The Delegation of Off-Site Blood Draws in WA

In-home patient visits necessitated by COVID-19 raise questions about the scope of practice for medical assistants working off-site. For example, I received the following email from a Washington chief of primary care regarding delegation during off-site visits:

We are instituting programs where medical assistants see patients in their homes and help set them up for video visits [in response to COVID-19]. Many of our providers are requesting [laboratory work] from these appointments. [Can] a phlebotomy-certified medical assistant draw blood if a provider is not in attendance and the patient is doing a video visit with the provider?

To answer this question, note the following excerpt from the Washington statutes, especially the italicized, underlined language at the end of this excerpt:

RCW 18.360.010

Definitions. (Effective until July 1, 2022.)

The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.

(1) “Administer” means the retrieval of medication, and its application to a patient, as authorized in RCW 18.360.050.

(2) “Delegation” means direct authorization granted by a licensed health care practitioner to a medical assistant to perform the functions authorized in this chapter which fall within the scope of practice of the health care provider and the training and experience of the medical assistant.

(3) “Department” means the department of health.

(4) “Forensic phlebotomist” means a police officer, law enforcement officer, or employee of a correctional facility or detention facility, who is certified under this chapter and meets any additional training and proficiency standards of [their] employer to collect a venous blood sample for forensic testing pursuant to a search warrant, a waiver of the warrant requirement, or exigent circumstances.

(5) “Health care practitioner” means:

(a) A physician licensed under chapter 18.71 RCW;

(b) An osteopathic physician and surgeon licensed under chapter 18.57 RCW; or

(c) Acting within the scope of their respective licensure, a podiatric physician and surgeon licensed under chapter 18.22 RCW, a registered nurse or advanced registered nurse practitioner licensed under chapter 18.79 RCW, a naturopath licensed under chapter 18.36A RCW, a physician assistant licensed under chapter 18.71A RCW, an osteopathic physician assistant licensed under chapter 18.57A RCW, or an optometrist licensed under chapter 18.53 RCW.

(6) “Medical assistant-certified” means a person certified under RCW 18.360.040 who assists a health care practitioner with patient care, executes administrative and clinical procedures, and performs functions as provided in RCW 18.360.050 under the supervision of the health care practitioner.

(7) “Medical assistant-hemodialysis technician” means a person certified under RCW 18.360.040 who performs hemodialysis and other functions pursuant to RCW 18.360.050 under the supervision of a health care practitioner.

(8) “Medical assistant-phlebotomist” means a person certified under RCW 18.360.040 who performs capillary, venous, and arterial invasive procedures for blood withdrawal and other functions pursuant to RCW 18.360.050 under the supervision of a health care practitioner.

(9) “Medical assistant-registered” means a person registered under RCW 18.360.040 who, pursuant to an endorsement by a health care practitioner, clinic, or group practice, assists a health care practitioner with patient care, executes administrative and clinical procedures, and performs functions as provided in RCW 18.360.050 under the supervision of the health care practitioner.

(10) “Secretary” means the secretary of the department of health.

(11) “Supervision” means supervision of procedures permitted pursuant to this chapter by a health care practitioner who is physically present and is immediately available in the facility. The health care practitioner does not need to be present during procedures to withdraw blood, but must be immediately available [emphasis added].

My legal opinion is that the above language permits licensed providers to assign to medical assistants who are off-site in the homes of patients the performing of phlebotomy/venipuncture as long as the delegating/overseeing provider is immediately available, such as by video or audio means.

What tasks are delegable to—and performable by—medical assistants?

The scope of work for most health care professionals—including medical assistants—has expanded during the COVID-19 pandemic.

In the November/December 2020 Public Affairs article, I discuss current scope of practice for medical assistants and delegation considerations. Adapted from the handout I used for my presentation of the same title for the 2020 American Academy of Ambulatory Care Nursing Annual (Virtual) Conference, this article reviews four legal axioms and how they can be applied to determine which tasks are delegable to—and performable by—medical assistants. It also debunks three pervasive myths about medical assistants’ scope of practice and proffers diagnostic questions for ascertaining the legality of a specific task.

Review details on the legality of delegating certain tasks by reading “What tasks are delegable to—and performable by—medical assistants? Part I” on the AAMA website. And stay tuned for “Part II,” which will be published in the January/February 2021 issue of CMA Today.

