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In re Revocation or the Suspension of the Provisional Accreditation of and/or the Imposition of Probation on Southern New Jersey Technical School Approved to Establish a School of Practical Nursing in the State of New Jersey

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 16, 2008

IN RE THE REVOCATION OR THE SUSPENSION OF THE PROVISIONAL ACCREDITATION OF AND/OR THE IMPOSITION OF PROBATION ON SOUTHERN NEW JERSEY TECHNICAL SCHOOL APPROVED TO ESTABLISH A SCHOOL OF PRACTICAL NURSING IN THE STATE OF NEW JERSEY.

On appeal from a Final Decision of the Department of Law & Public Safety, Division of Consumer Affairs, State Board of Nursing.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 24, 2008

Before Judges Lisa, Lihotz and Simonelli.

Appellant Southern New Jersey Technical School (SNJTS) appeals from the December 1, 2006 Final Order of Probation and Denial of Accreditation (Final Order) of the New Jersey State Board of Nursing (Board) denying its application for accreditation of its nursing school, and placing the school on probation pursuant to N.J.A.C. 13:37-1.3(e). On appeal, SNJTS contends the Board's decision is not supported by the record, and is arbitrary and capricious. We affirm.

I.

SNJTS filed an application pursuant to N.J.S.A. 45:11-24(d)(14) and N.J.A.C. 13:37-1.1 and 1.3 to establish a licensed practical nurse program. The Board referred the application to its Education Committee (Committee) for review and recommendation. Pursuant to the Committee's recommendation, on October 16, 2001, the Board granted SNJTS provisional accreditation. N.J.A.C. 13:37-1.2. Accreditation would be granted to SNJTS upon compliance with N.J.A.C. 13:37-1.3,*fn1 which provides as follows:

(b) A nursing program that has been granted provisional accreditation shall not be granted accreditation until:

1. The first class has graduated;

2. Seventy-five percent of students from the first or second graduating class, who have taken the licensing examination, pass the examination the first time it is taken by the student; and

3. A self-study report is submitted to the Board that shows the nursing program is in compliance with the requirements of N.J.A.C. 13:37-1.4 through 1.11.

There is no dispute that SNJTS complied with N.J.A.C. 13:37-1.3(b)1 and 2. The controversy here concerns N.J.A.C. 13:37-1.3(b)3. The relevant facts are summarized from the record. In March 2003, the Board received numerous anonymous complaints that SNJTS violated regulations governing the operation of a new nursing program, including leaving students unsupervised at clinical locations, intimidating students and threatening to expel those who complained about their educational experiences, and permitting unqualified instructors to teach.

As a result of the complaints, on June 9, 2003, the Board authorized an unannounced visit to SNJTS. During the visit, students complained to the Board's representatives about unplanned class schedule changes, faculty failing to attend or coming late to lectures or clinical experiences, course examinations resulting in a large number of failures, and no or an ineffective student grievance process. Students also expressed concern that the skills laboratory was inadequately stocked with supplies to practice skills or engage in extra- curricular learning activities, and that they were "docked an hour of time for showing up to class even a minute late . . . when faculty don't show up for hours at times."

The Board's representatives issued a report of the deficiencies found during the visit, and discussed the report with SNJTS. On July 8, 2003, the Committee discussed the report with SNJTS. The Board reviewed the report on July 15, 2003, and authorized a second visit to assess the school's progress in correcting the deficiencies.

On November 4-5, 2003, the Board's representatives visited SNJTS and found the following deficiencies: (1) no written criteria for faculty retention or promotion; (2) program objective four*fn2 needed to be stated in measurable, behavioral terms; (3) the Systematic Program Plan of Evaluation did not reflect monitoring of the clinical, theory, policy and procedural regulatory requirements; (4) the nursing organizational framework was not clearly identified throughout the curriculum; (5) theory and concomitant experiences for each course were not taught concurrently; (6) no faculty development plan was found in the faculty files; (7) in the grievance procedure, the disciplinary action for students violating the chain of command was not identified; and (8) committee meeting minutes were not maintained. The Board's representatives issued a report of the deficiencies found during this visit. As a result of the report, the Board continued provisional accreditation and directed SNJTS to comply with the following:

1. Develop written criteria for faculty promotion and retention. N.J.A.C. 13:37-1.4(a)4.

2. Restate Practical Nursing Program Objective number 4 in measurable terms. N.J.A.C. 13:37-1.5(c).

3. Involve the faculty in refining and developing the Systematic Plan of Program Evaluation. N.J.A.C. 13:37-1.5(d).

4. Faculty need to incorporate the Organizing Framework into theory and clinical. N.J.A.C. 13:37-1.5(e).

5. Faculty develop individualized development plan in collaboration with administrator. N.J.A.C. 13:37-1.7(d).

6. Faculty work with administrator to continue to review and refine course outlines assuring continuity between theory and clinical objectives. N.J.A.C. 13:37-1.8(g)4.

