SUNSHINE HAVEN NURSING OPERATIONS, LLC, d/b/a Sunshine Haven Lordsburg, Petitioner, v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, CENTERS FOR MEDICARE & MEDICAID SERVICES, Respondent.
No. 12-9557.
United States Court of Appeals, Tenth Circuit.
Feb. 14, 2014.
William B. Schultz, General Counsel, Delores “Dee” Thompson, Chief Counsel, Region VI, Nigel F. Gant, Assistant Regional Counsel, United States Department of Health and Human Services, Dallas, Texas for Respondent.
Before MATHESON, Circuit Judge, PORFILIO, Senior Circuit Judge, and O’BRIEN, Circuit Judge.
MATHESON, Circuit Judge.
Petitioner Sunshine Haven Nursing Operations LLC (Sunshine) operates a 67-bed nursing home in Lordsburg, New Mexico. It petitions for review of the United States Department of Health and Human Services (HHS) Departmental Appeals Board’s (DAB) decision affirming an administrative law judge’s (ALJ) decision upholding mandatory and discretionary “remedies” (penalties) imposed on Sunshine by the Centers for Medicare and Medicaid Services (CMS). CMS remedies are commonly characterized as imposed by the Secretary of HHS.
We have jurisdiction under
We affirm the four CMPs and transfer the other issues to the United States District Court for the District of New Mexico under the federal transfer statute,
I. BACKGROUND
A. Legal Background
“Established in 1965 under Title XVIII of the Social Security Act, ..., Medicare is a federally funded health insurance program for the elderly and disabled.” Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 506, 114 S.Ct. 2381, 129 L.Ed.2d 405 (1994); see generally
An SNF is eligible to enter into a “provider agreement” with CMS to participate in the Medicare program and receive reimbursements for providing covered services. See
Ill. Council on Long Term Care, Inc., 529 U.S. 1, 7, 120 S.Ct. 1084, 146 L.Ed.2d 1 (2000) (citing
CMS is charged with overseeing compliance with Medicare’s conditions of participation. See Palomar Med. Ctr. v. Sebelius, 693 F.3d 1151, 1153 (9th Cir.2012); Massachusetts v. Sebelius, 638 F.3d 24, 30 (1st Cir.2011) (citing
B. Compliance Enforcement Against Sunshine
Sunshine contracted with CMS to provide Medicare services. In 2008, CMS received a complaint from a family member of a resident that Sunshine was not bathing her often enough. In response, CMS arranged for the New Mexico Department of Health, the SA for facilities in New Mexico, to conduct a survey of Sunshine. The SA conducted surveys on November 5 and 19, 2008, and on January 21, February 3, February 5, and April 2, 2009.4 The SA found instances of noncompliance in each survey and concluded that Sunshine was not in substantial compliance with conditions of participation.
As a result of the SA’s reports, CMS issued Sunshine a denial of payment for new admissions (DPNA) on February 5, 2009, based on a finding of three months’ continuous noncompliance beginning on November 5, 2008. See
Sunshine sought administrative review of CMS’s actions. After receiving briefing on the issues and holding a hearing, the ALJ found that Sunshine was not in continuous substantial compliance with conditions of participation for the six months from November 5, 2008, until May 6, 2009. The ALJ concluded that the Medicare statutes required the issuance of the DPNA, the termination of Sunshine’s provider agreement, and the disapproval of Sunshine’s NATCEP. The ALJ also concluded that the four per-instance CMPs were supported and reasonable. Sunshine sought review by the DAB, which determined that the ALJ’s findings were supported by substantial evidence. The DAB’s decision is the final agency decision and is subject to judicial review.
II. JURISDICTION
“Federal courts are ‘courts of limited jurisdiction,’ possessing ‘only that power authorized by Constitution and statute.’” Devon Energy Prod. Co. v. Mosaic Potash Carlsbad, Inc., 693 F.3d 1195, 1201 (10th Cir.2012) (quoting Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005)). As an Article III court, we have authority to determine our subject matter jurisdiction under the statutes Congress has enacted. Latu v. Ashcroft, 375 F.3d 1012, 1017 (10th Cir.2004).
