Especially Kidz Health and Rehab, Appellant-Petitioner v. Indiana Department of Health, Appellee-Respondent (2026)

MEMORANDUM DECISION

Statement of the Case

[1] This case returns to our Court following a prior appeal. In this appeal, the Board of Trustees of the Flavius J. Witham Memorial Hospital d/b/a Especially Kidz Health and Rehab (“Especially Kidz”) appeals the trial court's denial of its petition for judicial review regarding the action of the Indiana Department of Health (“IDOH”). Specifically, this appeal concerns Especially Kidz's challenge to the IDOH's immediate jeopardy determination under the United States Code of Federal Regulations and state-level notice of citation for Especially Kidz's deficiency. Concluding that the trial court did not err when it denied Especially Kidz's petition for judicial review, we affirm the trial court's judgment.

[2] We affirm.

Issue

Whether the trial court erred when it denied Especially Kidz's petition for judicial review.

Facts

[3] Especially Kidz is a licensed health care facility (“the facility”) located in Indiana. The facility provides long-term medical care to children who suffer from chronic diseases.

[4] Before delving into the underlying facts of this case, we briefly note some of the relevant federal regulations that apply to the facility. Specifically, 42 C.F.R. § 483.1 provides that the provisions of this part “contain the requirements that an institution must meet in order to qualify to participate” as a facility in the Medicare and Medicaid programs. Additionally, 42 C.F.R. § 483.25(i) provides that a facility “must ensure that a resident who needs respiratory care, including tracheostomy care and tracheal suctioning, is provided such care, consistent with professional standards of practice, the comprehensive person-centered care plan, the residents’ goals and preferences, and § 483.65 of this subpart.” Finally, 42 C.F.R. § 488 regulates the survey and certification for health care providers.

[5] Turning back to the facts of this case, in September 2020, three-year-old Resident B (“Resident B”) was a patient at the facility. Resident B was diagnosed with several chronic and serious diseases, which included, among other conditions, chronic hypoxemic respiratory failure, ventilator dependence, tracheostomy, pulmonary hypertension, and chronic lung disease. Resident B's physician (“the physician”) noted that Resident B's condition put him at high risk for “sudden clinically significant or life-threatening deterioration.” (App. Vol. 6 at 180). Due to Resident B's conditions, the facility continuously monitored him using a pulse oximeter, which is a “machine that measures [a person's] arterial oxygen levels.” (App. Vol. 2 at 121). The pulse oximeter is connected to a patient using a probe with a cable, and the probe is usually attached to a patient's ear, forehead, finger or toe. A pulse oximeter has a “touchy” alarm that will go off if the probe is disconnected, “not attached right,” or if the pulse oximeter detects that the “oxygen level is not high enough[.]” (App. Vol. 5 at 56). Resident B was very active and had a tendency to remove his pulse oximeter.

[6] During the morning and afternoon of October 16, 2021, Respiratory Therapist Sarnor Sow (“RT Sow”) saw that Resident B's pulse oximeter was working as intended. RT Sow checked on Resident B around 6:00 p.m. and saw that his pulse oximeter was still connected and showed Resident B's oxygen saturation at ninety-five percent. At 8:52 p.m., License Practical Nurse Magan Gebhart (“LPN Gebhart”) entered Resident B's room, administered medications to Resident B, and “observed and touched” him. (App. Vol. 5 at 185). LPN Gebhart did not notice any signs of distress or anything unusual about Resident B's condition.

[7] Certified Nurse Assistant Angela Barnes (“CNA Barnes”) entered Resident B's room between 9:20 p.m. and 9:30 p.m. while looking for towels. CNA Barnes noticed that the pulse oximeter was displaying dashes instead of numbers and that the alarm was not sounding. CNA Barnes went to Respiratory Therapist Jonathan Holman (“RT Holman”) and talked to him about bath schedules.¹ Approximately ten minutes later, CNA Barnes returned to Resident B's room, noticed that he was not breathing, and screamed for help.

[8] At 9:33 p.m., LPN Gebhart returned to Resident B's room when she heard CNA Barnes. LPN Gebhart touched Resident B, whose body was “warm and pliable[,]” and noticed that he “was unresponsive and without a pulse[.]” (App. Vol. 5 at 185). LPN Gebhart also noticed that the power to the pulse oximeter was turned on, that the “pulse oximeter was not displaying any numerical value[ ]” for Resident B's oxygen saturation level, and that the “pulse oximeter's alarm was not sounding.” (App. Vol. 5 at 186). RT Holman also came into the room and noticed that “[t]he screen on Resident[ ] [B's] pulse oximeter was lit with no values displayed and was not sounding any alarm.” (App. Vol. 5 at 188). Resident B was taken to a local hospital, where he died.