7. Clarify the Grievance Procedure statement referring to disciplinary action that will be taken when the "chain of command" is not followed. N.J.A.C. 13:37-1.11(a)5.

8. Maintain a record with complete nursing department program committee minutes for a minimum of three years. N.J.A.C. 13:37-1.15.

A United States Congressman wrote to the Board that SNJTS officials intimidated and threatened expulsion of students who complained about the school. The Board also received additional complaints that the school failed to adhere to the grievance policy, lacked sufficient resources, failed to obtain Board approval prior to making major changes in the nursing program, canceled a part-time program, and failed to obtain sufficient licensing documentation for instructors. As a result, the Board's representatives visited SNJTS on May 5, 2004. They found the following deficiencies:

[SNJTS] has a program philosophy that is published in the Nursing Student Handbook and addresses the required elements of nursing, humans, health, environment, and the teaching-learning process. The organizing framework appears to consist of holism, nursing process, communication, and professional growth. These concepts are found in the program objectives and are reflective of community standards. There was no evidence that these concepts were integrated into course syllabi, nor were faculty able to explicate them in discussion. The curriculum is skills and content driven. For example in a discussion about elimination with faculty they indicated that clinical experiences revolved around finding Foley catheter experiences and no mention was made of underlying concepts related to elimination such as assessment of hydration.

Course competencies are written as objectives and all that were reviewed by the team were written at the lower end of the taxonomy. Content outlines reflect a medical model. Students are required to complete assessment guides which incorporate care planning. They reflect a holistic approach to patient care although neither faculty nor students were able to define holism in relation to clinical laboratory.

The representatives also found that faculty were minimally involved in curriculum development and revisions; that there had been a substantive turnover of faculty since the beginning of the program, which had a detrimental effect on students and the program; and that faculty identified a lack of expertise in certain role responsibilities including assessment and test writing. The Board continued provisional accreditation, and directed SNJTS to comply with the following:

1. Develop written criteria for faculty promotion and retention. N.J.A.C. 13:37-1.4(a)4.

2. Involve the faculty in refining and developing the Systematic Plan of Program Evaluation. N.J.A.C. 13:37-1.5(d).

3. Faculty need to incorporate the Organizing Framework into theory and clinical. N.J.A.C. 13:37-1.5(e).

4. Faculty develop individualized faculty development plan in collaboration with the administrator and keep a copy of the same on file. N.J.A.C. 13:37-1.7(d).

5. Faculty to work with administrator to continue to review and refine course outlines assuring continuity between theory and clinical objectives. N.J.A.C. 13:37-1.8(g)4.

6. Maintain a record with complete nursing department program committee minutes for a minimum of three years. N.J.A.C. 13:37-1.15.

We reiterate that the Board admits that SNJTS complied with N.J.A.C. 13:37-1.3(b)1 and 2, in that the first class graduated, and seventy-five percent of that class passed the licensing examination.*fn3 However, regarding N.J.A.C. 13:37-1.3(b)3, the Board contends that although SNJTS submitted an initial Self-Study Report on or about May 1, 2005, the report revealed non-compliance with several regulations. Specifically, SNJTS failed to:

1. Properly organize and administer a nursing program by developing "written criteria for faculty promotion and retention" and develop consistent written policies on grading and graduation requirements, as required by N.J.A.C. 13:37-1.4;

2. Develop a statement of philosophy and a written description or model of [SNJTS's] organizing framework; outline faculty beliefs regarding the terms "Health" and "Environment;" or develop, with faculty, and maintain a written Systematic Plan for Program Evaluation, as required by N.J.A.C. 13:37-1.5;

3. Hire faculty with requisite qualifications and develop individual plans to maintain competency, as required by N.J.A.C. 13:37-1.7;

4. Organize and establish the nursing curriculum and content on the stated philosophy and organizing framework as mandated by N.J.A.C. 13:37-1.8;

5. Enter into written contractual agreements with clinical agencies in order to provide clinical experiences for the students as required by N.J.A.C. 13:37-1.10; and

6. Obtain prior Board approval for changes to the nursing program as detailed in N.J.A.C. 13:37-1.16.

On June 16-17, 2005, the Board's representatives visited SNJTS. They found the following deficiency:

The philosophy, organizing framework and objectives were not developed completely in accordance with N.J.A.C. 13:37-1.5(e) which indicates that "the faculty shall be able to show that the philosophy, organizing framework, program objectives and program outcomes have been integrated into the total program of learning."

