Somerset Nursing & Rehabilitation Facility v. United States Deparment of Health & Human Services , 502 F. App'x 513 ( 2012 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a1086n.06
No. 11-3161
FILED
UNITED STATES COURT OF APPEALS
Oct 18, 2012
DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
SOMERSET NURSING AND REHABILITATION )
FACILITY, )
)
Petitioner, ) ON PETITION FOR REVIEW
) FROM THE DEPARTMENTAL
v. ) APPEALS BOARD OF THE
) UNITED STATES DEPARTMENT
UNITED STATES DEPARTMENT OF HEALTH ) OF HEALTH AND HUMAN
AND HUMAN SERVICES; KATHLEEN ) SERVICES
SEBELIUS, Secretary of the United States )
Department of Health and Human Services, )
)
Respondents. )
)
Before: SILER, DAUGHTREY, and WHITE, Circuit Judges.
HELENE N. WHITE, Circuit Judge. Petitioner Somerset Nursing and Rehabilitation
Facility (“Somerset”) petitions this court for review of the decisions of the Departmental Appeals
Board (“DAB”) and Administrative Law Judge (“ALJ”) upholding the Secretary of the United States
Department of Health and Human Services’ (“Secretary”) imposition of a monetary penalty for
Somerset’s failure to comply with 42 C.F.R. §§ 483.13(b) and (c). We affirm in part and reverse in
part.
I.
Somerset is a skilled-nursing home facility in Kentucky that participates in the Medicare
program. On February 6, 2008, Somerset admitted Resident #9, a 5'11", 199 pound, 85-year-old
male resident who was generally alert but also had been diagnosed with dementia, chronic renal
failure, congestive heart failure, chronic obstructive pulmonary disease, diabetes mellitus, and
depression. Resident #9 usually moved about Somerset in a wheelchair; however, he was able to
walk occasionally. Resident #9 was placed in Somerset partially because his family was concerned
that he made sexual advances towards his wife, who no longer recognized him due to her dementia.
After Resident #9's admission to Somerset, he began making unsolicited sexual advances toward
some of the female residents. Somerset’s records show the following:
April 10, 2008: Brushed up against a cognitively-impaired female in the hallway
May 10, 2008: Found in room of severely cognitively impaired female resident
“feeling of her.” (Although this description was included in Somerset’s behavior
logs, Somerset’s internal investigation notes state that staff “observed [Resident #9]
reaching towards [resident’s] shirt but did not observe direct contact.”)
May 18, 2008: Touched cognitively impaired female resident at several places on
her body. (Although this description was included in Somerset’s behavior logs,
Somerset’s internal investigation notes state “staff observed [Resident #9] reaching
towards [resident’s] arms, chest and abdomen areas . . . No one substantiated contact
occurred between Residents.”)
May 22, 2008: Made inappropriate sexual advances toward female resident and did
not stop when asked.
May 28, 2008: Made sexual advances toward female resident and tried to get into
the female resident’s room.
May 29, 2008: Found in room of resident whom he had made sexual advances
toward the previous day and resident complained that he tried to touch her
inappropriately.
May 30, 2008: Made sexual advances toward female resident.
June 18, 2008: Made sexually suggestive remarks towards female resident.
2
July 8, 2008: Kissed and fondled breast of cognitively impaired female resident.
(Although this description was included in Somerset’s behavior logs, Somerset’s
internal investigation notes state “[s]taff observed [Resident #9] pursing his lips in
a kissing fashion towards [resident]. Both residents were in wheelchairs and
proximity was not close enough for [Resident #9] to make contact with his lips. As
staff approached to intervene, [Resident #9] was observed reaching towards her chest
area.”)
August 21, 2008: Forcefully pinched right breast of female resident.
August 22, 2008: Found in female resident’s room sitting by her bed.
August 22, 2008: Found holding onto the shirt of a female resident that was partially
undone.
August 23, 2008: Found reaching for a female resident’s breast.
August 23, 2008: Found in doorway of female resident’s room.
October 16, 2008: Witnessed grabbing breast of Resident #10 who has dementia.
December 10, 2008: Invited a female resident into his room.
