In the Matter of:

U.S. DEPARTMENT OF LABOR, ADMINISTRATOR,     CASE NO. 94-ARN-1
WAGE & HOUR DIVISION, EMPLOYMENT           
STANDARDS ADMINISTRATION,                    DATE:    June 28,
1996

          PLAINTIFF,

NURSES PRN OF DENVER, INC., NURSES PRN 
SUNCOAST, INC.,

          COMPLAINANTS,

     v.

HCA MEDICAL CENTER HOSPITAL, LARGO, FLORIDA,

          RESPONDENT.


BEFORE:   THE ADMINISTRATIVE REVIEW BOARD[1] 


                              ORDER OF REMAND
     This case arises under the Immigration Nursing Relief Act of
1989, 8 U.S.C. §§ 1101(a)(15)(H)(I)(a) and
1182(m)(1994)(INRA)  and its implementing regulations, 29 C.F.R.
Part 504, Subparts D and E (1995); 20 C.F.R. Part 655, Subparts D
and E (1993).  The purpose of the INRA is "to assist in
alleviating the national shortage of registered nurses by . . .
establishing conditions for the admission of foreign registered
nurses during a 5-year period."[2]   H. R. Rep. No. 288, 101st
Cong., 1st Sess. 1 (1989), reprinted in 1989 U.S.C.C.A.N.
1894.  The issues on review in this case are (1) whether any of
Complainants' employees, who were displaced by H-1A nonimmigrant
alien nurses, are entitled to an award of back pay and (2)
whether the case should be remanded to the Administrative Law
Judge (ALJ) for findings concerning any back pay due Respondent's
employees.  See Secretary of Labor's Notice of Intent to
Review the Decision and Order of the Administrative Law Judge,
June 22, 1995.


[PAGE 2]

                         FACTUAL BACKGROUND

     Respondent HCA Medical Center Hospital, Largo, Florida, is
an adult acute care facility that specializes in cardiology and
provides facilities for open heart surgery.  Complainants, Nurses
PRN of Denver, Inc. and Nurses PRN Suncoast, Inc., are
contractors that provide temporary nursing services.[3]   Until
October 7, 1989, or "boycott day," Respondent used Complainants'
nursing services.  Thereafter, Respondent increased its own
nursing staff and sharply decreased its use of contract nurses. 
Respondent no longer uses Complainants' services.

     In April 1993, Respondent applied to the Employment Training
Administration, U.S. Department of Labor, to renew its INRA H-1A
petition for purposes of employing four nonimmigrant alien
nurses.  In order to gain approval, a health care facility must
attest to a need for the nurses, i.e., that there would be
a substantial disruption, through no fault of the facility, in
the delivery of health care services without H-1A nurses.  8
U.S.C. § 1182(m)(2)(A)(I).  This element may be met by
demonstrating at least one of the following: (1) a current nurse
vacancy rate of seven percent or more, (2) an unutilized bed rate
of seven percent or more, (3) the elimination or curtailment of
essential health care services, or (4) the inability to implement
established plans for needed new health care services.  29 C.F.R.
§ 504.310(d)(2)(I).  A petitioning facility also must attest
that the wages and working conditions of U.S. nurses would not be
affected adversely and that it had taken significant steps to
recruit and retain U.S. nurses and thus reduce reliance on
foreign nurses.  8 U.S.C. § 1182(m)(2)(A)(ii), (iv).

     To demonstrate need, Respondent attested to a nurse vacancy
rate of 12 percent, an unutilized bed rate of 32.5 percent and
the elimination or curtailment of essential health care services.

