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H0708......................................................by STATE AFFAIRS
HEALTH CARE DIRECTIVE REGISTRY - Adds to and amends existing law to provide
a health care directive registry exception to the Public Records Act; to
define "health care directive"; to permit registration of a health care
directive and a health care directive revocation; to provide immunities; to
create a health care directive registry in the Office of the Secretary of
State; to provide for the information to be included in the registry; to
permit the Secretary of State to charge a fee for registration of a health
care directive; to provide duties and responsibilities of the Secretary of
State; to provide a means of access to the registry; to limit access to the
information contained in the registry; to limit liability; and to create
the Health Care Directive Registry Fund.
02/21 House intro - 1st rdg - to printing
02/22 Rpt prt - to 2nd rdg
02/23 2nd rdg - to 3rd rdg
02/27 3rd rdg - PASSED - 66-0-4
AYES -- Andrus, Barraclough, Barrett, Bastian, Bayer, Bedke, Bell,
Bilbao, Black, Block, Boe, Bolz, Cannon, Chadderdon, Clark, Collins,
Crow, Deal, Denney, Edmunson, Ellsworth, Eskridge, Field(18),
Field(23), Garrett, Hart, Harwood, Henbest, Henderson, Jaquet, Kemp,
Lake, LeFavour, Loertscher, Martinez, Mathews, McGeachin, Miller,
Mitchell, Moyle, Nielsen, Nonini, Pasley-Stuart, Pence, Raybould,
Ring, Ringo, Roberts, Rusche, Rydalch, Sali(Sali), Sayler, Schaefer,
Shepherd(2), Shepherd(8), Shirley, Skippen, Smith(30), Smith(24),
Smylie, Snodgrass, Stevenson, Trail, Wills, Wood, Mr. Speaker
NAYS -- None
Absent and excused -- Anderson, Brackett, Bradford, McKague
Floor Sponsor - Smylie
Title apvd - to Senate
02/28 Senate intro - 1st rdg - to Health/Wel
03/02 Rpt out - rec d/p - to 2nd rdg
03/03 2nd rdg - to 3rd rdg
03/08 3rd rdg - PASSED - 35-0-0
AYES -- Andreason(Hatch), Brandt, Broadsword, Bunderson, Burkett,
Burtenshaw, Cameron, Coiner, Compton, Corder, Darrington, Davis,
Fulcher, Gannon, Geddes, Goedde, Hill, Jorgenson, Kelly, Keough,
Langhorst, Little, Lodge, Malepeai, Marley, McGee, McKenzie, Pearce,
Richardson, Schroeder, Stegner, Stennett, Sweet, Werk, Williams
NAYS -- None
Absent and excused -- None
Floor Sponsor - Broadsword
Title apvd - to House
03/09 To enrol
03/10 Rpt enrol - Sp signed
03/13 Pres signed
03/14 To Governor
03/15 Governor signed
Session Law Chapter 67
Effective: 03/15/06 Section 6;
07/01/06 Sections 1 to 5
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-eighth Legislature Second Regular Session - 2006
