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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 23-AA-0562
INNOVATIVE INSTITUTE, INC., PETITIONER,
v.
OFFICE OF THE STATE SUPERINTENDENT OF EDUCATION, RESPONDENT.
On Petition for Review of a Decision and Order of the Higher Education Licensure Commission (D2021-002)
(Submitted September 18, 2024 Decided October 15, 2024 ∗)
Alan Grayson was on the briefs for petitioner.
Brian L. Schwalb, Attorney General for the District of Columbia, Caroline S. Van Zile, Solicitor General, Ashwin P. Phatak, Principal Deputy Solicitor General, Thais-Lyn Trayer, Deputy Solicitor General, and Richard S. Love, Senior Assistant Attorney General, were on the brief for respondent. After the case was submitted, this court granted Senior Assistant Attorney General Richard S. Love’s motion to withdraw as co-counsel of record.
Before HOWARD and SHANKER, Associate Judges, and THOMPSON, Senior Judge.
∗ The decision in this case was originally issued as an unpublished Memorandum Opinion and Judgment. It is now being published upon the court’s grant of respondent’s motion to publish. 2
SHANKER, Associate Judge: Innovative Institute, Inc. is a postsecondary,
non-degree-granting institution offering nursing assistant and home-health training
programs. Innovative sought renewal of its temporary operating license from the
District of Columbia Higher Education Licensure Commission, a five-member
regulatory and consumer protection agency that “ensure[s] the authenticity and
legitimacy of [postsecondary] educational institutions.” D.C. Code § 38-1303.
Innovative submitted a license renewal application and, over the course of several
months, filed supplemental documents in response to Commission inquiries.
After an evidentiary hearing, the Commission voted to deny Innovative’s
application. The Commission found several deficiencies in Innovative’s application
and operation. In particular, the Commission concluded that Innovative failed to
pay all applicable fees, provide the Commission with updated curriculum and course
syllabi, and maintain adequate student records, including immunization
documentation and grade reports. Innovative had not been in good standing with the
Commission for five consecutive years.
Innovative now petitions for review, arguing that the Commission’s decision
to deny its application was not supported by substantial evidence. Innovative also
argues that the Commission committed a number of legal errors. We disagree and
affirm the Commission’s decision and order. 3
I. Background
Innovative is a postsecondary, non-degree-granting institution offering
nursing assistant and home-health training programs. Beginning in 2011, Innovative
operated under year-long provisional licenses granted by the Commission.
Innovative’s most recent provisional license expired on November 30, 2019. On
May 25, 2021, the Commission notified Innovative that its provisional license had
expired and instructed Innovative to “submit a license renewal application with
applicable fees no later than June 30, 2021.” 1 The notification further stated that
“[i]f a renewal application is not submitted by the required deadline, application late
fees will be applied.”
The application form’s cover page contained a number of directives. It
specified, among other things, that applicants must mail a paper copy of the
completed application to the Commission along with two flash drives containing
electronic copies. The application further instructed that applicants must pay a
$2,500 renewal fee if the renewal application is “submitted at least 60 days prior to
expiration” of the previous license and a $500 late fee, in addition to the renewal fee,
1 Due largely to the COVID-19 pandemic, a decision on Innovative’s 2020 licensure renewal was significantly delayed. According to the Commission, “due to the aforementioned delays[,] the deadline for [Innovative’s 2021] application was set” as June 30, 2021. The lapse in Innovative’s licensure after November 30, 2019, does not appear to be an issue in these proceedings. 4
if it is “submitted less than 60 days” prior to the expiration of the previous license.
The application warned that submissions made “without payment are considered
incomplete.” The Commission accepted payment online or by check with the
application.
A. Innovative’s Initial Application, Commission Review, and the Site Visit
On June 30, 2021, the deadline for the application, Innovative emailed its
initial renewal application but did not pay the renewal fee online. Later that
afternoon, Innovative’s President, Dr. Christopher Azoroh, also mailed a paper copy
of the application to the Commission along with a $2,500 check for the renewal fee.
