Court of Appeals agrees with SNF, reverses HHS

On May 17, 2013, the U.S. Court of Appeals for the Fifth Circuit handed an important victory to Elgin Nursing and Rehabilitation Center (Elgin) when it reversed a finding of “immediate jeopardy” and the related penalties. The case began when surveyors observed “smeared egg yolk” on five residents’ plates as they were eating their breakfast. (All five residents had requested eggs that were “over easy,” “soft-cooked” or “soft-fried.”) The survey team cited Elgin with a deficiency at the “immediate jeopardy” level based on its belief that the facility violated 42 CFR 483.35(i), F-Tag 371, dealing with sanitary food conditions.

Consequently, the Centers for Medicare & Medicaid Services (CMS) imposed a $5,000 civil money penalty, a denial of payment for new admissions, loss of the facility’s nurse aide training and competency evaluation program (NATCEP) for a two-year period and termination of its Medicare provider agreement.

CMS maintained that serving “unpasteurized eggs with runny yolks” violated the regulation dealing with food preparation, which requires facilities to “store, prepare, distribute, and serve food under sanitary conditions.” Because the regulation does not define “sanitary,” CMS relied on the State Operations Manual (SOM), Appendix PP—Guidance to Surveyors for Long Term Care Facilities for clarification. The SOM provides guidance to surveyors regarding the interpretation of the applicable regulations. As CMS’ guidance document, it does not have the force of law and lacking the force of law, cannot expand what a regulation requires.

The facility appealed CMS’ enforcement actions and an Administrative Law Judge (ALJ) upheld CMS’ findings of noncompliance and all remaining enforcement actions. (The termination was rescinded.) The ALJ agreed with the provision of the SOM that requires facilities to “cook unpasteurized eggs until the eggs reach 145°F for 15 seconds, until the white is completely set and the yolk is congealed.” In so doing, he afforded substantial deference to that provision, believing it to be a reasonable interpretation of the regulation.

By contrast, Elgin argued that the condition of the egg whites described in the SOM is an additional requirement not justified by the regulation. It asserted that the “runniness” or “congealment” of an egg is not a factor that the language of the regulation supports. Unconvinced of Elgin’s position, the ALJ ruled in favor of CMS, holding that “The somber fact is that the eggs at issue were undercooked, and no argument can get around the fact that they were.”

Elgin appealed the ALJ’s decision to the Departmental Appeals Board (Board). The Board noted that among the evidence submitted by both CMS and Elgin, was a Regional Survey and Certification Letter No. 04-08, “Serving Undercooked or Raw Eggs to Nursing Home Residents,”by the CMS Dallas Regional Office. The official CMS Regional Office letter states: “Soft-cooked eggs are considered undercooked if the yolk is runny and/or the egg white is not congealed.” (Note that the CMS letter was a Regional, not a Central Office position, which raises other potential issues.) Thus, CMS in Region VI considered it a serious deficiency if an egg yolk is runny and/or the egg white “is not congealed.”

In upholding the ALJ’s decision, the Board relied on CMS’ interpretation of its interpretation of the regulation that facilities must store, prepare, distribute and serve food under sanitary conditions; that is, in order for an unpasteurized egg to be cooked properly (and thus under sanitary conditions), “the yolks will be firm or congealed, not thick yet runny.” Elgin next appealed to the Court of Appeals for the 5th Circuit.

The Court set aside the deficiency findings and resultant penalties. It noted that courts generally afford substantial deference to an agency’s interpretations of its own regulations unless an alternative interpretation is compelled by the regulation’s plain language. However, in this case CMS relied not just on the regulation but rather on its “Interpretive Guidance” in the SOM and the CMS Regional Office letter which provided further interpretation of an interpretation.

In an unequivocal rejection of CMS’ position—and the two decisions below, the Court refused to permit CMS to essentially interpret its own interpretation. It noted that the SOM’s directive was “inherently ambiguous.” Furthermore, the Court reasoned that accepting CMS’ argument “would make it possible for agencies not only to issue ambiguous regulations, but also to write and enforce ambiguous interpretations of them. It would also require courts to interpret not only interpretations, but interpretations of interpretations.”

Reinforcing its repudiation of CMS’ position, the Court added, “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 refused to permit such “arbitrary” practices.

The holding of this case is important not just for Elgin, but for all nursing facilities. As the Court noted, CMS may not issue ambiguous interpretations of the regulation and then interpret its own interpretations in the context of enforcement actions. Providers should note that surveyors may not cite a deficiency based solely on the SOM, as they sometimes have. Deficiencies must be based on a regulatory violation. Simply put, the SOM provides guidance to surveyors and, as the Court recognized, it is not a substitute for the law.

Addendum: As of this writing, the SOM contains the same directive, “Unpasteurized eggs when cooked to order in response to resident request and [sic] to be eaten promptly after cooking; 145°F for 15 seconds; until the white is completely set and the yolk is congealed.” The Court treated the semicolon in the sentence above as disjunctive, meaning that it is sufficient for unpasteurized eggs to be cooked to 145°F for 15 seconds, in which case the yolk does not need to be “congealed.”

Alan C. Horowitz, Esq., is currently Of Counsel at Arnall Golden Gregory. He is a former Assistant Regional Counsel, Office of the General Counsel, U.S. Department of Health and Human Services. As counsel to CMS he was involved with hundreds of enforcement actions and successfully handled appeals before administrative law judges, the Board and in federal court. He also has clinical healthcare experience as a registered respiratory therapist and registered nurse. Contact him at

Topics: Alan C. Horowitz , Articles , Executive Leadership , Nutrition , Regulatory Compliance