2006 Legislation
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HOUSE BILL NO. 708 – Health care directive registry

HOUSE BILL NO. 708

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Bill Status



H0708......................................................by STATE AFFAIRS
HEALTH CARE DIRECTIVE REGISTRY - Adds to and amends existing law to provide
a health care directive registry exception to the Public Records Act; to
define "health care directive"; to permit registration of a health care
directive and a health care directive revocation; to provide immunities; to
create a health care directive registry in the Office of the Secretary of
State; to provide for the information to be included in the registry; to
permit the Secretary of State to charge a fee for registration of a health
care directive; to provide duties and responsibilities of the Secretary of
State; to provide a means of access to the registry; to limit access to the
information contained in the registry; to  limit liability; and to create
the Health Care Directive Registry Fund.
                                                                        
02/21    House intro - 1st rdg - to printing
02/22    Rpt prt - to 2nd rdg
02/23    2nd rdg - to 3rd rdg
02/27    3rd rdg - PASSED - 66-0-4
      AYES -- Andrus, Barraclough, Barrett, Bastian, Bayer, Bedke, Bell,
      Bilbao, Black, Block, Boe, Bolz, Cannon, Chadderdon, Clark, Collins,
      Crow, Deal, Denney, Edmunson, Ellsworth, Eskridge, Field(18),
      Field(23), Garrett, Hart, Harwood, Henbest, Henderson, Jaquet, Kemp,
      Lake, LeFavour, Loertscher, Martinez, Mathews, McGeachin, Miller,
      Mitchell, Moyle, Nielsen, Nonini, Pasley-Stuart, Pence, Raybould,
      Ring, Ringo, Roberts, Rusche, Rydalch, Sali(Sali), Sayler, Schaefer,
      Shepherd(2), Shepherd(8), Shirley, Skippen, Smith(30), Smith(24),
      Smylie, Snodgrass, Stevenson, Trail, Wills, Wood, Mr. Speaker
      NAYS -- None
      Absent and excused -- Anderson, Brackett, Bradford, McKague
    Floor Sponsor - Smylie
    Title apvd - to Senate
02/28    Senate intro - 1st rdg - to Health/Wel
03/02    Rpt out - rec d/p - to 2nd rdg
03/03    2nd rdg - to 3rd rdg
03/08    3rd rdg - PASSED - 35-0-0
      AYES -- Andreason(Hatch), Brandt, Broadsword, Bunderson, Burkett,
      Burtenshaw, Cameron, Coiner, Compton, Corder, Darrington, Davis,
      Fulcher, Gannon, Geddes, Goedde, Hill, Jorgenson, Kelly, Keough,
      Langhorst, Little, Lodge, Malepeai, Marley, McGee, McKenzie, Pearce,
      Richardson, Schroeder, Stegner, Stennett, Sweet, Werk, Williams
      NAYS -- None
      Absent and excused -- None
    Floor Sponsor - Broadsword
    Title apvd - to House
03/09    To enrol
03/10    Rpt enrol - Sp signed
03/13    Pres signed
03/14    To Governor
03/15    Governor signed
         Session Law Chapter 67
         Effective: 03/15/06 Section 6;
         07/01/06 Sections 1 to 5

Bill Text


                                                                        
                                                                        
  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-eighth Legislature                   Second Regular Session - 2006
                                                                        
                                                                        
                              IN THE HOUSE OF REPRESENTATIVES
                                                                        
                                     HOUSE BILL NO. 708
                                                                        
                                 BY STATE AFFAIRS COMMITTEE
                                                                        
  1                                        AN ACT
  2    RELATING TO HEALTH CARE DIRECTIVE REGISTRY;  AMENDING  SECTION  9-340C,  IDAHO
  3        CODE,  TO PROVIDE A HEALTH CARE DIRECTIVE REGISTRY EXCEPTION TO THE PUBLIC
  4        RECORDS ACT; AMENDING SECTION 39-4509, IDAHO CODE, TO DEFINE "HEALTH  CARE
  5        DIRECTIVE";  AMENDING  SECTION 39-4510, IDAHO CODE, TO PERMIT REGISTRATION
  6        OF A HEALTH CARE DIRECTIVE; AMENDING SECTION 39-4511, IDAHO CODE, TO  PER-
  7        MIT  REGISTRATION  OF A HEALTH CARE DIRECTIVE REVOCATION; AMENDING SECTION
  8        39-4513, IDAHO CODE, TO PROVIDE IMMUNITIES; AMENDING CHAPTER 45, TITLE 39,
  9        IDAHO CODE, BY THE ADDITION OF A NEW SECTION 39-4515, IDAHO CODE, TO  CRE-
 10        ATE  A  HEALTH  CARE  DIRECTIVE REGISTRY IN THE OFFICE OF THE SECRETARY OF
 11        STATE, TO PROVIDE FOR THE CONTENT OF THE INFORMATION TO BE INCLUDED IN THE
 12        REGISTRY,  TO  PERMIT  REGISTRATION  OF   HEALTH   CARE   DIRECTIVES   AND
 13        REVOCATIONS,  TO  PERMIT THE SECRETARY OF STATE TO CHARGE A FEE FOR REGIS-
 14        TRATION OF A HEALTH CARE  DIRECTIVE,  TO  PROVIDE  AND  LIMIT  DUTIES  AND
 15        RESPONSIBILITIES  OF  THE SECRETARY OF STATE, TO PROVIDE A MEANS OF ACCESS
 16        TO THE REGISTRY, TO LIMIT ACCESS TO THE INFORMATION CONTAINED IN THE  REG-
 17        ISTRY, TO LIMIT LIABILITY OF THE SECRETARY OF STATE AND THE STATE OF IDAHO
 18        AND  TO  CREATE  A  FUND  TO  SUPPORT,  PROMOTE AND MAINTAIN THE REGISTRY;
 19        DECLARING AN EMERGENCY, PROVIDING EFFECTIVE DATES AND PROVIDING  THAT  THE
 20        SECRETARY  OF STATE WILL ACCEPT REGISTRATION APPLICATIONS PURSUANT TO THIS
 21        ACT ON AND AFTER JANUARY 1, 2007.
                                                                        