IN THE HOUSE OF REPRESENTATIVES
HOUSE BILL NO. 708
BY STATE AFFAIRS COMMITTEE
1 AN ACT
2 RELATING TO HEALTH CARE DIRECTIVE REGISTRY; AMENDING SECTION 9-340C, IDAHO
3 CODE, TO PROVIDE A HEALTH CARE DIRECTIVE REGISTRY EXCEPTION TO THE PUBLIC
4 RECORDS ACT; AMENDING SECTION 39-4509, IDAHO CODE, TO DEFINE "HEALTH CARE
5 DIRECTIVE"; AMENDING SECTION 39-4510, IDAHO CODE, TO PERMIT REGISTRATION
6 OF A HEALTH CARE DIRECTIVE; AMENDING SECTION 39-4511, IDAHO CODE, TO PER-
7 MIT REGISTRATION OF A HEALTH CARE DIRECTIVE REVOCATION; AMENDING SECTION
8 39-4513, IDAHO CODE, TO PROVIDE IMMUNITIES; AMENDING CHAPTER 45, TITLE 39,
9 IDAHO CODE, BY THE ADDITION OF A NEW SECTION 39-4515, IDAHO CODE, TO CRE-
10 ATE A HEALTH CARE DIRECTIVE REGISTRY IN THE OFFICE OF THE SECRETARY OF
11 STATE, TO PROVIDE FOR THE CONTENT OF THE INFORMATION TO BE INCLUDED IN THE
12 REGISTRY, TO PERMIT REGISTRATION OF HEALTH CARE DIRECTIVES AND
13 REVOCATIONS, TO PERMIT THE SECRETARY OF STATE TO CHARGE A FEE FOR REGIS-
14 TRATION OF A HEALTH CARE DIRECTIVE, TO PROVIDE AND LIMIT DUTIES AND
15 RESPONSIBILITIES OF THE SECRETARY OF STATE, TO PROVIDE A MEANS OF ACCESS
16 TO THE REGISTRY, TO LIMIT ACCESS TO THE INFORMATION CONTAINED IN THE REG-
17 ISTRY, TO LIMIT LIABILITY OF THE SECRETARY OF STATE AND THE STATE OF IDAHO
18 AND TO CREATE A FUND TO SUPPORT, PROMOTE AND MAINTAIN THE REGISTRY;
19 DECLARING AN EMERGENCY, PROVIDING EFFECTIVE DATES AND PROVIDING THAT THE
20 SECRETARY OF STATE WILL ACCEPT REGISTRATION APPLICATIONS PURSUANT TO THIS
21 ACT ON AND AFTER JANUARY 1, 2007.
22 Be It Enacted by the Legislature of the State of Idaho:
23 SECTION 1. That Section 9-340C, Idaho Code, be, and the same is hereby
24 amended to read as follows:
25 9-340C. RECORDS EXEMPT FROM DISCLOSURE -- PERSONNEL RECORDS, PERSONAL
26 INFORMATION, HEALTH RECORDS, PROFESSIONAL DISCIPLINE. The following records
27 are exempt from disclosure:
28 (1) Except as provided in this subsection, all personnel records of a
29 current or former public official other than the public official's public ser-
30 vice or employment history, classification, pay grade and step, longevity,
31 gross salary and salary history, status, workplace and employing agency. All
32 other personnel information relating to a public employee or applicant includ-
33 ing, but not limited to, information regarding sex, race, marital status,
34 birth date, home address and telephone number, applications, testing and
35 scoring materials, grievances, correspondence and performance evaluations,
36 shall not be disclosed to the public without the employee's or applicant's
37 written consent. A public official or authorized representative may inspect
38 and copy his personnel records, except for material used to screen and test
39 for employment.
40 (2) Retired employees' and retired public officials' home addresses, home
41 telephone numbers and other financial and nonfinancial membership records;
42 active and inactive member financial and membership records and mortgage port-
43 folio loan documents maintained by the public employee retirement system.
2
1 Financial statements prepared by retirement system staff, funding agents and
2 custodians concerning the investment of assets of the public employee retire-
3 ment system of Idaho are not considered confidential under this chapter.
4 (3) Information and records submitted to the Idaho state lottery for the
5 performance of background investigations of employees, lottery retailers and
6 major procurement contractors; audit records of lottery retailers, vendors and
7 major procurement contractors submitted to or performed by the Idaho state
8 lottery; validation and security tests of the state lottery for lottery games;
9 business records and information submitted pursuant to sections 67-7412(8)
10 and (9) and 67-7421(8) and (9), Idaho Code, and such documents and information
11 obtained and held for the purposes of lottery security and investigative
12 action as determined by lottery rules unless the public interest in disclosure
13 substantially outweighs the private need for protection from public disclo-
14 sure.
15 (4) Records of a personal nature as follows:
16 (a) Records of personal debt filed with a public agency or independent
17 public body corporate and politic pursuant to law;
18 (b) Personal bank records compiled by a public depositor for the purpose
19 of public funds transactions conducted pursuant to law;
20 (c) Records of ownership of financial obligations and instruments of a
21 public agency or independent public body corporate and politic, such as
22 bonds, compiled by the public agency or independent public body corporate
23 and politic pursuant to law;
24 (d) Records, with regard to the ownership of, or security interests in,
25 registered public obligations;
26 (e) Vital statistics records; and
27 (f) Military records as described in and pursuant to section 65-301,
28 Idaho Code.
29 (5) Information in an income or other tax return measured by items of
30 income or sales, which is gathered by a public agency for the purpose of
31 administering the tax, except such information to the extent disclosed in a
32 written decision of the tax commission pursuant to a taxpayer protest of a
33 deficiency determination by the tax commission, under the provisions of sec-
34 tion 63-3045B, Idaho Code.
35 (6) Records of a personal nature related directly or indirectly to the
36 application for and provision of statutory services rendered to persons apply-
37 ing for public care for the elderly, indigent, or mentally or physically hand-
38 icapped, or participation in an environmental or a public health study, pro-
39 vided the provisions of this subsection making records exempt from disclosure
40 shall not apply to the extent that such records or information contained in
41 those records are necessary for a background check on an individual that is
42 required by federal law regulating the sale of firearms, guns or ammunition.
43 (7) Employment security information and unemployment insurance benefit
44 information, except that all interested parties may agree to waive the exemp-
45 tion.
46 (8) Any personal records, other than names, business addresses and busi-
47 ness phone numbers, such as parentage, race, religion, sex, height, weight,
48 tax identification and social security numbers, financial worth or medical
49 condition submitted to any public agency or independent public body corporate
50 and politic pursuant to a statutory requirement for licensing, certification,
51 permit or bonding.
