        IN THE SUPREME COURT OF THE STATE OF DELAWARE

CAMTECH SCHOOL OF NURSING §
AND TECHNOLOGICAL SCIENCES, §
                            §                   No. 91, 2014
    Appellant Below-        §
    Appellant,              §                   Court Below: Superior Court
                            §                   of the State of Delaware,
    v.                      §                   in and for New Castle County
                            §
DELAWARE BOARD OF NURSING, §                    C.A. No. N13A-05-004
                            §
    Appellee Below-         §
    Appellee.               §

                            Submitted: May 23, 2014
                            Decided: August 22, 2014

Before STRINE, Chief Justice, HOLLAND, and RIDGELY, Justices.

                                    ORDER
      On this 22nd day of August 2014, it appears to the Court that:

      (1)    Appellant-Below/Appellant Camtech School of Nursing and

Technological Sciences (“Camtech”) appeals from a Superior Court Opinion and

Order affirming the decision of the Delaware Board of Nursing (the “Nursing

Board” or “Board”) withdrawing state approval of Camtech’s nursing education

program. Camtech raises three claims on appeal. First, Camtech contends that the

Board’s revocation of its state approval violated procedural due process and

Delaware law. Second, Camtech argues that the Board erred as a matter of law in

its interpretation of “good cause” under Delaware law. Finally, Camtech argues
that the Board erred in its factual findings. We find no merit to Camtech’s claims.

Accordingly, we affirm.

      (2)   Camtech applied to the Nursing Board for approval of its nursing

education program in August 2005. It obtained Phase I approval in September

2006, which allowed students to enroll at Camtech as it proceeded through

Phase II. Camtech never completed Phase II of its program requirements and has

never obtained Full Approval.      On February 17, 2009, the Board informed

Camtech that it would be placed on probation due, in part, to the inadequate pass

rate of its graduates who took the National Counsel Licensure Exam (“NCLEX”).

      (3) In September 2012, while Camtech was still on probation, the Board

notified Camtech that the Board intended to withdraw Camtech’s state approval

pursuant to 24 Del. C. § 1919(b). Camtech timely requested a hearing, which was

held on November 14, 2012. At this hearing, Camtech presented testimony from

its Director of Practical Nursing and its President.     Camtech also submitted

documentary evidence of its Proposed Corrective Plan of Action and related

Appendix. At the conclusion of the initial hearing, the Board continued the matter

until January 9, 2013, so that it could deliberate on the new evidence Camtech had

submitted. At the January 9th hearing, the Board voted to withdraw approval of

Camtech’s Practical Nursing Program. Thereafter, Camtech submitted a Request

for Reconsideration based, in part, on its most recent NCLEX pass rates.



                                        2
       (4) On April 10, 2013, the Nursing Board issued an opinion and order

explaining its decision to withdraw state approval.              The Board also denied

Camtech’s Request for Reconsideration in a separate order, finding that Camtech’s

NCLEX first-time pass rates were still inadequate.              Camtech appealed to the

Superior Court, which affirmed the decision of the Board.1 This appeal followed.

       (5) This Court’s review of an administrative agency’s decision is the same

as the Superior Court’s.2 That is, we review the decision of the Nursing Board “to

determine whether [it] acted within its statutory authority, whether it properly

interpreted and applied the applicable law, whether it conducted a fair hearing and

whether its decision is based on sufficient substantial evidence and is not

arbitrary.”3 Substantial evidence is defined as evidence that “a reasonable mind

might accept as adequate to support a conclusion.”4 Questions of law are reviewed

de novo.5 But we also give judicial deference to “an administrative agency’s

construction of its own rules in recognition of its expertise in a given field.”6 Thus,



1
  Camtech Sch. of Nursing & Tech. Scis. v. Del. Bd. of Nursing, 2014 WL 604980 (Del. Super.
Ct. Jan. 31, 2014).
2
  Kopicko v. State Dep’t of Servs. for Children, Youth & their Families, 846 A.2d 238, 2004 WL
691901, at *2 (Del. 2004).
3
  Avallone v. State/Dep’t of Health & Soc. Servs. (DHSS), 14 A.3d 566, 570 (Del. 2011)
(alteration in original) (quoting Hopson v. McGinnes, 391 A.2d 187, 189 (Del. 1978)).
4
  Stanford v. State Merit Emp. Relations Bd., 44 A.3d 923, 2012 WL 1549811, at *3 (Del. 2012)
(quoting Avallone, 14 A.3d at 570).
5
  Avallone, 14 A.3d at 570 (citing Person-Gaines v. Pepco Holdings, Inc., 981 A.2d 1159, 1161
(Del. 2009)).
6
  Stanford, 2012 WL 1549811, at *3 (quoting Div. of Soc. Servs. v. Burns, 438 A.2d 1227, 1229
(Del. 1981)).

