UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-2307
NMS HEALTHCARE OF HAGERSTOWN, LLC,
Petitioner,
v.
UNITED STATES DEPARTMENT OF HEALTH & HUMAN SERVICES,
Respondent.
On Petition for Review of an Order of the Department of Health
and Human Services. (A-14-95).
Submitted: September 30, 2015 Decided: October 13, 2015
Before KING and FLOYD, Circuit Judges, and DAVIS, Senior Circuit
Judge.
Petition dismissed by unpublished per curiam opinion.
Mark A. Yost, Jr., Hyattsville, Maryland, for Petitioner. Rod
J. Rosenstein, United States Attorney, Jane E. Andersen,
Assistant United States Attorney, Baltimore, Maryland, for
Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
NMS Healthcare of Hagerstown (“NMS”), a skilled nursing
care facility, seeks review of a final decision of the Secretary
of the Department of Health and Human Services. That decision
affirmed an administrative law judge’s (“ALJ”) decision
upholding the imposition of a per instance civil monetary
penalty (“CMP”) against NMS for its noncompliance with federal
Medicare regulations. We dismiss the petition for lack of
jurisdiction.
If a skilled nursing facility fails to comply with the
requirements of the federal Medicare program, the Secretary is
authorized to “impose a civil money penalty in an amount not to
exceed $10,000 for each day of noncompliance.” 42 U.S.C.
§ 1395i-3(h)(2)(B)(ii)(I) (2012). A party “adversely affected
by a determination of the Secretary [to impose a CMP] may obtain
a review of such determination” by filing a petition in the
appropriate United States Court of Appeals and requesting that
the determination be modified or set aside. 42 C.F.R. § 1320a-
7a(e) (2014); see 42 U.S.C. § 1395i-3(h)(2)(B)(ii)(I) (cross-
referencing regulation).
Generally, a finding that a skilled nursing facility’s
deficiencies caused immediate jeopardy to the health or safety
of the residents or patients is not reviewable under the
regulations. 42 C.F.R. § 498.3(d)(10)(i) (2014). While a
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facility may appeal a finding of noncompliance, § 498.3(b)(13)
(2014), it may not appeal the level of noncompliance unless that
level would affect the range of CMP amounts that could be
imposed. § 498.3(b)(14)(i) (2014). For deficiencies
constituting immediate jeopardy, penalties range from $3,050 to
$10,000 per day. § 488.438(a)(1)(i) (2014). For deficiencies
that do not constitute immediate jeopardy but have the potential
for more than minimal harm, penalties range from $50 to $3,000
per day. § 488.438(a)(1)(ii) (2014). However, monetary
penalties for a single instance of noncompliance range from
$1,000 to $10,000 per instance regardless of the existence of
immediate jeopardy. § 488.438(a)(2) (2014).
In the instant petition, NMS challenges only the finding of
immediate jeopardy and asserts that this court possesses
jurisdiction by virtue of 42 U.S.C. § 1395i-3(h)(2)(B)(ii)(I)
and 42 C.F.R. § 1320a-7a(e). However, the cases cited by NMS in
support of our jurisdiction are distinguishable because they did
not address the imposition of a per instance CMP, but instead
reviewed the imposition of per diem CMPs, penalties to which the
immediate jeopardy finding is relevant in determining the
appropriate range of the CMP. See Grace Healthcare of Benton v.
U.S. Dep’t of Health & Human Servs., 603 F.3d 412, 417 (8th Cir.
2009) (based on immediate jeopardy determination, facility fined
$3,500 per day for two days and lost training program). The
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immediate jeopardy determination plays no role, however, in
determining the range of a per instance CMP as levied in the
instant case.
NMS asserts, in the alternative, that this court has
jurisdiction because the immediate jeopardy determination is a
separate agency action with harmful consequences that fall
within the Administrative Procedures Act. Although the APA
provides that “[a] person . . . adversely affected . . . by
agency action . . . is entitled to judicial review thereof,” 5
U.S.C. § 702 (2012), the APA “is not a jurisdiction-conferring
statute,” Lee v. U.S. Citizenship & Immigration Srvs., 592 F.3d
612, 619 (4th Cir. 2010) (internal quotation marks omitted).
Instead, the jurisdictional source for an action under the APA
is 28 U.S.C. § 1331 (2012), the federal question statute, which
grants district courts original jurisdiction to review agency
action. Id.
“Because district courts have general federal question
jurisdiction under 28 U.S.C. § 1331, the normal default rule is
that persons seeking review of agency action go first to
district court rather than to a court of appeals.” Nat’l Mining
Ass’n v. Sec’y of Labor, 763 F.3d 627, 632 (6th Cir. 2014)
(internal quotation marks omitted). “Initial review of agency
decisions occurs at the appellate level only when a direct-
review statute specifically gives the court of appeals subject-
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matter jurisdiction to directly review agency action.” Id.
(internal quotation marks omitted). As discussed above, the
direct-review statute conferring jurisdiction on this court is
inapplicable here.
Accordingly, we conclude that we lack jurisdiction over
NMS’ petition for review. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the
decisional process.
PETITION DISMISSED
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