January 31, 2014
Camtech School of Nursing and Technological Sciences
Delaware Board of Nursing
Submitted: November 1, 2013
A. Dale Bowers, Esquire Law Office of A. Dale Bowers, P.A. 242 North James Street, Suite 100 P.O. Box 6047 Newport, Delaware 19804-0647 Attorney for Appellant
Patricia Davis Oliva, Esquire Deputy Attorney General Delaware Department of Justice 102 W. Water Street Dover, Delaware 19904 Attorney for Appellee
This appeal stems from a decision of the Appellee Delaware Board of Nursing ("the Board") on April 10, 2013 to withdraw state approval of Appellant Camtech School of Nursing and Technological Sciences ("Camtech"), effectively closing the school. Camtech has appealed the decision and essentially requests more time to implement procedures to comply with Board requirements. Because Camtech has failed to show that the Board committed legal error or that its decision was not otherwise supported by substantial evidence, the decision of the Board is hereby AFFIRMED.
FACTUAL AND PROCEDURAL HISTORY
In August 2005, Camtech applied to the Board to open a School of Licensed Practical Nursing. Applicants are subject to a three-step approval process which includes:
1) Phase I: 1 year before admitting students, prospective program submits complete application package and the Board conducts a site visit to validate the application. With approval, prospective program moves to Phase II.
2) Phase II: At least 9 months before students may be admitted, prospective program identifies a program director and completes second part of application package. If successfully completed, the program may admit students. With approval, prospective program moves to Phase III.
3) Phase III: Prospective program submits progress reports every six months reporting various criteria. At least 4 months before first day of classes, qualified faculty appointed to assist formation of analytical framework, curriculum plan, and course content. Board will conduct a second site visit after first graduating class to determine whether program is granted full approval.
Camtech proceeded through the first two phases of the process and its first class of students enrolled in September 2006. Camtech was never able to progress out of Phase III of the program for full approval.
The Board has the power to withdraw approval of a nursing education program under 23 Del. C. §1919(b):
If the Board determines that any approved nursing education program is not maintaining the standards required by this chapter and by the Board, written notice thereof, specifying the deficiency and the time within which the same shall be corrected, shall immediately be given to the program. The Board shall withdraw such program's approval if it fails to correct the specified deficiency, and such nursing education program shall discontinue its operation; provided, however, that the Board shall grant a hearing to such program upon written application and extend the period for correcting specified deficiency upon good cause being shown.
The first signs of trouble began in February 2009, when Camtech was informed it was being put on probation and would continue to be held in Phase III. The Board did not categorize them as "deficiencies" but noted several issues of "significant concern, " including its National Council Licensure Exam ("NCLEX") pass rate (61.20%) "far below the 80% threshold, " turnover in its nursing director position, and changes in its philosophy and requirements that were not handled according to protocol. The Board requested documents to substantiate that Camtech would address these issues. Camtech submitted a "Corrective Action Plan" to the Board in March 2009 that at that time satisfied the Board's concerns.
Camtech remained in Phase III on probation for the next two years. In February 2011 Camtech received another letter from the Board, this time again finding issues of "significant concern." The Board, again, cited Camtech's NCLEX pass rate (42.22%) and the fact that this was the third year below the 80% threshold. The other noted issues were a mix of new and old concerns including an incomplete annual report, issues with its graduates securing employment and registering to take the NCLEX, errors in its programs that made them difficult to understand, turnover in the nursing director, and a lack of accreditation. Another Corrective Action Plan was requested. The record is not completely clear about the resolution of the 2011 issues, but the Court assumes that Camtech continued on probation as it continued to operate.
