Wilson Bermudez v. Kessler Institute for Rehabilitation

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1610-13T4
WILSON BERMUDEZ,
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
January 8, 2015
v.
APPELLATE DIVISION
KESSLER INSTITUTE FOR
REHABILITATION,
Defendant-Appellant.
_______________________________________
Argued October 22, 2014 – Decided January 8, 2015
Before Judges Alvarez, Waugh, and Carroll.1
On appeal from an interlocutory order of the
Superior Court of New Jersey, Law Division,
Union County, Docket No. L-4077-12.
Walter F. Kawalec, III, argued the cause for
appellant (Marshall, Dennehey, Warner,
Coleman & Goggin, attorneys; Mr. Kawalec and
Ryan T. Gannon, on the briefs).
Samuel Tsinman argued the cause for
respondent (Forman, Cardonsky & Lawrence,
attorneys; Mr. Tsinman, on the brief).
The opinion of the court was delivered by
WAUGH, J.A.D.
1
Judge Carroll did not participate in oral argument. However,
with consent of the parties he has joined in this opinion. R.
2:13-2(b).
By leave granted, defendant Kessler Institute for
Rehabilitation (Kessler) appeals the Law Division's August 23,
2013 order denying its motion for partial summary judgment with
respect to claims alleging violations of the Nursing Home
Responsibilities and Rights of Residents Act (Nursing Home Act),
N.J.S.A. 30:13-1 to -17, and federal regulations governing
nursing homes. It also appeals the October 11, 2013 order
denying its motion for reconsideration. For the reasons
explained in this opinion, we reverse.
I.
We discern the following facts and procedural history from
the record on appeal.
In November and December 2010, Bermudez was a patient at
Kessler's West Facility, located in West Orange. He had been
transferred there from Overlook Hospital on November 19, at
which time he had an "unknown diagnosis of generalized
progressive weakness with intermittent dystonic
spasmodic/dystonic movement of the upper extremities."
Upon admission, Bermudez' treatment plan included an
"inpatient comprehensive interdisciplinary rehabilitation
program to address [his] impairments and medical conditions
. . . while assessing equipment needs and compensatory
strategies, with coordinated interdisciplinary services that
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[would] include physical therapy, occupational therapy, and
close monitoring and treatment with 24-hour rehabilitative
nursing." The "interdisciplinary program [was to] be performed
under the direction of a physiatrist."
The admitting doctor characterized Bermudez' "inpatient
hospital rehabilitation stay [as] medically necessary to achieve
important health and functional goals," adding that Bermudez
required "frequent physician visits, 24-hour rehabilitation
nursing, and a coordinated intensive rehabilitation program
. . . to address complex medical, nursing, and rehabilitation
needs." According to the admission report, the "estimated
length of stay" was "[t]hree to four weeks." Bermudez was
discharged on December 24, five weeks after his admission.
In November 2012, almost two years after his discharge,
Bermudez filed a six-count complaint against Kessler. He
alleged that, while at Kessler's West Facility, he "sustained
injuries including but not limited to unnecessary falls and
fractures." Although the complaint also premises liability on
common law negligence, the legal theories involved in this
appeal are based on alleged violation of the Nursing Home Act
and the following federal regulations: 42 C.F.R. §§ 483.5,
483.13(c)(2), 483.20(b) and (d), 483.25, and 483.30(a)(1).
3 A-1610-13T4
In July 2013, Kessler moved for summary judgment on counts
one, two, and five of the complaint, as well as all other claims
for damages premised on the Nursing Home Act or the federal
regulations. Kessler argued that the West Facility was a
comprehensive rehabilitation hospital, rather than a nursing
home. The issue of whether the West Facility is a "nursing
home" within the meaning of the Nursing Home Act is significant,
in large part, because the Act allows the recovery of treble
damages and attorneys' fees by a successful plaintiff, N.J.S.A.
30:13-4.2, -8, relief which would not be available in a
traditional negligence action.
On August 23, following oral argument, the motion judge
denied Kessler's motion, finding that Kessler was "a nursing
home" within the meaning of N.J.S.A. 30:13-2(c).2 The motion
judge denied Kessler's subsequent motion for reconsideration.
We granted leave to appeal.
II.
On appeal, Kessler argues that the motion judge erred in
determining that the West Facility is a nursing home for the
purposes of N.J.S.A. 30:13-2(c) and therefore subject to the
provisions of the Nursing Home Act, including enhanced recovery
2
Although the judge denied the entire motion, he did not
specifically address the federal regulations in his oral
decision or his decision denying reconsideration.
4 A-1610-13T4
such as treble damages and attorneys' fees. Bermudez counters
that, although the West Facility may be licensed as a
comprehensive rehabilitation hospital, it is nevertheless
subject to the Nursing Home Act because it meets the Act's broad
definition of nursing home.
