CHESTNUT HILL BENEVOLENT ASSOCIATION et al v. BURWELL

Filing 23

MEMORANDUM OPINION re 22 Order denying Plaintiffs' Motion for Summary Judgment and granting Defendant's Cross Motion for Summary Judgment. Signed by Judge James E. Boasberg on 11/3/15. (lcjeb1)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

CHESTNUT HILL BENEVOLENT
ASSOCIATION, et al.,
Plaintiffs,
v.

Civil Action No. 14-2135 (JEB)

SYLVIA MATHEWS BURWELL, in her
official capacity as SECRETARY OF THE
UNITED STATES DEPARTMENT OF
HEALTH AND HUMAN SERVICES,
Defendant.

MEMORANDUM OPINION
The federal Medicare program reimburses religious nonmedical healthcare institutions
(RNHCIs) for the provision of specific types of nonmedical care to certain religious patients. In
addition, reimbursement is available for the RNHCIs’ nurse-training programs if such programs
satisfy articulated criteria. The four Plaintiffs here – all Christian Science nursing facilities –
desire reimbursement for running multi-year nurse-training programs. They bring suit seeking to
undo two decisions by the Administrator for the Centers for Medicare and Medicaid Services
(CMS) that concluded Plaintiffs were not entitled to such reimbursements because they failed to
meet certain regulatory criteria. Both sides have now moved for summary judgment. As the
Court ultimately agrees that Plaintiffs’ programs were not sufficiently accredited, it will affirm
CMS’s decision and enter judgment in Defendant’s favor.

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I.

Background
A. The Medicare Statutory and Regulatory Framework
Now nearly 50 years old, the Medicare statute is something of a palimpsest: Congress

erases old terms to make room for new ones, but vestiges remain. A little history, then, goes a
long way in making intelligible certain statutory and regulatory language that, at first blush,
seems mired in impenetrable bureaucratese.
1. Religious Nonmedical Healthcare Institutions
Medicare was enacted by Congress in 1965 to provide federally funded health insurance
for the aged and disabled. See 42 U.S.C. § 1395 et seq.; id. § 1395c. At issue in this dispute is
Medicare Part A, which authorizes the government – i.e., CMS – to reimburse certain
institutions, like hospitals and skilled nursing facilities, for providing inpatient and similar types
of care. See id. § 1395d. (The Court uses CMS to refer to both that entity and its pre-2001
predecessor, the Health Care Financing Administration.) The institutions providing such care are
known as “provider[s] of services” or “providers” under the statute, see id. § 1395x(u), which
terms broadly encompass hospitals, skilled nursing facilities, and, as of 1997, RNHCIs. See id.
§ 1395x(y)(1). The last are inpatient institutions that “provide[] only nonmedical nursing items
and services exclusively to patients who choose to rely solely upon a religious method of healing
and for whom the acceptance of medical health services would be inconsistent with their
religious beliefs.” Id. § 1395x(ss)(1)(C).
Although the term RNHCI first appeared in 1997, the statute had since its inception
provided an express accommodation for members of the First Church of Christ, Scientist (or
“Mother Church”) – who object to receiving medical care – by allowing Christian Scientists, in
lieu of receiving inpatient medical care from hospitals, to receive reimbursable nonmedical care

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from a “Christian Science sanatorium operated, or listed and certified, by the [Mother Church].”
Pub. L. No. 89-97 §§ 1861(e), (y), 79 Stat. 286, 315, 324 (1965). That provision remained in
effect until 1996, when a federal district court held that the statute’s exemptions, expressed as
they were in “sect-specific” terms, “‘cross[ed] the line from permissible accommodation to
impermissible establishment’” of religion in violation of the First Amendment’s Establishment
Clause. Children’s Healthcare is a Legal Duty, Inc. v. Vladeck, 938 F. Supp. 1466, 1485 (D.
Minn. 1996) (quoting Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687, 710
(1994)). This precipitated Congress’s amendment of the Medicare statute in 1997 to excise all
Christian Science-specific references and replace them with references to RNHCI – Congress’s
sect-neutral neologism. See Balanced Budget Act of 1997, Pub. L. No. 105-33 § 4454, 111 Stat.
251 (1997) (codified at 42 U.S.C. § 1395x(ss)). All of this notwithstanding, it appears that the
only Medicare-certified RNHCIs – of which there were only 17 during the relevant period – are
Christian Science facilities. See Administrative Record II (A.R.II) at 4 n.4 (Second CMS
Decision).
2. Reimbursement for Approved Educational Activities
In order to receive Medicare reimbursement, RNHCIs must establish an agreement with
the Secretary of Health and Human Services, comply with that agreement, and abide by all
relevant Medicare statutes and regulations. See 42 U.S.C. §§ 1395cc(a)(1), (b)(2). In addition to
offering reimbursement for inpatient care, the statute’s implementing regulations have, since
1966, allowed providers to get reimbursed for running “approved educational activities” that
“contribute to the quality of patient care” rendered by that provider. See 31 Fed. Reg. 14808,
14814 (Nov. 22, 1966) (promulgating 42 C.F.R. § 405.421), redesignated as 42 C.F.R. § 413.85
(1986). In the 1966 regulations, the Secretary of the Department of Health, Education, and

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Welfare (now HHS) recognized that demand for nurses, doctors, and other paramedical
specialties outpaced supply, and so many medical facilities provided training in those specialties
to help close the gap. See 31 Fed. Reg. at 14814 (concluding that such training was often
“necessary to meet the community’s needs for medical and paramedical personnel”) (interpreting
House and Senate committee reports accompanying the 1965 Medicare Act, e.g., S. Rep. No. 89404, at 36 (1965); H.R. Rep. No. 89-213, at 32 (1965)). Although the Secretary recognized that
“the costs of such educational activities should be borne by the community,” it was clear that
many communities have not assumed responsibility for financing
these programs and it is necessary that support be provided by those
purchasing health care. Until communities undertake to bear these
costs, [Medicare] will participate appropriately in the support of
these activities.
Id. (emphasis added). For this reason, the government committed to “share in the support of
educational activities customarily or traditionally carried on by providers in conjunction with
their operations,” but clarified that it was not the Secretary’s intent that educational institutions
already running such programs should shift those costs to providers as a way of obtaining
Medicare reimbursement. See id.; Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 515 (1994).
At the time, these educational costs – like all other costs associated with inpatient
treatment – were reimbursed under “reasonable cost” principles, meaning the provider would
receive payments for any “cost[s] actually incurred,” less expenditures “found to be unnecessary
in the efficient delivery of needed health services.” 42 U.S.C. § 1395x(v)(1)(A); see id.
§ 1395f(b). The “reasonable cost” reimbursement regime was straightforward, but it created
perverse incentives for providers: “The more they spent, the more they were reimbursed.”
Tucson Med. Ctr. v. Sullivan, 947 F.2d 971, 974 (D.C. Cir. 1991).