Federal court jurisdiction under the Medicare program is complicated. Multiple statutes confer jurisdiction for judicial review of various Medicare determinations, including:
Sunshine originally asserted that we have jurisdiction under
Both Sunshine and the government argue in their supplemental briefs that we have jurisdiction over all issues in the petition for review. After further consideration, however, we conclude that we have jurisdiction under
A. Jurisdiction Over the CMPs
One of the statutory clauses in the section governing enforcement of the survey process to SNFs is entitled “Authority with respect to civil money penalties.”
Section 1320a-7a is entitled “Civil monetary penalties,” and subsection (e) is entitled “Review by courts of appeals.” Section 1320a-7a(e) provides, in part:
Any person adversely affected by a determination of the Secretary under this section may obtain a review of such determination in the United States Court of Appeals for the circuit in which the person resides, or in which the claim was presented, by filing in such court (within sixty days following the date the person is notified of the Secretary’s determination) a written petition requesting that the determination be modified or set aside. A copy of the petition shall be forthwith transmitted by the clerk of the court to the Secretary, and thereupon the Secretary shall file in the [e]ourt the record in the proceeding as provided in
section 2112 of Title 28 . Upon such filing, the court shall have jurisdiction of the proceeding and of the question determined therein, and shall have the power to make and enter upon the pleadings, testimony, and proceedings set forth in such record a decree affirming, modifying, remanding for further consideration, or setting aside, in whole or in part, the determination of the Secretary and enforcing the same to the extent that such order is affirmed or modified.
The plain language of the statute allows a circuit court to conduct initial judicial review of CMPs. The statute further provides that, “[u]pon the filing of the record with it, the jurisdiction of the court shall be exclusive and its judgment and decree shall be final, except that the same shall be subject to review by the Supreme Court of the United States, as provided in
B. No Jurisdiction Over Other Remedies Imposed on Sunshine
Sunshine asserts
Except as provided in paragraph (2), an institution or agency dissatisfied with a determination by the Secretary that it is not a provider of services or with a determination described in subsection (b)(2) of this section shall be entitled to a hearing thereon by the Secretary (after reasonable notice) to the same extent as is provided in
section 405(b) of this title, and to judicial review of the Secretary’s final decision after such hearing as is provided insection 405(g) of this title, except that, in so applying such sections and in applyingsection 405(l) of this title thereto, any reference therein to the Commissioner of Social Security or the Social Security Administration shall be considered a reference to the Secretary or the Department of Health and Human Services, respectively.
Any individual, after any final decision of the [Secretary of Health and Human Services] made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the [Secretary of Health and Human Services] may allow. Such action shall be brought in the district court of the United States for the judicial district in which the plaintiff resides, or has his principal place of business, or, if he does not reside or have his principal place of business within any such judicial district, in the United States District Court for the District of Columbia____The judgment of the court shall be final except that it shall be subject to review in the same manner as a judgment in other civil actions.
Section 405(g) confers initial jurisdiction under
Sections 1395cc(h)(1)(A) and 405(g) together provide for initial district court jurisdiction over challenges to the Secretary’s determinations of noncompliance. CMPs are based on certain types of noncompliance. Looking only at those statutes, it therefore seems that both the CMP and non-CMP issues in this case should have been brought initially in the district court. But
C. The Parties’ Arguments for Jurisdiction Over All Issues
Sunshine and the Government both contend this court has jurisdiction over all issues raised in Sunshine’s petition. Despite the parties’ desire for us to exercise jurisdiction over all of the issues, “‘no action of the parties can confer subject-matter jurisdiction upon a federal court. Thus, the consent of the parties is irrelevant.’” Prier v. Steed, 456 F.3d 1209, 1214 (10th Cir.2006) (alteration omitted) (quoting Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982)). “It is Congress that ‘has the constitutional authority to define the jurisdiction of the lower federal courts, and, once the lines are drawn, limits upon federal jurisdiction ... must be neither disregarded nor evaded.‘” Castaneda v. INS, 23 F.3d 1576, 1580 n. 2 (10th Cir.1994) (ellipsis in original) (quoting Keene Corp. v. United States, 508 U.S. 200, 207, 113 S.Ct. 2035, 124 L.Ed.2d 118 (1993)). We address the parties arguments in turn.
