Untitled California Attorney General Opinion

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 93-705
of :
: July 20, 1994
DANIEL E. LUNGREN :
Attorney General :
:
ANTHONY S. Da VIGO :
Deputy Attorney General :
:
______________________________________________________________________________
THE HONORABLE MIKE GOTCH, MEMBER OF THE CALIFORNIA
ASSEMBLY, has requested an opinion on the following question:
Are the California administrative regulations implementing the provision of personal
care services as a Medi-Cal benefit in compliance with state and federal statutes and federal
regulations pertaining to (1) the authorized scope of personal care services, (2) physician
certification of personal care services, (3) supervision of personal care providers, and (4) standards
for personal care provider participation?
CONCLUSION
The California administrative regulations implementing the provision of personal care
services as a Medi-Cal benefit are in compliance with state and federal statutes and federal
regulations pertaining to (1) the authorized scope of personal care services, (2) physician
certification of personal care services, (3) supervision of personal care providers, and (4) standards
for personal care provider participation.
ANALYSIS
The in-home supportive services program (IHSS) of the Department of Social
Services (DSS) provides supportive services to aged, blind, and disabled persons who are unable to
perform such services themselves and who could not remain safely in their homes unless the services
were so provided. (Welf. & Inst. Code, §§ 12300-12314.)1 The program, which is partly funded
by federal block grants, is administered by county welfare departments under the supervision of
DSS. (§ 12306, subd. (b); 42 U.S.C. §§ 1397-1397e.) The services offered include personal care
services, heavy cleaning, medical appointment accompaniment, yard hazard abatement, and
1
All references hereafter to the Welfare and Institutions Code are by section number only.
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paramedical services. The tasks are those the individuals would normally perform for themselves
except for their functional limitations.
The Department of Health Services (DHS) administers the Medi-Cal program which
provides health care services for the benefit of qualified low-income eligible persons. (§§ 14000-
14640.) The Medi-Cal program is financed in part under the federal Medicaid program. (§ 12306,
subd. (c); 42 U.S.C. §§ 1396-1396v.) Personal care services may be provided by a state as a
Medicaid optional benefit. (42 C.F.R. § 440.170(f) (1993).) In order to secure federal funding for
personal care services in California, the Legislature has authorized the personal care services
program (PCSP) to be a Medi-Cal benefit provided under the administrative direction of DSS in
conjunction with its IHSS program. (§ 14132.95.)
To implement the state law allowing PCSP as a Medi-Cal benefit, DSS and DHS
have been authorized by the Legislature to adopt emergency regulations. (Stats. 1993, ch. 7, § 3;
Stats. 1992, ch. 939, § 8.) The question presented for analysis concerns whether these regulations
are consistent with state and federal statutes and federal regulations, particularly as they pertain to
the furnishing of paramedical services. We conclude that the regulations in question comply with
the governing statutes and federal regulations.
As we have noted in the past (67 Ops.Cal.Atty.Gen. 225, 230 (1984);
62 Ops.Cal.Atty.Gen. 494, 503 (1979)), California, having elected to participate in the federal
government's social welfare program, must comply with the mandatory requirements established by
Congress in the Social Security Act and implemented by regulations promulgated by the Health Care
Financing Administration of the United States Department of Health and Human Services (HCFA).
(See Burnham v. Woods (1977) 70 Cal. App. 3d 667, 673; Garcia v. Swoap (1976) 63 Cal. App. 3d
903, 909; In re Jeannie Q. (1973) 32 Cal. App. 3d 288, 297-298; X v. McCorkle (D.N.J. 1970) 333
F. Supp. 1109, 1114, affd. sub nom. Engleman v. Amos (1971) 404 U.S. 23.) The courts have held
invalid state regulations inconsistent with congressional policy regarding social welfare service
recipients. (Cf. Van Lare v. Hurley (1975) 421 U.S. 338; Townsend v. Swank (1971) 404 U.S. 282;
Lewis v. Martin (1970) 397 U.S. 552; Rosado v. Wyman (1970) 397 U.S. 397; King v. Smith (1968)
392 U.S. 309.)2
We also note preliminarily that when reviewing the validity of state administrative
regulations, the California Supreme Court has applied a uniform set of rules which we summarized
in 72 Ops.Cal.Atty.Gen. 173, 179-180 (1989) as follows:
". . . ``Where a statute empowers an administrative agency to adopt
regulations, such regulations "must be consistent, not in conflict with the statute, and
reasonably necessary to effectuate its purpose."' (Ontario Community Foundation,
Inc. v. State Bd. of Equalization (1984) 35 Cal. 3d 811, 816.) ``[T]here is no agency
discretion to promulgate a regulation which is inconsistent with the governing
statute.' (Woods v. Superior Court (1981) 28 Cal. 3d 668, 679.) ``Administrative
regulations that violate acts of the Legislature are void and no protestations that they
are merely an exercise of administrative discretion can sanctify them.' (Morris v.
