How Recent Changes in the Law Have Expanded the Scope of Work of Medical Assistants
by Donald A. Balasa, JD, MBA
The COVID-19 pandemic necessitated major expansions of scope of practice for most health professionals. Some of these scope modifications were temporary and put into effect by time-limited executive orders of state governors. Others, however, were incorporated into state legislation, indicating that they are likely to be more permanent. On the federal level, agencies suspended the enforcement of regulations and policies to make health care more available during the pandemic. Whether these federal actions will be temporary or permanent remains to be seen.
In keeping with these seismic shifts in the American health care landscape, the scope of work of medical assistants has been expanded considerably during the last eighteen months. The purpose of this article is to present the most significant, and likely permanent, changes in the legal scope of work of medical assistants and how these changes will impact the delivery of health care in outpatient settings.
Telemedicine and Telehealth
Serving as the liaison between patients and licensed providers has been a key responsibility of medical assistants since the profession came into existence. The importance of this function has been magnified by the growing use of virtual appointments and other non-face-to-face interactions with patients. The legal principle applicable in all American jurisdictions is that knowledgeable and competent medical assistants are permitted to transmit messages from licensed providers to patients (or their representatives), and from patients to providers, as long as medical assistants do not exercise independent clinical judgment or make clinical assessments or evaluations as part of the communication and transmission process.
The legality of medical assistants performing telemedicine tasks was reinforced by a July 22, 2020, guidance issued by the Centers for Disease Control and Prevention (CDC.) Note the following excerpt from this CDC guidance:
Telehealth Modalities
Several telehealth modalities allow [health care personnel] and patients to connect using technology to deliver health care:
Synchronous: This includes real-time telephone or live audio-video interaction typically with a patient using a smartphone, tablet, or computer.
In some cases, peripheral medical equipment (e.g., digital stethoscopes, otoscopes, ultrasounds) can be used by another HCP (e.g., nurse, medical assistant [emphasis added]) physically with the patient, while the consulting medical provider conducts a remote evaluation.
Asynchronous: This includes “store and forward” technology where messages, images, or data are collected at one point in time and interpreted or responded to later. Patient portals can facilitate this type of communication between provider and patient through secure messaging.
Remote patient monitoring: This allows direct transmission of a patient’s clinical measurements from a distance (may or may not be in real time) to their healthcare provider.1
The American Medical Association (AMA) has acknowledged the role of medical assistants in telehealth in its Telehealth Implementation Playbook. Note the following from this publication:
MEDICAL ASSISTANT (MA) OR PATIENT CARE TECH (PCT)
Be familiar with the conditions and situations that are appropriate for a telehealth visit
Educate patients on telehealth expectations
Support patient troubleshooting related to platform pre-visit and during visit
Let [the] doctor know when a patient has “checked in” for a telehealth appointment (if platform does not include this feature)2
NCQA Medication Reconciliation Measure
The ability of appropriately-educated and professionally-credentialed medical assistants to perform—under the authority of licensed providers—post-discharge medication reconciliation has become widely recognized by providers. However, the fact that medical assistants are not mentioned specifically in the following quality measure of the National Committee for Quality Assurance (NCQA) had given rise to some uncertainty about whether medication reconciliation by a medical assistant would count toward meeting the following:
Quality ID #46 (NQF 0097): Medication Reconciliation Post-Discharge; 2019 Collection Type:
NUMERATOR (SUBMISSION CRITERIA 1 & 2 & 3): Medication reconciliation conducted by a prescribing practitioner, clinical pharmacist, or registered nurse on or within 30 days of discharge3.
This author asked the National Committee for Quality Assurance whether medication reconciliation by medical assistants would count toward meeting the above quality measure. He received this response:
NCQA recognizes the supervising physician as providing the service when they have signed off on the medical record/documentation. It is our understanding many licensed practical nurses (LPNs) and medical assistants work with physicians and registered nurses (RNs). With this in mind, medication reconciliation provided by the medical assistant and signed off by a physician, [nurse practitioner, physician assistant, or clinical pharmacist with prescribing privileges], or RN may be counted toward NCQA Medication Reconciliation indicators as the signature indicates additional clinical oversight for this work.4
This clarification by the NCQA should eliminate any ambiguity about the permissibility of competent medical assistants performing post-discharge medication reconciliation. It should also result in this responsibility becoming a more standard component of medical assistants’ scope of work.
Ending of the Medicaid Promoting Interoperability Order Entry Requirement
Pursuant to the 2009 enactment of the Health Information Technology for Economic and Clinical Health Act (HITECH Act) by Congress, the Centers for Medicare & Medicaid Services (CMS) issued regulations establishing the Medicare and Medicaid Electronic Health Record (EHR) Incentive Programs (subsequently renamed the “Promoting Interoperability Programs”). The primary purposes of these programs were: (1) to accelerate the conversion to (and utilization of) electronic health records; and (2) to standardize the technology of EHRs. One of the ways of achieving these purposes was by providing annual incentive payments to licensed providers and health care institutions who met the quantitative objectives and measures of the program(s).
