Franklin Care Center, DAB No. 3239 (2026)

FINAL DECISION ON REVIEW OF
ADMINISTRATIVE LAW JUDGE DECISION

This case returns to the Board after our remand in Franklin Care Center, DAB No. 2869 (2018).  That decision addressed the entry of summary judgment by an Administrative Law Judge (ALJ) in favor of the Centers for Medicare & Medicaid Services (CMS) and against Franklin Care Center (Petitioner), a skilled nursing facility (SNF).  In DAB No. 2869 we upheld summary judgment as to Petitioner’s noncompliance with regulatory requirements but concluded Petitioner raised genuine issues of material fact concerning CMS’s immediate jeopardy determination and the reasonableness of the civil money penalty (CMP); therefore, we remanded for further proceedings on those issues.

After an evidentiary hearing, the ALJ upheld CMS’s immediate jeopardy determination and the reasonableness of the per day CMP for the period of non-immediate-jeopardy noncompliance, but reduced the per day CMP for the period of immediate-jeopardy noncompliance.  Franklin Care Ctr., DAB CR5700 (2020) (ALJ Decision).  Petitioner now appeals the ALJ’s decision on remand.

We affirm that CMS’s immediate jeopardy determination was not clearly erroneous; we also uphold the ALJ’s reduction of the CMP, although on modified grounds.

Legal Background

Section 1819 of the Social Security Act (Act) and 42 C.F.R. Part 483 govern SNFs’ participation in Medicare.1  To participate, a SNF must be in substantial compliance with program requirements.  42 C.F.R. § 488.330(b).  Failure to meet a participation requirement is a “deficiency,” and if a deficiency creates the potential for more than minimal harm to one or more residents then the SNF is not in “substantial compliance” and is in “noncompliance.”  42 C.F.R. § 488.301 (defining terms).

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State health agencies determine SNFs’ compliance by conducting inspections called “surveys.”  Act §§ 1819(g), 1864(a); 42 C.F.R. §§ 488.10, 488.11.  Surveys include touring the facility and interviewing staff and residents.  42 C.F.R. § 488.110(b), (e)-(f).  If a survey results in “negative findings,” surveyors prepare a Statement of Deficiencies (form CMS–2567) that cites each deficiency by a “prefix tag and regulatory citation, followed by a summary of the deficiency and supporting findings.”  Id. § 488.110(i)(4), (j).  Surveyors signify each deficiency’s “seriousness,” meaning its severity and scope, per a matrix in the CMS State Operations Manual (SOM); level “A” signifies the least serious deficiencies and levels “J,” “K,” and “L” the most serious (which pose immediate jeopardy).  W. Care Mgmt. Corp., DAB No. 1921, at 4 (2004) (displaying matrix and citing to SOM).  Immediate jeopardy exists when a SNF’s noncompliance “has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.”  42 C.F.R. § 488.301.  Once the state agency gives a Statement of Deficiencies to the SNF, it must submit an acceptable plan of correction.  Id. §§ 488.110(j)-(k), 488.402(d), 488.408(f).

This appeal concerns Petitioner’s noncompliance with three regulations, the first of which is 42 C.F.R. § 483.25(h):

Accidents. The facility 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.

In this context, “accident” ordinarily “includes any unexpected and undesirable event.”  Woodstock Care Ctr., DAB No. 1726, at 20 (2000), aff’d, 363 F.3d 583 (6th Cir. 2003), reh’g & reh’g en banc denied (Feb. 20, 2004). 

The second regulation, 42 C.F.R. § 483.75(d), provides:

          Governing body.  (1) The facility must have a governing body, or designated persons functioning as a governing body, that is legally responsible for establishing and implementing policies regarding the management and operation of the facility; and

          (2) The governing body appoints the administrator who is—

          (i) Licensed by the State where licensing is required; and

          (ii) Responsible for management of the facility.

The third regulation, 42 C.F.R. § 483.75(o)(1)-(2), states:

          Quality assessment and assurance.  (1) A facility must maintain a quality assessment and assurance committee consisting of—

          (i) The director of nursing services;

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          (ii) A physician designated by the facility; and

          (iii) At least 3 other members of the facility’s staff.

          (2) The quality assessment and assurance committee—

          (i) Meets at least quarterly to identify issues with respect to which quality assessment and assurance activities are necessary; and

          (ii) Develops and implements appropriate plans of action to correct identified quality deficiencies.

CMS may impose enforcement remedies, including CMPs, for noncompliance.  Act § 1819(h); 42 C.F.R. §§ 488.400; 488.406; 488.408(a)-(e); 488.430.  CMS sets the CMP amount by considering specified factors.  42 C.F.R.  §§ 488.404; 488.438.  At the relevant time, the authorized range for per day CMPs for immediate jeopardy deficiencies was $3,050 to $10,000 and for less serious deficiencies was $50 to $3,000.  Id. § 488.438(a)(1).

When CMS imposes remedies, a SNF may request an ALJ hearing and appeal an unfavorable ALJ decision to the Board.  42 C.F.R. §§ 488.408(g)(1); 498.3(b)(13)-(14); 498.5(c).

Case Background

As this dispute began over a decade ago, we begin by summarizing the pertinent history.2

I.    State surveys, Petitioner’s response, and CMS’s imposition of remedies

Petitioner is a SNF in New Jersey.  ALJ Decision at 5.  The main facility opened in 1973 and an addition opened in 1985.  P. Ex. 60, at 1.  By 2004, the building’s leaking roof resulted in municipal violation notices and correction orders.  Fr. I ALJ Decision at 6; CMS Exs. 105, 110; P. Ex. 23.  Petitioner closed its second floor in 2007.  ALJ Decision at 1; P. Ex. 60, at 1-2.  In February 2011, more than three years before the survey that led to this appeal, the New Jersey Department of Health and Senior Services (State Agency) cited Petitioner for a deficiency for not providing “remediation and ongoing preventive maintenance of the facility’s leaking roof.”3  CMS Ex. 14, at 1.  The State Agency also found that “water leaks on the floors within the residents’ environment” allowed for

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potential “resident accidents and injuries.”  Id. at 8.  The State Agency recommended remedies and CMS concurred.4  CMS Ex. 100, at 2; CMS Ex. 101, at 2.

The State Agency received complaints about Petitioner in September and October of 2014 and conducted a survey of the facility from October 28, 2014 through November 3, 2014.  ALJ Decision at 5; P. Ex. 59, at 3.  The facility had 79 residents at that time.  ALJ Decision at 14; P. Ex. 59, at 12; CMS Ex. 18. 

The State Agency cited eight deficiencies; this appeal concerns three of them.  Fr. I ALJ Decision at 4-5; CMS Ex. 1, at 1, 3, 8-9, 13-32, 34, 36-37.  Tag F323 alleged noncompliance with 42 C.F.R. § 483.25(h), primarily by Petitioner’s failure “to protect residents from potential mold contamination.”  CMS Ex. 1, at 13,15.  Tag F493 alleged noncompliance with section 483.75(d)(1)-(2) because Petitioner’s “Governing Body failed to develop procedures to deal with the significant housekeeping and environmental issues found throughout the facility,” including the “pervasive, black mold like substance that the survey team identified throughout the facility.”  Id. at 36-37.  Tag F520 alleged noncompliance with section 483.75(o)(1) because Petitioner’s Quality Assurance committee had not addressed “multiple significant housekeeping issues” including “potentially dangerous environmental contamination.”  Id. at 37-40.  The surveyors cited Tag F323 at seriousness level “L,” indicating widespread immediate jeopardy, and Tags F493 and F520 at level “J,” signifying isolated immediate jeopardy.  DAB No. 2869, at 3 & n.3.  Petitioner proposed several plans of correction.  ALJ Decision at 6.  The State Agency ultimately accepted one of these plans and found immediate jeopardy was abated by November 25, 2014 but lower-level noncompliance continued until December 23, 2014.  DAB No. 2869, at 3.

CMS issued an initial determination adopting the State Agency’s survey findings on November 19, 2014.  ALJ Decision at 6; CMS Ex. 2.  Additional CMS determinations on March 18, 2015 and April 10, 2015 imposed a $10,000 per day CMP for 26 days of immediate jeopardy (October 30, 2014 through November 24, 2014) and a $350 per day CMP for 28 days (November 25, 2014 through December 22, 2014) of less serious noncompliance.  CMS Ex. 3; ALJ Decision at 6.

II.    Original ALJ proceedings

Petitioner requested an ALJ hearing.  Fr. I ALJ Decision at 4-5.  CMS proposed 15 witnesses and 117 exhibits and moved for summary judgment.  Fr. I Witness List of CMS; Fr. I ALJ Decision at 5.  Petitioner proposed eight witnesses and 65 exhibits,

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opposed summary judgment, and asked to cross-examine all CMS witnesses.  Fr. I Witness List of P.; Fr. I ALJ Decision at 5; Fr. I P. Prehr’g Br. & Br. in Opp. to CMS Mot. for Summ. J. (P. Prehr’g Br.) at 2, 17; Fr. I P. Req. to Cross-Examine Witnesses.

Petitioner’s evidence included three reports by Robert Laumbach, M.D.  The first, dated November 2, 2014, stated that his observations of the facility and sampling results “d[id] not indicate an imminent health risk due to mold.”  P. Ex. 1, at 1, 3.5  His November 25, 2014 re-inspection report asserted there was no “evidence for health risks related to mold exposure for patients” and the “limited areas of mold growth” previously identified were remediated.  P. Ex. 2, at 4-5.  His October 12, 2015 final report stated that he perceived “no evidence” that residents “suffered any injury due to the limited mold” observed, and opined that CMS’s immediate jeopardy determination “was in error, because there was no likelihood of serious injury, harm, impairment or death.”  P. Ex. 3, at 14.

