                                                          NOT PRECEDENTIAL


                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT

                                 __________

                                 No. 12-2273
                                 __________

               JEWISH HOME OF EASTERN PENNSYLVANIA,
                                        Petitioner

                                      v.

            CENTERS FOR MEDICARE & MEDICAID SERVICES;
            DEPARTMENT OF HEALTH AND HUMAN SERVICES,
                                      Respondents

                                 __________

                   On Petition for Review of a Decision of the
                       Departmental Appeals Board of the
             United States Department of Health and Human Services
                               (HHS-1: A-12-19)

                  Submitted Under Third Circuit LAR 34.1(a)
                               April 26, 2013

       BEFORE: JORDAN, GREENBERG, and NYGAARD, Circuit Judges

                            (Filed: April 29, 2013)

                                 __________

                          OPINION OF THE COURT
                                __________

NYGAARD, Circuit Judge.
       Jewish Home of Eastern Pennsylvania petitions for a review of the final decision

by the Secretary of Health and Human Services imposing a civil money penalty for

numerous violations of Medicare participation requirements. Jewish Home failed to raise

its argument on preclusion before the Secretary and therefore we will not consider it on

appeal. 42 U.S.C. § 1320a-7a(e). Moreover, we denied a prior petition for review by

Jewish Home on its claim of selective enforcement because it failed to show that it was

treated differently from similarly situated nursing homes. See Jewish Home of Eastern

Pa. v. Centers for Medicare and Medicaid Services, 693 F.3d 359, 363 (3d Cir. 2012).

We apply the same rationale in denying this petition, concluding that the “fact finding

hearing” to which Jewish Home erroneously claims entitlement would be futile.

       For these reasons, we will deny the petition for review as wholly without merit.




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