2007 Legislation
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HOUSE BILL NO. 119 – Medical care, living wills

HOUSE BILL NO. 119

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Bill Status



H0119aa...............................................by HEALTH AND WELFARE
MEDICAL CARE DECISIONS - Amends, adds to and repeals existing law relating
to medical care decisions to define terms; to revise terminology; to revise
provisions applicable to persons who may give consent to care for others;
to provide for the refusal to consent; to provide for a specific form of
expression relating to form of consent; to delete language referencing lay
or professional employees; to revise the statement of policy; to revise
provisions applicable to a living will and durable power of attorney for
health care; to revise provisions applicable to revocation; to provide for
physician orders for scope of treatment; to set forth provisions applicable
to adherence to physician orders for scope of treatment protocol; to
provide a duty to inspect; to revise provisions relating to immunity; and
to revise general provisions.
                                                                        
02/07    House intro - 1st rdg - to printing
02/08    Rpt prt - to Health/Wel
02/23    Rpt out - to Gen Ord
02/27    Rpt out amen - to engros
02/28    Rpt engros - 1st rdg - to 2nd rdg as amen
03/01    2nd rdg - to 3rd rdg as amen
03/05    3rd rdg as amen - PASSED - 66-0-4
      AYES -- Anderson, Andrus, Barrett, Bayer, Bedke, Bell, Bilbao, Black,
      Block, Bock, Boe, Bolz, Brackett, Chadderdon, Chavez, Chew, Clark,
      Collins, Crane, Durst, Edmunson, Eskridge, Hagedorn, Hart, Harwood,
      Henbest, Henderson, Jaquet, Killen, King, Kren, Labrador, Lake,
      LeFavour, Loertscher, Luker, Marriott, Mathews, Mortimer, Nielsen,
      Nonini, Pasley-Stuart, Patrick, Pence, Raybould, Ring, Ringo,
      Roberts, Ruchti, Rusche, Sayler, Schaefer, Shepherd(2), Shepherd(8),
      Shively, Smith(30), Smith(24), Snodgrass, Stevenson, Thayn, Trail,
      Vander Woude, Wills, Wood(27), Wood(35), Mr. Speaker
      NAYS -- None
      Absent and excused -- Bradford, McGeachin, Moyle, Shirley
    Floor Sponsor - Henbest
    Title apvd - to Senate
03/06    Senate intro - 1st rdg - to Health/Wel
03/13    Rpt out - rec d/p - to 2nd rdg
03/14    2nd rdg - to 3rd rdg
03/19    3rd rdg - PASSED - 31-1-3
      AYES -- Andreason, Bair, Bastian, Bilyeu, Broadsword, Cameron,
      Coiner, Corder, Darrington, Davis, Geddes, Goedde, Hammond, Heinrich,
      Hill, Jorgenson, Kelly, Keough, Langhorst, Little, Lodge, McGee,
      McKague, McKenzie, Pearce, Richardson, Schroeder, Siddoway, Stegner,
      Stennett, Werk
      NAYS -- Burkett
      Absent and excused -- Fulcher, Gannon, Malepeai
    Floor Sponsors - Coiner & Lodge
    Title apvd - to House
03/20    To enrol - Rpt enrol - Sp signed
03/21    Pres signed - To Governor
03/27    Governor signed
         Session Law Chapter 196
         Effective: 07/01/07

Bill Text


                                                                        
                                                                        
  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-ninth Legislature                   First Regular Session - 2007
                                                                        
                                                                        
                              IN THE HOUSE OF REPRESENTATIVES
                                                                        
                                     HOUSE BILL NO. 119
                                                                        
                              BY HEALTH AND WELFARE COMMITTEE
                                                                        
  1                                        AN ACT
  2    RELATING TO MEDICAL CARE DECISIONS; AMENDING SECTION 39-4501, IDAHO  CODE,  TO
  3        PROVIDE  A  CODE  REFERENCE; AMENDING CHAPTER 45, TITLE 39, IDAHO CODE, BY
  4        THE ADDITION OF A NEW SECTION 39-4502, IDAHO CODE, TO DEFINE TERMS; AMEND-
  5        ING SECTION 39-4502, IDAHO CODE, TO REDESIGNATE THE SECTION AND TO  REVISE
  6        TERMINOLOGY; AMENDING SECTION 39-4503, IDAHO CODE, TO REDESIGNATE THE SEC-
  7        TION  AND  TO REVISE PROVISIONS APPLICABLE TO PERSONS WHO MAY GIVE CONSENT
  8        TO CARE FOR OTHERS; AMENDING SECTION 39-4504, IDAHO CODE,  TO  REDESIGNATE
  9        THE  SECTION  AND  TO  PROVIDE  A CORRECT CODE REFERENCE; AMENDING SECTION
 10        39-4505, IDAHO CODE, TO REDESIGNATE THE SECTION AND  TO  PROVIDE  FOR  THE
 11        REFUSAL  TO  CONSENT; AMENDING SECTION 39-4506, IDAHO CODE, TO REDESIGNATE
 12        THE SECTION AND TO PROVIDE FOR A SPECIFIC FORM OF EXPRESSION  RELATING  TO
 13        FORM  OF CONSENT; AMENDING SECTION 39-4507, IDAHO CODE, TO REDESIGNATE THE
 14        SECTION AND TO DELETE LANGUAGE REFERENCING LAY OR PROFESSIONAL  EMPLOYEES;
 15        AMENDING  SECTION  39-4508,  IDAHO  CODE,  TO  REDESIGNATE THE SECTION, TO
 16        REVISE DESCRIPTIVE LANGUAGE, TO REVISE THE  STATEMENT  OF  POLICY  AND  TO
 17        DEFINE  A TERM; REPEALING SECTION 39-4509, IDAHO CODE, RELATING TO DEFINI-
 18        TIONS; AMENDING SECTION 39-4510, IDAHO CODE, TO REVISE PROVISIONS APPLICA-
 19        BLE TO A LIVING WILL AND DURABLE POWER OF ATTORNEY FOR HEALTH CARE; AMEND-
 20        ING SECTION 39-4511, IDAHO CODE, TO REVISE PROVISIONS APPLICABLE TO  REVO-
 21        CATION;  AMENDING  CHAPTER  45, TITLE 39, IDAHO CODE, BY THE ADDITION OF A
 22        NEW SECTION 39-4512A, IDAHO CODE, TO  PROVIDE  FOR  PHYSICIAN  ORDERS  FOR
 23        SCOPE  OF  TREATMENT;  AMENDING  CHAPTER  45, TITLE 39, IDAHO CODE, BY THE
 24        ADDITION OF A NEW SECTION 39-4512B, IDAHO CODE, TO  SET  FORTH  PROVISIONS
 25        APPLICABLE  TO ADHERENCE TO PHYSICIAN ORDERS FOR SCOPE OF TREATMENT PROTO-
 26        COL; AMENDING CHAPTER 45, TITLE 39, IDAHO CODE, BY THE ADDITION OF  A  NEW
 27        SECTION  39-4512C, IDAHO CODE, TO PROVIDE A DUTY TO INSPECT; AMENDING SEC-
 28        TION 39-4513, IDAHO CODE,  TO  REVISE  PROVISIONS  RELATING  TO  IMMUNITY;
 29        AMENDING  SECTION  39-4514,  IDAHO  CODE,  TO  REVISE  GENERAL PROVISIONS;
 30        REPEALING SECTIONS 56-1020 THROUGH 56-1035, IDAHO CODE, RELATING TO  DECI-
 31        SIONS RELATIVE TO THE RENDERING OR WITHHOLDING OF MEDICAL CARE; AND AMEND-
 32        ING SECTION 66-405, IDAHO CODE, TO REVISE A CODE REFERENCE.
                                                                        
 33    Be It Enacted by the Legislature of the State of Idaho:
                                                                        
 34        SECTION  1.  That  Section 39-4501, Idaho Code, be, and the same is hereby
 35    amended to read as follows:
                                                                        
 36        39-4501.  PURPOSES -- APPLICATION. (1) The primary purposes of this  chap-
 37    ter are:
 38        (a)  To provide and codify Idaho law concerning consent for the furnishing
 39        of  hospital,  medical,  dental or surgical care, treatment or procedures,
 40        and concerning what constitutes an informed consent for such care,  treat-
 41        ment or procedures; and
 42        (b)  To provide certainty and clarity in the law of medical consent in the
 43        furtherance of high standards of health care and its ready availability in
                                                                        
                                       2
                                                                        
  1        proper cases.
  2        (2)  Nothing in this chapter shall be deemed to amend or repeal the provi-
  3    sions  of  chapter  3  or chapter 4, title 66, Idaho Code, as those provisions
  4    pertain to hospitalization of the mentally ill, nor the provisions of  chapter
  5    6,  title  18,  Idaho  Code, pertaining to the provision of examinations, pre-
  6    scriptions, devices and informational materials regarding prevention of  preg-
  7    nancy  or  pertaining  to therapeutic abortions and consent to the performance
  8    thereof.
  9        (3)  Nothing in this chapter shall be construed to permit or  require  the
 10    provision  of  health  care  for  a  patient in contravention of the patient's
 11    stated or implied objection thereto upon religious grounds nor shall  anything
 12    in  this  chapter be construed to require the granting of permission for or on
 13    behalf of any patient who is not able to act for himself by his parent, spouse
 14    or guardian in violation of the  religious  beliefs  of  the  patient  or  the
 15    patient's parent or spouse.
                                                                        
 16        SECTION  2.  That  Chapter  45,  Title 39, Idaho Code, be, and the same is
 17    hereby amended by the addition thereto of a NEW SECTION, to be known and  des-
 18    ignated as Section 39-4502, Idaho Code, and to read as follows:
                                                                        
 19        39-4502.  DEFINITIONS. As used in this chapter:
 20        (1)  "Artificial life-sustaining procedure" means any medical procedure or
 21    intervention  that  utilizes  mechanical  means to sustain or supplant a vital
 22    function which, when applied to a qualified patient, would serve only to arti-
 23    ficially prolong life. "Artificial life-sustaining procedure" does not include
 24    the administration of pain management medication or  the  performance  of  any
 25    medical  procedure  deemed  necessary  to provide comfort care or to alleviate
 26    pain.
 27        (2)  "Artificial nutrition and hydration" means supplying food  and  water
 28    through  a conduit, such as a tube or intravenous line, where the recipient is
 29    not required to chew or swallow voluntarily, but  does  not  include  assisted
 30    feeding, such as spoon feeding or bottle feeding.
 31        (3)  "Attending physician" means the physician licensed by the state board
 32    of  medicine  who is selected by, or assigned to, the patient and who has pri-
 33    mary responsibility for the treatment and care of the patient.
 34        (4)  "Cardiopulmonary resuscitation" or "CPR" means  measures  to  restore
 35    cardiac  function  and/or  to  support  ventilation in the event of cardiac or
 36    respiratory arrest.
 37        (5)  "Comfort care" means treatment and care to provide comfort and clean-
 38    liness. "Comfort care" includes:
 39        (a)  Oral and body hygiene;
 40        (b)  Reasonable efforts to offer food and fluids orally;
 41        (c)  Medication, positioning, warmth, appropriate lighting and other  mea-
 42        sures to relieve pain and suffering; and
 43        (d)  Privacy and respect for the dignity and humanity of the patient.
 44        (6)  "Consent  to  care"  includes refusal to consent to care and/or with-
 45    drawal of care.
 46        (7)  "Directive" or "health care directive" means a document  meeting  the
 47    requirements of section 39-4510(1), Idaho Code, and/or a "Physician Orders for
 48    Scope of Treatment (POST)" form signed by a physician.
 49        (8)  "Emergency  medical  services  personnel"  means personnel engaged in
 50    providing initial emergency medical assistance including, but not limited  to,
 51    first responders, emergency medical technicians and paramedics.
 52        (9)  "Health  care  provider"  or  "provider"  means  any person or entity
 53    licensed, certified, or otherwise authorized by law to administer health  care
                                                                        
                                       3
                                                                        
  1    in  the  ordinary  course  of  business or practice of a profession, including
  2    emergency or other medical services personnel.
  3        (10) "Persistent vegetative state" means an irreversible  state  that  has
  4    been  medically confirmed by a neurological specialist who is an expert in the
  5    examination of nonresponsive individuals in which the person has intact  brain
  6    stem  function  but  no  higher  cortical function and no awareness of self or
  7    environment.
  8        (11) "Physician" means a person who holds  a  current  active  license  to
  9    practice medicine and surgery or osteopathic medicine and surgery in Idaho and
 10    is  in  good standing with no restriction upon or actions taken against his or
 11    her license.
 12        (12) "Physician orders for scope of treatment (POST) form" means  a  stan-
 13    dardized  form  containing orders by a physician that states a person's treat-
 14    ment wishes.
 15        (13) "Physician  orders  for  scope  of  treatment  (POST)  identification
 16    device" means standardized jewelry which can be worn around the wrist, neck or
 17    ankle, and which has been approved by the department of health and welfare.
 18        (14) "Terminal condition" means an  incurable  or  irreversible  condition
 19    which,  without the administration of life-sustaining procedures, will, in the
 20    opinion of a physician, result in death if it runs its usual course.
                                                                        
 21        SECTION 3.  That Section 39-4502, Idaho Code, be, and the same  is  hereby
 22    amended to read as follows:
                                                                        
 23        39-45023.  PERSONS  WHO MAY CONSENT TO THEIR OWN CARE. Any person of ordi-
 24    nary intelligence and awareness sufficient for him or her generally to compre-
 25    hend the need for, the nature of and the significant risks ordinarily inherent
 26    in, any contemplated hospital, medical, dental or surgical care, treatment  or
 27    procedure is competent to consent thereto on his or her own behalf. Any physi-
 28    cian,  dentist,  hospital or other duly authorized person health care provider
 29    may provide such health care and services in reliance upon such a  consent  if
 30    the consenting person appears to the physician or dentist health care provider
 31    securing  the  consent to possess such requisite intelligence and awareness at
 32    the time of giving the consent.
                                                                        
 33        SECTION 4.  That Section 39-4503, Idaho Code, be, and the same  is  hereby
 34    amended to read as follows:
                                                                        
 35        39-45034.  PERSONS  WHO  MAY  GIVE CONSENT TO CARE FOR OTHERS. (1) Consent
 36    for the furnishing of hospital, medical, dental or surgical care, treatment or
 37    procedures to any person who is not then capable of  giving  such  consent  as
 38    provided in this chapter or who is a minor or incompetent person, may be given
 39    or  refused in the order of priority set forth hereafter unless the patient is
 40    a competent person who has refused to give such consent, and provided  further
 41    that  this  subsection shall not be deemed to authorize any person to override
 42    the express refusal by a competent patient to give such consent himself:
 43        (a)  The legal guardian of such person;
 44        (b)  The person named in a "Living Will and Durable Power of Attorney  for
 45        Health  Care"  pursuant to section 39-4510, Idaho Code, or a similar docu-
 46        ment authorized by this chapter;
 47        (c)  If married, the spouse of such person;
 48        (d)  A parent of such person;
 49        (e)  Any relative representing himself or herself to  be  an  appropriate,
 50        responsible person to act under the circumstances;
 51        (f)  Any  other competent individual representing himself or herself to be
                                                                        
