§ 39-4501. Purposes — Application.

1. The primary purposes of this chapter are:
   1. To provide and codify Idaho law concerning consent for the furnishing of hospital, medical, dental, surgical and other health care, treatment or procedures, and concerning what constitutes an informed consent for such health care, treatment or procedures; and
   2. To provide certainty and clarity in the law of medical consent in the furtherance of high standards of health care and its ready availability in proper cases.
2. Nothing in this chapter shall be deemed to amend or repeal the provisions of chapter 3 or chapter 4, title 66, Idaho Code, as those provisions pertain to hospitalization or commitment of people with mental illness or developmental disability or the powers of guardians of developmentally disabled persons, nor the provisions of chapter 6, title 18, Idaho Code, pertaining to the provision of examinations, prescriptions, devices and informational materials regarding prevention of pregnancy or pertaining to therapeutic abortions and consent to the performance thereof.
3. Nothing in this chapter shall be construed to permit or require the provision of health care for a patient in contravention of the patient’s stated or implied objection thereto upon religious grounds nor shall anything in this chapter be construed to require the granting of permission for or on behalf of any patient who is not able to act for himself by his parent, spouse or guardian in violation of the religious beliefs of the patient or the patient’s parent or spouse.

§ 39-4502. Definitions.

As used in this chapter:

1. “Advanced practice professional nurse” (APPN) means a professional nurse licensed in this state who has gained additional specialized knowledge, skills and experience through a nationally accredited program of study as defined by section 54-1402, Idaho Code, and is authorized to perform advanced nursing practice, which may include direct client care such as assessing, diagnosing, planning and prescribing pharmacologic and nonpharmacologic therapeutic and corrective measures, health promotion and preventive care as defined by rules of the board of nursing. The advanced practice professional nurse collaborates with other health professionals in providing health care.
2. “Artificial life-sustaining procedure” means any medical procedure or intervention that utilizes mechanical means to sustain or supplant a vital function which, when applied to a qualified patient, would serve only to artificially prolong life. “Artificial life-sustaining procedure” does not include the administration of pain management medication or the performance of any medical procedure deemed necessary to provide comfort care or to alleviate pain.
3. “Artificial nutrition and hydration” means supplying food and water through a conduit, such as a tube or intravenous line, where the recipient is not required to chew or swallow voluntarily, but does not include assisted feeding, such as spoon feeding or bottle feeding.
4. “Attending physician” means the physician licensed by the state board of medicine who is selected by, or assigned to, the patient and who has primary responsibility for the treatment and care of the patient.
5. “Cardiopulmonary resuscitation” or “CPR” means measures to restore cardiac function and/or to support ventilation in the event of cardiac or respiratory arrest.
6. “Comfort care” means treatment and care to provide comfort and cleanliness. “Comfort care” includes:
   1. Oral and body hygiene;
   2. Reasonable efforts to offer food and fluids orally;
   3. Medication, positioning, warmth, appropriate lighting and other measures to relieve pain and suffering; and
   4. Privacy and respect for the dignity and humanity of the patient.
7. “Consent to care” includes refusal to consent to care and/or withdrawal of care.
8. “Directive,” “advance directive” or “health care directive” means a document that substantially meets the requirements of section 39-4510(1), Idaho Code, or is a “Physician Orders for Scope of Treatment” (POST) form or is another document which represents a competent person’s authentic expression of such person’s wishes concerning his or her health care.
9. “Emergency medical services personnel” means personnel engaged in providing initial emergency medical assistance including, but not limited to, first responders, emergency medical technicians and paramedics.
10. “Health care provider” or “provider” means any person or entity licensed, certified, or otherwise authorized by law to administer health care in the ordinary course of business or practice of a profession, including emergency or other medical services personnel. (11) “Persistent vegetative state” means an irreversible state that has been medically confirmed by a neurological specialist who is an expert in the examination of nonresponsive individuals in which the person has intact brain stem function but no higher cortical function and no awareness of self or environment.
11. “Persistent vegetative state” means an irreversible state that has been medically confirmed by a neurological specialist who is an expert in the examination of nonresponsive individuals in which the person has intact brain stem function but no higher cortical function and no awareness of self or environment.
12. “Physician” means a person who holds a current active license to practice medicine and surgery or osteopathic medicine and surgery in Idaho and is in good standing with no restriction upon or actions taken against his or her license.
13. “Physician assistant” (PA) means any person, as defined in section 54-1803, Idaho Code, who is qualified by specialized education, training, experience and personal character and who has been licensed by the board of medicine to render patient services under the direction of a supervising and alternate supervising physician.
14. “Physician orders for scope of treatment (POST) form” means a form that satisfies the requirements of section 39-4512A, Idaho Code.
15. “Physician orders for scope of treatment (POST) identification device” means standardized jewelry which can be worn around the wrist, neck or ankle, and which has been approved by the department of health and welfare. Such jewelry shall be issued only to persons who have a POST form complying with section 39-4512A, Idaho Code, stating that such person has chosen “Do Not Resuscitate: Allow Natural Death (No Code/DNR/DNAR): No CPR or advanced cardiac life support interventions” or the equivalent choice.
16. “Surrogate decision maker” means the person authorized to consent to or refuse health care for another person as specified in section 39-4504(1), Idaho Code.
17. “Terminal condition” means an incurable or irreversible condition which, without the administration of life-sustaining procedures, will, in the opinion of a physician, result in death if it runs its usual course.

§ 39-4503. Persons who may consent to their own care.

Any person, including one who is developmentally disabled and not a respondent as defined in section 66-402, Idaho Code, who comprehends the need for, the nature of and the significant risks ordinarily inherent in any contemplated hospital, medical, dental, surgical or other health care, treatment or procedure is competent to consent thereto on his or her own behalf. Any health care provider may provide such health care and services in reliance upon such a consent if the consenting person appears to the health care provider securing the consent to possess such requisite comprehension at the time of giving the consent.

§ 39-4504. Persons who may give consent to care for others.

1. Consent for the furnishing of hospital, medical, dental, surgical or other health care, treatment or procedures to any person who is not then capable of giving such consent as provided in this chapter or who is a minor may be given or refused in the order of priority set forth hereafter; provided however, that the surrogate decision maker shall have sufficient comprehension as required to consent to his or her own health care pursuant to the provisions of section 39-4503, Idaho Code; and provided further that the surrogate decision maker shall not have authority to consent to or refuse health care contrary to such person’s advance directives, POST or wishes expressed by such person while the person was capable of consenting to his or her own health care:
   1. The court appointed guardian of such person;
   2. The person named in another person’s “Living Will and Durable Power of Attorney for Health Care” pursuant to section 39-4510, Idaho Code, or a similar document authorized by this chapter if the conditions in such living will for authorizing the agent to act have been satisfied;
   3. If married, the spouse of such person;
   4. An adult child of such person;
   5. A parent of such person;
   6. The person named in a delegation of parental authority executed pursuant to section 15-5-104, Idaho Code;
   7. Any relative of such person who represents himself or herself to be an appropriate, responsible person to act under the circumstances;
   8. Any other competent individual representing himself or herself to be responsible for the health care of such person; or
2. No person who, in good faith, gives consent or authorization for the provision of hospital, medical, dental, surgical or other health care, treatment or procedures to another person as provided by this chapter shall be subject to civil liability therefor.
3. No health care provider who, in good faith, obtains consent from a person pursuant to either section 39-4503 or 39-4504(1), Idaho Code, shall be subject to civil liability therefor.

§ 39-4505. Blood testing.

1. A physician may consent to ordering tests of a patient’s or a deceased person’s blood or other body fluids for the presence of blood-transmitted or body fluid-transmitted viruses or diseases without the prior consent of the patient if:
   1. There has been or is likely to be a significant exposure to the patient’s or a deceased person’s blood or body fluids by a person providing emergency or medical services to such patient which may result in the transmittal of a virus or disease; and
   2. The patient is unconscious or incapable of giving informed consent and the physician is unable to obtain consent pursuant to section 39-4504, Idaho Code.
2. The department of health and welfare shall promulgate rules identifying the blood-transmitted or body fluid-transmitted viruses or diseases for which blood tests or body fluid tests can be ordered under this section and defining the term “significant exposure” as provided in this section.
3. Results of tests conducted under this section which confirm the presence of a blood-transmitted or body fluid-transmitted virus or disease shall be reported to the director of the department of health and welfare in the name of the patient or deceased person. The department records containing such test results shall be used only by public health officials who must conduct investigations. The exposed person shall only be informed of the results of the test and shall not be informed of the name of the patient or deceased person. Protocols shall be established by hospitals to maintain confidentiality while disseminating the necessary test result information to persons who may have a significant exposure to blood or other body fluids and to maintain records of such tests to preserve the confidentiality of the test results.
4. Any person who willfully or maliciously discloses the results of a test conducted under this section, except pursuant to a written authorization by the person whose blood was tested or by such person’s authorized representative, or as otherwise authorized by law, shall be guilty of a misdemeanor.

§ 39-4506. Sufficiency of consent.

Consent, or refusal to consent, for the furnishing of health care, treatment or procedures shall be valid in all respects if the person giving or refusing the consent is sufficiently aware of pertinent facts respecting the need for, the nature of, and the significant risks ordinarily attendant upon such a person receiving such care, as to permit the giving or withholding of such consent to be a reasonably informed decision. Any such consent shall be deemed valid and so informed if the health care provider to whom it is given or by whom it is secured has made such disclosures and given such advice respecting pertinent facts and considerations as would ordinarily be made and given under the same or similar circumstances, by a like health care provider of good standing practicing in the same community. As used in this section, the term “in the same community” refers to that geographic area ordinarily served by the licensed general hospital at or nearest to which such consent is given.

§ 39-4507. Form of consent.

It is not essential to the validity of any consent for the furnishing of hospital, medical, dental or surgical care, treatment or procedures that the consent be in writing or any other specific form of expression; provided however, when the giving of such consent is recited or documented in writing and expressly authorizes the care, treatment or procedures to be furnished, and when such writing or form has been executed or initialed by a person competent to give such consent for himself or another, such written consent, in the absence of convincing proof that it was secured maliciously or by fraud, is presumed to be valid for the furnishing of such care, treatment or procedures, and the advice and disclosures of the attending physician or dentist, as well as the level of informed awareness of the giver of such consent, shall be presumed to be sufficient.

§ 39-4508. Responsibility for consent and documentation.

Obtaining sufficient consent for health care is the duty of the attending health care provider upon whose order or at whose direction the contemplated health care, treatment or procedure is rendered; provided however, a licensed hospital and any employee of a health care provider, acting with the approval of such an attending or other individual health care provider, may perform the ministerial act of documenting such consent by securing the completion and execution of a form or statement in which the giving of consent for such care is documented by or on behalf of the person. In performing such a ministerial act, the hospital or health care provider employee shall not be deemed to have engaged in the practice of medicine or dentistry.

§ 39-4509. Statement of policy — Definition.

For purposes of sections 39-4509 through 39-4515, Idaho Code:

1. The legislature recognizes the established common law and the fundamental right of competent persons to control the decisions relating to the rendering of their medical care, including the decision to have life-sustaining procedures withheld or withdrawn. The legislature further finds that modern medical technology has made possible the artificial prolongation of human life beyond natural limits. The legislature further finds that persons are sometimes unable to express their desire to withhold or withdraw such artificial life prolongation procedures which provide nothing medically necessary or beneficial to the person because of the person’s inability to communicate with the health care provider.
2. In recognition of the dignity and privacy which persons have a right to expect, the legislature hereby declares that the laws of this state shall recognize the right of a competent person to have his or her wishes for medical treatment and for the withdrawal of artificial life-sustaining procedures carried out even though that person is no longer able to communicate with the health care provider.
3. It is the intent of the legislature to establish an effective means for such communication. It is not the intent of the legislature that the procedures described in sections 39-4509 through 39-4515, Idaho Code, are the only effective means of such communication, and nothing in sections 39-4509 through 39-4515, Idaho Code, shall impair or supersede any legal right or legal responsibility which a person may have to effect the withholding or withdrawal of life-sustaining procedures in any lawful manner, provided that this sentence shall not be construed to authorize any violation of section 39-4514(3), Idaho Code. Any authentic expression of a person’s wishes with respect to health care should be honored.
4. “Competent person” means any person who meets the requirements of section 39-4503, Idaho Code.

§ 39-4510. Living will and durable power of attorney for health care.

1. Any competent person may execute a document known as a “Living Will and Durable Power of Attorney for Health Care.” Such document shall be in substantially the following form, or in another form that contains the elements set forth in this chapter. Any portions of the “Living Will and Durable Power of Attorney for Health Care” which are left blank by the person executing the document shall be deemed to be intentional and shall not invalidate the document.

§ 39-4511. [Amended and Redesignated.]

§ 39-4511A. Revocation of advance directive.

1. A living will and durable power of attorney for health care or physician orders for scope of treatment (POST) form or other advance directive may be revoked at any time by the maker thereof by any of the following methods:
   1. By being intentionally canceled, defaced, obliterated or burned, torn, or otherwise destroyed by the maker thereof, or by some person in his presence and by his direction;
   2. By a written, signed revocation of the maker thereof expressing his intent to revoke;
   3. By an oral expression by the maker thereof expressing his intent to revoke; or
   4. By any other action that clearly manifests the maker’s intent to revoke the advance directive.
2. The maker of the revoked advance directive is responsible for notifying his health care provider of the revocation. A health care provider who does not have actual knowledge of the revocation is entitled to rely on an otherwise apparently valid advance directive as though it had not been revoked.
3. There shall be no criminal or civil liability on the part of any person for the failure to act upon a revocation of a living will and durable power of attorney for health care, physician orders for scope of treatment (POST) form or other advance directive made pursuant to this chapter unless that person has actual knowledge of the revocation.

§ 39-4511B. Suspension of advance directive.

1. A living will and durable power of attorney for health care, physician orders for scope of treatment (POST) form or other advance directive may be suspended at any time by the maker thereof by any of the following methods:
   1. By a written, signed suspension by the maker thereof expressing his intent to suspend;
   2. By an oral expression by the maker thereof expressing his intent to suspend; or
   3. By any other action that clearly manifests the maker’s intent to suspend the advance directive.
2. A health care provider who does not have actual knowledge of the suspension is entitled to rely on an otherwise apparently valid advance directive as though it had not been suspended.
3. Upon meeting the termination terms of the suspension, as defined by the written or oral expression by the maker, the conditions set forth in the living will and durable power of attorney, physician orders for scope of treatment (POST) or other advance directive will resume.

§ 39-4512. Execution of living will and durable power of attorney for health care.

A “Living Will and Durable Power of Attorney for Health Care” shall be effective from the date of execution unless otherwise revoked. Nothing in this chapter shall be construed to prevent a competent person from reexecuting a “Living Will and Durable Power of Attorney for Health Care” at any time.

§ 39-4512A. Physician orders for scope of treatment (POST).

1. A physician orders for scope of treatment (POST) form is a health care provider order signed by a physician or by a PA or by an APPN. The POST form must also be signed by the person, or it must be signed by the person’s surrogate decision maker provided that the POST form is not contrary to the person’s last known expressed wishes or directions.
2. The POST form shall be effective from the date of execution unless suspended or revoked.
3. The attending physician, APPN or PA shall, upon request of the person or the person’s surrogate decision maker, provide the person or the person’s surrogate decision maker with a copy of the POST form, discuss with the person or the person’s surrogate decision maker the form’s content and ramifications and treatment options, and assist the person or the person’s surrogate decision maker in the completion of the form.
4. The attending physician, APPN or PA shall review the POST form:
   1. Each time the physician, APPN or PA examines the person, or at least every seven (7) days, for persons who are hospitalized; and
   2. Each time the person is transferred from one (1) care setting or care level to another; and
   3. Any time there is a substantial change in the person’s health status; and
   4. Any time the person’s treatment preferences change.
5. A person who has completed a POST form pursuant to the provisions of this section or for whom a POST form has been completed at the request of his or her surrogate decision maker may wear a POST identification device as provided in section 39-4502(15), Idaho Code.
6. The department of health and welfare shall develop the POST form.

Failure to meet these review requirements does not affect the POST form’s validity or enforceability. As conditions warrant, the physician, APPN or PA may issue a superseding POST form. The physician, APPN or PA shall, whenever practical, consult with the person or the person’s surrogate decision maker.

§ 39-4512B. Adherence to physician orders for scope of treatment (POST) protocol.

1. Health care providers and emergency medical services personnel shall comply with a person’s physician orders for scope of treatment (POST) instruction when presented with a POST form that meets the requirements of section 39-4512A, Idaho Code, or when a person is wearing a proper POST identification device pursuant to section 39-4512A(5), Idaho Code.
2. A POST form that meets the requirements of section 39-4512A, Idaho Code, is deemed to meet the requirements of “Do Not Resuscitate (DNR)” orders at all Idaho health care facilities. Health care providers and emergency medical services personnel shall not require the completion of other forms in order for the person’s wishes to be respected.
3. Nothing in this chapter is intended to nor shall it prevent physicians or other health care providers from executing or utilizing DNR orders consistent with their licensure; provided however, that if the person or person’s surrogate decision maker chooses to utilize the POST form, the health care provider shall accept and comply with the POST form and shall not require the completion of a DNR order in addition to a valid POST form.

§ 39-4512C. Duty to inspect.

Health care providers and emergency medical services personnel shall make reasonable efforts to inquire as to whether the patient has completed a physician orders for scope of treatment (POST) form and inspect the patient for a POST identification device when presented with a situation calling for artificial life-sustaining treatment not caused by severe trauma or involving mass casualties and with no indication of homicide or suicide.

§ 39-4513. Immunity.

1. No emergency medical services personnel, health care provider, facility, or individual employed by, acting as the agent of, or under contract with any such health care provider or facility shall be civilly or criminally liable or subject to discipline for unprofessional conduct for acts or omissions carried out or performed in good faith pursuant to the directives in a facially valid POST form, living will, DNR order or other health care directive, or pursuant to a POST identification device as provided for in section 39-4512A(5), Idaho Code.
2. Any physician or other health care provider who for ethical or professional reasons is incapable or unwilling to conform to the desires of the person who may give consent to care for the patient under section 39-4504, Idaho Code, as expressed by the procedures set forth in this chapter may, subject to the requirements of section 39-4514(3), Idaho Code, withdraw without incurring any civil or criminal liability provided the physician or other health care provider, before withdrawal of his or her participation, makes a good faith effort to assist the person in obtaining the services of another physician or other health care provider who is willing to provide care for the person in accordance with the person’s expressed or documented wishes.
3. No person who exercises the responsibilities of a durable power of attorney for health care in good faith shall be subject to civil or criminal liability as a result.
4. Neither the registration of a health care directive in the health care directive registry under section 39-4515, Idaho Code, nor the revocation of such a directive requires a health care provider to request information from that registry. The decision of a health care provider to request or not to request a health care directive document from the registry shall be immune from civil or criminal liability. A health care provider who in good faith acts in reliance on a facially valid health care directive received from the health care directive registry shall be immune from civil or criminal liability for those acts done in such reliance.
5. Health care providers and emergency medical services personnel may disregard the POST form or a POST identification device or a DNR order:
   1. If they believe in good faith that the order has been revoked; or
   2. To avoid oral or physical confrontation; or
   3. If ordered to do so by the attending physician.

§ 39-4514. General provisions.

1. Application. Except as specifically provided herein, sections 39-4510 through 39-4512B, Idaho Code, shall have no effect or be in any manner construed to apply to persons not executing a living will and durable power of attorney for health care, POST form or other health care directive pursuant to this chapter nor shall these sections in any manner affect the rights of any such persons or of others acting for or on behalf of such persons to give or refuse to give consent or withhold consent for any medical care; neither shall sections 39-4510 through 39-4512B, Idaho Code, be construed to affect chapter 3 or chapter 4, title 66, Idaho Code, in any manner.
2. Euthanasia, mercy killing, or assisted suicide. This chapter does not make legal, and in no way condones, euthanasia, mercy killing, or assisted suicide or permit an affirmative or deliberate act or omission to end life, including any act or omission described in section 18-4017, Idaho Code, other than to allow the natural process of dying.
3. Withdrawal of care. Assisted feeding or artificial nutrition and hydration may not be withdrawn or denied if its provision is directed by a competent patient in accordance with section 39-4503, Idaho Code, by a patient’s health care directive under section 39-4510, Idaho Code, or by a patient’s surrogate decision-maker in accordance with section 39-4504, Idaho Code. Health care necessary to sustain life or to provide appropriate comfort for a patient other than assisted feeding or artificial nutrition and hydration may not be withdrawn or denied if its provision is directed by a competent patient in accordance with section 39-4503, Idaho Code, by a patient’s health care directive under section 39-4510, Idaho Code, or by a patient’s surrogate decision-maker in accordance with section 39-4504, Idaho Code, unless such care would be futile care as defined in subsection (6) of this section. Except as specifically provided in chapters 3 and 4, title 66, Idaho Code, health care, assisted feeding or artificial nutrition and hydration, the denial of which is directed by a competent patient in accordance with section 39-4503, Idaho Code, by a patient’s health care directive under section 39-4510, Idaho Code, or by a patient’s surrogate decision-maker in accordance with section 39-4504, Idaho Code, shall be withdrawn and denied in accordance with a valid directive. This subsection does not require provision of treatment to a patient if it would require denial of the same or similar treatment to another patient.
4. Comfort care. Persons caring for a person for whom artificial life-sustaining procedures or artificially administered nutrition and hydration are withheld or withdrawn shall provide comfort care as defined in section 39-4502, Idaho Code.
5. Presumed consent to resuscitation. There is a presumption in favor of consent to cardiopulmonary resuscitation (CPR) unless:
   1. CPR is contrary to the person’s advance directive and/or POST;
   2. The person’s surrogate decision-maker has communicated the person’s unconditional wishes not to receive CPR;
   3. The person’s surrogate decision-maker has communicated the person’s conditional wishes not to receive CPR and those conditions have been met;
   4. The person has a proper POST identification device pursuant to section 39-4502(15), Idaho Code; or (e) The attending health care provider has executed a DNR order consistent with the person’s prior expressed wishes or the directives of the legally authorized surrogate decision-maker.
6. Futile care. Nothing in this chapter shall be construed to require medical treatment that is medically inappropriate or futile; provided that this subsection does not authorize any violation of subsection (3) of this section. Futile care does not include comfort care. Futile care is a course of treatment:
   1. For a patient with a terminal condition for whom, in reasonable medical judgment, death is imminent within hours or at most a few days whether or not the medical treatment is provided and that, in reasonable medical judgment, will not improve the patient’s condition; or
   2. The denial of which in reasonable medical judgment will not result in or hasten the patient’s death.
7. Existing directives and directives from other states. A health care directive executed prior to July 1, 2012, but which was in the living will, durable power of attorney for health care, DNR, or POST form pursuant to prior Idaho law at the time of execution, or in another form that contained the elements set forth in this chapter at the time of execution, shall be deemed to be in compliance with this chapter. Health care directives or similar documents executed in another state that substantially comply with this chapter shall be deemed to be in compliance with this chapter. This section shall be liberally construed to give the effect to any authentic expression of the person’s prior wishes or directives concerning his or her health care.
8. Insurance.
   1. The making of a living will and/or durable power of attorney for health care, physician orders for scope of treatment (POST) form, or DNR order pursuant to this chapter shall not restrict, inhibit or impair in any manner the sale, procurement or issuance of any policy of life insurance, nor shall it be deemed to modify the terms of an existing policy of life insurance. No policy of life insurance shall be legally impaired or invalidated in any manner by the withholding or withdrawal of artificial life-sustaining procedures from an insured person, notwithstanding any term of the policy to the contrary.
   2. No physician, health care facility or other health care provider and no health care service plan, insurer issuing disability insurance, self-insured employee plan, welfare benefit plan or nonprofit hospital service plan shall require any person to execute a living will and durable power of attorney for health care or physician orders for scope of treatment (POST) form, or DNR order as a condition for being insured for, or receiving, health care services.
9. Portability and copies.
   1. A physician orders for scope of treatment (POST) form that meets the requirements of section 39-4512A, Idaho Code, shall be transferred with the person to, and be effective in, all care settings including, but not limited to, home care, ambulance or other transport, hospital, residential care facility, and hospice care. The POST form shall remain in effect until such time as there is a valid revocation pursuant to section 39-4511A, Idaho Code, or new orders are issued by a physician, APPN or PA.
   2. A photostatic, facsimile or electronic copy of a valid physician orders for scope of treatment (POST) form may be treated as an original by a health care provider or by an institution receiving or treating a person.
10. Registration. A directive or the revocation of a directive meeting the requirements of this chapter may be registered with the department of health and welfare pursuant to section 39-4515, Idaho Code. Failure to register the health care directive shall not affect the validity of the health care directive. (11) Rulemaking authority.
    1. The department of health and welfare shall adopt those rules and protocols necessary to administer the provisions of this chapter.
    2. In the adoption of a physician orders for scope of treatment (POST) or DNR protocol, the department shall adopt standardized POST identification devices to be used statewide.