There were also numerous violations of N.J.A.C. 13:37-1.4 through 1.11.

After reviewing SNJTS' initial Self-Study Report, on July 29, 2005, the Board provided a detailed notice of the school's failure to comply with N.J.A.C. 13:37-1.3(b)3; N.J.A.C. 1.4(a)1, 4, 5 and 6; N.J.A.C. 13:37-1.5(a), (b), (d), (e), (f) and (i); N.J.A.C. 13:37-1.7(b)1 and 4, (c) and (d); N.J.A.C. 13:37- 1.8(c), (d) and (g)4; N.J.A.C. 13:37-1.10(b); and N.J.A.C. 13:37-1.11(a)5, 8ii and vii, and 9. The Board also warned the school that accreditation would not be granted unless it complied with all of the regulations, and informed the school it must demonstrate it had:

1. developed a statement of philosophy and written organizing framework as to nursing that was integrated into the total program of learning [N.J.A.C. 13:37-1.5];

2. developed with its faculty a Systematic Plan for Program Evaluation in order to ascertain the effectiveness of the curriculum [N.J.A.C. 13:37-1.5 and 1.7]; and

3. instituted a process of license verification for faculty and developed individual plans for faculty competency [N.J.A.C. 13:37-1.7].

The Board also provided instruction on how to correct these deficiencies, and directed SNJTS to submit a revised Self-Study Report, demonstrating revisions to the program in the areas raised in the notice, and compliance with the regulations.

On September 8, 2005, SNJTS submitted a revised Self-Study Report. The Board reviewed the report and found as follows:

While the Committee has concluded that the program's first class has graduated two years ago and it has met the NCLEX examination scores, as required by N.J.A.C. 13:37-1.3(b), the school has failed to provide evidence of compliance with the requirements of N.J.A.C. 13:37-1.4 through 1.11. Specifically, the school has failed to demonstrate compliance with:

N.J.A.C. 13:37-1.5(d). . .(i.). . . N.J.A.C. 13:37-1.8(e) the on-site visit, the self-study report and the response to the Board's directive letter failed to disclose a systematic plan for program evaluation.

N.J.A.C. 13:37-1.5(e) the on-site visit, the self-study report and the response to the Board's directive letter failed to disclose that SNJTS has integrated the philosophy, organizing framework into the total curriculum.

N.J.A.C. 13:37-1.7(b) the on-site visit, the self-study report and the response to the Board's directive discloses that SNJTS has employed two (2) faculty who were not licensed as registered professional nurses in New Jersey and in one case did not hold a BSN Degree.

N.J.A.C. 13:37-1.7(d) the on-site visit, the self-study report and the response to the Board's directive letter failed to disclose an individualized plan to maintain competency for each faculty member.

N.J.A.C. 13:37-1.10(b) the on-site visit, the self-study report and the response to the Board's directive letter disclosed that SNJTS has incomplete clinical agreements and the survey team visited a clinical site that did not have a clinical agreement.

N.J.A.C. 13:37-1.11(a) the on-site visit, the self-study report and the response to the Board's directive letter failed to disclose a school catalog that contains the address and telephone number of the Board.

N.J.A.C. 45:11-37(e) the SNJTS Web site and flyers demonstrate that SNJTS is advertising a RN program.

On April 5, 2006, the Board entered a Provisional Order of Probation and Denial of Accreditation (PODPA),*fn4 placing SNJTS on probation until the last enrolled student either graduated or left the program, and denying accreditation. As a result, SNJTS ceased admitting students and was placed on probation until the last student graduated or left the program, after which accreditation would terminate.

On or about May 8, 2006, SNJTS submitted a Request for Modification or Dismissal, contending that the POPDA contained many factual errors. SNJTS argued that the Board's conclusion that it failed to develop a statement of philosophy and written organizing framework as to nursing that was integrated into the total program of learning was contrary to statements contained in the initial Self-Study Report, such as its "mission statement" and a paragraph defining the school's philosophy. SNJTS also argued that it satisfied the requirement of a faculty Systematic Plan for Program Evaluation, and that, although its alleged failure to institute a process of license verification for faculty and develop individual plans for faculty competency was a new claim not previously raised by the Board, it was addressed and corrected.*fn5

