Credit Where Credit Isn't Due

CMS' Hollow Hospital Nutrition Standards Memo

This week, we saw a number of high profile public health folks cheering on a recent Center for Medicare and Medicaid Services memo ‘reminding’ hospitals of their legal obligation to patient food and nutrition services. Along with this announcement, the administration noted the recent release of the 2025-2030 Dietary Guidelines for Americans (DGAs) and ‘encouraged’ hospitals to use the new DGAs to inform patient food and nutrition services. To the MAHA crowd and even to public health nutrition advocates, this memo got cheered on as the administration taking on a much needed overhaul of hospital foods - but, with its mix of citing Federal law and using ‘should’/’encourages’ language, its worth interrogating what this memo is actually saying, and if its really anything more than the nutrition political theatre that we’ve come to expect from this federal administration/MAHA?

Briefly, the memo details that diet quality is a major contributor to both chronic disease and mortality, citing evidence from prospective cohort studies in the general population that factors like sugar sweetened beverages and ultraprocessed foods worsen risk, whereas high intakes of whole grains improve long-term health outcomes. It then goes on to highlight that hospitals should implement 8 key elements of the new DGAs, listed below. The memo then gives examples of meals for patients, such as grilled salmon with quinoa and vegetables with unsweetened beverages, and clear liquid diet options that minimize added sugars. The memo cites these changes as consistent with CFR 482.28, which comes off as though there is some regulatory authority to enforce the implementation of these key elements. That comes with some weight, as not being compliant with the standards laid out in CFR 482.28 can impact hospital reimbursement - basically saying, hey if you don’t implement the DGAs and make hospital food healthier, we can cite you and impose financial penalties (although this is exceedingly uncommon for non-compliance and typically you’d just have a plan of correction).

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If you’re thinking this all sounds great so far, you’re not alone - but there are huge issues here:

1 - Regulatory: You’d think from reading this memo that CFR 482.28 gives CMS the ability to determine what the composition of the menu looks like at a hospital and that it is aligned with the DGAs. But that’s not really the case. You can read all of the Condition of Participation in 482.28 pretty quickly below. They are standards for inpatient nutrition clinical care, ensuring hospitals have certain staff like Registered Dietitians, and that menus ‘meet the needs of patients’. There’s no authority in CFR given for making sure all patients get a DGA-aligned menu…which takes us to part 2.

2 - Clinical Nutrition is not Public Health Nutrition: If you talk with a clinical dietitian for all of 12 seconds, you’d realize implementing this would be an absolute disaster. Patients who are acutely ill and hospitalized are not the general public that the DGAs are made for. The entire process of making DGAs involves ensuring that recommended dietary patterns are likely to meet the nutritional requirements of the everyday person and help to reduce their risk of chronic diseases. This evidence is of limited relevance to patients who are hospitalized and often have conditions that impact their nutritional requirements, alter their ability to digest, absorb, and assimilate nutrients, and have major barriers to consuming a normal diet - everything from altered taste and smell to the inability to chew and swallow. Your goals switch from chronic disease prevention to preventing acute complications - malnutrition & wasting, aspiration pneumonia and infection, etc. This reality is why we have an entire profession of registered dietitians who are trained in how to ensure patients with a variety of health conditions can meet nutritional needs and why CFR requires individualization of nutrition care. Patients who’ve just had major surgery, had a stroke and are struggling to swallow, are getting chemo and radiation for head & neck cancer, etc etc… may not actually benefit from the salmon and quinoa - possibly because they can’t chew it, possibly because they can’t swallow it without risking aspiration, possibly because they can’t absorb it, possibly because the smell makes them nauseous. It doesn’t fly well to say in this era of MAHA wellness, but when your patient is recovering from GI surgery and has had <500kcals per day for 7 days in the hospital, you’re happy when they can eat the low residue, full-sugar jello and an ultraprocessed clear protein supplement to let their GI tract heal and limit them breaking down their own tissues for energy and protein. That all helps them get back to normal when they can focus on the salmon and quinoa.

