POLICY #38
ARBITRATION
This Arbitration Policy of the Accreditation Commission for Education in Nursing (ACEN) shall apply only to an adverse action by the ACEN Board of Commissioners that has been fully and finally determined by a written decision of the Appeal Committee pursuant to Policy #10 Appeal Process and Submission of New Financial Information Subsequent to Adverse Action.
As a condition of seeking initial accreditation or continuing accreditation with the ACEN, each nursing program seeking initial accreditation or continuing accreditation consents to resolving disputes regarding a decision through the Appeal Committee in accordance with the arbitration procedures set forth in this policy as required by 20 U.S.C. §1099b(e) and 34 C.F.R. §602.20(e).
Arbitration
- Governing Law
The arbitration process in this Policy shall be governed by the Federal Arbitration Act, 9 U.S.C. §1-16 (Act), which shall be deemed to pre-empt any State arbitration provisions that may otherwise be applicable.
- Jurisdiction of the Arbitrator
The arbitrator shall have jurisdiction to determine whether the final decision of the Appeal Committee was rightly decided and to make all rulings necessary and incidental thereto. The arbitrator shall have no jurisdiction or authority to enter a recommendation for monetary damages. The recommendation of the arbitrator shall be limited to recommending affirmation or reversal of the decision of the Appeal Committee and the material reasons.
- Jurisdiction of the Arbitrator
All recommendations by the arbitrator shall be final.
Arbitrator
- The arbitration will be administered by an Arbitrator selected from the National Roster of Arbitrators maintained by the American Arbitration Association (AAA).
- The arbitrator will be selected pursuant to the procedures specified in the American Arbitration Association rules for selecting an arbitrator from its National Roster. Any list(s) of potential arbitrators must identify at least five individuals who are lawyers experienced in higher education matters and/or retired appellate judges.
If there is any conflict or inconsistency between this Policy and AAA rules on this or any other issue, this Policy will govern.
If this process fails to identify an acceptable arbitrator within thirty (30) calendar days and the parties are unable to agree on a substitute, AAA will select an arbitrator, consistent with these qualifications, who will be bound to apply this Policy and the rules of AAA.
Neither the institution nor the ACEN nor anyone acting on their behalf will communicate ex parte with the Arbitrator or anyone who is a candidate to be the arbitrator.
Commencement of an Arbitration Proceeding
- Notice of Arbitration, Deposit, and Payment of Expenses
The governing organization of the nursing program shall submit a notice of arbitration in writing by its Chief Executive Officer to the ACEN Chief Executive Officer by email within 10 business days of the governing organization’s/nursing program’s receipt of the written final accreditation decision of the Appeal Committee. The original notice of arbitration shall be sent by overnight delivery with proof of receipt to the ACEN Chief Executive Officer at the same time it is sent by email. The original notice of arbitration shall be accompanied by a non-refundable check in accordance with the fee schedule as a deposit payable to the ACEN for expenses such as the travel, lodging, meals, and venue charges incurred by the arbitrator and the ACEN in convening and pursuing the arbitration; credit cards are not an acceptable form of payment. The governing organization/nursing program submitting the matter to arbitration is responsible for all expenses of the arbitration, including representation and counsel fees incurred by the ACEN. If the expenses incurred exceed the deposit, the governing organization/nursing program will be assessed the additional amount. The arbitrator shall submit expense vouchers to the ACEN in the form and manner prescribed by the ACEN for the reimbursement of reasonable expenses incurred.
- Contents of the Notice
The notice of arbitration need not be in any particular form, but it must clearly identify the decision of the Appeal Committee and state that the governing organization/nursing program submits the decision of the Appeal Committee to arbitration in accordance with this policy. The notice need not specify the basis for the arbitration. The notice of arbitration is sufficient to challenge the decision of the Appeal Committee on all legal grounds.
- Effect of the Notice
A timely notice of arbitration in accordance with this policy shall have the immediate effect of continuing the nursing program in accreditation with the ACEN in the same status as it was prior to the Board of Commissioners’ adverse action until the arbitration recommendation is rendered. The ACEN shall provide notice to any constituencies previously noticed of the result of the appeal that a timely notice of arbitration has been filed and the effect thereof.
Arbitration Procedures
- Time for Completion of the Arbitration
The arbitration proceedings shall be completed within 90 business days of the date of the convening of the arbitration. The completion of the proceedings shall be evidenced by the written recommendation of the arbitrator.
