Is your medical assistant practicing medicine illegally? Understand the difference between medical assistance and medical practice. Don’t Confuse the Roles of the MD and the MA What happens when the MD and MA work together so seamlessly that patients can misunderstand who’s who? What if one of the “patients” is an undercover medical board investigator? Consider this practice scenario.
Watch The Perils of “Unlicensed Practice” of “Medicine” Let’s start with the definition of “practicing medicine.” This varies by state, but there are many commonalities. California’s definition of “practicing medicine” in California Business and Professions Code Section 2052(a) is typical of many:
Violation can result in a fine of up to $10,000, imprisonment in a county jail of up to a year, or both. Know The Safe Harbor for Non-Licensed Practitioners In a minority of states, the legislature has provided a safe harbor for non-licensed practitioners to offer services, so long as they are not “practicing medicine” or another licensed profession (such as, for example, psychology). In California, this legal shelf is known as “SB 577,” after Senate Bill 577. SB 577 is codified into the provisions of Sections 2053.5 and 2053.6 of the California Business and Professions Code. Referencing the prohibitions against “practicing medicine” in Sections 2051 and 2052, Section 2053.5 provides:
Section 2053.6 provides:
This basically references the SB 577 Disclosure (or Consent) that a non-licensed practitioner provides for the client. Last, 2053.6(c) provides that the statutes does not:
(2) Limit the right of any person to seek relief for negligence or any other civil remedy against a person providing services subject to the requirements of this section. Although this legal shelf exists, and provides some legal umbrella for non-licensed practitioners, this is still subject to other statutory prohibitions, such as the prohibition against unlicensed practice of medicine. Under the Legal Rules about Nutritional Advice Certain titles are protected by licensing statutes and cannot be used without the license. In some states, only a person with designated training can offer nutritional advice as this is reserved for licensed healthcare practitioners. In California, the law allows persons to give “nutritional advice” or “advice concerning proper nutrition,” so long as such individuals do not practice medicine (i.e., do not violate B&P 2052), and “post in an easily visible and prominent place the following statement in his or her place of business:
The notice required “shall not be smaller than 81/2 inches by 11 inches and shall be legibly printed with lettering no smaller than1/2 inch in length, except the lettering of the word “NOTICE” shall not be smaller than 1 inch in length.” Our healthcare law team usually also includes such a notice in the SB 577 disclosure (as well as other provisions aimed to reduce legal risk for the practitioner). Understand the Legal Rules about Medical Assistants There is a fair amount of statutory verbiage around what medical assistants can and can’t do. In California, there are:
The relevant statutes are California Business & Professions Code Sections 2069 through 2071. Section 2069 provides in part (we’ve added bold below).
Section 2070 provides that “a medical assistant may perform venipuncture or skin puncture for the purposes of withdrawing blood upon specific authorization and under the supervision of a licensed physician and surgeon or a licensed podiatrist, or a physician assistant, a nurse practitioner, or a nurse-midwife as provided in subdivision (a) of Section 2069, if prior thereto the medical assistant has had at least the minimum amount of hours of appropriate training pursuant to standards established by the Division of Licensing. The medical assistant shall be issued a certificate by the training institution or instructor indicating satisfactory completion of the training required. A copy of the certificate shall be retained as a record by each employer of the medical assistant.” Section 2071 provides for the California Medical Board to adopt and administer “regulations that establish standards for technical supportive services that may be performed by a medical assistant.” As for regulations, look to the California Code of Regulation (CCR) Title 16 (Professional and Vocational Regulations), Division 13 (Medical Board of California), Chapter 3 (Affiliated Healing Arts), Article 2 (Medical Assistants), Section 1366-1366.4. These supplement what is said in the statutes. The Medical Board Hotly Enforces Violations Involving Medical Assistants IF you want to know what your medical assistant can and can’t do, it’s best to consult an attorney, who can work through the statutes and regulations and advise you as to what is allowed. You can get a sense by seeing what the California Medical Board says on its website. The warnings are fairly stern. First, the California Medical Board warns against medical assistants practicing beyond their scope of training:
On its FAQ page for Medical Assistants, the California Medical Board outlines a number of common MA practices that are either legal or illegal. For example:
The California Medical Board is particularly concerned about improper use of medical assistants in medical spas. The Board has a webpage, Frequently Asked Questions—Cosmetic Treatments, in which it has the following
The Board is clear that its enforcement posture here is strong. Clarifying Roles Should Help In our practice scenario above, Dr. Barbara the MD and Gina the MA have to be very clear about their practice roles. Even though Gina may have been a licensed medical doctor in Germany, that license does not allow her to practice “medicine” in the U.S. She cannot diagnose or treat. She can only provide “technical, supportive” and other designated services as outlined in the medical assistant laws and regulation. (In California, look to the regulations for a list of additional technical supportive services). Gina should not be palpating patients; this sounds like a diagnostic function that should be left to the medical doctor. As well, Gina’s homeopathic recommendations could be construed as the practice of medicine. Even though the remedies might be commonly available, homeopathic medicine is a medical art. A handful of states designate licensure for homeopathy physicians; and homeopathy may be within the scope of practice of some licensed practitioners; but to the extent it involves diagnosis and treatment, it could be seen as the practice of medicine. Nutritional advice is separate from the medical assistant function. This might require an SB 577 disclosure with the required disclosure for nutritional practice (if in California), or other documentation depending on state law. Many physicians assume that someone like Gina can practice “under” their licensure. This is a false concept. There is licensed practice, allied health practice under physician supervision (or independent), and complementary and alternative medical practice (licensed or non-licensed). The fact that Dr. Barbara nods her head doesn’t mean that Gina is not giving medical advice. The California Medical Board makes clear that the physician is responsible for appropriate use of medical assistants. If the use is inappropriate, the physician could be aiding and abetting unlicensed medical practice, and prosecuted and/or disciplined accordingly. Both clinical practitioners and patients have to be clear about the professional roles and boundaries of clinical staff within the medical practice. Ask your healthcare lawyer if you have any questions about who can do what, within the medical center, clinical or group. |