The question: Can medical assistants legally administer flu shots or Botox injections?
The answer: Depends on whom you ask.
A Clark County District judge ruled Monday that emergency regulations permitting medical assistants to give flu shots, while prohibiting them from administering injections of cosmetic drugs, cannot go into effect.
Judge Kathleen Delaney issued a temporary restraining order after a motion filed Monday by attorney Jacob Hafter on behalf of Tracy Hurst of the Medical Spa at Summerlin and Amber Tsang of the Skin Care Institute, who argued that the Nevada State Board of Medical Examiners violated the state's open meeting law Friday as they approved the new regulations.
The restraining order was approved because public comment was cut short at the hearing when it became apparent the board was about to lose its quorum. Hafter said at least three people at the medical board hearing Friday were denied their rights, including his client, Hurst. The three individuals weren't able to speak until after the regulation was passed.
"She was entitled to speak," Hafter said. "The medical board terminated public comment."
Delaney ordered a Sept. 29 hearing on the case to determine whether the temporary restraining order will be amended into a preliminary injunction. Hafter said a temporary restraining order is only valid for 15 days.
While the temporary restraining order is in effect, regulations under the current laws apply, Hafter said. But that doesn't necessarily mean medical assistants are prohibited from administering injections, he said.
"That's one way to read it," he said. "I don't believe that's what the law says."
Current regulations require medical assistants to always work under the direct supervision of doctors. Physicians also are required to see any patient before a medical assistant is allowed to work on them.
Board Chairman Charles Held said the practice has been for doctors to allow medical assistants to do any work for which they had been trained, including giving shots.
Hafter said the statute is written in permissive language that says who is allowed to administer drugs, but not who is prohibited from administering drugs. If you read the law in the context of state practices, a medical assistant is considered an extension of a physician for whatever drugs the physician administers, he said.
If the law is interpreted to mean medical assistants can't administer injections, a new regulation wouldn't even apply, he said.
"If those laws are valid, no regulation can be passed that can trump a state statute," Hafter said. "Medical assistants wouldn't be able to inject anything, flu shots or Botox."
The medical board has been clear in its opinion that the law is valid. Board members do not share Hafter's opinion on its language.
According to Louis Ling, the board executive director, medical assistants are prohibited by the 1979 law from administering Botox, the anti-wrinkle drug, and other cosmetic drugs, he said last week. Ling declined to comment Monday because the issue had entered the litigation stage, he said.
Hafter said the statute is ambiguous, a way for the board to create "hype" and destroy the practices of medical spas. If the law is valid, why hasn't it been enforced for the past 30 years, he asked.
"Certain plastic surgeons are trying to recapture business lost to medical spas," he said. "They abused their power on the medical board."
Asked whether physicians will allow medical assistants to keep administering Botox or flu shots given the confusion over the law, Hafter said he couldn't speak for every doctor.
"Right now they don't know what to do," he said.
Tracy Hurst, who has owned the Medical Spa in Summerlin for almost 10 years, said she doesn't use medical assistants in her business. She uses registered nurses.
But the reason she became involved in the litigation was because of "fly-by-night" regulations instituted without consulting experts in the field, she said.
"They didn't talk to anyone, they didn't care what the public had to say," Hurst said. "They had their minds made up."
Although medical assistants had been administering injections for years, only recently was there any sign of enforcement, she said. Even Dr. Benjamin Rodriguez, the board's vice chairman, had used medical assistants in his office to administer Botox to his patients, she said.
"If you follow his (Rodriguez's) example, don't you think you should be OK, if you do what he does?" she asked.
Hurst said if the medical board wanted to permit medical assistants to administer flu shots, that should have been the regulation. But the sudden banning of a cosmetic practice that has been allowed for decades, in which some medical assistants have built large, loyal clienteles, was ridiculous.
"It just doesn't smell right to me," she said.