                  NOT FOR PUBLICATION WITHOUT THE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




                                                  2                                       A-1610-13T4
[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. . . .

     . . . .



                      9                          A-1610-13T4
                 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



                              11                         A-1610-13T4
             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



                                               12                                     A-1610-13T4
"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



                                           13                                A-1610-13T4
         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).



                                        16                                 A-1610-13T4