It is telling that the administration, in justifying this memo, cited ZERO studies from clinical nutrition intervention data in hospitals and relied entirely on self-reported dietary intake data in the general public and its association with chronic disease development. Not only are these completely different populations but there’s just virtually no relevance of this data that occurs in an obesogenic food environment reflecting intake of years to decades to the inpatient setting where intakes are often compromised and the length of stay is comparatively limited. You don’t develop chronic disease in the week you’re eating the hospital food but inadequate protein and calorie intake can increase your risk complications and readmission.

A few closing thoughts:

• How does CMS actually evaluate and enforce the conditions of participation? They don’t do it themselves - it’s done through accrediting organizations like the Joint Commission. They have their own nutrition care standards that map onto the Conditions of Participation and, as you’d expect from the CFR wording, they focus on the adequacy of the clinical process, not the specifics of whether menus have white or brown rice - and if they did, they’d be likely to ding you for the CMS memo’s recommendations, given the clinical inappropriateness of limiting calorie and protein options for patients on clear liquid diets, not having refined grains as calorie source for patients who need low residue diets, and withholding oral nutrition supplements and other modulars that are, by definition, ‘ultraprocessed’. I’m not against CMS having argued that CFR lets them try to mandate more enforcable, realistic targets to improve generally healthy options for folks without major clinical nutrition needs (e.g., 50% of grain options on the menu should be whole grains), but they’d still have to work with 3rd party auditors to implement standardized menu evaluations. Alas, they chose heavy handed (i.e. ‘eliminate’) or non-specific wording (i.e. ‘limit) that’s not really enforcable and don’t seem to have coordinated this with what’s realistic for auditors.

• In dissecting the legal grey zone that is whether its possible for CMS to mandate the DGAs be implemented by hospitals, it’s easy to lose sight of the lack of any real incentive for doing this. Medicare ties reimbursement to the Hospital Value-Based Purchasing (VBP) program, a component of which is the Hospital Consumer Assessment of Healthcare Providers and Systems (HCAHPS) survey. This is a standardized survey about patient experience and includes questions about the experience in the hospital, which the quality of food and experience with dining can impact. There’s a potential that more nutritious options might improve the experience, but such a dramatic and inappropriate overhaul as laid out in the CMS memo would likely worsen patient satisfaction. This could negatively affect total CMS reimbursement, all while increasing food costs as hospitals have to renegotiate contracts with 3rd party food service providers. It’d be great if folks in this administrative got creative folks in a room together to think about incentivizing having healthier menu options, or even legislating it - everything from how to implement menu reviews by 3rd party auditors with real nutrition standards (e.g. 50% of grain options are whole grains), how to get 3rd party food contractors to provide a greater array of healthier options, or how to increase budgets for food, staff and infrastructure so that hospitals can exhibit greater control over offerings. Unfortunately, we’re not seeing anything serious on this front and this memo isn’t it.

• I’ve seen chatter online from folks about the hospital food environment having foods that aren’t nutritious, along the lines of ‘there’s soda and fried foods in the cafeteria!’. I share this concern but this is the retail food environment, not the inpatient menu, so CMS has no real capacity to regulate this and the memo doesn’t even address it. To the extent that folks are unhappy with the hospital food environment, both inpatient and retail, it’s a reflection of the broader policies and incentives that shape our existing food system - something that this more administration, who have avoided any regulation despite holding all 3 branches of government, doesn’t seem to interested in interrogating.

Verdict: Despite fanfare from some public health nutrition folks, it’s hard to look at this memo and see anything substantive - it’s simply a reminder of CFR and a legislatively-empty encouragement to overhaul their menus to align with the DGAs. It’s clear no clinical dietitians and folks with regulatory knowledge were in the room when this memo was put out… or it was always meant as more political performance before the midterms, as RFK Jr is being encouraged to quiet down on vaccines and play to the foodie base.

Post Scriptum:

• The Academy of Nutrition and Dietetics put out a nice response to this CMS memo