The Commission received Innovative’s check and hard-copy application on July 1. 2
The Commission’s review of Innovative’s application identified a number of
deficiencies. The review found that Innovative did not timely submit its application
or include the required $500 late fee. The application also lacked a number of
supporting documents including a financial audit, a Certificate of Clean Hands from
the District of Columbia Office of Tax and Revenue, records of student admissions
2 There is some dispute in the record as to whether the Commission received the paper application on July 1 or July 6. This factual issue is of no consequence because under either date the submission was late and/or incomplete. See infra Part II.B.1. We therefore assume that the Commission received Innovative’s application on the earlier of the two dates. 5
and grades, and documents relating to student vaccinations against communicable
diseases. The review also noted that Innovative was not offering a sufficient number
of classroom hours and was therefore not compliant with “the Certified Nursing
Assistant program as prescribed by the District of Columbia Board of Nursing.” The
review also noted that Innovative had not been in good standing with the
Commission staff subsequently conducted a virtual site visit during which
staff members observed several other issues. Most notably, Commission staff
reviewed ten sample student records and determined that they were missing key
documents, such as verification of compliance with Innovative’s entrance exam
requirements, verification of immunity to communicable diseases, and grade reports.
B. First Public Meeting, Innovative’s Supplemental Responses, and Second Commission Review
On October 1, 2021, the Commission notified Innovative that it would hold a
public meeting to consider its application and asked Innovative to cure the
deficiencies identified above. Innovative responded, disputing that it submitted its
application late, that its program did not comply with Board of Nursing regulations,
and that the student immunization records were deficient. 6
The Commission held its first public hearing on October 7. After hearing
testimony regarding the above deficiencies, the Commission deferred its decision
pending Innovative’s submission of “the documentation necessary to demonstrate
compliance with the [Commission’s] licensure standards.” The Commission
scheduled a follow-up hearing on December 2.
On October 22, the Commission sent Innovative a letter directing it to submit
a number of documents. Those documents included a financial audit; a $3,000
payment covering both the application and late fees; a Certificate of Clean Hands; a
revised admissions policy, academic catalog, and course syllabi; and copies of
certain student records. Innovative timely responded, attaching a financial audit; a
copy of its original $2,500 check; a Certificate of Clean Hands; a revised catalog and
admissions policy; and a statement that it had “no new students from October 25,
2021 to [November 15]” and therefore no records to provide for those students.
The Commission conducted a second application review using Innovative’s
updated material. The second review found several continuing deficiencies.
Specifically, Innovative had failed to pay the $500 late fee, its updated catalog was
still deficient and did not include any syllabi, and student records still did not contain
all required immunity, grade, and admissions documentation. 7
C. Second Public Meeting
At the December 2 public meeting, the Commission heard testimony from
Jocelyn N. Harris, a Commission staff specialist who had been reviewing
Innovative’s application. Ms. Harris testified that Innovative’s application was
missing “the $500 late fee, the catalog[ ] with curriculum information included,” and
“student records to verify [that] admissions criteria ha[d] been followed.”
Additionally, Innovative still had not provided “documentation of [student]
vaccination or immunity to communicable diseases . . . for the majority of the
records.” Moreover, “some students did not meet [Innovative’s] threshold for”
admission but had nevertheless been admitted.
Dr. Azoroh testified that Innovative had “submitted all . . . that was required
from [it]” and that it did not “have anything outstanding.” He noted, in particular,
that Innovative submitted financial audits, clean-hands documents, and an updated
curriculum in its most recent supplemental responses.
At the conclusion of the public hearing, the Commission proposed to deny
Innovative’s application because Innovative had failed to comply with the
Commission’s licensure standards. On December 13, the Commission sent
Innovative a notice of intent to deny (“NOID”). It specified the following
deficiencies: (1) failure to timely file a complete application, including a $500 late 8
fee, in violation of 5A D.C.M.R. §§ 8102, 8122; (2) failure to maintain student
records and meet certain standards for admissions requirements, in violation of
5A D.C.M.R. §§ 8111, 8117; and (3) failure to include updated curriculum or course
syllabi, in violation of 5A D.C.M.R. §§ 8110, 8116.1(l). The notice also informed
Innovative of its right to have an evidentiary hearing, which Innovative subsequently
requested.
