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 - http://www.ag.state.mi.us)
STATE OF MICHIGAN
BILL SCHUETTE, ATTORNEY GENERAL
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CHILD CARE ORGANIZATIONS ACT: CHILDREN AND MINORS: PUBLIC HEALTH CODE: DEPARTMENT OF HUMAN SERVICES: |
Administration of insulin and glucagon to children at child-care organizations. |
The Child Care Organizations Act, 1973 PA 116, MCL 722.111 et seq., as implemented by the Department of Human Services in Mich Admin Code, R 400.5113b, permits adult caregivers to administer insulin and glucagon to a child in attendance at a child-care organization with the prior written permission of a parent, pursuant to the instructions of the child’s licensed practitioner, and in accordance with the remainder of the rule’s provisions.
Opinion No. 7274
August 28, 2013
Honorable Senator Rick Jones
State Senator
The Capitol
Lansing, Michigan 48909
You have asked whether Michigan law permits child-care organization employees, who are not licensed health-care professionals, to administer insulin and glucagon to children who have diabetes and require these medications while in attendance at a child-care organization.[1]
The Child Care Organizations Act, 1973 PA 116, MCL 722.111 et seq., provides for the licensing and regulation of the various types of child-care organizations and their employees. The Act itself does not directly address whether licensed child-care providers may administer medications to children entrusted to an organization’s care. However, Section 14a(1) of the Act, MCL 722.124a(1), provides authority for the Department of Human Services to execute written instruments investing child-care organizations, “with authority to consent to emergency medical and surgical treatment of [a] child” and to, “routine, nonsurgical medical care of [a] child.” And the Act also requires that the Department of Human Services develop and adopt administrative rules “for the care and protection of children in organizations covered by [the] act.” MCL 722.112(1). Section 2(4), MCL 722.112(4), provides in part that:
(4) The rules promulgated under this act shall be restricted to the following:
(a) The operation and conduct of child care organizations and the responsibility the organizations assume for child care.
(e) The appropriateness, safety, cleanliness, and general adequacy of the premises, including maintenance of adequate fire prevention and health standards to provide for the physical comfort, care, and well being of the children received. . . .
(f) Provisions for food, clothing, educational opportunities, programs, equipment, and individual supplies to assure the healthy physical, emotional, and mental development of children served.
As mandated, the Department of Human Services has adopted a comprehensive set of rules governing the operation of child-care organizations. See Mich Admin Code, R 400.5101 through R 400.5940.[2] Rule 400.5113b expressly contemplates that adult caregivers may administer medicine to children with the written approval of a parent:
(1) Medication, prescription or nonprescription, shall be given to a child by an adult caregiver only.
(2) Medication, prescription or nonprescription, shall be given or applied only with prior written permission from a parent.[[3]]
(3) All medication shall be [in] its original container, stored according to instructions, and clearly labeled for a named child.
(4) Prescription medication shall have the pharmacy label indicating the physician’s name, child’s name, instructions, and name and strength of the medication and shall be given according to those instructions.
* * *
(6) A caregiver shall give or apply any prescription or nonprescription medication according to the directions on the original container unless authorized by a written order of the child’s physician. [Emphasis added.]
The promulgation of this rule fell within the authority delegated to the Department of Human Services to adopt rules under section 2(4)(a), (e), and (f) of the Act, MCL 722.122(4)(a), (e), and (f). See, e.g., Taylor v Gate Pharmaceuticals, 468 Mich 1, 10; 658 NW2d 127 (2003). Rules that are properly promulgated under the Administrative Procedures Act, MCL 24.201 et seq., have the force of law. Danse Corp v City of Madison Heights, 466 Mich 175, 181; 644 NW2d 721 (2002). Since the rule includes prescription medications and does not otherwise exclude insulin or glucagon, it can be concluded that both may be administered by adult caregivers so long as the requirements of the rule are met.[4]
At least one additional provision of the licensing rules for child-care organizations supports the conclusion that an adult caregiver in a child-care organization who observes the requirements of Rule 400.5113b may administer insulin and glucagon. Rule 400.5106(10) covers “children with special needs” and establishes an obligation on the part of child-care organizations to “work with the parents, medical personnel and/or other relevant professionals to provide care according to the child’s identified needs.” Children who require treatment with glucagon and insulin may be considered to have a “special” or “identified” need for that treatment, meaning that the child-care center has an obligation to “work with the parents, medical personnel and/or other relevant professionals to provide care” in administering that treatment.[5]
There are no medical licensing requirements for the adult caregiver in this situation, nor does the administration of these medications under the described circumstances run contrary to any specific provision in the Michigan Public Health Code, MCL 333.1101 et seq. [6] The Public Health Code generally prohibits the unlicensed “practice of medicine,” MCL 333.17011, which term is defined as:
[T]he diagnosis, treatment, prevention, cure, or relieving of a human disease, ailment, defect, complaint, or other physical or mental condition, by attendance, advice, device, diagnostic test, or other means, or offering, undertaking, attempting to do, or holding oneself out as able to do, any of these acts. [MCL 333.17001(f)].
