2004 Legislation
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SENATE BILL NO. 1249 – Living wills/durable power of atty

SENATE BILL NO. 1249

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S1249................................................by JUDICIARY AND RULES
LIVING WILLS - DURABLE POWER OF ATTORNEY - Amends existing law relating to
provisions of a living will and a durable power of attorney; to establish
the effect of certain living wills and durable powers of attorney for
health care; to govern application under the Health Insurance Portability
and Accountability Act of 1996; to recognize applicability of a directive
to lifesaving procedures; and to govern application of immunity provisions
to all health care providers.
                                                                        
01/29    Senate intro - 1st rdg - to printing
01/30    Rpt prt - to Jud
02/12    Rpt out - rec d/p - to 2nd rdg
02/13    2nd rdg - to 3rd rdg
02/19    3rd rdg - PASSED - 33-0-2
      AYES -- Andreason, Bailey, Brandt, Bunderson, Burkett, Burtenshaw,
      Calabretta, Cameron, Compton, Davis, Gannon, Geddes, Goedde, Hill,
      Ingram, Keough, Little, Lodge, Malepeai, Marley, McKenzie,
      McWilliams, Noble, Noh, Pearce, Richardson, Schroeder, Sorensen,
      Stegner, Stennett, Sweet, Werk, Williams
      NAYS -- None
      Absent and excused -- Darrington, Kennedy
    Floor Sponsor - Bunderson
    Title apvd - to House
02/20    House intro - 1st rdg - to Jud
03/02    Rpt out - rec d/p - to 2nd rdg
03/03    2nd rdg - to 3rd rdg
03/08    3rd rdg - PASSED - 68-2-0
      AYES -- Andersen, Barraclough, Barrett, Bauer, Bayer, Bedke, Bell,
      Black, Block, Boe, Bolz, Bradford, Campbell, Cannon, Clark, Collins,
      Crow, Cuddy, Deal, Denney, Douglas, Eberle, Edmunson, Ellsworth,
      Eskridge, Field(18), Field(23), Gagner, Garrett, Harwood, Henbest,
      Jaquet, Jones, Kellogg, Kulczyk, Lake, Langford, Langhorst, Martinez,
      McGeachin, Meyer, Miller, Mitchell, Moyle, Naccarato, Nielsen,
      Pasley-Stuart, Raybould, Ridinger, Ring, Ringo, Roberts, Robison,
      Rydalch, Sali, Sayler, Schaefer, Shepherd, Shirley, Skippen,
      Smith(30), Smylie, Snodgrass, Stevenson, Trail, Wills, Wood, Mr.
      Speaker
      NAYS -- McKague, Smith(24)
      Absent and excused -- None
    Floor Sponsors - Pasley-Stuart & Ring
    Title apvd - to Senate
03/09    To enrol
03/10    Rpt enrol - Pres signed
03/11    Sp signed
03/12    To Governor
03/16    Governor signed
         Session Law Chapter 56
         Effective: 07/01/04

Bill Text


                                                                        
                                                                        
  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-seventh Legislature                 Second Regular Session - 2004
                                                                        
                                                                        
                                       IN THE SENATE
                                                                        
                                    SENATE BILL NO. 1249
                                                                        
                              BY JUDICIARY AND RULES COMMITTEE
                                                                        
  1                                        AN ACT
  2    RELATING TO PROVISIONS OF A LIVING WILL  AND  A  DURABLE  POWER  OF  ATTORNEY;
  3        AMENDING  SECTION  39-4504, IDAHO CODE, TO ESTABLISH THE EFFECT OF CERTAIN
  4        LIVING WILLS; AMENDING SECTION  39-4505,  IDAHO  CODE,  TO  ESTABLISH  THE
  5        EFFECT  OF A DURABLE POWER OF ATTORNEY FOR HEALTH CARE, TO GOVERN APPLICA-
  6        TION UNDER THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996
  7        AND TO MAKE A TECHNICAL CORRECTION; AMENDING SECTION 39-4507, IDAHO  CODE,
  8        TO  REMOVE  A CONDITION GOVERNING THE EFFECT OF A DIRECTIVE; AMENDING SEC-
  9        TION 56-1020, IDAHO CODE, TO RECOGNIZE APPLICABILITY  OF  A  DIRECTIVE  TO
 10        LIFESAVING  PROCEDURES;  AMENDING  SECTION 56-1021, IDAHO CODE, TO FURTHER
 11        DEFINE TERMS; AMENDING SECTION 56-1026, IDAHO CODE, TO PROVIDE APPLICATION
 12        TO ALL HEALTH CARE PROVIDERS; AMENDING SECTION  56-1027,  IDAHO  CODE,  TO
 13        PROVIDE  APPLICATION  TO  ALL  HEALTH CARE PROVIDERS; AND AMENDING SECTION
 14        56-1029, IDAHO CODE, TO GOVERN APPLICATION OF IMMUNITY PROVISIONS  TO  ALL
 15        HEALTH CARE PROVIDERS.
                                                                        
