Ivy Woods Healthcare and Rehabilitation Center v. Tommy Thompson; United States Department of Health and Human Services

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0861n.06
Filed: October 19, 2005
No. 04-4164
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
IVY WOODS HEALTHCARE AND
REHABILITATION CENTER,
Petitioner,
v.
TOMMY THOMPSON; UNITED STATES
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Respondents.
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ON APPEAL FROM A DECISION OF THE
DEPARTMENTAL APPEALS BOARD
Before: KENNEDY, COOK, and GRIFFIN, Circuit Judges.
PER CURIAM. Ivy Woods Healthcare and Rehabilitation Center (“Ivy Woods”) seeks
review of a decision by the Secretary of Health and Human Services—acting through the Centers
for Medicare and Medicaid (“CMS”)—imposing civil monetary penalties (“CMPs”) on Ivy Woods
for noncompliance with Medicare participation requirements. The Administrative Law Judge
(“ALJ”) and the Department of Health and Human Services’s Departmental Appeals Board (“DAB”)
both affirmed the administratively-imposed penalties.
Ohio Department of Health (“ODH”) officials, acting on behalf of CMS, surveyed Ivy
Woods and discovered numerous resident-care deficiencies in violation of twelve Medicare

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1Though the ALJ concluded the CMS failed to establish Ivy Woods violated two of the
twelve Medicare participation requirements cited by ODH and declined to rule on one, the nine
violations support the $6,600 assessment.
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participation requirements.1 The most serious deficiencies—resulting in actual harm to
residents—included three G-level offenses: failure to provide the resident sufficient care “to attain
or maintain the highest practicable physical, mental and psychological well-being” in violation of
42 C.F.R. § 483.25; failure to prevent pressure sore development in violation of 42 C.F.R. §
483.25(c); and failure to provide adequate supervision and assistance devices to prevent accidents
in violation of 42 C.F.R. § 483.25(h)(2). ODH also cited Ivy Woods for one F-level, four E-level,
four D-level, and two B-level deficiencies. These violations prompted CMS to assess $6,600 in
CMPs against Ivy Woods.
I
Ivy Woods challenges the Secretary’s noncompliance findings as unsupported by substantial
evidence, insisting the DAB misconstrued or overlooked crucial facts when examining the record.
This panel, however, having reviewed the record as contained in the joint appendix, concludes that
substantial evidence—amply explained in the comprehensive DAB opinion—supports the DAB’s
decision to uphold the CMPs based on Ivy Woods’s failure to comply with numerous Medicare
participation requirements. Issuing a further detailed opinion recounting the substantial factual
support for each violation would serve no jurisprudential purpose. The record is replete with
specific evidence supporting each care-deficiency finding upheld by the ALJ and DAB.

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II
While arguing that it substantially complied with Medicare participation requirements, Ivy
Woods also defends by claiming the DAB held it to a strict liability rather than the proper
substantial-evidence standard. Ivy Woods’s view of the evidential standard applied in its case stems
from two assertions: (1) that the DAB required it to comply with one regulation when doing so
would cause it to violate another and (2) that the DAB required Ivy Woods to do “everything within
its power” to prevent accidents as opposed to the usually-applied substantial compliance standard.
For support it offers five examples. None persuades us that an improper standard guided the
administrative decision.
First, Ivy Woods points to F-Tag 164 where a surveyor observed that Ivy Woods failed to
cover a resident receiving personal care while the door was open, allowing another resident visual
access. The DAB affirmed the ALJ’s conclusion that Ivy Woods violated 42 C.F.R. § 483.10(e),
which provides that “[t]he resident has the right to personal privacy and confidentiality of his or her
personal and clinical records. Personal privacy includes . . . personal care.” That resident’s
involuntary bodily movements required permanently restraining her to ensure such personal privacy,
argues Ivy Woods, and remedying the one issue requires a violation of other regulations about
restraints. As we read it, however, the surveyor’s observation supporting the violation plainly
pointed to the failure to just close the door.

