NONOPIOID DIRECTIVE FORM

House Bill 5152 as introduced

Sponsor:  Rep. Sam Singh

House Bill 5153 as introduced

Sponsor:  Rep. Edward J. Canfield, D.O.

Committee:  Health Policy

Complete to 2-20-18

BRIEF SUMMARY:

House Bill 5152 would amend the Public Health Code to provide for a nonopioid directive form, which would allow patients to opt out of being administered or prescribed an opioid. House Bill 5153 would incorporate the form into the Estates and Protected Individuals Code.

DETAILED SUMMARY:

House Bill 5152 (proposed MCL 333.9145)

The bill would add Section 9145 to the Public Health Code, which would describe the provisions and functions of a nonopioid directive form and the conditions that would allow for administering opioids. It would exempt health facilities and professionals from civil or criminal liability for good-faith action or inaction. The proposed section would also provide procedural outlines for the Michigan Department of Health and Human Services (MDHHS).

A nonopioid directive form (or “form”), when included in an individual's medical records, would instruct health professionals and emergency medical service personnel to neither administer an opioid nor offer an opioid prescription to a patient who had signed the form.

The form could be executed by an individual or by a guardian/patient advocate on behalf of an individual. If the form is presented to a health professional, the health professional must include it in the patient's medical records.

Additionally, the form could be revoked by an individual at any time by any means the individual is able to communicate. A guardian/patient advocate could revoke the form on behalf of his or her ward by providing a written notice to the relevant health professional.

Exceptions

If a patient has a form on record, a prescriber or a nurse under the order of a prescriber may administer an opioid if there is an emergency and the administration of an opioid is deemed necessary for treatment. If such an event occurs, the prescriber would ensure that the patient being treated is provided with information on substance use disorder services.

            Liability

The following parties would not be subject to civil or criminal liability or professional disciplinary action under the bill for either failing to administer, prescribe, or dispense an opioid or inadvertently administering an opioid to a patient with a form, if the action or inaction was in good faith:

·         A health professional whose scope of practice includes prescribing, administering, or dispensing controlled substances.

·         A health facility or agency licensed under Article 17 of the Public Health Code.

·         An employee of a health professional, facility, or agency.

·         A medical first responder, emergency medical technician, emergency medical technician specialist, paramedic, or emergency medical services instructor-coordinator (“emergency medical services personnel” as defined in Section 20904 of the Code).

            Procedure and Rules

Under the bill, MDHHS would create the form and make it available to the public via the MDHHS website. MDHHS would also promulgate rules that outline procedures for:

·         Recording a form in medical records (including electronic).

·         Revoking a form.

·         Ensuring that the recording, disclosure, or distribution of data relating to a form or the transmission of a form complies with state and federal confidentiality and consent laws and regulations.

Finally, the bill defines the following terms:

Health professional: an individual who is licensed under Article 15 of the Public Health Code.

Prescriber: defined in Section 17708 of the Code as a licensed dentist, a licensed doctor of medicine, a licensed doctor of osteopathic medicine and surgery, a licensed doctor of podiatric medicine and surgery, a licensed physician's assistant, a licensed optometrist certified under Part 174 to administer and prescribe therapeutic pharmaceutical agents, an advanced practice registered nurse as that term is defined in Section 17201 who meets the requirements of Section 17211a, a licensed veterinarian, or another licensed health professional acting under the delegation and using, recording, or otherwise indicating the name of the delegating licensed doctor of medicine or licensed doctor of osteopathic medicine and surgery.

House Bill 5153 (MCL 700.1106 and 700.5314)

The bill would amend the Estates and Protected Individuals Code (EPIC) to include a nonopioid directive form under the powers prescribed to a guardian of a ward or legally incapacitated individual. Under the bill, guardians could execute, reaffirm, or revoke nonopioid directives on behalf of their wards.

EPIC currently requires guardians to report to the court at least annually on their wards’ mental, physical, and social condition, as well as any developments. The bill would add a requirement to report whether the guardian executed, reaffirmed, or revoked a form on behalf of his or her ward in the past year.

House Bills 5152 and 5153 are tie-barred together, meaning neither can take effect unless both are enacted.

They would take effect 90 days after enactment.

BACKGROUND:

           

According to Michigan’s 2015 Prescription Drug and Opioid Abuse Task Force report,[1] Michigan ranked 10^th in the country in per capita prescribing rates of opioids in 2012 and 18^th for overdose deaths in 2011-2013.

Like Michigan, the Missouri legislature is considering a bill[2] that would create nonopioid directive forms in the state. As of 2016, at least four other states, including Pennsylvania[3] and Massachusetts,[4] had already passed legislation to create nonopioid directive forms.

While similar in some regards, HB 5152 differs from the legislation in Missouri, Massachusetts, and Pennsylvania by including a provision for supplying information about substance use disorder services to patients who have been administered an opioid despite executing a nonopioid directive form. 

 

FISCAL IMPACT:

House Bill 5152 has modest fiscal implications for the Department of Health and Human Services, including development of the nonopioid directive form and promulgation and administration of rules to implement the use, record-keeping, sharing, and revocation of the directive.

House Bill 5153 would not have a fiscal impact on the state or local units of government.

                                                                                                                       

                                                                                        Legislative Analyst:   Dana Adams

                                                                                               Fiscal Analysts:   Susan Frey

                                                                                                                           Kevin Koorstra       

■ This analysis was prepared by nonpartisan House Fiscal Agency staff for use by House members in their deliberations, and does not constitute an official statement of legislative intent.

---