Windsor Nursing and Rehabilitation Center of Seguin, DAB CR6820 (2026)

DECISION

Petitioner, Windsor Nursing and Rehabilitation Center of Seguin (Windsor), challenges the determination by Respondent, the Centers for Medicare & Medicaid Services (CMS), that the facility was not in substantial compliance with multiple participation requirements.  Windsor also challenges CMS’s imposition of a $37,660 civil money penalty (CMP).  As explained herein, I affirm CMS’s determination and find the CMP reasonable. 

I.  Background

Windsor is a skilled nursing facility doing business in Seguin, Texas, certified by and participating in the Medicare and Medicaid programs.  The Texas Health and Human Services Commission (THHSC or state agency) conducted a survey on March 9, 2020.  Based on the state agency’s survey and findings, CMS determined Windsor to be substantially noncompliant with five participation requirements: 

• 42 C.F.R. § 483.12(a)(1) (Tag F600 – Free from Abuse and Neglect) at scope/severity (s/s) level “K;”
• 42 C.F.R. § 483.12(b)(1)-(3) (Tag F607 – Develop/Implement Abuse/Neglect Policies) at s/s “K;”

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• 42 C.F.R. § 483.12(c)(1)(4) (Tag F609 – Reporting of Alleged Violations) at the s/s “G;”
• 42 C.F.R. § 483.25(d)(1)(2) (Tag F689 – Free of Accident Hazards/Supervision/Devices) at s/s “K;”
• 42 C.F.R. § 483.60(d)(3) (Tag F805 – Food in Form to Meet Individual Needs) at s/s “D.” 

CMS Ex. 1; CMS Ex. 2 at 1. 

CMS also imposed a per-day CMP of $12,210 for three days of immediate jeopardy noncompliance and $515 for two days of non-immediate jeopardy noncompliance, for a total CMP of $37,660.  CMS Ex. 2 at 2. 

Windsor timely requested a hearing to challenge CMS’s imposition of penalties, resulting in my designation to hear and decide this case.  I issued an Acknowledgment and Pre-hearing Order (APHO) that established a briefing schedule and directed the parties to file pre-hearing submissions that included written direct testimony for all proposed witnesses, proposed exhibits, and pre-hearing briefs. 

CMS filed a motion for summary judgment and pre-hearing brief (CMS Br.) with 11 proposed exhibits (CMS Exs. 1-11).  Petitioner filed a response to CMS’s motion for summary judgment and pre-hearing brief (P. Br.) as well as four proposed exhibits (P. Exs. 1-4). 

II.  Admission of Exhibits and Decision on the Record

Neither party objected to the opposing party’s proposed exhibits.  I therefore admit CMS Exhibits 1 through 11 and Petitioner Exhibits 1 through 4 into the record. 

Neither party requested to cross-examine the opposing party’s witnesses.  I therefore decide this matter based on the written record.  See APHO at 6; Civ. Remedies Div. P. § 19(d).  CMS’s summary judgment motion is denied as moot. 

III.  Statement of Issues

A.  Whether Windsor was in substantial compliance with 42 C.F.R. §§ 483.12(a)(1) (Tag F600), 483.12(b)(1)-(3) (Tag F607), 483.12(c)(1)(4) (Tag F609), 483.25(d)(1)(2) (Tag F689), and 483.60(d)(3) (Tag F805);

B.  If Windsor was not in substantial compliance, whether CMS’s immediate jeopardy determination was clearly erroneous; and

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C.  If Windsor was not in substantial compliance, whether the civil money penalties imposed by CMS are reasonable. 

IV.  Jurisdiction

I have jurisdiction to hear and decide this case.  42 U.S.C. § 1395i-3(h)(2)(B)(ii); 42 C.F.R. §§ 488.408(g), 488.434(a)(2)(viii), 498.3(b)(13). 

V.  Burdens of proof and persuasion

The Social Security Act (Act) authorizes specific remedies the Secretary may impose against skilled nursing homes for noncompliance with terms of participation as a provider to the Medicare program, including termination, denial of payment for new admission, and civil money penalties.  42 U.S.C. § 1395i-3(h)(2)(B).  The Act affords the right to a hearing upon the imposition of any of these remedies.  See 42 U.S.C. § 1395cc(b)(2), (h)(1)(A) (providing the right to a hearing to any provider the Secretary refuses to enroll as a participant in the Medicare program or whose participation the Secretary terminates); 42 U.S.C. § 1395i-3(h)(2)(B)(ii)(I), incorporating by reference 42 U.S.C. § 1320a-7a(c)-(2) (providing the right to a hearing upon the imposition of a civil money penalty).

The Act requires the Secretary to provide affected parties reasonable notice of a hearing, the opportunity to be heard, and a decision on the record.  42 U.S.C. § 1395cc(h)(1)(A), incorporating by reference 42 U.S.C. § 405(b); 42 U.S.C. § 1395i-3(h)(2)(B)(ii)(I), incorporating by reference 42 U.S.C. § 1320a-7a(c)(2).1  Where a statute requires an agency to afford the opportunity for hearing prior to a decision on the record, that hearing falls under the auspices of the Administrative Procedures Act (APA).  See 5 U.S.C. § 554(a).  In adjudications governed by the APA, Congress established that unless otherwise provided by statute, “the proponent of a rule or order has the burden of proof.”  5 U.S.C. § 556(d).  The Act does not “otherwise provide” the burden of proof.  It would therefore be reasonable to conclude that CMS, the party seeking to impose penalties authorized by the Act, bears the burdens of proof and persuasion to justify doing so. 

Nevertheless, the Departmental Appeals Board has imposed a burden-shifting regime in cases involving the imposition of enforcement penalties against providers whose appeals

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are adjudicated under 42 C.F.R. Part 498.  Hillman Rehab. Ctr., DAB No. 1611 (1997), aff’d, Hillman Rehab. Ctr. v. U.S. Dep’t of Health & Human Servs., No. Civ. A. 98-3789 (GEB), 1999 WL 34813783 (D.N.J. May 13, 1999); VITAS Healthcare Corp. of Calif., DAB No. 1782 at 4 (2001); Cross Creek Health Care Ctr., DAB No. 1665 (1998) (applying the burden-shifting regime to cases involving skilled nursing facilities); Batavia Nursing & Convalescent Inn, DAB No. 1911 (2004), aff’d sub nom., Batavia Nursing & Convalescent Ctr. v. Thompson, 143 F. App’x 664 (6th Cir. 2005). 