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Second, Ivy Woods points to F-Tag 241. The DAB concluded Ivy Woods violated 42 C.F.R.
§ 483.15(a) declaring, “The facility must promote care for residents in a manner and in an
environment that maintains or enhances each resident’s dignity and respect in full recognition of his
or her individuality.” A surveyor observed nurse aides place Resident 40—whose conditions
included cerebral palsy, bilateral congenital deformities, anxiety disorder, and a broken leg—on a
shower bed backwards with her head at the top of the bed and her feet at the bottom. The surveyor
testified that the resident’s head is supposed to be placed on the bottom end. When the aides placed
Resident 40 on the shower bed, the resident complained they were placing her on the bed
incorrectly. During the shower, Resident 40 told the aides her broken leg hurt and cried until the
shower was over. The aides ignored Resident 40's complaints and complained they had urine on
their uniforms from Resident 40's leaking catheter as if Resident 40 were not in the room. Ivy
Woods says to avoid this deficiency, it would need to violate “a separate regulation” without
pointing to any regulation it would have violated by complying with this care standard. The DAB
affirmed the ALJ’s deficiency finding, which cited 42 C.F.R. § 483.15(a) governing staff’s conduct
toward residents. Here, Ivy Woods’s staff treated Resident 40 in an undignified manner when they
ignored her complaints and complained to each other about her leaking catheter in her presence.
Third, Ivy Woods points to F-Tag 246. 42 C.F.R. § 483.15(e)(1) provides that “[a] resident
has the right to . . . [r]eside and receive services in the facility with reasonable accommodation of
individual needs and preferences, except when the health or safety of the individual or other
residents would be endangered.” Resident 20 required assistance to walk and his care plan provided

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for a call light so that he could request assistance. A surveyor noticed Resident 20's call light on the
floor, fives times within two days, in violation of the regulation. Ivy Woods argues strict liability
was applied by the ALJ and DAB in finding a violation of this regulation. In view of the multiple
occasions the call light was unavailable in a two-day period, we agree that the ALJ was warranted
in finding that Ivy Woods was not in substantial compliance with the regulation.
Fourth, Ivy Woods points to F-Tag 309. The DAB confirmed the ALJ’s finding that Ivy
Woods violated 42 C.F.R. § 483.25, which provides that “each resident must receive and the facility
must provide the necessary care and services to attain or maintain the highest practicable physical,
mental, and psychological well-being, in accordance with the comprehensive assessment and plan
of care.” Ivy Woods violated this regulation because the canvas cover on Resident 40's leg brace
was frayed in such a way that the metal bars were rubbing against her leg and causing her sores;
there was no care plan determining whether her immobilizer should be used in bed; and the staff was
not trained on how to place Resident 40 on a shower bed without hurting her. Finding a violation
of this regulation is not an application of strict liability, but a violation under the lesser standard of
substantial compliance.
Finally, Ivy Woods points to F-Tag 324. 42 C.F.R. § 483.25(h)(2) provides that “[t]he
facility must ensure that . . . [e]ach resident receives adequate supervision and assistance devices to
prevent accidents.” Here, the DAB affirmed the ALJ’s finding that Ivy Woods violated the
regulation by failing to use proper assistive devices or give necessary supervision to minimize the

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risk of falls for three residents. Ivy Woods argues the ALJ and DAB applied the unduly strict
Koester standard—requiring the facility to do everything in its power to prevent accidents—in
reviewing its petition. See Koester Pavilion v. HCFA, DAB No. 1750 (2000). Not so. According
to the DAB decision, which does not invoke Koester, the regulation “does require the facility to take
reasonable steps to ensure that a resident receives supervision and assistance devices designed to
meet his or her assessed needs and to mitigate foreseeable risks of harm from accidents.” The DAB
concluded Ivy Woods “misapprehends the meaning of substantial compliance.” It explained,
A facility is not in substantial compliance with a participation requirement if it has
a deficiency that creates at least ‘the potential for more than minimal harm’ to one
or more residents. 42 C.F.R. §§ 488.301. Thus, a facility that does not meet the
regulatory standard may be subject to remedial action unless the deficiency causes
no actual harm and has a potential for only minimal harm.
III
Last, we note Ivy Woods’s challenge hinging on application of the DAB’s so-called Hillman
rule. Yet, given that the rule operates only when the evidence stands in equipoise, our contrary
assessment of of Ivy Woods’s evidence here forecloses operation of the rule. We therefore decline
to consider the merits of this issue. See Batavia Nursing & Convalescent Ctr. v. Sec’y of Health &
Human Servs., 129 Fed. Appx. 181, 184 (6th Cir. 2005) (declining to address the question
“[b]ecause the evidence is clearly not in equipoise in the present case”) (unpublished).
We thus affirm the decision of the DAB.

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