Briar Place Nursing, DAB CR6686 (2025)

DECISION

Briar Place Nursing (Petitioner) is a skilled nursing facility (SNF) in Indian Head Park, Illinois, that participates in the Medicare program. Based on a survey completed on January 25, 2021, the Centers for Medicare & Medicaid Services (CMS) determined that Petitioner was not in substantial compliance with the Medicare participation requirements at 42 C.F.R. §§ 483.60 and 483.25(d)(1)-(2) and imposed civil money penalties of $7,460 per day for 16 days beginning January 5, 2021 through January 20, 2021 and $225 per day for 14 days beginning January 21, 2021 through February 3, 2021.

For the reasons set forth below, I affirm CMS’s determination that Petitioner was not in substantial compliance with Medicare program requirements and conclude that the penalties imposed are reasonable.

I. Background

The Social Security Act (Act) establishes requirements for SNF participation in the Medicare program and authorizes the Secretary of Health and Human Services (Secretary) to promulgate regulations implementing those statutory provisions. See 42

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U.S.C. § 1395i-3; 42 C.F.R. pts. 483 and 488. To participate in the Medicare program, a facility must maintain substantial compliance with program participation requirements. In order to be in substantial compliance, any deficiencies may “pose no greater risk to resident health or safety than the potential for causing minimal harm.” 42 C.F.R. § 488.301. “Noncompliance” means “any deficiency that causes a facility to not be in substantial compliance.” Id.

The Secretary contracts with state agencies to conduct periodic surveys to determine whether SNFs are in substantial compliance with participation requirements. 42 U.S.C. § 1395aa(a); 42 C.F.R. §§ 488.10, 488.20. The Act and its implementing regulations require that facilities be surveyed on average every twelve months, and more often if necessary, to ensure that identified deficiencies are corrected. 42 U.S.C. § 1395i‑3(g)(2)(A); 42 C.F.R. §§ 488.20(a), 488.308. CMS may impose a per-day civil monetary penalty (CMP) for the number of days an SNF is not in substantial compliance or a per-instance civil monetary penalty (PICMP) for each instance of the SNF’s noncompliance. 42 U.S.C. § 1395i-3(h)(2)(B)(ii); 42 C.F.R. § 488.430(a).

If CMS imposes a remedy based on a noncompliance determination, then the facility may request a hearing before an administrative law judge (ALJ) to challenge the noncompliance finding and enforcement remedy. 42 U.S.C. §§ 1320a-7a(c)(2), 1395i‑3(h)(2)(B)(ii); 42 C.F.R. §§ 488.408(g), 488.434(a)(2)(viii), 498.3(b)(13). However, CMS’s choice of remedies is not reviewable. 42 C.F.R. §§ 488.438(e)(2), 488.408(g)(2), 498.3(b)(13).

If an SNF challenges the existence of a deficiency, CMS must make a prima facie case that the SNF failed to substantially comply with federal participation requirements and, if this occurs, the SNF must then prove substantial compliance by a preponderance of the evidence. Hillman Rehab. Ctr., DAB No. 1611 at 8 (1997); see Batavia Nursing & Convalescent Inn, DAB No. 1911 (2004); Batavia Nursing & Convalescent Ctr., DAB No. 1904 (2004), aff’d sub nom., Batavia Nursing & Convalescent Ctr. v. Thompson, 129 F. App’x 181 (6th Cir. 2005); Emerald Oaks, DAB No. 1800 (2001). If an SNF challenges CMS’s determination as to the level of noncompliance, CMS’s determination must be upheld unless it is clearly erroneous. 42 C.F.R. § 498.60(c)(2).

Surveyors from the Illinois Department of Public Health (state agency) completed a complaint investigation survey on January 25, 2021, at which time the state agency determined that the facility was not in substantial compliance with Medicare program participation requirements. The state agency cited noncompliance with 42 C.F.R. §§ 483.60 (Tag F800 – food and nutrition services) at the “J” level of scope and severity

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and 483.25(d)(1)-(2) (Tag F689 – accidents and supervision) at the “D”1 level of scope and severity.2 CMS Exs. 1, 6, 7.