CMS’s evidence included the report of Ernest P. Chiodo, M.D.  CMS Ex. 97.  He stated that Petitioner’s medical records showed numerous residents with asthma, Chronic Obstructive Pulmonary Disease (COPD), pneumonia, and other respiratory conditions, who were “particularly vulnerable to the adverse health effects of airborne mold exposure” and faced “a particularly increased risk.”  Id. at 3, 5.  He opined “to a reasonable degree of medical and scientific certainty that there was extensive mold contamination of” the facility and thus “a likelihood of serious harm to the patients” there, “including but not limited to respiratory distress and failure.”  Id. at 10.  He concluded that Petitioner’s failure “to address sources of water intrusions into the facility placed the resident patients of the facility at immediate risk of serious injury, harm, impairment or death.”  Id. at 11.

The ALJ held no evidentiary hearing and issued a written decision.  Fr. I ALJ Decision at 1.  The ALJ admitted all proposed exhibits except two of Petitioner’s, made numerous factual findings, and entered summary judgment for CMS.  Id. at 1-2, 5-11, 14.  The ALJ found noncompliance with 42 C.F.R. § 483.25(h) because Petitioner was “on specific notice of a foreseeable risk of harm” from the long-leaking roof yet did not protect residents “from the serious, foreseeable harm” including a “significant” health risk from “extensive mold growth.”  Id. at 17.  The ALJ held Petitioner noncompliant with sections 483.75(d) and 483.75(o)(1) because, despite a “long history of compliance issues stemming from persistent roof leaks,” Petitioner “failed to create and maintain a functioning governing body to assess and assure compliance with the required quality standards.”  Id. at 18.  The ALJ upheld CMS’s immediate jeopardy finding, considering it undisputed that “mold was present within the facility, mold can exacerbate respiratory problems,” residents were not isolated from the mold, and numerous residents’ respiratory conditions placed them “at likely risk of harm if those conditions were exacerbated.”  Id. at 19-20.  The ALJ ruled that the CMP amount for the immediate

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jeopardy period was justified and that Petitioner had not disputed the reasonableness of the non-immediate-jeopardy CMP amount or the duration of either period of noncompliance.  Id. at 3 n.3, 22.

III.    First appeal to the Board

Petitioner appealed to the Board, which upheld summary judgment for CMS as to Petitioner’s noncompliance but remanded for further proceedings regarding immediate jeopardy and the CMP.  DAB No. 2869, at 1-2.  We found it “undisputed that mold was present in areas of the facility from which residents were not securely excluded and such mold, even based on the facility’s own expert testimony and other undisputed evidence, poses a risk of more than minimal harm to those residents with pre-existing respiratory conditions.”  Id. at 1; see also id. at 6-9 (discussing undisputed facts).  However, we held summary judgment regarding immediate jeopardy was inappropriate because Petitioner had “raised genuine disputes of material fact relating to whether the conditions in the facility created a likelihood of serious harm” and Petitioner also had “requested the opportunity to cross-examine all of CMS’s witnesses.”  Id. at 1, 10.  We considered “the credibility and foundation of the competing expert opinions” to be “hotly disputed” and explained that, in “disregarding or discounting the assertions of [Petitioner]’s expert,” the ALJ “necessarily” was assessing the credibility and weight of witness testimony, which “precludes summary judgement.”  Id. at 13.  Yet we cautioned that our conclusion did not imply that Petitioner had shown CMS’s determination “was wrong, much less clearly erroneous,” and the ALJ was free to “reach conclusive findings” after weighing and evaluating the record as a whole.  Id. at 14.  We also held summary judgment inappropriate regarding the CMP amount because evaluating its reasonableness required “consideration of factors that involve disputed facts.”  Id. at 1-2.

IV.    ALJ proceedings on remand

The ALJ held an evidentiary hearing on December 13 and 18, 2018.  Tr. at 1-172.  After the ALJ ruled on evidentiary issues, see ALJ Decision at 9, the hearing consisted solely of the testimony of Dr. Chiodo, as Petitioner chose not to cross-examine any other CMS witness and CMS elected not to cross-examine any of Petitioner’s witnesses.  Notice of Hr’g at 1 (July 23, 2018); ALJ Decision at 8 n.4.  The parties filed post-hearing briefs.  CMS Post-Hr’g Br. (Mar. 27, 2019); P. Post-Hr’g Br. (May 10, 2019).

The ALJ issued his second written decision on September 1, 2020.  Based on detailed factual findings, the ALJ concluded “that CMS did not clearly err when it determined that Petitioner immediately jeopardized the health and safety of its residents.”  ALJ Decision at 3.  The ALJ reduced the CMP for the immediate jeopardy period from $10,000 to $9,000 per day and treated the reasonableness of the CMP for the period of non-immediate-jeopardy noncompliance as undisputed.  Id. at 3, 9 n.5, 61.

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V.    Current Board proceedings

Petitioner again requests Board review, arguing that “CMS’s immediate jeopardy determination was clearly erroneous” and the CMP is “arbitrary and capricious and not supported by the record.”  Request for Review (RR) at 15, 31.  CMS seeks affirmance of the ALJ Decision, asserting that it “was not in error and was based upon substantial evidence.”  CMS. Resp. in Opp’n to Appellant’s RR (CMS Br.) at 1.  In reply, Petitioner reiterates its arguments on the merits and requests oral argument.  P. Reply Br. in (1) Further Support of Req. for Board Review and (2) Req. for Oral Arg. (Reply).

Standard of Review

The standard of review on a disputed factual issue is whether substantial evidence supports the ALJ’s decision, and the standard of review on a disputed legal issue is whether the ALJ’s decision is erroneous.  See Guidelines – Appellate Review of Decisions of Administrative Law Judges Affecting a Provider’s Participation in the Medicare and Medicaid Programs, “Completion of the Review Process,” ¶ (c).  “[W]e uphold an ALJ decision when it is supported by substantial evidence in the record as a whole and free of legal error.”  Cmty. Skilled Nursing Ctr., DAB No. 1987, at 6 (2005).

Analysis

We first deny Petitioner’s request for oral argument, as the parties’ briefs and the administrative record are sufficient to enable the Board to adjudicate this dispute.  See Benbrook Nursing & Rehab. Ctr., DAB No. 3228, at 11 n.11 (2026) (denying oral argument when Board could make sound decision based on parties’ adequately explanatory appeal briefs and the record before the ALJ).  We turn now to the merits.

I.    CMS’s immediate jeopardy determination is not clearly erroneous and the ALJ did not err in upholding it.

“CMS’s determination as to the level of noncompliance of an SNF,” including an immediate jeopardy determination, “must be upheld unless it is clearly erroneous.”  42 C.F.R. § 498.60(c)(2); see also Neighbors Rehab. Ctr., LLC, DAB No. 2859, at 18 (2018) (“In reviewing an immediate jeopardy determination, the ALJ (and the Board) must defer to CMS’s determination absent a showing of clear error.”), aff’d, 910 F.3d 919 (7th Cir. 2018).  This standard “is highly deferential and imposes a heavy burden on the facility to upset CMS’s determination.”  Avalon Place Trinity, DAB No. 2819, at 32 (2017), aff’d per curiam, 761 F. App’x 407 (5th Cir. 2019). 

Petitioner challenges CMS’s immediate jeopardy determination on seven grounds, which we reorder for clarity.  RR at 15-30.  First, Petitioner argues it addressed all roof problems expeditiously.  RR at 17, 27-28.  Second, Petitioner claims there was not

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widespread mold in the facility.  Id. at 17-19; Reply at 4-7.  Third, Petitioner alleges the surveyors were not qualified to evaluate the existence and consequences of mold in the building.  RR at 17, 28-29.  Fourth, Petitioner asserts the mold was properly remediated.  Id. at 17, 28.  Fifth, Petitioner contends there was no meaningful difference between the mold reports in evidence.  Id. at 19-21; Reply at 7-8.  Sixth, Petitioner states there was no risk of harm from the mold and Dr. Laumbach’s testimony on this point was more credible than Dr. Chiodo’s.  RR at 17, 21-27; Reply at 8-16.  Seventh, Petitioner objects that an unlocked supply closet posed no immediate jeopardy.  RR at 30; Reply at 17.

1. Substantial evidence supports the ALJ’s finding that Petitioner did not promptly and effectively repair its chronically leaking roof.

The ALJ made the following factual findings about Petitioner’s roof:

• “Petitioner was aware that the roof of its facility had long-term persistent leaking from 2004 through to 2014” but Petitioner merely “fixed individual leaks after water entered the facility.”  ALJ Decision at 16.6
• “[T]he facility had long-term water intrusion and the facility acted in an ad hoc manner to deal with that chronic problem which, by 2014, would not be resolved in that way.”  Id. at 2.
• “Petitioner’s roof leaks resulted in multiple fines from local government officials, and, based on the facility’s overall condition, one local government building official believed that the facility’s building should have been closed.”  Id. at 16.

Petitioner disagrees with these findings.  Petitioner argues that the ALJ erroneously “relied on past water issues that are not relevant.”  RR at 1.  Petitioner further argues that the ALJ erred in finding that “persistent roof problems were not fixed,” for while the building “had an older roof, over the years it had consistently received whatever repairs were necessary and appropriate in the ordinary course.”  See RR at 4, 17, 27.

