Negligent Delegation: Auditing UAPs in Medical Records

1. What is an Unlicensed Assistive Personnel (UAP) in California?

A UAP is a healthcare worker who provides basic patient care under the supervision of a licensed clinician, typically a registered nurse, a licensed vocational nurse, a nurse practitioner, a physician assistant, or a physician. UAPs are unlicensed by definition. They may have completed a certification course (a Certified Nursing Assistant has, for example), or they may have on-the-job training only. The common titles you will see in a California medical chart include:

• Certified Nursing Assistant (CNA)

• Nurse Aide

• Nursing Assistant

• Patient Care Technician (PCT)

• Medical Assistant (MA)

• Home Health Aide

• Psychiatric Aide

• Geriatric Aide

The word that governs everything that follows is unlicensed. No matter how experienced the UAP is, no matter how long they have been at the facility, no matter how well they know the patient, they remain unlicensed personnel, and California law treats them as such.

2. What can a Certified Nursing Assistant (CNA) do in California?

A CNA in California can assist patients with the activities of daily living, bathing, dressing, feeding, toileting, and ambulation. They can take vital signs on stable patients, help with mobility, transport patients within a facility, and provide emotional support. With proper training and a documented check-off by a licensed clinician, they may also perform basic tasks like finger-stick blood glucose testing.

What a CNA cannot do is anything California Business and Professions Code § 2725.3 prohibits unlicensed personnel from performing. That list is the bedrock, see Question 8.

3. Can a medical assistant in California give injections?

Yes, with limits. A California medical assistant who has completed the required training under Title 16, California Code of Regulations §§ 1366–1366.4 may administer medication by intramuscular, intradermal, or subcutaneous injection. They may also perform skin tests. This is one of the broader scopes for MAs in the country and tends to surprise out-of-state attorneys.

What an MA may NOT do is administer medication by intravenous route, inject anything into an IV line, or independently administer a controlled substance. The injection authority is for IM, ID, and SubQ, and only when there is a written specific authorization or a standing order from the supervising clinician on file in the patient’s record. Source: California Medical Board guidance on Medical Assistants.

4. Can a medical assistant in California start an IV?

No. Starting an IV, placing the needle, starting or disconnecting the infusion tube, is explicitly outside the scope of a California medical assistant. So is administering medications or injections into an IV line. This is one of the bright-line prohibitions in the California Medical Board’s guidance and it is also covered by Business and Professions Code § 2725.3(a)(2) prohibiting unlicensed personnel from performing venipuncture or intravenous therapy in licensed health facilities.

If you find a chart entry showing an MA started an IV in a California clinic or hospital, you have a scope-of-practice violation on the page.

5. Can a medical assistant in California insert or remove a urinary catheter?

No. Inserting a Foley catheter is an invasive procedure, and the California Medical Board specifically lists urinary catheter insertion as outside the MA scope of practice. Removing one is similarly outside scope. Bus. & Prof. Code § 2725.3(a)(4) prohibits unlicensed personnel from performing invasive procedures including catheterization.

This is one of the most common chart-review red flags I see in long-term care and skilled nursing facility cases.

6. Can a UAP take vital signs on an unstable patient?

No. Vital signs on a stable patient may be delegated to a UAP. The moment the patient’s condition changes, they become hypotensive, tachycardic, hypoxic, altered, febrile, the delegation framework breaks down. At that point, the UAP has an affirmative duty to escalate the change in condition to the licensed clinician, and the licensed clinician has a duty to reassess whether continuing to delegate vital signs is appropriate.

If a chart shows a UAP documenting deteriorating vital signs without evidence that the licensed clinician was notified and reassessed the delegation, you may have a failure to supervise claim worth pursuing.

7. Who is legally responsible when a UAP makes a mistake?

The licensed clinician who delegated the task. Always.

Under California law and the broader nursing professional standards, the responsibility for a delegated task does not transfer to the UAP. The licensed clinician retains accountability for selecting the right UAP, delegating the right task under the right circumstances, providing the right direction, and providing the right supervision. If any of those five elements fails and the patient is harmed, the licensed clinician may be liable for negligent delegation or failure to supervise, regardless of how well or poorly the UAP performed the task itself.

The facility may also bear corporate liability if its policies, staffing ratios, or supervision structure made the negligent delegation foreseeable. See the American Nurses Association’s Principles for Delegation for the professional standards framework.

8. What does California Business and Professions Code § 2725.3 actually say?

Business and Professions Code § 2725.3, originally enacted as AB 394 in 1999, is the bedrock statute for UAP scope of practice in California licensed health facilities. It says a health facility shall not assign unlicensed personnel to perform nursing functions in lieu of a registered nurse, and shall not allow unlicensed personnel to perform functions that require a substantial amount of scientific knowledge and technical skills. The statute then lists seven specific functions UAPs cannot perform, even under direct clinical supervision:

1. Administration of medication

2. Venipuncture or intravenous therapy

3. Parenteral or tube feedings

4. Invasive procedures — including insertion of nasogastric tubes, catheter insertion, and tracheal suctioning

5. Assessment of patient condition

6. Patient and family education about the patient’s health care problems, including post-discharge care

7. Moderate complexity laboratory tests

If you see any one of those seven on a chart with a UAP as the documenting party, you have a potential statutory violation. Bookmark this section. It is the cleanest, most attorney-usable framework California provides for evaluating UAP scope-of-practice cases.

