Golden Living Center-Grand Island Lakeview v. Sebelius

Filing 30

MEMORANDUM AND ORDER denying 26 Defendant's Motion to Reconsider/Alter or Amend Judgment. Ordered by Judge Joseph F. Bataillon. (SMS)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
GOLDEN LIVING CENTER-GRAND
ISLAND LAKEVIEW,
8:11CV119
Plaintiff,
vs.

MEMORANDUM AND ORDER

KATHLEEN SEBELIUS, Secretary of the
United States Department of Health and
Human Services;
Defendant.
This matter is before the court on defendant Secretary of Health and Human
Services’ (“Secretary”) motion for reconsideration, Filing No. 26, of this court’s previous
Memorandum and Order, Filing No. 25. In that order, the court remanded the case to
the Secretary to allow an Administrative Law Judge (“ALJ”) or Appeals Board to develop
a record on the merits of the case. The Secretary argues that the court made one error
of law and three errors of fact in its order. Filing No. 27, Memorandum in Support of
Respondent’s Motion to Alter or Amend Judgment, Page ID #353. The court finds that
there are no errors of law or fact justifying a reconsideration of the judgment, and
therefore the motion for reconsideration is denied.
The Secretary first argues that the court cannot order the ALJ to consider matters
outside his regulatory purview. Id. at 354. The court agrees, but finds that this case falls
within the jurisdiction of the ALJ. The court is not asking the ALJ to declare the relevant
statutes unconstitutional, but on the contrary, the statutes, 42 U.S.C. §§ 405 and 1395i3(h)(2)(B)(ii), plus 42 C.F.R. § 498.3 and § 488.406 allow the Secretary to hear this
particular case. The court notes that in fact the Secretary and ALJs do interpret and
apply the appeal regulations for consistency with the Social Security Act as well as

Supreme Court caselaw. See, e.g., Miller’s Merry Manor - Rockport v. CMS, ALJ Dec.
No. CR2228 (2010) (interpreting purpose and function of nursing facility appeal
regulations at 42 C.F.R. Part 498 to require meaningful administrative hearing). The
Secretary argues that the case falls outside the jurisdiction of the Administrative Law
Judge, since a remedy has not been imposed. The court disagrees, as the sanction
was in place for three days and affected Medicare/Medicaid reimbursements. See 42
C.F.R. § 488.406(a)(2)(i) (enforcement remedies including denial of payment). It is true
that the Secretary “withdrew” the sanction on appeal, but she did not withdraw the
underlying allegation of noncompliance.

Additionally, if the charge of sexual abuse

(regardless of how it is couched or characterized) and the related “actual harm” can be
used as a basis for future penalties, then it is no longer merely an unappealable
deficiency finding, but is a remedy appealable under 42 C.F.R. § 488.406(a)(9). The
Secretary does not disagree that she could impose collateral, significant and serious
sanctions at a later time if plaintiff is cited for something else in the future, simply on the
basis of this citation. So, the petitioner either gets its opportunity now to refute the
citation, or not at all, and faces the very real potential of future sanctions related to this
citation.1
The Secretary next argues that the court made material errors of fact. First, the
Secretary argues that the court erred in finding that the Secretary “instructed” the ALJ to
dismiss the appeal. Id. at 356. The cited language is not material, nor is it a “finding.”

1

The Secretary admits that “it is a rare survey that does not disclose at least some deficiencies”
and that in 1992 over 90% of nursing homes received citations, so the likelihood of plaintiff receiving
additional deficiencies is significant. Filing No. 23, Page ID #325.
2

The court understands that the Secretary did not personally instruct the ALJ to dismiss
the case. The ALJ dismissed the case and the Board affirmed the dismissal.
Second, the Secretary argues that the court found that Golden Living was a
Special Focus Facility. The court did not find that it was a Special Focus Facility, but
rather listed what penalties would be present if the sexual abuse finding were used to
make this facility a Special Focus Facility. The court is aware that Golden Living is not,
at least at the current time, a Special Focus Facility. However, the court does note
again that the citation against the facility is in fact listed on the Nursing Home Compare
website.

The facility is listed with a one star rating, the lowest possible rating for

compliance with health and safety regulations. The website is available to the public,
and in fact, the public is urged to use this site to compare nursing facilities and urged to
obtain and review the actual, more detailed citation.
Finally, the Secretary argues that the court erred in finding that the facility would
be listed for “sexual abuse” on the Nursing Home Compare website. Although the
Secretary is correct that the facility profile on the Nursing Home Compare website does
not specifically say “sexual abuse,” the website states that this facility is cited for a
failure to “[p]rotect each resident from all abuse, physical punishment, and being
separated from others.” The finding is publicly accessible on the website. Filing No. 27,
Memorandum in Support of Respondent’s Motion to Alter or Amend Judgment, Page ID
#359.

The website states that Golden Living twice failed to protect residents from

abuse, resulting in “actual harm” affecting its patients. As stated previously, families are
advised to read and compare these listings when they are choosing a nursing home.
Golden Living identifies the collateral consequences of this public listing: the facility’s

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rating for compliance with health care regulations is lowered on the website, which
families are instructed to consider when choosing a facility.

The website advises

families to obtain the full text of the citation, which would list sexual abuse, and the
citation must be posted in the facility and readily available upon request. While it is true
that the phrase “sexual abuse” is not listed on the website, the website lists two
incidents of abuse, which are serious allegations, and again, families are urged to
obtain a copy of the citation, which would specify that the abuse was sexual abuse. The
negative result of the listing on the Nursing Home Compare website does not change
because the citation is listed just as abuse rather than specifically listed as sexual
abuse.
IT IS ORDERED that the Secretary of Health and Human Services’ motion to
reconsider, Filing No. 26, is denied.
Dated this 6th day of July, 2012.
BY THE COURT:

s/ Joseph F. Bataillon
United States District Judge

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