Resident #9 had a history of making uninvited sexual advances towards women and had been
asked to leave several nursing homes prior to his admission to Somerset. The staff first spoke with
Resident #9 after the April 10, 2008 incident and discussed the need to respect the other residents’
“personal space.” Although the staff interviewed the female resident involved, she was unable to
express any concern about her interaction with Resident #9 due to her cognitive impairment.
After the incident on May 10, 2008, Somerset had a “teachable moment,” resulting in staff
members being instructed to monitor Resident #9. The Director of Nursing also interviewed the
female resident involved. The resident was unable to describe what had transpired because of her
cognitive impairment; however, the Director of Nursing did not note any adverse effects from this
3
incident. On May 16, 2008, a psychiatric physician’s assistant consulted with Resident #9 regarding
his behavior.
After the incident on May 18, 2008, Somerset advised Resident #9 to stay away from all
female residents and informed its staff to observe Resident #9 “at all times.” However, this
instruction did not result in constant monitoring of Resident #9. Further intervention methods
included encouraging Resident #9's family members to visit and again instructing staff members to
monitor him after the May 22, 2008 incident, as well as having another psychiatric consultation,
involving Resident #9 in diversionary tactics such as gardening, and threatening discharge, after the
May 29, 2008 incident. After the incident on July 8, 2008, Somerset advised fourteen staff members
that Resident #9 would be on fifteen-minute checks. Somerset also warned Resident #9 and his
family that he would be discharged if his behavior continued.
After Resident #9 forcefully pinched the breast of a female resident on August 21, 2008, he
began weekly meetings with social services to discuss his behavior. Somerset’s staff members were
again instructed to monitor Resident #9 and keep him away from the female residents. On
September 12, 2008, Somerset held a faculty-wide in-service on abuse, although there is no record
that Resident #9's behavior was discussed at this time.
Somerset decided it had exhausted all possible intervention methods after the October 16,
2008 incident and initiated discharge proceedings. Somerset’s staff members were also further
instructed to monitor Resident #9 and prevent him from approaching female residents. Resident #9’s
family appealed the discharge and Somerset was forced to keep Resident #9 at its facility pending
the appeal. Between January 7, 2009 and January 9, 2009, Somerset implemented additional
4
intervention in the form of one-on-one monitoring of Resident #9. On January 9, 2009, Resident #9
was finally discharged from Somerset.
In the interim, the Kentucky Cabinet of Health and Family Services conducted two
recertification surveys at Somerset, one from January 5- 9, 2009, and another on January 26, 2009.
According to the surveys, Somerset was not in substantial compliance with eleven regulatory
requirements, eight of which posed immediate jeopardy. Two of Somerset’s deficiencies that posed
immediate jeopardy pertained to Somerset’s handling of Resident #9’s behavior towards the other
residents. Specifically, Somerset was found in violation of 42 C.F.R. § 483.13(b) for failing to
protect its residents from sexual abuse and in violation of 42 C.F.R. § 483.13(c) for failing to
implement its abuse policy in six of the seven required components for long-term care facilities,
training, prevention, identification, protection, reporting and response.
Based on Somerset’s conduct, the Centers for Medicare and Medicaid Services (“CMS”), an
agency within the United States Department of Health and Human Services (“DHHS”), imposed a
civil monetary penalty (“CMP”) of $3,050 per day from May 10, 2008 - January 14, 2009, the lowest
penalty that can be assessed upon a finding of immediate jeopardy. See 42 C.F.R. § 488.438(a)(1)(i).
CMS also imposed a CMP of $150 per day from January 15, 2009 - January 29, 2009, which
Somerset does not appeal here.
Somerset appealed the penalty to the DHHS Departmental Appeals Board. The ALJ held a
telephonic hearing on March 22, 2010 and issued a decision on June 24, 2010. In his decision, the
ALJ only addressed two of Somerset’s eleven deficiencies, both of which pertained to Resident #9’s
conduct. The ALJ upheld the deficiencies and CMP award, specifically finding that Somerset failed
5
to substantially comply with the requirements of 42 C.F.R. §§ 483.13(b) and (c) due to its failure to
protect its residents from Resident #9’s abuse and failure to implement its anti-abuse policy,
respectively. The ALJ also concluded that the immediate jeopardy finding was not clearly erroneous.
