The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)


STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6727

August 21, 1992

MEDICAL CONTROL AUTHORITY:

Adoption of written protocols

PUBLIC HEALTH DEPARTMENT:

Approval of written protocols

The adoption of a written protocol by a local medical control authority and the protocol's approval by the Michigan Department of Public Health are not subject to the rule-making requirements of the Administrative Procedures Act of 1969.

Honorable Jack Welborn

State Senator

The Capitol

Lansing, MI

You have asked a question which may be stated as follows:

Are the adoption of a written protocol by a local medical control authority and the protocol's approval by the Michigan Department of Public Health subject to the rule-making requirements of the Administrative Procedures Act of 1969?

The procedure for establishing written protocols is governed by Part 209 of the Public Health Code, the emergency medical services provisions, MCL 333.20901 et seq, MSA 14.15(20901) et seq. In particular, section 20919 of the Public Health Code states, in pertinent part:

(1) A local medical control authority shall establish written protocols for the practice of life support agencies and licensed emergency medical services personnel within its region. The protocols shall be developed and adopted in accordance with procedures established by the department [of Public Health] and shall include all of the following:

(a) The acts, tasks, or functions [of Public Health] 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.

(2) The procedures established by the department for development and adoption of written protocols under this section shall comply with at least all of the following requirements:

(a) At least 60 days prior to 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) Not later than 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 shall be 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.

The first issue to address is whether the adoption of a written protocol by a medical control authority is subject to the rule-making requirements of the Administrative Procedures Act of 1969, (APA), MCL 24.201 et seq; MSA 3.560(101) et seq. In League General Ins Co v Michigan Catastrophic Claims Ass'n, 435 Mich 338, 343, 351; 458 NW2d 632 (1990), the Michigan Supreme Court held that the Michigan Catastrophic Claims Association is not a state agency subject to the rule-making requirements of the APA. In reaching that result, the Court examined the definition of agency contained in section 3(2) of the APA and concluded that the entity in question had to be a state unit to be subject to the rule-making requirements of the APA.

Here, in several sections of Part 209 of the Public Health Code, the Legislature has expressly utilized the phrase "local medical control authority." See sections 20918(1) and 20919(1). Each medical control authority has authority only within "a particular geographic region." See section 20910(1)(k).

Clearly, the Legislature has established these medical control authorities as local units. Thus, in adopting a written protocol a local medical control authority is not a state agency subject to the rule-making requirements of the APA.

On the other hand, the Department of Public Health is clearly a state agency. In fact, that department is required to follow the APA when it promulgates rules. See, for example, MCL 333.1108(1); MSA 14.15(1108)(1).

Here, however, the department is not promulgating rules when it approves the written protocols. Section 5(7) of the APA defines promulgation of a rule as consisting of filing the rule with the Secretary of State. Nowhere in the provisions governing local medical control authorities is there any requirement that written protocols be filed with the Secretary of State. In addition, section 5 of the APA applies to the department when it is promulgating its own rules. Here the department is merely approving a protocol of a local medical control authority.

Moreover, section 20919 of Part 209 of the Public Health Code, which governs adoption of a written protocol by a local medical control authority and its approval by the Department of Public Health, provides its own procedural requirements to establish written protocols. There is no reference to the APA in section 20919. Where the Legislature has established explicit alternative procedural requirements that depart from the provisions of the APA, the Michigan Supreme Court has concluded that the rule-making requirements of the APA do not apply. Hanselman v Wayne County Concealed Weapon Licensing Bd, 419 Mich 168, 198; 351 NW2d 544 (1984). Thus, the approval of a written protocol of a local medical control authority by the Department of Public Health is not subject to the rule-making requirements of the APA since that department is not promulgating its own administrative rule.

It is my opinion, therefore, that the adoption of a written protocol by a local medical control authority and the protocol's approval by the Michigan Department of Public Health are not subject to the rule-making requirements of the Administrative Procedures Act of 1969.

Frank J. Kelley

Attorney General