1. Broad Jurisdiction Under 42 C.F.R. § 498.90(a)(1)
In its supplemental brief, Sunshine argues that
The parties’ interpretation of
2. Cases from Other Circuits
The parties point to cases in which other circuits exercised initial jurisdiction over challenges to multiple types of remedies, including CMPs, but those decisions merely cited
We have found no decisions from this court or any other court addressing both
3. Sunshine’s Alternative Arguments
Sunshine’s alternative arguments that we should take jurisdiction over the non-CMP issues lack merit.
a. Policy Arguments
Sunshine first argues that we should read
b. Absurdity Doctrine
Sunshine next argues we should reject the plain meaning of
We have said that “where applying the plain language [of a statute] ‘would produce an absurd and unjust result which Congress could not have intended,’ we need not apply the language in such a fashion.” Robbins v. Chronister, 402 F.3d 1047, 1050 (10th Cir.2005) (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 574, 102 S.Ct. 3245, 73 L.Ed.2d 973 (1982)). “[T]his is because ‘interpretations of a statute which would produce absurd results are to be avoided if alternative interpretations consistent with the legislative purpose are available.‘” Id. (quoting Griffin, 458 U.S. at 575, 102 S.Ct. 3245).
Sunshine, however, has not shown the plain language of the statutes produces an absurd and unjust result, as opposed to a result it finds inconvenient. Nor has Sunshine discussed the legislative purpose of either
c. Pendent Appellate Jurisdiction
Finally, Sunshine asks us to exercise pendent appellate jurisdiction over its challenges to the Secretary’s non-CMP remedies, despite the plain language of
Pendent appellate jurisdiction is a “narrow” concept that does not apply to this case. See Moore v. City of Wynnewood, 57 F.3d 924, 930 (10th Cir.1995) (discussing Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 50-51, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995)). It can be considered only in conjunction with a non-final district court decision that is either immediately appealable as a collateral order under Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), or is certified
Our exercise of pendent appellate jurisdiction “is generally disfavored” even if it “might still be appropriate where the otherwise nonappealable decision is ‘inextricably intertwined’ with the appealable decision, or where review of the nonappealable decision is ‘necessary to ensure meaningful review’ of the appealable one.” Moore, 57 F.3d at 929-30 (quoting Swint, 514 U.S. at 51, 115 S.Ct. 1203). Even then, “a pendent appellate claim can be regarded as inextricably intertwined with a properly reviewable claim on collateral appeal only if the pendent claim is coterminous with, or subsumed in, the claim before the court on interlocutory appeal.” Id. at 930.
Sunshine relies on a single decision from this court where we noted that the Supreme Court had “suggested that pendent appellate jurisdiction might still be appropriate where the otherwise nonappealable decision is ‘inextricably intertwined’ with the appealable decision.‘” Moore, 57 F.3d at 930 (quoting Swint, 514 U.S. at 50-51, 115 S.Ct. 1203). Sunshine overlooks that we exercised pendent appellate jurisdiction in Moore in an entirely different context from this case. In Moore, we exercised appellate jurisdiction over an interlocutory appeal from the district court’s summary judgment denying the defendant’s assertion of qualified immunity. See id. at 927, 928-29. A co-defendant asked us to exercise pendent appellate jurisdiction over an issue that was not eligible for interlocutory review under the collateral order doctrine. See id. at 929. We did so because “our disposition of [the proper interlocutory] appeal fully resolve[d] the issues presented in the [other defendant’s] appeal.” Id.
As noted above, we have initial jurisdiction under
* * *
We conclude the district court has initial jurisdiction for judicial review of the Secretary’s determinations of noncompliance under
III. CIVIL MONETARY PENALTIES
Sunshine challenges the four civil monetary penalties. CMS based the penalties on its determinations from the February 5 and April 2, 2009 surveys that the facility was not in substantial compliance with federal regulations and posed immediate jeopardy or actual harm to residents. CMS imposed two $5,000 fines based on the February 5 survey for deficiencies posing immediate jeopardy to residents. It imposed two $2,000 fines based on the April 2 survey for deficiencies causing actual harm to a resident. See
A. Standard of Review
We have previously set out in detail the standard of review applicable to a civil monetary penalty imposed under the Medicare Act. See St. Anthony Hosp., 309 F.3d at 686, 692 & n. 7. We stated that “[t]his court is not in the business of rubber-stamping agency action.” Id. at 690 (citing Dickinson v. Zurko, 527 U.S. 150, 162, 119 S.Ct. 1816, 144 L.Ed.2d 143 (1999)). “The applicable code provision,
It is not enough to affirm “when the reviewing court could find in the record evidence which, when viewed in isolation, substantiated the Board’s findings.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 478, 71 S.Ct. 456, 95 L.Ed. 456 (1951) (examining same statutory “substantial evidence” language as in
“Our review [of a CMP] is also governed by [the Administrative Procedure Act,]
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; [or]
(D) without observance of procedure required by law....
Id. (alteration and ellipsis in original) (quoting
B. Review of the CMPs
1. February 5, 2009 Survey—Two Per-instance CMPs of $5,000
Two deficiencies from the February 5, 2009 survey led to two $5,000 per-instance
a. Facts from the February 5, 2009 Survey
On January 2, 2009, an elderly male resident designated R50 for purposes of this case assaulted his elderly girlfriend, R18, in her room, giving her a slight bloody nose. R50 lived across the hall from R18. Sunshine knew they considered each other boyfriend/girlfriend, but after this physical assault, Sunshine immediately took steps to investigate and rectify the situation. This included (but was not limited to) moving R18 to another room, attempting to transfer R50 immediately to another nursing home, and revising R50’s care plan to monitor his whereabouts until he could be transferred.
Two days later, on January 4, R50 was seen in the hall kissing and fondling the breast of another female resident, R6, who had low mental competency, was nonverbal, and was unable to consent to sexual activity. Sunshine concluded that R50’s actions toward R6 constituted sexual abuse and again took immediate steps to investigate and rectify the situation. This included (but was not limited to) calling the police, who came to Sunshine and warned R50 that he could be arrested for felony assault and to leave the women alone. Sunshine also updated R50’s care plan to specify 30-minute whereabouts checks.
Sunshine transferred R50 to another facility on February 5. Between January 4 and February 5, however, Sunshine saw R50 in the hall with R18 five times and the SA saw them together on two other occasions during a survey. On some of these occasions, R50 was holding R18’s hand or kissing her. Each time Sunshine found the two residents together, it separated them. R50 never encountered R6 again, and there were no further incidents of actual abuse.
b. Regulations Applicable to SNFs
The regulations specify that each “resident has the right to be free from verbal, sexual, physical, and mental abuse.”
SNFs must “take reasonable steps to prevent abusive acts, regardless of their source.” Pinehurst Healthcare & Rehab. Ctr. v. CMS, DAB No. 2246, at HHS 5, 2009 WL 1455339 (DAB Apr. 30, 2009) (internal quotation marks omitted). And these steps must be effective. Lake Mary Health Care v. CMS, DAB No. 2081, foll. Analysis heading 4(B), 2007 WL 1560153 (DAB May 14, 2007). The
Moreover, “[s]ubstantial compliance” is defined as “a level of compliance with the requirements of participation such that any identified deficiencies pose no greater risk to resident health or safety than the potential for causing minimal harm.”
c. CMS Determinations and ALJ/DAB Review
CMS found that R50’s assault on R18 constituted physical abuse in violation of
The ALJ found that Sunshine’s “interventions were ineffective to prevent Resident 50 from abusing Resident 6 and to prevent several subsequent instances of Resident 50 having contact with Resident 18.” ALJ Dec. at HHS 39. The DAB upheld this finding. DAB Dec. at HHS 23, 25.
d. Analysis of Sunshine’s Challenge
Sunshine argues the DAB improperly found that it failed to prevent the sexual abuse of R6 after the physical assault on R18. See id. at HHS 23. We recognize the ALJ and the DAB deviated from the reasons CMS gave for the fines. The latter did not include Sunshine’s failure to prevent the abuse of R6. The CMS relied instead on Sunshine’s actions — or inactions — after the R6 assault. See Admin. R. Vol. 7, at 2119, 2131. Nonetheless, we find no reversible error because the ALJ and DAB relied on those reasons as well.