 22    Be It Enacted by the Legislature of the State of Idaho:
                                                                        
 23        SECTION 1.  That Section 9-340C, Idaho Code, be, and the  same  is  hereby
 24    amended to read as follows:
                                                                        
 25        9-340C.  RECORDS  EXEMPT  FROM  DISCLOSURE  -- PERSONNEL RECORDS, PERSONAL
 26    INFORMATION, HEALTH RECORDS, PROFESSIONAL DISCIPLINE.  The  following  records
 27    are exempt from disclosure:
 28        (1)  Except  as  provided  in  this subsection, all personnel records of a
 29    current or former public official other than the public official's public ser-
 30    vice or employment history, classification, pay  grade  and  step,  longevity,
 31    gross  salary  and salary history, status, workplace and employing agency. All
 32    other personnel information relating to a public employee or applicant includ-
 33    ing, but not limited to, information  regarding  sex,  race,  marital  status,
 34    birth  date,  home  address  and  telephone  number, applications, testing and
 35    scoring materials, grievances,  correspondence  and  performance  evaluations,
 36    shall  not  be  disclosed  to the public without the employee's or applicant's
 37    written consent. A public official or authorized  representative  may  inspect
 38    and  copy  his  personnel records, except for material used to screen and test
 39    for employment.
 40        (2)  Retired employees' and retired public officials' home addresses, home
 41    telephone numbers and other financial  and  nonfinancial  membership  records;
 42    active and inactive member financial and membership records and mortgage port-
 43    folio  loan  documents  maintained  by  the public employee retirement system.
                                                                        
                                           2
                                                                        
  1    Financial statements prepared by retirement system staff, funding  agents  and
  2    custodians  concerning the investment of assets of the public employee retire-
  3    ment system of Idaho are not considered confidential under this chapter.
  4        (3)  Information and records submitted to the Idaho state lottery for  the
  5    performance  of  background investigations of employees, lottery retailers and
  6    major procurement contractors; audit records of lottery retailers, vendors and
  7    major procurement contractors submitted to or performed  by  the  Idaho  state
  8    lottery; validation and security tests of the state lottery for lottery games;
  9    business  records  and  information  submitted pursuant to sections 67-7412(8)
 10    and (9) and 67-7421(8) and (9), Idaho Code, and such documents and information
 11    obtained and held for the  purposes  of  lottery  security  and  investigative
 12    action as determined by lottery rules unless the public interest in disclosure
 13    substantially  outweighs  the  private need for protection from public disclo-
 14    sure.
 15        (4)  Records of a personal nature as follows:
 16        (a)  Records of personal debt filed with a public  agency  or  independent
 17        public body corporate and politic pursuant to law;
 18        (b)  Personal  bank records compiled by a public depositor for the purpose
 19        of public funds transactions conducted pursuant to law;
 20        (c)  Records of ownership of financial obligations and  instruments  of  a
 21        public  agency  or  independent public body corporate and politic, such as
 22        bonds, compiled by the public agency or independent public body  corporate
 23        and politic pursuant to law;
 24        (d)  Records,  with  regard to the ownership of, or security interests in,
 25        registered public obligations;
 26        (e)  Vital statistics records; and
 27        (f)  Military records as described in  and  pursuant  to  section  65-301,
 28        Idaho Code.
 29        (5)  Information  in  an  income  or other tax return measured by items of
 30    income or sales, which is gathered by a  public  agency  for  the  purpose  of
 31    administering  the  tax,  except such information to the extent disclosed in a
 32    written decision of the tax commission pursuant to a  taxpayer  protest  of  a
 33    deficiency  determination  by the tax commission, under the provisions of sec-
 34    tion 63-3045B, Idaho Code.
 35        (6)  Records of a personal nature related directly or  indirectly  to  the
 36    application for and provision of statutory services rendered to persons apply-
 37    ing for public care for the elderly, indigent, or mentally or physically hand-
 38    icapped,  or  participation in an environmental or a public health study, pro-
 39    vided the provisions of this subsection making records exempt from  disclosure
 40    shall  not  apply  to the extent that such records or information contained in
 41    those records are necessary for a background check on an  individual  that  is
 42    required by federal law regulating the sale of firearms, guns or ammunition.
 43        (7)  Employment  security  information  and unemployment insurance benefit
 44    information, except that all interested parties may agree to waive the  exemp-
 45    tion.
 46        (8)  Any  personal records, other than names, business addresses and busi-
 47    ness phone numbers, such as parentage, race, religion,  sex,  height,  weight,
 48    tax  identification  and  social  security numbers, financial worth or medical
 49    condition submitted to any public agency or independent public body  corporate
 50    and  politic pursuant to a statutory requirement for licensing, certification,
 51    permit or bonding.
 52        (9)  Unless otherwise provided by agency  rule,  information  obtained  as
 53    part  of an inquiry into a person's fitness to be granted or retain a license,
 54    certificate, permit, privilege, commission or  position,  private  association
 55    peer  review  committee records authorized in title 54, Idaho Code. Any agency
                                                                        