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To address the problem, Congress substantially revised the regime in 1982 and 1983. For
most providers, Congress devised the “Prospective Payment System,” under which hospitals
would receive reimbursement on a per-discharge basis according to a predetermined, fixed sum.
See Social Security Amendments of 1983, Pub. L. No. 98-21, § 601(e), 97 Stat. 65, 152-62
(1983); 42 U.S.C. § 1395ww(d). For a smaller subset of providers, including the forerunners of
RNHCIs, Congress continued to use “reasonable cost” principles, but fixed the rate at which
those providers’ inpatient costs could increase. See Tax Equity and Fiscal Responsibility Act of
1982, Pub. L. No. 97-248, § 101, 96 Stat. 324, 331-36 (1982); 42 U.S.C. § 1396x(v). These
enactments made clear, however, that neither of the two cost limits would apply to “approved
educational activities” – a phrase that, prior to 1983, had appeared only in regulations and not in
the statute itself. See 42 U.S.C. § 1395ww(a)(4). Although Congress did not define “approved
educational activities,” it made clear that such costs were to “pass through” the cost-ceiling
regime, allowing providers to obtain reimbursement under the original “reasonable cost”
principles. See Cmty. Care Found. v. Thompson, 318 F.3d 219, 222 (D.C. Cir. 2003) (citing 42
U.S.C. § 1395ww(a)(4), (d)). Any educational costs that did not constitute “approved” activities,
in contrast, were to be treated as “normal operating costs,” see 49 Fed. Reg. 234, 267 (Jan. 3,
1984), meaning they were subject to the cost ceilings imposed by the 1982 and 1983 statutory
changes.
Given the congressional silence on the meaning of “approved educational activities,”
Baptist Health v. Thompson, 458 F.3d 768, 771 (8th Cir. 2006), the Secretary took care to define
the phrase, identifying by regulation those education-related costs that would receive passthrough treatment and those that would not. See 42 U.S.C. § 1395hh (granting broad rulemaking
authority); see generally id. § 1395f (specifying the Secretary’s powers to make rules governing

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conditions and limitations on reimbursements). From 1982 to 2001, the only activities that were
eligible for pass-through treatment were education programs that: (1) graduated personnel in
recognized specialties, and (2) were “approved” or accredited by a predetermined “approving
bod[y].” See, e.g., 42 C.F.R. § 405.421(e) (1983). As of 2001, however – and critical to the
dispute at hand – CMS has defined “approved educational activities” as “formally organized or
planned programs of study of the type that: (1) Are operated by providers . . . ; (2) Enhance the
quality of health care at the provider; and (3) Meet the requirements of paragraph (e) of this
section for State licensure or accreditation.” 42 C.F.R. § 413.85(c). Paragraph (e), in turn,
elaborates that the government “will consider an activity an approved nursing . . . education
program if”
the program is a planned program of study that is licensed by State
law, or if licensing is not required, is accredited by the recognized
national professional organization for the particular activity. Such
national accrediting bodies include, but are not limited to, the
Commission on Accreditation of Allied Health Education Programs,
the National League of Nursing Accrediting Commission, the
Association for Clinical Pastoral Education Inc., and the American
Dietetic Association.
Id. § 413.85(e) (emphasis added).
In addition, since the 1982 and 1983 statutory changes, the government has distinguished
between less-formal trainings like “orientation” and “on-the-job training,” which are not eligible
for pass-through treatment, and more formal, typically degree-conferring programs, which are.
See, e.g., 42 C.F.R. §§ 405.421(d), (c), (e) (1983); 68 Fed. Reg. 45346, 45424 (Aug. 1, 2003).
As to the latter, only “programs that enable an individual to be employed in a capacity that he or
she could not have been employed [in] without having first completed a particular education
program” were eligible. See 68 Fed. Reg. at 45428 (emphasis added).

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3. Reimbursement Process
Like any other provider, an RNHCI must, to receive reimbursements for Medicareeligible services, prepare and submit a “cost report[]” at the end of its fiscal year. See 42 C.F.R.
§ 413.20(b). The reports detail the costs incurred by the provider and what portions are
reimbursable under Medicare. See, e.g., Athens Cmty. Hosp., Inc. v. Schweiker, 743 F.2d 1, 3 &
n.1 (D.C. Cir. 1984). The report is not submitted directly to the government, but instead to a
“fiscal intermediary” – typically a “private insurance company acting as an agent for the
[government]” that audits providers’ cost reports and determines their Medicare reimbursements.
Bethesda Hosp. Ass’n v. Bowen, 485 U.S. 399, 400-01 (1988). A provider dissatisfied with the
intermediary’s decision may appeal to the Provider Reimbursement Review Board (PRRB) – an
independent body housed within CMS – which may “affirm, modify, or reverse intermediary
decisions.” Id. at 401. The Administrator for CMS may then “review the matter further,”
issuing a final decision that the provider, if it remains dissatisfied, may seek review of in district
court. Id. (citing 42 U.S.C. §§ 1395oo (a), (d), (f)).
B. Factual and Procedural History
This case was brought by four different Plaintiffs, all of which are Medicare-certified
RNHCI providers that operate Christian Science Nursing Arts Training Programs, and all of
which were denied pass-through reimbursement for those programs during 2002-2006. See
A.R.II at 2-3 & n.1 (Second CMS Decision). Because the parties agreed at the outset of the four
administrative appeals that the issues were identical among all Plaintiffs, the parties consolidated

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the cases and selected Chestnut Hill as lead Plaintiff. See A.R.I at 2 n.1 (First CMS Decision).
The Court’s facts are thus taken from Chestnut Hill’s administrative record.
Chestnut Hill is a Medicare-certified RNHCI operating in Chestnut Hill, Massachusetts,
that runs a Christian Science Nursing Arts Training Program. See A.R.I 64 (First PRRB
Decision). Before 1997, its facilities and nurse-training program were overseen by the Mother
Church, which accredited both using a certain set of standards not relevant here. See A.R.I 271
(Testimony of Michael Schierloh) at Tr. 141:23-144:23. In 1997, however, the Mother Church
spun off its accrediting activities to a separate non-profit organization called the Commission for
Accreditation of Christian Science Nursing Organizations/Facilities, Inc. (“The Commission”).
See id.; see also id. at A.R.I. 270, Tr. 139:3-7. The Commission did not simply adopt the
standards previously used by the Mother Church, but instead wrote its own new set of standards.
See id. at A.R.I 271, Tr. 144:16-23. At all times during the years in question, the parties agree
that the Commission “accredited” Chestnut Hill, meaning that the Commission issued it
certificates of accreditation confirming it had met the Commission’s standards.
In 2007, a fiscal intermediary denied pass-through treatment for Chestnut-Hill’s nursetraining program for fiscal years 2002-2006 because the intermediary concluded that: (1) the
Commission was not the nationally recognized accrediting body for evaluating the “particular
activity” of Christian Science nurse-training schools, and (2) because the Commission lacked
specific standards, it did not “accredit” Chestnut Hill’s program. See First PRRB Decision at
A.R.I 65-66.
Plaintiff then sought review before the PRRB, which reversed the intermediary’s
decision, concluding that the Commission did have standards and that it was the nationally
recognized body for accrediting Christian Science nurse-training programs. See id. at 68. CMS

