Injunction bars emergency regulations for vaccines

Tuesday, Sept. 29, 2009 | 1:45 p.m.

A District Court judge today issued an injunction barring emergency regulations from going into effect that would allow medical assistants to give injections, including flu shots and other vaccines.

Judge Kathleen Delaney ruled that Nevada open meeting requirements were not met by the Medical Examiners Board at the time the regulations -- which would have prevented medical assistants from injecting patients with Botox but allowed them to inject vaccines -- were passed because all public comments weren't heard before a vote took place. All public comments weren't heard before a vote took place.

The emergency regulations prohibited medical assistants from injecting cosmetic fillers, chemotherapy, anesthetics or inflammatory drugs. There was a controversy in Las Vegas about unlicensed medical assistants performing certain procedures that some argued should be left to a doctor.

The board originally called an emergency meeting at the recommendation of Executive Director Louis Ling. Ling proposed that medical assistants should be allowed to give flu shots, but not Botox injections.

Gov. Jim Gibbons had backed the board, calling an emergency session to adopt the regulation but said he didn't want emergency regulation standing in the way of citizens getting their flu shots as the season, expected to be harsh, approaches.

Delaney earlier this month issued a temporary restraining order to stop the emergency regulations from going into effect.

Ling has said the board had been working on regulations when the controversy arose. He said the issue will be before the 2011 Nevada Legislature as lawmakers determine what procedures medical assistants should and should not be allowed to perform.

Several medical assistants have said they were unaware of the restrictions in the law because it is rarely enforced.

Attorney Jacob Hafter represented Tracy Hurst, owner of a medical spa in Summerlin, who didn't have the opportunity to speak at the board's emergency meeting.

Hurst said the new rules affected a lot of people, including her business and employees.

"I guess we do have a Constitution because the judge saw through the bill, and it's working," Hurst said. "What does Botox have to do with flu shots?"

Hurst also said she believes the Medical Examiners Board isn't concerned with injections in general, it's concerned with the Botox procedures. She said plastic surgeons want medical spas out of business because they offer cheaper prices.

Carol Cohen, president of Nevada State Society of Medical Assistants, said she thinks medical assistants should be able to administer flu shots. There is legislation that permits them to do so elsewhere, including California, Georgia and Arkansas, she said.

"This isn't a new issue, but it is in Nevada," Cohen said. "I'm not sure why the cosmetic injection aspect of it is being focused on."

Hafter said he was pleased with Delaney's ruling and plans to seek justice for some of the medical spa assistants caught in the controversy.

Medical spa assistant Rebecca Luth said she didn't receive a paycheck last week because of the law.

"I've been doing this for over 30 years and in one day I was put out of a job," Luth said.

Tears streaming from her eyes, Luth said that she hasn't been able to sleep since losing her job and hopes that whatever new regulations go into effect will let her go back to work.

Discussion: 5 comments so far…

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By CynicalObserver

Sept. 29, 2009

6:02 p.m.

Suggest removal

OK, back to reality. Nevada has a law which says that only doctors and nurses can give shots. The law can't be changed until the Legislature meets. That isn't going to happen until after the Swine Flu epidemic passes. Hafter has made a correct legal argument that a state board cannot adopt a regulation which directly contravenes a statute.

The injunction does not mean that medical assistants giving injections is legal. The fact that these dim bulb women think it does makes me wonder what their lawyer is telling them.

So, in this Banana Republic, it will be interesting to see who among medical assistants, other than the one woman written up in the newspaper today, will be prosecuted. Time will tell.

All the judge has done, in practical effect, is tell the Medical Examiners Board that they have to hold another meeting and follow the rules. The rules include the principle that if the Governor appoints you to the Medical Examiners Board you are supposed to show up and stay for the whole meeting. That was the problem with the new regulation. The physicians on the Medical Examiners Board were "too busy, too self important, too occupied with lining their own pockets" to stay for the whole meeting, even though it was about a topic which their Executive Director thought was of vital importance for the health of the entire state.

Which leads me to a conclusion that most would laugh at. If these too busy, too self important, too occupied with lining their own pockets doctors on the Medical Examiners Board cannot get their behinds to a meeting, and keep them in their seats until the meeting is legally completed, i.e. letting the public tell these self important ashes what they, the public, have to say about this issue, then Governor Gibbons needs to fire those board members who refuse to do their jobs, and stand up for his decision this time.
By pbim72

Sept. 29, 2009

8:16 p.m.

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Cynical, I think you are off just a bit.

The judge ruled that the open meeting law was violated. She did not rule " that a state board cannot adopt a regulation which directly contravenes a statute" to my understanding of the ruling. However, I believe that is correct in its face that in fact the board cannot make a regulation superseding a statute.

But, should medical assistants (MA's), with no statute required training, be allowed to inject Botox? I say no. These injections are different for every patient in each and every circumstances. They are making decisions that are potentially well outside of their formalized training.

These people have been trained by other medical assistants or by doctors who run these spas or cosmetic surgery practices. None of it is standardized at any level. Medical Assistants have the ABSOLUTE minimal training of anyone in the health care industry and that includes the environmental services personnel in hospitals (the maids?).

In contrast, MA's are trained formally to give shots. Let the MA's give the flu shots and address standards for Botox in the next legislature.
By pbim72

Sept. 29, 2009

8:18 p.m.

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I meant 'circumstance", of course.
By LasVegasLawyerGal

Sept. 29, 2009

10:01 p.m.

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Kudos to Judge Delaney! Once again, the Medical Examiners Board reveals themselves to be incapable of carrying out the responsibilities of a self-regulated profession. Given that this is the *same* ship of fools who "santitized" their Web site to make it harder for patients to check if their doctor had complaints filed against them, the comment about board members having to leave the meeting to do lunch is too rich :) If they possessed either shame or honor, the members of the board would resign en masse.
By Guy Demarco

Sept. 30, 2009

7:08 a.m.

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Hey all. Wednesday on "Face to Face with Jon Ralston" we are exploring the fallout of Judge Delaney's ruling with the Nevada State Medical Association, an attorney who has represented doctors before the board and State Senate Majority Leader Steven Horsford (Clark-D). That's at 5:30pm, 6:30pm and 8pm on Las Vegas ONE, Cox Cable Channel 19.