NLRB Regional Director Issues Decision on Mercy Home Care v. Massachusetts Nurses Association

WASHINGTON, Aug. 31 -- The National Labor Relations Board issued the following decision by Regional Director on Mercy Home Care v. Massachusetts Nurses Association:

MERCY HOME CARE (Employer)

and

MASSACHUSETTS NURSES ASSOCIATION (Petitioner)

Case 01-RC-201662

DECISION AND DIRECTION OF ELECTION

The Massachusetts Nurses Association (MNA) seeks to represent a bargaining unit composed of all professional employees employed by Mercy Home Care (the Employer or MHC), including regular professional nurses (RNs), visiting RNs, regular professional RN preceptor (RN preceptor), wound ostomy continence RN (WOCN), senior case manager, physical therapists, occupational therapists, speech language pathologists, and social workers. The Union does not seek to represent any nonprofessional employees.

The Employer contends that the unit must include three additional classifications of employees whom it contends are professionals: licensed practical nurses (LPNs), physical therapy assistants (PTAs), and home health aides. 1 The Employer asserts further that the LPNs, PTAs, and home health aides share an overwhelming community of interest with the petitioned-for professional employees under the test set forth in Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011), enf d. sub nom. Kindred Nursing Centers East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013). The MNA contends that the LPNs, PTAs, and HHAs should be excluded from the unit as nonprofessionals.

The Employer further contends that all professionals who perform case management responsibilities, i.e., regular professional RNs, physical therapists, and occupational therapists, are statutory supervisors by virtue of that role. The Employer contends that the RN preceptor, WOCN, and senior case manager must be excluded from the unit as statutory supervisors. The MNA contends that all of these individuals are nonsupervisory employees.2

I find that the LPNs, PTAs, and HHAs are not professional employees. As the Union does not seek to represent nonprofessionals, I need not consider their community of interest with the petitioned-for employees. Accordingly, the LPNs, PTAs, and HHAs shall be excluded from the unit.

I find that the Employer has failed to meet its burden of demonstrating that those individuals who engage in case management, including regular professional RNs, physical therapists, and occupational therapists, are supervisory employees. Nor has the Employer established that the RN preceptor,4 the senior case manager, and the WOCN are supervisory employees. Accordingly, all of these positions shall be included in the unit.

The Employer's operations

MHC is a certified home health agency that provides skilled care to patients in their homes.5 MHC maintains a main office in West Springfield, Massachusetts where most of its employees are based. MCH also has a small office in Westfield, Massachusetts that is used by its clinicians in the field.

MHC's Executive Director is Susan Pickett. Jean Zaleski, the Director of Clinical Practice, reports to Pickett. Five clinical managers, all of whom are RNs, report to Zaleski: Deb Yelle, Leeanne Orluk, Lisa LeBlanc, Sara Magipinto and Shaun Sullivan.6 With the exception of the WOCN, all of the petitioned-for professional employees belong to multidisciplinary teams that report to one of the clinical managers. Each multidisciplinary team generally includes regular professional RNs, visiting RNs, physical therapists, occupational therapists, speech therapists, social workers, LPNs, PTAs, and home health aides who provide medical treatment to patients in their homes.7

Professional status of the LPNs

MHC's patients must be referred by a physician. Patients may be referred to MHC for various medical conditions, such as uncontrolled diabetes or congestive heart failure, or because they need services such as wound care, IV antibiotics, or education about new medications. Newly referred patients are assigned to a primary clinician who is referred to as the patient's case manager and is responsible for overseeing the patient's care. Case management responsibilities are generally assigned to regular professional RNs8 and to physical therapists.9 Visiting RNs, LPNs, PTAs, and home health aides are never case managers. Not all RNs are case managers.

