United States District Court, D. Arizona
ORDER
NEIL
V. WAKE SENIOR UNITED STATES DISTRICT JUDGE
Before
the Court is an action to review the decision of the Council
on Chiropractic Education Incorporated
(“Council”) to place the Doctor of Chiropractic
Degree Program (“Program”) of the National
University of Health Sciences (“University”) on
probation for significant noncompliance with accreditation
standards. (Docs. 26, 29, 31, 35, 36.)
I.
THIS LAWSUIT
On May
23, 2018, the University filed an ex parte motion for a
temporary restraining order and a verified complaint for
injunctive and declaratory relief seeking, among other
things, an order requiring the Council to rescind its
decision to place the University's Program on probation.
The same day, the Court denied the ex parte motion for a
temporary restraining order. On June 5, 2018, the University
served the Council with a summons and the complaint; the
Council filed its answer on June 26, 2018.
On July
31, 2018, the parties filed a joint case management report,
which stated the parties anticipated this lawsuit would be
decided on dispositive motion and “the Parties believe
all information relevant to this lawsuit was previously
exchanged and/or made available during the review process
that yielded the Council's findings and/or conclusions
and [the University's] appeal of the same.” (Doc.
19 at 4-5.) On August 7, 2018, a case management conference
was held, and deadlines were set for merits briefing. The
parties agreed that the Court would review the Council's
decision to place the University's Program on probation
based on the record that was before the Council's Appeals
Panel.
The
merits briefing was completed on October 15, 2018. On October
16, 2018, the Council moved for leave to file a sur-reply or,
alternatively, to strike the University's reply brief
because it included an exhibit that was not part of the
underlying record and it referred to statutes not previously
identified. On November 15, 2018, the Court denied the
Council's motion upon finding that the exhibit did not
support the University's assertions and the proposed
sur-reply was mostly repetition.
II.
RELEVANT COUNCIL STANDARDS AND POLICY
The
Council is a national accrediting agency recognized by the
Secretary of the United States Department of Education. The
University offers a doctor of chiropractic degree program at
its Illinois and Florida campuses, which has been accredited
by the Council since 1971.
A.
CCE Accreditation Standard § 2.A
CCE
Standard § 2.A requires a doctor of chiropractic degree
program to have a mission statement approved by the governing
board and available to all stakeholders. The program must
have measurable goals and objectives congruent with the
mission. Further,
These goals and objectives both shape the [doctor of
chiropractic degree program] and guide creation of a plan
that establishes programmatic priorities, and operational
priorities, and program resource allocations. The plan is
structured, implemented, and reviewed in a manner that
enables the [program] to assess the effectiveness of its
goals and objectives, and permits the [program] to implement
those changes necessary to maintain and improve program
quality.
(Doc. 31-8 at 19.)
The
program must be guided by both a plan and an ongoing planning
process. The planning process must include establishing
program priorities, allocating resources to support those
priorities, and making appropriate changes to the plan based
on analysis of evidence and assessment outcomes. Ongoing
self-assessment must include data collection and analysis to
determine the extent to which the program is achieving the
goals and objectives associated with its mission. The program
must demonstrate it uses data for performing assessments and
for determining resource allocations and programmatic change.
Institutional and program planning and resource allocations
must consider measurements of curricular effectiveness.
B.
CCE Accreditation Standard § 2.H
CCE
Standard § 2.H requires a doctor of chiropractic degree
program to offer an educational program “commensurate
with doctoral level professional training in a health science
discipline, a portion of which incorporates this training
into patient care settings.” (Doc. 31-8 at 28.) Among
other things, CCE Standard § 2.H requires a program to
show:
The didactic and clinical education components of the
curriculum are structured and integrated in a manner that
enables the graduate to demonstrate attainment of all
required competencies necessary to function as a primary care
chiropractic physician. The curriculum is consistent with the
mission, goals, and objectives of the [program].
(Id.)
Further,
the Council's accreditation standards require a doctor of
chiropractic degree program to demonstrate that its students
have achieved six meta-competencies, such as clinical
reasoning for assessment and diagnosis, and development,
implementation, and documentation of a patient care plan.
