Preview
FILED: ALBANY COUNTY CLERK 02/21/2024 11:40 AM INDEX NO. 901869-24
NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 02/21/2024
SUPREME COURT
STATE OF NEW YORK : COUNTY OF ALBANY
__________________________________________
Application Of
EUCHARIA NWEGAUH NASAH, KAREN SAULONG, CHARITY AKAKPO, INDEX
CELESTINE CHI ARIRIGUZOH, ELIZABETH KING-NABI, BARTHOLOMEW NO.
EZEM, ROSE FREEMAN, THEODORA ALEXANDER, MARIA SOKOLO,
NNEKA NZEKWU, JOHNNET KORVAH, BRENDA ANDREWS, REGINA
NKECHI, EMMANUEL, MARCUS FAIRCLOUGH, SONIA JONES, AWAL
MOHAMMAD RAHAMAN, JOLETTE PASTEUR, ADERONKE OJERINDE,
STELLA AGYENIM BOATENG, ANITA BARBARA ASAMOAH, LOUISE
GELIN, ESE OKOKO, KADIATU SEI-BUREH, SUNDAY ODEH,
SCHOLASTICA TANDONGFOR, SALAMAT YUSIFU, LISABETH JOHNSON,
MABEL BOAKYE, JOANA AMOAFO DOFOO, ALICE KWANE FREMPONG,
OMEHVY GEORGE, JOYCE CHAMBERS, SOEURETTE COLIN, VERONIQUE
LAHENS, KESHIA PORTER,MIATTA SOKO, CHARYL PILGRIM, CHRISTIAN
NWANKWO, JOHAN NESBITT, CAMILLE ALEXA JOASIL, FRANCES LINDA
OJEIFO, JENNIFER OKORO, JACQUELINE BOAMAH-BRIGHT, JULENE
ALEXANDER, MARK GYAU, MICAELA HAYWOOD, GAYTREEDEBIE
BOEDHAI, PRINCE ADEPARUSI, SOFIA LAMARRE, OKEMA TOREY,
EMMANUEL TETTEH, MIKE JENNY VEILLARD, REBECCA AGYEIWAA
ANNOH, and BEATRICE LESTE
Petitioners
For a Judgment Pursuant to CPLR Article 78
Against
NEW YORK STATE EDUCATION DEPARTMENT; BETTY A. ROSA, in her
capacity as COMMISSIONER OF THE NEW YORK STATE EDUCATION
DEPARTMENT; NEW YORK STATE OFFICE OF THE PROFESSIONS; SARAH
BENSON, in her official capacity as DEPUTY
COMMISSIONER OF THE NYS DEPT. OF EDUCATION and as the official
heading the OFFICE OF THE PROFESSIONS; and DAVID HAMILTON, in his
official capacity as the ASSISTANT COMMISSIONER FOR PROFESSIONAL
LICENSING AND PRACTICE FOR NYS DEPT. OF EDUCATION OFFICE OF
PROFESSIONS
Respondents.
__________________________________________
MEMORANDUM OF LAW IN SUPPORT OF
VERIFIED PETITION
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ADDELMAN CROSS & BALDWIN, PC
Attorneys for Petitioners, Eucharia Nwegauh
Nasah, et al
5680 Main Street
Buffalo, New York 14202
(716) 465-9530
jbaldwin@acbfirm.com
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TABLE OF CONTENTS
Page
Preliminary Statement …………………………………………… 1
Argument ………………………………………………………… 1
1. Respondents should be prohibited from retroactively
applying a regulation passed years after Petitioners earned
their New York nursing licenses ………………………… 5
2. Respondents should be prohibited from taking illegal
actions against Petitioners based solely on the schools they
attended with no allegations of individual misconduct ….. 6
Conclusion ……………………………………………..………… 10
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TABLE OF AUTHORITIES
Page
Case Law
Barry v Barchi, 443 US 55 [1979] …………………………………. 2
Burmaster v New York State Dept of Civ Serv, 28 Misc 2d 1086
[Supreme Ct Albany Cnty, Sept 7, 1961] ……………………. 6
Gottwald v Sebert, 40 NY3d 240 [2023] …………………………… 5
Haynal v Brd of Regents of Univ of State of NY, 61 Misc2d 268
[Albany Cty, Nov 24, 1969] ………………………………….. 6
Hecht v Monaghan, 307 NY 461 [1954] …………………………..... 2
Hogan v Ct of Gen Sessions of New York Cnty, 296 NY 1 [1946] …... 4
La Rocca v Lane, 37 NY2d 575 [1975] …………………………….. 2
Lee v Cnty Ct of Erie Cnty, 27 NY2d 432 [1971] certiorari
denied 404 US 823 [1971] …………………………………… 1,2
Milonas v Schwalb, 65 Misc 2d 1042 [Sup. Ct., New York Cty,
1971] …………………………………………………………. 4
Moxham v Hannigan, 89 AD2d 300 [4th Dept 1982] …….……….. 2
Nicholson v. State Comm'n on Jud. Conduct, 50 NY2d 597 [1980]… 2
O'Brien v O'Brien, 66 NY2d 576 [1985] ……………………………. 2
Statutes
NY CPLR 7803(2) …………………………………………………… 1
CPLR § 7806 ………………………………………………………… 10
NY Edu Law Ch 16, VII – The Professions …………………………. 7
NY Edu Law §§ 6509-6511-a ………………………………………… 7
NY Edu Law §§ 6509-6509-E ………………………………………… 8
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NY Educ Law § 6510 ………………………………………………… 8
Rules and Regulations
8 NYCRR, Ch I, Rules of the Board of Regents …………………… 7
8 NYCRR § 17.9 ……………………………………………………. 8
8 NYCRR § 17.9[b] ………………………………………………….. 8
8 NYCRR § 17.9[c] ………………………………………………….. 8
8 NYCRR 64.1, subdivisions (a)(2), effective as of March 9, 1990) … 5
8 NYCRR 64.1 ………………………………………………………… 10
Secondary Sources
Dall’Ora, Chiara, International Journal of Nursing Studies, “Nurse
staffing levels and patient outcomes: A systematic review of
longitudinal studies” [Oct 2022] ……………………………… 4
He, Jianghua, et al., BMC Nursing, “Nurse staffing and patient
outcomes: a longitudinal study on trend and seasonality”
[Oct 14 2016] ………………………………………………….. 3
Isidore, Chris, CNN, “Health care is in crisis. New York’s nurses strike
is just the latest sign,”
https://www.cnn.com/2023/01/11/business/nurses-strike-staff-
shortage-problem/index.html [Jan 11, 2023] ………………….. 3
Lasater, KB, et al., BMJ Open, “Patient outcomes and cost savings
associated with hospital safe nurse staffing legislation: an
observational study” [Dec 8, 2021] …………………………… 3
Law, Tara, Time, “Why the U.S. Nursing Shortage Keeps Getting
Worse” [Jan 12, 2023] …………………………………………. 3
New York State Department of Health Honors 350,000 Nurses in
Observance of National Nurses Week, May 6-12,
https://www.health.ny.gov/press/releases/2023/2023-05-10
_nurses_week.htm [May 10, 2023] ………………………….. 3
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PRELIMINARY STATEMENT
This Article 78 proceeding arises from Respondents’ shocking attempts to deprive
Petitioners of their hard-earned nursing licenses without due process. Respondents sent mass
emails to hundreds of nurses demanding that they mail in their licenses and cease the practice of
nursing, based solely on allegations that certain nursing schools in Florida fraudulently sold
degrees to some individuals. Without any evidence that the Petitioner nurses committed or had
knowledge of any fraud, Respondents demanded that Petitioners mail in their licenses, entirely
skipping the statutory due process requirements for revocation or surrender of a professional
license in New York. Since that time, Respondents have ignored Petitioners’ attempts to discuss
these issues with counsel. Respondents have ignored the Petitioners, and they have ignored
Respondents’ duties and obligations under the law. Instead, Respondents have doubled down on
these illegal demands.
