POLICY #38
ARBITRATION
This Arbitration Policy of the Accreditation Commission for Education in Nursing (ACEN) shall apply only to an adverse action by the ACEN Board of Commissioners that has been fully and finally determined by a written decision of the Appeal Committee pursuant to Policy #10 Appeal Process and Submission of New Financial Information Subsequent to Adverse Action.
As a condition of seeking initial accreditation or continuing accreditation with the ACEN, each nursing program seeking initial accreditation or continuing accreditation consents to resolving disputes regarding a decision through the Appeal Committee in accordance with the arbitration procedures set forth in this policy as required by 20 U.S.C. §1099b(e) and 34 C.F.R. §602.20(e).
Arbitration
- Governing Law
a. The arbitration process in this Policy shall be governed by the Federal Arbitration Act, 9 U.S.C. §1-16 (Act), which shall be deemed to pre-empt any State arbitration provisions that may otherwise be applicable.
- Jurisdiction of the Arbitrators
a. The arbitrators shall have jurisdiction to determine whether the final decision of the Appeal Committee was rightly decided and to make all rulings necessary and incidental thereto. The arbitrators shall have no jurisdiction or authority to enter a recommendation for monetary damages. The recommendation of the arbitrators shall be limited to recommending affirmation or reversal of the decision of the Appeal Committee and the material reasons.
- Recommendation by the Arbitrators
a. All recommendations by the arbitrators shall be by majority vote.
Arbitrators
- Roster of Arbitrators
a. The ACEN shall maintain a roster of arbitrators. An arbitrator may be nominated by any governing organization/nursing program (whether accredited by the ACEN, an ACEN candidate for accreditation, or by self-nomination). There shall be no limit to the number of persons who may be nominated by any entity, and there shall be no limit to the number of arbitrators on the roster, though the ACEN will endeavor to have at least a total of 12 persons listed on the roster. Arbitrators will be composed of nurse educators/clinicians, nurse clinicians/practitioners, administrators, and the public, and may not include current ACEN Board of Commissioners members or current ACEN appeal committee members. The term an arbitrator may remain on the roster is five years unless otherwise removed or resigned. The term of an arbitrator may be renewed, and there is no limit to the number of terms an arbitrator may serve.
- Qualifications of Arbitrators
a. An arbitrator must be a nurse educator/clinician, nurse clinician/practitioner, administrator, or a representative of the public.
i. For an arbitrator serving as a nurse educator/clinician, the majority of the person’s career experience must be as a nurse educator/clinician with a minimum of 10 years’ experience in nursing education.
ii. For an arbitrator serving as a nurse clinician/practitioner, the majority of the person’s career experience must be as a nurse clinician/practitioner with a minimum of 10 years’ experience in nursing service.
iii. For an arbitrator serving as an administrator, the person must have five years’ experience providing administrative oversight for a nursing education program.
iv. For an arbitrator serving as a representative of the public the person may have experience from inside or outside higher education.
- If a representative is from inside higher education, then the representative may be currently working at a governing organization with a nursing program; however, the representative must be from outside the nursing profession and from outside the accreditation of nursing programs.
- If a representative is from outside higher education, then the representative may be currently working at a governing organization associated with nursing; however, the representative must be from outside the nursing profession and from outside the accreditation of nursing programs.
- An arbitrator need not be a lawyer or have legal training; however, both are considered desired qualifications.
- An arbitrator need not have any formal training in arbitration; however, such training is considered a desired qualification.
- No current or previous employee of the ACEN may serve as an arbitrator.
- No current or previous employee of any nursing education accrediting agency, the American Association of Colleges of Nursing, or the National League for Nursing may serve as an arbitrator.
- Acceptance of Arbitrators
a. Annually, there will be a public announcement seeking volunteers to serve as nurse educator/clinician arbitrators, nurse clinician/practitioner arbitrators, administrator arbitrators, and public arbitrators. All volunteers will be added to the list of arbitrators upon self- attestation that the volunteer meets the qualifications to serve as an arbitrator.
Commencement of an Arbitration Proceeding
- Notice of Arbitration, Deposit, and Payment of Expenses
a. The governing organization of the nursing program shall submit a notice of arbitration in writing by its Chief Executive Officer to the ACEN Chief Executive Officer by email within 10 business days of the governing organization’s/nursing program’s receipt of the written final accreditation decision of the Appeal Committee. The original notice of arbitration shall be sent by overnight delivery with proof of receipt to the ACEN Chief Executive Officer at the same time it is sent by email. The original notice of arbitration shall be accompanied by a non-refundable check in accordance with the fee schedule as a deposit payable to the ACEN for expenses such as the travel, lodging, meals, and venue charges incurred by the arbitrators and the ACEN in convening and pursuing the arbitration; credit cards are not an acceptable form of payment. The governing organization/nursing program submitting the matter to arbitration is responsible for all expenses of the arbitration, including representation and counsel fees incurred by the ACEN. If the expenses incurred exceed the deposit, the governing organization/nursing program will be assessed the additional amount. The arbitrators shall submit expense vouchers to the ACEN in the form and manner prescribed by the ACEN for the reimbursement of reasonable expenses incurred.