§ 39-4515. Health care directive registry.

1. The department of health and welfare shall create and maintain a health care directive registry. The health care directive registry shall be accessible through a web-based platform. The information contained in such registry shall include: the full name of the person executing the health care directive as stated in the directive, a file identification number unique to the person executing the directive, and the date the directive was executed. The registry shall be made available twenty-four (24) hours a day, seven (7) days a week and shall incorporate directives previously submitted to the secretary of state.
2. The registry established under this section shall be accessible only by entering the identification file number and the assigned password on the health care directive registry.
3. The department of health and welfare and those granted access to the health care directive registry shall use information contained in the registry only for purposes prescribed in this section. No person granted access to the registry shall use the information for commercial solicitations or in any fraudulent or improper way. Any commercial solicitation or fraudulent or improper use of information contained in the registry shall constitute a violation of this section and a violation of the Idaho consumer protection act.
4. The department of health and welfare is not required to review a health care directive or revocation thereof to ensure that the document complies with any applicable and statutory requirements. Entry of a document into the health care directive registry pursuant to this section does not create a presumption favoring the validity of the document.
5. The department of health and welfare shall delete a health care directive and the informational registration form from the health care directive registry when the department of health and welfare receives:
   1. Written notification to remove a health care directive signed by the maker thereof or that person’s legal representative along with the identification file number and assigned password; or
   2. Verification from the bureau of vital records and health statistics of the department of health and welfare that the person who executed the health care directive is deceased. The deletion under this paragraph shall be performed not less than once every two (2) years.
6. Neither the department of health and welfare nor the state of Idaho shall be subject to civil liability for any claims or demands arising out of the administration or operation of the health care directive registry. (7) There is hereby created in the state treasury the health care directive registry fund, the moneys of which shall be continuously appropriated, administered by the department of health and welfare, and used to support, promote and maintain the health care directive registry. The fund shall consist of fees paid by persons registering health care directives under this section and income from investment from the fund, gifts, grants, bequests and other forms of voluntary donations. On notice from the department of health and welfare, the state treasurer shall invest and divest moneys in the fund, and moneys earned from such investment shall be credited to the fund.

A person may register with the department of health and welfare a health care directive or a revocation of a health care directive by submitting the directive or revocation, completing and submitting an informational registration form as required by the department of health and welfare, and paying the department the fee that the department may require for registering a health care directive. The person may register either online or by submitting the registration form in the mail. The person who submits a document for registration pursuant to this section by mail shall provide a return address.

The department of health and welfare may charge and collect a fee not to exceed ten dollars ($10.00) for the filing of a health care directive. All fees collected for the filing of a health care directive shall be deposited into the health care directive registry fund. No fee shall be charged for revoking a health care directive.

§ 39-4516. Life-sustaining treatment for unemancipated minors.

1. This section shall be known and may be cited as “Simon’s Law.”
2. As used in this section:
   1. “Order not to resuscitate” means a physician’s order that resuscitative measures shall not be provided to a person under a physician’s care in the event the person is found to have cardiopulmonary cessation. “Order not to resuscitate” shall include but is not limited to physician orders written as “do not resuscitate,” “do not allow resuscitation,” “do not allow resuscitative measures,” “DNAR,” “DNR,” “allow natural death,” or “AND”;
   2. “Reasonable medical judgment” means a medical judgment that would be made by a reasonably prudent health care provider who is knowledgeable about a patient’s case and the treatment possibilities with respect to the medical conditions involved; and
   3. “Unemancipated minor” means a minor who is not married or is not in active military service.
3. An order not to resuscitate, an order to withhold artificial life-sustaining procedures, an order to withhold artificial nutrition and hydration, and a similar physician’s order shall not be instituted, either orally or in writing, unless at least one (1) parent or legal guardian of an unemancipated minor who is a patient or resident of a hospital or health care facility under whose care the unemancipated minor has been admitted has first been notified of the physician’s intent to institute such an order, and reasonable attempts have been made to notify any other parent or legal guardian, provided such parent or guardian is reasonably available and has custodial or visitation rights. Such notification must be provided both orally and in writing to at least one (1) parent or legal guardian of the unemancipated minor patient unless, in the physician’s reasonable medical judgment, the urgency of the decision requires reliance on only providing the information orally. Such notification must also include informing the parent or legal guardian of the forty-eight (48) hour provision in subsection (5) of this section. Unless the parent or legal guardian agrees with the implementation of the following orders, an order not to resuscitate, an order to withhold artificial life-sustaining procedures, an order to withhold artificial nutrition and hydration, or a similar physician’s order shall not be instituted, either orally or in writing, until at least forty-eight (48) hours after oral and written notice have been provided to at least one (1) parent or legal guardian in accordance with this section. The provision of such notification must be contemporaneously recorded in the patient’s medical record, specifying by whom and to whom the notification was given, the date and time of its provision, and whether it was provided in writing as well. When only one (1) parent or guardian has been notified, the nature of reasonable attempts to inform another parent or guardian, or the reason why such attempts were not made, must also be contemporaneously recorded in the unemancipated minor patient’s medical record.
4. The requirements of subsection (3) of this section shall not apply after seventy-two (72) hours of diligent efforts have been made by the health care provider, without success, to contact and notify at least one (1) known parent or legal guardian of the unemancipated minor patient of the intent to implement an order not to resuscitate, an order to withhold artificial life-sustaining procedures, an order to withhold artificial nutrition and hydration, or a similar physician’s order.
5. Within forty-eight (48) hours of being notified of the intent to institute an order not to resuscitate, an order to withhold artificial life-sustaining procedures, an order to withhold artificial nutrition and hydration, or a similar physician’s order according to subsection (3) of this section, a parent or legal guardian shall be entitled to request a transfer of the unemancipated minor patient or resident to another facility or discharge. If a transfer is requested by a parent or legal guardian, the hospital or health care facility under whose care the unemancipated minor is admitted must continue provision of artificial life-sustaining procedures and life-sustaining artificial nutrition and hydration for a minimum of fifteen (15) days after the transfer request has been made known and make every reasonable effort to assist the requesting parent or legal guardian in the transfer process. The hospital or health care facility’s duties and financial obligations regarding transfer shall be governed by existing state law, applicable rules or regulations, hospital policy, and relevant third-party payment contracts. (6) If a transfer cannot be arranged and executed within fifteen (15) days from the parent’s or guardian’s request to transfer, an order not to resuscitate, an order to withhold artificial life-sustaining procedures, an order to withhold artificial nutrition and hydration, or a similar physician’s order may be instituted.
6. If a transfer cannot be arranged and executed within fifteen (15) days from the parent’s or guardian’s request to transfer, an order not to resuscitate, an order to withhold artificial life-sustaining procedures, an order to withhold artificial nutrition and hydration, or a similar physician’s order may be instituted.
7. Nothing in this section shall be construed to limit the rights pursuant to section 39-4503, 39-4504, 39-4509, or 39-4510, Idaho Code.

§ 39-4601. Short title.

This chapter shall be known and may be cited as the “Idaho Developmental Disabilities Services and Facilities Act of 1978.”

§ 39-4602. Purpose.

It is declared to be the policy of the legislature of the state of Idaho to authorize and mandate the department of health and welfare to develop and coordinate services for developmentally disabled persons through adult and child development programs and through contracts with rehabilitation facilities. The complexities of developmental disabilities require the services of many state departments as well as those of the community. It is the intent of this chapter that the department of health and welfare will cooperate with recognized agencies, organizations and departments in implementing this chapter. Services should be planned and provided as a part of a continuum. A pattern of facilities, services and eligibility should be established which is sufficiently complete to meet the needs of each developmentally disabled person regardless of age or degree of disability, with consideration of the family.

§ 39-4603. Declaration of rights.

Persons with developmental disabilities shall have the same legal rights and responsibilities guaranteed all other persons by the constitution and laws of the United States of America and by the constitution and laws of the state of Idaho.

§ 39-4604. Definitions.

As used in this chapter:

1. “Comprehensive developmental disability system” means a system of services including, but not limited to, the following basic services with the intention of providing alternatives to institutionalization:
   1. Evaluation services;
   2. Diagnostic services;
   3. Treatment services;
   4. Individualized developmental programs;
   5. Extended sheltered employment and work activities;
   6. Recreation services;
   7. Domiciliary care services;
   8. Special living arrangement services;
   9. Counseling services;
   10. Information and referral services;
   11. Follow-along services; and
   12. Transportation services.
2. “Department” means the Idaho department of health and welfare.
3. “Developmental disabilities facility” means any service or group of services which provide care to the developmentally disabled on an inpatient, outpatient, residential, clinical or other programmatic basis, including sheltered workshops and adult and child development centers.
4. “Developmental disability” is:
   1. Attributable to an impairment, such as intellectual disability, cerebral palsy, epilepsy, autism or other condition found to be closely related to or similar to one of these impairments that requires similar treatment or services or is attributable to dyslexia resulting from such impairments;
   2. Has continued or can be expected to continue indefinitely; and
   3. Constitutes a substantial limitation to such person’s ability to function normally in society.
5. “Habilitation” is the process of developing skills and abilities.
6. “Normalization” is the process of providing services which promote a life as much as possible like that of the rest of the community, including living in the community and access to community resources.
7. “Rehabilitation” is the process of improving skills or level of adjustment to increase the person’s ability to maintain satisfactory independent or dependent functioning.
8. “Substantial limitation” is:
   1. A disability which results in substantial function limitation in three (3) or more of the following areas of major life activity:

§ 39-4605. Duties of the department.

The department shall provide appropriate services of habilitation and rehabilitation to the eligible population of developmentally disabled, and shall consult with the state council on developmental disabilities. The department shall be the primary agency responsible for the services set forth herein, and shall:

1. Develop and prepare an annual plan for the initiation and maintenance of developmental disabilities services authorized in this chapter. Such services shall include, but not be limited to community comprehensive developmental disability services;
2. Initiate and provide services which shall include, but not be limited to, community comprehensive developmental disabilities services;
3. In order to provide services, enter into agreements with any person or persons, corporation or association, approved by the department, for the contracting of all or a portion of the costs of the care, treatment, maintenance, support and training of developmentally disabled persons; and
4. Provide technical assistance for state and local personnel working in the field of developmental disabilities under this chapter.

Any person, corporation or association may make application to the department for approval and certification of the applicant’s developmental disabilities facility. The department may either grant or deny certification or revoke certification previously granted after investigation of the applicant’s facilities, to ascertain whether or not such facilities are adequate for the health, safety and the care, treatment, maintenance, training and support of developmentally disabled persons, in accordance with standards as set forth in rules and regulations promulgated by the board of health and welfare and consistent with existing national accreditation bodies.

§ 39-4606. Eligibility for services.

Any person suspected of a developmental disability shall be eligible for initial intake and for diagnostic services through any comprehensive developmental disability center, without reference to any other eligibility criteria.

§ 39-4607. Effect on existing facilities.

Nothing in this chapter shall be construed to prevent the continuation of existing developmental disabilities facilities or services in the state.

§ 39-4608. Discrimination prohibited.

The services provided under this chapter shall be made available without discrimination on the basis of race, color, creed or ability to pay.

§ 39-4701. Short title.

This act shall be known and may be cited as the “Yellow Dot Motor Vehicle Medical Information Act.”

§ 39-4702. Legislative intent.

It is the intent of the Legislature to establish a yellow dot program to assist:

1. Drivers and passengers who participate in the program;
2. Emergency medical responders in reporting critical medical information in the event of a motor vehicle accident or a medical emergency involving a participant’s vehicle; and
3. Peace officers, or other law enforcement personnel, in becoming aware of a motorist’s or passenger’s critical medical information that may affect the officer’s encounter with the motorist or passenger during a traffic stop or welfare check.

§ 39-4703. Definitions.

As used in this chapter:

1. “Accident” means any event that results in an unintended injury or property damage attributable directly or indirectly to the motion of a motor vehicle or its load, a snowmobile, or special mobile equipment.
2. “Department” means the department of health and welfare.
3. “Driver” means every person who drives or is in actual physical control of a vehicle.
4. “Emergency medical responder” means:
   1. Emergency medical services licensed personnel as defined in section 56-1012(19), Idaho Code; or
   2. A physician, nurse, or other health care provider on the scene of a motor vehicle accident or emergency situation as provided in section 39-4708, Idaho Code, or who is accompanying or attending a patient removed from such an accident or emergency situation in an ambulance.
5. “Motor vehicle” or “vehicle” means every vehicle that is self-propelled and, for the purpose of titling and registration meets federal motor vehicle safety standards as defined in section 49-107, Idaho Code. Motor vehicle does not include vehicles moved solely by human power, electric personal assistive mobility devices, personal delivery devices, electric-assisted bicycles, and motorized wheelchairs or other such vehicles that are specifically exempt from titling or registration requirements under title 49, Idaho Code.
6. “Other responder” means a firefighter, peace officer, or other law enforcement personnel on the scene.
7. “Peace officer” means any employee of a police or law enforcement agency that is a part of or administered by the state or any political subdivision thereof and whose duties include and primarily consist of the prevention and detection of crime and the enforcement of penal, traffic, or highway laws of this state or any political subdivision of this state.
8. “Yellow dot motor vehicle medical information program” or “yellow dot program” means the program established pursuant to this chapter.

§ 39-4704. Authorization and funding.

1. The department is authorized to develop and assist in the implementation of the yellow dot program.
2. The department may accept donations and grants from any source, including eligible federal safety funds, to pay the expenses the department in the development and implementation of the yellow dot program.

§ 39-4705. Publicizing program.

The department shall take reasonable measures to publicize the yellow dot program to potential participants, law enforcement officers, and emergency medical responders. In publicizing the yellow dot program, the department may cooperate with local law enforcement agencies, fire departments, emergency medical services agencies, the department of veterans affairs, and other governmental agencies. The department may also cooperate with and seek the assistance of interested nonprofit organizations, including but not limited to AARP, American automobile association, disabled American veterans, American veterans (AMVETS), the American legion, veterans of foreign wars of the United States, the military order of the purple heart, and the Idaho commission on aging. The department may also develop training materials on the yellow dot program that may be furnished to law enforcement agencies, fire departments, and emergency medical services agencies and used by such organizations for training purposes.

§ 39-4706. Standard medical information form.

1. The department is authorized to create a standard medical information form providing space for each participant to supply, at a minimum, the following information:
   1. The participant’s name;
   2. A photograph of the participant;
   3. Two (2) emergency contacts identified by the participant and their contact information;
   4. The participant’s relevant medical information, including medical conditions, recent surgeries, allergies, and medications;
   5. The participant’s hospital preference;
   6. Up to two (2) preferred physicians identified by the participant and their contact information; and
   7. The date on which the participant completed the form.
2. The medical information form shall include a statement that the yellow dot program functions only as a facilitator and that all information supplied on the medical information form is the sole responsibility of the participant.
3. The medical information form shall also include statements that the participant supplies the medical information voluntarily and that the participant authorizes the disclosure to, and use of, such medical information by emergency medical responders and other responders for the purposes described in section 39-4708, Idaho Code.

§ 39-4707. Distribution of program materials.

1. The department may provide for, assist in, or authorize the printing of the standard medical information form as provided in section 39-4706, Idaho Code, and assembling of a yellow dot folder containing the medical information form and a yellow dot decal with an adhesive backing.
2. Upon request, the department may provide yellow dot folders to the agencies and nonprofit organizations identified in section 39-4705, Idaho Code, subject to the limitations of resources for funding the program. The department may allow such agencies and organizations to copy the standard medical information form and assemble yellow dot folders for distribution to participants, or the department may authorize these agencies and organizations to prepare yellow dot folders for distribution.
3. The department may also provide for dissemination of the medical information form and other yellow dot materials online.
4. The department shall not charge any fee to participate in the yellow dot program.

§ 39-4708. Motor vehicle accidents or emergency situations.

1. If a driver or passenger of a motor vehicle becomes involved in a motor vehicle accident or emergency situation and a yellow dot decal is affixed to the vehicle, an emergency medical responder or other responder at the scene is authorized to search the vehicle for a yellow dot folder or folders.
2. An emergency medical responder or other responder may use the information contained in the yellow dot folder for the following purposes:
   1. To identify a participant in the yellow dot program;
   2. To ascertain whether the participant has a medical condition that may impede communication with the responder;
   3. To communicate with the participant’s emergency contacts about the location and general condition of the participant; and
   4. To consider the person’s current medications and preexisting medical conditions when emergency medical treatment is administered for any injury the participant suffers.
3. If, during a traffic stop involving a motor vehicle with a yellow dot decal affixed to the vehicle, a law enforcement officer reasonably believes the driver or passenger has a medical condition that is affecting the officer’s encounter with the driver or a passenger, such law enforcement officer, upon receiving consent from the driver or passenger, is authorized to review any yellow dot folder or folders present in the vehicle.

§ 39-4709. Liability.

Except for wanton or willful conduct, no emergency medical responder or other responder, nor any employer of an emergency medical responder or other responder, shall incur any liability if the emergency medical responder or other responder is unable to make contact, in good faith, with an emergency contact person or disseminates or fails to disseminate any information from the yellow dot folder to other emergency medical responders, hospitals, or any health care providers who render emergency medical treatment to the participant. No health care provider or employer of a health care provider shall incur any civil or criminal liability if the provider relies in good faith on the information provided through the yellow dot program.

§ 39-4710. Presence of a yellow dot on a motor vehicle shall not provide probable cause.

Nothing in this chapter shall provide a peace officer with probable cause or other legal authority to stop a motor vehicle. Except for the limited authority provided in section 39-4708, Idaho Code, nothing in this chapter shall provide a peace officer with probable cause or other legal authority to search a motor vehicle or its occupants.

§ 39-4801. Immunization required.

Except as provided in section 39-4802, Idaho Code, any child in Idaho of school age may attend grades preschool and kindergarten through twelve (12) of any public, private or parochial school operating in this state if otherwise eligible, provided that upon admission, the parent or guardian shall provide an immunization record to the school authorities regarding the child’s immunity to certain childhood diseases. This record, signed by a physician or his representative or another licensed health care professional, shall verify that such child has received, or is in the process of receiving immunizations as specified by the state board of health and welfare, or can effectively demonstrate, through verification in a form approved by the department of health and welfare, immunity gained through prior contraction of the disease.

Immunizations required and the manner and frequency of their administration shall be as prescribed by the state board of health and welfare and shall conform to recognized standard medical practices in the state. The state board of health and welfare, in cooperation with the state board of education and the Idaho school boards association, shall promulgate appropriate rules for the enforcement of the required immunization program and specify reporting requirements of schools, pursuant to the provisions of chapter 52, title 67, Idaho Code.

§ 39-4803. Immunization registry.

1. The department of health and welfare shall provide for the establishment of a voluntary registry of the immunization status of Idaho children against childhood diseases. The registry shall be maintained and its data disclosed as set out herein to further the following purposes:
   1. To make immunizations readily available to every Idaho citizen that desires to have their child immunized;
   2. To increase the voluntary immunization rate in Idaho to the maximum extent possible without mandating such immunizations;
   3. To recognize and respect the rights of parents and guardians to make health care decisions for their children; and
   4. To provide for timely reminders to parents of children in the registry.
2. The name of a child and information relating to the immunization status of that child shall be collected and included in the registry unless a parent, guardian or other person legally responsible for the care of the child chooses not to have the child included in the registry upon a specified written statement. Such statement may not be part of a general authorization or release. The registry shall contain the following information for each child:
   1. The child’s name, address and birth date;
   2. The name and address of each parent of the child;
   3. The month, day, year and type of each immunization that has been administered to the child;
   4. The name, address and phone number of each provider that has administered an immunization to the child;
   5. If requested by a parent or guardian, any statement made pursuant to subsection (4) of this section; and
   6. Other information as authorized or requested by a parent or guardian.
3. The department of health and welfare shall only disclose information relating to an individual child in the registry to the following upon a specific request:
   1. Employees of the health district in which the child resides or seeks medical services;
   2. Health records staff of the school or school district in which the child is enrolled;
   3. The operator of a licensed daycare facility in which the child is enrolled;
   4. Persons who are legally responsible for the long-term care of the child, including operators of licensed ICF/ID’s and residential or assisted living facilities, adoptive and foster parents and a guardian appointed pursuant to chapter 5, title 15, Idaho Code;
   5. Any health care provider rendering treatment to the child, and the provider’s agents;
   6. Any person possessing a lawful release, properly executed by the child’s parent or guardian;
   7. A parent of the child;
   8. Any hospital where the child is receiving care; or
   9. The Idaho health data exchange.
4. A parent or guardian of the child shall have free and open access to all information in the registry that relates to their child or themselves. Upon the written request of a parent or guardian, the department of health and welfare shall: (a) Cause all information relating to the child to be removed from the registry;
   1. Cause all information relating to the child to be removed from the registry;
   2. Include in the registry the statement of a physician or parent pursuant to section 39-4802(2) or 39-1118(2), Idaho Code.
5. All information contained in the registry or disclosed from it is confidential and may not be sold and may only be disclosed as specifically authorized in this section. A person or entity to whom information is disclosed from the registry may not thereafter disclose it to others except in accordance with state and federal laws applicable to the use of protected health information. Any person who discloses or authorizes disclosure of any information contained in the registry, except as authorized in this section, is guilty of a misdemeanor and is liable for civil damages in the amount of one hundred dollars ($100) for each violation.

§ 39-4804. Notification to parent or guardian.

