Does an Arkansas school district have to follow a student's do-not-resuscitate order?

Plain-English summary

State Senator John Cooper asked whether an Arkansas school district had to comply with a do-not-resuscitate order (DNR) for a student, and what liability the district would face if it chose to honor one.

Attorney General Leslie Rutledge answered the first question directly: no. The Arkansas Emergency Medical Services Do-Not-Resuscitate Act, codified at Ark. Code Ann. § 20-13-901 et seq., applied only to "emergency medical services personnel," defined to mean firefighters, law enforcement officers, first responders, EMTs, and other emergency service personnel acting within the ordinary course of their professions. School staff and school districts were not within that definition. The statutory duty to comply with a DNR order ran to EMS personnel only.

On liability if a district voluntarily honored a DNR, the AG declined to opine. The statutory immunity in section 20-13-902 listed five categories of actors (physicians, persons acting under physician direction, EMS personnel, health care facilities, and certain providers acting on a DNR holder's request) and did not include school personnel. But the AG said the absence of statutory immunity did not, by itself, make a district liable for honoring a DNR. The question was too factually complex for an AG opinion, and the AG advised the district to consult its own counsel.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: At the time of this opinion, what did the Arkansas DNR Act actually require?
A: It required EMS personnel, when presented with valid DNR identification, an oral DNR order from a physician, or a written DNR order on the prescribed form, to follow the DNR Protocol approved by the State Board of Health. The triggering event the Act covered was cardiac or respiratory arrest. Withholding other care (IV fluids, oxygen, nutrition, hydration, other interventions short of CPR) was outside what a DNR order authorized unless an advance directive or durable power of attorney for health care said otherwise.

Q: Why are school staff not "EMS personnel" under the Act?
A: Because the statute named the category specifically. The AG applied a standard rule of statutory interpretation: words mean what they say. EMS personnel meant firefighters, law enforcement, first responders, EMTs, "or other emergency service personnel acting within the ordinary course of their professions." The AG read that final clause narrowly, as referring to other emergency service occupations, not as a catch-all for anyone who might be present at an emergency.

Q: If a district had no statutory duty to honor a DNR, did that mean it could ignore one?
A: The opinion did not answer that. The AG's framing was that the Act did not impose a compliance duty on schools, and the AG declined to address what other obligations (under tort law, special education law, parental rights, or contract) might apply. The AG specifically punted on liability, telling the district to ask its own attorney.

Q: What did the immunity statute cover?
A: Section 20-13-902(a) gave immunity from civil and criminal liability, and from professional discipline, to: (1) physicians who caused withholding or withdrawal of life-sustaining procedures; (2) persons acting under a physician's direction; (3) EMS personnel; (4) health care facilities where the withholding occurred; and (5) physicians, those acting under physician direction, EMS personnel, or health care facilities who provided life-sustaining procedures pursuant to a request communicated by a person with DNR identification. The list did not include schools or school personnel.

Q: Did the AG cite outside literature on this question?
A: Yes. The opinion footnoted two academic articles, one in the DePaul Journal of Health Care Law and one in Education Law Reporter, both flagging that school DNR orders raise overlapping legal, ethical, and policy questions about parental rights, school personnel duties, the impact on other students, and medical autonomy. The AG used those citations to underline why the liability question could not be resolved abstractly.

Background and statutory framework

The Arkansas Emergency Medical Services Do-Not-Resuscitate Act (Ark. Code Ann. § 20-13-901 et seq.) was a narrow statute. It set up a system in which a physician issued a DNR order on a Department of Health-approved form, and EMS personnel responding to a cardiac or respiratory arrest would honor that order rather than initiate CPR. The Act provided the legal protection that EMS personnel needed to withhold treatment without risking liability or discipline.

What the Act did not do was create a general framework for honoring DNR orders in non-EMS settings. Hospitals operated under their own DNR policies (and the immunity provisions extended to health care facilities). But schools, daycare centers, and other settings where children spend their days were not addressed by the Act. The AG's opinion confirmed that gap. The legislature could have closed it by amending the definition of EMS personnel or adding schools to the immunity list, but as of the opinion's date it had not.

The opinion's caution is consistent with the AG's general stance on hypothetical liability questions: the office issues opinions on abstract legal questions, not on whether a particular party would win or lose a particular lawsuit.

Citations

• Ark. Code Ann. § 20-13-901(5)(A) (definition of EMS DNR order)
• Ark. Code Ann. § 20-13-901(7) (EMS personnel definition)
• Ark. Code Ann. § 20-13-902(a)(1)-(5) (immunity)
• Ark. Code Ann. § 20-13-904(a) (compliance requirement)
• Weiss v. McFadden, 353 Ark. 868 (2003)
• Ozark Gas Pipeline Corp. v. Ark. Pub. Serv. Comm'n, 342 Ark. 591 (2000)
• Jessica Adelman, The School-Based Do-Not-Resuscitate Order, 13 DePaul J. Health Care L. 197 (2010)
• Todd A. DeMitchell & Scott Fletcher, Do Not Resuscitate Orders in Schools: A Conundrum of Duty, Ethics, and Policy, 235 Ed. Law Rep. 11 (2008)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2016-094
March 21, 2017
The Honorable John Cooper
State Senator
62 CR 396
Jonesboro, AR 72401
Dear Senator Cooper:

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

This is in response to your request for my opinion on the following questions concerning do-not-resuscitate orders in a school setting:

Question 1: Are school districts required to comply with, or honor, a do-not-resuscitate order (DNR) for a student? If so, to what extent should a school comply?

