Court throws out Immediate Jeopardy citation for undercooked eggs, repudiates interpretation of 'ambiguous' regulation

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A Texas nursing home recently won a legal battle challenging an Immediate Jeopardy citation for serving undercooked eggs to residents.

Surveyors cited the Elgin Nursing and Rehabilitation Center in Elgin, TX, after observing “smeared egg yolk” on the breakfast plates of five residents, according to attorneys for the facility. The surveyors said the eggs were underdone, in violation of the regulation to serve food “under sanitary conditions.”

An administrative law judge and a departmental appeals board upheld the Immediate Jeopardy citation, as well as a $5,000 fine and other penalties, including termination of the facility's Medicare provider agreement.

However, the U.S. Court of Appeals for the Fifth Circuit sided with the nursing home in a May 17 ruling — a decision that at least some observers have applauded as common sense. The court's decision rested on the fact that the regulation in question does not precisely define “sanitary,” which led the Centers for Medicare & Medicaid Services to rely on more specific guidance on egg preparation in the State Operations Manual to defend its citation.

The SOM guidance is meant to help nursing homes interpret regulations and does not have the force of law, the appeals court pointed out. Furthermore, CMS relied on an “interpretation of an interpretation” by also referencing a letter from the CMS Dallas Regional Office, which stated that eggs are considered undercooked if the yolk is runny.

“Affording deference to agency interpretation of ever more ambiguous regulations would allow the agency to function not only as judge, jury and executioner but to do so while crafting new rules,” the court stated.