In Re the Revocation or the Suspension of the Provisional Accreditation of &/Or the Imposition of Probation on Eastwick College

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the

convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the

interest of brevity, portions of any opinion may not have been summarized).

In the Matter of the Revocation or the Suspension of the Provisional Accreditation of and/or the Imposition

of Probation on Eastwick College LPN-to-RN Bridge Program (A-35-14) (074772)

Argued January 6, 2016 -- Decided July 13, 2016

PATTERSON, J., writing for a unanimous Court.

In this appeal, the Court interprets N.J.A.C. 13:37-1.3(c), a regulation promulgated by the State Board of

Nursing (Board) to govern the accreditation of new nursing programs.

The Board prescribes rules and regulations governing the profession of nursing, including the process for

the accreditation of schools of professional nursing. Pursuant to the Board’s process, a provisionally accredited

nursing program must be denied full accreditation unless “[s]eventy-five percent of [the program’s] students from

the first or second graduating class,” who take the licensing examination for registered nurses (the National Council

Licensure Examination for Registered Nurses (NCLEX-RN)), “pass the examination the first time it is taken by the

student.” N.J.A.C. 13:37-1.3(c)(2). The Board’s regulation does not define the term “graduating class,” or

otherwise specify how a nursing program’s “graduating class” should be defined when the pass rate is calculated.

This appeal arose from Eastwick College’s (Eastwick) application for the accreditation of its Licensed

Practical Nurse to Registered Nurse Bridge Program (Bridge Program), a nursing program designed to meet the

needs of licensed professional nurses aspiring to become registered nurses. The Board granted provisional

accreditation to the Bridge Program in 2009, and Eastwick’s first group of students received their associate nursing

degrees in January 2011. Eastwick graduated additional groups of students in April, July and October 2011. When

the examination results of all of the students who graduated from the Bridge Program in 2011 and took the NCLEX-

RN during that year were aggregated, the pass rate was 69.49%, short of the 75% required by N.J.A.C. 13:37-

1.3(c)(2). The Board requested that Eastwick assess the deficiencies in its program and present an action plan to

improve student performance, which Eastwick submitted in July 2012.

Subsequently, 76.29% of the students who graduated from the Bridge Program in 2012 and took the

NCLEX-RN examination for the first time that year passed the examination. Eastwick reported those results to the

Board. The Board, however, recalculated the NCLEX-RN pass rate for the Bridge Program’s “second graduating

class” using a different methodology. The Board included the test results of twenty-four students who graduated

from the Bridge Program in 2011, but did not take the NCLEX-RN examination until 2012. On that basis, the Board

calculated a 71.07% pass rate -- short of the required 75% -- for that class. On June 24, 2013, the Board entered a

Provisional Order of Probation and Denial of Accreditation (Provisional Order), and later voted to implement its

Provisional Order as a Final Order of Probation and Denial of Accreditation (Final Order).

Eastwick appealed, contending that only students who graduated during a specific calendar year and took

the licensing examination in that year should be included in that year’s “graduating class.” Using that methodology,

Eastwick argued that its second graduating class had a pass rate in excess of 75%, and that the Board improperly

declined to accredit its nursing program. The Appellate Division affirmed the Board’s determination denying

accreditation, concluding that the Board’s findings were supported by substantial credible evidence in the record.

The Court granted Eastwick’s petition for certification. 220 N.J. 572 (2015).

HELD: Based on the plain language of N.J.A.C. 13:37-1.3(c)(2), the Board’s construction of its regulation is plainly

unreasonable. Accordingly, the Board improperly denied accreditation to Eastwick’s Bridge Program.

1. An appellate court defers to an agency’s interpretation of a regulation, within the sphere of its authority, unless

the interpretation is “plainly unreasonable.” To apply the “plainly unreasonable” standard, the Court first considers

the words of the statute, affording to those words their ordinary and commonsense meaning. Should the plain

1

language analysis yield more than one plausible interpretation of the regulation, a reviewing court may consider

extrinsic sources, including the long-standing meaning ascribed to the language by the agency charged with its

enforcement. If, however, the regulation’s language is clear, then the interpretative process will end without resort

to extrinsic sources. (pp. 10-12)