52 (9) Unless otherwise provided by agency rule, information obtained as
53 part of an inquiry into a person's fitness to be granted or retain a license,
54 certificate, permit, privilege, commission or position, private association
55 peer review committee records authorized in title 54, Idaho Code. Any agency
3
1 which has records exempt from disclosure under the provisions of this subsec-
2 tion shall annually make available a statistical summary of the number and
3 types of matters considered and their disposition.
4 (10) The records, findings, determinations and decisions of any prelitiga-
5 tion screening panel formed under chapters 10 and 23, title 6, Idaho Code.
6 (11) Complaints received by the board of medicine and investigations and
7 informal proceedings, including informal proceedings of any committee of the
8 board of medicine, pursuant to chapter 18, title 54, Idaho Code, and rules
9 adopted thereunder.
10 (12) Records of the department of health and welfare or a public health
11 district that identify a person infected with a reportable disease.
12 (13) Records of hospital care, medical records, including prescriptions,
13 drug orders, records or any other prescription information that specifically
14 identifies an individual patient, prescription records maintained by the board
15 of pharmacy under section 37-2730A, Idaho Code, records of psychiatric care or
16 treatment and professional counseling records relating to an individual's con-
17 dition, diagnosis, care or treatment, provided the provisions of this subsec-
18 tion making records exempt from disclosure shall not apply to the extent that
19 such records or information contained in those records are necessary for a
20 background check on an individual that is required by federal law regulating
21 the sale of firearms, guns or ammunition.
22 (14) Information collected pursuant to the directory of new hires act,
23 chapter 16, title 72, Idaho Code.
24 (15) Personal information contained in motor vehicle and driver records
25 that is exempt from disclosure under the provisions of chapter 2, title 49,
26 Idaho Code.
27 (16) Records of the financial status of prisoners pursuant to subsection
28 (2) of section 20-607, Idaho Code.
29 (17) Records of the Idaho state police or department of correction
30 received or maintained pursuant to section 19-5514, Idaho Code, relating to
31 DNA databases and databanks.
32 (18) Records of the department of health and welfare relating to a survey,
33 resurvey or complaint investigation of a licensed nursing facility shall be
34 exempt from disclosure. Such records shall, however, be subject to disclosure
35 as public records as soon as the facility in question has received the report,
36 and no later than the fourteenth day following the date that department of
37 health and welfare representatives officially exit the facility pursuant to
38 federal regulations. Provided however, that for purposes of confidentiality,
39 no record shall be released under this section which specifically identifies
40 any nursing facility resident.
41 (19) Records and information contained in the registry of immunizations
42 against childhood diseases maintained in the department of health and welfare,
43 including information disseminated to others from the registry by the depart-
44 ment of health and welfare.
45 (20) Records of the Idaho housing and finance association (IHFA) relating
46 to the following:
47 (a) Records containing personal financial, family, health or similar per-
48 sonal information submitted to or otherwise obtained by the IHFA;
49 (b) Records submitted to or otherwise obtained by the IHFA with regard to
50 obtaining and servicing mortgage loans and all records relating to the
51 review, approval or rejection by the IHFA of said loans;
52 (c) Mortgage portfolio loan documents;
53 (d) Records of a current or former employee other than the employee's
54 duration of employment with the association, position held and location of
55 employment. This exemption from disclosure does not include the contracts
4
1 of employment or any remuneration, including reimbursement of expenses, of
2 the executive director, executive officers or commissioners of the associ-
3 ation. All other personnel information relating to an association employee
4 or applicant including, but not limited to, information regarding sex,
5 race, marital status, birth date, home address and telephone number,
6 applications, testing and scoring materials, grievances, correspondence,
7 retirement plan information and performance evaluations, shall not be
8 disclosed to the public without the employee's or applicant's written con-
9 sent. An employee or authorized representative may inspect and copy that
10 employee's personnel records, except for material used to screen and test
11 for employment or material not subject to disclosure elsewhere in the
12 Idaho public records act.
13 (21) Records of the department of health and welfare related to child sup-
14 port services in cases in which there is reasonable evidence of domestic vio-
15 lence, as defined in chapter 63, title 39, Idaho Code, that can be used to
16 locate any individuals in the child support case except in response to a court
17 order.
18 (22) Records of the Idaho state bar lawyer's assistance program pursuant
19 to chapter 49, title 54, Idaho Code, unless a participant in the program
20 authorizes the release pursuant to subsection (4) of section 54-4901, Idaho
21 Code.
22 (23) Records and information contained in the trauma registry created by
23 chapter 20, title 57, Idaho Code, together with any reports, analyses and com-
24 pilations created from such information and records.
25 (24) Records contained in the court files, or other records prepared as
26 part of proceedings for judicial authorization of sterilization procedures
27 pursuant to chapter 39, title 39, Idaho Code.
