Hyunsook Highland v. Virginia Board of Nursing

COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Chief Judge Decker, Judges Humphreys and Russell
Argued at Leesburg, Virginia
HYUNSOOK HIGHLAND
MEMORANDUM OPINION* BY
v. Record No. 0368-19-4 JUDGE ROBERT J. HUMPHREYS
NOVEMBER 19, 2019
VIRGINIA BOARD OF NURSING
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Richard E. Gardiner, Judge
Howard L. Highland for appellant.
Charis A. Mitchell, Assistant Attorney General (Mark R. Herring,
Attorney General; Allyson K. Tysinger, Senior Assistant Attorney
General, on brief), for appellee.
On August 14, 2017, appellant Hyunsook Highland (“Highland”) submitted an
application to the Virginia Board of Nursing (“Board”) for licensure by endorsement to practice
practical nursing. The Board held an informal conference before a Special Conference
Committee on February 20, 2018. The Committee denied Highland’s application. Highland
appealed the Committee’s decision, and the Committee’s order was vacated. Pursuant to the
Virginia Administrative Process Act (“VAPA”), Code § 2.2-4020, the Board held a formal
administrative hearing on May 14, 2018, to determine if Highland satisfied the statutory
requirements to receive a practical nursing license.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
At that hearing, Highland submitted evidence and testimony that she completed a
registered nursing (“R.N.”)1 education program at Chonnam National University in Korea and
was a licensed practical nurse (“L.P.N.”) in New York. However, after the formal hearing, the
Board denied her application. Specifically, the Board found that Highland had “not completed
an approved practical nursing program as required by [the] laws and regulations of [the] Virginia
Board of Nursing,” nor had she provided “evidence from the [Commission on Graduates of
Foreign Nursing Schools (“CGFNS”)] that the education program she graduated from in Korea
was comparable to those required by the Commonwealth.”
Highland appealed the Board’s decision to the Circuit Court of Fairfax County (“circuit
court”). After argument, the circuit court held that the Board committed no error of law in
denying Highland’s application. Thereafter, Highland filed a motion for reconsideration. The
circuit court suspended its order to reconsider the appeal. After reconsideration, the circuit court
denied the motion in part and granted it in part, remanding to the Board to decide whether
Highland was eligible for licensure pursuant to 18 VAC 90-19-120(A)(2)(a). Highland now
appeals that decision to this Court.
I. BACKGROUND
A. Application and Hearings Before the Board
As part of her application for licensure by endorsement as a practical nurse, Highland
submitted a validation from CGFNS that she was licensed as a registered nurse in Korea in 1975.
Her application also contained reference to a New York L.P.N. license that Highland obtained in
2017. Additionally, she submitted a letter from CGFNS dated September 12, 2017, that verified
the authenticity of documents Highland submitted to that organization. Most notably, however,
1
The Code uses “registered” and “professional” nursing interchangeably. See, e.g., Code
§ 54.1-3000. Those terms, however, are distinguishable from practical nursing. Id.
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the letter concluded that it did “NOT provide an evaluation of [Highland’s] education and
licenses, or a comparison to U.S. standards of education and licensure for their profession.”
At the formal hearing before the Board on May 14, 2018, Highland testified that she
sought a New York L.P.N. license not because she planned to move to New York, but because
she thought getting her license there would be the “easiest” way to get her license in a different
state. To obtain an L.P.N. license in New York, Highland submitted verification of her R.N.
education “using CGFNS’s Credential Verification Service for New York State,” which New
York accepted to grant her an L.P.N. license.
Highland also testified that she had not practiced as a “hands on” nurse since 1976,
except for taking care of her family and friends. In her testimony and the outline of her
argument presented to the Board, Highland argued that her R.N. education met the educational
requirements of 18 VAC 90-19-120(A)(2) and 18 VAC 90-19-130 because she “utilized the
CGFNS Credential Verification Service for New York State,” obligating the Board to determine
that she met the educational requirements in the Commonwealth. However, at least one Board
member was concerned that if granted a license, Highland would not stay within the practice
limitations of an L.P.N. because she “know[s] a lot of R.N. information.”
