FILED
NOT FOR PUBLICATION NOV 26 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DEL ROSA VILLA, No. 12-71685
Petitioner, HHS No. A-12-22
v.
MEMORANDUM*
KATHLEEN SEBELIUS, Secretary of the
United States Department of Health and
Human Services,
Respondent.
On Petition for Review of an Order of the
Department of Health & Human Services
Argued and Submitted October 11, 2013
Pasadena, California
Before: KLEINFELD and CHRISTEN, Circuit Judges, and SEDWICK, District
Judge.***
On April 21, 2009, a man known in this case as “Resident 1” attempted to
commit suicide by jumping in front of a car. He was taken to Arrowhead hospital
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
***
The Honorable John W. Sedwick, District Judge for the U.S. District
Court for the District of Alaska, sitting by designation.
where he was voluntarily committed. Arrowhead treated his broken leg as well as
his psychiatric problems. On May 8, 2009, an Arrowhead physician evaluated
Resident 1 as “unpredictable with intermittent thoughts of suicide” and concluded
that he was “at risk of harming himself if he were discharged to the community.”
Arrowhead continued to regularly evaluate him, and on May 13, 2009, a different
psychiatrist concluded that he was stable and ready to be discharged to a skilled
nursing facility.
On May 22, 2009, Arrowhead discharged Resident 1 to the care of Del Rosa
Villa nursing facility. Eight days later, on May 30, 2009, a psychiatrist evaluated
Resident 1 and found him stable, while noting that he was “positive” for
hallucinations and delusions. On June 1, 2009, Nurse T.Y., a member of Resident
1’s multi-disciplinary team, assembled his “care plan” and wrote an intervention
for “suicide watch all times” in red ink on his plan. On June 5, 2009, the multi-
disciplinary team met but made no changes to Resident 1’s care plan.
That same day, Resident 1 began “bouncing” intensively. The nursing staff
notified his doctor, who prescribed the sedative Ativan. When Resident 1 did not
stop “bouncing,” the doctor increased his Ativan dosage and instructed the Del
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Rosa Villa staff to send Resident 1 to the Emergency Room if things did not
improve. The next day, June 6, 2009, the nursing staff sent Resident 1 to the
emergency room at St. Bernadine Medical Center. St. Bernadine discharged him
the next day, June 7, 2009, after he had calmed down. On June 9, 2009, Resident
1’s sister reported to Del Rosa Villa’s staff that her brother had told her that he had
a “homosexual microchip” in his head. The nursing staff checked on him, but he
seemed calm and denied making the statement.
The next day, June 10, 2009, the Resident’s team met and decided to have
Resident 1’s doctor evaluate him. Resident 1’s psychiatrist increased his anti-
psychotic medicine dosage. At 8:30 p.m. that night, the nursing staff administered
Ativan due to Resident 1’s anxiety and bouncing. At 11:20 p.m., he had “bounced”
so intensely that despite his broken leg he managed to “bounce” out of his
wheelchair and crash onto the floor. After finding him on the floor, the nursing
staff called his doctor, who did not answer. They tried calling him again one hour
later at 12:15 a.m. At 12:30 a.m., Resident 1 went outside through the laundry
room (the nursing staff thought he was going to smoke). At 12:50 a.m., he was
found hanging by his belt on the parking lot fence and died soon after.
3
The Centers for Medicare and Medicaid Services state surveyors conducted
an unannounced survey after Del Rosa Villa’s self-report of the patient’s suicide.
They cited Del Rosa Villa under 42 C.F.R. 483.25(h)(2) for failure to adequately
supervise Resident 1 and imposed a $10,000 per instance fine. Del Rosa Villa
requested a hearing in front of an administrative law judge, who upheld the citation
and the fine. Del Rosa Villa appealed to the Department of Health and Human
Services’s Departmental Appeals Board, which upheld the ALJ decision. Del Rosa
Villa now seeks review of the Appeals Board decision in this Court, arguing that it
is not supported by substantial evidence. We deny the petition.
42 U.S.C. § 1320a-7a(e) provides that “[a]ny person adversely affected by a
determination of the Secretary under this section may obtain a review of such
determination in the United States Court of Appeals for the circuit in which the
person resides[.]” We review the Secretary’s decision for substantial evidence. See
id. (“The findings of the Secretary with respect to questions of fact, if supported by
substantial evidence on the record considered as a whole, shall be conclusive.”).
The Secretary’s opinion relies on three independent grounds. First, Resident
1’s care plan required some form of heightened monitoring, which Del Rosa Villa
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failed to implement, and of which several staff members responsible for the
Resident’s supervision were apparently unaware. Second, Del Rosa Villa failed to
properly respond to Resident 1’s deteriorating condition by increasing supervision.
And third, on the night of the suicide, Resident 1’s “bouncing” behavior created a
foreseeable risk that he could be injured if allowed to leave the facility
unsupervised, regardless of his risk of suicide or the contents of his care plan.
Because we find that the third ground, by itself, is supported by substantial
evidence, we need not address the parties’ arguments regarding the other grounds.
42 C.F.R. 483.25(h)(2) provides that a Medicare-participating nursing
facility “must ensure that . . . [e]ach resident receives adequate supervision and
assistance devices to prevent accidents.” In this case, the staff of Del Rosa Villa
found Resident 1 on the floor after he had “bounced” himself out of his wheelchair,
broken leg and all. Just one and a half hours later, the Del Rosa Villa staff allowed
Resident 1 to go outside for a smoke unsupervised. It was reasonably foreseeable
that some accident could have occurred, whether it may have been him “bouncing”
himself out of his wheelchair again—albeit this time on hard pavement—or
something else. That is all that is required for a facility to violate the regulation.
Thus, substantial evidence supports the Secretary’s decision.
5
Del Rosa Villa also argues that it was prejudiced by the Centers for
Medicare and Medicaid Services’s withholding of some Arrowhead hospital
records. This allegation is allegedly supported by a deposition not in the record.
Moreover, the new hospital records only implicated the grounds not addressed in
this disposition. Because substantial evidence supports the Secretary on the ground
discussed above, we need not address this issue.
Finally, Del Rosa Villa argues that the administrative law judge abused his
discretion by refusing to grant its request for a second continuance due to a
pending grand jury investigation. “In the absence of substantial prejudice to the
rights of the parties involved, [simultaneous] parallel [civil and criminal]
proceedings are unobjectionable under our jurisprudence.” Keating v. Office of
Thrift Supervision, 45 F.3d 322, 324 (9th Cir. 1995) (internal quotation marks
omitted). There is no evidence of substantial prejudice here, so this argument is
without merit.
The petition is DENIED.
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FILED
Del Rosa Villa v. Sebelius, No. 12-71685 NOV 26 2013
MOLLY C. DWYER, CLERK
CHRISTEN, Circuit Judge, concurring. U.S. COURT OF APPEALS
I would uphold the penalty on all of three of the grounds relied upon by the
Departmental Appeals Board. Therefore, I agree that the failure to supervise the
resident on the night of his suicide supports the violation found here.