In a letter dated June 29, 2021, CMS notified Petitioner that it concurred with the state agency’s findings and determined that Petitioner was not in substantial compliance with Medicare program participation requirements. CMS Exs. 1, 2. CMS imposed a CMP of $7,460 per day for 16 days beginning January 5, 2021 through January 20, 2021 and $225 per day for 14 days beginning January 21, 2021 through February 3, 2021. CMS Ex. 1 at 2. The notice also informed Petitioner that it was subject to a Nurse Aide

Training and Competency Evaluation Program (NATCEP) prohibition for two years because the CMP amounted to $11,160 or more.

Petitioner, through counsel, timely requested a hearing before an ALJ. The Civil Remedies Division acknowledged receipt of the hearing request and issued a Standing Pre-Hearing Order (Pre-Hearing Order). Pursuant to the Pre-Hearing Order, CMS filed a pre-hearing brief (CMS Br.) and 21 proposed exhibits (CMS Exs. 1-21). Petitioner filed a pre‑hearing brief (P. Br.), referenced only CMS’s exhibits, and requested to cross-examine CMS’s witness. In the absence of any objections, I admit CMS Exhibits 1-21 into the evidentiary record.

On March 4, 2022, the parties filed a joint stipulation and motion for decision on the written record. In the motion, the parties stated that Petitioner also withdrew its request for cross-examination.

This case was transferred to me on March 25, 2025.

I consider the record in this case to be closed, and the matter is ready for a decision on the merits. Pre-Hearing Order at 6, 9.

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II. Issues, Findings of Fact and Conclusions of Law

A. Issues

The issues are whether Petitioner failed to comply substantially with Medicare participation requirements, whether any noncompliance was so egregious as to place Petitioner’s resident in immediate jeopardy, and whether CMS’s penalty determination is reasonable.

B. Findings of Fact and Conclusions of Law

1. Petitioner was not in substantial compliance with the Medicare participation requirements at 42 C.F.R. §§ 483.60, 483.60(d)(3), and 483.25(d)(1)-(2) by failing to ensure that R1 was served a mechanical soft diet pursuant to her care plan and physician’s orders.

CMS alleges that Petitioner failed to comply substantially with the requirements of 42 C.F.R. §§ 483.60, 483.60(d)(3)3, and 483.25(d)(1), (d)(2). CMS asserts that Petitioner’s staff contravened the regulatory requirements by serving a grilled cheese sandwich that wasn’t mechanically altered to a resident in violation of the resident’s physician’s order and Petitioner’s plan of care for that resident. CMS contends that the consequence of these failures was that the resident choked and later died of asphyxia.

The undisputed facts unequivocally establish Petitioner’s substantial noncompliance.

This case centers on the care that Petitioner’s staff provided to a resident identified as R1. R1 was a 37-year-old woman who was admitted to Petitioner’s facility on July 21, 2020, and who suffered from multiple impairments and illnesses. CMS Ex. 11 at 7. These impairments included, among other things, multiple sclerosis, dysphagia oral phase, bipolar disorder, and cognitive communication deficit. Id. The resident required help with setup and one-person physical assistance with eating. Id. at 26.

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a. R1’s care plan required a mechanical soft diet.

R1 participated in speech therapy from July 2020 through October 2020. CMS Ex. 12 at 4; CMS Ex. 20 at 3. The speech therapist recommended a downgrade to a soft mechanical diet. CMS Ex. 12 at 4; CMS Ex. 20 at 3. On November 13, 2020, R1’s physician ordered a mechanical soft diet, regular thin liquids consistency. CMS Ex. 11 at 18.

On November 19, 2020, Petitioner’s staff updated the nutrition care plan for R1, based on the staff’s assessment of R1’s condition and on her physician’s orders. CMS Ex. 11 at 17. The care plan explicitly directed staff to provide R1 with food consistent with the mechanical soft diet requirement. Id. The plan also required that R1 have supervision at meals to ensure small bites, a slow rate of eating, and a liquid wash. Id. Staff was instructed to assist as needed with meals and monitor for pocketing of food. Id.

The facility’s Diet Manual provided that a mechanical soft meal is served with the meat mechanically ground—preferably with gravy—raw soft fruits will be served without seeds and skin, and raw salads will be served finely shredded. CMS Ex. 13 at 2. The manual also notes that a speech language pathologist may recommend mixed textures to meet the needs of the patient. Id. The facility’s guide for a mechanical soft diet grilled cheese provided specific instructions to refer to the International Dysphagia Diet Standardization Initiative (IDDSI) guidelines. CMS Ex. 14 at 1. The guidelines for the grilled cheese recommend cutting the food and ensuring that it is soft and tender. Id.