After the formal hearing, the Board issued an order containing six findings of fact and a
conclusion of law. Among other things, the Board found that “Ms. Highland has not completed
an approved practical nursing program as required by [the] laws and regulations of [the] Virginia
Board of Nursing.” Additionally, it found that “she did not present evidence from the CGFNS
that the education program she graduated from in Korea was comparable to those required by the
Commonwealth.” From these findings, the Board concluded that Highland “does not meet the
requirements of Virginia Code § 54.1-3020(2) and 18 VAC 90-19-130(C)(1) of the Regulations
Governing the Practice of Nursing.” The Board denied Highland’s application.
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B. Proceedings in the Circuit Court
In her prayer for relief to the circuit court, Highland requested:
1. That this court REVERSE the Board’s erroneous findings of
fact and conclusion of law . . . and thereupon COMPEL the Board
to grant Ms. Highland’s original application for an LPN license by
endorsement based on a finding that evidence of Ms. Highland’s
education as an RN completes her application by meeting the
educational requirements of Va. Code § 54.1-3020(A)(2), 18 VAC
90-19-130(C)(1); and/or 18 VAC 90-19-120(A)(2)(a);
2. Alternatively, that this court SET ASIDE the Board’s finding
that Ms. Highland’s education as an RN does not meet the standard
set at 54.1-3020(A)(2) and 18 VAC 90-19-130(C)(1); and
REMAND this case for further proceedings in accordance with law
as determined by this Court;
3. That this Court grant such other relief as may appear just and
proper.
In the Board’s memorandum in opposition to petition for appeal, the Board included in the
“facts” section that “[a]t the hearing, Highland submitted evidence of a [CGFNS] credentials
certification stating that her education was comparable to a registered/professional nursing
education program.” However, that evidence was not actually presented at the hearing.2 The
Board further stated that Highland “did not submit evidence of completion of or comparability to
a practical nursing education program.”
At oral argument before the circuit court, the court inquired into the evidence in the
record to support this misstatement of fact. The Board’s counsel agreed with the court’s inquiry,
stating, “I also do not see that evidence in the record so I do agree with Your Honor with that
question mark as far as where that verification occurred.” Moreover, she argued, “[Q]uite
frankly, Your Honor, it does not matter because she applied for licensure as a Practical Nurse.
2
The only evidence presented at the hearing from CGFNS was the letter verifying the
authenticity of the documents Highland submitted to CGFNS, explicitly stating that it was not a
credentials comparison, and the verification of her South Korean R.N. license.
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So, whether she has been educated as an R.N. or not, she doesn’t qualify for licensure as a
Practical Nurse.”
After oral argument, the circuit court dismissed the petition. First, the court reasoned,
18 VAC 90-19-120(A)(2)(a) and 18 VAC 90-19-130 may conflict with Code § 54.1-3020 to the
extent that those regulations would permit an applicant to obtain a license without completing a
practical nursing education program. To the extent there was a conflict, the court determined,
the statute would control. However, the court stopped short of holding that the regulation was
invalid because there was “no evidence in the record . . . to support the interpretation.” Second,
there was no evidence in the record that Highland completed a practical nursing education
program, without which she cannot meet the burden required by Code § 54.1-3020.
Highland then filed a motion for reconsideration, and the circuit court suspended its
order. After reconsidering the case, the circuit court issued an opinion letter denying the petition
in part and granting it in part, remanding to the Board solely to decide whether Highland was
eligible for licensure pursuant to 18 VAC 90-19-120(A)(2)(a). This appeal follows.
