Plott Nursing Home v. Sylvia Mathews Burwell

Opinion by Judge KLEINFELD; Partial Concurrence and Partial Dissent by Judge CHRISTEN.

OPINION

Plott Nursing Home (“Plott”) petitions for review of a civil money penalty imposed by the Secretary of the United States Department of Health and Human Services for Plott’s violations of the Medicare Act’s standards of care for nursing home patients.

I. The Regulatory Scheme

Skilled nursing facilities that participate in the federal Medicare and Medicaid programs must satisfy minimum standards of patient care in order to receive reimbursement for patient services. 1 The Centers for Medicaid and Medicare Services (“CMS”), a division of the United States Department of Health and Human Services, contracts with state agencies to conduct unannounced compliance surveys of participating skilled nursing facilities. 2 The surveys must be performed at least every 15" months. 3 Most surveyors are Health Facilities Evaluator Nurses (HFENs). To become qualified as an HFEN in California, an individual must be a registered nurse and have one year of nursing experience, and six months of nursing supervisory experience. 4 A Master’s Degree in a health-related field can be substituted for the required…

concurring in part and dissenting in part:

I concur in the court’s holding with respect to the two deficiencies that formed *990 the basis of the $500 per day penalty sustained by the Department of Health and Human Services Appeals Board. But because the court’s holding as to the unre-viewed deficiencies accords with neither our statutory jurisdiction nor with well-established principles of judicial review, I respectfully dissent from Part C of the court’s analysis.

The skilled nursing facility provisions of the Medicare Act provide: “[T]he Secretary may impose a civil money penalty in an amount not to exceed $10,000 for each day of noncompliance. The provisions of section 1320a-7a of this title (other than subsections (a) and (b)) shall apply to a civil money penalty....” 42 U.S.C. § 1395i—3(h)(2)(B)(ii)(I). Section 1320a-7a(e) gives this court original jurisdiction over appeals from the Secretary’s decision to impose a civil money penalty.

In its decision in this case, the Board concluded, consistent with its prior decisions, that neither it nor the ALJ was required to address noncompliance findings not material to the penalty imposed. The court concludes that unreviewed…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PLOTT NURSING HOME, No. 12-70174 Petitioner, HHS No. v. A-11-

SYLVIA MATHEWS BURWELL,*

Secretary of the United States OPINION 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

Filed March 3, 2015

Before: Andrew J. Kleinfeld and Morgan Christen, Circuit Judges, and John W. Sedwick, District Judge.**

Opinion by Judge Kleinfeld; Partial Concurrence and Partial Dissent by Judge Christen

* Sylvia Mathews Burwell is substituted for her predecessor, Kathleen Sebelius, as Secretary of the United States Department of Health and Human Services. Fed R. App. P. 43(c)(2). ** The Honorable John W. Sedwick, District Judge for the U.S. District Court for the District of Alaska, sitting by designation. SUMMARY***

Medicare Act

The panel reversed in part the Secretary of Health and Human Services’ imposition of a civil monetary penalty for violations of the Medicare Act’s…