TX LEGAL EDGE

48

The Runny Egg Saga

Carol Keough June 6, 2013

The Fifth Circuit Court of Appeals on May 17, 2013 decided whether the Department of Human Services (DHHS) decision could stand that smeared egg yolk on a plate meant eggs were unsafe to serve to elderly residents.  In employment law and many other areas of federal law, the Code of Federal Regulations (CFR) is like the guidebook provided by the federal agency which enforces that law, to what is an acceptable or expected interpretation of the federal statutes.  An agency’s interpretation of its own regulation in the CFR is given deference and controlling weight unless it is plainly erroneous or inconsistent with the regulation.   In Elgin Nursing and Rehabilitation Center v. DHHS, the court dug under the smeared egg evidence relied on by the DHHS to show Elgin served unsafe eggs to the elderly residents.  The court found three levels of interpretations each attempting to define the CFR requirement that “food be served under sanitary conditions”.  The problem with giving deference to these varying levels of interpretations, Is how will the business know what is required under the regulation without notice of what the regulation means until DHHS interprets the interpretation of the regulation.

If this sounds confusing, can you imagine the head scratching of the Justices as they went from the CFR to the State Operations Manual (SOM) providing guidelines on how to prepare safe eggs.  Then the court had to decide if the Center for Medicare and Medicaid Services (CMS) should be given deference for its interpretation of the SOM that eggs were required to be cooked to a certain temperature and for a certain time until the white is completely set and the yolk is congealed.  CMS the court reported not unsurprisingly wanted all three levels of interpretations to be given “great deference.”  The egg yolk smeared plates were just not enough evidence to support DHHS’s three tiered deference theory.  The court leapt in and determined that an egg must be either cooked at 145 degrees F. for 15 seconds or cooked until the white is set and the yolk congealed; either alternative is sufficient.  The court held that DHHS may not issue ambiguous interpretive documents and then interpret those in enforcement actions.  The court refused to defer to the agency and set aside the decision and penalties against Elgin.  Careful scrutiny of the egg saga and agency actions to enforce its own regulations gives business a potential defense to the deference argument which often leaves a business without a defense.

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