On November 25, 2020, R1 was eating a grilled cheese sandwich at a nurses’ station when she dropped her head and became limp. CMS Ex. 11 at 7; CMS Ex. 12 at 2. The staff removed a bolus of food, but R1 became unresponsive. CMS Ex. 11 at 7. Cardiopulmonary resuscitation (CPR) was initiated and a code blue was called. CMS Ex. 11 at 7. A bag-valve-mask was used to assist with R1’s breathing, and staff called the paramedics. CMS Ex. 17 at 3. The paramedics arrived, and R1 stopped breathing during transport to the local hospital. Id. In response to the R1’s becoming asystole, the paramedics began CPR. CMS Ex. 17 at 3. They also attempted to use a bag-valve-mask to help her breath, but resistance was noted at first use, which led them to discover more food in R1’s airway. Id. They used a suction tool and Magill forceps to remove the obstruction. Id. When R1 arrived at the hospital, she had a strong pulse but required assisted ventilations. Id. On December 3, 2025, R1 died from asphyxia caused by choking on food. CMS Ex. 11 at 1.

The surveyor testified in her sworn affidavit that the facility did not provide R1 with a grilled cheese sandwich prepared according to a mechanical soft diet. CMS Ex. 20 at 5. The surveyor spoke with Ms. Aisha Caffey, the certified nursing assistant (CNA) monitoring the nurses’ station while R1 ate the grilled cheese on November 25, 2020. Id.

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at 4. Ms. Caffey told the surveyor that the grilled cheese sandwich was not cut and that R1 did not need assistance with eating. Id. at 4-5. Ms. Caffey also stated that R1 received a regular tray rather than a mechanical soft diet tray. Id. She also testified that she spoke with Sarah Stacy, Speech Therapist, about whether it is appropriate for someone on mechanical soft diet to consume a grilled cheese sandwich. CMS Ex. 20 at 3. In response to the surveyor’s question, the speech therapist stated that “a grilled cheese sandwich can be okay for someone on mechanical soft diet as long as it not hard or burned.” Id.

b. Petitioner was not in substantial noncompliance with 42 C.F.R. §§ 483.60 and 483(d)(3) because, due to staff error, R1 did not receive a mechanical soft meal.

42 C.F.R. § 483.60 requires that an SNF “provide each resident with a nourishing, palatable, well-balanced diet that meets his or her daily nutritional and special dietary needs, taking into consideration the preferences of each resident.” Derived from that overarching requirement, 42 C.F.R. § 483.60(d)(3) requires that an SNF provides and the resident receive “food prepared in a form designed to meet the individual needs.” Here, staff error was the reason for R1 not receiving a mechanical soft meal. Serving R1 an uncut grilled cheese sandwich violated a physician’s order and the resident’s plan of care. It also violated Petitioner’s own instructions for preparing a mechanical-soft-diet grilled cheese sandwich. CMS Ex. 14 at 1; CMS Ex. 20 at 4-5. There is no question that these multiple failures endangered R1. Individually and collectively, they constitute noncompliance with the requirements of 42 C.F.R. § 483.60 and 483.60(d)(3). See The Laurels at Forest Glenn, DAB No. 2182 at 18 (2008) (“the Board has decided, a facility’s failure to follow or implement its own resident care policy may constitute a deficiency under section 483.25”).

I find Petitioner’s arguments and assertions to be without merit.

Petitioner argues that the facility was not required to cut the grilled cheese into 1.5-centimeter pieces because it was not required to follow the IDDSI. P. Br. at 2. Petitioner further asserts that even if it was required to follow the IDDSI, there was no evidence as to what level R1 was at. Id. at 2-3. I find this argument to be without merit. First, the IDDSI is only discussed by CMS because it appears in Petitioner’s own documents for creating a mechanical soft grilled cheese sandwich. Further, the language in the document referencing the IDDSI discusses ways to alter the food at each level – none of which were followed in this case. The evidence supports that neither the IDDSI, the physician’s order, nor the care plan were followed. As discussed above, the record shows that R1 was served a regular tray grilled cheese sandwich on November 25, 2020.

R1’s physician’s order for a mechanical soft diet plainly addressed the eating and swallowing-associated risks that the resident faced. So did the resident’s plan of care.