                                       4
                                                                        
  1        responsible for the health care of such person; or
  2        (g)  If the subject person presents a medical emergency or there is a sub-
  3        stantial likelihood of his or her life or health  being  seriously  endan-
  4        gered  by withholding or delay in the rendering of such hospital, medical,
  5        dental or surgical care to such patient  and the subject  person  has  not
  6        communicated and is unable to communicate his or her treatment wishes, the
  7        attending  physician  or  dentist may, in his or her discretion, authorize
  8        and/or provide such care, treatment or procedure as he or she deems appro-
  9        priate, and all persons, agencies and institutions  thereafter  furnishing
 10        the same, including such physician or dentist, may proceed as if informed,
 11        valid consent therefor had been otherwise duly given.
 12        (2)  No  person who, in good faith, gives consent or authorization for the
 13    provision of hospital, medical, dental or surgical care, treatment  or  proce-
 14    dures to another as provided by this chapter shall be subject to civil liabil-
 15    ity therefor.
 16        (3)  No  physician,  dentist,  hospital  or  other  duly authorized person
 17    health care provider who, in good faith, obtains consent from a person  pursu-
 18    ant to either section 39-45023 or 39-45034(1), Idaho Code, shall be subject to
 19    civil liability therefor.
                                                                        
 20        SECTION  5.  That  Section 39-4504, Idaho Code, be, and the same is hereby
 21    amended to read as follows:
                                                                        
 22        39-45045.  BLOOD TESTING. (1) A physician may consent to ordering tests of
 23    a patient's or a deceased person's blood or other body fluids for the presence
 24    of blood-transmitted or body fluid-transmitted viruses or diseases without the
 25    prior consent of the patient if:
 26        (a)  There has been or is likely to  be  a  significant  exposure  to  the
 27        patient's  or a deceased person's blood or body fluids by a person provid-
 28        ing emergency or medical services to such patient which may result in  the
 29        transmittal of a virus or disease; and
 30        (b)  The  patient  is  unconscious or incapable of giving informed consent
 31        and the  physician  is  unable  to  obtain  consent  pursuant  to  section
 32        39-45034, Idaho Code.
 33        (2)  The department of health and welfare shall promulgate rules identify-
 34    ing  the  blood-transmitted  or body fluid-transmitted viruses or diseases for
 35    which blood tests or body fluid tests can be ordered under  this  section  and
 36    defining the term "significant exposure" as provided in this section.
 37        (3)  Results of tests conducted under this section which confirm the pres-
 38    ence  of  a blood-transmitted or body fluid-transmitted virus or disease shall
 39    be reported to the director of the department of health  and  welfare  in  the
 40    name of the patient or deceased person. The department records containing such
 41    test  results  shall  be used only by public health officials who must conduct
 42    investigations. The exposed person shall only be informed of  the  results  of
 43    the test and shall not be informed of the name of the patient or deceased per-
 44    son.  Protocols  shall be established by hospitals to maintain confidentiality
 45    while disseminating the necessary test result information to persons  who  may
 46    have  a  significant  exposure  to  blood or other body fluids and to maintain
 47    records of such tests to preserve the confidentiality of the test results.
 48        (4)  Any person who willfully or maliciously discloses the  results  of  a
 49    test  conducted under this section, except pursuant to a written authorization
 50    by the person whose blood was tested or by such person's authorized  represen-
 51    tative, or as otherwise authorized by law, shall be guilty of a misdemeanor.
                                                                        
 52        SECTION  6.  That  Section 39-4505, Idaho Code, be, and the same is hereby
                                                                        
                                       5
                                                                        
  1    amended to read as follows:
                                                                        
  2        39-45056.  SUFFICIENCY OF CONSENT. Consent, or refusal to consent, for the
  3    furnishing of hospital, medical, dental or surgical care, treatment or  proce-
  4    dures shall be valid in all respects if the person giving or refusing the con-
  5    sent  is  sufficiently  aware  of pertinent facts respecting the need for, the
  6    nature of, and the significant risks ordinarily attendant upon, such a patient
  7    receiving such care, as to permit the giving or withholding of such consent to
  8    be a reasonably informed decision. Any such consent shall be deemed valid  and
  9    so  informed  if the physician or dentist to whom it is given or by whom it is
 10    secured has made such disclosures and given such advice  respecting  pertinent
 11    facts  and considerations as would ordinarily be made and given under the same
 12    or similar circumstances, by a like physician  or  dentist  of  good  standing
 13    practicing  in  the  same community. As used in this section, the term "in the
 14    same community" refers to  that  geographic  area  ordinarily  served  by  the
 15    licensed general hospital at or nearest to which such consent is given.
                                                                        
 16        SECTION  7.  That  Section 39-4506, Idaho Code, be, and the same is hereby
 17    amended to read as follows:
                                                                        
 18        39-45067.  FORM OF CONSENT. It is not essential to  the  validity  of  any
 19    consent  for  the  furnishing  of  hospital, medical, dental or surgical care,
 20    treatment or procedures that the consent be in writing or any  other  specific
 21    form  of  expression;  provided  however,  when  the giving of such consent is
 22    recited or documented in writing and expressly authorizes the care,  treatment
 23    or procedures to be furnished, and when such writing or form has been executed
 24    or  initialed  by  a  person  competent  to  give  such consent for himself or
 25    another, such written consent, in the absence of convincing proof that it  was
 26    secured maliciously or by fraud, is presumed to be valid for the furnishing of
 27    such  care,  treatment  or  procedures,  and the advice and disclosures of the
 28    attending physician or dentist, as well as the level of informed awareness  of
 29    the giver of such consent, shall be presumed to be sufficient.
                                                                        
 30        SECTION  8.  That  Section 39-4507, Idaho Code, be, and the same is hereby
 31    amended to read as follows:
                                                                        
 32        39-45078.  RESPONSIBILITY FOR CONSENT AND DOCUMENTATION. Obtaining consent
 33    for health care is the duty of  the  attending  physician  or  dentist  or  of
 34    another physician or dentist acting on his or her behalf or actually providing
 35    the  contemplated  care,  treatment or procedure; provided however, a licensed
 36    hospital and any medical or dental office lay or professional employee, acting
 37    with the approval of such an attending or other physician or dentist, may per-
 38    form the ministerial act of documenting such consent by securing  the  comple-
 39    tion  and  execution of a form or statement in which the giving of consent for
 40    such care is documented by or on behalf of the patient. In performing  such  a
 41    ministerial  act, the hospital or medical or dental office lay or professional
 42    employee shall not be deemed to have engaged in the practice  of  medicine  or
 43    dentistry.
                                                                        
 44        SECTION  9.  That  Section 39-4508, Idaho Code, be, and the same is hereby
 45    amended to read as follows:
                                                                        
 46        39-45089.  STATEMENT OF POLICY -- DEFINITION.  For  purposes  of  sections
 47    39-45089 through 39-45145, Idaho Code:
 48        (1)  The  legislature finds that recognizes the established common law and
                                                                        
                                       6
                                                                        
  1    the fundamental right of adult persons have the fundamental right  to  control
  2    the  decisions  relating to the rendering of their medical care, including the
  3    decision to have life-sustaining procedures withheld or withdrawn. The  legis-
  4    lature  further  finds  that  modern  medical technology has made possible the
  5    artificial prolongation of human life beyond natural limits.  The  legislature
  6    further  finds  that  patients are sometimes unable to express their desire to
  7    withhold or withdraw such artificial life prolongation procedures  which  pro-
  8    vide  nothing  medically necessary or beneficial to the patient because of the
  9    patient's inability to communicate with the physician.
 10        (2)  In recognition of the dignity and privacy which patients have a right
 11    to expect, the legislature hereby declares that the laws of this  state  shall
 12    recognize  the right of a competent person to have his or her wishes for medi-
 13    cal treatment and for the withdrawal of artificial life-sustaining  procedures
 14    carried  out even though that person is no longer able to communicate with the
 15    physician.
 16        (3)  It is the intent of the legislature to establish an  effective  means
 17    for  such communication. It is not the intent of the legislature that the pro-
 18    cedures described in this chapter  sections  39-4509  through  39-4515,  Idaho
 19    Code,  are the only effective means of such communication, and nothing in this
 20    chapter sections 39-4509 through 39-4515, Idaho Code, shall impair  or  super-
 21    sede any legal right or legal responsibility which a person may have to effect
 22    the withholding or withdrawal of life-sustaining procedures in any lawful man-
 23    ner. Any authentic expression of a person's wishes with respect to health care
 24    should be honored.
 25        (4)  "Competent  person"  means  any  emancipated minor or person eighteen
 26    (18) or more years of age who is of sound mind.
                                                                        
 27        SECTION 10.  That Section 39-4509, Idaho Code, be, and the same is  hereby
 28    repealed.
                                                                        
 29        SECTION  11.  That Section 39-4510, Idaho Code, be, and the same is hereby
 30    amended to read as follows:
                                                                        
 31        39-4510.  LIVING WILL AND DURABLE POWER OF ATTORNEY FOR HEALTH  CARE.  (1)
 32    Any  competent person may execute a document known as a "Living Will and Dura-
 33    ble Power of Attorney for Health Care." Such document  shall  be  in  substan-
 34    tially  the  following form, or in another form that contains the elements set
 35    forth in this chapter. A "Living Will and Durable Power of Attorney for Health
 36    Care" executed prior to the effective date of this act, but which was  in  the
 37    "Living Will" and/or "Durable Power of Attorney for Health Care" form pursuant
 38    to prior Idaho law at the time of execution, or in another form that contained
 39    the  elements  set  forth  in  this chapter at the time of execution, shall be
 40    deemed to be in compliance with this chapter. A "Living Will and Durable Power
 41    of Attorney for Health Care" or similar document(s) executed in another  state
 42    which  substantially  complies with this chapter shall be deemed to be in com-
 43    pliance with this chapter. In this chapter, a "Living Will and  Durable  Power
 44    of Attorney for Health Care" may be referred to as a "directive." Any portions
 45    of  the  "Living Will and Durable Power of Attorney for Health Care" which are
 46    left blank by the person executing the document shall be deemed to  be  inten-
 47    tional and shall not invalidate the document.
                                                                        
 48              LIVING WILL AND DURABLE POWER OF ATTORNEY FOR HEALTH CARE
                                                                        
 49    Date of Directive:....................
                                                                        
                                       7
                                                                        
  1    Name of person executing Directive:...........................................
  2    Address of person executing Directive:........................................
                                                                        
  3                                    A LIVING WILL
  4                   A Directive to Withhold or to Provide Treatment
                                                                        
  5    1.  Being of sound mind, I willfully and voluntarily make known my desire that
  6    my  life shall not be prolonged artificially under the circumstances set forth
  7    below. This Directive shall only be effective if I am unable to communicate my
  8    instructions and:
  9        a.  I have an incurable or irreversible injury, disease, illness or condi-
 10        tion, and two (2) a medical doctors who have has examined me have has cer-
 11        tified:
 12             1.  That such injury, disease, illness or condition is terminal; and
 13             2.  That the application  of  artificial  life-sustaining  procedures
 14             would serve only to prolong artificially my life; and
 15             3.  That  my  death  is  imminent,  whether  or  not artificial life-
 16             sustaining procedures are utilized; or
 17        b.  I have been diagnosed as being in a persistent vegetative state.
 18    In such event, I direct that the following marked expression of my  intent  be
 19    followed,  and  that  I  receive  any  medical  treatment  or care that may be
 20    required to keep me free of pain or distress.
                                                                        
 21    Check one box and initial the line after such box:
                                                                        
 22        ........  I direct that all medical treatment, care and procedures  neces-
 23    sary  to  restore  my health, and sustain my life, and to abolish or alleviate
 24    pain or distress be provided to me. Nutrition and hydration,  whether  artifi-
 25    cial  or  nonartificial, shall not be withheld or withdrawn from me if I would
 26    likely die primarily from malnutrition or  dehydration  rather  than  from  my
 27    injury, disease, illness or condition.
                                                                        
 28    OR
                                                                        
 29        ........  I  direct  that  all  medical  treatment,  care  and procedures,
 30    including artificial life-sustaining procedures,  be  withheld  or  withdrawn,
 31    except that nutrition and hydration, whether artificial or nonartificial shall
 32    not  be withheld or withdrawn from me if, as a result, I would likely die pri-
 33    marily from malnutrition or dehydration rather than from my  injury,  disease,
 34    illness  or condition, as follows: (If none of the following boxes are checked
 35    and initialed, then both nutrition and hydration, of any nature, whether arti-
 36    ficial or nonartificial, shall be administered.)
                                                                        
 37    Check one box and initial the line after such box:
                                                                        
 38        A.        ........  Only hydration of any nature,  whether  artificial  or
 39                       nonartificial, shall be administered;
 40        B.        ........  Only  nutrition,  of any nature, whether artificial or
 41                       nonartificial, shall be administered;
 42        C.        ........  Both nutrition and hydration, of any  nature,  whether
 43                       artificial or nonartificial shall be administered.
                                                                        
 44    OR
                                                                        
 45        ........  I  direct  that  all  medical  treatment, care and procedures be
                                                                        
                                       8
                                                                        
  1    withheld or withdrawn, including withdrawal of the administration  of  artifi-
  2    cial nutrition and hydration.
                                                                        
  3    2.  This  Directive  shall be the final expression of my legal right to refuse
  4    or accept medical and surgical treatment, and I  accept  the  consequences  of
  5    such refusal or acceptance.
                                                                        
  6    3.  If  I  have been diagnosed as pregnant, this Directive shall have no force
  7    during the course of my pregnancy.
                                                                        
  8    43.  I understand the full importance of this Directive and am mentally compe-
  9    tent to make this Directive. No participant in the making of this Directive or
 10    in its being carried into effect shall be held responsible in any way for com-
 11    plying with my directions.
                                                                        
 12    4.  Check one box and initial the line after such box:
                                                                        
 13        ........  I have discussed these decisions with my physician and have also
 14    completed a Physician Orders for Scope of Treatment (POST) form that  contains
 15    directions  that  may  be  more  specific  than, but are compatible with, this
 16    Directive. I hereby approve of those orders and incorporate them herein as  if
 17    fully set forth.
                                                                        
 18    OR
                                                                        
 19        ........  I  have  not completed a Physician Orders for Scope of Treatment
 20    (POST) form. If a POST form is later signed by my physician, then this  living
 21    will  shall  be  deemed  modified  to be compatible with the terms of the POST
 22    form.
                                                                        
