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.

delegation, On the Job, Scope of Practice

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.

delegation, On the Job, Scope of Practice

Clinical Task Delegation in Iowa

I received the following question from a clinical quality practice leader in Iowa regarding medical assistants performing clinical tasks in inpatient settings. These types of questions are increasing because of the need to use medical assistants more extensively during the COVID-19 crisis.

I am a registered nurse [RN] and the clinical quality practice leader at a multi-clinic system in Iowa. We are accredited under The Joint Commission accreditation standards for hospitals. In working through pandemic surge planning, the question surfaced regarding the use of medical assistants in a supporting role in the inpatient setting. Would it be within the scope of a medical to perform certain clinical tasks based on a physician’s order and under the supervision of an RN?

To answer this question, note the following from the rules of the Iowa Board of Nursing (Chapter 6: “Nursing Practice for Registered Nurses/Licensed Practical Nurses”):

655—6.2(152) Minimum standards of nursing practice for registered nurses.

6.2(5) The registered nurse shall recognize and understand the legal implications of accountability. Accountability includes but need not be limited to the following:

c. Using professional judgment in assigning and delegating activities and functions to unlicensed assistive personnel. Activities and functions which are beyond the scope of practice of the licensed practical nurse may not be delegated to unlicensed assistive personnel.

Unlicensed assistive personnel (UAP) are defined in the Iowa nursing law as follows:

655—6.1(152) Definitions.

“Unlicensed assistive personnel” is an individual who is trained to function in an assistive role to the registered nurse and licensed practical nurse in the provision of nursing care activities as delegated by the registered nurse or licensed practical nurse.

Medical assistants are considered UAP when functioning in an assistive role to RNs, often in inpatient settings.

The legality of RNs delegating clinical tasks to medical assistants is determined by the answers to the following two questions:

  1. Are these tasks within the scope of practice of licensed practical nurses (LPNs) under Iowa law? If not, the tasks are not delegable to any UAP, including medical assistants.
  2. Does the performance of these tasks require the exercise of independent clinical judgment or the making of independent clinical assessments or evaluations? If so, the tasks are not delegable to any UAP, including medical assistants.

If the medical assistant is competent and knowledgeable in these tasks, my legal opinion is that Iowa law does not forbid the delegation of these tasks to competent medical assistants working under RN direct/on-site supervision.

It may also be prudent to ask the malpractice insurance carrier for the health system whether it would cover any negligence by a UAP (such as a medical assistant) in performing these tasks.

The clinical quality practice leader followed my advice and asked the malpractice insurance carrier. This was the insurer’s response:

Tasks legally delegable to unlicensed assistive personnel may be delegated to medical assistants by the chief nursing officer, and supervision would have to be exercised by a registered nurse. The list of delegated tasks, the required competencies, and the dates the competencies were assessed and periodically reassessed must be in writing.

The medical assistants must report to the supervising RN if there is an emergency.

Our insurance will provide coverage for medical assistants performing these tasks, but we request the role be clearly delegated and documented as above.

delegation, On the Job, Scope of Practice

Permissible Delegation to Medical Assistants in Response to COVID-19

In light of COVID-19, I am receiving many questions about changes in the scope of practice of medical assistants resulting from executive orders of governors and emergency legislation. The following example of a state-based question (New Hampshire) on medical assisting scope of practice serves as a blueprint for other state-based scope of practice questions.

“My employer is sending me to the hospital to work as an aid under the direction of nurses given the COVID-19 crisis. Is this going to get me in trouble? Can they do this?”

Medical assistants are “unlicensed assistive personnel” under the New Hampshire nursing law, and according to the rules of the New Hampshire Board of Nursing:

(b)  For nursing related tasks involving assistance with or the administration of medication, the following persons shall be eligible to be delegatees:

(1)  Any currently licensed RN [registered nurse] and APRN [advanced practice registered nurse];

(2)  Any currently licensed LPN [licensed practical nurse], only when:

a.  The method of medication administration is not intravenous; or

b.  The method of medication administration is intravenous and the LPN is in compliance with Nur 604.01 (b) and (c);

(3)  Unlicensed assistive personnel who have competency to perform the specific task to be delegated; [emphasis added]

If your state has similar legislation, then this New Hampshire example can apply to you too. For instance, Arizona nursing law says that medical assistants are permitted to work as “unlicensed assistive personnel” who can be delegated tasks by an RN or LPN.

Check with the AAMA State Scope of Practice Laws webpage to find key legislative materials for your state.

delegation, On the Job, Scope of Practice

New Alaska Standards for Delegation of Certain Duties

The Alaska State Medical Board has added a new section to its regulations that establishes standards and conditions under which a licensed physician (doctor of medicine or osteopathic medicine), podiatrist, or physician assistant may delegate certain medical duties to unlicensed professionals such as medical assistants.

These regulations remove any ambiguity from the assertion that knowledgeable and competent unlicensed allied health professionals such as medical assistants can legally perform intramuscular (IM), subcutaneous (subq), and intradermal (ID) injections delegated by a licensed provider under the provider’s direct/on-site supervision.

The regulations of the Alaska State Medical Board were finalized November 25, 2019, and went into effect December 25, 2019.

You can read the regulations by either accessing the December 2019 medical statues and regulations document (Page 37) via the Alaska State Medical Board webpage or the Alaska section of the AAMA State Scope of Practice Laws webpage on the AAMA website.

This is a significant scope of practice victory in Alaska, and I congratulate the Alaska Medical Assistant Society for its excellent and diligent work on strengthening and clarifying medical assistants’ right to practice!