Because Respondents refuse to resolve these issues legally, Petitioners are forced to bring
the instant Article 78 proceeding. Petitioners seek to prohibit Respondents from taking Petitioners
licenses without due process, which is what Respondents have threatened to do. Petitioners merely
seek Respondents be compelled to act as they are required to under the law and be prohibited from
acting in a manner that is contrary to the powers they are permitted under the law.
ARGUMENT
Pursuant to CPLR 7803(2) an appropriate question for consideration in an Article 78
proceeding is “whether the body or officer proceeded, is proceeding or is about to proceed without
or in excess of jurisdiction”. As the Court of Appeals has recognized, the function of a writ of
prohibition “is not merely to restrain an unwarranted assumption of jurisdiction, but also to restrain
an inferior court from exceeding its authorized powers in a proceeding over which it has
jurisdiction.” (Lee v Cnty Ct of Erie Cnty, 27 NY2d 432, 437 [1971] certiorari denied 404 US
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823 [1971] [internal citations omitted]). Prohibition is available to prevent only judicial or quasi-
judicial action. (Nicholson v. State Comm'n on Jud. Conduct, 50 NY2d 597, 606 [1980]). A license
revocation has been held to constitute a judicial or quasi-judicial function in the context of an
Article 78 proceeding. (Hecht v Monaghan, 307 NY 461 [1954]). Prohibition is “the means to
prevent an arrogation of power in violation of a person’s rights, particularly constitutional rights.”
(Nicholson, supra at 606). The presentation of an arguable and substantial claim of such an excess
of power generally results in the availability of a proceeding in the nature of prohibition.
(Nicholson, supra at 606).
Prohibition is not mandatory, but it may be issued in the sound discretion of the court.
(Moxham v Hannigan, 89 AD2d 300, 302 [4th Dept 1982]). “The gravity of the harm which would
be caused by an excess of power is an important factor to be weighed.” (La Rocca v Lane, 37
NY2d 575, 579 [1975]). Courts have found violations implicating constitutional rights have been
found to qualify as sufficient gravity of harm. (Nicholson, supra at 606 [First Amendment rights
at stake in investigation of improprieties in a judge’s election campaign]; La Rocca, supra at 580
[First Amendment rights at stake where judge ordered priest remove clerical clothing while serving
as criminal defendant’s trial counsel]; Lee, supra [evaluation of order striking insanity plea where
defendant refused to participate in pretrial mental examination on self-incrimination grounds]). It
is well recognized that a licensee has a property interest in his or her professional license sufficient
to invoke the protection of the Due Process Clause. (Barry v Barchi, 443 US 55, 64 [1979];
O'Brien, supra at 586 [“A professional license is a valuable property right, reflected in the money,
effort and lost opportunity for employment expended in its acquisition, and also in the enhanced
earning capacity it affords its holder, which may not be revoked without due process of law.”]).
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In the present case, Respondents’ actions will result in grave harm to Petitioners and the
general public. Respondents are attempting, without following their own procedures, to strip
Petitioners of the professional licenses they earned through completing nursing programs,
including coursework and clinical hours, and passing a standardized examination. Petitioners
devoted time and money to acquiring their licenses. Petitioners have been accused of no
misconduct. Respondents’ attempts to deny Petitioners their due process rights with regard to their
licenses has resulted in Petitioners, and their families, losing the benefit of the increased earning
capacity that accompanies the licenses they earned in their chosen field. Through a global
pandemic, Petitioners used their licenses to render care to hundreds of patients. In place of thanks,
Respondents indicate they intend to take away Petitioners’ livelihood without the guarantee of the
due process protections to which Petitioners are entitled based upon nothing more than the school
they attended.
In addition, there is a looming public health crisis in New York State, specifically a
shortage of nurses, that is projected to become worse over the next decade. (New York State
Department of Health, New York State Department of Health Honors 350,000 Nurses in
Observance of National Nurses Week, May 6-12,
https://www.health.ny.gov/press/releases/2023/2023-05-10_nurses_week.htm [May 10, 2023];
Law, Tara, Time, “Why the U.S. Nursing Shortage Keeps Getting Worse” [Jan 12, 2023]; Isidore,
Chris, CNN, “Health care is in crisis. New York’s nurses strike is just the latest sign,”
https://www.cnn.com/2023/01/11/business/nurses-strike-staff-shortage-problem/index.html [Jan
11, 2023]). Nursing shortages result in worse outcomes for patients. (Lasater, KB, et al., BMJ
Open, “Patient outcomes and cost savings associated with hospital safe nurse staffing legislation:
an observational study” [Dec 8, 2021]; He, Jianghua, et al., BMC Nursing, “Nurse staffing and
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patient outcomes: a longitudinal study on trend and seasonality” [Oct 14 2016]; Dall’Ora, Chiara,
International Journal of Nursing Studies, “Nurse staffing levels and patient outcomes: A
systematic review of longitudinal studies” [Oct 2022]). Respondents’ actions against Petitioners
will exacerbate this crisis.