D. Evidentiary Hearing, Recommendation, and Final Order
The Commission ultimately designated Monique Gudger, an attorney-advisor
with the District of Columbia Office of the Attorney General, to serve as the Hearing
Officer. The hearing took place over three days. The Commission’s sole witness,
Deputy Director Terasita Edwards, testified that Innovative’s initial application was
deficient and that Innovative failed to “correct all deficiencies” even after the
Commission requested additional documents. Ms. Edwards testified, among other
things, that Innovative’s student “records did not consistently” provide current
transcripts or grade reports. Nor, according to Ms. Edwards, did Innovative provide
“documentation for [student] vaccinations[,] which are required at the time of
admission[ ].” Moreover, Innovative’s catalog did “not include curriculum
information” or course syllabi, which are necessary “so that students are aware as to
what the course is, [and] the program hours.” 9
Innovative called two witnesses: Dr. Bonita Jenkins, a Board of Nursing staff
member who helped the Commission conduct the virtual site visit, and Dr. Azoroh.
Dr. Jenkins testified that, as a Board of Nursing employee, she did not participate in
any of the Commission’s decisions, including its decision to deny Innovative’s
application. Nor did Dr. Jenkins know whether Innovative corrected any of the
deficiencies in its application. With regard to Board of Nursing standards, however,
Dr. Jenkins testified that, based on her review of student records, Innovative was not
using the required curriculum certified by the Board of Nursing and that evidence of
immunity to communicable disease “was lacking” in the ten sample student records.
Dr. Azoroh testified that Innovative was in compliance with respect to all issues
raised.
Innovative also sought to introduce annual reports that it had submitted to the
Board of Nursing between 2017 and 2020, which, according to Dr. Azoroh,
“pertain[ed] to [ ] program[s], enrollments, [and] staffing.” The Commission
objected to the admission of the reports because they had not been submitted to the
Commission, were “not a compliance metric” for licensure renewal for the
Commission, and, at any rate, related to a period before 2021. The Hearing Officer
declined to admit the annual reports because the reports were “irrelevant and
immaterial as they [were] not a measurement of compliance to the Commission’s
standards for licensure.” 10
On March 14, 2023, the Hearing Officer issued a written decision concluding
that Innovative “failed to meet its burden of establishing that it qualified for renewal
of its license by satisfying the applicable statutory and regulatory standards as set
forth in the” December 13 NOID. In particular, the Hearing Officer concluded that
the record supported each of the three bases for the Commission’s decision. First,
the Hearing Officer, citing 5A D.C.M.R. §§ 8122.2(d) and 8128.3, found that
Innovative’s application was incomplete because it “failed to include the additional
$500 late fee.” Second, Innovative “failed to maintain student records” and adhere
to appropriate admissions requirements. Specifically, some of Innovative’s “student
records included documentation for programs in which the student was not enrolled”
and “[n]one of the student records contained grade reports.” Moreover, Innovative
did not conform to applicable Board of Nursing requirements “because it [did] not
offer sufficient classroom hours,” did not “require students to show proof of
vaccination and immunity to communicable diseases,” and “admit[ted] students who
fail[ed] to meet the school’s passing score on its own entrance exams.” Third, the
Hearing Officer found that Innovative “failed to include updated curriculum as set
forth in its revised published academic catalog and failed to provide course syllabi.”
The Hearing Officer’s decision also addressed three “supplemental issues” raised by
Innovative, discussed in more detail below. The Hearing Officer recommended that 11
the Commission issue a final order denying Innovative’s application for a licensure
renewal.
On June 14, 2023, the Commission adopted the Hearing Officer’s findings
and recommendation “in full as its final decision” and denied Innovative’s renewal
II. Analysis
Innovative raises four arguments in this court: (1) the Commission’s decision
was not supported by substantial evidence; (2) the Hearing Officer improperly
excluded admissible evidence; (3) Innovative had deficient notice of the second
ground for denial; and (4) the Commission’s unilateral control over the selection of
the Hearing Officer conflicts with the federal Administrative Procedure Act
(“APA”).
We disagree on all fronts and affirm.
A. Standard of Review
Our review of agency decisions in contested cases is “generally deferential.”
