Preview:

ATTORNEYS FOR APPELLANT Virginia Wright Caudill Robert W. Markette, Jr. Indianapolis, Indiana

ATTORNEYS FOR APPELLEES Steve Carter Attorney General of Indiana David L. Steiner Laureanne Nordstrom Deputies Attorney General Indianapolis, Indiana ATTORNEYS FOR AMICUS CURIAE Peter D. Keisler Assistant Attorney General of the United States Susan W. Brooks United States Attorney James P. Hanlon Assistant United States Attorney Michael S. Raab Mark S. Davies Attorneys, Appellate Staff, Department of Justice

In the

Indiana Supreme Court
_________________________________
No. 18S02-0405-CV-198 ADVANTAGE HOME HEALTH CARE, INC., Appellant (Plaintiff below), v. INDIANA STATE DEPARTMENT OF HEALTH AND INDIANA STATE HEALTH COMMISSIONER, Appellees (Defendants below). _________________________________ Appeal from the Delaware Circuit Court, No. 18C01-0109-CP-547 The Honorable Marianne Vorhees, Master Commissioner The Honorable Wayne Lennington, Judge _________________________________

On Petition to Transfer from the Indiana Court of Appeals, No. 18A02-0211-CV-928. _________________________________ June 22, 2005 Shepard, Chief Justice. Dissatisfied with reports about inspections the Indiana Department of Health conducted of its facilities, appellant Advantage Home Health Care filed for declaratory judgment. It sought to establish that the inspection reports and accompanying requests for correction of deficiencies constituted orders appealable under the Administrative Orders and Procedures Act. Because Advantage did not exhaust the administrative procedures available to it, the trial court properly granted judgment to the Department.

Facts and Procedural History

Advantage Home Health Care, Inc., is a home health agency that provides patients with both skilled and unskilled in-home health care services. The Indiana State Department of Health licenses Advantage and other providers, assuring compliance with various state statutes and regulations concerning the operation of home health agencies. Advantage is also a certified provider under the federal Medicare and Medicaid programs and must comply with federal statues and regulations as well as with certain standards known as "conditions of participation" in order to receive federal funds.

To maintain its state license and federal certification, Advantage is subject to inspections commonly referred to as "surveys." The Department conducts these surveys on a routine annual basis, or if a complaint is received concerning the home health agency. Even though only a single inspection usually occurs, the Department acts in two distinct capacities when it conducts surveys: 1) as a state licensing and regulatory agency; and 2) as an agent of the federal Centers of Medicare and Medicaid Services.

2

Once the inspection is complete, the investigator produces two survey reports, one report addressing compliance with state law and the other compliance with federal law. The two reports each set forth various "findings" that are essentially statements made by the investigator as a result of her inspection. The "findings" are based on information collected during the inspection from interviews, the review of records, and observations of the treatment provided by the agency.

Completed reports are recorded on a standard form called a "Statement of Deficiencies and Plan of Correction," with one form referring to state law and one to federal law. These are sent from the field to the Department's main office. The Department then forwards the

statements of deficiency to the home health agency. It also sends an accompanying letter that summarizes the survey results, and requests that the agency submit a "plan of correction" to detail how it will address the identified violations. The letter also informs the home health agency of the opportunity to contest the deficiencies listed by invoking an Internal Dispute Resolution ("IDR") process.

At the time the facts relevant to this case arose, the Department's IDR process afforded an agency both a paper review and a "face-to-face" review of the statement of deficiencies. (Appellant's App. at 750.) In the paper review, the IDR panel reviews the statement of

deficiencies and any documentation provided by the agency and can remove, modify or leave unchanged any of the deficiencies identified. If the agency is dissatisfied with the results of the paper review, it can request a face-to-face review in which the agency can speak directly with the IDR panel.

In April 2001, the Department completed both state and federal surveys of Advantage after receiving a complaint that a nurse employed by Advantage struck a special needs child in the mouth. The surveys identified three violations of Indiana's home health rules and about twenty-six violations of federal regulations. On May 23, 2001, the Department sent a letter, and federal and state statements of deficiency to Advantage. The letter, like the first page of the federal statement of deficiency, indicated that Advantage was out of compliance with two federal conditions of participation and informed Advantage that "in order to interrupt this determination

3

of noncompliance process a Credible Allegation of Compliance must be submitted to this office for each condition cited and a plan of correction for each standard level deficiency cited." (Appellant's App. at 502.) The letter briefly mentioned the existence of state deficiencies. 1 It also informed Advantage of its ability to "contest deficiencies contained in the Statement of Deficiencies" through the IDR process. (Appellant's App. at 503.)

Advantage filed a plan of correction and on June 4, 2001, it requested administrative review of the surveys under the Administrative Orders and Procedures Act ("AOPA"), Ind. Code Ann.

Download Advantage Home Health Care, Inc. v. Indiana State Dept. of Health.pdf

Indiana Law