Home Healthcare vs. Personal Care: When is a license required?

When does
an organization that provides home services such as companionship or personal
need a state license? What is the difference between home health care
services and other care provided to seniors or medically challenged

California, there is no clear answer. 
Under Health and Safety Code section 1475(b), "All organizations
that provide skilled nursing services to patients in the home shall obtain a
home health agency license issued by the department." Skilled nursing is
defined as services provided by a registered nurse or licensed vocational
. (Health and Safety Code section 1427(b).   A "home health agency" includes
"a private or public organization, including, but not limited to, any partnership,
corporation, political subdivision of the state, or other government agency
within the state, which provides, or arranges for the provision of, skilled
nursing services, to persons in their temporary or permanent place of
residence."  Under this statute,
activities that require medical or professional judgment require a license.

There are
thousands of companies that are providing "personal care." This is
care provided to people who may need help with their day to day activities,
including bathing, shopping, cooking and cleaning.  These individuals who have no training and
they do not have any experience or education in health care related tasks.  They likewise have no bonds which could be utilized to pay in the event of some sort of damage or abuse, such as financial elder abuse.  As long as they avoid medically intensive
activities, they do not require a license.


organizations without licenses cannot, 
under Health and Safety Code section 1476:


Represent itself to be a home health agency by its name or advertisement,
soliciting, or any other presentments to the public, or in the context of
services within the scope of this chapter imply that it is licensed to provide
those services or to make any reference to employee bonding in relation to
those services.


(2) Use
the words
home health agency, home health, home-health, home health, or in-home health, or any combination of those terms, within its name.


(3) Use
the words
skilled or nursing, or any combination of those terms within its name, to
imply that it is licensed as a home health agency to provide those


persons can help with
prescribed drugs.

interpretations of the Controlled Substances Act permits a companion to handle
a drug prescribed for his or her employer in ways which are consistent with the
prescription short of actual administration of the drug and which do not
constitute the practice of medicine or nursing. 

question arises as to what is meant by "administering the drug."   This again is a gray area.  In a telephone conversation with the
Department of Healthcare, I was told that in investigations about licensure
requirements, the state investigators often will look at the condition of the patient.  Is the patient directing the unlicensed care
provider?  Could the patient administer
the drugs themselves?  Is the patient
providing direction to the care provider? 
If the patient is unable to direct such care, it is likely the care
requires a license.

 A home
care companion may administer non-prescription drugs to his or her employer in
the employer
s home under the domestic
administration of family remedies, but this only extends only to the
administration of nonprescription drugs in
the domestic environment. It does not authorize a companion to participate, by
advice or otherwise, in the diagnosis or decisions regarding the drug to use or
its dosage made by the employer or his or her physician. Nor does it authorize
the companion to administer controlled substances of any kind.

The same
questions arise with home based equipment, including oxygen, sleep apnea
machines,  dialysis machines, catheters
of various kinds, and gastrostomy feeding, among many others.  This provides a scenario for disaster for the
non-licensed care provider and the patients they serve.

Take for
example, gastrostomy feeding.  In such
cases, a surgical opening into the stomach is made which allows a tube to be
inserted in the stomach through the abdominal and stomach walls. This allows
food and fluid to be instilled directly into the stomach from outside the body
when swallowing is impossible because of complete obstruction of the esophagus.
It is also sometimes used temporarily after operations on the esophagus or for
postoperative decompression in preference to nasogastric intubation. During
gastrostomy feeding the patient must be upright lest the danger of aspiration
or regurgitation occur. Precaution is required in handling the gastrostomy tube
which has been either fastened in place with sutures or has been anchored in
place with tape depending on the type of gastrostomy tube used, a
small-diameter rubber, perforated tube or a Foley catheter.

 With the
gastrostomy feeding itself, one first instills a clear liquid to make sure the
tube is open and, again, feeding is gentle using gravity or slow infusion. At
all times the tube must be kept open, because should it become clogged or
blocked, or accidentally removed, further intervention will be necessary to
replace it. The task of feeding is not in itself particularly difficult, but it
does require a studied knowledge and understanding of the principles involved,
an ability to recognize signs of potential complication, and an appreciation
for the potential for yet another intervention on the weakened patient.

the requirements for such care, the California Attorney General advised that
such conduct requires "substantial scientific knowledge and technical
skill."  Even though many people
complete such procedures at home, home care providers are not allowed under the
law to provide such service without a license. 
As stated by the Attorney General, "We are bolstered in this
assessment by title 42, Code of Federal Regulations, section 409.33(b)
governing Medicare eligibility for payments for skilled nursing services
Levin tube and gastrostomy
as services which qualify as
skilled nursing services. Stedman
s Medical Dictionary, 5th ed.,
defines Levin tube as a tube introduced through the nose into the upper
alimentary canal.  Accordingly these
procedures come within the statutory definition of the practice of nursing and
therefore may only be performed in California by licensed nurses and


California Legislature is currently reviewing bills to license home care
providers who do work other than healthcare. This article in California Healthline details some of the most recent efforts.

proposed regulations could serve to clarify when a license is required, but
will certainly drive up the cost of such care, making it out of reach for many
of our seniors and medically challenged.   Questions about whether a license is required should be directed a lawyer with knowledge of these regulations.