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NOT FOR PUBLICATION NOV 26 2013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

2 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

4 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.

6

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.