[9] Thereafter, an anonymous complaint was sent to the IDOH, and the complaint alleged that “a child was on a ventilator” and that “the alarms were either turned off or silenced leading to [the child's] death.” (App. Vol. 5 at 36). In response, on October 21, 2021, a survey team from the IDOH, including a lead surveyor (“the surveyor”) went to the facility to investigate the complaint. The surveyor interviewed staff, reviewed written statements from the staff, and reviewed Resident B's medical records. The surveyor spent approximately four days at the facility. During the survey, the surveyor reported her preliminary findings to the IDOH's immediate jeopardy committee.

[10] The immediate jeopardy committee issued to the facility a preliminary finding of immediate jeopardy ² on October 22, 2021. Specifically, the immediate jeopardy committee found that Especially Kidz had a deficiency ³ pursuant to 42 C.F.R. § 483.25(i) when it had failed to provide appropriate respiratory care to Resident B. IDOH removed the immediate jeopardy status on October 25, 2021 after the facility had implemented, and the IDOH had approved, a plan of correction. This plan included training staff on checking the connection between residents and the pulse oximeter every two hours, assessing the respiratory therapist every four hours, and training all staff to report if a pulse oximeter is not reading. Resident B's pulse oximeter was sent to the pulse oximeter manufacturer (“the manufacturer”) for testing.

[11] In November 2021, multiple members of the facility's staff, including RT Holman, RT Sow, and LPN Gebhart, drafted affidavits in which they detailed what had occurred on October 16, 2021. Also in November 2021, the IDOH sent to Especially Kidz a formal letter detailing the immediate jeopardy determination, which had lasted from October 16, 2021 to October 20, 2021. In its letter, the IDOH provided that the facility's noncompliance with 42 C.F.R. 483.25(i) had “been determined to constitute substandard quality of care as defined in 42 CFR 488.301.” (App. Vol. 6 at 95). The letter also provided that “the facility will be prohibited from offering or conducting a NATCEP[⁴ ] for two years from October 25, 2021” due to the fact that the facility had been “subject to an extended or partial extended survey as a result of a finding of substandard quality of care.” (App. Vol. 6 at 96). Finally, in accordance with 42 C.F.R. § 488.331(a)(1)’s requirement that “the State must offer a facility an informal opportunity, at the facility's request, to dispute survey findings[,]” the IDOH provided an opportunity “to discuss cited deficiencies through an Informal Dispute Resolution (IDR) process.” (App. Vol. 6 at 96). The letter contained IDOH's contact information. Especially Kidz did not request to participate in the informal dispute resolution process with the IDOH.

[12] In December 2021, the manufacturer sent a letter to Especially Kidz. The manufacturer found that the pulse oximeter was functioning as designed and that it had been powered on at 9:00 p.m. on October 16, 2021. However, around that time, the pulse oximeter had not recorded any measurements or alarms.

[13] The IDOH also issued a notice of citation under Indiana law (“the state-level citation”) to Especially Kidz in January 2022. In this notice of citation, the IDOH determined that Especially Kidz had violated a provision in the Indiana Administrative Code, 410 IAC 16.2-3.1-47(a)(6) ), which relates to the requirement that a facility must provide a resident with proper “[r]espiratory care.” The IDOH also determined that Especially Kidz's “breach” of the rule constituted a “deficiency” under Indiana Code § 16-28-5-1(2).  ⁵ See I.C. § 16-28-5-2 (discussing the requirement to issue a citation when a facility has “breach[ed]” a statutory article or an adopted administrative rule). The IDOH assessed a $10,000 fine against Especially Kidz due to this breach. The IDOH described the breach as follows:

Based on interview and record review, the facility failed to address a resident's irregular pulse oximeter reading when a Certified Nursing Assistant (CNA) recognized and reported the irregular reading to the respiratory therapist; who did not proceed to address the irregular reading. The resident was found unresponsive with no pulse, not breathing and the oximeter was not alarming or registering the oxygen saturation and/or heart rate of the resident ․ This resulted in an unaddressed respiratory distress for a resident who became unresponsive and died.

(App. Vol. 5 at 146). The notice of citation explained that Especially Kidz could appeal the citation to the Indiana Office of Administrative Law Proceedings within fifteen days.

