If this is an accurate reading of the regulation, it is not merely a matter of what nurses were teaching and demonstrating; it is a requirement that the nurses actually demonstrate. But regardless of how the regulation is read, the record before us does not reflect how the nurses were demonstrating. There are no tests or examinations performed prior to or after the axial transfers. The ALJ made some observation about the record, stating:
In the case of this staff... the testimony of the staff is that they demonstrate the technique with the patients if the situations call for it. However, I note that there is very little documentation of the actual demonstration of this technique by the staff.
Why the absence of documentation is important, I do not know. Because the staff members are all certified nurses, the staff is technically licensed by Medicare; the staff here is not required to be certified as LPNís. And it is important to note that Sunflower was not using the title certified or licensed to describe the staff. But CMS makes no claim that there is no documentation. Instead, CMS makes a claim about the fact that the axial transfers were not performed properly. d2c66b5586