 16    Be It Enacted by the Legislature of the State of Idaho:
                                                                        
 17        SECTION  1.  That  Section 39-4504, Idaho Code, be, and the same is hereby
 18    amended to read as follows:
                                                                        
 19        39-4504.  LIVING WILL. Any competent person may execute a  document  known
 20    as a "living will." Such document shall be in the following form or in another
 21    form  that  contains  the  elements set forth in this section. A "living will"
 22    executed prior to the effective date of an  amendment  of  this  section,  but
 23    which  was  in the "living will" form in effect under this section at the time
 24    of execution, or in another form that contained the elements set forth in this
 25    section at the time of execution, shall be deemed to  be  in  compliance  with
 26    this  section.  A  "living will" or similar document executed in another state
 27    which substantially complies with this section shall be deemed to be  in  com-
 28    pliance with this section.
                                                                        
 29                                    A LIVING WILL
                                                                        
 30                   A Directive to Withhold or to Provide Treatment
                                                                        
 31        To  my  family, my relatives, my friends, my physicians, my employers, and
 32    all others whom it may concern:
                                                                        
 33        Directive made this .... day of ............. ....    I,  ................
 34    (name),  being  of sound mind, willfully, and voluntarily make known my desire
 35    that my life shall not be prolonged artificially under the  circumstances  set
 36    forth below, do hereby declare:
 37        1.  If  at any time I should have an incurable injury, disease, illness or
 38    condition certified to be terminal by two (2) medical doctors who  have  exam-
 39    ined  me,  and where the application of life-sustaining procedures of any kind
                                                                        
                                           2
                                                                        
  1    would serve only to prolong artificially my life, and where a  medical  doctor
  2    determines  that  my  death is imminent, whether or not life-sustaining proce-
  3    dures are utilized, or I have been diagnosed as being in a persistent  vegeta-
  4    tive state, I direct that the following marked expression of my intent be fol-
  5    lowed and that I be permitted to die naturally, and that I receive any medical
  6    treatment or care that may be required to keep me free of pain or distress.
  7        "Check One Box"
  8             If at any time I should become unable to communicate my instructions,
  9    then  I  direct  that all medical treatment, care, and nutrition and hydration
 10    necessary to restore my health, sustain my life, and to abolish  or  alleviate
 11    pain or distress be provided to me. Nutrition and hydration shall not be with-
 12    held  or  withdrawn  from  me  if I would die from malnutrition or dehydration
 13    rather than from my injury, disease, illness or condition.
 14             If at any time I should become unable to communicate my  instructions
 15    and where the application of artificial life-sustaining procedures shall serve
 16    only  to prolong artificially my life, I direct such procedures be withheld or
 17    withdrawn except for the administration of nutrition and hydration as  follows
 18    (if none of the following boxes are checked, then both nutrition and hydration
 19    shall be administered):
 20             Only hydration shall be administered;
 21             Only nutrition shall be administered;
 22             Both nutrition and hydration shall be administered.
 23             If  at any time I should become unable to communicate my instructions
 24    and where the application of artificial life-sustaining procedures shall serve
 25    only to prolong artificially my life, I direct such procedures be withheld  or
 26    withdrawn   including  withdrawal  of  the  administration  of  nutrition  and
 27    hydration.
 28        2.  In the absence of my ability to give directions regarding the  use  of
 29    life-sustaining procedures, I hereby appoint ................ (name) currently
 30    residing  at  ................, as my attorney-in-fact/proxy for the making of
 31    decisions relating to my health care in my place; and it is my intention  that
 32    this  appointment  shall  be  honored  by  him/her,  by  my family, relatives,
 33    friends, physicians and lawyer as the final expression of my  legal  right  to
 34    refuse  medical or surgical treatment; and I accept the consequences of such a
 35    decision. I have duly executed a Durable Power of  Attorney  for  health  care
 36    decisions on this date.
 37        3.  In  the  absence of my ability to give further directions regarding my
 38    treatment, including life-sustaining procedures, it is my intention that  this
 39    directive shall be honored by my family and physicians as the final expression
 40    of  my  legal  right to refuse or accept medical and surgical treatment, and I
 41    accept the consequences of such refusal.
 42        43.  If I have been diagnosed as pregnant, and that diagnosis is known  to
 43    any interested person, this directive shall have no force during the course of
 44    my pregnancy.
 45        54.  I understand the full importance of this directive and am emotionally
 46    and mentally competent to make this directive. No participant in the making of
 47    this  directive  or  in its being carried into effect, whether it be a medical
 48    doctor, my spouse, a relative, friend  or  any  other  person  shall  be  held
 49    responsible  in  any  way,  legally, professionally or socially, for complying
 50    with my directions.
                                                                        