Connecticut COVID-19 Crisis Necessitates Medical Assistants Administering Vaccinations

On Monday, December 14, the AAMA and its Connecticut Society of Medical Assistants, in conjunction with the Fairfield and Hartford County Medical Associations, sent Connecticut Governor Ned Lamont a letter asking him to issue an executive order allowing knowledgeable and competent medical assistants to administer COVID-19 vaccinations under the authority and supervision of licensed providers. Read the full letter here: 

Dear Governor Lamont: 

I am writing on behalf of the American Association of Medical Assistants^® (AAMA), the national professional society representing over 80,000 members and CMAs (AAMA)^®, and the Connecticut Society of Medical Assistants, an affiliated state society of the AAMA. 

With COVID-19 vaccinations beginning in the United States, the Centers for Disease Control and Prevention (CDC) published the COVID-19 Vaccination Program Interim Playbook for Jurisdiction Operations. The purpose of this publication is to assist state and local public health programs “to plan and operationalize a vaccination response to COVID-19 within their jurisdictions.” Note the reference to medical assistants as “vaccinators” on page 22 of this CDC publication: 

Verify COVID-19 vaccination providers have active, valid licensure/credentials to possess and administer vaccine. This licensure verification is needed only for those with prescribing authority [e.g., MD, DO, RPh, NP, PA] who will oversee COVID-19 vaccine administration. Credential verification is not required for vaccinators who work under the authority of someone with a higher level of licensure (i.e., not required for pharmacy techs/interns, RNs, LPNs, medical assistants, etc.). [emphase​s added] 

As demand for allied health professionals to administer the COVID-19 vaccines has started to increase rapidly, state governors have issued executive orders waiving certain elements of their state law to enable knowledgeable and competent medical assistants to be delegated, and to perform, COVID-19 vaccinations. For example, on December 4, 2020, Tennessee governor Bill Lee issued Executive Order No. 68: An Order to Facilitate the Continued Response to COVID-19 By Increasing Health Care Resources and Capacity. In part, this order authorizes “medical assistants certified by the American Association of Medical Assistants [to be delegated] tasks that would normally be within the practical nurse scope of practice, including, but not limited to, administration of COVID-19 vaccinations.” Tasks delegable to certified medical assistants “are required to have been ordered and authorized by a Tennessee licensed practitioner with prescriptive authority” and “performed under the supervision of the delegating registered nurse.” 

Also, state departments of health have clarified (as necessary) the fact that COVID-19 vaccinations may be delegated to, and may be administered by, knowledgeable and competent medical assistants. For example, the Washington State Department of Health published a list of health professionals permitted to administer the COVID-19 vaccine under licensed provider authority and supervision. Note the following: 

Medical assistant-certified 

Can administer vaccines? Yes 

Requires supervision? Yes 

Task must be delegated by a provider with the activity in their scope of practice: MD/DO, RN, ARNP, Naturopathic Physician, PA/DOPA. The requirements for the supervising health care practitioner to be physically present and immediately available in the facility are waived under Governor Inslee’s Proclamation 20-32. The supervisor only has to be immediately available, which may be by remote means. 

Issuing executive orders allowing medical assistants to administer COVID-19 vaccinations is consistent with similar measures that have been taken under federal and state law in regard to medical assistants performing nasopharyngeal swabbing for COVID-19 testing. 

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 the 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 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. [emphases added] 

The New York State Board of Medicine has taken the position that unlicensed allied health professionals such as medical assistants may not be delegated by physicians certain invasive procedures. In response to the early crisis period of the COVID-19 pandemic, New York Governor Andrew Cuomo declared a state disaster emergency that included the following provisions: 

I hereby temporarily suspend or modify … 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; 

In light of the aforementioned federal and state precedents, and the great need to deploy competent unlicensed allied health professionals to supplement the current licensed allied health workforce in administering COVID-19 vaccinations, the American Association of Medical Assistants and the Connecticut Society of Medical Assistants urge you to issue an executive order permitting medical assistants to administer COVID-19 vaccinations under the authority of licensed providers such as physicians (MDs/DOs), nurse practitioners, physician assistants, and pharmacists. 

Thank you for your consideration, Governor Lamont. Feel free to direct questions to me at dbalasa@aama-ntl.org and 800/228-2262. 