Petitioner’s “past water issues” were relevant.  See RR at 1.  Evidence is relevant if it tends to make a consequential fact any more or less probable than it would be without the evidence.  Fed. R. Evid. 401; Columbus Nursing & Rehab. Ctr., DAB No. 2247, at 23 n.10 (2009) (“The Board is not subject to the Federal Rules of Evidence but often looks to them for helpful guidance in considering evidentiary issues.”).  Determining whether immediate jeopardy existed called for the ALJ to determine whether Petitioner’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.  As Dr. Laumbach acknowledged, molds can grow indoors “where water sources such as

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plumbing or leaky roofs provide moisture,” and “[w]hen moisture and mold conditions persist for an extended period of time, risk increases.”  P. Ex. 3, at 1, 13.  Evidence of the length of time that Petitioner had roof leakage is relevant because it tends to make the consequential fact of mold risk more probable than it would be without the evidence.

Contrary to Petitioner’s assertion, substantial evidence shows that Petitioner had, and failed to fix, persistent roof leakage problems for years.  The local Fire Prevention Department issued Notices of Violation and Orders to Correct the leaking roof dating back to 2004.  CMS Ex. 105, Part 1, at 1-3 (July 2004 Notice of Violations ordering that “[a]ll roof leaks must be repaired”), 13-15 (December 2005 Notice of Violations ordering that “[r]oof leaks must be repaired”); CMS Ex. 105, Part 3, at 7-9 (April 2007 Notice of Violations ordering that “[r]oof leaks must be repaired”); CMS Ex. 105, Part 4, at 1-3 (January 2008 Notice of Violations ordering that “[r]oof leaks must be repaired”); CMS Ex. 110, at 1 (testimony of township Director of Fire Prevention authenticating violation notices and correction orders).  The prior survey in 2011 cited Petitioner for water damage and roof leaks.  CMS Ex. 102, at 1-8; CMS Ex. 103, at 1-2.  In 2013, Petitioner updated the State Agency about “the status of several rooms” that had “sustained some leaks in a major rainstorm” and caused the transfer of affected patients to other rooms.  CMS Ex. 67.  Petitioner’s Administrator testified that in early 2014 “there was a significant roof leak” that “caused significant damage to Shower Room #1.”  P. Ex. 59, at 2.  Petitioner’s corporate Director of Maintenance conceded that the facility’s roof was “continuously being repaired due to leaks.”  P. Ex. 62, at 1.  Witness V.L., the Construction Official responsible for construction permits in Petitioner’s vicinity, testified that Petitioner “has been repairing its roof since September of 1992, when it applied for a permit to perform reroofing work,” but Petitioner has failed to rectify known “unsafe conditions at the facility for over a decade.”  CMS Ex. 111, at 1, 3 (emphasis added); see ALJ Decision at 21.

Thus, the ALJ did not err in finding that for years Petitioner had a leaking roof, knew it, but failed to resolve this problem that contributed to the mold risk and thus the immediate jeopardy condition.  ALJ Decision at 1-2, 16-21.

2. Substantial evidence supports the ALJ’s finding that Petitioner’s chronically leaking and ineffectively repaired roof led to widespread mold in the facility.

The ALJ made the following findings connecting Petitioner’s chronically leaking and ineffectively repaired roof to the widespread presence of mold in the facility:

• “Mold is a fungi that reproduces through producing spores that may become airborne.  Mold needs oxygen, moisture, and an appropriate surface on which to live.”  ALJ Decision at 15.

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• “Due to water intrusion, the first floor of the facility became a damp environment, resulting in visible black substances staining ceiling tiles and walls, and appearing behind wall paper.”  Id. at 1.
• “Petitioner’s facility had visible black substances in various rooms in the facility,” and “[i]n late October and early November 2014 state agency surveyors made observations and took pictures of a variety of places in the facility that visibly appeared to have mold.”  Id. at 21.

Petitioner argues that the ALJ erroneously found the facility was “overrun by mold,” which “was simply not the case.”  RR at 17; see also Reply at 4-7.  Petitioner denies it had “ongoing water issues resulting in mold.”  Reply at 6.

Contrary to Petitioner’s arguments, substantial evidence shows that water infiltration from Petitioner’s recurring and unresolved roof leaks created a moist environment in the building where mold could and did flourish.  ALJ Decision at 15-16, 21-23.  “Moisture control,” according to the Environmental Protection Agency (EPA), “is the key to mold control,” and moisture problems resulting from leaking roofs can facilitate mold growth.  CMS Ex. 63 (EPA Mold Course, Chapter 1), at 1, 4 (emphasis omitted); see ALJ Decision at 15-16.  Dr. Laumbach co-authored a clinical study recognizing that “[w]ith an appropriate substrate and moisture, mold will proliferate indoors.”  CMS Ex. 71, at 1.

Substantial evidence confirms the appearance of mold in numerous rooms – both unoccupied and occupied – in Petitioner’s facility by the time of the 2014 survey.  AdvantaClean, a mold remediation company, told surveyors on October 30, 2014 that “it was obvious that mold was visible” in the only three rooms (Room 21, Room 138, and Shower Room 1) that Petitioner had shown them.  ALJ Decision at 12; CMS Ex. 1, at 24-25; CMS Ex. 88, at 8.  When surveyors toured the facility with AdvantaClean representatives and “a facility maintenance employee,” they observed a “mold substance in the heating vents” and air conditioning unit, and “a black mold-like stain” in the bathroom of an “occupied room” (Room 120) where “[t]wo residents were living.”  CMS Ex. 1, at 25-27; see also ALJ Decision at 12, 22.  AdvantaClean also found mold growth in Room 122, which also was occupied.  CMS Ex. 88, at 9; ALJ Decision at 22.  Both parties’ evidence shows that the rooms in question – Rooms 21, 120, 122, and 138 – were not concentrated in one area but instead were at distant corners of the building.  P. Ex. 8, at 1; CMS Ex. 9, at 1.  AdvantaClean also “found growth” on the ceiling and base coves of the second floor, which Petitioner kept vacant of residents but still used to store bed equipment, paper goods, and food used elsewhere in the facility.  CMS Ex. 1, at 25-26.

Photographic evidence supports the surveyors’ observations of widespread water damage and mold-like substances.  Surveyor M.C., a Supervising Healthcare Evaluator, took pictures during the survey that show stained ceiling tiles and brown and black substances on walls in various locations in the facility.  CMS Ex. 74, at 2, 4-7, 15, 17-21, 23; CMS

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Ex. 75, at 2-7, 9; CMS Ex. 88, at 1-2.  Surveyor J.I., a Physical Plant and Life Safety Code Surveyor, photographed black substances in Room 22, Room 111, Room 120’s bathroom, and Shower Room 1.  CMS Ex. 13 at 1, 2-7; CMS Ex. 92, at 1, 6-8.  The surveyors who took these photographs testified to their authenticity.  CMS Ex. 88, at 2; CMS Ex. 92, at 3.  Petitioner chose not to cross-examine these witnesses or any other surveyors, even though the Board remanded largely to allow Petitioner “to test those witnesses in cross-examination,” DAB No. 2869, at 11.

3. Petitioner establishes no error in the ALJ’s assessment of the surveyors’ qualifications and credibility.

The ALJ credited the surveyors’ testimony “about the wet and leaky conditions at the facility” and “the presence of visible stains and black substances in various rooms throughout” it.  ALJ Decision at 20, 22.  The ALJ found the surveyors’ testimony to be detailed, consistent with their notes and photographs, and unchallenged by cross-examination.  Id.

Petitioner argues that “[t]he ALJ’s reliance on the surveyors is misplaced” because “[n]one” of them “had the qualifications, knowledge, or experience to assess and properly evaluate the existence or the consequences of any mold” at the facility.  RR at 28.  Petitioner complains “the survey team ignored Dr. Laumbach’s thorough and reasoned analysis.”  Id. at 7, 29.  Petitioner points to Dr. Laumbach’s assessment that “[t]here were limited areas of mold growth (less than 100 square feet in total) in the 70,000 square-foot facility with wall-surface-area estimated to be greater than 200,000 [square feet].”  P. Ex. 3, at 7; see RR at 19.  Petitioner argues that “CMS tacitly agreed that there was no risk to patients, as it rescinded its order to transfer the patients to another facility.”  RR at 29.

The ALJ did not err in rejecting Petitioner’s assertion that Dr. Laumbach “was the only person in a position to assess the mold contamination at the facility” and Petitioner’s “discount[ing of] the observations of the state agency surveyors.”  See ALJ Decision at 59.  Surveyor J.I. had nine years of experience as a surveyor, he received professional Mold Awareness training in 2013, and the record includes relevant materials he received during that training.  CMS Ex. 92, at 2; CMS Exs. 69, 70; see also ALJ Decision at 59.  The testimony of experienced surveyors is not necessarily of less weight than testimony from a facility’s expert witness.  See Coquina Ctr., DAB No. 1860, at 15-16 n.11 (2002) (“[T]he mere fact that [two witnesses] qualified as experts does not mean that their testimony is entitled to more weight than that of experienced surveyors.”).  Moreover, the surveyors gave testimony under oath, Dr. Laumbach did not, and that was a valid consideration in the ALJ’s weighing of the evidence.  ALJ Decision at 23; see also Sanctuary at Whispering Meadows, DAB No. 1925, at 28-29 (2004) (“[T]he ALJ offered a reasoned basis for adopting the conclusions of the surveyor over those of the treating physician” by observing “that the surveyor testified under oath” whereas “the doctor did

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not appear” and his letter was “not given under oath.”), aff’d, 151 F. App’x. 386 (6th Cir. 2005).  Petitioner suggests the ALJ’s assessment “highlights bias in this case,” as Dr. Chiodo’s written opinion also was not signed under oath.  Reply at 11.  However, Dr. Chiodo testified under oath at the evidentiary hearing.  Tr. at 13.  To the extent the ALJ was “unimpressed” with Dr. Laumbach’s opinion, mere disagreement with the ALJ’s assessment of the evidence “does not substantiate a claim of unfairness.”  See Century Care of Crystal Coast, DAB No. 2076, at 28 (2007), aff’d per curiam, 281 F. App’x 180 (4th Cir. 2008).