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then reviewed the matter further, reversing the PRRB and agreeing with the intermediary’s initial
take. See First CMS Decision at A.R.I 12-16, 18. It also concluded that the intermediary was
correct for the independent reason that Plaintiff’s training program “do[es] not lead to the ability
to practice and begin employment in a nursing or allied health specialty,” 42 C.F.R. §
413.85(h)(3), and thus is ineligible for reasonable-cost reimbursement. See First CMS Decision
at A.R.I 18.
The four Plaintiffs then sought review in this Court, which remanded the case because the
PRRB had never addressed the second issue. See Chestnut Hill Benevolent Assoc. v. Sebelius,
No. 10-1206, ECF No. 24 (Oct. 12, 2011) at 2-3. The Court instructed the PRRB to limit its
inquiry on remand to only that issue. Id. at 3.
On remand, the PRRB again decided in Chestnut Hill’s favor. It acknowledged that an
aspiring Christian Science nurse, generally speaking, does not need to take one of the providers’
nurse-training programs as a prerequisite to becoming a “Christian Science nurse,” but it adopted
Chestnut Hill’s argument that completing the program is a prerequisite for someone who aims to
serve in the purportedly more demanding position of a “staff nurse” in a Medicare-certified
RNHCI. See A.R.II at 60-61 (Second PRRB Decision). Because the PRRB found that “an
individual must complete [one of the providers’] nurse training program[s] . . . in order to be
hired as a Christian Science staff nurse in the Medicare-certified wing of a[n] RNHCI,” it
concluded that Chestnut Hill’s training program was eligible for reasonable-cost reimbursement.
Id. at A.R.II 60. Yet again, however, the Administrator reversed the PRRB, disputing that the
industry norm among Christian Science RNHCIs “require[d] that staff have completed the
subject nursing programs” as a precondition of employment. See Second CMS Decision at
A.R.II 29.

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The four Plaintiffs then filed suit again in this Court, seeking judicial review of both of
the Administrator’s adverse decisions under 42 U.S.C. § 1395oo(f)(1). See Compl., ¶¶ 14, 9097. The parties have filed Cross-Motions for Summary Judgment, which are now ripe for
review.
II.

Standard of Review
Although styled as Motions for Summary Judgment, the pleadings in this case more

accurately seek the Court’s review of an administrative decision. The standard set forth in
Federal Rule of Civil Procedure 56(c), therefore, does not apply because of the limited role of a
court in reviewing the administrative record. See Sierra Club v. Mainella, 459 F. Supp. 2d 76,
89-90 (D.D.C. 2006) (citing National Wilderness Inst. v. U.S. Army Corps of Eng’rs, 2005 WL
691775, at *7 (D.D.C. Mar. 23, 2005); Fund for Animals v. Babbitt, 903 F. Supp. 96, 105
(D.D.C. 1995), amended on other grounds, 967 F. Supp. 6 (D.D.C. 1997)). “[T]he function of
the district court is to determine whether or not as a matter of law the evidence in the
administrative record permitted the agency to make the decision it did.” Sierra Club, 459 F.
Supp. 2d. at 90 (quotation marks and citation omitted). Summary judgment thus serves as the
mechanism for deciding, as a matter of law, whether the agency action is supported by the
administrative record and is otherwise consistent with the Administrative Procedure Act’s
standard of review. See Richards v. INS, 554 F.2d 1173, 1177 & n.28 (D.C. Cir. 1977), cited in
Bloch v. Powell, 227 F. Supp. 2d 25, 31 (D.D.C. 2002), aff’d, 348 F.3d 1060 (D.C. Cir. 2003).
Judicial review of the Administrator’s decisions in this case is governed by the Medicare
statute, 42 U.S.C. § 1395oo(f)(1), which incorporates the judicial-review provisions of the APA,
5 U.S.C. § 706. The Court, accordingly, must “hold unlawful and set aside” CMS’s decision
only if it is “unsupported by substantial evidence,” or if it is “arbitrary, capricious, an abuse of

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discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2). Under this “narrow”
standard of review, “a court is not to substitute its judgment for that of the agency.” Motor
Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
Rather, the Court “will defer to the [agency’s] interpretation of what [a statute] requires so long
as it is ‘rational and supported by the record.’” Oceana, Inc. v. Locke, 670 F.3d 1238, 1240
(D.C. Cir. 2011) (quoting C & W Fishing Co. v. Fox, 931 F.2d 1556, 1562 (D.C. Cir. 1994)).
An agency is required to “examine the relevant data and articulate a satisfactory
explanation for its action.” State Farm, 463 U.S. at 43. For that reason, courts “‘do not defer to
the agency’s conclusory or unsupported suppositions,’” United Techs. Corp. v. U.S. Dep’t of
Def., 601 F.3d 557, 563 (D.C. Cir. 2010) (quoting McDonnell Douglas Corp. v. U.S. Dep’t of
the Air Force, 375 F.3d 1182, 1187 (D.C. Cir. 2004)), and “agency ‘litigating positions’ are not
entitled to deference when they are merely [agency] counsel’s ‘post hoc rationalizations’ for
agency action, advanced for the first time in the reviewing court.” Martin v. Occupational Safety
& Health Review Comm’n, 499 U.S. 144, 156 (1991). The reviewing court thus “may not
supply a reasoned basis for the agency’s action that the agency itself has not given.” Bowman
Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285-86 (1974) (internal
citation omitted). Nevertheless, a decision that is not fully explained may be upheld “if the
agency’s path may reasonably be discerned.” Id. at 286.
An agency’s interpretation of its own regulation is entitled to “‘substantial deference.’”
St. Luke’s Hosp. v. Sebelius, 611 F.3d 900, 904 (D.C. Cir. 2010) (quoting Thomas Jefferson
Univ. v. Shalala, 512 U.S. 504, 512 (1994)), especially when the regulation at issue “concerns a
complex and highly technical regulatory program” like Medicare, “in which the identification
and classification of relevant criteria necessarily require significant expertise and entail the

