Ohio Am. Health Care, Inc. v. Ohio Bd. of Nursing

11 N.E.3d 1241

OHIO AMERICAN HEALTH CARE, INC., Practical Nursing Program, Appellant–Appellant/Cross–Appellee,

v.OHIO BOARD OF NURSING, Appellee–Appellee/Cross–Appellant.

Ohio American Health Care, Inc., Registered Nursing Program, Appellant–Appellant/Cross–Appellee,

v.Ohio Board of Nursing, Appellee–Appellee/Cross–Appellant.

Nos. 13AP–1020, 13AP–1021.

Court of Appeals of Ohio, Tenth District, Franklin County.

June 5, 2014.

Ronald B. Noga, Columbus, for appellant/cross-appellee.

Michael DeWine, Attorney General, and Henry G. Appel, for appellee/cross-appellant.

LUPER SCHUSTER, J.

{¶ 1} Appellant-appellant/cross-appellee, Ohio American Health Care, Inc., Practical Nursing Program, and Registered Nursing Program (“the School”), appeals from a judgment of the Franklin County Court of Common Pleas affirming two orders of appellee-appellee/cross-appellant, Ohio Board of Nursing (“the Board”), withdrawing conditional approval and denying full approval of the School's status to operate nurse education programs. The Board cross-appeals from the court's modification of its orders removing the permanency of the imposed sanctions. Because the trial court did not err either in affirming the Board's orders or in removing the permanent condition from the sanctions, we affirm.

I. Facts and Procedural History

{¶ 2} In October 2009, the School applied to the Board for approval of a new nursing education program and included a detailed plan for how it proposed to conduct its program and a proposed organizational structure. The School sought to operate both a registered nurse (“RN”) program and a licensed practical nurse (“PN”) program. The Board issued conditional approval of both the RN and PN programs in January 2010. On May 17, 2010 the School admitted its first cohort of students.

{¶ 3} On March 22, 2011, the Board conducted an unannounced survey visit to the School in response to complaints the Board had received from students, former employees, and clinical agencies regarding both the RN and PN programs. Following the initial unannounced survey visit, the Board conducted further survey visits announced in advance: the RN survey visit occurred May 25, 2011 while the PN survey visits occurred June 22, September 8, and October 12, 2011. These visits revealed administrative compliance violations and discrepancies in the tuition and fee amounts in the students' enrollment agreements as compared to the School's proposal for its nursing program presented to the Board. The two education regulatory surveyors who conducted the survey visits generated reports detailing the findings of their visits and subsequently sent the survey visit reports to the School for response.

{¶ 4} After reviewing the survey visit reports and the School's responses, the Board issued a July 28, 2011 notice of opportunity for hearing to the School related to the RN program, charging it with numerous violations of the rules governing nurse education programs. As the investigation into the School proceeded, the Board issued a second and third notice of opportunity for hearing alleging additional violations. Similarly, on November 18, 2011, the Board issued a notice of opportunity for hearing to the School related to alleged violations found in the PN program followed by a second notice of opportunity for hearing related to additional violations in the PN program. The School timely requested hearings for all notices received by both programs. The Board assigned a single hearing examiner to both cases.

{¶ 5} The School moved for consolidation of the three RN program notices into a single hearing, and the hearing examiner approved the consolidation. The hearing examiner also granted two continuances to the School. Several weeks before the scheduled start of the consolidated hearing, the School moved for another continuance on the grounds that the School's program administrator had suddenly resigned and that the School had retained new counsel. The hearing examiner denied the School's third request for a continuance, and the hearing occurred from April 30 to May 4, 2012. Both the School and the Board presented witness testimony and documentary evidence and had the opportunity to cross-examine each other's witnesses.

{¶ 6} Similarly, the School moved for consolidation of both PN notices into a single hearing and the hearing examiner conducted the consolidated hearing on May 29 and 30, 2012. Again, both the School and the Board presented witness testimony and documentary evidence and had the opportunity to cross-examine each other's witnesses. The parties also agreed to incorporate the record of the RN hearing into the record of the PN hearing as many of the issues in the cases were interrelated.

{¶ 7} Following the hearings, the hearing examiner issued lengthy decisions in the RN case on June 13, 2012 and the PN case on June 25, 2012. In each decision, the hearing examiner determined there was ample reliable and probative evidence to support the violations charged against the School, and the hearing examiner recommended permanent withdrawal of the School's conditional approval to operate a nurse education program.

