A Waiver for an Outdated Regulation?

A waiver is defined in Title 22 as a “variance to a specific regulation based on a facility-wide need or circumstance which is not typically tied to a specific resident or staff person.” In a DSS “provider information notice” (PIN) it states a facility must seek a waiver if a healthcare professional, other than a physician, signs the physician’s report or medical assessment. Section 87458(a) states in part “…documentation of a medical assessment, signed by a physician….”

Health & Safety Code 1569.30 requires DSS to write “regulations…not inconsistent with any statute of this state,” and 87458 is inconsistent. Nurse practitioners (NPs) and physician assistants (PAs) under Title 22 section 53810(gg) may act as “primary care providers.” Business and Professions Code 2837 authorizes “a nurse practitioner…to perform specified acts.” Public Law 111-48 states, “The Institute of Medicine of the National Academies has recommended full practice authority for nurse practitioners.
Furthermore, nurse practitioners will assist in addressing the primary care provider shortage by removing delays in the provision of care that are created when dated regulations require a physician’s signature or protocol before a patient can initiate treatment or obtain diagnostic tests”
(emphasis added).

Title 22 has a “dated regulation,” 87458. NPs and PAs can, without the oversight or signature of a physician, “perform a physical exam,” and “establish a diagnosis by client history, physical examination;” and “order, furnish, prescribe, or procure drugs or devices.”

According to the American Academy of Physician Assistants, PAs take histories, perform physical exams, order diagnostic and therapeutic procedures, formulate working diagnoses, and develop and implement treatment plans, all independent of a physician. However, DSS PIN 19-01- ASC insists a waiver must be obtained for a facility to accept a resident’s medical assessment signed by a licensed medical professional other than a physician. That regulation is “dated.” PAs and NPs can sign medical assessments and facility should not have to get a waiver from a clearly outdated (inconsistent with law) regulation.

Business and Professions 2837 made 87458 “dated,” but DSS prefers memos over regulation updates.