On February 13, 2012, the Board sent another letter to Camtech. The letter stated, for the first time, that "[a]fter much analysis, the committee recommended withdrawal of initial approval for the Camtech Practical Nursing program." After seven paragraphs detailing issues with the program, the letter concluded " [t]his letter serves as written notice of deficiencies and you must submit an action plan to the [B]oard." Highlighted among the issues was, again, the school's failing NCLEX pass rate. Camtech was given another opportunity to submit a report to propose its plan to improve these issues and remain open. Camtech submitted a report addressing "the discrepancies/deficiencies mentioned" on April 25, 2012.The school then retained counsel for the first time.
On September 12, 2012, the Board notified the school that it "finds that the corrective plan of action is insufficient to address the deficiencies previously identified and thus…the Board proposes to withdraw Camtech's approved nursing program status." The letter listed several reasons for its decision in detail, and offered Camtech the opportunity to request a hearing "to argue [that] good cause exists for extending the period of time to correct these deficiencies, or that the program's approved status should otherwise not be withdrawn."
Camtech's Board Hearing occurred on November 14, 2012, where the Board reviewed a revised Proposed Corrective Plan of Action, several exhibits, and testimony from the Executive Director and President of Camtech. Following the hearing and a second meeting for Board deliberation, it decided on April 10, 2013 to withdraw approval for Camtech's nursing program. An opinion and order were sent to Camtech, who timely appealed to this Court.
Camtech then filed a Motion to Stay the Board's action in this Court on May 13, 2013. This motion was opposed by the Board and denied by the Court on
June 11, 2013.
THE PARTIES' CONTENTION
Camtech contends that the Board's opinion withdrawing approval violated its due process rights to proper notice and a meaningful hearing. Camtech argues the Board violated its own procedures, putting Camtech on notice that the Board might withdraw approval only shortly before Camtech had to defend its program. "Only after Camtech retained counsel and inquired did the Board finally notify Camtech in writing of its sudden proposal to withdraw approval." Camtech also argues the lack of notice made it impossible for the school to implement its Corrective Action Plan designed to remedy the deficiencies pointed out by the Board. The school argues the Board failed to specify the deficiencies, inform Camtech of how much time it would have to resolve them, or give the school a proper amount of time to do so. Camtech asserts that any "second and third 'chances'" provided it by the Board that could constitute notice were the result of the school being in compliance, not constant struggling.
Camtech also contends that the Board erred as a matter of law because it did not articulate or apply a standard for "good cause" in its Opinion. It argues the Board improperly focused on whether or not it should withdraw approval, as opposed to considering whether there was "good cause" to provide an extension.Camtech argues that the Board "never articulated what constitutes 'good cause'" and it "is not defined by statute or in the nursing regulations." This, Camtech argues, provides "no objective measures or factors for the Board to weigh, leaving a school attempting to show 'good cause' at the mercy of the whim of the Board."Camtech asserts not only was it unable to provide guidance as to what constituted "good cause" but the Board failed to apply any of the evidence presented to that standard. While the Board makes specific findings, Camtech argues that it never applied the "good cause" standard to them, nor did it provide "examples of what type of showing would be required." Camtech contends that this lack of guidance and application is an error as a matter of law and requires the case be remanded. 
2. The Board's Contentions
The Board contends that it satisfied due process concerns with the process of its adjudication and its decision to withdraw Camtech's approval. It maintains that Camtech was given "more than adequate notice" and a "meaningful opportunity to be heard." The Board argues that Camtech was supplied with plenty of notice in the form of correspondence and the fact that Camtech was on probation for several years. The Board contends it provided Camtech with "second and third 'chances'… to cure its program deficiencies and come into compliance with Board Rules." The Board contends these chances account for the periods of time with little correspondence from the Board. The Board maintains the Camtech is unable to provide any evidence to support this claim or the assertion that the Board's decision was "predetermined." The Board also details an extensive list of deficiencies that were outlined in its correspondence with Camtech and its subsequent failure to correct them.
The Board takes the position that Camtech's claims that the Board failed to articulate or apply the "good cause" standard are "unsupported by the record, contrary to established controlling case law, and … must fail."
