Topic 6: Clarification of ACOE’s written instructions to an appeal panel to ensure that the panel’s authority to reverse an ACOE decision is not undermined

Excerpt from USDE Staff Analysis

-- The agency needs to clarify its written instructions to an appeal panel to ensure that the panel's authority to reverse an ACOE decision is not undermined. [§602.25(f)]

 Proposed Council Motion:

  That the Council accepts the following revisions to the ACOE Accreditation Manuals in the process for "Appeal of Accreditation Decisions" section for distribution to the community of interest for comment(Wording to be added is underlined.  Wording to be deleted is struckthrough.)

 "Appeal of Accreditation Decisions

 If, following reconsideration, the Council again acts to withdraw, deny or lower the accreditation status of the program, or to continue the program as "accredited with conditions", the chief administrative officer of the institution or program affected may appeal the Council's decision to an ad hoc Appeals Panel.  The appeal must be in writing and filed with the Secretary-Treasurer of the American Optometric Association (AOA) within 30 days of receipt of notice of the Council's action upon reconsideration.

 The institution or program in its appeal shall allege, with necessary documentation, that:

           the Council's ruling is clearly erroneous based on its construction of the facts; or

           the Council's ruling is clearly erroneous based on its interpretation or application of the Accreditation Manual:  Professional Optometric Degree Programs; or

           the Council's decision was arbitrary, capricious, or not supported by substantial evidence in the record on which it took action, or

          the procedures used by ACOE to reach its decision were contrary to ACOE's standards or other established policies and practices, and that procedural error prejudiced ACOE's consideration or

           Both of More than one of the above occurred.

 An institution or program may not appeal to argue that the facts upon which the Council based its action have changed or no longer exist; such an argument must be made to the Council in the reconsideration proceeding.

 Within 30 days of receipt of the Appeal, the president of the AOA shall name three (3) persons to an ad hoc Appeals Panel, and three alternates, no one of whom shall be a member of the Accreditation Council on Optometric Education or a member of the Board of Trustees of the AOA, or have had affiliation with the institution or program filing the appeal or with the accreditation process relating to that institution or program.  The Appeals Panel will be composed of an educator, practitioner, and public member.  Each member of an Appeals Panel shall comply with the Statement of Policy on Conflict of Interest and Guidelines and shall have appropriate training on the ACOE standards, policies and procedures.

 The administrative director of the Accreditation Council on Optometric Education will determine the willingness to serve of the designated principals and alternates and notify the institution or program of the names of the three principals.  If the institution shows good cause why a named principal is unacceptable, an alternate will be selected who is acceptable to both parties.

 The Appeals Panel shall meet within 90 days of the date on which the program was notified of the adverse decision of reconsideration by the Accreditation Council on Optometric Education, or on a date which is mutually acceptable to the institution or program, the Appeals Panel and the Council.  The institution or program may have one (l) representative appear before the Panel to make oral and/or written presentations and to respond to questions from the Panel.  The chair of the Accreditation Council on Optometric Education shall designate a representative to appear before the Appeals Panel to support the decision of the Council and to respond to questions of the Panel.  Either party may be represented by counsel; however, the proceeding shall be conducted on an informal basis.

 The Accreditation Council on Optometric Education is the agency of the profession which has been established to evaluate and accredit optometric educational programs.  As such, its judgment is entitled to great weight and shall not be modified or reversed simply because the Appeals Panel, if it had initially heard the evidence, might reasonably have reached a different result.

The purpose of the Appeals Panel is to review the appeal to determine whether prejudicial error has occurred, not to completely rehear the entire matter.  Therefore, only if the Appeals Panel concludes that the Council could not reasonably have acted as it did, may the Appeals Panel so direct the Council as to the action it considers appropriate.  The purpose of the Appeals Panel is not to evaluate again the educational program; but rather, to determine whether ACOE's decision was arbitrary, capricious, or not supported by substantial evidence in the record on which it took action, or whether the procedures used by ACOE to reach its decision were contrary to ACOE's standards or other established policies and practices, and that procedural error prejudiced ACOE's consideration.  The Appeals Panel does not serve solely in an advisory or procedural role but has and uses its authority to sustain, modify or reverse the decision of the Council or to remand the matter to the Council for further reconsideration with recommendations.  Notice of the decision to the Council shall include a statement of the specific issues on which the decision is based and the specific issues that the Council must address.

 There will be no change in the accreditation classification of the institution or program pending disposition of an appeal.  The Appeals Panel shall forward its findings and conclusions to the Council for action.  In such case, the Council must act in a manner consistent with the Appeals Panel's decisions and/or instructions.  The institution or program will receive written notification of the result of its appeal and the basis for that result.

 The cost related to appeal procedures shall be underwritten by the institution or program and the Council on a shared basis."

Please review the above proposed policy change and send any comments you might have by no later than January 27, 2014 via email to accredit@aoa.org; mail to Joyce Urbeck, ACOE Administrative Director, 243 N. Lindbergh Blvd., Floor 1, St. Louis. MO 63141; or fax to 314/991-4101.

The ACOE will consider the comments received and the adoption of the policy at the ACOE Winter Meeting on February 7-9, 2014.