Summary
The Fifth Circuit dismissed Brenham Nursing and Rehabilitation Center’s petition for review of a Department of Health and Human Services decision affirming civil monetary penalties for violations of Medicare participation requirements. The court held that substantial evidence supported the findings of noncompliance, the immediate-jeopardy determination, and the penalty amounts, and rejected Brenham’s due process challenge to the revised penalties.
Topics
Practice areas
Questions Presented
- Whether substantial evidence supported the Secretary's determinations that Brenham violated 42 C.F.R. §§ 483.13(c), 483.13(c)(2)-(4), and 483.75.
- Whether the immediate-jeopardy findings were clearly erroneous.
- Whether the amounts of the civil monetary penalties were unreasonable or arbitrary and capricious.
- Whether CMS's revision of the penalties from per-instance penalties to per-day penalties violated due process.
Holdings
- Substantial evidence supported the determination that Brenham failed to implement policies protecting residents from abuse and neglect because it failed to treat the resident's unexplained bruising as potentially linked to abuse or neglect and failed to effectuate its written reporting and investigation policies.
- Substantial evidence supported the findings that Brenham failed to immediately report the injury, failed to timely report the investigation results, and failed to conduct the thorough investigation required by the regulations.
- Substantial evidence supported the finding that Brenham failed to administer the facility effectively and efficiently to promote the resident's well-being.
- The court upheld the Departmental Appeals Board's conclusions that the immediate-jeopardy findings were not clearly erroneous and that the selected civil monetary penalties were reasonable and supported by the governing statutory and regulatory factors.
- CMS's revision from per-instance penalties to per-day penalties did not, on the facts presented, violate due process.
Key quotations
“We accordingly affirm the DAB’s conclusion that Brenham was obligated to treat Resident 4’s bruising as potentially linked to abuse or neglect; substantial evidence indicates the bruising was, at the least, an injury of unknown origin.” (Page 5)
“For the foregoing reasons, we DISMISS Brenham’s petition for review.” (Page 11)
Factual background
A cognitively impaired 101-year-old nursing-home resident was found with extensive bruising of unknown origin. Facility management attributed the bruising first to a possible hematological disorder and later to a Hoyer Lift, did not immediately report it to state officials, and conducted only a limited investigation. CMS determined that the facility violated federal regulations requiring policies and procedures to prevent abuse and neglect, prompt reporting and thorough investigation of suspected abuse or injuries of unknown source, and effective facility administration; CMS imposed per-day civil monetary penalties.
Procedural history
CMS initially imposed per-instance civil monetary penalties totaling $8,500, then rescinded those penalties and imposed per-day penalties totaling $84,400. An administrative law judge upheld the noncompliance determinations and penalties, and the Departmental Appeals Board affirmed. After exhausting administrative remedies, Brenham timely petitioned the Fifth Circuit for review.