Under this regime, CMS has the burden to come forward with evidence sufficient to make a prima facie showing2 it had a basis to impose a penalty.  In Hillman, the Board identified the elements it believed necessary for CMS to make such a showing: 

• [CMS] must identify the legal criteria to which it seeks to hold a provider.  Moreover, to the extent that a provider challenges [CMS’s] findings, [CMS] must come forward with evidence of the basis for its determination, including the factual findings on which [CMS] is relying and, if [CMS] has determined that a condition of participation was not met, [CMS’s] evaluation that the deficiencies found meet the regulatory standard for a condition-level deficiency. 

DAB No. 1611 at 8. 

Once CMS makes a prima facie showing of noncompliance, the Board held the facility bears “the ultimate burden of persuasion” and can only prevail if it proves, by a preponderance of the evidence of record, that it substantially complied with statutory and regulatory requirements.  Id. at 7. 

A skilled nursing facility subsequently appealed CMS’s imposition of a CMP, arguing the Board’s burden-shifting regime would be improper in hearings proceeding under the APA.  Batavia Nursing & Convalescent Inn, DAB No. 1911 (2004), aff’d sub nom., Batavia Nursing & Convalescent Ctr. v. Thompson, 143 F. App’x 664 (6th Cir. 2005).  The Board rejected this claim, asserting the Supreme Court had, in other contexts, approved placing the burden of proof “on the claimant for governmental benefits when evidence is evenly balanced” because the party seeking the benefit, including a “non-monetary benefit or privilege,” would be “the proponent of the rule or order.”  Id. at 10

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(citing Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 276 (1994); U.S. Steel Corp. v. Train, 556 F.2d 822, 834 (7th Cir. 1977) (the applicant for a permit to discharge pollutants is a “proponent”); Day v. NTSB, 414 F.2d 950, 952 (5th Cir. 1969) (placing the burden of proof on a pilot seeking the government’s certification of fitness to fly). 

The Board reasoned that by appealing the penalties imposed by CMS, Batavia Nursing in essence sought “from the government an order certifying that it is in substantial compliance with [skilled nursing facility] requirements, so that it may continue to participate in the Medicare program with no restrictions on payment.”  Id.  The Board therefore found it reasonable to place the burden of proof on Batavia to show its return to substantial compliance.  Id. 

The Board’s characterization of the nature of the remedy sought in these proceedings would apply more squarely to a provider challenging its termination from the Medicare program.  In that case, the appealing facility would seek a rule or order overturning CMS’s termination action and thus allow its continued participation as a provider.3  But for facilities like Batavia appealing the imposition of lesser penalties like CMPs, the rationale is less persuasive.  Batavia was not restricted from participating in the Medicare program as a provider during the pendency of its appeal.  It instead sought a ruling that CMS did not have a basis to impose penalties under the Act. 

The characterization of penalized facilities as proponents of a rule or order is also incongruous to the limitation of ALJ and Board jurisdiction to only challenges where CMS opts to impose a penalty.  42 C.F.R. § 488.408(g)(1) (“A facility may appeal a certification of noncompliance leading to an enforcement remedy.”); 42 C.F.R. § 498.3(b)(13); Columbus Park Nursing & Rehab. Ctr., DAB No. 2316 at 7 (2010) (a facility cannot contest survey deficiency findings unless CMS has imposed a remedy). 

If facilities penalized for noncompliance with Medicare program participation rules are properly seen as proponents of a rule or order certifying their substantial compliance, it is unclear why Congress would not afford appeal rights under the Act to unpenalized facilities which have been found noncompliant and seek the same certification.  But if CMS is the proponent of a rule or order affirming its choice to impose penalties, the rationale to exclude unpenalized facilities from challenging deficiency findings under the Act becomes appreciable; in that circumstance, there would be no action for which CMS could seek a rule or order from an ALJ or the Board. 

The legitimacy of the burden-shifting regime thus rests largely on the notion that facilities who appeal the imposition of a penalty under the Act are in fact proponents of a rule or order certifying their substantial compliance with Medicare program participation

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rules.  To date, federal district and circuit courts have declined to reach the propriety of the Board’s burden-shifting regime on due process or other grounds.  See, e.g., Hillman Rehab. Ctr., DAB No. 1611 (1997), aff’d, Hillman Rehab. Ctr. v. U.S. Dep’t of Health & Human Servs., No. Civ. A. 98-3789 (GEB), 1999 WL 34813783 (D.N.J. May 13, 1999); Fairfax Nursing Home, Inc., DAB No. 1794 (2001), aff’d, Fairfax Nursing Home v. Dep’t of Health & Human Servs., 300 F.3d 835 (7th Cir. 2002), cert. denied, 2003 WL 98478 (Jan. 13, 2003); Batavia Nursing & Convalescent Inn, DAB No. 1911 (2004), aff’d sub nom., Batavia Nursing & Convalescent Ctr. v. Thompson, 143 F. App’x 664 (6th Cir. 2005). 

However, the Supreme Court has since examined the scope of the Secretary’s rulemaking authority in the context of Medicare reimbursement and held that under section 1871 of the Act, the Secretary must comply with notice-and-comment rulemaking under the APA to impose any requirements upon regulated entities constituting a change in a substantive legal standard.  Azar v. Allina Health Servs., 587 U.S. 566, 139 S. Ct. 1804 at 1809-14 (2019).  It is unclear whether the Board’s imposition of burden-shifting in the adjudication of enforcement penalties against regulated entities absent statutory or regulatory authority to do so constituted a change in a substantive legal standard within the meaning of the Allina decision. 

The Court has also formally repudiated its longstanding interpretive rule, known as Chevron deference, which required courts reviewing an agency action to defer to agency interpretation of ambiguity in a statute authorizing or directing that action. See Loper Bright Enters. v. Raimondo, 603 U.S. 369, 144 S. Ct. 2244 (2024); see also Hillman Rehab. Ctr., DAB No. 1611 at 17-20 (relying in part on the Board’s predecessor body’s “long-standing interpretation” of the Act to justify the imposition of burden shifting). 

It remains to be seen whether federal courts will consider the Board’s burden-shifting regime a “change in a substantive legal standard” under Allina or, in the absence of Chevron deference, more broadly reject the Board’s interpretation of section 7 of the APA to identify entities challenging enforcement actions taken by the government as proponents of an order or rule.  Until such judicial scrutiny demands otherwise, and absent modification of the Act or CMS’s implementing regulations, I apply the Board’s burden-shifting regime. 

VI.  Legal Authority for the Imposition of Penalties

The Social Security Act (Act) sets forth requirements for skilled nursing facilities to participate in the Medicare program.  The Act authorizes the Secretary of Health and Human Services to promulgate regulations implementing those statutory provisions.  42 U.S.C. § 1395i-3.  These regulations are found at 42 C.F.R. parts 483 and 488. 

