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June 2014 - CMS Revises Guidance on Egg Preparation in Nursing Homes

June 6, 2014

Sunny-side up? Not anymore. Centers for Medicare & Medicaid Services (CMS) issued revised guidance as a result of the "runny egg" lawsuit that it lost last year to make clear that unpasteurized eggs cannot be undercooked in any respect, even at the request of a resident.

By way of background, in 2010 a Texas nursing home was cited at an IJ level for serving "soft cooked" eggs at the request of the resident. The facility had cooked the eggs to the required temperature of 145 degrees as set forth in the State Operations Manual. The federal regulation requires only that food be prepared "under sanitary conditions." CMS argued that the "soft cooked" eggs did not comply with the regulation because the runny consistency amounted to an unsanitary condition. The nursing home protested the application of the "runny egg" standard, which is not in the regulation or the guidance. Last summer, the Fifth Circuit Court of Appeals agreed with the nursing home.

On May 20, 2014, CMS issued revised guidance on the preparation of eggs under F371. To address the court’s concern that CMS improperly imposed the "runny egg" standard, it has now specifically provided guidance that unpasteurized eggs cannot be "soft cooked," prepared "sunny-side up" or "undercooked." It recommends that facilities use pasteurized shell or liquid eggs. Specifically, CMS changed the guidance for eggs from "cook to proper temperature" to "cook until all parts of the egg are completely firm."

In addition, CMS has determined that signed release agreements between the facility and the resident with respect to eating undercooked eggs are not permissible.

To avoid a deficiency under F371, use pasteurized eggs or cook any unpasteurized eggs to the newly imposed "completely firm" standard.

If you have any questions about the issues discussed in this bulletin, please contact Heather Berchem at hberchem@murthalaw.com or at (617) 457-4191 or Dena Castricone at dcastricone@murthalaw.com or at (617) 457-4043.

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