2. Guided by those principles, the Court considers the meaning of the term “first or second graduating class” in

N.J.A.C. 13:37-1.3(c)(2). First, in its ordinary and commonsense usage, the term “class,” modified by “graduating,”

describes a group of students who complete a program of studies and receive their diplomas or certificates in a given

calendar year. Second, N.J.A.C. 13:37-1.3(c)(2) is plainly intended to give a new nursing program two

opportunities to succeed. Should the “first graduating class” fail to achieve satisfactory test results, the program’s

administrators may critically evaluate the program and address any deficiencies revealed by the first class’s

examination results. To that end, the Board is presented with two sets of NCLEX-RN results, reflecting the

achievements of distinct groups of students graduating in different years, and tested by the NCLEX-RN examination

administered in the year of graduation. Thus, the clear objective of N.J.A.C. 13:37(c)(2) is furthered if the “second

graduating class” includes only students who have graduated from the program in its second year, following the

program’s opportunity for self-evaluation and improvement. (pp. 12-14)

3. The Board’s interpretation of the term “first or second graduating class” is incongruent with the language of its

regulation. Nothing in N.J.A.C. 13:37-1.3(c)(2) suggests that a “graduating class” is defined by the date of the

licensing examinations that its students choose to take. Moreover, the Board’s interpretation of N.J.A.C. 13:37-

1.3(c)(2) would undermine the objective of giving new nursing programs an opportunity to assess and resolve

deficiencies revealed by the pass rate of the first “graduating class.” (p. 14)

4. The language of N.J.A.C. 13:37-1.3(c)(2) stands in stark contrast to that of the regulations implemented in other

jurisdictions, cited by the Board as evidence of a national practice. The regulations in effect in other jurisdictions

clearly place their states’ nursing programs on notice that for purposes of accreditation, their licensing examination

pass rates will be calculated based on the students’ year of examination, whether or not they graduated in that year.

In contrast, the Board has not incorporated its stated methodology into N.J.A.C. 13:37-1.3(c)(2). (pp. 14-15)

5. In short, notwithstanding the Court’s deferential review of the Board’s construction of its regulation, the Court

discerns no foundation for the Board’s interpretation of the plain language in N.J.A.C. 13:37-1.3(c)(2), and finds the

Board’s interpretation of N.J.A.C. 13:37-1.3(c)(2) to be plainly unreasonable. When the Board calculated the

NCLEX-RN examination pass rate for the “second graduating class” of Eastwick’s Bridge Program, it improperly

included the examination results of students who graduated from the Bridge Program during its first year, 2011, but

did not take the examination until 2012. Under a proper application of N.J.A.C. 13:37-1.3(c)(2), the Board would

have found the “second graduating class” of Eastwick’s Bridge Program to have achieved a NCLEX-RN pass rate

above the required 75%. Therefore, the Board’s Final Order denying accreditation and placing the Bridge Program

on probation was unsupported by substantial credible evidence in the record, and the Board improperly denied

accreditation in accordance with N.J.A.C. 13:37-1.1 to -1.3. (pp. 16-17)

6. In closing, the Court makes no determination as to whether Eastwick would have met the requirements to

maintain accreditation, prescribed in N.J.A.C. 13:37-1.4 to -1.15, after the Board’s Final Order. The Court directs

that on remand, a record regarding the Bridge Program’s status following the Final Order can be developed, and an

appropriate remedy determined. (p. 17)

The judgment of the Appellate Division is REVERSED and the matter is remanded to the State Board of

Nursing for proceedings consistent with this opinion.

CHIEF JUSTICE RABNER, JUSTICES ALIBN and SOLOMON, and JUDGE CUFF (temporarily

assigned) join in JUSTICE PATTERSON’s opinion. JUSTICES LaVECCHIA and FERNANDEZ-VINA did

not participate.

2

SUPREME COURT OF NEW JERSEY

A-35 September Term 2014

074772

IN THE MATTER OF THE

REVOCATION OR THE SUSPENSION

OF THE PROVISIONAL

ACCREDITATION OF AND/OR THE

IMPOSITION OF PROBATION ON

EASTWICK COLLEGE

LPN-TO-RN BRIDGE PROGRAM

APPROVED TO ESTABLISH A

SCHOOL OF REGISTERED NURSING

IN THE STATE OF NEW JERSEY.

Argued January 6, 2016 – Decided July 13, 2016

On certification to the Superior Court,

Appellate Division.