1. Before an immunization is administered to any child in this state, the parent or guardian of the child shall be notified that:
   1. Immunizations are not mandatory and may be refused on religious or other grounds;
   2. Participation in the immunization registry is voluntary;
   3. The parent or guardian is entitled to an accurate explanation of the complications known to follow such immunization.
2. At the time information is initially collected regarding any child for entry into the registry created pursuant to this chapter, the parent or guardian shall be notified that:
   1. They have the right under Idaho law to submit a statement pursuant to the provisions of sections 39-1118 and 39-4802, Idaho Code, which exempts them from any requirement to have information regarding the child entered into the registry;
   2. At any time they have the right to remove any information from the registry regarding the child; and
   3. Immunizations are not mandatory and may be refused on religious or other grounds.
3. The decision of a parent or guardian to:
   1. Submit a statement pursuant to the provisions of either section 39-1118(2) or 39-4802(2), Idaho Code;
   2. Remove any information regarding the child from the registry pursuant to the provisions of section 39-4803(4), Idaho Code; or
   3. Refuse the immunization on religious or other grounds;

shall not be used in any manner against the interests of the parent or guardian in any administrative, civil or criminal action.

§ 39-4805. Idaho childhood immunization policy commission.

1. There is hereby created in the department of health and welfare the Idaho childhood immunization policy commission. The purpose of the commission is to evaluate policies regarding childhood immunization in Idaho and make recommendations to the board of health and welfare on policy and to the Idaho legislature on legislative action to increase immunization rates.
2. The commission shall be composed of eight (8) regular members and two (2) ex officio members:
   1. One (1) representative of the department of health and welfare, division of public health, appointed by the director of the department;
   2. One (1) representative of Idaho public health districts, appointed by the Idaho association of public health district directors;
   3. One (1) member appointed by the Idaho primary care association;
   4. One (1) member appointed by the Idaho hospital association;
   5. One (1) member appointed by the Idaho academy of family physicians;
   6. One (1) member appointed by the Idaho chapter of the American academy of pediatrics;
   7. One (1) member appointed by the Idaho immunization coalition;
   8. One (1) member appointed by the Idaho medical association;
   9. One (1) member of the Idaho senate who will serve as an ex officio member of the commission, appointed by the president pro tempore of the senate; and
   10. One (1) member of the Idaho house of representatives who will serve as an ex officio member of the commission, appointed by the speaker of the house of representatives.
3. The commission shall meet on or before October 1, 2010, and shall meet not less than once per each calendar year thereafter. At its initial meeting, the commission shall elect a chair, a vice chair and a secretary from among its members. These officers shall serve for terms of one (1) year and may be elected for successive terms. Meetings of the commission shall be held in Boise. Members may participate in meetings through electronic means.
4. The department of health and welfare shall provide to the commission a suitable meeting location and reasonable clerical support.
5. The duties and responsibilities of the commission are to:
   1. Review existing provisions of the Idaho Code and rules of the department of health and welfare regarding childhood immunization; and
   2. Make recommendations to the Idaho legislature for legislation and to the board of health and welfare for rulemaking on:
      1. Improving Idaho’s childhood immunization rates; (ii) The immunization requirements for children attending daycare and school;
      2. The Idaho immunization reminder information system;
      3. Public and private partnerships to improve immunization rates; and
      4. Other states best practices on improving immunization rates.
   3. Make recommendations to public agencies, health care providers and others regarding policies and practices that are designed to improve Idaho’s childhood immunization rates.

Each member of the commission shall serve at the pleasure of the person responsible for the member’s appointment. Members of the commission shall not be paid for their service or be entitled for reimbursement for travel expenses, except that members of the Idaho legislature serving as ex officio members of the commission shall be reimbursed for their vouched travel expenses associated with their service on the commission in a manner consistent with policy for other state officers and employees.

§ 39-4901. Purpose and policy.

It is the intent of the legislature to provide to all of Idaho residents a quality health care system for a reasonable cost and to prevent the deterioration of such system by the duplication of services or the introduction of new categories of services that are not necessary to their health. It is further the intent of the legislature to promote cooperation among health care providers in health planning activities and to provide access to necessary care for all who require it. It is hereby declared that it is in the public interest of the state, to provide for the relief from penalties of state and federal law, cooperative planning in health care that is likely to benefit the residents of the state.

§ 39-4902. Definitions.

As used in this chapter:

1. “Cooperative agreement” means a written agreement between two (2) or more health care providers for the sharing, allocation or referral of patients, or the sharing or allocation of personnel, instructional programs, support services and facilities, medical, diagnostic, therapeutic or procedures or other services customarily offered by health care providers.
2. “Certificate of public advantage” means a document issued by the attorney general to parties to a cooperative agreement, verifying that the attorney general declares that the purposes and objectives of the cooperative agreement meet the standards for such agreements set forth by statute.
3. “Health care provider” means any person or health care facility licensed, registered, certified, permitted or otherwise officially recognized by the state to provide health care services in this state; or, in the case of a freestanding outpatient facility, one for which a facility fee is charged for health care services performed within.

§ 39-4903. Cooperative agreements — Certification.

1. A health care provider may negotiate and enter into cooperative agreements with other health care providers in the state if the likely benefits resulting from the agreements outweigh the disadvantages attributable to a reduction in competition that may result from such agreements.
2. Parties to a cooperative agreement may apply to the Idaho attorney general for a certificate of public advantage governing that cooperative agreement. The application must include an executed written copy of the cooperative agreement and describe the nature and scope of the cooperation in the agreement and any consideration passing to any party under the agreement.
3. The attorney general shall review the application in accordance with the standards set forth in subsection (4) of this section and may hold a public hearing in accordance with rules adopted by the attorney general under chapter 52, title 67, Idaho Code. The attorney general shall grant or deny the application within sixty (60) days of the date of filing of the application and that decision must be in writing and set forth the basis for the decision. The attorney general shall furnish a copy of the decision to the applicants and any intervenor.
4. The attorney general shall issue a certificate of public advantage for a cooperative agreement if he determines that the applicants have demonstrated by clear and convincing evidence that the likely benefits resulting from the agreement outweigh any disadvantages attributable to a reduction in competition that may result from the agreement.
5. In evaluating the potential benefits of a cooperative agreement, the attorney general shall consider whether one (1) or more of the following benefits may result from such agreement:
   1. The quality of health care provided to the consumers in the state will be enhanced;
   2. A hospital, if any, and other health care facilities that customarily serve the communities in the area likely affected by the cooperative agreement will be preserved;
   3. Services provided by the parties to the cooperative agreement will gain cost efficiency;
   4. The utilization of health care resources and equipment in the area likely affected by the cooperative agreement will improve;
   5. Duplication of health care resources in the area likely affected by the cooperative agreement will be avoided.
6. The attorney general’s evaluation of any disadvantages attributable to any reduction in competition likely to result from the cooperative agreement may include, but need not be limited to, the following:
   1. The likely adverse impact, if any, on the ability of health maintenance organizations, preferred provider plans, hospital provider organizations, persons performing utilization review, or other health care payers to negotiate optimal payment and service arrangements with hospitals and other health care providers;
   2. Whether any reduction in competition among physicians, allied health professionals or other health care providers is likely to result directly or indirectly from the cooperative agreement; (c) Whether any arrangements that are less restrictive to competition could likely achieve substantially the same benefits or a more favorable balance of benefits over disadvantages than that likely to be achieved from reducing competition.
7. Participants in an approved cooperative agreement issued under the provisions of this section are immune from civil enforcement action and criminal prosecution for actions that might otherwise violate antitrust laws of the state of Idaho taken in furtherance of the cooperative agreement. Nothing in this section shall limit the authority of the attorney general to initiate civil enforcement or criminal prosecution if he determines that the health care providers have exceeded the scope of the cooperative agreement approved under this act.
8. The attorney general may request periodic written updates of the progress of the approved cooperative agreement. If updates are requested, the attorney general shall specify the intervals at which they must be submitted, which shall not be less than every ninety (90) days.
9. Nothing in this act shall obligate health care providers to submit a request for approval of a cooperative agreement as set forth under the provisions of this section. Any person who implements any cooperative action or agreement without securing the approval of the attorney general under the provisions of this section is subject to any civil or criminal enforcement action for violations that may result from this action.
10. It is the intent of this section to require the state of Idaho, through the office of the attorney general, to provide direction, supervision and control over approved cooperative agreements entered into under the provisions of this section. To achieve the goals specified in this section, this state direction, supervision and control of cooperative agreements will provide state action immunity under federal antitrust laws to health care providers who participate in discussions or negotiations authorized in this section, and to persons authorized by such persons to implement cooperative agreements.
11. The attorney general may adopt rules for the implementation of this act, including rules establishing procedures and criteria for the review and evaluation of proposed cooperative agreements under this act. Rules adopted shall ensure that there is opportunity for public comment during the review and evaluation of proposed cooperative agreements.
12. If the attorney general determines that the benefits resulting from or likely to result from a cooperative agreement under a certificate of public advantage no longer outweighs any disadvantages attributable to any actual or potential reduction in competition resulting from the cooperative agreement, he may revoke the certificate of public advantage governing the agreement and, if revoked, shall so notify the holders of the certificate. A holder of a certificate of public advantage whose certificate is revoked by the attorney general may contest the revocation by sending a written request for a hearing to the attorney general within ten (10) days after receipt of the notice of revocation.
13. If a party to a cooperative agreement that is issued a certificate of public advantage terminates its participation in the agreement, the party shall file a notice of termination with the attorney general within thirty (30) days after the termination takes effect. If all parties to the cooperative agreement terminate their participation in the agreement, the attorney general shall revoke the certificate of public advantage for the agreement.
14. The attorney general shall maintain files on all cooperative agreements for which certificates of public advantage are issued and that are in effect.

§ 39-4904. Judicial review.

Any applicant or intervenor aggrieved by a decision of the attorney general in granting or denying an application for a certificate of public advantage, refusing to act on such application or termination of a certificate of public advantage, is entitled to judicial review of the decision in accordance with chapter 52, title 67, Idaho Code.

§ 39-5001. Policy.

The policy of the state of Idaho is hereby declared to be a recognition of the increasing number of persons in the state who, having fulfilled the valuable role of homemaker, find themselves displaced because of death or disability of spouse, or divorce or other loss of family income. As a consequence, displaced homemakers have an insufficient income; high rate of unemployment due to age, lack of paid work experience and discrimination; and limited opportunities to collect funds of assistance from social security, unemployment compensation, medicaid or other health insurance benefits, or pension plans of the spouse. This chapter seeks to coordinate efforts by state and local public agencies in cooperation with private agencies and organizations to assist displaced homemakers to continue as productive citizens, even though their role has necessarily changed.

§ 39-5002. Definitions.

For purposes of this chapter:

1. “Displaced homemaker” means a person who:
   1. Has worked in the home providing household services for family members, but who has lost the primary source of economic support and who must gain employment skills in order to earn a living; or
   2. Is a single parent with primary financial and custodial responsibility for supporting dependent children and who must gain employment skills in order to earn a living.
2. “Administrator” means the administrator of the division of career technical education.

§ 39-5003. Service centers.

The administrator is authorized to establish multipurpose service centers for displaced homemakers. Each center shall have an advisory board appointed by the administrator in consultation with the director of the center. Such board shall consist of individuals representing displaced homemakers, organizations and agencies providing services beneficial to displaced homemakers, and the general public.

Each center shall include the following services:

1. Job counseling services designed for a displaced homemaker;
2. Job training and placement services developed in cooperation with public and private employers to train displaced homemakers for available jobs in the public and private sectors, taking into account the skills and job experiences of a homemaker and to assist displaced homemakers in gaining admission to existing public and private job training programs;
3. Health education and counseling services with respect to general principles of preventative health care, mental health, alcohol and drug addiction and other related health care matters;
4. Financial management services which provide information and assistance with respect to insurance, taxes, estate and probate problems, mortgages, loans and other related financial matters; and
5. Educational services including information about courses offering credit through secondary and postsecondary education programs and information about other services determined to be of interest and benefit to displaced homemakers.

§ 39-5004. Site selection.

1. In selecting sites for the centers established under this chapter, the administrator shall consider:
   1. The needs of each region of the state for a center;
   2. The needs of both urban and rural communities; and
   3. The availability of existing facilities adaptable for use as a center.
2. The administrator may select a public or nonprofit private organization to administer the centers.
3. The administrator is authorized to enter into contracts with and make grants to the organizations selected for the purpose of establishing and administering centers under this chapter.
4. The administrator shall cooperate with other state, local and federal agencies to coordinate, through the service centers, all programs applicable to displaced homemakers and to avoid duplication of services.
5. To the greatest extent possible, the staff of the service centers established under this chapter, including supervisory, technical and administrative positions, shall be filled by displaced homemakers. Where necessary, potential staff members shall be provided with on-the-job training.

§ 39-5005. Eligibility and fees.

The administrator with the advice of the staff at the centers, shall promulgate rules concerning the eligibility of persons to receive assistance through the multipurpose service centers. A sliding fee may be charged for services at the discretion of the director of the center.

§ 39-5006. Grants and gifts.

The director of the center may, with approval of the administrator, apply for and accept any funds, grants, gifts or services made available by any agency or department of the federal government or any private agency or individual, which funds shall be used to carry out the total program of the centers.

§ 39-5007. Reports of each center.

The director of each center shall report to the administrator or his/her designee, and shall evaluate the effectiveness of the job training, placement and service to displaced homemakers, including the number of persons trained, the number of persons placed in employment, follow-up data on such persons, the number of persons served by the various service programs, and cost effectiveness of the various components of the center. The administrator shall report annually to the education committees of the house of representatives and the senate of the legislature on the status of the displaced homemaker program. The report shall be filed not later than the fifteenth legislative day and in addition to compilations of the information received from each center, may include recommendations of the administrator relating to the program.

§ 39-5008. Discrimination prohibited.

No person shall, on the ground of sex, age, race, color, religion, national origin or disability, be excluded from participating in, be denied the benefits of, or be subjected to discrimination under any program or activity made available under this chapter.

§ 39-5009. Displaced homemaker account — Fees on filing of divorce action.

1. There is hereby created in the state operating fund the displaced homemaker account. All fees collected pursuant to subsection (2) of this section shall be deposited in the account. All moneys in the account shall be available for appropriation to the state board for career technical education for the purposes of this chapter.
2. In addition to any other fees imposed for filing an action for divorce in the district court, there shall be collected a fee of twenty dollars ($20.00) for each divorce action. The clerk of the district court shall remit such fees, separately identified, to the state treasurer for deposit in the displaced homemaker account. Fees shall be remitted to the state treasurer at the same time as other court fees are remitted.

§ 39-5100. Legislative findings.

The legislature of the state of Idaho finds that:

1. Families are the major providers of support, care, information, training, and other services to their family members with developmental disabilities.
2. Families with individuals who have developmental disabilities may experience extraordinary financial outlays, physical and emotional challenges, and daily stress.
3. Failure to provide the necessary services and supports to families with a member with developmental disabilities can result in admission of the individual to institutional care.
4. Flexible and coordinated support and assistance to families avoids duplication of services, uses existing resources more efficiently, and prevents gaps in services to families.
5. A family’s ability to make informed decisions regarding in-home or out-of-home living arrangements for a member who has a developmental disability is critical to the quality and cost-effective care of their family member.
6. Family support and in-home assistance promotes and enhances the family’s capacity to provide care.
7. Family support and in-home assistance stimulates the formation of community supports to use public dollars more efficiently.

Therefore, it is in the interest of the state of Idaho to provide in-home assistance for families for supports that enable family members with developmental disabilities to reside at home.

§ 39-5101. Purpose.

This act authorizes a program of financial assistance to eligible families who agree to carry out home-based support for their family members with developmental disabilities.

§ 39-5102. Definitions.

As used in this chapter:

1. “Department” means the Idaho department of health and welfare.
2. “Developmental disability” means a chronic disability of an individual which appears before the age of twenty-two (22) years of age and:
   1. Is attributable to an impairment, such as intellectual disability, cerebral palsy, epilepsy, autism or a condition found to be closely related to or similar to one (1) of these impairments that requires similar treatment or services, or is attributable to dyslexia resulting from such impairments; and
   2. Results in substantial functional limitations in three (3) or more of the following areas of major life activity: self-care, receptive and expressive language, learning, mobility, self-direction, capacity for independent living, or economic self-sufficiency; and
   3. Reflects the need for a combination and sequence of special, interdisciplinary treatment or other services which are of lifelong or extended duration and individually planned and coordinated.
3. “Director” means the director of the Idaho department of health and welfare.
4. “Family” means a group of interdependent persons residing in the same household and includes an individual with a developmental disability and one (1) or more of the following:
   1. A birth or adoptive mother or father, stepparent, brother, sister or any combination; or
   2. Extended blood relatives, such as a grandparent, aunt, uncle, nephew or niece; or
   3. Legal guardian.
5. “In-home assistance application” means a written document describing the needs of an individual with developmental disabilities and specifying the services or supports required.
6. “Institution” means any public or private residential facility which is licensed in the state of Idaho for the purpose of providing care and treatment for individuals with developmental disabilities.

The term “family” does not include paid providers of care.

§ 39-5103. Standards for the provision of financial assistance.

The director of the Idaho department of health and welfare shall have the power and it shall be his duty to promulgate appropriate rules necessary to implement and enforce the following standards for the provision of in-home assistance:

1. Financial assistance provided under this chapter shall not exceed two hundred fifty dollars ($250) per month per individual, except that this limit may be waived by the department in cases of extraordinary need.
2. The amount of a grant of assistance shall be made based upon the need for services as specified in section 39-5103(4), Idaho Code, without regard to the family’s income or eligibility for any other program administered by the department.
3. Receipt of supports will be determined on an individual family basis. Support priorities will be determined with consideration for the following criteria:
   1. Families of individuals with a developmental disability who will be able to return to a home setting from an institution and to those families for whom supports will prevent placement of the member with a developmental disability in an institution;
   2. Severity of consequences without supports;
   3. Urgency of need;
   4. Availability of funds.
4. Assistance moneys may be used for the following when no other assistance is available:
   1. Diagnostic and evaluative procedures;
   2. Purchase of special equipment;
   3. Specialized therapies;
   4. Special diets;
   5. Medical and dental care not covered under the family’s health insurance or other publicly funded programs;
   6. Home health or personal assistance services;
   7. Counseling for the individual or family, including behavior management;
   8. Respite care or out of the ordinary expenses related to supervised care according to the approved in-home assistance application, including necessary related sibling care;
   9. Environmental adaptations and technical assistance as necessary to permit successful integration and access;
   10. Special clothing including incontinence supplies;
   11. Necessary supports for participation in recreational services;
   12. Transportation;
   13. Housing modifications for the purpose of accessibility or ease in handling; and
   14. Similar or related costs.
5. Families shall choose providers of services.
6. Assistance moneys shall not be used for the payment of educational or educationally related services which properly are the responsibility of local public schools.

§ 39-5104. Eligibility.

A family is eligible to participate in the family support and in-home assistance program if the family:

1. Resides within the state of Idaho;
2. Includes a family member with a developmental disability;
3. Expresses willingness for the family member with a developmental disability to reside at home;
4. Submits an in-home assistance application for the family member with a developmental disability;
5. Obtains the agreed-upon services or equipment; and
6. Accounts for the funds expended for the agreed-upon services and equipment.

§ 39-5105. Discontinuance of assistance.

Assistance may be terminated under the following conditions:

1. The family or individual requests termination;
2. Death of the individual with a developmental disability;
3. Eligibility criteria are no longer met; or
4. Inadequate funds are available for continuance.

§ 39-5106. Short title.

This chapter shall be known and cited as the “Developmental Disabilities Family Support and In-Home Assistance Act.”

§ 39-5201. Declaration of policy.

The legislature finds that domestic violence is an issue of growing concern. Research findings show that domestic violence constitutes a significant percentage of homicides, aggravated assaults, and assaults and batteries in the United States. Domestic violence is a disruptive influence on personal and community life and is often interrelated with a number of other family problems and stresses. Refuge for victims of domestic violence is essential to provide protection to victims from further abuse and physical harm. Refuge provides temporary safety and resources to victims who may not have access to such things if they remain in abusive situations.

It is the purpose of the legislature in the adoption of this chapter to provide funding for projects in the several areas of the state for the purpose of aiding victims of domestic violence and other crimes.

It is understood that the intention of the provisions of this chapter is not to supersede the authority or responsibilities of agencies of state government responsible for providing services to persons pursuant to the child protective act, crime victims compensation act or adult protective provisions in the Idaho Code.

§ 39-5202. Definitions.

As used in this chapter:

1. “Domestic violence” means the physical injury, sexual abuse or forced imprisonment or threat thereof of a family or household member.
2. “Family or household member” means one who is related by blood, marriage, or who resides or has resided with or has been married to the person committing the domestic violence.
3. “Safe house” means a place available on an as needed basis for temporary residence to victims of domestic violence and their children.
4. “Refuge” means a place available on a twenty-four (24) hour, seven (7) days a week basis, to provide temporary residence to victims of domestic violence and their children.
5. “Crisis line” means an emergency twenty-four (24) hour telephone service staffed by persons able to provide information and referral to community services.
6. “Council” means the Idaho council on domestic violence and victim assistance created in section 39-5203, Idaho Code.

§ 39-5203. Council on domestic violence and victim assistance.

1. The Idaho council on domestic violence and victim assistance is hereby established. The council shall be the advisory body for programs and services affecting victims of domestic violence and other crimes in Idaho.
2. For budgetary purposes and for administrative support purposes, the council shall be assigned, by the governor, to a department or office within the state government.

§ 39-5204. Composition.

The council shall consist of seven (7) members appointed by the governor. At least one (1) member shall reside in each of the seven (7) [six (6)] substate regions established pursuant to section 39-104, Idaho Code. Members shall be representative of persons who have been victims of domestic violence, care providers, law enforcement officials, medical and mental health personnel, counselors, and interested and concerned members of the general public.

§ 39-5205. Appointment and term of office.

Each member of the council shall be appointed for a term of three (3) years, except that of the members first appointed; two (2) shall be appointed for a term of one (1) year, two (2) shall be appointed for a term of two (2) years, and three (3) shall be appointed for a term of three (3) years. If a vacancy occurs, a new member shall be appointed in accordance with the provisions of the original appointment for the unexpired portion of the vacated term. Members may be replaced because of poor attendance, lack of participation in the council’s work, or malfeasance in office.

§ 39-5206. Compensation and expenses.

Members of the council shall be entitled to receive actual and necessary expenses plus compensation as provided in section 59-509(g), Idaho Code.

§ 39-5207. Organization of council — Employment of necessary personnel.

1. The council shall annually designate one (1) of its members to serve as chairman and one (1) member to serve as vice chairman, who shall act as chairman in the chairman’s absence. The chairman shall call meetings as provided in the rules of the council.
2. The council shall adopt and amend rules governing its proceedings, activities and organization including, but not limited to, provisions governing a quorum, procedure, frequency and location of meetings, and establishment, functions and membership of council committees.
3. The council may employ and shall fix the compensation, subject to provisions of chapter 53, title 67, Idaho Code, of such personnel as may be necessary including, but not limited to, an administrator, who shall be designated as the executive director of the council and who shall be exempt from the provisions of chapter 53, title 67, Idaho Code.

§ 39-5208. Responsibilities and duties.

The council shall:

1. Establish standards for projects applying for grants from the council under this chapter;
2. Disseminate information on availability of funds and the application process;
3. Receive grant applications for the development and establishment of projects for victims of domestic violence and certain other crimes;
4. Distribute funds after approval of projects meeting council standards;
5. Assess, review and monitor the services and programs being provided for victims of domestic violence and other crimes under this chapter;
6. Monitor programs and services for victims of domestic violence and other crimes to assure nonduplication of services and to encourage efficient and coordinated use of resources in the provision of services;
7. Compile data on the services and programs provided to victims of domestic violence and other crimes and the geographic incidence of domestic violence and other crimes in this state; and
8. Submit annual reports to the governor and the legislature.