Elliot v. D.C. Zoning Comm’n, 246 A.3d 568, 579 (D.C. 2021). We will affirm an
agency decision “so long as (1) [the agency] has made findings of fact on each
material contested issue; (2) there is substantial evidence in the record to support 12
each finding; and (3) its conclusions of law follow rationally from those findings.”
Durant v. D.C. Zoning Comm’n, 65 A.3d 1161, 1167 (D.C. 2013). Innovative, as
the party requesting administrative action, had the burden of proof to show, by a
preponderance of the evidence, that it satisfied the regulatory requirements for
licensure. 3 D.C. Code § 2-509(b); 5A D.C.M.R. § 8133.31.
“Substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Acott Ventures, LLC v. D.C. Alcoholic
Beverage Control Bd., 135 A.3d 80, 88 (D.C. 2016) (internal quotations omitted).
Where substantial evidence in the record supports an agency’s decision, we will not
substitute our judgment for that of the agency “even though there may also be
substantial evidence to support a contrary decision.” Aziken v. D.C. Alcoholic
Beverage Control Bd., 29 A.3d 965, 972 (D.C. 2011) (internal quotations omitted).
3 Innovative argues that the D.C. APA “places [the] burden on the Commission” to “justify denial of renewal.” That is incorrect. Under the D.C. APA, “the proponent of a rule or order shall have the burden of proof.” D.C. Code § 2-509(b). The D.C. APA defines “order” to include licensing. D.C. Code § 2-502(11); see also 5A D.C.M.R. § 8133.31 (“In a hearing resulting from a proposed action to deny a license, the applicant has the burden of satisfying the Commission of the applicant’s qualifications by a preponderance of the evidence.”); Haight v. District of Columbia Alcoholic Beverage Control Bd., 439 A.2d 487, 493 (D.C. 1981) (“Because this is a contested case, the burden of proving that the license requirements have been met lies with the applicant.”). 13
We review questions of law de novo. Panutat, LLC v. D.C. Alcoholic
Beverage Control Bd., 75 A.3d 269, 272 (D.C. 2013).
B. Whether Substantial Evidence Supported the Commission’s Decision
In adopting the Hearing Officer’s findings and recommendation, the
Commission denied Innovative’s application because Innovative failed to (1) file a
complete application, including the $500 late fee, in violation of 5A D.C.M.R.
§ 8122.2; (2) maintain student records, in violation of 5A D.C.M.R. §§ 8111; 8117;
and (3) include updated curriculum or syllabi, in violation of 5A D.C.M.R. §§ 8111;
8166.1(l).
We conclude that substantial evidence supports each of these grounds for
denial. 4
4 Innovative appears to argue that the sole regulation relevant to this litigation is 5A D.C.M.R. § 8122.2, and that its noncompliance with other regulations cannot serve as a basis for the denial of its application. Although Section 8122.2 specifies the information that “[a]n application for renewal . . . shall include,” this provision is not the sole basis on which the Commission may deny a license. Rather, licensure is generally “contingent upon said [applicant’s] compliance with all rules, regulations and criteria promulgated by the Commission.” D.C. Code § 38-1302(12) (emphasis added); see also 5A D.C.M.R. § 8102.2 (providing that a license will be granted when the Commission determines that the school “complies . . . with all requirements of this chapter”); District of Columbia v. Am. Univ., 2 A.3d 175, 178 (D.C. 2010) (recognizing that licensure is contingent upon compliance with all 14
1. Late Fee
An applicant wishing to renew its license must submit a timely and complete
renewal application package. 5A D.C.M.R. § 8122. The application “shall include,”
among other things, “[t]he licensure fees and sureties required” by regulation. Id.
§ 8122.2(d). The fee for a license renewal application is $2,500, id., and “[a]n
additional fee of five hundred dollars ($500) shall be applied to an application
received after the license expiration date,” id. § 8128.3. 5 Accordingly, late fees
accrued if the Commission received Innovative’s renewal application, including all
applicable fees, after June 30, 2021.
