covid-19, Scope of Practice

The Impact of Federal Law on COVID-19 Vaccination in Michigan

I recently received the following concern from a Michigan medical assistant:

A provider is questioning whether medical assistants can administer the COVID-19 vaccine. Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19, it does not list that a [medical assistant] is qualified.

Note the following excerpt from the Department of Health and Human Services (HHS) document:

As qualified persons, these healthcare professionals and students in healthcare profession training programs will be afforded liability protections in accordance with the PREP [Public Readiness and Emergency Preparedness] Act and the terms of this amended Declaration. Second, to the extent that any State law that would otherwise prohibit the healthcare professionals and students in healthcare profession training programs who are a “qualified person” from prescribing, dispensing, or administering COVID-19 vaccines or other Covered Countermeasures, such law is preempted. On May 19, 2020, the Office of the General Counsel issued an advisory opinion concluding that, because licensed pharmacists are “qualified persons” under this declaration, the PREP Act preempts state law that would otherwise prohibit such pharmacists from ordering and administering authorized COVID-19 diagnostic tests. The opinion relied in part on the fact that the Congressional delegation of authority to the Secretary under the PREP Act to specify a class of persons, beyond those who are authorized to administer a covered countermeasure under State law, as “qualified persons” would be rendered a nullity in the absence of such preemption. This opinion is incorporated by reference into this declaration. Based on the reasoning set forth in the May 19, 2020 advisory opinion, any State law that would otherwise prohibit a member of any of the classes of “qualified persons” specified in this declaration from administering a covered countermeasure is likewise preempted. In accordance with section 319F–3(i)(8)(A) of the Public Health Service Act, a State remains free to expand the universe of individuals authorized to administer covered countermeasures within its jurisdiction under State law [emphasis added].

The bold language permits states to expand the categories of individuals who are allowed to administer COVID-19 vaccinations beyond what is stated in the HHS document. More restrictive state laws are preempted by this federal document. However, states are permitted to be more inclusive than what the federal document indicates.

Go to the AAMA website and visit the “State Scope of Practice Laws” page to find the medical assisting law of all states, including Michigan.

Note, especially, the third link to my blog post “Permissible Delegation of Influenza Vaccination Administration in Michigan” in the Michigan subsection of the “State Scope of Practice Laws” webpage. The blog post concludes with my following legal opinion:

Therefore, my legal opinion is that Michigan law permits physicians to delegate the administration of influenza vaccinations to knowledgeable and competent unlicensed individuals such as medical assistants as long as the delegating physician is accessible to the medical assistants by radio, telephone, or telecommunication.

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