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To participate in the Medicare program, skilled nursing facilities must maintain substantial compliance with program participation requirements.  To be in substantial compliance, a facility’s deficiencies may “pose no greater risk to resident health or safety than the potential for causing minimal harm.”  42 C.F.R. § 488.301.  A deficiency is a violation of a participation requirement established by 42 U.S.C. § 1395i-3(b)-(d), or the Secretary’s regulations at 42 C.F.R. pt. 483, subpt. B.  Id.  “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 skilled nursing facilities are in substantial compliance with the participation requirements.  42 U.S.C. § 1395aa(a); 42 U.S.C. § 1395i-3(g); 42 C.F.R. §§ 488.10(a), 488.308.  The Act authorizes state agencies to impose or recommend to the Secretary enforcement remedies to be imposed against skilled nursing facilities not in substantial compliance with program participation requirements.  42 U.S.C. 1396r(h); 42 U.S.C. § 1395i-3(h)(1). 

The Secretary can impose enforcement remedies with or without a state agency’s recommendation.  42 U.S.C. § 1395i-3(h)(2).  The Secretary’s regulations specify the enforcement remedies that CMS or a state agency may impose if a facility is not in substantial compliance.  See 42 C.F.R. § 488.406.  Among them, CMS may impose a per-day CMP for the number of days a facility is not in substantial compliance.  42 C.F.R. § 488.430(a).  At the time CMS imposed the penalties at issue here, a per-day CMP could range from $112 to $6,695 for less serious noncompliance and $6,808 to $22,320 for more serious noncompliance that poses immediate jeopardy4 to the health and safety of residents.  42 C.F.R. § 488.438(a)(1); 45 C.F.R. § 102.3; 85 Fed. Reg. 2869, 2880 (Jan. 17, 2020). 

A skilled nursing facility subject to a remedy based on a determination of noncompliance may request a hearing before an ALJ to determine whether a basis existed for the deficiency findings that led to the imposition of the 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, neither CMS’s choice of remedies nor the process by which it selects remedies are subject to review.  42 C.F.R. § 488.408(g)(2). 

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VII.  Discussion

A.  Regulatory framework for deficiencies related to accidents and supervision

Skilled nursing facilities are required to “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.”  42 C.F.R. § 483.25.  This includes the obligation to ensure each resident’s environment “remains as free of accident hazards as is possible” and that each resident “receives adequate supervision and assistance devices to prevent accidents.”  42 C.F.R. § 483.25(d)(1)-(2). 

Facilities satisfy the former obligation “by identifying and removing hazards, where possible, or where the hazard is unavoidable because of other resident needs, managing the hazard by reducing the risk of accident to the extent possible.”  Meadowwood Nursing Ctr., DAB No. 2541 at 2 (2013), citing Maine Veterans’ Home – Scarborough, DAB No. 1975 at 10 (2005).  They satisfy the latter by taking “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) (providing facilities must take “all reasonable precautions against residents’ accidents”). 

The regulations do not set forth specific parameters for compliance to cover every possible scenario but instead give facilities “the flexibility to choose the methods” to provide supervision or assistance devices to prevent accidents, so long as the chosen methods “constitute an ‘adequate’ level of supervision under all circumstances.”  Windsor Health Care Ctr., DAB No. 1902 at 5 (2003), aff’d, Windsor Health Care Ctr. v. Leavitt, 127 F. App’x 843 (6th Cir. 2005) (unpublished). 

B.  Relevant Facts

Resident 1 was 71 years old on her initial admission to Windsor on June 5, 2019.  CMS Ex. 7 at 1.  Her diagnoses included dementia, gastro-esophageal reflux disease, and dysphagia.  Id. at 2.  Windsor documented two instances of Resident 1 choking on food in July and October 2019.  CMS Ex. 6 at 1, 3; CMS Ex. 10 at ⁋ 9; P. Ex. 1 at 14-15, 30-34.5 

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After the first choking incident, Resident 1’s physician ordered a dysphagia consultation that took place in August 2019.  P. Ex. 1 at 17.6  The evaluating consultant concluded Resident 1 exhibited severe dysphagia but recommended giving her solid food so long as she was supervised during feeding and limited to small bites and sips.  Id. 

A September 2019 psychiatric progress note documented a decline in Resident 1’s mental condition.  Id. at 18.  Facility staff described Resident 1 as frail and impulsive with poor safety awareness.  Id.  The facility documented Resident 1’s second choking incident in October 2019, noting she began gasping for air while eating and became cold, clammy, and unresponsive.  Id. at 30-34.  Resident 1’s physician referred her for speech therapy evaluation in November 2019.  Id. at 35-36, 41. 

Speech Therapist Nataly Calderon-Montoya noted Resident 1 had choked after she impulsively ingested a heaping spoon of pureed food at a fast pace.  Id. at 35.  The speech therapist described Resident 1 as “very impulsive during oral intake” and observed the resident “self[-]feeds large spoon bites at a semi[-]fast rate.”  Id.  Speech Therapist Calderon-Montoya recommended limiting Resident 1’s diet to pureed food and thin liquids.  Id.  She advised Resident 1’s caregivers on swallowing strategies and recommended they provide “[c]lose supervision,” including cueing to the resident during meal intake.  Id.  After several sessions, the speech therapist noted Resident 1 continued to benefit from speech therapy intervention but observed the need to continue providing education until all facility staff learned how to provide necessary supervision to Resident 1 when she ate.  Id. at 37. 

In January 2020, Windsor conducted a comprehensive evaluation of Resident 1 that included a Brief Interview for Mental Status (BIMS) assessment.7  Resident 1 received a BIMS score of 3, indicating severe cognitive impairment.  CMS Ex. 7 at 9.  Resident 1 also exhibited delusional thinking that would significantly disrupt her care and living environment.  Id. at 13.  Evaluating facility staff concluded Resident 1 required extensive one-person assistance to eat.  Id. at 17. 

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Resident 1’s physician ordered her diet limited to food of pureed texture and regular liquids on January 6, 2020.8  Id. at 77.  On January 9, 2020, Resident 1’s physician ordered speech therapy evaluation for Resident 1’s worsening dysphagia.  Id. at 106.  Speech Therapist Kayla Massey evaluated Resident 1 and provided 12 days of dysphagia therapy.  Id. at 108-09.  She gave instructions to both Resident 1 and her caregivers in safe swallowing techniques and the use of adaptive equipment.  Id. at 109.  She recommended close supervision of Resident 1’s oral intake as well as a diet of thin liquids and pureed solid food.  Id.  Speech Therapist Massey thought Resident 1’s prognosis to be “[e]xcellent with consistent staff support.”  Id.  On February 14, 2020, Resident 1’s physician modified her dietary restrictions to include carbohydrate control, fortification of food, and a divided plate with all meals.  Id. at 78. 

