HB-4170, As Passed House, June 20, 2017

SUBSTITUTE FOR

HOUSE BILL NO. 4170

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 facility 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 a physician,

physician's assistant, or certified nurse practitioner, who has

primary responsibility for the treatment of a patient and is

authorized to issue the medical orders on a POST form. To qualify

as an attending health professional, a 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 Michigan 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.

(7) "Information form" means the information form described in

section 5676.

Sec. 5674. (1) "Medical control authority" means that term as

defined in section 20906.

(2) "Patient" means an adult with an advanced illness or means

an adult with another medical condition that, despite available

curative therapies or modulation, compromises his or her health so

as to make death within 1 year foreseeable though not a specific or

predicted prognosis.

(3) "Patient advocate" means an individual presently

authorized to make medical treatment decisions on behalf of a

patient under sections 5506 to 5515 of the estates and protected

individuals code, 1998 PA 386, MCL 700.5506 to 700.5515.

(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 standardized POST 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) "Residential setting" means a setting outside of a

hospital, including, but not limited to, an adult foster care

facility.

(10) "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. The

committee must consist of 11 members appointed as follows:

(a) Four members of the committee must include 1 individual

representing each of the following:

(i) A health facility or an adult foster care facility, or an

organization or professional association representing health

facilities or adult foster care facilities.

(ii) A palliative care provider.

(iii) Emergency medical services personnel.

(iv) A medical control authority.

(b) Seven members of the committee may include, but are not

limited to, individuals representing the following:

(i) A health professional.

(ii) A patient advocacy organization.

(2) 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) Medical orders to be included on the POST form that relate

to emergency and nonemergency situations.

form.

(d) The procedures for the use of a POST form within a

residential setting.

(e) 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 POST form.

(3) After the department receives the recommendations from the

committee under subsection (2), the committee is abolished.

(4) 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 all 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.

(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.

(vi) A statement that for the POST form to remain in effect,

the POST form must be reviewed, dated, and initialed by either the

attending health professional and the patient or the attending

health professional and the patient representative, if any 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 an unexpected change in the patient's

medical condition.

level to another care setting or care level.

(D) The patient's treatment preferences change.

(E) The patient's attending health professional changes.

(vii) 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 is voluntary.

(viii) A statement that the POST form is void if any

information described in subparagraph (i), (ii), or (iii) is not

provided on the form.

(ix) 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.

(x) A space for the printed name and contact information of

the patient representative, if applicable.

(b) Develop an information form. The department shall include

on the information form at least all of the following:

(i) An introductory statement in substantially the following

form:

"The POST form is intended to be used as part of an advance care

planning process. The POST form is not intended to be used as a

stand-alone advance health care directive that unilaterally

expresses the patient's medical treatment wishes. The POST form

contains medical orders that are jointly agreed to by the patient

and the attending health professional or the patient representative

and the attending health professional. The medical orders on the

POST form reflect both the patient's expressed wishes or best

interests and the attending health professional's medical advice or

recommendation. An advance care planning process that uses the POST

form must recommend that the patient consider designating an

individual to serve as the patient's patient advocate to make

future medical decisions on behalf of the patient if the patient

becomes unable to do so.".

(ii) An explanation of who is considered a patient with an

advanced illness for purposes of executing a POST form.

(iii) An explanation of how a patient advocate is designated

under sections 5506 to 5515 of the estates and protected

individuals code, 1998 PA 386, MCL 700.5506 to 700.5515.

(iv) A statement indicating that, by signing the information

form, the patient or the patient representative acknowledges that

he or she had the opportunity to review the information form before

executing a POST form.

(v) A space for the signature of the patient or the patient

representative and a space to indicate the date the patient or the

patient representative reviewed the information form.

form within a residential setting. 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 capable of participating in the medical

treatment decisions included on the POST form, the patient.

(b) Subject to subsection (2), if a patient is not capable of

participating in the medical treatment decisions included on the

POST form, either of the following:

(i) A patient representative who is a patient advocate.

(ii) 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 provide the

patient or the patient representative with the information form

and, if the patient does not have a patient representative, the

attending health professional shall recommend to the patient that

the patient consider designating an individual to serve as the

patient's patient advocate to make future medical decisions on

behalf of the patient if the patient becomes unable to do so. The

attending health professional shall also 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 patient or patient representative shall sign the

information form at the time he or she signs the POST form under

this subsection. The attending health professional who signs the

POST form shall place the information form that is signed by the

patient or the patient representative in the patient's permanent

medical record. The attending health professional who signs the

POST form shall also 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) A 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 the patient's revocation is not in

writing, an individual who witnesses the patient's expressed intent

to revoke the POST form shall describe in writing the circumstances

of the revocation, sign the writing, and 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, if the patient's wishes

are unknown, in the patient's best interest.

medical orders on the POST form contrary to generally accepted

health care standards, the attending health professional may revoke

the POST form. If an attending health professional revokes a POST

form under this subdivision, he or she shall take reasonable

actions to notify the patient or the patient representative of the

revocation and the change in the patient's medical condition that

warranted the revocation of the POST form.

(2) Upon revocation of the POST form, the 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, on the POST form that is contained

in the patient's permanent medical record and on the original POST

form if the original POST form is available. If a patient or

patient representative revokes the POST form, the patient or

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.

medical treatment or care and custody of the patient.

(d) 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 any of the following apply:

(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.

initiation of resuscitation if the patient suffers cessation of

both spontaneous respiration and circulation, and the emergency

medical services personnel has actual notice of a do-not-

resuscitate order that was executed under the Michigan do-not-

resuscitate procedure act, 1996 PA 193, MCL 333.1051 to 333.1067,

after the POST form was validly executed. As used in this

subdivision, "actual notice" means that term as defined in section

2 of the Michigan do-not-resuscitate procedure act, 1996 PA 193,

MCL 333.1052.

(d) The POST form has been revoked in the manner provided in

this part and the emergency medical services personnel has actual

notice of the revocation.

(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 facility

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.

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, or another advance health care

directive 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. (1) 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.

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.

(2) A health insurer shall not do any of the following:

(a) Require the execution of a POST form to maintain or be

eligible for coverage.

(b) Charge a different premium based on whether a patient or

patient representative has executed a POST form.

breached or modified if the patient or patient representative has

executed a POST form.

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) By 3 years after the effective date of the

amendatory act that added this part, the director shall appoint an

ad hoc advisory committee consisting of 11 members in the same

manner as the ad hoc advisory committee is required to be appointed

under section 5675.

(2) The director shall call the first meeting of the

committee.

(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 or the information form that

the committee considers necessary or appropriate.

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.

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.

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 created in section 20915 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 99th Legislature are

enacted into law: