2006 Legislation
Print Friendly

HOUSE BILL NO. 468 – Health care directive registry

HOUSE BILL NO. 468

View Bill Status

View Bill Text

View Statement of Purpose / Fiscal Impact



Text to be added within a bill has been marked with Bold and
Underline. Text to be removed has been marked with
Strikethrough and Italic. How these codes are actually displayed will
vary based on the browser software you are using.

This sentence is marked with bold and underline to show added text.

This sentence is marked with strikethrough and italic, indicating
text to be removed.

Bill Status



H0468......................................................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.
                                                                        
01/25    House intro - 1st rdg - to printing
01/26    Rpt prt - to St Aff
02/09    Rpt out - rec d/p - to 2nd rdg
02/10    2nd rdg - to 3rd rdg
02/13    Ret'd to St Aff

Bill Text


                                                                        
                                                                        
  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-eighth Legislature                   Second Regular Session - 2006
                                                                        
                                                                        
                              IN THE HOUSE OF REPRESENTATIVES
                                                                        
                                     HOUSE BILL NO. 468
                                                                        
                                 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
 18        IDAHO AND TO CREATE A FUND TO SUPPORT, PROMOTE AND MAINTAIN THE REGISTRY.
                                                                        
 19    Be It Enacted by the Legislature of the State of Idaho:
                                                                        
 20        SECTION 1.  That Section 9-340C, Idaho Code, be, and the  same  is  hereby
 21    amended to read as follows:
                                                                        
 22        9-340C.  RECORDS  EXEMPT  FROM  DISCLOSURE  -- PERSONNEL RECORDS, PERSONAL
 23    INFORMATION, HEALTH RECORDS, PROFESSIONAL DISCIPLINE.  The  following  records
 24    are exempt from disclosure:
 25        (1)  Except  as  provided  in  this subsection, all personnel records of a
 26    current or former public official other than the public official's public ser-
 27    vice or employment history, classification, pay  grade  and  step,  longevity,
 28    gross  salary  and salary history, status, workplace and employing agency. All
 29    other personnel information relating to a public employee or applicant includ-
 30    ing, but not limited to, information  regarding  sex,  race,  marital  status,
 31    birth  date,  home  address  and  telephone  number, applications, testing and
 32    scoring materials, grievances,  correspondence  and  performance  evaluations,
 33    shall  not  be  disclosed  to the public without the employee's or applicant's
 34    written consent. A public official or authorized  representative  may  inspect
 35    and  copy  his  personnel records, except for material used to screen and test
 36    for employment.
 37        (2)  Retired employees' and retired public officials' home addresses, home
 38    telephone numbers and other financial  and  nonfinancial  membership  records;
 39    active and inactive member financial and membership records and mortgage port-
 40    folio  loan  documents  maintained  by  the public employee retirement system.
 41    Financial statements prepared by retirement system staff, funding  agents  and
 42    custodians  concerning the investment of assets of the public employee retire-
 43    ment system of Idaho are not considered confidential under this chapter.
                                                                        