The Departmental Appeals Board Appellate Division (“DAB”) issued a decision on
December 23, 2010 that affirmed the findings and conclusions of the ALJ.
II.
This Court reviews the imposition of a CMP under a highly deferential standard. Woodstock
Care Ctr. v. Thompson, 363 F.3d 583, 588 (6th Cir. 2003). The Secretary’s factual findings are
conclusive “if supported by substantial evidence on the record considered as a whole.” Id.Substantial evidence review requires an examination of the entire record and taking into account
“whatever in the record fairly detracts from the weight of the evidence below.” Claiborne-Hughes
Health Ctr. v. Sebelius, 609 F.3d 839, 843 (6th Cir. 2010). However, such review does not include
reviewing the case de novo, resolving conflicts in evidence or deciding questions of credibility. Id.The pertinent question is whether “on the record under review, ‘it would have been possible for a
reasonable jury to reach the Board’s conclusion.’” Id. (citing Allentown Mack Sales & Serv. Inc. v.
NLRB, 522 US 359, 366-67 (1998)). “In reviewing the Secretary [of HHS]’s interpretation of
regulations, courts may overturn the Secretary’s decision only if it is arbitrary, capricious, an abuse
of discretion or otherwise not in accordance with the law.” Woodstock Care Ctr., 363 F.3d at 588
(internal citations omitted).
III.
6
A skilled nursing facility must comply with the requirements set forth in 42 U.S.C. § 1395i-3
and 42 C.F.R. § 483.1 et seq., in order to be eligible for reimbursement under the federal Medicare
and Medicaid programs. Claiborne-Hughes, 609 F.3d at 841. Under 42 C.F.R § 483.13(b), a skilled
nursing facility resident “has the right to be free from verbal, sexual, physical, and mental abuse,
corporal punishment, and involuntary seclusion.” The parties do not dispute that the regulations
require Somerset to take “reasonable steps to prevent abusive acts.” See Pinehurst Healthcare &
Rehab. Ctr. v. CMS, DAB No. 2246, 2009 WL 1455339 (2009) (quoting Western Care Mgmt. Corp.
v. CMS, DAB No. 1921, at 12, 2004 WL 1235824 (2004)). The question is whether the actions
taken by Somerset to protect its residents from Resident #9 were reasonable.
CMS’s Statement of Deficiencies (“SOD”) with respect to Somerset’s violation of 42 C.F.R.
§ 483.13(b) states:
The facility had knowledge since May 10, 2008, that Resident #9 had an ongoing
history of exhibiting sexually aggressive behaviors and had attempted to sexually
abuse fourteen female residents (five identified residents . . . and nine unidentified).
Resident #9 had subjected six of the fourteen female residents to inappropriate sexual
contact. Additionally, these sexually aggressive behaviors resulted in three residents
. . . exhibiting signs of fear and/or distress. However, there was no evidence the
facility implemented safeguards to ensure residents were not further subjected to
sexual abuse and were provided protection from Resident #9’s sexual aggressive
behaviors. Resident #9 continued to move freely throughout the facility until being
placed on one-on-one supervision on January 7, 2009. These failures placed female
residents in the facility at continued risk for serious physical and mental harm.
DHHS claims that the only reasonable safeguards would have been either one-on-one, or
constant line-of-sight, monitoring of Resident #9 by a designated staff member, or earlier discharge
of Resident #9 from the facility. Additionally, DHHS contends Somerset should have consulted a
physician regarding Resident #9’s sexual aggression. In contrast, Somerset claims that it was
7
reasonable to gradually implement more severe intervention methods and initiate discharge
proceedings once it became clear that alternate methods would not be effective. Somerset also
maintains that a method such as continuous monitoring would be unreasonable as Somerset did not
have the resources to implement that measure and was not aware that it would have to do so when
it accepted Resident #9 for admission.