Robert A. Mintz argued the cause for

appellant Eastwick College (McCarter &

English and Schulman & Kissel, attorneys;

Julian A. Schulman, on the briefs).

Olga E. Bradford, Deputy Attorney General,

argued the cause for respondent New Jersey

State Board of Nursing (John J. Hoffman,

Acting Attorney General of New Jersey,

attorney; Andrea M. Silkowitz, Assistant

Attorney General, of counsel).

JUSTICE PATTERSON delivered the opinion of the Court.

In this appeal, the Court interprets N.J.A.C. 13:37-1.3(c),

a regulation promulgated by the State Board of Nursing (Board)

to govern the accreditation of new nursing programs. Pursuant

to the regulation, a provisionally accredited nursing program

must be denied full accreditation unless “[s]eventy-five percent

1

of [the program’s] students from the first or second graduating

class,” who take the licensing examination for registered

nurses, “pass the examination the first time it is taken by the

student.” N.J.A.C. 13:37-1.3(c)(2). A new nursing program that

fails to meet that benchmark is placed on probation and barred

from admitting new students, and may lose its provisional

accreditation.

In 2013, the Board invoked N.J.A.C. 13:37-1.3(c)(2) to deny

accreditation to the Licensed Practical Nurse to Registered

Nurse Bridge Program (Bridge Program), a nursing program

instituted by Eastwick College (Eastwick). Interpreting the

term “graduating class” in N.J.A.C. 13:37-1.3(c)(2) to include

all graduates of the program who took the licensing examination

during a given calendar year, regardless of the year a

particular student graduated from the program,

the Board found that Eastwick’s Bridge Program’s first and

second graduating classes failed to achieve the 75% pass rate

mandated by the regulation.

Eastwick appealed the Board’s determination, challenging

the methodology used by the Board to calculate the pass rate of

the Bridge Program’s graduates on the licensing examination.

Eastwick contended that only students who graduated during a

specific calendar year and took the licensing examination in

that year should be included in that year’s “graduating class.”

2

Using that methodology, Eastwick argued that its second

graduating class had a pass rate in excess of 75%, and that the

Board improperly declined to accredit its nursing program. An

Appellate Division panel affirmed the Board’s determination

denying accreditation.

Based on the plain language of N.J.A.C. 13:37-1.3(c)(2), we

conclude that the Board’s construction of its regulation is

plainly unreasonable, and accordingly hold that the Board

improperly denied accreditation to Eastwick’s Bridge Program.

We therefore reverse the Appellate Division’s judgment affirming

the Board’s action, and remand this matter for further

proceedings.

I.

In accordance with the Legislature’s grant of authority in

the Nurse Practice Act, N.J.S.A. 45:11-24(d)(19), the Board

“prescribe[s] rules and regulations” governing the profession of

nursing. The Board maintains oversight of professional

licensing for nurses; it requires that all applicants for

licensure as registered nurses pass the National Council

Licensure Examination for Registered Nurses (NCLEX-RN).

N.J.A.C. 13:37-2.1(a).

The Board also has established a process for the

accreditation of schools of professional nursing. N.J.S.A.

45:11-24(d)(13); see also N.J.A.C. 13:37-1.1 to -1.18. To

3

establish a nursing program, an educational institution must

file an application pursuant to N.J.A.C. 13:37-1.2. If the

Board grants provisional accreditation to the new nursing

program, the program may admit students. N.J.A.C. 13:37-1.3(a).

The program may retain its provisional status for no more than

two years after the date on which the first class graduates.

N.J.A.C. 13:37-1.3(e).

A provisionally accredited nursing program may not be fully

accredited until it meets the following requirements, set forth

in N.J.A.C. 13:37-1.3(c):

1. The first class has graduated;

2. Seventy-five percent of students from the

first or second graduating class, who have

taken the licensing examination, pass the

examination the first time it is taken by the

student; and

3. A self-study report is submitted to the

Board that shows the nursing program is in

compliance with the requirements of N.J.A.C.

13:37-1.4 through 1.11.

The regulation does not define the term “graduating class,”

or otherwise specify how a nursing program’s “graduating class”

should be defined when the pass rate is calculated. Prior to

its dispute with Eastwick, the Board publicly interpreted that

term in the minutes of a meeting held on June 17, 2008. Those

minutes state: “‘class’ as per N.J.A.C. 13:37-1.3 will be

defined as all the graduates from a nursing program who are

4

first-time NCLEX test takers during a one-year period of time

extending from January 1 through December 31.” The Board,

however, did not amend its regulation to incorporate that

definition, in accordance with the rulemaking procedures of the

Administrative Procedure Act (APA). See N.J.S.A. 52:14B-3, 4,

4.9 to -5.

