March 17, 2016, Introduced by Reps. Tedder, Cox, Webber, Lyons, Price, Callton, Graves, Glenn, Chatfield, Cochran, LaVoy and Canfield and referred to the Committee on Judiciary.
A bill to amend 1978 PA 368, entitled
"Public health code,"
by amending section 20919 (MCL 333.20919), as amended by 2014 PA
312, and by adding part 56B and section 20192a.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
PART 56B
PHYSICIAN ORDERS FOR SCOPE OF TREATMENT
Sec. 5671. (1) As used in this part, the words and phrases
defined in sections 5672 to 5674 have the meanings ascribed to them
in those sections.
(2) In addition, article 1 contains general definitions and
principles of construction applicable to all articles in this code.
Sec. 5672. (1) "Actual notice" includes the physical
presentation of a POST form or a revoked POST form, or the
electronic transmission of a POST form or a revoked POST form if
the recipient of the form sends an electronic confirmation to the
patient, patient representative, or attending health professional,
who sent the electronic transmission, indicating that the POST form
or revoked POST form has been received. Actual notice also includes
knowledge of a patient's intent to revoke the POST form by a health
professional who is treating the patient, by an attending health
professional, or by emergency medical services personnel.
(2) "Adult foster care facility" means that term as defined in
section 3 of the adult foster care licensing act, 1979 PA 218, MCL
400.703.
(3) "Advanced illness" means a medical or surgical condition
with significant functional impairment that is not reversible by
curative therapies and that is anticipated to progress toward death
despite attempts at curative therapies or modulation.
(4) "Attending health professional" means, subject to this
subsection, a physician, physician's assistant, or certified nurse
practitioner, who has primary responsibility for the treatment of a
patient and issues the medical orders on a POST form. To qualify as
an attending health professional, a physician's assistant or
certified nurse practitioner must act under the supervision of the
physician in a manner consistent with article 15.
(5) "Certified nurse practitioner" means an individual
licensed as a registered professional nurse under part 172 who has
been issued a specialty certification as a nurse practitioner by
the board of nursing under section 17210.
Sec. 5673. (1) "Emergency medical protocol" means a protocol
as that term is defined in section 20908.
(2) "Emergency medical services personnel" means that term as
defined in section 20904, but does not include an emergency medical
services instructor-coordinator.
(3) "Guardian" means a person with the powers and duties to
make medical treatment decisions on behalf of a patient to the
extent granted by court order under section 5314 of the estates and
protected individuals code, 1998 PA 386, MCL 700.5314.
(4) "Health facility" means a health facility or agency
licensed under article 17. Health facility does not include a
hospital unless specifically provided.
(5) "Health professional" means an individual licensed,
registered, or otherwise authorized to engage in the practice of a
health profession under article 15.
(6) "Hospital" means that term as defined in section 20106.
Sec. 5674. (1) "Medical control authority" means that term as
defined in section 20906.
(2) "Patient" means an adult with an advanced illness or other
medical condition that compromises his or her health so as to make
death within 1 year a foreseeable possibility though not a specific
or predicted prognosis.
(3) "Patient advocate" means that term as defined in section
1106 of the estates and protected individuals code, 1998 PA 386,
MCL 700.1106.
(4) "Patient representative" means a patient advocate or a
guardian.
(5) "Person" means that term as defined in section 1106 or a
governmental entity.
(6) "Physician" means that term as defined in section 17001 or
17501.
(7) "Physician orders for scope of treatment form" or "POST
form" means the form described in section 5676. A POST form is not
an advance health care directive.
(8) "Physician's assistant" means an individual licensed as a
physician's assistant under part 170 or part 175.
(9) "Ward" means that term as defined in section 1108 of the
estates and protected individuals code, 1998 PA 386, MCL 700.1108.
Sec. 5675. (1) Not later than 90 days after the effective date
of the amendatory act that added this part, the director shall
appoint members of and convene an ad hoc advisory committee.
(2) The members of the committee may include, but are not
limited to, individuals representing the following:
(a) A health facility or an adult foster care facility, or an
organization or professional association representing health
facilities or adult foster care facilities.
(b) A palliative care provider.
(c) Emergency medical services personnel.
(d) A medical control authority.
(e) A patient advocacy organization.
(3) Within 180 days after the committee is convened, the
committee shall make recommendations to the department on all of
the following:
(a) Subject to section 5676, the creation of a standardized
POST form.
