Tri-County Extended Care Center v. Leavitt

No. 04-4199
File Name: 05a0964n.06
Filed: December 14, 2005

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

TRI-COUNTY EXTENDED CARE CENTER, )
)
Petitioner, )
) ON PETITION FOR REVIEW OF
v. ) A DECISION OF THE
) DEPARTMENTAL APPEALS
MICHAEL O. LEAVITT, SECRETARY, ) BOARD, UNITED STATES
UNITED STATES DEPARTMENT OF ) DEPARTMENT OF HEALTH
HEALTH AND HUMAN SERVICES, ) AND HUMAN SERVICES
)
Respondent. )

Before: NELSON, DAUGHTREY, and SUTTON, Circuit Judges.

DAVID A. NELSON, Circuit Judge. This case is here on a petition for review of a

decision of the Departmental Appeals Board, United States Department of Health and Human

Services (“HHS”). The petitioner, Tri-County Extended Care Center, is a long-term care

facility that participates in the federal Medicare and Ohio Medicaid programs. HHS assessed

a civil monetary penalty against Tri-County after a survey of the facility resulted in findings

of non-compliance with certain program requirements.

An administrative law judge (“ALJ”) affirmed the penalty imposed by HHS, and Tri-

County sought review before the Departmental Appeals Board. The Board affirmed the

ALJ’s findings that: (1) Tri-County used half side rails on a resident’s bed without
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adequately assessing the risk of entrapment; (2) Tri-County failed to investigate and report

a resident’s injury of unknown cause; (3) Tri-County allowed a resident to develop an

avoidable pressure sore and failed to promote healing of the resident’s pressure sores; and

(4) Tri-County failed to provide appropriate incontinence care to two residents. The facility

challenges each of these findings in its petition for review.

“The findings of [HHS] with respect to questions of fact, if supported by substantial

evidence on the record considered as a whole, shall be conclusive.” 42 U.S.C. § 1320a-7a(e).

The court “do[es] not consider the case de novo, nor resolve conflicts in the evidence, nor

decide questions of credibility.” MeadowWood Nursing Home v. United States Dep’t of

Health and Human Services, 364 F.3d 786, 788 (6th Cir. 2004).

Having reviewed the record, we are satisfied that substantial evidence supports the

agency’s findings. Therefore, and in the absence of any challenge to the amount of the civil

monetary penalty, Tri-County’s petition for review is DENIED.