This case arose from Eastwick’s application for the

accreditation of its Bridge Program, designed to meet the needs

of licensed professional nurses aspiring to become registered

nurses.1 Under the plan devised by Eastwick, a student would

commence his or her studies on one of four alternative dates in

a calendar year and be awarded an Associate Degree in Applied

Science in Nursing at the conclusion of the program. Following

graduation, the student would be eligible to take the NCLEX-RN,

but would not be required by the school to do so.

On September 22, 2009, the Board granted provisional

accreditation to Eastwick’s Bridge Program. Eastwick admitted

its first group of students shortly thereafter. Its first

twenty graduates received their associate nursing degrees in

1 Eastwick, founded in 1968, serves a diverse student population

consisting primarily of older students who have been out of

school and employed for a decade or more. When it sought

accreditation for its Bridge Program, Eastwick had already

achieved and maintained full accreditation for two nursing

programs, its Licensed Practical Nursing Program and its

Bilingual Licensed Practical Nursing Program.

5

January 2011. Nineteen of those twenty students, or 95%, passed

the NCLEX-RN licensing examination. Eastwick graduated

additional groups of students in April, July and October 2011.

When the examination results of all of the students who

graduated from the Bridge Program in 2011 and took the NCLEX-RN

during that year were aggregated, the pass rate was 69.49%,

short of the 75% required by N.J.A.C. 13:37-1.3(c)(2).

On February 27, 2012, the Board requested that Eastwick

assess the deficiencies in its program and present an action

plan to improve student performance. Eastwick evaluated factors

including its admission criteria, its curriculum, and the time

gap between the students’ course work and the NCLEX-RN

examination. It prepared an action plan to improve its program,

and submitted that plan to the Board in July 2012.

The ninety-seven students who graduated from the Bridge

Program in January, April, July and October 2012, and took the

NCLEX-RN examination for the first time that year, fared better

than their predecessors; seventy-four, or 76.29%, of the 2012

graduates passed the examination. Eastwick reported those

results to the Board. The Board, however, recalculated the

NCLEX-RN pass rate for the Bridge Program’s 2012 graduates,

using a different methodology. In the statistics for the Bridge

Program’s “second graduating class,” the Board included the test

results of twenty-four students who graduated from the Bridge

6

Program in 2011, but did not take the NCLEX-RN examination until

2012. On that basis, the Board calculated a 71.07% pass rate --

short of the required 75% -- for that class.

On June 24, 2013, the Board entered a Provisional Order of

Probation and Denial of Accreditation (Provisional Order),

pursuant to N.J.A.C. 13:37-1.3(e). The Board conceded that

Eastwick had met the requirements of N.J.A.C. 13:37-1.3(c)(1)

and (3) by graduating its first class and submitting a self-

study report, but found that Eastwick failed to satisfy the pass

rate requirement of N.J.A.C. 13:37-1.3(c)(2). The Board stated

its intent to deny the Bridge Program accreditation and to place

it on probation, effective thirty business days after entry of

the Board’s Provisional Order, unless Eastwick submitted a

written request to modify or dismiss the Board’s findings.

Eastwick submitted its request for modification or

dismissal. It first argued that the twenty students who

graduated from the Bridge Program in January 2011, whose pass

rate on the NCLEX-RN examination was 95%, should be deemed to

separately constitute a “graduating class.” In the alternative,

Eastwick contended that if the term “graduating class” were

defined based on a calendar year, the “class” should include all

students who graduated and took the NCLEX-RN licensing

examination for the first time during the year of graduation.

7

Eastwick contended that under either methodology, its “first or

second graduating class” achieved the required pass rate.

The Board rejected Eastwick’s arguments. It voted to

implement its Provisional Order as a Final Order of Probation

and Denial of Accreditation (Final Order). The Board found

Eastwick’s method of calculating its “graduating class”

contravened nationally accepted nursing education policies, and

deemed it to be arbitrary, capricious and overly burdensome. In

support of its construction of N.J.A.C. 13:37-1.3(c)(2), the

Board cited the June 17, 2008 minutes of its public meeting, in

which it provided its definition of “class.”