II. ANALYSIS
A. Standard of Review
“On appeal of agency action under the VAPA, the party complaining bears the ‘burden of
demonstrat[ing] an error . . . subject to review.’” Va. Bd. of Med. v. Hagmann, 67 Va. App. 488,
499 (2017) (alterations in original) (quoting Code § 2.2-4027). In a VAPA appeal, the circuit
court functions as an appellate court, “equivalent to an appellate court’s role in an appeal from a
trial court.” Comm’r, Va. Dep’t of Soc. Servs. v. Fulton, 55 Va. App. 69, 80 (2009) (quoting
Sch. Bd. v. Nicely, 12 Va. App. 1051, 1062 (1991)). In both the circuit court and the Court of
Appeals, appellate review of an agency action is limited to issues of law, including,
(i) accordance with constitutional right, power, privilege, or
immunity, (ii) compliance with statutory authority, jurisdiction
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limitations, or right as provided in the basic laws as to subject
matter, the stated objectives for which regulations may be made,
and the factual showing respecting violations or entitlement in
connection with case decisions, (iii) observance of required
procedure where any failure therein is not mere harmless error, and
(iv) the substantiality of the evidentiary support for findings of
fact.
Code § 2.2-4027.
Pure questions of law are reviewed de novo. Id. “However, where a decision is within
the discretion of the agency, ‘judicial interference is permissible only for relief against . . .
arbitrary or capricious action that constitutes a clear abuse of . . . delegated discretion.’”
Hagmann, 67 Va. App. at 500 (quoting Johnston-Willis, Ltd. v. Kenley, 6 Va. App. 231, 244
(1988)). An agency “by definition abuses its discretion when it makes an error of law.” Id.
(quoting Porter v. Commonwealth, 276 Va. 203, 260 (2008)).
Factual findings are viewed “in the light most favorable to sustaining the agency’s
decision.” Va. Ret. Sys. v. Blair, 64 Va. App. 756, 770 (2015). “The scope of judicial review of
an agency exercising its ‘fact finding function . . . is severely limited, partly in deference to the
agency’s expertise in a specialized field.’” Hagmann, 67 Va. App. at 500 (quoting Ga.-Pac.
Corp. v. Robinson, 32 Va. App. 1, 4 (2000)). On appeal, a reviewing court may “reject [the]
agency’s factual findings only if, considering the record as a whole, a reasonable mind would
necessarily come to a different conclusion.” Blair, 64 Va. App. at 765 (quoting Doctors’ Hosp.
of Williamsburg, LLC v. Stroube, 52 Va. App. 599, 607 (2008)).
B. Statutory Construction of Code § 54.1-3020(A)(2) and the Board’s Distinction
Between R.N. and L.P.N. Education Programs
“On appeal from an agency’s determination of law, the deference accorded depends on
the law being interpreted.” Commonwealth ex rel. Va. State Water Control Bd. v. Blue Ridge
Envtl. Def. League, Inc., 56 Va. App. 469, 480 (2010). “[W]here the question involves an
interpretation which is within the specialized competence of the agency and the agency has been
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entrusted with wide discretion by the General Assembly, the agency’s decision is entitled to
special weight in the courts.” Id. (quoting Va. Alcoholic Beverage Control Comm’n v. York St.
Inn, Inc., 220 Va. 310, 315 (1979)). Under such circumstances,
judicial interference is permissible only for relief against the
arbitrary or capricious action that constitutes a clear abuse of the
delegated discretion. The reviewing judicial authority may not
exercise anew the jurisdiction of the administrative agency and
merely substitute its own independent judgment for that of the
body entrusted by the Legislature with the administrative function.
Id. at 480-81 (quoting York St. Inn, Inc., 220 Va. at 315).
When applying this deference, “[c]ourts generally defer to an agency’s interpretation of
its own regulations.” Id. at 481 (quoting Mazloumi v. Dep’t of Envtl. Quality, 55 Va. App. 204,
209 (2009)). However, an agency’s interpretation of a statute “is accorded no deference because
‘[w]e have long held that pure statutory interpretation is the prerogative of the judiciary, and
thus, Virginia courts do not delegate that task to executive agencies.’” Id. (quoting Mattaponi
Indian Tribe v. Commonwealth, Dep’t of Envtl. Quality, 43 Va. App. 690, 701 (2004)). When
the issue involves pure statutory interpretation, this Court reviews that interpretation de novo,
“especially if the statutory language is clear.” Shippers’ Choice of Va., Inc. v. Smith, 52
Va. App. 34, 37 (2008), rev’d on other grounds, 277 Va. 593 (2009).
