619 F. App'x 225
4th Cir.2015Background
- NMS Healthcare of Hagerstown, a skilled nursing facility, was cited for Medicare-regulatory noncompliance and assessed a per‑instance civil monetary penalty (CMP).
- The Department of Health and Human Services affirmed the penalty; an ALJ upheld the per‑instance CMP and the Secretary affirmed.
- NMS petitioned the Fourth Circuit for review, challenging the agency’s finding that the deficiencies constituted "immediate jeopardy."
- Per‑diem CMPs and per‑instance CMPs have different statutory/regulatory ranges; immediate jeopardy affects per‑diem ranges but not the per‑instance range at issue here.
- NMS alternatively argued the immediate jeopardy finding was separately reviewable under the Administrative Procedure Act (APA).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court has jurisdiction to review the Secretary's immediate‑jeopardy finding attached to a per‑instance CMP | NMS: 4th Cir. has direct‑review jurisdiction under 42 U.S.C. § 1395i‑3 and implementing regs to review the immediate‑jeopardy determination | Gov: Direct‑review statute applies to per‑diem CMPs where immediate jeopardy affects the penalty range; it does not confer appellate jurisdiction over per‑instance CMPs | Court: Dismissed for lack of jurisdiction; immediate‑jeopardy finding irrelevant to per‑instance CMP range, so direct‑review statute does not apply |
| Whether the APA provides an independent basis for Fourth Circuit review of the immediate‑jeopardy determination | NMS: Immediate‑jeopardy finding is separate agency action reviewable under the APA | Gov: APA is not a jurisdiction‑conferring statute; federal‑question jurisdiction under 28 U.S.C. § 1331 lies in district court unless a direct‑review statute grants appellate review | Court: APA does not create appellate jurisdiction; absent a direct‑review statute, review belongs in district court under § 1331, so no appellate jurisdiction |
Key Cases Cited
- Grace Healthcare of Benton v. U.S. Dep’t of Health & Human Servs., 603 F.3d 412 (8th Cir. 2009) (reviewed per‑diem CMP where immediate‑jeopardy finding affected penalty range)
- Lee v. U.S. Citizenship & Immigration Servs., 592 F.3d 612 (4th Cir. 2010) (the APA does not itself confer jurisdiction)
- Nat’l Mining Ass’n v. Sec’y of Labor, 763 F.3d 627 (6th Cir. 2014) (initial agency‑review default is district court unless a direct‑review statute provides otherwise)