(b) The procedures for the use of a POST form within various
residential settings, including, but not limited to, adult foster
care facilities and health facilities.
(c) The circumstances under which a photocopy, facsimile, or
digital image of a completed POST form is considered valid for
purposes of a health professional, a health facility, an adult care
facility, or emergency medical services personnel complying with
the orders for medical treatment on the form.
(4) After the department receives the recommendations from the
committee under subsection (3), the committee is abolished.
(5) As used in this section, "committee" means the ad hoc
advisory committee appointed under subsection (1).
Sec. 5676. (1) The department, after considering the
recommendations of the advisory committee under section 5675, shall
do both of the following:
(a) Develop a standardized POST form that has a distinct
format and is printed on a specific stock and color of paper to
make the form easily identifiable. The department shall include on
the POST form at least all of the following:
(i) A space for the printed name of the patient, the patient's
age, and the patient's diagnosis or medical condition that warrants
the medical orders on the POST form.
(ii) A space for the signature of the patient or the patient
representative who consents to the medical orders indicated on the
POST form and a space to indicate the date the patient or the
patient representative signed the form.
(iii) A space for the printed name and signature of the
attending health professional who issues the medical orders on the
POST form.
(iv) Sections containing medical orders that direct specific
types or levels of treatment to be provided in a setting outside of
a hospital to which a patient or a patient representative may
provide consent. The medical orders on the POST form may direct the
circumstances under which a health professional who is treating the
patient shall consult with a patient representative regarding
consenting to the withholding or withdrawing of medically assisted
nutrition and hydration if the patient is unable to participate in
medical treatment decisions. The orders on the POST form must not
authorize the withholding or withdrawing of medically assisted
nutrition and hydration unless the patient or the patient
representative consents to withholding or withdrawing medically
assisted nutrition and hydration at the time medically assisted
nutrition and hydration is withheld or withdrawn.
(v) A space for the date and the initials of either the
attending health professional and the patient or the attending
health professional and the patient representative. The POST form
must also include a statement that, by dating and initialing the
POST form, the individuals described in this subparagraph confirm
that the medical orders on the form remain in effect if 1 or more
of the following have occurred:
(A) One year has expired since the patient and the attending
health professional or the patient representative and the attending
health professional have signed or initialed the POST form.
(B) There has been a significant change in the patient's
medical condition.
(C) There has been a change in the patient's place of
residence.
(vi) A statement that a patient or a patient representative
has the option of executing a POST form and that consenting to the
medical orders on the POST form must be voluntary.
(vii) A statement that the POST form is void if any
information in subparagraph (i), (ii), or (iii) is not provided on
the form or if 1 year has expired since the patient and the
attending health professional or the patient representative and the
attending health professional have signed or initialed the POST
form.
(viii) A statement that if a section on the POST form
regarding a specific type or level of treatment is left blank, the
blank section will be interpreted as authorizing full treatment for
the patient for that treatment, but a blank section on the POST
form regarding a specific type or level of treatment does not
invalidate the entire form or other medical orders on the form.
(b) Promulgate rules for the procedures for the use of a POST
form within various residential settings including, but not limited
to, adult foster care facilities and health facilities. The rules
must also include, but are not limited to, the circumstances under
which a photocopy, facsimile, or digital image of a completed POST
form will be considered valid for purposes of a health
professional, a health facility, an adult foster care facility, or
emergency medical services personnel complying with the medical
orders on the form.
(2) The department may publish information or materials
regarding the POST form on the department's website.
Sec. 5677. (1) The following individuals may consent to the
medical orders contained on a POST form:
(a) If a patient is of sound mind and capable of participating
in medical treatment decisions, the patient.
(b) Subject to subsection (2), either of the following:
(i) A patient representative who is a patient advocate.
(ii) If the patient is unable to participate in medical
treatment decisions, a patient representative who is a guardian
after complying with section 5314 of the estates and protected
individuals code, 1998 PA 386, MCL 700.5314.
(2) If a patient representative is consenting to the medical
orders contained on the POST form, the patient representative shall
comply with the patient's expressed wishes. If the patient's wishes
are unknown, the patient representative shall consent to the
medical orders in the following manner:
(a) If the patient representative is a guardian, in a manner
that is consistent with the patient's best interest.
(b) If the patient representative is a patient advocate,
subject to section 5509(1)(e) of the estates and protected
individuals code, 1998 PA 386, MCL 700.5509.