One of the requirements of the Promoting Interoperability Programs involved the “meaningful use” of electronic health records. To receive incentive payments, participating providers had to attest that a certain percentage of: (1) medication orders; (2) laboratory orders; and (3) diagnostic imaging orders were entered into the computerized provider order entry (CPOE) system by either licensed health care professionals or “credentialed medical assistants.”
The Medicare Promoting Interoperability Program was phased out by the 2015 Medicare Access and CHIP Reauthorization Act (MACRA). However, the Medicaid Promoting Interoperability Program will continue to be in effect until December 31, 2021—the expiration date established by CMS in its regulations.
Because the Medicare and Medicaid Promoting Interoperability Programs have introduced providers to the benefits and efficiencies of having credentialed medical assistants enter orders electronically, it is anticipated that many providers will continue to require order entry to be done by credentialed medical assistants. Additionally, the American Association of Medical Assistants is embarking upon a nationwide initiative to persuade private third-party payers to include similar order entry personnel requirements in their reimbursement policies.
Nurse Practitioner Delegation to Medical Assistants
An increasing number of medical assistants are working under the authority and direction of nonphysician providers such as nurse practitioners and physician assistants. Laws are being enacted by state legislatures, and regulations are being issued by state boards of nursing, that authorize advanced practice registered nurses (APRNs)—especially nurse practitioners—to delegate/assign to competent medical assistants the performing of specific tasks under appropriate supervision. An example of this kind of legislation was passed in Maryland in May of 2021. Note the following excerpt from this new statute:
D) (1) Subject to regulations adopted by the board [of nursing] under paragraph (2) of this subsection, this section does not preclude an advanced practice registered nurse from delegating a nursing or other technical task to an assistant if:
(i) the assistant performs only tasks that the assistant is trained to perform; and
(ii) the delegating advanced practice registered nurse provides:
1. Instruction to the assistant on the delegated task; and
2. On–site supervision of the assistant performing the delegated task.
(2) the board [of nursing] shall adopt regulations to carry out this subsection…5
Evolving Supervision Requirements for Medical Assistants
One aspect of medical assisting law that has been impacted greatly by the COVID-19 pandemic is the degree of supervision licensed providers must exercise over medical assistants. Some loosening of supervision requirements necessitated by the pandemic began with executive orders and subsequently was incorporated into statute. An example of the evolution of supervision requirements is found in Washington law.
Washington Governor Jay Inslee, on March 26, 2020, issued an executive order allowing
“…all medical assistants to perform duties during the waiver period without a supervising health care practitioner physically present in the facility…The waiver changes the supervision requirement language to state, ‘(11) “Supervision” means supervision of procedures permitted pursuant to this chapter by a health care practitioner who is immediately available.’ The [D]epartment [of Health] considers ‘immediately available’ to mean that if the supervising health care practitioner is called by phone, [the practitioner] would answer or return the call immediately.”6
In April of 2021, legislation was passed that incorporated the Washington Department of Health’s new definition of “supervision” into statute and addressed supervision in the telemedicine context. Note the following excerpt from the new statutory language:
(b) The health care practitioner does not need to be present during procedures to withdraw blood but must be immediately available.
(c) During a telemedicine visit, supervision over a medical assistant assisting a health care practitioner with the telemedicine visit may be provided through interactive audio and video telemedicine technology.7
It is likely that laws modifying the scope of work of medical assistants will continue to be put into effect. For current information about medical assisting law, see www.aama-ntl.org
References:
Using telehealth to expand access to essential health services during the COVID-19 pandemic. Centers for Disease Control and Prevention. Updated June 10, 2020. Accessed July 22, 2021. https://www.cdc.gov/coronavirus/2019-ncov/hcp/telehealth.html
American Medical Association. Telehealth Implementation Playbook. 2020. Accessed July 22, 2021. https://www.ama-assn.org/system/files/2020-04/ama-telehealth-playbook.pdf
National Quality Forum. Medication Reconciliation Post-Discharge. Quality ID #46. Updated December 10, 2015. Accessed July 22, 2021. https://assets.ctfassets.net/1ny4yoiyrqia/5X35cxqKKjRdBsfUz9I1cy/6feff55ac82920d783f4d065bc8fb6db/Member_Clinical-Quality_Measures_MIPS_46-resources_2019_Measure_046_MIPSCQM.pdf
Email message to author.
HB 95 CH 753. Maryland General Assembly. Accessed July 22, 2021. https://mgaleg.maryland.gov/mgawebsite/Legislation/Details/HB0095
Medical Assistant Laws Waived by Governor Inslee. Washington State Dept of Health. March 27, 2020. Accessed June 22, 2021. https://content.govdelivery.com/accounts/WADOH/bulletins/283a27f
HB 1378 - 2021-22. Washington State Legislature. Accessed June 22, 2021. https://app.leg.wa.gov/billsummary?BillNumber=1378&Year=2021&Initiative=False
Donald A. Balasa, JD, MBA
Donald has served as CEO and legal counsel of the American Association of Medical Assistants® (AAMA) since 1990. Mr. Balasa received both his baccalaureate and law degrees from Northwestern University and his MBA in economics from the University of Chicago. Mr. Balasa’s areas of legal specialization include not-for-profit governance, professional credentialing and regulation, and antitrust principles applicable to certifying and accrediting bodies. For questions about this article, contact the author at dbalasa@aama-ntl.org