CDC Affirms Medical Assistants’ Role in Telehealth

In a recent guidance on how to expand access to health care during the COVID-19 pandemic, the Centers for Disease Control and Prevention affirmed that medical assistants and other health care professionals are permitted to interact with patients by several means. Note the following from this guidance:

Telehealth Modalities

Several telehealth modalities allow [health care personnel] and patients to connect using technology to deliver health care:

Synchronous: This includes real-time telephone or live audio-video interaction typically with a patient using a smartphone, tablet, or computer.

In some cases, peripheral medical equipment (e.g., digital stethoscopes, otoscopes, ultrasounds) can be used by another HCP (e.g., nurse, medical assistant [italics added]) physically with the patient, while the consulting medical provider conducts a remote evaluation [emphasis added in red].

Asynchronous: This includes “store and forward” technology where messages, images, or data are collected at one point in time and interpreted or responded to later. Patient portals can facilitate this type of communication between provider and patient through secure messaging.

Remote patient monitoring: This allows direct transmission of a patient’s clinical measurements from a distance (may or may not be in real time) to their healthcare [sic.] provider.

Additionally, in its Telehealth Implementation Playbook, the American Medical Association listed ways in which medical assistants can use telehealth to help their overseeing physician/provider:

MEDICAL ASSISTANT (MA) OR PATIENT CARE TECH (PCT)

Be familiar with the conditions and situations that are appropriate for a telehealth visit

Educate patients on telehealth expectations

Support patient troubleshooting related to platform pre-visit and during visit

Let [the] doctor know when a patient has “checked in” for a telehealth appointment (if platform does not include this feature)

CMS Final Rule Supports Medical Assistants Performing Nasopharyngeal Swabbing

The Centers for Medicare & Medicaid Services (CMS) published an interim final rule with comment period entitled “Medicare and Medicaid Programs; Policy and Regulatory Revisions in Response to the COVID-19 Public Health Emergency” (85 FR 19247 through 19253) in the April 6, 2020, Federal Register. Its language supports my legal position that medical assistants are permitted to perform nasopharyngeal swabbing to test for COVID-19.

Note the following excerpts from this CMS rule:

Even if the patient is confined to the home because of a suspected diagnosis of an infectious disease as part of a pandemic event … a nasal or throat culture … could be obtained by an appropriately-trained [sic] medical assistant or laboratory technician. …

… Services furnished by auxiliary personnel (such as nurses, medical assistants, or other clinical personnel acting under the supervision of the [rural health clinic] or [federally qualified health center] practitioner) are considered to be incident to the visit and are included in the per-visit payment.

Continuing Education Requirements for Medical Assistant-Certified Credential in WA

In 2020, a bill (HB 2351) was introduced in the Washington State House of Representatives that would establish continuing education requirements for the medical assistant-certified credential.

I teamed up with the Washington State Society of Medical Assistants to submit comments in support of the bill to the House Health Care & Wellness Committee on January 27, 2020. These comments are presented in the May/June 2020 Public Affairs article, “Continuing Education Requirements for Medical Assistant-Certified Credential in WA,” on the AAMA website.

Information on the bill’s status is available on a dedicated webpage of the Washington State Legislature website.

Medical Assistants in Ambulatory Surgery Centers

A core part of the mission of the American Association of Medical Assistants® (AAMA) is to protect medical assistants’ scope of practice. Sometimes this work requires revealing facts and sharing legal interpretations that contradict others’ assessments.

For instance, I received the following email from a California physician:

Our ASC [ambulatory surgery center] has been recently inspected by the State of California Department of Public Health as a representative of CMS [Centers for Medicare & Medicaid Services]. We employ trained medical assistants and increase their specific training in the ASC with attention to specific duties unique to the ASC.

The California Department of Public Health has opined that it is “unlawful” to have medical assistants participate in the care of patients in an ambulatory surgery center as they are to practice in physicians’ offices and not to replace licensed, higher-qualified practitioners. …

I believe prohibiting medical assistants in an ASC is a disturbing, restrictive trend of the California Department of Public Health. We need to educate them to prevent this trend expanding and being enforced in other ASCs as the role of the medical assistant is important and a valuable support resource to our supervising, licensed staff.

I am unaware of any language in California statutes or regulations that forbids medical assistants from working under physician authority in ASCs. The only limitation in California law that addresses where medical assistants are permitted to work is in Section 2069 of the Medical Practice Act:

(e) Notwithstanding any other law, a medical assistant shall not be employed for inpatient care in a licensed general acute care hospital, as defined in subdivision (a) of Section 1250 of the Health and Safety Code.

Note the following from the Medical Board of California webpage “Is Your Medical Assistant Practicing Beyond His or Her Scope of Training?”:

The classification of medical assistant is defined under the provisions of the Medical Practice Act (Business and Professions Code sections 2069-2071) as a person who may be unlicensed who performs basic administrative, clerical, and technical supportive services under the supervision of a licensed physician, podiatrist, physician assistant, nurse practitioner, or nurse midwife.

Under the law, “technical supportive services” are simple, routine medical tasks and procedures that may be safely performed by a medical assistant who has limited training and who functions under the supervision of a licensed physician, podiatrist, physician assistant, nurse practitioner, or nurse midwife. “Supervision” is defined to require the licensed physician, podiatrist, physician assistant, nurse practitioner, or nurse midwife to be physically present in the treatment facility during the performance of those procedures.

My legal opinion is that all the tasks and duties listed for an ASC medical assistant and operating room medical assistant fall within the definition of “technical supportive services” under California law.

I am unaware of any federal laws prohibiting medical assistants working under direct physician supervision in ASCs from performing tasks allowed by California law. It is also my understanding that physician delegation to medical assistants of permitted tasks in ASCs is a community standard of practice in the state of California.

Nasopharyngeal Swabbing for COVID-19 Testing in New York

May medical assistants be delegated nasopharyngeal swabbing to check for COVID-19 in New York? Consider the following excerpt from an executive order issued by New York Governor Andrew Cuomo on declaring a state disaster emergency:

I hereby temporarily suspend or modify, from the date of this Executive Order through April 6, 2020,* the following:

…

Sections 6521 and 6902 of the Education Law, to the extent necessary to permit unlicensed individuals, upon completion of training deemed adequate by the Commissioner of Health, to collect throat or nasopharyngeal swab specimens from individuals suspected of being infected by COVID-19, for purposes of testing; and to the extent necessary to permit non-nursing staff, upon completion of training deemed adequate by the Commissioner of Health, to perform tasks, under the supervision of a nurse, otherwise limited to the scope of practice of a licensed or registered nurse;

*Note: The above executive order has been extended to June 21, 2020, and is subject to further extension by the governor (New York State Education Department).

My legal opinion is that this executive order applies to medical assistants because they are not licensed under New York law.

If your state has similar executive orders or legislation, this New York example can apply to you. Check with the AAMA State Scope of Practice Laws webpage to find key legislative materials for your state.