     IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


ADONI HEALTH INSTITUTE,    )
                           )
       Appellant,          )
                           )
    v.                     ) C.A. No. N17A-10-003 JAP
                           )
DELAWARE BOARD OF NURSING, )
                           )
       Appellee.           )
                           )
                           )



    Upon appeal from the Delaware Board of Nursing: AFFIRMED.


                                  OPINION

       This is Adoni Health Institute’s second appeal from the

Delaware State Board of Nursing.1            In 2015, the Board revoked

Adoni’s conditional approval to operate its practical nursing program.

On appeal in 2016, this court reversed all of the Board’s factual

findings except one, and remanded the matter to the Board with

instructions to decide one remaining issue: whether the fact that the

school misstated the duration of its curriculum warranted the



1   Adoni Health Institute was formerly known as “Leads School of Technology.”
Board’s withdrawal of the school’s conditional approval to operate.

On remand, the Board considered evidence that was not previously

considered in its original 2015 hearing, but was related to the

duration of the school’s curriculum. The Board issued a decision in

September 2017, holding that Adoni’s misstatement of its curriculum

length warranted revocation of its approval. Adoni appealed to this

court arguing, among other things, that the Board erred as a matter

of law by reopening the factual record. For the reasons that follow,

the Board’s decision should be AFFIRMED.

                           I.   BACKGROUND

     The underlying facts of this case are described in some detail in

this court’s July 2016 opinion,2 and will be summarized only briefly

here. In 2007, the Board granted Adoni a conditional approval to

operate after determining the school did not qualify for full approval.

The Board identified three deficiencies in Adoni’s program: (1)

substandard NCLEX exam pass rates; (2) inadequate annual reports;

and (3) student complaints.       Adoni implemented an action plan

intended to revamp its program, and in July 2012 the Board


2  Ex. A to Appellant’s Opening Br. at 2-11 (Court’s Opinion dated July 29,
2016).
                                    2
approved Adoni’s action plan. Under the plan, continued approval

for the school to operate hinged on the success of the 2012 cohort on

the NCLEX, that is, approval hinged on only the students who started

in September 2012 and participated in the revamped program. Yet,

when the NCLEX results for the pre-2012 cohort continued to be poor

and the school’s 2014 annual report was deficient, the Board voted

to withdraw its approval. A hearing was held in June 2015. On July

8, 2015, the Board issued a written opinion formally withdrawing

Adoni’s approval.3

     Adoni appealed to the Superior Court. On July 29, 2016, this

court reversed the Board’s decision and all but one of its factual

findings. The court upheld the Board’s finding that Adoni misstated

the duration of its curriculum in its 2014 annual report. The court

remanded the matter, holding in relevant part:

     The court’s decision to uphold the Board’s finding concerning the
     misstated length of the curriculum is not sufficient, at this juncture,
     to sustain the Board’s decision to withdraw [Adoni’s] approval.
     Although the Board found that the faults in [the school’s] 2014
     Annual report, in their entirety, justified withdrawal of [Adoni’s]
     approval, it made no finding that the misstatement of the
     curriculum length alone justified such an extreme measure. The
     court, of course, is not equipped to make that decision, and therefore



3 See Ex. 1 to Declaration of Michael R. Grandy (Board’s July 8, 2015 Opinion
and Order).
                                       3
     the matter will be remanded to the Board for its determination of
     that issue.4

     Following the court’s remand, the Board wrote a letter to Adoni

in October 2016 stating its intent to schedule a hearing “in early

2017,” and also requesting that Adoni produce certain information

related to the school’s curriculum length in preparation for the

hearing. The requested documents included: (1) a list of the students

in each cohort beginning in 2011 through 2016; (2) the date each

student began at the school; (3) the date each student finished at the

school; (4) an indication of how each student separated from the

school; and (5) an indication of whether there were duplicate names

in different cohorts.5 Adoni produced the documents on December

7, 2016.

     On December 19, 2016, the Board’s Practice and Education

Committee reviewed the documents, determined that the documents

demonstrated a long-standing pattern by Adoni of misstating its

curriculum length to the Board and its students, and then

recommended that the Board move forward with withdrawal of the



4 Ex. A to Appellant’s Opening Br. at 48.
5  See Ex. 4 to the Declaration of Michael R. Grandy at 1-2 (Board’s September
13, 2017 Opinion and Order).
                                      4
school’s approval. The Board reviewed the documents and voted to

accept the Committee’s recommendation to withdraw based on the

misstatement of its curriculum length. The Board notified Adoni of

it proposal to withdraw and later scheduled a hearing, which was

postponed several times at the request of Adoni.

       On July 10, 2017, two days before the scheduled hearing, Adoni

filed a motion in limine “to preclude the re-opening of the factual

record on remand as contrary to the directive of the Superior Court.”