 51        Signed ...................................................................
                                                                        
 52        City, county and state of residence ......................................
                                                                        
                                           3
                                                                        
  1        The declarant has been known to me personally and I believe him/her to  be
  2    of sound mind.
                                                                        
  3    Witness ........................   Witness....................................
                                                                        
  4    Address ........................   Address....................................
                                                                        
  5        SECTION  2.  That  Section 39-4505, Idaho Code, be, and the same is hereby
  6    amended to read as follows:
                                                                        
  7        39-4505.  DURABLE POWER OF ATTORNEY FOR HEALTH CARE. In order to implement
  8    the general desires of a person as expressed in the "living will,"  aA  compe-
  9    tent person may appoint any adult person to exercise a durable power of attor-
 10    ney for health care. The power shall be effective only when the competent per-
 11    son  is unable to communicate rationally. The person granted the durable power
 12    of attorney for health care may make health decisions for the  person  to  the
 13    same extent that the principal could make such decisions given the capacity to
 14    do so.
 15        The durable power of attorney for health care may list alternative holders
 16    of  the  power in the event that the first person named is unable or unwilling
 17    to exercise the power.
 18        A durable power of attorney for health care may be in the following  form,
 19    or  in  any  other form which contains the elements set forth in the following
 20    form, including a form executed pursuant to the laws of another state.
                                                                        
 21                     A DURABLE POWER OF ATTORNEY FOR HEALTH CARE
 22        1.  DESIGNATION OF HEALTH CARE AGENT.
 23    I, ...........................................................................
 24                            (Insert your name and address)
 25    do hereby designate and appoint ..............................................
 26    (Insert name, address, and telephone number of one  individual  only  as  your
 27    agent to make health care decisions for you. None of the following may be des-
 28    ignated  as  your  agent:  (1)  your  treating  health  care  provider,  (2) a
 29    nonrelative employee of your treating health care provider, (3) an operator of
 30    a community care facility, or (4) a nonrelative employee of an operator  of  a
 31    community care facility).
                                                                        
 32    as  my attorney in fact (agent) to make health care decisions for me as autho-
 33    rized in this document. For the purposes of this document, "health care  deci-
 34    sion" means consent, refusal of consent, or withdrawal of consent to any care,
 35    treatment,   service,   or  procedure  to  maintain,  diagnose,  or  treat  an
 36    individual's physical condition.
 37        2.  CREATION OF DURABLE POWER OF ATTORNEY FOR HEALTH CARE. By  this  docu-
 38    ment  I  intend  to  create  a durable power of attorney for health care. This
 39    power of attorney shall not be affected by my subsequent incapacity.
 40        3.  GENERAL STATEMENT OF AUTHORITY GRANTED. Subject to any limitations  in
 41    this  document,  I  hereby  grant to my agent full power and authority to make
 42    health care decisions for me to the same extent that I could make  such  deci-
 43    sions for myself if I had the capacity to do so. In exercising this authority,
 44    my  agent shall make health care decisions that are consistent with my desires
 45    as stated in this document or otherwise made known to my agent, including, but
 46    not limited to, my desires concerning obtaining  or  refusing  or  withdrawing
 47    life-prolonging  care,  treatment,  services,  and  procedures, including such
 48    desires set forth in a living will or similar document executed by me, if any.
 49    (If you want to limit the authority of your agent to make  health  care  deci-
                                                                        