 23                     A DURABLE POWER OF ATTORNEY FOR HEALTH CARE
                                                                        
 24    1.  DESIGNATION OF HEALTH CARE AGENT. None of the following may be  designated
 25    as  your  agent:  (1)  your  treating  health care provider; (2) a nonrelative
 26    employee of your treating health care provider; (3) an operator of a community
 27    care facility; or (4) a nonrelative employee of an  operator  of  a  community
 28    care facility. If the agent or an alternate agent designated in this Directive
 29    is my spouse, and our marriage is thereafter dissolved, such designation shall
 30    be thereupon revoked.
                                                                        
 31    I  do  hereby designate and appoint the following individual as my attorney in
 32    fact (agent) to make health care decisions for me as authorized in this Direc-
 33    tive. (Insert name, address and telephone number of  one  individual  only  as
 34    your agent to make health care decisions for you.)
                                                                        
 35    Name of Health Care Agent: ...................................................
 36    Address of Health Care Agent: ................................................
 37    Telephone Number of Health Care Agent: .......................................
                                                                        
 38    For  the  purposes  of  this  Directive, "health care decision" means consent,
 39    refusal of consent, or withdrawal of consent to any care,  treatment,  service
 40    or  procedure  to  maintain, diagnose or treat an individual's physical condi-
 41    tion.
                                                                        
 42    2.  CREATION OF DURABLE POWER OF ATTORNEY FOR HEALTH CARE. By this portion  of
                                                                        
                                       9
                                                                        
  1    this  Directive,  I  create  a durable power of attorney for health care. This
  2    power of attorney shall not be affected  by  my  subsequent  incapacity.  This
  3    power shall be effective only when I am unable to communicate rationally.
                                                                        
  4    3.  GENERAL STATEMENT OF AUTHORITY GRANTED. Subject to any limitations in this
  5    Directive,  including  as set forth in paragraph 2 immediately above, I hereby
  6    grant to my agent full power and authority to make health care  decisions  for
  7    me to the same extent that I could make such decisions for myself if I had the
  8    capacity  to  do  so. In exercising this authority, my agent shall make health
  9    care decisions that are consistent with my desires as stated in this Directive
 10    or otherwise made known to my agent including, but not limited to, my  desires
 11    concerning obtaining or refusing or withdrawing artificial life-prolongingsus-
 12    taining  care,  treatment, services and procedures, including such desires set
 13    forth in a living will, Physician Orders for Scope of Treatment  (POST)  form,
 14    or  similar document executed by me, if any. (If you want to limit the author-
 15    ity of your agent to make health care decisions for you,  you  can  state  the
 16    limitations  in  paragraph  4  ("Statement of Desires, Special Provisions, and
 17    Limitations") below. You can indicate your desires by including a statement of
 18    your desires in the same paragraph.)
                                                                        
 19    4.  STATEMENT OF DESIRES, SPECIAL PROVISIONS,  AND  LIMITATIONS.  (Your  agent
 20    must  make  health care decisions that are consistent with your known desires.
 21    You can, but are not required to, state your desires  in  the  space  provided
 22    below.  You  should  consider  whether you want to include a statement of your
 23    desires concerning artificial life-prolongingsustaining care, treatment,  ser-
 24    vices  and  procedures.  You can also include a statement of your desires con-
 25    cerning other matters relating to your health care, including a list of one or
 26    more persons whom you designate to be  able  to  receive  medical  information
 27    about  you and/or to be allowed to visit you in a medical institution. You can
 28    also make your desires known to your agent by  discussing  your  desires  with
 29    your  agent  or  by some other means. If there are any types of treatment that
 30    you do not want to be used, you should state them in the space below.  If  you
 31    want  to  limit in any other way the authority given your agent by this Direc-
 32    tive, you should state the limits in the space below. If you do not state  any
 33    limits,  your  agent  will have broad powers to make health care decisions for
 34    you, except to the extent that there are limits provided by law.) In  exercis-
 35    ing  the  authority  under  this durable power of attorney for health care, my
 36    agent shall act consistently with my desires as stated below and is subject to
 37    the special provisions and limitations stated in my Physician Orders for Scope
 38    of Treatment (POST) form, a living will, or similar document executed  by  me,
 39    if any. Additional statement of desires, special provisions, and limitations:.
 40    .......(You may attach additional pages or documents if you need more space to
 41    complete your statement.)
                                                                        
 42    5.  INSPECTION AND DISCLOSURE OF INFORMATION RELATING TO MY PHYSICAL OR MENTAL
 43    HEALTH.
                                                                        
 44    A.  General Grant of Power and Authority. Subject to any limitations  in  this
 45    Directive,  my  agent  has the power and authority to do all of the following:
 46    (1) Request, review and receive any information, verbal or written,  regarding
 47    my physical or mental health including, but not limited to, medical and hospi-
 48    tal records; (2) Execute on my behalf any releases or other documents that may
 49    be required in order to obtain this information; (3) Consent to the disclosure
 50    of  this  information; and (4) Consent to the donation of any of my organs for
 51    medical purposes. (If you want to limit the authority of your agent to receive
                                                                        
                                       10
                                                                        
  1    and disclose information relating to your health, you must state  the  limita-
  2    tions  in  paragraph 4 ("Statement of Desires, Special Provisions, and Limita-
  3    tions") above.)
                                                                        
  4    B.  HIPAA Release Authority. My agent shall be treated  as  I  would  be  with
  5    respect to my rights regarding the use and disclosure of my individually iden-
  6    tifiable  health  information or other medical records. This release authority
  7    applies to any information governed by the Health  Insurance  Portability  and
  8    Accountability  Act  of  1996  (HIPAA), 42 U.S.C. 1320d and 45 CFR 160 through
  9    164. I authorize any physician,  health  care  professional,  dentist,  health
 10    plan,  hospital,  clinic,  laboratory,  pharmacy, or other covered health care
 11    provider, any insurance company, and the Medical Information Bureau,  Inc.  or
 12    other health care clearinghouse that has provided treatment or services to me,
 13    or that has paid for or is seeking payment from me for such services, to give,
 14    disclose  and release to my agent, without restriction, all of my individually
 15    identifiable health information and medical records regarding any past,  pres-
 16    ent  or  future  medical or mental health condition, including all information
 17    relating to the diagnosis of HIV/AIDS, sexually transmitted  diseases,  mental
 18    illness,  and drug or alcohol abuse. The authority given my agent shall super-
 19    sede any other agreement that I may have made with my health care providers to
 20    restrict access to or disclosure of my individually identifiable health infor-
 21    mation. The authority given my agent has no expiration date and  shall  expire
 22    only  in the event that I revoke the authority in writing and deliver it to my
 23    health care provider.
                                                                        
 24    6.  SIGNING DOCUMENTS, WAIVERS AND RELEASES. Where necessary to implement  the
 25    health  care  decisions that my agent is authorized by this Directive to make,
 26    my agent has the power and authority to execute on my behalf all of  the  fol-
 27    lowing: (a) Documents titled, or purporting to be, a "Refusal to Permit Treat-
 28    ment"  and/or  a "Leaving Hospital Against Medical Advice"; and (b) Any neces-
 29    sary waiver or release from liability required by a hospital or physician.
                                                                        
 30    7.  DESIGNATION OF ALTERNATE AGENTS. (You are not required  to  designate  any
 31    alternate  agents but you may do so. Any alternate agent you designate will be
 32    able to make the same health care decisions as the  agent  you  designated  in
 33    paragraph  1  above, in the event that agent is unable or ineligible to act as
 34    your agent. If an alternate agent you designate is  your  spouse,  he  or  she
 35    becomes  ineligible  to  act as your agent if your marriage is thereafter dis-
 36    solved.) If the person designated as my agent in paragraph 1 is not  available
 37    or becomes ineligible to act as my agent to make a health care decision for me
 38    or  loses  the  mental  capacity to make health care decisions for me, or if I
 39    revoke that person's appointment or authority  to act  as  my  agent  to  make
 40    health  care decisions for me, then I designate and appoint the following per-
 41    sons to serve as my agent to make health care decisions for me  as  authorized
 42    in this Directive, such persons to serve in the order listed below:
                                                                        
 43    A.  First Alternate Agent:
 44    Name..........................................................................
 45    Address.......................................................................
 46    Telephone Number..............................................................
                                                                        
 47    B.  Second Alternate Agent:
 48    Name..........................................................................
 49    Address.......................................................................
 50    Telephone Number..............................................................
                                                                        
                                       11
                                                                        
  1    C.  Third Alternate Agent:
  2    Name..........................................................................
  3    Address.......................................................................
  4    Telephone Number..............................................................
                                                                        
  5    8.  PRIOR  DESIGNATIONS  REVOKED. I revoke any prior durable power of attorney
  6    for health care.
                                                                        
  7    DATE AND SIGNATURE OF PRINCIPAL. (You must date and sign this Living Will  and
  8    Durable Power of Attorney for Health Care.)
                                                                        
  9    I  sign my name to this Statutory Form Living Will and Durable Power of Attor-
 10    ney for Health Care on the date set forth at the beginning  of  this  Form  at
 11    ............... (City, State)....................
                                                                        
 12    ..............................
 13    Signature
                                                                        
 14        (2)  A health care directive meeting the requirements of subsection (1) of
 15    this  section  may  be  registered with the secretary of state pursuant to the
 16    provisions of section 39-4515, Idaho Code. Failure to register the health care
 17    directive shall not affect the validity of the health care directive.
                                                                        
 18        SECTION 12.  That Section 39-4511, Idaho Code, be, and the same is  hereby
 19    amended to read as follows:
                                                                        
 20        39-4511.  REVOCATION.  (1)  A  "Lliving  Wwill  and  Ddurable    Ppower of
 21    Aattorney for Hhealth Ccare" or physician  orders  for    scope  of  treatment
 22    (POST) form may be revoked at any time by the maker thereof, without regard to
 23    his mental state or competence, by any of the following methods:
 24        (a)  By being canceled, defaced, obliterated or burned, torn, or otherwise
 25        destroyed  by  the maker thereof, or by some person in his presence and by
 26        his direction;
 27        (b)  By a written, signed revocation of the maker thereof  expressing  his
 28        intent to revoke; or
 29        (c)  By  an  oral expression by the maker thereof expressing his intent to
 30        revoke.
 31        (2)  The maker of the revoked living will and durable  power  of  attorney
 32    for health care is responsible for notifying his physician of the revocation.
 33        (3)  There shall be no criminal or civil liability on the part of any per-
 34    son  for the failure to act upon a revocation of a "Lliving Wwill and Ddurable
 35    Ppower of Aattorney for Hhealth Ccare" or physician orders for scope of treat-
 36    ment (POST) form made pursuant to this section unless that person  has  actual
 37    knowledge of the revocation.
 38        (3)  A  person  may register a revocation of a health care directive which
 39    meets the requirements of subsection (1)(b) of this section with the secretary
 40    of state pursuant to the provisions of section 39-4515, Idaho Code. Failure to
 41    register a revocation of the health care directive shall not affect the valid-
 42    ity of the revocation.
                                                                        
 43        SECTION 13.  That Chapter 45, Title 39, Idaho Code, be, and  the  same  is
 44    hereby  amended by the addition thereto of a NEW SECTION, to be known and des-
 45    ignated as Section 39-4512A, Idaho Code, and to read as follows:
                                                                        
 46        39-4512A.  PHYSICIAN ORDERS FOR SCOPE OF TREATMENT (POST). (1) A physician
                                                                        
                                       12
                                                                        
  1    orders for scope of treatment (POST) form is  appropriate  in  cases  where  a
  2    patient  has  an  incurable or irreversible injury, disease, illness or condi-
  3    tion, or where a patient is in a persistent vegetative state. A POST  form  is
  4    also appropriate if such conditions are anticipated.
  5        (2)  The  POST  form  shall be effective from the date of execution unless
  6    otherwise revoked. If there is  a  conflict  between  the  person's  expressed
  7    directives,  the POST form, and the decisions of the durable power of attorney
  8    representative or surrogate, the orders contained in the POST  form  shall  be
  9    followed.
 10        (3)  The  attending  physician shall, upon request of the patient, provide
 11    the patient with a copy of the POST form, discuss with the patient the  form's
 12    content and ramifications and treatment options, and assist the patient in the
 13    completion of the form.
 14        (4)  The attending physician shall review the POST form:
 15        (a)  Each time the physician examines the patient, or at least every seven
 16        (7) days, for patients who are hospitalized; and
 17        (b)  Each  time  the  patient  is transferred from one (1) care setting or
 18        care level to another; and
 19        (c)  Any time there is a substantial change in the patient's  health  sta-
 20        tus; and
 21        (d)  Any time the patient's treatment preferences change.
 22    Failure  to  meet  these  review  requirements does not affect the POST form's
 23    validity or enforceability. As conditions warrant, the physician may  issue  a
 24    superseding  POST  form. The physician shall, whenever practical, consult with
 25    the patient or the patient's agent.
 26        (5)  A patient who has completed a POST form signed  by  a  physician  may
 27    wear  a  POST  identification device as provided in section 39-4502(13), Idaho
 28    Code.
 29        (6)  The department of health and welfare shall develop the POST form.
                                                                        
 30        SECTION 14.  That Chapter 45, Title 39, Idaho Code, be, and  the  same  is
 31    hereby  amended by the addition thereto of a NEW SECTION, to be known and des-
 32    ignated as Section 39-4512B, Idaho Code, and to read as follows:
                                                                        
 33        39-4512B.  ADHERENCE TO PHYSICIAN ORDERS FOR  SCOPE  OF  TREATMENT  (POST)
 34    PROTOCOL.  (1)  Health care providers and emergency medical services personnel
 35    shall comply with a patient's physician orders for scope of  treatment  (POST)
 36    instruction when presented with a completed POST form signed by a physician or
 37    when a patient is wearing a proper POST identification device pursuant to sec-
 38    tion 39-4512A(5), Idaho Code.
 39        (2)  A  completed  POST form is deemed to meet the requirements of "Do Not
 40    Resuscitate (DNR)" forms of all Idaho  health  care  facilities.  Health  care
 41    providers  and emergency medical services personnel shall not require the com-
 42    pletion of other forms in order for the patient's wishes to be respected.
                                                                        
 43        SECTION 15.  That Chapter 45, Title 39, Idaho Code, be, and  the  same  is
 44    hereby  amended by the addition thereto of a NEW SECTION, to be known and des-
 45    ignated as Section 39-4512C, Idaho Code, and to read as follows:
                                                                        
 46        39-4512C.  DUTY TO INSPECT. Health care providers  and  emergency  medical
 47    services  personnel shall make reasonable efforts to inquire as to whether the
 48    patient has completed a physician orders for scope of  treatment  (POST)  form
 49    and inspect the patient for a POST identification device when presented with a
 50    situation  calling  for  artificial  life-sustaining  treatment  not caused by
 51    severe trauma or involving mass casualties and with no indication of  homicide
                                                                        