Commission rules and other applicable laws). Moreover, Section 8122.2 itself contains a catch-all provision under which applicants must provide “[s]uch other information as the Commission may require.” The Commission did not err, therefore, in requiring Innovative to produce, as a condition of licensure, immunization documentation, 17 D.C.M.R. § 9327.11; course syllabi, 5A D.C.M.R. § 8166.1; or other information required by law or regulation. 5 We note a discrepancy between the Commission’s regulations and its form application regarding the date on which late fees would accrue. The application provides that a late fee will accrue “if [the application is] submitted less than 60 days up to the date of expiration.” The relevant regulation, however, provides that a late fee will “be applied to an application received after the license expiration date.” 5A D.C.M.R. § 8128.3 (emphasis added). For purposes of this opinion, we assume that the Commission regulation controls and that a late fee accrued if the Commission received Innovative’s application after June 30, 2021, the deadline specified by the Commission in its May 2021 letter. 15
Innovative argues that it submitted its application on time, “which means that
no late fee should be assessed.” Innovative cites to testimony that Innovative
electronically sent its application on June 30, 2021, and notes that the “paper copy
[and] payment” were “received [by] the Commission on July 1, 2021.” We conclude
that the Commission properly assessed a late fee, which Innovative failed to pay.
There is no dispute that Innovative initially emailed an electronic application
on June 30, 2021. But Innovative did not pay its application fee on that date, which
it could have done electronically. Without an accompanying payment by June 30,
2021, the electronic application was incomplete. See 5A D.C.M.R. §§ 8122.2(d)
(providing that a license renewal application “shall include” all “licensure fees”);
8128.2 (specifying a $2,500 application fee for license renewal). Had Innovative
electronically paid the application fee when it emailed its initial application, we
assume (in the absence of any evidence that the Commission did not accept emailed
applications) that its application would have been timely and complete. But because
Innovative did not electronically pay the application fee by June 30, 2021, its
emailed application was incomplete.
It is also undisputed that Innovative mailed a paper application on June 30,
2021, along with a $2,500 check for the application fee, and that the Commission
received it on July 1 at the earliest. Innovative asserts that because it postmarked 16
the paper application by the June 30 deadline and included the $2,500 application
fee, its application was complete and timely. Innovative is incorrect. Because the
Commission received the paper application after the June 30 deadline, it was
untimely, and a $500 late fee accrued. See 5A D.C.M.R. § 8128.3 (providing that a
late fee “shall be applied to an application received after the license expiration date”
(emphasis added)). As with its electronic application, Innovative’s failure to pay the
required late fee—even after months of additional time and supplemental
responses—rendered its paper application incomplete.
The record therefore substantially supports the Commission’s determination
that Innovative’s application was incomplete. 6
2. Student Records
Postsecondary schools must maintain student records containing specified
documents. 5A D.C.M.R. § 8117. Such documents include a “copy of the
enrollment contract and other instruments relating to the payment for educational
services”; certain “[s]tudent information”; the “[b]asis for admission”; the “date of
6 Innovative points out that it submitted other necessary documents, including a financial report and Certificate of Clean Hands, before the Commission’s second public meeting. But an application is incomplete unless it includes all applicable licensure fees, including late fees. See 5A D.C.M.R. § 8122.2(d) (providing that a license renewal application “shall include” all “licensure fees”). 17
completion or termination”; and “[c]opies of all correspondence or other records
relating to the recruitment, enrollment and placement of the student.” Id. § 8117.1.
Schools must also maintain “[g]rade record[s]” and “descriptions of courses of
instruction offered each term.” Id. §§ 8117.2-.3.
Additionally, because Innovative “provides instruction in a field for which a
professional or occupational license is required,” it must also meet all applicable
requirements of the professional or occupational licensure law, here those specified
by the Board of Nursing. 5A D.C.M.R. § 8110.2(e). The Board of Nursing requires
institutions such as Innovative to maintain evidence of vaccination or immunity to
communicable diseases prior to a trainee’s admission. 17 D.C.M.R. § 9631.3(d)
(“The record of each trainee shall include . . . [e]vidence of vaccinations or
immunity to communicable diseases.”).
