18-001872 Emergency Education Institute vs. Board Of Nursing Status: Closed Recommended Order on Tuesday, January 29, 2019.

Summary: No jurisdiction under s. 120.57(1) due to lack of genuine issue of material fact, even though agency's retroactive implementation of statute was ruled to be an unadopted rule in a related case, because correct implementation produces same result.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EMERGENCY EDUCATION INSTITUTE,

LLC ,

Petitioner,

Case No. 18 - 1872

vs.

BOARD OF NURSING ,

Respondent .

_______________________________/

RECOMMENDED ORDER

On September 28 and November 7, 2018 , Robert E. Meale,

Administrative Law Judge of the Division of Administrative

Hearings (DOAH), conducted the final hearing by videoconference

in Lauderdale Lakes and Tallahassee, Florida.

APPEARANCES

For Petitioner: Shavon L. Jones, Esquire

Sec Outsourcing, LLC

14311 Biscayne Boulevard, Suite 2851

Miami Beach, Florida 33154

Wendy Brewster - Maroun, Esquire

Brewster - Maroun Spradley, PLLC

18520 Northwest 6 7th Avenue, Suite 259

Hialeah, Florida 33015 - 3302

For Respondent : Marlene K. Stern, Esquire

Timothy Frizzell, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE S

The issues are: 1) whether, based on the 2017 passing rate

of graduates of Petitioner's prelicensure nursing education

program (Program) taking the National Council of Licensing

Examination (NCLEX), Respondent is required to return the Program

from probationary to approved status, pursuant to section

464.019, Florida Statutes; and 2) wheth er, in declinin g to return

the P rogram to approved status, Respondent has unlawfully relied

on an unadopted rule, in violation of section 120.57(1)(e). At

Petitioner's request, the parties presented evidence concerning

constitutional challenges that Petitioner intends t o present to a

district court of appeal .

PRELIMINARY STATEMENT

By Notice of Intent to Place Program on Probation filed

May 3, 2017, Respondent placed Petitioner's Program on

probationary status for 2017 due to inadequate passing rates of

its graduates taki ng the NCLEX for the first time in 2015 and

2016 (Probationary Order) . By Notice of Intent to Extend

Probation filed February 23, 2018, Respondent extended the

Program's probationary status for 2018 due to an inadequate

passing rate of its graduates takin g the NCLEX in 2017 (Order

Extending Probation) .

In response to the Order Extending Probation, o n March 21,

2018, Petitioner filed with DOAH a Petition for Formal

Administrative Proceedings (Petition) . Paragraph 10 of the

P etition states that, on March 12, Petitioner filed with

Respondent the same pet ition, but paragraph 11 of the P etition

alleges that, on March 19, Respondent advised that, rather than

transmit the proceeding to DOAH, it "wanted to dismiss the

petition on the ground that it was filed in an incorrect forum."

When Respondent reportedly resisted transmitting the request

to DOAH, Petiti oner filed another copy of the P etition with DOAH .

On its face, the Petition commenced a proceeding, under section

120.56 (4)(c) , to obtain a final order from the administrative law

judge invalidating an unadopted rule and impliedly commenced a

proceeding, under sections 120.569(1) and 120.57(1), to obtain a

final order from Respondent returning Petitioner's program to

approved sta tus from probationary status. Indirectly confirming

its intent to commence a proceeding under sections 120.569(1) and

120.57(1), the P etition invoke d section 120.57(1)(e) to bar

Respondent and the administrative law judge from basing agency

action on an u nadopted rule. Obviating the question of whether

Petitioner could file the Petition with DOAH to commence a

proceeding under sections 120.569(1) and 120.57(1), o n April 10,

2018, Respondent filed a Refer ral for Hearing, which transmitted

to DOAH both proc eeding s.

Through the final hearing, the proceedings under

sections 120.569(1) and 120.57(1) and section 120.56 remained

consolidated, as filed, pursuant to section 120.57(1)(e)1.d.

The need for separate orders dictated the severance of the

section 120.56 proceeding, which became DOAH Case 19 - 0442RU .