“Also important [in an Art. 78 proceeding seeking prohibition relief], but not controlling,
is whether the excess of power can be adequately corrected on appeal or by other ordinary
proceedings at law or in equity.” (La Rocca, supra at 579). “Nevertheless, where the lower court
is exceeding its jurisdiction and the writ or order furnishes a more effective remedy, it may be
availed of although the error might be corrected by appeal.” (Hogan v Ct of Gen Sessions of New
York Cnty, 296 NY 1, 9 [1946]). “[I]n those instances where the lower tribunal is about to exceed
its powers and the ordinary remedy of appeal is inadequate or insufficient, the court where the
petition is brought should act resolutely to stop it before irretrievable harm is perpetrated.”
(Milonas v Schwalb, 65 Misc 2d 1042, 1043 [Sup. Ct., New York Cty, 1971] citing Hogan, supra).
Several of the actions Respondents threaten are outside of any judicial or quasi-judicial
procedure, meaning there is no clear path for an appeal should Respondents actually carry out
these steps. In addition, Petitioners and their families cannot afford to wait for an opportunity to
appeal Respondents’ threatened illegal acts. They will be, as some have already been due to
Respondents’ threats, forced to work without the benefit of the professional licenses they earned,
at a much lower earning capacity, depriving them of the ability to support themselves and their
families. Alternatively, they may be required to repeat expensive and time-consuming schooling
and the NCLEX, which they already successfully completed and paid for.
In the present case, Respondents have exceeded their powers in that they indicated they (1)
intend to take a number of actions against Petitioners and their licenses which are not permitted
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pursuant to applicable statutes; (2) based on a recent change to the applicable statute, which does
not have retroactive effect, with regard to the Department’s powers related to licenses issued to
nurses educated at schools outside of New York State; and (3) solely based on Petitioners’
attendance at particular nursing schools without specific evidence of fraud or other misconduct on
the part of the subject individual licensees.
1. Respondents should be prohibited from retroactively applying a regulation passed
years after Petitioners earned their New York nursing licenses
“Retroactive operation is not favored by the courts and statutes will not be given such
construction unless the language expressly or by necessary implication requires it” (Gottwald v
Sebert, 40 NY3d 240, 258 [2023] [internal citations omitted]) “This approach reflects a deeply
rooted presumption against retroactivity based on elementary considerations of fairness.”
(Gottwald, supra at 258).
To meet the professional education requirement as a Registered/Licensed Nurse at the time
the each of the Petitioners herein applied for licensure, an applicant educated outside of New York
state was required to have graduated from “a program in nursing approved by the licensing
authority in another state, territory or possession of the United States as preparation for practice as
a registered professional nurse.” (8 NYCRR 64.1, subdivisions (a)(2), effective as of March 9,
1990). Petitioners attended schools that were approved by the licensing entity in Florida at the time
they attended, graduated, and submitted their applications for licensing in New York. Petitioners
were granted their licenses and worked years as nurses in New York State. In February 2023,
Respondents sent the threatening correspondence. (Exhibit F; Exhibit Q).
Evidently realizing the statute provided Respondents with no discretion to reject an
applicant educated in an out of State program, on April 18, 2023, the NYSED set forth an
emergency/proposed rule to amend 64.1 of Title 8 NYCRR to include the phrase “unless such
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program or any part thereof has been determined not to be satisfactory to the department.” At the
time the nurses applied, neither the program nor any part thereof had “been determined not to be
satisfactory to the department.” There is nothing in the statute indicating it is retroactive in its
effect.
This very approach has been judicially rejected. In Burmaster, petitioners earned
eligibilities and appointments to positions in the City of Albany Police Department after sitting for
civil service examinations. (Burmaster v New York State Dept of Civ Serv, 28 Misc 2d 1086
[Supreme Crt Albany Cnty, Sept 7, 1961]). Three years later, there was change to the Civil Service
Law and the respondents, including the New York State Department of Civil Service, started an
investigation to rescind the petitioners’ appointments pursuant to that new section of law. The
petitioners commenced an Article 78 proceeding to prohibit respondents from rescinding
petitioners’ eligibilities and appointments. The court held prohibition was “a proper method of
challenging in advance the jurisdiction of the Commission to proceed.” (Burmaster, supra at 1088
[internal citations omitted]). The court ruled in the petitioners’ favor and restrained the respondents
from proceeding, holding respondents could not use the subsequently changed statute “to deprive
the petitioners of the rights they acquired long ago.” (Burmaster, supra at 1088-1089).
This is precisely what Respondents herein threaten to do, “deprive the petitioners of the
rights they acquired long ago” through retroactive application of a regulation. Respondents should
be restrained from taking such an illegal action.
2. Respondents should be prohibited from taking illegal actions against Petitioners
based solely on the schools they attended with no allegations of individual misconduct
Without citing to any authority, the Department threatened the Petitioners with: (1)
cancellation of NCLEX scores; (2) summary suspension of Petitioners’ licenses and registrations;
and (3) the commencement of disciplinary proceedings. In addition, the Department threatened to
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issue a recommendation to the Board of Regents that Petitioners’ “professional license and
registration be rescinded pursuant to Education Law §6506(7).” (Exhibit F; Exhibit Q). These acts
are all threatened based solely upon the schools attended by Petitioners with no allegations that
Petitioners engaged in any individual misconduct.
With regard to the first threatened action, there is nothing indicating the Respondents have
the power to cancel Petitioners’ NCLEX scores at all, let alone for a reason having nothing to do
with the licensee’s examination. (See generally NY Edu Law Ch 16, VII – The Professions; 8
NYCRR, Ch I, Rules of the Board of Regents). NCLEX is a national standardized test administered
by the National Council of State Boards of Nursing (NCSBN). While the candidate who wishes to
take the NCLEX must apply for licensure/registration with the “nursing regulatory body” in order
to obtain authorization to test, in the case of New York State, there is nothing under New York
Law permitting the New York State Education Department or Board of Regents to withdraw
authorization to test years after the NCLEX was taken and passed.