The Commission, adopting the Hearing Officer’s findings and
recommendation, determined that Innovative’s maintenance of student records was
deficient. There is substantial evidence in the record to support the Commission’s
conclusion. In particular, the Commission’s review of the records of ten sample
students revealed, among other issues, that (1) “no student records . . . had grade
reports on file”; (2) students who were admitted often had failed to meet the school’s
passing score on its own entrance exams; and (3) records did not show proof of 18
vaccination and immunity to communicable diseases, as required by the Board of
Nursing.
Innovative does not meaningfully challenge any of these findings. It does not
point us to any record evidence demonstrating that it kept such documents or
otherwise argue that the evidence does not support the Commission’s legal
conclusion. Innovative simply maintains that “[t]he records were, in fact, in
compliance with Commission licensing requirements” without citation to where we
might find those records. Such bald assertions cannot carry the day, particularly in
light of countervailing evidence. See D.C. App. R. 28(a)(10)(A) (petitioner’s brief
must “contain[ ] the [petitioner’s] contentions and the reasons for them, with
citations to the authorities and parts of the record on which the [petitioner] relies”).
At most, Innovative cites to Dr. Azoroh’s testimony—itself conclusory and
unspecific—that Innovative was “fully compliant regarding all of the issues raised.”
But Dr. Azoroh’s uncorroborated testimony cannot override the substantial contrary
evidence that Innovative’s student records were deficient along several metrics.
Even if we credited Dr. Azoroh’s testimony, substantial evidence would still support
the Commission’s conclusion that Innovative failed to keep adequate records. See
Johnson v. D.C. Dep’t of Health, 162 A.3d 808, 810-11 (D.C. 2017) (“[W]e must 19
affirm the [agency’s] decision so long as it is supported by substantial evidence in
the record and otherwise in accordance with law.”).
3. Updated Curriculum and Syllabi
Postsecondary schools must have a published catalog that includes a
“description of each approved educational service offered.” 5A D.C.M.R.
§ 8116.1(l); see also id. § 8122.2(b) (requiring a licensure renewal application to
include “[a] copy of the institution’s catalogue”). The catalog must include
(1) program curricula, id. § 8110.2(a), and (2) individual course syllabi, 7 which
provide “a written outline [of each course] with examination expectations,” id.
§ 8110.2(b). 8 The Board of Nursing separately requires all nurse assistant training
programs to use its “approved [ ] model curriculum, that consists of classroom, skills
laboratory, and supervised practice hours.” 17 D.C.M.R. § 9627.1.
7 According to testimony at the evidentiary hearing, a “course catalog” is “a complete set of policies, procedures, and curriculum that a school provides to students.” Syllabi, on the other hand, are “specific to the individual courses that comprise a program and each [syllabus] corresponds to one course.” 8 Although the terms “syllabus” or “syllabi” do not appear anywhere in the relevant Commission regulations, “[e]ach course offered shall have a written outline with examination expectations.” 5A D.C.M.R. § 8110.2(b). We read this regulation as mandating course syllabi or an equivalent. 20
The Commission, adopting the Hearing Officer’s findings, concluded that
Innovative’s catalog “failed to include updated curriculum” and “course syllabi” in
violation of 5A D.C.M.R. §§ 8110 and 8116.1(l).
Again, substantial evidence supports the Commission’s determination.
Although Innovative submitted a “student catalog” on at least three different
occasions, none of those catalogs included course syllabi, which are meant to make
students “aware as to what the course is, the program hours, . . . [and] the
requirements of the program that the students are enrolling in.” The Commission’s
two formal reviews of Innovative’s application confirmed as much. 9
Innovative again relies on Dr. Azoroh’s conclusory testimony and asserts,
without record citation, that it “included all required curriculum information” and
that the evidence “establishes that the required course syllabi were included in
[Innovative’s] submissions.” After our own thorough search of the record, we can
find no support for Innovative’s assertion that it included the necessary course
syllabi or otherwise provided “a written outline [of each course] with examination
9 Although the Commission did not formally review Innovative’s final supplemental submission dated December 1, 2021, that submission is similarly defective. Although this final submission included the Board of Nursing’s required Nurse Assistant Curriculum, 17 D.C.M.R. § 9627.1, it did not contain any course syllabi or otherwise explain how it would actualize this curriculum through specific course offerings. Nor did Dr. Azoroh testify that Innovative would adopt the Board’s recommended curriculum in any specific fashion. 21
expectations.” Id. § 8110.2(b). At any rate, “[i]t is not our obligation to comb
through the voluminous record in this case to determine whether there is any
evidence to support” Innovative’s argument. Belcon Inc. v. D.C. Water & Sewer
Auth., 826 A.2d 380, 388 (D.C. 2003) (alterations omitted); see In re Johnson, 275
A.3d 268, 281 (D.C. 2022) (treating an argument as waived because it consisted of
only “vague one-line conclusory assertions”).
