Court tosses out citation for runny eggs, limits surveyors

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Attorney Alan C. Horowitz
Attorney Alan C. Horowitz

Slapped with an Immediate Jeopardy citation for serving undercooked eggs to residents, a nursing home took its defense to a federal appeals court — and won. The court staked out limits on how government agencies interpret vague regulations.

Surveyors cited the Elgin Nursing and Rehabilitation Center in Elgin, TX, after observing “smeared egg yolk” on the plates of five residents. The surveyors said the eggs were underdone, violating the regulation to serve food “under sanitary conditions.” The Centers for Medicare & Medicaid Services imposed multiple penalties, including a $5,000 fine and termination of the nursing home's Medicare provider agreement. 

An administrative law judge and a departmental appeals board upheld the IJ citation and other penalties but not  the Medicare termination.  

However, the U.S. Court of Appeals for the Fifth Circuit threw out the penalties and the IJ citation. 

The decision stemmed from how CMS dealt with the vagueness of the dietary regulation, which does not precisely define “sanitary.” This led CMS to rely on more specific guidance in the State Operations Manual.

The SOM guidance does not have the force of law, the appeals court pointed out. 

CMS also relied on an “interpretation of an interpretation” by referencing a letter from a regional office, which stated that eggs are 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.

Attorney Alan C. Horowitz, a long-term care legal expert not involved in the case, said providers should realize surveyors may not cite a deficiency based solely on the SOM.