Addressing Sunshine’s alleged failure to monitor R50 after the two as-
saults
Substantial evidence also supported the DAB’s conclusion that Sunshine failed to protect residents from abuse after R50’s two assaults. The undisputed evidence that Sunshine repeatedly found R50 with R18 despite its plans to monitor his whereabouts supports the DAB’s conclusion that Sunshine failed to protect R18 from the potential for abuse. See DAB at HHS 23, 25. Sunshine does not support its argument that R18 initiated some of these interactions. Even if she did initiate some of these encounters, Sunshine also fails to explain how it fulfilled its obligation to protect R18 from the potential for abuse by R50.
We conclude that substantial evidence supports the Secretary’s findings of noncompliance underlying the two $5,000 CMPs arising from the February 5, 2009 survey. Because we affirm the two $5,000 fines, the Secretary’s disapproval of Sunshine’s nurse aide training and competency evaluation program (NATCEP) was proper because the disapproval of a facility’s NATCEP is mandatory when a CMP is $5,000 or greater.
2. April 2, 2009 Survey—Two Per-instance CMPs of $2,000
CMS imposed two $2,000 CMPs based on violations of
Sunshine argued to the ALJ that the February 5, 2009 survey also cited a deficiency under
Sunshine argued to the DAB that imposing a CMP for a “virtually identical” deficiency under these circumstances would improperly punish the facility for the same
The DAB upheld the ALJ’s conclusion that Sunshine failed to show the additional deficiencies cited under
Sunshine argues again to this court that
We agree with the DAB that “[t]he purpose of [
C. Sunshine’s Burden of Proof Argument
Both parties urge us to address Sunshine’s two-page argument, see Aplt. Opening Br. at 58-60, that the DAB improperly shifted the burden of proof to Sunshine to show substantial compliance with conditions of participation instead of placing the burden on CMS to show that the facility was noncompliant. We agree this issue is sufficiently connected to the CMPs as to fall within our jurisdiction under
The Federal Rules of Appellate Procedure require the argument section of an appellant’s brief to “contain ... appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies.”
IV. TRANSFER OTHER ISSUES TO DISTRICT COURT UNDER 28 U.S.C. § 1631 OR DISMISS THEM
As discussed earlier, this case presents a jurisdiction problem. Sunshine wishes to challenge two sets of issues based on the Secretary’s determinations of noncompliance between November 5, 2008, and May 6, 2009: (1) the CMPs (or fines) and (2) the penalties that are not CMPs. Under
Congress has authorized courts of appeals and certain other courts to transfer cases to cure a want of jurisdiction:
Whenever a civil action is filed in a court as defined in
section 610 of this title or an appeal, including a petition for review of administrative action, is noticed for or filed with such a court and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court in which the action or appeal could have been brought at the time it was filed or noticed, and the action or appeal shall proceed as if it had been filed in or noticed for the court to which it is transferred on the date upon which it was actually filed in or noticed for the court from which it is transferred.
Section 1631 “permits a court to transfer a case to a court that would have had jurisdiction on the date when the action was filed, where the transferring court lacks jurisdiction over the case in question, and where such a transfer would be in the interest of justice.” Berrum-Garcia v. Comfort, 390 F.3d 1158, 1162-63 (10th Cir. 2004). “Factors militating for a transfer include a finding that a new action filed by the litigant would be barred as untimely, and a finding that the original action was filed in good faith.” Coleman v. United States, 106 F.3d 339, 341 (10th Cir.1997) (per curiam) (quotation omitted).
Sunshine’s case would be time-barred if filed in the district court now because an action seeking judicial review under
We have previously observed that the legislative history of
V. CONCLUSION
We deny the petition regarding the four per-instance civil monetary penalties. We transfer the issues over which we lack jurisdiction under