Williams (1967) 67 Cal. 2d 733, 737.) ``Administrative regulations that alter or
amend that statute or enlarge or impair its scope are void and courts not only may,
but it is their obligation to strike down such regulations.' (Ontario Community
Foundation, Inc. v. State Bd. of Equalization, supra, 35 Cal.3d at 816-817, emphasis
2
We shall assume for purposes of this analysis that the federal regulations in question constitute
a valid exercise of federal administrative power.
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added.) ``It is fundamental that an administrative agency may not usurp the
legislative function, no matter now altruistic its motives are.' (Agricultural Labor
Relations Board v. Superior Court (1976) 16 Cal. 3d 392, 419.)"
1. Authorized Scope of Personal Care Services
The first issue to be addressed is whether the scope of personal care services set forth
in the state administrative regulations properly extends to paramedical services in compliance with
state and federal statutes and federal regulations. DHS's Regulation 51183, subdivision (a),3
provides in pertinent part:
"Personal care services include:
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"(9) Paramedical services . . . defined in Welfare and Institutions Code
section 12300.1 as follows:
"(A) Paramedical services include the administration of medications,
puncturing the skin or inserting a medical device into a body orifice, activities
requiring sterile procedures, or other activities requiring judgment based on training
given by a licensed health care professional.
"(B) Paramedical services are activities which persons could perform for
themselves but for their functional limitations.
"(C) Paramedical services are activities which, due to the beneficiary's
physical or mental condition, are necessary to maintain the beneficiary's health."
DSS's Regulation 30-780.1(9) incorporates the foregoing provisions verbatim.
The governing state statute, section 14132.95, expressly provides that personal care
services shall include paramedical services. Subdivision (d)(1) of section 14132.95 provides in
pertinent part:
"For purposes of this section, personal care services shall mean all of the
following:
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"(J) Paramedical services."
3
The regulations of DHS under consideration herein are contained in title 22 of the California
Code of Regulations, sections 50000 to 59999 pertaining to health care services. The regulations
of DSS at issue herein are contained in its Manual of Policies and Procedures, sections 30-700 to
30-780. The federal regulations in question adopted by HCFA are contained in title 42 of the Code
of Federal Regulations, sections 440.1 to 440.270 and sections 484.1 to 484.52 (1993). All
references hereafter to these regulations are by regulation number only.
3. 93-705
With respect to applicable federal law, HCFA's Regulation 440.170(f) provides for personal care
services "prescribed by a physician in accordance with the recipient's plan of treatment and provided
by an individual who is . . . [q]ualified to provide the services."
Hence, we find no statutory conflict with the regulations of DHS and DSS. They do
not alter or amend the governing laws or enlarge or impair the statutory language. We conclude that
under both state and federal statutes and federal regulations, the state administrative regulations
properly include paramedical services.
2. Physician Certification
The second issue to be addressed relates to the sufficiency of physician certification
for the providing of personal care services under the state administrative regulations. DHS's
Regulation 51350, subdivision (c), states as follows:
"Personal care services will be prescribed by a physician. The beneficiary's
medical necessity for personal care shall be certified by a licensed physician.
Physician certification shall be done annually."
DSS's Regulation 30-780.2 incorporates the foregoing provisions verbatim.
State statutes specify that personal care services must be "[p]rescribed in accordance
with a plan of treatment." (§ 14132.95, subd. (a)(2).) Under federal law, as previously noted,
personal care services are defined in part as services "prescribed by a physician in accordance with
the recipient's plan of treatment." (Reg. 440.170(f).)
Accordingly, we again find that the DHS and DSS regulations regarding physician
certification for the providing of personal care services do not alter, amend, enlarge, or impair the
scope of the state or federal statutes or federal regulations governing physician certification of
services. We conclude that the administrative regulations properly require physician certification
of personal care services.