                                           3
                                                                        
  1    which has records exempt from disclosure under the provisions of this  subsec-
  2    tion  shall  annually  make  available a statistical summary of the number and
  3    types of matters considered and their disposition.
  4        (10) The records, findings, determinations and decisions of any prelitiga-
  5    tion screening panel formed under chapters 10 and 23, title 6, Idaho Code.
  6        (11) Complaints received by the board of medicine and  investigations  and
  7    informal  proceedings,  including informal proceedings of any committee of the
  8    board of  medicine, pursuant to chapter 18, title 54, Idaho  Code,  and  rules
  9    adopted thereunder.
 10        (12) Records  of  the  department of health and welfare or a public health
 11    district that identify a person infected with a reportable disease.
 12        (13) Records of hospital care, medical records,  including  prescriptions,
 13    drug  orders,  records or any other prescription information that specifically
 14    identifies an individual patient, prescription records maintained by the board
 15    of pharmacy under section 37-2730A, Idaho Code, records of psychiatric care or
 16    treatment and professional counseling records relating to an individual's con-
 17    dition, diagnosis, care or treatment, provided the provisions of this  subsec-
 18    tion  making records exempt from disclosure shall not apply to the extent that
 19    such records or information contained in those records  are  necessary  for  a
 20    background  check  on an individual that is required by federal law regulating
 21    the sale of firearms, guns or ammunition.
 22        (14) Information collected pursuant to the directory  of  new  hires  act,
 23    chapter 16, title 72, Idaho Code.
 24        (15) Personal  information  contained  in motor vehicle and driver records
 25    that is exempt from disclosure under the provisions of chapter  2,  title  49,
 26    Idaho Code.
 27        (16) Records  of  the financial status of prisoners pursuant to subsection
 28    (2) of section 20-607, Idaho Code.
 29        (17) Records of  the  Idaho  state  police  or  department  of  correction
 30    received  or  maintained  pursuant to section 19-5514, Idaho Code, relating to
 31    DNA databases and databanks.
 32        (18) Records of the department of health and welfare relating to a survey,
 33    resurvey or complaint investigation of a licensed nursing  facility  shall  be
 34    exempt  from disclosure. Such records shall, however, be subject to disclosure
 35    as public records as soon as the facility in question has received the report,
 36    and no later than the fourteenth day following the  date  that  department  of
 37    health  and  welfare  representatives officially exit the facility pursuant to
 38    federal regulations. Provided however, that for purposes  of  confidentiality,
 39    no  record  shall be released under this section which specifically identifies
 40    any nursing facility resident.
 41        (19) Records and information contained in the  registry  of  immunizations
 42    against childhood diseases maintained in the department of health and welfare,
 43    including  information disseminated to others from the registry by the depart-
 44    ment of health and welfare.
 45        (20) Records of the Idaho housing and finance association (IHFA)  relating
 46    to the following:
 47        (a)  Records containing personal financial, family, health or similar per-
 48        sonal information submitted to or otherwise obtained by the IHFA;
 49        (b)  Records submitted to or otherwise obtained by the IHFA with regard to
 50        obtaining  and  servicing  mortgage  loans and all records relating to the
 51        review, approval or rejection by the IHFA of said loans;
 52        (c)  Mortgage portfolio loan documents;
 53        (d)  Records of a current or former employee  other  than  the  employee's
 54        duration of employment with the association, position held and location of
 55        employment.  This exemption from disclosure does not include the contracts
                                                                        
                                           4
                                                                        
  1        of employment or any remuneration, including reimbursement of expenses, of
  2        the executive director, executive officers or commissioners of the associ-
  3        ation. All other personnel information relating to an association employee
  4        or applicant including, but not limited  to,  information  regarding  sex,
  5        race,  marital  status,  birth  date,  home  address and telephone number,
  6        applications, testing and scoring materials,  grievances,  correspondence,
  7        retirement  plan    information  and performance evaluations, shall not be
  8        disclosed to the public without the employee's or applicant's written con-
  9        sent. An employee or authorized representative may inspect and  copy  that
 10        employee's  personnel records, except for material used to screen and test
 11        for employment or material not subject  to  disclosure  elsewhere  in  the
 12        Idaho public records act.
 13        (21) Records of the department of health and welfare related to child sup-
 14    port  services in cases in which there is reasonable evidence of domestic vio-
 15    lence, as defined in chapter 63, title 39, Idaho Code, that  can  be  used  to
 16    locate any individuals in the child support case except in response to a court
 17    order.
 18        (22) Records  of  the Idaho state bar lawyer's assistance program pursuant
 19    to chapter 49, title 54, Idaho Code,  unless  a  participant  in  the  program
 20    authorizes  the  release  pursuant to subsection (4) of section 54-4901, Idaho
 21    Code.
 22        (23) Records and information contained in the trauma registry  created  by
 23    chapter 20, title 57, Idaho Code, together with any reports, analyses and com-
 24    pilations created from such information and records.
 25        (24) Records  contained  in  the court files, or other records prepared as
 26    part of proceedings for judicial  authorization  of  sterilization  procedures
 27    pursuant to chapter 39, title 39, Idaho Code.
 28        (25) The  physical  voter  registration card on file in the county clerk's
 29    office; however, a redacted copy of said card shall be made available  consis-
 30    tent  with the requirements of this section. Information from the voter regis-
 31    tration card maintained in the statewide voter registration database,  includ-
 32    ing  age,  will be made available except for the voter's driver's license num-
 33    ber, date of birth and, upon showing of good cause by the voter to the  county
 34    clerk in consultation with the county prosecuting attorney, the physical resi-
 35    dence  address  of  the  voter. For the purposes of this subsection good cause
 36    shall include the protection of life and property and protection of victims of
 37    domestic violence and similar crimes.
 38        (26) File numbers, passwords and information in the files  of  the  health
 39    care  directive  registry  maintained  by the secretary of state under section
 40    39-4515, Idaho Code, are confidential and shall not be disclosed to any person
 41    other than to the person who executed the health care directive or the revoca-
 42    tion thereof and that person's legal representatives, to the person who regis-
 43    tered the health care directive or revocation thereof, and to physicians, hos-
 44    pitals, medical personnel, nursing homes, and  other  persons  who  have  been
 45    granted  file number and password access to the documents within that specific
 46    file.
                                                                        
