Is Medical Assisting Governed by State Law or Federal Law?

Like most other health professions, medical assisting is governed primarily by state law. This is due to the wording of the Tenth Amendment to the United States Constitution:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Because the power to regulate professions and occupations is not delegated to the United States Congress in Article I of the Constitution, it remains within the sovereign authority of each state. This authority includes establishing education and credentialing prerequisites for the practice of a profession, delineating legal and ethical responsibilities for the professionals, and issuing and enforcing disciplinary standards for breaches of these responsibilities.

Therefore, the legal scope of practice of medical assistants (which is coterminous with the legal authority of licensed health care providers to delegate to medical assistants) is established by state legislation, regulations and policies of state boards that regulate health professionals who delegate to medical assistants, and common law principles arising from court decisions and usual and customary practice. Federal law, however, sometimes impacts medical assisting scope of practice. The meaningful use regulations of the Centers for Medicare & Medicaid Services (CMS) are a current and significant example. Federal statute and CMS rule require a certain percentage of medication/prescription, laboratory, and diagnostic imaging orders to be entered into the computerized provider order entry (CPOE) system by licensed health care professionals or “credentialed medical assistants” in order for a licensed eligible professional to receive incentive payments under the Medicaid Electronic Health Record (EHR) Incentive Program.

Delegation from Varying Licensed Providers

Determining whether you are successfully working within your legal scope of practice as a medical assistant requires recognizing some situational nuances, especially on the matter of delegation. The following demonstrates one such instance:

I work in an outpatient practice setting. At times, I work under the authority and supervision of a physician. At other times, I work under the authority of a nurse practitioner or a physician assistant. I have been informed that my legal scope of practice is the same regardless of which licensed provider is assigning tasks to me. Is this correct?

Not necessarily. Under the laws of most states, the medical assistants’ scope of practice is determined by the practice act and regulations of the delegating provider.

For example, the nurse practice act and the regulations and policies of the state’s board of nursing determine which tasks nurses (including advanced practice registered nurses [APRNs], such as nurse practitioners) are permitted to delegate to medical assistants.

On the other hand, the medical practice act and the regulations and policies of the state’s board of medical examiners delineate which duties physicians are allowed to assign to medical assistants. And physician assistant delegation authority is established by other state statutes, regulations, and policies.

There are legal nuances that must be taken into consideration. Some states permit nurse practitioners to work autonomously and without a collaborative practice agreement with a physician. In these states the delegation authority of autonomous nurse practitioners is determined by the nurse practice act and the rules of the board of nursing.

However, nurse practitioners in an independent-practice state may choose to work under physician authority and supervision, and physicians may assign nurse practitioners to oversee medical assistants who are performing tasks delegated to them by a physician. In such a case, both the medical practice act and the nurse practice act may have a bearing on the scope of practice of a medical assistant.

ISMA urges Indiana physicians to hire competent medical assistants

A resolution supporting medical assistants and CMAs (AAMA) was adopted by the House of Delegates of the Indiana State Medical Association (ISMA) in September 2018. The resolution was introduced by William W. Pond, MD. Tammy Daily, CMA (AAMA), liaison to the ISMA from the Indiana Society of Medical Assistants, and I helped craft the final language of the resolution. To read the adopted resolution, access the January/February 2018 Public Affairs article, “ISMA urges Indiana physicians to hire competent medical assistants,” on the AAMA website.

Who Is Eligible for an NPI?

Determining who’s eligible for a National Provider Identifier (NPI) number may require some research, which is why, in part, I recently received the following request:

Mr. Balasa, I read with interest the following from your recent post to Legal Eye, “Medical Assistants and Incident-to Billing”:

Medical assistants do not have National Provider Identifier (NPI) numbers because they are not reimbursed directly by Medicare for their services. Rather, their services may only be billed and reimbursed incident to the services of the delegating provider.

Could you please provide documentation of which health professionals are and are not eligible for an NPI number?

Medical assistants whose employers request them to get an NPI number may use the following documentation to educate and provide clarity to employers and coworkers.

Note the following from a Centers for Medicare & Medicaid Services (CMS) fact sheet:

• Who? All individuals and Organizations who meet the definition of health care provider as described at CFR 160.103 are eligible to obtain a National Provider Identifier, or NPI.

Note the following definition from 45 CFR 160.103:

Health care provider means a provider of services (as defined in section 1861(u) of the Act, 42 U.S.C. 1395x(u)), a provider of medical or health services (as defined in section 1861(s) of the Act, 42 U.S.C. 1395x(s)), and any other person or organization who furnishes, bills, or is paid for health care in the normal course of business.

Section 1861(s) of the Social Security Act does not contain a reference to medical assisting services. It references explicitly the services of the following health professionals:

• Physicians
• Nurse practitioners
• Physician assistants
• Certified nurse-midwives
• Qualified psychologists
• Clinical social workers
• Certified registered nurse anesthetists

Therefore, according to federal statute and CMS rule, medical assistants are not considered health professionals who are eligible for NPI numbers.

Medical Assistants and Incident-to Billing

What is meant by the statement that the services of a medical assistant must be billed “incident to” the services of the delegating physician for the physician to be reimbursed for the medical assistant’s services under Medicare?

Legally, medical assistants work under direct/onsite provider (e.g., physician, nurse practitioner, physician assistant) supervision and authority in outpatient settings. Medical assistants do not have National Provider Identifier (NPI) numbers because they are not reimbursed directly by Medicare for their services. Rather, their services may only be billed and reimbursed incident to the services of the delegating provider.

Note the following from the Medicare Benefit Policy Manual:

Incident to a physician’s professional services means that the services or supplies are furnished as an integral, although incidental, part of the physician’s personal professional services in the course of diagnosis or treatment of an injury or illness. …

Auxiliary personnel means any individual who is acting under the supervision of a physician, regardless of whether the individual is an employee, leased employee, or independent contractor of the physician, or of the legal entity that employs or contracts with the physician. …

Thus, where a physician supervises auxiliary personnel to assist him/her in rendering services to patients and includes the charges for their services in his/her own bills, the services of such personnel are considered incident to the physician’s service if there is a physician’s service rendered to which the services of such personnel are an incidental part.

For more information, see my Public Affairs article from the March/April 2018 CMA Today: “Medicare CCM and TCM Programs: Defining Medical Assistants’ Roles and Services.”