(3) Before a patient and an attending health professional or a
patient representative and an attending health professional sign a
POST form, the attending health professional shall consult with the
patient or patient representative and explain to the patient or
patient representative the nature and content of the POST form and
the medical implications of the medical orders contained on the
POST form. The attending health professional who signs the POST
form shall obtain a copy or duplicate of the POST form and make
that copy or duplicate part of the patient's permanent medical
record. The patient or the patient representative shall maintain
possession of the original POST form.
Sec. 5678. (1) The following individuals may revoke a POST
form under the following circumstances:
(a) The patient may revoke the POST form at any time and in
any manner that the patient is able to communicate his or her
intent to revoke the POST form. If a patient is unable to
physically revoke the POST form in the manner described in
subsection (2), an individual who witnesses the patient's expressed
intent to revoke the POST form shall describe in writing the
circumstances of the revocation, must sign the writing, and shall
provide the writing to the individuals described in subsection (2),
as applicable.
(b) The patient representative may revoke the POST form at any
time the patient representative considers revoking the POST form to
be consistent with the patient's wishes or in the patient's best
interest.
(c) If a change in the patient's medical condition makes the
medical orders on the POST form contrary to generally accepted
health care standards, the attending health professional who signed
the POST form may revoke the POST form.
(2) To revoke the POST form, a patient, patient
representative, or attending health professional shall write
"revoked" over the signature of the patient or patient
representative, as applicable, and over the signature of the
attending health professional who signed the POST form. If a
patient representative revokes the POST form, the patient
representative shall take reasonable actions to notify 1 or more of
the following of the revocation:
(a) The attending health professional.
(b) A health professional who is treating the patient.
(c) The health facility that is directly responsible for the
medical treatment or care and custody of the patient.
Sec. 5679. (1) In an acute care setting, a health professional
who is treating the patient may use a completed POST form as a
communication tool.
(2) Emergency medical services personnel shall provide or
withhold treatment to a patient according to the orders on a POST
form unless either of the following occurs:
(a) The emergency medical services being provided by the
emergency medical services personnel are necessitated by an injury
or medical condition that is unrelated to the diagnosis or medical
condition that is indicated on the patient's POST form.
(b) The orders on the POST form request medical treatment that
is contrary to generally accepted health care standards or
emergency medical protocols.
(3) If a health professional or health facility is unwilling
to comply with the medical orders on a validly executed POST form
because of a policy, religious belief, or moral conviction, the
health professional or health facility shall take all reasonable
steps to refer or transfer the patient to another health
professional or health facility. If an adult foster care facility
is unwilling to comply with the medical orders on a validly
executed POST form for the reasons described in this subsection,
the adult foster care facility shall take all reasonable steps to
refer or transfer the patient to another adult foster care facility
as provided in section 26c of the adult foster care licensing act,
1979 PA 218, MCL 400.726c.
Sec. 5680. A person is not subject to criminal prosecution,
civil liability, or professional disciplinary action for any of the
following:
(a) Providing medical treatment that is contrary to the
medical orders indicated on a POST form if the person did not have
actual notice of the POST form.
(b) Providing medical treatment that is consistent with the
medical orders indicated on a POST form if the person did not have
actual notice that the POST form was revoked.
(c) Providing emergency medical services consistent with
generally accepted health care standards or emergency medical
protocols as provided in section 5679, regardless of the medical
orders indicated on the POST form.
Sec. 5681. (1) If a POST form is validly executed after a
patient advocate designation that contains written directives
regarding medical treatment, the medical orders indicated on the
POST form are presumed to express the patient's current wishes.
(2) If a POST form is validly executed after a do-not-
resuscitate order is executed under the Michigan do-not-resuscitate
procedure act, 1996 PA 193, MCL 333.1051 to 333.1067, the medical
orders indicated on the POST form are presumed to express the
patient's current wishes.
Sec. 5682. If an individual has reason to believe that a POST
form has been executed contrary to the wishes of the patient or, if
the patient is a ward, contrary to the wishes or best interests of
the ward, the individual may petition the probate court to have the
POST form and the conditions of its execution reviewed. If the
probate court finds that the POST form has been executed contrary
to the wishes of the patient or, if the patient is a ward, contrary
to the wishes or best interests of the ward, the probate court
shall issue an injunction voiding the effectiveness of the POST
form and prohibiting compliance with the POST form.
