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.

Permissible Delegation of Influenza Vaccination Administration in Michigan

Medical assistants are well-positioned to assist with vaccinations, but legal considerations may vary depending on state law. For example, I recently received the following question regarding when a medical assistant in Michigan can be delegated the administration of influenza vaccinations:

I have two medical assistants in our occupational health/employee health clinic who operate under a provider and can give injections. We are part of a hospital that is across the street from our clinic. Can the two medical assistants give influenza shots in the hospital setting without our provider actually on-site?

To answer this question, note the following from the Michigan Public Health Code, which is posted in the Michigan subsection of the State Scope of Practice Laws webpage on the AAMA website:

333.16215 Delegation of acts, tasks, or functions to licensed or unlicensed individual; supervision; rules; immunity; third party reimbursement or worker’s compensation benefits.

Sec. 16215.

(1) Subject to subsections (2) to (6), a licensee who holds a license other than a health profession subfield license may delegate to a licensed or unlicensed individual who is otherwise qualified by education, training, or experience the performance of selected acts, tasks, or functions where the acts, tasks, or functions fall within the scope of practice of the licensee’s profession and will be performed under the licensee’s supervision. A licensee shall not delegate an act, task, or function under this section if the act, task, or function, under standards of acceptable and prevailing practice, requires the level of education, skill, and judgment required of the licensee under this article. [Italics added.]

In this excerpt, the definition of “licensee” includes a licensed physician. Medical assistants are considered unlicensed individuals under Michigan law.

Furthermore, the definition of “supervision” in this part of the Michigan law is as follows:

(2) “Supervision”, except as otherwise provided in this article, means the overseeing of or participation in the work of another individual by a health professional licensed under this article in circumstances where at least all of the following conditions exist:

(a) The continuous availability of direct communication in person or by radio, telephone, or telecommunication between the supervised individual and a licensed health professional.

(b) The availability of a licensed health professional on a regularly scheduled basis to review the practice of the supervised individual, to provide consultation to the supervised individual, to review records, and to further educate the supervised individual in the performance of the individual’s functions.

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.

Speaking the Language of Medicine

Correcting errors is a fairly simple process when it involves a change to a website or some short literature. Language in government publications often proves to be a more time-consuming process.

I was contacted by Rusty Dowling, CMA (AAMA), on behalf of the Michigan State Society of Medical Assistants. Concern was expressed that the Michigan Department of Labor and Economic Growth (DLEG) had classified medical assisting as a “high-growth occupation requiring at least moderate on-the-job training” in one of its publications. I pointed out that the United States Department of Labor (DOL) also classifies medical assisting in this manner, and forwarded to Ms. Dowling letters that I had written to the Department of Labor objecting to the fact that medical assisting is so classified, and is considered an “apprenticeable occupation” by the DOL. I suggested that Ms. Dowling inform the Michigan DLEG of the formal opposition of the AAMA to these classifications of medical assisting by the United States DOL, and further suggested that the Michigan State Society also express its disagreement with this classification to the Michigan DLEG.

Because the legislative landscapes in Michigan and Washington are similar, two public policy leaders of the Michigan State Society joined me in meeting with representatives of the Washington State legislative coalition during the AAMA Board of Trustees meeting in Seattle in early June.

Working against such language is a monumental task, but it is one we must approach with energy if we hope to fix it!