What Can A Medical Assistant Do and Not Do?
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In the consolidated appeal of, A-4361-19; A-4371-19; A-4374-19, the Superior Court of New Jersey, Appellate Division, addressed the State's failure to sufficiently demonstrate that a medical assistant's scope of performed services encroached upon the licensed practice of medicine.
In 2018, a grand jury returned an indictment against three defendants -- a doctor, medical assistant and office manager who all worked together in the same medical practice. The State averred that the medical assistant practiced medicine without a license and that the supervising doctor and office manager conspired to fraudulently bill for the assistant's services.
Following a defense motion to dismiss the indictment, the trial court subsequently dismissed the case, finding the indictment "palpably deficient." The State then re-presented the case to the grand jury, providing additional evidence, including patient testimony and testimony from an insurance fraud investigator. Based in part on speculative testimony provided by the insurance fraud investigator, a grand jury returned a superseding indictment and the case once again landed before the trial court.
Again, however, the trial court dismissed the indictment, concluding that the prosecutor failed to adequately and accurately instruct the grand jury about what a medical assistant could do without encroaching on the licensed practice of medicine. The trial court concluded that, because New Jersey law does not clearly draw a line around a medical assistant's permissible activities, prosecuting someone for crossing that line violated the right to fair warning.
While this reality posed an obstacle to effectively prosecuting the case, it also presents unique questions for the health care industry as a whole. What services exactly can a medical assistant perform under the supervision of a licensed physician without encroaching upon the practice of medicine? Unfortunately, the Appellate Division did not spell out those services in detail in its opinion. However, in affirming the trial court's decision, the Appellate Division emphasized the requirement for a prosecutor to articulate specific instances of conduct - without speculation -- that would constitute a violation under the statute.
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