28 (25) The physical voter registration card on file in the county clerk's
29 office; however, a redacted copy of said card shall be made available consis-
30 tent with the requirements of this section. Information from the voter regis-
31 tration card maintained in the statewide voter registration database, includ-
32 ing age, will be made available except for the voter's driver's license num-
33 ber, date of birth and, upon showing of good cause by the voter to the county
34 clerk in consultation with the county prosecuting attorney, the physical resi-
35 dence address of the voter. For the purposes of this subsection good cause
36 shall include the protection of life and property and protection of victims of
37 domestic violence and similar crimes.
38 (26) File numbers, passwords and information in the files of the health
39 care directive registry maintained by the secretary of state under section
40 39-4515, Idaho Code, are confidential and shall not be disclosed to any person
41 other than to the person who executed the health care directive or the revoca-
42 tion thereof and that person's legal representatives, to the person who regis-
43 tered the health care directive or revocation thereof, and to physicians, hos-
44 pitals, medical personnel, nursing homes, and other persons who have been
45 granted file number and password access to the documents within that specific
46 file.
47 SECTION 2. That Section 39-4509, Idaho Code, be, and the same is hereby
48 amended to read as follows:
49 39-4509. DEFINITIONS. As used in sections 39-4508 through 39-45145, Idaho
50 Code:
51 (1) "Artificial life-sustaining procedure" means any medical procedure or
52 intervention that utilizes mechanical means to sustain or supplant a vital
53 function which when applied to a qualified patient, would serve only to arti-
5
1 ficially prolong life. "Artificial life-sustaining procedure" does not include
2 the administration of medication or the performance of any medical procedure
3 deemed necessary to alleviate pain.
4 (2) "Artificial nutrition and hydration" means supplying food and water
5 through a conduit, such as a tube or intravenous line, where the recipient is
6 not required to chew or swallow voluntarily, but does not include assisted
7 feeding, such as spoon feeding or bottle feeding.
8 (3) "Attending physician" means the physician licensed by the state board
9 of medicine who is selected by, or assigned to, the patient and who has pri-
10 mary responsibility for the treatment and care of the patient.
11 (4) "Competent person" means any emancipated minor or any person eighteen
12 (18) or more years of age who is of sound mind.
13 (5) "Consent to care" includes refusal to consent to care and/or with-
14 drawal of care.
15 (6) "Health care directive" means a document meeting the requirements of
16 section 39-4510(1), Idaho Code.
17 SECTION 3. That Section 39-4510, Idaho Code, be, and the same is hereby
18 amended to read as follows:
19 39-4510. LIVING WILL AND DURABLE POWER OF ATTORNEY FOR HEALTH CARE. (1)
20 Any competent person may execute a document known as a "Living Will and Dura-
21 ble Power of Attorney for Health Care." Such document shall be in substan-
22 tially the following form, or in another form that contains the elements set
23 forth in this chapter. A "Living Will and Durable Power of Attorney for Health
24 Care" executed prior to the effective date of this act, but which was in the
25 "Living Will" and/or "Durable Power of Attorney for Health Care" form pursuant
26 to prior Idaho law at the time of execution, or in another form that contained
27 the elements set forth in this chapter at the time of execution, shall be
28 deemed to be in compliance with this chapter. A "Living Will and Durable Power
29 of Attorney for Health Care" or similar document(s) executed in another state
30 which substantially complies with this chapter shall be deemed to be in com-
31 pliance with this chapter. In this chapter, a "Living Will and Durable Power
32 of Attorney for Health Care" may be referred to as a "directive." Any portions
33 of the "Living Will and Durable Power of Attorney for Health Care" which are
34 left blank by the person executing the document shall be deemed to be inten-
35 tional and shall not invalidate the document.
36 LIVING WILL AND DURABLE POWER OF ATTORNEY FOR HEALTH CARE
37 Date of Directive:....................
38 Name of person executing Directive:...........................................
39 Address of person executing Directive:........................................
40 A LIVING WILL
41 A Directive to Withhold or to Provide Treatment
42 1. Being of sound mind, I willfully and voluntarily make known my desire that
43 my life shall not be prolonged artificially under the circumstances set forth
44 below. This Directive shall only be effective if I am unable to communicate my
45 instructions and:
46 a. I have an incurable injury, disease, illness or condition and two (2)
47 medical doctors who have examined me have certified:
48 1. That such injury, disease, illness or condition is terminal; and
6
1 2. That the application of artificial life-sustaining procedures
2 would serve only to prolong artificially my life; and
3 3. That my death is imminent, whether or not artificial life-
4 sustaining procedures are utilized; or
5 b. I have been diagnosed as being in a persistent vegetative state.
6 In such event, I direct that the following marked expression of my intent be
7 followed, and that I receive any medical treatment or care that may be
8 required to keep me free of pain or distress.
