Background

In January, HHS and the U.S. Department of Agriculture issued new dietary guidelines that advise Americans to prioritize protein and avoid sugary, processed foods.

In March, Kennedy announced that CMS sent a memo to hospitals asking them to "align their food purchases with the dietary guidelines in order to enjoy continued eligibility for Medicaid and Medicare payments."

The memo states that the latest dietary guidelines "place heightened emphasis on diet quality -- including limiting ultra-processed foods, sugar-sweetened beverages, refined carbohydrates, and added sugars, while prioritizing whole and minimally processed foods. These updates reflect the latest federal nutrition policy and are encouraged to be used to inform patient nutrition services and related hospital protocols."

Specifically, the memo says hospital leadership and nutrition departments must evaluate:

• The elimination of refined grains, replacing them with 100% whole grains
• Prioritizing minimally processed protein sources, including plant-based options
• Emphasizing vegetables, fruits, legumes, nuts, seeds, seafood, and healthy fats
• Making sure vegetables and proteins are baked, broiled, roasted, stir-fried, or grilled rather than deep-fried
• Eliminating processed meats and foods that are high in added sugars, sodium, and artificial additives
• Making sure meals contain less than 10 grams of added sugar, unless clinically appropriate

"For too long, we have treated the food served in the hospitals as an afterthought," said CMS Administrator Mehmet Oz. "The food is bland, it's poorly prepared, and it's lacking nutrients of the nature that you actually need for a full recovery."

However, protein shakes and other supplemental nutrition products can help treat patients with malnutrition or unhealthy weight loss. According to a study published in Nutrición Hospitalaria, 80% of malnourished elderly patients gained weight and improved their muscle mass while on nutritional supplements like Ensure.

For "a patient struggling to swallow from just having a stroke, salmon and quinoa [a recommended meal in the memo] is the worst thing for them," said Kevin Klatt, a dietitian and an assistant professor at the University of Toronto. "They're going to risk aspirating on it."

"It's always a struggle to get people to eat. Losing weight in the hospital raises the risk of mortality," said Mary Talley Bowden, a sleep medicine specialist. 

Although HHS' standards require that "individual patient nutritional needs must be met in accordance with recognized dietary practices," a brief from the law firm Akin Gump Strauss Hauer & Feld noted that "CMS has never before interpreted this requirement as mandating adherence to any set of dietary guidelines."

However, other lawyers say that hospitals are likely to comply with the new requirements since they generally want to avoid a legal battle or enforcement action by the federal government.

"[Kennedy] doesn't have a legal basis to do this, but hospitals and nursing homes can't afford to ignore it altogether because of what it signals about potential enforcement action," said Nicholas Bagley, a law professor at the University of Michigan.

Bagley also noted that hospitals could try to sue HHS if federal fundings are withheld due to a lack of compliance. "When the agency goes to the hospital and says, We're going to take away your money for this, the hospital can sue and say, Look, nothing requires us to fry our fries in beef tallow or whatever," he said.