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Petitioner argues that the diet was followed and bases this solely on a statement made by Ms. Caffey to her employer almost six weeks after her statements to the surveyor. P. Br. at 4; CMS Ex. 12 at 2; CMS Ex. 17 at 17. I disagree. The noncompliance in this case is blatant failure by Petitioner’s staff to comply with a physician’s order and the resident’s plan of care. That noncompliance was substantial, and Petitioner has offered very little to dispute it.

c. Petitioner was not in substantial noncompliance with 42 C.F.R. § 483.25(d)(1)-(2) because R1 was not provided proper supervision when eating.

Petitioner was cited for not substantially complying with 42 C.F.R. § 483.25(d). Subsection 483.25(d) is part of the quality-of-care regulation at 42 C.F.R. § 483.25, which provides generally that “the facility must ensure that residents receive treatment and care in accordance with professional standards of practice, the comprehensive person-centered care plan, and the resident’s choices . . . .” Under section 483.25(d), facilities must ensure that:

(1) The resident environment remains as free of accident hazards as is possible; and

(2) Each resident receives adequate supervision and assistance devices to prevent accidents.

42 C.F.R. § 483.25(d).

42 C.F.R. § 483.25(d)(2) requires that a facility take “all reasonable steps to ensure that a resident receives supervision and assistance devices that meet his or her assessed needs and mitigate foreseeable risks of harm from accidents.” Briarwood Nursing Ctr., DAB No. 2115 at 11 (2007) (citing Woodstock Care Ctr. v. Thompson, 363 F.3d 583, 590 (6th Cir. 2003). To provide a resident adequate supervision consistent with 42 C.F.R. § 483.25(d)(2), a facility has flexibility to choose how to supervise a resident, but the measure chosen must be able to reduce known or foreseeable accident risks to the highest practicable degree. Heritage Plaza Nursing Ctr., DAB No. 2829 at 6, 20 (2017). Additionally, a facility’s obligations under section 483.25 also includes furnishing the care and services set forth at its own resident care policies. Life Care Ctr. of Bardstown, DAB No. 2479 at 22 (2012).

The physician’s order and the care plan documented that R1 had difficulty swallowing, that a mechanical soft diet was required, and that staff monitor R1 while eating to ensure that she took small bites, ate at a slow rate, used a liquid wash, and watch for signs of choking. CMS Ex. 11 at 17. Ms. Caffey told the surveyor that R1 did not require assistance with eating and that she provided visual assistance to R1 when monitoring her

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at the nurses’ station. CMS Ex. 20 at 7. As a result, it is clear that R1 was not provided with active cueing or interventions to ensure that she ate slowly, with small bites and utilized a liquid wash. In addition, Nurse Michelle Uhler told the surveyor that R1 usually ate in her room. CMS Ex. 20 at 7. Nurse Michelle Rondes told the surveyor that R1 required supervision to ensure that she ate her food, and Nurse Kena Brandon stated that R1 did not require supervision and ate by herself. Id. Therefore, it is clear that R1 was not provided with supervision while eating.

Petitioner argues that the supervision provided to R1 was proper and that she did not have any orders for staff assistance. P. Br. at 4. However, this is directly contrary to the evidence provided. R1 was not properly supervised in a manner sufficient to prevent her from choking while eating. Therefore, I find that Petitioner failed to ensure that each resident received adequate supervision and assistance devices to prevent accidents pursuant to 42 C.F.R. § 483.25(d).

2. CMS’s determination that Petitioner’s noncompliance with 42 C.F.R. § 483.60 posed immediate jeopardy to resident health and safety is not clearly erroneous.

Immediate jeopardy exists if a facility’s noncompliance has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident. 42 C.F.R. § 488.301. The regulation does not require that a resident actually be harmed. Lakeport Skilled Nursing Ctr., DAB No. 2435 at 8 (2012).

I must uphold CMS’s determination as to the level of a facility’s substantial noncompliance (which includes an immediate jeopardy finding) unless it is “clearly erroneous.” 42 C.F.R. § 498.60(c). The “clearly erroneous” standard imposes on facilities a heavy burden to show no immediate jeopardy, and the DAB has sustained determinations of immediate jeopardy where CMS presented evidence “from which ‘[o]ne could reasonably conclude’ that immediate jeopardy exists.” See, e.g., Barbourville Nursing Home, DAB No. 1962 at 7 (2005) (quoting Florence Park Care Ctr., DAB No. 1931 at 27-28 (2004)). In reviewing CMS’s finding, I “must consider whether the totality of the allegations support the Agency’s determination that [the SNF’s] noncompliance ‘has caused, or [was] likely to cause, serious injury, harm, impairment, or death to a resident.’” Rosewood Care Ctr., 868 F.3d 605, 618 (7th Cir. 2017) (emphasis omitted).

