[DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________           FILED
                                                U.S. COURT OF APPEALS
                             No. 10-11977         ELEVENTH CIRCUIT
                       ________________________       JUNE 10, 2011
                                                       JOHN LEY
                                                        CLERK
                             Agency No. 2314


GOLDEN LIVING CENTER - RIVERCHASE,

                                                               Petitioner,

versus

UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES,

                                                             Respondent.

                      ________________________

                  Petition for Review of a Decision of the
                 Department of Health and Human Services
                       ________________________

                             (June 10, 2011)

Before DUBINA, Chief Judge, EDMONDSON and WILSON, Circuit Judges.


PER CURIAM:
       Golden Living Center–Riverchase (“Petitioner”), an Alabama nursing

facility, appeals the decision of the U.S. Department of Health and Human

Services Appeals Board (“the Board”) upholding sanctions for regulatory

violations. Substantial evidence in the record supported the Board’s decision; we

deny the petition for review.

       Now on appeal to us pursuant to 42 U.S.C. § 1320a-7a(e), Petitioner argues

that the Board’s decision, which included upholding “immediate jeopardy”

violations involving injuries to two of Petitioner’s residents, was not supported by

substantial evidence.1 We examine the Board’s consideration of each incident to

determine whether the Board’s decision was “supported by substantial evidence on

the record considered as a whole.” 42 U.S.C. § 1320a-7a(e).

       Resident #8 was an 83-year-old female who suffered from multiple serious

medical conditions, including congestive heart failure and diabetes. In February

2007, two nurse assistants either dropped or lowered Resident #8 onto the floor

while attempting to transfer her from her bed to a wheelchair. The resident’s

       1
         Petitioner also contends that the Board engaged in an unauthorized de novo review of
the record. We see no merit in this argument.
        Petitioner further argues that the Board incorrectly imposed the ultimate burden of
persuasion in the civil money penalty adjudication on Petitioner, instead of on the Centers for
Medicare and Medicaid Services (“CMS”). We decline to address this challenge because the
evidence is not in equipoise in this case. See Batavia Nursing & Convalescent Ctr. v. Thompson,
143 F. App’x 664, 665 (6th Cir. 2005) (unpublished); Fairfax Nursing Home, Inc., v. United
States Dep’t of Health & Human Servs., 

, 840 n.4 (7th Cir. 2002).

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individual care plan directed the use of a mechanical lift during transfers; but the

nurse assistants failed to use a mechanical lift during this attempted transfer. The

HHS administrative law judge (“ALJ”) found that Resident #8 suffered “actual

harm as a result of her fall.”

       The Board concluded that this incident constituted an “immediate jeopardy”

violation. The record contained evidence of Resident #8’s particularly frail

condition: she was elderly, obese, suffered from multiple serious medical

conditions, and could not stand on her own. The record also showed that the nurse

assistants failed to follow Resident #8’s care-plan directive to use a mechanical lift

when transferring her.2 The combination of a fall, Resident #8’s frail condition,

and the nurse assistants’ failure to follow the care-plan protocol led the Board to

conclude that the incident involving Resident #8 constituted a likelihood of

serious injury to a patient and, therefore, an “immediate jeopardy” violation.

       Resident #9 was an 85-year-old female who suffered from multiple serious

medical conditions, including congestive heart failure and dementia. In February

2007, Resident #9 slid out of her wheelchair while two nurse assistants were


       2
        Petitioner failed to appeal to the Board the ALJ’s finding that Resident #8’s fall resulted
from inadequate supervision; therefore, Petitioner may not now challenge that factual finding.
See 42 U.S.C. § 1320a-7a(e) (“No objection that has not been urged before the Secretary shall be
considered by the court, unless the failure or neglect to urge such objection shall be excused
because of extraordinary circumstances.”).

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preparing her for transfer; Resident #9 fractured her right wrist as a result of the

incident. The Board concluded that Petitioner failed to provide adequate

supervision for Resident #9 in compliance with Medicare regulations and that the

incident constituted an “immediate jeopardy” violation. As the ALJ found, an

“accident” occurred involving Resident #9. See Lake Park Nursing & Rehab.

Ctr., D.A.B. No. 2035 (2006) (“When an accident does occur, the circumstances . .

. may support an inference that the facility’s supervision of a resident was

inadequate.”). The record also contained evidence of Resident #9’s frail physical

condition: she had limited mobility and range of motion in her lower body, needed

extensive assistance with transfers, had poor cognition and judgment, and was

known to fidget during care. Resident #9’s previously diagnosed osteoporosis

counted as another factor that increased her risk for serious injury in the event of a

fall.

        Given Petitioner’s knowledge of Resident #9’s poor health and tendency to

fidget, the Board pointed to the lack of evidence that Petitioner provided adequate

supervision, for example, by attempting to secure Resident #9 or to protect her

once she began to wiggle. And Petitioner presented no evidence about the

techniques or processes the nurse assistants used with Resident #9. Thus, the

Board concluded, Petitioner failed to show that it acted in substantial compliance

                                           4
with regulations given Resident #9’s risk-prone condition. And given Resident

#9’s condition and need for special assistance, the Board concluded that this

incident constituted an “immediate jeopardy” violation.

      We see no reversible error in the Board’s decision and conclude that

substantial evidence supported its conclusions about Residents #8 and #9.

      PETITION FOR REVIEW DENIED.




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