Home Health & Hospice Week

 State sureryors not above the law, recent decision shows

Home health agencies frustrated with their state survey appeal rights may want to pay close attention to a new court decision in the Hoosier State.

Indiana HHAs - and all providers regulated by the Indiana State Department of Health (ISDH) - will be able to obtain an administrative law judge review of their survey results, as long as a recent state court decision stands.

The situation sparking the lawsuit came about in April 2001, when Muncie, IN-based Advantage Home Health Care Inc. was surveyed based on a complaint from a pediatric patient's foster mother, says Advantage Administrator Lyn Estell.

When the patient was fostered for a few days, the "mother" accused the nurse who had attended the child for two years of slapping the patient in the mouth, among other things, according to the Aug. 6 decision from the Indiana state Court of Appeals, Advantage v. ISDH (No. 18A02-02110CV-928). A complaint investigation followed.

Advantage was shocked to find the state surveyor took many of the foster mother's claims as truth, without verifying the facts with or even speaking to other sources such as the child's physicians. The survey didn't even interview the nurse whose alleged behavior sparked the complaint, Estell tells Eli.

Advantage, which had been almost a deficiency-free agency since its inception under another name in the mid 1980s according to Estell, suddenly faced a Statement of Deficiencies containing two condition-level deficiencies and a "whole boatload" of standard-level dings, Estell says. "So many things in the audit were not true, not verifiable," she claims.

As a result, Advantage had to write a plan of correction. The state prohibited the HHA from training and certifying its own home health aides for two years, until April 2003.

And the HHA's bad survey report card went up on the Internet for all to see - all based on a survey that the agency claimed was bungled from start to finish.

Curtailing Advantage's aide training program was especially painful for the largely private duty agency with a significant pediatric patient population. Advantage certifies up to 300 aides per year and experiences about 50 percent turnover of aides in a given year, Estell estimates. Shutting down the HHA's aide certification ability "was a huge deal for this agency," which services more than 1,000 patients per year, she says.

Advantage tried to get the problems cleared up through Indiana's Informal Dispute Resolution process, notes Estell. The state took back a few minor deficiencies, but left the condition-level ones and prohibition on training intact.

And when the HHA tried to obtain an ALJ hearing, the state said 'no dice,' says Advantage's attorney, Virginia Caudill of Indianapolis-based Gilliland & Caudill. ISDH claimed the Statement of Deficiencies and Letter of Correction it lodged against Advantage as a result of the survey weren't technically "orders," which are subject to ALJ hearings under an Indiana state law.

Basically, "the Department of Health said you as an HHA don't have a right to challenge anything we say," says Caudill, who formerly worked as the ISDH's acute care attorney. "That's absolute unchecked power."

An Indiana county court agreed with the state, and Advantage appealed the unfavorable decision to the state's Appeals Court, which sided with the HHA. "The ISDH failed to make any showing that its actions toward Advantage were exempt from review procedures," the decision says. That means if ISDH decides not to appeal, then HHAs and other providers will be able to challenge surveys in front of an ALJ, Caudill notes.

"It's two-and-a-half years later and we haven't even gotten to argue the merits of the case in front of an ALJ," laments Estell. "It's just not fair." The HHA aimed to head off the aide training prohibition with its lawsuit, and the two-year time limit on the sanction has already passed, Estell points out.

Caudill predicts ISDH isn't about to let the decision, which "will create a lot more work" for the department, stand without a fight. The department likely will request a transfer to the Indiana Supreme Court. If the Court declines to accept the transfer, the decision will stand and the lower trial court will set up an ALJ hearing, Caudill explains. If it takes the case, the arguments will start all over again.

Advantage is committed to seeing the case through to the end, even if that means resorting to federal court after state avenues are exhausted, Estell and Caudill say. "This survey was not protecting anybody," as state surveys should do, Estell protests. "It just made it harder to provide good care to patients."

Caudill hopes this is a lesson to ISDH that "unchecked power is still not acceptable in today's society." After Advantage filed its suit, the department surveyed the HHA 11 times in six months, Caudill adds - "pure arrogance."

ISDH didn't immediately return requests for comment for this story.