A.
We review a grant of summary judgment under the same
standard as the motion judge. Rowe v. Mazel Thirty, LLC, 209
N.J. 35, 41 (2012). "[T]he legal conclusions undergirding the
summary judgment motion itself" are reviewed "on a plenary de
novo basis." Estate of Hanges v. Metro. Prop. & Cas. Ins. Co.,
202 N.J. 369, 385 (2010). The issue before us is whether, as
the motion judge found, an institution such as a comprehensive
rehabilitation hospital is covered by the Nursing Home Act
because of the breadth of the Act's definition of "nursing
home," especially when read liberally because of the Act's
remedial nature. It is a purely legal issue subject to our
plenary review.
In construing a statute, our "overriding goal is to
determine as best we can the intent of the Legislature, and to
give effect to that intent." State v. Hudson, 209 N.J. 513, 529
(2012).
When interpreting a statute, our main
objective is to further the Legislature's
5 A-1610-13T4
intent. To discern the Legislature's
intent, courts first turn to the plain
language of the statute in question. In
reading the language used by the
Legislature, the court will give words their
ordinary meaning absent any direction from
the Legislature to the contrary. If the
plain language leads to a clear and
unambiguous result, then [the] interpretive
process is over.
Where the plain meaning does not point
the court to a clear and unambiguous result,
it then considers extrinsic evidence from
which it hopes to glean the Legislature's
intent. Included within the extrinsic
evidence rubric are legislative history and
statutory context, which may shed light on
the drafters' motives. Likewise,
interpretations of the statute and cognate
enactments by agencies empowered to enforce
them are given substantial deference in the
context of statutory interpretation.
[TAC Assocs. v. N.J. Dep't of Envtl. Prot.,
202 N.J. 533, 540-41 (2010) (alteration in
original) (citations and internal quotation
marks omitted).]
Regarding overbroad statutes, the Court has stated:
Courts are cautioned against rewrit[ing] a
plainly-written enactment of the Legislature
or presum[ing] that the Legislature intended
something other than that expressed by way of
the plain language. If the language is clear
on its face, courts should enforce [the
statute] according to its terms.
However, where a literal interpretation
would create a manifestly absurd result,
contrary to public policy, the spirit of the
law should control. Thus, we have held that
when all is said and done, the matter of
statutory construction . . . will not justly
turn on literalisms, technisms, or the so-
6 A-1610-13T4
called formal rules of interpretation; it will
justly turn on the breadth of the objectives
of the legislation and the commonsense of the
situation. Accordingly, when a literal
interpretation of individual statutory terms
or provisions would lead to results
inconsistent with the overall purpose of the
statute, that interpretation should be
rejected.
[Perrelli v. Pastorelle, 206 N.J. 193, 199-
201 (2011) (alterations in original)
(citations and internal quotation marks
omitted).]
B.
The Nursing Home Act defines a "nursing home" as
any institution, whether operated for profit
or not, which maintains and operates
facilities for extended medical and nursing
treatment or care for two or more nonrelated
individuals who are suffering from acute or
chronic illness or injury, or are crippled,
convalescent or infirm and are in need of
such treatment or care on a continuing
basis. Infirm is construed to mean that an
individual is in need of assistance in
bathing, dressing or some type of
supervision.
[N.J.S.A. 30:13-2(c).]
There appears to be no dispute that Kessler's West
Facility, which is licensed by the New Jersey Department of
Health and Senior Services (Department), is a comprehensive
rehabilitation hospital. A "rehabilitation hospital" is defined
by N.J.A.C. 8:33-1.3 as
a hospital licensed by the Department to
provide comprehensive rehabilitation
7 A-1610-13T4
services to patients for the alleviation or
amelioration of the disabling effects of
illness. Comprehensive rehabilitation
services are characterized by the
coordinated delivery of multidisciplinary
care intended to achieve the goal of
maximizing the self-sufficiency of the
patient. A rehabilitation hospital is a
facility licensed to provide only
comprehensive rehabilitation services or is
a distinct unit providing only comprehensive
rehabilitation services located within a
licensed health care facility.
"Comprehensive rehabilitation" is defined as "services offered
by a licensed rehabilitation hospital and characterized by the
coordinated delivery of multidisciplinary care intended to
achieve the goal of maximizing the self-sufficiency of the
patient." Ibid.The description of a nursing home in N.J.S.A. 30:13-2(c)
does not, in our opinion, clearly and unambiguously include a
comprehensive rehabilitation hospital, as described in N.J.A.C.
8:33-1.3. The two types of facility are commonly understood to
be different entities.
In outlining the "significant differences in the patients,
the health-care providers, and the institutional structures of
nursing homes and hospitals," our Supreme Court made the
following observations:
First, residents of nursing homes are a
particularly vulnerable population.
