Centers for Medicare & Medicaid Services, CMS Rule, delegation, Scope of Practice

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.

30 thoughts on “CMS Final Rule Supports Medical Assistants Performing Nasopharyngeal Swabbing”

  1. I feel we as CMA’s due not get the pay or recognition to perform the COVID Testing. Let the LPN’s and nurses get them done. We are not allowed to give injections in Ct or Ny why should we put ourselves and out families at risk. ????

  2. I guess what I am looking for clarification is, it seems that the language supports the Medical Assistant doing nasopharyngeal swabs for covid in home based care, it does not state or reflect for care in the clinic. For example my organization does covid testing, currently the medical assistants are used in the tent to help package and process the specimen before it goes to the lab. The RN or LPN collects the swab. It would be beneficial to my organization if the MA’s could collect the sample as we have an abundance of MA’s vs LPN’s and RN’s.
    Could you please clarify if this would also pertain to the clinic setting or just home bound?

        1. Thank you for your question. It is my legal opinion that New Hampshire law permits physicians to delegate to knowledgeable and competent medical assistants the performing of nasopharyngeal swabbing. I will forward documentation to your email address.

          Donald A. Balasa, JD, MBA
          CEO and Legal Counsel, AAMA
          dbalasa@aama-ntl.org

          1. Thank you for your question. It is my legal opinion that Texas law permits medical assistants to be delegated, and to perform, nasopharyngeal swabbing for COVID-19 testing if a physician is not on the premises as long as a licensed health professional, such as a registered nurse, is on the premises and immediately available.

            I will send documentation to your email address.

            Donald A. Balasa, JD, MBA
            CEO and Legal Counsel, AAMA
            dbalasa@aama-ntl.org

    1. Thank you for your question. Note the following from the FAQs of the Medical Board of California in the Scope of Practice Laws section of website, accessible by clicking below State Scope of Practice Laws near the left bottom of our home page:
      Are medical assistants allowed to perform nasal smears?
      Yes. Only if the procedure is limited to the opening of the nasal cavity.
      ……
      Are medical assistants allowed to swab the throat in order to preserve the specimen in a throat culture?
      Yes. Medical assistants are allowed to swab throats as long as the medical assistant has received the proper training and a physician or podiatrist is on the premises.
      According to California law, the above also applies to nurse practitioners and physician assistants delegating to medical assistants.

      The answer to the first question above would seem to not permit medical assistants to perform nasopharyngeal swabbing because this task is not “limited to the opening of the nasal cavity.”

      To my knowledge, California is the only state that has not temporarily set aside its law to allow medical assistants to perform nasopharyngeal swabbing.

      I hope this is helpful.

      Donald A. Balasa, JD, MBA
      CEO and Legal Counsel, AAMA
      dbalasa@aama-ntl.org

    1. Thank you for your question. It is my legal opinion that Tennessee law permits physicians to assign to knowledgeable and competent medical assistants the performing of nasopharyngeal swabbing. I will send documentation to your email address.

      Donald A. Balasa, JD, MBA
      CEO and Legal Counsel, AAMA
      dbalasa@aama-ntl.org

      1. Can CMA’s collet nasopharyngeal swabs in Minnesota? Our clinic is telling us we can but I didn’t think we could. Thanks in advance.

    1. Thank you for your question. It is my legal opinion that Oregon law permits physicians to delegate to knowledgeable and competent unlicensed allied health professionals such as medical assistants the performing of nasopharyngeal swabbing. I will send details to your email address.

      Donald A. Balasa, JD, MBA
      CEO and Legal Counsel, AAMA
      dbalasa@aama-ntl.org

  3. Hello,
    Does California allow Medical Assistants to perform nasal swabs? I work for a Rural Health Center and we tend to go out to the farms and test workers there.

    Thank you!

    1. Thursday, September 24, 2020

      Thank you for your question. California may be the only state that has language in its laws that do not allow medical assistants to be delegated, and to perform, nasopharyngeal swabbing. Note the following from the FAQs of the Medical Board of California accessible in the California subsection of our State Scope of Practice Laws section of our website:
      Are medical assistants allowed to perform nasal smears?
      Yes. Only if the procedure is limited to the opening of the nasal cavity.
      Of course, nasopharyngeal swabs are not “limited to the opening of the nasal cavity.”

      Governor Newsom has not issued an executive order setting aside this interpretation of California law.

      I hope this is helpful.

      Donald A. Balasa, JD, MBA
      CEO and Legal Counsel, AAMA
      dbalasa@aama-ntl.org

      1. Hi, can you tell me if anything has changed in California since you posted this response in September 2020? Has the Governor allowed any additional waivers since then? Also, if CMAs can do “nasal smears,” can they can collect nasal specimens for COVID testing that don’t require the more invasive NP swabbing?

        Thank you!

        1. Thank you for your question. I have been continuing to monitor the California law and have not seen any changes since September of 2021.

          The “Frequently Asked Questions” of the Medical Board of California contain the following entry:
          Are medical assistants allowed to perform nasal smears?
          Medical assistants may perform nasal smears if the procedure is limited to the opening of the nasal cavity.

          It is my legal opinion that CA law permits medical assistants to be delegated, and to perform, nasal smears “limited to the opening of the nasal cavity” for any purposes, including COVID-19 testing. The key point of the California law (as interpreted and enforced by the Medical Board of California) is that medical assistants are not permitted to do any nasal smears that go beyond the opening of the nasal cavity.

          I hope this is helpful.

          Donald A. Balasa, JD, MBA
          CEO and Legal Counsel, AAMA
          dbalasa@aama-ntl.org

  4. Hello, I have been searching for Ohio’s ruling and cannot find it. I would appreciate it if you could send me the link where it states Ohio has allowed for MA’s to do nasopharyngeal swabs. Thank you in advance.

    1. Thank you for your question. It is my legal opinion that Ohio law permits physicians to delegate to knowledgeable and competent medical assistants working under their authority and supervision the performing of nasopharyngeal swabbing. I will send excerpts from the Ohio law to your email address.

      Donald A. Balasa, JD, MBA
      CEO and Legal Counsel, AAMA
      dbalasa@aama-ntl.org

      1. I would like to receive excerpts from the Ohio law as I too have searched for the rules on who can swab in Ohio.

  5. For the states that allow MAs to perform Nasopharyngeal swabs – does an MD need to be present? For example the Covid testing sites that are not located in a Drs office – can the MAs working at these locations swab? Do they need to have direct supervision from an MD (i.e the MD needs to also be on site at the location)

    Thanks

      1. We are located in 15 different states. Most of our sites are in CA. But we are also in NV, AZ, UT, OR, TX, MI, GA, ID, FL, NV, CO. I know this will be a long one to answer, but I really appreciate any info you can give me on this.

  6. In Arizona, can MAs perform a nasopharyngeal swab for COVID? Is it for COVID only or would they be able to perform nasopharyngeal swabbing for other tests?

    1. Thank you for your question. Go to http://www.aama-ntl.org and click below “State Scope of Practice Laws” near the left bottom of the homepage. You will be able to find the medical assisting law of all states, including Arizona.

      It is not from Arizona law whether medical assistants are permitted to be delegated, and to perform, nasopharyngeal swabbing. I suggest that you direct your question to the Arizona Medical Board and ask whether physicians are permitted to delegate to medical assistants the performing of nasopharyngeal swabbing. I will send to your email the contact information for the AZ Medical Board.

      I hope this proves to be helpful.

      Donald A. Balasa, JD, MBA
      CEO and Legal Counsel, AAMA
      dbalasa@aama-ntl.org

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