The Board suggests that Camtech is not presenting a full picture of the Delaware Board of Nursing rules in its "good cause" arguments. It cites Chevron, U.S.A., Inc. v. Natural Resource Defense Council, Inc. to support its proposition that the Board properly "interpreted its own statute and rules in furtherance of its legislative mandate to protect the public as it is the singular public body established to regulate the practice of nursing." It argues that Camtech was not "at the mercy of the whim of the Board" but was legally regulated by an administrative body. It contends "[t]he Board's decision encapsulates its deliberative process of evaluating Camtech's historical inability to comply with the Board's Rules and weighing the safety of the public against Camtech's proposed corrective plan of action, ultimately deciding good cause does not exist to permit Camtech to remain open any longer." The Board refutes Camtech's claim it failed to properly apply the facts to the "good cause" standard, again citing the multiple deficiencies it outlined to Camtech in its correspondence and Order withdrawing approval. The Board also denies Camtech's claim that its withdrawal was primarily and unfairly based on its failure to meet the 80% NCLEX pass rate. The Board maintains:
"[w]here, as here, a nursing program was allowed to operate on probation for over four years and when specifically notified of precise program failures submitted not one, but two corrective plans of action that both 1) failed to demonstrate any reasonable likelihood of bringing the program into compliance; and 2) completely lacked any timeline by which the program itself expected to see measurable results, the decision to withdraw that program's approval status should be affirmed."
The Board concluded that Camtech "was placed on probation for four years, notified repeatedly of its short-comings, and could never quite bring its program into compliance with the Board's rules." It argues Camtech's "trajectory of falling just short of acceptable" mandates the school be closed and the Board's decision be affirmed.
STANDARD OF REVIEW
The Supreme Court and this Court have repeatedly emphasized the limited appellate review of an administrative agency's factual findings. The Court's role is limited to determining whether substantial evidence supported the Board's findings, and whether the decision was legally correct. If substantial evidence supports the administrative decision, it must be affirmed unless there is an abuse of discretion or clear error of law. "Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."The appellate court does not weigh evidence, resolve credibility questions, or make its own factual findings. The Court merely determines if the evidence is legally adequate to support the Board's factual findings. When considering the facts, the court defers to the Board's expertise and competence. As such, the Court must uphold a Board's decision that is supported by substantial evidence even if, in the first instance, the reviewing judge might have decided the case differently. The record must be viewed in the light most favorable to the prevailing party below.
A. There is substantial evidence that the Board provided proper notice and a meaningful opportunity to be heard before its decision to withdraw Camtech's approval status.
The Supreme Court of Delaware, in Vincent v. Eastern Shore Markets, described the due process requirements for administrative hearings as follows:
'In the exercise of quasi-judicial or adjudicatory administrative power, administrative hearings, like judicial proceedings, are governed by fundamental requirements of fairness which are the essence of due process, including fair notice of the scope of the proceedings and adherence of the agency to the stated scope of the proceedings.' Due process, unlike some legal rules, is not a technical notion with a fixed content unrelated to time, place, and circumstances; rather it is a flexible concept which calls for such procedural protections as the situation demands. As it relates to the requisite characteristics of the proceeding, due process entails providing the parties with the opportunity to be heard, by presenting testimony or otherwise, and the right of controverting, by proof, every material fact which bears on the question of right in the matter involved in an orderly proceeding appropriate to the nature of the hearing and adapted to meet its ends. Further, due process requires that the notice inform the party of the time, place, and date of the hearing and the subject matter of the proceedings.
The Board provided more than adequate notice to Camtech about deficiencies in its program. While Camtech seeks in its Reply Brief to exclude all correspondence between the school and the Board prior to February 2012 when withdrawal was first discussed,  alleging that such correspondence was not part of the administrative record, a review of the official record of the proceedings provided by the Board reflects a history of correspondence stretching back until 2009. In that early correspondence there were already discussions about the issues that eventually became the basis of the Board's decision. At the time, the Board categorized these issues as being of "significant concern." Camtech cannot argue that it was blindsided by the Board's decision to withdraw approval. It is true, as Camtech argues, that some issues arose later in the process, but the primary problem of Camtech's NCLEX pass rate was consistent over the multiple years it was placed on probation. Camtech was given more than one opportunity to solve this problem and continued to submit programs that failed to adequately address its issues.