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exercise of judgment grounded in policy concerns.” Thomas Jefferson Univ., 512 U.S. at 512
(quotation marks and citation omitted). The agency’s construction, therefore, will control, unless
it is “‘plainly erroneous or inconsistent with the regulation.’” St. Luke’s Hosp., 611 F.3d at 90405 (quoting Thomas Jefferson Univ., 512 U.S. at 512). In other words, a court may find an
agency interpretation unlawful if “an ‘alternative reading is compelled by the regulation’s plain
language or by other indications of the Secretary’s intent at the time of the regulation’s
promulgation.’” Thomas Jefferson Univ., 512 U.S. at 512 (quoting Gardebring v. Jenkins, 485
U.S. 415, 430 (1988)).
Similarly, “[s]ubstantial-evidence review is highly deferential to the agency fact-finder,
requiring only ‘such relevant evidence as a reasonable mind might accept as adequate to support
a conclusion.’” Rossello ex rel. Rossello v. Astrue, 529 F.3d 1181, 1185 (D.C. Cir. 2008)
(quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)). “[A]n agency’s conclusion ‘may be
supported by substantial evidence even though a plausible alternative interpretation of the
evidence would support a contrary view.’” Koch v. S.E.C., 793 F.3d 147, 156 (D.C. Cir. 2015)
(quoting Robinson v. Nat’l Transp. Safety Bd., 28 F.3d 210, 215 (D.C. Cir. 1994)). It is thus
“rare” to conclude that an agency’s decision is not supported by substantial evidence. Id.
III.

Analysis
This case involves two separate questions, each of which presents an independent basis

for affirming the government’s decision. The first is whether CMS correctly determined that
Chestnut Hill was not accredited in accordance with the applicable regulations. The second is
whether CMS correctly categorized Plaintiffs’ nurse-training programs as “continuing
education” – and thus ineligible for reasonable-cost reimbursement – rather than as a necessary
prerequisite for entering the profession. Because the Court concludes that an affirmative

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response is appropriate to the former, it need not proceed to the latter. In doing so, the Court is
aware that this course appears to render unnecessary its previous remand. But such remand was
not wasted time; on the contrary, the issues that were developed, and the litigating position taken
by Plaintiffs as a result, have helped inform the Court’s ruling on the issue of accreditation.
Before diving into the merits, however, a point of clarification is in order. In their
briefing, the parties frequently muddy the distinctions between arguments focused on the
government’s interpretive work – i.e., whether it properly construed its regulations – and its
application of those regulations to the facts at hand – i.e., whether substantial evidence supports
the outcome here. The Court treats the two requirements separately. As to the first, it concludes
that CMS reasonably construed its regulation to mean that a program cannot be “accredited” if
the relevant accrediting body lacks standards tailored to the specialty training programs under
evaluation. As to the second, the Court holds that substantial evidence supports CMS’s
conclusion that the Christian Science accrediting body (the Commission) lacked such standards
and thus could not be “the recognized national professional organization for the particular
activity.” 42 C.F.R. § 413.85(e).
A. Construction of Regulations
Under CMS rules, only “approved educational activit[ies]” may be reimbursed under
reasonable-cost principles and thus avoid the cost limits. See 42 C.F.R. § 413.85(d)(1). Those
rules further specify that, with regard to “nursing . . . education programs[,]” CMS will consider
such program “an approved nursing . . . education program if the program is a planned program
of study that is licensed by State law, or if licensing is not required, is accredited by the
recognized national professional organization for the particular activity.” Id. § 413.85(e)
(emphasis added).

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The underscored clause in § 413.85(e) comprises two separate requirements: (1) that the
program be accredited (2) by “the recognized national professional organization for the particular
activity.” The parties primarily dispute the content of the first. Plaintiffs insist that, as long as
the nationally recognized body for Christian Science nursing asserts that it accredited their
programs, regardless of what the accreditation process looks like, that is sufficient for passthrough reimbursement. The government, conversely, maintains that accreditation by “the
recognized national professional organization” is merely a necessary, but not sufficient,
condition for receiving pass-through reimbursement. More specifically, it asserts,
“accreditation” obliges the provider to show that the accrediting body has satisfied at least a
nominal set of requirements – namely, that it both possesses minimally adequate standards for
performing its accreditation function and that those standards are customized to the medical (or
nonmedical) specialty in question. The Court separately considers these two requirements.
1. Necessity of Standards
An obvious starting point is to ask whether CMS reasonably interpreted its regulation to
implicitly require that, for a training program to be accredited, the accrediting body must have
had at least some standards for conducting an evaluation. Plaintiffs correctly point out that the
word “standards” is nowhere to be found in 42 C.F.R. § 413.85(e) and thus advance the
uncompromising position that the provision simply “does not require the accrediting body to
have particular accreditation standards” at all. See Pl. Reply at 19. Reading the clause to require
“standards,” they continue, violates what they claim is settled administrative-law doctrine: an
agency cannot “impose requirements beyond those specified in the regulation.” Id.
As a preliminary matter, Plaintiffs’ doctrinal approach is unsupported by the caselaw. Of
the seven cases highlighted by Chestnut Hill, four of them – United States v. 4,432 Mastercases

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of Cigarettes, More Or Less, 448 F.3d 1168 (9th Cir. 2006); Frazier v. Fairhaven Sch. Comm.,
276 F.3d 52 (1st Cir. 2002); Longview Fibre Co. v. Rasmussen, 980 F.2d 1307 (9th Cir. 1992);
and City of Hartford v. Hills, 408 F. Supp. 879 (D. Conn. 1975) – simply do not address the
question of whether an agency may interpret its own regulations to impose requirements that are
implicit in, but not explicitly stated by, the text of the regulation itself. The first three all touch
on questions of statutory interpretation, including regulatory adherence to clear statutory
prescriptions. But because it is settled that “Congress did not define ‘approved educational
activities,’ leaving the definition of that term to the Secretary,” Cmty. Care Found. v. Thompson,
318 F.3d 219, 225 (D.C. Cir. 2003), these cases are of little help here. And City of Hartford has
no apparent relevance at all.
The remaining three cases – Mercy Catholic Med. Ctr. v. Thompson, 380 F.3d 142 (3d
Cir. 2004); Ashtabula Cnty. Med. Ctr. v. Thompson, 352 F.3d 1090 (6th Cir. 2003); and Univ. of
Cincinnati v. Bowen, 875 F.2d 1207 (6th Cir. 1989) – come closer, but ultimately prove
inapplicable. In Mercy Catholic, the court rejected CMS’s reading of a regulation where it was
clear that it “directly” and explicitly “contradict[ed] the plain language” of that rule. See 380
F.3d at 153. In Ashtabula County, the Sixth Circuit rejected CMS’s narrow definition of the
term “provider,” concluding that the word’s “meaning is made clear by referencing related
statutes,” which defined it in a way that was clearly contradictory to the Secteratry’s
construction. See 352 F.3d at 1096-97. And, finally, in University of Cincinnati, the court
concluded that CMS had inappropriately imported reimbursement restrictions from a general rule
into a narrower and more specific one, where the general rule explicitly stated that it was
“subject to” – i.e., supplanted by – narrower rules where they existed. See 875 F.2d at 1209-11.
In short, all three were cases in which the government’s construction of a regulation was