The Board, however, denied the motion in limine finding that, “the

Court’s Opinion does not state that the Board is limited to

considering only the record established in the original proceeding,”

and emphasizing that the court “remanded the matter to the Board

for proceedings consistent with the Court’s Opinion.”6

       At the July 12, 2017 hearing, the Board considered the

seventeen exhibits produced by Adoni, consisting of the student

enrollment dates, transcripts, and annual reports. The school also

presented its own evidence. The Board heard testimony from Dr. Ola




6   Id. at 5-6 (emphasis in original).
                                         5
Aliu, the President of the school, and Dr. Lucille Gamberdella, former

Board President who helped Adoni revamp its nursing program.

       The Board issued its decision on September 13, 2017, finding

that Dr. Aliu’s “multiple and varied explanations for the curriculum

length” during his testimony were not credible.7 It also found Dr.

Gamberdella’s testimony did not provide good cause to extend the

school’s conditional approval.8        The Board held that Adoni’s

misstatement about the length of its curriculum in its 2014 annual

report was sufficient justification to withdraw the school’s conditional

approval because it: 1) “reveals that [Adoni] is not operating a

legitimate practical nursing education program;” 2) “exposes that the

school is deceiving its students about when they will become

employable;” 3) “reveals that [Adoni] has repeatedly deceived the

Board about the length of its curriculum in order to obscure the fact

that it’s also deceiving students;” and 4) the misstatement “renders

the Board wholly incapable of determining whether the school is

providing adequate resources . . . .” The school again appealed the




7   Id. at 18.
8   Id. at 21.
                                   6
Board’s decision to the Superior Court; this time on the basis that

the record was improperly expanded on remand.

                                II.   ANALYSIS

       This court reviews the Board’s decision 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.”9          Substantial evidence is “such relevant

evidence that a reasonable mind might accept as adequate to support

a conclusion.”10 But, this court will not weigh evidence, determine

questions of credibility, or make its own factual findings.11 Questions

of law are reviewed de novo.12 And absent an error of law, the Board’s

decision is reviewed for an abuse of discretion.13

       It is well-settled that when the Superior Court remands a matter

to the Board for further proceedings, the Board must follow the

court’s “instruction concerning treatment of an issue on remand even




9    Avallone v. State/Dep’t of Health & Soc. Servs., 14 A.3d 566, 570 (Del. 2011).
10   Delaware Bd. of Nursing v. Gillespie, 41 A.3d 423, 425 (Del. 2012).
11   Id. at 426.
12   Id.
13   Sweeney v. Del. Dep’t of Transp., 55 A.3d 337, 341-42 (Del. 2012).
                                         7
if the [court] has left the ultimate issue undecided.”14 The Delaware

Supreme Court held:

      It is axiomatic that on remand for further proceedings after decision
      by an appellant court, the trial court must proceed with the mandate
      and the law of the case as established on appeal. A trial court must
      implement both the letter and spirit of the mandate, taking into
      account the appellate court’s opinion and the circumstances it
      embraces. Where the reviewing court in its mandate prescribes that
      the court shall proceed in accordance with the opinion of the
      reviewing court, such pronouncement operates to make the opinion
      a part of the mandate as completely as though the opinion had been
      set out at length.15

Although the Board must follow the remand instruction and law of

the case as established by the appellate court, the Board is not

precluded from holding further proceedings to determine outstanding

issues.16 The Board on remand can “make any order or direction in

further progress of the case so long as it is not inconsistent with the

decision of the appellate court, as to any question not settled by the

decision.”17



14  See Coca-Cola Bottling Co. of Shreveport, Inc. v. Coca-Cola Co., 988 F.2d 414,
429 n.19 (3d Cir. 1993).
15 Bankers Trust Co. v. Bethlehem Steel Corp., 761 F.2d 943, 949 (3d Cir.1985)

(internal quotations citations omitted).
16   See Cede & Co. v. Technicolor, Inc., 884 A.2d 26, 38 (Del. 2005) (“Although
the trial court on remand is not constrained by the mandate as to issues not
addressed on appeal, the trial court is required to comply with the appellate
court’s determinations as to all issues expressly or implicitly disposed of in its
decision.”).
17   Siga Techs., Inc. v. PharmAthene, Inc., 132 A.3d 1108, 1129 (Del. 2015), as
corrected (Dec. 28, 2015).
                                        8
       On appeal, Adoni argues that the Board erred as a matter of law

by reopening the factual record because, according to Adoni, the

court’s “mandate required the Board to make a single determination

on a closed factual record.” By opening the record, Adoni argues, the

Board failed to follow the court’s instruction and law of the case. The

only authority cited by Adoni in support of its position are cases

standing for the proposition that on remand the Board must follow

the court’s mandate and make findings consistent with the appellate

court’s rulings. But this legal requirement is not in dispute, and

importantly, it is not inconsistent with the Board’s authority to hold

further proceedings and consider additional evidence necessary to

decide outstanding issues.

