17-006838 Ideal Professional Institute vs. Board Of Nursing Status: Closed Recommended Order on Tuesday, April 24, 2018.

Summary: Operator of approved program for prelicensure education of students seeking an associate's degree in nursing is placed on probation for failure to achieve minimum passing rates in 2015 and 2016.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IDEAL PROFESSIONAL INSTITUTE ,

Petitioner,

vs. Case No. 1 7 - 6838

BOARD OF NURSING ,

Respondent .

_______________________________/

RECOMMENDED ORDER

On February 6 , 2018, Robert E . Meale, Administrative Law

Judge of the Division of Administrative Hearings (DOAH),

conducted the final hearing by videoconference in Miami and

Tallahassee , Florida.

APPEARANCES

For Petitioner: Gregory M. Ochalek, Esquire

Law Offices of Gregory M. Ochalek, PLLC

19553 Northwest Second Avenue , Suite 217

Miami Gardens, Florida 33169 - 3366

For Respondent : Diane L. Guillemette , Esquire

Deborah Bartholow Loucks, Esquire

Office of the Attorney General

The Capitol , Plaza Level 01

Tallahassee, Florida 32399 - 1050

STATEMENT OF THE ISSUE

The issue is whether Respondent may place on probation for

2017 Petitioner's approved program offering an associate's

degree in nursing (ADN) due to the failure of its relevant

graduates to achieve the required passing rate on the nursing

licensing examination for 2015 and 2016 .

PRELIMINARY STATEMENT

By Notice of Intent to Place Program on Probation filed on

November 17, 2017, Respondent placed on probationary status for

2017 Petitioner's approved program for an ADN because , in 2015

and 2016, the program's relevant graduates failed to achieve the

requi red passing rate s on the licensing examination offered by

the National Council of State Boards of Nursing (NCLEX) .

By request for hearing served on December 6, 2017,

Petitioner requested a formal administrative hearing.

At the final hearing, Petitioner called no witness es and

offered into evidence no exhibits. Respondent called one

witness and offered into evidence nine exhibits : Respondent

Exhibits 1, 2, 4, 11, 12, and 33 through 36 . The parties

jointly offered Joint Exhibits 1 through 13. All exhibits were

admitted . Respondent Exhibit 35, which is the transcript of the

deposition of Dr. Doyoung Kim, includes several exhibits that

are identified in the transcript and attached to the transcript.

The Administrative La w Judge has sealed Respondent Exhibits 1

and 2, pursuan t to sections 456.014 and 464.01 9(6), Florida

Statutes.

The court reporter filed the transcript on March 16 , 2018.

The parties filed their proposed recommended orders by April 16 ,

2018. On April 19 , 2018, Petitioner filed a motion objecting to

Respondent's proposed recommended o rder; the motion is denied.

FINDINGS OF FACT

1. Petitioner operates an ADN program. Graduates of

Petitioner's ADN program are eligible to take the NCLEX, which,

if passe d, renders them eligible for nursing licensure.

2. As discussed in the Conclusions of Law, Respondent is

required to penalize any approved program whose first - time test

takers taking the NCLEX within six months of graduation fail to

achieve a minimum pass ing rate. The minimum passing rate is ten

points less than the first - time test taker average (National

Test Taker Average) announced by the National Council of State

Boards of Nursing (Council).

3. The first full year that Petitioner's graduates took

the NCLEX was 2015. For 2015, the National Test Taker Average

for ADN graduates was 82%. F or 2016, the National Test Taker

Average for ADN graduates was 81.68%.

4. For 2015, ten first - time test take rs of the NCLEX who

had graduated from Petitioner's approved program passed out of

73 such takers. For 2016, 13 first - time test takers of the

NCLEX who had graduated from Petitioner's approved program

passed out of 143 such takers. The pass ing rates were thus

15.07% for 2015 and 9.1% for 2016.

5 . During the years at issue, Florida law restricted the

calculation of passing rates of first - time test takers to

persons who took the NCLEX within six months of graduation. The

Council obtains and reports , by te st taker, the graduation month

and year , but not the day, month, and year. Respondent obtains

graduation dates only of applicants to take the NCLEX in

Florida. However, t hrough discovery in this case, Respondent

obtained exact graduation dates of a suffi cient number of the

relevant test takers to meet the applicable evidentiary

standard .

6 . As adjusted for test takers taking the NCLEX within six

months of graduation , the passing rate of Petitioner's relevant

graduates in 2015 was 22.58%. There were two students for whom

precise graduate dates could not be obtained; one student passed

the NCLEX and one student failed the NCLEX. If the figures

include the student who passed, but not the student who failed,

the adjusted passing rate of Petitioner's relevan t graduates in

2015 was 25%. Making the same adjustment for one student who

failed the NCLEX and for whom a precise graduation date is

unavailable, the adjusted passing rate of Petitioner's relevant

graduates in 2016 was 12.5%.

7. By clear and convincing evidence, Respondent has proved

that graduates of Petitioner's approved program taking the NCLEX

for the first time and within six months of graduation did not

come anywhere near passing the NCLEX at the statutory minimum

rates for 2015 and 2016.

CONCLU SIONS OF LAW

8 . DOAH has jurisdiction of the sub ject matter.

§§ 120.569, 120.57 (1) , and 464.019(5)(a)2. , Fla. Stat . (2017)

(all references to statutes are to the statutes in effect in

2017 except where noted) .

9. Respondent has the burden of proving the material

allegations. Dep't of Transp. v. J.W.C. Co., Inc. , 396 So. 2d

778 (Fla. 1st DCA 1981). The standard of proof is clear and

convincing evidence. § 120.57(1)(j); Dep't of Banking & Fin. v.

Osborne Stern & C o. , 670 So. 2d 932 (Fla. 1996).

10. Section 464.019(5)(a)1. (2016) requires an approved

program offering prelicensure nursing education to achieve a

passing rate, for first - time test takers who take the NCLEX

within six months of graduation, not more than ten points lower

than the National Test Taker Average reported for the applicable

year by the Council for graduates of a comparable program.

11. Unchanged in 2017, section 464.019(5)(a)2. provides

that Respondent shall place an approved program on probat ionary

status if the program fails to achieve minimum passing rates for

two consecutive years.

12. Petitioner's relevant graduates failed to achieve the

statutory minimum passing rate s on the NCLEX for 2015 and 2016.

RECOMMENDATION

It is

RECOMMENDED that the Board of Nursing enter a final order

placing Petitioner's approved program on prob ation for 2017.

DONE AND ENTERED this 24 th day of April , 2018 , in

Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administra tive Hearings

this 24 th day of April , 2018 .

COPIES FURNISHED:

Diane L. Guillemette, Esquire

Deborah Bartholow Loucks, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

(eServed)

Lynette Norr, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

(eServed)

Gregory M. Ochalek, Esquire

Law Offices of Gregory M. Ochalek, PLLC

19553 Northwest Second Avenue , Suite 217

Miami Gardens , Florida 33169 - 3366

(eServed)

Joe Baker, Jr., Executive Director

Board of Nursing

Department of Health

4052 Bald Cypress Way, Bin C - 02

Tallahassee, Florida 32399 - 3252

(eServed)

Nichole C. Geary, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A - 02

Tallahassee, Florida 32399 - 1701

(eServed)

Jody Bryant Newman, EdD, EdS , Board Chair

Board of Nursing

Department of Health

4052 Bald Cypress Way, Bin D - 02

Tallahassee, Florida 32399 - 1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.