§ 39-5209. Rules.

The council shall promulgate, adopt and amend rules and criteria to implement the provisions of this chapter regarding applications and grants for domestic violence project funding and for funding under any other grant program administered by the council. Such promulgation, adoption and amendment shall be in compliance with the provisions of chapter 52, title 67, Idaho Code.

§ 39-5210. Eligible projects.

To be eligible for domestic violence grants pursuant to this chapter, a project must provide a safe house or refuge and a crisis line, except in the case of a project providing services to batterers. No funds may be granted to batterer programs from the domestic violence project account which are derived from marriage license or divorce fees. Other services which may be provided include, but are not limited to:

1. Counseling;
2. Educational services for community awareness, for prevention of domestic violence and for the care, treatment and rehabilitation of parties to domestic violence;
3. Support groups;
4. Assistance in obtaining legal, medical, psychological or vocational services.

§ 39-5211. Qualifications of applicants.

To qualify for domestic violence grants under the provisions of this chapter, an applicant must:

1. Propose to operate and provide an eligible project;
2. Be a private, nonprofit corporation of the state of Idaho, or a public entity of the state of Idaho;
3. Provide matching moneys equal to twenty-five percent (25%) of the amount of the grant. The applicant may contribute to or provide the required local matching funds. The value of in-kind contributions and volunteer labor from the community may be computed and included as part of the local matching requirement;
4. Require persons employed by or volunteering services to the project to maintain the confidentiality of any information that would identify individuals served by the project; such information identifying individuals served by the project shall be subject to disclosure according to chapter 1, title 74, Idaho Code;
5. Require victims to reimburse the project monetarily or through volunteer efforts for services provided as they are able to do so. Minimum reimbursement may be established by the council, with a sliding scale of reimbursement based on the victim’s ability to pay;
6. Provide a policy of nondiscrimination in its admissions and provision of services on the basis of race, religion, gender, color, age, marital status, national origin or ancestry.

§ 39-5212. Domestic violence project account.

There is hereby created in the state operating fund the domestic violence project account. Moneys received from the fees imposed by section 39-5213, Idaho Code, and section 39-6312, Idaho Code, shall be credited to the account and shall be perpetually appropriated to the council on domestic violence and victim assistance for grants for domestic violence projects and to meet the costs of maintaining the operation of the council.

Eligible projects shall be given priority by the council based upon an allocation of funds to projects in the seven (7) [six (6)] substate regions established pursuant to section 39-104, Idaho Code, in the proportion that marriage licenses are filed in each region.

§ 39-5213. Fee imposed.

1. In addition to the fee due to the county recorder of each county of this state under the provisions of section 31-3205, Idaho Code, for the issuance of a marriage license, the recorder shall collect upon presentation of proper identification by the applicants an additional fee of fifteen dollars ($15.00) for each license issued, which additional fee shall be remitted to the state treasurer for credit to the “domestic violence project account” created in section 39-5212, Idaho Code.
2. In addition to any other fee imposed for filing an action for divorce in the district court, there shall be collected a fee of twenty dollars ($20.00) for each divorce action, separately identified, which additional fee shall be remitted to the state treasurer for credit to the domestic violence project account created in section 39-5212, Idaho Code.

§ 39-5301. Short title.

This chapter shall be known and may be cited as the “Adult Abuse, Neglect and Exploitation Act.”

§ 39-5301A. Declaration of policy.

1. It is the intent of the adult abuse, neglect and exploitation act to authorize the fewest possible restrictions on the exercise of personal freedom and religious beliefs consistent with a vulnerable adult’s need for services and to empower vulnerable adults to protect themselves.
2. The legislature recognizes that vulnerable adults sometimes experience difficulties managing their own affairs or are unable to protect themselves from abuse, neglect or exploitation. Often, vulnerable adults cannot find others who are able or willing to provide assistance.
3. The commission is directed to investigate allegations of abuse, neglect, self-neglect or exploitation involving a vulnerable adult, to make appropriate referrals to law enforcement, and to arrange for the provision of necessary services. Further, the commission shall honor a vulnerable adult’s freedom of choice and right to self-determination. When it becomes necessary for the commission to assist a vulnerable adult, actions shall be tempered by the requirements of due process and must place the fewest possible restrictions on personal freedom. Services provided under this act are also intended to provide assistance to caregiving families experiencing difficulties in maintaining functionally impaired relatives in the household.
4. In the process of carrying out its adult protective services responsibilities, the commission is directed to make effective use of multidisciplinary services available through any and all public agencies, community-based organizations, and informal resources.

§ 39-5302. Definitions.

For the purposes of this chapter:

1. “Abuse” means the intentional or negligent infliction of physical pain, injury or mental injury.
2. “Caretaker” means any individual or institution that is responsible by relationship, contract, or court order to provide food, shelter or clothing, or medical or other life-sustaining necessities to a vulnerable adult.
3. “Commission” means the Idaho commission on aging, established pursuant to chapter 50, title 67, Idaho Code.
4. “Department” means the Idaho department of health and welfare.
5. “Emergency” means an exigent circumstance in which a vulnerable adult’s health and safety is placed in imminent danger. Imminent danger is when death or severe bodily injury could reasonably be expected to occur without intervention.
6. “Exploitation” means an action that may include, but is not limited to, the unjust or improper use of a vulnerable adult’s financial power of attorney, funds, property, or resources by another person for profit or advantage.
7. “Neglect” means failure of a caretaker to provide food, clothing, shelter or medical care reasonably necessary to sustain the life and health of a vulnerable adult, or the failure of a vulnerable adult to provide those services for himself.
8. “Provider” means an area agency on aging or a person or an entity capable of providing adult protective services, including duly authorized agents and employees.
9. “Supportive services” means noninvestigatory remedial, social, legal, health, educational, mental health and referral services provided to a vulnerable adult.
10. “Vulnerable adult” means a person eighteen (18) years of age or older who is unable to protect himself from abuse, neglect or exploitation due to physical or mental impairment that affects the person’s judgment or behavior to the extent that he lacks sufficient understanding or capacity to make or communicate or implement decisions regarding his person.

Nothing in this chapter shall be construed to mean a person is abused, neglected, or exploited for the sole reason he is relying upon treatment by spiritual means through prayer alone in accordance with the tenets and practices of a recognized church or religious denomination; nor shall the provisions of this chapter be construed to require any medical care or treatment in contravention of the stated or implied objection of such a person.

§ 39-5303. Duty to report cases of abuse, neglect or exploitation of vulnerable adults.

1. Any physician, nurse, employee of a public or private health facility, or a state-licensed or certified residential facility serving vulnerable adults, medical examiner, dentist, osteopath, optometrist, chiropractor, podiatrist, social worker, police officer, pharmacist, physical therapist, or home care worker who has reasonable cause to believe that a vulnerable adult is being or has been abused, neglected or exploited shall immediately report such information to the commission. Provided however, that nursing facilities defined in section 39-1301(b), Idaho Code, and employees of such facilities shall make reports required under this chapter to the department. When there is reasonable cause to believe that abuse or sexual assault has resulted in death or serious physical injury jeopardizing the life, health or safety of a vulnerable adult, any person required to report under this section shall also report such information within four (4) hours to the appropriate law enforcement agency.
2. Failure to report as provided under this section is a misdemeanor subject to punishment as provided in section 18-113, Idaho Code. If an employee at a state licensed or certified residential facility fails to report abuse or sexual assault that has resulted in death or serious physical injury jeopardizing the life, health or safety of a vulnerable adult as provided under this section, the department shall also have the authority to:
   1. Revoke the facility’s license and/or contract with the state to provide services;
   2. Deny payment;
   3. Assess and collect a civil monetary penalty with interest from the facility owner and/or facility administrator;
   4. Appoint temporary management;
   5. Close the facility and/or transfer residents to another certified facility;
   6. Direct a plan of correction;
   7. Ban admission of persons with certain diagnoses or requiring specialized care;
   8. Ban all admissions to the facility;
   9. Assign monitors to the facility; or
   10. Reduce the licensed bed capacity.
3. Any person, including any officer or employee of a financial institution, who has reasonable cause to believe that a vulnerable adult is being abused, neglected or exploited may report such information to the commission or its providers.
4. The commission and its providers shall make training available to officers and employees of financial institutions in identifying and reporting instances of abuse, neglect or exploitation involving vulnerable adults.
5. Any person who makes any report pursuant to this chapter, or who testifies in any administrative or judicial proceeding arising from such report, or who is authorized to provide supportive or emergency services pursuant to the provisions of this chapter, shall be immune from any civil or criminal liability on account of such report, testimony or services provided in good faith, except that such immunity shall not extend to perjury, reports made in bad faith or with malicious purpose nor, in the case of provision of services, in the presence of gross negligence under the existing circumstances. (6) Any person who makes a report or allegation in bad faith, with malice or knowing it to be false, shall be liable to the party against whom the report was made for the amount of actual damages sustained or statutory damages in the amount of five hundred dollars ($500), whichever is greater, plus attorney’s fees and costs of suit. If the court finds that the defendant acted with malice or oppression, the court may award treble actual damages or treble statutory damages, whichever is greater.

Any action taken by the department pursuant to this subsection shall be appealable as provided in chapter 52, title 67, Idaho Code.

§ 39-5303A. Exemption from duty to report — Limited application of exemption.

1. The requirements set forth in section 39-5303, Idaho Code, pertaining to the reporting of instances of abuse, neglect or exploitation of a vulnerable adult to the commission or the department shall not apply to situations involving resident-to-resident contact within public or private health facilities or state licensed or certified facilities which serve vulnerable adults, except in those cases involving sex abuse, death or serious physical injury that jeopardizes the life, health or safety of a vulnerable adult or repeated resident-to-resident physical or verbal altercations, not resulting in observable physical or mental injury, but constituting an ongoing pattern of resident behavior that a facility’s staff are unable to remedy through reasonable efforts.
2. This exemption applies only to reports involving resident-to-resident abuse that are to be directed to the commission or the department pursuant to section 39-5303, Idaho Code. This exemption shall not limit any other reporting obligation or requirement whether statutory or otherwise.

§ 39-5304. Reporting requirements, investigation, emergency access.

1. When a report is required pursuant to this chapter, such report shall be made immediately to the commission or appropriate provider. Provided however, that nursing facilities defined in section 39-1301(b), Idaho Code, and employees of such facilities shall make reports required under this chapter to the department. If known, the report shall contain the name and address of the vulnerable adult; the caretaker; the alleged perpetrator; the nature and extent of suspected abuse, neglect or exploitation; and any other information that will be of assistance in the investigation.
2. If the allegations in the report indicate that an emergency exists, the commission or provider must initiate an investigation immediately and initiate contact with the alleged vulnerable adult within twenty-four (24) hours from the time the report is received. All other investigations must be initiated within seventy-two (72) hours from the time the report is received.
3. The investigation shall include a determination of the nature, extent and cause of the abuse, neglect, or exploitation, examination of evidence and consultation with persons thought to have knowledge of the circumstances, and identification, if possible, of the person alleged to be responsible for the abuse, neglect or exploitation of the vulnerable adult.
4. Where no emergency exists, the commission or provider may determine, based on the review of the report and any initial inquiries, that an interview with the vulnerable adult is not necessary to the investigation. If the commission or provider determines that an interview is necessary, the preferred method of interviewing is by means of a personal visit with the vulnerable adult in the adult’s dwelling. Alternatively, the interview may occur in the local office of the commission or provider, or by telephone conversation, or by any other means available to the commission or provider. Decisions regarding the method of conducting any interview will be within the discretion of the commission or provider.
5. Upon completion of an investigation, the commission or provider shall prepare a written report of the investigation. The name of the person making the original report or any person mentioned in the report shall not be disclosed unless those persons specifically request such disclosure or unless the disclosure is made pursuant to the commission’s duty to notify law enforcement as required in section 39-5310, Idaho Code, to a request to law enforcement for emergency access, a court order or hearing.

If the abuse, neglect, or exploitation is substantiated to have occurred in a state-certified or licensed facility, a copy of the findings shall be sent to the licensing and certification office of the department.

If the commission or provider determines that a report is unsubstantiated and that no other law has been violated, all records related to the report shall be expunged no later than three (3) years following the completion of the investigation.

§ 39-5305. Inspections — Right of entry.

1. Upon receiving information that a vulnerable adult is alleged to be abused, neglected, or exploited, the commission or provider shall cause such investigation to be made in accordance with the provisions of this chapter as is appropriate. In making the investigation, the commission or provider shall use its own resources and may enlist the cooperation of peace officers. In an emergency, any authorized commission employee or provider shall enlist the cooperation of a peace officer to ensure the safety of the vulnerable adult and shall receive the peace officer’s assistance. Assistance in an emergency may include entry on private or public property where a vulnerable adult is allegedly subject to abuse, neglect or exploitation, and the removal and transportation of the vulnerable adult to a medical facility, care-providing facility, or other appropriate and safe environment.
2. In a nonemergency, any peace officer may cooperate with an authorized commission employee or provider in ensuring the safety of a vulnerable adult who has been abused, neglected or exploited, including a vulnerable adult living in a condition of self-neglect. Assistance shall be provided only with the consent of the vulnerable adult or his legal representative.
3. For the purposes of implementing or enforcing any provision of this chapter or any rule authorized under the provisions of this chapter, any duly authorized commission employee or provider may, upon presentation of appropriate credentials at any reasonable time, with consent or in an emergency, enter upon any private or public property where a vulnerable adult allegedly is subject to abuse, neglect, or exploitation.
4. All inspections and searches conducted under the provisions of this chapter shall be performed in conformity with the prohibitions against unreasonable searches and seizures contained in the fourth amendment to the constitution of the United States and article I, section 17, of the constitution of the state of Idaho. The state shall not, under the authority granted in this chapter, conduct warrantless administrative searches of private property except with consent, or in an emergency.
5. If consent to entry is not given, a commission employee or provider with the assistance of the county prosecutor may obtain, and any magistrate or district judge is authorized to issue, a search warrant upon showing that probable cause exists to believe a vulnerable adult is subject to abuse, neglect or exploitation. Upon request of a commission employee or provider, a peace officer shall serve the search warrant.

§ 39-5306. Supportive services and disclosure.

1. If there is substantiated abuse, neglect, or exploitation of a vulnerable adult, the commission or provider has the responsibility to assist the adult in obtaining available services.
2. If the commission or provider develops a plan of supportive services for the vulnerable adult, the plan shall provide for appropriate supportive services available to the vulnerable adult that are least restrictive to personal freedom and shall provide encouragement for client self-determination and continuity of care.
3. If the vulnerable adult does not consent to the receipt of reasonable and necessary supportive services, or if the vulnerable adult withdraws consent, services shall not be provided or continued.
4. If the commission or provider determines that a vulnerable adult is an incapacitated person as defined in section 15-5-101(a), Idaho Code, mentally ill as defined in section 66-317, Idaho Code, or developmentally disabled as defined in section 66-402, Idaho Code, the commission or provider may petition the court for protective proceedings, appointment of a guardian or conservator and such other relief as may be provided by chapter 5, title 15, Idaho Code, and chapters 3 and 4, title 66, Idaho Code.
5. An employee or provider of the commission shall not be appointed the guardian or conservator of a vulnerable adult unless the commission employee or provider has a spousal or familial relationship with the vulnerable adult.

§ 39-5307. Access to records.

Any person, department, agency or commission authorized to carry out the duties enumerated in this chapter shall have access to all relevant records, which shall be subject to disclosure according to chapter 1, title 74, Idaho Code, and shall only be divulged with the written consent of the vulnerable adult or his legal representative. No medical records of any vulnerable adult may be divulged for any purpose without the express written consent of such person or his legal representative, or pursuant to other proper judicial process.

§ 39-5308. Interagency cooperation.

1. In performing the duties set forth in this chapter, the commission or provider may request the assistance of the staffs and resources of all appropriate state departments, agencies and commissions, and local health directors, and may utilize any other public or private agencies, groups or individuals who are appropriate and who may be available. Interagency cooperation shall include the involvement, when appropriate, of law enforcement personnel, department personnel, medical personnel, and any other person or entity deemed necessary due to their specialized training in providing services to vulnerable adults. Interagency cooperation may also include access to client information necessary for the provision of services to vulnerable adults.
2. The commission shall provide to the department on at least a quarterly basis a listing of all alleged perpetrators against whom an allegation of adult abuse, neglect or exploitation has been substantiated. Upon request, all available supportive information shall be provided to enable the department to conduct criminal background checks and other required investigations.
3. The department shall provide to the commission or provider any report received under this chapter from a nursing facility defined in section 39-1301(b), Idaho Code, or an employee of such facility.
4. The commission or provider shall provide the department with any report received under this chapter involving allegations of abuse, neglect or exploitation occurring in a nursing facility as defined in section 39-1301(b), Idaho Code.
5. The commission, providers, and the department shall use interagency staffing when necessary and share client and facility information necessary to provide services to vulnerable adults.

§ 39-5309. Coordination of services.

Subsequent to the authorization for the provision of reasonable and necessary emergency and support services, the commission or provider shall initiate a review of each case at reasonable intervals over a reasonable period of time as the commission or provider deems necessary based upon the circumstances in each individual case to determine whether continuation or modification of the services provided is warranted. A decision to continue the provision of such services should be made in concert with appropriate personnel from state agencies, departments, service providers and others, and shall comply with the consent provisions of this chapter.

§ 39-5310. Report to law enforcement — Prosecution.

1. If, as the result of any investigation initiated under the provisions of this chapter, it appears that the abuse, neglect, or exploitation has caused injury or a serious imposition on the rights of the vulnerable adult, the commission shall immediately notify the appropriate law enforcement agency which shall initiate an investigation and shall determine whether criminal proceedings should be initiated against the caretaker or other persons in accordance with applicable state law. Notwithstanding the prohibition against disclosure of names of persons associated with the written report of an investigation as provided in section 39-5304, Idaho Code, the commission shall disclose names associated with the written report when notification is made as required in this section.
2. The abuse, neglect or exploitation of a vulnerable adult is a crime under section 18-1505, Idaho Code, and is subject to punishments provided in that section and other applicable state law.

§ 39-5311. Effect of actions taken pursuant to the natural death act.

Any action taken by a physician or health facility pursuant to an agreement with a vulnerable adult in accordance with the provisions of chapter 45, title 39, Idaho Code, shall not be construed to constitute abuse, exploitation, or neglect, so long as it is consistent with the withholding or withdrawal of artificial life-sustaining procedures from a qualified patient.

§ 39-5312. Rules.

The director of the commission shall have the authority to adopt, promulgate and enforce such rules as he deems necessary in carrying out the provisions of this chapter, subject to the provisions of chapter 52, title 67, Idaho Code.

§ 39-5401. Definitions.

As used in this act:

1. “Artificial insemination” means introduction of semen of a donor as defined herein, into a woman’s vagina, cervical canal or uterus through the use of instruments or other artificial means.
2. “Donor” refers to a man who is not the husband of the woman upon whom the artificial insemination is performed.

§ 39-5402. Performed only by physician.

Only physicians licensed under chapter 18, title 54, Idaho Code, and persons under their supervision may select artificial insemination donors and perform artificial insemination.

§ 39-5403. Consent — Filing and notice requirements.

1. Artificial insemination shall not be performed upon a woman without her prior written request and consent and the prior written request and consent of her husband.
2. Whenever a child is born who may have been conceived by artificial insemination, a copy of the request and consent required under subsection (1) of this section shall be filed by the physician who performs the artificial insemination with the state registrar of vital statistics. The state board of health and welfare shall have the authority to promulgate rules and regulations and to prescribe methods and forms of reporting, and fees to carry out the provisions of this act. Storage, retrieval and confidentiality of records shall be governed by chapter 1, title 74, Idaho Code.
3. The information filed under subsection (2) of this section shall be sealed by the state registrar and may be opened only upon an order of a court of competent jurisdiction, except that pursuant to chapter 1, title 74, Idaho Code, data contained in such records may be used for research and statistical purposes.
4. If the physician who performs the artificial insemination does not deliver the child conceived as a result of the artificial insemination, it is the duty of the mother and her husband to give that physician notice of the child’s birth. The physician who performs the artificial insemination shall not be liable for noncompliance with subsection (2) of this section if the noncompliance is a result of the failure of the mother and her husband to notify the physician of the birth.

§ 39-5404. Restrictions on semen donations.

No semen shall be donated for use in artificial insemination by any person who:

1. Has any disease or defect known by him to be transmissible by genes; or
2. Knows or has reason to know he has a venereal disease.

§ 39-5405. Rights of donor, child, husband.

1. The donor shall have no right, obligation or interest with respect to a child born as a result of the artificial insemination.
2. A child born as a result of the artificial insemination shall have no right, obligation or interest with respect to such donor.
3. The relationship, rights and obligation between a child born as a result of artificial insemination and the mother’s husband shall be the same for all legal intents and purposes as if the child had been naturally and legitimately conceived by the mother and the mother’s husband, if the husband consented to the performance of artificial insemination.

§ 39-5406. Application of act.

Except as may be otherwise provided by a judicial decree entered in any action filed before the effective date of this act, the provisions of this act apply to all persons conceived as a result of artificial insemination as defined herein.

§ 39-5407. Penalty.

A person who violates the provisions of sections 2 [39-5402, Idaho Code], 3 [39-5403, Idaho Code], or 4 [39-5404, Idaho Code], of this act is guilty of a misdemeanor.

§ 39-5408. HTLV-III antibody.

Every hospital, bank or other storage facility where a person has donated semen shall use all reasonable means to detect if the donor has an antibody to HTLV-III in his blood. In the event that an antibody to HTLV-III is detected, such semen shall not be used for any purposes of artificial insemination.

As used in this section, “HTLV-III” means the human T-cell lymphotropic virus type III that causes acquired immunodeficiency syndrome.

§ 39-5501. Legislative findings and intent.

1. Public health officials have concluded that secondhand tobacco smoke causes disease, including lung cancer and heart disease, in nonsmoking adults, as well as causes serious conditions in children such as asthma, respiratory infections, middle ear infections, and sudden infant death syndrome. In addition, public health officials have concluded that secondhand smoke can exacerbate adult asthma and allergies and cause eye, throat and nasal irritation. The conclusions of public health officials concerning secondhand tobacco smoke are sufficient to warrant measures that regulate smoking in public places in order to protect the public health and the health of employees who work at public places.
2. The intent of this chapter is to protect the public health, comfort and environment, the health of employees who work at public places and the rights of nonsmokers to breathe clean air by prohibiting smoking in public places and at public meetings.

§ 39-5502. Definitions.

