Nursing Home Avoids Fines for Soft Egg Yolks

     (CN) – A Texas nursing home will not face penalties for serving patients soft-cooked eggs, the 5th Circuit ruled.
     During a 2010 investigation of the Elgin Nursing and Rehabilitation Center, agents from the Texas Department of Aging and Disability discovered runny egg yolk on two breakfast plates.
     The agents learned that the kitchen staff had prepared soft-cooked eggs for five patients that day at the patients’ request.
     The problem, the state agency claimed, was that the nursing home used unpasteurized eggs, which could make patients sick when left with runny yolks.
     The Center for Medicare and Medicaid Services (CMS) slapped the nursing home with several penalties, eventually removing most of them but leaving a $5,000 fine.
     The nursing home, located in Central Texas near Austin, fought the penalty and argued that it met the temperature requirement for safely preparing eggs. However, both an administrative law judge and the U.S. Department of Health and Human Services Appeals Board upheld the fine.
     After reviewing the appeals board decision, a three-judge panel from the New Orleans-based 5th Circuit set aside the penalty.
     Chief Judge Jerry Smith penned the 12-page order issued by the panel last week.
     The panel examined the CMS State Operations Manual and found the section on the final cooking temperature for eggs “inherently ambiguous.”
     “It states that ‘[f]oods should reach the following internal temperature,’ but its description of eggs includes ‘145 degrees F for 15 seconds; until the white is completely set and the yolk is congealed,'” Smith wrote. “There are thus two possible requisites: (1) time and temperature and (2) degree or extent of congealing. CMS’s proposed interpretation treats that phrase as conjunctive – absence of either is a violation. Elgin proposes that the phrase is disjunctive – meeting either is sufficient.”
     The panel agreed with the nursing home, and given the lack of evidence to show that the facility undercooked the eggs, it set aside the previous decision by the appeals board. Smith added that the Department of Health and Human Services “may not issue ambiguous interpretive documents and then interpret those in enforcement actions – we will not defer to that level of agency interpretation.”

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