                                           2
                                                                        
  1        (3)  Information and records submitted to the Idaho state lottery for  the
  2    performance  of  background investigations of employees, lottery retailers and
  3    major procurement contractors; audit records of lottery retailers, vendors and
  4    major procurement contractors submitted to or performed  by  the  Idaho  state
  5    lottery; validation and security tests of the state lottery for lottery games;
  6    business records and information submitted pursuant to sections 67-7412(8) and
  7    (9)  and  67-7421(8)  and  (9), Idaho Code, and such documents and information
  8    obtained  and held for the purposes  of  lottery  security  and  investigative
  9    action as determined by lottery rules unless the public interest in disclosure
 10    substantially  outweighs  the  private need for protection from public disclo-
 11    sure.
 12        (4)  Records of a personal nature as follows:
 13        (a)  Records of personal debt filed with a public  agency  or  independent
 14        public body corporate and politic pursuant to law;
 15        (b)  Personal  bank records compiled by a public depositor for the purpose
 16        of public funds transactions conducted pursuant to law;
 17        (c)  Records of ownership of financial obligations and  instruments  of  a
 18        public  agency  or  independent public body corporate and politic, such as
 19        bonds, compiled by the public agency or independent public body  corporate
 20        and politic pursuant to law;
 21        (d)  Records,  with  regard to the ownership of, or security interests in,
 22        registered public obligations;
 23        (e)  Vital statistics records; and
 24        (f)  Military records as described in  and  pursuant  to  section  65-301,
 25        Idaho Code.
 26        (5)  Information  in  an  income  or other tax return measured by items of
 27    income or sales, which is gathered by a  public  agency  for  the  purpose  of
 28    administering  the  tax,  except such information to the extent disclosed in a
 29    written decision of the tax commission pursuant to a  taxpayer  protest  of  a
 30    deficiency  determination  by the tax commission, under the provisions of sec-
 31    tion 63-3045B, Idaho Code.
 32        (6)  Records of a personal nature related directly or  indirectly  to  the
 33    application for and provision of statutory services rendered to persons apply-
 34    ing for public care for the elderly, indigent, or mentally or physically hand-
 35    icapped,  or  participation in an environmental or a public health study, pro-
 36    vided the provisions of this subsection making records exempt from  disclosure
 37    shall  not  apply  to the extent that such records or information contained in
 38    those records are necessary for a background check on an  individual  that  is
 39    required by federal law regulating the sale of firearms, guns or ammunition.
 40        (7)  Employment  security  information  and unemployment insurance benefit
 41    information, except that all interested parties may agree to waive the  exemp-
 42    tion.
 43        (8)  Any  personal records, other than names, business addresses and busi-
 44    ness phone numbers, such as parentage, race, religion,  sex,  height,  weight,
 45    tax  identification  and  social  security numbers, financial worth or medical
 46    condition submitted to any public agency or independent public body  corporate
 47    and  politic pursuant to a statutory requirement for licensing, certification,
 48    permit or bonding.
 49        (9)  Unless otherwise provided by agency  rule,  information  obtained  as
 50    part  of an inquiry into a person's fitness to be granted or retain a license,
 51    certificate, permit, privilege, commission or  position,  private  association
 52    peer  review  committee records authorized in title 54, Idaho Code. Any agency
 53    which has records exempt from disclosure under the provisions of this  subsec-
 54    tion  shall  annually  make  available a statistical summary of the number and
 55    types of matters considered and their disposition.
                                                                        
                                           3
                                                                        
  1        (10) The records, findings, determinations and decisions of any prelitiga-
  2    tion screening panel formed under chapters 10 and 23, title 6, Idaho Code.
  3        (11) Complaints received by the board of medicine and  investigations  and
  4    informal  proceedings,  including informal proceedings of any committee of the
  5    board of medicine, pursuant to chapter 18, title 54,  Idaho  Code,  and  rules
  6    adopted thereunder.
  7        (12) Records  of  the  department of health and welfare or a public health
  8    district that identify a person infected with a reportable disease.
  9        (13) Records of hospital care, medical records,  including  prescriptions,
 10    drug  orders,  records or any other prescription information that specifically
 11    identifies an individual patient, prescription records maintained by the board
 12    of pharmacy under section 37-2730A, Idaho Code, records of psychiatric care or
 13    treatment and professional counseling records relating to an individual's con-
 14    dition, diagnosis, care or treatment, provided the provisions of this  subsec-
 15    tion  making records exempt from disclosure shall not apply to the extent that
 16    such records or information contained in those records  are  necessary  for  a
 17    background  check  on an individual that is required by federal law regulating
 18    the sale of firearms, guns or ammunition.
 19        (14) Information collected pursuant to the directory  of  new  hires  act,
 20    chapter 16, title 72, Idaho Code.
 21        (15) Personal  information  contained  in motor vehicle and driver records
 22    that is exempt from disclosure under the provisions of chapter  2,  title  49,
 23    Idaho Code.
 24        (16) Records  of  the financial status of prisoners pursuant to subsection
 25    (2) of section 20-607, Idaho Code.
 26        (17) Records of  the  Idaho  state  police  or  department  of  correction
 27    received  or  maintained  pursuant to section 19-5514, Idaho Code, relating to
 28    DNA databases and databanks.
 29        (18) Records of the department of health and welfare relating to a survey,
 30    resurvey or complaint investigation of a licensed nursing  facility  shall  be
 31    exempt  from disclosure. Such records shall, however, be subject to disclosure
 32    as public records as soon as the facility in question has received the report,
 33    and no later than the fourteenth day following the  date  that  department  of
 34    health  and  welfare  representatives officially exit the facility pursuant to
 35    federal regulations. Provided however, that for purposes  of  confidentiality,
 36    no  record  shall be released under this section which specifically identifies
 37    any nursing facility resident.
 38        (19) Records and information contained in the  registry  of  immunizations
 39    against childhood diseases maintained in the department of health and welfare,
 40    including  information disseminated to others from the registry by the depart-
 41    ment of health and welfare.
 42        (20) Records of the Idaho housing and finance association (IHFA)  relating
 43    to the following:
 44        (a)  Records containing personal financial, family, health or similar per-
 45        sonal information submitted to or otherwise obtained by the IHFA;
 46        (b)  Records submitted to or otherwise obtained by the IHFA with regard to
 47        obtaining  and  servicing  mortgage  loans and all records relating to the
 48        review, approval or rejection by the IHFA of said loans;
 49        (c)  Mortgage portfolio loan documents;
 50        (d)  Records of a current or former employee  other  than  the  employee's
 51        duration of employment with the association, position held and location of
 52        employment.  This exemption from disclosure does not include the contracts
 53        of employment or any remuneration, including reimbursement of expenses, of
 54        the executive director, executive officers or commissioners of the associ-
 55        ation. All other personnel information relating to an association employee
                                                                        
