Things heating up in case of the runny eggs

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John O'Connor
John O'Connor

Looks like CMS and nursing home inspectors have more than a little egg on their face, thanks to a recent circuit court ruling in favor of a wrongly accused operator.

The Texas-based Elgin Nursing and Rehabilitation Center did not break any laws by serving soft-cooked eggs to its residents, the 5th Circuit Court ruled in May. Inspectors originally said the eggs in question were undercooked, to which CMS promptly agreed and slapped the facility with a $5,000 fine.

And, no, I'm not making this up.

The federal agency in charge of Medicare and Medicaid compliance determined that the unpasteurized eggs' runny yolks could make residents ill. It must have sounded like a reasonable argument, as both an administrative law judge and an appeals board initially upheld the $5,000 levy. But after reviewing the CMS Operations Manual, the 5th Circuit Court determined that the section dealing with cooking temperatures for eggs was "inherently ambiguous."

Chief Judge Jerry Smith wrote that the case boiled down to whether two provisions of the rule — one addressing temperature and the other concerning congealment — can be applied at the same time to the same egg.

CMS "may not issue ambiguous interpretive documents and then interpret those in enforcement actions — we will not defer to that level of agency interpretation," Smith wrote.

This ruling comes as good news to operators on several levels. One is that perhaps it will help deter inspectors from pursuing such picayune matters when checking facilities for compliance going forward. But more importantly, Smith's message — that ambiguous interpretive documents cannot be cited as the rule of law come enforcement time — would seem to establish or at least reinforce a defensible position for those who find themselves bizarrely accused.

The judge correctly pointed out that CMS was out of line on this matter. But all things considered, that may be one of the bigger understatements of the year. We are now beginning a third month of sequestration-mandated Medicare funding cuts. Remember, those cuts were supposedly needed because our government is spending too much.

Yet the CMS budget proposal for 2014 seems oddly impervious to such austerity. The agency is seeking a hike in program management funding to the tune of nearly $1.4 billion more than fiscal year 2012 totals. For those of you keeping score at home, that means CMS is requesting $5.2 billion in tax dollars for program management alone.

(Keep in mind, that funding request is just for one of the five accounts in the CMS portfolio. All told, CMS wants We the People to cut the agency a check for $505 billion.)

But if managing programs means hounding nursing home operators over egg-cooking times, perhaps it's time to turn up the heat someplace else.

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McKnight's Daily Editors' Notes features commentary on the latest in long-term care news and issues. Entries are written by Editorial Director John O'Connor, Editor James M. Berklan, Senior Editor Elizabeth Newman and Staff Writer Emily Mongan.

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