Congress uses the outcome-based approach to ensure that facilities receiving federal funds
are delivering high-quality care. Lake Mary Health Care v. CMS, DAB 2081 (2007). Under this
approach, facilities have “flexibility to select the most appropriate methods but the corresponding
responsibility to ensure that the selected methods are effective for achieving the outcomes specified
in the statute and implementing regulations.” Id. “[T]he outcome being looked at is the quality of
care being provided, not just the health outcome for each resident.” Virginia Highland Health
Rehab. Ctr., DAB No. 2339 (2010), 2010 WL 4038751 (quoting Spring Meadows Health Care Ctr.
v. Ctrs. for Medicare & Medicaid Servs.,, DAB No. 1966, at 19 (2005).
There are conflicting decisions by the Departmental Appeals Board about whether an incident
of abuse conclusively demonstrates that a facility has not taken reasonable steps to protect its
residents. In Greenery Extended Care Center v. Health Care Financing Administration, although
it was not disputed that the facility “had taken all reasonably appropriate measures to assure that its
residents were free from verbal, sexual, physical and mental abuse, corporal punishment and
involuntary seclusion,” the ALJ upheld a penalty imposed by CMS based on one incident of abuse
by a contracted nurse’s aide against a resident. DAB CR707 (2000), 2000 WL 1682776. In so
doing, the ALJ stated “[o]bviously, where even a single instance of abuse has occurred, the resident’s
8
right to be free from abuse has been violated and, by implication, the facility has not complied with
the requirements of 42 C.F.R. § 483.13(b).” Id.Conversely, in Oakwood Manor Nursing Home v. CMS, the ALJ disagreed with the Greenery
Extended Care Center decision and stated “[a]lthough 42 C.F.R. § 483.13(b) states that a resident
has a right to be free from abuse, I do not read this to mean that where an isolated instance of abuse
has occurred, the facility is automatically deficient under this regulation because a resident’s right
to be free from abuse has been violated.” DAB CR818 (2001), 2001 WL 1172269. Instead, “[a]n
occurrence of abuse creates a presumption of noncompliance with the requirements of 42 C.F.R. §
483.13(b) which a facility is obliged to rebut. A facility will rebut that presumption by proving that
it did indeed take all necessary steps to prevent the abuse from occurring.” Id. However, even where
there have not been any incidents of abuse, a facility is still deficient “if it either deliberately or
negligently acts in some way that presents either actual abuse or the potential for abuse.” Id.In this case, the ALJ found:
For a period of several months, Petitioner failed to prevent Resident # 9 from
engaging in verbal and physical violence against other residents and from
perpetrating sexual abuse against some female residents. The interventions that
Petitioner used when Resident #9 engaged in abusive conduct were woefully
ineffective in protecting other residents from Resident #9. Petitioner’s failure to
protect its residents from Resident #9 reveals a fundamental misunderstanding on the
part of Petitioner and its staff of the need to take every reasonable measure to protect
its residents from abuse. Petitioner’s noncompliance, therefore, was not limited just
to the way in which its staff dealt with Resident #9 but was a systemic failure by
Petitioner and its staff to develop an effective system for dealing with abusive
residents.
The ALJ also described Somerset’s intervention methods as “halfhearted,” “tepid” and “totally
inappropriate to the situation.”
9
Given Resident #9’s advanced age and health impairments, it may not have been reasonable
to require Somerset to implement the most severe intervention methods, such as discharge and
constant monitoring, after the first incident when the risk that Resident #9 posed to other residents
remained unclear. Throughout May 2008, Somerset instructed its staff to monitor Resident #9, sent
him for a psychiatric consultation, sought assistance from Resident #9’s family members, and even
threatened to discharge him from the facility. In July, 2008, Somerset also commenced limited
monitoring in the form of fifteen minute checks of Resident #9, although this was in response to
Resident #9 wandering away from the facility, rather than his harassment of the female residents.
Somerset’s intervention methods appeared to be effective in June and July as the number of incidents
involving Resident #9 were significantly reduced, there being a single incident involving only
remarks in June, and a single incident while under observation in July.