 47        SECTION 2.  That Section 39-4509, Idaho Code, be, and the same  is  hereby
 48    amended to read as follows:
                                                                        
 49        39-4509.  DEFINITIONS. As used in sections 39-4508 through 39-45145, Idaho
 50    Code:
 51        (1)  "Artificial life-sustaining procedure" means any medical procedure or
 52    intervention  that  utilizes  mechanical  means to sustain or supplant a vital
 53    function which when applied to a qualified patient, would serve only to  arti-
                                                                        
                                           5
                                                                        
  1    ficially prolong life. "Artificial life-sustaining procedure" does not include
  2    the  administration  of medication or the performance of any medical procedure
  3    deemed necessary to alleviate pain.
  4        (2)  "Artificial nutrition and hydration" means supplying food  and  water
  5    through  a conduit, such as a tube or intravenous line, where the recipient is
  6    not required to chew or swallow voluntarily, but  does  not  include  assisted
  7    feeding, such as spoon feeding or bottle feeding.
  8        (3)  "Attending physician" means the physician licensed by the state board
  9    of  medicine  who is selected by, or assigned to, the patient and who has pri-
 10    mary responsibility for the treatment and care of the patient.
 11        (4)  "Competent person" means any emancipated minor or any person eighteen
 12    (18) or more years of age who is of sound mind.
 13        (5)  "Consent to care" includes refusal to consent to  care  and/or  with-
 14    drawal of care.
 15        (6)  "Health  care directive" means a document meeting the requirements of
 16    section 39-4510(1), Idaho Code.
                                                                        
 17        SECTION 3.  That Section 39-4510, Idaho Code, be, and the same  is  hereby
 18    amended to read as follows:
                                                                        
 19        39-4510.  LIVING  WILL  AND DURABLE POWER OF ATTORNEY FOR HEALTH CARE. (1)
 20    Any competent person may execute a document known as a "Living Will and  Dura-
 21    ble  Power  of  Attorney  for Health Care." Such document shall be in substan-
 22    tially the following form, or in another form that contains the  elements  set
 23    forth in this chapter. A "Living Will and Durable Power of Attorney for Health
 24    Care"  executed  prior to the effective date of this act, but which was in the
 25    "Living Will" and/or "Durable Power of Attorney for Health Care" form pursuant
 26    to prior Idaho law at the time of execution, or in another form that contained
 27    the elements set forth in this chapter at the  time  of  execution,  shall  be
 28    deemed to be in compliance with this chapter. A "Living Will and Durable Power
 29    of  Attorney for Health Care" or similar document(s) executed in another state
 30    which substantially complies with this chapter shall be deemed to be  in  com-
 31    pliance  with  this chapter. In this chapter, a "Living Will and Durable Power
 32    of Attorney for Health Care" may be referred to as a "directive." Any portions
 33    of the "Living Will and Durable Power of Attorney for Health Care"  which  are
 34    left  blank  by the person executing the document shall be deemed to be inten-
 35    tional and shall not invalidate the document.
                                                                        
 36              LIVING WILL AND DURABLE POWER OF ATTORNEY FOR HEALTH CARE
                                                                        
 37    Date of Directive:....................
                                                                        
 38    Name of person executing Directive:...........................................
 39    Address of person executing Directive:........................................
                                                                        
 40                                    A LIVING WILL
 41                   A Directive to Withhold or to Provide Treatment
                                                                        
 42    1.  Being of sound mind, I willfully and voluntarily make known my desire that
 43    my life shall not be prolonged artificially under the circumstances set  forth
 44    below. This Directive shall only be effective if I am unable to communicate my
 45    instructions and:
 46        a.  I  have an incurable injury, disease, illness or condition and two (2)
 47        medical doctors who have examined me have certified:
 48             1.  That such injury, disease, illness or condition is terminal; and
                                                                        
                                           6
                                                                        
  1             2.  That the application  of  artificial  life-sustaining  procedures
  2             would serve only to prolong artificially my life; and
  3             3.  That  my  death  is  imminent,  whether  or  not artificial life-
  4             sustaining procedures are utilized; or
  5        b.  I have been diagnosed as being in a persistent vegetative state.
  6    In such event, I direct that the following marked expression of my  intent  be
  7    followed,  and  that  I  receive  any  medical  treatment  or care that may be
  8    required to keep me free of pain or distress.
                                                                        