- Contents of the Notice
a. The notice of arbitration need not be in any particular form, but it must clearly identify the decision of the Appeal Committee and state that the governing organization/nursing program submits the decision of the Appeal Committee to arbitration in accordance with this policy. The notice need not specify the basis for the arbitration. The notice of arbitration is sufficient to challenge the decision of the Appeal Committee on all legal grounds.
- Effect of the Notice
a. A timely notice of arbitration in accordance with this policy shall have the immediate effect of continuing the nursing program in accreditation with the ACEN in the same status as it was prior to the Board of Commissioners’ adverse action until the arbitration recommendation is rendered. The ACEN shall provide notice to any constituencies previously noticed of the result of the appeal that a timely notice of arbitration has been filed and the effect thereof.
Selection of the Arbitrators
- Number and Method of Selection
a. An arbitration proceeding under this policy shall require three qualified arbitrators.
i. When ACEN serves as the Title IV gatekeeper for the governing organization/nursing program then the selection of the arbitrators is from nurse educators/clinician arbitrators, administrator arbitrators, and public arbitrators.
ii. When ACEN does not serve as the Title IV gatekeeper for the governing organization/nursing program then the selection of the arbitrators if from nurse educators/clinician arbitrators, clinician/practitioner arbitrators, and public arbitrators.
b. No arbitrator who resides in the same state as the main campus of the nursing program or who has a conflict of interest with the governing organization/nursing program in accordance with ACEN Policy #1 Code of Conduct and Conflict of Interest may be eligible for selection as an arbitrator.
c. Upon receipt of the Notice of Arbitration, the ACEN Chief Executive Officer shall provide to the Chief Executive Officer of the nursing program’s governing organization the names of eligible arbitrators from the current Roster of Arbitrators.
d. The Chief Executive Officer of the nursing program’s governing organization shall select one arbitrator from any category on the current Roster of Arbitrators within five business days of receipt of the Roster and shall so notify the ACEN Chief Executive Officer in writing within one business day of making a selection.
f. The ACEN Chief Executive Officer shall select one arbitrator from any category on the current Roster of Arbitrators and shall notify the chief executive officer of the nursing program’s governing organization in writing within five business days of the nursing program’s selection.
g. The ACEN Chief Executive Officer shall notify the selected arbitrators in writing with a copy of the selection letter to the Chief Executive Officer of the nursing program’s governing organization. These two arbitrators shall confer and select one additional arbitrator from any category on the current Roster of Arbitrators within five business days and shall so notify the ACEN Chief Executive Officer in writing within one business day of making a selection. The ACEN Chief Executive Officer shall notify the selected arbitrator within five business days in writing with a copy of the selection letter to the chief executive officer of the nursing program’s governing organization.
- Conflict of Interest and Recusal
a. The selected arbitrators shall be governed by the conflict of interest provisions of ACEN Policy #1 Code of Conduct and Conflict of Interest. The ACEN Chief Executive Officer shall provide the selected arbitrators with a copy of Policy #1 and request that any selected arbitrator who has a conflict of interest recuse themselves and notify the ACEN Chief Executive Officer. If a selected arbitrator discovers a conflict after the convening of the arbitration, such an arbitrator shall recuse themselves from further proceedings.
b. In the instance of a selected arbitrator being unable to serve or continue serving for any reason, the entity originally selecting such arbitrator shall select a replacement in accordance with this policy.
- Challenge of an Arbitrator
a. Either the ACEN or the governing organization/nursing program may challenge the qualifications of any arbitrator, and unless the challenged arbitrator steps down, the remaining arbitrators must rule on the challenge.
- Convening the Arbitration and Administrative Conference
a. Once three qualified arbitrators without a conflict of interest have been selected, it is the responsibility of the arbitrators to convene within a reasonable period of time by conference call, videoconference, or in person to select a Chair, who shall preside at all further proceedings, ensure this policy is complied with, and establish the time and manner of the arbitration proceedings within the procedures set forth in this policy. All actionable dates under this policy thereafter are calculated from the date the Chair is selected. At the request of any party or upon the arbitrators’ own initiative, the arbitrators may conduct an administrative conference with the parties to address timing and any other administrative matters that may coincide with the convening of the arbitration.
- Communications with Arbitrators
a. No party and no one acting on behalf of any party shall communicate ex parte with any arbitrator. All communications with the arbitrators shall be with all three and shall simultaneously be provided to the other party. It shall not be deemed an ex parte communication forbidden by this policy for staff of the ACEN to discuss logistical and procedural matters with arbitrators, including (but not limited to) planning the venue of proceedings, travel, lodging, meals, and expense reimbursement.