9 Check one box and initial the line after such box:
10 ........ I direct that all medical treatment, care and procedures neces-
11 sary to restore my health, sustain my life, and to abolish or alleviate pain
12 or distress be provided to me. Nutrition and hydration, whether artificial or
13 nonartificial, shall not be withheld or withdrawn from me if I would likely
14 die primarily from malnutrition or dehydration rather than from my injury,
15 disease, illness or condition.
16 OR
17 ........ I direct that all medical treatment, care and procedures,
18 including artificial life-sustaining procedures, be withheld or withdrawn,
19 except that nutrition and hydration, whether artificial or nonartificial shall
20 not be withheld or withdrawn from me if, as a result, I would likely die pri-
21 marily from malnutrition or dehydration rather than from my injury, disease,
22 illness or condition, as follows: (If none of the following boxes are checked
23 and initialed, then both nutrition and hydration, of any nature, whether arti-
24 ficial or nonartificial, shall be administered.)
25 Check one box and initial the line after such box:
26 A. ........ Only hydration of any nature, whether artificial or
27 nonartificial, shall be administered;
28 B. ........ Only nutrition, of any nature, whether artificial or
29 nonartificial, shall be administered;
30 C. ........ Both nutrition and hydration, of any nature, whether
31 artificial or nonartificial shall be administered.
32 OR
33 ........ I direct that all medical treatment, care and procedures be
34 withheld or withdrawn, including withdrawal of the administration of artifi-
35 cial nutrition and hydration.
36 2. This Directive shall be the final expression of my legal right to refuse
37 or accept medical and surgical treatment, and I accept the consequences of
38 such refusal or acceptance.
39 3. If I have been diagnosed as pregnant, this Directive shall have no force
40 during the course of my pregnancy.
41 4. I understand the full importance of this Directive and am mentally compe-
42 tent to make this Directive. No participant in the making of this Directive or
43 in its being carried into effect shall be held responsible in any way for com-
44 plying with my directions.
7
1 A DURABLE POWER OF ATTORNEY FOR HEALTH CARE
2 1. DESIGNATION OF HEALTH CARE AGENT. None of the following may be designated
3 as your agent: (1) your treating health care provider; (2) a nonrelative
4 employee of your treating health care provider; (3) an operator of a community
5 care facility; or (4) a nonrelative employee of an operator of a community
6 care facility. If the agent or an alternate agent designated in this Directive
7 is my spouse, and our marriage is thereafter dissolved, such designation shall
8 be thereupon revoked.
9 I do hereby designate and appoint the following individual as my attorney in
10 fact (agent) to make health care decisions for me as authorized in this Direc-
11 tive. (Insert name, address and telephone number of one individual only as
12 your agent to make health care decisions for you.)
13 Name of Health Care Agent: ...................................................
14 Address of Health Care Agent: ................................................
15 Telephone Number of Health Care Agent: .......................................
16 For the purposes of this Directive, "health care decision" means consent,
17 refusal of consent, or withdrawal of consent to any care, treatment, service
18 or procedure to maintain, diagnose or treat an individual's physical condi-
19 tion.
20 2. CREATION OF DURABLE POWER OF ATTORNEY FOR HEALTH CARE. By this portion of
21 this Directive, I create a durable power of attorney for health care. This
22 power of attorney shall not be affected by my subsequent incapacity. This
23 power shall be effective only when I am unable to communicate rationally.
24 3. GENERAL STATEMENT OF AUTHORITY GRANTED. Subject to any limitations in this
25 Directive, including as set forth in paragraph 2 immediately above, I hereby
26 grant to my agent full power and authority to make health care decisions for
27 me to the same extent that I could make such decisions for myself if I had the
28 capacity to do so. In exercising this authority, my agent shall make health
29 care decisions that are consistent with my desires as stated in this Directive
30 or otherwise made known to my agent including, but not limited to, my desires
31 concerning obtaining or refusing or withdrawing life-prolonging care, treat-
32 ment, services and procedures, including such desires set forth in a living
33 will or similar document executed by me, if any. (If you want to limit the
34 authority of your agent to make health care decisions for you, you can state
35 the limitations in paragraph 4 ("Statement of Desires, Special Provisions, and
36 Limitations") below. You can indicate your desires by including a statement of
37 your desires in the same paragraph.)
38 4. STATEMENT OF DESIRES, SPECIAL PROVISIONS, AND LIMITATIONS. (Your agent
39 must make health care decisions that are consistent with your known desires.
40 You can, but are not required to, state your desires in the space provided
41 below. You should consider whether you want to include a statement of your
42 desires concerning life-prolonging care, treatment, services and procedures.