                                       13
                                                                        
  1    or suicide.
                                                                        
  2        SECTION  16.  That Section 39-4513, Idaho Code, be, and the same is hereby
  3    amended to read as follows:
                                                                        
  4        39-4513.  IMMUNITY. (1) No emergency medical services personnel, or health
  5    care provider, facility, or individual employed by, acting as the agent of, or
  6    under contract with any such health care provider or facility shall be civilly
  7    or criminally liable or subject to discipline for unprofessional  conduct  for
  8    acts  or  omissions  carried  out  or  performed in good faith pursuant to the
  9    directives in a facially valid living will or by  the  holder  of  a  facially
 10    valid  durable  power of attorney or directive for health care. if the medical
 11    personnel or health care facility acts in good faith.
 12        (2)  Any physician or other health care provider who for ethical  or  pro-
 13    fessional  reasons  is incapable or unwilling to conform to the desires of the
 14    patient as expressed by the procedures set forth in this chapter may  withdraw
 15    without  incurring  any  civil or criminal liability provided the physician or
 16    other health care provider, before withdrawal of  his  or  her  participation,
 17    makes  a  good faith effort to assist the patient in obtaining the services of
 18    another physician or other health care provider before withdrawal who is will-
 19    ing to provide care for the patient in accordance with the patient's expressed
 20    or documented wishes.
 21        (3)  No person who exercises the responsibilities of a  durable  power  of
 22    attorney  for  health care in good faith shall be subject to civil or criminal
 23    liability as a result.
 24        (4)  Neither the registration of a health care  directive  in  the  health
 25    care  directive registry under section 39-4515, Idaho Code, nor the revocation
 26    of such a directive requires a health care  provider  to  request  information
 27    from  that registry. The decision of a health  care provider to request or not
 28    to request a health care directive document from the registry shall be  immune
 29    from  civil  or  criminal  liability. A health care provider who in good faith
 30    acts in reliance on a facially valid health care directive received  from  the
 31    health  care directive registry shall be immune from civil or criminal liabil-
 32    ity for those acts done in such reliance.
 33        (5)  Health care providers and emergency medical  services  personnel  may
 34    disregard the POST form or a POST identification device:
 35        (a)  If they believe in good faith that the order has been revoked; or
 36        (b)  To avoid oral or physical confrontation; or
 37        (c)  If ordered to do so by the attending physician.
                                                                        
 38        SECTION  17.  That Section 39-4514, Idaho Code, be, and the same is hereby
 39    amended to read as follows:
                                                                        
 40        39-4514.  GENERAL PROVISIONS. (1) Application. This chapter shall have  no
 41    effect  or  be  in  any  manner  construed to apply to persons not executing a
 42    "Lliving Wwill and Ddurable Ppower of Aattorney for Hhealth Care" care or POST
 43    form pursuant to this chapter nor shall it in any manner affect the rights  of
 44    any  such persons or of others acting for or on behalf of such persons to give
 45    or refuse to give consent or withhold consent for any  medical  care,  neither
 46    shall  this  chapter  be construed to affect chapter 3 or chapter 4, title 66,
 47    Idaho Code, in any manner.
 48        (2)  The making of a "Living Will and Durable Power of Attorney for Health
 49    Care" pursuant to this chapter shall not restrict, inhibit or  impair  in  any
 50    manner  the sale, procurement or issuance of any policy of life insurance, nor
 51    shall it be deemed to modify the terms of an existing policy  of  life  insur-
                                                                        
                                       14
                                                                        
  1    ance.  No policy of life insurance shall be legally impaired or invalidated in
  2    any manner by the withholding or withdrawal of artificial life-sustaining pro-
  3    cedures from an insured patient, notwithstanding any term of the policy to the
  4    contrary Euthanasia, mercy killing, or assisted suicide. This chapter does not
  5    make legal, and in no way condones, euthanasia,  mercy  killing,  or  assisted
  6    suicide  or  permit  an affirmative or deliberate act or omission to end life,
  7    other than to allow the natural process of dying.
  8        (3)  No physician, health facility or other health care  provider  and  no
  9    health  care  service plan, insurer issuing disability insurance, self-insured
 10    employee plan, welfare benefit plan or nonprofit hospital service  plan  shall
 11    require any person to execute a "Living Will and Durable Power of Attorney for
 12    Health  Care"  as a condition for being insured for, or receiving, health care
 13    services Comfort care. Individuals caring for a patient  for  whom  artificial
 14    life-sustaining   procedures   or   artificially  administered  nutrition  and
 15    hydration are withheld or withdrawn shall provide comfort care as  defined  in
 16    section 39-4502, Idaho Code.
 17        (4)  Presumed consent to resuscitation. There is a presumption in favor of
 18    consent to cardiopulmonary resuscitation (CPR) unless:
 19        (a)  A  completed  living  will  for that person is in effect, pursuant to
 20        section 39-4510, Idaho Code, and the person is in a terminal condition  or
 21        persistent vegetative state; or
 22        (b)  A completed durable power of attorney for health care for that person
 23        is in effect, pursuant to section 39-4510, Idaho Code, in which the person
 24        has  indicated that he or she does not wish to receive cardiopulmonary re-
 25        suscitation, or his or her representative has determined that  the  person
 26        would not wish to receive cardiopulmonary resuscitation; or
 27        (c)  The  patient  has a completed physician orders for scope of treatment
 28        (POST) form indicating otherwise and/or proper POST identification  pursu-
 29        ant to section 39-4502(13), Idaho Code.
 30        (5)  Futile  care.  Nothing  in this chapter shall be construed to require
 31    medical treatment that is medically inappropriate or futile.
 32        (6)  Existing directives and directives from other states. A  health  care
 33    directive  executed  prior  to July 1, 2007, but which was in the living will,
 34    durable power of attorney for health care, DNR, or POST form pursuant to prior
 35    Idaho law at the time of execution, or in another form that contained the ele-
 36    ments set forth in this chapter at the time of execution, shall be  deemed  to
 37    be  in  compliance  with this chapter. Health care directives or similar docu-
 38    ments executed in another state that substantially comply  with  this  chapter
 39    shall be deemed to be in compliance with this chapter.
 40        (7)  Insurance.
 41        (a)  The  making  of  a  living  will and/or durable power of attorney for
 42        health care or physician orders for scope of treatment (POST) form  pursu-
 43        ant  to  this  chapter shall not restrict, inhibit or impair in any manner
 44        the sale, procurement or issuance of any policy  of  life  insurance,  nor
 45        shall  it  be  deemed  to  modify  the terms of an existing policy of life
 46        insurance. No policy of life insurance shall be legally impaired or inval-
 47        idated in any manner by the withholding or withdrawal of artificial  life-
 48        sustaining procedures from an insured patient, notwithstanding any term of
 49        the policy to the contrary.
 50        (b)  No  physician, health care facility or other health care provider and
 51        no  health  care  service  plan,  insurer  issuing  disability  insurance,
 52        self-insured employee plan, welfare benefit  plan  or  nonprofit  hospital
 53        service plan shall require any person to execute a living will and durable
 54        power  of attorney for health care or physician orders for scope of treat-
 55        ment (POST) form as a condition  for  being  insured  for,  or  receiving,
                                                                        
                                       15
                                                                        
  1        health care services.
  2        (8)  Portability and copies.
  3        (a)  A  completed  physician  orders  for  scope  of treatment (POST) form
  4        signed by a physician shall be transferred with the  patient  to,  and  be
  5        effective  in, all care settings including, but not limited to, home care,
  6        ambulance or other transport, hospital,  residential  care  facility,  and
  7        hospice  care.  The  POST  form  shall remain in effect until such time as
  8        there is a valid revocation pursuant to section 39-4511,  Idaho  Code,  or
  9        new orders are issued by a physician.
 10        (b)  A  photostatic,  facsimile  or  electronic  copy of a valid physician
 11        orders for scope of treatment (POST) form may be treated as an original by
 12        a health care provider or  by  an  institution  receiving  or  treating  a
 13        patient.
 14        (9)  Registration.  A  directive  or the revocation of a directive meeting
 15    the requirements of this chapter may be registered with the secretary of state
 16    pursuant to section 39-4515, Idaho Code. Failure to register the  health  care
 17    directive shall not affect the validity of the health care directive.
 18        (10) Rulemaking authority.
 19        (a)  The  department  of  health  and  welfare shall adopt those rules and
 20        protocols necessary to administer the provisions of this chapter.
 21        (b)  In the adoption of a physician orders for scope of  treatment  (POST)
 22        or  DNR protocol, the department shall adopt standardized POST identifica-
 23        tion to be used statewide.
                                                                        
 24        SECTION 18.  That Sections 56-1020 through 56-1035, Idaho  Code,  be,  and
 25    the same are hereby repealed.
                                                                        
 26        SECTION  19.  That  Section 66-405, Idaho Code, be, and the same is hereby
 27    amended to read as follows:
                                                                        
 28        66-405.  ORDER IN PROTECTIVE PROCEEDINGS. (1) If it is determined that the
 29    respondent is not developmentally disabled but appears in need  of  protective
 30    services,  the  court  may  cause the proceeding to be expanded or altered for
 31    consideration under the uniform probate code.
 32        (2)  If it is determined that the respondent is able to  manage  financial
 33    resources  and  meet essential requirements for physical health or safety, the
 34    court shall dismiss the petition.
 35        (3)  If it is determined that the respondent is  developmentally  disabled
 36    and  is  unable  to  manage  some  financial  resources or meet some essential
 37    requirements for physical health or safety, the court may  appoint  a  partial
 38    guardian  and/or  partial  conservator  on  behalf of the respondent. An order
 39    establishing partial guardianship or partial conservatorship shall define  the
 40    powers and duties of the partial guardian or partial conservator so as to per-
 41    mit  the  respondent  to  meet  essential  requirements for physical health or
 42    safety and to manage financial resources commensurate with his ability  to  do
 43    so,  and shall specify all legal restrictions to which he is subject. A person
 44    for whom  a partial guardianship or partial conservatorship has been appointed
 45    under this chapter retains all legal and civil rights except those which  have
 46    by  court  order  been  limited or which have been specifically granted to the
 47    partial guardian or partial conservator by the court.
 48        (4)  If it is determined that the respondent is  developmentally  disabled
 49    and is unable to manage financial resources or meet essential requirements for
 50    physical  health  or safety even with the appointment of a partial guardian or
 51    partial conservator, the court may appoint a total guardian and/or total  con-
 52    servator.
                                                                        
                                       16
                                                                        
  1        (5)  In  the  event  that  more  than one (1) person seeks to be appointed
  2    guardian and/or conservator, the court shall appoint  the  person  or  persons
  3    most  capable of serving on behalf of the respondent; the court shall not cus-
  4    tomarily or ordinarily appoint the department or  any  other  organization  or
  5    individual,  public  or private, that is or is likely to be providing services
  6    to the respondent.
  7        (6)  Subject to the limitations of the provisions  of  subsection  (7)  of
  8    this  section, guardians or conservators may have any of the duties and powers
  9    as provided in sections 15-5-312(a)(1) through  (4),  15-5-424  and  15-5-425,
 10    Idaho  Code,  and as specified in the order. Any order appointing a partial or
 11    total guardian or partial or total conservator under the  provisions  of  this
 12    section  must  require a report to the court at least annually. In addition to
 13    such other requirements imposed by law or order, the report shall include:
 14        (a)  A description of the respondent's current mental, physical and social
 15        condition;
 16        (b)  The respondent's present address and living arrangement;
 17        (c)  A description of any significant  changes  in  the  capacity  of  the
 18        respondent to meet essential requirements for physical health or safety or
 19        to manage financial resources;
 20        (d)  A description of services being provided the respondent;
 21        (e)  A description of significant actions taken by the guardian or conser-
 22        vator during the reporting period;
 23        (f)  Any significant problems relating to the guardianship or conservator-
 24        ship;
 25        (g)  A  complete  financial statement of the financial resources under the
 26        control or supervision of the guardian or conservator; and
 27        (h)  A description of the need for continued guardianship or  conservator-
 28        ship services.
 29        (7)  No  guardian appointed under this chapter shall have the authority to
 30    refuse or withhold consent for medically necessary treatment when  the  effect
 31    of  withholding such treatment would seriously endanger the life or health and
 32    well-being of the person with  a  developmental  disability.  To  withhold  or
 33    attempt  to withhold such treatment shall constitute neglect of the person and
 34    be cause for removal of the guardian. No physician or caregiver shall withhold
 35    or withdraw such treatment for a respondent whose condition is not terminal or
 36    whose death is not imminent. If the physician or caregiver cannot obtain valid
 37    consent for medically necessary treatment from the guardian, he shall  provide
 38    the  medically  necessary  treatment  as authorized by section 39-45034(1)(g),
 39    Idaho Code.
 40        (8)  A guardian appointed under this chapter may consent to withholding or
 41    withdrawal of artificial life-sustaining procedures, only if the respondent:
 42        (a)  Has an incurable injury, disease, illness or condition, certified  by
 43        the  respondent's attending physician and at least one (1) other physician
 44        to be terminal such that the  application  of  artificial  life-sustaining
 45        procedures  would not result in the possibility of saving or significantly
 46        prolonging the life of the respondent, and would only serve to prolong the
 47        moment of the respondent's death for a period of hours, days or weeks, and
 48        where both physicians certify that death is imminent, whether or  not  the
 49        life-sustaining procedures are used; or
 50        (b)  Has  been  diagnosed  by  the respondent's attending physician and at
 51        least one (1) other physician as being in a  persistent  vegetative  state
 52        which is irreversible and from which the respondent will never regain con-
 53        sciousness.
 54        (9)  Any person, who has information that medically necessary treatment of
 55    a  respondent  has  been withheld or withdrawn, may report such information to
                                                                        
                                       17
                                                                        
  1    adult protective services or to the Idaho protection and advocacy  system  for
  2    people with developmental disabilities, who shall have the authority to inves-
  3    tigate  the  report  and  in appropriate cases to seek a court order to ensure
  4    that medically necessary treatment is provided.
  5        If adult protective services or the protection and advocacy system  deter-
  6    mines  that  withholding  of medical treatment violates the provisions of this
  7    section, they may petition the court for an ex parte order to provide or  con-
  8    tinue  the medical treatment in question. If the court finds, based on affida-
  9    vits or other evidence, that there is probable cause to believe that the with-
 10    holding of medical treatment in a particular case violates the  provisions  of
 11    this  section,  and  that  the  life  or  health  of the patient is endangered
 12    thereby, the court shall issue an ex parte order to continue or to provide the
 13    treatment until such time as the court can  hear  evidence  from  the  parties
 14    involved.  Petitions for court orders under this section shall be expedited by
 15    the courts and heard as soon as possible. No bond shall be required of a peti-
 16    tioner under this section.
 17        (10) No  partial  or  total  guardian  or  partial  or  total  conservator
 18    appointed under the provisions of this section may without  specific  approval
 19    of the court in a proceeding separate from that in which such guardian or con-
 20    servator was appointed:
 21        (a)  Consent  to  medical or surgical treatment the effect of which perma-
 22        nently prohibits the conception of children by the respondent  unless  the
 23        treatment  or  procedures  are necessary to protect the physical health of
 24        the respondent and would be prescribed for a person who is not developmen-
 25        tally disabled;
 26        (b)  Consent to experimental surgery, procedures or medications; or
 27        (c)  Delegate the powers granted by the order.

