They should have let her speak. That was the message Tracy Hurst had for the Nevada State Board of Medical Examiners on Tuesday after a judge approved her lawyer’s request for an injunction that prevents emergency regulations allowing medical assistants to give flu shots.
District Judge Kathleen Delaney ruled the board violated the state’s open meeting law during a Sept. 18 hearing to pass the regulations, which would have permitted medical assistants to give flu shots and other vaccines, but also prohibit them from administering injections of cosmetic drugs such as Botox.
At that hearing, some doctors on the board said they had to leave for luncheon engagements and, in danger of losing its quorum, the board voted unanimously to pass the regulations.
Three people had yet to testify, including Hurst, owner of the Medical Spa at Summerlin, and on Tuesday, Delaney ruled the board had violated the open meeting law by voting before all public comment was taken.
“I’m ecstatic,” Hurst said after the ruling. “The judge ruled by the law, and she seems fair, and she saw exactly what was going on.”
Hurst said she doesn’t use medical assistants to administer injections in her business. She uses registered nurses.
But she uses medical assistants to do cosmetic work with lasers, and the regulations — although vague, she said — could have affected her business.
“This (the regulations) was never about flu shots,” she said. “This was about doctors losing money to medical spas.”
The question of what medical assistants can and can’t do, now, is back to square one.
According to Jacob Hafter, attorney for Hurst and Amber Tsang, owner of the Skin Care Institute, emergency regulations can only be brought up for a vote once.
“They brought it up, passed it, and moved on it. Therefore, they would be prohibited to bring an emergency regulation up a second time,” Hafter said.
The preliminary injunction will expire Jan. 16, which means Hafter will not have to seek a permanent injunction. The emergency regulations were good for only 120 days, he said.
Unless the medical board appeals Delaney’s ruling to the Nevada Supreme Court, or if Gov. Jim Gibbons calls a special session of the Legislature to amend the statute, the law will remain as it was for the past 30 years, Hafter said.
Dan Burns, a spokesman for Gibbons, said the possibility of a special session to amend the statute that deals with medical assistants would be “extremely remote” because of the expense — each day would cost about $150,000, he said. And should a special session be called to address the state’s budget woes, it is theoretical the Legislature could also look at medical laws, but Burns doesn’t anticipate it.
“Realistically, it doesn’t appear as though this issue is a serious health threat to the citizens of the state at this moment,” Burns said, adding that registered nurses, doctors, pharmacists and even EMTs can give simple vaccinations.
Burns had previously expressed concern that lines for flu shots at doctors’ offices could be long if the regulations weren’t passed. Asked why emergency regulations were passed if the medical assistant issue wasn’t a serious health threat, he elaborated.
“The health threat I’m talking about is if a third of the citizens come down with the flu,” Burns said. “The governor is not focused on the Botox issue, like the medical board has been. His concern is access to health care if there is a flu outbreak.”
The possibility of medical assistants being arrested for administering injections is a threat that has some worried in the medical community, as officials from the state attorney general’s office and the medical board have said the law will be enforced how it reads, not necessarily how it was in the past.
Louis Ling, executive director of the medical board and author of the proposed regulations, has previously warned doctors and medical assistants not to break the law, but has never said what would happen if state authorities determine illegal activity is occurring.
Ling and private attorneys representing the medical board, John Bailey and Dennis Kennedy, left quickly after Delaney’s decision and declined comment. They didn’t return phone calls later in the day.
Although the law appears to be against them, Hafter doesn’t think medical assistants should worry, he said.
It would be political suicide for the attorney general’s office to arrest every medical assistant in every doctor’s office that administers an injection in Nevada, he said.
“Is the attorney general going to go to every physician’s office and take out the medical assistants? It’s not a politically savvy move,” Hafter said.
In the case of Betty Guerra, a medical assistant who was arrested in July for allegedly illegally administering Botox, the anti-wrinkle drug — and starting the discussion on what medical assistants are able to do — Hafter said it was a “heavy-handed” case of enforcement.
“Under their interpretation, they’d have to enforce it equally throughout the whole community,” Hafter said. “I think we’ll go back to the way it was practiced the last 30 years, because there’s nothing wrong with it. Don’t throw the baby out with the bath water.”
In Delaney’s ruling, she was clear that the injunction was approved because of open meeting law infractions.
But she also noted in her opinion that the regulations were “ill-conceived,” and the confusion about what medical assistants could do had nothing to do with flu shots vaccinations.
“The confusion was created by sudden enforcement of a law that’s been on the books for many years,” Delaney said.
Ivan Goldsmith, a doctor who owns three medical clinics in the Las Vegas Valley, said there’s no confusion to him — the medical board is corrupt.
“It’s the biggest good ol’ boys club in Nevada,” he said.
Although medical spas are in direct competition with his business, he was at the hearing to support the medical spa community.
“How can you run a business when your leadership gives you two days notice to change the laws?” Goldsmith asked, referring to how quickly the emergency regulations were put into effect.
Contact reporter Mike Blasky at email@example.com or 702-383-0283.