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Decision No. 13,691

Appeal of CHARLES R. SHERMAN, from action of the Board of Cooperative Educational Services of Nassau County regarding termination.

Decision No. 13,691

(October 17, 1996)

Brauner, Baron, Rosenzweig & Klein, LLP, attorneys for respondent, David R. Kay, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges respondent's decision to terminate him from its practical nursing program. Petitioner seeks, among other things, a Certificate of Completion from the program and permission to sit for the State Board of Nursing examination. The appeal must be dismissed.

Petitioner entered respondent's practical nursing program in April 1994. The program, which includes both classroom instruction and clinical experiences, prepares students for licensing by the State Board for Nurse Examiners. Students must successfully complete four levels each of classroom and clinical training to graduate and be eligible to take the State licensing exam. Students spend approximately five weeks in class and five weeks in a clinical rotation for each of the four levels. At each level, students must complete the classroom portion first, where they learn skills that will later be applied in the clinical portion of the program.

The classroom and clinical portions of each level are graded separately. Failure to pass any of the major subject areas at the classroom level results in termination from the program. Failure to pass two clinical evaluations results in termination from the program. Students who fail one clinical evaluation may proceed to the next level. However, if a student fails two clinical evaluations even within the same level, he is terminated from the program. He may be readmitted to the program after one such termination, but he must repeat the level and pass to advance to the next level. Students may not be readmitted into the program after two terminations. This readmission policy is included in the clinical grading policy which is distributed to all students on the first day of the program.

Petitioner commenced his Level I clinical rotation in May 1994 and it ended on June 16, 1994. Petitioner failed the Level I clinical rotation. His instructor prepared a written evaluation of his work together with her comments and suggestions for improvements. Petitioner refused to sign the evaluation based on his belief that, according to respondent's policy, he should have been transferred to another instructor midway through the rotation due to the problems he was experiencing.

In September 1994, petitioner began his Level II clinical rotation and failed that rotation also, resulting in his termination from the program. Petitioner disputed his failing grade for the Level II clinical rotation based on his contention that the instructor never counseled him as to his deficiencies.

Pursuant to respondent's readmission policy, petitioner was readmitted and returned to the program in January 1995. Petitioner repeated his Level II clinical rotation and received a passing grade and moved onto Level III.

Petitioner received a failing grade for his Level III clinical and was terminated from the program for a second time.

Petitioner contacted State Assemblywoman Earlene Hill in an attempt to gain readmission to the program. While the parties disagree as to the basis for petitioner's readmittance, he did gain readmittance to the program a second time.

Petitioner repeated his Level III clinical and received a passing grade. In June 1995 petitioner commenced his Level IV clinical rotation. Petitioner received a failing grade from his Level IV clinical instructor for allegedly contaminating a patient and also putting that patient in physical jeopardy and grave danger. Accordingly, petitioner was terminated from the program on July 12, 1995 for the third time. He was due to graduate on July 24, 1995. Petitioner alleges that respondent violated its own procedures and policies in evaluating him and also disputes the merits of respondent's decision to terminate him from the program, resulting in his being denied the opportunity to graduate and sit for the State licensing exam. Petitioner is also seeking to have expunged any reference in his student records referring to him as an unsafe practitioner expunged and "restoration" of his Level IV clinical grade.

The incident which directly lead to petitioner receiving a failing grade in the Level IV clinical rotation involved the care he provided to a patient requiring certain dressings to be changed and treatment administered to the patient's legs. His instructor asserts that petitioner failed to perform basic medical asepsis when he tossed a contaminated pillow case onto a clean bed sheet, thus contaminating the area and putting the patient at risk of infection. Petitioner denies that he placed the contaminated pillow case onto clean bed linens, instead asserting that he placed the pillowcase on top of the cover blanket which was also soiled. He claims that he then asked one of the other students to bring in a clean cover blanket and pillowcase as well as the dirty linen basket. Petitioner asserts that he put the soiled linen in the dirty linen basket and put the clean pillowcase and top cover blanket back on the patient.