On June 8 , 2018, Petitioner filed a Motion for Leave to

Amend Petition. On June 15, 2018, Respondent filed a response

stating that it took no position on the motion, which seeks

attorneys' fees and costs unde r section 57.111. On June 19,

2018, the administrative law judge granted the motion . Issued on

the same date as the recommended order in this case, the final

order in DOAH Case 19 - 0442RU determines that Respondent has made

an agency statement that is an unadopted rule, but denies

Petitioner's request for attorneys' fees and costs under section

57.111.

As pertinent to the proceeding under sections 120.569(1)

and 120.57(1), the Petition challenges Respondent's decision to

extend Petitioner's probationary status for 2018 and alleges that

Respondent unlawfully implemented, by an unadopted rule, a

statutory amendment governing which graduates to include in

calculating the passing rate of the Program's graduates.

At the hearing, Petitioner called three witnesses and

offered into evidence 13 exhibits: Petitioner Exhibits C.1, D.3,

E, E.1 (as identified by Respondent), E.11 (as identified by

Respondent), E.12 (as ident ified by Respondent), F, G.1, G.2,

H.1, H.2, J, and K. Respondent called two witnesses and offered

into evidence nine exhibits: Respondent Exhibits Dd.2, E.2

through E.6, E.8 through E.9, and E.16. All exhibits were

admitted.

The court reporter filed th e transcript on October 23, 2018.

On December 21, 2018, Petitioner filed a proposed final order and

Respondent filed a proposed recommended order. The

administrative law judge has considered each proposed order in

preparing this recommended order.

FINDIN G S OF FACT

1. The Program is a prelicensure professional nursing

education program that terminates with an associate degree.

Respondent approved the Program in 2013, thus authorizing

Petitioner to admit degree - seeking students into the Program,

as provid ed in section 464.019.

2. As provided by section 464.019(5)(a)1., the passing rate

of the Program's graduates taking the NCLEX for the first time

must meet or exceed the minimum passing rate, which is ten points

less than the average passing rate of grad uates taking the NCLEX

nationally for the first time. Until June 23, 2017, the passing

rate of a Florida program was based only on first - time test -

takers who had graduated within six months of taking the exam

(New Graduates). C hapter 2017 - 134, sections 4 and 8 , Laws of

Florida, which took effect when signed into law on June 23, 2017

(Statutory Amendment), removes the six - month restriction, so that

the passing rate of a Florida pr ogram is now based on all

first - time test - takers, regardless of when they gra duated

(Graduates). The statutory language does not otherwise add ress

the implementation of the Statutory A mendment.

3. For 2015 and 2016, respectively, the minimum passing

rates in Florida were 72% and 71.68%, and the Program's New

Graduates passed th e NCLEX at the rates of 44% and 15.79%. As

required by section 464.019(5), Respondent issued the

Probationary Order.

4. The Probationary Order recites the provisions of

section 464.019(5)(a) specifying the applicable passing rate,

directing Responden t to place a program on probation if its

graduates fail to pass at the minimum specified passing rates for

two consecutive years, and mandating that the program remain on

probation until its passing rate achieves the minimum specified

rate. The Probationa ry Order details the 2015 and 2016 passing

rates of Petitioner's relevant graduates and the minimum passing

rates for these years. The Probationary Order makes no attempt

to describe the condition of probation, which might have included

a reference to New Graduates, other than to refer to section

464.019(5)(a)2., which, unchanged by the Statutory Amendment,

specifies only that a program must remain on probation until and

unless its graduates achieve a passing rate at least equal to the

minimum passing rate for the year in question.

5. For 2017, the minimum passing rate for a Florida program

was 74.24%. If, as Respondent contends, the new law applies to

all of 2017, six of the fifteen of the Program's Graduates failed

the NCLEX, so the Program's passing rate was inadequate at 60%.

If, as Petitioner contends, the old law applies to all of 201 7,

twelve of the Program's test - takers were New Graduates, and only

three of them failed, so the Program's passing rate was adequate

at 75%.

6. To discredit Respondent's retroactive application of the

new law to January 1, 2017, which produced its calculation of a

60% passing rate, Petitioner, relying on section 120.57(1)(e)1.,

has shown that this implementation of the Statutory Amendment

constitutes an unadop ted rule that enlarges, modifies, or

contravenes the Statutory Amendment, as detailed in the final

order issued in DOAH Case 19 - 0442RU .

