Medical assistants on edge

The Las Vegas pediatrician stood in her office and whispered a question into the phone.

"Do you think we'll get arrested because my medical assistants are giving vaccinations?"

The chuckle that accompanied her question indicated she doubted that she or her staff would be cuffed anytime soon. But then again, she requested anonymity in exchange for her comments.

"You just never know what the medical board is going to do," she said with a nervous laugh. "This is all crazy."

So goes the world of medical care in Nevada since state health officials announced earlier this month that a 30-year-old law does not allow medical assistants to give any kind of injection, whether it's for the flu or to erase a wrinkle.

Aides to Gov. Jim Gibbons and regulatory officials with the Nevada State Board of Medical Examiners and Nevada State Board of Pharmacy repeatedly have said it is illegal for medical assistants to give shots.

But the Review-Journal has had little difficulty finding physicians or medical assistants who continue to ignore the law.

A surgeon, an obstetrician, an allergist, and an internist each said their offices cannot function without the ability of medical assistants to give shots, and they are directing them to continue the practice.

"I would have to see a third less patients every day," the pediatrician said last week. "We had a total of 60 vaccinations just today. There are probably no pediatric practices in this valley who could administer vaccines if this law is followed."

It would create an "unworkable business model," she said. "There is no way, with the insurance reimbursements that pediatricians receive, that we could afford an RN to do vaccine injections. And it would be impossible to have the doctor do them and have any kind of appropriate patient flow through an office. But I'm still uneasy doing something somebody is saying is illegal."

Medical assistants, who make around $30,000 a year, generally less than half the wage of a registered nurse, are no less uneasy.

"I need my job, so I have to do what the doctor tells me," said one medical assistant, who also requested anonymity. "But what happens if one of my patients has a bad reaction and I'm not supposed to be doing this? Me and the doctor are going to get sued for sure."

Not all physicians and medical assistants are ignoring the law.

Michelle Smythe, a medical assistant who works at the student health center at the University of Nevada, Reno, said physicians there will not allow her to give any kind of shot. Nor will she do so until she's sure it's legal.

"I'm going to nursing school," she said. "If I even gave a flu shot now, I couldn't become a nurse, because when they asked me if I ever did anything knowingly illegal, I'd have to answer, 'Yes.' And I'd be out."

Gibbons has worried that without action the state won't have enough health care professionals to give Nevadans the vaccines they need to fight off both seasonal and swine flu.

State officials thought they had found a relatively simple solution to the problem two weeks ago. They proposed emergency regulations that prohibited cosmetic injections by medical assistants but legalized their injections of patients with antibiotics and vitamins as well as vaccines against a variety of diseases.

But when an emergency session of the medical board was held Sept. 18 on the regulations, several medical board members said they had lunch engagements approaching, and so a vote was taken because the board was in danger of losing its quorum.

Three people were denied the chance to comment before the action, which prompted a lawsuit by attorney Jacob Hafter, who is representing medical spa owners who believe medical assistants should be able to inject cosmetic fillers.

After Hafter argued that medical board members violated the state's open meeting law, District Judge Kathleen Delaney ruled that the new regulations could not go into effect immediately.

Delaney has scheduled a Tuesday hearing on the legal action by Hafter, who also argued the emergency regulations are unconstitutionally vague, broad or ambiguous.

Louis Ling, executive director of the medical board and author of the proposed regulations, continues to warn doctors and medical assistants not to break the law, but he won't say what would happen if state authorities determine illegal activity is occurring.

According to Hafter, however, a doctor's license could be at risk if he is caught openly defying the law.

And Edie Cartwright, a spokeswoman for the state attorney general's office, pointed out a section of state law that says medical assistants could find themselves facing felony charges for practicing medicine without a license.

"Let's see what happens Tuesday," Ling said.

According to a medical school official, the board's attempt to fix this quandary through emergency regulations might actually permit physicians to abet medical assistants in violating established law.

Dr. Don Havins, professor and director of medical jurisprudence at Touro University in Henderson, said in an analysis sent to the Review-Journal that state statutes do not include medical assistants as being permitted to dispense or administer either controlled substances or prescription drugs.

Although the medical board seems to be using emergency regulations to bring the state in line with legally established medical practices across the United States, Havins questions whether it can do so.

He said regulations cannot trump statutes, which must be amended by the Legislature.

"The medical board's regulations cannot make legal what is not currently legal," Havins said, noting that the medical board has no authority over medical assistants.

According to Havins, many in the Nevada medical community feel the statutes have not been enforced "because they run counter to the standards of practice all across the United States, where MAs (medical assistants) do administer some prescription medications under the supervision and authority of their licensed physician."

"In practical effect," Havins said in the analysis, "what the (medical board) has done is pass regulations providing when licensed physicians will not be disciplined" for allowing their medical assistants to do illegal acts.

If the emergency regulations go into effect, medical assistants could be subjected "to potential enforcement and sanctions for violating established statutes," Havins wrote.

"In sum, the regulations provide ... no protection to medical assistants," he noted.

Hafter, like Havins, makes the argument that regulations do not trump state statute. Nonetheless he has a less strict interpretation of laws regarding administering medications.

He argues that the statutes are written in permissive language that says who is allowed to administer drugs, but not who is prohibited.

If you read the law in the context of state practices, Hafter said, a medical assistant is considered an extension of a physician for whatever drugs the physician prescribes.

Havins said a potential solution "to this legal jumble" is for the regulatory boards charged with regulating medical doctors, osteopathic doctors and homeopathic doctors to ask Gibbons to place some of their concerns on the agenda if he calls a special session this fall.

That possible special session, which would largely center on how the state will deal with the continuing souring economy, also could be used to modify state statutes so medical assistants could administer or dispense certain prescription medications.

Assemblywoman Sheila Leslie, D-Reno, has already submitted a bill draft that calls for the regulation of medical assistants.

Stacy Woodbury, Gibbons' deputy chief of staff, said the governor will not decide on whether to call a special session "until November, at the very earliest. It's very expensive, about $150,000 a day."

Woodbury has encouraged Hafter to submit regulatory proposals for medical assistants should there be a special session.

Woodbury is in favor of strict training and educational requirements.

Even if there is a special session in which new rules can be set down for medical assistants, that action would still come well after the H1N1 flu season hits.

Boyd Law School professor Sylvia Lazos said she finds Havins' analysis "very persuasive."

Still, she said, it's possible state officials could argue Tuesday that the governor's "emergency powers" must be invoked regarding the duties of medical assistants because of a possible flu epidemic.

"The executive (Gibbons) is usually viewed as having inherent emergency powers that are not necessarily written down in either a statute or a constitution," Lazos said.

"Fear that the entire population of Nevada might not have access to flu shots because there is not enough medical personnel to administer shots would be a reasonable exercise of the 'emergency power' of the governor."

Contact reporter Paul Harasim at pharasim@reviewjournal.com or 702-387-2908.