Amendment


                                                                        
                                                                        
  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-ninth Legislature                   First Regular Session - 2007
                                                                        
                                                                        
                                                     Moved by    Rusche              
                                                                        
                                                     Seconded by Henbest             
                                                                        
                                                                        
                              IN THE HOUSE OF REPRESENTATIVES
                              HOUSE AMENDMENT TO H.B. NO. 119
                                                                        
  1                               AMENDMENT TO SECTION 16
  2        On page 13 of the printed bill, in line 9, following "valid" insert: "POST
  3    form or".

Engrossed Bill (Original Bill with Amendment(s) Incorporated)


                                                                        
                                                                        
  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-ninth Legislature                   First Regular Session - 2007
                                                                        
                                                                        
                              IN THE HOUSE OF REPRESENTATIVES
                                                                        
                               HOUSE BILL NO. 119, As Amended
                                                                        
                              BY HEALTH AND WELFARE COMMITTEE
                                                                        
  1                                        AN ACT
  2    RELATING TO MEDICAL CARE DECISIONS; AMENDING SECTION 39-4501, IDAHO  CODE,  TO
  3        PROVIDE  A  CODE  REFERENCE; AMENDING CHAPTER 45, TITLE 39, IDAHO CODE, BY
  4        THE ADDITION OF A NEW SECTION 39-4502, IDAHO CODE, TO DEFINE TERMS; AMEND-
  5        ING SECTION 39-4502, IDAHO CODE, TO REDESIGNATE THE SECTION AND TO  REVISE
  6        TERMINOLOGY; AMENDING SECTION 39-4503, IDAHO CODE, TO REDESIGNATE THE SEC-
  7        TION  AND  TO REVISE PROVISIONS APPLICABLE TO PERSONS WHO MAY GIVE CONSENT
  8        TO CARE FOR OTHERS; AMENDING SECTION 39-4504, IDAHO CODE,  TO  REDESIGNATE
  9        THE  SECTION  AND  TO  PROVIDE  A CORRECT CODE REFERENCE; AMENDING SECTION
 10        39-4505, IDAHO CODE, TO REDESIGNATE THE SECTION AND  TO  PROVIDE  FOR  THE
 11        REFUSAL  TO  CONSENT; AMENDING SECTION 39-4506, IDAHO CODE, TO REDESIGNATE
 12        THE SECTION AND TO PROVIDE FOR A SPECIFIC FORM OF EXPRESSION  RELATING  TO
 13        FORM  OF CONSENT; AMENDING SECTION 39-4507, IDAHO CODE, TO REDESIGNATE THE
 14        SECTION AND TO DELETE LANGUAGE REFERENCING LAY OR PROFESSIONAL  EMPLOYEES;
 15        AMENDING  SECTION  39-4508,  IDAHO  CODE,  TO  REDESIGNATE THE SECTION, TO
 16        REVISE DESCRIPTIVE LANGUAGE, TO REVISE THE  STATEMENT  OF  POLICY  AND  TO
 17        DEFINE  A TERM; REPEALING SECTION 39-4509, IDAHO CODE, RELATING TO DEFINI-
 18        TIONS; AMENDING SECTION 39-4510, IDAHO CODE, TO REVISE PROVISIONS APPLICA-
 19        BLE TO A LIVING WILL AND DURABLE POWER OF ATTORNEY FOR HEALTH CARE; AMEND-
 20        ING SECTION 39-4511, IDAHO CODE, TO REVISE PROVISIONS APPLICABLE TO  REVO-
 21        CATION;  AMENDING  CHAPTER  45, TITLE 39, IDAHO CODE, BY THE ADDITION OF A
 22        NEW SECTION 39-4512A, IDAHO CODE, TO  PROVIDE  FOR  PHYSICIAN  ORDERS  FOR
 23        SCOPE  OF  TREATMENT;  AMENDING  CHAPTER  45, TITLE 39, IDAHO CODE, BY THE
 24        ADDITION OF A NEW SECTION 39-4512B, IDAHO CODE, TO  SET  FORTH  PROVISIONS
 25        APPLICABLE  TO ADHERENCE TO PHYSICIAN ORDERS FOR SCOPE OF TREATMENT PROTO-
 26        COL; AMENDING CHAPTER 45, TITLE 39, IDAHO CODE, BY THE ADDITION OF  A  NEW
 27        SECTION  39-4512C, IDAHO CODE, TO PROVIDE A DUTY TO INSPECT; AMENDING SEC-
 28        TION 39-4513, IDAHO CODE,  TO  REVISE  PROVISIONS  RELATING  TO  IMMUNITY;
 29        AMENDING  SECTION  39-4514,  IDAHO  CODE,  TO  REVISE  GENERAL PROVISIONS;
 30        REPEALING SECTIONS 56-1020 THROUGH 56-1035, IDAHO CODE, RELATING TO  DECI-
 31        SIONS RELATIVE TO THE RENDERING OR WITHHOLDING OF MEDICAL CARE; AND AMEND-
 32        ING SECTION 66-405, IDAHO CODE, TO REVISE A CODE REFERENCE.
                                                                        
 33    Be It Enacted by the Legislature of the State of Idaho:
                                                                        
 34        SECTION  1.  That  Section 39-4501, Idaho Code, be, and the same is hereby
 35    amended to read as follows:
                                                                        
 36        39-4501.  PURPOSES -- APPLICATION. (1) The primary purposes of this  chap-
 37    ter are:
 38        (a)  To provide and codify Idaho law concerning consent for the furnishing
 39        of  hospital,  medical,  dental or surgical care, treatment or procedures,
 40        and concerning what constitutes an informed consent for such care,  treat-
 41        ment or procedures; and
 42        (b)  To provide certainty and clarity in the law of medical consent in the
 43        furtherance of high standards of health care and its ready availability in
                                                                        
                                       2
                                                                        
  1        proper cases.
  2        (2)  Nothing in this chapter shall be deemed to amend or repeal the provi-
  3    sions  of  chapter  3  or chapter 4, title 66, Idaho Code, as those provisions
  4    pertain to hospitalization of the mentally ill, nor the provisions of  chapter
  5    6,  title  18,  Idaho  Code, pertaining to the provision of examinations, pre-
  6    scriptions, devices and informational materials regarding prevention of  preg-
  7    nancy  or  pertaining  to therapeutic abortions and consent to the performance
  8    thereof.
  9        (3)  Nothing in this chapter shall be construed to permit or  require  the
 10    provision  of  health  care  for  a  patient in contravention of the patient's
 11    stated or implied objection thereto upon religious grounds nor shall  anything
 12    in  this  chapter be construed to require the granting of permission for or on
 13    behalf of any patient who is not able to act for himself by his parent, spouse
 14    or guardian in violation of the  religious  beliefs  of  the  patient  or  the
 15    patient's parent or spouse.
                                                                        
 16        SECTION  2.  That  Chapter  45,  Title 39, Idaho Code, be, and the same is
 17    hereby amended by the addition thereto of a NEW SECTION, to be known and  des-
 18    ignated as Section 39-4502, Idaho Code, and to read as follows:
                                                                        
 19        39-4502.  DEFINITIONS. As used in this chapter:
 20        (1)  "Artificial life-sustaining procedure" means any medical procedure or
 21    intervention  that  utilizes  mechanical  means to sustain or supplant a vital
 22    function which, when applied to a qualified patient, would serve only to arti-
 23    ficially prolong life. "Artificial life-sustaining procedure" does not include
 24    the administration of pain management medication or  the  performance  of  any
 25    medical  procedure  deemed  necessary  to provide comfort care or to alleviate
 26    pain.
 27        (2)  "Artificial nutrition and hydration" means supplying food  and  water
 28    through  a conduit, such as a tube or intravenous line, where the recipient is
 29    not required to chew or swallow voluntarily, but  does  not  include  assisted
 30    feeding, such as spoon feeding or bottle feeding.
 31        (3)  "Attending physician" means the physician licensed by the state board
 32    of  medicine  who is selected by, or assigned to, the patient and who has pri-
 33    mary responsibility for the treatment and care of the patient.
 34        (4)  "Cardiopulmonary resuscitation" or "CPR" means  measures  to  restore
 35    cardiac  function  and/or  to  support  ventilation in the event of cardiac or
 36    respiratory arrest.
 37        (5)  "Comfort care" means treatment and care to provide comfort and clean-
 38    liness. "Comfort care" includes:
 39        (a)  Oral and body hygiene;
 40        (b)  Reasonable efforts to offer food and fluids orally;
 41        (c)  Medication, positioning, warmth, appropriate lighting and other  mea-
 42        sures to relieve pain and suffering; and
 43        (d)  Privacy and respect for the dignity and humanity of the patient.
 44        (6)  "Consent  to  care"  includes refusal to consent to care and/or with-
 45    drawal of care.
 46        (7)  "Directive" or "health care directive" means a document  meeting  the
 47    requirements of section 39-4510(1), Idaho Code, and/or a "Physician Orders for
 48    Scope of Treatment (POST)" form signed by a physician.
 49        (8)  "Emergency  medical  services  personnel"  means personnel engaged in
 50    providing initial emergency medical assistance including, but not limited  to,
 51    first responders, emergency medical technicians and paramedics.
 52        (9)  "Health  care  provider"  or  "provider"  means  any person or entity
 53    licensed, certified, or otherwise authorized by law to administer health  care
                                                                        
                                       3
                                                                        
  1    in  the  ordinary  course  of  business or practice of a profession, including
  2    emergency or other medical services personnel.
  3        (10) "Persistent vegetative state" means an irreversible  state  that  has
  4    been  medically confirmed by a neurological specialist who is an expert in the
  5    examination of nonresponsive individuals in which the person has intact  brain
  6    stem  function  but  no  higher  cortical function and no awareness of self or
  7    environment.
  8        (11) "Physician" means a person who holds  a  current  active  license  to
  9    practice medicine and surgery or osteopathic medicine and surgery in Idaho and
 10    is  in  good standing with no restriction upon or actions taken against his or
 11    her license.
 12        (12) "Physician orders for scope of treatment (POST) form" means  a  stan-
 13    dardized  form  containing orders by a physician that states a person's treat-
 14    ment wishes.
 15        (13) "Physician  orders  for  scope  of  treatment  (POST)  identification
 16    device" means standardized jewelry which can be worn around the wrist, neck or
 17    ankle, and which has been approved by the department of health and welfare.
 18        (14) "Terminal condition" means an  incurable  or  irreversible  condition
 19    which,  without the administration of life-sustaining procedures, will, in the
 20    opinion of a physician, result in death if it runs its usual course.
                                                                        
 21        SECTION 3.  That Section 39-4502, Idaho Code, be, and the same  is  hereby
 22    amended to read as follows:
                                                                        
 23        39-45023.  PERSONS  WHO MAY CONSENT TO THEIR OWN CARE. Any person of ordi-
 24    nary intelligence and awareness sufficient for him or her generally to compre-
 25    hend the need for, the nature of and the significant risks ordinarily inherent
 26    in, any contemplated hospital, medical, dental or surgical care, treatment  or
 27    procedure is competent to consent thereto on his or her own behalf. Any physi-
 28    cian,  dentist,  hospital or other duly authorized person health care provider
 29    may provide such health care and services in reliance upon such a  consent  if
 30    the consenting person appears to the physician or dentist health care provider
 31    securing  the  consent to possess such requisite intelligence and awareness at
 32    the time of giving the consent.
                                                                        
 33        SECTION 4.  That Section 39-4503, Idaho Code, be, and the same  is  hereby
 34    amended to read as follows:
                                                                        
 35        39-45034.  PERSONS  WHO  MAY  GIVE CONSENT TO CARE FOR OTHERS. (1) Consent
 36    for the furnishing of hospital, medical, dental or surgical care, treatment or
 37    procedures to any person who is not then capable of  giving  such  consent  as
 38    provided in this chapter or who is a minor or incompetent person, may be given
 39    or  refused in the order of priority set forth hereafter unless the patient is
 40    a competent person who has refused to give such consent, and provided  further
 41    that  this  subsection shall not be deemed to authorize any person to override
 42    the express refusal by a competent patient to give such consent himself:
 43        (a)  The legal guardian of such person;
 44        (b)  The person named in a "Living Will and Durable Power of Attorney  for
 45        Health  Care"  pursuant to section 39-4510, Idaho Code, or a similar docu-
 46        ment authorized by this chapter;
 47        (c)  If married, the spouse of such person;
 48        (d)  A parent of such person;
 49        (e)  Any relative representing himself or herself to  be  an  appropriate,
 50        responsible person to act under the circumstances;
 51        (f)  Any  other competent individual representing himself or herself to be
                                                                        
                                       4
                                                                        
  1        responsible for the health care of such person; or
  2        (g)  If the subject person presents a medical emergency or there is a sub-
  3        stantial likelihood of his or her life or health  being  seriously  endan-
  4        gered  by withholding or delay in the rendering of such hospital, medical,
  5        dental or surgical care to such patient  and the subject  person  has  not
  6        communicated and is unable to communicate his or her treatment wishes, the
  7        attending  physician  or  dentist may, in his or her discretion, authorize
  8        and/or provide such care, treatment or procedure as he or she deems appro-
  9        priate, and all persons, agencies and institutions  thereafter  furnishing
 10        the same, including such physician or dentist, may proceed as if informed,
 11        valid consent therefor had been otherwise duly given.
 12        (2)  No  person who, in good faith, gives consent or authorization for the
 13    provision of hospital, medical, dental or surgical care, treatment  or  proce-
 14    dures to another as provided by this chapter shall be subject to civil liabil-
 15    ity therefor.
 16        (3)  No  physician,  dentist,  hospital  or  other  duly authorized person
 17    health care provider who, in good faith, obtains consent from a person  pursu-
 18    ant to either section 39-45023 or 39-45034(1), Idaho Code, shall be subject to
 19    civil liability therefor.
                                                                        