  9    Check one box and initial the line after such box:
                                                                        
 10        ........  I direct that all medical treatment, care and procedures  neces-
 11    sary  to  restore my health, sustain my life, and to abolish or alleviate pain
 12    or distress be provided to me. Nutrition and hydration, whether artificial  or
 13    nonartificial,  shall  not  be withheld or withdrawn from me if I would likely
 14    die primarily from malnutrition or dehydration rather  than  from  my  injury,
 15    disease, illness or condition.
                                                                        
 16    OR
                                                                        
 17        ........  I  direct  that  all  medical  treatment,  care  and procedures,
 18    including artificial life-sustaining procedures,  be  withheld  or  withdrawn,
 19    except that nutrition and hydration, whether artificial or nonartificial shall
 20    not  be withheld or withdrawn from me if, as a result, I would likely die pri-
 21    marily from malnutrition or dehydration rather than from my  injury,  disease,
 22    illness  or condition, as follows: (If none of the following boxes are checked
 23    and initialed, then both nutrition and hydration, of any nature, whether arti-
 24    ficial or nonartificial, shall be administered.)
                                                                        
 25    Check one box and initial the line after such box:
                                                                        
 26        A.        ........  Only hydration of any nature,  whether  artificial  or
 27                       nonartificial, shall be administered;
 28        B.        ........  Only  nutrition,  of any nature, whether artificial or
 29                       nonartificial, shall be administered;
 30        C.        ........  Both nutrition and hydration, of any  nature,  whether
 31                       artificial or nonartificial shall be administered.
                                                                        
 32    OR
                                                                        
 33        ........  I  direct  that  all  medical  treatment, care and procedures be
 34    withheld or withdrawn, including withdrawal of the administration  of  artifi-
 35    cial nutrition and hydration.
                                                                        
 36    2.  This  Directive  shall be the final expression of my legal right to refuse
 37    or accept medical and surgical treatment, and I  accept  the  consequences  of
 38    such refusal or acceptance.
                                                                        
 39    3.  If  I  have been diagnosed as pregnant, this Directive shall have no force
 40    during the course of my pregnancy.
                                                                        
 41    4.  I understand the full importance of this Directive and am mentally  compe-
 42    tent to make this Directive. No participant in the making of this Directive or
 43    in its being carried into effect shall be held responsible in any way for com-
 44    plying with my directions.
                                                                        
                                           7
                                                                        
  1                     A DURABLE POWER OF ATTORNEY FOR HEALTH CARE
                                                                        
  2    1.  DESIGNATION  OF HEALTH CARE AGENT. None of the following may be designated
  3    as your agent: (1) your treating  health  care  provider;  (2)  a  nonrelative
  4    employee of your treating health care provider; (3) an operator of a community
  5    care  facility;  or  (4)  a nonrelative employee of an operator of a community
  6    care facility. If the agent or an alternate agent designated in this Directive
  7    is my spouse, and our marriage is thereafter dissolved, such designation shall
  8    be thereupon revoked.
                                                                        
  9    I do hereby designate and appoint the following individual as my  attorney  in
 10    fact (agent) to make health care decisions for me as authorized in this Direc-
 11    tive.  (Insert  name,  address  and telephone number of one individual only as
 12    your agent to make health care decisions for you.)
                                                                        
 13    Name of Health Care Agent: ...................................................
 14    Address of Health Care Agent: ................................................
 15    Telephone Number of Health Care Agent: .......................................
                                                                        
 16    For the purposes of this Directive,  "health  care  decision"  means  consent,
 17    refusal  of  consent, or withdrawal of consent to any care, treatment, service
 18    or procedure to maintain, diagnose or treat an  individual's  physical  condi-
 19    tion.
                                                                        
 20    2.  CREATION  OF DURABLE POWER OF ATTORNEY FOR HEALTH CARE. By this portion of
 21    this Directive, I create a durable power of attorney  for  health  care.  This
 22    power  of  attorney  shall  not  be affected by my subsequent incapacity. This
 23    power shall be effective only when I am unable to communicate rationally.
                                                                        
 24    3.  GENERAL STATEMENT OF AUTHORITY GRANTED. Subject to any limitations in this
 25    Directive, including as set forth in paragraph 2 immediately above,  I  hereby
 26    grant  to  my agent full power and authority to make health care decisions for
 27    me to the same extent that I could make such decisions for myself if I had the
 28    capacity to do so. In exercising this authority, my agent  shall  make  health
 29    care decisions that are consistent with my desires as stated in this Directive
 30    or  otherwise made known to my agent including, but not limited to, my desires
 31    concerning obtaining or refusing or withdrawing life-prolonging  care,  treat-
 32    ment,  services  and  procedures, including such desires set forth in a living
 33    will or similar document executed by me, if any. (If you  want  to  limit  the
 34    authority  of  your agent to make health care decisions for you, you can state
 35    the limitations in paragraph 4 ("Statement of Desires, Special Provisions, and
 36    Limitations") below. You can indicate your desires by including a statement of
 37    your desires in the same paragraph.)
                                                                        
 38    4.  STATEMENT OF DESIRES, SPECIAL PROVISIONS,  AND  LIMITATIONS.  (Your  agent
 39    must  make  health care decisions that are consistent with your known desires.
 40    You can, but are not required to, state your desires  in  the  space  provided
 41    below.  You  should  consider  whether you want to include a statement of your
 42    desires concerning life-prolonging care,  treatment, services and  procedures.
 43    You  can  also  include  a  statement of your desires concerning other matters
 44    relating to your health care, including a list of one or more persons whom you
 45    designate to be able to receive medical information about  you  and/or  to  be
 46    allowed  to visit you in a medical institution. You can also make your desires
 47    known to your agent by discussing your desires with  your  agent  or  by  some
 48    other  means.  If  there are any types of treatment that you do not want to be
                                                                        