The Board, going back to its 2009 correspondence, articulated concerns in detail for Camtech to address. Both the February 2012 and the September 2012 letters take multiple pages to discuss perceived deficiencies. The majority of these problems were familiar to Camtech through the years of correspondence. There is substantial evidence to show that Camtech had more than enough time and information for it to construct a Corrective Action Plan that addressed the Board's concerns.
The Board also provided Camtech with an adequate opportunity to be heard on the issues leading to the withdrawal of its approval. Camtech provided the Board with multiple Corrective Action Plans to explain and attempt to solve deficiencies with the program. The Board also held a hearing on November 14, 2012, giving Camtech the opportunity to provide additional information on its plan, to argue there was good cause to allow more time to implement it, or otherwise to argue that approval should not be withdrawn. This meeting not only went over the allotted time but the Board extended its deliberations to a second meeting so it would have more adequate time to review Camtech's submissions during the hearing. This substantial evidence supports the decision that an adequate opportunity to be heard was provided.
The Court here finds no errors of law or abuse of discretion that requires the decision to be reversed. The Board provided both adequate notice and a meaningful opportunity to be heard. Camtech's argument that it was denied adequate due process by the Board fails. Faithful adherence to the proper standard of review on this appeal from a decision of an administrative agency mandates affirmance of the Board decision.
B. There is substantial evidence to support the Board's finding that Camtech failed to provide "good cause" to extend its probation.
The Board's decision that Camtech failed to provide "good cause" to extend its probation is supported by substantial evidence and legally sound. While "Delaware courts do not accord agency interpretations of the statutes which they administer so-called Chevron deference, " administrative "conclusions of law are reviewed on a de novo basis, but with a deferential bent, which recognizes the expertise of the [agency] in adjudicating disputes in [that] field…." For factual findings the Court is required by statute to defer to its expertise and competence.
Recognizing the expertise of the Board in adjudicating these types of disputes, the Court finds that their use of the "good cause" standard was appropriate. Even if this Court might have decided the factual issues differently in the first instance, the Board's decision that Camtech failed to provide "good cause" must stand because it is supported by substantial evidence.
The Board lays out in its opinion several reasons why it decided to withdraw approval, chief among them Camtech's substandard NCLEX pass rate for the past five years. It found Camtech's plan "in toto does not demonstrate good cause for extending Camtech's time period to correct this deficiency." The Board found Camtech's proposed requirement that students take the exam within 90 days of graduation fails when it is pointed out that a similar requirement was in effect for three years the school was in operation and had no effect on the pass rate. The Board found Camtech also failed to address other situations (financial obligations and criminal background issues) that the Board highlighted as issues with Camtech's NCLEX pass rate. Camtech, according to the Board, also appeared not to have had a proper way to evaluate the effectiveness of its proposed solutions to the pass rate issue.
The Board also found repeated unnecessary confusion in Camtech's curriculum regarding credit hours. The Board held that issues with the curriculum were not addressed, despite repeated requests. The school's handbook also "contains internal discrepancies, " including ones that were not even adjusted for submission with its Corrective Action Plan.
The Board held Camtech's plea that "whatever the Board needs to be done will be done" to remain open was not enough to establish "good cause." There were no errors of law or an abuse of discretion in this case. The Board's decision is supported by ample substantial evidence. The Court must defer to the Board's expertise and affirms its decision that Camtech did not demonstrate "good cause" to extend its probation.
For the foregoing reasons, Appellant's Appeal of the Decision of the Delaware Board of Nursing is AFFIRMED.
IT IS SO ORDERED.
RICHARD R. COOCH