CMS contends that its immediate jeopardy finding is appropriate because Petitioner did not comply with the regulation, R1’s physician’s order, and R1’s care plan when it failed to provide a grilled sandwich cheese prepared according to R1’s needs. Petitioner argues that its actions did not “cause (or had the potential to cause) the resident serious harm.” P Br. at 5. There is no doubt that Petitioner placed R1 in immediate jeopardy by failing to prepare a grilled cheese sandwich in accordance with the regulation, R1’s care plan, and

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R1’s physician’s order. The failure to prepare the grilled cheese sandwich in accordance with those sources was likely to cause serious harm or death by choking. Accordingly, I conclude that CMS did not clearly err in determining that Petitioner’s noncompliance with 42 C.F.R. § 483.60 posed immediate jeopardy to the health and safety of its resident.

3. The CMPs imposed on Petitioner are reasonable.

CMS imposed a civil money penalty of $7,460 per day from January 5, 2021 through January 20, 2021 and a $225 per-day CMP from January 21, 2021 through February 3, 2021 against Petitioner. I find this penalty amount to be reasonable.

To determine whether a civil money penalty is reasonable, I apply the factors listed in 42 C.F.R. § 488.438(f): (1) the facility’s history of noncompliance; (2) the facility’s financial condition; (3) factors specified in 42 C.F.R. § 488.404; and (4) the facility’s degree of culpability, which includes neglect, indifference, or disregard for resident care, comfort or safety. The absence of culpability is not a mitigating factor. The factors in 42 C.F.R. § 488.404, to be considered when selecting a remedy, include: (1) the scope and severity of the deficiency; (2) the relationship of the deficiency to other deficiencies resulting in noncompliance; and (3) the facility’s prior history of noncompliance in general and specifically with reference to the cited deficiencies.

I consider whether the evidence supports a finding that the amount of the CMP is at a level reasonably related to an effort to produce corrective action by a provider with the kind of deficiencies found, and in light of the section 488.438(f) factors. I am neither bound to defer to CMS’s factual assertions nor free to make a wholly independent choice of remedies without regard for CMS’s discretion. Barn Hill Care Ctr., DAB No. 1848 at 21 (2002); Cmty. Nursing Home, DAB No. 1807 at 22 et seq. (2002); Emerald Oaks, DAB No. 1800 at 9 (2001); CarePlex of Silver Spring, DAB No. 1638 at 8 (1999). “[T]he burden is not on CMS to present evidence bearing on each regulatory factor, but on the SNF to demonstrate, through argument and the submission of evidence addressing the regulatory factors, that a reduction is necessary to make the CMP amount reasonable.” Crawford Healthcare & Rehab., DAB No. 2738 at 19 (2016) (quoting Oaks of Mid City Nursing & Rehab. Ctr, DAB No. 2375 at 26-27 (2011)). Unless a facility contends that a particular regulatory factor does not support the CMP amount, an ALJ must sustain it. Coquina Ctr., DAB No. 1860 (2002).

The penalties that CMS determined to impose are within the permissible ranges. Both the immediate jeopardy (IJ) CMP and the non-IJ CMP were assessed at the lower end of the range. CMS contends that the penalty amount is justified by the seriousness of Petitioner’s noncompliance and its culpability. Petitioner disagrees.

CMS offers that the facility had a recent history of noncompliance and cites a survey ending on September 19, 2019 that resulted in E and D level deficiencies for the

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following: Tag F803 – menus meet resident needs/prepared in advance/followed and Tag F689 – accidents and supervision. Petitioner does not dispute this allegation.

Petitioner does not claim that its financial condition affects its ability to pay. The facility does assert that the penalty is unreasonable but does not provide supporting evidence.

The undisputed evidence shows the facility failed to follow the care plan and the physician’s orders on multiple occasions. This is a systemic problem and the facility is culpable.

Applying the relevant factors here, the penalty is reasonable.

Petitioner makes no argument about its loss of authority to conduct NATCEP.

III. Conclusion

For the forgoing reasons, I conclude that Petitioner was not in substantial compliance with Medicare participation requirements and the imposition of CMPs is a reasonable enforcement remedy.