                                           8
                                                                        
  1    used, you should state them in the space below. If you want to  limit  in  any
  2    other  way  the authority given your agent by this Directive, you should state
  3    the limits in the space below. If you do not state any limits, your agent will
  4    have broad powers to make health care decisions for you, except to the  extent
  5    that there are limits provided by law.) In exercising the authority under this
  6    durable  power  of  attorney  for health care, my agent shall act consistently
  7    with my desires as stated below and is subject to the special  provisions  and
  8    limitations  stated  in  a  living will or similar document executed by me, if
  9    any. Additional statement of desires, special provisions, and limitations:....
 10    ..............................................................................
 11    .......(You may attach additional pages or documents if you need more space to
 12    complete your statement.)
                                                                        
 13    5. INSPECTION AND DISCLOSURE OF INFORMATION RELATING TO MY PHYSICAL OR  MENTAL
 14    HEALTH.
                                                                        
 15    A.  General  Grant  of Power and Authority. Subject to any limitations in this
 16    Directive, my agent has the power and authority to do all  of  the  following:
 17    (1)  Request, review and receive any information, verbal or written, regarding
 18    my physical or mental health including, but not limited to, medical and hospi-
 19    tal records; (2) Execute on my behalf any releases or other documents that may
 20    be required in order to obtain this information; (3) Consent to the disclosure
 21    of this information; and (4) Consent to the donation of any of my  organs  for
 22    medical purposes. (If you want to limit the authority of your agent to receive
 23    and  disclose  information relating to your health, you must state the limita-
 24    tions in paragraph 4 ("Statement of Desires, Special Provisions,  and  Limita-
 25    tions") above.)
                                                                        
 26    B.  HIPAA  Release  Authority.  My  agent  shall be treated as I would be with
 27    respect to my rights regarding the use and disclosure of my individually iden-
 28    tifiable health information or other medical records. This  release  authority
 29    applies  to  any  information governed by the Health Insurance Portability and
 30    Accountability Act of 1996 (HIPAA), 42 U.S.C. 1320d and  45  CFR  160  through
 31    164.  I  authorize  any  physician,  health care professional, dentist, health
 32    plan, hospital, clinic, laboratory, pharmacy, or  other  covered  health  care
 33    provider,  any  insurance company, and the Medical Information Bureau, Inc. or
 34    other health care clearinghouse that has provided treatment or services to me,
 35    or that has paid for or is seeking payment from me for such services, to give,
 36    disclose and release to my agent, without restriction, all of my  individually
 37    identifiable  health information and medical records regarding any past, pres-
 38    ent or future medical or mental health condition,  including  all  information
 39    relating  to  the diagnosis of HIV/AIDS, sexually transmitted diseases, mental
 40    illness, and drug or alcohol abuse. The authority given my agent shall  super-
 41    sede any other agreement that I may have made with my health care providers to
 42    restrict access to or disclosure of my individually identifiable health infor-
 43    mation.  The  authority given my agent has no expiration date and shall expire
 44    only in the event that I revoke the authority in writing and deliver it to  my
 45    health care provider.
                                                                        
 46    6.  SIGNING  DOCUMENTS, WAIVERS AND RELEASES. Where necessary to implement the
 47    health care decisions that my agent is authorized by this Directive  to  make,
 48    my  agent  has the power and authority to execute on my behalf all of the fol-
 49    lowing: (a) Documents titled, or purporting to be, a "Refusal to Permit Treat-
 50    ment" and/or a "Leaving Hospital Against Medical Advice"; and (b)  Any  neces-
 51    sary waiver or release from liability required by a hospital or physician.
                                                                        
                                           9
                                                                        
  1    7.  DESIGNATION  OF  ALTERNATE  AGENTS. (You are not required to designate any
  2    alternate agents but you may do so. Any alternate agent you designate will  be
  3    able  to  make  the  same health care decisions as the agent you designated in
  4    paragraph 1 above, in the event that agent is unable or ineligible to  act  as
  5    your  agent.  If  an  alternate  agent you designate is your spouse, he or she
  6    becomes ineligible to act as your agent if your marriage  is  thereafter  dis-
  7    solved.)  If the person designated as my agent in paragraph 1 is not available
  8    or becomes ineligible to act as my agent to make a health care decision for me
  9    or loses the mental capacity to make health care decisions for  me,  or  if  I
 10    revoke  that  person's  appointment  or  authority  to act as my agent to make
 11    health care decisions for me, then I designate and appoint the following  per-
 12    sons  to  serve as my agent to make health care decisions for me as authorized
 13    in this Directive, such persons to serve in the order listed below:
                                                                        
 14    A.  First Alternate Agent:
 15    Name..........................................................................
 16    Address.......................................................................
 17    Telephone Number..............................................................
                                                                        
 18    B.  Second Alternate Agent:
 19    Name..........................................................................
 20    Address.......................................................................
 21    Telephone Number..............................................................
                                                                        
 22    C.  Third Alternate Agent:
 23    Name..........................................................................
 24    Address.......................................................................
 25    Telephone Number..............................................................
                                                                        
 26    8.  PRIOR DESIGNATIONS REVOKED. I revoke any prior durable power  of  attorney
 27    for health care.
                                                                        