3. Supervision of Care Providers
The third issue to be addressed concerns the adequacy of supervision of personal care
providers as set forth in the state administrative regulations. DHS's Regulation 51350, subdivision
(d), provides as follows:
"Registered nurse supervision consists of review of the service plan and
provision of supportive intervention. The nurse shall review each case record at least
every twelve months. The nurse shall make home visits to evaluate the beneficiary's
condition and the effectiveness of personal care services based on review of the case
record or whenever determined as necessary by staff of a designated county
department. If appropriate, the nurse shall arrange for medical follow-up. All nurse
supervision activities shall be documented and signed in the case record of the
beneficiary."
DSS's Regulation 30-780.2 incorporates the foregoing provisions verbatim.
Looking at the state statutes, we find that personal care services must be provided
"under the supervision of a registered nurse." (§ 14132.95, subd. (a)(3).) Further, personal care
services "shall be rendered, under the administrative direction of [DSS], in the manner authorized
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. . . for the [IHSS] Program." (§ 14132.95, subd. (f).) As for the applicable federal regulation,
personal care services are defined in part as those provided by an individual who is "[s]upervised
by a registered nurse." (Reg. 440.170(f).)
Accordingly, we believe that the DHS and DSS regulations requiring supervision of
care providers do not alter, amend, enlarge, or impair the scope of the governing state or federal
statutes or federal regulations. We conclude that the administrative regulations properly require
nurse supervision of care providers.
4. Standards For Care Providers
The final issue to be addressed concerns the sufficiency of the state regulations
pertaining to the qualifications of personal care providers. DHS's Regulation 51204 provides in part:
"All providers of personal care program services must be approved by
Department of Health Services and shall sign the ``Personal Care Program
Provider/Enrollment Agreement' form [SOC 426 (1/93)] designated by the
Department agreeing to comply with all applicable laws and regulations governing
Medi-Cal and the providing of personal care services. . . ."
DSS's Regulation 30-700.2 provides in part:
"The Personal Care Services Program (PCSP) provides personal care services
to eligible Medi-Cal beneficiaries . . . and is subject to all other provisions of Medi-
Cal statutes and regulations."
Under the governing state statutes, personal care services must be "[p]rovided by a
qualified person," and "[a] provider of personal care services shall be qualified to provide the service
. . . ." (§ 14132.95, subds. (a), (f).) In addition, federal law requires that personal care services must
be provided by an individual who is "[q]ualified to provide the services." (Reg. 440.170(f).) As
previously explained, personal care services are those tasks that the individuals would be able to
perform for themselves if physically capable. Neither the state nor federal statutory provisions
require a particular level of competency for performing these services.
We reject the suggestion that the DHS and DSS regulations do not satisfy all training
requirements for personal care providers contained in federal law, specifically those set forth in
HCFA's Regulation 484.36. Regulation 484.36 provides:
"(a) The aide training program must . . . total at least 75 hours, with at least
16 hours devoted to supervised practical training.
"(b) An individual may furnish home health aide services . . . only after that
individual has successfully completed a competency evaluation program as described
in this paragraph. . . ."
The specifications of Regulation 484.36 implement the federal Medicare program (title XVIII of the
Social Security Act, 42 U.S.C. § 1395). Personal care services, as already noted, are covered under
the federal Medicaid program (title XIX of the Social Security Act, 42 U.S.C. § 1396).
Similarly, DHS's Regulation 51200, subdivision (a), is inapplicable because personal
care services are not "included in the Medicare scope of benefits." This regulation states:
5. 93-705
"All providers of health care services desiring to qualify for participation in
the Medi-Cal program must be eligible to, or certified for, and participate in the
Medicare program . . . if they provide services that are included in the Medicare
scope of benefits and if they provide those services to persons who are eligible
beneficiaries of the Medicare program."
Finally, we note in this regard that the provision of title XIX of the Social Security
Act (42 U.S.C. § 1396d(a)(7)) which was amended in 1990 (Pub.L. 101-508, title IV, § 4721) to
include personal care services as an adjunct of "home health care services" was specifically deleted
in the Omnibus Budget Reconciliation Act of 1993 (Pub.L. 103-66, title XIII, § 13601(a)(1), (c)),
effective October 1, 1994. Consequently, the question of whether personal care service providers
must meet the standards established for home health care service providers has been answered by
Congress. The implementing federal regulations and state statutes and regulations will of necessity
require modification to reflect these changes in the federal statutes effective October 1, 1994.
We conclude that the DHS and DSS regulations do not alter, amend, enlarge, or
impair the scope of the state or federal statutes or federal regulations setting forth the standards for
participation as personal care providers in the PCSP.
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