Petitioner’s suggestion that immediate jeopardy cannot exist unless surveyors direct the removal of all residents from the facility involves “fallacious reasoning,” as the ALJ correctly concluded.  ALJ Decision at 63.  To order such a transfer of residents, CMS must find that an “emergency” exists.  42 C.F.R. § 488.426(a).  A facility’s deficiencies can pose immediate jeopardy even when they do not present such a “crisis situation.”  Miss. Care Ctr. of Greenville, DAB No. 2450, at 16 (2012), aff’d per curiam, 517 F. App’x 209 (5th Cir. 2013).

Petitioner’s minimization of the mold contamination by comparing the square footage of visible mold growth to the facility’s estimated total “wall-surface-area” is not persuasive.  See P. Ex. 3, at 7; RR at 19.  The ALJ found that mold can grow “on hidden surfaces, like the backside of drywall, wallpaper, and paneling,” and substantial evidence supports that finding.  See ALJ Decision at 16.  An EPA publication advises that mold “can grow in dark areas and on hidden surfaces, such as the backside of drywall, wallpaper, and paneling; the top side of ceiling tiles,” and even “in ventilation ducts, and on roof materials above ceiling tiles,” and such hidden areas need “[s]pecial attention.”  CMS Ex. 63, at 7, 18.  Dr. Chiodo testified to the problem of “mold that is growing behind the walls,” such that “if you have visible mold contamination” then “you can’t say that the mold contamination is limited just to what you visibly see.”  Tr. at 145-46.  An AdvantaClean representative told the survey team that in addition to visible mold growth on Petitioner’s second floor “there was likely mold behind the baseboard and mold growth above the ceiling tiles” as well, and Room 120 had an observable “mold substance in the heating vents” and air conditioning unit.  CMS Ex. 1, at 25-26.  Petitioner’s own evidence confirms that mold exists beyond wall surfaces.  “Molds reproduce by forming additional spores that can become airborne.”  P. Ex. 3, at 1.  “Mold growth in heating, ventilation, and air-conditioning (HVAC) systems can pose building-wide problems.”  P. Ex. 55, at 13.  Molds can “grow on wood, paper, carpet, foods and insulation” and “feast on the everyday dust and dirt that gather in the moist regions of a building.”  P. Ex. 58, at 2.

The Board has rejected arguments, similar to Petitioner’s here, that an ALJ gave undue weight to surveyor testimony rather than the opinion of a facility’s expert witness.  See, e.g., Blossom S. Nursing & Rehab. Ctr., DAB No. 2578, at 18-19 (2014).  “In general, the Board defers to ALJ findings on the weight and credibility of witness testimony absent a

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compelling reason to do otherwise,” and in this case, as previously, we have found “no compelling reason not to defer to the ALJ.”  Id. at 19.

4. Substantial evidence supports the ALJ’s finding that Petitioner did not effectively remediate the mold.

The ALJ found Petitioner’s efforts to remediate the facility’s mold were deficient and its “ad hoc” approach that ultimately created immediate jeopardy included failing to “investigate visible black substances that appeared in various rooms of the facility or have professionals remediate those signs of potential mold.”  ALJ Decision at 2.  The ALJ found that Petitioner did not obtain mold testing “until surveyors requested” that step.  Id. at 21; see also id. at 1 (“Facility management did not seek to test whether these stains were mold. . . .”).  The ALJ also found that “Petitioner’s staff attempted to remove damage caused by the black substance without sealing the rooms off first.”  Id. at 21.  For example, Shower Room 1 “was not sealed off from the rest of the facility except by the closed door,” and Room 138, which had exposed pipes and a black substance in its heating unit, was unsealed and easily accessible to residents.  Id. at 11.  The ALJ found that even Dr. Laumbach, after visiting the building on October 31 and November 1 of 2014, “indicated a need for Petitioner to do much more to contain the possibility of mold spreading by properly sealing off Shower Room 1.”  Id. at 23 (citing P. Ex. 1, at 1-2).

Petitioner claims the ALJ erred in finding that “the mold was not remediated safely.”  RR at 17.  Petitioner maintains that it “appropriately remediated the limited areas where mold was identified in line with current standards and in accordance with the directions given by Dr. Laumbach as referenced in his report.”  RR at 28.

Substantial evidence supports the ALJ’s findings regarding the lack of remediation.  A National Academy of Sciences publication states that mold elimination methods should “not only limit the possibility of recurrence but also limit exposure of occupants and persons conducting the remediation,” such as by containment “through the erection of barriers.”  ALJ Decision at 51 (quoting P. Ex. 21, at 13-14) (emphasis omitted).  Yet surveyor J.I. observed that several first-floor areas – Rooms 21, 22, 111, and 138, as well as Shower Room 1 – that were nominally closed for remediation contained exposed “black substance,” and at least two of those rooms (22 and 138) were not locked or sealed.7  CMS Ex. 92, at 1-2, 5-8, 10.  In occupied Room 120, J.I. observed that one wall was missing a section approximately 10 inches by 10 inches and had “a black substance adhered to the existing wall board” around the gap.  CMS Ex. 92, at 7.  Photographs corroborate J.I.’s description.  CMS Ex. 13, at 3-4.  When he asked Petitioner’s Administrator and Maintenance Director if the facility had even “tested the black

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substance that was seen adhered to wall board and ceiling tiles in various locations throughout the facility,” they responded, “No.”  CMS Ex. 1, at 21-22; CMS Ex. 92, at 8-9.  J.I. told them that testing would “properly identify” the substance “so that the appropriate interventions could be made.”  CMS Ex. 1, at 22; CMS Ex. 92, at 9.

Petitioner fails to rebut this evidence.  The testimony of the Administrator and Maintenance Director does not contradict J.I.’s account of their conversation about testing and remediation.  See P. Ex. 59, at 3; P. Ex. 62, at 3.  Dr. Laumbach’s initial report confirmed “some conditions of varying degrees of concern related to growth of indoor mold” in the building on October 31 and November 1 of 2014 and recommended remediation steps that had not yet occurred.  P. Ex. 1, at 1-3.  For example, Shower Room 1 needed “a double sheeting of polyethylene over the drop ceiling” to “eliminate a pathway by which mold spores could possibly enter other areas of the building from this room.”  Id. at 2.  Rooms 110, 111, 114, 119, 120, 122, 129, and 138 needed further remediation following EPA guidelines.  Id.  Dr. Laumbach first reported “successful remediation” by Petitioner after revisiting the facility on November 24, 2014 – the same date that CMS determined was the end of the immediate jeopardy period.  P. Ex. 2, at 2-4; CMS Ex. 3, at 1.

Thus, the ALJ did not err in finding that Petitioner did not effectively remediate the mold.  ALJ Decision at 1-2, 16-21.

5. Substantial evidence supports the ALJ’s finding that laboratory reports showed mold contamination in the facility.

The ALJ made the following findings regarding laboratory testing of samples from Petitioner’s facility:

• “Two separate mold remediation companies,” AdvantaClean and Above & Beyond Unlimited Cleaning Company (Above & Beyond), “took samples from the facility for analysis and two separate laboratories,” Pro-Lab and Hayes Microbial Consulting (Hayes), “analyzed those samples.”  ALJ Decision at 24.
• “The samples taken by AdvantaClean and analyzed by Pro-Lab showed significantly greater amounts of mold spores and more mold-types that are associated with asthma allergies than the mold testing by Above [&] Beyond” that was “analyzed by Hayes.”  Id.
• Pro-Lab’s “analysis of samples taken at [an] earlier date and after both parties had an opportunity to tour the facility with the representatives of AdvantaClean provides the fairest and best evidence of the true situation involving the mold at the facility at the start of the survey.”  Id. at 28.

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Petitioner claims error in the ALJ’s interpretation of the laboratory reports.  Petitioner asserts that “an ALJ is not qualified to review and analyze a mold testing report,” RR at 27, and the ALJ “improperly misinterpreted the results of the mold testing reports without expert support,” id. at 1.  Petitioner objects that, “[c]ontrary to the ALJ’s Decision,” neither expert witness “even addressed the difference between the two reports.”  Id. at 5. 

Evidence from both parties shows that lab testing of samples from Petitioner’s facility on October 30, 2014, confirmed mold within the building, including in Rooms 115, 120, 122, 138 and Shower Room 1.  ALJ Decision at 24-27.  AdvantaClean took air quality and surface samples on October 30, 2014, and Pro-Lab reported the mold analysis results on November 3, 2014.  CMS Ex. 88, at 8, 10; CMS Ex. 109.8  Meanwhile, Petitioner’s Administrator concluded that the survey team “had coopted” AdvantaClean, so she “decided to contact another mold testing company in order to get a second opinion regarding the mold.”  P. Ex at 59, at 5.  Consequently, Above & Beyond took samples on October 31, 2014, and Hayes reported the mold analysis results on November 1, 2014.  P. Ex. 14, at 1-2.9  Hayes issued a second report on November 21, 2014, on samples that Above & Beyond collected on November 20, 2014.  P. Ex. 26.

