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
ADULT FOSTER CARE FACILITIES:
Application of Michigan Do-Not-Resuscitate Procedures Act to adult foster care facilities
The Adult Foster Care Facility Licensing Act does not require that an adult foster care facility resuscitate its resident whose heart and breathing have stopped and who has executed a valid do-not-resuscitate order pursuant to the Michigan Do-Not-Resuscitate Procedure Act.
Opinion No. 6986
June 16, 1998
Honorable John J. H. Schwarz, M.D.
Lansing, MI 48909-7536
You have asked whether the Adult Foster Care Facility Licensing Act requires an adult foster care facility to resuscitate its resident whose heart and breathing have stopped and who has executed a valid do-not-resuscitate order pursuant to the Michigan Do-Not-Resuscitate Procedure Act.
The Michigan Do-Not-Resuscitate Procedure Act (MDNRPA), 1996 PA 193, MCL 333.1051 et seq; MSA 14.15(1051) et seq, took effect on August 1, 1996. The Legislature's purpose in adopting this act is succinctly described in the Senate Legislative Analysis that accompanied SB 452, which became the MDNRPA:
Hospitals and many long-term health care facilities have over the years developed policies and procedures for honoring do-not-resuscitate requests from seriously ill patients, but no such system has evolved for handling the cases of persons outside a health facility. . . . Senate Bill 452 creates a legally recognized means whereby such requests will have to be honored.
Senate Legislative Analysis, SB 452, August 6, 1996. (Emphasis added.)
Consistent with this purpose, section 2(c) of this act defines the term "Do-not-resuscitate order," for purposes of that Act, as:
[A] document executed pursuant to section 3 or 5 directing that, in the event that a patient suffers cessation of both spontaneous respiration and circulation in a setting outside of a hospital, a nursing home, or a mental health facility owned or operated by the department of community health, no resuscitation will be initiated.
Pursuant to section 3 of the act, a person who is 18 years of age or older and who is of sound mind, or his or her patient advocate, may execute a do-not-resuscitate order pursuant to the specific procedures described in the act. A do-not-resuscitate order directs that in the event that a declarant's heart and breathing should stop, no person shall attempt to resuscitate the declarant. Section 2(c), supra, and section 4. A person is not subject to civil or criminal liability for withholding resuscitative measures from a declarant. Section 12. Such immunity would not, of course, shield a person from responsibility from an intentional or negligent act or omission which may cause a declarant's heart or breathing to stop.
The Adult Foster Care Facility Licensing Act (AFCFLA), 1979 PA 218, MCL 400.701 et seq; MSA 16.610(51) et seq, provides for the licensing and regulation of adult foster care facilities. Section 3(4) of the AFCFLA defines an "adult foster care facility" as "a governmental or non-governmental establishment that provides foster care to adults" and includes "facilities and foster care family homes for adults who are aged, mentally ill, developmentally disabled, or physically handicapped who require supervision on an ongoing basis but who do not require continuous nursing care." However, section (3)(4) goes on to provide that the term "adult foster care facility" does not include, inter alia, a nursing home or a hospital licensed under article 17 of the public health code, or a hospital for the mentally ill or a facility for the developmentally disabled operated by the state under the mental health code. Thus, an adult foster care facility, by definition, is not "a hospital, a nursing home, or a mental health facility owned or operated by the department of community health" within the meaning of the MDNRPA and, in the absence of any provision to the contrary, would appear to be precisely the type of setting in which the MDNRPA was intended to apply.
As part of the function of licensing and regulating adult foster care facilities, the AFCFLA establishes the standard of care that must be provided by an adult foster care facility. To that end, foster care is defined by that act as "the provision of supervision, personal care, and protection in addition to room and board, for 24 hours a day, 5 or more days a week, and for 2 or more consecutive weeks for compensation." Section 4(6) (emphasis added). The term "protection," in turn, is defined in section 6(4) of the AFCFLA as follows:
"Protection," subject to section 26a(2), means the continual responsibility of the licensee to take reasonable action to insure the health, safety, and well-being of a resident, including protection from physical harm, humiliation, intimidation, and social, moral, financial, and personal exploitation while on the premises, while under the supervision of the licensee or an agent or employee of the licensee, or when the resident's assessment plan states that the resident needs continuous supervision.
Section 26a(2), referenced in this definition, provides:
A licensee providing foster care to a resident who is enrolled in a licensed hospice program and whose assessment plan includes a do-not-resuscitate order is considered to be providing protection to the resident for purposes of section 6(4) and the rules promulgated under this act if, in the event the resident suffers cessation of both spontaneous respiration and circulation, the licensee contacts the licensed hospice program.
Your question asks, in essence, whether an adult foster care facility's obligation to provide protection as defined in section 6(4) of the AFCFLA, supra, requires the facility to attempt to resuscitate a resident even when the resident has previously executed a valid do-not-resuscitate order pursuant to the MDNRPA.
It is significant in this regard that both the current definition of "protection" contained in section 6(4) of the AFCFLA and the related provisions of section 26a(2) of that act were added to that act simultaneously with the adoption of the MDNRPA and, in fact, were tie-barred to the enactment of the latter act. Statutes which pertain to the same general subject matter or have a common purpose, such as the MDNRPA and the AFCFLA, are required, under rules of statutory construction, to be construed together. This rule of statutory construction, restated in Boards of County Road Comm'rs v Bd of State Canvassers, 50 Mich App 89, 103; 213 NW2d 298 (1973), aff'd 391 Mich 666; 218 NW2d 144 (1974):
"[A]pplies with peculiar force to statutes passed at the same session of the Legislature, especially where they are passed or approved on the same day, or where statutes are passed or approved at about the same time, or where one refers to the other, or is declared to be cumulative. It is to be presumed that such acts are imbued with the same spirit and actuated by the same policy, and they are to be construed together as if parts of the same act, or supplemental to each other."
(Emphasis in original; citation omitted.)
Applying this rule of construction, the definition of protection under the AFCFLA must be construed in a manner that is consistent with the MDNRPA, which specifically authorizes the withholding of resuscitation from a resident who has, pursuant to the MDNRPA, executed a valid do-not-resuscitate order directing that he or she not be revived following expiration. Similarly, the fact that section 26a(2) of the AFCFLA specifically refers only to patients enrolled in a licensed hospice program cannot be read as limiting the provisions of the MDNRPA in adult foster care provisions only to such hospice enrolled residents. Such a reading would clearly contravene the plain intent of the Legislature in its simultaneous adoption of the MDNRPA and amendment of the AFCFLA.
It is my opinion, therefore, that the Adult Foster Care Facility Licensing Act does not require that an adult foster care facility resuscitate its resident whose heart and breathing have stopped and who has executed a valid do-not-resuscitate order pursuant to the Michigan Do-Not-Resuscitate Procedure Act.
FRANK J. KELLEY
STATE OF MICHIGAN