Respondent stated:

     [O]ur hospital continues with a very high utilization
     of critical care beds, in which once a critical care
     bed becomes open, it is quickly filled, usually on the
     same day.  If this hospital had additional critical
     care beds . . . these beds would be filled, due to the
     high patient acuity[[4] ] . . . .  The required nurse
     to patient staffing ratio is greater for critical care
     beds due to the patients [sic] acuity.  With the
     current shortage of nurses that are critically care
     skilled, staffing the current as well as additional
     beds that could be utilized becomes difficult without
     the resource of foreign nurses.  
[PAGE 3]
     Therefore, our particular facility has and continues to
     curtail the essential healthcare services of . . . intensive
     care beds and critical care unit beds.  [T]hese beds come at
     a premium for the physicians who order these services, and
     since [they] are normally filled at 100% occupancy, other
     beds within the facility which utilize telemetry services
     (the next best medical option) are then utilized.

Respondent's Exhibit (Exh.) 22 at 2.  In addition, Martha
Micallef, Respondent's chief nurse executive, testified that
Respondent had been required to close its emergency room on more
than one occasion because it lacked nursing staff for critical
care beds.  Hearing Transcript (T.) 554-557.  Respondent also
attested that it had not laid off any nurses during the preceding
year.  8 U.S.C. § 1182(m)(2)(A); 29 C.F.R. §
504.310(c)(2)(ii) and (d)(1).

     In addressing labor safeguards, Respondent attested that the
employment of nonimmigrant alien nurses would not adversely
affect the wages and working conditions of U.S. nurses similarly
employed and that its nurses would be paid at least the
prevailing wage.  8 U.S.C. 
§ 1182(m)(2)(A)(ii) and (iii); 29 C.F.R. § 504.310(e).

     In addressing its responsibilities under the program,
Respondent attested that it had taken steps designed to recruit
and retain nurses who were U.S. citizens or immigrants in order
to remove dependence on nonimmigrant nurses, that it was
operating or otherwise financing a training program for nurses,
that it was providing career development programs or otherwise
facilitating health care workers to become nurses, that it was
providing support services to free nurses from administrative or
other non-nursing duties, that it was providing opportunities for
meaningful salary advancement by nurses and that it had provided
notice of the attestation to its nurses.  8 U.S.C. §
1182(m)(2)(A)(iv)-(vi) and (B).  See 29 C.F.R. §
504.310(c)(2) and (d); H. R. Rep. No. 288, 101st Cong., 1st Sess.
4-7 (1989), reprinted in 1989 U.S.C.C.A.N. 1894, 1897-
1900.

     Complainants subsequently complained that Respondent had
misrepresented several attestation elements, and after a Labor
Department investigation, conducted by the Administrator of the
Wage and Hour Division, Employment Standards Administration, the
case proceeded to hearing.  The ALJ ultimately found that
Respondent's attested nurse vacancy rate of 12 percent or more
was incorrect and that the correct rate was less than seven
percent.  Decision and Order (D. and O.) at 3.  Respondent thus
had misrepresented a material fact contrary to 8 U.S.C. 

[PAGE 4]
§ 1182(m)(2)(E)(iv) and 29 C.F.R. § 504.310(d)(2)(A). 
Id. at 4.  The ALJ also found that Respondent's notice to
its nurses of the attestation did not contain all required
information and that Respondent had neglected to maintain all
required documentation in support of the attestation (29 C.F.R.
§§ 504.310(I)(2) and 504.350(b)).  Id. at 4-5. 
In this regard, Respondent "failed to meet a condition attested
to . . . ."  8 U.S.C. § 1182(2)(E)(iv).  Finally, the ALJ
found that although Respondent had complied with the INRA's
prevailing wage provisions regarding base wage rates, it may not
have paid the correct shift and specialty unit differentials
because it did not elicit this information from the State
Employment Security Agency (SESA) as required under 29 C.F.R.
§ 504.310(e)(1).  Id. at 7-8.  Accordingly,
Respondent "violated the condition attested to" under 8 U.S.C.
§ 1182(m)(2)(A)(ii) by failing to obtain complete
information from the SESA establishing the prevailing wage.

     The ALJ assessed a total civil money penalty of $2,250.  He
also stated that if the failure to ascertain wage differentials
"resulted in the Respondent's failure to pay any of its nurses
the proper prevailing wage the Respondent should pay those nurses
back wages in the correct amount."  D. and O. at 8.


                             DISCUSSION

     Respondent declined to contract with Complainants for
temporary nursing services during the pendency of the 1993-1994
attestation.  Complainants now assert that their nurses, who were
"displaced" by Respondent's H-1A nurses, are entitled to an award
of back pay because the attestation was defective.

     The ALJ found that Complainants' employees were not parties
to the action and thus were not entitled to recovery.  D. and O.
at 10.  Complainants argue that they initiated the action "on
behalf of two corporate entities and on behalf of the entities'
displaced nurses."  Complainants' Brief at 6.  

     The regulations provide that "[a]ny aggrieved person or
organization may file a complaint of a violation of [the INRA] .
. . .  Upon the request of the complainant, the Administrator
shall, to the extent possible under existing law, maintain
confidentiality regarding the complainant's identity . . . ."  29
C.F.R. § 504.405(b).  After the Administrator conducts an
investigation and issues a determination, any "interested party"
may request an administrative hearing.  29 C.F.R. § 504.420.

If a "complainant wishes to be a party to the administrative
hearing proceedings . . 
[PAGE 5]
. the complainant shall then waive confidentiality."  29 C.F.R.
§ 405(b).  Hearings are conducted pursuant to 29 C.F.R.
Parts 504 and 18.  29 C.F.R. § 504.425(a).  A party
"includes a person or agency named or admitted as a party to a
proceeding . . . ."  29 C.F.R. § 18.2(g).  Specific rules
pertain to party designation.  29 C.F.R. § 18.10.[5] 

     As evidence of its nurses' intent to participate in the
case, Complainants point to the post-hearing affidavit of Walter
Theodore Kaatman and the post-hearing deposition of Cynthia
Fortner.  Mr. Kaatman stated:  "I authorized Ann Elaine Castro,
P.A. [Complainants' attorney] to represent my interest in a
Complaint filed pursuant to the Immigration Nursing Relief Act
against HCA Largo Medical Center, asking that my identity remain
confidential for fear of retaliation."  Complainants' Exh. 17. 
Mrs. Fortner's deposition includes the following exchange:

     Q.  Why are you here today?
     A.  I was asked to come to give some statements.
     Q.  By who?  Who asked you?
     A.  I believe I talked to Julie on the phone.
     Q.  Is she your lawyer?
     A.  (Shaking head.)
     Q.  She doesn't represent you?
     A.  No.
     Q.  Does Ms. Castro represent you?
     A.  No.
     Q.  When did they contact you?
     A.  About a week ago.
     Q.  That's the first time you spoke to them?
     A.  Uh-huh.
     Q.  That's the first time you heard of this proceeding?
     A.  Yes.
     Q.  You had no inclination to come forward before that time,
did you?
     A.  No. . . .
     Q.  Have you hired an attorney?
     A.  No, I haven't.
     Q.  Have you, on your own behalf, attempted to join this
proceeding?
     A.  They've -- yes.  I've talked to Lynette Dorton, and she
talked to me about it, and I said I didn't mind.
     Q.  Didn't mind what?
     A.  If they called me.
Complainants' Exh. 15 at 32-34.  The record does not show that
either individual participated in the complaint or the hearing
apart from providing the affidavit and deposition.  They neither 
[PAGE 6]
applied for nor were granted party status under 29 C.F.R. §
18.10(c).  In these circumstances, Complainants' nurses are not
"part[ies] to the administrative hearing proceedings . . . ."  29
C.F.R. § 504.405.

     Admittedly, Respondent's employees, who stand to recover if
not paid the prevailing wage, similarly are not parties.  Party
status is not a prerequisite for these employees because the
attestation expressly ensures their recovery.  29 C.F.R. §
504.310(e)(1) ("To meet the requirement of no adverse effect on
wages, the facility shall attest that it shall pay each nurse of
the facility at least the prevailing wage for the occupation in
the geographic area.").  In contrast, Complainants argue that its
nurses are due back pay because they wrongfully were displaced
under an attestation which never should have been approved --
damage which is not expressly compensable.  Accordingly, party
status was necessary to press the claim of these nurses.