 28    DATE  AND SIGNATURE OF PRINCIPAL. (You must date and sign this Living Will and
 29    Durable Power of Attorney for Health Care.)
                                                                        
 30    I sign my name to this Statutory Form Living Will and Durable Power of  Attor-
 31    ney  for  Health  Care  on the date set forth at the beginning of this Form at
 32    ............... (City, State)....................
                                                                        
 33    ..............................
 34    Signature
                                                                        
 35        (2)  A health care directive meeting the requirements of subsection (1) of
 36    this section may be registered with the secretary of  state  pursuant  to  the
 37    provisions of section 39-4515, Idaho Code. Failure to register the health care
 38    directive shall not affect the validity of the health care directive.
                                                                        
 39        SECTION  4.  That  Section 39-4511, Idaho Code, be, and the same is hereby
 40    amended to read as follows:
                                                                        
 41        39-4511.  REVOCATION. (1) A "Living Will and Durable Power of Attorney for
 42    Health Care" may be revoked at any time by the maker thereof,  without  regard
 43    to his mental state or competence, by any of the following methods:
 44        (a)  By being canceled, defaced, obliterated or burned, torn, or otherwise
 45        destroyed  by  the maker thereof, or by some person in his presence and by
                                                                        
                                           10
                                                                        
  1        his direction;
  2        (b)  By a written, signed revocation of the maker thereof  expressing  his
  3        intent to revoke; or
  4        (c)  By  an  oral expression by the maker thereof expressing his intent to
  5        revoke.
  6        (2)  There shall be no criminal or civil liability on the part of any per-
  7    son for the failure to act upon a revocation of a  "Living  Will  and  Durable
  8    Power  of  Attorney for Health Care" made pursuant to this section unless that
  9    person has actual knowledge of the revocation.
 10        (3)  A person may register a revocation of a health care  directive  which
 11    meets the requirements of subsection (1)(b) of this section with the secretary
 12    of state pursuant to the provisions of section 39-4515, Idaho Code. Failure to
 13    register a revocation of the health care directive shall not affect the valid-
 14    ity of the revocation.
                                                                        
 15        SECTION  5.  That  Section 39-4513, Idaho Code, be, and the same is hereby
 16    amended to read as follows:
                                                                        
 17        39-4513.  IMMUNITY. (1) No medical personnel or health care facility shall
 18    be civilly or criminally liable for acts or omissions carried out or performed
 19    pursuant to the directives in a facially valid living will or by the holder of
 20    a facially valid durable power of attorney or directive for health care if the
 21    medical personnel or health care facility acts in good faith.
 22        (2)  Any physician or other health care provider who for ethical  or  pro-
 23    fessional  reasons  is incapable or unwilling to conform to the desires of the
 24    patient as expressed by the procedures set forth in this chapter may  withdraw
 25    without  incurring  any  civil or criminal liability provided the physician or
 26    other health care provider makes a good faith effort to assist the patient  in
 27    obtaining  the  services  of  another  physician or other health care provider
 28    before withdrawal.
 29        (3)  No person who exercises the responsibilities of a  durable  power  of
 30    attorney  for  health care in good faith shall be subject to civil or criminal
 31    liability as a result.
 32        (4)  Neither the registration of a health care  directive  in  the  health
 33    care  directive registry under section 39-4515, Idaho Code, nor the revocation
 34    of such a directive requires a health care  provider  to  request  information
 35    from  that  registry. The decision of a health care provider to request or not
 36    to request a health care directive document from the registry shall be  immune
 37    from  civil  or  criminal  liability. A health care provider who in good faith
 38    acts in reliance on a facially valid health care directive received  from  the
 39    health  care directive registry shall be immune from civil or criminal liabil-
 40    ity for those acts done in such reliance.
                                                                        
 41        SECTION 6.  That Chapter 45, Title 39, Idaho Code, be,  and  the  same  is
 42    hereby  amended by the addition thereto of a NEW SECTION, to be known and des-
 43    ignated as Section 39-4515, Idaho Code, and to read as follows:
                                                                        
 44        39-4515.  HEALTH CARE DIRECTIVE REGISTRY. (1) The secretary of state shall
 45    create and maintain a health care directive registry. The health  care  direc-
 46    tive  registry  shall be accessible through a website maintained by the secre-
 47    tary of state. The information contained in such registry shall  include:  the
 48    full  name  of the person executing the health care directive as stated in the
 49    directive, a file identification number unique to  the  person  executing  the
 50    directive, and the date the directive was executed.
 51        (2)  A  person  may  register  with  the  secretary of state a health care
                                                                        