                                           4
                                                                        
  1    sions  for  you,  you  can state the limitations in paragraph 4 ("Statement of
  2    Desires, Special Provisions, and Limitations") below. You can   indicate  your
  3    desires by including a statement of your desires in the same paragraph.)
  4        4.  STATEMENT OF DESIRES, SPECIAL PROVISIONS, AND LIMITATIONS. (Your agent
  5    must  make  health care decisions that are consistent with your known desires.
  6    You can, but are not required to, state your desires  in  the  space  provided
  7    below.  You  should  consider  whether you want to include a statement of your
  8    desires concerning life-prolonging care, treatment, services, and  procedures.
  9    You  can  also  include  a  statement of your desires concerning other matters
 10    relating to your health care. You can also make your  desires  known  to  your
 11    agent  by  discussing  your desires with your agent or by some other means. If
 12    there are any types of treatment that you do not want to be used,  you  should
 13    state  them  in  the  space  below.  If you want to limit in any other way the
 14    authority given your agent by this document, you should state  the  limits  in
 15    the  space  below.  If you do not state any limits, your agent will have broad
 16    powers to make health care decisions for you, except to the extent that  there
 17    are limits provided by law.)
                                                                        
 18        In  exercising  the  authority  under  this  durable power of attorney for
 19    health care, my agent shall act consistently with my desires as  stated  below
 20    and  is subject to the special provisions and limitations stated in the a liv-
 21    ing will or similar document executed by me, if any. Additional  statement  of
 22    desires, special provisions, and limitations:
                                                                        
 23    ..............................................................................
                                                                        
 24    (You  may  attach  additional  pages  if  you need more space to complete your
 25    statement. If you attach additional pages, you must date and sign each of  the
 26    additional pages at the same time you date and sign this document.)
 27        5.  INSPECTION  AND  DISCLOSURE  OF INFORMATION RELATING TO MY PHYSICAL OR
 28    MENTAL HEALTH. A. General Grant of Power and Authority.  Subject to any  limi-
 29    tations  in  this  document, my agent has the power and authority to do all of
 30    the following:
 31        (a)  Request, review, and receive  any  information,  verbal  or  written,
 32        regarding  my  physical  or  mental health, including, but not limited to,
 33        medical and hospital records.
 34        (b)  Execute on my behalf any releases or  other  documents  that  may  be
 35        required in order to obtain this information.
 36        (c)  Consent to the disclosure of this information.
 37        (d)  Consent to the donation of any of my organs for medical purposes.
 38    (If  you  want  to  limit  the authority of your agent to receive and disclose
 39    information relating to your health, you must state the limitations  in  para-
 40    graph 4 ("Statement of Desires, Special Provisions, and Limitations") above.)
 41        B.  HIPAA  Release Authority. My agent shall be treated as I would be with
 42    respect to my rights regarding the use and disclosure of my individually iden-
 43    tifiable health information or other medical records. This  release  authority
 44    applies  to  any  information governed by the Health Insurance Portability and
 45    Accountability Act of 1996 (HIPAA), 42 U.S.C. 1320d and  45  CFR  160  through
 46    164.  I  authorize  any  physician,  health care professional, dentist, health
 47    plan, hospital, clinic, laboratory, pharmacy, or  other  covered  health  care
 48    provider,  any  insurance company, and the Medical Information Bureau, Inc. or
 49    other health care clearinghouse that has provided treatment or services to me,
 50    or that has paid for or is seeking payment from me for such services, to give,
 51    disclose, and release to my agent, without restriction, all of my individually
 52    identifiable health information and medical records regarding any past,  pres-
                                                                        