Nevertheless, after Resident #9 forcefully pinched the breast of another resident in August,
it should have been apparent to Somerset that its intervention methods were not completely effective
and that its female residents were still at risk of being harmed by Resident #9. Yet, Somerset
implemented no additional protections or interventions other than requiring Resident #9 to attend
weekly meetings with social services. Although Somerset held an in-service on abuse, there is no
indication that event resulted in increased monitoring of Resident #9 or any other action that would
protect the female residents from his behavior. Even after the October 16, 2008 incident, when
Somerset realized discharge was necessary, it did not take any further action to protect its residents
except to reiterate that staff members were supposed to monitor Resident #9. It was not until January
7, 2009, that Somerset finally implemented one-on-one monitoring of Resident #9. As a result of
10
Somerset’s inaction, Resident #9 was able to engage in inappropriate sexual conduct with various
residents after August 21, 2008. Accordingly, there is substantial evidence to support the ALJ’s and
DAB’s conclusion that the limited intervention methods employed by Somerset were not reasonable.
IV.
Somerset next argues that CMS clearly erred by finding level 4/immediate jeopardy. To
warrant a finding of immediate jeopardy, there must exist “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. The CMS guidelines
in its State Operations Manual (“SOM”) explain that immediate jeopardy exists when there is a
“crisis situation in which the health and safety of individual(s) are at risk” or where there is a “high
potential” or “likelihood” that non-compliance will cause death or serious harm “in the very near
future.” State Operations Manual, Chapter 3-Additional Program Activities (Rev. 24, 01-26-07),
available at http://cms.gov/Regulations-and-Guidance/Guidance/Manuals/downloads //som107c03.
pdf., at 38. The SOM also gives examples of “triggers” that “describe situations that will cause the
surveyor to consider if further investigation is needed to determine the presence of Immediate
Jeopardy.” State Operations Manual, Appendix Q- Survey Protocol for Long Term Care Facilities-
Part I (Rev. 42, 05-21-04), available at http://cms.gov/Regulations-and-Guidance/Guidance/ Manuals
/downloads//som107ap_q_immedjeopardy.pdf., at 4. Among the triggers listed for a “[f]ailure to
protect from abuse” finding are “[n]on-consensual sexual interactions; e.g., sexual harassment,
sexual coercion or sexual assault.” Id. at 5.
11
In contrast to level 4/immediate jeopardy, the SOM describes lower level deficiencies in the
following manner:
Level 2 is noncompliance that results in no more than minimal physical, mental
and/or psychosocial discomfort to the resident and/or has the potential (not yet
realized) to compromise the resident’s ability to maintain and/or reach his/her highest
practicable physical, mental and/or psychosocial well-being as defined by an accurate
and comprehensive resident assessment, plan of care, and provision of services.
Level 3 is noncompliance that results in a negative outcome that has compromised
the resident’s ability to maintain and/or reach his/her highest practicable physical,
mental and psychosocial well-being as defined by an accurate and comprehensive
resident assessment, plan of care, and provision of services. This does not include
a deficient practice that only could or has caused limited consequence to the resident.
State Operations Manual, Appendix P- Survey Protocol for Long Term Care Facilities-Part I (Rev.
42, 04-24-09), available at http://www/cms.gov/manuals/Downloads/som107ap_p_ltcf.pdf, at 91.1
1
Somerset aptly observes that the descriptions of psychosocial outcomes corresponding to
the various levels do not support a finding of a level 4/immediate jeopardy deficiency. Examples
of negative psychosocial outcomes at level 2 are “[i]ntermittent sadness” reflected in tearfulness and
crying, “[f]eelings and/or complaints of discomfort or moderate pain,” “[f]eeling of shame or
embarrassment without a loss of interest in the environment and the self,” “[f]ear/anxiety that may
be manifested as expressions or signs of minimal discomfort (e.g., verbal expressions of fear/anxiety;
pulling away from a feared object or situation) or has the potential, not yet realized, to compromise
the resident’s well-being,” or “[v]erbal or nonverbal expressions of anger that did not lead to harm
to self or others.” Id. at 98-99. Level 3 negative psychosocial outcomes include “[c]hronic or
recurrent fear/aniety that has compromised the resident’s well-being and that may be manifested as
avoidance of the fear-inducing situation(s) or person(s),” “[a]nger that has caused aggression that
could lead to injuring self or others,” or a situation where “[p]ain or physical distress has become
a central focus of the resident’s attention.” Id. at 97-98. In contrast, examples of negative
psychosocial outcomes at level 4 are “[s]uicidal ideation/thoughts and preoccupation,” “[e]ngaging
in self-injurious behavior that is likely to cause serious injury, harm, impairment, or death to the
resident (e.g., banging head against wall),” “[r]ecurrent . . . debilitating fear/anxiety that may be
manifested as panic, immobilization, screaming, and/or extremely aggressive or agitated behavior(s)
(e.g., trembling, cowering) in response to an identifiable situation (e.g., approach of a specific staff
member),” or “[o]ngoing, persistent expression of dehumanization or humiliation in response to an
identifiable situation, that persists regardless of whether the precipitating event(s) has ceased and has
resulted in a potentially life-threatening consequence.” Id. at 96.