On March 6, 2020, Windsor transferred Resident 1 to the hospital for emergent care after she choked during dinner.  Id. at 110.  During the survey that followed on March 8, 2020, Surveyor Tina VanHook interviewed two certified nurse aides (CNAs) present in the dining hall at the time of the incident, Tamisa Chaney and Antoinette Cockrum.  CMS Ex. 10 at 4-5.  CNA Cockrum stated Resident 1 had already reached out for other residents’ food before dinner, requiring her removal until the other residents were served.  Id.  After Resident 1’s return to the dining room, CNA Cockrum began feeding another resident while CNA Chaney left to assist a different resident.  Id. at 5.  CNA Chaney confirmed she left to assist another resident to eat in his room, leaving CNA Cockrum alone with the residents in the dining room.  Id. at 4.  CNA Cockrum reported she walked by Resident 1 and observed her shaking with a spoon in her mouth.  Id. at 5.  The nurse aide hit Resident 1 on the back of the head and observed food come out of her mouth.  Id.  She then yelled out to CNA Chaney.  Id.  CNA Chaney heard CNA Cockrum yell Resident 1 was choking and returned to perform the Heimlich maneuver on Resident 1 while CNA Cockrum left to find a nurse, License Vocational Nurse (LVN) Alexis Long.  Id. 

LVN Long confirmed to Surveyor VanHook that she had been passing out trays in a different dining room and returned when CNA Cockrum informed her Resident 1 was choking.  Id.  LVN Long took over for CNA Chaney in administering the Heimlich maneuver and then CPR until emergency transport services arrived and transported Resident 1 to the hospital.  Id. 

Surveyor VanHook obtained statements from Windsor’s staff beyond the sequence of events that resulted in Resident 1’s choking and emergency transfer that are relevant here.  According to the surveyor, CNA Chaney stated Windsor normally staffed the dining room for residents with eating behaviors with two CNAs to at least 20 residents and that a nurse was not present during meals.  Id. at 6.  CNA Chaney observed the nurse aides

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could not provide one-to-one supervision because all the residents needed redirection at times and that the nurse aides attempted do so while cleaning the dining room and then readying the residents for bed.  Id. 

Surveyor VanHook also interviewed Director of Nursing (DON) Chrissa Carpenter to determine the events that led to Resident 1’s demise.9  Id. at 4.  According to the surveyor, DON Carpenter reported Resident 1 had taken food from another resident’s plate at mealtime, which caused Resident 1 to choke.  Id.  The DON explained the other resident received “mechanical soft food”10 that day, while Resident 1 was restricted to a pureed diet.  Id. 

Meanwhile, according to Surveyor VanHook, DON Carpenter stated she was unaware of the extent to which Resident 1 would take other residents’ food.  Id. at 5.  The surveyor declared DON Carpenter stated she would not have placed Resident 1 next to a resident permitted to eat a mechanical soft diet.  Id. at 6.  More broadly, DON Carpenter reportedly conceded that at least two members of staff should have been present in the dining room where Resident 1 was seated to assist residents, particularly if a resident engaged in taking another resident’s food.  Id.  The DON also admitted that prior to the incident, the facility did not maintain a list of residents with behavioral issues during meals or those at risk of choking.  Id. at 7.  DON Carpenter allowed that any resident on a special diet was at risk of choking.  Id. 

C.  Windsor was not in substantial compliance with 42 C.F.R. § 483.25(d)(1)-(2) (Tag F689) because it failed to adequately supervise Resident 1. 

CMS argues Petitioner inadequately supervised Resident 1 because it knew of prior incidents that demonstrated her propensity for choking and her tendency to take food from other residents.  CMS Br. at 11.  Coupled with the facility’s awareness of Resident 1’s dietary restrictions, CMS contends Petitioner should have anticipated the possibility Resident 1 would take food she could not safely eat if seated with residents with different diets.  Id.  CMS asserts Petitioner should have either isolated Resident 1 during meals or seated her only with residents subject to the same dietary restrictions.  Id.  Its failure to do so, according to the agency, amounted to an “invitation to accident.”  Id. 

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Windsor claims CMS has not demonstrated sufficient factual bases to establish liability.  It first argues CMS did not establish Resident 1 in fact choked on food she took from another resident’s plate.  P. Br. at 12-13.  Windsor asserts the documentation of Resident 1’s emergent treatment at the hospital proves only that she choked on “her dinner.” Id. at 13, citing CMS Ex. 7 at 110.  The use of the phrase “her dinner” in the hospital’s treatment notes does not have the probative value Petitioner suggests.  It is more reasonably read as the hospital’s documentation of the basis for Resident 1’s emergent treatment, not an effort to identify the individual whose dinner Resident 1 had eaten. 

In any event, Surveyor VanHook declared she reviewed a facility progress note that verified “Resident [1] started choking on food she grabbed from another resident’s plate.”  CMS Ex. 10 at ⁋ 37; CMS Ex. 6 at 2.11  Petitioner has provided no basis for me to conclude the surveyor’s characterization of that document is unreliable, inaccurate, or fabricated.  Petitioner controls the record referenced by the surveyor and was thus in the best position to rebut her claim by simply submitting that record.  It has not done so.  Absent evidence to the contradictory, I find Surveyor VanHook’s unrebutted12 testimony and the hospital’s documentation of treating Resident 1 for choking on “her dinner” sufficient to establish Resident 1 choked on food she took from another resident’s plate. 

Windsor next asserts there is no factual basis for CMS’s claim that Resident 1 had a history of choking on food she took from other residents.  P. Br. at 13.  This contention is without merit.  The facility’s awareness of Resident 1’s propensity for choking is beyond dispute.  From her admission in June 2019, the resident’s medical chart consistently reflected a diagnosis of dysphagia, or difficulty swallowing.  CMS Ex. 7 at 2, 29, 77, 88.  Windsor’s staff then documented two instances of Resident 1 choking on food in July and October 2019.  CMS Ex. 6 at 1, 3; CMS Ex. 10 at ⁋ 9; P. Ex. 1 at 14-15, 30-34.  A swallowing study conducted after the first choking incident revealed the resident’s “severe” dysphagia required facility staff to supervise her while eating.  P. Ex. 1 at 17. 