Case managers visit new patients to do an admission, which involves assessing their condition and needs. A regular professional RN other than the patient's case manager may also do an admission. RN case managers perform a neurological, respiratory, cardiac, and skin assessment. They listen to the patient's lungs with a stethoscope and assess bowel sounds. They observe how the patient walks and assess the safety of the home environment. They assess wound care issues and ask the patient questions about diet and medications. Neither LPNs nor visiting RNs perform admissions.

RN case managers then develop a plan of care that sets goals for the patient. The plan of care establishes what care will be provided and which disciplines are needed, whether skilled nursing, physical therapy, occupational therapy, social work, or the services of a home health aide. The case managers confer with the patient's physician, who must approve the plan of care and any changes to it. Case managers are responsible for recertifying patients who need services for an additional period of time, for transferring and resuming the care of those patients who require hospitalization, and for discharging patients when their care is completed.

The job descriptions for MHC's RNs and visiting RNs state that they provide services requiring "substantial knowledge and skills in accordance with the POC." MHC's job description for LPNs states that they provide nursing services to clients under the supervision of a Registered Professional Nurse and/or physician and that they assist the physician or registered professional nurse in performing specialized procedures. LPNs are in regular contact with the patient's RN case manager.

LPNs may do a basic assessment of a patient. They administer therapeutic treatments and medications as directed. They perform wound care that is not complicated. All field nurses, including regular professional RNs, visiting RNs, and LPNs, take vital signs, change dressings, do blood draws, and do "CoaguChek" testing needed to set Coumadin levels. Regular professional RNs, RNs, and LPNs must all be certified as competent in infection control techniques.

Only RNs and visiting RNs may do what MHC refers to as an OASIS 'degree assessment, for which they are trained by a preceptor. Only RNs may administer IVs, perform infusion therapy, feed patients through a central line (referred to as "TPA"), or administer negative pressure wound therapy (referred to as "wound vac" treatment). Neither LPNs nor visiting RNs may administer TPA."

The job description for the LPN position requires these nurses to be an LPN licensed by the State of Massachusetts, preferably with one year of experience. Per diem LPN Maura Santiago testified that, in order to become an LPN, she completed a 10-month program at a community college and took an exam for licensure.

Under Section 2(12) of the Act, in order to qualify as a professional, an employee must perform work of a predominantly intellectual and varied character, involving the consistent exercise of discretion and judgment. The work must be of such a character that the output produced cannot be standardized in relation to a given period of time, and it must require knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study in an institution of higher learning or a hospital. Avco Corp.12 The Act defines a professional employee in terms of the work performed rather than in terms of individual qualifications. Although educational background does not control, the Board examines educational background for the purpose of deciding whether the work of the group satisfies the "knowledge of an advanced type" requirement. If a group of employees consists primarily of individuals with professional degrees, the Board may presume that the work requires "knowledge of an advanced type." Conversely, if few in the group possess the appropriate degree, it follows that the work does not require the use of advanced knowledge.13

Unlike the RNs and visiting RNs, whose job descriptions state that they provide services requiring "substantial knowledge and skills," the LPNs' duties, as described in their job description, do not reflect such a requirement. LPNs perform more routine medical care. In this regard, they perform only a basic assessment rather than an OASIS assessment. They perform only uncomplicated wound care. They do not administer IVs, infusion therapy, wound vacs, or TPA. While LPNs, like RNs and visiting nurses, must be licensed, the education required to become an LPN is limited to a 10-month program at a community college.

The Board has consistently found LPNs to be technical employees and, therefore, nonprofessionals. Mountain Manor Nursing Home, 204 NLRB 425 (1973); Waterloo Surgical & Medical Group, 213 NRLB 321 (1974); Barnert Memorial Hospital, 217 NLRB 775, 780-781 (1975); Presbyterian Medical Center, 218 NRLB 1266 (1975); Trinity Memorial Hospital of Cudahy, 219 NLRB 215, 216 (1975); Samaritan Health Services, Inc., 238 NLRB 629 (1978). The Employer has cited no case in which the Board has found LPNs to be professionals. Accordingly, I find the LPNs to be nonprofessionals and shall exclude them from the unit.