43 You can also include a statement of your desires concerning other matters
44 relating to your health care, including a list of one or more persons whom you
45 designate to be able to receive medical information about you and/or to be
46 allowed to visit you in a medical institution. You can also make your desires
47 known to your agent by discussing your desires with your agent or by some
48 other means. If there are any types of treatment that you do not want to be
8
1 used, you should state them in the space below. If you want to limit in any
2 other way the authority given your agent by this Directive, you should state
3 the limits in the space below. If you do not state any limits, your agent will
4 have broad powers to make health care decisions for you, except to the extent
5 that there are limits provided by law.) In exercising the authority under this
6 durable power of attorney for health care, my agent shall act consistently
7 with my desires as stated below and is subject to the special provisions and
8 limitations stated in a living will or similar document executed by me, if
9 any. Additional statement of desires, special provisions, and limitations:....
10 ..............................................................................
11 .......(You may attach additional pages or documents if you need more space to
12 complete your statement.)
13 5. INSPECTION AND DISCLOSURE OF INFORMATION RELATING TO MY PHYSICAL OR MENTAL
14 HEALTH.
15 A. General Grant of Power and Authority. Subject to any limitations in this
16 Directive, my agent has the power and authority to do all of the following:
17 (1) Request, review and receive any information, verbal or written, regarding
18 my physical or mental health including, but not limited to, medical and hospi-
19 tal records; (2) Execute on my behalf any releases or other documents that may
20 be required in order to obtain this information; (3) Consent to the disclosure
21 of this information; and (4) Consent to the donation of any of my organs for
22 medical purposes. (If you want to limit the authority of your agent to receive
23 and disclose information relating to your health, you must state the limita-
24 tions in paragraph 4 ("Statement of Desires, Special Provisions, and Limita-
25 tions") above.)
26 B. HIPAA Release Authority. My agent shall be treated as I would be with
27 respect to my rights regarding the use and disclosure of my individually iden-
28 tifiable health information or other medical records. This release authority
29 applies to any information governed by the Health Insurance Portability and
30 Accountability Act of 1996 (HIPAA), 42 U.S.C. 1320d and 45 CFR 160 through
31 164. I authorize any physician, health care professional, dentist, health
32 plan, hospital, clinic, laboratory, pharmacy, or other covered health care
33 provider, any insurance company, and the Medical Information Bureau, Inc. or
34 other health care clearinghouse that has provided treatment or services to me,
35 or that has paid for or is seeking payment from me for such services, to give,
36 disclose and release to my agent, without restriction, all of my individually
37 identifiable health information and medical records regarding any past, pres-
38 ent or future medical or mental health condition, including all information
39 relating to the diagnosis of HIV/AIDS, sexually transmitted diseases, mental
40 illness, and drug or alcohol abuse. The authority given my agent shall super-
41 sede any other agreement that I may have made with my health care providers to
42 restrict access to or disclosure of my individually identifiable health infor-
43 mation. The authority given my agent has no expiration date and shall expire
44 only in the event that I revoke the authority in writing and deliver it to my
45 health care provider.
46 6. SIGNING DOCUMENTS, WAIVERS AND RELEASES. Where necessary to implement the
47 health care decisions that my agent is authorized by this Directive to make,
48 my agent has the power and authority to execute on my behalf all of the fol-
49 lowing: (a) Documents titled, or purporting to be, a "Refusal to Permit Treat-
50 ment" and/or a "Leaving Hospital Against Medical Advice"; and (b) Any neces-
51 sary waiver or release from liability required by a hospital or physician.
9
1 7. DESIGNATION OF ALTERNATE AGENTS. (You are not required to designate any
2 alternate agents but you may do so. Any alternate agent you designate will be
3 able to make the same health care decisions as the agent you designated in
4 paragraph 1 above, in the event that agent is unable or ineligible to act as
5 your agent. If an alternate agent you designate is your spouse, he or she
6 becomes ineligible to act as your agent if your marriage is thereafter dis-
7 solved.) If the person designated as my agent in paragraph 1 is not available
8 or becomes ineligible to act as my agent to make a health care decision for me
9 or loses the mental capacity to make health care decisions for me, or if I
10 revoke that person's appointment or authority to act as my agent to make
11 health care decisions for me, then I designate and appoint the following per-
12 sons to serve as my agent to make health care decisions for me as authorized
13 in this Directive, such persons to serve in the order listed below:
14 A. First Alternate Agent:
15 Name..........................................................................
16 Address.......................................................................
17 Telephone Number..............................................................
18 B. Second Alternate Agent:
19 Name..........................................................................
20 Address.......................................................................
21 Telephone Number..............................................................
22 C. Third Alternate Agent:
23 Name..........................................................................
24 Address.......................................................................
25 Telephone Number..............................................................
26 8. PRIOR DESIGNATIONS REVOKED. I revoke any prior durable power of attorney
27 for health care.