Sec. 5683. A life insurer shall not do any of the following
because of the execution or implementation of a POST form:
(a) Refuse to provide or continue coverage to the patient.
(b) Charge the patient a higher premium.
(c) Offer a patient different policy terms because the patient
has executed a POST form.
(d) Consider the terms of an existing policy of life insurance
to have been breached or modified.
(e) Invoke a suicide or intentional death exemption or
exclusion in a policy covering the patient.
Sec. 5684. (1) The provisions of this part are cumulative and
do not impair or supersede a legal right that a patient or patient
representative may have to consent to or refuse medical treatment
for himself or herself or on behalf of another.
(2) This part does not create a presumption that a patient who
has executed a POST form intends to consent to or refuse medical
treatment that is not addressed in the medical orders on the POST
form.
(3) This part does not create a presumption that a patient or
patient representative who has not executed a POST form intends to
consent to or refuse any type of medical treatment.
Sec. 5685. (1) Within 3 years after the effective date of the
amendatory act that added this part, the director shall appoint an
ad hoc advisory committee in the same manner as described in
section 5675.
(2) The first meeting of the committee shall be called by the
director.
(3) Within 90 days after the first meeting of the committee is
convened, the committee shall submit a report to the department
that contains recommendations on all of the following:
(a) Any changes to the rules promulgated under section 5676
that the committee considers necessary or appropriate.
(b) Any changes to the POST form that the committee considers
necessary or appropriate.
(c) Any legislative changes to this part that the committee
considers necessary or appropriate.
(4) After the department receives the recommendations from the
committee under subsection (3), the committee is abolished.
(5) As used in this section, "committee" means the ad hoc
advisory committee appointed under subsection (1).
Sec. 20192a. A health facility or agency shall not require the
execution of a POST form under part 56B as a condition for
admission or the receipt of services.
Sec. 20919. (1) A medical control authority shall establish
written protocols for the practice of life support agencies and
licensed emergency medical services personnel within its region.
The medical control authority shall develop and adopt the protocols
required under this section in accordance with procedures
established by the department and shall include all of the
following:
(a) The acts, tasks, or functions that may be performed by
each type of emergency medical services personnel licensed under
this part.
(b) Medical protocols to ensure the appropriate dispatching of
a life support agency based upon medical need and the capability of
the emergency medical services system.
(c) Protocols for complying with the Michigan do-not-
resuscitate procedure act, 1996 PA 193, MCL 333.1051 to 333.1067.
(d) Protocols defining the process, actions, and sanctions a
medical control authority may use in holding a life support agency
or personnel accountable.
(e) Protocols to ensure that if the medical control authority
determines that an immediate threat to the public health, safety,
or welfare exists, appropriate action to remove medical control can
immediately be taken until the medical control authority has had
the opportunity to review the matter at a medical control authority
hearing. The protocols must require that the hearing is held within
3 business days after the medical control authority's
determination.
(f) Protocols to ensure that if medical control has been
removed from a participant in an emergency medical services system,
the participant does not provide prehospital care until medical
control
is reinstated , and
that the medical control authority that
removed the medical control notifies the department of the removal
within
1 business day. of the removal.
(g) Protocols to ensure that a quality improvement program is
in place within a medical control authority and provides data
protection as provided in 1967 PA 270, MCL 331.531 to 331.534.
(h) Protocols to ensure that an appropriate appeals process is
in place.
(i) Protocols to ensure that each life support agency that
provides basic life support, limited advanced life support, or
advanced life support is equipped with epinephrine or epinephrine
auto-injectors and that each emergency services personnel
authorized to provide those services is properly trained to
recognize an anaphylactic reaction, to administer the epinephrine,
and to dispose of the epinephrine auto-injector or vial.
(j) Protocols to ensure that each life support vehicle that is
dispatched and responding to provide medical first response life
support, basic life support, or limited advanced life support is
equipped with an automated external defibrillator and that each
emergency medical services personnel is properly trained to utilize
the automated external defibrillator.
(k)
Except as otherwise provided in this subdivision, within
12
months after the effective date of the amendatory act that added
this
subdivision, before October
15, 2015, protocols to ensure that
each life support vehicle that is dispatched and responding to
provide medical first response life support, basic life support, or
limited advanced life support is equipped with opioid antagonists
and that each emergency medical services personnel is properly
trained
to administer opioid antagonists. Beginning 3 years after
the
effective date of the amendatory act that added this
subdivision,
October 14, 2017, a medical control authority, at its
discretion, may rescind or continue the protocol adopted under this
subdivision.