 20        SECTION  5.  That  Section 39-4504, Idaho Code, be, and the same is hereby
 21    amended to read as follows:
                                                                        
 22        39-45045.  BLOOD TESTING. (1) A physician may consent to ordering tests of
 23    a patient's or a deceased person's blood or other body fluids for the presence
 24    of blood-transmitted or body fluid-transmitted viruses or diseases without the
 25    prior consent of the patient if:
 26        (a)  There has been or is likely to  be  a  significant  exposure  to  the
 27        patient's  or a deceased person's blood or body fluids by a person provid-
 28        ing emergency or medical services to such patient which may result in  the
 29        transmittal of a virus or disease; and
 30        (b)  The  patient  is  unconscious or incapable of giving informed consent
 31        and the  physician  is  unable  to  obtain  consent  pursuant  to  section
 32        39-45034, Idaho Code.
 33        (2)  The department of health and welfare shall promulgate rules identify-
 34    ing  the  blood-transmitted  or body fluid-transmitted viruses or diseases for
 35    which blood tests or body fluid tests can be ordered under  this  section  and
 36    defining the term "significant exposure" as provided in this section.
 37        (3)  Results of tests conducted under this section which confirm the pres-
 38    ence  of  a blood-transmitted or body fluid-transmitted virus or disease shall
 39    be reported to the director of the department of health  and  welfare  in  the
 40    name of the patient or deceased person. The department records containing such
 41    test  results  shall  be used only by public health officials who must conduct
 42    investigations. The exposed person shall only be informed of  the  results  of
 43    the test and shall not be informed of the name of the patient or deceased per-
 44    son.  Protocols  shall be established by hospitals to maintain confidentiality
 45    while disseminating the necessary test result information to persons  who  may
 46    have  a  significant  exposure  to  blood or other body fluids and to maintain
 47    records of such tests to preserve the confidentiality of the test results.
 48        (4)  Any person who willfully or maliciously discloses the  results  of  a
 49    test  conducted under this section, except pursuant to a written authorization
 50    by the person whose blood was tested or by such person's authorized  represen-
 51    tative, or as otherwise authorized by law, shall be guilty of a misdemeanor.
                                                                        
 52        SECTION  6.  That  Section 39-4505, Idaho Code, be, and the same is hereby
                                                                        
                                       5
                                                                        
  1    amended to read as follows:
                                                                        
  2        39-45056.  SUFFICIENCY OF CONSENT. Consent, or refusal to consent, for the
  3    furnishing of hospital, medical, dental or surgical care, treatment or  proce-
  4    dures shall be valid in all respects if the person giving or refusing the con-
  5    sent  is  sufficiently  aware  of pertinent facts respecting the need for, the
  6    nature of, and the significant risks ordinarily attendant upon, such a patient
  7    receiving such care, as to permit the giving or withholding of such consent to
  8    be a reasonably informed decision. Any such consent shall be deemed valid  and
  9    so  informed  if the physician or dentist to whom it is given or by whom it is
 10    secured has made such disclosures and given such advice  respecting  pertinent
 11    facts  and considerations as would ordinarily be made and given under the same
 12    or similar circumstances, by a like physician  or  dentist  of  good  standing
 13    practicing  in  the  same community. As used in this section, the term "in the
 14    same community" refers to  that  geographic  area  ordinarily  served  by  the
 15    licensed general hospital at or nearest to which such consent is given.
                                                                        
 16        SECTION  7.  That  Section 39-4506, Idaho Code, be, and the same is hereby
 17    amended to read as follows:
                                                                        
 18        39-45067.  FORM OF CONSENT. It is not essential to  the  validity  of  any
 19    consent  for  the  furnishing  of  hospital, medical, dental or surgical care,
 20    treatment or procedures that the consent be in writing or any  other  specific
 21    form  of  expression;  provided  however,  when  the giving of such consent is
 22    recited or documented in writing and expressly authorizes the care,  treatment
 23    or procedures to be furnished, and when such writing or form has been executed
 24    or  initialed  by  a  person  competent  to  give  such consent for himself or
 25    another, such written consent, in the absence of convincing proof that it  was
 26    secured maliciously or by fraud, is presumed to be valid for the furnishing of
 27    such  care,  treatment  or  procedures,  and the advice and disclosures of the
 28    attending physician or dentist, as well as the level of informed awareness  of
 29    the giver of such consent, shall be presumed to be sufficient.
                                                                        
 30        SECTION  8.  That  Section 39-4507, Idaho Code, be, and the same is hereby
 31    amended to read as follows:
                                                                        
 32        39-45078.  RESPONSIBILITY FOR CONSENT AND DOCUMENTATION. Obtaining consent
 33    for health care is the duty of  the  attending  physician  or  dentist  or  of
 34    another physician or dentist acting on his or her behalf or actually providing
 35    the  contemplated  care,  treatment or procedure; provided however, a licensed
 36    hospital and any medical or dental office lay or professional employee, acting
 37    with the approval of such an attending or other physician or dentist, may per-
 38    form the ministerial act of documenting such consent by securing  the  comple-
 39    tion  and  execution of a form or statement in which the giving of consent for
 40    such care is documented by or on behalf of the patient. In performing  such  a
 41    ministerial  act, the hospital or medical or dental office lay or professional
 42    employee shall not be deemed to have engaged in the practice  of  medicine  or
 43    dentistry.
                                                                        
 44        SECTION  9.  That  Section 39-4508, Idaho Code, be, and the same is hereby
 45    amended to read as follows:
                                                                        
 46        39-45089.  STATEMENT OF POLICY -- DEFINITION.  For  purposes  of  sections
 47    39-45089 through 39-45145, Idaho Code:
 48        (1)  The  legislature finds that recognizes the established common law and
                                                                        
                                       6
                                                                        
  1    the fundamental right of adult persons have the fundamental right  to  control
  2    the  decisions  relating to the rendering of their medical care, including the
  3    decision to have life-sustaining procedures withheld or withdrawn. The  legis-
  4    lature  further  finds  that  modern  medical technology has made possible the
  5    artificial prolongation of human life beyond natural limits.  The  legislature
  6    further  finds  that  patients are sometimes unable to express their desire to
  7    withhold or withdraw such artificial life prolongation procedures  which  pro-
  8    vide  nothing  medically necessary or beneficial to the patient because of the
  9    patient's inability to communicate with the physician.
 10        (2)  In recognition of the dignity and privacy which patients have a right
 11    to expect, the legislature hereby declares that the laws of this  state  shall
 12    recognize  the right of a competent person to have his or her wishes for medi-
 13    cal treatment and for the withdrawal of artificial life-sustaining  procedures
 14    carried  out even though that person is no longer able to communicate with the
 15    physician.
 16        (3)  It is the intent of the legislature to establish an  effective  means
 17    for  such communication. It is not the intent of the legislature that the pro-
 18    cedures described in this chapter  sections  39-4509  through  39-4515,  Idaho
 19    Code,  are the only effective means of such communication, and nothing in this
 20    chapter sections 39-4509 through 39-4515, Idaho Code, shall impair  or  super-
 21    sede any legal right or legal responsibility which a person may have to effect
 22    the withholding or withdrawal of life-sustaining procedures in any lawful man-
 23    ner. Any authentic expression of a person's wishes with respect to health care
 24    should be honored.
 25        (4)  "Competent  person"  means  any  emancipated minor or person eighteen
 26    (18) or more years of age who is of sound mind.
                                                                        
 27        SECTION 10.  That Section 39-4509, Idaho Code, be, and the same is  hereby
 28    repealed.
                                                                        
 29        SECTION  11.  That Section 39-4510, Idaho Code, be, and the same is hereby
 30    amended to read as follows:
                                                                        
 31        39-4510.  LIVING WILL AND DURABLE POWER OF ATTORNEY FOR HEALTH  CARE.  (1)
 32    Any  competent person may execute a document known as a "Living Will and Dura-
 33    ble Power of Attorney for Health Care." Such document  shall  be  in  substan-
 34    tially  the  following form, or in another form that contains the elements set
 35    forth in this chapter. A "Living Will and Durable Power of Attorney for Health
 36    Care" executed prior to the effective date of this act, but which was  in  the
 37    "Living Will" and/or "Durable Power of Attorney for Health Care" form pursuant
 38    to prior Idaho law at the time of execution, or in another form that contained
 39    the  elements  set  forth  in  this chapter at the time of execution, shall be
 40    deemed to be in compliance with this chapter. A "Living Will and Durable Power
 41    of Attorney for Health Care" or similar document(s) executed in another  state
 42    which  substantially  complies with this chapter shall be deemed to be in com-
 43    pliance with this chapter. In this chapter, a "Living Will and  Durable  Power
 44    of Attorney for Health Care" may be referred to as a "directive." Any portions
 45    of  the  "Living Will and Durable Power of Attorney for Health Care" which are
 46    left blank by the person executing the document shall be deemed to  be  inten-
 47    tional and shall not invalidate the document.
                                                                        
 48              LIVING WILL AND DURABLE POWER OF ATTORNEY FOR HEALTH CARE
                                                                        
 49    Date of Directive:....................
                                                                        
                                       7
                                                                        
  1    Name of person executing Directive:...........................................
  2    Address of person executing Directive:........................................
                                                                        
  3                                    A LIVING WILL
  4                   A Directive to Withhold or to Provide Treatment
                                                                        
  5    1.  Being of sound mind, I willfully and voluntarily make known my desire that
  6    my  life shall not be prolonged artificially under the circumstances set forth
  7    below. This Directive shall only be effective if I am unable to communicate my
  8    instructions and:
  9        a.  I have an incurable or irreversible injury, disease, illness or condi-
 10        tion, and two (2) a medical doctors who have has examined me have has cer-
 11        tified:
 12             1.  That such injury, disease, illness or condition is terminal; and
 13             2.  That the application  of  artificial  life-sustaining  procedures
 14             would serve only to prolong artificially my life; and
 15             3.  That  my  death  is  imminent,  whether  or  not artificial life-
 16             sustaining procedures are utilized; or
 17        b.  I have been diagnosed as being in a persistent vegetative state.
 18    In such event, I direct that the following marked expression of my  intent  be
 19    followed,  and  that  I  receive  any  medical  treatment  or care that may be
 20    required to keep me free of pain or distress.
                                                                        
 21    Check one box and initial the line after such box:
                                                                        
 22        ........  I direct that all medical treatment, care and procedures  neces-
 23    sary  to  restore  my health, and sustain my life, and to abolish or alleviate
 24    pain or distress be provided to me. Nutrition and hydration,  whether  artifi-
 25    cial  or  nonartificial, shall not be withheld or withdrawn from me if I would
 26    likely die primarily from malnutrition or  dehydration  rather  than  from  my
 27    injury, disease, illness or condition.
                                                                        
 28    OR
                                                                        
 29        ........  I  direct  that  all  medical  treatment,  care  and procedures,
 30    including artificial life-sustaining procedures,  be  withheld  or  withdrawn,
 31    except that nutrition and hydration, whether artificial or nonartificial shall
 32    not  be withheld or withdrawn from me if, as a result, I would likely die pri-
 33    marily from malnutrition or dehydration rather than from my  injury,  disease,
 34    illness  or condition, as follows: (If none of the following boxes are checked
 35    and initialed, then both nutrition and hydration, of any nature, whether arti-
 36    ficial or nonartificial, shall be administered.)
                                                                        
 37    Check one box and initial the line after such box:
                                                                        
 38        A.        ........  Only hydration of any nature,  whether  artificial  or
 39                       nonartificial, shall be administered;
 40        B.        ........  Only  nutrition,  of any nature, whether artificial or
 41                       nonartificial, shall be administered;
 42        C.        ........  Both nutrition and hydration, of any  nature,  whether
 43                       artificial or nonartificial shall be administered.
                                                                        
 44    OR
                                                                        
 45        ........  I  direct  that  all  medical  treatment, care and procedures be
                                                                        
                                       8
                                                                        
  1    withheld or withdrawn, including withdrawal of the administration  of  artifi-
  2    cial nutrition and hydration.
                                                                        
  3    2.  This  Directive  shall be the final expression of my legal right to refuse
  4    or accept medical and surgical treatment, and I  accept  the  consequences  of
  5    such refusal or acceptance.
                                                                        
  6    3.  If  I  have been diagnosed as pregnant, this Directive shall have no force
  7    during the course of my pregnancy.
                                                                        
  8    43.  I understand the full importance of this Directive and am mentally compe-
  9    tent to make this Directive. No participant in the making of this Directive or
 10    in its being carried into effect shall be held responsible in any way for com-
 11    plying with my directions.
                                                                        
 12    4.  Check one box and initial the line after such box:
                                                                        
 13        ........  I have discussed these decisions with my physician and have also
 14    completed a Physician Orders for Scope of Treatment (POST) form that  contains
 15    directions  that  may  be  more  specific  than, but are compatible with, this
 16    Directive. I hereby approve of those orders and incorporate them herein as  if
 17    fully set forth.
                                                                        
 18    OR
                                                                        
 19        ........  I  have  not completed a Physician Orders for Scope of Treatment
 20    (POST) form. If a POST form is later signed by my physician, then this  living
 21    will  shall  be  deemed  modified  to be compatible with the terms of the POST
 22    form.
                                                                        
 23                     A DURABLE POWER OF ATTORNEY FOR HEALTH CARE
                                                                        
 24    1.  DESIGNATION OF HEALTH CARE AGENT. None of the following may be  designated
 25    as  your  agent:  (1)  your  treating  health care provider; (2) a nonrelative
 26    employee of your treating health care provider; (3) an operator of a community
 27    care facility; or (4) a nonrelative employee of an  operator  of  a  community
 28    care facility. If the agent or an alternate agent designated in this Directive
 29    is my spouse, and our marriage is thereafter dissolved, such designation shall
 30    be thereupon revoked.
                                                                        
 31    I  do  hereby designate and appoint the following individual as my attorney in
 32    fact (agent) to make health care decisions for me as authorized in this Direc-
 33    tive. (Insert name, address and telephone number of  one  individual  only  as
 34    your agent to make health care decisions for you.)
                                                                        
 35    Name of Health Care Agent: ...................................................
 36    Address of Health Care Agent: ................................................
 37    Telephone Number of Health Care Agent: .......................................
                                                                        
 38    For  the  purposes  of  this  Directive, "health care decision" means consent,
 39    refusal of consent, or withdrawal of consent to any care,  treatment,  service
 40    or  procedure  to  maintain, diagnose or treat an individual's physical condi-
 41    tion.
                                                                        
 42    2.  CREATION OF DURABLE POWER OF ATTORNEY FOR HEALTH CARE. By this portion  of
                                                                        
                                       9
                                                                        
  1    this  Directive,  I  create  a durable power of attorney for health care. This
  2    power of attorney shall not be affected  by  my  subsequent  incapacity.  This
  3    power shall be effective only when I am unable to communicate rationally.
                                                                        