Highland argues that the circuit court erred in failing to rule that training as a registered
nurse necessarily satisfies the lower educational requirements for a licensed practical nurse found
in Code § 54.1-3020(A)(2). Whether Highland is correct or not is immaterial to the issue. The
statutory language of Code § 54.1-3020(A)(2) is clear in requiring an applicant have “received a
diploma from an approved practical nursing program” in order to obtain a license to practice as a
practical nurse. (Emphasis added). “When the legislature has spoken plainly it is not the
function of courts to change or amend its enactments under the guise of construing them. The
province of [statutory] construction lies wholly within the domain of ambiguity, and that which
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is plain needs no interpretation.” Lahey v. Johnson, 283 Va. 225, 230 (2012) (quoting Doss v.
Jamco, Inc., 254 Va. 362, 370 (1997)). Only if “a literal application [of clear and unambiguous
statutory language] would produce a meaningless or absurd result” may we “rely on rules of
statutory construction.” Avalon Assisted Living Facilities, Inc. v. Zager, 39 Va. App. 484, 503
(2002) (quoting Crown Cent. Petroleum Corp. v. Hill, 254 Va. 88, 91 (1997)).
Here, the language of Code § 54.1-3020(A)(2) is plain: applicants for a practical nursing
license must have “received a diploma from an approved practical nursing program.” Highland
refers to Code § 54.1-3000, which defines the scope of practice for registered nursing and
practical nursing. Because, she argues, “[t]he General Assembly has unambiguously defined
‘registered nursing’ as encompassing any ‘nursing acts’ which ‘licensed practical nursing’
includes,” she must be entitled to licensure as a practical nurse because she was educated as a
registered nurse. However logical that interpretation may be, it directly contradicts the plain
language of the statute. Because there is no ambiguity in the terms of Code § 54.1-3020(A)(2),
this Court may only rely on the rules of statutory interpretation if the clear and unambiguous
statutory language produces a meaningless or absurd result. The requirement that an applicant
for a specific nursing license have received a diploma based on the specific standards to be
applied under that license does not produce an absurd result and therefore any modification of
this requirement is more properly addressed to the General Assembly.3 Thus, we hold that Code
§ 54.1-3020(A)(2) unambiguously requires a practical nursing applicant to have received a
practical nursing diploma, and the circuit court did not err in so holding.
Similarly, Highland avers that the circuit court erred “when it erroneously substituted its
own independent judgment for that of the Board with respect to evidence on the agency record
3
During the formal hearing, one Board member seemed concerned that Highland would
not stay within the practice limitations imposed on practical nurses if licensed as an L.P.N.
because she “knows a lot of R.N. information.”
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which demonstrates that it was arbitrary and capricious for the Board to rule that Ms. Highland’s
registered nursing education is not a practical nursing education and therefore not comparable to
the nursing education required for practical nurses in the Commonwealth.” The Board, Highland
argues, has interpreted Code § 54.1-3020 and 18 VAC 90-19-130(C)(1) to include registered
nursing education programs because it treats registered nursing as a higher level of nursing than
practical nursing.
An action is arbitrary and capricious when it is “‘willful and unreasonable’ and taken
‘without consideration or in disregard of facts or law or without determining principle.’”
Loudoun Hosp. Center v. Stroube, 50 Va. App. 478, 505 (2007) (quoting Arbitrary and
capricious, Black’s Law Dictionary (6th ed. 1990)). Nursing applicants registered outside of the
United States or Canada can qualify for licensure by endorsement as a practical nurse in the
Commonwealth if they both: (1) hold a diploma in practical nursing, meeting the requirements
of Code § 54.1-3020(A)(2); and (2) submit, inter alia, “evidence from the CGFNS that the
secondary education and nursing education [they have completed] are comparable to those
required for practical nurses in the Commonwealth.” Code § 54.1-3020(A)(2); 18 VAC
90-19-130(C)(1).