[14] In February 2022, Especially Kidz filed an appealed with an ALJ (“the ALJ”) and sought to challenge the state-level citation and the immediate jeopardy determination. In preparation for the hearing before the ALJ, Especially Kidz deposed multiple people, including the surveyor, the physician, and IDOH's division director of long-term care (“the IDOH director”). Especially Kidz moved for summary judgment, and the ALJ denied that motion. Especially Kidz appealed the ALJ's denial.  ⁶ Ultimately, the case came back to the ALJ on remand.

[15] In March 2024, the ALJ held a factfinding hearing. At the start of the hearing, the parties agreed that the state-level citation fine should be $5,000 instead of $10,000. The IDOH presented the surveyor and the IDOH director as witnesses, and both witnesses testified about the immediate jeopardy determination. The surveyor testified that the immediate jeopardy determination was based on the fact that the “oximeter was not functioning and it was not addressed.” (App. Vol. 5 at 78). The surveyor clarified that the deficiencies that she had found during the survey were based on evidence, and that she had “not know[n] the meaning of speculate” when she had agreed with that language during her deposition. (App. Vol. 5 at 68). On cross-examination, the surveyor conceded that she had used the word speculate during her deposition. Also on cross-examination, the surveyor further explained that when the “oximeter was not working, that put[ ] [Resident B] at a potential risk that something [wa]s wrong ․ there [wa]s a potential of serious harm or injury.” (App. Vol. 5 at 91). The surveyor explained that a pulse oximeter's alarm not alerting is a problem “[b]ecause it's not going to alert the staff that there's something wrong.” (App. Vol. 5 at 94).

[16] When the State asked the IDOH director if she felt that “the $5,000 civil penalty itself [wa]s fair and reasonable[,]” she replied in the affirmative. (App. Vol. 5 at 117). The IDOH director explained that a team comprised of people from the IDOH and the enforcement team had made the decision to write a citation against the facility. The IDOH director testified that the team had felt that “the evidence from the survey report showed egregious action failure of the facility and the outcome was serious for this resident who was very frail.” (App. Vol. 5 at 117). The IDOH director further testified that the team making citation decisions stayed consistent, which was “one way that [they] work[ed] for consistency” and that, when making a determination, the team looked at the outcome and the facility's history. (App. Vol. 5 at 117). On cross-examination, the IDOH director agreed that the silencing of the pulse oximeter could have happened for many reasons and that the silenced pulse oximeter “did not mean that Resident B would die[.]” (App. Vol. 5 at 123).

[17] Both parties submitted proposed findings of fact and conclusions of law to the ALJ. In its proposed findings of fact and conclusions of law, the IDOH argued that Especially Kidz had not exhausted its administrative remedies because it had not participated in the informal dispute resolution process. The IDOH argued that this procedural defect prevented review of the immediate jeopardy determination. In July 2024, the ALJ issued a non-final administrative decision. The ALJ noted that Especially Kidz had the option to participate in the informal dispute resolution process to challenge the immediate jeopardy determination. Ultimately, the ALJ concluded that it did not have the authority to review the immediate jeopardy determination.

[18] Concerning the state-level citation, the ALJ found, in relevant part, as follows:

20. There is some dispute and lack of clarity about what happened with the pulse oximeter and the probe attached to Resident B. IDOH argues that the audio alarm on the pulse oximeter was intentionally silenced. There is no[ ] substantial evidence to support that argument.

21. There is, however, substantial evidence to support the fact that CNA Barnes observed dashes (--) on Resident B's pulse oximeter, and she did not immediately check on Resident B's wellbeing. Instead, she left the room, had a conversation with RT Holman, and then went into a different room. When CNA Barnes did come back into the room at approximately 9:33 p.m., Resident B was not breathing. It is unknown how long Resident B had not been breathing.

22. A properly alarming pulse oximeter, alone, would not have saved Resident B's life, however, the alarm should have alerted medical professionals to issues with Resident B's pulse or oxygen level in order for resuscitation efforts to begin, which could have saved his life.

23. Especially Kidz was required by 410 IAC 16.2-3.1-47(a)(6) to “ensure that the residents receive proper treatment and care by qualified personnel for ․ respiratory care.” Especially Kidz did not ensure that Resident B received proper respiratory care by qualified personnel. CNA Barnes, as an employee or Especially Kidz who was working at Especially Kidz on the night of Resident B's death, failed to immediately check on Resident B's wellbeing when it was identified that the pulse oximeter was not properly reading numbers and alarming. This inaction did not ensure that Resident B received proper treatment and care by qualified personnel at Especially Kidz for Resident B's respiratory care. Thus, Especially Kidz breached 410 IAC 16.2-3.1-47.

