Nurse practitioners in California are understandably confused about their legal ability to order home health care for their patients. The mix-up is due to a series of government actions – and in some cases inaction – since the beginning of the COVID-19 pandemic. 
The good news is that NPs now have the legal authority – both federal and state – to order, certify and recertify home health care.
The bad news is that state bureaucratic snafus are still preventing many from doing so without the signature of a physician.
Here’s what we know.
Prior to the pandemic, NPs in California could not order home health care without a physician’s signature because of the home health regulation laid out in Title 22, the regulations set forth by the state Department of Health Care Services (DHCS).
On March 13, 2020 after the pandemic hit, the Trump administration authorized the Centers for Medicaid & Medicare Services (CMS) to issue waivers of certain federal regulations to allow health care providers more flexibility to respond to the public health emergency. This included allowing physician assistants, clinical nurse specialists and NPs the ability to order home health care without a physician signature.
On March 27, 2020, the national Coronavirus Aid, Relief, and Economic Security (CARES) Act was signed into law, which permanently codified the emergency authorization that enabled NPs, clinical nurse specialists and PAs to order home health care.
California is one of 11 states with additional restrictions for home health orders, so to align with the CARES Act provision, in August 2020 the state created a State Plan Amendment (SPA 20-0035) designed to change the regulations. It took effect on Oct 1, 2020.
But the SPA apparently was not shared between the California Department of Public Health (CDPH) and the DHCS. In July of 2021 CDPH put out an all-facilities letter (AFL 20-72.1) announcing that the Health Emergency waiver was to expire and would end the ability of advanced practice providers to continue to order home health care. CDPH did not clarify that this specific action had also been permanently codified in state regulations on Oc. 1, 2020.
That meant that when the emergency waiver expired on Sept. 30, 2021, home health agencies began to deny requests by NPs for home health care without a physician signature. Patients were effectively denied the care they needed, while NPs were again forced to secure physician signatures, said Surani Kwan, DNP, FNP, who has taken on the matter on behalf of the state’s NPs.
To remedy the situation, Kwan asked for help from the California Hospital Association, HealthImpact and the Gerontological Advanced Practice Nurses Association. She then created a letter to the CDPH and a letter to the DHCS on behalf of CANP requesting that they clarify their regulations to be consistent with federal regulations and SPA 20-0035, update the Provider Manual and inform home health care providers that advanced practice providers can order and reorder home health care without a physician signature as it is within their scope of practice.
“Home Health services are vital to our community dwelling older adults,” wrote CANP President Patti Gurney, MSN, NP-BC. “The ability for our patients to receive timely admissions to these skilled services in their homes is often the difference between their ability to remain at home or be hospitalized unnecessarily.”
Kwan noted that AB 890, the bill passed in 2020 granting NPs full practice authority in California, will also give NPs the ability to order and reorder home health care for their patients, but the regulations needed to implement this new law have not yet been set by the California Board of Registered Nursing.