19-000442RU Emergency Education Institute vs. Board Of Nursing Status: Closed DOAH Final Order on Tuesday, January 29, 2019.

Summary: Retroactive implementation of a statutory amendment changing the method of calculating the passing rate of graduates of a prelicensure nursing education program is an unadopted rule. Request for attys' fees under s. 57.111 denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EMERGENCY EDUCATION INSTITUTE,

Petitioner,

vs. Case No. 19 - 0442RU

BOARD OF NURSING,

Respondent.

_______________________________/

FINAL 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

250 95th Street, No. 6394

Miami Beach , Florida 33154

Wendy Brewster - Maroun, Esquire

Bre w ster - Maroun Sp radley, PLLC

18520 Northwest 67th 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 whether, in violation of sections

120.54(1)(a) and 120.56(4), Florida Statutes, Respondent has made

an agency statement that is an unadopted rule in implementing a

2017 statutory amendment broadening the category of first - time

test - takers to be counted when calculating the passing rate of

the graduates of Petitioner Ó s prelicensure professional nursing

education program (Program) and whether, pursuant to section

57.111, Petitioner may recover attorneys Ó fees and costs from

Respondent . At Peti tioner Ó s request, the parties presented

evidence concerning constitutional challenges that Petitioner

intends to present to a district court of appeal .

PRELIMINARY STATEMENT

By Notice of Intent to Place Program on Probation filed

May 3, 2017, Respondent pl aced Petitioner Ó s Program on

probationary status for 2017 due to inadequate passing rates of

its graduates taking the NCLEX for the first time in 2015 and

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

Probation filed February 23, 2018, Responde nt extended the

Program Ó s probationary status for 2018 due to an inadequate

passing rate of its graduates taking the NCLEX for the first time

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). This filing commenced

DOAH Case 18 - 1872. Paragraph 10 of the Petition states that, on

March 12, Petitioner filed with Respondent the same petition, but

paragraph 11 of the Peti tion alleges that, on March 19,

Respondent advised that, rather than transmit the proceeding to

DOAH, it Ð wanted to dismiss the petition on the ground that it

was filed in an incorrect forum. Ñ

When Respondent reportedly resisted transmitting the request

to DOAH, Petitioner filed the Petition 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

invalida ting 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 Ó s program to

approved status from probationary status. Indirectly confirming

its intent to c ommence a proceeding under sections 120.569(1)

and 120.57(1), the Petition invoked section 120.57(1)(e) to bar

Respondent and the administrative law judge from basing agency

action on an unadopted rule. Obviating the question of whether

Petitioner could f ile the Petition with DOAH to commence a

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

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

to DOAH both proceedings .

Through the final hearing, the proceedings under

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

consolidated, as filed, pursuant t o 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, Peti tioner 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 Ó fees and costs under section 57.111. On June 19,

2018, the administrativ e law judge gr anted the motion.

Issued on the same date as the final order in this case, the

recommended order in DOAH Case 18 - 1872 determines that DOAH lacks

jurisdiction under section 120.57(1) due to the absence of a

genuine issue of a material fact, as required by s ection

120.57(1)( l ), but proffers a different application of the

statutory amendment from those argued by the parties.

As pertinent to the section 120.56(4) proceeding, the

Petition challenges Respondent Ó s application of a statutory

amendment, which took effect on June 23, 2017, to all of 2017 and

notes that the legislature has explicitly declined to provide

Respondent with any residual rulemaking authority .

At the hearing, Petitioner called three witnesses and

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

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

Respondent), E.12 (as identified 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 E xhibits Dd.2, E.2

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

admitted.

The court reporter filed the 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 final order .

FINDING 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 provided in se ction 464.019 .

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

of the Program Ó 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 passage rate of graduates taking the NCLEX

nationally for the fi rst time. Until June 23, 2017, the passing

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

test - takers who had taken the exam within six months of

graduating (New Graduates). Chapter 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 program is now

based on all first - time test - takers, regardless of when they

graduated (Graduates). The statutory language does not otherwise

address the implementation of the Statutory Amendment .

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

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

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

r equired 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 Respondent to place a program on probation if its

gradua tes 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 Probationary Order details the 2015 and 2016 passing

rate s of Petitioner Ó 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, s ix of the fifteen of the Program Ó s Graduates failed

the NCLEX , so the Program Ó s pass ing rate was inadequate at 60% .