                                           4
                                                                        
  1        or applicant including, but not limited  to,  information  regarding  sex,
  2        race,  marital  status,  birth  date,  home  address and telephone number,
  3        applications, testing and scoring materials,  grievances,  correspondence,
  4        retirement plan information and performance evaluations, shall not be dis-
  5        closed  to  the public without the  employee's or applicant's written con-
  6        sent. An employee or authorized representative may inspect and  copy  that
  7        employee's  personnel records, except for material used to screen and test
  8        for employment or material not subject  to  disclosure  elsewhere  in  the
  9        Idaho public records act.
 10        (21) Records of the department of health and welfare related to child sup-
 11    port  services in cases in which there is reasonable evidence of domestic vio-
 12    lence, as defined in chapter 63, title 39, Idaho Code, that  can  be  used  to
 13    locate any individuals in the child support case except in response to a court
 14    order.
 15        (22) Records  of  the Idaho state bar lawyer's assistance program pursuant
 16    to chapter 49, title 54, Idaho Code,  unless  a  participant  in  the  program
 17    authorizes  the  release  pursuant to subsection (4) of section 54-4901, Idaho
 18    Code.
 19        (23) Records and information contained in the trauma registry  created  by
 20    chapter 20, title 57, Idaho Code, together with any reports, analyses and com-
 21    pilations created from such information and records.
 22        (24) Records  contained  in  the court files, or other records prepared as
 23    part of proceedings for judicial  authorization  of  sterilization  procedures
 24    pursuant to chapter 39, title 39, Idaho Code.
 25        (25) The  physical  voter  registration card on file in the county clerk's
 26    office; however, a redacted copy of said card shall be made available  consis-
 27    tent  with the requirements of this section. Information from the voter regis-
 28    tration card maintained in the statewide voter registration database,  includ-
 29    ing  age,  will be made available except for the voter's driver's license num-
 30    ber, date of birth and, upon showing of good cause by the voter to the  county
 31    clerk in consultation with the county prosecuting attorney, the physical resi-
 32    dence  address  of  the  voter. For the purposes of this subsection good cause
 33    shall include the protection of life and property and protection of victims of
 34    domestic violence and similar crimes.
 35        (26) File numbers, passwords and information in the files  of  the  health
 36    care  directive  registry  maintained  by the secretary of state under section
 37    39-4515, Idaho Code, are confidential and shall not be disclosed to any person
 38    other than to the person who executed the health care directive or the revoca-
 39    tion thereof and that person's legal representatives, to the person who regis-
 40    tered the health care directive or revocation thereof, and to physicians, hos-
 41    pitals, medical personnel, nursing homes, and  other  persons  who  have  been
 42    granted  file number and password access to the documents within that specific
 43    file.
                                                                        
 44        SECTION 2.  That Section 39-4509, Idaho Code, be, and the same  is  hereby
 45    amended to read as follows:
                                                                        
 46        39-4509.  DEFINITIONS. As used in sections 39-4508 through 39-45145, Idaho
 47    Code:
 48        (1)  "Artificial life-sustaining procedure" means any medical procedure or
 49    intervention  that  utilizes  mechanical  means to sustain or supplant a vital
 50    function which when applied to a qualified patient, would serve only to  arti-
 51    ficially prolong life. "Artificial life-sustaining procedure" does not include
 52    the  administration  of medication or the performance of any medical procedure
 53    deemed necessary to alleviate pain.
                                                                        