{¶ 8} The School timely objected to the hearing examiner's two decisions, and the Board conducted a consolidated hearing as to both the RN and PN programs on July 27, 2012. That same day, the Board issued adjudication orders in both cases adopting the hearing examiner's report and recommendation from each case in full. The Board imposed a penalty of permanent withdrawal of the School's conditional approval status and permanent denial of full approval status.

{¶ 9} Pursuant to R.C. Chapter 119, the School timely appealed to the common pleas court. In reviewing the entire record, the common pleas court determined there was reliable, probative, and substantial evidence to support each of the charged violations against the School. However, the common pleas court determined the Board lacked statutory authority to permanently withdraw conditional approval and permanently deny full approval to the school. To that extent, the common pleas court modified the Board's adjudication orders to remove the permanent nature of the penalties imposed. The School and the Board both timely appeal.

II. Assignments of Error

{¶ 10} The School assigns the following three assignments of error for our review:

[1.] The trial court erred as a matter of law in failing to reverse the Adjudication Order pertaining to the RN Program on the ground that the Order is based entirely on patently irrelevant, inadmissible and prejudicial evidence.

[2.] The trial court erred as a matter of law in failing to reverse the Adjudication Order pertaining to the PN Program on the ground that the Order is based entirely on patently, irrelevant, inadmissible and prejudicial evidence.

[3.] The statutory scheme governing the regulation of prelicensure nursing schools is violative of Due Process in that the basis for withdrawal of approval is unconstitutionally vague [and] results in an arbitrary and unreasonable Order withdrawing [the School's] approval to operate a prelicensure nursing school.

{¶ 11} The Board assigns the following cross-assignment of error for our review:

1. The [trial court] improperly concluded that the Ohio Board of Nursing lacks power to permanently withdraw approval to nursing programs under R.C. 4723.28(K).

III. Standard of Review

{¶ 12} In reviewing an order of an administrative agency under R.C. 119.12, a common pleas court must consider the entire record to determine whether reliable, probative, and substantial evidence supports the agency's order and whether the order is in accordance with law. Univ. of Cincinnati v. Conrad, 63 Ohio St.2d 108, 110–11, 407 N.E.2d 1265 (1980). The common pleas court's “review of the administrative record is neither a trial de novo nor an appeal on questions of law only, but a hybrid review in which the court ‘must appraise all the evidence as to the credibility of the witnesses, the probative character of the evidence, and the weight thereof.’ ” Lies v. Veterinary Med. Bd., 2 Ohio App.3d 204, 207, 441 N.E.2d 584 (1st Dist.1981), quoting Andrews v. Bd. of Liquor Control, 164 Ohio St. 275, 280, 131 N.E.2d 390 (1955). The common pleas court must give due deference to the administrative agency's resolution of evidentiary conflicts, but “the findings of the agency are by no means conclusive.” Conrad at 111, 407 N.E.2d 1265. On questions of law, the common pleas court conducts a de novo review, exercising its independent judgment in determining whether the administrative order is “in accordance with law.” Ohio Historical Soc. v. State Emp. Relations Bd., 66 Ohio St.3d 466, 471, 613 N.E.2d 591 (1993).

{¶ 13} An appellate court's review of an administrative decision is more limited. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621, 614 N.E.2d 748 (1993). The appellate court is to determine only whether the common pleas court abused its discretion. Id.; Blakemore v. Blakemore, 5 Ohio St.3d 217, 218, 450 N.E.2d 1140 (1983). On review of purely legal questions, however, an appellate court has de novo review. Big Bob's, Inc. v. Ohio Liquor Control Comm., 151 Ohio App.3d 498, 2003-Ohio-418, 784 N.E.2d 753, ¶ 15 (10th Dist.).

IV. Appellant's First Assignment of Error—Evidence Supporting RN Program Violations

{¶ 14} In its first assignment of error, the School argues the common pleas court erred in affirming the violations in the Board's adjudication order for the RN program.

{¶ 15} In its adjudication order, the Board adopted the hearing examiner's findings of fact which found 16 separate proven violations of the Board's rules. These violations were wide ranging. The hearing examiner found, with respect to the RN program, that the School: (1) did not implement an orientation policy for faculty members in violation of Ohio Adm.Code 4723–5–09(B)(4); (2) did not implement student policies as they were written in the School's proposal for...