15

“‘plainly erroneous or inconsistent with the regulation.’” St. Lukes Hosp., 611 F.3d at 904-05
(quoting Thomas Jefferson Univ., 512 U.S. at 512).
The interpretation of § 413.85(e) advanced by the Secretary here, however, presents no
similar conflict – whether with the plain language of the instant provision or with any other
regulation that might bear on the question. On the contrary, the notion of “standards” inheres in
the ordinary meaning of accreditation. See, e.g., Black’s Law Dictionary 23 (9th ed. 2009)
(defining “accredit” as “recogniz[ing] (a school) as having sufficient academic standards to
qualify graduates for higher education or for professional practice”); American Heritage
Dictionary 11 (5th Ed. 2011) (“To certify as meeting prescribed standards or requirements, as of
a profession[.]”). And the Secretary’s references to “accrediting standards,” “accrediting
requirements,” and “minimum standard of accreditation” throughout the 2001 proposed
rulemaking and 2003 final rule reinforces the conclusion that “standards” are implicit in the
notion of accreditation. See 66 Fed. Reg. 3358, 3363, 3365 (Jan. 12, 2001); 68 Fed. Reg. 45346,
45429-33 (Aug. 1, 2003) (discussing numerous ways in which hospitals design or modify their
training programs “to meet accreditation standards,” “accrediting standards,” “educational
standards,” “educational . . . criteria,” and “accreditation requirements”).
Nor, for that matter, have Plaintiffs identified any other regulatory provision suggesting
that CMS may not reject the purported accreditation of a program if the pertinent accrediting
body uses insufficient standards. This absence comes as no surprise, given that the purpose of
relying on an accrediting body is to “ensure that the programs [CMS] pay[s] for under Medicare
meet at least a minimum standard of accreditation.” 66 Fed. Reg. at 3365. Indeed, “[a]n
accrediting agency is a proxy for the federal department whose spigot it opens and closes,” Chi.
Sch. of Automatic Transmissions, Inc. v. Accreditation Alliance of Career Sch. & Colleges, 44

16

F.3d 447, 449 (7th Cir. 1994), and it is thus sensible for the government to confirm that the
accreditation process it relies on is capable of ensuring at least a minimum threshold of quality
from its accreditees. Under the hardline position taken by Plaintiffs, however, the regulation
“only requires the accrediting body to be recognized by the industry” – and nothing more. See
Pl. Reply at 19; id. at 21 (“[T]he regulation requires no more than industry recognition.”). By
that logic, CMS would be beholden to whatever “the industry” believes should suffice as
accreditation, even if it is no more involved than a rubber stamp. The language of the rule does
not command such an absurd result, which stands at odds with the Secretary’s clear intent in
using third-party accreditation as a meaningful replacement for its own substantive inquiry. See
66 Fed. Reg. at 3365.
Two separate regulatory provisions reinforce this point. First, obtaining accreditation by
a “recognized national professional organization” is merely a necessary, but not sufficient,
condition for qualifying as an “approved educational activity,” 42 C.F.R. § 413.85(e), as the
regulation also requires that the program in question “[e]nhance the quality of health care at the
provider.” Id. § 413.85(d)(1)(i)(C); see St. John’s Hickey Mem’l Hosp., Inc. v. Califano, 599
F.2d 803, 810 (7th Cir. 1979) (agreeing with PRRB that a provider adequately demonstrated that
its nurse-training program “contributed . . . to the quality of patient care because [the provider’s]
high nursing turnover rate and dearth of nurses were minimized as a result of [its] program”). If
a provider’s education program were not evaluated by an entity possessing meaningful standards
of quality, it is unclear on what basis CMS should determine whether the program contributed in
any way to that provider’s quality of care. Cf. Fischer v. United States, 529 U.S. 667, 680
(2000) (noting that health-care providers “must satisfy a series of qualification and accreditation

17

requirements, standards aimed in part at ensuring the provision of a certain quality of care”)
(emphasis added).
Second, as Plaintiffs acknowledge, Medicare will only reimburse an RNHCI for its
inpatient costs if it uses skilled nurses. See Pl. Mot. at 28; 42 C.F.R. § 403.720(a)(4) (stating that
RNHCI must use “nonmedical nursing personnel who are experienced in caring for the physical
needs of nonmedical patients”); id. § 403.702 (defining “religious nonmedical nursing
personnel” as “individuals who are grounded in the religious beliefs of the RNHCI, trained and
experienced in the principles of nonmedical care, and formally recognized as competent in the
administration of care within their religious nonmedical health care group”) (emphasis added).
But it would seem difficult, if not impossible, for CMS to verify that a provider is relying on
“skilled” nurses if the accrediting body that oversees the schools graduating such nurses has no
standards to speak of – let alone standards to evaluate whether an individual is specifically
“competent in the administration of care.” Id.
For these reasons, and in light of the “broad deference” that should be given to the
Secretary when interpreting Medicare’s “complex and highly technical regulatory program,”
Thomas Jefferson Univ., 512 U.S. at 512, the Court concludes that CMS reasonably interpreted
§ 413.85(e) to require the accrediting body to have specific accreditation “standards.”
2. Content of Standards
That the accrediting body must have standards only partially answers the question here,
however. The Court must next decide what characteristics CMS may require these standards to
evince based on a fair interpretation of the regulations. It concludes that two characteristics may

18

be reasonably inferred: (1) the standards must meet at least a minimum threshold of substantive
adequacy; and (2) the standards must be tailored to the specialty in question.
Minimal Adequacy
The government first argues that the standards, to have any meaning at all, must meet a
minimum threshold of adequacy. In considering this position, it is helpful to begin with the
language of the rule itself. Immediately following the accreditation requirement, 42 C.F.R.
§ 413.85(e) offers an illustrative list of “[s]uch national accrediting bodies,” which “include, but
are not limited to the Commission on Accreditation of Allied Health Education Programs, the
National League of Nursing Accrediting Commission, the Association for Clinical Pastoral
Education Inc., and the American Dietetic Association.” Id. According to CMS, these examples
were chosen because all of the bodies listed share the same feature: all have been determined by
CMS to meet at least minimum standards of accreditation. See Gov’t Mot. at 27. As a result,
organizations that fail to meet such minimum standards cannot properly be considered
“accrediting bodies” and thus cannot “accredit” any educational program at all.
Although not identified by name, the government’s argument takes the form of ejusdem
generis – the principle that “where specific words precede or follow general words in an
enumeration describing a particular subject, the general words are construed to embrace only
objects similar in nature to those objects enumerated by the specific words.” Trinity Servs., Inc.
v. Marshall, 593 F.2d 1250, 1258 (D.C. Cir. 1978). It serves as “an aid to construction” where
there is some ambiguity as to the meaning of a particular statutory or regulatory clause. See
United States v. Turkette, 452 U.S. 576, 581 (1981). Such is the case here, where the
interpretation of “national accrediting bodies” advanced by the Secretary is not explicit from the
face of the rule. See White Mem’l Med. Ctr. v. Schweiker, 640 F.2d 1126, 1129 (9th Cir. 1981)
(relying on ejusdem generis in agreeing with HHS Secretary that “intermediate care units” were
19