- Record on Review
The review of the decision of the Appeal Committee by the arbitrator shall be on the record presented to the Appeal Committee, including the Administrative Record, the Briefs of the Parties, the Transcripts of the Appeal Hearing, any pre-hearing proceedings, any additional evidence submitted to the Appeal Committee, any rulings thereon, and the decision of the Appeal Committee. It shall be the duty of the ACEN Chief Executive Officer, assisted by the Chair of the Appeal Committee, to assemble the Record on Review and submit it to the arbitrator and to the representatives of the parties within 30 business days of the convening of the arbitration. The Record on Review shall be submitted electronically.
- Discovery and the Submission of Additional Evidence
There shall be no discovery in the arbitration proceeding. There shall not be any additional evidence submitted to the arbitrator beyond the Record on Review.
- Standard of Review
The governing organization/nursing program shall bear the burden of persuading the arbitrator that the decision of the Appeal Committee is clearly erroneous in accordance with the standards of Policy #10 and in accordance with applicable law.
- Location and Manner of the Proceedings
The arbitration proceedings shall take place in the Atlanta, Georgia, Metropolitan Area at a venue arranged for by the ACEN in consultation with the arbitrator and the parties. With the unanimous consent of the parties and the arbitrator, the proceedings may take place at another venue within or outside the Atlanta, Georgia, Metropolitan Area; however, financial arrangements must be made and agreed to in advance. With the unanimous consent of the parties and the arbitrator, some or all of the proceedings may take place remotely by telephonic or other electronic means so long as all parties and the arbitrator can participate equally.
- Representation
Any party may participate pro se without representation or by counsel or any other representative of the party’s choosing unless such choice is prohibited by applicable law. A party intending to be so represented shall notify the other party and the arbitrator of the name, telephone number, physical address, and email address of the representative at least seven business days prior to the date set for the hearing at which that person is first to appear. When such a representative responds for a party, notice is deemed to have been given.
- Preliminary Hearing
At the discretion of the arbitrator a preliminary hearing may be scheduled and if deemed necessary, it should be scheduled as soon as practicable. The parties should be invited to attend along with their representatives. The parties and the arbitrator should be prepared to discuss and establish a procedure for the conduct of the arbitration proceedings within the procedures set forth in this policy.
- Briefs
The governing organization/nursing program initiating the arbitration shall submit its principal brief within 14 business days of receipt of the Record on Review. The ACEN shall submit its response brief within 14 business days of receipt of the brief of the governing organization/nursing program. The arbitrator may request briefs from the parties on such other matters and at such times as they may determine. All briefs shall be submitted electronically as determined by the ACEN Chief Executive Officer (e.g., email, flash drive, cloud access).
- Hearing
The hearing shall take place in accordance with the arrangements outlined in point 5a. The hearing on the issues raised by the parties to the arbitration shall be heard by the arbitrator at a date scheduled by the arbitrator. The arbitrator may request arguments from the parties on such other matters and at such times as they may determine.
- Attendance at the Proceedings
All arbitration proceedings are private and are not open to the public. Any person having a direct interest in the arbitration is entitled to attend the hearings. The arbitrator shall have the discretion to determine the propriety of the attendance of any person other than the parties and their representatives.
- Stenographic and Other Recordings
Any party desiring a stenographic record shall make arrangements directly with a stenographer and shall notify the other parties of these arrangements at least three business days in advance of the hearing. The requesting party(ies) shall pay the cost of the record. No other means of recording the proceedings are permitted absent the agreement of the parties or the direction of the arbitrator.
- Waiver
Any party, who proceeds with the arbitration after knowledge that any provision or requirement of this policy has not been complied with and fails to object in writing, shall be deemed to have waived the objection.
- Form and Delivery of the Recommendation
The recommendation shall be signed by the arbitrator and shall be executed in the form and manner required by the Federal Arbitration Act. The recommendation shall state the reasons for the recommendation and shall rule on the substantial claims of the parties. The recommendation of the arbitrator shall be limited to recommending affirmance or reversal of the decision of the Appeal Committee, stating the material reasons. The recommendation shall be delivered electronically to the email addresses of the parties and to their representatives.
- Acceptance of the Recommendation
The recommendation of the arbitrator shall be deemed accepted if neither party notifies the other in writing by 5:00 p.m. Eastern Time 10 calendar days from delivery of the recommendation as provided in point 13a above. If the recommendation is accepted by ACEN and the governing organization/nursing program, the ACEN Board of Commissioners shall make the recommendation of the arbitrator its final decision.
Policy #38 History
Developed and Approved July 2020
Revised March 2021
Revised July 2022
Reviewed June 2025
Revised June 2026
