Opportunity to Comment on Change to Policy #10

The Board of Commissioners approved a revision to POLICY #10 APPEAL PROCESS AND SUBMISSION AND REVIEW OF NEW FINANCIAL INFORMATION SUBSEQUENT TO ADVERSE ACTION at their recent meeting (November 2011). Pursuant to Commission Policy #11, proposed policy changes are submitted to accredited programs for review and comment prior to implementation.
 
Please provide any comments by email to Patricia Barlow at pbarlow@nlnac.org no later than December 30, 2011. The Commissioners will consider these comments prior to implementation of the policy.
 
Thank you for reviewing this policy change. We appreciate your interest and support of the accreditation process.

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POLICY #10
APPEAL PROCESS AND SUBMISSION AND REVIEW OF NEW FINANCIAL INFORMATION SUBSEQUENT TO ADVERSE ACTION

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The purpose of this policy is to provide the opportunity for review of an adverse action.

SUBMISSION AND REVIEW OF NEW FINANCIAL INFORMATION SUBSEQUENT TO ADVERSE ACTION

If an adverse action is taken by the Commission based solely on financial grounds, including Commission action to deny initial accreditation or to deny continuing accreditation, a nursing program may submit and seek review of new financial information prior to the action becoming final if the following conditions are met:

1. The financial information was unavailable to the program until after the adverse action was taken; and
2. The financial information is significant and bears materially on the financial deficiencies identified in support of the adverse action.

A nursing program may seek the review of new financial information only once. A nursing program may seek review of new financial information prior to appealing the adverse action. In such case, any determination by the Commission made with respect to the review of new financial information shall not provide a basis for an appeal. Alternatively, a nursing program may submit and seek review of new financial information as part of the appeal of the adverse action consistent with this policy and the procedures set forth below.

DECISIONS ELIGIBLE FOR APPEAL

An adverse action is defined as a denial of initial accreditation or a denial of continuing accreditation.

NOTICE OF APPEAL

An adverse action taken regarding the accreditation status of a nursing program may be appealed within thirty (30) days of the program’s receipt of notice of such adverse action. An appeal shall be initiated by the program by filing a written notice of appeal via hand delivery, certified/registered mail, or another means that provides written evidence of the delivery. The notice of appeal shall be sent by the chief executive officer of the appellant governing organization to the NLNAC Chief Executive Officer. Upon receipt of the notice, the NLNAC shall maintain the prior accreditation status of the nursing program until the disposition of the appeal. The appeal process will be completed within a reasonable amount of time following the date of receipt of the notice to appeal. The Notice of Intent to Appeal Fee must accompany the written notice of the appeal. The hearing will not be scheduled until the Appeal Process Fee has been paid. If the Appeal Process Fee has not been received within 45 days of the submission of the notice to appeal, the appeal will be considered withdrawn.

APPOINTMENT OF AN APPEAL PANEL
Seven (7) members shall be appointed to serve on the Appeal Panel. Five (5) members of the Appeal Panel shall represent nursing education of the same program type as the appellant program; one member of the Appeal Panel shall represent nursing practice; one member of the Appeal Panel shall represent the public. Current members of the Board of Commissioners may not serve on the Appeal Panel.

The Chief Executive Officer shall provide notice of the proposed members of the Appeal Panel to the appellant program. The appellant will have the opportunity to review the proposed panel members for any conflicts of interest. Within five (5) working days of appellant’s receipt of the names of the proposed panel members, the appellant shall provide written notice of any assertions that a proposed panel member has a conflict of interest to the NLNAC Chief Executive Officer. If the NLNAC Chief Executive Officer determines a conflict of interest exists, another panel member shall be appointed within five (5) working days with notification to appellant. The appellant shall have an opportunity to review the appointed panel member for any conflict of interest. Within three (3) working days of appellant’s receipt of the name of the appointed panel member, the appellant shall provide written notice of any assertion that the substituted panel member has a conflict of interest to the NLNAC Chief Executive Officer. If the NLNAC Chief Executive Officer determines that the panel member has a conflict of interest, the procedures of this paragraph shall be repeated until a panel member is secured, and the Appeal Panel is determined.