All laboratory reports in evidence show at least some mold contamination in the facility.  Both labs agreed that Chaetomium, Memnoniella, and Stachybotrys organisms are indicators of water damage.  CMS Ex. 109, at 2; P. Ex. 14, at 3-4, 8-9.  The labs (either separately or jointly) verified non-standard levels of those molds in:

• Room 120.  Pro-Lab reported that a tape sample from Room 120’s heating vent grill showed the presence of Chaetomium and an “UNUSUAL” result, meaning “[a]n abundance of spores.”  CMS Ex. 109, at 3.  The November 1, 2014 Hayes analysis did not consider a swab from the vent, but estimated “[l]ight” Chaetomium and Stachybotrys levels in a swab sample of sheetrock.  P. Ex. 14, at 5.  The November 21, 2014 Hayes analysis detected “[s]lightly” elevated levels of Chaetomium in an air sample.  P. Ex. 26, at 3.
• Room 122.  Pro-Lab’s analysis of air samples from Room 122’s bathroom showed Chaetomium, Memnoniella, and Stachybotrys present at “ELEVATED” levels, meaning “higher than expected” spore amounts and/or diversity, which “can indicate that fungi have grown because of a water leak or water intrusion.”  CMS Ex. 109, at 2.  Comparison with a control sample of outside air showed much higher numbers of spores per cubic meter for all three organisms inside the room:  for Chaetomium, 3,300 inside versus 18 outside; for Memnoniella, 4,500 inside versus 0 outside; and for Stachybotrys 1,900 inside versus 0 outside.  Id. at 2, 5.  A

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tape sample from Room 122’s bathroom showed “UNUSUAL” results, meaning “[a]n abundance of spores,” including Chaetomium and Memnoniella.  Id. at 3.  The November 1, 2014 Hayes analysis found that comparison with outside air showed “[s]lightly” higher levels of Memnoniella and Stachybotrys, a “[s]ignificantly” higher Chaetomium level (which “probably indicates a source of contamination”), and a “[r]atio [a]bnormality” for Chaetomium (which “may indicate the presence of abnormal levels of mold”).  P. Ex. 14, at 3, 6.  Sheetrock swabs indicated “Heavy” Chaetomium and Stachybotrys concentrations.  Id. at 5.

• Room 138.  Pro-Lab reported “UNUSUAL” tape sample results for Memnoniella and Stachybotrys.  CMS Ex. 109, at 4.  The November 1, 2014 Hayes analysis estimated “[l]ight” Chaetomium spore levels in a swab sample.  P. Ex. 14, at 5.
• Hallway(s).  The November 1, 2014 Hayes analysis found that an air sample from the facility’s “[r]ear [h]allway” had a “[s]lightly” elevated level of Memnoniella and a ratio abnormality possibly indicating “abnormal levels of mold.”  Id. at 3, 6.  The later November 21, 2014 Hayes analysis of an air sample from an unspecified hallway showed “[s]lightly” elevated Chaetomium levels.  P. Ex. 26, at 4.
• Shower Room 1/Common Bathroom.  Pro-Lab found mold levels were “ELEVATED” in the air sample and “UNUSUAL” in the tape sample, and Chaetomium, Memnoniella, and Stachybotrys were present in both sample types.  CMS Ex. 109, at 2-3.  Comparison with a control sample of outside air showed more spores per cubic meter for all three organisms inside the room:  for Chaetomium, 110 inside versus 18 outside; for Memnoniella, 820 inside versus 0 outside; and for Stachybotrys, 500 inside versus 0 outside.  Id. at 2, 7.  The November 1, 2014 Hayes analysis found Stachybotrys at “[s]lightly” higher levels than in outside air, and Memnoniella at “[s]ignificantly” higher levels with a ratio abnormality as well.   P. Ex. 14, at 3.  A swab sample indicated a “Very Heavy” Memnoniella spore count and the mycelial estimate indicated “[p]robable active growth at site.”  Id. at 5, 7.  Hayes’s November 21, 2014 report showed Chaetomium at a “[s]ignificantly” elevated level, with a ratio abnormality as well.  P. Ex. 26, at 4.

Both laboratories discussed the significance of these results, and both parties recognize considerable overlap between the lab reports.  Pro-Lab explained that generally “indoor fungal concentrations should be similar to or lower than outdoor levels,” and “[h]igh levels of mold only found inside buildings often suggest indoor amplification of the fungi.”  CMS Ex. 109, at 12.  Hayes concurred that generally “the numbers and types of spores that are present in the indoor environment should not exceed those that are present outdoors at any given time.”  P. Ex. 14, at 6.  Pro-Lab stated “the detection of water-indicating fungi, even at low levels, may require further evaluation.”  CMS Ex. 109, at 12.  Hayes concurred that molds that are “Water Damage Indicators” are “commonly

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seen in conditions of prolonged water intrusion and usually indicate a problem.”  P. Ex. 14, at 6.  Petitioner states that both labs’ reports “produced results that were remarkably similar,” they “are largely the same from a scientific standpoint,” and they contain no meaningful difference.”  RR at 19, 27; Reply at 8.  CMS notes that “both reports showed mold in amounts in excess of the outside air, and of types that were associated with adverse health effects.”  CMS Br. at 11 n.2.

To the extent the Pro-Lab and Hayes reports differ, the ALJ’s decision to give precedence to Pro-Lab’s report was permissible and rationally supported.  ALJ Decision at 28-29.  The ALJ reasoned that Pro-Lab’s analysis of the AdvantaClean samples merited “greater weight than the Hayes analysis” of the Above & Beyond samples for two primary reasons.  Id.  First, AdvantaClean’s samples “were taken earlier in time,” at the start of the survey, and thus more accurately represent conditions in the facility when the surveyors arrived and began their assessment.  Id.  Second, “both parties had the opportunity to show the AdvantaClean representatives places of concern in the facility,” whereas “there is no evidence that the surveyors were permitted to meet with [Above & Beyond] representatives to ensure that those representatives were permitted to tour the entire facility.”  Id.  “Absent a compelling reason to do otherwise, the Board defers to an administrative law judge’s finding about the proper weight to assign evidence.”  BGI Ret., LLC, DAB No. 2620, at 13 (2015).  Petitioner has shown no compelling reason not to defer to the ALJ’s weighing of the laboratory evidence.

We reject Petitioner’s suggestion that when considering these reports the ALJ usurped the role of the parties’ medical experts, “inappropriately stepped outside the role of arbiter,” and “acted as an advocate” for CMS.  See RR at 27.  We also reject Petitioner’s related claim that the ALJ was “not qualified to review and analyze a mold testing report.”  Reply at 7.  The ALJ’s weighing of the laboratory evidence was not only appropriate, but necessary to deciding this case.  The Board ruled that on remand the ALJ was free to “weigh conflicting evidence” and “reach conclusive findings as to the actual conditions” in the facility, including the “extent” and “types of mold present.”  DAB No 2869, at 14.  As to those issues, the lab reports were highly relevant evidence.  Furthermore, the ALJ acknowledged that the “number and location of mold spores as determined by a mold testing is only one aspect of determining the potential health dangers posed by a structure contaminated with mold,” so “the parties’ expert testimony is extremely important to the outcome in this case.”  ALJ Decision at 29, 32.  We now discuss that expert testimony.

6. Substantial evidence supports the ALJ’s finding that the facility’s mold was likely to cause serious injury, harm, impairment, or death to one or more residents, and the ALJ permissibly found CMS’s expert witness evidence on this issue more credible and persuasive than Petitioner’s.

The ALJ made the following findings that are relevant to the likelihood of serious injury, harm, impairment, or death to one or more of Petitioner’s residents:

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• “As of October 28, 2014, the facility had 79 residents.  At least 25 of the residents suffered from compromised respiratory systems, 13 of whom were diagnosed with asthma.  Further, each of these individuals suffered from other significant comorbid conditions.”  ALJ Decision at 13.
• “Petitioner did not lock the doors to the rooms with the greatest amount of visible mold contamination,” and several “cognitively impaired residents” with “compromised respiratory systems” could have accessed those rooms.  Id. at 23.
• “[R]emediation efforts were started without fully sealing off those rooms to ensure mold spores would not spread throughout the facility,” and as of October 30, 2014, during the survey, work areas still “were not sealed off in any way.”  Id. at 1, 12.

The ALJ further found that, when determining the potential health dangers from a mold-contaminated structure, expert assessment of “all relevant factors” was necessary.  Id. at 29.  Accordingly, the ALJ made these findings about the expert opinion evidence:

• “Petitioner’s Expert Witness, Dr. Robert Laumbach, stated in his written reports that the mold in Petitioner’s facility did not pose an imminent risk to the residents, but acknowledged that frail elderly persons may be more vulnerable to serious allergy or asthma exacerbations.”  Id. at 32.
• “CMS’s Expert Witness, Dr. Ernest Chiodo, stated in his report and testified on cross-examination that Petitioner’s facility had extensive mold contamination and that it posed a likely risk to health and safety to elderly residents with compromised respiratory systems due to the potential for respiratory distress based on allergic reaction and asthma exacerbation.  Dr. Chiodo opined that no residents should be inhabiting the facility.”  Id. at 36.
• “Based on the record as a whole,” the ALJ gave “greater weight to Dr. Chiodo’s assessment as to the risk posed to health and safety of the residents at the facility” and gave “less weight to Dr. Laumbach’s views.”  Id. at 42.

