DSS’ website states Provider Information Notices (PIN) did not appear until late 2016. It previously used “Provider Letters and CCLD Information Releases” to “…formally communicate important license-related information to CCLD-licensed providers.” The information may be useful and timely, but the content of a PIN is not legally enforceable.
The problem has always been the problem, but that problem is a good problem, and the problem is not going away. The problem for DSS is California law does not allow it to use PINs, letters, or releases as substitutes for state regulations.
For example, a January 10, 2019 PIN, 19-01-ASC, claimed all medical assessments to admit RCFE residents could only be “signed by a physician” as stated in Title 22 section 87458(a). The PIN claimed an RCFE had to obtain a waiver to allow a non-physician to conduct and sign the medical assessment. However, Health and Safety Code 1569.30 does not allow DSS to enforce anything “inconsistent with any statute of this state.” [For ARFs, Title 22 section 80069(a)(1) allows medical assessments to be “performed by a licensed physician or designee.”] For RCFEs to obtain a waiver to an outdated regulation makes no legal sense.
Are there laws allowing a physician assistant and nurse practitioner to perform a physical exam and sign it?
Yes, there are: US Public Law 111-148; California Business and Professions Code, Division 2, Chapter 6, 2834 – 2837, Nurse Practitioners; and Business and Professions Code, Division 2, Chapter 7.7, Article 1, the Physician Assistant Practice Act. However, the PIN upholds the obsolescence of the regulation and ignores state and federal law.
California Government Code 11340.5 prevents all state agencies from issuing and enforcing memos, PINs, letters, releases, manuals, etc., unless the PINs, letters, releases, manuals, have been adopted as a regulation.
During the recent state of emergency, the state’s constitution and its emergency services act allowed special powers and authority to be used to “preserve public health” for a period of time “not to exceed the duration of the emergency.”
The emergency is over and so is the need for more PINs!
A PIN cannot and does not create a new policy and procedure or regulation. An evaluator cannot enforce PIN compliance because the law prevents all agencies from issuing, using, enforcing or attempting to enforce anything not adopted as a regulation. A citation or deficiency cannot be based upon anything other than an adopted state regulation or chaptered state law. No PINs allowed.