If, as Petitioner contends, the old law applies to all of 2017,

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

three of them failed, so the Program Ó s pass ing rate was adequate

at 75% .

6. Respondent clearly applied the Statutory Amendme nt

retroactively to January 1, 2017, in the Order Extending

Probation because the order states that that the passing rate

of the Program Ó s Graduates for 2017 was only 60% and therefore

extends Petitioner Ó s probationary status for 2018. The Order

Extending Probation provides Petitioner with a clear point of

entry to request an administrative hearing .

7 . Each party applies the Statutory Amendment without

regard to the effective date of June 23, 2017, but Respondent

reaches the correct conclusion: the passi ng rate of the

Program Ó s graduates for 2017 was inadequate. The NCLEX is

administered throughout the year, and the dates of graduation are

available for Petitioner Ó s Graduates taking the NCLEX in 2017, so

it is possible to calculate a combined passing rat e, using only

New Graduates under the old law for testing dates through June 22

and all Graduates under the new law for testing dates after

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

Program Ó s test - takers were New Graduates and they all pa ssed.

From 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 Ó s passing rate was nine

divided by thirteen, or 69%, which was inadequate for 2017 .

CONCLUSIONS OF LAW

8 . DOAH has jurisdiction. Jurisdiction to challenge an

unadopted rule requires a demonstration that the challenger is

substantially affected by the rule. § 120.56(4)(a) .

9 . Jurisdiction under section 120.569(1) is a Ð forward -

lookin g concept Ñ that does not Ð disappear Ñ if the final result is

adverse to the permit challenger, but requires only that the

challenger demonstrates that it Ð reasonably expects Ñ for its

substantial interests to be determined by the agency. See , e.g. ,

Palm Bea ch Cnty. Envtl. Coal. v. Dep Ó t of Envtl. Prot. , 14 So. 3d

1076, 1078 (Fla. 4th DCA 2009); Peace River/Manasota Reg Ó l Water

Supply Auth. v. IMC Phosphates Co. , 18 So. 3d 1079, 1083 (Fla. 2d

DCA 2009) .

10 . The forward - looking principle also applies to a rule

challenge proceeding. Jurisdiction would not disappear if, for

example, Petitioner had failed to prove that Respondent Ó s

application of the Statutory Amendment constituted an unadopted

rule or, as here, Petitioner proved that Respondent Ó s application

of the Statutory Amendment was unlawful as an unadopted rule, but

the correct application of the Statutory Amendment supports the

Order Extending Probation. Petitioner is substantially affected

because it could reasonably have expected to have been affec ted

by Respondent Ó s retroactive application of the Statutory

Amendment to January 1, 2017, and, as a person subject to

regulation by Respondent, Petitioner is readily recognized by

courts to be a substantially affected person. See, e.g. , Lanoue

v. Fla. De p Ó t of Law Enf . , 751 So. 2d 94 (Fla. 1st DCA 1999);

Cole Vision Corp. v. Dep Ó t of Bus. & Prof Ó l Reg. , 688 So. 2d 404

(Fla. 1st DCA 1997); Ward v. Bd. of Trs. of the Int . Imp . Trust

Fund , 651 So. 2d 123 6 (Fla. 4th DCA 1995) (per curiam) .

11 . The burden of proof is on Petitioner. § 120.56(4)(c).

The standard of proof is a preponderance of the evidence.

§ 120.56(1)(e) .

12. Subject to exceptions that are irrelevant to the

present case, an agency acts by rule or order. McDonald v. Dep Ó t

of Bank ing & Fin. , 346 So. 2d 569, 577 (Fla. 1st DCA 1977). The

progressive development of policy that ultimately finds

expression as a rule, as endorsed in McDonald , has been

legislatively circumscribed by the mandate that Ð [r]ulemaking is

not a matter of agency discretion[,] Ñ so that any agency

statement meeting the definition of a rule must be adopted Ð as

soon as feasible and practicable. Ñ § 120.54(1)(a). Feasibility

and practicability are Ð presumed, Ñ subject to an agency Ó s proving

t he applicability of a statutory exception. § 120.54(a)1. and 2.

Neither exception applies to this case, nor has Respondent

attempted to invoke either of them .