The Board reviewed and rejected SNJTS' arguments and, on December 1, 2006, issued the Final Order, concluding that although SNJTS corrected numerous deficiencies, there were still "significant deficiencies," the most critical of which was the failure to integrate the school's philosophy into the total nursing program, as mandated by N.J.A.C. 13:37-1.5(e). The Board rejected SNJTS's contention that it had developed a statement of philosophy that was integrated into its nursing program, stating that:

[SNJTS'] stated philosophy is not "integrated" into the total nursing program as required by N.J.A.C. 13:37-1.5(e). This deficiency was first communicated to SNJTS following the Board's second on-site visit to the school on November 4-5, 2003. The Board concludes that, contrary to SNJTS' assertion, the mere recitation of an institution's philosophy or mission statement does not constitute "integration" of the philosophy into a nursing program pursuant to the acceptable standards of nursing education. Rather, the "integration" of a school philosophy into a program is demonstrated through an identifiable, logical and sequential curriculum plan where course content increases in difficulty and complexity leading to the accomplishment of the program's stated objectives and/or terminal outcomes.

The Board also found that the "Rationale" section of the initial Self-Study Report, and the "Philosophies and Framework" section of the revised Self-Study Report, were insufficient to show "integration" of SNJTS' philosophy into its nursing program. According to the Board, such statements standing alone, absent "successful permeation or integration of the philosophy and framework throughout the objectives, curriculum and the clinical experiences[,]" did not constitute "integration."

The Board further found that the initial and revised Self-Study Reports failed to comply with N.J.A.C. 13:37-1.5(d) and N.J.A.C. 13:37-1.7 because there was no summary of the program's individual components, no enumeration of goals or levels of achievement, few methods for assessment and no plan of action for program improvement; that SNJTS failed to institute a process of licensure verification for its faculty and to develop individual plans for faculty competency; and that the school failed to create, with faculty, a plan or method by which instructors maintain competency in the theoretical and practice areas related to their teaching.

Finally, the Board expressed concern over SNJTS' retention rates, noting that a mathematical computation of the school's 2005 budget revealed that of approximately three hundred and twenty students, only forty-six took the national examination in 2005, and only thirty-nine passed. The Board also expressed concern that from 2003 to 2006, the number of students sitting for the national exam increased, but the number of successful candidates decreased.

II.

Our role in reviewing an agency decision is limited. In re Taylor, 158 N.J. 644, 656 (1999) (quoting Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988)); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We must give deference to such decision, unless it is arbitrary, capricious, unsupported by substantial credible evidence in the record as a whole, or is in violation of express or implicit legislative policy. In re Distribution of Liquid Assets Upon Dissolution of the Union County Reg'l High Sch. Dist. No. 1, 168 N.J. 1, 10-11 (2001); Taylor, supra, 158 N.J. at 656-57; R & R Mktg., L.L.C. v. Brown-Forman Corp., 158 N.J. 170, 175 (1999) (citing Pub. Serv. Elec. & Gas Co. v. St. Dept. of Envtl. Prot., 101 N.J. 95, 103 (1985)); Brady, supra, 152 N.J. at 210-11; Karins v. City of Atl. City, 152 N.J. 532, 540 (1998); In re Petition of S.D., 399 N.J. Super. 107, 121 (App. Div. 2008) (citing In re Musick, 143 N.J. 206, 216 (1996)); In re the Joint Petition of Boardwalk Regency Corp. and DiBartolomeo, 352 N.J. Super. 285, 300-01 (App. Div.), certif. denied, 174 N.J. 366 (2002). Accordingly, we must determine whether the agency's "'findings could reasonably have been reached on sufficient credible evidence present in the record' considering 'the proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Taylor, supra, 158 N.J. at 656 (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)).

"[I]t is not our function 'to substitute [our] independent judgment for that of [an] administrative' agency, such as the [the Board], 'where there may exist a difference of opinion concerning the evidential persuasiveness of the relevant [proofs].'" In re Certificate of Need Granted to the Harborage, 300 N.J. Super. 363, 379 (App. Div. 1997) (quoting First Sav. & Loan Ass'n v. Howell, 87 N.J. Super. 318, 321-22 (App. Div. 1965), certif. denied, 49 N.J. 368 (1967)). Further, we should not "'weigh the evidence, determine the credibility of witnesses, draw inferences and conclusions from the evidence, or resolve conflicts therein.'" Ibid. (quoting DeVitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 489-90 (App. Div.), certif. denied, 102 N.J. 337 (1985)).