7. But no more credit can be given to Petitioner's

contention that the Statutory Amendment may only be applied

prospe ctively, starting on January 1, 2018. Petitioner grounds

this argument in the timing of Respondent's meeting in early 2018

to determine the 2017 passing rate for the Program: because the

meeting took place in 2018, Respondent could not apply the new

law until 2018. It makes no sense that an agency could control

the effective date of a statute by timing when it convenes a

meeting to apply the statute.

8. Even if Petitioner's argument were an attempt to claim a

vested interest in the calculation methodo logy set forth in the

Probationary Order, it is unpersuasive. In stating the condition

of probation, the Probationary Order does not incorporate

textually the notion of New Graduates, but instead refers to the

statute, which was not amended, that sets the passing rates. The

condition of probation does not even refer to the statute that,

amended by the Statutory Amendment, identifies which graduates to

include in calculating the passing rate.

9. Assigning meaning to the effective date of the Statutory

Amendment, the passing rate of Petitioner's graduates in 2017 was

inadequate. From January 1 through June 22, 2 017, five of the

Program's test - takers were New Graduates and they all passed.

Fro m June 23 through December 31, 2017, four of the eight

Graduates taking the NCLEX passed the test. Combining these

results for all of 2017, the Program's passing rate was n ine

divided by thirteen, or 69% -- more than five points below the

minimum passing ra te for 2017 .

CONCLUSIONS OF LAW

10 . There is jurisdiction under section 120.569(1) because

Respondent's decision not to return the Program to approved

status determines the substantial interests of Petitioner. But

Petitioner is entitled only to an inform al hearing, not a formal

DOAH hearing, because the basic facts necessary to dispose of the

case are undisputed. §§ 120.569(1) and 120.57(1) and (2). A

DOAH hearing may not be predicated on the ultimate factfinding or

analysis that is set forth in the pre ceding paragraph, in which

the Statutory Amendment is applied in a readily apparent way to

undisputed facts.

11. Nor, under Florida administrative law, is there any

notion of supplemental jurisdiction by which DOAH's jurisdiction

over the proceeding und er section 120.56(4) establishes

jurisdiction over this proceeding under sections 120.569(1) and

120.57(1). Section 120.57(1)(e)2.d. authorizes the consolidation

of a proceeding under sections 120.569(1) and 120.57(1) with a

proceeding under section 120.5 6, but does not dispense with the

necessity of a jurisdictional basis for each proceeding.

12. If there were jurisdiction under section 120.57(1), for

the reasons set forth above, this recommended order would

recommend that Respondent enter a final or der extending the

Program's probationary status for 2018, as set forth in the Order

Extending Probation. Petitioner's reliance on section

120.57(1)(e) to rid itself of Respondent's implementation of the

Statutory Amendment retroactive to January 1, 2017, does not

preclude a sensible application of the Statutory Amendment with

due regard to its effective date.

RECOMMENDATION

It is

RECOMMENDED that the Board of Nursing enter a final order

extending the probationary status of the Program for 2018.

DONE AND ENTERED this 29th day of January , 2019 , 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 Administrative Hearings

this 29th day of January , 2019 .

COPIES FURNISHED:

Diane L. Guillemette, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399

(eServed)

Shavon L. Jones, Esquire

Sec Outsourcing, LLC

14311 Biscayne Boulevard, Suite 2851

Miami Beach, Florida 33154

(eServed)

Timothy Frizzell, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399

(eServed)

Marlene K. Stern, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399

(eServed)

Wendy Brewster - Maroun, Esquire

Bre w ster - Maroun Spradley, PLLC

1 85 20 Northwest 67th Avenue, Suite 259

Hialeah, Florida 33015 - 3302

(eServed)

Joe Baker, Jr., Executive Director

Board of Nursing

Department of Health

4052 Bald Cypress Way, Bin C02

Tallahassee, Florida 32399 - 3252

(eServed)

Jody Bryant Newman, EdD, EdS

Board of Nursing

Department of Health

4052 Bald Cypress Way , Bin D 02

Tallahassee, Florida 32399

Louise Wilhite - St Laurent, Interim Gen eral Counsel

Department of Health

4052 Bald Cypress Way, Bin C65

Tallahassee, Florida 32399

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

A s to the recommended order, a ll parties have the right to submit

written exceptions within 15 days from the date of this

recommended order. Any exceptions to this recommended o rder

should be filed with the agency that will issue the final o rder

in this case.