Pursuant to the rules and regulations set forth on the NCLEX website, NCSBN may dismiss
or cancel results in the event of violations of “test center regulation or rules” or if the candidate
“engages in irregular behavior, misconduct and/or does not follow the test administrator’s warning
to discontinue inappropriate behavior.” (NCLEX, NCLEX Rules Terms & Conditions of the
NCLEX, https://www.nclex.com/nclex-rules.page [last accessed Dec 11, 2023]). There is nothing
in the NCLEX rules and regulations suggesting NCLEX scores would be canceled based on the
current status of the program an individual attended. (See generally id.).
Moreover, while there is a method by which a license may be revoked, annulled or
suspended where there is a finding of “professional misconduct,” there are no allegations of
professional misconduct here. (NY Edu Law §§ 6509-6511-a). There are fourteen enumerated
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paragraphs defining “professional misconduct” pursuant to the New York Education Law. (NY
Edu Law §§ 6509-6511-a). A change in status of the nursing program a licensee attended is not
encompassed in any definition of “professional misconduct” pursuant to the statute. (NY Edu Law
§§ 6509-6509-E). In the instant cases, there are no allegations of individual misconduct on the part
of the Petitioners. Instead, Respondents’ actions and threats against Petitioners are rather based
upon allegations regarding the program they attended that arose years after Petitioners were
licensed and practicing in New York.
Moreover, pursuant to the Education Law, neither the Department of Education nor the
Board of Regents are empowered to summarily suspend a Registered Nurse’s license because of
an issue with the nursing program attended by a licensee. (See NY Educ Law § 6510; 8 NYCRR
§ 17.9). The Board of Regents is empowered to summarily suspend a professional license only
where the director of the Office of Professional Discipline issues a verified petition “demonstrating
probable cause to believe that”: (1) [the licensee] has committed professional misconduct; and, (2)
that the public health, safety or welfare imperatively requires emergency action to summarily
suspend [the licensee’s] license.” (8 NYCRR § 17.9[b]). Even in these emergency situations,
certain due process protections are required, including service upon the licensee of notice of a
hearing and a verified petition setting forth the charges of professional misconduct, demonstrating
probable cause. (8 NYCRR § 17.9[b]). The licensee has the right to submit an answer, has a right
to counsel, and has a right to be heard at oral argument. (8 NYCRR § 17.9[c]).
As described above, Respondents have alleged no conduct that meets the definition of
“professional misconduct.” Furthermore, there can be no reasonable argument that Respondents
“have probable cause to believe that” “the public health, safety or welfare imperatively requires
emergency action to summarily suspend [the licensee’s] license.” On February 27, 2023,
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Respondents first notified Petitioners that Petitioners had to mail in their licenses within fourteen
days or Respondents would take action against Petitioners. (Exhibit A). In spite of invitations by
counsel for many of the Petitioners to discuss the matter, Respondents ignored Petitioners until
they sent further mass correspondence in December 2023 repeating the same demands and threats
made in the February 2023 correspondence. (Exhibit G). In the approximately one year that has
passed since Respondents first contacted Petitioners regarding this matter, most of the Petitioners
have continued to hold their New York nursing licenses and have continued rendering care to
patients. If there was a legitimate concern for public health requiring emergency action,
Respondents would not take a year to proceed with that action. In addition, Petitioners completed
education including attending remote and in person classes, clinical education, homework, and
examinations, and were required to pass the NCLEX, a nationally administered standardized test.
Since earning their nursing licenses, Petitioners have gained years of on-the-job nursing
experience. Summary suspension simply does not apply to the situation herein and Respondents
should not be permitted to pursue same against Petitioners.
Similarly, Respondents should be prohibited from moving forward with their threat to
recommend the Board of Regents “rescind[]” Petitioners “professional license and registration”
“pursuant to Education Law §6506(7)” (Exhibit A). While New York Education Law permits the
Board of Regents to “Direct the department to remedy any error, omission, delay or other
circumstance in the issuance or registration of a license”, this provision does not empower either
entity to summarily cancel a professional license and circumvent due process requirements.
(Haynal v Brd of Regents of Univ of State of NY, 61 Misc2d 268 [Albany Cty, Nov 24, 1969]).
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CONCLUSION
Based on the foregoing, Petitioners respectfully request this Court enter judgment, pursuant
to CPLR § 7806, on their behalf:
a. prohibiting Respondents from taking or recommending another entity take the
threatened actions against Petitioners’ licenses, including (1) cancellation of Petitioners’ NCLEX
scores; or (2) otherwise nullifying, canceling, revoking, suspending, or annulling Petitioners’
licenses without due process;
b. prohibiting Respondents from taking any action against Petitioners based on
retroactive application of the new amendment to 8 NYCRR 64.1;
c. prohibiting Respondents from commencing proceedings to take action against
Petitioners based solely on their attendance in a certain nursing program;
d. granting Petitioners costs and disbursements associated with this proceeding; and
e. granting Petitioner whatever such other and further relief this Court deems just and
proper.