Question 2: If a school district complies with, or honors, a do-not-resuscitate order of a student, what liability does the school district have under present law?

RESPONSE

Arkansas Code Annotated §§ 20-13-901(5)(A) and 20-13-904(a) provide that emergency medical services personnel shall comply with emergency medical services do-not-resuscitate ("DNR") orders. The plain language of section 20-13-901(7) does not include school personnel or school districts within the definition of "emergency medical services personnel." Thus the answer to your first question is "no" under section 20-13-901 et seq. Regarding your second question, in the absence of clear guidance from the courts or specific statutory language, I am unable to speculate as to the potential liability of a school district that complies with or honors a student's DNR order. A school district's decision to comply with such an order involves a number of potential issues that must be addressed by the district in consultation with its own legal counsel.

DISCUSSION

The Arkansas Emergency Medical Services Do Not Resuscitate Act ("Do-Not-Resuscitate Act" or "the Act"), codified at Ark. Code Ann. § 20-13-901 et seq., provides immunity for certain actors when withholding or withdrawing cardiopulmonary resuscitation. The Do-Not-Resuscitate Act is limited in scope, both with regard to whom it applies, as well as to precisely what the DNR orders entail. The Act defines an "Emergency Medical Services Do Not Resuscitate Order" ("DNR order") as:

a written physician's order in a form approved by the [Department of Health] which authorizes qualified emergency medical services personnel to withhold cardiopulmonary resuscitation from a particular patient in the event of cardiac or respiratory arrest.

"Emergency medical services personnel" is defined as ". . . paid or volunteer firefighters, law enforcement officers, first responders, emergency medical technicians, or other emergency service personnel acting within the ordinary course of their professions."

DNR orders under the Act permit the withholding or withdrawal of a life-sustaining procedure, defined as "cardiopulmonary resuscitation or a component of cardiopulmonary resuscitation." Under the Act, "cardiopulmonary resuscitation" includes "cardiac compression, endotracheal intubation and other advanced airway management, artificial ventilation, defibrillation, administration of cardiac resuscitation medications, and related procedures." DNR orders specifically do not authorize the following procedures:

. . . Withholding of other medical interventions such as intravenous fluids, oxygen, nutrition or hydration, or both, or other indicated therapies short of cardiopulmonary resuscitation unless the therapies are also specified by advance directive or durable power of attorney for health care to be withheld.

With this general overview of the law in mind, I now turn to your questions.

Question 1: Are school districts required to comply with, or honor, a do-not-resuscitate order (DNR) for a student? If so, to what extent should a school comply?

The first rule of statutory interpretation is to construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. Courts will construe the statute so that no word is left void, superfluous, or insignificant; and meaning and effect will be given to every word in the statute if possible. When statutory language is plain and unambiguous, the meaning of the statute must be determined from the plain meaning of the language used. Our courts will not resort to a strained construction of statutory language for the purpose of restricting or expanding the plain meaning of a statute. Finally, nothing is taken as intended by the legislature that is not clearly expressed.

Under section 20-13-904(a), emergency medical services personnel other than physicians:

. . . shall comply with the Do Not Resuscitate Protocol when presented with either Do Not Resuscitate Identification approved by the Department of Health, an oral Do Not Resuscitate Order issued directly by a physician, or a written Do Not Resuscitate Order entered on a form prescribed by the department.

It is clear, based on the plain language of sections 20-13-901(5)(A) and 20-13-904(a), that the Do-Not-Resuscitate Act focuses solely on the actions of emergency medical services personnel. And following the above rules of statutory interpretation, it is equally clear that only emergency medical services personnel are required to comply with a DNR order. Because neither school personnel nor school districts are included within the definition of "emergency medical services personnel," in my opinion, they are not subject to the requirements of the Do-Not-Resuscitate Act.

Question 2: If a school district complies with, or honors, a do-not-resuscitate order of a student, what liability does the school district have under present law?

In the absence of relevant Arkansas statutory or case law, I cannot speculate as to what liability, if any, a school district may face if it chooses to comply with a student's DNR order.

Section 20-13-902(a)(1)-(5) provides immunity from civil or criminal liability and unprofessional conduct (upon discovering and acting pursuant to a DNR order) for the following persons:

1) A physician who causes the withholding or withdrawal of life-sustaining procedures from that person;
2) A person who participates in the withholding or withdrawal of life-sustaining procedures under the direction or with the authorization of a physician;
3) Emergency medical services personnel who cause or participate in the withholding or withdrawal of life-sustaining procedures from that person;
4) A health care facility in which withholding or withdrawal of life-sustaining procedures from that person occurs; and
5) Physicians, persons under the direction or authorization of a physician, emergency medical services personnel, or health care facilities that provide life-sustaining procedures pursuant to an oral or written request communicated to them by a person who possesses Do Not Resuscitate Identification.

School personnel and school districts are not included in this list; thus it is clear that they are not afforded the immunity provided by section 20-13-902 for adhering to a student's DNR order. But this fact alone does not provide a basis for concluding that a school district is liable if it follows a student's DNR order.

The question concerning the potential liability of a school district under such circumstances is much more complex. There is little doubt that school districts face difficult legal, moral, and ethical issues when deciding whether to follow a student's DNR order. Local counsel should be consulted when considering these matters. Because of the numerous potential issues involved, and lacking clear guidance from the courts or the legislature, I cannot, in the context of an Attorney General's opinion, speculate upon a school district's potential liability should it honor a student's DNR order.

Sincerely,
LESLIE RUTLEDGE
Attorney General