Where necessary to avoid a conflict of interest or in other exceptional circumstances, the Chief Executive Officer may, in consultation with the program, select individuals outside of the approved list maintained by the NLNAC of persons qualified to serve as Appeal Panel members as long as such panel member otherwise meets the qualifications to be a panel member.
Appeal Panel members are subject to the requirements of NLNAC’s Policy #1 regarding conflict of interest.

PROCEDURES FOR GOVERNING THE APPEAL PROCESS

The Panel will select a chair who will be responsible for ensuring effective implementation of the process and for filing the Panel’s decision with the Chief Executive Officer.

Up to five representatives of the program under review, one of whom will be the nurse administrator, may appear before the Panel as witnesses.

• The Chair of the Panel may have a preliminary conference, in person or by telephone, either at the Chair’s request or at the request of a party, to discuss the procedures for the appeal with the Panel and with counsel for the parties to the appeal.
• The program shall bear the burden of persuasion. The program shall be entitled to make its presentation first and to conclude.
• The presentation of the parties, including any questions of the Panel, shall be transcribed by a court reporter provided by the NLNAC.
• The program and the NLNAC may be represented by legal counsel in all phases of the appeal process. The appeal process is a collegial one, and it shall not be bound by technical or formal rules of evidence or pleading. Legal counsel may present to the Panel oral and written information, subject to the limitations in these procedures, and may make opening statements and closing arguments on behalf of their clients. Legal counsel may present the testimony of witnesses either by questioning or in narrative form but may not cross examine witnesses for the other party and may not voice objections.
• There are two grounds for appeal:
  • That the NLNAC failed to follow its procedures and that this failure was significant in leading to the decision; or,
  • That the NLNAC’s decision was arbitrary; that is, that it was unreasonable and not based on or consistent with the published Standards of the NLNAC.

DOCUMENTS FOR THE HEARING

At least 30 days before the date of the appeal hearing, the NLNAC shall submit to the program and the Chair the documents used by the NLNAC leading to and arriving at the decision regarding the program. These documents are collectively referred to as the “Administrative Record.”

At least 14 days before the date of the appeal hearing, the program shall submit to NLNAC its brief of its argument on appeal. NLNAC shall provide copies to the Panel.

At least 7 days before the date of the appeal hearing, NLNAC shall submit to the program and the Panel its brief of its argument on appeal. The Panel shall base its decision on the Administrative Record, the briefs, and the testimony of the witnesses at the appeals hearing.

Except as expressly provided above concerning financial information, neither the program nor the NLNAC may submit any information to the Panel that the program had not previously submitted to the NLNAC in support of its accreditation. Neither the program nor the NLNAC may submit additional documents at the appeal hearing.

THE HEARING

The Appeal Panel shall meet and review the written record and receive the oral presentation. Presentations are not to exceed sixty (60) minutes in length and shall be limited to clarification of the record, arguments to address compliance by the program with the published Accreditation Standards and Criteria, and review of the administrative procedures leading to the adverse action. While conducting its review, the Appeal Panel will consider only information in the record at the time of the adverse action except that a program may seek review of new financial information if all of the required conditions are met.

Witnesses will be seated with counsel and may testify from where they sit. There will be no sequestration of witnesses.

The Panel may ask questions of the witnesses, and their questions shall not count against the time allowed either side.

THE DECISION

Based upon a review of all oral and written information presented, the Appeal Panel will make its decision by a majority vote to affirm, amend, or reverse the adverse action appealed.

The decision of the Appeal Panel shall be one of the following:

• Affirm, if the program showed no substantive or procedural error.
• Reverse, if the program showed a substantive error.
• Remand to the NLNAC for reconsideration if the program showed a procedural error that was significant in the decision.

The chairperson of the Appeal Panel shall verbally inform the program representative(s) of its decision which will be taken to the Commission for implementation. The Commission must act in a manner consistent with the decision of the Appeal Panel.

The NLNAC Chief Executive Officer will notify the nursing program in writing of the result of its appeal and its basis to the chief executive officer of the governing organization with a copy to the nurse administrator within thirty (30) days. A copy of the decision letter will be forwarded to the Appeal Panel members and the U.S. Department of Education; a copy will also be maintained in the NLNAC office.