After the second choking incident in October 2019, Speech Therapist Calderon-Montoya observed Resident 1 quickly and impulsively ate large bites of food, which in her view required facility staff to supervise Resident 1 while she ate.  Id. at 35-36, 41.  She also recommended restricting Resident 1 to pureed foods.  Id. at 35.  Resident 1’s physician

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ordered that restriction in January 2020.  CMS Ex. 7 at 77.  Resident 1’s worsening dysphagia triggered another speech therapy evaluation and 12 days of therapy, after which Speech Therapist Massey recommended facility staff provide close supervision to Resident 1 while eating and again limited the resident to thin liquids and pureed food.  Id. at 106-109.  Resident 1’s care plan reflected the restriction to pureed food in January 2020, months before she choked on non-pureed food and died.  Id. at 69, 77.  Windsor cannot plausibly argue it could not have anticipated the hazards that could arise from Resident 1’s tendency to choke. 

Windsor’s claim that it could not have foreseen Resident 1’s tendency to take food from the plates of other residents is equally implausible.  As early as September 2019, facility staff described Resident 1, who had severe dementia, as “impulsive” with “poor safety awareness.”  P. Ex. 1 at 18.  When interviewed by Surveyor VanHook, three CNAs independently confirmed Resident 1 was known to take food from other residents.  CNA Chaney stated “everyone was aware of [Resident 1’s] behaviors to grab food.”  CMS Ex. 10 at ⁋ 18; see also CMS Ex. 6 at 1 (“[Resident 1] had this behavior.  This is the 3^rd time she has had a choking incident.  She is very eager to eat. . . . There was [sic] a couple of episodes and she choked on a piece of bread she had gotten a hold of.”).  CNA Cockrum similarly reported Resident 1 “had grabbed other resident’s [sic] food, but it’s always been pureed.”  CMS Ex. 6 at 3.  CNA Felicia Soefje observed that Resident 1 “had behaviors of wanting to get other people’s food” and after eating her own meal, “would go to different tables and take their food.”  Id. at 2. 

In response to this conclusive evidence of its staff’s awareness of Resident 1’s tendency to take food from others and choke, Windsor claims Surveyor VanHook “used closed-ended questions” to elicit specific responses from staff.  P. Br. at 13-14.  Even if true, the facility’s claim does not negate the evidentiary value of the hearsay statements made by its staff to the surveyor.  If Windsor believed Surveyor VanHook elicited inaccurate statements from the CNAs to whom she spoke, it could have submitted sworn declarations from those witnesses to rebut the hearsay statements recorded by the surveyor.  It has not done so. 

Windsor did submit a declaration from DON Carpenter to dispute Surveyor VanHook’s characterization of her statements.  Id. at 13, citing P. Ex. 2.  Windsor first contends DON Carpenter did not confirm Resident 1 grabbed food from another resident’s plate on March 6, 2020.  Id.  DON Carpenter clarifies she only said it was possible that Resident 1 did so.  P. Ex. 2 at 3 (“What I told the surveyor was that . . . it was possible that the resident may have grabbed the food.”).  Windsor next asserts the surveyor improperly concluded the facility failed to care-plan for Resident 1’s food-grabbing tendencies by mischaracterizing the DON’s statements made to her to conclude the DON admitted to being unaware of the extent of Resident 1’s tendencies and failed to care-plan for it. P. Br. at 13.  DON Carpenter explains she actually told Surveyor VanHook that if Resident 1 exhibited such behavior, she “definitely” would have care-planned for it.  P. Ex. 2 at 3. 

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Windsor lastly asserts the surveyor refused to hear DON Carpenter’s explanation for seating Resident 1 at the same table as Resident 2, who had a different prescribed diet.  P. Br. at 13-14.  The DON declares that while residents with different diets might not be “compatible to sit together,” Windsor did not segregate residents by diet because doing so might cause a “dignity issue.”  P. Ex. 2 at 3.  DON Carpenter further opines that it was safe to seat Resident 1 at the same table with Resident 2 because Resident 1 was “fully capable” of tolerating Resident 2’s prescribed diet of mechanical soft texture meats.  Id. 

The first supposed error cited by the facility is irrelevant.  DON Carpenter’s clarification – that she did not concede Resident 1 took food from another resident but only allowed it was possible – does not undermine the observations of the three CNAs present that day, all of whom confirmed Resident 1 choked after she took food from another resident and in fact had a habit of doing so.  The second supposed error is not an error.  DON Carpenter’s claim that she would have care-planned for Resident 1’s choking tendency and food-grabbing behavior, if exhibited by the resident, presumes the resident did not exhibit such behavior.  As I have already discussed, the record reveals that premise to be plainly incorrect.  I do not find DON Carpenter’s claim she was unaware of Resident 1’s choking tendency or food-grabbing behavior credible.  She either was or should have been aware of those issues and, as she acknowledged, should have care-planned for them.  P. Ex. 2 at 3. 

Finally, I do not accept as credible DON Carpenter’s view that it was safe to seat Resident 1 at the same table as a resident who could eat mechanical soft texture meats.  Resident 1’s death that day from choking on food she took from another resident is perhaps the clearest indicator of the wrongness of that view.  The DON’s opinion is inconsistent with the limitations recommended by Resident 1’s doctor and Speech Therapists Calderon-Montoya and Massey.  They all limited the resident to pureed foods as of January 2020.  CMS Ex. 7 at 69, 77, 109; P. Ex. 1 at 35.  Both speech therapists also recommended staff provide Resident 1 close supervision while she ate to address her impulsive eating and food-grabbing behavior.  CMS Ex. 7 at 109; P. Ex. 1 at 35.  Given Resident 1’s inability to safely consume anything but pureed food and her pronounced tendency to take incompatible food from other residents whenever the opportunity arose, DON Carpenter had no basis to conclude Resident 1 could be safely seated in proximity to residents with differing diets. 

I find equally incredible DON Carpenter’s notion that segregating residents by diet violated a facility policy that prioritized the “dignity” of residents over their health and safety.  Windsor has produced no such policy or evidence that its staff used this rationale to avoid segregating residents by diet.  Indeed, facility staff consistently indicated they routinely segregated residents by diet in the dining room.  CNA Chaney stated “[w]e sit them according to their diets.”  CMS Ex. 6 at 1.  CNA Soefje reported “[w]e always try to sit [Resident 1] with the pureed people.”).  Id. at 2.  CNA Cockrum confirmed “[w]e always put our pureed [eaters] together.”).  Id. at 3. 