Professional status of physical therapy assistants

A physical therapist evaluates those patients who need physical therapy and develops a plan of care for their therapy. The plan of care identifies goals and interventions for the patient. For example, the patient's goal may be to improve strength, to improve range of motion, to ambulate 50 feet with a wheeled walker with assistance, or to graduate from a walker to a cane. The plan of care also specifies the interventions. As for interventions, the plan of care it may dictate, e.g., that the patient start with seated exercises for the hip, knee, or ankle, depending on the diagnosis, that the patient have gait training, that the patient needs to use a walker or cane at all times, or that there is a need to exercise care due to a previous fracture. The physical therapist sets the number of visits needed, usually twice a week for four weeks, and visits the patient again after 30 days to reassess for recertification if further visits are needed. The physical therapist's plan of care must be approved by the patient's physician and health insurance provider.

PTAs carry out the plan of care by performing interventions that help the patients meet the goals identified by the physical therapist. PTAs have no authority to change the plan of care. The physical therapist on the case usually calls the PTA at the outset to communicate what is needed, or the two communicate on their tablets via MHC's electronic medical records system. The PTAs do treatments, such as gait and balance training and therapeutic exercises. PTA Thomas Gwiazda testified that he gives updates to the physical therapist about every three days. The physical therapist reads the PTA's notes and, if the patient is not progressing quickly enough, calls the PTA to discuss it. A PTA may tell the physical therapist that a certain goal is unobtainable, in which case the physical therapist may set a new goal. A PTA may recommend that a patient be discharged sooner than planned, but a physical therapist makes the final decision, in conjunction with a physician. PTAs generally work alone but sometimes they need help with a situation and request a co-visit by the physical therapist, who may show them what to do, e.g., how to do a range of motion shoulder flexion or how to do a certain exercise with a patient who has a fractured leg. PTAs also take vital signs, perform simple wound care for surgical incisions, perform CoaguChek testing, and report the patient's pain levels.

According to the job description for PTAs, they must be graduates of a two-year, college-level program approved by the American Physical Therapy Association, preferably with one year of experience, and they must be licensed by the State of Massachusetts. PTA Thomas Gwiazda completed a two-year associate's degree program at Springfield Technical Community College. 14

I find that PTAs are not professional employees and shall exclude them from the unit. PTAs implement a plan of care that is devised by physical therapists. They may engage only in those therapeutic interventions dictated by the plan of care. They may not alter the plan on their own. In these circumstances, I find that the job of a PTA does not require the discretion and judgment that is requisite for a finding of professional status. Further, PTAs are required to have only a two-year associate's degree, rather than the prolonged course of specialized study in an institutional of higher learning that is the hallmark of professional status. The Employer has cited no case in which the Board has found PTAs to be professional employees. To the contrary, the Board has found physical therapy assistants to be technical employees. Trinity Memorial Hospital of Cudahy, supra at 216.

Professional status of the home health aides

A plan of care devised by an RN, physical therapist or occupational therapist case manager may call for the services of a home health aide. Home health aides provide personal care and support services to patients. This includes assisting patients with activities of daily living, such as dressing, showering, hair washing, and applying lotion. According to their job description, home health aides may also plan and prepare meals and perform housekeeping tasks, as assigned. They assist patients with medications that are ordinarily self-administered. They do not take patients' vital signs. They observe and report all changes in the status of the patient to the care manager or clinical manager. Home health aides' may perform only tasks that are included in the plan of care and have no authority to change the plan of care. Home health aides generally work alone at a patient's home, although case managers sometimes visit their patients at the same time. Occupational therapist Patricia Schmidt testified that she instructs home health aides by phone regarding how to transfer patients, the use of one-handed techniques for stroke victims, and the use of adaptive dressing devices.