Petitioner and the instructor had some discussion following the incident concerning medical asepsis and his lack of understanding of that area. The instructor apparently indicated to petitioner that she was going to speak to another clinical instructor about the incident, and she indicates in her affidavit that she discussed the incident with the lead instructors who confirmed that the incident was grossly inappropriate and constituted grounds for failure.

On July 14, 1995 petitioner attended a meeting with the instructor, Mrs. Polis, his advisor, Ms. Belevich, and the coordinator of the practical nursing program, Ms. Eileen Brown. Petitioner attended with his wife and sister. At the meeting, this specific incident and petitioner's deficiencies were discussed. Respondent maintains that petitioner was terminated from the program because he repeated the same errors in Levels I, II, III and IV clinical rotations and demonstrated that he could not consistently apply the basic skills that are essential to the practice of nursing. In support of its position, respondent cites a letter petitioner wrote to respondent's President, Mr. George Farber, appealing his termination and disputing the events that lead to his failing the Level IV rotation. In the letter, petitioner wrote:

"How can a patient be contaminated by his own blood even if it were true [that he tossed the soiled pillowcase onto the sheet]. The only way contamination would take place is if I took that pillowcase to another patient and put it on their bed with the blood on the pillowcase, and that did not happen."

Respondent counters that petitioner's assertion that a patient cannot be contaminated by his own blood is false. One of petitioner's instructors maintains that a patient can be reinfected by his own bodily fluid if the sterile environment surrounding the wound is contaminated. Respondent asserts that this is a basic concept of medical asepsis that petitioner has failed to master. Respondent contends that petitioner's failure to understand and adhere to basic and fundamental procedures to avoid contamination and maintain hygienic conditions are not minor problems, but rather essential to the determination of petitioner's competence.

Petitioner claims that he never placed the patient in physical jeopardy due to poor medical asepsis and that if he had done so, the instructor would have taken action to correct the situation.

Before reaching the merits, I will address the procedural issue concerning the submission of additional affidavits by both parties. Pursuant to '276.5 of the Commissioner's Regulations, I have accepted the additional affidavit of Eileen P. Brown, dated November 9, 1995 for consideration in this appeal. Respondent objects to the submission of petitioner's affidavit dated November 21, 1995, asserting that petitioner introduces new exhibits and raises new issues that are not relevant to this appeal. The record supports respondent's argument and therefore, I will not consider the material submitted by petitioner in the November 21, 1995 affidavit, to the extent that it is not responsive to respondent's answer and the additional affidavit of Eileen P. Brown, dated November 9, 1995.

Turning to the merits, petitioner asserts that at various times respondent did not follow its published procedures and policies and petitioner further asserts that respondent terminated him from the practical nursing program without an adequate basis. In reviewing cases involving academic standards and termination from educational institutions, the courts have exercised the utmost restraint in applying traditional legal rules. Consistent with the policy of insuring that academic credentials truly reflect the knowledge and skills of the bearer, the courts have indicated that they will intervene if an institution exercises its discretion in an arbitrary or irrational fashion. (See, Tedeschi v. Wagner College, 49 NY2d 652, 658; Matter of Olsson v. Bd. of Higher Educ., 49 NY2d 408, 413-414; Matter of Susan M. v. New York Law School, 76 NY2d 241, 245-246). In addition, it has been suggested that there exists an "implied contract" between the institution and its students such that if the student complies with the terms prescribed by the institution, he will obtain the degree which he sought (Matter of Olsson v. Bd. of Higher Educ. 49 NY2d at p. 414, supra; Matter of Carr v. St. Johns Univ., 17 AD2d 632, 633, aff'd 12 NY2d 802). The essence of the implied contract is that an academic institution must act in good faith in its dealings with its students. In this instance respondent amply fulfilled its obligation to act in good faith in reviewing petitioner's performance. There are no specific procedures constitutionally mandated in cases of academic dismissal. "The very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation." (Board of Curators v. Horowitz, 435 US 78, 89 and 90). The constitution requires only that administrators and teachers in decisionmaking capacities engage in "careful and deliberate review" (id. at 85-87). In this case, while the parties disagree to some extent as to what policies were in place at what time during petitioner's enrollment in the practical nursing program, it is nevertheless clear that petitioner was afforded opportunities to dispute evaluations and terminations that comports with minimal standards of due process. Petitioner received written evaluations at the end of the clinical rotations that he failed, which are at issue in this appeal, and in addition, the record indicates that the instructors at various points discussed petitioner's errors and deficiencies with him and in some cases, had the petitioner sign the anecdotal record. In other instances, petitioner refused to sign the anecdotal record if he disagreed with the instructor's critique. The record supports petitioner's contention that in April 1994 and thereafter, the "Clinical Grading Policy and Expectations" prepared by respondent and signed by petitioner stated, in pertinent part:

If a student is not making satisfactory progress during the early weeks of a rotation, she/he will be advised and an evaluation will be written at this time. A student who is not making satisfactory progress may be assigned to another clinical teacher and an evaluation will be written by each clinical teacher.

Contrary to petitioner's view, however, respondent was not required to assign him to another instructor in the circumstances outlined above. While it is not entirely clear, petitioner also appears to assert that he was not properly apprised of his problem areas during the early weeks of the rotations which he ultimately failed. While some of these instructors appear to have been more diligent than others in reviewing the anecdotal record with petitioner and asking him to sign it, it does not appear after reviewing the record as a whole that petitioner was unaware of his mistakes or that the instructors failed to correct him and provide guidance as necessary. Rather, petitioner appears to be arguing that he did not know before he failed that he would fail. This is partly due to the fact that, as one instructor admitted, mistakes are part of the learning process and instructors allow students to continue after correcting their mistakes so that students can demonstrate that they have learned from their mistakes.

In any event, petitioner was readmitted under respondent's readmission policy following his failure of the Level I and Level II clinical rotations. The record also indicates that petitioner successfully contested his second termination from the program and gained readmittance and a second opportunity to pass the Level III clinical rotation, which he subsequently did.

Following his failure of the Level IV clinical rotation, petitioner was afforded the opportunity to meet with the instructor, his advisor and the program coordinator to discuss his termination and the reasons therefore. Petitioner received a letter dated July 27, 1995 from Ms. Brown summarizing the events leading to his termination. He subsequently contacted Mr. Farber, respondent's president, requesting assistance in overturning his termination. He received a response dated August 3, 1995 from Charles W. Fowler, District Superintendent of the BOCES, stating that he would not be readmitted to the program. Thus, there is no basis in the record to overturn respondent's decision based on inadequate procedural safeguards.

With respect to the merits of his termination, I adopt the standard followed by the courts in reviewing academic dismissal controversies, that such a review should be limited to the question of whether the challenged determination was arbitrary and capricious, irrational, made in bad faith or contrary to constitution or statute (Matter of Susan M. v. New York Law School, 76 NY2d 241; Matter of Olsson v. Board of Higher Education, 49 NY2d 413; James v. Board of Education, 42 NY2d 357, 365). In this case, respondent's decisionmakers and instructors have concluded that petitioner has not mastered fundamental concepts essential to safe nursing practice and therefore should not be conferred with a certificate of completion which would indicate that he has satisfied respondent's course of study. While petitioner and respondent have given differing accounts of the incident which lead to his failure and final termination from the program, petitioner's own statements tend to support respondent's position that petitioner has not mastered the subject matter of the practical nursing program. In evaluating petitioner's contentions, there was no evidence in this record to support petitioner's claim of ill will or improper motivation for respondent's actions. In fact, petitioner received special consideration, in that he was readmitted to the program for a second time, which is normally not permitted. Accordingly, petitioner has failed to demonstrate that respondent's decision lacks a rational basis or that it was substantial departure from accepted academic norms such as to demonstrate that the teachers did not exercise professional judgment (See, Regents of Univer. of Mich. v. Ewing, 474 US 214; Clements v. Nassau County, 835 F2d 1000, 1005, (2nd Cir., 1987).