     Finally, Complainants, the only named parties, are not
parties whose loss can be remedied under the INRA.  In their
complaint, Complainants allege annual sales between Respondent
and themselves of $535,555 in 1987, $640,201 in 1988 and $399,493
in 1989.  "In 1990, the practice and pattern of annual sales
between the parties abruptly halted.  Throughout 1991, 1992, and
the first six months of 1993 [Complainants'] annual sales at
Largo Medical Center has remained at zero."  ALJ Exh. 1.  Any
recovery here would represent damages awarded for loss of
Complainants' business.  The INRA, which authorizes civil money
penalties and back pay for failure to pay the prevailing wage,
makes no provision for compensatory or exemplary damages. 
See 8 U.S.C. § 1182(m)(2)(E)(iv) and (v); H. R. Rep.
No. 288, 101st Cong., 1st Sess. 8 (1989), reprinted in
1989 U.S.C.C.A.N. 1894, 1901; 29 C.F.R. § 504.410(a) and
(c).

     The remaining issue on review is whether this case should be
remanded to the ALJ to determine whether Respondent failed to pay
any of its nurses the prevailing wage (including pay
differentials) during the period of its 1993-1994 attestation
and, if so, the amounts due.  Complainants and Respondent joined
in requesting that the case be remanded, and the Administrator
does not object to a remand.  Accordingly, this case IS REMANDED
to the ALJ for further proceedings consistent with this opinion.

     SO ORDERED.



                              ____________________________

[PAGE 7]
                              DAVID A. O'BRIEN
                              Chair



                              ____________________________
                              KARL J. SANDSTROM
                              Member



                              ____________________________
                              JOYCE D. MILLER
                              Alternate Member



[ENDNOTES]
           
[1] 
 On April 17, 1996, the Secretary of Labor delegated authority to
issue final agency decisions under, inter alia, the
Immigration Nursing Relief Act of 1989, and the implementing
regulations, to the newly created Administrative Review Board. 
Secretary's Order 2-96 (Apr. 17, 1996), 61 Fed. Reg. 19978 (May
3, 1996)(copy attached).  Secretary's Order 2-96 contains a
comprehensive list of the statutes, executive order, and
regulations under which the Administrative Review Board now
issues final agency decisions.  A copy of the final procedural
revisions to the regulations, 61 Fed. Reg. 19982, implementing
this reorganization also is attached.

[2] 
 This "H-1A" pilot program for the admission of nonimmigrant
alien nurses on the basis of health care facility attestation was
subject to a sunset date of September 1, 1995.  Despite this
limitation, H-1A obligations and the Department of Labor's
enforcement authority continue until expiration of extant H-1A
visas issued prior to the sunset date.  Section 3(d), P.L. No.
101-238, 103 Stat. 2099 (amendment shall apply to classification
petitions filed for nonimmigrant aliens only during five-year
period beginning on first day of ninth month after enactment date
of December 18, 1989).  See 29 C.F.R. § 504.310(p);
20 C.F.R. § 310(p).

[3] 
 "PRN" is an abbreviation for pro re nata which means "as
needed" or "as necessary." Complainants supply nurses to
hospitals, doctors' offices, nursing homes and clinics on a
daily, weekly, or monthly basis or for several months at a time. 
They also provide home health care services.  Hearing
Transcript (T.) 169-170.

[4] 
 "Acuity" is an industry measure of the severity of illness. 
Rushing deposition at 35.

[5] 
 Persons or organizations wishing to participate must petition
for party status.  Any petition must state petitioner's interest
in the case, the manner in which participation will contribute to
case disposition, the representative who will appear at the
hearing, the issues which petitioner wishes to raise and whether
petitioner intends to present witnesses.  29 C.F.R. §
18.10(c).  The ALJ is required to provide each party with written
notice of each petition granted.  29 C.F.R. § 18.10(d).