Nursing-home residents are often quite
elderly, with an average age of eighty-two
8 A-1610-13T4
nation-wide. Most suffer from chronic or
crippling disabilities and mental
impairments, and need assistance in
activities of daily living. The vast
majority of patients who enter a nursing
home will eventually die there, and their
illnesses and deaths will be viewed as
consistent with their advanced age and
general infirmity.
Second, nursing-home residents are
often without any surviving family. More
than half have no surviving parents,
siblings, or children. Their social
isolation is severe. Many never have visits
from anyone and few ever spend nights away
except for medical reasons. Thus, the
involvement of caring family members . . .
may not be a realistic possibility for many
nursing-home residents.
Third, physicians play a much more
limited role in nursing homes than in
hospitals. The Subcommittee on Long-Term
Care of the Senate Special Committee on
Aging states that physicians visit their
patients in nursing homes infrequently, and
then for only brief periods of time.
According to the Subcommittee, physicians
avoid nursing homes because of the general
shortage of physicians, the low priority for
elderly citizens in medical education, the
red tape and low reimbursement associated
with Medicare and Medicaid, the shortage of
trained "backup" personnel in nursing homes,
the emphasis on acute care in American
medicine, the depressing environment in many
nursing homes, and the disincentives of time
and travel. The "missing physician" is the
general rule in nursing homes. . . .
Fourth, nursing homes as institutions
suffer from peculiar industry-wide problems
to which hospitals are less prone. . . .
. . . .
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Finally, nursing homes generally are not
faced with the need to make decisions about a
patient's medical care with the same speed
that is necessary in hospitals. Hospitals are
called upon for urgent care, and treatment
decisions in that context must be made
quickly. Nursing homes, in contrast, care for
individuals whose lives are slowly declining
and for whom treatment issues arise more
gradually and are foreseeable longer in
advance.
[In re Conroy, 98 N.J. 321, 374-77
(citations omitted) (1985).]
In addition, five years prior to the enactment of the Nursing
Home Act in 1976, the Legislature used the more generic term
"health care facility" to encompass entities such as "a general
hospital, special hospital, . . . , rehabilitation center,
extended care facility, skilled nursing home, nursing home,
[and] intermediate care facility." L. 1971, c. 136, § 2
(codified as N.J.S.A. 26:2H-2).
To determine whether the Legislature nevertheless meant to
include comprehensive rehabilitation hospitals in the Nursing
Home Act, we turn to its legislative history. That history
begins with the passage of a concurrent resolution for the
creation of "a commission to inquire into the condition of the
nursing homes and the personal care facilities for the aged in
[New Jersey]." S. Con. Res. 15 (1974). The resolution noted
that
10 A-1610-13T4
[n]ursing homes and personal care facilities
for the elderly have proliferated greatly in
recent years as a result of the increasing
proportion of aged persons in the population
and the inability of our modern mobile
society to offer to the aged the secure
position in a family group which was
traditional in the former years; and,
. . . The growth of the nursing home
industry has received extraordinary impetus
since the coming of Medicare and Medicaid
programs, which have made available
considerable funds for the provision of such
services; and,
. . . The growth of this industry has
been accompanied by allegations regarding
the condition of the nursing homes and the
personal care facilities for the aged in
this State; and,
. . . It is incumbent upon the
Legislature to determine to what extent, if
any, these allegations are based on fact;
and,
. . . While this situation is currently
the subject of several Congressional
investigations, primary responsibility for
regulation and supervision of these
facilities rests with State Government.
[Ibid.]
The duty of the Nursing Home Study Commission (Commission), as
it came to be known, was
to conduct a thorough inquiry into the
current condition of the nursing homes and
the personal care facilities for the elderly
in [New Jersey], including the organization,
operation, standards and policies of such
facilities, the adequacy of such facilities
to the social needs of the State, the
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sufficiency of the State's standards for the
regulation and supervision of such
facilities and of the implementation and
enforcement thereof.
[Ibid.]
The ultimate goal of the Commission was "to make definite
recommendations for legislative and administrative changes."
Personal Care Facilities For the Elderly in New Jersey: Hearing
Before the Nursing Home Study Comm'n, 1-2 (Apr. 16, 1975)
[hereinafter Hearing] (statement of Sen. John J. Fay, Jr.,
Chairman, Nursing Home Study Comm'n). To that end, the
Commission held four public hearings "to listen to those
concerned with nursing homes and the care of the elderly."
Nursing Home Study Comm'n, Interim Report 3 (1976).