The job description for home health aides states that they must successfully complete home health aide training and/or competency evaluation. Home health aide Brenda Brumley testified that she graduated from high school and took some college classes but never finished.

I find that home health aides are not professional employees. They perform routine tasks for patients, such as personal care and housekeeping, as prescribed in a plan of care prepared by others. They have no authority to change the plan of care. No college-level education is required for the job. Their job clearly requires neither the discretion and judgment nor the knowledge of an advanced type that is necessary for a finding of professional status. The Employer cites no case in which the Board has found home health aides to be professionals, and the Board has routinely excluded home health aides from professional units and included them in nonprofessional units, whether by stipulation or otherwise. Visiting Nurse Services of Western Massachusetts, Inc., 325 NLRB 1125, 1126 (1998); Community Health Services, Inc., 259 NLRB 362, 363 (1981); Visiting Nurses of Sacramento, 187 NLRB 731, 731-732 (1971).

Supervisory status of regular professional RNs, physical therapists, and occupational therapists who engage in case management

As described above, each MHC patient is assigned a case manager, who may be a regular professional nurse, physical therapist, or occupational therapist.15 The case manager oversees the case, determining how the patient is progressing and when the patient will be discharged. The case manager determines, in conjunction with the patient's physician, whether the patient will receive skilled nursing care, physical therapy, occupational therapy, social work services, or a home health aide. After assessing the patient, the case manager makes a recommendation as to what is needed, but a physician must certify the plan of care, which determines which disciplines will provide care.16 The case manager is then responsible for ensuring that patients have everything they need, whether supplies or visits from an RN, LPN, home health aide, etc.

Once case managers determine which disciplines need to participate in a patient's care and the frequency of visit by each discipline, they "plot" the visits on a calendar in an electronic case management system called "Homecare Homebase," to which all clinicians and clinical managers have access on tablets. For example, case managers may schedule an LPN to visit a patient to perform a blood draw, to perform wound care, to check blood pressure or to check lung sounds. One of five schedulers at MHC's office, referred to as a client care coordinator, then finds the particular LPN who will make the visit, choosing from individuals on the case manager's multidisciplinary team.17 In the case of a visit by a home health aide, there is only one home health aide per team, so that person would always be scheduled to make the visit.

Clinical Director Zaleski testified that case managers would tell the scheduler that they plan to share a case with a certain RN or LPN. Per diem LPN Maura Santiago testified that her mother, Stacy Santiago, who works as a per diem RN case manager for MHC, sometimes tells the scheduler that her daughter, Maura, or another nurse, will cover for one of her patient visits. Stacy Santiago does not need permission from anyone else to give her daughter the work. Maura Santiago covers her mother's patient visits about twice a month.

The case managers oversee the work of the LPNs and home health aides. RN case manager Michelle O'Connor testified that she tells patients to report to her any problems with their LPNs and home health aides. When O'Connor visits patients, she checks the work of LPNs, e.g., by making sure that they performed wound care correctly. If she finds some care that was not performed correctly, she reeducates the LPN. Similarly, the RN case managers observe home health aides sometimes while they are caring for patients, e.g. giving them a bath. If O'Connor finds a home health aide doing something incorrectly, she corrects them herself, e.g. by educating them on how to transfer a patient from a bathtub to a chair. This is usually sufficient, but about five times in the last five years she has reported problems that required further intervention to the clinical manager of the LPN or home health aide.

O'Connor testified that, as a case manager, she is responsible for accomplishing the plan of care, that she is 100 percent responsible for what goes on in the case and that if she is aware of something and does not correct it or change it and make sure it is done correctly, then she is as responsible as the person who actually performed the care improperly. When asked whether she would expect to be disciplined if she is not accomplishing her job, she replied, "Yes. When asked if that includes the LPNs or the home health aides not doing what she directed in the plan of care, she replied, "And I'm aware of that, yes."

The complete text of the report is available at (https://apps.nlrb.gov/link/document.aspx/09031d458254f987).