                                           5
                                                                        
  1        (2)  "Artificial nutrition and hydration" means supplying food  and  water
  2    through  a conduit, such as a tube or intravenous line, where the recipient is
  3    not required to chew or swallow voluntarily, but  does  not  include  assisted
  4    feeding, such as spoon feeding or bottle feeding.
  5        (3)  "Attending physician" means the physician licensed by the state board
  6    of  medicine  who is selected by, or assigned to, the patient and who has pri-
  7    mary responsibility for the treatment and care of the patient.
  8        (4)  "Competent person" means any emancipated minor or any person eighteen
  9    (18) or more years of age who is of sound mind.
 10        (5)  "Consent to care" includes refusal to consent to  care  and/or  with-
 11    drawal of care.
 12        (6)  "Health  care directive" means a document meeting the requirements of
 13    section 39-4510(1), Idaho Code.
                                                                        
 14        SECTION 3.  That Section 39-4510, Idaho Code, be, and the same  is  hereby
 15    amended to read as follows:
                                                                        
 16        39-4510.  LIVING  WILL  AND DURABLE POWER OF ATTORNEY FOR HEALTH CARE. (1)
 17    Any competent person may execute a document known as a "Living Will and  Dura-
 18    ble  Power  of  Attorney  for Health Care." Such document shall be in substan-
 19    tially the following form, or in another form that contains the  elements  set
 20    forth in this chapter. A "Living Will and Durable Power of Attorney for Health
 21    Care"  executed  prior to the effective date of this act, but which was in the
 22    "Living Will" and/or "Durable Power of Attorney for Health Care" form pursuant
 23    to prior Idaho law at the time of execution, or in another form that contained
 24    the elements set forth in this chapter at the  time  of  execution,  shall  be
 25    deemed to be in compliance with this chapter. A "Living Will and Durable Power
 26    of  Attorney for Health Care" or similar document(s) executed in another state
 27    which substantially complies with this chapter shall be deemed to be  in  com-
 28    pliance  with  this chapter. In this chapter, a "Living Will and Durable Power
 29    of Attorney for Health Care" may be referred to as a "directive." Any portions
 30    of the "Living Will and Durable Power of Attorney for Health Care"  which  are
 31    left  blank  by the person executing the document shall be deemed to be inten-
 32    tional and shall not invalidate the document.
                                                                        
 33              LIVING WILL AND DURABLE POWER OF ATTORNEY FOR HEALTH CARE
                                                                        
 34    Date of Directive:....................
                                                                        
 35    Name of person executing Directive:...........................................
 36    Address of person executing Directive:........................................
                                                                        
 37                                    A LIVING WILL
 38                   A Directive to Withhold or to Provide Treatment
                                                                        
 39    1.  Being of sound mind, I willfully and voluntarily make known my desire that
 40    my life shall not be prolonged artificially under the circumstances set  forth
 41    below. This Directive shall only be effective if I am unable to communicate my
 42    instructions and:
 43        a.  I  have an incurable injury, disease, illness or condition and two (2)
 44        medical doctors who have examined me have certified:
 45             1.  That such injury, disease, illness or condition is terminal; and
 46             2.  That the application  of  artificial  life-sustaining  procedures
 47             would serve only to prolong artificially my life; and
 48             3.  That  my  death  is  imminent,  whether  or  not artificial life-
                                                                        
                                           6
                                                                        
  1             sustaining procedures are utilized; or
  2        b.  I have been diagnosed as being in a persistent vegetative state.
                                                                        
  3    In such event, I direct that the following marked expression of my  intent  be
  4    followed,  and  that  I  receive  any  medical  treatment  or care that may be
  5    required to keep me free of pain or distress.
                                                                        
  6    Check one box and initial the line after such box:
                                                                        
  7        ........  I direct that all medical treatment, care and procedures  neces-
  8    sary  to  restore my health, sustain my life, and to abolish or alleviate pain
  9    or distress be provided to me. Nutrition and hydration, whether artificial  or
 10    nonartificial,  shall  not  be withheld or withdrawn from me if I would likely
 11    die primarily from malnutrition or dehydration rather  than  from  my  injury,
 12    disease, illness or condition.
                                                                        
 13    OR
                                                                        
 14        ........  I  direct  that  all  medical  treatment,  care  and procedures,
 15    including artificial life-sustaining procedures,  be  withheld  or  withdrawn,
 16    except that nutrition and hydration, whether artificial or nonartificial shall
 17    not  be withheld or withdrawn from me if, as a result, I would likely die pri-
 18    marily from malnutrition or dehydration rather than from my  injury,  disease,
 19    illness  or condition, as follows: (If none of the following boxes are checked
 20    and initialed, then both nutrition and hydration, of any nature, whether arti-
 21    ficial or nonartificial, shall be administered.)
                                                                        
