Opinion #7165

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

MIKE COX, ATTORNEY GENERAL

OPEN MEETINGS ACT:

PUBLIC HEALTH CODE:

Application of Open Meetings Act to medical control authorities

Local medical control authorities are subject to the Open Meetings Act.

Opinion No. 7165

December 27, 2004

Mr. Larry J. Burdick
Isabella County Prosecuting Attorney
200 North Main Street
Mt. Pleasant, MI 48858

You have asked whether local medical control authorities created under the Public Health Code, MCL 333.1101 et seq, are public bodies subject to the Open Meetings Act (OMA), MCL 15.261 et seq.

Local medical control authorities (MCAs)¹ are created pursuant to Part 209 of the Public Health Code, entitled Emergency Medical Services. MCL 333.20901 et seq. Section 20910(1)(a) provides that the Department of Community Health (Department)² shall "[b]e responsible for the development, coordination, and administration of a statewide emergency medical services system." Section 20918(1) provides that the "department shall designate a medical control authority for each Michigan county or part of a county"³ as part of a statewide emergency medical services system to "'supervise emergency medical services'" in their designated geographical regions. See OAG, 2001-2002, No 7072, p 5 (January 18, 2001).

The Michigan Court of Appeals described the authority of MCAs in DenBoer v Lakola Medical, 240 Mich App 498, 500-501; 618 NW2d 8 (2000):

The statewide emergency medical services system is governed by local MCAs, which are organized and administered by local hospitals within each geographic region. Each person licensed under the [emergency medical services] act is accountable to their local MCA in the provision of emergency medical services. . . . The MCAs have statutory power and authority to supervise emergency medical services and to govern the practice of licensed medical services personnel . . . . [Citations omitted.]

The Court further stated that the former Department of Public Health (now Department of Community Health) "is responsible for developing, coordinating, and administering a statewide emergency system, but supervision of emergency medical services is the responsibility of the local MCAs." Id., at 502, citing MCL 333.20920(1)(a) and 333.20906. See also, OAG, 1991-1992, No 6727, p 170 (August 21, 1992) (stating that "the Legislature has established these medical control authorities as local units").

In addition, MCAs are empowered to establish written protocols, which are defined by section 20908(9) of the Public Health Code:

"Protocol" means a patient care standard, standing orders, policy, or procedure for providing emergency medical services that is established by a medical control authority and approved by the department under section 20919. [MCL 333.20908(9).]

Specifically, MCL 333.20919(1)(a)-(c) provides that the protocols 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.

In order to implement emergency medical services in their geographic regions, MCAs are required to submit written drafts of proposed protocols to the Department for review and approval prior to adoption and implementation. MCL 333.20919(1) and 333.20919(3)(a)-(d).

In summary, the MCAs are local units connected with participating hospitals that are created and empowered under Part 209 of the Public Health Code to supervise the delivery of emergency medical services and to govern the practice of licensed emergency medical services personnel in an area designated by the Department.

The Open Meetings Act provides that a "state or local legislative or governing body, including a board, commission, committee, subcommittee, authority, or council, that is empowered by state constitution, statute, charter, ordinance, resolution, or rule to exercise governmental or proprietary authority or perform a governmental or proprietary function" constitutes a "public body" subject to the OMA. MCL 15.262(a). As evidenced by its title, the OMA applies only to public bodies. OAG, 1977-1978, No 5207, p 157 (June 24, 1977).

The purpose of the OMA is "to promote a new era in governmental accountability" and to foster "openness in government as a means of promoting responsible decision making." Booth Newspapers, Inc v University of Michigan Bd of Regents, 444 Mich 211, 222-223; 507 NW2d 422 (1993). Toward that end, the OMA provides that "[a]ll decisions of a public body shall be made at a meeting open to the public" and "[a]ll deliberations of a public body constituting a quorum of its members shall take place at a meeting open to the public [with limited exceptions]." MCL 15.263(2) and (3). "Decision" means "a determination, action, vote, or disposition upon a motion, proposal, recommendation, resolution, order, ordinance, bill, or measure on which a vote by members of a public body is required and by which a public body effectuates or formulates public policy." MCL 15.262(d).

Although the OMA's definition of public body is comprehensive, those bodies that are not empowered by law to exercise governmental or proprietary authority fall outside its scope. Arnold Transit Co v City of Mackinac Island, 415 Mich 362; 329 NW2d 712 (1982); Booth Newspapers, Inc v Wyoming City Council, 168 Mich App 459; 425 NW2d 695 (1988). Prior opinions of this office have consistently concluded that the definition of public body does not include advisory boards or committees of a public body that do not exercise governmental or proprietary authority. OAG, 1997-1998, No 6935, p 18 (April 2, 1997); OAG, 1981-1982, No 6053, p 616 (April 13, 1982); OAG, 1979-1980, No 5505, p 221 (July 3, 1979); OAG, 1977-1978, No 5183, pp 21, 40 (March 8, 1977).

In Lansing Mercy Ambulance Service v Tri-County Emergency Medical Control Auth, 893 F Supp 1337, 1345 (WD Mich, 1995), the Court determined that "the functions performed by [an MCA] are governmental in nature, as it is regulating the provision of EMS [emergency medical services] in the region, not just developing better methods of providing services, and such regulation is mandated by Michigan statute, and its decisions and protocols have the force of law."

While a primary function of the MCAs is to develop protocols that are subject to Department approval, the statutory procedures established for the development, adoption, and enforcement of those protocols clearly indicate that the MCAs are assigned more than an advisory role in that process. Responsibility for the implementation and enforcement of protocols is placed squarely upon the MCAs. The Public Health Code authorizes and requires MCAs to make governmental decisions and to take actions to regulate and control the provision of emergency medical services. MCL 333.20919.

It is my opinion, therefore, that local medical control authorities are subject to the Open Meetings Act.

MIKE COX
Attorney General

¹"Medical control authority" is defined as "an organization designated by the department under section 20910(1)(g) to provide medical control." MCL 333.20906(5). "Medical control" involves "supervising and coordinating emergency medical services through a medical control authority, as prescribed, adopted, and enforced through department-approved protocols, within an emergency medical services system." MCL 333.20906(4).

²Formerly known as the Department of Public Health.

³This section goes on to provide: "[E]xcept that the department may designate a medical control authority to cover 2 or more counties if the department and affected medical control authorities determine that the available resources would be better utilized with a multiple county medical control authority." MCL 333.20918(1).