It is only when the agency's findings are clearly mistaken and "'so plainly unwarranted that the interests of justice demand intervention and correction[]'" that we should "'make [our] own findings and conclusions.'" Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 587-88 (2001) (quoting Clowes, supra, 109 N.J. at 588). However, in complex areas "where the Legislature has delegated a great amount of discretion to the administrative experts, deference must be accorded to the administrative agency's expertise and experience in its domain." Riverside Gen. Hosp. v. N.J. Hosp. Rate Setting Comm'n, 98 N.J. 458, 469 (1985) (citing In re William B. Kesslern Mem'l Hosp., 78 N.J. 564, 578-79 (1979)). Thus, we should "place[] great weight on the interpretation of legislation by the administrative agency to whom its enforcement is entrusted[,]" Peper v. Princeton Univ. Bd. of Trs., 77 N.J. 55, 69-70 (1978), recognizing that when an agency is charged with enforcing a statute, its interpretation of that statute should prevail "so long as it is not plainly unreasonable." Metromedia, Inc. v. Dir., Div. of Taxation, 97 N.J. 313, 327 (1984) (citing N.J. Guild of Hearing Aid Dispensers v. Long, 75 N.J. 544, 561 (1978)); see also Bd. of Educ. of Twp. of Neptune v. Neptune Twp. Educ. Ass'n., 144 N.J. 16, 31 (1996).

"A strong presumption of reasonableness" should be accorded to an agency's "exercise of statutorily delegated duties." Gloucester County Welfare Bd. v. St. of N.J. Civil Serv. Comm'n, 93 N.J. 384, 390 (1983) (citing City of Newark v. Natural Res. Council in Dep't of Envtl. Prot., 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S.Ct. 400, 66 L.Ed. 2d 245 (1980)). It follows that we must grant deference to agency expertise where, as here, "'such expertise is a pertinent factor[]'" in the agency's decision. Campbell, supra, 169 N.J. at 588 (quoting Close, supra, 44 N.J. at 599).

Applying these standards, we reject SNJTS' contention that the Board's findings are not supported by the record, and are arbitrary, capricious and unreasonable. Contrary to SNJTS' argument, the Board's findings were not based upon unverified, anonymous complaints never placed in the record or made available for analysis or response. Rather, the complaints merely triggered an approximately three-year investigation into the school's non-compliance with the nursing regulations, including its failure to integrate a philosophy into the nursing program. Regardless of the veracity of the complaints, the record is clear that the Board's findings were grounded upon the personal observations of its representatives at the three site visits, upon SNJTS' defective initial and revised Self-Study Report, and upon SNJTS' failure for nearly three years to heed the Board's warnings and directives, and to correct all of the deficiencies.

Although SNJTS made numerous improvements and addressed some of the deficiencies, significant deficiencies still existed at the time of the last site visit and in the revised Self-Study Report, the most critical of which was its failure to sufficiently "integrate" a philosophy throughout its nursing program. The Board found that the mere recitation of a stated philosophy at the end of each course syllabi and in the student handbook, which differed from the philosophy set forth in the Self-Study Report, or the mere "expression" of a philosophy, does not satisfy accreditation requirements. The Board also found that SNJTS' characterization of the Board's concerns about and requirements for the integration of a philosophy as "amorphous" and of the "philosophical realm" demonstrates its crucial lack of understanding of the integration requirement.

N.J.A.C. 13:37-1.5 provides as follows:

(a) The faculty shall develop, and revise as necessary, a statement of philosophy, a written description or model of the organizing framework, program objectives and program outcomes which are consistent with the definition of nursing as set forth in N.J.S.A. 45:11-23(b).

(b) The philosophy of the nursing program shall include the faculty's beliefs about the following:

1. Nursing;

2. Humans;

3. Health;

4. Environment; and

5. The teaching-learning process.

(c) The nursing program objectives shall identify those competencies required for the successful entry of the nursing graduate into practice.

(d) The faculty shall develop and maintain the written Systematic Plan for Program Evaluation.

(e) The faculty shall be able to show that the philosophy, organizing framework, program objectives and program outcomes have been integrated into the total program of learning.

Although the determination of whether a nursing school's statement of philosophy has been sufficiently integrated into all aspects of its program seems difficult and subjective, the Legislature has vested the Board with the authority to make such determination. N.J.A.C. 13:37-1.5(e); see also N.J.S.A. 45:11-24d. Deferring to the Board's expertise, as we must, we discern no reason to disturb its well-founded conclusion that SNJTS failed to meet the requirements for accreditation.

SNJTS' implication that the Board's findings were based upon its alleged hostility toward African American women is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). There is no competent evidence that Board harbored animus toward minorities.

Based upon our careful review of the record, we conclude that the Board's action is supported by substantial credible evidence in the record, and was not arbitrary, capricious, or unreasonable.

Affirmed.


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