As used in this chapter:

1. “Auditorium” means a public building where an audience sits and any corridors, hallways or lobbies adjacent thereto.
2. “Bar” means any indoor area open to the public operated primarily for the sale and service of alcoholic beverages for on-premises consumption and where: (a) the service of food is incidental to the consumption of such beverages, or (b) no person under the age of twenty-one (21) years is permitted except as provided in section 23-943, Idaho Code, as it pertains to employees, musicians and singers, and all public entrances are clearly posted with signs warning patrons that it is a smoking facility and that persons under twenty-one (21) years of age are not permitted. “Bar” does not include any area within a restaurant.
3. “Employer” means any person, partnership, limited liability company, association, corporation or nonprofit entity that employs one (1) or more persons, including the legislative, executive and judicial branches of state government; any county, city, or any other political subdivision of the state; or any other separate unit of state or local government.
4. “Indoor shopping mall” means an indoor facility located at least fifty (50) feet from any public street or highway and housing no less than ten (10) retail establishments.
5. “Public meeting” means all meetings open to the public.
6. “Public place” means any enclosed indoor place of business, commerce, banking, financial service or other service-related activity, whether publicly or privately owned and whether operated for profit or not, to which persons not employed at the public place have general and regular access or which the public uses including:
   1. Buildings, offices, shops or restrooms;
   2. Waiting rooms for means of transportation or common carriers;
   3. Restaurants;
   4. Theaters, auditoriums, museums or art galleries;
   5. Hospitals, libraries, indoor shopping malls, indoor sports arenas, concert halls, or airport passenger terminals, and within twenty (20) feet of public entrances and exits to such facilities;
   6. Public or private elementary or secondary school buildings and educational facilities and within twenty (20) feet of entrances and exits of such buildings or facilities;
   7. Retail stores, grocery stores or arcades;
   8. Barbershops, hair salons or laundromats;
   9. Sports or fitness facilities;
   10. Common areas of nursing homes, resorts, hotels, motels, bed and breakfast lodging facilities and other similar lodging facilities, including lobbies, hallways, restaurants and other designated dining areas and restrooms of any of these;
   11. Any child care facility subject to licensure under the laws of Idaho, including those operated in private homes, when any child cared for under that license is present;
   12. Public means of mass transportation including vans, trains, taxicabs and limousines when passengers are present; and
   13. Any public place not exempted by section 39-5503, Idaho Code.
7. “Publicly-owned building or office” means any enclosed indoor place or portion of a place owned, leased or rented by any state, county or municipal government, or by any agency supported by appropriation of, or by contracts or grants from, funds derived from the collection of federal, state, municipal or county taxes.
8. “Restaurant” means an eating establishment including, but not limited to, coffee shops, cafes, cafeterias, and private and public school cafeterias, which gives or offers for sale food to the public, guests, or employees, as well as kitchens and catering facilities in which food is prepared on the premises for serving elsewhere. The term “restaurant” shall include a bar area within a restaurant.
9. “Smoking” includes the possession of any lighted tobacco product in any form.
10. “Smoking area” means a designated area in which smoking is permitted.

§ 39-5503. Prohibitions — Exceptions.

1. No person shall smoke in a public place, publicly-owned building or office, or at a public meeting, except in the following which may contain smoking areas or be designated as smoking areas in their entirety:
   1. Bars;
   2. Retail businesses primarily engaged in the sale of tobacco or tobacco products;
   3. Buildings owned and operated by social, fraternal, or religious organizations when used by the membership of the organization, their guests or families, or any facility that is rented or leased for private functions from which the public is excluded and for which arrangements are under the control of the sponsor of the function;
   4. Guest rooms in hotels, motels, bed and breakfast lodging facilities, and other similar lodging facilities, designated by the person or persons having management authority over such public lodging establishment as rooms in which smoking may be permitted;
   5. Theatrical production sites, if smoking is an integral part of the story in the theatrical production;
   6. Areas of owner-operated businesses, with no employees other than the owner-operators, that are not commonly open to the public;
   7. Any office or business, other than child care facilities, located within the proprietor’s private home when all such offices and/or businesses occupy less than fifty percent (50%) of the total area within the private home;
   8. Idaho state veterans homes, established pursuant to section 66-901, Idaho Code, that permit smoking in designated areas, provided that physical barriers and ventilation systems are used to reduce smoke in adjacent nonsmoking areas; and
   9. A designated employee breakroom established by a small business owner employing five (5) or fewer employees, provided that all of the following conditions are met:
      1. The breakroom is not accessible to minors;
      2. The breakroom is separated from other parts of the building by a floor to ceiling partition;
      3. The breakroom is not the sole means of entrance or exit to the establishment or its restrooms and is located in an area where no employee is required to enter as part of the employee’s work responsibilities. For purposes of this paragraph, the term “work responsibilities” does not include custodial or maintenance work performed in a breakroom when it is unoccupied; and
      4. “Warning: Smoking Permitted” signs are prominently posted in the smoking breakroom and properly maintained by the employer. The letters on such signs shall be at least one (1) inch in height.
2. This section shall not be construed to require employers to provide reasonable accommodation to smokers, or to provide breakrooms for smokers or nonsmokers.
3. Nothing in this section shall prohibit an employer from prohibiting smoking in an enclosed place of employment.

§ 39-5504. Designated smoking areas. [Repealed.]

§ 39-5505. Smoking in elevators prohibited.

Notwithstanding any other provision of this chapter or any other statute, or county or city ordinance, no person shall smoke in any elevator generally accessible to the public. Signs indicating that smoking is prohibited shall be conspicuously posted in each elevator and at each entrance to an elevator car or bank of elevators.

§ 39-5506. Responsibilities of employers.

1. No employer or other person in charge of a public place or publicly-owned building or office shall knowingly or intentionally permit the smoking of tobacco products in violation of this chapter.
2. Any employer or other person in charge of a public place or publicly-owned building or office who knowingly violates the provisions of this section is guilty of an infraction and is subject to a fine not to exceed one hundred dollars ($100).
3. Any employer who discharges or in any manner discriminates against an employee because that employee has made a complaint or has given information to the department of health and welfare or the department of labor pursuant to this section shall be subject to a civil penalty of not less than one thousand dollars ($1,000) nor more than five thousand dollars ($5,000) for each violation.

§ 39-5507. Violations.

An employer, or other person in charge of a public place or publicly owned building, or the agent or employee of such person, who observes a person smoking in apparent violation of this chapter shall ask the person to extinguish all lighted tobacco products. If the person persists in violating this chapter, the employer, person in charge, agent or employee shall ask the person to leave the premises. Any person who refuses to either extinguish all lighted tobacco products or leave the premises is guilty of an infraction and is subject to a fine of seventeen dollars and fifty cents ($17.50). Any violation may be reported to a law enforcement officer.

§ 39-5508. Rules and regulations.

The director of the Idaho department of health and welfare shall adopt rules and regulations necessary, reasonable and consistent with the intent of this chapter to implement the provisions of this chapter. The director may, upon request, waive the provisions of said rules and regulations if it is determined that there are compelling reasons to do so and a waiver will not significantly affect the health and comfort of nonsmokers.

§ 39-5509. Other statutes not affected.

The provisions of this chapter shall not be deemed to amend, modify or repeal sections 18-5904, 18-5905 and 18-5906, Idaho Code, relating to no smoking during public meetings.

§ 39-5510. Smoking on buses.

1. Smoking of tobacco or other products in or upon any bus, except a charter bus, is a violation of the provisions of this chapter, and any person smoking tobacco or other products on a bus, except a charter bus shall be guilty of an infraction and shall be punished as provided in section 39-5507, Idaho Code.
2. As used in this section:
   1. “Bus” means any passenger bus or coach or other motor vehicle having a seating capacity of fifteen (15) or more passengers operated by a bus company for the purpose of carrying passengers or cargo for hire.
   2. “Bus company” means any person, group of persons, association, partnership, corporation or other recognized legal entity providing for-hire transportation to passengers or cargo by bus upon the highways in the state, including passengers and cargo in interstate or intrastate travel. These terms also include cities, counties, districts, public corporations, boards and commissions established under the laws of this state providing transportation to passengers or cargo by bus upon the highways in the state, whether or not for hire.
   3. “Charter” means a group of persons, pursuant to a common purpose and under a single contract, and at a fixed charge in accordance with a bus company’s tariff, which has acquired the exclusive use of a bus to travel together to a specified destination or destinations, or special excursions to one (1) specific destination.

§ 39-5511. Local provisions.

Nothing in this chapter shall be interpreted to prevent local, county or municipal governments from adopting ordinances or regulations more restrictive than the provisions contained herein.

§ 39-5601. Legislative intent.

The purpose and intent of this chapter is to authorize personal assistance services for medicaid eligible participants in the participant’s home and community. It is further the purpose of this chapter to help maintain these eligible participants in their own homes in order to provide for the greatest degree of independence and self-reliance possible.

Personal assistance services are an integral component of the long-term care service delivery system and they are to be designed to provide a range of services for persons who are elderly, for persons with disabilities and for children who meet medical necessity criteria for personal care services (PCS). These services are to help individuals compensate for functional limitations and are to be delivered over a sustained period of time to persons who lost or never acquired some degree of functional capacity. Services will be viewed as enhancing the quality of life, individual choice, consumer control, independence and community integration.

Personal assistance services related to functional need shall be provided in order to maintain the independence, privacy, and dignity of the individual in the least restrictive, most cost-effective setting.

The participant and, at the option of the participant, the family of the participant, if available, shall be involved in the development of the individual service plan based on the participant’s needs identified through an assessment conducted by the department.

§ 39-5602. Definitions.

As used in this chapter, the following terms shall have the following meanings:

1. “Department” means the department of health and welfare of the state of Idaho.
2. “Director” means the director of the department of health and welfare.
3. “Eligible participant” or “participant” means an individual determined eligible by the department for Idaho medicaid services, as authorized by title XIX, of the social security act, as amended.
4. “Fiscal intermediary agency” means an entity that provides services that allow the participant receiving personal assistance services, or his designee or legal representative, to choose the level of control he will assume in recruiting, selecting, managing, training and dismissing his personal assistant and over the manner in which services are delivered.
5. “Individual service plan” means a document which outlines all services including, but not limited to, personal assistance services and IADLs, required to maintain the individual in his or her home and community.
6. “Instrumental activities of daily living (IADL)” means those activities performed in supporting the activities of daily living for an adult, including, but not limited to: managing money, preparing meals, shopping, light housekeeping, using the telephone, or getting around in the community.
7. “PCS family alternate care provider” means an individual licensed by the department to provide personal care services to one (1) or two (2) children who are unable to reside in their own home and require assistance with medically oriented tasks related to the child’s physical or functional needs.
8. “Personal assistance agency” means an entity that recruits, hires, fires, trains, supervises, schedules, oversees quality of work, takes responsibility for services provided, provides payroll and benefits for personal assistants working for them, is the employer of record and in fact.
9. “Personal assistance services” includes both attendant care services and personal care services and means services that involve personal and medically oriented tasks dealing with the functional needs of the participant and accommodating the participant’s needs for long-term maintenance, supportive care or IADLs. These services may include, but are not limited to, personal assistance and medical tasks that can be done by unlicensed persons or delegated to unlicensed persons by a health care professional or participant. Services shall be based on the participant’s abilities and limitations, medical diagnosis or other category of disability.
10. “Personal assistant” means an individual who directly provides personal assistance services.
11. “Personal care services (PCS)” means a range of medically oriented care services related to a participant’s physical or functional requirements. These services are provided in the participant’s home or personal residence but do not include housekeeping or skilled nursing care.
12. “Provider” means a personal assistance agency, a fiscal intermediary agency or a PCS family alternate care provider.
13. “Representative” means an employee of the department of health and welfare.
14. “Service coordination” means a case management activity that assists individuals eligible for medicaid in gaining and coordinating access to necessary care and services appropriate to the needs of the individual. Service coordination is a brokerage model of case management. (15) “Voucher service option” means a method of service provision whereby the participant receives vouchers to pay for personal assistance services.

§ 39-5603. Standards for provision of personal assistance services.

The director shall have the power and it shall be his duty to promulgate and adopt appropriate rules necessary to implement and enforce standards for provision of personal assistance services.

The following standards for provision of personal assistance services and other provisions contained throughout this chapter and rules shall apply to participants and providers receiving or providing personal assistance services either as a medicaid option service or a waivered service, unless prohibited by federal law or contents of the federal waiver agreement.

1. Personal care services shall be included in the medicaid services described in section 56-255(3) and (4), Idaho Code.
2. Attendant care shall be included as a service under medicaid home and community-based waiver(s).
3. All attendant care services must be authorized by the department or its designee.
4. The department will establish by rule maximum hours per month of personal care services available to the individual participant under the state medicaid plan.
5. The department shall enter into agreements with providers for the provision of personal assistance services. A single provider may operate as both a personal assistance agency and a fiscal intermediary agency. However, the agency must clearly document whether it is operating as a personal assistance agency or as a fiscal intermediary for each participant. The department may deny provider status or revoke that status when a provider is found to endanger the health, person or property of the participant, or is in violation of rules promulgated by the department or the provider agreement.
6. A personal assistance agency shall have the responsibility for the following:
   1. Recruitment, hiring, firing, training, supervision, scheduling, payroll, and the assurance of quality of service, of its personal assistants;
   2. Complying with state and federal labor and tax laws, rules and regulations;
   3. Maintaining liability insurance coverage;
   4. Provision of an appropriately qualified nurse when required;
   5. Assignment of a qualified personal assistant to each authorized participant after consultation with and prior approval of that participant;
   6. Assuring all personal assistants providing services meet the standards and qualifications of this chapter;
   7. Billing medicaid for services approved and authorized;
   8. Collecting any participant contribution due;
   9. Referring participants to the department for service coordination services based on established criteria;
   10. Providing for care by a qualified replacement when the regular personal assistant is unable to provide the services, and providing for unanticipated services approved on the individual service plan when requested by the participant; and
   11. Conducting, at least annually, participant satisfaction/quality control reviews available to the department and general public.
7. A fiscal intermediary agency shall have the responsibility for the following:
   1. To assure compliance with legal requirements related to the employment of participant/family directed personal assistants;
   2. To offer services to enable participants or families to perform required employer tasks themselves;
   3. To bill the medicaid program for services approved and authorized by the department;
   4. To collect any participant contribution due;
   5. To pay personal assistants for services;
   6. To perform all necessary withholding as required by state and federal labor and tax laws, rules and regulations;
   7. To assure that all personal assistants providing services meet the standards and qualifications of this chapter;
   8. To refer participants to service coordination services based on established criteria;
   9. To maintain liability insurance coverage;
   10. To conduct, at least annually, participant satisfaction and quality control reviews which shall be available to the department and to the general public; and
   11. To maintain documentation that the participant or his legal representative agrees in writing that he takes responsibility for and accepts potential risks, and any resulting consequences, for his choice to manage his own personal assistance services.
8. Personal assistants are not employees of the state.
9. Service coordination shall be made available to personal assistance participants where and when appropriate. In order to avoid a conflict of interest, service coordination shall not be provided by the same agency that provides personal assistance services to the participant.
10. The department’s regional medicaid staff shall review and approve the individual service plan, authorize personal assistance services, the hours of service, and make appropriate referrals for service coordination for eligible individuals.
11. The department shall establish and maintain a community awareness program that will educate Idaho citizens regarding the purpose and function of all long-term care alternatives including, but not limited to, personal assistance services and individual participant rights. This program will be developed in cooperation with other state agencies including, but not limited to, the commission on aging and the state independent living council.
12. It shall be the responsibility of the participant or his designee or legal representative, when appropriate, to select the provider of personal assistance services.
13. The department shall provide the participant, his designee or legal representative, with a list of available providers of personal assistance services; however, this does not relieve the participant or his designee or legal representative of the responsibility of provider selection.
14. In those cases where the participant or his designee or legal representative cannot arrange for personal assistance services or asks for help in making arrangements, a representative of the department may arrange for or help arrange for personal assistance services on behalf of the participant.

§ 39-5604. Health and background checks.

The director shall require providers to obtain health tests or screens, criminal background and nurse’s aide registry checks, and licenses and/or certifications necessary to protect the health, person and property of the participant for any personal assistant acting as an employee, agent, or contractor of a provider. He may deny provider status or revoke that status when a provider or an employee, agent, or contractor of a provider, is found to endanger the health, person or property of the participant.

§ 39-5605. Training of personal assistants.

The director may require a personal assistant to successfully complete a training program established by the rules before beginning to provide personal assistance services. Those providing personal assistance services when the rule is established will be given a reasonable period of time to obtain the required training. The director may establish different training requirements for different services provided and for personal assistants serving participants with intensive needs. The department shall conduct training to include, but not be limited to, administrative rules, billing procedures and service requirements.

§ 39-5606. Payment to be made to provider. [Repealed.]

Repealed by S.L. 2011, ch. 164, § 1, effective July 1, 2011.

§ 39-5607. Effect of personal assistance agency rates. [Repealed.]

§ 39-5608. Liability of actions under this chapter.

1. The participant, his designee or legal representative, if such is responsible, shall be liable for any acts of the participant performed or committed while receiving care or services under the provisions of this chapter.
2. The department shall not be held liable for any actions under this chapter, except pursuant to section39-5603(13) [39-5603(12)], Idaho Code, when the representative of the department is acting on behalf of the participant, his designee or legal representative; however, the provisions of section39-5603(11) [39-5603(10)], Idaho Code, shall remain in force.
3. Nothing in this chapter shall exempt the provider of services from any liability caused by such provider’s negligence, abuse, or other improper action of the provider.

§ 39-5609. Personal assistance oversight committee.

The department shall establish, as part of the medical care advisory committee (MCAC), an oversight subcommittee consisting of providers of personal assistance services and participants of such services and advocacy organizations representing such participants, and other interested parties, for the purpose of planning, monitoring, and recommending changes to the medicaid waiver and personal assistance programs to the MCAC. At least fifty-one percent (51%) of the committee membership shall be participants or their representatives.

§ 39-5701. Legislative findings and intent.

The prevention of youth access to tobacco products and electronic smoking devices within the state of Idaho is hereby declared to be a state goal to promote the general health and welfare of Idaho’s young people.

Tobacco use is the leading cause of preventable death in Idaho, and nicotine is a highly addictive, potentially harmful substance. Both present an urgent public health challenge. New and emerging tobacco products and electronic nicotine delivery devices like electronic cigarettes are linked to an increase in youth use of tobacco and nicotine products, are connected to the use of traditional tobacco products like cigarettes, and are associated with increased addiction in youth users. Therefore, it is this state’s policy to prevent the illegal sale, theft, and easy access of tobacco products and electronic smoking devices to minors, to prohibit the possession, distribution, and use of tobacco products and electronic smoking devices by minors, and to otherwise discourage and prevent the possession, use, and trafficking in tobacco products and electronic smoking devices by minors.

§ 39-5702. Definitions.

The terms used in this chapter are defined as follows:

1. “Business” means any company, partnership, firm, sole proprietorship, association, corporation, organization, or other legal entity, or a representative of the foregoing entities.
2. “Delivery sale” means to distribute tobacco products or electronic smoking devices to a consumer in a state where either:
   1. The individual submits the order for such sale by means of a telephonic or other method of voice transmission, data transfer via computer networks, including the internet and other online services, or facsimile, or the mails; or
   2. The tobacco products or electronic smoking devices are delivered by use of the mails or a delivery service.
3. “Delivery service” means any person who is engaged in the commercial delivery of letters, packages or other containers.
4. “Department” means the state department of health and welfare or its duly authorized representative.
5. “Distribute” means to give, deliver, sell, offer to give, offer to deliver, offer to sell or cause any person to do the same or hire any person to do the same.
6. “Minor” means a person under eighteen (18) years of age.
7. “Minor exempt permit” means a permittee location whose revenues from the sale of alcoholic beverages for on-site consumption comprises at least fifty-five percent (55%) of total revenues, or whose products and services are primarily obscene, pornographic, profane, or sexually oriented, is exempt from inspections assisted by a minor, if minors are not allowed in the location and such prohibition is posted clearly on all entrance doors.
8. “Permit” means a permit issued by the department for the sale or distribution of tobacco products or electronic smoking devices.
9. “Permittee” means the holder of a valid permit for the sale or distribution of tobacco products or electronic smoking devices.
10. “Photographic identification” means state, district, territorial, possession, provincial, national or other equivalent government driver’s license, identification card or military card, in all cases bearing a photograph and a date of birth, or a valid passport.
11. “Random unannounced inspection” means an inspection of retail outlets by a law enforcement agency or by the department, with or without the assistance of a minor, to monitor compliance of this chapter.
12. “Seller” means the person who physically sells or distributes tobacco products or electronic smoking devices.
13. 1. “Tobacco product or electronic smoking device” means: (13)(a) “Tobacco product or electronic smoking device” means:
       1. Any substance containing, made of, or derived from tobacco or nicotine that is intended for human consumption or is likely to be consumed, whether inhaled, absorbed, or ingested by any other means, including but not limited to cigarettes, cigars, pipes, snuff, smoking or chewing tobacco, snus, tobacco papers, or smokeless tobacco;
       2. Any electronic smoking device that may be used to deliver an aerosolized or a vaporized substance to the person inhaling from the device, including but not limited to an electronic cigarette, an electronic cigar, an electronic pipe, a vape pen, or an electronic hookah, or any component, part, or accessory of such a device, or any substance intended to be aerosolized or vaporized during use of the device, whether or not the substance contains nicotine, or any heated or lighted device intended to be used for inhalation; or (iii) Any components, parts, or accessories of a tobacco product or an electronic smoking device, whether or not they contain tobacco or nicotine, including but not limited to filters, rolling papers, blunt or hemp wraps, and pipes, whether manufactured, distributed, marketed, or sold as an electronic cigarette, electronic cigar, electronic hookah, or vape pen, or under any other product name or descriptor.
    2. The term “tobacco product or electronic smoking device” does not include drugs, devices, or combinations of products authorized for sale by the United States food and drug administration as those terms are defined in the federal food, drug, and cosmetic act.
14. “Vending machine” means any mechanical, electronic, or other similar device which, upon the insertion of tokens, money or any other form of payment, dispenses tobacco products or electronic smoking devices.
15. “Vendor-assisted sales” means any sale or distribution in which the customer has no access to the product except through the assistance of the seller.
16. “Without a permit” means a business that has failed to obtain a permit or a business whose permit is suspended or revoked.

§ 39-5703. Possession, distribution, or use by a minor.

1. It shall be unlawful for a minor to possess, receive, purchase, use, or consume tobacco products or electronic smoking devices or to attempt any of the foregoing.
2. It shall be unlawful for a minor to sell or distribute tobacco products or electronic smoking devices or to attempt either of the foregoing.
3. It shall be unlawful for a minor to provide false identification or make any false statement regarding their age in an attempt to obtain tobacco products or electronic smoking devices.
4. A minor who is assisting with a random unannounced inspection in accordance with this chapter shall not be in violation of this chapter.
5. A minor may possess but not sell or distribute tobacco products or electronic smoking devices in the course of employment, for duties such as stocking shelves or carrying purchases to customers’ vehicles.
6. Penalties for violations by a minor. A violation of subsection (1) of this section by a minor shall constitute an infraction and shall be punishable by a fine of seventeen dollars and fifty cents ($17.50). The first violation of subsection (2) or (3) of this section by a minor shall constitute an infraction and shall be punishable by a fine of two hundred dollars ($200). A subsequent violation of subsection (2) or (3) of this section by a minor shall constitute a misdemeanor and shall be punishable by imprisonment in an appropriate facility not exceeding thirty (30) days, a fine not exceeding three hundred dollars ($300), or both such fine and imprisonment. The court may, in addition to the penalties provided in this section, require the minor and the minor’s parents or legal guardian to attend tobacco product or electronic smoking device awareness programs or to perform community service in programs related to tobacco product or electronic smoking device awareness.