       Here, the court’s mandate narrowed the scope of remand to one

outstanding issue:

       One issue remains: the Board found that Leads’ 2014 report was
       deficient because it misstated the duration of its curriculum. The
       remaining matter will be remanded to the Board for its
       determination whether this deficiency alone warrants withdrawal of
       Leads’ approval to operate.18

The court then instructed that the matter was “reversed and

remanded       for   proceedings      consistent”   with   its   opinion—for


18   Ex. A to Appellant’s Opening Br. at 13.
                                        9
determination of whether the misstatement of the curriculum length

warranted revocation of the school’s approval—and the court did not

retain jurisdiction.19 The Board’s hearing that followed in July 2017

was both within the power of the Board and consistent with the

court’s opinion.

       The Board’s consideration of additional evidence related to the

curriculum length and was not inconsistent with the court’s

mandate.        The Board requested that Adoni produce student

enrollment dates and transcripts because it needed “the additional

information in order to understand the program”20—specifically to

clarify its confusion about the length of Adoni’s curriculum.21 The

Board was not considering evidence to determine if there was

sufficient evidence supporting that the curriculum was misstated—

that was already sustained by this court—but rather, the Board

considered evidence to determine if the lone fact that the curriculum

was misstated was enough to warrant the revocation as the court

instructed. Any factual findings based on the seventeen new exhibits




19   Id. at 49.
20   June 2015 Hearing Tr. at 155.
21   See Ex. 4 to the Declaration of Michael R. Grandy at 21.
                                       10
that were added to the record on remand22 were simply related to the

Board’s reasoning that the school’s past conduct warranted

revocation.        The Board’s reasoning was also based on its

determination       that   the   testimonies       from   Dr.   Aliu   and   Dr.

Gamberdella presented by Adoni at the hearing should be given little

to no weight.

       When the case was before the Board the first time in 2015, the

Board had no reason to believe it had to decide whether the

misstatement of Adoni’s curriculum length alone was sufficient for

revocation of the school’s license to operate. In fact, the Board’s

revocation was based on a number of its factual findings. Only after

this court reversed all of its factual findings except one—

misstatement of the curriculum length—was the Board faced with

the necessity of determining whether that fact alone was sufficient to

sustain      the   revocation.     Holding     a    hearing     to   make    that

determination was reasonable.

       The school’s current position that it wanted the Board to take

the case under advisement on remand without conducting a further




22   Id. at 16.
                                      11
review belies Adoni’s later argument that its due process rights were

violated.   Because the Board had no reason to believe it had to

consider such a narrow issue at the 2015 hearing, the parties also

had no reason to argue (nor did they argue) the specific issue of

whether the curriculum misstatement alone warranted revocation.

On remand the parties had the right to comment on that issue before

the Board made its determination. Accordingly, the Board held a

hearing, where it was permitted to consider evidence within the scope

of the remanded issue. The Board indeed answered the question

posed on remand; that withdrawal of Adoni’s conditional approval

was warranted by Adoni’s misstatement of its curriculum length.

Thus, the Board did not disregard the Superior Court’s instruction

on remand, and therefore, did not err as a matter of law.

     Adoni also argues on appeal that the Board violated its due

process rights by adding evidence not included in its original 2015

hearing and by failing to give the school notice and opportunity to

respond to the Board’s new factual findings on the expanded record.

This argument is without merit.       Before the hearing, the Board

informed Adoni that it had “the right to present evidence, to be

represented by counsel, and to appear personally” and that Adoni or
                                 12
its counsel had the “right to examine and cross-examine witnesses.”23

Adoni was well aware of the exhibits that would be submitted at the

hearing; it produced the documents approximately seven months

prior, and then two days before the hearing, filed a motion in limine

trying to suppress them.

      Likewise, Adoni had ample notice of the purpose of the hearing.

The school had ample opportunity to prepare for the hearing and

respond to the evidence, and it indeed took advantage of those

opportunities by obtaining postponements of the hearing on several

occasions, and by calling witnesses.             Adoni presented its own

evidence at the hearing in the form of testimony from Dr. Aliu and

Dr. Gamberdella. That the Board ultimately found this testimony not

credible was within the Board’s power alone, and not this court’s.24

Any alleged prejudice was non-existent or inconsequential as the

school got another bite at the apple, or otherwise had the opportunity

to respond to the evidence at the hearing.




23  App. to Answering Br. at B13.
24  Gillespie, 41 A.3d at 426 (stating that on appeal this court will not weigh
evidence, determine questions of credibility, or make its own factual findings).
                                      13
                        III.   CONCLUSION

      Therefore, for the foregoing reasons, the judgment of the

Delaware Board of Nursing is AFFIRMED.

      IT IS SO ORDERED.




Dated: August 09, 2018
                                      _____________________________
                                       John A. Parkins, Jr., Judge




oc:   Prothonotary

cc:   Matthew F. Boyer, Esquire, Connolly Gallagher LLP,
      Wilmington, Delaware
      Jennifer L. Singh, DAG, Department of Justice, Dover, Delaware




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