(App. Vol. 3 at 186-87).

[19] In the ALJ's non-final determination, the ALJ reduced the $10,000 citation fine to $5,000 and concluded that the fine was “appropriate and in accordance with the law.” (App. Vol. 3 at 187). Especially Kidz appealed to the Office of Administrative Law Proceedings ultimate authority (“OALP ultimate authority”), and the OALP ultimate authority issued a final order affirming the decision of the ALJ in September 2024.

[20] Later that month, Especially Kidz filed a petition for judicial review with the trial court. In February 2025, the trial court held a hearing on Especially Kidz's petition for judicial review. At the hearing, Especially Kidz argued that the “ALJ [had been] completely wrong about everything.” (Tr. Vol. 2 at 16). In April 2025, the trial court issued an order denying Especially Kidz's petition for judicial review.

[21] Especially Kidz now appeals.

Decision

[22] Especially Kids argues that the trial court erred when it denied Especially Kidz's petition for judicial review. In an appeal of a decision by an administrative agency, the standard of review is governed by the Administrative Orders and Procedures Act (“AOPA”), Indiana Code § 4-21.5-1-1 to 4-21.5-7-9, and an appellate court is bound by the same standard of review as the trial court. Indiana Dept. of Education v. Mt. Zion's Loving Day Care Ministry, --N.E.3d ---, 2025 WL 3034216 at *4 (Ind. Ct. App. 2025). The court shall grant relief only if it determines that a person seeking judicial relief has been prejudiced by an agency action that is:

(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(2) contrary to constitutional right, power, privilege, or immunity;

(3) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;

(4) without observance of procedure required by law; or

(5) unsupported by a preponderance of the evidence.

Ind. Code § 4-21.5-5-14(d).⁷ “An arbitrary and capricious decision is one which is patently unreasonable and made without consideration of the facts and in total disregard of the circumstances and lacks any basis which might lead a reasonable person to the same conclusion.” Indiana Dep't of Child Servs. v. K.S., 263 N.E.3d 717, 723 (Ind. Ct. App. 2025) (cleaned up), trans. denied.

[23] Especially Kidz bears the burden of showing that the IDOH's action is invalid. I.C. § 4-21.5-5-14(a). “A court is not bound by a finding of fact made by the ultimate authority if the finding of fact is not supported by the record.” I.C. § 4-21.5-5-11(a). “The court shall decide all questions of law, including any interpretation of a federal or state constitutional provision, state statute, or agency rule, without deference to any previous interpretation made by the agency.” I.C. § 4-21.5-5-11(b).

[24] Especially Kidz specifically argues that: (1) it had exhausted all administrative remedies before challenging the IDOH's immediate jeopardy determination under federal law; and (2) the IDOH's state-level citation for Especially Kidz's deficiency was arbitrary, capricious, an abuse of discretion, or not in accordance with the law and was not supported by a preponderance of the evidence. We address each of their contentions in turn.

1. Immediate Jeopardy

[25] Especially Kidz first argues that it had exhausted all administrative remedies before challenging the IDOH's immediate jeopardy determination. We disagree.

[26] “An agency action is not final, and thus is not ripe for review, until the petitioner exhausts his administrative remedies.” Matter of R.L., 246 N.E.3d 257, 260 (Ind. 2024) (citing I.C. § 4-21.5-1-6 and I.C. § 4-21.5-5-2(b)). “Failure to exhaust waives the petitioner's right to judicial review at all.” R.L., 246 N.E.3d at 260.

[27] “It is well-established that, if an administrative remedy is available, it must be pursued before a claimant is allowed access to the courts.” Town Council of New Harmony v. Parker, 726 N.E.2d 1217, 1224 (Ind. 2000), amended on reh'g in part, 737 N.E.2d 719 (Ind. 2000). “This is true even when neither a statute nor agency rule specifically mandates exhaustion as a prerequisite to judicial review.” Graham v. Town of Brownsburg, 124 N.E.3d 1241, 1246-47 (Ind. Ct. App. 2019) (citing Austin Lakes Joint Venture v. Avon Utils., Inc., 648 N.E.2d 641, 644 (Ind. 1995)), reh'g denied, trans. denied. “The exhaustion doctrine is intended to defer judicial review until controversies have been channeled through the complete administrative process.” Johnson v. Celebration Fireworks, Inc., 829 N.E.2d 979, 982 (Ind. 2005) (citations and internal quotation marks omitted). “[F]ailure to exhaust administrative remedies constitutes procedural error[.]” Graham, 124 N.E.3d at 1247 n.3.

