Not going to take it anymore: One agency’s fight to appeal unfair survey

Years of effort win right for Indiana agencies to obtain objective review

Surveys can be stressful enough, but how would you react to a complaint-based state survey during which the surveyor never asked for information from the physician or home care nurse involved? What if the erroneous information resulted in a condition-level deficiency report that prevented you from certifying your own home health aides, resulting in tens of thousands of dollars in expense to pay other organizations to perform the competency certification?

"I’ve been at this agency since 1986, and we’ve had the same basic administrative staff since the early 1990s," says Lyn Estell, RN, administrator of Advantage Health Care, the Muncie, IN, home health agency that experienced that survey. "With this one survey, we went from an agency that had been deficiency-free for seven years to condition-level deficiency with serious restrictions on our ability to function," she says.

Taking a state health board to court to ensure an objective hearing for an appeal is a big step, but Advantage’s administration believed that the results of this report and the inaccuracies upon which it is was based were so severe that the agency could not just accept it and move on, Estell says.

"We found out on the Thursday evening before Good Friday that a complaint had been made against one of our nurses for abusing a child," she says. Because the holiday meant a three-day weekend, Estell was unable to conduct her internal investigation until Monday, with the surveyors appearing on Tuesday.

"The complaint came from a foster mother who alleged that the nurse struck a child in the mouth," she says. "She also claimed the nurse did not follow physician orders related to the child’s feedings. We found it interesting that Child Protective Services would not investigate the claim of abuse, especially since the agency was the child’s legal guardian, but the [Indiana] State Board of Health was willing to conduct an investigation without gathering information from Child Protective Services, the nurse involved, or the physician involved," she says.

Although the original report included information that two people from an organization that places children with foster and adoptive parents witnessed the incident, a letter from the organization was sent to the board of health one month after the survey, indicating that the organization’s employees did not witness any abuse. "We had asked the [Indiana] State Board of Health for working papers related to this complaint and survey, but we never received a copy of this letter," Estell adds.

Once Estell received a copy of the survey report, more than 70 pages, it took her two 70-hour workweeks to complete the plan of correction. "It also took a huge amount of administrative nursing time to implement the plan," she says.

Appeal process less than objective

Advantage did appeal the survey because of many inaccuracies in the report. "In Indiana, our only avenue of appeal was an informal dispute resolution in which we put in writing our reasons for appealing the survey," Estell explains.

A three-person board that consisted of supervisors and a quality control person who were all involved in the original survey heard the appeal. "We did not believe that anyone took an objective look at the survey, and we decided that we wanted our case heard by an administrative law judge who could be objective," she adds.

"I actually set up the informal dispute resolution process for the home health division when I was counsel for the Indiana State Board of Health," says Virginia Wright Caudill, JD, an Indianapolis-based attorney who is representing Advantage in their action against the department. "Our long-term care division had the process in place, and it made sense that the home health division have the same process. What I didn’t realize was that the difference in division staff sizes, with home health division about a third the size of the long-term care division, would mean that the review board would be staffed by people involved in the survey," she says.

"The only way to get an objective review is to go before an administrative law judge, but the Indiana State Board of Health claimed [it was] not subject to the Administrative Order and Procedures Act," Caudill points out. On Aug. 6, 2003, more than two years after the original survey, the Indiana Court of Appeals ruled that Advantage could seek a review with an administrative law judge, opening up an new avenue of appeal and review for all home health agencies, she adds.1

Most home health agencies don’t pursue appeals and reviews because they do take time and money, she says. "But Advantage really stepped up to the plate when [it] said No, this isn’t right,’ and pushed for an objective review," Caudill says.

In addition to the time and money involved in seeking a review of the one survey report, Advantage experienced six different state audits in the year following the appeal, as compared to the one or two it usually had experienced, Estell says. "I think it’s easier for agencies just to accept the report and make the best of it, but we were willing to undergo the extra scrutiny and the extra work because we believed that [our agency] had been wronged," she says.

Nurse leaves home health

The effect of the report also extended to the staff, Estell points out. The nurse who was accused of hitting the child in the mouth and a nurse who was identified as her supervisor were reported to the Health Professionals Bureau by the board of health. "The licensure bureau did not pursue any investigation, but we did place the nurse on office duty while we investigated. Even though no evidence of the alleged abuse has ever been presented, the nurse decided to leave nursing because of the stress," she says.

The supervisor who was reported to the licensure board was the incorrect person, even though the original survey report correctly identified the field nurse’s supervisor, Estell adds. "This incorrect report to the licensure board meant that a nurse who was never involved spent a great deal of time clearing her own name," she explains.

What about the charge that the nurse did not follow the physician’s orders for care? "The nurse had been caring for the child for a period of time, and the physician’s orders included feeding instructions that stated a certain amount of food but allowed latitude based upon the child’s ability to tolerate the feeding as judged by the nurse and the biological mother," Estell explains.

After the child was hospitalized and discharged to a foster home, the orders from the discharging physician changed slightly. "Unfortunately, the discharging physician’s orders specified a certain amount for each feeding without a statement that allowed the nurse to adjust the amount to the child’s ability to tolerate," she adds.

The nurse continued to provide the care as it was ordered prior to the hospitalization, but she should have double-checked the new orders and contacted the physician for approval to adjust feeding amounts as needed, Estell points out.

While many agencies may be reluctant to challenge a survey report because of the fear of retribution, it usually doesn’t happen as it had in Advantage’s case, Caudill says. "The real problems occur when you don’t have an opportunity to challenge a survey because there has to be a system of checks and balances," she says. "The significance of this court decision is that it gives agencies a chance to challenge an unfair report and that is important because if you allow government agencies to step over boundaries, the problems won’t go away, they’ll just get worse," Caudill adds.

For more information, contact:

Virginia Wright Caudill, JD, Attorney, Gilliland & Caudill, 6650 Telecom Drive, Suite 100, Indianapolis, IN 46278. Telephone: (317) 616-3647. Fax: (317) 275-9246. E-mail:


1. Advantage Home Health Care, Inc. v. Indiana State Department of Health and Indiana State Health Commissioner, No. 18A02-0211-CV-928, Court of Appeals of Indiana (Aug. 6, 2003).