Eastwick appealed the Board’s Final Order. An Appellate

Division panel affirmed the Board’s determination, concluding

that the Board’s findings were supported by substantial credible

evidence in the record.

We granted Eastwick’s petition for certification. 220 N.J.

572 (2015).

II.

Eastwick contends that it met N.J.A.C. 13:37-1.3(c)(2)’s

requirements because the twenty students who graduated from the

Program in January 2011 had a 95% pass rate on the NCLEX-RN

licensing examination. Alternatively, Eastwick urges the Court

to define a “graduating class” to include all graduates of a

nursing program in a particular year who took the examination in

8

that same year. Eastwick argues that the Board’s construction

of N.J.A.C. 13:37-1.3(c)(2) is plainly unreasonable, and that

the Board’s determination was arbitrary and capricious. It

contends that, to the extent that the Board relies on the

definition of “class” in the minutes of its June 17, 2008 public

meeting, the Board’s action constitutes improper rulemaking

contrary to the APA, under this Court’s decision in Metromedia,

Inc. v. Director, Division of Taxation, 97 N.J. 313, 331-32

(1984).

The Board counters that the Court must defer to an agency’s

interpretation of its regulation. It construes the term

“graduating class” in N.J.A.C. 13:37-1.3(c)(2) to include any

graduate of a nursing program, no matter when he or she

graduated, who took the NCLEX-RN licensing examination for the

first time in a particular year. The Board cites the minutes of

its June 17, 2008 public meeting as evidence that its

methodology in applying N.J.A.C. 13:37-1.3(c)(2) was publicly

disclosed and states that it did not engage in improper

rulemaking. It defines Eastwick’s “first graduating class” to

include all of its graduates who sat for the examination in

2011, and its “second graduating class” to include all of its

graduates -- including students who graduated in 2011 -- who

took the NCLEX-RN examination for the first time in 2012. The

Board argues that when Eastwick’s first and second “graduating

9

classes” are defined accordingly, neither the first nor the

second graduating class of Eastwick’s Bridge Program achieved

the required pass rate on the NCLEX-RN examination.

III.

As a final determination of an administrative agency, the

Board’s Final Order is entitled to substantial deference. Univ.

Cottage Club of Princeton N.J. Corp. v. N.J. Dep’t of Envtl.

Prot., 191 N.J. 38, 48 (2007) (citing In re Taylor, 158 N.J.

644, 656 (1999)). An appellate court will not reverse an

agency’s final decision unless the decision is “arbitrary,

capricious, or unreasonable,” the determination “violate[s]

express or implied legislative policies,” the agency’s action

offends the United States Constitution or the State

Constitution, or “the findings on which [the decision] was based

were not supported by substantial, credible evidence in the

record.” Ibid.; see also N.J. Soc’y for Prevention of Cruelty

to Animals v. N.J. Dep’t of Agric., 196 N.J. 366, 385 (2008)

(quoting In re Petition for Rulemaking, 117 N.J. 311, 325

(1989)).

An appellate court “defer[s] to an agency’s interpretation

of . . . [a] regulation, within the sphere of [its] authority,

unless the interpretation is ‘plainly unreasonable.’” U.S.

Bank, N.A. v. Hough, 210 N.J. 187, 200 (2012) (second and third

alteration in original) (quoting In re Election Law Enf’t Comm’n

10

Advisory Op. No. 01-2008, 201 N.J. 254, 262 (2010)); see also

Acoli v. N.J. State Parole Bd., 224 N.J. 213, 229 (2016). That

principle derives “from the understanding that a state agency

brings experience and specialized knowledge to its task of

administering and regulating a legislative enactment within its

field of expertise.” In re Election Law Enf’t, supra, 201 N.J.

at 262. Accordingly, it is “a rare day when an agency cannot

give a plausible interpretation for one of its own regulations.”

U.S. Bank, N.A., supra, 210 N.J. at 203-04.

To apply the “plainly unreasonable” standard, we first

consider the words of the statute, affording to those words

“their ordinary and commonsense meaning.” In re Election Law

Enf’t, supra, 201 N.J. at 263 (quoting State v. Gelman, 195 N.J.

475, 482 (2008)). In that inquiry, “[w]e interpret a regulation

in the same manner that we would interpret a statute.” U.S.