Delegation of COVID-19 Vaccinations in Tennessee

On December 4, 2020, Tennessee governor Bill Lee issued Executive Order No. 68: An Order to Facilitate the Continued Response to COVID-19 By Increasing Health Care Resources and Capacity. In part, this order authorizes “medical assistants certified by the American Association of Medical Assistants [to be delegated] tasks that would normally be within the practical nurse scope of practice, including, but not limited to, administration of COVID-19 vaccinations.” Tasks delegable to certified medical assistants “are required to have been ordered and authorized by a Tennessee licensed practitioner with prescriptive authority” and “performed under the supervision of the delegating registered nurse.”

According to the March 20, 2018, Policy Statement: Delegation of Medical Services by the Tennessee Board of Medical Examiners, physicians are permitted to delegate to supervisees (including educated and/or trained and currently competent medical assistants) in their medical practices “tasks … of the type that a reasonably prudent physician would find within the scope of sound medical judgment to delegate.” Such delegated tasks “may only be performed while the physician is either on-site or immediately available (i.e., telephone, video conferencing) for communication and consultation, as appropriate.”

Executive Order No. 68 provides evidence that the administration of COVID-19 vaccinations is a task “that a reasonably prudent physician would find within the scope of sound medical judgment to delegate” in the medical practice or clinic to an educated and/or trained and currently competent medical assistant.

Permissible Medication Reconciliation by Medical Assistants

I recently received a question from a medical assistant who had developed a PowerPoint for her employer about medication reconciliation. While her managers approved her work, she was concerned that a second PowerPoint created by another employer group contradicted some of the points she made about medication reconciliation.

In response, the medical assistant asked me whether it is correct—as she wrote in her PowerPoint—to say that medical assistants can note in the medical record the fact that a patient is no longer taking a medication.

Note the following excerpt from the handout I used during my presentation this summer for the American Academy of Ambulatory Care Nursing. This provides a general legal rule about the scope of practice of medical assistants in all states:

General legal principles—

• It is not permissible for medical assistants to perform tasks that are restricted in state law to other health professionals—often licensed health professionals;
• It is not permissible for medical assistants to perform tasks that require the exercise of independent clinical judgment, and/or the making of clinical assessments, evaluations, or interpretations;⁵
• Medical assistants must not be delegated (and must not perform) any tasks for which they are not sufficiently knowledgeable and competent

I believe the confusion between the two PowerPoints is based on a different understanding of terms. The medical assistant’s position is that medical assistants are permitted to remove a medication from a patient’s list of medications based on the patient’s statement only to inform the provider that, for example, another provider has discontinued a medication. The current provider can then determine whether they agree with the other provider about the discontinuation of the medication or whether they think that the patient should resume taking the medication.

I suspect that the other employer group’s PowerPoint slides define the removal of medication as a decision by the provider to remove medications from the list of medications the patient should be taking. A decision about what medications a patient should be taking can only be made by a licensed provider.

Note the following excerpt from my opinion letter on medication reconciliation (note a related Legal Eye blog post):

[Medication reconciliation, as defined by the Joint Commission,] “ … comprises five steps: (1) develop a list of current medications; (2) develop a list of medications to be prescribed; (3) compare the medications on the two lists; (4) make clinical decisions based on the comparison; and (5) communicate the new list to appropriate caregivers and to the patient.”

It is my legal opinion that knowledgeable and competent medical assistants can be assigned steps 1, 2, and 3 as long as step 2 entails compiling a list of prescribed medications from the prescription orders of providers. However, step 4 requires the exercising of independent professional judgment and the making of clinical assessments. Therefore, in my judgment, medical assistants cannot be assigned step 4. In regard to step 5, medical assistants can communicate verbatim new lists of medications as specifically approved by the overseeing/delegating provider and only when the provider directs the medical assistant to do so.

Step 3 above involves comparing the list of medications in the patient’s record with the patient’s statement about the discontinuation of medications. My legal opinion is that a medical assistant is permitted to perform this task, delete any medications from the list based on the patient’s statement only for the purpose of informing the licensed provider, and submit the list for evaluation by the provider. The provider must decide to accept the discontinuation of a medication or to reinstate it in the patient’s list of medications.

Therefore, I agree with the medical assistant who reached out to me that medical assistants are permitted by federal and Texas law to eliminate a medication from a list for the purpose of informing the provider. In such situations, medical assistants do not make any clinical decisions based on the comparison of the previous and current medication lists, which is the responsibility of the licensed provider.