Paul K. Halverson, DrPH FACHE Director and State Health Officer Arkansas Department of Health 4815 West Markham Street Little Rock, Arkansas 72205-3867
Dear Dr. Halverson:
I am writing in response to your request for an opinion on the following question, which has been paraphrased to reflect my understanding of the background provided by your opinion request:
Does A.C.A. § 20-18-601(c)(3) permit a registered nurse employed by an attending hospice facility to "pronounce death" for a patient who is terminally ill, whose death is anticipated, who is receiving services from a hospice program certified under A.C.A. § 20-7-117, and who dies in a hospice inpatient program or as a hospice patient in a nursing home?
As background for your request you state:
The practical interpretation given to [A.C.A. § 20-18-601(c)(3)-(5)] is that if a hospice patient dies at home or while in an inpatient hospice facility the hospice nurse may sign the Certification of Death if allowed by individual hospice policy. Even though the term "pronounce" is not used, the practical interpretation is that pronouncing is an indispensable part of signing the Certification of Death. Also, if a patient dies while in a nursing home the same rule applies. However, even though hospice regulations allow the certification by a nurse, if nursing home regulations or individual *Page 2 nursing home policy prohibits the practice, then it is not regularly done.
RESPONSE
It is my opinion that A.C.A. § 20-18-601(c)(4) does not clearly give a registered nurse the authority to pronounce death in the circumstances addressed by your question. In this regard, I will note that there have been previous legislative attempts to amend A.C.A. § 20-18-601 so that it would clearly provide registered nurses with this authority. See, e.g., H.B. 2805, 86th Gen. Assem., Reg. Sess. (Ark. 2007). Moreover, it has come to my attention that a new legislative bill on the subject was filed in the General Assembly just last week. H.B. 1603, 87th Gen. Assem., Reg. Sess. (Ark. 2009). While none of the previous bills have been successful, it is my opinion that legislative clarification is, in fact, warranted if the legislature wishes to permit a registered nurse to pronounce the death of a hospice patient who dies in a hospice facility.
Arkansas Code Annotated § 20-18-601(c)(3) (4) state:
(3) A registered nurse employed by the attending hospice may complete and sign the medical certification of death for a patient who is terminally ill, whose death is anticipated, who is receiving services from a hospice program certified under § 20-7-117, and who dies in a hospice inpatient program or as a hospice patient in a nursing home.
(4) If the hospice patient dies in the home, the registered nurse may make pronouncement of death. However, the county coroner and the chief law enforcement official of the county or municipality where death occurred shall be immediately notified in accordance with § 12-12-315.
A.C.A. § 20-18-601(c)(3) (4) (Supp. 2007) (emphasis added).
The plain language of subsection (c)(4) permits a registered nurse to make pronouncement of death ("pronounce death") for a hospice patient when the death occurs in the home. However, while subsection (c)(3) expressly permits a registered nurse to complete and sign the medical certification of death ("certify *Page 3 death") when a hospice patient dies in an inpatient setting, neither it nor any other provision mentions a registered nurse's ability to pronounce death in an inpatient setting.
I recognize that one of my predecessors in office issued an opinion linking the pronouncement of death with the certification of death (Op. Att'y Gen. 95-322). However, that opinion is nearly fifteen (15) years old and the statute in question has been amended significantly since that time. In my opinion, the current version of A.C.A. § 20-18-601 makes clear that certifying death and pronouncing death are two separate events. See, e.g., A.C.A. § 20-18-601(a)(4)(C) (Supp. 2007). In addition, outside sources make clear that pronouncing death and certifying death are now considered two separate events. A recent publication stated:
A death certificate is NOT required prior to removing the body from the death scene. The funeral home may remove the body if death has been pronounced and the physician or appropriate official . . . has been notified and permits removal of the body.
* * *
One person may pronounce death so the body can be removed, then the cause of death may be completed and signed later by the deceased's regular physician or another person who is familiar with the deceased's medical history.
2008 Update; Reporting Causes of Death, available at:www.healthyarkansas.com/certificate/word/reporting_cause_of_death_manual.doc.
Thus, pronouncing death is now typically understood to refer to the medical determination and resulting declaration that the person in question has died. See A.C.A. § 20-17-101 ("A determination of death shall be made in accordance with accepted medical standards."); see,also, Policy H03 of the American Medical Director's Association,available at: www.amda.com/governance/resolutions/h03. cfm ("[T]he declaration of death is a clinical determination that the death has occurred."); see, also, New York State Nurse's Association, Scope of Practice, available at: www.nysna.org/practice/scope/death.htm ("Pronouncement of death [is] the determination made after an assessment that there is an absence of human responses, spontaneous breathing and heart beat. Pronouncement is not to be *Page 4 confused with or construed as certification of death.") . Certifying death, on the other hand, refers to the process of filling out and signing the death certificate so that it may be filed with the Division of Vital Records. See A.C.A. § 20-18-601(a)(1) (c)(1)-(3).
Based on these sources, it appears that pronouncing death and certifying death are to be regarded as two separate events. While A.C.A. § 20-18-601(c)(3) clearly states that a registered nurse may certifydeath in the circumstances that your question addresses, it does not address the ability of a registered nurse to pronounce death in those circumstances. Likewise, while A.C.A. § 20-18-601(c)(4) clearly states that a registered nurse may pronounce the death of a hospice patient when it occurs in the home, it does not address the ability of a registered nurse to pronounce death in any other setting.
For these reasons, it is my opinion that A.C.A. § 20-18-601(c)(4) does not clearly permit a registered nurse employed by an attending hospice facility to "pronounce death" for a patient who is terminally ill, whose death is anticipated, who is receiving services from a hospice program certified under A.C.A. § 20-7-117, and who dies in a hospice inpatient program or as a hospice patient in a nursing home. I will note that pending legislation, House Bill 1603, contains language which would change this result and make it clear that a registered nurse may pronounce the death of a hospice patient in an inpatient setting. H.B. 1603, 87th Gen. Assem., Reg. Sess. (Ark. 2009).
Assistant Attorney General Jennie Clingan prepared the foregoing opinion, which I hereby approve.
Sincerely,
DUSTIN McDANIEL Attorney General
DM:JC /cyh *Page 1