                                           5
                                                                        
  1    ent,  or  future medical or mental health condition, including all information
  2    relating to the diagnosis  of HIV/AIDS, sexually transmitted diseases,  mental
  3    illness,  and drug or alcohol abuse. The authority given my agent shall super-
  4    sede any other agreement that I may have made with my health care providers to
  5    restrict access to or disclosure of my individually identifiable health infor-
  6    mation. The authority given my agent has no expiration date and  shall  expire
  7    only  in the event that I revoke the authority in writing and deliver it to my
  8    health care provider.
  9        6.  SIGNING DOCUMENTS, WAIVERS, AND RELEASES. Where necessary to implement
 10    the health care decisions that my agent is  authorized  by  this  document  to
 11    make,  my agent has the power and authority to execute on my behalf all of the
 12    following:
 13        (a)  Documents titled or purporting to be a "Refusal to Permit  Treatment"
 14        and "Leaving Hospital Against Medical Advice."
 15        (b)  Any necessary waiver or release from liability required by a hospital
 16        or physician.
 17        7.  DESIGNATION OF ALTERNATE AGENTS.
 18    (You are not required to designate any alternate agents but you may do so. Any
 19    alternate  agent you designate will be able to make the same health care deci-
 20    sions as the agent you designated in paragraph 1, above,  in  the  event  that
 21    agent  is  unable  or ineligible to act as your agent. If the agent you desig-
 22    nated is your spouse, he or she becomes ineligible to act  as  your  agent  if
 23    your marriage is dissolved.)
                                                                        
 24        If  the  person  designated as my agent in paragraph 1 is not available or
 25    becomes ineligible to act as my agent to make a health care decision for me or
 26    loses the mental capacity to make health care decisions for me, or if I revoke
 27    that person's appointment or authority to act as my agent to make health  care
 28    decisions  for me, then I designate and appoint the following persons to serve
 29    as my agent to make health care decisions for me as authorized in  this  docu-
 30    ment, such persons to serve in the order listed below:
 31        A.  First Alternate Agent ................................................
 32    (Insert name, address, and telephone number of first alternate agent)
 33        B.  Second Alternate Agent ...............................................
 34    (Insert name, address, and telephone number of second alternate agent)
 35        8.  PRIOR DESIGNATIONS REVOKED. I revoke any prior durable power of attor-
 36    ney for health care.
                                                                        
 37                           DATE AND SIGNATURE OF PRINCIPAL
 38    (You Must Date and Sign This Power of Attorney)
                                                                        
 39        I sign my name to this Statutory Form Durable Power of Attorney for Health
 40    Care on ................ at ............., .............
 41                  (Date)             (City)        (State)
                                                                        
 42    ..............................................................................
 43                                   (You sign here)
 44    (This Power of Attorney will not be valid unless it is signed by two qualified
 45    witnesses  who are present when you sign or acknowledge your signature. If you
 46    have attached any additional pages to this form, you must date and  sign  each
 47    of  the  additional  pages  at  the  same time you date and sign this Power of
 48    Attorney.)
                                                                        
                                           6
                                                                        
  1                                STATEMENT OF WITNESSES
  2    (This document must be witnessed by two qualified adult witnesses. None of the
  3    following may be used as a witness: (1) a person you designate as  your  agent
  4    or  alternate  agent,  (2) a health care provider, (3) an employee of a health
  5    care provider, (4) the operator of a community care facility, (5) an  employee
  6    of  an  operator  of  a community care facility. At least one of the witnesses
  7    must make the additional declaration set out following  the  place  where  the
  8    witnesses sign.)
  9        I declare under penalty of perjury under the laws of Idaho that the person
 10    who  signed or acknowledged this document is personally known to me (or proved
 11    to me on the basis of convincing evidence) to be the principal, that the prin-
 12    cipal signed or acknowledged this durable power of attorney  in  my  presence,
 13    that  the principal appears to be of sound mind and under no duress, fraud, or
 14    undue influence, that I am not the person appointed as  attorney  in  fact  by
 15    this  document,  and  that  I  am not a health care provider, an employee of a
 16    health care provider, the operator  of  a  community  care  facility,  nor  an
 17    employee of an operator of a community care facility.
 18    Signature: ...................................................................
 19    Print name: ..................................................................
 20    Date: .............  Residence address: ......................................
 21    Signature: ...................................................................
 22    Print name: ..................................................................
 23    Date: .............  Residence address: ......................................
 24                 (At least one of the above witnesses must also sign)
 25        I  further declare under penalty of perjury under the laws of Idaho that I
 26    am not related to the principal by blood, marriage, or adoption, and,  to  the
 27    best of my knowledge, I am not entitled to any part of the estate of the prin-
 28    cipal  upon  the death of the principal under a will now existing or by opera-
 29    tion of law.
 30    Signature: ...................................................................
 31    Signature: ...................................................................
                                                                        