1. Substantial evidence supports the ALJ’s finding that the mold in the facility was likely to cause serious injury, harm, impairment, or death to a resident.

Petitioner states that “it could be argued that harm was possible,” but “CMS did not establish that harm was likely,” as the legal standard for immediate jeopardy requires.  Reply at 3.  Petitioner claims residents faced no risk of harm from the mold.  RR at 21.  “As confirmed by Dr. Laumbach,” Petitioner contends, “there is no basis for CMS to suggest that patients were harmed or that serious harm was likely under the facts of this case.”  Id. (emphasis omitted).

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Substantial evidence from both parties supports the ALJ’s finding that exposure to the mold types found in the building is associated with asthma.  ALJ Decision at 24-25.  “Mold and fungi contain many known allergens and toxins that can adversely affect [one’s] health,” Pro-Lab reported, and “health effects and symptoms associated with mold exposures include allergic reactions, asthma, and other respiratory problems.”  CMS Ex. 109, at 11, 14.  Pro-Lab stated that Chaetomium and Stachybotrys have “[a]llergic potential” for “hay fever and asthma” allergies, and Memnoniella “[p]robably” has the same potential.10  Id. at 8, 10.  Hayes acknowledged that “all molds are potential allergens,” and Chaetomium “is reported to be allergenic.”  P. Ex. 14, at 6, 8; P. Ex. 26, at 5, 6.

Substantial evidence also supports the ALJ’s finding that Petitioner’s resident population included medically compromised individuals whose conditions rendered them especially vulnerable to serious harm from mold exposure.  See ALJ Decision at 13-15.  Petitioner’s medical director testified that “some residents” at the facility “have respiratory issues including asthma, COPD, pleural effusion, etc.”  P. Ex. 63, at 1.  During the 2014 survey, Petitioner listed 18 of its 79 residents (over 22%) as being on oxygen with a respiratory diagnosis (including asthma, COPD, and respiratory failure).  CMS Ex. 18, at 1; CMS Ex. 79, at 1.  Medical records show that other, unlisted residents also had respiratory diagnoses.  See, e.g., CMS Ex. 79, at 4-5 (COPD), 11 (pleural effusion); 36 (asthma).  Petitioner discharged two residents, each with a pneumonia diagnosis, to the hospital on November 2 and 6 of 2014 – during the immediate jeopardy period – and documented that one of those residents had “extreme” shortness of breath and “pleural effusion.”  ALJ Decision at 14; CMS Ex. 22, at 14-15; CMS Ex. 32, at 5.

Substantial evidence further shows that members of Petitioner’s resident population, including particularly vulnerable persons, actually or likely had exposure to mold within the building.  Dr. Laumbach observed “some staining” in the bathrooms of Rooms 110, 119, and 129 and recommended “appropriate remediation” once “occupants are temporarily relocated.”  P. Ex. 1, at 2.  Resident F.B., assigned to Room 110, had asthma and dementia; resident S.B., assigned to Room 119, had pneumonia and dementia

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diagnoses; resident A.H., assigned to Room 129, had a pneumonia diagnosis.  CMS Ex. 81, at 11, 16, 20-21, 34.  Rooms 120 and 122 were occupied during the 2014 survey and had visible mold.  P. Ex. 8, at 1 (showing both rooms as occupied); ALJ Decision at 22, 28 (citing CMS Exs. 88, 90, 91).  Resident R.K., who had dementia and pneumonia diagnoses, was assigned to Room 123, next door to contaminated Room 122.  CMS Ex. 81, at 45; P. Ex. 8, at 1.  Several independently mobile but cognitively impaired residents had the ability to enter unoccupied, “unsecured rooms” – including the “closed, but not locked” shower room, which had a “heavy, musty odor,” visible water damage, and a “black substance” on the wall frame.  CMS Ex. 90, at 5-6.

We reject Petitioner’s argument that no evidence shows any specific resident with a diagnosed mold allergy had actual mold exposure in the facility.  See RR at 26 (asserting “the very small chance that a resident had the requisite mold allergy and was exposed to mold”) (emphasis modified); P. Ex. 3, at 8 (Dr. Laumbach’s opinion that “[t]here is no evidence that any patients at [the facility] were allergic to the molds found i[n] limited areas of contamination” there).  As the ALJ stated, “this argument misses the point,” as Petitioner could not show lack of likely harm by “[s]imply remaining ignorant as to whether any of the asthmatic residents were sensitized to mold.”  ALJ Decision at 59-60.  The Board has long made clear that “CMS does not need to offer evidence to support its determination that the noncompliance constitutes immediate jeopardy; rather, the burden is on the facility to show that that determination is clearly erroneous.”  Universal Health Care – King, DAB No. 2383, at 16 (2011), aff’d, 499 F. App’x 299 (4th Cir. 2012); see also Liberty Commons Nursing & Rehab Ctr. – Johnston, DAB No. 2031, at 18 (2006) (holding argument “that CMS has the burden of proof on the issue of immediate jeopardy” is not “legally supportable”), aff’d per curiam, 241 F. App’x 76 (4th Cir. 2007).  Petitioner did not make the necessary showing of clear error by CMS.

2. The ALJ permissibly found CMS’s expert opinion evidence more credible and persuasive than Petitioner’s expert opinion evidence.

The ALJ gave Dr. Chiodo’s risk assessment more weight than Dr. Laumbach’s for three principal reasons.  ALJ Decision at 42-43.  First, the ALJ determined, “Dr. Laumbach’s reports and opinion are flawed because they fail to discuss or mention the Pro-Lab analysis of the October 30, 2014 samples taken by AdvantaClean,” whereas “Dr. Chiodo expressly stated that he reviewed both mold analysis reports.”  Id. at 42-43.  Second, “Dr. Laumbach said little of the medically vulnerable population of the facility,” whereas Dr. Chiodo “took into account that the facility housed many infirmed elderly residents with compromised respiratory systems and gave a risk assessment directed at the population residing in the facility.”  Id. at 43.  Third, “Dr. Laumbach gave a contradictory opinion as to the health risk of mold in 2013 as well [as] in a paper he co-authored based on a study he conducted.”  Id.

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Petitioner disputes the ALJ’s assessment of the expert witness evidence.  RR at 12-14; Reply at 12-17.  Petitioner argues that “Dr. Laumbach issued a well-reasoned opinion that the mold was isolated and, therefore, presented no risk of harm.”  RR at 22.  “By contrast,” Petitioner asserts, Dr. Chiodo “was not credible” for several reasons.  Id. at 2, 23-25.  Petitioner portrays him as a “jack of all trades and master of none.”  Id. at 12, 23. Petitioner claims Dr. Chiodo “abandoned most of his opinions on cross-examination,” he “admitted that he did not read the citations in his report,” and he “could not recall what formed the basis of his opinion about the mold” at the facility or “quantify the extent of mold” there.  Id. at 2.  Petitioner also complains that the ALJ “did not consider the fact that CMS’s expert never toured the Facility.”  Id. at 1.

The ALJ accurately observed that Dr. Laumbach’s reports cited and discussed only “the Hayes analysis,” not “the Pro-Lab analysis,” whereas Dr. Chiodo considered both, and the ALJ did not err in finding significance in that contrast.  ALJ Decision at 36, 38.  The ALJ found Dr. Laumbach’s silence about the Pro-Lab analysis significant because it was a “failure to review, consider, and discuss the prime evidence of contamination in this case.”  Id. at 45.  Petitioner argues that Dr. Laumbach did not discuss the Pro-Lab report because it did not yet exist when he prepared his first written opinion and there was “no reason” to “go back and address” it later because it was “immaterial” in any event.  RR at 21.  However, the Pro-Lab report plainly was material; both parties submitted it and the ALJ admitted it into evidence without objection.  An expert’s “narrowness of . . . focus” on certain relevant facts without addressing others can support an adverse credibility determination and provide “a well-reasoned basis” for finding that expert testimony unpersuasive.  See Universal Health at 21-22.

The ALJ also reasonably gave weight to Dr. Chiodo’s more particular consideration of the medical vulnerabilities of Petitioner’s residents.  ALJ Decision at 43.  Petitioner argues that Dr. Laumbach “took into account the nature of the patient population at” the facility, RR at 22; yet Dr. Laumbach considered the risk to Petitioner’s residents far less particularly than Dr. Chiodo did.  Dr. Laumbach inferred an equivalent incidence of asthma “among US adults” generally and among nursing home patients.  ALJ Decision at 46 (quoting P. Ex. 3, at 12).  He admitted in general terms that exposure to airborne mold spores “is an established cause of acute respiratory conditions,” but he did not account for “the degree to which each nursing home (including Petitioner’s) has extremely frail and infirm[] residents.”  Id. at 50 (quoting P. Ex. 3, at 12).  By contrast, the ALJ found, Dr. Chiodo applied his expertise to the particular “elderly population of the facility, which included asthmatics and others with significant respiratory ailments, to conclude that the population actually living permanently at Petitioner’s facility was placed in likely risk of serious harm.”  Id. at 46.  We see no error in the ALJ’s assessment that “only Dr. Chiodo truly took into account the age and compromised respiratory conditions” of Petitioner’s individual residents and he had the “more balanced and nuanced opinion concerning the mold at the facility and its likely health effect on th[at] elderly population.”  Id. at 54.