(l) Protocols for complying with part 56B.
(2) A medical control authority shall not establish a protocol
under this section that conflicts with the Michigan do-not-
resuscitate procedure act, 1996 PA 193, MCL 333.1051 to 333.1067,
or part 56B.
(3) The department shall establish procedures for the
development and adoption of written protocols under this section.
The procedures must include at least all of the following
requirements:
(a) At least 60 days before adoption of a protocol, the
medical control authority shall circulate a written draft of the
proposed protocol to all significantly affected persons within the
emergency medical services system served by the medical control
authority and submit the written draft to the department for
approval.
(b) The department shall review a proposed protocol for
consistency with other protocols concerning similar subject matter
that have already been established in this state and shall consider
any written comments received from interested persons in its
review.
(c) Within 60 days after receiving a written draft of a
proposed protocol from a medical control authority, the department
shall provide a written recommendation to the medical control
authority with any comments or suggested changes on the proposed
protocol. If the department does not respond within 60 days after
receiving the written draft, the proposed protocol is considered to
be approved by the department.
(d) After department approval of a proposed protocol, the
medical control authority may formally adopt and implement the
protocol.
(e) A medical control authority may establish an emergency
protocol necessary to preserve the health or safety of individuals
within its region in response to a present medical emergency or
disaster without following the procedures established by the
department under this subsection for an ordinary protocol. An
emergency protocol established under this subdivision is effective
only for a limited period and does not take permanent effect unless
it is approved according to the procedures established by the
department under this subsection.
(4) A medical control authority shall provide an opportunity
for an affected participant in an emergency medical services system
to appeal a decision of the medical control authority. Following
appeal, the medical control authority may affirm, suspend, or
revoke its original decision. After appeals to the medical control
authority have been exhausted, the affected participant in an
emergency medical services system may appeal the medical control
authority's decision to the state emergency medical services
coordination committee created in section 20915. The state
emergency medical services coordination committee shall issue an
opinion on whether the actions or decisions of the medical control
authority are in accordance with the department-approved protocols
of the medical control authority and state law. If the state
emergency medical services coordination committee determines in its
opinion that the actions or decisions of the medical control
authority are not in accordance with the medical control
authority's department-approved protocols or with state law, the
state emergency medical services coordination committee shall
recommend that the department take any enforcement action
authorized under this code.
(5) If adopted in protocols approved by the department, a
medical control authority may require life support agencies within
its region to meet reasonable additional standards for equipment
and personnel, other than medical first responders, that may be
more stringent than are otherwise required under this part. If a
medical control authority proposes a protocol that establishes
additional standards for equipment and personnel, the medical
control authority and the department shall consider the medical and
economic impact on the local community, the need for communities to
do long-term planning, and the availability of personnel. If either
the medical control authority or the department determines that
negative medical or economic impacts outweigh the benefits of those
additional standards as they affect public health, safety, and
welfare, the medical control authority shall not adopt and the
department shall not approve protocols containing those additional
standards.
(6) If adopted in protocols approved by the department, a
medical control authority may require medical first response
services and licensed medical first responders within its region to
meet additional standards for equipment and personnel to ensure
that each medical first response service is equipped with an
epinephrine auto-injector, and that each licensed medical first
responder is properly trained to recognize an anaphylactic reaction
and to administer and dispose of the epinephrine auto-injector, if
a life support agency that provides basic life support, limited
advanced life support, or advanced life support is not readily
available in that location.
(7) If a decision of the medical control authority under
subsection (5) or (6) is appealed by an affected person, the
medical control authority shall make available, in writing, the
medical and economic information it considered in making its
decision. On appeal, the state emergency medical services
coordination committee shall review this information under
subsection (4) and shall issue its findings in writing.
Enacting section 1. This amendatory act takes effect 90 days
after the date it is enacted into law.
Enacting section 2. This amendatory act does not take effect
unless all of the following bills of the 98th Legislature are
enacted into law:
(a) Senate Bill No.____ or House Bill No. 5479 (request no.
03918'15 a).
(b) Senate Bill No.____ or House Bill No. 5481 (request no.
04822'15).
(c) Senate Bill No.____ or House Bill No. 5480 (request no.
04823'15).