 32                                        NOTARY
 33    (Signer of instrument may either have it witnessed as above  or  have  his/her
 34    signature notarized as below, to legalize this instrument.)
 35    State of Idaho
 36    County of .........      ss.
 37    On this ..... day of ........ 19....
 38    before me personally appeared ................................................
 39                                               (full name of signer of instrument)
 40    to me known (or proved to me on basis of satisfactory evidence) to be the per-
 41    son  whose name is subscribed to this instrument, and acknowledged that he/she
 42    executed it. I declare under penalty of perjury that the person whose name  is
 43    subscribed to this instrument appears to be of sound mind and under no duress,
 44    fraud or undue influence.
 45                                                             .....................
 46                                                             (Signature of Notary)
                                                                        
 47        SECTION  3.  That  Section 39-4507, Idaho Code, be, and the same is hereby
 48    amended to read as follows:
                                                                        
 49        39-4507.  EXECUTION OF DIRECTIVE. A directive shall be effective from  the
 50    date  of  execution unless otherwise revoked. Nothing in this chapter shall be
 51    construed to prevent a competent person from reexecuting a  directive  at  any
 52    time.  If  the  competent  person becomes comatose or is rendered incapable of
                                                                        
                                           7
                                                                        
  1    communicating with the attending physician,  the  directive  shall  remain  in
  2    effect  for  the  duration of the comatose condition or until such time as the
  3    patient's condition renders him able to communicate with the attending  physi-
  4    cian.
                                                                        
  5        SECTION  4.  That  Section 56-1020, Idaho Code, be, and the same is hereby
  6    amended to read as follows:
                                                                        
  7        56-1020.  LEGISLATIVE INTENT. It is the legislative  intent  to  recognize
  8    the  established  common  law and the fundamental right of a person to control
  9    the decisions relative to the rendering or withholding of their medical  care.
 10    Sections 56-1020 through 56-1035, Idaho Code, in keeping with sections 39-4501
 11    through 39-4509, Idaho Code, apply to noninstitutional situations.
 12        It  is  the  purpose of this legislation to establish rules and procedures
 13    allowing the physician of a terminally ill person, with the  authorization  of
 14    the  person or their legal representative, to be able to issue a directive, in
 15    advance, instructing emergency medical services personnel not to  perform  re-
 16    suscitation  if  called to attend to those persons. A method of identification
 17    is defined and correct procedures outlined for emergency medical services per-
 18    sonnel to properly respond to these situations.
                                                                        
 19        SECTION 5.  That Section 56-1021, Idaho Code, be, and the same  is  hereby
 20    amended to read as follows:
                                                                        
 21        56-1021.  DEFINITIONS.  As used in sections 56-1020 through 56-1035, Idaho
 22    Code:
 23        (1)  "Attending physician" means the physician who has  primary  responsi-
 24    bility  for  the  treatment  and  care of the patient, including the physician
 25    responsible for monitoring and directing the activities of  emergency  medical
 26    services personnel.
 27        (2)  "Cardiopulmonary  resuscitation"  or  "CPR" means measures to restore
 28    cardiac function or to support breathing in the event of cardiac  or  respira-
 29    tory  arrest or malfunction. "CPR" includes, but is not limited to, chest com-
 30    pression, delivering electric shock to the chest, or placing tubes in the air-
 31    way to assist breathing.
 32        (3)  "Comfort care" means treatment given in an  attempt  to  protect  and
 33    enhance quality of life without artificially prolonging that life.
 34        (4)  "Decisional  capacity"  means the ability to provide informed consent
 35    to or refusal of medical treatment.
 36        (5)  "Department" means the department of health and welfare.
 37        (6)  "Do not resuscitate identification" or "DNR identification"  means  a
 38    standardized form of identification approved by the department, that signifies
 39    that  the  possessor  has  a  DNR  order that has not been revoked or that the
 40    possessor's attending physician has issued a DNR order for the  possessor  and
 41    has documented the order in the possessor's medical file.
 42        (7)  "Do  not  resuscitate order" or "DNR order" means a documented direc-
 43    tive from a  licensed  physician  that  emergency  life-sustaining  procedures
 44    should not be administered to a particular person.
 45        (8)  "Do  not resuscitate protocol" or "DNR protocol" means a standardized
 46    method of procedure, approved by the board of health and welfare  and  adopted
 47    in  the  rules  of  the  department,  for  the  withholding of emergency life-
 48    sustaining procedures by physicians and emergency medical services personnel.
 49        (9)  "Emergency medical services personnel" means the personnel of a  ser-
 50    vice  engaged in providing initial emergency medical assistance including, but
 51    not limited to, first  responders,  emergency  medical  technicians,  advanced
                                                                        