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We also perceive no error in the ALJ’s assessment that Dr. Laumbach’s stated opinions in this case are inconsistent with some of his previous professional statements.  ALJ Decision at 43-44 (discussing CMS Exs. 71 and 99).  In 2013, Dr. Laumbach opined “to a reasonable degree of medical certainty” that three individuals’ “persistent and repeated respiratory symptoms,” including “shortness of breath” and “cough,” were caused (“and/or exacerbated,” in one case) “by exposure to mold and damp conditions in the[ir] residence” for several years.  Id.; see also CMS Ex. 99, at 6, 12, 17.  A study that Dr. Laumbach co-conducted, using data from 40 mold-exposed clinical patients, found that 97.5% of them “reported either upper or lower respiratory complaints” and further “found a statistically significant relationship between interventions to decrease mold exposure and improvement in overall health assessment, respiratory, and non-specific symptoms.”  CMS Ex. 71, at 2-3, 7; see ALJ Decision at 44.  Petitioner shows no error in the ALJ’s discussion of how other “medical and scientific sources in the record” – including publications by the EPA, World Health Organization, Centers for Disease Control and Prevention, and Federal Emergency Management Administration – tended to support Dr. Chiodo’s opinion in this case rather than Dr. Laumbach’s.  ALJ Decision at 46-54 (discussing CMS Exs. 55, 56, 58-60, 61, 63, 64, 69, and P. Exs. 16, 31).

We find no merit in Petitioner’s criticism of Dr. Chiodo’s qualifications.  The ALJ did not err in finding that while Dr. Laumbach had “significant qualifications” to render a professional opinion, Dr. Chiodo was “highly qualified” as well; both witnesses were medical doctors and Certified Industrial Hygienists.  ALJ Decision at 32, 36.  The ALJ itemized Dr. Chiodo’s further credentials as including three Masters degrees, three medical board certifications, a Michigan residential builder license, and former service as the Medical Director for the City of Detroit.  Id. at 36.  The ALJ accurately described Dr. Chiodo’s relevant knowledge and experience as “formidable.”  Id. at 46.

Petitioner’s claims of deficiencies in Dr. Chiodo’s testimony under cross-examination are unavailing.  When testifying, Dr. Chiodo confirmed the opinions, stated previously in his written report, that Petitioner “had extensive long-standing water intrusions,” and “mold contamination” with “no indication that it’s somehow limited to just certain areas of the building.”  Tr. at 93-94, 146; see also ALJ Decision at 38 (summarizing Dr. Chiodo’s written opinions that Petitioner’s facility had “water intrusion since at least 2004” and “extensive mold contamination” with species including “Chaetomium, Memnoniella, and Stachybotrys”) (citing CMS Ex. 97, at 3).  Dr. Chiodo gave unrebutted testimony that “there really is no debate within the orthodox medical and scientific community about mold being able to cause” allergic disease, including “aggravation of asthma, respiratory distress.”  Id. at 39 (quoting Tr. at 56-57); see P. Ex. 1, at 4 (acknowledgment by Dr. Laumbach that “[t]he potential health effects of exposure to mold include possible worsening of allergy and/or allergic asthma among patients with these conditions who may be sensitive to mold”).  Petitioner suggests that Dr. Chiodo’s testimony was faltering, but he expressed firm opinions, which the ALJ reasonably credited, on the

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particular “respiratory threat mold contamination posed to Petitioner’s residents,” particularly those with “some degree of respiratory compromise”:

[A]sthma is an obstructive lung disease.  So you already have somebody that has difficulty getting air in and out of their lung, and now you have allergic reactions, allergic response to the mold causing mucous production in the lungs, restriction of bronchioles.  You make the situation worse and it can be literally the straw that breaks the camel’s back that causes somebody to have to go into the hospital or possibly even die.  So that’s why in the context of patients that have some degree of respiratory compromise, this is a very serious matter, and . . . specifically there are patients in this facility that have had – their medical records have documented that they do have respiratory compromise.

ALJ Decision at 40-41 (quoting Tr. at 155-56) (emphasis omitted).

The ALJ duly considered the significance of Dr. Laumbach’s personal visit to the facility and quantification of the mold damage.  The ALJ acknowledged that Dr. Laumbach “inspected Petitioner’s facility” and Dr. Chiodo “did not personally go” there.  ALJ Decision at 32, 37-38.  However, the ALJ noted that Dr. Chiodo (unlike Dr. Laumbach) based his opinion on review of both sets of laboratory reports in evidence, and also on photographic evidence and fire department records.  Id. at 37-38 n.16.  The ALJ correctly considered it “perfectly acceptable for CMS to engage an expert who reviews significant documentation related to the mold at the facility to render an opinion about it.”  Id. at 59.  As for quantifying the mold damage, the ALJ credited and quoted Dr. Chiodo’s unrefuted testimony that “even a minute quantity can cause serious disease in somebody that is susceptible,” which is why the Occupational Safety and Health Administration “does not have permissible exposure limits for mold.”  Id. at 41 (quoting Tr. at 46-47).

We defer to an ALJ’s determination of the weight and credibility of witness testimony unless there is a compelling reason not to do so, and here there is no such reason.  See Oak Ridge Ctr., DAB No. 3195, at 27 (2025).

7. Petitioner has not shown clear error in CMS’s immediate jeopardy determination.

Based on substantial evidence, the ALJ concluded that “CMS’s determination that Petitioner’s noncompliance with 42 C.F.R. §§ 483.25(h) and 483.75(d)(1)-(2) and (o)(1) immediately jeopardized the health and safety of its residents is not clearly erroneous.”  ALJ Decision at 56.  That conclusion relied on well-established legal principles that the ALJ correctly cited and applied.  Id. at 56-60.  The ALJ rightly reasoned that facilities face a heavy burden in proving CMS’s immediate jeopardy determination was clearly erroneous, because distinctions between noncompliance levels are not mathematical and

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objectively measurable but instead are inherently imprecise and require CMS to use its professional judgment and expertise.  See id. at 57; see also 59 Fed. Reg. 56,116, 56,179 (Nov. 10, 1994); Miss. Care Ctr. at 15; Maysville Nursing & Rehab. Facility, DAB No. 2317, at 11 (2010); Daughters of Miriam Ctr., DAB No. 2067, at 15 (2007).

Petitioner has not met its heavy burden of proving that CMS clearly erred.  “Determining whether a deficiency is likely to cause serious harm,” as we have discussed, “often entails the application of professional medical or nursing judgment or expertise.”  Oak Ridge Ctr., DAB No. 2913, at 29 (2018).  Thus, both parties presented medical opinion evidence, and the ALJ reasonably gave CMS’s more weight than Petitioner’s.  As to the other evidence, Dialysis Center at Moreno Valley, Inc., DAB No. 2193 (2008), is instructive.  In that case we upheld CMS’s termination of a dialysis facility’s Medicare coverage based on survey findings including “mold, fungus, and water damage” that were “so serious as to pose the potential for fungal infections and respiratory complications in the facility’s immuno-compromised patients.”  Id. at 1, 3-4, 22.  Survey findings included stained wallboard and framing, which established “significant mold and water damage in multiple areas,” and the surveyors assessed immediate jeopardy per 42 C.F.R. § 489.3, which – like section 488.301 – defines the term as noncompliance that “caused, or [was] likely to cause, serious injury, harm, impairment, or death.”  Id. at 9-11, 21.  Those findings were uncontested, id. at 21, unlike the analogous findings here, but the parallels between the facts establishing immediate jeopardy in both cases are clear.  “If the facility’s violation of the condition of participation is likely to cause harm or serious injury, that provides an adequate basis for finding immediate jeopardy.”  Brightview Care Ctr., DAB No. 2132, at 19 (2007) (emphasis modified).  The ALJ made no legal error in concluding such a likelihood existed in this case.

8. It is unnecessary to decide whether an unlocked supply closet also posed immediate jeopardy.

The ALJ Decision includes a finding, apart from the mold-related findings, that “Petitioner stored cleaning chemicals that could cause severe harm to individuals in an unlocked closet that was accessible by mobile but cognitively limited residents.”  ALJ Decision at 54.  The ALJ found “that there is sufficient prima facie evidence in the record to support the [Statement of Deficiencies] regarding the presence of potentially harmful cleaning chemicals” stored in an unlocked, resident-accessible closet, and that Petitioner “did not cite to any evidence in the record” to “rebut” those facts.  Id. at 56.  The ALJ thus followed our directive to resolve on remand “what risk of harm,” if any, the closet presented.  DAB No. 2869, at 9 n.6; see ALJ Decision at 54-56.

Petitioner complains that the ALJ’s determination of this issue “is unsupported by evidence in the record or law” and therefore “clearly erroneous.”  P. Br. at 30.  CMS responds that its immediate jeopardy finding “related primarily to the mold

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contamination” but the ALJ’s determination regarding the storage closet was not erroneous and “was based on substantial evidence.”  CMS Br. at 31-32.

Upon reviewing the entire record, the Board finds it unnecessary to decide whether the ALJ’s determination of this issue was factually unsupported or legally erroneous.  To the extent the ALJ’s immediate jeopardy analysis relied on evidence concerning the unlocked janitorial closet, that evidence is cumulative of other relevant evidence regarding the facility’s mold contamination, rendering harmless any error by the ALJ even if such error were established.  Cf. Life Care Ctr. of Gwinnett, DAB No. 2240, at 16 (2009) (“Given our resolution of . . . other issues” establishing noncompliance, ALJ’s discussion of additional grounds was “harmless error”).

II.    CMP amounts of $9,000 per day for the immediate jeopardy period and $350 per day for the period of lesser noncompliance are not unreasonable.