                                              3
an agency’s interpretation of its own rules or regulation will only be reversed when

it is “clearly wrong.”7

       (6) “In the exercise of quasi-judicial or adjudicatory administrative power,

administrative hearings, like judicial proceedings, are governed by fundamental

requirements of fairness which are the essence of due process, including fair notice

of the scope of the proceedings and adherence of the agency to the stated scope of

the proceedings.”8 As it relates to administrative proceedings, due process requires

that the parties are given an “opportunity to be heard, by presenting testimony or

otherwise, and the right of controverting, by proof, every material fact which bears

on the question of right in the matter involved in an orderly proceeding appropriate

to the nature of the hearing and adapted to meet its ends.”9 Appropriate notice

“requires that the notice inform the party of the time, place, and date of the hearing

and the subject matter of the proceedings.”10

       (7) The Delaware Code provides additional requirements that the Nursing

Board must follow in order to withdraw state approval of a deficient nursing

education program. The provision states:

          If the Board determines that any approved nursing education
          program is not maintaining the standards required by this

7
  Id. (quoting Burns, 438 A.2d at 1229).
8
  Vincent v. E. Shore Markets, 970 A.2d 160, 163–64 (Del. 2009) (quoting Phillips v. Delhaize
Am., Inc., 2007 WL 2122139, at *2 (Del. Super. Ct. July 20, 2007).
9
  Id. at 164 (citing Mathews v. Eldridge, 424 U.S. 319, 333 (1976)).
10
   Id. (citing Mathews, 424 U.S. at 333).

                                             4
          chapter and by the Board, written notice thereof, specifying the
          deficiency and the time within which the same shall be
          corrected, shall immediately be given to the program. The
          Board shall withdraw such program’s approval if it fails to
          correct the specified deficiency, and such nursing education
          program shall discontinue its operation; provided, however, that
          the Board shall grant a hearing to such program upon written
          application and extend the period for correcting specified
          deficiency upon good cause being shown.11

       (8) Camtech argues that the Board failed to follow the prescribed procedure

for withdrawing state approval. Camtech first alleges that the Board failed to

provide written notification of its intention to withdraw state approval before

February 2012. This argument is contradicted by the record. On February 17,

2009, the Board sent Camtech a letter explaining that Camtech was granted

“continuing conditional approval (probation)” of its nursing education program,

citing concerns with its NCLEX pass-rate.12       Then in May 2009, the Board

continued its conditional, probationary approval after receiving Camtech’s

improvement plan.        And Camtech recognized the Board’s concerns with its

NCLEX passage rate, explaining that it was implementing “[a] plan for improving

graduates’ performance on the NCLEX-PN with measures of effectiveness of

identified actions and a timeline for periodic re-evaluation.”13 In February 2012,

following a January meeting of the Nursing Board, Camtech received written


11
   24 Del. C. § 1919(b).
12
   Appellant’s Op. Br. Appendix at A1–2.
13
   Id. at A4.

                                           5
notice that the Board intended to withdraw its initial, conditional approval of

Camtech’s nursing education program. Then in September 2012, the Board fully

delineated Camtech’s deficiencies in its written notice to withdraw state approval.

This was sufficient notice under the Delaware Code and does not violate notions of

fundamental fairness.

         (9)    Camtech next argues that the Board failed to specify Camtech’s

deficiencies in a timely manner so that it could adequately correct them and

continue its nursing education program. Again, the record demonstrates otherwise.