§ 39-5704. Permitting of tobacco products or electronic smoking devices retailers.

1. It shall be unlawful to sell or distribute or offer tobacco products or electronic smoking devices for sale or distribution at retail or to possess tobacco products or electronic smoking devices with the intention of selling at retail without having first obtained a tobacco product or electronic smoking device permit from the department, which shall be the only retail tobacco product or electronic smoking device permit or license required. Provided however, this section shall not be deemed to require a wholesaler or manufacturer’s representative or employees who, in the course of their employment, stock shelves and replenish tobacco products or electronic smoking devices at a permittee’s place of business to obtain a permit.
2. The department shall administer the permitting of tobacco product or electronic smoking device retailers and shall be authorized to ensure compliance with this chapter. The department may promulgate rules in compliance with chapter 52, title 67, Idaho Code, regarding permitting of tobacco product or electronic smoking device retailers, inspections, and compliance checks, effective training, and employment practices under this chapter.
3. Permits shall be issued annually for each business location to ensure compliance with the requirements of this chapter. A copy of this chapter, rules adopted by the department, appropriate signage required by this chapter, and any materials deemed necessary shall be provided with each permit issued.
4. A separate permit must be obtained for each place of business and is nontransferable to another person, business, or location.
5. Permittees may display the permit in a prominent location.
6. A permittee may display a sign in each location within a place of business where tobacco products or electronic smoking devices are sold or distributed. A sign may be clearly visible to the customer and the seller and shall state: “STATE LAW PROHIBITS THE SALE OF TOBACCO PRODUCTS OR ELECTRONIC SMOKING DEVICES TO PERSONS UNDER THE AGE OF EIGHTEEN (18) YEARS. PROOF OF AGE REQUIRED. ANYONE WHO SELLS OR DISTRIBUTES TOBACCO PRODUCTS OR ELECTRONIC SMOKING DEVICES TO A MINOR IS SUBJECT TO STRICT FINES AND PENALTIES. MINORS ARE SUBJECT TO FINES AND PENALTIES.”
7. Permittees are responsible to educate employees as to the requirements of this chapter.
8. It shall be unlawful for the permittee to allow employees who are minors to sell or distribute tobacco products or electronic smoking devices. Exception: Employees who are minors may possess but not sell or distribute tobacco products or electronic smoking devices in the course of employment, for such duties as stocking shelves or carrying purchases to customers’ vehicles.

§ 39-5705. Sale or distribution of tobacco products or electronic smoking devices to a minor.

1. It shall be unlawful to sell, distribute, or offer tobacco products or electronic smoking devices to a minor.
2. It shall be an affirmative defense that the seller of a tobacco product or an electronic smoking device to a minor in violation of this section had requested, examined, and reasonably relied upon a photographic identification from such person establishing that the person is at least eighteen (18) years of age prior to selling such person a tobacco product or an electronic smoking device. The failure of a seller to request and examine photographic identification from a person under eighteen (18) years of age prior to the sale of a tobacco product or an electronic smoking device to such person shall be construed against the seller and form a conclusive basis for the seller’s violation of this section.

§ 39-5707. Opened packages and samples.

1. It shall be unlawful to sell or distribute tobacco products or electronic smoking devices for commercial purposes other than in the federally required sealed package provided by the manufacturer with all the required warning labels and health warnings.
2. It shall be unlawful to sell or distribute tobacco products or electronic smoking devices for free or below the cost of such products to the sellers or distributors of the products for commercial or promotional purposes to members of the general public in public places or at public events.

§ 39-5708. Civil penalties for violations of permit.

1. Any permittee who fails to comply with any part of this chapter or any current state or local law or rule or regulation regarding the sale or distribution of tobacco products or electronic smoking devices shall be subject to a civil penalty as provided in this section or have their permit suspended, pursuant to compliance with the contested case provisions of the Idaho administrative procedure act, chapter 52, title 67, Idaho Code, or both.
2. If a seller who is not a permittee violates section 39-5705, Idaho Code, and sells or distributes tobacco products or electronic smoking devices to a minor, then the seller shall be fined one hundred dollars ($100).
3. In the case of a first violation, the permittee shall be notified in writing of penalties to be levied for further violations.
4. In the case of a second violation, the permittee shall be fined two hundred dollars ($200) and shall be notified in writing of penalties to be levied for further violations. For a violation of section 39-5705, Idaho Code, the permittee shall not be fined if the permittee can show that a training program was in place for the employee and that the permittee has a form signed by that employee on file stating that the employee understands the tobacco product or electronic smoking device laws dealing with minors and the unlawful purchase of tobacco products or electronic smoking devices, but the permittee shall be notified in writing of penalties to be levied for any further violations. If no such training is in place, the permittee shall be fined two hundred dollars ($200).
5. In the case of a third violation in a two (2) year period, the permittee shall be fined two hundred dollars ($200) and the permit may be suspended for up to seven (7) days. If the violation is by an employee, at the same location, who was involved in any previous citation for violation, the permittee shall be fined four hundred dollars ($400). Effective training and employment practices by the permittee, as determined by the department, shall be a mitigating factor in determining permit suspension. Tobacco product or electronic smoking device retailers must remove all tobacco products or electronic smoking devices from all areas accessible to or visible to the public while the permit is suspended.
6. In the case of four (4) or more violations within a two (2) year period, the permittee shall be fined four hundred dollars ($400) and the permit shall be revoked until such time that the permittee demonstrates an effective training plan to the department, but in no case shall the revocation be for less than thirty (30) days. Tobacco product or electronic smoking device retailers must remove all tobacco products or electronic smoking devices from all areas accessible to or visible to the public while the permit is revoked.
7. All moneys collected for violations pursuant to this section shall be remitted to the prevention of minors’ access to tobacco products or electronic smoking devices fund created in section 39-5711, Idaho Code.

§ 39-5710. Conduct of enforcement actions.

1. It is the intent of the legislature that law enforcement agencies, the attorney general, and the department shall enforce this chapter and rules promulgated pursuant thereto in a manner that can reasonably be expected to significantly reduce the extent to which tobacco products and electronic smoking devices are sold or distributed to minors.
2. Law enforcement agencies may conduct random unannounced inspections at locations where tobacco products or electronic smoking devices are sold or distributed to ensure compliance with this chapter. A copy of all citations issued under this chapter shall be submitted to the department.
3. The department shall conduct at least one (1) random unannounced inspection per year at all locations where tobacco products or electronic smoking devices are sold or distributed at retail to ensure compliance with this chapter. The department shall conduct inspections for minor exempt permittees without the assistance of a minor. The department shall conduct inspections for all other permittees with the assistance of a minor. Each year, the department shall conduct random unannounced inspections equal to the number of permittees multiplied by the violation percentage rate reported for the previous year multiplied by a factor of ten (10). Local law enforcement agencies are encouraged to contract with the department to perform these required inspections.
4. Minors may assist with random unannounced inspections with the written consent of a parent or legal guardian. When assisting with these inspections, minors shall not provide false identification nor make any false statement regarding their age.
5. Citizens may file a written complaint of noncompliance of this chapter with the department, or with a law enforcement agency. Permit holders under 26 U.S.C. 5712 may file written complaints relating to delivery sales to the department or the attorney general’s offices. Complaints shall be investigated and the proper enforcement actions taken.
6. Within a reasonable time, not later than two (2) business days after an inspection has occurred, a representative of the business inspected shall be informed in writing of the results of the inspection.
7. The attorney general or his designee, or any person who holds a permit under 26 U.S.C. 5712, may bring an action in district court in Idaho to prevent or restrain violations of this chapter by any person or by any person controlling such person.

§ 39-5711. Funding and creation of prevention of minors’ access to tobacco products or electronic smoking devices fund.

There is hereby created the prevention of minors’ access to tobacco products or electronic smoking devices fund in the state treasury. Moneys in the fund shall be used to fund the administration, inspections and enforcement of this chapter. Moneys in the fund may be expended only pursuant to appropriation. The fund shall consist of:

1. The current federal funds that are available for inspections or for the prevention of minors’ access to tobacco products or electronic smoking devices shall be utilized by the department;
2. The fines from the civil penalties pursuant to section 39-5708, Idaho Code; and
3. Moneys from any other source.

§ 39-5712. Severability.

If any section or provision of this chapter is held invalid, such invalidity shall not affect other sections or provisions of this chapter.

§ 39-5713. Local ordinances.

Nothing in this chapter shall be construed to prohibit local units of government from passing ordinances which are more stringent than the provisions of this chapter. Provided however, local units of government shall not have the power to require a permit or license for the sale or distribution of tobacco products or electronic cigarettes.

§ 39-5714. Requirements for delivery sales.

1. No permittee shall make a delivery sale of tobacco products or electronic smoking devices to any individual who is under age eighteen (18) years in this state.
2. Each permittee taking a delivery sale order shall comply with: the age verification requirements set forth in section 39-5715, Idaho Code; the disclosure and notice requirements set forth in section 39-5716, Idaho Code; the shipping requirements set forth in section 39-5717, Idaho Code; the registration and reporting requirements set forth in section 39-5718, Idaho Code; all tax collection requirements provided by title 63, Idaho Code; and all other laws of the state of Idaho generally applicable to sales of tobacco products or electronic smoking devices that occur entirely within Idaho, including but not limited to those laws imposing excise taxes, sales and use taxes, licensing and tax stamping requirements, and escrow or other payment obligations.

§ 39-5715. Age verification requirements.

No permittee shall mail or ship tobacco products or electronic smoking devices in connection with a delivery sale order unless, before mailing or shipping such tobacco products or electronic smoking devices, the permittee accepting the delivery sale order first obtains from the prospective customer a certification that includes proof of age that the purchaser is at least eighteen (18) years old, the credit or debit card used for payment has been issued in the purchaser’s name, and the address to which the tobacco products or electronic smoking devices are being shipped matches the credit card company’s address for the cardholder or employs technology that requires and authenticates independent, third-party age and identity verification services, comparing data against third-party sources.

§ 39-5716. Disclosure and notice requirements.

For all delivery sales a permittee shall post on any advertisement or website:

1. The cautionary language for signs under section 39-5704(6), Idaho Code;
2. A prominent and clearly legible statement that consists of one (1) of the warnings set forth in section 4(a)(1) of the federal cigarette labeling and advertising act (15 U.S.C. section 1333(a)(1)) rotated on a quarterly basis;
3. A prominent and clearly legible statement that sales of cigarettes are taxable under chapter 25, title 63, Idaho Code, and an explanation of how such tax has been, or is to be paid, with respect to such delivery sale.

§ 39-5717. Shipping requirements — Tobacco products or electronic smoking devices.

Each permittee who mails or ships tobacco products or electronic smoking devices in connection with a delivery sale order shall include as part of the shipping documents a clear and conspicuous statement providing as follows:

“TOBACCO PRODUCTS OR ELECTRONIC SMOKING DEVICES: IDAHO LAW PROHIBITS SHIPPING TO INDIVIDUALS UNDER THE AGE OF EIGHTEEN YEARS, AND REQUIRES THE PAYMENT OF TAXES PURSUANT TO CHAPTER 25, TITLE 63, IDAHO CODE. PERSONS VIOLATING THIS MAY BE CIVILLY AND CRIMINALLY LIABLE.”

Anyone delivering any such container distributes tobacco products or electronic smoking devices as defined in section 39-5702(5), Idaho Code, and is subject to the terms and requirements of this chapter. If a permittee taking a delivery sale order also delivers the tobacco products or electronic smoking devices without using a third-party delivery service, the permittee shall comply with all the requirements of vendor-assisted sales as defined in section 39-5702(15), Idaho Code.

§ 39-5717A. Shipping requirements

Electronic cigarettes. [Repealed.]

Repealed by S.L. 2020, ch. 318, § 15, effective July 1, 2020.

§ 39-5718. Registration and reporting requirements.

1. Prior to making delivery sales or shipping tobacco products or electronic smoking devices in connection with any such sales, every business shall obtain a permit from the department and file with the state tax commission a statement setting forth the permittee’s name, trade name, and the address of the business’s principal place of business and any other place of business.
2. No later than the tenth day of each calendar month, each permittee that has made a delivery sale or shipped or delivered tobacco products or electronic smoking devices in connection with any such sale during the previous calendar month shall file with the department and the state tax commission a memorandum or a copy of the invoice that provides for each and every such delivery sale:
   1. The name and address of the individual to whom the delivery sale was made;
   2. The brand or brands of the tobacco products or electronic smoking devices that were sold in such delivery sale; and
   3. The quantity of tobacco products or electronic smoking devices that were sold in such delivery sale.
3. Any tobacco products or electronic smoking devices sold or attempted to be sold in a delivery sale that does not meet the requirements of this chapter shall be forfeited to the state of Idaho.

§ 39-5801. Short title.

This chapter shall be known and may be cited as the “State Hazardous Waste Facility Siting Act.”

§ 39-5802. Legislative intent.

1. The legislature of the state of Idaho hereby finds that adverse public health and environmental impacts can result from the improper land disposal of hazardous waste and that the need for establishing safe sites with adequate capacity for the disposal of hazardous waste is a matter of statewide concern, and the provisions of this chapter are therefore enacted to provide an effective method of establishing such sites.
2. It is the intent of the legislature of the state of Idaho that generators of hazardous waste be encouraged to use on-site and off-site alternative treatment methods to reduce the amount of hazardous waste that must be discharged into the environment and to reduce associated hazards to the health and welfare of the citizens of this state. Alternative management technologies which detoxify, stabilize and reduce the amount of hazardous waste that must be buried are available. For such purpose, the provisions of this chapter are enacted to allow the development of safe alternative methods for the treatment of hazardous waste and to provide a means for the designation of hazardous waste disposal sites when such methods are unable to obviate the need for hazardous waste disposal on land. Whereas the state of Idaho may be responsible for the perpetual care of hazardous waste land disposal facilities, alternative technologies such as incineration, resource recovery, or physical, chemical or biological degradation should be implemented to the maximum extent possible.
3. It is the intent of the legislature that the site license process not duplicate the existing hazardous waste management act permitting process as set forth in section 39-4409, Idaho Code. The site license is a preliminary, general review which is not based on the type of specific, detailed technical information required for the hazardous waste management act permit.

§ 39-5803. Definitions.

As used in this chapter:

1. “Panel” means the site review panel created in section 39-5811 [39-5812], Idaho Code.
2. “Committee” means the state hazardous waste management planning committee created in section 39-5805, Idaho Code.
3. “Department” means the department of environmental quality.
4. “Designated facility” means a hazardous waste treatment, storage or disposal facility which has received a permit or has interim status under title II of the solid waste disposal act or has a permit from the state authorized under section 3006 of title II of the solid waste disposal act (42 U.S.C.A. section 3006) [42 U.S.C. section 6926].
5. “Director” means the director of the department of environmental quality.
6. “Disposal” is defined in section 39-4403, Idaho Code.
7. “Disposal facility” means a facility or a part of a facility at which managed hazardous waste, as defined by rule, is intentionally placed into or on any land or water and at which hazardous waste will remain after closure.
8. “Generator” is defined in section 39-4403, Idaho Code.
9. “Hazardous waste” is defined in section 39-4403, Idaho Code.
10. “Hazardous waste management” is defined in section 39-4403, Idaho Code.
11. “On-site” means on the same or geographically contiguous property which may be divided by a public or private right-of-way if the entrance and exit between the pieces of property are at a crossroads intersection and access is by crossing rather than going along the right-of-way. Noncontiguous pieces of property owned by the same person but connected by a right-of-way which the owner controls and to which the public does not have access is also considered on-site property.
12. “Operator” means the person responsible for the overall operation of a disposal, treatment or storage facility with approval of the director either by contract or permit.
13. “Person” is defined in section 39-4403, Idaho Code.
14. “Plan” means the state hazardous waste management plan prepared under the provisions of section 39-5806, Idaho Code.
15. “Storage” is defined in section 39-4403, Idaho Code.
16. “Storage facility” means a facility or part of a facility at which managed hazardous waste, as defined by rule and regulation is subject to storage.
17. “Title II of the solid waste disposal act” means sections 1001 through 8006 of public law 89-272, 42 U.S.C. 6901, 6902 through 6910, 6912 through 6940 and 6942 through 6986.

For purposes of this chapter, words and phrases defined in section 39-4403, Idaho Code, shall carry the same meaning when used in this chapter unless the context clearly denotes otherwise.

§ 39-5804. Methods of hazardous waste management.

The department and the committee in the conduct of their duties under the provisions of this chapter and under the provisions of chapter 44, title 39, Idaho Code, shall assist in encouraging, developing and implementing methods of hazardous waste management which are environmentally sound, which maximize the utilization of valuable resources and which encourage resource conservation including source separation and waste reduction.

§ 39-5805. State hazardous waste management planning committee — Creation — Members.

1. The state hazardous waste management planning committee is hereby created in the department. The committee shall represent diverse geographical areas of the state. No later than September 1, 1985, the governor shall, subject to the advice and consent of the senate, appoint seventeen (17) members to the committee consisting of the following representatives:
   1. One (1) representative of city government;
   2. One (1) representative of county government;
   3. One (1) hazardous waste transporter;
   4. One (1) hazardous waste generator;
   5. One (1) hazardous waste treatment, storage, or disposal facility operator;
   6. One (1) member of an environmental group;
   7. One (1) member of a conservation group;
   8. Two (2) members of the general public;
   9. The director of the department or his designee;
   10. The director of the department of water resources or his designee;
   11. One (1) licensed professional engineer;
   12. A faculty member of a university or college in this state well versed in geology, hydrology or other environmental matters;
   13. The director of the Idaho transportation department or his designee;
   14. One (1) representative of the mining industry;
   15. One (1) representative of the forest products industry; and
   16. One (1) representative of the agricultural industry.
2. A vacancy occurring on the committee shall be filled in the same manner as the original appointment.
3. The chairman of the committee shall be elected by the members of the committee and the chairman shall be a voting member of the committee.
4. Members of the committee who are not state employees shall be entitled to receive compensation as provided in section 59-509(b), Idaho Code.
5. The committee by majority vote shall establish operating procedures. The operating procedures shall be made available for public review.
6. In the conduct of its business, the committee shall solicit the advice of, and consult periodically with cities, counties and persons within the state for the purpose of receiving information or advice that may be helpful in the preparation of the plan.
7. Employees of the department of environmental quality, department of water resources and the transportation department shall assist the committee on a priority basis.
8. The committee shall disband after final approval of the plan by the legislature.
9. Upon petition to the director and the director’s recommendation to the governor, the governor shall appoint a committee in the same manner as the original committee to amend or revise the plan.

§ 39-5806. State hazardous waste siting management plan — Preparation — Inclusions — Studies — Public hearings — Summary — Amendments — Recommendation.

1. Not later than January 1, 1987, the committee shall prepare a state hazardous waste siting management plan.
2. The plan shall:
   1. Provide for a reasonable geographic distribution of hazardous waste treatment, storage, or disposal facilities to meet existing and probable future needs.
   2. Be based upon location of generators, health and safety, economics of transporting, types of waste and existing hazardous waste treatment, storage, or disposal facilities.
   3. Include necessary legislative, administrative and economic mechanisms, a timetable to carry out the plan.
3. The committee may instruct the department of environmental quality, the department of water resources and the transportation department to complete studies as considered reasonably necessary for the completion of the plan. The studies may include:
   1. An inventory and evaluation of the sources of hazardous waste generation within this state or from other states, including the types and quantities of the hazardous waste.
   2. An inventory and evaluation of current hazardous waste management practices and costs, including treatment and disposal, within this state.
   3. A projection or determination of future hazardous waste management needs based on an evaluation of existing capacities, treatment or disposal capabilities, manufacturing activity, limitations and constraints. Projection of needs shall consider the types and sizes of hazardous waste treatment, storage, or disposal facilities, general locations within the state, management control systems, and an identified need for additional privately owned or state owned treatment, storage, or disposal facilities.
   4. An investigation and analysis of methods and incentives to encourage interstate and international cooperation in the management of hazardous waste.
   5. An investigation and analysis of methods, incentives or technologies for source reduction, reuse, recycling, or recovery of potentially hazardous waste and a strategy for encouraging the utilization or reduction of hazardous waste.
   6. An investigation and analysis of alternate methods for treatment and disposal of hazardous waste.
4. Upon completion of the plan, the committee shall publish a notice after giving twenty (20) days’ notice as provided in section 60-109, Idaho Code, in a number of newspapers and shall issue a statewide news release announcing the availability of the plan for inspection by interested persons. The announcement shall indicate where and how the plan may be obtained or reviewed and shall indicate that not less than three (3) public hearings shall be conducted at varying locations in the state before formal adoption. The first public hearing shall not be held until sixty (60) days have elapsed from the date of the notice announcing the availability of the plan.

§ 39-5807. Amendment or rejection of plan.

The legislature shall amend, adopt or reject the plan by passage of a concurrent resolution at the regular legislative session when it receives the plan. If the legislature amends or rejects the plan, it shall indicate its reasons for amendment or rejection by passage of a concurrent resolution and return the plan to the committee.

§ 39-5808. Siting license required.

No person shall construct, expand, enlarge or alter a commercial hazardous waste disposal, treatment or storage facility or any on-site land disposal facility for wastes listed pursuant to section 201(d)(2) and (e), as modified by section 209 of “The Hazardous and Solid Waste Amendments of 1984,” as enacted by the U.S. congress, without a siting license from the department. The owner or operator of the facility or site rather than the builder shall be responsible for obtaining the license. Facilities exempted from permitting under the provisions of section 39-4409, Idaho Code, shall not require a license under the provisions of this chapter.

§ 39-5809. Permits and licenses — Issuance prior to adoption of plan.

The director may issue permits under the provisions of chapter 44, title 39, Idaho Code, or licenses pursuant to this chapter, for existing or proposed hazardous waste treatment, storage or disposal facilities and other authorized operations before the adoption of the plan by the committee.

§ 39-5810. Licenses — Issuance after adoption of plan.

After the plan has been adopted by the committee, the director shall not issue a license under the provisions of this chapter for a hazardous waste treatment, storage or disposal facility until the director has made a determination that the action is consistent with the adopted hazardous waste management plan. The director may exempt classes or categories of hazardous waste treatment, storage or disposal facilities from complying with the hazardous waste management plan if the exemption is in the public interest and consistent with state and federal law. If the director exempts classes or categories of hazardous waste treatment, storage or disposal facilities from complying with the hazardous waste management plan, rules and regulations shall be promulgated in compliance with chapter 52, title 67, Idaho Code, specifically indicating the exemption.

§ 39-5811. Expansion, enlargement or alteration of treatment, storage, or disposal facility — Review — Siting licenses.

1. A hazardous waste treatment, storage, or disposal facility in existence on July 1, 1985, shall not require a review under the provisions of this chapter.
2. The expansion, enlargement, or alteration of a hazardous waste treatment, storage, or disposal facility in existence on July 1, 1985, constitutes a new proposal for which a siting license is required.

§ 39-5812. Site review panels — Members, chairman, quorum, meetings, staff.