Dated: Buffalo, New York
February 21, 2024
ADDELMAN CROSS & BALDWIN, PC
_________________________
Jesse B. Baldwin
Attorneys for Petitioners
5680 Main Street
Buffalo, New York 14221
(716) 0475-9530
jbaldwin@acbfirm.com
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FILED: ALBANY COUNTY CLERK 02/21/2024 11:40 AM INDEX NO. 901869-24 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 02/21/2024 SUPREME COURT STATE OF NEW YORK : COUNTY OF ALBANY __________________________________________ Application Of EUCHARIA NWEGAUH NASAH, KAREN SAULONG, CHARITY AKAKPO, INDEX CELESTINE CHI ARIRIGUZOH, ELIZABETH KING-NABI, BARTHOLOMEW NO. EZEM, ROSE FREEMAN, THEODORA ALEXANDER, MARIA SOKOLO, NNEKA NZEKWU, JOHNNET KORVAH, BRENDA ANDREWS, REGINA NKECHI, EMMANUEL, MARCUS FAIRCLOUGH, SONIA JONES, AWAL MOHAMMAD RAHAMAN, JOLETTE PASTEUR, ADERONKE OJERINDE, STELLA AGYENIM BOATENG, ANITA BARBARA ASAMOAH, LOUISE GELIN, ESE OKOKO, KADIATU SEI-BUREH, SUNDAY ODEH, SCHOLASTICA TANDONGFOR, SALAMAT YUSIFU, LISABETH JOHNSON, MABEL BOAKYE, JOANA AMOAFO DOFOO, ALICE KWANE FREMPONG, OMEHVY GEORGE, JOYCE CHAMBERS, SOEURETTE COLIN, VERONIQUE LAHENS, KESHIA PORTER,MIATTA SOKO, CHARYL PILGRIM, CHRISTIAN NWANKWO, JOHAN NESBITT, CAMILLE ALEXA JOASIL, FRANCES LINDA OJEIFO, JENNIFER OKORO, JACQUELINE BOAMAH-BRIGHT, JULENE ALEXANDER, MARK GYAU, MICAELA HAYWOOD, GAYTREEDEBIE BOEDHAI, PRINCE ADEPARUSI, SOFIA LAMARRE, OKEMA TOREY, EMMANUEL TETTEH, MIKE JENNY VEILLARD, REBECCA AGYEIWAA ANNOH, and BEATRICE LESTE Petitioners For a Judgment Pursuant to CPLR Article 78 Against NEW YORK STATE EDUCATION DEPARTMENT; BETTY A. ROSA, in her capacity as COMMISSIONER OF THE NEW YORK STATE EDUCATION DEPARTMENT; NEW YORK STATE OFFICE OF THE PROFESSIONS; SARAH BENSON, in her official capacity as DEPUTY COMMISSIONER OF THE NYS DEPT. OF EDUCATION and as the official heading the OFFICE OF THE PROFESSIONS; and DAVID HAMILTON, in his official capacity as the ASSISTANT COMMISSIONER FOR PROFESSIONAL LICENSING AND PRACTICE FOR NYS DEPT. OF EDUCATION OFFICE OF PROFESSIONS Respondents. __________________________________________ MEMORANDUM OF LAW IN SUPPORT OF VERIFIED PETITION 1 of 15 FILED: ALBANY COUNTY CLERK 02/21/2024 11:40 AM INDEX NO. 901869-24 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 02/21/2024 ADDELMAN CROSS & BALDWIN, PC Attorneys for Petitioners, Eucharia Nwegauh Nasah, et al 5680 Main Street Buffalo, New York 14202 (716) 465-9530 jbaldwin@acbfirm.com 2 of 15 FILED: ALBANY COUNTY CLERK 02/21/2024 11:40 AM INDEX NO. 901869-24 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 02/21/2024 TABLE OF CONTENTS Page Preliminary Statement …………………………………………… 1 Argument ………………………………………………………… 1 1. Respondents should be prohibited from retroactively applying a regulation passed years after Petitioners earned their New York nursing licenses ………………………… 5 2. Respondents should be prohibited from taking illegal actions against Petitioners based solely on the schools they attended with no allegations of individual misconduct ….. 6 Conclusion ……………………………………………..………… 10 i 3 of 15 FILED: ALBANY COUNTY CLERK 02/21/2024 11:40 AM INDEX NO. 901869-24 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 02/21/2024 TABLE OF AUTHORITIES Page Case Law Barry v Barchi, 443 US 55 [1979] …………………………………. 2 Burmaster v New York State Dept of Civ Serv, 28 Misc 2d 1086 [Supreme Ct Albany Cnty, Sept 7, 1961] ……………………. 6 Gottwald v Sebert, 40 NY3d 240 [2023] …………………………… 5 Haynal v Brd of Regents of Univ of State of NY, 61 Misc2d 268 [Albany Cty, Nov 24, 1969] ………………………………….. 6 Hecht v Monaghan, 307 NY 461 [1954] …………………………..... 2 Hogan v Ct of Gen Sessions of New York Cnty, 296 NY 1 [1946] …... 4 La Rocca v Lane, 37 NY2d 575 [1975] …………………………….. 2 Lee v Cnty Ct of Erie Cnty, 27 NY2d 432 [1971] certiorari denied 404 US 823 [1971] …………………………………… 1,2 Milonas v Schwalb, 65 Misc 2d 1042 [Sup. Ct., New York Cty, 1971] …………………………………………………………. 4 Moxham v Hannigan, 89 AD2d 300 [4th Dept 1982] …….……….. 2 Nicholson v. State Comm'n on Jud. Conduct, 50 NY2d 597 [1980]… 2 O'Brien v O'Brien, 66 NY2d 576 [1985] ……………………………. 2 Statutes NY CPLR 7803(2) …………………………………………………… 1 CPLR § 7806 ………………………………………………………… 10 NY Edu Law Ch 16, VII – The Professions …………………………. 7 NY Edu Law §§ 6509-6511-a ………………………………………… 7 NY Edu Law §§ 6509-6509-E ………………………………………… 8 ii 4 of 15 FILED: ALBANY COUNTY CLERK 02/21/2024 11:40 AM INDEX NO. 901869-24 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 02/21/2024 NY Educ Law § 6510 ………………………………………………… 8 Rules and Regulations 8 NYCRR, Ch I, Rules of the Board of Regents …………………… 7 8 NYCRR § 17.9 ……………………………………………………. 8 8 NYCRR § 17.9[b] ………………………………………………….. 8 8 NYCRR § 17.9[c] ………………………………………………….. 8 8 NYCRR 64.1, subdivisions (a)(2), effective as of March 9, 1990) … 5 8 NYCRR 64.1 ………………………………………………………… 10 Secondary Sources Dall’Ora, Chiara, International Journal of Nursing Studies, “Nurse staffing levels and patient outcomes: A systematic review of longitudinal studies” [Oct 2022] ……………………………… 4 He, Jianghua, et al., BMC Nursing, “Nurse staffing and patient outcomes: a longitudinal study on trend and seasonality” [Oct 14 2016] ………………………………………………….. 3 Isidore, Chris, CNN, “Health care is in crisis. New York’s nurses strike is just the latest sign,” https://www.cnn.com/2023/01/11/business/nurses-strike-staff- shortage-problem/index.html [Jan 11, 2023] ………………….. 3 Lasater, KB, et al., BMJ Open, “Patient outcomes and cost savings associated with hospital safe nurse staffing legislation: an observational study” [Dec 8, 2021] …………………………… 3 Law, Tara, Time, “Why the U.S. Nursing Shortage Keeps Getting Worse” [Jan 12, 2023] …………………………………………. 3 New York State Department of Health Honors 350,000 Nurses in Observance of National Nurses Week, May 6-12, https://www.health.ny.gov/press/releases/2023/2023-05-10 _nurses_week.htm [May 10, 2023] ………………………….. 