13. A Ð rule Ñ is Ð each agency statement of general

applicability that implements, interprets, o r prescribes law or

policy, Ñ including Ð the amendment or repeal of a rule. Ñ

§ 120.52(16). A Ð final order Ñ is a Ð written final decision Ñ that

results from a proceeding under section 120.56, 120.569, and

120.57, among other statutes, and that is not a rule .

§ 120.52(7). Thus, all or part of a nominal final order in a

proceeding under sections 120.569(1) and 120.57(1), such as a

final order granting an application, may be a rule, if all or

part of the final order meets the definition of a rule. See,

e.g. , Fla. Quarter Horse Track Ass Ó n v. Dep Ó t of Bus. & Prof Ó l

Reg . , 133 So. 3d 1118 ( Fla. 1st DCA 2014) (per curiam). A rule

may be unwritten. Dep Ó t of High. Saf. & Motor Veh . v. Schluter ,

705 So. 2d 81 (Fla. 1st DCA 1997). In this case, the unadopted

rule is the implementation of the Statutory Amendment retroactive

to January 1, 2017.

14. An agency Ó s implementation of a statute is not a rule,

if the implementation merely restates the law or declares what is

Ð readily apparent Ñ from the law -- in other w ords, if the

implementation is Ð clearly correct. Ñ Grabba Leaf, LLC v. Dep Ó t

of Bus. & Prof Ó l Reg. , __ So. 3d __, 2018 Fla. App. LEXIS 15780

(Fla. 1st DCA 2018) (citing Amerisure Mut. Ins. Co. v. Dep Ó t of

Fin. Servs. , 156 So. 3d 520 (Fla. 1st DCA 2015)); S t. Francis

Hosp., Inc. v. Dep Ó t of Health & Rehab. Servs. , 553 So. 2d 1351

(Fla. 1st DCA 1989). Otherwise, an agency Ó s implementation of a

statute may be a rule.

15. Respondent Ó s implementation of the Statutory Amendment

is clearly incorrect. The legisl ature could have chosen

January 1, 2017, as the effective date of the Statutory

Amendment, but did not. By choosing this effective date for the

legislature, Respondent has not merely restated the Statutory

Amendment or declared what is readily apparent fr om the Statutory

Amendment; Respondent itself has legislated. In its proposed

recommended order, Respondent justifies its retroactive

application of the Statutory Amendment to January 1, 2017, partly

on the basis that relevant provisions of section 464.01 9 speak in

terms of a calendar year, but these provisions, such as in

section 464.019(5)(a) , establish the timeframe within which a

passing rate is to be calculated. The Statutory Amendment

establishes how the passing rate is to be calculated after

June 22, 2017, and the old law established how the passing rate

was to be calculated before June 23, 2017; changing the

calculation methodology mid - year does not impair the integrity of

the calendar year, as used elsewhere in section 464.019.

16. As one hopes that the parties might grudgingly admit,

restating the Statutory Amendment and its effective date

necessitates some use of June 23, 2018. There are several events

that could fall on either side of this date -- the date of

enrollment of a student, the date o n which a graduate takes the

NCLEX, and the date on which the NCLEX score is reported for the

graduate. By repealing the six - month provision in the old law,

the Statutory Amendment indirectly addresses two of these

events -- the date of graduation and the d ate on which the NCLEX is

taken. The focus of the relevant provisions of section 464.019

is on a graduate Ó s performance on the NCLEX, so the test date is

the obvious choice in applying the Statutory Amendment. For test

dates prior to June 23, only New Gr aduates are considered; for

test dates after June 22, all Graduates are considered.

17. It would seem that every program would be affected by

Respondent Ó s implementation of the Statutory Amendment because

passing rates must be calculated each year. Bu t the

implementation would qualify as a rule, even if Petitioner Ó s

program were the lone program affected. A statement directed to

one person may qualify as a rule. McCarthy v. Dep Ó t of Ins. &

Treasurer , 479 So. 2d 135, 137 (Fla. 2d DCA 1985).

18. In argument likely applicable to the section

120.57(1)(e) issue in DOAH Case 18 - 1872, Petitioner has argued

that Respondent Ó s unadopted rule is an invalid exercise of

delegated legislative authority under sections 120.56(1)(a)

and 120.52(8)(a). Petitioner Ó s argument is correct. Obviously,

Respondent has not adopted its implementation of the Statutory

Amendment through the process set forth in section 120.54, and

this omission renders the unadopted rule an invalid exercise of

delegated legislative authority u nder section 120.52(8)(a).

