We have previously indicated that the Sixth Circuit seems to be on a streak of health care-related opinions, and yesterday the Court continued that trend in Golden Living Center – Frankfort v. Secretary of Health and Human Services.  In that case, HHS imposed approximately $175,000 in civil monetary penalties related to alleged substandard care at a certified skilled nursing facility.  The case reached the Sixth Circuit after an administrative appeal by the nursing facility.

The case is significant for two reasons.  First, the Court sets forth the high burden for overturning a decision by HHS to impose civil monetary penalties.  Based on the Court’s citation of case law, some of these issues have not been well-developed in the Sixth Circuit’s prior jurisprudence.  The Court makes clear that the burden, which it describes as a “heavy burden,” “is on the facility to prove it has resumed complying with the program requirements.”  The Court then explained that it applies a “highly deferential” review to issues of both fact and law decided in the administrative proceedings and will only overturn the Secretary’s decision if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.”

The second significant aspect of the case is the Confrontation Clause argument raised by the nursing facility.  The ALJ had required written direct testimony, as opposed to live testimony, and the nursing facility challenged that as a violation of the Confrontation Clause.  The U.S. Supreme Court over recent terms has strengthened the application of the Confrontation Clause, and the nursing facility sought to capitalize on that evolution in jurisprudence.  However, the Sixth Circuit made short work of this argument, rejecting the defendant’s argument that the Confrontation Clause applies at all in that setting.  Thus, the Court refused to disturb the procedure determined by the ALJ.