3 iii 5 of 15 FILED: ALBANY COUNTY CLERK 02/21/2024 11:40 AM INDEX NO. 901869-24 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 02/21/2024 PRELIMINARY STATEMENT This Article 78 proceeding arises from Respondents’ shocking attempts to deprive Petitioners of their hard-earned nursing licenses without due process. Respondents sent mass emails to hundreds of nurses demanding that they mail in their licenses and cease the practice of nursing, based solely on allegations that certain nursing schools in Florida fraudulently sold degrees to some individuals. Without any evidence that the Petitioner nurses committed or had knowledge of any fraud, Respondents demanded that Petitioners mail in their licenses, entirely skipping the statutory due process requirements for revocation or surrender of a professional license in New York. Since that time, Respondents have ignored Petitioners’ attempts to discuss these issues with counsel. Respondents have ignored the Petitioners, and they have ignored Respondents’ duties and obligations under the law. Instead, Respondents have doubled down on these illegal demands. Because Respondents refuse to resolve these issues legally, Petitioners are forced to bring the instant Article 78 proceeding. Petitioners seek to prohibit Respondents from taking Petitioners licenses without due process, which is what Respondents have threatened to do. Petitioners merely seek Respondents be compelled to act as they are required to under the law and be prohibited from acting in a manner that is contrary to the powers they are permitted under the law. ARGUMENT Pursuant to CPLR 7803(2) an appropriate question for consideration in an Article 78 proceeding is “whether the body or officer proceeded, is proceeding or is about to proceed without or in excess of jurisdiction”. As the Court of Appeals has recognized, the function of a writ of prohibition “is not merely to restrain an unwarranted assumption of jurisdiction, but also to restrain an inferior court from exceeding its authorized powers in a proceeding over which it has jurisdiction.” (Lee v Cnty Ct of Erie Cnty, 27 NY2d 432, 437 [1971] certiorari denied 404 US 1 6 of 15 FILED: ALBANY COUNTY CLERK 02/21/2024 11:40 AM INDEX NO. 901869-24 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 02/21/2024 823 [1971] [internal citations omitted]). Prohibition is available to prevent only judicial or quasi- judicial action. (Nicholson v. State Comm'n on Jud. Conduct, 50 NY2d 597, 606 [1980]). A license revocation has been held to constitute a judicial or quasi-judicial function in the context of an Article 78 proceeding. (Hecht v Monaghan, 307 NY 461 [1954]). Prohibition is “the means to prevent an arrogation of power in violation of a person’s rights, particularly constitutional rights.” (Nicholson, supra at 606). The presentation of an arguable and substantial claim of such an excess of power generally results in the availability of a proceeding in the nature of prohibition. (Nicholson, supra at 606). Prohibition is not mandatory, but it may be issued in the sound discretion of the court. (Moxham v Hannigan, 89 AD2d 300, 302 [4th Dept 1982]). “The gravity of the harm which would be caused by an excess of power is an important factor to be weighed.” (La Rocca v Lane, 37 NY2d 575, 579 [1975]). Courts have found violations implicating constitutional rights have been found to qualify as sufficient gravity of harm. (Nicholson, supra at 606 [First Amendment rights at stake in investigation of improprieties in a judge’s election campaign]; La Rocca, supra at 580 [First Amendment rights at stake where judge ordered priest remove clerical clothing while serving as criminal defendant’s trial counsel]; Lee, supra [evaluation of order striking insanity plea where defendant refused to participate in pretrial mental examination on self-incrimination grounds]). It is well recognized that a licensee has a property interest in his or her professional license sufficient to invoke the protection of the Due Process Clause. (Barry v Barchi, 443 US 55, 64 [1979]; O'Brien, supra at 586 [“A professional license is a valuable property right, reflected in the money, effort and lost opportunity for employment expended in its acquisition, and also in the enhanced earning capacity it affords its holder, which may not be revoked without due process of law.”]). 2 7 of 15 FILED: ALBANY COUNTY CLERK 02/21/2024 11:40 AM INDEX NO. 901869-24 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 02/21/2024 In the present case, Respondents’ actions will result in grave harm to Petitioners and the general public. Respondents are attempting, without following their own procedures, to strip Petitioners of the professional licenses they earned through completing nursing programs, including coursework and clinical hours, and passing a standardized examination. Petitioners devoted time and money to acquiring their licenses. Petitioners have been accused of no misconduct. Respondents’ attempts to deny Petitioners their due process rights with regard to their licenses has resulted in Petitioners, and their families, losing the benefit of the increased earning capacity that accompanies the licenses they earned in their chosen field. Through a global pandemic, Petitioners used their licenses to render care to hundreds of patients. In place of thanks, Respondents indicate they intend to take away Petitioners’ livelihood without the guarantee of the due process protections to which Petitioners are entitled based upon nothing more than the school they attended. In addition, there is a looming public health crisis in New York State, specifically a shortage of nurses, that is projected to become worse over the next decade. (New York State Department of Health, New York State Department of Health Honors 350,000 Nurses in Observance of National Nurses Week, May 6-12, https://www.health.ny.gov/press/releases/2023/2023-05-10_nurses_week.htm [May 10, 2023]; Law, Tara, Time, “Why the U.S. Nursing Shortage Keeps Getting Worse” [Jan 12, 2023]; Isidore, Chris, CNN, “Health care is in crisis. New York’s nurses strike is just the latest sign,” https://www.cnn.com/2023/01/11/business/nurses-strike-staff-shortage-problem/index.html [Jan 11, 2023]). Nursing shortages result in worse outcomes for patients. (Lasater, KB, et al., BMJ Open, “Patient outcomes and cost savings associated with hospital safe nurse staffing legislation: an observational study” [Dec 8, 2021]; He, Jianghua, et al., BMC Nursing, “Nurse staffing and 3 8 of 15 FILED: ALBANY COUNTY CLERK 02/21/2024 11:40 AM INDEX NO. 901869-24 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 02/21/2024 patient outcomes: a longitudinal study on trend and seasonality” [Oct 14 2016]; Dall’Ora, Chiara, International Journal of Nursing Studies, “Nurse staffing levels and patient outcomes: A systematic review of longitudinal studies” [Oct 2022]). Respondents’ actions against Petitioners will exacerbate this crisis. “Also important [in an Art. 78 proceeding seeking prohibition relief], but not controlling, is whether the excess of power can be adequately corrected on appeal or by other ordinary proceedings at law or in equity.” (La Rocca, supra at 579). “Nevertheless, where the lower court is exceeding its jurisdiction and the writ or order furnishes a more effective remedy, it may be availed of although the error might be corrected by appeal.” (Hogan v Ct of Gen Sessions of New York Cnty, 296 NY 1, 9 [1946]). “[I]n those instances where the lower tribunal is about to exceed its powers and the ordinary