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Given Windsor’s awareness of Resident 1’s propensity for choking and her tendency to take food from others, the question is whether the facility provided adequate supervision “to meet [her] assessed needs and mitigate foreseeable risks of harm from accidents.”  Briarwood, DAB No. 2115 at 11.  CMS points out the level of supervision considered adequate under the regulations is based on the facility’s assessment of a resident’s vulnerability to hazards.  CMS Br. at 12.  Because that assessment showed Resident 1 was prone to taking food from others and eating in a manner likely to cause choking, CMS argues Windsor should have taken additional measures to mitigate Resident 1’s risk of harm from her unique vulnerabilities.  Id. at 11-12.  CMS cites Windsor’s control over Resident 1’s proximity to non-pureed food to argue the facility could have seated Resident 1 with other residents with the same diet or even served Resident 1 food in her own room.  Id. at 11.  Windsor meanwhile contends the adequacy of its supervision of Resident 1 is evidenced by the fact that members of staff were present in the resident dining room and close enough to Resident 1 to “immediately” intervene when she began choking.  P. Br. at 18.13  Windsor adds that absent adequate supervision, an “immediate reaction” to Resident 1’s choking would not have been possible.  Id. 

CMS is correct.  The record establishes Windsor knew or should have known Resident 1 required far closer supervision than it opted to provide.  Facility staff described Resident 1 as impulsive with poor safety awareness in September 2019.  CMS Ex. 7 at 18.  Speech Therapist Calderon-Montoya evaluated Resident 1 in November 2019 and recommended staff limit Resident 1 to pureed food and closely supervise her while eating.  P. Ex. 1 at 35.  By January 2020, Windsor’s staff found Resident 1 had severe cognitive limitations and required extensive one-person assistance to eat.  Id. at 17.  Resident 1’s worsening dysphagia prompted her physician to restrict her to pureed food and regular liquids and refer her for more swallowing therapy with Speech Therapist Massey, who, like Speech Therapist Calderon-Montoya, recommended Resident 1 eat only pureed food under close supervision.  Id. at 77, 106, 109. 

Windsor’s staff also recognized Resident 1’s behavior during mealtimes posed a specific risk that merited closer supervision.  CNA Chaney reported that the day of the incident, Resident 1 began grabbing other residents’ food at the outset, requiring them to remove her from the dining room until the other residents’ trays were served.  CMS Ex. 6 at 1.  She noted this was Resident 1’s third choking incident due to her eagerness to eat and tendency to eat quickly.  Id. at 1.  LVN Long observed that Resident 1 “takes over people’s food” and was always hungry.  Id. at 4.  CNA Soefje relayed that even when sat at a table with other pureed food eaters, Resident 1 “would go to different tables and take their food.”  Id. at 2. 

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In short, Resident 1’s medical record, the observations of Windsor’s staff, and the opinions of her treating physician and two evaluating specialists all put the facility on clear notice that Resident 1’s extreme cognitive limitations, propensity to choke on non-pureed food, and pronounced tendency to take food from other residents’ plates required “close supervision.”  See P. Ex. 1 at 35; CMS Ex. 7 at 77, 106, 109.  However one interprets that term, the only intervention Windsor’s staff implemented was to segregate residents by diet and provide monitoring.  But the facility did not implement these interventions consistently or effectively, as its staff appeared to recognize.  CNA Soefje noted that even when they sat Resident 1 at a table with other pureed food eaters, she would finish and “go to different tables and take their food.”  CMS Ex. 6 at 2.  And on the day of the choking incident leading to her death, facility staff seated Resident 1 near an individual whose diet was not limited to pureed food.  As LVN Long conceded, “[the resident with a non-pureed diet] probably should not have been at the same table as her if I had to be honest.”  Id. at 4. 

Even if implemented correctly, these measures cannot reasonably be characterized as “close supervision.”  As CNA Chaney strikingly observed: 

• Basically, it’s two of us with 20 something residents with behaviors. . . . One [staff member] stays in the [dining room] and other goes to [feed a resident in their room]. . . . We have to redirect all of them.  No one on one.  The nurse is not back there during meals.  It’s just us two. . . . We feed the ones that need to be fed and the ones eager to leave.  We have to clear the tables and we are constantly redirecting.  Lots of behaviors.  We have to clean our own [dining room] while constantly redirecting and getting people ready for bed.  Everyone was aware of [Resident 1’s] behaviors to grab food.  I am the one that makes sure everything is done in the [dining room].  That way I can look at people and make sure nothing is going on that shouldn’t be. . . . It bothers me because I am not going to point fingers or blame others.  I feel responsible because I was not there. 

CMS Ex. 6 at 1-2. 

CNA Chaney’s insistence that she bore primary responsibility is a credit to her professionalism.  But as its meal assistance policy makes clear, Windsor bore the burden to ensure “[r]esidents shall receive assistance with meals in a manner that meets the individual needs of each resident” and that “[f]acility [s]taff will . . . help residents who require assistance with eating.”  CMS Ex. 8 at 1.  The facility could not reasonably expect one or two CNAs to supervise over 20 residents, redirect the residents with

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behavioral issues, ensure they ate, remove their plates, clean the dining room, and get them ready for bed. 

In sum, Windsor had ample notice that Resident 1’s medical diagnoses and behavioral issues necessitated close supervision to ensure she ate food consistent with her restricted diet in a safe manner.  Its own staff documented Resident 1’s profound cognitive limitations and recommended extensive one-person assistance for eating.  Two specialists recommended close supervision to accommodate Resident 1’s behavioral and physical issues related to eating.  Yet, as CMS correctly points out, there is no evidence Windsor made any effort to update Resident 1’s care plan to address these well-documented concerns.  CMS Br. at 15-16.  The general nonspecific interventions Windsor did put in place – segregating residents by diet and providing minimal monitoring during mealtimes – were not responsive to Resident 1’s particular needs and were therefore ineffective. 

Under these conditions, the risk of harm to Resident 1 from choking on non-pureed food impulsively taken from another resident’s plate was highly foreseeable.  Windsor’s failure to acknowledge or plan for Resident 1’s needs constitutes noncompliance with its regulatory obligation to ensure each resident “receives adequate supervision and assistance devices to prevent accidents.”  42 C.F.R. § 483.25(d)(1)-(2). 

D.    Windsor was not in substantial compliance with 42 C.F.R. §§ 483.12(a)(1) (Tag F600) and 482.12(b)(1) (Tag F607) because it neglected to address the risk residents would choke on food taken from others and by failing to establish and implement a mealtime policy to prevent such neglect.

42 C.F.R. § 483.12(a)(1) states residents of skilled nursing facilities have a right to be free from neglect.  Facilities are thus required to develop and implement policies that prohibit and prevent neglect.  42 C.F.R. § 483.12(b)(1).  Neglect is defined as the failure of a facility, its employees, or service providers to provide goods and services to a resident that are necessary to avoid physical harm, pain, mental anguish, or emotional distress.  42 C.F.R. § 483.5. 