Innovative also asserts that two of the testifying witnesses—Ms. Edwards and
Dr. Jenkins—“read none of [Innovative’s] submissions” and merely reiterated the
contents of the Commission’s December 2021 NOID. It makes sense that
Dr. Jenkins—a witness called by Innovative—would not have personal knowledge
of Innovative’s submissions to the Commission. As noted above, Dr. Jenkins was
an employee of the Board of Nursing, not the Commission, and did not participate
in any of the Commission’s decisions regarding the application. But the record does
support Innovative’s assertion that Ms. Edwards was not able to testify as to the
specific content of Innovative’s various submissions and often simply reiterated the
Commission’s earlier findings.
Nonetheless, we find Ms. Edwards’s lack of personal knowledge about
Innovative’s submissions largely immaterial. The ultimate issue before the
Commission was whether Innovative had demonstrated, by a preponderance of the 22
evidence, that it had in fact submitted the required documents in its application and
otherwise complied with all other Commission regulations. See 5A D.C.M.R.
§ 8133.31 (“In a hearing resulting from a proposed action to deny a license, the
applicant has the burden of satisfying the Commission of the applicant’s
qualifications by a preponderance of the evidence.”). The Hearing Officer (and, by
extension, the Commission) had before her all of Innovative’s submissions, which
plainly lack any course syllabi. The Commission’s two formal reviews of
Innovative’s two initial application submissions—which were also before the
Hearing Officer—found the same. Even without considering any of the testimony
provided at the evidentiary hearing, these materials amount to substantial evidence
supporting the Commission’s determination that Innovative failed to include course
syllabi or a “written outline [of each course] with examination expectations.”
5A D.C.M.R. § 8110.2(b).
C. Whether the Commission Committed Legal Error
In addition to challenging whether substantial evidence supported the
Commission’s denial of its renewal application, Innovative asserts that the
Commission committed several legal errors. In particular, Innovative argues that
(1) the Hearing Officer erroneously excluded four exhibits that it sought to
introduce; (2) a portion of the second charge was “too vague to provide proper 23
notice”; and (3) “the Commission’s control over the selection of the hearing officer
is incompatible with full impartiality.”
We disagree with all of Innovative’s arguments.
1. Evidentiary Claim
Innovative contends that the Hearing Officer erred when she excluded four
annual reports that Innovative had submitted to the Board of Nursing between 2017
and 2020.
The Hearing Officer excluded the annual reports as “irrelevant and
immaterial” because “they are not a measurement of compliance [with] the
Commission’s standards for licensure.” Innovative disagrees, arguing that the
documents “[met] the test for admissibility under D.C. Code § 2-509(b)” and “would
have demonstrated that [immunization records and compliance] relates to nursing
standards only, not education standards, and that [Innovative] certainly is in
compliance with such nursing standards.”
As best we can tell, these annual reports are not included in the record on
review. Nevertheless, Innovative’s own description of the reports assures us that the
Hearing Officer did not abuse her discretion in excluding the documents, especially
in light of our highly deferential review of evidentiary rulings in administrative 24
hearings. See District of Columbia v. Pub. Serv. Comm’n, 802 A.2d 373, 379 (D.C.