remedy of appeal is inadequate or insufficient, the court where the petition is brought should act resolutely to stop it before irretrievable harm is perpetrated.” (Milonas v Schwalb, 65 Misc 2d 1042, 1043 [Sup. Ct., New York Cty, 1971] citing Hogan, supra). Several of the actions Respondents threaten are outside of any judicial or quasi-judicial procedure, meaning there is no clear path for an appeal should Respondents actually carry out these steps. In addition, Petitioners and their families cannot afford to wait for an opportunity to appeal Respondents’ threatened illegal acts. They will be, as some have already been due to Respondents’ threats, forced to work without the benefit of the professional licenses they earned, at a much lower earning capacity, depriving them of the ability to support themselves and their families. Alternatively, they may be required to repeat expensive and time-consuming schooling and the NCLEX, which they already successfully completed and paid for. In the present case, Respondents have exceeded their powers in that they indicated they (1) intend to take a number of actions against Petitioners and their licenses which are not permitted 4 9 of 15 FILED: ALBANY COUNTY CLERK 02/21/2024 11:40 AM INDEX NO. 901869-24 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 02/21/2024 pursuant to applicable statutes; (2) based on a recent change to the applicable statute, which does not have retroactive effect, with regard to the Department’s powers related to licenses issued to nurses educated at schools outside of New York State; and (3) solely based on Petitioners’ attendance at particular nursing schools without specific evidence of fraud or other misconduct on the part of the subject individual licensees. 1. Respondents should be prohibited from retroactively applying a regulation passed years after Petitioners earned their New York nursing licenses “Retroactive operation is not favored by the courts and statutes will not be given such construction unless the language expressly or by necessary implication requires it” (Gottwald v Sebert, 40 NY3d 240, 258 [2023] [internal citations omitted]) “This approach reflects a deeply rooted presumption against retroactivity based on elementary considerations of fairness.” (Gottwald, supra at 258). To meet the professional education requirement as a Registered/Licensed Nurse at the time the each of the Petitioners herein applied for licensure, an applicant educated outside of New York state was required to have graduated from “a program in nursing approved by the licensing authority in another state, territory or possession of the United States as preparation for practice as a registered professional nurse.” (8 NYCRR 64.1, subdivisions (a)(2), effective as of March 9, 1990). Petitioners attended schools that were approved by the licensing entity in Florida at the time they attended, graduated, and submitted their applications for licensing in New York. Petitioners were granted their licenses and worked years as nurses in New York State. In February 2023, Respondents sent the threatening correspondence. (Exhibit F; Exhibit Q). Evidently realizing the statute provided Respondents with no discretion to reject an applicant educated in an out of State program, on April 18, 2023, the NYSED set forth an emergency/proposed rule to amend 64.1 of Title 8 NYCRR to include the phrase “unless such 5 10 of 15 FILED: ALBANY COUNTY CLERK 02/21/2024 11:40 AM INDEX NO. 901869-24 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 02/21/2024 program or any part thereof has been determined not to be satisfactory to the department.” At the time the nurses applied, neither the program nor any part thereof had “been determined not to be satisfactory to the department.” There is nothing in the statute indicating it is retroactive in its effect. This very approach has been judicially rejected. In Burmaster, petitioners earned eligibilities and appointments to positions in the City of Albany Police Department after sitting for civil service examinations. (Burmaster v New York State Dept of Civ Serv, 28 Misc 2d 1086 [Supreme Crt Albany Cnty, Sept 7, 1961]). Three years later, there was change to the Civil Service Law and the respondents, including the New York State Department of Civil Service, started an investigation to rescind the petitioners’ appointments pursuant to that new section of law. The petitioners commenced an Article 78 proceeding to prohibit respondents from rescinding petitioners’ eligibilities and appointments. The court held prohibition was “a proper method of challenging in advance the jurisdiction of the Commission to proceed.” (Burmaster, supra at 1088 [internal citations omitted]). The court ruled in the petitioners’ favor and restrained the respondents from proceeding, holding respondents could not use the subsequently changed statute “to deprive the petitioners of the rights they acquired long ago.” (Burmaster, supra at 1088-1089). This is precisely what Respondents herein threaten to do, “deprive the petitioners of the rights they acquired long ago” through retroactive application of a regulation. Respondents should be restrained from taking such an illegal action. 2. Respondents should be prohibited from taking illegal actions against Petitioners based solely on the schools they attended with no allegations of individual misconduct Without citing to any authority, the Department threatened the Petitioners with: (1) cancellation of NCLEX scores; (2) summary suspension of Petitioners’ licenses and registrations; and (3) the commencement of disciplinary proceedings. In addition, the Department threatened to 6 11 of 15 FILED: ALBANY COUNTY CLERK 02/21/2024 11:40 AM INDEX NO. 901869-24 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 02/21/2024 issue a recommendation to the Board of Regents that Petitioners’ “professional license and registration be rescinded pursuant to Education Law §6506(7).” (Exhibit F; Exhibit Q). These acts are all threatened based solely upon the schools attended by Petitioners with no allegations that Petitioners engaged in any individual misconduct. With regard to the first threatened action, there is nothing indicating the Respondents have the power to cancel Petitioners’ NCLEX scores at all, let alone for a reason having nothing to do with the licensee’s examination. (See generally NY Edu Law Ch 16, VII – The Professions; 8 NYCRR, Ch I, Rules of the Board of Regents). NCLEX is a national standardized test administered by the National Council of State Boards of Nursing (NCSBN). While the candidate who wishes to take the NCLEX must apply for licensure/registration with the “nursing regulatory body” in order to obtain