Although the level 4 psychosocial outcomes do not appear to apply, the administrative
12
Had Somerset’s deficiencies been ascribed a level 2 or 3 rating, the CMP range would have been
$50-$3,000, per day, rather than $3,050-$10,000, per day.
Somerset argues that because the intervention methods it implemented to protect other
residents from Resident #9, coupled with his physical impairment, significantly reduced the
likelihood that another resident would be seriously harmed, a lower level deficiency was warranted.
We acknowledge that this a close call; one could reasonably conclude that a lesser level of harm was
established. However, given Resident #9’s persistent conduct and Somerset’s failure to implement
reasonable intervention methods to protect its female residents from Resident #9’s harassing and
abusive conduct, especially after August 21, 2008, we cannot say that a finding of likelihood of harm
is clearly erroneous. Not only was there a likelihood of serious harm from Resident #9’s persistent
uninvited sexual advances and increasingly aggressive contact, there was also a likelihood that
serious harm would occur from residents attempting to escape Resident #9 in the absence of
adequate protection from the nursing staff. Because Somerset failed to adequately protect its
extremely vulnerable residents in light of increasing sexual aggressiveness by Resident #9, we must
affirm the finding of immediate jeopardy.
V.
The question remains whether the Secretary should have imposed a CMP on Somerset as
early as May 10, 2008 for the § 483.13(b) deficiency. Somerset argues that if any penalty is assessed
findings were not based on psychosocial harms, but, rather, on the likelihood of serious physical or
mental injury or harm to a resident.
13
it should not be until October 16, 2008, when Somerset initiated discharge proceedings against
Resident #9.
As discussed above, the record demonstrates that although Somerset could have taken more
steps to protect its residents, from May 10 until August 21, 2008 its measures were within the range
of reasonable responses to the risk that Resident #9 appeared to pose. However, Somerset’s failure
to implement more severe intervention methods after August 21, 2008 did create the likelihood of
serious harm to its residents until it implemented one-on-one monitoring of Resident #9 on January
7, 2009. Indeed, in the two days following the August 21, 2008 incident, Resident #9 made two
more attempts to touch female residents in an inappropriate manner. Though Resident #9 was
supposed to be monitored, he was able to slip inside the rooms of female residents unnoticed. In
light of Resident #9’s increased aggressiveness, the fact that Resident #9 was continuously able to
have unmonitored access to the female residents created a likelihood of serious harm that supports
CMS’s immediate jeopardy finding.2
VI.
The CMP was imposed for a second violation as well—failure to implement an anti-abuse
policy in violation of 42 C.F.R. § 483.13(c). In light of our determinations above, the only relevant
question is whether a 42 C.F.R. § 483.13(c) deficiency supports a finding of immediate jeopardy
prior to August 21, 2008. Only an affirmative answer to that question will further affect the outcome
of this appeal. We conclude that CMS clearly erred in finding immediate jeopardy based on
2
Somerset offers no support for its argument that the failure of the state agency to initiate an
investigation upon receiving notice of the August 21, 2008 incident relieved Somerset of the duty
to take appropriate steps to protect its residents.
14
Somerset’s failure to implement its abuse policy prior to August 21 because there is no indication
that this created a likelihood of serious harm to its residents. Although Resident #9 undeniably
harassed female residents prior to August 21, whenever the possibility existed that Resident #9
actually touched a resident inappropriately, Somerset interviewed and assessed the resident. Further,
there is no indication that Somerset had a pattern of not implementing its abuse policy in other
situations. Thus, no 42 C.F.R. § 483.13(c) deficiency supports the imposition of the immediate
jeopardy CMP prior to August 21, 2008.