The administration of insulin or glucagon to a diabetic child by an adult caregiver – or a parent for that matter – arguably falls within this broad definition. However, “the scope of the definition’s reach has . . . been limited by the Supreme Court.” People v Rogers, 249 Mich App 77, 96-97; 641 NW2d 595 (2001). In Rogers, the Court of Appeals observed that “[i]n a number of cases, the Supreme Court, citing Locke v Ionia Circuit Judge, 184 Mich 535, 539; 151 NW 623 (1915), has noted that exceptions to the definition of ‘practice of medicine’ for ‘gratuitous and humane acts of relief and kindness,’ have been judicially engrafted.” Rogers, 249 Mich App at 97, citing People v Banks, 236 Mich 8, 14-15; 209 NW 935 (1926); People v Sekelyn, 217 Mich 341, 343; 186 NW 479 (1922), and People v Watson, 196 Mich 36, 39; 162 NW 943 (1917).[7] Based on these limiting constructions, the Court of Appeals concluded that the definition of the “practice of medicine” was not unconstitutionally overbroad, and would not prohibit a person, like the defendant in that case, from discussing alternative remedies with individuals. Rogers, 249 Mich App at 100-101.
These decisions and the limiting constructions accorded the definition of the “practice of medicine” support a conclusion that parents or caregivers acting in the place of parents, who administer insulin or glucagon as directed by a licensed practitioner (and as authorized by a parent, if applicable), are not practicing medicine.[8] Rather, it is the physician or other licensed practitioner who has engaged in the “practice of medicine” by diagnosing the disease; devising a treatment plan; prescribing the medication; determining how the medication should be administered; and instructing the parents (or possibly even the caregiver) in administering the medication.[9]
It is my opinion, therefore, that the Child Care Organizations Act, as implemented by the Department of Human Services in Rule 400.5113b, permits adult caregivers to administer insulin and glucagon to a child in attendance at a child-care organization with the prior written permission of a parent, pursuant to the instructions of the child’s licensed practitioner, and in accordance with the remainder of the rule’s provisions.[10]
BILL SCHUETTE
Attorney General
[1] According to the American Diabetes Association, insulin is often administered by syringe through an injection, but other options include insulin pens and pumps. See <www.diabetes.org/living-with-diabetes/treatment-and-care/medication/insulin/insulin-routines.html> (accessed March 12, 2013). Glucagon is only administered by syringe through an injection. See < www.diabetes.org/living-with-diabetes/treatment-and-care/blood-glucose-control/hypoglycemia-low-blood.html> (accessed March 12, 2013).
[2] The administrative rules are available online at <www7.dleg.state.mi.us/orr/Files/AdminCode /960_2010-045HS_AdminCode.pdf> (accessed March 12, 2013).
[3] The term “parent” means “a child’s natural parent, guardian, or another legally responsible person.” Rule 400.5101(k).
[4] A child-care organization must have a health-care plan that explains the organization’s policies and practices, and this plan must be provided to parents at the time of enrollment. See Rule 400.5111b and Rule 400.5114(1)(g). See also Child Care Center Rules, Technical Assistance and Consultation Manual, February 1, 2013, Rule 400.5111b, Rule 400.5113b(1), available at <www.michigan.gov/documents/Child_Care_Center_Rules_Technical_Assistance_and_Consultation_Manual_162653_7.pdf> (accessed March 12, 2013).
[5] Notably, children with diabetes are covered by the federal Americans with Disabilities Act of 1990 (ADA), 42 USC 12181-12189, and its implementing regulation, 28 CFR Part 36, and child-care organizations, other than those operated by a religious organization, are subject to the ADA as public accommodations. The Disability Rights Section of the Civil Rights Division of the United States Department of Justice provides a fact sheet describing the application of the ADA to child-care organizations. See <www.ada.gov/childq&a.htm> (accessed March 12, 2013). Michigan’s Persons With Disabilities Civil Rights Act, MCL 37.1401 et seq., is construed similar to the ADA. Peden v Detroit, 470 Mich 195,198, 222; 680 NW2d 857 (2004).
[6] With respect to medical training, the Department of Human Services requires through Rule 400.5102(3)(b) and Rule 400.5102a, that all child-care organization staff receive certain annual medical training, and that each child-care organization have on duty at all times a caregiver who has current certification in infant, child, and adult cardio pulmonary resuscitation, and in first aid.
[7] Similarly, section 16171(d) of the Public Health Code, MCL 333.16171(d), creates an exception from health profession licensing requirements for “[a]n individual who provides nonmedical nursing or similar services in the care of the ill or suffering . . . who does not hold himself or herself out to be a health professional.”
[8] This conclusion is consistent with section 16294 of the Public Health Code, MCL 333.16294,which imposes a punishment on “an individual who practices or holds himself or herself out as practicing a health profession regulated by this article without a license or registration . . . .” (Emphasis added).
[9] To the extent the analysis in OAG, 1979-1980, No 5679, p 709 (April 11, 1980), concluding that the administration of epinephrine to students by public school employees constituted the “practice of medicine” under the Public Health Code, conflicts with this opinion, OAG No 5679 is superseded. That opinion issued well before, and without the guidance provided by, the Court of Appeals’ decision in Rogers, 249 Mich App 77, supra.
[10] Because diabetes is a chronic condition becoming more prevalent in children, the Legislature and the Department of Human Services may wish to address the issues discussed in this opinion through statutory and regulatory changes, similar to those in place for school-age children. For example, the Revised School Code, MCL 380.1 et seq., includes a provision immunizing school personnel from civil or criminal liability for the administration of medication to school children, excepting acts of gross negligence. MCL 380.1178(1). Also, pursuant to MCL 380.1178a(1)(b), the Michigan State Board of Education has prepared a Model Policy on the Management of Diabetes in the School Setting (November 8, 2011), <www.michigan.gov/documents/mde/SBE_Model_Policy_on_the_Management_of_Diabetes_in_the_School_Setting_FINAL_11-8-11_370189_7.pdf> (accessed March 12, 2013), for school administrators to pattern. Similar enactments with respect to child-care organizations would likely be beneficial for families and their child-care providers.