authorization to test, in the case of New York State, there is nothing under New York Law permitting the New York State Education Department or Board of Regents to withdraw authorization to test years after the NCLEX was taken and passed. Pursuant to the rules and regulations set forth on the NCLEX website, NCSBN may dismiss or cancel results in the event of violations of “test center regulation or rules” or if the candidate “engages in irregular behavior, misconduct and/or does not follow the test administrator’s warning to discontinue inappropriate behavior.” (NCLEX, NCLEX Rules Terms & Conditions of the NCLEX, https://www.nclex.com/nclex-rules.page [last accessed Dec 11, 2023]). There is nothing in the NCLEX rules and regulations suggesting NCLEX scores would be canceled based on the current status of the program an individual attended. (See generally id.). Moreover, while there is a method by which a license may be revoked, annulled or suspended where there is a finding of “professional misconduct,” there are no allegations of professional misconduct here. (NY Edu Law §§ 6509-6511-a). There are fourteen enumerated 7 12 of 15 FILED: ALBANY COUNTY CLERK 02/21/2024 11:40 AM INDEX NO. 901869-24 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 02/21/2024 paragraphs defining “professional misconduct” pursuant to the New York Education Law. (NY Edu Law §§ 6509-6511-a). A change in status of the nursing program a licensee attended is not encompassed in any definition of “professional misconduct” pursuant to the statute. (NY Edu Law §§ 6509-6509-E). In the instant cases, there are no allegations of individual misconduct on the part of the Petitioners. Instead, Respondents’ actions and threats against Petitioners are rather based upon allegations regarding the program they attended that arose years after Petitioners were licensed and practicing in New York. Moreover, pursuant to the Education Law, neither the Department of Education nor the Board of Regents are empowered to summarily suspend a Registered Nurse’s license because of an issue with the nursing program attended by a licensee. (See NY Educ Law § 6510; 8 NYCRR § 17.9). The Board of Regents is empowered to summarily suspend a professional license only where the director of the Office of Professional Discipline issues a verified petition “demonstrating probable cause to believe that”: (1) [the licensee] has committed professional misconduct; and, (2) that the public health, safety or welfare imperatively requires emergency action to summarily suspend [the licensee’s] license.” (8 NYCRR § 17.9[b]). Even in these emergency situations, certain due process protections are required, including service upon the licensee of notice of a hearing and a verified petition setting forth the charges of professional misconduct, demonstrating probable cause. (8 NYCRR § 17.9[b]). The licensee has the right to submit an answer, has a right to counsel, and has a right to be heard at oral argument. (8 NYCRR § 17.9[c]). As described above, Respondents have alleged no conduct that meets the definition of “professional misconduct.” Furthermore, there can be no reasonable argument that Respondents “have probable cause to believe that” “the public health, safety or welfare imperatively requires emergency action to summarily suspend [the licensee’s] license.” On February 27, 2023, 8 13 of 15 FILED: ALBANY COUNTY CLERK 02/21/2024 11:40 AM INDEX NO. 901869-24 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 02/21/2024 Respondents first notified Petitioners that Petitioners had to mail in their licenses within fourteen days or Respondents would take action against Petitioners. (Exhibit A). In spite of invitations by counsel for many of the Petitioners to discuss the matter, Respondents ignored Petitioners until they sent further mass correspondence in December 2023 repeating the same demands and threats made in the February 2023 correspondence. (Exhibit G). In the approximately one year that has passed since Respondents first contacted Petitioners regarding this matter, most of the Petitioners have continued to hold their New York nursing licenses and have continued rendering care to patients. If there was a legitimate concern for public health requiring emergency action, Respondents would not take a year to proceed with that action. In addition, Petitioners completed education including attending remote and in person classes, clinical education, homework, and examinations, and were required to pass the NCLEX, a nationally administered standardized test. Since earning their nursing licenses, Petitioners have gained years of on-the-job nursing experience. Summary suspension simply does not apply to the situation herein and Respondents should not be permitted to pursue same against Petitioners. Similarly, Respondents should be prohibited from moving forward with their threat to recommend the Board of Regents “rescind[]” Petitioners “professional license and registration” “pursuant to Education Law §6506(7)” (Exhibit A). While New York Education Law permits the Board of Regents to “Direct the department to remedy any error, omission, delay or other circumstance in the issuance or registration of a license”, this provision does not empower either entity to summarily cancel a professional license and circumvent due process requirements. (Haynal v Brd of Regents of Univ of State of NY, 61 Misc2d 268 [Albany Cty, Nov 24, 1969]). 9 14 of 15 FILED: ALBANY COUNTY CLERK 02/21/2024 11:40 AM INDEX NO. 901869-24 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 02/21/2024 CONCLUSION Based on the foregoing, Petitioners respectfully request this Court enter judgment, pursuant to CPLR § 7806, on their behalf: a. prohibiting Respondents from taking or recommending another entity take the threatened actions against Petitioners’ licenses, including (1) cancellation of Petitioners’ NCLEX scores; or (2) otherwise nullifying, canceling, revoking, suspending, or annulling Petitioners’ licenses without due process; b. prohibiting Respondents from taking any action against Petitioners based on retroactive application of the new amendment to 8 NYCRR 64.1; c. prohibiting Respondents from commencing proceedings to take action against Petitioners based solely on their attendance in a certain nursing program; d. granting Petitioners costs and disbursements associated with this proceeding; and e. granting Petitioner whatever such other and further relief this Court deems just and proper. Dated: Buffalo, New York February 21, 2024 ADDELMAN CROSS & BALDWIN, PC _________________________ Jesse B. Baldwin Attorneys for Petitioners 5680 Main Street Buffalo, New York 14221 (716) 0475-9530 jbaldwin@acbfirm.com 10 15 of 15