not “special care inpatient hospital units” under Medicare regulations, where regulation stated
that “such [special care] units (shall) include, but are not limited to burn, coronary care,
pulmonary care, trauma, and intensive care units”) (emphasis added); St. Elizabeth’s Hosp. of
Boston v. Sec’y of Health & Human Servs., 746 F.2d 918, 919 (1st Cir. 1984) (same); accord
Post v. St. Paul Travelers Ins. Co., 691 F.3d 500, 520 (3d Cir. 2012) (“[I]t is widely accepted that
general expressions such as ‘including, but not limited to’ that precede a specific list of included
items should not be construed in their widest context, but apply only to persons or things of the
same general kind or class as those specifically mentioned in the list of examples.”) (quotation
marks and citation omitted); Abubo v. Bank of N.Y. Mellon, 977 F. Supp. 2d 1037, 1046, 1050
& n.11 (D. Haw. 2013) (relying on ejusdem generis and principle of noscitur a sociis – “a word
is known by the company it keeps,” Gustafson v. Alloyd Co., 513 U.S. 561, 575 (1995) – in
concluding that, where statute stated that “[e]xamples of a bona fide error include, but are not
limited to, clerical, calculation, computer malfunction and programming, and printing errors,”
Congress intended to limit “bona fide errors” to those that were “very minor, technical errors”).
Helpful to the Secretary’s ejusdem generis argument is that her theory is firmly grounded
in the regulatory history of the current rule, which explains that the illustrative accrediting bodies
were selected for precisely the reason that they meet at least minimum accrediting standards
according to CMS. In the past – in fact, from 1996 until 2001 – CMS would reimburse an
educational program only if: (1) it produced graduates in an expressly recognized specialty; and
(2) it was accredited by a body approved by CMS as the exclusive body for accrediting such
programs. See, e.g., 42 C.F.R. § 405.421(e) (1966) (listing “pharmac[ists],” “physical
therap[ists],” and “nurse anesthetist[s]” as approved specialties); id. § 413.85(e) (2000) (listing
accrediting bodies associated with specific specialties).

20

In 2001, however, CMS did away with the listing process, opting for the current regime
of relying on the nationally recognized approving body for a given specialty. See 66 Fed. Reg.
3358, 3364-65 (Jan. 12, 2001). CMS nevertheless decided it would be prudent to keep in the
regulation a nonexclusive list of four accrediting bodies as exemplars. See id. at 3365. It
explained that seven other accrediting bodies were not included, even though “[its] research has
shown that [those bodies] also meet at least a minimum standard of accreditation.” Id. (emphasis
added). Their inclusion would have been superfluous, however, because the list was not
exhaustive, and because CMS was no longer pre-clearing the list of recognized specialties and
approved accrediting bodies. See id. The regulatory history supports CMS’s position that it can
withhold “approval” from an accrediting body whose standards are so patently deficient as to fall
beneath “at least a minimum standard of accreditation.” Id. Undeniably, the rule provides no
other criteria directed at the substantive adequacy of the standards, and thus it may not prove a
very high hurdle at all. Nevertheless, as will be discussed below, a second criterion is also
implicit in the regulatory structure.
Tailored to the Specialty
In addition to minimal adequacy, CMS required that the accrediting standards, rather than
being content agnostic, must be tailored to the specific activity under evaluation. See Gov’t Mot.
at 26. This interpretation is a reasonable one. Once again, the language of the rule guides the
way: “CMS will consider an activity” to be “approved” if it is “accredited by the recognized
national professional organization for the particular activity.” § 413.85(e) (emphasis added).
Certainly, the phrase “for the particular activity” modifies “national professional organization.”
See id. But the “for the particular activity” requirement would appear to serve no purpose if
every specialty could rely on accrediting bodies that use content-neutral standards. In other
words, if the only standards those bodies used were set at such a high level of generality as to be
21

applicable to any training program, regardless of its content, the nationally recognized body for
phlebotomists would be equally qualified to accredit a training program for certified registered
nurse anesthetists (CRNAs). If it is to mean anything, the “for the particular activity”
requirement must mean, at a minimum, that the accrediting body has at least some standards that
are specific to the category of training programs that it will evaluate. Accord Schierloh Test. at
A.R.I 271, Tr. 142:20-143:19 (explaining that neither the Joint Commission on Accreditation of
Healthcare Organizations nor the Department of Education would be qualified to accredit
Christian Science nurse-training programs because the “type of care” provided by RNHCIs and
taught in their facilities was not “the type of care [those bodies] would normally teach or expect
to see rendered to patients”).
The rules governing reimbursement of RNHCI inpatient costs, discussed supra, also
suggest that accrediting standards must be geared towards ensuring that an individual who
graduates from an accredited institution has particular competencies in that specialty. To qualify
for reimbursement, an RNHCI’s nursing staff must be “trained and experienced in the principles
of nonmedical care.” 42 C.F.R. § 403.702 (emphasis added). Given that Plaintiffs view
graduates of their programs as automatically satisfying Medicare’s “trained and experienced”
nurses requirement, see Pl. Mot. at 16, 20, it would seem to follow that Medicare could
reasonably require those programs’ accrediting body to apply standards specific to the practice of
Christian Science nursing.
Other CMS regulations applicable to Medicare Part B reinforce this reading, making
clear that the government will not reimburse services provided by certain non-physician
specialists unless they are certified by a national accrediting body that has standards specific to
that specialty, or have graduated from a school that is accredited by a body with standards