CMS argues Windsor’s failure to adequately supervise Resident 1 and other similarly situated residents amounts to neglect within the meaning of the regulations.  CMS Br. at 17.  CMS supports its claim by citing Windsor’s failure to fashion a policy to address meal supervision or choking prevention as well as its failure to maintain a list of at-risk residents until Resident 1’s death.  Id. at 18-19.  CMS asserts these failures amount to noncompliance with the requirement to develop and implement policies and procedures to prevent neglect.  Id. at 18. 

Windsor responds that its alleged noncompliance does not meet the regulatory or common definitions of neglect because there is no evidence the facility “ignored or disregarded [Resident 1] for a long period of time.”  P. Br. at 15.  The facility cites the

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immediate response of its staff to Resident 1’s choking to refute CMS’s claim of neglect.  Id. at 15-16.  Windsor also argues a single instance of neglect is insufficient to satisfy the regulatory definition of neglect.  Id. at 16.  The facility otherwise asserts facts leading to a citation under the regulatory tag pertaining to accidents cannot, by definition, also meet the regulatory definition of neglect.  Id. 

Windsor’s claims are without merit.  First, the definition of neglect set forth in 42 C.F.R. Part 483 requires only that CMS demonstrate the facility failed to “provide goods and services to a resident that are necessary to avoid physical harm, pain, mental anguish, or emotional distress.”  42 C.F.R. § 483.5.  Windsor’s own abuse and neglect policy mirrors this regulation to define neglect as the failure to provide goods and services necessary to avoid physical harm, mental anguish, or mental illness.  CMS Ex. 10 at ⁋ 25.14  The record before me evidences a clear failure to provide necessary services that resulted in physical harm to Resident 1 and ultimately led to her demise. 

I recognize and share Windsor’s concern that any instance of harm related to a failure to provide a good or service could feasibly result in a neglect citation.  But this is not a one-time instance of neglect that led to unforeseen results.  Instead, as I have discussed, the facility’s neglect resulted in highly foreseeable harm to Resident 1.  Windsor failed at every level to meaningfully incorporate the assessments of treaters, specialists, and its own staff into a care plan that met Resident 1’s individual needs.  There may be a case where CMS improperly conflates a neglect citation with another deficiency, but this is not that case. 

Next, the plain language of the regulations does not support Windsor’s effort to redefine neglect to require a period of duration.  See 42 C.F.R. § 483.5.  Even if I applied this standard, there is no doubt the facility neglected Resident 1’s needs for a protracted period of time.  Resident 1’s well-documented mental and physical impairments required individualized attention the facility simply failed to provide.  Its failure to care-plan for the risks that arose from the resident’s profound eating-related physical and behavioral issues persisted for at least three months before the resident died. 

Finally, Windsor’s claim that an accident citation precludes the possibility of a neglect citation is without merit.  It is entirely possible that a facility’s neglect could result in harm accidentally befalling a resident.  This is essentially what happened here.  Windsor neglected Resident 1 – and other similarly situated residents – by failing to address the risk that residents with dietary restrictions and behavioral issues could take and choke on food from others in the dining room.  The facility’s residents needed appropriate interventions to avoid harm which Windsor entirely failed to implement. 

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As for the related deficiency concerning policies and procedures to prevent neglect, Windsor argues CMS did not articulate the required policy it failed to develop and implement to prevent harm to Resident 1.  P. Br. at 16-17.  Windsor contends the only policy that could have prevented harm to Resident would be one-on-one feeding, which, according to Windsor, would not have been feasible.  Id. 

Windsor’s argument fails because it confuses a specific intervention with a general policy.  In any event, CMS has no obligation to establish an alternative policy a facility should have employed.  Instead, “multiple or sufficient examples of neglect may support a reasonable inference that a facility has failed to develop or implement policies and procedures that prohibit neglect.”  Glenoaks Nursing Ctr., DAB No. 2522 at 14 (2013); Dumas Nursing and Rehab., L.P., DAB No. 2347 at 10 (2010). 

Such an inference can be drawn here.  Windsor did not merely fail to adequately supervise Resident 1.  The facility neglected all residents who exhibited the same propensity for choking and taking food from other residents during mealtimes.  Surveyor VanHorn identified at least 13 other residents (Residents 2-4, 6-8, 10-14, and 16-17) at risk of choking who took or ate other residents’ food in the dining room.  CMS Ex. 1 at 8; see also CMS Ex. 1 at 12 (Windsor’s updated care plans for those residents as well as Residents 18-35).  Windsor’s failure to address the risks for all those residents placed them at a foreseeable risk of choking and serious harm.  The scope of this failure leads me to conclude that Windsor should have developed specific policies to address the risk of harm associated with gathering residents of various dietary needs and behavioral states for mealtimes.  Windsor’s failure to develop such policies amounts to noncompliance with 42 C.F.R. § 483.12(b)(1). 

Alternatively, Windsor could have maintained substantial compliance by simply following the policy it did develop for mealtime care, which states “[r]esidents shall receive assistance with meals in a manner that meets the individual needs of each resident” and that “[f]acility [s]taff will . . . help residents who require assistance with eating.”  CMS Ex. 8 at 1.  As I have explained, Windsor failed to meet the individual needs of Resident 1.  I infer that it failed to provide the same assistance to similarly situated residents at risk of choking on food taken from others during mealtimes based on its failure to identify and track at-risk residents before Resident 1’s death as well as its plainly inadequate approach to monitoring and supervision during mealtimes.  The facility’s failure to adequately implement its mealtime policy amounts to noncompliance with its obligation under 42 C.F.R. § 483.12(b)(1) to implement policies and procedures that prevent neglect. 

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E.  CMS’s immediate jeopardy determination 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 actual harm to a resident to establish immediate jeopardy.  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 a heavy burden on facilities to show no immediate jeopardy.  The Board 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 11 (2005) (citing Florence Park Care Ctr., DAB No. 1931 at 27-28 (2004)), aff’d, Barbourville Nursing Home v. United States Dep’t of Health & Human Servs., 174 F. App’x 932 (6th Cir. 2006); see also, e.g., Easley v. Cromartie, 532 U.S. 234, 242 (2001) (“In applying [the clearly erroneous] standard, . . . a reviewing court must ask whether, ‘on the entire evidence,’ it is ‘left with the definite and firm conviction that a mistake has been committed.’”). 