The Board has continually informed Camtech since 2009 of its concern with regard

to its nursing education program.              Primary among these concerns has been

Camtech’s NCLEX passage rate. During this time, Camtech never achieved the

eighty-percent threshold on the NCLEX passage rate mandated by state

regulation.14 The Board also identified other ongoing deficiencies in its September

2012 notice to withdraw state approval.              Specifically, the Board noted that

“Camtech’s curriculum does not comply with the Board’s requirements,” citing

concerns with its credit allocation and course structure as well as its lab facilities

and clinical experiences.15 Moreover, during this entire period, Camtech was on

constructive notice of the Board’s regulatory requirements for a nursing education



14
     24 Del. Admin. C. § 1900-2.5.4.2.2.
15
     Appellant’s Op. Br. Appendix at A30–33.

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program, which are clearly laid out in the Delaware Administrative Code.16 The

Board provided sufficient notice of Camtech’s regulatory deficiencies.

       (10) Camtech next argues that the Board failed to fully consider Camtech’s

plan to restore the integrity of its nursing education program. This is based on the

claim that Camtech provided a large amount of documentary evidence to the Board

in November 2012, and the Board issued its decision withdrawing state approval

less than two months later. Such an amount of time, according to Camtech, would

have been insufficient to consider all of the pertinent evidence. Camtech provides

no legal support for this argument. Moreover, there is nothing in the record to

suggest that the Board’s deliberations were insufficient to consider the evidence

put before it. Camtech’s argument lacks merit.

       (11) Camtech next contends that the Board erred as a matter of law in its

interpretation of the “good cause” requirement to permit Camtech’s continued

operations because its opinion was arbitrary and capricious. As previously noted,

the Nursing Board is permitted under Delaware statute to “extend the period for

correcting [a] specified deficiency upon good cause being shown.”17                        The

Delaware Administrative Code provides similar authority to the Board.18 Camtech


16
   See 24 Del. Admin. C. § 1900-2.5.4 (providing the bases for the denial or the withdrawal of
initial approval of a nursing education program).
17
   24 Del. C. § 1919(b).
18
   See 24 Del. Admin. C. § 1900-2.5.9.1.2 (“The Board shall grant a hearing to such program that
make a written application and the Board shall extend the period for correcting specified
deficiency upon good cause being shown.”).

                                               7
alleges that the Board has never articulated a definition of “good cause” or

provided objective measures to satisfy good cause. But Camtech does not provide

any authority for which an administrative agency is required to provide such a

definition or objective measures.           Nevertheless, “[s]tatutory interpretation is

ultimately the responsibility of the courts.”19 And where a statute is clear, the plain

language of the text controls.20

       (12) The plain language of Section 1919(b)—as well as the regulation—

provides the Nursing Board with discretion to determine the requirements of good

cause. That is, if the Board finds that good cause has been shown, it has the

discretion to extend the correction period. There is nothing in either the statute or

the coordinating regulation that requires the Board to define “good cause” or

provide objective measures to satisfy such a requirement. Thus, the Board in its

discretion is free to decide what conduct is demonstrative of good cause—even on

a case-by-case basis. Judicial review of the Board’s decision will thus be for an

abuse of that discretion.21 “An agency abuses its discretion only where its decision

has exceeded the bounds of reason under the circumstances.”22



19
   Pub. Water Supply Co. v. DiPasquale, 735 A.2d 378, 382 (Del. 1999).
20
   See LeVan v. Independence Mall, Inc., 940 A.2d 929, 932–33 (Del. 2007) (“An unambiguous
statute precludes the need for judicial interpretation, and ‘the plain meaning of the statutory
language controls.’” (quoting Eliason v. Englehart, 733 A.2d 944, 946 (Del. 1999))).
21
   See Sweeney v. Del. Dep’t of Transp., 55 A.3d 337, 342 (Del. 2012) (“Absent an error of law,
we review an agency’s decision for abuse of discretion.”).
22
   Id. (citing Person-Gaines, 981 A.2d at 1161).

                                              8
      (13) Here, the Board did not abuse its discretion when it found that Camtech

had not shown good cause as to why it should be permitted additional time to fix

its deficiencies. The Board placed Camtech on probation in 2009 because it was

concerned with Camtech’s NCLEX pass rate. Then in 2012, the Board notified

Camtech that it was programmatically deficient because it (1) had three

consecutive years of substandard NCLEX passage rates, (2) failed to attain

compliance with Board regulations, (3) failed to correct previously identified

deficiencies, and (4) failed to obtain national accreditation. In response, Camtech

submitted a plan that sought to increase the NCLEX pass rate by limiting

admittees, requiring NCLEX examination within ninety days of graduation, and

partnering with a third party to conduct exam preparation services. It also included

other confusing and internally inconsistent remedial actions.