22

specific to that specialty. See, e.g., 42 C.F.R. § 410.69(b) (2003) (requiring, as a condition of
reimbursement, that CRNAs “ha[ve] graduated from a nurse anesthesia educational program that
meets the standards of the Council on Accreditation of Nurse Anesthesia Programs” or other
program recognized by the Secretary); id. § 410.75(b)(ii) (2003) (nurse practitioners must be
“certified as a nurse practitioner by a recognized national certifying body that has established
standards for nurse practitioners” or is authorized by the State) (emphasis added); id.
§ 410.76(b)(3) (2003) (same for “clinical nurse specialists”); id. § 410.77(a)(3) (2003) (same for
“nurse-midwives”); id. § 410.74(c)(7) (2003) (a physician’s assistant’s services may be
reimbursed if she “graduated from a physician assistant educational program that is accredited by
the Commission on Accreditation of Allied Health Education Programs,” which publishes and
relies on accrediting standards that are specific to each specialty, see CAAHEP, Standards and
Guidelines, http://www.caahep.org/Content.aspx?ID=30 (last visited November 3, 2015)). As
these rules make clear, CMS is unwilling to spend taxpayer money on nurses or other specialists
who have not been credentialed by an accrediting process specific to the specialty in question.
The regulatory history of the provision, too, is consistent with CMS’s reading, replete as
it is with discussions of accreditation requirements tailored to particular specialties. For
instance, in discussing hospital-run clinical-pastoral-education (CPE) programs, CMS noted that
the recognized body for CPE has established minimum-coursework requirements. See 68 Fed.
Reg. 45346, 45424-25 (Aug. 1, 2003) (noting that Association of Clinical Pastoral Education,
Inc. requires “4 units, or 1,600 hours of supervised CPE, as the national minimum amount of
CPE that is required to become a board-certified chaplain”); see also id. at 45428 (noting that the
American Society of Health-System Pharmacists accredits pharmacy-residency programs
specific to a given specialty, including “cardiology, geriatrics, infectious diseases, and

23

oncology”). In addition, CMS decided it was prudent to list CAAHEP as an exemplary
accrediting body in 42 C.F.R. § 413.85(e) – a body that, as noted supra, breaks down its
accreditation standards on a specialty-by-specialty basis. It should come as no surprise, then,
that CMS would interpret “accreditation” to include the implicit assumption that the accrediting
body’s standards are tailored to the specialty in question. The Court thus concludes that CMS’s
interpretation of “accredit” as requiring standards specifically tailored to a given specialty are
reasonable and not inconsistent with the regulation. See Thomas Jefferson Univ., 512 U.S. at
515 (“The Secretary’s interpretation . . . is thus far more consistent with the regulation’s
unqualified language than the interpretation advanced by petitioner. But even if this were not so,
the Secretary’s construction is, at the very least, a reasonable one, and we are required to afford it
‘controlling weight.’”) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414
(1945)).
Before moving to the application of these regulations, the Court pauses to note that the
government, in its briefs, also argued that 42 C.F.R. § 413.85(e) implicitly requires the
“recognized national professional organization” to be sufficiently independent from its
accreditees, and that the Commission failed that requirement because it and Plaintiffs are both
“affiliated with the Mother Church.” Gov’t Mot. at 32. As this is far from clear and because the
“independence” requirement is merely an additional basis upon which to affirm CMS’s decision,
the Court need not reach the issue.
B. Application of Regulations
Having concluded that the government properly interpreted its regulations to require
accrediting standards and ones applicable to the particular specialty, the Court must now decide
whether substantial evidence supports the Secretary’s conclusion here – namely, that because the

24

Commission’s standards fall short of what is required for it to be “the recognized national
professional organization for the particular activity,” § 413.85(e), Chestnut Hill’s nurse-training
program was not “accredit[ed]” as required by the rule. See Gov’t Mot. at 26; First CMS
Decision at A.R.I (concluding that the Commission lacks “standards to accredit Christian
Science Nurse Training Programs”) (emphasis added).
The parties by and large agree on when the Commission evaluated Chestnut Hill’s
facilities and training programs and what standards it relied on in doing so. Although both sides
spill substantial ink arguing about whether the Commission’s single accrediting process in fact
accredited the facility as an RNHCI or its training program for Christian Science nurses, these
arguments are largely beside the point. This is because the regulations appear indifferent as to
whether an accrediting body may simultaneously accredit a facility and its training program in a
single evaluation process, yielding a single certificate. What matters, according to the
regulations as interpreted by CMS, is that the body have minimally adequate standards that are
tailored to the specialty in question. The Court thus keeps its focus exclusively on the content of
those standards.
For the years in question here, the Commission inspected Chestnut Hill twice – in 2003
and 2006 – and issued two separate accreditation certificates. See A.R.I 691-97 (2003
Accreditation Letter); A.R.I 686-90 (2006 Accreditation Letter). Although the parties dispute
precisely what aspects of Chestnut Hill were evaluated, they agree that the Commission, in
conducting its evaluation, relied on or applied three different documents. The first is a set of
standards written by the Commission called “Accreditation Standards for Christian Science
Nursing Facilities.” See A.R.I 707-20. The second is a document titled “Checklist for
Inspecting Nursing Organizations/Facilities for Christian Scientists,” which appears to be a

25

document used by Commission inspectors in performing their triennial evaluations. See A.R.I
722-43 (Checklist). The only relevant portions of these two documents are Commission
Standards C-8 and C-9, see A.R.I 717, and Checklist pages 9-10, which provide questions
relevant to “facilities that have Nursing Schools/Education programs.” See A.R.I 730-31. The
last document is Manual of the Mother Church, Art. VII, § 31, see A.R.I 1384-85 (Manual ByLaw Regarding Christian Science Nurses), which the Checklist incorporates by reference as “the
standard for any educational activities” carried out by a Christian Science facility. See Checklist
at A.R.I 730.
The Court need not decide whether these standards, taken together, satisfy the
requirement of minimal adequacy because substantial evidence supports CMS’s conclusion that
none is specifically tailored to the specialty in question. In deciding what that “specialty” is, the
Court relies on Plaintiffs’ view, advanced in their briefs, that their programs graduate individuals
whose specialty consists of being a Christian Science “staff” nurse in a Medicare-certified
RNHCI – a specialty that they claim is wholly distinct from being a non-credentialed, “Journal
listed” nurse, who, according to Plaintiffs, is not qualified to work in an RNHCI. See Pl. Mot. at
10. In Plaintiffs’ view, their training programs do not merely produce Christian Science nurses,
but rather graduate specialists in Christian Science staff nursing, who they contend are more
highly qualified than other Christian Science nurses and are thus the only nursing personnel
eligible to work in Medicare-certified RNHCIs. See id. at 10 & n.5. Such staff nurses differ
substantially from what are known as Journal-listed Christian Science nurses, who, Plaintiffs
claim, are less qualified and lack the credentials necessary to work in an RNHCI. See id. at 10
n.5 (“[B]eing Journal-listed, standing alone, does not qualify an individual for employment in a
Medicare-certified RNHCI.”); see also id. at 11. “Journal listed” refers to the Mother Church’s

