case, Woodstock was not sued in tort by an injured resident. Instead, Woodstock suffered an administrative penalty under regulations to which it consented when it was permitted to participate in the Medicare and Medicaid programs. These regulations can and do set a higher standard than the common law.
Finally, Woodstock argues that the eloping residents were not in immediate jeopardy and that the elopements therefore were not a valid basis for imposition of CMPs at the increased level. “Immediate jeopardy means a situation in which the provider’s noncompliance with one or more requirements of participation has caused, or is likely to cause , serious injury, harm, impairment, or death to a resident.” 42 C.F.R. § 488.301 (emphasis added). The only actual injuries in the record caused by the elopements were the scratches suffered by R5 and the possible aggravation of pneumonia suffered by R11 during the hours he spent outside during a January night without shoes or coat. The former was not a serious injury and the latter, speculation. Nevertheless, we uphold the HHS finding of immediate jeopardy. Given the number of elopements at Woodstock over the course of a few months, the vulnerable state of the residents, and the dangers of the outside world to residents in such a state, the conclusion that, earlier or later, the elopements would likely cause serious injury was supported by substantial evidence. Even in the absence of “actual harm,” a “widespread potential for more than minimal harm” is sufficient to sustain the CMP.
42 C.F.R. § 488.301.
NOTES
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[1] This decision was originally issued as an “unpublished decision” During the pend ency o f this action, HCFA was renamed the “Center filed on November 17, 2003. On March 23, 2004, the court designated for Me dicare and Me dicaid Services.” For co nsistency, it will the opinion as one recommended for full-text publication. nevertheless b e referred to as HCFA thro ughout. 1 No. 01-3889 Woodstock Care Center v. Dept. 3 4 Woodstock Care Center v. Dept. No. 01-3889 of Health and Human Serv. of Health and Human Serv. HCFA imposed the CMP under statutory and regulatory the fence surrounding a patio area over which R11 was authority requiring that facilities prevent accidents or risk of assumed to have fled. On January 21, R11 was noted accidents to residents. Woodstock appealed to an attempting to climb the fence at 1 a.m., but he returned when