1. A site review panel shall be established to insure public input in the licensing process and to recommend to the director conditions which should be included in the siting license. Such conditions may include measures to mitigate public concerns for the following types of facilities:
   1. All commercial hazardous waste disposal facilities not in existence prior to July 1, 1985;
   2. All commercial hazardous waste treatment or storage facilities not in existence prior to July 1, 1985;
   3. Any on-site disposal of wastes listed pursuant to section 201(d) (2) and (e) as modified by section 209 of “The Hazardous and Solid Waste Amendments of 1984,” as enacted by the U.S. congress, for sites not in existence prior to July 1, 1985;
   4. Any significant expansion of the above-listed facilities after July 1, 1985.
2. The following six (6) members shall serve on every panel established to review a siting license application:
   1. Three (3) members shall be representatives of this state, one (1) each from the department of environmental quality, the department of water resources and the Idaho transportation department. A member who is a representative of this state shall be appointed by each of the directors of the respective departments and a vacancy shall be filled as necessary by the appropriate director. A member who is a representative of the state shall be appointed to serve on site review panels for a period of two (2) years and may be appointed for additional two (2) year periods. In addition, a member who is a representative of the state may serve beyond the expiration of the member’s two (2) year period of service for so long a period of time as is necessary to complete action on siting license applications pending at the expiration of the member’s term.
   2. Three (3) members shall be public members appointed by the governor with the advice and consent of the senate. One (1) public member shall be a geologist or hydrologist, one (1) an engineer, and one (1) a representative of industries which generate hazardous waste. One (1) public member shall be on the faculty of an institution of higher education in this state. A vacancy shall be filled for the unexpired portion of the period in the same manner as the original appointment. A member who is a public member shall be appointed to serve on site review panels for a period of three (3) years and may be appointed for additional three (3) year periods.
3. The following four (4) members shall serve on a panel which is established to consider a particular siting license application:
   1. Two (2) members shall be appointed by the city council of the city located closest to or in which the hazardous waste treatment, storage, or disposal facility is proposed to be located, at least one (1) of whom shall be a resident of the city. The members serving pursuant to this subsection shall serve until the particular siting license application subject to their review is approved, or until the application is rejected and is no longer subject to their review.
   2. Two (2) members shall be residents of the county where the hazardous waste treatment, storage, or disposal facility is proposed to be located and shall be appointed by the board of commissioners of the county. The members serving pursuant to this subsection shall serve until the particular siting license application subject to their review is approved, or until the application is rejected and is no longer subject to their review. (4) The member appointed as the representative of the state from the department shall be chairman of each panel and shall notify the city council of the nearest city and the board of county commissioners of a siting license application filed with the department, and shall instruct the city and county to appoint the necessary representatives to a panel. The chairman shall be a nonvoting member of the panel except when the chairman’s vote is necessary to break a tie vote.
4. The member appointed as the representative of the state from the department shall be chairman of each panel and shall notify the city council of the nearest city and the board of county commissioners of a siting license application filed with the department, and shall instruct the city and county to appoint the necessary representatives to a panel. The chairman shall be a nonvoting member of the panel except when the chairman’s vote is necessary to break a tie vote.
5. Six (6) of the ten (10) members of the panel shall constitute a quorum for the transaction of business of the panel and the concurrence of six (6) members of the panel shall constitute a legal action of the panel. All meetings of the panel shall be conducted pursuant to the state open meeting law.
6. The director shall make staff available to assist a panel in carrying out its responsibilities.
7. Members of the panel who are not state employees shall be entitled to receive compensation as provided in section 59-509(b), Idaho Code.

A panel shall consist of ten (10) members to be appointed as provided in subsections (2) and (3) of this section.

§ 39-5813. Siting license application — Fee — Rules and regulations.

1. An application for a siting license shall include:
   1. The name and residence of the applicant;
   2. The location of the proposed hazardous waste treatment, storage, or disposal facility;
   3. Engineering or hydrogeologic information to indicate compliance with technical criteria as adopted in the hazardous waste management plan if applicable;
   4. A description of the types of wastes proposed to be handled at the facility;
   5. Information showing that harm to scenic, historic, cultural or recreational values is not substantial or can be mitigated;
   6. Information showing that the risk and impact of accident during transport of hazardous waste is not substantial or can be mitigated; and
   7. Information showing that the impact on local government is not adverse regarding health, safety, cost and consistency with local planning and existing development or can be mitigated.
2. Within thirty (30) days after receipt of the application, the director shall determine whether it is complete. If it is not complete, the director shall notify the applicant and state the areas of deficiency.
3. The application shall be accompanied by a siting license fee. The director shall establish by rule, the scale for determining the siting license application fee. The fee shall not exceed seven thousand five hundred dollars ($7,500) and shall be based on the cost to the department of reviewing the siting license application. The scale shall be based on characteristics including the site size, projected waste volume, and hydrogeological characteristics surrounding the site. Fees received pursuant to this section may be expended by the director to pay the actual, reasonable and necessary costs incurred by the department in acting upon a siting license application. The director may promulgate rules and regulations in compliance with chapter 52, title 67, Idaho Code, in order to implement and administer the provisions of this section.

§ 39-5814. Duties of director upon receipt of a siting license application — Recommendation.

1. Upon receipt of a complete siting license application, the director or an authorized representative of the director shall:
   1. Immediately notify the permanent panel members, the city and/or county in which the hazardous waste treatment, storage, or disposal facility is located or proposed to be located, the state fire marshal, the director of the department of fish and game, the director of the Idaho state police, and each division within the department that has responsibility in land, air or water management, and other appropriate agencies. The notice shall describe the procedure and the schedule based on the complexity of the application by which the siting license may be approved or denied.
   2. Immediately publish a notice that the application has been received, as provided in section 60-109, Idaho Code, in a newspaper having major circulation in the county and the immediate vicinity of the proposed hazardous waste treatment, storage, or disposal facility. The required published notice shall contain a map indicating the location of the proposed hazardous waste treatment, storage, or disposal facility and shall contain a description of the proposed action and the location where the complete application package may be reviewed and where copies may be obtained. The notice shall describe the procedure by which the siting license may be granted.
2. Upon notification by the director, the chairman shall immediately notify the representatives of the state to the panel and the public members. The chairman shall also notify the applicable county and city for their appointment of members as provided in subsection (3) of section 39-5812, Idaho Code. Within thirty (30) days after the notification, the board of commissioners of the county and the city council shall select the members to serve on the panel. The panel shall be created at that time and notification of the creation of the panel shall be made to the chairman.
3. If technical criteria are not applicable, the director shall submit to the panel a draft site license which includes conditions based on the information submitted in the application. The director shall also recommend to the panel that the license be issued or denied. The draft license submittal shall be made within sixty-five (65) days after a complete application is received.
4. If technical criteria as adopted in the hazardous waste management plan are applicable, the director shall determine if the proposed facility complies with the criteria. Such determination shall be made within forty-five (45) days after a complete application is received. If the technical criteria are not met, the director shall deny the license and the panel shall be disbanded. If the technical criteria are met, the director shall submit to the panel a draft site license which includes conditions regarding the technical criteria to be met. These conditions may be more stringent than those in the plan if warranted by information provided in the application. The draft license may also include additional conditions based on the information submitted in the application regarding the construction of the facility. The director shall also recommend to the panel that the license be issued or denied. The denial or draft license submittal shall be made within sixty-five (65) days after a complete application is received. The director shall immediately notify the applicant and the chairman of the panel of the denial or draft license submittal.
5. Within ten (10) days after submittal of a draft license, the panel shall meet to review and establish a timetable for the consideration of the draft site license. (6) The panel shall:
6. The panel shall:
   1. Set a date and arrange for publication of notice of a public hearing in a newspaper having major circulation in the vicinity of the proposed site, at its first meeting. The public notice shall:
      1. Contain a map indicating the location of the proposed hazardous waste treatment, storage, or disposal facility, a description of the proposed action, and the location where the application for a siting license may be reviewed and where copies may be obtained;
      2. Identify the time, place and location for the public hearing held to receive public comment and input on the application for a siting license;
   2. Publish the notice not less than thirty (30) days before the date of the public hearing and the notice shall be, at a minimum, a twenty (20) days’ notice as provided in section 60-109, Idaho Code.
7. Comment and input on the proposed hazardous waste treatment, storage, or disposal facility may be presented orally or in writing at the public hearing, and shall continue to be accepted in writing by the panel for fifteen (15) days after the public hearing date.
8. The panel shall consider, among other things:
   1. The risk and impact of accident during the transportation of hazardous waste;
   2. The risk of fires or explosions from improper treatment, storage, or disposal methods;
   3. The impact on local units of government where the proposed hazardous waste treatment, storage, or disposal facility is to be located in terms of health, safety, cost and consistency with local planning and existing development. The panel shall also consider city and county ordinances, permits or other requirements and their potential relationship to the proposed hazardous waste treatment, storage, or disposal facility;
   4. The nature of the probable environmental impact.
9. The panel’s primary responsibility shall be to consider the concerns and objections submitted by the public. The panel shall facilitate efforts to provide that the concerns and objections are mitigated by proposing additional conditions regarding the construction of the facility. The panel may propose conditions which integrate the provisions of the city or county ordinances, permits or requirements.
10. Within ninety (90) days after creation, the panel shall recommend to the director that the license be issued as proposed, issued with different or additional conditions, or denied. The director shall make a final decision within thirty (30) days after receipt of the panel’s recommendation. If the panel recommends different or additional conditions, a clear statement of the need for the condition must be submitted to the director. If the panel recommends denial, a clear statement of the reasons for the denial must be submitted to the director.
11. The director shall issue a siting license if the director determines that:
    1. The technical criteria are met;
    2. The harm to scenic, historic, cultural or recreational values is not substantial or can be mitigated by appropriate license conditions;
    3. The risk and impact of accident during transportation of hazardous waste is not substantial or can be mitigated with appropriate license conditions;
    4. The impact on local government is not adverse regarding health, safety, cost and consistency with local planning and existing development or can be mitigated with appropriate license conditions; and
    5. No other major concerns have been raised by the panel regarding public health or the environment which cannot be mitigated by special license conditions. (12) An applicant denied a siting license pursuant to this chapter or any person aggrieved by a decision of the director pursuant to this chapter may within twenty-eight (28) days, after all remedies have been exhausted under the provisions of this chapter, seek judicial review under the procedures provided in chapter 52, title 67, Idaho Code.

(13) No permit pursuant to section 39-4409, Idaho Code, shall be issued unless the applicant has been issued a site license.

§ 39-5815. Notice for and creation of panel after nonrejection or approval of siting license application — Timetable for consideration of proposed facility — Public hearing — Notice — Comment and input — Municipal impact — Considerations

Advice. [Repealed.]

§ 39-5816. Local restrictions on hazardous waste treatment, storage, or disposal facility construction.

An ordinance, permit requirement or other requirement of a city or county shall not prohibit the construction of a hazardous waste treatment, storage, or disposal facility in that city or county.

§ 39-5817. Coordination and integration with state and federal law.

The director shall coordinate and integrate the provisions of this chapter for purposes of administration and enforcement with appropriate state and federal law.

§ 39-5818. Information obtained — Public record.

1. Except as provided in subsection (2) of this section, information obtained by the department under the provisions of this chapter shall be deemed to be a public record.
2. A person regulated under the provisions of this chapter may designate a record, site license application, other information, or a portion of a record, site license application, or other information furnished to or obtained by the department or its agents, as being only for the use of the department and the panel. The material shall then be subject to disclosure according to chapter 1, title 74, Idaho Code.

§ 39-5819. Certification of city, county, or district health departments.

The department may certify a city, county or health district to administer and enforce portions of this chapter and chapter 44, title 39, Idaho Code, but only to the extent consistent with obtaining and maintaining authorization of the state’s hazardous waste management program pursuant to section 3006 of title II of the solid waste disposal act. Certification procedures shall be established by the department by rule [rules] and regulations. The director may rescind certification upon the request of the certified city, county, or health district, or after reasonable notice and hearing, if the director finds that a city, county, or health district is not administering and enforcing the provisions of this chapter or chapter 44, title 39, Idaho Code, or both, as required.

§ 39-5820. Remedy for devaluation of property caused by approved facility.

1. Before construction of a hazardous waste treatment, storage, or disposal facility, but in no case later than nine (9) months after approval of a site license for a hazardous waste treatment, storage, or disposal facility, any owner or user of real property adversely affected by approval may bring an action in a district court of competent jurisdiction against the owner of the proposed facility. If the court determines that the planned construction and operation of the hazardous waste treatment, storage, or disposal facility will result in the devaluation of the plaintiff’s property or will otherwise interfere with the plaintiff’s rights in the property, it shall order the owner to compensate the plaintiff in an amount equal to the value of the plaintiff’s loss.
2. The remedy provided in subsection (1) of this section shall be in addition to other remedies provided by law for owners or users aggrieved by the proposed construction and operation of a hazardous waste treatment, storage or disposal facility.
3. Nothing in this chapter shall prevent an owner or user of property aggrieved by the construction and operation of a facility from seeking damages that result from a subsequent modification of the design or operation of a facility but such damages are limited to the incremental damage that results from the modification. Any action for such damages under this section shall be brought within nine (9) months after the siting license for modification of the design or operation of the facility is approved.
4. For the purpose of assessing damages, the value of the rights affected is fixed at the date the siting license is approved and the actual value of the right at that date is the basis for the determination of the amount of damage suffered, and no improvements to the property subsequent to the date of approval of the plans shall be included in the assessment of damages. Similarly, for any subsequent modification of a facility, value is fixed at the date of approval of the siting license.
5. The owner or operator of a proposed facility may, at any time before an award of damages, abandon the construction or operation of the facility or any modification and cause the action to be dismissed. As a condition of dismissal, however, the owner or operator shall compensate the plaintiff for any actual damage sustained as a result of construction or operation of the facility before abandonment together with court costs and a reasonable attorney’s fee.
6. Nothing in this chapter shall prevent a court from enjoining any activity at a hazardous waste treatment, storage, or disposal facility that is outside of, or not in compliance with, the terms and conditions of an approved hazardous waste operations permit pursuant to section 39-4409, Idaho Code.

§ 39-5901. Short title.

This act shall be known and cited as the “Idaho Rural Health Care Access Program.”

§ 39-5902. Rural health care access and physician incentive funds.

1. There is hereby created in the state treasury a fund known as the “Rural Health Care Access Fund.” Subject to appropriation by the legislature, moneys in the fund shall be used exclusively for the purpose of grants for improving access to primary care medical services in areas designated as primary care health professional shortage areas and medically underserved areas and their administration pursuant to this chapter.
2. There is hereby created in the state treasury a fund known as the “Rural Physician Incentive Fund.” Money is payable into the fund as provided for in section 33-3723, Idaho Code. The moneys in the rural physician incentive fund are hereby appropriated for the uses of the fund. The state department of health and welfare may use the moneys in the fund to pay:
   1. The educational debts of rural physicians who practice primary care medicine in medically underserved areas of the state that demonstrate a need for assistance in physician recruitment; and
   2. The expenses of administering the rural physician incentive program. The expenses of administering the program shall not exceed ten percent (10%) of the annual fees assessed pursuant to section 33-3723, Idaho Code.

§ 39-5903. Definitions.

As used in this chapter:

1. “Applicant” means an entity submitting documents required by the department for the purpose of requesting a grant from the rural health care access and physician incentive program.
2. “Application period” means the time period from July 1 to August 30 of the state fiscal year for which funding is requested.
3. “Approval” means written notification that the application will be awarded funding through the rural health care access and physician incentive program.
4. “Board” means the joint health care access and physician incentive grant review board.
5. “Community sponsoring organization” means a hospital, medical clinic or other medical organization that is located in an eligible area and employs physicians for purposes of providing primary care medical services to patients.
6. “Department” means the department of health and welfare.
7. “Director” means the director of the department of health and welfare.
8. “Eligible area for physician incentive grants” means a medically underserved area of Idaho, further defined to mean an area designated by the United States secretary of health and human services as a health professional shortage area.
9. “Grant period” means the time immediately following the application period from July 1 through June 30 (state fiscal year) for which funding is granted.
10. “Nurse practitioner” means a health care provider licensed pursuant to chapter 14, title 54, Idaho Code.
11. “Oral health care provider” means a dentist or dental hygienist licensed pursuant to chapter 9, title 54, Idaho Code.
12. “Physician assistant” means a health care provider licensed pursuant to chapter 18, title 54, Idaho Code.
13. “Primary care,” for purposes of rural health care access grants, means the provision of professional comprehensive health services, including oral health care services, that includes health education and disease prevention, initial assessment of health problems, treatment of acute care and chronic health problems, and the overall management of an individual’s or family’s health care services as provided by an Idaho licensed internist, obstetrician, gynecologist, pediatrician, family practitioner, general practitioner, dentist, dental hygienist, nurse practitioner or physician assistant. It provides the initial contact for health services and referral for secondary and tertiary care.
14. “Primary care health professional shortage area” means a geographic area or population group which the U.S. secretary of health and human services has determined is underserved by primary care health professional(s).
15. “Primary care medicine,” for purposes of rural physician incentive grants, means family medicine, general internal medicine and general pediatrics. Provided however, if there is a demonstrated high level of need in an eligible area as determined by the board, it may also include obstetrics and gynecology, general psychiatry, general surgery and emergency medicine.
16. “Medically underserved area” means a geographic area which the U.S. secretary of health and human services has determined is underserved by primary care health professional(s).
17. “Qualified medical education debt” means a debt with a financial aid program or financial institution incurred to meet the educational costs of attending a medical school. (18) “Rural health care access grant” means a grant awarded pursuant to this chapter.
18. “Rural health care access grant” means a grant awarded pursuant to this chapter.
19. “Rural health care access and physician incentive program” means the program that administers the rural health care access and physician incentive funds.
20. “Rural physician,” for purposes of physician incentive grants, means a licensed Idaho physician, whether a medical doctor or doctor of osteopathic medicine, who spends a minimum of twenty-eight (28) hours per week, on average, providing primary care medicine services to patients in an eligible area.
21. “Rural physician incentive fee” means the fee assessed by the state to students preparing to be physicians in the fields of medicine or osteopathic medicine who are supported by the state pursuant to an interstate compact for professional education in those fields, as those fields are defined by the compact.
22. “Rural physician incentive fund” means the special revenue account in the state treasury created pursuant to section 39-5902, Idaho Code, relating to the rural health care access and physician incentive grant program.

§ 39-5904. Joint health care access and physician incentive grant review board.

1. The director shall appoint the members of a board to be known as the joint health care access and physician incentive grant review board, who shall serve at the pleasure of the director. Board members shall not be compensated, but shall be reimbursed for travel expenses incurred for attendance at board meetings.
2. The board shall meet at least annually, for the purposes described in this chapter.
3. The board shall be composed of the following: a representative from the Idaho academy of family physicians, a representative from the nurse practitioner conference group, a rural hospital administrator, a representative from the physician assistant association, a representative from the office of rural health, division of public health, a faculty member from one (1) of the Idaho family medicine residency programs, an Idaho medical association representative, an Idaho hospital association representative, an Idaho primary care association representative, an Idaho area health education center representative, a medical student program administrator representative from each state supported program, and an Idaho association of counties representative.
4. Appointments to the board shall be for three (3) years. Board members may be reappointed at the end of each three (3) year period. Initial appointments shall be staggered in such a manner that approximately one-third (1/3) are appointed for one (1) year, one-third (1/3) are appointed for two (2) years, and one-third (1/3) are appointed for three (3) years.
5. A majority of the board members constitutes a quorum for the transaction of business. A majority vote is required by the quorum in finalizing decisions.

§ 39-5905. Scope of rural health care access and physician incentive grant support.

The board may award grants, in accordance with the procedures and criteria in this chapter, to governmental and nonprofit entities and to physicians for qualified medical education debt repayments for the purpose of improving access to primary health care services to rural and underserved areas and for physician loan repayment.

1. Rural health care access grant awards:
   1. Individual grant awards will be limited to a total of thirty-five thousand dollars ($35,000), direct and indirect costs, per year.
   2. Applicants may propose projects for funding for up to three (3) years.
      1. Continued funding for projects beyond the first grant year, years two (2) and three (3), shall be subject to the appropriation of funds and grantee performance.
      2. No project may be funded for more than a total of three (3) years.
      3. Any unused grant funds shall be returned to the rural health care access fund by the applicant no later than June 1 of the grant period.
   3. No funds awarded under a grant may be used for purchase, construction, renovation or improvement of real property or for projects which are solely or predominantly designed for the purchase of equipment. Use of funds for the purchase of equipment may be allowed when such equipment is an essential component of a program. However, the purchase of equipment may not represent more than forty percent (40%) of the total annual share of a proposal. Indirect costs shall not exceed fifteen percent (15%) of the total project.
2. Physician incentive grant awards:
   1. A physician selected to receive a rural physician incentive grant award shall be entitled to receive qualified medical education debt repayments for a period not to exceed four (4) years in such amount as is determined annually.
   2. Award amounts shall be established annually based on recommendations of the joint health care access and physician incentive grant review board utilizing such factors as availability of funding, the number of new applicants and the hours an award recipient will devote to providing primary care medicine in an eligible area.
   3. The award shall not exceed the qualified medical education debt incurred by the recipient, and the maximum amount of educational debt repayments that a rural physician may receive shall be one hundred thousand dollars ($100,000) over such four (4) year period.
   4. All physician incentive grant awards shall be paid directly from the physician incentive fund to the physician receiving the award.
   5. In determining the awards to be made in any given year, the board shall consider the value of retaining an appropriate balance in the fund for use in future years.
   6. An award payment to a recipient in a single year is not guaranteed or assured in subsequent years and may be increased or reduced.
   7. Any unused grant funds shall be returned to the physician incentive fund by the applicant no later than June 1 of the grant period.

§ 39-5906. Categories of rural health care access and physician incentive grants.

1. There are three (3) categories of rural health care access grant assistance:
   1. Telehealth projects — Grant funds may be used for projects that involve the use of telecommunications technologies for distance learning and for projects to improve access to care for rural communities.
   2. Community development projects — Grant funds may be used for health needs assessments, marketplace analysis, financial analysis and strategic planning activities.
   3. Other — Communities may choose to apply for funds for activities that they have identified and determined will help to improve access to primary care in rural areas, including loan repayment for primary care providers, recruitment incentive, and/or reimbursement of relocation expenses for primary care providers.
2. Physician incentive grants: Grants are limited to loan repayment for physicians providing primary care medicine in eligible areas.

§ 39-5907. Eligibility for grants.

Applicants must meet the following requirements:

1. Rural health care access grant awards:
   1. The geographical area to be benefitted must be located in a current primary care or dental health professional shortage area or a medically underserved area.
   2. The applicant must be a governmental entity or a nonprofit entity registered with the Idaho secretary of state.
2. Rural physician incentive grant awards:
   1. A physician who meets the following requirements is eligible to apply for a rural physician incentive grant award:
      1. During the period covered by the award, the physician must be a rural physician providing primary care medicine in an eligible area. A physician may provide patient care services in primary care medicine in more than one (1) eligible area;
      2. The physician must be a doctor of medicine or doctor of osteopathic medicine and have completed an accreditation council of graduate medical education or American osteopathic association residency;
      3. The physician must be Idaho medical board certified/board eligible, be eligible for an unrestricted Idaho medical license and be able to meet the medical staffing requirements of the sponsoring organization when applicable; and
      4. The physician must accept medicare and medicaid patients within the capacity of his or her primary care medicine practice.
      5. Documentation of one (1) or more vendor price quotes for all proposed equipment purchases;
      6. Contact person for verification of fiscal information;
   2. Physicians who have paid the fee authorized in section 33-3723, Idaho Code, shall be given a preference over other applicants.
   3. A physician shall not be entitled to receive an award under this program if the physician is receiving payments for purposes of repaying qualified medical education debt from another state or from a federal debt repayment program.