26

requirement that, for an individual to hold himself out as a Christian Science nurse, he must be
“listed” in the Church’s publication called Christian Science Journal. See id. at 10 n.5. To
obtain such a listing, an applicant must articulate how he practices as a nurse, provide references
of three other Journal-listed nurses who have observed and can vouch for the applicant’s care (or
other alternative persons who can speak to his qualifications), and verify that he is fully prepared
to represent himself as a Christian Science nurse. See Second Administrator Decision, at A.R.II
17.
Moving to the three documents, the Commission’s Accreditation Standards – and
specifically Standards C-8 and C-9 – are far afield of anything that could be considered an
educational standard tailored to any specialty, let alone the specialty of staff nursing in an
RNHCI. The two standards are contained in subsection C, which is titled “Responsibilities of
Christian Science Nurses in the Facility.” See Accreditation Standards at A.R.I 716-17.
Subsection C generally deals with how a Christian Science facility staffs its workforce and
includes certain minimum criteria such as ensuring adequate staff ratios, supervision structures,
and documentation. Id. Standards C-8 and C-9 are more specific to the qualifications of the
workforce itself:
8. The organization provides documentation of regular and on-going
training or review of the skills and practices necessary to insure
proper care is provided to patients.
9. Facilities engaged in training maintain documentation of ongoing instruction, evaluation and on the job training/mentoring/side
by side nursing.
Id. at 717. Neither articulates a standard that is particular to training and graduating Christian
Science nurses at all. Rather, the standards are generally applicable to any type of training
program that a facility might use to maintain and improve its workforce. As the former

27

Executive Director of the Commission admitted to the PRRB, C-8 and C-9 are generic standards
that can apply to any training program that a nursing facility undertakes, including continuingeducation programs or a peer-review programs:
THE CHAIRMAN: . . . Don’t [Standards C-8 and C-9] apply
equally to . . . a nursing facility that does not have a nursing school,
but just has continuing education for its staff or peer review?
MR. SCHIERLOH:
education.

It was designed to include that type of

THE CHAIRMAN: Okay. So even if you didn’t have a nursing
school, [Standards C-8 and C-9] would be applicable and you would
grade the facility?
MR. SCHIERLOH: In general.”
Schierloh Test. at A.R.I 287, Tr. 205:25-206:17.
The second document – the Checklist – is no more specific than Standards C-8 and C-9.
The standards in the Checklist are as follows:
Facilities that provide classroom instruction to prepare individuals to
become Christian[] Science Nurses will be inspected for compliance to
standards addressing:
The Manual By-Law for the Christian Science nurse (Article VIII, Section
31) is the standard for any educational activities.
-

-

-

The application process itself
Facility is aware of and follows national laws and regulations regarding
foreign nationals, as well as national and local laws pertaining to health,
safety, and patient rights.
Determines candidates’ ability to meet the above as well as their
readiness and suitability to pursue Christian Science nursing education
Applicants accepted for admission shall be:
Members of the Mother Church
Practicing Christian Science
Convinced of the efficacy of Christian Science
Provides proper housing and meals, as well as cultural/language
acclimation
Has designed a defined program with definite timeframes to complete
the entire programs and any partial steps
28

-

-

Has an established curriculum that is in accord with the Commission
standards and all published directives from the Mother Church
Qualified Instructors
Instructors:
Shall be Journal advertisers
Shall have both field and facility experience
Shall have substantial experience in the areas they teach
Shall have teaching schedules that allow sufficient time to carry
out their responsibilities.
There should be appropriate class size, instructor/student ratio
On-going assessment of students, instructors and the program
Follow-up mentoring programs
Measurable standards for evaluation
Appropriate scheduling
Students have time for classroom, study, floor practicum as well as
personal needs.

A.R.I 730-31.
None of these detailed standards is in any way specific to a training program whose
purpose is to produce Christian Science staff nurses “train[ed] to function and be hired as a staff
nurse in a Medicare-certified RNHCI.” Pl. Mot. at 16-17. Instead, the standards are applicable
to any type of nursing-education program, regardless of content. And, like Standards C-8 and
C-9, the questions appear equally applicable to multiple forms of training, whether of short or
long duration, degree-conferring or not. Indeed, the Commission’s express accreditation of
Chestnut Hill’s visiting-nurse program – a program that is admittedly distinct from its Nursing
Arts program – suggests that the standards are equally applicable to both. See 2006
Accreditation Letter at A.R.I. 686; Schierloh Test. at A.R.I 285-87, Tr. 200:18-206:17.
Finally, the third standard – the Manual By-Law Regarding Christian Science Nurses –
requires little discussion. The text of the By-Law reads, in full:
A member of the Mother Church who represents himself or herself
as a Christian Science nurse shall be one who has a demonstrable
knowledge of Christian Science practice, who thoroughly
understands the practical wisdom necessary in a sick room, and who
can take proper care of the sick.
29

The cards of such persons may be inserted in The Christian Science
Journal under rules established by the publishers.
Manual By-Law at A.R.I 1384. According to Plaintiffs, the Manual By-Law refers to the
baseline requirements for an individual who wishes to hold himself out as being a “Journallisted” nurse. See Pl. Mot. at 10 n.5 Yet, as Plaintiffs concede, “The record is clear that being
Journal-listed, standing alone, does not qualify an individual for employment in a Medicarecertified RNHCI.” Id. It thus plainly cannot suffice as an accrediting standard for a training
program designed to credential a more highly trained and qualified Christian Science staff nurse.
In sum, not one of the three documents relied on by the Commission to accredit Christian
Science facilities is tailored to training programs that graduate Christian Science staff nurses.
Substantial evidence thus supports CMS’s conclusion that the Commission lacked accrediting
standards as required by 42 C.F.R. § 413.85(e) and thus did not “accredit” Chestnut Hill’s
Nursing Art’s program. Such a decision makes particular sense in the context of nonmedical
care, where Congress has, to avoid excessive entanglement with religion, delineated what types
of services may be reimbursed and what falls outside the bounds of reimbursable care. See
Children’s Healthcare Is a Legal Duty, Inc. v. Min De Parle, 212 F.3d 1084, 1098 (8th Cir. 2000)
(concluding that the statutory provision governing payments to RNHCIs “authorizes payment
only for ‘inpatient hospital services or post-hospital extended care services,’ 42 U.S.C. §§ 1395i–
5(a), which are defined as bed and board and such other physical care services that are ordinarily
furnished by health care facilities,” but does not cover “the spiritual healing services that may
take place within RNHCIs.”).
The Court, consequently, will affirm the Administrator’s decision disallowing passthrough treatment for the costs of Plaintiffs’ training programs.

30

IV.

Conclusion
For the foregoing reasons, the Court will deny Plaintiffs’ Motion for Summary Judgment

and grant Defendant’s Cross Motion for Summary Judgment. A separate Order will issue this
day.

/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge

Date: November 3, 2015

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