  4    3.  GENERAL STATEMENT OF AUTHORITY GRANTED. Subject to any limitations in this
  5    Directive,  including  as set forth in paragraph 2 immediately above, I hereby
  6    grant to my agent full power and authority to make health care  decisions  for
  7    me to the same extent that I could make such decisions for myself if I had the
  8    capacity  to  do  so. In exercising this authority, my agent shall make health
  9    care decisions that are consistent with my desires as stated in this Directive
 10    or otherwise made known to my agent including, but not limited to, my  desires
 11    concerning obtaining or refusing or withdrawing artificial life-prolongingsus-
 12    taining  care,  treatment, services and procedures, including such desires set
 13    forth in a living will, Physician Orders for Scope of Treatment  (POST)  form,
 14    or  similar document executed by me, if any. (If you want to limit the author-
 15    ity of your agent to make health care decisions for you,  you  can  state  the
 16    limitations  in  paragraph  4  ("Statement of Desires, Special Provisions, and
 17    Limitations") below. You can indicate your desires by including a statement of
 18    your desires in the same paragraph.)
                                                                        
 19    4.  STATEMENT OF DESIRES, SPECIAL PROVISIONS,  AND  LIMITATIONS.  (Your  agent
 20    must  make  health care decisions that are consistent with your known desires.
 21    You can, but are not required to, state your desires  in  the  space  provided
 22    below.  You  should  consider  whether you want to include a statement of your
 23    desires concerning artificial life-prolongingsustaining care, treatment,  ser-
 24    vices  and  procedures.  You can also include a statement of your desires con-
 25    cerning other matters relating to your health care, including a list of one or
 26    more persons whom you designate to be  able  to  receive  medical  information
 27    about  you and/or to be allowed to visit you in a medical institution. You can
 28    also make your desires known to your agent by  discussing  your  desires  with
 29    your  agent  or  by some other means. If there are any types of treatment that
 30    you do not want to be used, you should state them in the space below.  If  you
 31    want  to  limit in any other way the authority given your agent by this Direc-
 32    tive, you should state the limits in the space below. If you do not state  any
 33    limits,  your  agent  will have broad powers to make health care decisions for
 34    you, except to the extent that there are limits provided by law.) In  exercis-
 35    ing  the  authority  under  this durable power of attorney for health care, my
 36    agent shall act consistently with my desires as stated below and is subject to
 37    the special provisions and limitations stated in my Physician Orders for Scope
 38    of Treatment (POST) form, a living will, or similar document executed  by  me,
 39    if any. Additional statement of desires, special provisions, and limitations:.
 40    .......(You may attach additional pages or documents if you need more space to
 41    complete your statement.)
                                                                        
 42    5.  INSPECTION AND DISCLOSURE OF INFORMATION RELATING TO MY PHYSICAL OR MENTAL
 43    HEALTH.
                                                                        
 44    A.  General Grant of Power and Authority. Subject to any limitations  in  this
 45    Directive,  my  agent  has the power and authority to do all of the following:
 46    (1) Request, review and receive any information, verbal or written,  regarding
 47    my physical or mental health including, but not limited to, medical and hospi-
 48    tal records; (2) Execute on my behalf any releases or other documents that may
 49    be required in order to obtain this information; (3) Consent to the disclosure
 50    of  this  information; and (4) Consent to the donation of any of my organs for
 51    medical purposes. (If you want to limit the authority of your agent to receive
                                                                        
                                       10
                                                                        
  1    and disclose information relating to your health, you must state  the  limita-
  2    tions  in  paragraph 4 ("Statement of Desires, Special Provisions, and Limita-
  3    tions") above.)
                                                                        
  4    B.  HIPAA Release Authority. My agent shall be treated  as  I  would  be  with
  5    respect to my rights regarding the use and disclosure of my individually iden-
  6    tifiable  health  information or other medical records. This release authority
  7    applies to any information governed by the Health  Insurance  Portability  and
  8    Accountability  Act  of  1996  (HIPAA), 42 U.S.C. 1320d and 45 CFR 160 through
  9    164. I authorize any physician,  health  care  professional,  dentist,  health
 10    plan,  hospital,  clinic,  laboratory,  pharmacy, or other covered health care
 11    provider, any insurance company, and the Medical Information Bureau,  Inc.  or
 12    other health care clearinghouse that has provided treatment or services to me,
 13    or that has paid for or is seeking payment from me for such services, to give,
 14    disclose  and release to my agent, without restriction, all of my individually
 15    identifiable health information and medical records regarding any past,  pres-
 16    ent  or  future  medical or mental health condition, including all information
 17    relating to the diagnosis of HIV/AIDS, sexually transmitted  diseases,  mental
 18    illness,  and drug or alcohol abuse. The authority given my agent shall super-
 19    sede any other agreement that I may have made with my health care providers to
 20    restrict access to or disclosure of my individually identifiable health infor-
 21    mation. The authority given my agent has no expiration date and  shall  expire
 22    only  in the event that I revoke the authority in writing and deliver it to my
 23    health care provider.
                                                                        
 24    6.  SIGNING DOCUMENTS, WAIVERS AND RELEASES. Where necessary to implement  the
 25    health  care  decisions that my agent is authorized by this Directive to make,
 26    my agent has the power and authority to execute on my behalf all of  the  fol-
 27    lowing: (a) Documents titled, or purporting to be, a "Refusal to Permit Treat-
 28    ment"  and/or  a "Leaving Hospital Against Medical Advice"; and (b) Any neces-
 29    sary waiver or release from liability required by a hospital or physician.
                                                                        
 30    7.  DESIGNATION OF ALTERNATE AGENTS. (You are not required  to  designate  any
 31    alternate  agents but you may do so. Any alternate agent you designate will be
 32    able to make the same health care decisions as the  agent  you  designated  in
 33    paragraph  1  above, in the event that agent is unable or ineligible to act as
 34    your agent. If an alternate agent you designate is  your  spouse,  he  or  she
 35    becomes  ineligible  to  act as your agent if your marriage is thereafter dis-
 36    solved.) If the person designated as my agent in paragraph 1 is not  available
 37    or becomes ineligible to act as my agent to make a health care decision for me
 38    or  loses  the  mental  capacity to make health care decisions for me, or if I
 39    revoke that person's appointment or authority  to act  as  my  agent  to  make
 40    health  care decisions for me, then I designate and appoint the following per-
 41    sons to serve as my agent to make health care decisions for me  as  authorized
 42    in this Directive, such persons to serve in the order listed below:
                                                                        
 43    A.  First Alternate Agent:
 44    Name..........................................................................
 45    Address.......................................................................
 46    Telephone Number..............................................................
                                                                        
 47    B.  Second Alternate Agent:
 48    Name..........................................................................
 49    Address.......................................................................
 50    Telephone Number..............................................................
                                                                        
                                       11
                                                                        
  1    C.  Third Alternate Agent:
  2    Name..........................................................................
  3    Address.......................................................................
  4    Telephone Number..............................................................
                                                                        
  5    8.  PRIOR  DESIGNATIONS  REVOKED. I revoke any prior durable power of attorney
  6    for health care.
                                                                        
  7    DATE AND SIGNATURE OF PRINCIPAL. (You must date and sign this Living Will  and
  8    Durable Power of Attorney for Health Care.)
                                                                        
  9    I  sign my name to this Statutory Form Living Will and Durable Power of Attor-
 10    ney for Health Care on the date set forth at the beginning  of  this  Form  at
 11    ............... (City, State)....................
                                                                        
 12    ..............................
 13    Signature
                                                                        
 14        (2)  A health care directive meeting the requirements of subsection (1) of
 15    this  section  may  be  registered with the secretary of state pursuant to the
 16    provisions of section 39-4515, Idaho Code. Failure to register the health care
 17    directive shall not affect the validity of the health care directive.
                                                                        
 18        SECTION 12.  That Section 39-4511, Idaho Code, be, and the same is  hereby
 19    amended to read as follows:
                                                                        
 20        39-4511.  REVOCATION.  (1)  A  "Lliving  Wwill  and  Ddurable    Ppower of
 21    Aattorney for Hhealth Ccare" or physician  orders  for    scope  of  treatment
 22    (POST) form may be revoked at any time by the maker thereof, without regard to
 23    his mental state or competence, by any of the following methods:
 24        (a)  By being canceled, defaced, obliterated or burned, torn, or otherwise
 25        destroyed  by  the maker thereof, or by some person in his presence and by
 26        his direction;
 27        (b)  By a written, signed revocation of the maker thereof  expressing  his
 28        intent to revoke; or
 29        (c)  By  an  oral expression by the maker thereof expressing his intent to
 30        revoke.
 31        (2)  The maker of the revoked living will and durable  power  of  attorney
 32    for health care is responsible for notifying his physician of the revocation.
 33        (3)  There shall be no criminal or civil liability on the part of any per-
 34    son  for the failure to act upon a revocation of a "Lliving Wwill and Ddurable
 35    Ppower of Aattorney for Hhealth Ccare" or physician orders for scope of treat-
 36    ment (POST) form made pursuant to this section unless that person  has  actual
 37    knowledge of the revocation.
 38        (3)  A  person  may register a revocation of a health care directive which
 39    meets the requirements of subsection (1)(b) of this section with the secretary
 40    of state pursuant to the provisions of section 39-4515, Idaho Code. Failure to
 41    register a revocation of the health care directive shall not affect the valid-
 42    ity of the revocation.
                                                                        
 43        SECTION 13.  That Chapter 45, Title 39, Idaho Code, be, and  the  same  is
 44    hereby  amended by the addition thereto of a NEW SECTION, to be known and des-
 45    ignated as Section 39-4512A, Idaho Code, and to read as follows:
                                                                        
 46        39-4512A.  PHYSICIAN ORDERS FOR SCOPE OF TREATMENT (POST). (1) A physician
                                                                        
                                       12
                                                                        
  1    orders for scope of treatment (POST) form is  appropriate  in  cases  where  a
  2    patient  has  an  incurable or irreversible injury, disease, illness or condi-
  3    tion, or where a patient is in a persistent vegetative state. A POST  form  is
  4    also appropriate if such conditions are anticipated.
  5        (2)  The  POST  form  shall be effective from the date of execution unless
  6    otherwise revoked. If there is  a  conflict  between  the  person's  expressed
  7    directives,  the POST form, and the decisions of the durable power of attorney
  8    representative or surrogate, the orders contained in the POST  form  shall  be
  9    followed.
 10        (3)  The  attending  physician shall, upon request of the patient, provide
 11    the patient with a copy of the POST form, discuss with the patient the  form's
 12    content and ramifications and treatment options, and assist the patient in the
 13    completion of the form.
 14        (4)  The attending physician shall review the POST form:
 15        (a)  Each time the physician examines the patient, or at least every seven
 16        (7) days, for patients who are hospitalized; and
 17        (b)  Each  time  the  patient  is transferred from one (1) care setting or
 18        care level to another; and
 19        (c)  Any time there is a substantial change in the patient's  health  sta-
 20        tus; and
 21        (d)  Any time the patient's treatment preferences change.
 22    Failure  to  meet  these  review  requirements does not affect the POST form's
 23    validity or enforceability. As conditions warrant, the physician may  issue  a
 24    superseding  POST  form. The physician shall, whenever practical, consult with
 25    the patient or the patient's agent.
 26        (5)  A patient who has completed a POST form signed  by  a  physician  may
 27    wear  a  POST  identification device as provided in section 39-4502(13), Idaho
 28    Code.
 29        (6)  The department of health and welfare shall develop the POST form.
                                                                        
 30        SECTION 14.  That Chapter 45, Title 39, Idaho Code, be, and  the  same  is
 31    hereby  amended by the addition thereto of a NEW SECTION, to be known and des-
 32    ignated as Section 39-4512B, Idaho Code, and to read as follows:
                                                                        
 33        39-4512B.  ADHERENCE TO PHYSICIAN ORDERS FOR  SCOPE  OF  TREATMENT  (POST)
 34    PROTOCOL.  (1)  Health care providers and emergency medical services personnel
 35    shall comply with a patient's physician orders for scope of  treatment  (POST)
 36    instruction when presented with a completed POST form signed by a physician or
 37    when a patient is wearing a proper POST identification device pursuant to sec-
 38    tion 39-4512A(5), Idaho Code.
 39        (2)  A  completed  POST form is deemed to meet the requirements of "Do Not
 40    Resuscitate (DNR)" forms of all Idaho  health  care  facilities.  Health  care
 41    providers  and emergency medical services personnel shall not require the com-
 42    pletion of other forms in order for the patient's wishes to be respected.
                                                                        
 43        SECTION 15.  That Chapter 45, Title 39, Idaho Code, be, and  the  same  is
 44    hereby  amended by the addition thereto of a NEW SECTION, to be known and des-
 45    ignated as Section 39-4512C, Idaho Code, and to read as follows:
                                                                        
 46        39-4512C.  DUTY TO INSPECT. Health care providers  and  emergency  medical
 47    services  personnel shall make reasonable efforts to inquire as to whether the
 48    patient has completed a physician orders for scope of  treatment  (POST)  form
 49    and inspect the patient for a POST identification device when presented with a
 50    situation  calling  for  artificial  life-sustaining  treatment  not caused by
 51    severe trauma or involving mass casualties and with no indication of  homicide
                                                                        
                                       13
                                                                        
  1    or suicide.
                                                                        
  2        SECTION  16.  That Section 39-4513, Idaho Code, be, and the same is hereby
  3    amended to read as follows:
                                                                        
  4        39-4513.  IMMUNITY. (1) No emergency medical services personnel, or health
  5    care provider, facility, or individual employed by, acting as the agent of, or
  6    under contract with any such health care provider or facility shall be civilly
  7    or criminally liable or subject to discipline for unprofessional  conduct  for
  8    acts  or  omissions  carried  out  or  performed in good faith pursuant to the
  9    directives in a facially valid POST form or living will or by the holder of  a
 10    facially  valid durable power of attorney or directive for health care. if the
 11    medical personnel or health care facility acts in good faith.
 12        (2)  Any physician or other health care provider who for ethical  or  pro-
 13    fessional  reasons  is incapable or unwilling to conform to the desires of the
 14    patient as expressed by the procedures set forth in this chapter may  withdraw
 15    without  incurring  any  civil or criminal liability provided the physician or
 16    other health care provider, before withdrawal of  his  or  her  participation,
 17    makes  a  good faith effort to assist the patient in obtaining the services of
 18    another physician or other health care provider before withdrawal who is will-
 19    ing to provide care for the patient in accordance with the patient's expressed
 20    or documented wishes.
 21        (3)  No person who exercises the responsibilities of a  durable  power  of
 22    attorney  for  health care in good faith shall be subject to civil or criminal
 23    liability as a result.
 24        (4)  Neither the registration of a health care  directive  in  the  health
 25    care  directive registry under section 39-4515, Idaho Code, nor the revocation
 26    of such a directive requires a health care  provider  to  request  information
 27    from  that registry. The decision of a health  care provider to request or not
 28    to request a health care directive document from the registry shall be  immune
 29    from  civil  or  criminal  liability. A health care provider who in good faith
 30    acts in reliance on a facially valid health care directive received  from  the
 31    health  care directive registry shall be immune from civil or criminal liabil-
 32    ity for those acts done in such reliance.
 33        (5)  Health care providers and emergency medical  services  personnel  may
 34    disregard the POST form or a POST identification device:
 35        (a)  If they believe in good faith that the order has been revoked; or
 36        (b)  To avoid oral or physical confrontation; or
 37        (c)  If ordered to do so by the attending physician.
                                                                        
