National University of Health Sciences v. Council on Chiropractic Education Inc.

          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] ...