28 DATE AND SIGNATURE OF PRINCIPAL. (You must date and sign this Living Will and
29 Durable Power of Attorney for Health Care.)
30 I sign my name to this Statutory Form Living Will and Durable Power of Attor-
31 ney for Health Care on the date set forth at the beginning of this Form at
32 ............... (City, State)....................
33 ..............................
34 Signature
35 (2) A health care directive meeting the requirements of subsection (1) of
36 this section may be registered with the secretary of state pursuant to the
37 provisions of section 39-4515, Idaho Code. Failure to register the health care
38 directive shall not affect the validity of the health care directive.
39 SECTION 4. That Section 39-4511, Idaho Code, be, and the same is hereby
40 amended to read as follows:
41 39-4511. REVOCATION. (1) A "Living Will and Durable Power of Attorney for
42 Health Care" may be revoked at any time by the maker thereof, without regard
43 to his mental state or competence, by any of the following methods:
44 (a) By being canceled, defaced, obliterated or burned, torn, or otherwise
45 destroyed by the maker thereof, or by some person in his presence and by
10
1 his direction;
2 (b) By a written, signed revocation of the maker thereof expressing his
3 intent to revoke; or
4 (c) By an oral expression by the maker thereof expressing his intent to
5 revoke.
6 (2) There shall be no criminal or civil liability on the part of any per-
7 son for the failure to act upon a revocation of a "Living Will and Durable
8 Power of Attorney for Health Care" made pursuant to this section unless that
9 person has actual knowledge of the revocation.
10 (3) A person may register a revocation of a health care directive which
11 meets the requirements of subsection (1)(b) of this section with the secretary
12 of state pursuant to the provisions of section 39-4515, Idaho Code. Failure to
13 register a revocation of the health care directive shall not affect the valid-
14 ity of the revocation.
15 SECTION 5. That Section 39-4513, Idaho Code, be, and the same is hereby
16 amended to read as follows:
17 39-4513. IMMUNITY. (1) No medical personnel or health care facility shall
18 be civilly or criminally liable for acts or omissions carried out or performed
19 pursuant to the directives in a facially valid living will or by the holder of
20 a facially valid durable power of attorney or directive for health care if the
21 medical personnel or health care facility acts in good faith.
22 (2) Any physician or other health care provider who for ethical or pro-
23 fessional reasons is incapable or unwilling to conform to the desires of the
24 patient as expressed by the procedures set forth in this chapter may withdraw
25 without incurring any civil or criminal liability provided the physician or
26 other health care provider makes a good faith effort to assist the patient in
27 obtaining the services of another physician or other health care provider
28 before withdrawal.
29 (3) No person who exercises the responsibilities of a durable power of
30 attorney for health care in good faith shall be subject to civil or criminal
31 liability as a result.
32 (4) Neither the registration of a health care directive in the health
33 care directive registry under section 39-4515, Idaho Code, nor the revocation
34 of such a directive requires a health care provider to request information
35 from that registry. The decision of a health care provider to request or not
36 to request a health care directive document from the registry shall be immune
37 from civil or criminal liability. A health care provider who in good faith
38 acts in reliance on a facially valid health care directive received from the
39 health care directive registry shall be immune from civil or criminal liabil-
40 ity for those acts done in such reliance.
41 SECTION 6. That Chapter 45, Title 39, Idaho Code, be, and the same is
42 hereby amended by the addition thereto of a NEW SECTION, to be known and des-
43 ignated as Section 39-4515, Idaho Code, and to read as follows:
44 39-4515. HEALTH CARE DIRECTIVE REGISTRY. (1) The secretary of state shall
45 create and maintain a health care directive registry. The health care direc-
46 tive registry shall be accessible through a website maintained by the secre-
47 tary of state. The information contained in such registry shall include: the
48 full name of the person executing the health care directive as stated in the
49 directive, a file identification number unique to the person executing the
50 directive, and the date the directive was executed.
51 (2) A person may register with the secretary of state a health care
11
1 directive or a revocation of a health care directive by submitting the direc-
2 tive or revocation, completing and submitting an informational registration
3 form as required by the secretary of state, and paying the secretary of state
4 the fee which the secretary of state may require for registering a health care
5 directive. The person who submits a document for registration pursuant to this
6 section shall provide a return address.
7 (3) The secretary of state may charge and collect a fee not to exceed ten
8 dollars ($10.00) for the filing of a health care directive. All fees collected
9 for the filing of a health care directive shall be deposited into the health
10 care directive registry fund. No fee shall be charged for revoking a health
11 care directive.
12 (4) Upon receipt of the registration form, the secretary of state shall:
13 (a) Create a digital reproduction of the health care directive or the
14 revocation document and the informational registration form;
15 (b) Enter these digitally reproduced documents into the health care
16 directive registry database;
17 (c) Assign each entry a unique identification file number and password;
18 (d) Return the original health care directive or revocation thereof to
19 the person who submitted the document;
20 (e) Provide to the person who submitted the document a printed record of
21 the information entered into the database, the identification file number
22 under which it was entered, the password assigned to that identification
23 file number; and
24 (f) Provide to the person who submitted the document a wallet-sized card
25 that contains the name of the person executing the health care directive
26 as it appears on the document, the identification file number assigned to
27 the registration, and the password assigned to the identification file
28 number.