As I have discussed, Windsor should have foreseen the risk Resident 1 would choke after taking food from another resident’s plate in the dining room.  Windsor had ample evidence of Resident 1’s particular needs based on her medical chart, the instructions from her physician, the evaluations and recommendation of two specialists, and the findings of its own staff concerning the resident’s cognitive limitations and behavioral issues.  Yet it entirely failed to update Resident 1’s care plan. 

While Windsor did appear to try and seat residents according to their diets, it did not do so consistently, and in fact seated Resident 1 near a resident with a different diet on the day of her death.  Even if it had properly effectuated this dietary segregation strategy, the facility did not provide enough staff to adequately monitor and supervise Resident 1 and other at-risk residents.  Resident 1 could simply leave her table and take food from residents at other tables and did so habitually.  Windsor should have assigned more staff members to provide adequate close supervision to Resident 1 and other at-risk residents during mealtimes. 

Given Resident 1’s impulsive eating habits and aggressive tendency to take food from others, Windsor could have also simply opted to feed her in her own room, as it appeared to have been doing for at least one other resident.  See CMS Ex. 10 at 4 (CNA Chaney confirmed she left CNA Cockrum alone with the residents in the dining room to assist another resident to eat in his room).  On the day of her death, Resident 1 sought to take food from other residents’ trays even before dinner had begun, necessitating staff to remove her until they had served the other residents.  CMS Ex. 6 at 3.  Windsor had every reason to recognize it could not effectively supervise Resident 1 simply by seating

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her at a diet-specific table with minimal monitoring.  In fact, it failed to consider or implement any intervention specific to Resident 1’s issues at all.  Windsor somewhat speciously argues Resident 1 “suffered no harm as a result of the facility’s actions.”  P. Br. at 19.  But Windsor’s failure to implement interventions based on Resident 1’s well-documented impairments and needs led to her ingestion of non-pureed food that resulted in not only actual harm but death.  CMS Ex. 7 at 110; CMS Ex. 10 at ⁋ 11.  Given these facts, I cannot find the imposition of immediate jeopardy for this deficiency clearly erroneous. 

F.  The remaining deficiencies are immaterial to the outcome. 

CMS cited Windsor with two additional instances of noncompliance under Tags F609 and F805.  CMS Ex. 1 at 1.  I need not address these citations because even if I were to overturn them, the facility’s noncompliance under Tags F600, F607, and F689 would still justify the penalties imposed by CMS as reasonable.  See Claiborne-Hughes Health Ctr. v. Sebelius, 609 F.3d 839, 847 (6th Cir. 2010) (“It is neither arbitrary nor capricious for the agency to conclude that, in the interests of judicial economy, it will review only those deficiencies that have a material impact on the outcome of the dispute.”). 

G.  The $12,210 and $515 per-day civil money penalties imposed by CMS are reasonable. 

CMS imposed a per-day CMP of $12,210 for the three days of immediate jeopardy noncompliance and a per-day CMP of $515 for two days of non-immediate jeopardy noncompliance.  CMS Ex. 2 at 2. 

In determining the reasonableness of the penalty amount imposed by CMS, I look to the factors set forth at 42 C.F.R. §§ 488.438(f) and 488.404 (incorporated by reference into 42 C.F.R. § 488.438(f)(3)).  These factors include the seriousness of the deficiency and the facility’s compliance history, financial condition, and degree of culpability.  Id.  Unless a facility contends that a particular regulatory factor does not support the CMP amount, I must sustain it.  Coquina Ctr., DAB No. 1860 at 32 (2002). 

The record shows that, once the facility removed the immediate jeopardy conditions posed by the three deficiencies discussed above, the facility remained out of compliance with the same three requirements at a pattern-wide level of actual harm to resident health and safety.  CMS Ex. 1 at 15.15  Considering the regulatory factors, I conclude that Windsor’s noncompliance stemming from these three deficiencies support the reasonableness of both the immediate- and non-immediate-jeopardy CMP amounts imposed. 

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Windsor’s assertion that a lower CMP is warranted to reflect the less serious nature of its noncompliance is without merit.  The facility should have foreseen Resident 1 would attempt to eat and then likely choke on any non-pureed food in her vicinity.  Windsor implemented no interventions to mitigate this risk, despite recommendations from two specialists to provide “close supervision” to the resident and its own finding that she required extensive one-person assistance to eat.  As a result of the facility’s lax approach, Resident 1 was able to take non-pureed food from a nearby resident, and as a result, choked to death.  CMS Ex. 6 at 1-2; CMS Ex. 7 at 110; CMS Ex. 10 at ⁋ 11.  In addition, Windsor’s lack of individualized care planning and inadequate supervision extended to all residents with similar behavioral issues and dietary restrictions, leaving multiple residents at similar risk of harm.  The seriousness of Windsor’s noncompliance cannot be understated. 

Windsor does not argue compliance history or financial condition are factors affecting the penalty amount.  I next consider the level of culpability, which includes neglect, indifference, or disregard for resident care, comfort, or safety.  I find Windsor highly culpable because its noncompliance constituted neglect of Resident 1 and other similarly situated residents who were all potentially at risk of choking in the dining room.  I do not believe Windsor intended to disregard resident safety.  But Windsor knew or should have known that placing residents in the same dining room with minimal supervision and without regard for their cognitive limitations, restricted diets, or behavioral issues amounted to an invitation to tragedy.  The facility should have taken steps to address those risks, particularly given the numerous documented instances of residents taking food from others in the dining room.  CMS Ex. 1 at 8 (Surveyor VanHook’s review of records for Residents 2-4, 6-8, 10-14, and 16-17 “revealed their behaviors of grabbing other resident’s food, giving food and drinks to other residents, sitting in another resident[’s] seating area and eating their food, picking at other resident’s food, and risk for choking.”).  Windsor’s failure to do so reflects a high degree of culpability. 

Finally, the $12,210 per-day CMP amount selected by CMS is in the middle of the range for immediate-jeopardy noncompliance, while the $515 per-day CMP amount is near the bottom of the range for non-immediate jeopardy noncompliance.  85 Fed. Reg. 2869, 2880 (Jan. 17, 2020).  Having considered the appropriate regulatory factors, I find CMS’s imposition of a $12,210 per-day CMP for three days of immediate jeopardy noncompliance and a $515 per-day CMP for two days of non-immediate-jeopardy noncompliance to be reasonable. 

VIII.  Conclusion

I affirm CMS’s determination that Windsor was not in substantial compliance with Medicare program participation requirements and that the facility’s noncompliance posed immediate jeopardy to its residents.  I conclude the $12,210 per-day CMP from March 6,

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2020, through March 8, 2020, and the $515 per-day CMP from March 9, 2020, through March 10, 2020, for a total CMP of $37,660, are reasonable.