2002) (“Given the flexibility of their proceedings and their expertise, administrative
agencies are invested with a correspondingly greater discretion than trial judges in
determining the admissibility of evidence.” (internal quotation omitted)). First,
immunization requirements and corresponding documentation do not “relate[ ] to
nursing standards only.” As noted above, Innovative’s programs “provide[ ]
instruction in a field for which a professional or occupational license is required,”
and Commission regulations therefore require it to meet all applicable standards set
forth by the Board of Nursing. See 5A D.C.M.R. § 8110.2(e). One such standard is
that Innovative must maintain evidence of vaccination or immunity to
communicable diseases prior to a trainee’s admission. See 17 D.C.M.R. § 9631.3(d)
(“The record of each trainee shall include . . . [e]vidence of vaccinations or
immunity to communicable diseases.”). Second, Innovative did not attach the
annual reports to any of its applications or otherwise timely provide them to the
Commission, and seeking to admit them during the evidentiary hearing was too late.
Third, the annual reports did not include 2021, the year for which Innovative was
renewing its license.
In any event, Innovative does not argue, let alone demonstrate, that it suffered
prejudice due to the exclusion. See Wash. Post v. D.C. Dep’t. of Emp. Servs., 675
A.2d 37, 43 (D.C. 1996) (an evidentiary error may be a basis for reversal, but 25
“prejudice must be shown”). Immunization records were but one of several
categories of documents that were missing from Innovative’s applications and
supplements, such as student grade reports. See supra Part II.B.2.
We therefore reject Innovative’s evidentiary claim.
2. Notice Claim
Innovative next argues that a portion of the Commission’s second charge was
“too vague to provide proper notice . . . of the matter at issue.” Specifically,
Innovative takes issue with the portion of the Commission’s charge that reads:
“[Innovative’s] admissions policy does not align with the DC Board of Nursing, and
therefore, the student records did not include the documents required by
[Innovative’s] professional regulatory body.”
Innovative does not explain in any detail how the Commission’s charge “is so
vague, with respect to what conduct is either proscribed or required, that persons of
common intelligence must necessarily guess at its meaning.” Woods v. D.C. Nurses’
Examining Bd., 436 A.2d 369, 374 (D.C. 1981). Again, Innovative’s conclusory
statement that the notice is “vague,” without any supporting argument, is a basis to
reject its argument. See Cunningham v. District of Columbia, 235 A.3d 749, 758
(D.C. 2020) (“Issues adverted to in a perfunctory manner, unaccompanied by some 26
effort at developed argumentation, are deemed waived.” (internal quotation
omitted)).
3. Bias Claim
Finally, Innovative argues that “the Commission’s control over the selection
of the hearing officer is incompatible with full impartiality.” In support, Innovative
cites to a portion of the federal APA, 5 U.S.C. § 556(b)(3), which provides in
relevant part that “[t]he functions of presiding employees and of employees
participating in [administrative] decisions . . . shall be conducted in an impartial
manner.”
The federal APA is inapplicable to administrative proceedings in the District.
See Env’t Def. Fund, Inc. v. Mayor-Comm’r of the District of Columbia, 317 A.2d
515, 517 (D.C. 1974) (“The Federal APA, however, does not apply to the District of
Columbia, and therefore cannot control judicial review by this court of either action
or inaction of a District of Columbia administrative agency.” (footnotes omitted)).
Accordingly, Innovative has cited no controlling authority to support its position.
Even under the federal APA, however, the selection of hearing officers by the
regulating agency is not alone sufficient to demonstrate bias. See Schweiker v.
McClure, 456 U.S. 188, 195 (1982) (starting “from the presumption that the hearing
officers who decide [administrative] claims are unbiased” and requiring a petitioner 27
to show a “conflict of interest or some other specific reason for disqualification”).
Assuming that Innovative was owed an impartial hearing officer under our local
APA, Innovative gives no specific reason to believe that the Hearing Officer here
was biased. See Ramey v. D.C. Dep’t. of Emp. Servs., 997 A.2d 694, 698 n.1 (D.C.
2010) (requiring appellant to “point to [some] instance that would suggest that [the
ALJ] was biased against him”). The mere fact that the Commission selected a
hearing officer without Innovative’s input—as is the case in many administrative
schemes—cannot alone support Innovative’s argument that the Hearing Officer was
biased.
III. Conclusion
For the foregoing reasons, we affirm the Commission’s decision and order.
So ordered.