      (14) The Board found that Camtech’s corrective action plan in toto failed to

address the systemic deficiencies raised by the Board. This was because increasing

the qualifications for admittees merely would decrease the pool of exam takers

rather than improve the quality of Camtech’s nursing education program. And

stipulating that graduates must take the NCLEX within ninety days of graduation

did not result in any measured success when such a regulation was in place from

2008 through 2010. Finally, the Board found that Camtech’s partnership with a

third party, Assessment Technologies Institute Nursing Education, provided no



                                         9
measurable objective to ensure improvement in its program or NCLEX pass rate.

The NCLEX violation alone was sufficient for the Board to reject Camtech’s state

approval.23 And the Board’s decision that Camtech lacked good cause does not

exceed the bounds of reason under the circumstances. Nor has Camtech presented

any basis to conclude that this decision was arbitrary or capricious.24                    Thus,

Camtech’s second claim is without merit.

       (15) Finally, Camtech claims in its Summary of Argument section and the

header of its Argument section that the Board’s factual findings are erroneous and

not supported by substantial evidence in the record.                 But in the body of its

Argument section, Camtech contends that (1) the Board failed to consider new

evidence of its improved passage rate, (2) Camtech presented evidence to counter

the Board’s bases for withdrawal of state approval, and (3) the Board’s decision

was based on issues not raised during the proceedings.

       (16) In Roca v. E.I. du Pont de Nemours & Co., this Court explained: “It is

well established that ‘to assure consideration of an issue by the court, the appellant

23
   See 24 Del. C. § 1919(b) (requiring the Board to withdraw state approval of a program with a
deficiency unless the program can show good cause to extend the period to correct the specified
deficiency); 24 Del. Admin. C. § 1900-2.5.4.2.2 (providing that the Board may withdraw initial
state approval where a program has three consecutive years of a NCLEX pass rate below eighty
percent).
24
   See Harmony Const., Inc. v. State Dep’t of Transp., 668 A.2d 746, 750 (Del. Ch. 1995)
(“‘Arbitrary and capricious’ is usually ascribed to action which is unreasonable or irrational, or
in that which is unconsidered or which is wilful and not the result of a winnowing or sifting
process. It means action taken without consideration of and in disregard of the facts and
circumstances of the case . . . .” (omission in original) (quoting Willdel Realty v. New Castle
County, 270 A.2d 174, 178 (Del. Ch. 1970))).

                                               10
must both raise it in [the Summary of the Argument] and pursue it in the Argument

portion of the brief.’”25 Supreme Court Rule 14 further provides that a brief must

contain “[a] summary of argument, stating in separate numbered paragraphs the

legal propositions upon which each side relies,” and that the body of the brief shall

state “the merits of the argument.”26 But where “an appellant fails to comply with

these requirements on a particular issue, the appellant has abandoned that issue on

appeal irrespective of how well the issue was preserved at trial.”27 Because the

body of Camtech’s brief differs drastically from the third claim raised in its

Summary of Argument, we need not address that claim because it has been

abandoned.

       NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court is AFFIRMED.

                                                   BY THE COURT:

                                                   /s/ Henry duPont Ridgely
                                                   Justice




25
   Roca v. E.I. du Pont de Nemours & Co., 842 A.2d 1238, 1242 (Del. 2004) (alteration in
original) (quoting Charles A. Wright et al., Federal Practice and Procedure § 3974.1, at 504–08
(1999 & Supp. 2003)).
26
   Del. Supr. Ct. R. 14(b)(iv), (vi)(A)(3).
27
   Roca, 842 A.2d at 1242 (citing Turnbull v. Fink, 644 A.2d 1322, 1324 (Del. 1994); Murphy v.
State, 632 A.2d 1150, 1152 (Del. 1993)); see also Del. Supr. Ct. R. 14(b)(vi)(A)(3) (“The merits
of any argument that is not raised in the body of the opening brief shall be deemed waived and
will not be considered by the Court on appeal.”).

                                              11