C.
CCE Policy 56
As of
January 2015, the Council's Policy 56 requires a doctor
of chiropractic degree program to disclose up-to-date results
of student performance on national board examinations and
completion rates on the program's website by August 1
each year using prescribed formats. Regarding NBCE licensing
exams, a program must post the overall weighted average of
the four most recent years' success rates for all four
parts of the exam. In addition, for each of the four most
recent years, a program must post the number of graduates who
attempted any or all parts of the exam within six months
after graduation and the number and percentage of those
graduates who successfully passed all parts of the exam
within six months after graduation. Programs are permitted to
substitute Part C of the Canadian Chiropractic Examining
Board exam for Part IV of the NBCE exam.
D.
Accreditation and Noncompliance Actions
The
Council grants accreditation to chiropractic educational
programs “deemed by the Council to comply with the
eligibility requirements and requirements for
accreditation.” (Doc. 31-8 at 8, CCE Standard §
1.1.) Under CCE Standard § 1.III.A, when considering
accreditation status of a program, the Council may take any
of the following actions at any time based on evidence: award
or reaffirm accreditation, defer the decision, continue
accreditation, impose warning, impose probation, deny or
revoke accreditation, and withdraw accreditation.
If the
Council's review of a program or institution regarding
any accreditation standard and/or policy indicates that the
program or institution is not in compliance, CCE Standard
§ 1.III.C.1 requires the Council to immediately initiate
adverse action against the program or institution or require
the program or institution to take appropriate action to
bring itself into compliance with the accreditation standard
and/or policy within a time period that must not exceed two
years. CCE Standard § 1.III.C.4 provides: “Adverse
accrediting action or adverse action means the denial,
withdrawal, revocation, or termination of accreditation, or
any comparable accrediting action the Council may take
against the program or institution.” Thus, probation is
a sanction, not an “adverse action.” CCE Standard
§ 1.V provides that when the Council determines that a
program or institution is not in compliance with an
accreditation standard and/or policy, the Council may apply
any of the following actions: warning, probation, show cause
order, and denial or revocation.
CCE
Standard §1.V.E permits the Council to apply any of
those actions “in any order, at any time, if the
Council determines that [program]/institutional conditions
warrant them.”
CCE
Standard § 1.V.B describes probation:
Probation is an action reflecting the conclusion of the
Council that a program is in significant noncompliance with
accreditation standards or policy requirements. Such a
determination may be based on the Council's conclusion
that:
1. The noncompliance compromises program integrity; for
example, the number of areas of noncompliance, institutional
finances, or other circumstances cause reasonable doubt on
whether compliance can be achieved in the permissible
timeframe; or
2. The noncompliance reflects recurrent noncompliance with
one or more particular standard(s) and/or polic(ies); or 3.
The noncompliance reflects an area for which notice to the
public is required in order to serve the best interests of
the students and prospective students.
. . . Probation is a sanction subject to appeal (see CCE
Policy 8) and shall not exceed twenty-four (24) months. The
Council will make public notice of a final decision to impose
Probation by notifying the U.S. Department of Education,
regional (institutional) accrediting agency, jurisdictional
licensing boards, and the public that a program has been
placed on Probation in accordance with CCE policy and
procedures.
(Doc. 31-8 at 16.) Under CCE Standard § 1.V.D.,
reaffirmation of accreditation may be denied if the Council
concludes that the program or institution “has
significantly failed to comply and is not expected to achieve
compliance within a reasonable time period.”
(Id.) Denial of an application for reaffirmation of
accreditation constitutes revocation of accreditation.
CCE
Policy 8 establishes the procedures for a doctor of
chiropractic degree program to appeal adverse decisions,
including public sanctions such as probation. It states:
The Program may appeal the Council's adverse action on
the grounds that such a decision is arbitrary, capricious, or
otherwise in substantial disregard of the CCE Standards
and/or procedures of the Council, or that the decision is not
supported by substantial evidence in the record upon which
[the] ...