 22    Check one box and initial the line after such box:
                                                                        
 23        A.        ........  Only hydration of any nature,  whether  artificial  or
 24                       nonartificial, shall be administered;
 25        B.        ........  Only  nutrition,  of any nature, whether artificial or
 26                       nonartificial, shall be administered;
 27        C.        ........  Both nutrition and hydration, of any  nature,  whether
 28                       artificial or nonartificial shall be administered.
                                                                        
 29    OR
                                                                        
 30        ........  I  direct  that  all  medical  treatment, care and procedures be
 31    withheld or withdrawn, including withdrawal of the administration  of  artifi-
 32    cial nutrition and hydration.
                                                                        
 33    2.  This  Directive  shall be the final expression of my legal right to refuse
 34    or accept medical and surgical treatment, and I  accept  the  consequences  of
 35    such refusal or acceptance.
                                                                        
 36    3.  If  I  have been diagnosed as pregnant, this Directive shall have no force
 37    during the course of my pregnancy.
                                                                        
 38    4.  I understand the full importance of this Directive and am mentally  compe-
 39    tent to make this Directive. No participant in the making of this Directive or
 40    in its being carried into effect shall be held responsible in any way for com-
 41    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  com-
 12    plete 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
 46        his direction;
                                                                        
                                           10
                                                                        
  1        (b)  By  a  written, signed revocation of the maker thereof expressing his
  2        intent to revoke; or
  3        (c)  By an oral expression by the maker thereof expressing his  intent  to
  4        revoke.
  5        (2)  There shall be no criminal or civil liability on the part of any per-
  6    son  for  the  failure  to act upon a revocation of a "Living Will and Durable
  7    Power of Attorney for Health Care" made pursuant to this section  unless  that
  8    person has actual knowledge of the revocation.
  9        (3)  A  person  may register a revocation of a health care directive which
 10    meets the requirements of subsection (1)(b) of this section with the secretary
 11    of state pursuant to the provisions of section 39-4515, Idaho Code. Failure to
 12    register a revocation of the health care directive shall not affect the valid-
 13    ity of the revocation.
                                                                        
 14        SECTION 5.  That Section 39-4513, Idaho Code, be, and the same  is  hereby
 15    amended to read as follows:
                                                                        
 16        39-4513.  IMMUNITY. (1) No medical personnel or health care facility shall
 17    be civilly or criminally liable for acts or omissions carried out or performed
 18    pursuant to the directives in a facially valid living will or by the holder of
 19    a facially valid durable power of attorney or directive for health care if the
 20    medical personnel or health care facility acts in good faith.
 21        (2)  Any  physician  or other health care provider who for ethical or pro-
 22    fessional reasons is incapable or unwilling to conform to the desires  of  the
 23    patient  as expressed by the procedures set forth in this chapter may withdraw
 24    without incurring any civil or criminal liability provided  the  physician  or
 25    other  health care provider makes a good faith effort to assist the patient in
 26    obtaining the services of another physician  or  other  health  care  provider
 27    before withdrawal.
 28        (3)  No  person  who  exercises the responsibilities of a durable power of
 29    attorney for health care in good faith shall be subject to civil  or  criminal
 30    liability as a result.
 31        (4)  Neither  the  registration  of  a health care directive in the health
 32    care directive registry under section 39-4515, Idaho Code, nor the  revocation
 33    of  such  a  directive  requires a health care provider to request information
 34    from that registry. The decision of a health care provider to request  or  not
 35    to  request a health care directive document from the registry shall be immune
 36    from civil or criminal liability. A health care provider  who  in  good  faith
 37    acts  in  reliance on a facially valid health care directive received from the
 38    health care directive registry shall be immune from civil or criminal  liabil-
 39    ity for those acts done in such reliance.
                                                                        
 40        SECTION  6.  That  Chapter  45,  Title 39, Idaho Code, be, and the same is
 41    hereby amended by the addition thereto of a NEW SECTION, to be known and  des-
 42    ignated as Section 39-4515, Idaho Code, and to read as follows:
                                                                        