- Confidentiality
a. The arbitrators shall maintain as confidential all information provided to them by either party. After the conclusion of the arbitration, the arbitrators shall destroy and not retain any documents in whatever form provided to them during the arbitration.
Arbitration Procedures
- Time for Completion of the Arbitration
a. The arbitration proceedings shall be completed within 90 business days of the date of the convening of the arbitration. The completion of the proceedings shall be evidenced by the written recommendation of the arbitrators.
- Record on Review
a. The review of the decision of the Appeal Committee by the arbitrators shall be on the record presented to the Appeal Committee, including the Administrative Record, the Briefs of the Parties, the Transcripts of the Appeal Hearing, any pre-hearing proceedings, any additional evidence submitted to the Appeal Committee, any rulings thereon, and the decision of the Appeal Committee. It shall be the duty of the ACEN Chief Executive Officer, assisted by the Chair of the Appeal Committee, to assemble the Record on Review and submit it to the arbitrators and to the representatives of the parties within 30 business days of the convening of the arbitration. The Record on Review shall be submitted electronically.
- Discovery and the Submission of Additional Evidence
a. There shall be no discovery in the arbitration proceeding. There shall not be any additional evidence submitted to the arbitrators beyond the Record on Review.
- Standard of Review
a. The governing organization/nursing program shall bear the burden of persuading the arbitrators that the decision of the Appeal Committee is clearly erroneous in accordance with the standards of Policy #10 and in accordance with applicable law.
- Location and Manner of the Proceedings
a. The arbitration proceedings shall take place in the Atlanta, Georgia, Metropolitan Area at a venue arranged for by the ACEN in consultation with the arbitrators and the parties. With the unanimous consent of the parties and the arbitrators, the proceedings may take place at another venue within or outside the Atlanta, Georgia, Metropolitan Area; however, financial arrangements must be made and agreed to in advance. With the unanimous consent of the parties and the arbitrators, some or all of the proceedings may take place remotely by telephonic or other electronic means so long as all parties and all arbitrators can participate equally.
- Representation
a. Any party may participate pro se without representation or by counsel or any other representative of the party’s choosing unless such choice is prohibited by applicable law. A party intending to be so represented shall notify the other party and the arbitrators of the name, telephone number, physical address, and email address of the representative at least seven business days prior to the date set for the hearing at which that person is first to appear. When such a representative responds for a party, notice is deemed to have been given.
- Preliminary Hearing
a. At the discretion of the arbitrators a preliminary hearing may be scheduled and if deemed necessary, it should be scheduled as soon as practicable. The parties should be invited to attend along with their representatives. The parties and the arbitrators should be prepared to discuss and establish a procedure for the conduct of the arbitration proceedings within the procedures set forth in this policy.
- Briefs
a. The governing organization/nursing program initiating the arbitration shall submit its principal brief within 14 business days of receipt of the Record on Review. The ACEN shall submit its response brief within 14 business days of receipt of the brief of the governing organization/nursing program. The arbitrators may request briefs from the parties on such other matters and at such times as they may determine. All briefs shall be submitted electronically as determined by the ACEN Chief Executive Officer (e.g., email, flash drive, cloud access).
- Hearing
a. The hearing shall take place in accordance with the arrangements outlined in point 5e. The hearing on the issues raised by the parties to the arbitration shall be heard by the arbitrators at a date scheduled by the arbitrators. The arbitrators may request arguments from the parties on such other matters and at such times as they may determine.
- Attendance at the Proceedings
a. All arbitration proceedings are private and are not open to the public. Any person having a direct interest in the arbitration is entitled to attend the hearings. The arbitrators shall have the discretion to determine the propriety of the attendance of any person other than the parties and their representatives.
- Stenographic and Other Recordings
a. Any party desiring a stenographic record shall make arrangements directly with a stenographer and shall notify the other parties of these arrangements at least three business days in advance of the hearing. The requesting party(ies) shall pay the cost of the record. No other means of recording the proceedings are permitted absent the agreement of the parties or the direction of the arbitrators.
- Waiver
a. Any party, who proceeds with the arbitration after knowledge that any provision or requirement of this policy has not been complied with and fails to object in writing, shall be deemed to have waived the objection.
- Form and Delivery of the Recommendation
a. The recommendation shall be signed by a majority of the arbitrators and shall be executed in the form and manner required by the Federal Arbitration Act. The recommendation shall state the reasons for the recommendation and shall rule on the substantial claims of the parties. The recommendation of the arbitrators shall be limited to recommending affirmance or reversal of the decision of the Appeal Committee, stating the material reasons. The recommendation shall be delivered electronically to the email addresses of the parties and to their representatives.
- Acceptance of the Recommendation
a. The recommendation of the arbitrators shall be deemed accepted if neither party notifies the other in writing by 5:00 p.m. Eastern Time 10 calendar days from delivery of the recommendation as provided in point 5m above. If the recommendation is accepted by ACEN and the governing organization/nursing program, the ACEN Board of Commissioners shall make the recommendation of the arbitrators its final decision.