 38        SECTION  17.  That Section 39-4514, Idaho Code, be, and the same is hereby
 39    amended to read as follows:
                                                                        
 40        39-4514.  GENERAL PROVISIONS. (1) Application. This chapter shall have  no
 41    effect  or  be  in  any  manner  construed to apply to persons not executing a
 42    "Lliving Wwill and Ddurable Ppower of Aattorney for Hhealth Care" care or POST
 43    form pursuant to this chapter nor shall it in any manner affect the rights  of
 44    any  such persons or of others acting for or on behalf of such persons to give
 45    or refuse to give consent or withhold consent for any  medical  care,  neither
 46    shall  this  chapter  be construed to affect chapter 3 or chapter 4, title 66,
 47    Idaho Code, in any manner.
 48        (2)  The making of a "Living Will and Durable Power of Attorney for Health
 49    Care" pursuant to this chapter shall not restrict, inhibit or  impair  in  any
 50    manner  the sale, procurement or issuance of any policy of life insurance, nor
 51    shall it be deemed to modify the terms of an existing policy  of  life  insur-
                                                                        
                                       14
                                                                        
  1    ance.  No policy of life insurance shall be legally impaired or invalidated in
  2    any manner by the withholding or withdrawal of artificial life-sustaining pro-
  3    cedures from an insured patient, notwithstanding any term of the policy to the
  4    contrary Euthanasia, mercy killing, or assisted suicide. This chapter does not
  5    make legal, and in no way condones, euthanasia,  mercy  killing,  or  assisted
  6    suicide  or  permit  an affirmative or deliberate act or omission to end life,
  7    other than to allow the natural process of dying.
  8        (3)  No physician, health facility or other health care  provider  and  no
  9    health  care  service plan, insurer issuing disability insurance, self-insured
 10    employee plan, welfare benefit plan or nonprofit hospital service  plan  shall
 11    require any person to execute a "Living Will and Durable Power of Attorney for
 12    Health  Care"  as a condition for being insured for, or receiving, health care
 13    services Comfort care. Individuals caring for a patient  for  whom  artificial
 14    life-sustaining   procedures   or   artificially  administered  nutrition  and
 15    hydration are withheld or withdrawn shall provide comfort care as  defined  in
 16    section 39-4502, Idaho Code.
 17        (4)  Presumed consent to resuscitation. There is a presumption in favor of
 18    consent to cardiopulmonary resuscitation (CPR) unless:
 19        (a)  A  completed  living  will  for that person is in effect, pursuant to
 20        section 39-4510, Idaho Code, and the person is in a terminal condition  or
 21        persistent vegetative state; or
 22        (b)  A completed durable power of attorney for health care for that person
 23        is in effect, pursuant to section 39-4510, Idaho Code, in which the person
 24        has  indicated that he or she does not wish to receive cardiopulmonary re-
 25        suscitation, or his or her representative has determined that  the  person
 26        would not wish to receive cardiopulmonary resuscitation; or
 27        (c)  The  patient  has a completed physician orders for scope of treatment
 28        (POST) form indicating otherwise and/or proper POST identification  pursu-
 29        ant to section 39-4502(13), Idaho Code.
 30        (5)  Futile  care.  Nothing  in this chapter shall be construed to require
 31    medical treatment that is medically inappropriate or futile.
 32        (6)  Existing directives and directives from other states. A  health  care
 33    directive  executed  prior  to July 1, 2007, but which was in the living will,
 34    durable power of attorney for health care, DNR, or POST form pursuant to prior
 35    Idaho law at the time of execution, or in another form that contained the ele-
 36    ments set forth in this chapter at the time of execution, shall be  deemed  to
 37    be  in  compliance  with this chapter. Health care directives or similar docu-
 38    ments executed in another state that substantially comply  with  this  chapter
 39    shall be deemed to be in compliance with this chapter.
 40        (7)  Insurance.
 41        (a)  The  making  of  a  living  will and/or durable power of attorney for
 42        health care or physician orders for scope of treatment (POST) form  pursu-
 43        ant  to  this  chapter shall not restrict, inhibit or impair in any manner
 44        the sale, procurement or issuance of any policy  of  life  insurance,  nor
 45        shall  it  be  deemed  to  modify  the terms of an existing policy of life
 46        insurance. No policy of life insurance shall be legally impaired or inval-
 47        idated in any manner by the withholding or withdrawal of artificial  life-
 48        sustaining procedures from an insured patient, notwithstanding any term of
 49        the policy to the contrary.
 50        (b)  No  physician, health care facility or other health care provider and
 51        no  health  care  service  plan,  insurer  issuing  disability  insurance,
 52        self-insured employee plan, welfare benefit  plan  or  nonprofit  hospital
 53        service plan shall require any person to execute a living will and durable
 54        power  of attorney for health care or physician orders for scope of treat-
 55        ment (POST) form as a condition  for  being  insured  for,  or  receiving,
                                                                        
                                       15
                                                                        
  1        health care services.
  2        (8)  Portability and copies.
  3        (a)  A  completed  physician  orders  for  scope  of treatment (POST) form
  4        signed by a physician shall be transferred with the  patient  to,  and  be
  5        effective  in, all care settings including, but not limited to, home care,
  6        ambulance or other transport, hospital,  residential  care  facility,  and
  7        hospice  care.  The  POST  form  shall remain in effect until such time as
  8        there is a valid revocation pursuant to section 39-4511,  Idaho  Code,  or
  9        new orders are issued by a physician.
 10        (b)  A  photostatic,  facsimile  or  electronic  copy of a valid physician
 11        orders for scope of treatment (POST) form may be treated as an original by
 12        a health care provider or  by  an  institution  receiving  or  treating  a
 13        patient.
 14        (9)  Registration.  A  directive  or the revocation of a directive meeting
 15    the requirements of this chapter may be registered with the secretary of state
 16    pursuant to section 39-4515, Idaho Code. Failure to register the  health  care
 17    directive shall not affect the validity of the health care directive.
 18        (10) Rulemaking authority.
 19        (a)  The  department  of  health  and  welfare shall adopt those rules and
 20        protocols necessary to administer the provisions of this chapter.
 21        (b)  In the adoption of a physician orders for scope of  treatment  (POST)
 22        or  DNR protocol, the department shall adopt standardized POST identifica-
 23        tion to be used statewide.
                                                                        
 24        SECTION 18.  That Sections 56-1020 through 56-1035, Idaho  Code,  be,  and
 25    the same are hereby repealed.
                                                                        
 26        SECTION  19.  That  Section 66-405, Idaho Code, be, and the same is hereby
 27    amended to read as follows:
                                                                        
 28        66-405.  ORDER IN PROTECTIVE PROCEEDINGS. (1) If it is determined that the
 29    respondent is not developmentally disabled but appears in need  of  protective
 30    services,  the  court  may  cause the proceeding to be expanded or altered for
 31    consideration under the uniform probate code.
 32        (2)  If it is determined that the respondent is able to  manage  financial
 33    resources  and  meet essential requirements for physical health or safety, the
 34    court shall dismiss the petition.
 35        (3)  If it is determined that the respondent is  developmentally  disabled
 36    and  is  unable  to  manage  some  financial  resources or meet some essential
 37    requirements for physical health or safety, the court may  appoint  a  partial
 38    guardian  and/or  partial  conservator  on  behalf of the respondent. An order
 39    establishing partial guardianship or partial conservatorship shall define  the
 40    powers and duties of the partial guardian or partial conservator so as to per-
 41    mit  the  respondent  to  meet  essential  requirements for physical health or
 42    safety and to manage financial resources commensurate with his ability  to  do
 43    so,  and shall specify all legal restrictions to which he is subject. A person
 44    for whom  a partial guardianship or partial conservatorship has been appointed
 45    under this chapter retains all legal and civil rights except those which  have
 46    by  court  order  been  limited or which have been specifically granted to the
 47    partial guardian or partial conservator by the court.
 48        (4)  If it is determined that the respondent is  developmentally  disabled
 49    and is unable to manage financial resources or meet essential requirements for
 50    physical  health  or safety even with the appointment of a partial guardian or
 51    partial conservator, the court may appoint a total guardian and/or total  con-
 52    servator.
                                                                        
                                       16
                                                                        
  1        (5)  In  the  event  that  more  than one (1) person seeks to be appointed
  2    guardian and/or conservator, the court shall appoint  the  person  or  persons
  3    most  capable of serving on behalf of the respondent; the court shall not cus-
  4    tomarily or ordinarily appoint the department or  any  other  organization  or
  5    individual,  public  or private, that is or is likely to be providing services
  6    to the respondent.
  7        (6)  Subject to the limitations of the provisions  of  subsection  (7)  of
  8    this  section, guardians or conservators may have any of the duties and powers
  9    as provided in sections 15-5-312(a)(1) through  (4),  15-5-424  and  15-5-425,
 10    Idaho  Code,  and as specified in the order. Any order appointing a partial or
 11    total guardian or partial or total conservator under the  provisions  of  this
 12    section  must  require a report to the court at least annually. In addition to
 13    such other requirements imposed by law or order, the report shall include:
 14        (a)  A description of the respondent's current mental, physical and social
 15        condition;
 16        (b)  The respondent's present address and living arrangement;
 17        (c)  A description of any significant  changes  in  the  capacity  of  the
 18        respondent to meet essential requirements for physical health or safety or
 19        to manage financial resources;
 20        (d)  A description of services being provided the respondent;
 21        (e)  A description of significant actions taken by the guardian or conser-
 22        vator during the reporting period;
 23        (f)  Any significant problems relating to the guardianship or conservator-
 24        ship;
 25        (g)  A  complete  financial statement of the financial resources under the
 26        control or supervision of the guardian or conservator; and
 27        (h)  A description of the need for continued guardianship or  conservator-
 28        ship services.
 29        (7)  No  guardian appointed under this chapter shall have the authority to
 30    refuse or withhold consent for medically necessary treatment when  the  effect
 31    of  withholding such treatment would seriously endanger the life or health and
 32    well-being of the person with  a  developmental  disability.  To  withhold  or
 33    attempt  to withhold such treatment shall constitute neglect of the person and
 34    be cause for removal of the guardian. No physician or caregiver shall withhold
 35    or withdraw such treatment for a respondent whose condition is not terminal or
 36    whose death is not imminent. If the physician or caregiver cannot obtain valid
 37    consent for medically necessary treatment from the guardian, he shall  provide
 38    the  medically  necessary  treatment  as authorized by section 39-45034(1)(g),
 39    Idaho Code.
 40        (8)  A guardian appointed under this chapter may consent to withholding or
 41    withdrawal of artificial life-sustaining procedures, only if the respondent:
 42        (a)  Has an incurable injury, disease, illness or condition, certified  by
 43        the  respondent's attending physician and at least one (1) other physician
 44        to be terminal such that the  application  of  artificial  life-sustaining
 45        procedures  would not result in the possibility of saving or significantly
 46        prolonging the life of the respondent, and would only serve to prolong the
 47        moment of the respondent's death for a period of hours, days or weeks, and
 48        where both physicians certify that death is imminent, whether or  not  the
 49        life-sustaining procedures are used; or
 50        (b)  Has  been  diagnosed  by  the respondent's attending physician and at
 51        least one (1) other physician as being in a  persistent  vegetative  state
 52        which is irreversible and from which the respondent will never regain con-
 53        sciousness.
 54        (9)  Any person, who has information that medically necessary treatment of
 55    a  respondent  has  been withheld or withdrawn, may report such information to
                                                                        
                                       17
                                                                        
  1    adult protective services or to the Idaho protection and advocacy  system  for
  2    people with developmental disabilities, who shall have the authority to inves-
  3    tigate  the  report  and  in appropriate cases to seek a court order to ensure
  4    that medically necessary treatment is provided.
  5        If adult protective services or the protection and advocacy system  deter-
  6    mines  that  withholding  of medical treatment violates the provisions of this
  7    section, they may petition the court for an ex parte order to provide or  con-
  8    tinue  the medical treatment in question. If the court finds, based on affida-
  9    vits or other evidence, that there is probable cause to believe that the with-
 10    holding of medical treatment in a particular case violates the  provisions  of
 11    this  section,  and  that  the  life  or  health  of the patient is endangered
 12    thereby, the court shall issue an ex parte order to continue or to provide the
 13    treatment until such time as the court can  hear  evidence  from  the  parties
 14    involved.  Petitions for court orders under this section shall be expedited by
 15    the courts and heard as soon as possible. No bond shall be required of a peti-
 16    tioner under this section.
 17        (10) No  partial  or  total  guardian  or  partial  or  total  conservator
 18    appointed under the provisions of this section may without  specific  approval
 19    of the court in a proceeding separate from that in which such guardian or con-
 20    servator was appointed:
 21        (a)  Consent  to  medical or surgical treatment the effect of which perma-
 22        nently prohibits the conception of children by the respondent  unless  the
 23        treatment  or  procedures  are necessary to protect the physical health of
 24        the respondent and would be prescribed for a person who is not developmen-
 25        tally disabled;
 26        (b)  Consent to experimental surgery, procedures or medications; or
 27        (c)  Delegate the powers granted by the order.

Statement of Purpose / Fiscal Impact



                       STATEMENT OF PURPOSE

                             RS 16757

Last year, the legislature adopted House Concurrent Resolution 40
("HCR4O"), which directed the Department of Health and Welfare
and the Attorney General to develop a form that could replace "do
not resuscitate" ("DNR") orders used at hospitals and other
health care institutions within the State of Idaho. HCR4O also
directed the Department of Health and Welfare and the Attorney
General to suggest necessary statutory changes to allow for the
adoption of such a form. This legislation is in response to
HCR4O. The physician orders for scope of treatment ("POST") form
envisioned by this legislation would be recognized by all medical
care providers and health institutions within the State of Idaho.
The POST form provides greater flexibility over the old DNR forms
and, more importantly, provides a high degree of portability. In
other words, the POST form stays with the patient, rather than
staying with the institution. Another advantage to the POST form
is that it is signed by both the doctor and the patient or the
patient s health care agent. Both the doctor and the patient are
involved in the process that results in the issuance of the POST.

The POST form does not replace a living will, although it does
replace the statutes on DNR orders. While health care
institutions may continue to utilize their own DNR orders within
the confines of the institution, the POST form proposed by this
legislation is intended to be portable. It is hoped that the POST
form will become the standard DNR form.


                           FISCAL NOTE

None.


                                 

Contact
Name:  Bill von Tagen,
       Office of the Attorney General 
Phone: 208 334-4140


STATEMENT OF PURPOSE/FISCAL NOTE                         H 119