In her testimony before the Commission, Joanne Finley,
M.D., the Commissioner of Health at the time, pointed out that
"institutionalized long-term care is provided in [New Jersey] in
a variety of health facilities, not just nursing homes. There
are long-term care units in special hospitals, general
hospitals, intermediate care facilities, homes for the aged and
a number of different names." Hearing, supra, 4-5 (statement of
Joanne Finley, M.D., Comm'r of the State Dep't of Health). She
described how those types of facilities were regulated
differently depending on whether they received federal funding
in the form of Medicare or Medicaid. Id. at 5. Concerning
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"nursing homes in the generic sense," only intermediate care
facilities, skilled nursing facilities, and homes for the aged
were eligible for participation in the federal programs. Ibid.
Thus, facilities that did not receive funding were not being
regulated in the same way as facilities that did.
In a written statement submitted to the Commission, Finley
listed seven types of facilities that provide long-term care.
Statement on Long-Term Health Care Services & Facilities
Presented to New Jersey Nursing Home Investigation Comm'n by
Joanne E. Finley, M.D., M.P.H., State Commissioner of Health, 2-
3 (Apr. 16, 1975). They were: nursing homes (also known as
SNFs, i.e., skilled nursing facilities), intermediate care
facilities (ICFs), homes for the aged (also classified as
skilled nursing facilities), government medical institutions,
special hospitals, general hospitals, and facilities for the
mentally disabled. Ibid. Of the seven, Finley considered
nursing homes, intermediate care facilities, and homes for the
aged to be "nursing homes in the generic sense." Id. at 3. She
added:
The Intermediate Care Facility (ICF) is, in
actuality, a nursing home in all respects
except that, the required intensity of
nursing care (measured in terms of nursing
hours per patient per day) is less than that
in a nursing home. In nursing homes, which
are called Skilled Nursing Facilities (SNF),
the requirement is 2.75 nursing hours per
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patient per day. In ICF's the patients are
evaluated as requiring either Level "A" care
(2.5 hours) or Level "B" care (1.25 hours).
. . .
Homes for the Aged are "combination"
facilities which are usually sponsored by
religious or fraternal groups. One section
of the Home will house residential beds for
the elderly and these beds are classified as
Sheltered Care Boarding Home Beds. There is
also an infirmary section in the Home which
provides skilled nursing care and this
section is classified as a SNF.
[Ibid.]
In its statement to the bill that eventually became the
Nursing Home Act, the Health and Welfare Committee of the Senate
described the statute's purpose as follows:
Residents of nursing homes are all too
often given inferior treatment because they
are old, feeble or poor. They are in need
of a bill of [rights] similar to the bill
recently passed by the Legislature and
signed into law, enumerating certain rights
of the mentally ill.
This bill not only declares that
nursing home residents have certain rights;
it also lists a number of responsibilities
that nursing homes have with regard to the
care of residents.
The Federal government has established
clear standards of care for residents of
skilled and intermediate care nursing
facilities who are Medicaid or Medicare
recipients. However, this bill makes
similar standards of care applicable to all
nursing homes and nursing home residents in
the State and, moreover, makes such
14 A-1610-13T4
standards an expression of legislative
policy and intent.
[Senate Institutions, Health and Welfare
Committee, Statement to S. 944 (1976).]
We glean from the history leading up to introduction of the
legislation and the Senate committee's statement that, although
the Legislature wrote a broad definition of "nursing home," it
nevertheless intended to limit the statute's reach to nursing
homes and similar facilities. The Legislature set out to study
nursing homes, as generally understood, and ended the process by
enacting legislation to address the problems it found with
respect to nursing homes and similar facilities. For that
reason, it used "nursing home" in the title of the Act and the
definitional section, which it expanded to encompass the types
of similar facilities outlined by Finley in her testimony.
The legislative history contains nothing from which we can
conclude that the Legislature sought to include an entity such
as a comprehensive rehabilitation hospital. Had the Legislature
intended to apply the requirements of the Nursing Home Act to
institutions such as comprehensive rehabilitation hospitals, it
would undoubtedly have used a more inclusive term than "nursing
home," such as "health care entity," in the title and text of
the legislation.
15 A-1610-13T4
For the reasons explained above, we hold that a
comprehensive rehabilitation hospital, such as Kessler's West
Facility, is not a "nursing home" within the meaning of N.J.S.A.
30:13-2(c) and, as a consequence, is not subject to the
provisions of the Nursing Home Act.3 We reverse the motion
judge's denial of summary judgment on that issue and remand for
entry of summary judgment as to all claims premised on the
Nursing Home Act and further proceedings consistent with this
opinion.
Reversed and remanded.
3
Neither the motion judge nor the parties adequately addressed
the issue of the federal regulations. As a result, we express
no opinion as to their applicability, if any. See Zuidema v.
Pedicano, 373 N.J. Super. 135, 151-52 (App. Div. 2004) ("Our
courts have recognized both the availability and unavailability
of administrative regulations as evidence of a standard of
care."), certif. denied, 183 N.J. 215 (2005).
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