Highland satisfied neither requirement. Based on the discussion above, it is not willful
and unreasonable for the Board to interpret Code § 54.1-3020(A)(2) and 18 VAC
90-19-130(C)(1) to require Highland to present evidence from the CGFNS that she received a
practical nursing diploma and evidence that such education was comparable to the education
required for practical nurses in the Commonwealth. By definition, the Board cannot act
arbitrarily or capriciously if it relies on the plain language of the statute. However, Highland did
not receive a diploma in practical nursing nor is there evidence in the agency record that
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Highland’s nursing education from Korea is comparable to a practical nursing education in the
Commonwealth.
C. Deference to the Board
Highland argues that the circuit court did not properly defer to the Board’s findings of
fact and should have “set aside the Board’s order with respect to the single issue of whether
Ms. Highland’s registered nursing education is comparable to what is required for practical
nurses.” According to Highland, the circuit court erred when it determined that “the Board made
no finding of fact that Highland received an education comparable to a registered/professional
nurse.” Moreover, Highland argues that the circuit court “had no basis for making the inference
that ‘[t]here was a finding by the Board that Highland had not presented any evidence that her
R.N. education was comparable to that required for R.N.s in Virginia.’”
Applicants for licensure bear the burden of “furnish[ing] evidence satisfactory to the
Board that the applicant” has met the prerequisites for licensure. Code § 54.1-3020(A). On
appeal, the circuit court may review the agency record to determine whether there was
substantial evidence in the agency record to support the agency’s decision. Code § 2.2-4027.
Here, the circuit court reviewed the agency record. The record contained the Board’s finding of
fact that Highland failed to meet her burden, in part, because she “did not present evidence from
the CGFNS that the education program she graduated from in Korea was comparable to those
required by the Commonwealth.” By interpreting this finding by the Board to mean that CGFNS
comparability evidence was not contained in the record, the circuit court properly deferred to the
Board’s findings of fact. Therefore, Highland has failed to demonstrate an error subject to
review.
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D. Circuit Court’s Partial Remand to the Board
Highland further argues that because her request for relief specifically excluded the
remedy of remanding on the issue of whether she qualified for licensure under 18 VAC
90-19-120(A)(2)(a), the circuit court erred in remanding that issue and that portion of its order is
void. As part of this assignment of error, Highland requests that the circuit court judge be
disqualified from hearing the case should we remand to the circuit court.
As explained in greater detail above, because the plain language of Code
§ 54.1-3020(A)(2) requires that applicants for licensure as L.P.N.s have “received a diploma
from an approved practical nursing program,” the circuit court’s partial remand was error. The
language of that statute is unambiguous, and it is clear from the record that Highland did not
qualify for licensure under that statute because she did not receive a diploma from an approved
practical nursing program. Accordingly, she was not eligible for licensure under any regulation.
See Manassas Autocars, Inc. v. Couch, 274 Va. 82, 87 (2007) (“Regulations . . . may not conflict
with the authorizing statute.”). Thus, there was no basis on which to remand to the Board and
we reverse the portion of the circuit court’s order granting a partial remand. Because there is no
basis for a remand in this case, we need not address Highland’s request to disqualify the circuit
court judge.
E. Attorney’s Fees
Finally, Highland argues that she is entitled to attorney’s fees because she should prevail
in this appeal, and an award of fees would not be “unjust.” A party is only entitled to attorney’s
fees if she “substantially prevails on the merits of the case and (i) the agency’s position is not
substantially justified, (ii) the agency was in violation of law, or (iii) the agency action was for
an improper purpose.” Code § 2.2-4030. Because Highland has not substantially prevailed on
the merits of the case, we decline to award her attorney’s fees.
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III. CONCLUSION
Because we hold that Highland was not eligible for licensure under the plain language of
Code § 54.1-3020(A)(2), we need not address her remaining assignment of error regarding an
alleged judicial admission. In summary, we hold that Highland has failed to meet her burden in
demonstrating an error subject to review, the circuit court did not substitute its own independent
judgment for the agency’s determinations, and the Board’s interpretation of its own regulations
was not arbitrary or capricious. For these reasons, we reverse the circuit court’s judgment with
respect to the partial remand to the Board and we affirm the circuit court’s judgment in all other
respects.
Affirmed in part, and reversed in part.
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