Although the principles underlying participant direction support a social rather than a medical service model, avoiding the medical model can be complicated by state laws and regulations concerning the performance of skilled nursing tasks. Federal Medicaid policy does not dictate who must perform skilled nursing tasks, merely that such tasks be performed in compliance with applicable state laws. But state laws and regulations often dictate that such tasks be performed by or closely supervised by a licensed nurse--thereby creating obstacles to participant direction service models. Liability concerns--particularly when participants have extensive medical and nursing needs--can also stand in the way of promoting participant direction.
To avoid duplicating Home Health benefits already available through Medicare or under the Medicaid State Plan, many HCBS waiver programs do not offer skilled nursing or rehabilitative therapies. However, skilled paraprofessional services may still be provided by personal care workers under HCBS waivers or under the State Plan Personal Care benefit--as long as the services are provided in conformity with the states Nurse Practice Act. A 1999 CMS State Medicaid Manual transmittal specifically states that
Services such as those delegated by nurses or physicians to personal care attendants may be provided so long as the delegation is in keeping with state law or regulation and the services fit within the personal care services benefit covered under a states plan. Services such as assistance with medications would be allowed if they are permissible in states Nurse Practice Acts, although states need to ensure that the personal care assistant is properly trained to provide medication administration and/or management.82
This policy and its applicability to State Plan Personal Care programs and HCBS waiver programs were reaffirmed in a July 2000 State Medicaid Director Letter.83
Most states restrict performance of medical or skilled nursing tasks to licensed medical professionals, although most physician and nurse licensing laws do permit individuals to be trained to perform these tasks for themselves or for close family members. Federal Medicaid law references state licensing laws by requiring that Medicaid State Plans comply with all applicable state and local statutes. Under the Nurse Practice Acts in most states, tasks that require nursing judgment--such as medication administration--and tasks considered to be invasive procedures--such as catheterization and injections--may be performed only by paid personnel who are registered nurses or persons supervised by registered nurses.
Issues related to the performance of skilled nursing tasks stem from concerns about quality assurance and liability. (See the Appendix for an overview of CMS requirements for quality management and improvement systems.)
See the Resources section of this chapter for a link to the chapter on Self-Direction and Health Care in Developing and Implementing Self-Direction Programs and Policies: A Handbook, which includes a detailed discussion of liability issues related to the performance and delegation of skilled nursing tasks, and ways in which states have addressed them.