Bank, N.A., supra, 210 N.J. at 199 (citing Bedford v. Riello,

195 N.J. 210, 221-22 (2008)). The “paramount goal” is to

determine the drafter’s intent, and “[g]enerally, the drafter’s

intent is found in the actual language of the enactment.” Ibid.

We do not “rearrange the wording of the regulation, if it is

otherwise unambiguous, or engage in conjecture that will subvert

its plain meaning.” Ibid.

Should the plain language analysis yield more than one

plausible interpretation of the regulation, a reviewing court

11

may consider extrinsic sources, including “the long-standing

meaning ascribed to the language by the agency charged with its

enforcement.” Bedford, supra, 195 N.J. at 222 (citing Malone v.

Fender, 80 N.J. 129, 137-38 (1979)). If, however, the

regulation’s “language is clear, then the interpretative process

will end without resort to extrinsic sources.” Ibid.; see also

U.S. Bank, N.A., supra, 210 N.J. at 199 (quoting Bedford, supra,

195 N.J. at 222); In re Election Law Enf’t, supra, 201 N.J. at

263 (citing DiProspero v. Penn, 183 N.J. 477, 492-93 (2005));

Lozano v. Frank DeLuca Constr., 178 N.J. 513, 522 (2004). Our

task is to “construe the regulation as written.” U.S. Bank,

N.A., supra, 210 N.J. at 199.

Guided by those principles, we consider the meaning of the

term “first or second graduating class” in N.J.A.C. 13:37-

1.3(c)(2). That provision uses the term to require, as a

condition of full accreditation, that 75% of students from the

“first or second graduating class,” who have taken the licensing

examination, pass the examination the first time it is taken by

the student. N.J.A.C. 13:37-1.3(c)(2).

The regulation’s terminology conveys two important

concepts. First, in its “ordinary and commonsense” usage, the

term “class” does not denote a cohort of students who have

graduated from a professional school in different years, but

have taken a licensing examination in the same calendar year.

12

Instead, the term “class,” modified by “graduating,” describes a

group of students who complete a program of studies and receive

their diplomas or certificates in a given calendar year.2

Second, N.J.A.C. 13:37-1.3(c)(2) is plainly intended to

give a new nursing program two opportunities to succeed. The

program may promptly achieve full accreditation if its “first

graduating class” achieves satisfactory test results. N.J.A.C.

13:37-1.3(c)(2). Should that class fall short of the mark,

however, the program’s administrators may critically evaluate

the program and address any deficiencies revealed by the first

class’s examination results, thereby restoring the program’s

opportunity to achieve full accreditation. To that end, the

Board is presented with two sets of NCLEX-RN results, reflecting

the achievements of distinct groups of students graduating in

different years, and tested by the NCLEX-RN examination

administered in the year of graduation. Thus, the clear

objective of N.J.A.C. 13:37(c)(2) is furthered if the “second

graduating class” includes only students who have graduated from

2 We do not concur with Eastwick’s argument that each of the four

small groups of students who receive their degrees in a specific

year should be considered a separate “graduating class” for

purposes of N.J.A.C. 13:37-1.3(c)(2). Under that construction

of the regulation, the Board would be compelled to accredit a

nursing program based on very limited data, and a deficient

program would have no meaningful opportunity to improve its

curriculum for the benefit of a second “graduating class.”

13

the program in its second year, following the program’s

opportunity for self-evaluation and improvement.

The Board’s interpretation of the term “first or second

graduating class” is simply incongruent with the language of its

regulation. The Board could have advised nursing programs in

N.J.A.C. 13:37-1.3(c)(2) that their pass rates would be

calculated based on students’ examination dates, not their

graduation dates, but did not do so. Nothing in N.J.A.C. 13:37-

1.3(c)(2) suggests that a “graduating class” is defined by the

date of the licensing examinations that its students choose to

take. Indeed, we cannot, after the fact, “insert qualifications

into a . . . regulation that are not evident by the enactment’s

language.” U.S. Bank, N.A., supra, 210 N.J. at 202. Our task

is to apply that regulation based upon its express terms.

Moreover, the Board’s interpretation of N.J.A.C. 13:37-

1.3(c)(2) would undermine the objective of giving new nursing

programs an opportunity to assess and resolve deficiencies

revealed by the pass rate of the first “graduating class.” If

examination results from a first graduating class are combined

with those of the second, a program’s efforts to improve are not

accurately measured.