9. Can a UAP perform a patient assessment in California?

No. Patient assessment is item 5 on the Business and Professions Code § 2725.3 prohibition list. A UAP may observe a patient and document factual observations — vital signs, intake, output, the patient’s stated complaint. But the moment those observations are synthesized into a clinical judgment about the patient’s condition, that is an assessment, and assessment is licensed-clinician work only.

This distinction matters in chart review. A note that reads “patient appears short of breath, lungs sound diminished, oxygen saturation 88%, will continue to monitor” by a UAP is not just documentation — it is an assessment. And it may be both a scope violation and a documentation problem the defense can exploit.

10. Can a UAP educate the patient or family about discharge instructions?

No. Patient and family education about the patient’s health care problems, including post-discharge care, is item 6 on the § 2725.3 prohibition list. This is a frequently missed scope violation in discharge cases — particularly when a patient is readmitted shortly after discharge with a complication that proper education might have prevented.

When you review the discharge documentation, look at who signed the patient teaching note. If it was a CNA, an MA, or any other UAP, you have a chart entry that on its face violates the statute.

11. What are the 5 Rights of Delegation in nursing?

The 5 Rights of Delegation are the standard professional framework used by licensed nurses to decide whether and how to delegate a task to a UAP. They are:

1. The Right Task: the activity falls within the UAP’s job description and the facility’s policies.

2. The Right Circumstance: the patient is stable, the setting is appropriate, and conditions favor safe delegation.

3. The Right Person:the specific UAP has the demonstrated skills and competency to perform the task.

4. The Right Direction and Communication: the licensed clinician gives clear instructions, specifies what to report, and ensures the UAP understands.

5. The Right Supervision and Evaluation: the licensed clinician monitors the activity, follows up after completion, and evaluates the patient outcome.

If any one of these five fails, the delegation may be negligent. The 5 Rights are the framework I use on every chart audit involving a UAP, and they map directly onto the negligent-delegation cause of action. The full professional standard is in the National Council of State Boards of Nursing delegation guidelines.

12. Are the facility’s policies and procedures relevant to a UAP delegation case?

Yes they may be the most important documents in the entire case file.

California law makes facility policies and procedures legally significant in two ways. First, § 2725.3 and the broader nurse practice framework require that delegated tasks fall within facility policy. If the facility’s policy says CNAs may not perform blood glucose testing and the chart shows a CNA performed one anyway, that is a documented scope deviation. Second, the policies and competency check-off records establish what each individual UAP had been authorized to do — and what they had not been authorized to do.

When you request medical records, also request: the facility’s UAP scope-of-practice policies, the individual UAP’s competency check-off file, the staffing assignment for the relevant shift, and the orientation and training records. These documents convert a one-off chart entry into a pattern.

13. What should a California attorney look for in a medical chart when a UAP was involved in the patient’s care?

Run the chart through this checklist:

• Identification. Can you identify, by name and title, every person who documented in the chart? UAPs sign with initials or first-name + last-initial in some facilities. Get the staff roster for the shift.

• Scope. Did the UAP perform anything on the § 2725.3 prohibition list — medication administration, IV therapy, tube feeding, invasive procedure, assessment, patient education, or moderate complexity lab test?

• Stability. When the UAP performed the delegated task, was the patient stable? If the patient was unstable at the time of delegation, the delegation may have been inappropriate regardless of the task.

• Escalation. When the patient’s condition changed, did the UAP escalate it to the licensed clinician? Is there a chart entry showing the licensed clinician was notified and reassessed?

• Supervision. Is there evidence the licensed clinician monitored the delegated activity and verified completion? Or did the chart simply go quiet after the delegation?

• Documentation. Is the UAP’s documentation accurate and complete? Are there entries missing? Are there entries that appear to have been added after the fact?

• Facility policy. Did the facility’s own policies authorize the UAP to perform what they performed? Was the UAP individually competency-checked on that task?

This is the kind of audit I do every week. If you are working a California medmal, elder abuse, or nursing home case involving UAPs and you want a fresh clinical eye on the chart before you invest in further development, book a complimentary 10-minute chart audit and I will show you one specific finding most attorneys miss.

Want the deeper version?

This post is the FAQ version of what I cover in Episode 9 of The Lawyer’s NP Podcast — Negligent Delegation: Auditing UAPs in Medical Records. The episode walks through the same framework in conversation form, includes a real-world aspiration example, and runs about 20 minutes.

You can also request for me to come speak at your firm’s training day, alumni event, or bar association CLE.

To book a 10-minute chart audit or talk about retainer work for an active case:

📞 209-560-6414 ✉️ Contact form: clearadvantagelnc.com/contact

Resources for your practice:

https://www.aama-ntl.org/publications/state-scope-of-practice-laws

https://www.mbc.ca.gov/Licensing/Physicians-and-Surgeons/Practice-Information/Medical-Assistants.aspx

https://www.nursingworld.org/globalassets/docs/ana/ethics/principlesofdelegation.pdf

Disclaimer

This blog post is for educational purposes only and is not legal or medical advice. Always consult California’s current statutes, regulations, and case law — and your own counsel — when applying any of this framework to a live case.

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