                                           8
                                                                        
  1    emergency medical technicians, and paramedics.
  2        (10) "Health  care provider" or "provider" means any person licensed, cer-
  3    tified, or otherwise authorized by law to administer health care in the  ordi-
  4    nary course of business or practice of a profession, including emergency medi-
  5    cal personnel.
  6        (11) "Life-sustaining  procedure" means cardiopulmonary resuscitation or a
  7    component of cardiopulmonary resuscitation.
  8        (12) "Terminal condition" means an  incurable  or  irreversible  condition
  9    that,  without  the administration of life-sustaining procedures, will, in the
 10    opinion of the attending physician, result in death within a relatively  short
 11    time.
                                                                        
 12        SECTION  6.  That  Section 56-1026, Idaho Code, be, and the same is hereby
 13    amended to read as follows:
                                                                        
 14        56-1026.  ADHERENCE TO DNR PROTOCOL. (1) Emergency mMedical services  per-
 15    sonnel shall comply with the DNR protocol when presented with either DNR iden-
 16    tification,  or,  upon  transfer,  a  written DNR order issued directly by the
 17    attending physician and shall provide comfort care to the person.
 18        (2)  An attending physician shall take all reasonable steps to comply with
 19    the intent of the DNR identification.
                                                                        
 20        SECTION 7.  That Section 56-1027, Idaho Code, be, and the same  is  hereby
 21    amended to read as follows:
                                                                        
 22        56-1027.  DISREGARDING  OF DNR ORDER. Emergency medical services personnel
 23    Health care providers may disregard the DNR order:
 24        (1)  If they believe in good faith that the order has been revoked; or
 25        (2)  To avoid verbal or physical confrontation; or
 26        (3)  If ordered to do so by the attending physician.
                                                                        
 27        SECTION 8.  That Section 56-1029, Idaho Code, be, and the same  is  hereby
 28    amended to read as follows:
                                                                        
 29        56-1029.  IMMUNITY. (1) The following are not subject to civil or criminal
 30    liability  and  are not guilty of unprofessional conduct upon discovery of DNR
 31    identification upon a person and compliance with the DNR order:
 32        (a)  A physician  who  causes  the  withholding  or  withdrawal  of  life-
 33        sustaining procedures from that person;
 34        (b)  A  person  who participates in the withholding or withdrawal of life-
 35        sustaining procedures under the direction or with the authorization  of  a
 36        physician;
 37        (c)  Health  care providers, including eEmergency medical services person-
 38        nel, who cause or participate in the withholding or  withdrawal  of  life-
 39        sustaining procedures from that person; or
 40        (d)  Physicians,  persons under the direction or authorization of a physi-
 41        cian, or emergency medical services personnel that provide life-sustaining
 42        procedures pursuant to an oral or written revocation communicated to  them
 43        by a person who possesses DNR identification; or
 44        (e)  Health  care providers acting pursuant to and in compliance with sec-
 45        tion 56-1027, Idaho Code.
 46        (2)  The provisions of subsections (1)(a) through (1)(de) of this  section
 47    apply  when a life-sustaining procedure is withheld or withdrawn in accordance
 48    with a DNR protocol.
 49        (3)  Emergency medical services personnel Health care providers,  coroners
                                                                        
                                           9
                                                                        
  1    and  deputy  coroners who follow a DNR order from a licensed physician are not
  2    subject to civil or criminal liability and are not  guilty  of  unprofessional
  3    conduct.