29 (5) The registry established under this section shall be accessible only
30 by entering the identification file number and the assigned password on the
31 health care directive registry website.
32 (6) The secretary of state and those granted access to the health care
33 directive registry shall use information contained in the registry only for
34 purposes prescribed in this section. No person granted access to the registry
35 shall use the information for commercial solicitations or in any fraudulent or
36 improper way. Any commercial solicitation, fraudulent or improper use of
37 information contained in the registry shall constitute a violation of this
38 section and a violation of the Idaho consumer protection act.
39 (7) The secretary of state is not required to review a health care direc-
40 tive or revocation thereof to ensure that the document complies with any
41 applicable and statutory requirements. Entry of a document into the health
42 care directive registry pursuant to this section does not create a presumption
43 favoring the validity of the document.
44 (8) The secretary of state shall delete a health care directive and the
45 informational registration form from the health care directive registry when
46 the secretary of state receives:
47 (a) A revocation of a health care directive signed by the maker thereof
48 or that person's legal representative along with the identification file
49 number and assigned password; or
50 (b) Verification from the bureau of health policy and vital statistics of
51 the Idaho department of health and welfare that the person who executed
52 the health care directive is deceased. The deletion under this paragraph
53 shall be performed not less than once every two (2) years. The bureau of
54 health policy and vital statistics of the Idaho department of health and
55 welfare shall share its registry of death certificates with the secretary
12
1 of state in order to permit the secretary of state to fulfill its respon-
2 sibilities under this paragraph.
3 (9) Neither the secretary of state nor the state of Idaho shall be sub-
4 ject to civil liability for any claims or demands arising out of the adminis-
5 tration or operation of the health care directive registry.
6 (10) There is hereby created in the state treasury the health care direc-
7 tive registry fund, the moneys of which shall be continuously appropriated,
8 administered by the secretary of state and used to support, promote and main-
9 tain the health care directive registry. The fund shall consist of fees paid
10 by persons registering health care directives under this section and income
11 from investment from the fund, gifts, grants, bequests and other forms of vol-
12 untary donations. On notice from the secretary of state, the state treasurer
13 shall invest and divest moneys in the fund, and moneys earned from such
14 investment shall be credited to the fund.
15 SECTION 7. An emergency existing therefor, which emergency is hereby
16 declared to exist, Section 6 of this act shall be in full force and effect on
17 and after its passage and approval and Sections 1 through 5 of this act shall
18 be in full force and effect on and after July 1, 2006. The Secretary of State
19 will accept registration applications pursuant to this act on and after Janu-
20 ary 1, 2007.
STATEMENT OF PURPOSE
RS 16073
This legislation creates a health care directive registry within the Office of
the Secretary of State. It does this by creating a new code section, Idaho
Code 39-4515. The health care directive registry would contain copies of an
individual's living will and durable power of attorney. Individuals who
register these documents with the Secretary of State would each be given an
individual password, which would allow them to access their documents from the
health care directive registry. They could choose to share their password
with a hospital, physician, family member, or friend.
The advantage of the registry is that individuals who are traveling and who
require medical treatment could ensure that they could access their living
will and durable power of attorney anywhere in the United States by using the
password. Likewise, if they are being treated in a hospital or by a doctor in
another state, a copy of the living will and durable power of attorney can be
easily provided to the out-of-state healthcare provider.
The use of the health care directive registry is entirely voluntary, and no
one is required to register their living will or durable power of attorney
with the Secretary of State. Registration or non-registration of these types
of documents has no effect upon their validity. It only makes them more
accessible in time of emergency.
This legislation also amends the Public Records Act to ensure that information
in the health care directive registry and documents contained within the
registry are not subject to public records requests.
FISCAL NOTE
This legislation has no effect on the general fund. The Secretary of State is
authorized to charge a fee of up to $10 for registration of a living will and
durable power of attorney. No filing fee is required to have a document
removed from the registry. The fee charged by the Secretary of State would
more than offset any administrative costs. Although the Secretary of State is
authorized to charge a fee, the legislation also provides for donations to the
registry fund. Other states have received donations sufficient to cover
operating expenses such that no filing fee is required.
Contact
Name: William A. Von Tagen, Office of the Attorney General
Phone: (208) 334-4140
Name: Joe Gallegos, AARP
Phone: (208) 855-4005
Name: Tim Hurst, Office of the Secretary of State
Phone: (208) 332-2812
STATEMENT OF PURPOSE/FISCAL NOTE H 708