An ALJ (or the Board) determines de novo whether a civil money penalty is reasonable based on the facts and evidence in the record concerning the factors specified in 42 C.F.R. § 488.438.  See 42 C.F.R. § 488.438(f); Green Oaks Health & Rehab. Ctr., DAB No. 2567, at 16 (2014) (citing cases).  Those factors are:

(1) The facility’s history of noncompliance, including repeated deficiencies.

(2) The facility’s financial condition.

(3) The factors specified in § 488.404[, which include “the seriousness of the deficiency,” in terms of severity and scope, and the “relationship of the one deficiency to other deficiencies resulting in noncompliance”].

(4) The facility’s degree of culpability[, which] . . . includes, but is not limited to, neglect, indifference, or disregard for resident care, comfort or safety.  The absence of culpability is not a mitigating circumstance in reducing the amount of the penalty.

42 C.F.R. § 488.438(f); see also id. § 488.404(b)-(c).  The facility bears the burden of demonstrating a CMP’s unreasonableness through argument and evidence addressing the factors.  Heritage Plaza Nursing Ctr., DAB No. 2829, at 22 (2017).

We first dispense with issues relating to the CMP that are either not disputed or not reviewable.  We summarily affirm:  the 26-day duration of the immediate jeopardy period from October 30, 2014 through November 24, 2014; the 28-day duration of non-immediate-jeopardy noncompliance from November 25, 2014 through December 22, 2014; and the reasonableness of the $350 per day CMP during the latter period.  As the ALJ correctly recognized, Petitioner has not disputed those issues.  Fr. I ALJ Decision at 3 n.3, 22; ALJ Decision at 9 n.5, 61.  We also disregard Petitioner’s argument that the aggregate CMP “in the amount of $243,800.00 remains unreasonable.”  RR at 2.  We review only the reasonableness of the per day CMP amount, not the total penalty amount. 

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Vibra Hosp. of Charleston – TCU, DAB No. 3094, at 30-31 (2023); Crawford Healthcare & Rehab., DAB No. 2738, at 20 (2016).

We next review the ALJ’s application of the 42 C.F.R. § 488.438(f) factors to the record and the ALJ’s consequent reduction of the per day CMP for the immediate jeopardy period from the CMS-imposed amount of $10,000 per day to $9,000 per day.  Petitioner considers “the ALJ’s imposition of nearly the maximum daily sanction” to be “arbitrary and capricious and not supported by the record.”  RR at 31; see also Reply at 17.  CMS does not challenge the ALJ’s reduction of the CMP.  CMS Br. at 4 (acknowledging that the ALJ “reduced the $10,000 per day CMP imposed by CMS to $9,000 per day” and stating that “the ALJ’s decision should be upheld”); id. at 32-33 (discussing the “reasonableness” of the $9,000 CMP).  Like the ALJ, we hold that a $9,000 per day CMP for the immediate jeopardy period is reasonable, but on different grounds.

Regarding section 488.438(f)(1), the ALJ did not err in considering Petitioner’s history of noncompliance significant, particularly the 2011 survey that found noncompliance based on facts similar to those in the 2014 survey, including “water intrusion in several rooms in the facility.”  ALJ Decision at 62.  Petitioner asserts it “did not have a history of non-compliance.”  See RR at 31.  On the contrary, Petitioner’s 2011 deficiency for conditions similar to those that surveyors found again in 2014 shows a history of noncompliance, regardless of whether the earlier deficiency ever was “lowered to Level F” through IDR as Petitioner contends.  See RR at 31.  As CMS notes, “an F level deficiency is still evidence of noncompliance, particularly when it is based on the same leaking roof issues, and the Facility failed to submit any evidence that such reduction was adopted by CMS.”  CMS Br. at 8-9 n.1.  CMS “is not bound to follow or defer to an IDR recommendation,” Brightpointe, DAB No. 3157, at 12 (2024), and there is no evidence that CMS followed or deferred to the State Agency’s 2011 IDR recommendation regarding the 2011 survey.

Regarding section 488.438(f)(2), the ALJ did not err in finding Petitioner has not “argued or cited to any evidence” showing that Petitioner’s financial condition left it unable to pay the CMP without going out of business or compromising resident health and safety.  ALJ Decision at 65.  We concur in that assessment.

We do not, however, adopt the ALJ’s assessment of section 488.438(f)(3).  Petitioner argues its deficiencies “were not serious” and conditions in the facility were not “truly as bad as CMS is now suggesting.”  ALJ Decision at 63 (quoting P. Prehr’g Br. at 21 and P. Post-Hr’g Br. at 14-15); see also RR at 32; Reply at 18.  The ALJ considered the deficiencies “serious,” but reduced the per day CMP for the immediate jeopardy period because “Petitioner’s argument could call into question the scope of the deficiency at 42 C.F.R. § 483.25(h).”  ALJ Decision at 63-64.  The ALJ reasoned that “the number of residents subject to immediate jeopardy is more limited than CMS originally found,” immediate jeopardy “was not as wide-spread as CMS believes,” and “[o]verall, the population affected by the immediate jeopardy was more limited than all of the

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residents.”  Id. at 60, 63-64; see also id. at 66 (concluding that a reduced CMP was appropriate as the record shows “a more limited class of residents susceptible to immediate jeopardy” than the Statement of Deficiencies envisioned and “the scope of the immediate jeopardy for the primary deficiency in this case implicates fewer residents than all of the residents”).

The ALJ’s determination under section 488.438(f)(3) disregards, without explanation, key evidence that the ALJ already had credited.  Dr. Chiodo testified that “it is a very bad idea to have anybody inhabiting that structure,” and for “older, infirmed, particularly” – but not exclusively – “people with respiratory compromise” it “presents a very serious imminent risk of serious injury or death.”  Tr. at 156-57 (emphasis added); see also id. at 164 (testimony that such a “mold-contaminated structure” constituted “a risk for anybody”) (emphasis added).  When analyzing the immediate jeopardy issue, the ALJ reasonably gave weight to Dr. Chiodo’s opinion that “no residents should be inhabiting the facility.”  ALJ Decision at 36.  Yet when assessing the CMP, the ALJ failed to consider or even mention this essential evidence.  Thus, we do not adopt the ALJ’s assessment that the scope of any deficiency warrants a reduction of the CMP amount under this factor.  See 42 C.F.R. § 488.438(f)(3) (incorporating “[t]he factors specified in § 488.404”); id. § 488.404(b)(2) and (c)(1) (concerning deficiencies’ scope and relationship to each other).

We also modify the ALJ’s assessment of section 488.438(f)(4) based on the totality of the record evidence.  Petitioner claims it “remained diligent in maintaining a high quality facility” and “did not neglect its patients’ care, comfort, or safety.”  RR at 32.  The ALJ made contrary findings that Petitioner was “quite culpable” on several grounds, including that it “decided to ‘live with’” the leaking roof rather than replace it and thus left infirm elderly persons “living in damp and moldy conditions.”  ALJ Decision at 65; see also id. at 1 (summarizing that Petitioner “continually patched the roof rather than replace it”).  These findings were factually supported and show culpable conduct.

The ALJ, however, gave insufficient consideration to evidence demonstrating that, as the ALJ recognized, this case “is not the worst-case situation worthy of the highest per-day penalty amount.”  Id. at 65-66.  The ALJ supportably found Petitioner “cast a blind eye to” apparent mold in the facility and showed “malaise” by failing to replace the failing roof.  See id. at 65.  Nevertheless, the record also contains evidence of somewhat extenuating circumstances.  Petitioner began planning a major renovation and modernization of the facility in 2005, but in 2008 lost financing for the project during a national recession.  ALJ Decision at 17-18; P. Ex. 9; P. Ex. 60, at 1-2; CMS Ex. 1, at 16.  While failing to replace the roof, Petitioner did spend over $79,000 toward repairing it between the 2011 and 2014 surveys.  ALJ Decision at 19 (citing P. Ex. 28); P. Ex. 28, at 1.  We are mindful that under section 488.438(f)(4) the “absence of culpability is not a mitigating circumstance in reducing the amount of the penalty.”  And we have held that the maximum penalty can be justified when, for example, a facility’s staff “engaged in a

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long-running fraud that involved numerous residents’ accounts” and constituted “misfeasance.”  Madison Cnty. Nursing Home, DAB No. 2895, at 19 (2018).  Yet we also have held that the maximum penalty is not necessarily justified when a facility is merely “negligent or not diligent” or otherwise “did not exhibit the degree of culpability necessary to warrant the maximum CMP allowed under the regulations.”  See Florence Park Care Ctr., DAB No. 1931, at 35 (2004).

With respect to Petitioner’s degree of culpability, the record as a whole shows more than mere negligence but less than the type of extreme misconduct that would warrant the highest penalty.  Yet Petitioner’s culpable conduct continued for years, and we bear in mind the remedial purpose of CMPs to “ensure prompt compliance with program requirements.”  42 C.F.R. § 488.402(a) (emphasis added).  We conclude that a $9,000 per day CMP during the immediate jeopardy period reasonably serves that remedial purpose.

Conclusion

We uphold CMS’s determination of Petitioner’s noncompliance with 42 C.F.R. §§ 483.25(h), 483.75(d), and 483.75(o)(1) at the level of immediate jeopardy from October 30, 2014 through November 24, 2014, and we determine a $9,000 per day CMP to be reasonable for that period.  We summarily affirm the reasonableness of the $350 per day CMP for the non-immediate-jeopardy period of noncompliance from November 25, 2014 through December 22, 2014.