VII.
In its last claim of error, Somerset argues that the ALJ should have reviewed all the
deficiencies cited by CMS, instead of just two, because unaddressed deficiencies damage a facility’s
reputation. Somerset requests this Court dismiss the unaddressed deficiencies, or, in the alternative,
remand to the ALJ for further consideration. However, Somerset’s argument is foreclosed by our
prior holding in Claiborne-Hughes where we acknowledged that:
The DAB has consistently interpreted the regulations to mean that the ALJ is not
mandated to address each and every deficiency found in a survey, and it may choose
to address only those deficiencies that have a material impact on the outcome of the
dispute . . . It is neither arbitrary nor capricious for the agency to conclude that, in the
interests of judicial economy, it will review only those deficiencies that have a
material impact on the outcome of the dispute.
609 F.3d at 847.
Accordingly, we will not remand this matter back to the ALJ for further review of the
unaddressed deficiencies.
VIII.
15
For the foregoing reasons, we affirm the deficiency finding for Somerset’s violation of 42
C.F.R. § 483.13(b) and the immediate jeopardy finding from August 21, 2008 to January 6, 2009.
We reverse the immediate jeopardy finding from May 10, 2008 to August 20, 2008 and January 7,
2009 to January 14, 2009. We remand for further proceedings consistent with this opinion.
16
SILER, Circuit Judge, concurring in part and dissenting in part. I agree with the majority
that our standard of review is based upon whether substantial evidence supports the decision of the
DAB. See Claiborne-Hughes Health Center v. Sebelius, 609 F.3d 839, 843 (6th Cir. 2010). I also
concur in Parts V., VI., and VII., which discuss the findings of violations between May 10, 2008, and
January 14, 2009.
However, I depart from the majority when it finds that there was sufficient evidence to affirm
the deficiency finding for Somerset’s violation of 42 C.F.R . § 483.13(b) and the immediate jeopardy
finding from August 21, 2008, to January 6, 2009. An “immediate jeopardy” level deficiency is one
so egregious that the facility’s non-compliance “has caused, or has likely to cause, serious injury,
harm, impairment, or death to a resident.” 42 C.F.R. § 488.301. Although the conduct of Resident
#9 is not to be condoned, it must be remembered that he was usually moving around in a wheel chair,
although able to walk occasionally.
I do not think that the evidence was sufficient to show that there was a likelihood by Resident
#9 to cause serious injury to the other residents, based on the three touching incidents on and after
August 21, 2008. The parties have not cited any federal court case which has found that any
attempted touching by one patient to another to be a Level 4 “immediate jeopardy.” Instead, most
of the situations which have been reported concern the failure of the facility to take appropriate steps
in the treatment of the residents. For instance, in Golden Living Center-Frankfort v. Secretary of
Health and Human Services, 656 F.3d 421, 427 (6th Cir. 2011), we upheld the DAB’s finding of
immediate jeopardy when the facility failed to property treat a resident who developed severe
dehydration and other complications. Likewise, in Claiborne-Hughes, 609 F.3d at 846, we upheld
17
the finding of immediate jeopardy when the facility failed to notify physicians or family members
of a marked decrease in food intake of a diabetic patient. Finally, in Life Care Ctr. Tullahoma v.
Secretary of Health & Human Services, 453 F. App’x 610, 617 (6th Cir. 2011), we upheld the
finding of immediate jeopardy when nurses at the facility failed to notify physicians or the family
about the dangerous blood-sugar level of a resident, and the nurses dispensed twice the prescribed
amount of medication to the resident. These are just typical factual bases for such findings under
Level 4.
On the other hand, I think that Somerset could be found deficient at a lower level, either 2
or 3, for that period of time based upon the definitions of those levels, as set out in the majority
opinion, quoting from the State Operations Manual (SOM).
Therefore, I would remand the matter to the DAB in full, to consider whether Somerset
should be subject to any penalties under Level 2 or 3 for any dates between May 10, 2008, and
January 14, 2009.
18