Statement of Purpose / Fiscal Impact



                       STATEMENT OF PURPOSE

                             RS 13767
                                 
This bill corrects a number of technical problems in the Natural Death
Act and a problem in the DNR (Do Not Resuscitate orders) act. The
following corrections are made:

(1)  Since the Living Will is being amended, the first paragraph of
39-4504 is amended to ensure that existing Living Wills, executed
prior to the amendment date, are still valid.

(2)  The Living Will covers terminal situations when artificial life-
sustaining procedures would only prolong life artificially.  The form
has three choices, one of which is picked by the person executing the
form.  The second choice currently allows the withdrawal of artificial
life-sustaining procedures except for nutrition and hydration. 
However, the existing statute does not allow a subchoice to choose
between just nutrition or just hydration.  This bill adds that
subchoice so that the person can choose both nutrition and hydration,
or only nutrition, or only hydration.  The bill also adds language to
provide that both nutrition and hydration will be administered if none
of the subchoice boxes are checked.

(3)  The current Living Will, as paragraph 2, references the
appointment of a health care attorney in fact.  However, this
appointment is actually made in the Durable Power of Attorney For
Health Care ("DPAHC") in 39-4505.  Since the existing language is not
only confusing, but may create a conflict with the DPAHC if two
different persons are named in the Living Will and in the DPAHC, that
language is eliminated.  The remaining paragraphs of the Living Will
are therefore renumbered.

(4)  The first sentence of 39-4540, regarding the DPAHC, says that the
DPAHC is done "in order to implement the general desires of a person as
expressed in the 'living will'".  However, this is not correct, since
the DPAHC covers many situations where the Living Will is not in
effect.  For example, if the person is unable to communicate with
medical personnel temporarily, perhaps by being under anesthesia
during an operation, but is not terminal, the DPAHC would apply, but
the Living Will would not.  Therefore, that language is deleted.

(5)  In paragraph 3 of the DPAHC, the agent is required to make
decisions consistent with the prior expressed desires of the person. 
To avoid confusion about whether the Living Will is one of the
documents that expresses such desires, the bill adds language stating
that the Living Will, or any similar document, is such an expression
of desire.

(6)  The 1996 Health Insurance Portability and Accountability Act
(relating to medical privacy and release of information and records
and commonly referred to as "HIPAA") is now in full effect.  Although
most professionals believe that the existing language of the DPAHC
meets HIPAA standards, some medical personnel and entities have
refused to release information to a DPAHC agent because of HIPAA. 
Therefore, the bill adds a full HIPAA release to paragraph 5 of the
DPAHC to ensure that a DPAHC agent can receive information and records
properly.

(7)  39-4507 covers execution of a medical directive.  However, the
last sentence of the section has language stating that, in essence,
the directive is not invalidated by the subsequent incapacity of the
person, temporary or permanent.  However, this is already covered in
paragraph 2 of the DPAHC, which states that "This power of attorney
shall not be affected by my subsequent incapacity."  The paragraph 2
language is much clearer than the language in 39-4507, and that
language is therefore deleted.

(8)  Finally, 56-1020 through 56-1035 covers what is commonly known as
a "DNR" or "Do Not Resuscitate" order.  For reasons that are unclear and
do not appear to have any basis in legal requirements or practical
requirements relating to such orders, the existing statute states that
a DNR order only applies in "noninstitutional situations".  There is no
logical reason that a DNR should not also apply in an institutional
situation.  The existing limitation also means that the wishes of a
person as the DNR would be frustrated if the person became
institutionalized in any way, even in assisted living or a hospital. 
Therefore, that language is deleted.  A number of technical changes
are also made to ensure that DNR rules apply to all medical personnel.

The net effect of the bill is to ensure that persons can make choices
regarding their health care that will be effective and will be carried
out.  It will also ensure that medical personnel and institutions will
have clear terms and conditions on which to rely when interacting with
medical directives and agents of a patient.

                          FISCAL NOTE

This bill will have no fiscal impact.





CONTACT:
Name:  Robert L. Aldridge
Phone: (208) 336-9880

Name:  William A. Von Tagen
       Deputy Attorney General
Phone: 334-4140
                                 
                                 




STATEMENT OF PURPOSE/FISCAL NOTE                        S 1249