Home Health & Hospice Week

You're stuck with your survey report.

An Indiana home health agency's attempt to secure an unbiased review of state survey reports has hit a brick wall.

Advantage Home Health Care Inc. in Indianapolis filed suit seeking a third-party review of its 2001 state survey report and actually won a favorable decision from a state appeals court. But the Indiana Supreme Court reversed that ruling in a decision issued June 22, Advantage Home Health Care, Inc. v. Indiana State Department of Health (No. 18S02-0405-CV-198).

Advantage argued that under a state law, the survey report counts as an "order" and thus should be subject to third-party review. The report is an order because the agency has to complete a plan of correction in response to it, the agency said.

The Supreme Court actually reversed the appeals court decision on jurisdictional grounds, saying that Advantage hadn't exhausted its administrative remedies before filing suit. Nevertheless, the court discussed the agency's arguments and concluded that the survey report does not count as an order under state law.

The state argued that the survey report wasn't an order because it was an investigation, says Robert Markette, attorney with Indianapolis-based Gilliland & Caudill, who represented Advantage in the case. And investigations aren't appealable under state law.

"At some point an investigation has to end," Markette protests. Although Markette disagrees with both the jurisdictional decision and the reasoning the Supreme Court offered on the order status, the highest state court is the end of the line for this case, he tells Eli.

Because the state Supreme Court ruled only on the jurisdictional grounds, a health care provider may take up the issue again in a future lawsuit, Markette says.

But Indiana providers may have to turn to the state legislative system to get satisfaction in securing unbiased reviews of their state surveys. Lawmaker intervention is a long shot, however, because of the fear of associated costs for appeals.

Plan of Correction, Exit Conference Best Bets

Most state courts would probably issue decisions similar to this one, predicts attorney Deborah Randall with Arent Fox in Washington, DC.

"I am not surprised," agrees attorney Liz Pearson with Pearson & Bernard in Covington, KY.

Generally, HHAs can appeal surveys only if the state tries to close you down, Randall points out.

Indiana does have an informal dispute resolution (IDR) process if you disagree with your survey, but the reviewers are the higher-ups in the Department of Health - basically your surveyors' bosses, Markette says. Because a third party doesn't conduct the IDR process, it's not unbiased, he maintains.

Unless the state takes drastic measures, the most you can usually do is try to state your opposition to the survey findings within your plan of correction, although you then risk the state rejecting the plan, Randall suggests. Or you can try to have a meaningful exit conference where you submit evidence to change surveyors' minds, she adds.

In extremely egregious cases, Randall has taken concerns to the state attorney general or to the Centers for Medicare & Medicaid Services central office, she relates.

Note: The court decision is online at www.in.gov/judiciary/opinions/pdf/06220502rts.pdf.