[28] Indiana Code § 4-21.5-5-4, the exhaustion of administrative remedies statute, provides that a “person may file a petition for judicial review under this chapter only after exhausting all administrative remedies available within the agency whose action is being challenged and within any other agency authorized to exercise administrative review.” I.C. § 4-21.5-5-4(a) (emphasis added). As set forth previously, if, after a survey, a facility wishes to challenge a survey's findings, 42 C.F.R. § 488.331(a)(1) provides that “[f]or non-Federal surveys, the State must offer a facility an informal opportunity, at the facility's request, to dispute survey findings upon the facility's receipt of the official statement of deficiencies.” 42 C.F.R. § 488.331(c) provides that “[i]f a provider is subsequently successful, during the informal dispute resolution process, at demonstrating that deficiencies should not have been cited, the deficiencies are removed from the statement of deficiencies and any enforcement actions imposed solely as a result of those cited deficiencies are rescinded.”

[29] Here, our review of the record reveals that the IDOH conducted a survey of the facility in October 2021, determined that the facility had failed to comply with the applicable Code of Federal Regulations, and then issued an immediate jeopardy determination upon the facility. Thereafter, the IDOH, in its November 2021 letter that detailed the immediate jeopardy determination, offered the facility the opportunity to engage in informal dispute resolution. There is nothing in the record that suggests to us that Especially Kidz took that opportunity. Instead, Especially Kidz, after receiving the IDOH state-level citation in January 2022, filed for administrative review in February 2022. Especially Kidz had the opportunity to participate in the informal dispute resolution to challenge the IDOH's immediate jeopardy determination and deficiencies and did not exercise this administrative remedy. Especially Kidz has failed to exhaust its administrative remedies before petitioning for judicial review on the immediate jeopardy determination. Accordingly, the trial court did not err when it denied Especially Kidz's petition for judicial review on this issue.⁸

2. State Citation

[30] Especially Kidz also argues that the IDOH's state-level citation for Especially Kidz's deficiency under Indiana law was arbitrary, capricious, an abuse of discretion, or not in accordance with law and not supported by a preponderance of the evidence. We disagree.

[31] Indiana Code § 16-28-5-2 provides that “[o]n a determination by the commissioner that a breach of this article or a rule adopted under this article has occurred, the director shall issue a citation under IC 4-21.5-3-6 to the administrator of the health facility in which the breach occurred.” Indiana Code § 16-28-5-1 provides four categories of breaches that can apply to a health facility, including a “deficiency” which “presents an immediate or a direct, serious adverse effect on the health, safety, security, rights, or welfare of a patient.” I.C. § 16-28-5-1(2). 410 IAC 16.2-3.1-47(a), the state regulation relevant to this case, provides that “[t]he facility must ensure that the residents receive proper treatment and care by qualified personnel for the following special services if offered: ․ (6) Respiratory care.” The administrative rule further provides that “[f]or purposes of IC 16-28-5-1, a breach of subsection (a) is a deficiency.” 410 IAC 16.2-3.1-47(b). Finally, Indiana Code § 16-28-9-6 provides that the IDOH “may impose a fine not to exceed five thousand dollars ($5,000) for a violation of a provision of this chapter.”

