Cite as: 529 U. S. 1 (2000)
Thomas, J., dissenting
enough that compliance with the challenged regulations and manual is the more rational option. For one, nursing homes face the prospect of termination—the most severe of remedies—simply by virtue of failing to submit a voluntary plan of correction and correct the deficiencies. See 42 CFR § 488.456(b)(1) (1998). The Secretary's only response is that terminations are rarely imposed in fact, and certainly are not imposed where the provider has postponed correction of its deficiencies in order to preserve its appeal rights. But any such leniency is solely a matter of grace by the Secretary, see Tr. of Oral Arg. 31, and provides little comfort to a nursing facility pondering the § 1395cc(h) route to judicial review. And exposure to the termination remedy is not the only consequence faced by a nursing home that forestalls correction of its deficiencies. The Secretary also may impose civil monetary penalties, which accrue for each day of noncompliance, 42 CFR §§ 488.430, 488.440(b) (1998), and thus quite plainly stand as a calibrated deterrent to the forbearance strategy. Cf. Ex parte Young, 209 U. S. 123, 148 (1908) ("[T]o impose upon a party interested the burden of obtaining a judicial decision . . . only upon the condition that if unsuccessful he must suffer imprisonment and pay fines . . . is, in effect, to close up all approaches to the courts").12
Other costs of the forbearance strategy are less tangible, but potentially as significant. For example, a finding of a deficiency at a nursing facility—which may well rest on unbalanced or inaccurate data—is posted in a place easily accessible to residents, 42 CFR § 483.10(g)(1) (1998), disclosed
12 In Thunder Basin Coal Co. v. Reich, 510 U. S. 200 (1994), the aggrieved mine operator was similarly subject to civil penalties ($5,000) for each day of noncompliance with statutory provisions, which would become final and payable after review by the agency and the appropriate court of appeals. Id., at 204, n. 4, 218. But, unlike the nursing homes at issue here, the aggrieved mine operator apparently had the option of complying and then bringing a judicial challenge. See id., at 221 (Scalia, J., concurring in part and concurring in judgment).
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