The language of N.J.A.C. 13:37-1.3(c)(2) stands in stark

contrast to that of the regulations implemented in other

jurisdictions, cited by the Board as evidence of a national

14

practice. Pennsylvania’s regulation, for example, uses the term

“first-time examinees” to define the group of students whose

examination results are used to calculate a nursing program’s

pass rate. See 49 Pa. Code § 21.162b(3) (requiring “a minimum

pass rate of 80% or more of its first-time examinees during an

examination year”). Connecticut’s regulation similarly tethers

the pass rate to the timing of the licensing examination. See

Conn. Agencies Regs. § 20-90-47(b)(2)(A) (requiring “an average

passing rate of at least 80% of students taking the licensing

examination . . . upon their first attempt after graduation, as

reported from May 1 to April 30”). The regulations in effect in

these jurisdictions clearly place their states’ nursing programs

on notice that for purposes of accreditation, their licensing

examination pass rates will be calculated based on the students’

year of examination, whether or not they graduated in that year.

In contrast, the Board has not incorporated its stated

methodology into N.J.A.C. 13:37-1.3(c)(2).3

3 Both of the prior versions of N.J.A.C. 13:37-1.3(c)(2) used the

term “graduating class.” See N.J.A.C. 13:37-1.2(c)(3) (1985)

(assigning new nursing programs provisional accreditation status

“until the licensing examination results of the first graduating

class are received and evaluated by the Board”); N.J.A.C. 13:37-

1.3(b)(2) (2003) (requiring, as a condition of accreditation,

that “[e]ighty percent of students from the first graduating

class, who have taken the licensing examination, pass the first

time they take it”).

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In short, notwithstanding our deferential review of the

Board’s construction of its regulation, we discern no foundation

for its interpretation of the plain language in N.J.A.C. 13:37-

1.3(c)(2), and find its interpretation of N.J.A.C. 13:37-

1.3(c)(2) to be plainly unreasonable.

Accordingly, when the Board calculated the NCLEX-RN

examination pass rate for the “second graduating class” of

Eastwick’s Bridge Program, it improperly included the

examination results of the twenty-four students who graduated

from the Bridge Program during its first year, 2011, but did not

take the examination until 2012. Based on the express terms of

N.J.A.C. 13:37-1.3(c)(2), the Board should have calculated the

pass rate for the Bridge Program’s “second graduating class”

based on the NCLEX-RN examination results of the ninety-seven

students who graduated in 2012, and took the examination for the

first time in that calendar year. The record indicates that

seventy-four of those students, or 76.29%, passed the NCLEX-RN

examination. Under a proper application of N.J.A.C. 13:37-

1.3(c)(2), the Board would have found the “second graduating

class” of Eastwick’s Bridge Program to have achieved a NCLEX-RN

pass rate above the required 75%.

Therefore, we find that the Board’s September 27, 2013

Final Order denying accreditation and placing the Bridge Program

on probation was unsupported by substantial credible evidence in

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the record, and that the Board improperly denied accreditation

in accordance with N.J.A.C. 13:37-1.1 to -1.3. We reverse the

Appellate Division’s judgment affirming the Final Order, and

remand this matter to the Board. Because we base our ruling on

the plain language of N.J.A.C. 13:37-1.3(c)(2), we do not reach

the question of whether the Board’s definition of “class,” set

forth in the minutes of the Board’s June 17, 2008 public

meeting, constituted improper rulemaking under Metromedia,

supra, 97 N.J. at 331-32.

We note that our decision is based solely on the record

that was before the Board when it issued its Final Order. We

make no determination as to whether Eastwick would have met the

requirements to maintain accreditation, prescribed in N.J.A.C.

13:37-1.4 to -1.15, after the Board’s Final Order. On remand, a

record regarding the Bridge Program’s status following the Final

Order can be developed, and an appropriate remedy determined.

IV.

The judgment of the Appellate Division is reversed, and

this matter is remanded to the Board for proceedings in

accordance with this opinion.

CHIEF JUSTICE RABNER, JUSTICES ALIBN and SOLOMON, and JUDGE

CUFF (temporarily assigned) join in JUSTICE PATTERSON’s opinion.

JUSTICES LaVECCHIA and FERNANDEZ-VINA did not participate.

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