[32] Our review of the record reveals that the IDOH's citation for Especially Kidz's deficiency is supported by ample evidence. Specifically, the record is clear that CNA Barnes saw dashes instead of numbers on Resident B's pulse oximeter display sometime between 9:20 p.m. and 9:30 p.m. CNA Barnes did not further investigate Resident B's condition, nor did she alert other staff members about Resident B's pulse oximeter showing dashes instead of numbers. Further, the manufacturer tested the pulse oximeter and concluded that the pulse oximeter was functioning properly and was powered on during the time at issue. When CNA Barnes returned to Resident B's room, saw that Resident B was not breathing, and called for assistance, multiple staff members including LPN Gebhart and RT Holman saw that the pulse oximeter was not showing numbers on its screen and was not alarming. Based on this evidence, the IDOH determined that the facility had failed to ensure that Resident B received proper respiratory treatment as required under 410 IAC 16.2-3.1-47(a)(6) and that there had been a “deficiency” or “an immediate or a direct, serious adverse effect on the health, safety, security, rights, or welfare of a patient” under Indiana Code § 16-28-5-1. As a result, the IDOH issued a citation. See I.C. § 16-28-5-2 (providing that upon a determination of a breach of a relevant statute or adopted administrative rule, the IDOH “shall issue a citation ․ to the administrator of the health care facility in which the breached occurred”). The preponderance of the evidence supports the IDOH's issuance of a citation. Further, it is clear that the IDOH's action was not arbitrary or capricious. The surveyor conducted a four-day long survey of the facility, where she interviewed staff, reviewed written statements from staff, and reviewed Resident B's medical records. The surveyor submitted her findings to the IDOH, and a team of employees at the IDOH ultimately issued the citation after determining that the facility had breached the relevant adopted administrative rule.

[33] Especially Kidz attempts to argue that the citation was brought purely based on speculation. But, our review of the record reveals otherwise. Again, the citation was issued by the IDOH only after the IDOH had received an anonymous complaint about the facility, conducted a four-day long survey of the facility, and a team at the IDOH reviewed the findings. Multiple affidavits from staff members and the testimony of the surveyor and the director also corroborated and supported the findings. As a result, the IDOH's citation was not arbitrary or capricious, was not an abuse of discretion, and was supported by a preponderance of the evidence. Accordingly, the trial court did not err when it denied Especially Kidz's petition for judicial review on the state-level citation for Especially Kidz's deficiency.⁹

[34] Affirmed.

FOOTNOTES

1.   There is a factual dispute regarding whether CNA Barnes, during this discussion, had told RT Holman about the status of the pulse oximeter.

2.   The United States Code of Federal Regulations defines immediate jeopardy as “a situation in which the provider's noncompliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.” 42 C.F.R. § 488.301.

3.   A deficiency is defined as a facility's “failure to meet a participation requirement specified in the Act or in part 483, subpart B of this chapter.” 42 C.F.R. § 488.301.

4.   This is an acronym for the nurse aid training and comprehensive evaluation program.

5.   Indiana Code § 16-28-5-1(2) provides that “[a] deficiency ․ presents an immediate or a direct, serious adverse effect on the health, safety, security, rights or welfare of a patient.”

6.   After the ALJ denied Especially Kidz's motion for summary judgment, Especially Kidz petitioned for judicial review of the ALJ's non-final determination. The facts underlying this first appeal were set forth by our Court in a memorandum decision in which our Court affirmed the trial court's denial of Especially Kidz's petition for judicial review. See Bd. of Trs. of Flavius J. Witham Mem'l Hosp. v. Indiana Dep't of Health, 23A-MI-1157 at *1-2 (Ind. Ct. App. Aug. 23, 2023) (mem.), trans. denied.

7.   Indiana Code § 4-21.5-5-14 was amended effective July 1, 2024. Because Especially Kidz's petition for judicial review was filed in September 2024, we apply the amended version of the statute to our review.

8.   Especially Kidz also argues that it did not have to participate in the informal dispute resolution process because the informal dispute resolution process “is not required and is not federally mandated.” (Especially Kidz's Br. 42) (internal quotation marks removed). But, Indiana Code § 4-21.5-5-4 provides that a party can petition for judicial review “only after exhausting all administrative remedies available within the agency[.]” Here, the IDOH offered Especially Kidz the opportunity to participate in the informal dispute resolution process, and Especially Kidz did not exercise that administrative remedy.

9.   Especially Kidz also argues that “[c]ausation is a required element” of the citation. (Especially Kidz's Br. 47) (emphasis removed). Specifically, Especially Kidz argues that the IDOH had to prove that “the [a]lleged [r]egulatory [b]reach caused the death of the Decedent.” (Especially Kidz's Br. 47). However, Especially Kidz provides no cogent argument pointing to any relevant cases or authorities that support this claim. Thus, it has waived the argument on appeal. See Ind. Appellate Rule 46(A)(8). Waiver notwithstanding, there is nothing in the statute that suggests that causation is a required element for a notice of citation for a deficiency under state law. The statute defines “deficiency” as something that “presents an immediate or a direct, serious adverse effect on the health, safety, security, rights, or welfare of a patient.” I.C. § 16-28-5-1(2).

Pyle, Judge.

Altice, J., and DeBoer, J., concur.