                                           11
                                                                        
  1    directive or a revocation of a health care directive by submitting the  direc-
  2    tive  or  revocation,  completing and submitting an informational registration
  3    form as required by the secretary of state, and paying the secretary of  state
  4    the fee which the secretary of state may require for registering a health care
  5    directive. The person who submits a document for registration pursuant to this
  6    section shall provide a return address.
  7        (3)  The secretary of state may charge and collect a fee not to exceed ten
  8    dollars ($10.00) for the filing of a health care directive. All fees collected
  9    for  the  filing of a health care directive shall be deposited into the health
 10    care directive registry fund. No fee shall be charged for  revoking  a  health
 11    care directive.
 12        (4)  Upon receipt of the registration form, the secretary of state shall:
 13        (a)  Create  a  digital  reproduction  of the health care directive or the
 14        revocation document and the informational registration form;
 15        (b)  Enter these digitally  reproduced  documents  into  the  health  care
 16        directive registry database;
 17        (c)  Assign each entry a unique identification file number and password;
 18        (d)  Return  the  original  health care directive or revocation thereof to
 19        the person who submitted the document;
 20        (e)  Provide to the person who submitted the document a printed record  of
 21        the  information entered into the database, the identification file number
 22        under which it was entered, the password assigned to  that  identification
 23        file number; and
 24        (f)  Provide  to the person who submitted the document a wallet-sized card
 25        that contains the name of the person executing the health  care  directive
 26        as  it appears on the document, the identification file number assigned to
 27        the registration, and the password assigned  to  the  identification  file
 28        number.
 29        (5)  The  registry established under this section shall be accessible only
 30    by entering the identification file number and the assigned  password  on  the
 31    health care directive registry website.
 32        (6)  The  secretary  of  state and those granted access to the health care
 33    directive registry shall use information contained in the  registry  only  for
 34    purposes  prescribed in this section. No person granted access to the registry
 35    shall use the information for commercial solicitations or in any fraudulent or
 36    improper way. Any commercial  solicitation,  fraudulent  or  improper  use  of
 37    information  contained  in  the  registry shall constitute a violation of this
 38    section and a violation of the Idaho consumer protection act.
 39        (7)  The secretary of state is not required to review a health care direc-
 40    tive or revocation thereof to ensure  that  the  document  complies  with  any
 41    applicable  and  statutory   requirements. Entry of a document into the health
 42    care directive registry pursuant to this section does not create a presumption
 43    favoring the validity of the document.
 44        (8)  The secretary of state shall delete a health care directive  and  the
 45    informational  registration  form from the health care directive registry when
 46    the secretary of state receives:
 47        (a)  A revocation of a health care directive signed by the  maker  thereof
 48        or  that  person's legal representative along with the identification file
 49        number and assigned password; or
 50        (b)  Verification from the bureau of health policy and vital statistics of
 51        the Idaho department of health and welfare that the  person  who  executed
 52        the  health  care directive is deceased. The deletion under this paragraph
 53        shall be performed not less than once every two (2) years. The  bureau  of
 54        health  policy  and vital statistics of the Idaho department of health and
 55        welfare shall share its registry of death certificates with the  secretary
                                                                        
                                           12
                                                                        
  1        of  state in order to permit the secretary of state to fulfill its respon-
  2        sibilities under this paragraph.
  3        (9)  Neither the secretary of state nor the state of Idaho shall  be  sub-
  4    ject  to civil liability for any claims or demands arising out of the adminis-
  5    tration or operation of the health care directive registry.
  6        (10) There is hereby created in the state treasury the health care  direc-
  7    tive  registry  fund,  the moneys of which shall be continuously appropriated,
  8    administered by the secretary of state and used to support, promote and  main-
  9    tain  the  health care directive registry. The fund shall consist of fees paid
 10    by persons registering health care directives under this  section  and  income
 11    from investment from the fund, gifts, grants, bequests and other forms of vol-
 12    untary  donations.  On notice from the secretary of state, the state treasurer
 13    shall invest and divest moneys in  the  fund,  and  moneys  earned  from  such
 14    investment shall be credited to the fund.
                                                                        
 15        SECTION  7.  An  emergency  existing  therefor,  which emergency is hereby
 16    declared to exist, Section 6 of this act shall be in full force and effect  on
 17    and  after its passage and approval and Sections 1 through 5 of this act shall
 18    be in full force and effect on and after July 1, 2006. The Secretary of  State
 19    will  accept registration applications pursuant to this act on and after Janu-
 20    ary 1, 2007.

Statement of Purpose / Fiscal Impact



                       STATEMENT OF PURPOSE

                             RS 16073

This legislation creates a health care directive registry within the Office of
the Secretary of State.  It does this by creating a new code section, Idaho
Code  39-4515.  The health care directive registry would contain copies of an
individual's living will and durable power of attorney.  Individuals who
register these documents with the Secretary of State would each be given an
individual password, which would allow them to access their documents from the
health care directive registry.  They could choose to share their password
with a hospital, physician, family member, or friend.

The advantage of the registry is that individuals who are traveling and who
require medical treatment could ensure that they could access their living
will and durable power of attorney anywhere in the United States by using the
password.  Likewise, if they are being treated in a hospital or by a doctor in
another state, a copy of the living will and durable power of attorney can be
easily provided to the out-of-state healthcare provider.

The use of the health care directive registry is entirely voluntary, and no
one is required to register their living will or durable power of attorney
with the Secretary of State.  Registration or non-registration of these types
of documents has no effect upon their validity.  It only makes them more
accessible in time of emergency.

This legislation also amends the Public Records Act to ensure that information
in the health care directive registry and documents contained within the
registry are not subject to public records requests.
                                             
                                 
                          FISCAL NOTE
                                
This legislation has no effect on the general fund.  The Secretary of State is
authorized to charge a fee of up to $10 for registration of a living will and
durable power of attorney.  No filing fee is required to have a document
removed from the registry.  The fee charged by the Secretary of State would
more than offset any administrative costs.  Although the Secretary of State is
authorized to charge a fee, the legislation also provides for donations to the
registry fund.  Other states have received donations sufficient to cover
operating expenses such that no filing fee is required.



Contact
Name: William A. Von Tagen, Office of the Attorney General 
Phone: (208) 334-4140
Name: Joe Gallegos, AARP
Phone: (208) 855-4005
Name: Tim Hurst, Office of the Secretary of State
Phone: (208) 332-2812

     
STATEMENT OF PURPOSE/FISCAL NOTE                                     H 708