Also, for the reasons set forth immediately above, the unadopted

rule enlarges, modifies, or contravenes the Statutory Amendment

by adopting a different effective date from the effective date

set forth in the Statutory Amendment .

19. But the labors required of Petitioner in this case

naturally do not include a showing that the unadopted rule, if

adopted, would be an invalid exercise of delegated legislative

authority. This requirement of section 120.56(1)(a) applies only

to c hallenges of rules and proposed rules. Under section

120.56(4), Petitioner is required only to show that the unadopted

rule violates section 120.54(1)(a), which, as noted above,

informs agencies that rulemaking is not left to their discretion,

but must be undertaken as soon as feasible and practicable -- a

responsibility that Petitioner has already proved that Respondent

has failed to discharge.

20. Petitioner Ó s claim for attorneys Ó fees under

section 57.111 requires proof that Petitioner was a prevailin g

small business party in a proceeding initiated by Respondent,

unless Respondent Ó s actions were Ð were substantially justified or

special circumstances exist which would make the award unjust. Ñ

§ 57.111(4)(a).

21. Petitioner has prevailed in this proceeding under

section 120.56. For the purpose of this discussion, this final

order assumes that Petitioner is a small business party, as

defined in section 57.111(3)(d).

22. However, this proceeding under sectio n 120.56 was not

initiated by Respondent, as defined in section 57.111(3)(b).

Clearly, Petitioner initiated the rule challenge. Under

section 57.111(3)(b)3., an agency is treated as having initiated

a proceeding if it was required to provide a clear poin t of

entry. The Order Extending Probation contains a clear point of

entry, but the point of entry applies to the initiation of the

proceeding under sections 120.569(1) and 120.57(1).

23. These cases present a Catch - 22 situation for

Petitioner, who: 1) prevailed in this proceeding, which

Respondent did not initiate and 2) failed to prevail in the

sections 120.569(1) and 120.57(1) proceeding, which Respondent

did initiate. Underscoring this paradox is the fact that these

cases proceeded as a single case until the issuance of the final

and recommended orders.

24. Alternatively, though, Petitioner Ó s request for

attorney s Ó fees is denied on the ground that Respondent Ó s actions

Ð were substantially justified or special circumstances exist

which would make the award unjust. Ñ Respondent Ó s actions were

substantially justified because its incorrect implementation of

the Statutory Amendment produced the same result as the correct

implementation of the Statutory Amendment produces.

ORDER

It is

ORDERED that:

1. T he Board of Nursing Ó s retroactive implementation of the

Statutory Amendment to January 1, 2017, is an unadopted rule in

violation of sections 120.54(1)(a) and 120.56(4), and the Board

of Nursing shall immediately discontinue reliance on this

unadopted r ule, pursuant to section 120.56(4)(e) ; and

2. Petitioner Ó s claims under section 57.111 are denied.

DONE AND ORDERED 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

250 95th Street, No. 6394

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

Tallaha ssee, Florida 32399

(eServed)

Wendy Brewster - Maroun, Esquire

Bre w ster - Maroun Spradley , PLLC

185 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)

Ernest Reddick, Program Administrator

Anya Grosenbaugh

Florida Administrative Code and Register

Department of State

R. A. Gray Building

500 South Bronough Street

Tallahassee, Florida 32399 - 0250

(eServed)

Ken Plante, Coordinator

Joint Admin istrative Proced ures Committee

Room 680, Pepper Building

111 West Madison Street

Tallahassee, Florida 32399 - 1400

(eServed)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled

to judicial review pursuant to section 120.68, Florida Statutes.

Review proceedings are governed by the Florida Rules of Appellate

Procedure. Such proceedings are commenced by filing the original

notice of administrative appeal with the agency clerk of the

Division of Administrative Hearings within 30 days of rendition

of the order to be reviewed, and a copy of the notice,

accompanied by any filing fees prescribed by law, with the clerk

of the District Co urt of Appeal in the appellate district where

the agency maintains its headquarters or where a party resides or

as otherwise provided by law.