 43        39-4515.  HEALTH  CARE  DIRECTIVES  REGISTRY.  (1)  The secretary of state
 44    shall create and maintain a health care directive registry.  The  health  care
 45    directive  registry  shall  be  accessible through a website maintained by the
 46    secretary of state. The information contained in such registry shall  include:
 47    the  full  name of the person executing the health care directive as stated in
 48    the directive, a file identification number unique to the person executing the
 49    directive, and the date the directive was executed.
 50        (2)  A person may register with the  secretary  of  state  a  health  care
 51    directive  or a revocation of a health care directive by submitting the direc-
                                                                        
                                           11
                                                                        
  1    tive or revocation, completing and submitting  an  informational  registration
  2    form  as required by the secretary of state, and paying the secretary of state
  3    the fee which the secretary of state may require for registering a health care
  4    directive. The person who submits a document for registration pursuant to this
  5    section shall provide a return address.
  6        (3)  The secretary of state may charge and collect a fee not to exceed ten
  7    dollars ($10.00) for the filing of a health care directive. All fees collected
  8    for the filing of a health care directive shall be deposited into  the  health
  9    care  directive  registry  fund. No fee shall be charged for revoking a health
 10    care directive.
 11        (4)  Upon receipt of the registration form, the secretary of state shall:
 12        (a)  Create a digital reproduction of the health  care  directive  or  the
 13        revocation document and the informational registration form;
 14        (b)  Enter  these  digitally  reproduced  documents  into  the health care
 15        directive registry database;
 16        (c)  Assign each entry a unique identification file number and password;
 17        (d)  Return the original health care directive or  revocation  thereof  to
 18        the person who submitted the document;
 19        (e)  Provide  to the person who submitted the document a printed record of
 20        the information entered into the database, the identification file  number
 21        under  which  it was entered, the password assigned to that identification
 22        file number; and
 23        (f)  Provide to the person who submitted the document a wallet-sized  card
 24        that  contains  the  name  of  the of the person executing the health care
 25        directive as it appears on the document, the  identification  file  number
 26        assigned to the registration, and the password assigned to the identifica-
 27        tion file number.
 28        (5)  The  registry established under this section shall be accessible only
 29    by entering the identification file number and the assigned  password  on  the
 30    health care directive registry website.
 31        (6)  The  secretary  of  state and those granted access to the health care
 32    directive registry shall use information contained in the  registry  only  for
 33    purposes  prescribed in this section. No person granted access to the registry
 34    shall use the information for commercial solicitations or in any fraudulent or
 35    improper way. Any commercial  solicitation,  fraudulent  or  improper  use  of
 36    information  contained  in  the  registry shall constitute a violation of this
 37    section and a violation of the Idaho consumer protection act.
 38        (7)  The secretary of state is not required to review a health care direc-
 39    tive or revocation thereof to ensure  that  the  document  complies  with  any
 40    applicable  and  statutory  requirements.  Entry of a document into the health
 41    care directive registry pursuant to this section does not create a presumption
 42    favoring the validity of the document.
 43        (8)  The secretary of state shall delete a health care directive  and  the
 44    informational  registration  form from the health care directive registry when
 45    the secretary of state receives:
 46        (a)  A revocation of a health care directive signed by the  maker  thereof
 47        or  that  person's legal representative along with the identification file
 48        number and assigned password; or
 49        (b)  Verification from the bureau of health policy and vital statistics of
 50        the Idaho department of health and welfare that the  person  who  executed
 51        the  health  care directive is deceased. The deletion under this paragraph
 52        shall be performed not less than once every two (2) years. The  bureau  of
 53        health  policy  and vital statistics of the Idaho department of health and
 54        welfare shall share its registry of death certificates with the  secretary
 55        of  state in order to permit the secretary of state to fulfill its respon-
                                                                        
                                           12
                                                                        
  1        sibilities under this paragraph.
  2        (9)  Neither the secretary of state nor the state of Idaho shall  be  sub-
  3    ject  to civil liability for any claims or demands arising out of the adminis-
  4    tration or operation of the health care directory registration.
  5        (10) There is hereby created in the state treasury the health care  direc-
  6    tive  registry  fund,  the moneys of which shall be continuously appropriated,
  7    administered by the secretary of state and used to support, promote and  main-
  8    tain  the  health care directive registry. The fund shall consist of fees paid
  9    by persons registering health care directives under this  section  and  income
 10    from investment from the fund, gifts, grants, bequests and other forms of vol-
 11    untary  donations.  On notice from the secretary of state, the state treasurer
 12    shall invest and divest moneys in  the  fund,  and  moneys  earned  from  such
 13    investment shall be credited to the fund.

Statement of Purpose / Fiscal Impact



                       STATEMENT OF PURPOSE

                             RS 15736

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 468