§ 39-5908. Rural health care access and physician incentive applications required.

1. A completed grant application must be submitted by the applicant for the purpose of requesting a grant or contract, on or before the conclusion of the application period specified for the appropriate grant cycle. All applications must include the required information.
2. The grant application and any attachments submitted by the applicant shall be the primary source of information for awarding a grant. Additionally, the board may request and/or use other information known to it in making its decision.
3. All rural health care access applications shall include:
   1. Geographical area of need;
   2. Individual or entity requesting funds;
   3. Narrative description of the methods to be used to address needs and demonstrate the potential of the project to improve access to health care services in the community;
   4. Identification of measurable goals, objectives to be used to reach the goals, and the resources necessary to complete each activity;
   5. Estimation of how long it will take to accomplish the individual activities of the project;
   6. Demonstrated community and organizational support for the project;
   7. County or local governmental endorsement;
   8. Operating budget including:
   9. Proportion of operating budget, if any, the applicant proposes to match with the rural health care access grant funds;
      1. Federal tax identification number; and
   10. Other information required by the board.
4. All rural physician incentive applications shall:
   1. Be on a form prescribed by the rural health care access and physician incentive board; and
   2. Include a letter of support along with supporting documentation.

§ 39-5909. Rural health care access and physician incentive grant award schedule.

The board shall conduct the grant process in accordance with the following schedule:

1. The rural health care access and physician incentive program manager will generate, and make available, a list of areas eligible for potential grant assistance no later than May 1 prior to the application period.
2. The rural health care access and physician incentive program manager shall develop an application form and make guidance available no later than July 1 which shall initiate the application period prior to the grant period.
3. The completed application shall be submitted no later than August 30 of the application period.
4. The board shall issue notification to every applicant regarding the disposition of their grant request by October 30 prior to the grant period.
5. Funds for approved rural health care access grants shall be disbursed during November of that grant period or over the course of the current grant year as funds become available.
6. Funds for approved rural physician incentive grants shall be disbursed upon completion of six (6) months of service in an eligible area during the initial grant period and annually thereafter upon completion of a twelve (12) month term of service in an eligible area.

§ 39-5910. Rural health care access and physician incentive award criteria.

1. Rural health care access awards shall be made by the board based on the following weighted criteria:
   1. Background of bidding organization. The applicant must show adequate experience, knowledge, and qualifications to adequately perform the scope of work: weight = 10%;
   2. Community and organizational support. The applicant must demonstrate community and organizational support for the project: weight = 15%;
   3. Specificity and clarity of scope of project. The proposal will be evaluated based on the extent to which the goals and objectives are specific, measurable, and relevant to the purpose of the proposal and the activities planned to accomplish those objectives are germane and can be sustained beyond the grant time frame. Additionally, there must be a demonstrated need for and lack of availability of funds from other sources to address the primary health care needs of the defined area of service: weight = 35%;
   4. Monitoring and evaluation. The proposal will be evaluated based on the extent to which the monitoring and evaluation system will document program or activity progress and measure effectiveness: weight = 15%;
   5. Budget. The proposal will be evaluated based on the extent to which a detailed itemized budget and justification are consistent with stated objectives and planned program activities: weight = 25%.
2. Physician incentive awards shall be made by the board based on ranking and priority of applicants in accordance with the following criteria:
   1. 1. Priority selection for physicians who were Idaho resident students and were assessed the rural physician incentive fee and paid into the fund, followed by physicians who were Idaho residents prior to completing medical school out of state and who did not contribute to the fund, followed by physicians from other states who were not Idaho residents; (a)(i) Priority selection for physicians who were Idaho resident students and were assessed the rural physician incentive fee and paid into the fund, followed by physicians who were Idaho residents prior to completing medical school out of state and who did not contribute to the fund, followed by physicians from other states who were not Idaho residents;
      2. Demonstrated physician shortage in the eligible area to be benefitted;
      3. Demonstrated physician recruiting difficulties in the eligible area to be benefitted;
      4. Support of the medical community and community leaders in the eligible area.
   2. In reviewing and weighing criteria, all relevant factors shall be considered.
   3. If a physician selected for an award of debt payments does not accept the award in the manner provided pursuant to the provisions of this chapter, then the award shall be awarded to the next eligible applicant who has not received an award.
   4. The physician is liable for the payments if the physician ceases to practice in the eligible area during the contract period.

§ 39-5911. Negotiation. [Repealed.]

Repealed by S.L. 2012, ch. 44, § 13, effective July 1, 2012.

§ 39-5912. Fraudulent information on grant application.

Providing false information on any application or document submitted under this statute is a misdemeanor and grounds for declaring the applicant ineligible. Any and all funds determined to have been acquired on the basis of fraudulent information must be returned to the rural health care access and physician incentive grant program. This section shall not limit other remedies which may be available for the filing of false or fraudulent applications.

§ 39-5913. Administrative appeals.

Applicants aggrieved by the award or failure to award a grant pursuant to this chapter shall be afforded the remedies provided in chapter 52, title 67, Idaho Code.

§ 39-6001. Children’s trust fund board — Creation.

1. There is hereby created within the department of health and welfare a children’s trust fund and a children’s trust fund board to administer the children’s trust fund.
2. The children’s trust fund board shall consist of a chairperson and nine (9) other members as follows:
   1. The chairperson and six (6) other members of the board shall be appointed by the governor and shall be selected for their interest and expertise in the prevention of child abuse. There shall be one (1) board member appointed from each of the seven (7) judicial districts of the state as enumerated in chapter 8, title 1, Idaho Code. Members shall be appointed to serve for three (3) year terms. Vacancies shall be filled for any unexpired term by appointment in the same manner as the original appointments were made.
   2. The superintendent of public instruction, the attorney general, and the director of the department of health and welfare or their designees shall be members and shall serve as voting members of the children’s trust fund board.
3. A quorum of the children’s trust fund board shall consist of a majority of its members which quorum must be present in order to conduct any business.
4. The chairperson of the children’s trust fund board shall have no vote except in the event of a tie vote of a quorum of the members of the board.
5. Board members shall be compensated as provided in section 59-509(b), Idaho Code.
6. Members of the children’s trust fund board shall serve until a successor has been appointed but may be removed by the appointing official for misconduct or failure to carry out the duties provided in this chapter.

§ 39-6002. Children’s trust fund board — Powers and duties.

To carry out the purposes of this chapter, the children’s trust fund board may:

1. Independently, in collaborative relationships or partnerships, contract with public or private nonprofit organizations, agencies, schools or with qualified individuals, establish community-based educational and service programs and initiatives designed to reduce or prevent the occurrence of child abuse and neglect.
   1. Each contract entered into by the board shall contain a provision for the evaluation of services provided under the contract. Contracts for services to prevent child abuse and child neglect may be awarded to new programs, existing programs, initiatives, and to demonstration projects.
   2. Continuation of contracts shall be based upon goal attainment.
2. Facilitate the exchange of information between groups concerned with families and children.
3. Consult with state departments, agencies, commissions and boards to help determine the probable effectiveness, fiscal soundness, and need for proposed educational and service programs for the prevention of child abuse and neglect.
4. Adopt rules pursuant to chapter 52, title 67, Idaho Code, to carry out the provisions of this chapter.
5. Employ an executive director who shall be responsible for the performance of the administrative functions of the board and such other duties as the board may direct. The board may also employ or contract with other individuals to provide professional, clerical or other services deemed necessary by the board to effectuate the provisions of this chapter and the rules of the board, and purchase or rent necessary office space, equipment and supplies. The compensation of the executive director and other personnel shall be determined by the board, and the executive director shall be exempt from the provisions of chapter 53, title 67, Idaho Code.
6. Solicit and accept grants, donations, gifts and other moneys as necessary to carry out the purposes of this chapter.

§ 39-6003. Criteria for programs.

1. Programs contracted for with moneys received pursuant to section 63-3067A, Idaho Code, are intended to provide prevention services. “Prevention services” means any community-based educational or service program designed to prevent or alleviate child abuse or neglect. “Prevention services” shall not include direct treatment programs.
2. Moneys appropriated by the legislature may also be used for salaries pursuant to subsection (5) of section 39-6002, Idaho Code.
3. The children’s trust fund board shall develop policies to determine whether programs will receive renewed funding. Nothing in this chapter shall be construed to require continued funding by the state of Idaho or the children’s trust fund board.
4. The children’s trust fund board shall prepare a report on its activities and the effectiveness of those activities in fostering the prevention of child abuse and neglect annually, and deliver that report to the governor and legislature on January 15 of each year.

§ 39-6004. Consideration in award of contracts.

In awarding contracts pursuant to section 39-6002, Idaho Code, consideration shall be given to factors such as need, coordination with or enhancement of existing services, and evidence of community support or volunteers for the program.

§ 39-6005. Matching funds.

The children’s trust fund board, in its discretion, may require a certain percentage of the funding for programs approved by the board be provided by the entity sponsoring or proposing the program. Contributions such as materials, personnel, supplies, physical facilities or services may be considered as all or part of the funding provided by the petitioning entity.

§ 39-6006. Reports. [Repealed.]

§ 39-6007. Children’s trust fund — Creation.

1. There is hereby created in the state treasury the children’s trust fund.
2. The fund shall consist of:
   1. Moneys appropriated to the fund;
   2. Moneys as provided in section 63-3067A, Idaho Code;
   3. Donations, gifts, grants and other moneys from any source; and
   4. Any other moneys which may hereafter be provided by law.
3. Moneys in the fund may be expended for purposes provided in this chapter, provided that the children’s trust fund advisory board is authorized to expend up to fifty percent (50%) of the moneys generated annually pursuant to section 63-3067A, Idaho Code. Interest earned on the investment of idle money in the children’s trust fund shall be returned to the children’s trust fund.
4. Disbursements of moneys from the fund shall be on the authorization of the children’s trust fund board or a duly authorized representative of the board.
5. After the balance in the children’s trust fund has reached two million five hundred thousand dollars ($2,500,000), no further collections shall be received by the state tax commission, and all references to the fund shall be deleted from income tax forms.

§ 39-6008. Duties of department of health and welfare.

The department of health and welfare under the direction of the children’s trust fund board shall be responsible for the management and accounting of moneys expended from the children’s trust fund.

§ 39-6101. Short title.

This chapter shall be known and may be cited as the “Idaho Conrad J-1 Visa Waiver Program and National Interest Waiver Program.”

§ 39-6102. Purpose.

Under this chapter, rural and underserved communities in Idaho would be able to apply for the placement of a foreign trained physician after demonstrating that they are unable to recruit an American physician, and all other recruitment/placement possibilities have proven to be inaccessible.

1. The “Idaho Conrad J-1 Visa Waiver Program” authorizes the Idaho department of health and welfare to recommend up to thirty (30) foreign trained physicians per federal fiscal year to locate in communities that are federally designated as having a health workforce shortage. No more than ten (10) of thirty (30) recommendations may be for physician specialists other than pediatrics, internal medicine, family medicine, obstetrics, gynecology, psychiatry or general surgery. Applications for specialists must demonstrate a need for the type of specialty held by the petitioning physician. Final approval of J-1 visa waiver requests are made by the United States bureau of citizenship and immigration services.
2. Provided health care organizations located in federally designated shortage areas do not utilize the full annual allocation of J-1 visa waivers, the department will accept no more than ten (10) waiver applications six (6) months after the beginning of each federal fiscal year for petitioning J-1 visa waiver physicians to work in areas without a federal shortage area designation. The practice and petitioning physician must serve patients who reside in federally designated areas of underservice. The maximum number of flex waiver applications available to specialists is limited to no more than five (5) per federal fiscal year.
3. The “National Interest Waiver Program” allows the Idaho department of health and welfare to testify that it is in the public’s interest that a waiver be granted to a foreign trained physician who commits to locating in a community that is federally determined as having a health workforce shortage. Final approval of the national interest waiver request is made by the United States bureau of citizenship and immigration services.

§ 39-6103. Severability.

The provisions of this chapter are hereby declared to be severable and if any provision of this chapter or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of this chapter.

§ 39-6104. Incorporation by reference.

P.L. 103-416, amended by P.L. 107-273, November 2, 2002, 8 U.S.C. 1184(l) and 22 CFR sec. 514.44(e) [22 CFR § 41.63(e)], F.R. volume 60, No. 197, 8 CFR sec. 214.12, 8 CFR sec. 245 and 18 U.S.C. 1001 are incorporated by reference.

§ 39-6105. Definitions.

As used in this chapter:

1. “Applicant” means a health care facility that seeks to employ a physician and is requesting state support of a J-1 visa waiver or national interest waiver.
2. “Area of underservice” means a health professional shortage area in primary care or mental health, a medically underserved area, or a medically underserved population, federally designated by the secretary of health and human services.
3. “Department” means the Idaho department of health and welfare.
4. “Employment contract” means a legally binding agreement between the applicant and the physician named in the J-1 visa waiver or national interest waiver application which contains all terms and conditions of employment, including, but not limited to, the salary, benefits, length of employment and any other consideration owing under the agreement. The employment contract must meet all state and federal criteria, including labor and immigration rules.
5. “Federal fiscal year” means the twelve (12) months which commence the first day of October in each year and close on the thirtieth day of September of the following year.
6. “Flex” means the maximum of ten (10) waiver applications, with no more than five (5) available to specialists, that may be submitted six (6) months following the beginning of each federal fiscal year for J-1 visa waiver physicians to work in areas without a federal shortage area designation.
7. “Full time” means a working week of a minimum of forty (40) hours at one (1) or more health care facilities.
8. “Health care facility” means an entity with an active Idaho taxpayer identification number doing business or proposing to do business in the practice location where the physician would be employed, whose stated purposes include the delivery of primary medical or mental health care.
9. “Interested government agency” means an agency that has the authority from the United States department of state to submit requests for J-1 visa waivers of foreign physician petitioners on behalf of public interest.
10. “J-1 visa” means an entrance permit into the United States for a foreign trained physician who is a nonimmigrant admitted under section 101(a)(15)(J) of the United States information and education exchange act or who acquired such status or who acquired exchange visitor status under the act.
11. “J-1 visa waiver” means a federal action that waives the requirement for a foreign physician, in the United States on a J-1 visa, to return to his home country for a two (2) year period following medical residency training.
12. “National interest waiver” means an exemption from the labor certification process administered by the United States department of labor for foreign physicians whose will to stay in the United States and work in an area of underservice in Idaho is determined to be in the public interest by the Idaho department of health and welfare.
13. “New start” means a health care facility as defined in subsection (8) of this section, that has been in existence for twelve (12) months or less.
14. “Petitioning physician” means the foreign physician, named in the J-1 visa waiver or national interest waiver application, who requires a waiver to remain in the United States to practice medicine. (15) “Primary care” means a medical doctor or doctor of osteopathy licensed in pediatrics, family medicine, internal medicine, obstetrics, gynecology, general surgery or psychiatry.
15. “Primary care” means a medical doctor or doctor of osteopathy licensed in pediatrics, family medicine, internal medicine, obstetrics, gynecology, general surgery or psychiatry.
16. “Sliding fee discount schedule” means a written delineation documenting the value of charge discounts granted to patients based upon financial hardship and federal poverty guidelines.
17. “Specialist” means a medical doctor or doctor of osteopathy in any specialty or subspecialty other than pediatrics, family medicine, internal medicine, obstetrics, gynecology, general surgery or psychiatry.
18. “Unmet need” means a vacancy or shortage of primary care or specialist physicians experienced by a community or population, as defined by federally designated health professional shortage areas or medically underserved areas/populations or as demonstrated by additional data and information required by the department.
19. “Vacancy” means a full-time physician practice opportunity in the delivery of health care services.

§ 39-6106. General requirements and limitations.

1. J-1 visa waiver or national interest waiver request. The department may only submit a waiver request when:
   1. The application contains all of the required information and documentation; and
   2. The application meets all state and federal criteria; and
   3. Foreign exchange physicians having a J-1 case number assigned by the United States department of state have paid all federal processing fees; and
   4. The applicant has paid the state of Idaho application processing fee.
2. Limitations of department actions.
   1. Prior to submission of an application, the department may provide information to the applicant on preparing a complete application.
   2. The department will not be responsible for adding any information to incomplete application packets.
   3. For applicants who have benefited from department waiver requests previously, the applicant’s history of compliance will be a consideration in future decisions for waiver requests.
   4. In any single program year, a health care facility will not be allotted more than two (2) J-1 visa waiver request applications per practice location.
   5. The shortage area designation must be current on the date the United States department of state reviews and recommends the application and on the date the immigration agency approves the J-1 visa waiver and national interest waiver. Any application that is being submitted to the department at the end of the three (3) year health professional shortage area designation cycle may be summarily denied if the renewal is not obtained.
      1. Participation by the department in the J-1 visa waiver program and in the national interest waiver program is completely discretionary and voluntary. The department may elect not to participate in the program at any time. The submission of a complete waiver application package does not ensure the department will recommend a waiver. The department reserves the right to recommend or decline any request for a waiver.
      2. The department, its employees or agents are held harmless of any perceived consequence for the denial of a waiver petitioner, or the approved placement of one that is not favorable.
      3. Application procedures for J-1 visa waiver physician placements were developed by the department in compliance with P.L. 103-416 and subsequent revisions. The procedures for the issuance of national interest waiver recommendations were developed by the department in compliance with 8 CFR sec. 214.12 and 8 CFR sec. 245 and subsequent revisions. These procedures are subject to updates and changes at any time. Interpretation of these procedures rests solely with the department in consultation with the appropriate federal agencies.

§ 39-6107. Applied principles.

1. Option of last resort. The J-1 visa waiver and national interest waiver programs are considered a final source for recruiting qualified physicians. These programs are not a substitute for broad recruiting efforts for graduates from United States medical schools, but an option of last resort. Any application that qualifies for consideration under any other interested government agency or federal program, such as the one administered by the department of health and human services, must be submitted under that program in lieu of the J-1 visa waiver program. The option of last resort principle does not apply to national interest waiver petitioning physicians for whom a J-1 visa waiver request was issued by the state of Idaho; in which case, physician retention is the objective if it is determined to be in the public interest.
2. Waiver request applications will only be considered for health care facilities that can provide evidence of sustained active recruitment over a period of at least six (6) months for the physician vacancy in the practice location. The six (6) month vacancy requirement does not apply to a national interest waiver petitioning physician for whom a J-1 visa waiver request was issued by the state of Idaho.
3. The J-1 visa waiver program and national interest waiver program will be used to assist health care facilities that can document the provision of health care services to all residents of the federally determined area of underservice. When a federal designation is for an underserved population, the health care facility must document the provision of care to, and assure access by, the underserved population.

§ 39-6108. Criteria for applicants.

1. Applicants must be existing health care facilities that:
   1. Have an active taxpayer identification number in Idaho; and
   2. Have provided medical or mental health care in Idaho for a minimum of twelve (12) months prior to submitting the application, or meet the requirements for a new start as defined in this chapter.
2. The waiver request to the department must come from a U.S. health care facility on behalf of the physician and not directly from the physician or his representative.
3. J-1 visa waiver and national interest waiver petitioners with fellowship training must contract with employers to provide primary care services full time.
4. Applicants must not be former J-1 visa waiver or national interest waiver physicians who are currently fulfilling their required three (3) or five (5) year obligation.
5. Applicants may not submit waiver requests for a relative.
6. Applicants must accept all patients regardless of their ability to pay.
7. Except for state institutional and correctional facilities designated as federal shortage areas, the applicant must:
   1. Serve medicare clients, medicaid clients, low-income clients, uninsured clients, and the population of a federal shortage designation.
   2. Agree to implement a sliding fee discount schedule. The schedule must be:
      1. Available in Spanish (where applicable) and English; and
      2. Posted conspicuously; and
      3. Distributed in hard copy on request to individuals making or keeping appointments with that physician.
8. Applicants must have a signed employment contract with the physician, and guarantee wages for the duration of the contract.
9. Applicants must cooperate in providing the department with clarifying information, verifying information already provided, or in any investigation of the applicant’s financial status and payer mix.
10. Applicants must first apply through any organization with federal or interested governmental agency authority which submits waiver requests for Idaho’s underserved rural areas. Documentation which fully explains why this route was not taken for placement is required as part of the application.
11. The physician’s name and practice location will be made available to the public as a provider who accepts medicare, medicaid and utilizes a sliding fee schedule for the low-income population.
12. An assurance letter that the health care facility, its principals, and the J-1 or national interest waiver petitioning physician are not under investigation for, under probation for, or under restriction for medicare or medicaid fraud, or other violations of law or licensure restrictions that may indicate that it may not be in the public interest that a waiver be granted, must be provided.
13. The applicant and its principals must be free of default on any federal or state scholarship or loan repayment program such as the national health service corps or by the state.

§ 39-6109. Contract requirements for J-1 visa waivers.

Throughout the period of obligation, regardless of the petitioning physician’s visa status, the employment contract must:

1. Meet state and federal requirements;
2. Not prevent the physician from providing medical services in the designated shortage area after the term of employment. A noncompetition clause or any provision that purports to limit the J-1 visa waiver physician’s ability to remain in the area upon completion of the contract term is prohibited by regulation;
3. State that the physician must serve medicare clients, medicaid clients, low-income clients, uninsured clients, and the population of the federal designation for the area of underservice full time;
4. Include a notarized statement by the physician that he agrees to meet the requirements set forth in section 214(l) of the immigration and nationality act;
5. Guarantee the physician a base salary of at least ninety-five percent (95%) of step II of the local prevailing wage for the field of practice in the area to be served;
6. Specify that benefits offered are not included as part of base salary;
7. Include leave (annual, sick, continuing medical education and holiday);
8. State that amendments shall adhere to state and federal J-1 visa waiver requirements;
9. Acknowledge that the contract may be terminated only with cause and cannot be terminated by mutual agreement until the statutorily required three (3) years of medical service have expired;
10. Be assignable only by the employer to a successor with concurrence of the department;
11. Include the practice site address, the days and hours of practice, field of medicine, and a statement that on-call and travel times are not included in the minimum hours;
12. Include a statement that the employment will start within ninety (90) days after the waiver approval has been issued;
13. Not commence until after the petitioning physician’s J-1 waiver and appropriate work authorization are approved and the residency program has been successfully completed. The contract shall affirm that no transfer or other modification regarding the duration of contract dates will be approved unless extenuating circumstances are shown to exist, as determined by the department and approved by the United States attorney general in accordance with applicable federal rules and regulations;
14. Not be subject to changes which result in termination of contract, change in practice scope, or relocation from a site approved in the application. Any proposed changes must be presented in writing to the department for consideration and approval at least thirty (30) days prior to the proposed change. Moving or placement of a J-1 visa waiver physician to a location that was not approved by the department will result in the physician and applicant being in noncompliance with the program and will be reported as such to the immigration agency. It will also limit the applicant’s future participation in the program;
15. Be signed by both the J-1 visa waiver petitioning physician and the applicant employer, and the date it is signed must be clear.

§ 39-6109A. Contract requirements for national interest waivers.

Throughout the period of obligation, regardless of physician’s visa status, the employment contract must:

1. Meet state and federal requirements;
2. Not prevent the physician from providing medical services in the designated shortage area after the term of employment. A noncompetition clause or any provision that purports to limit the national interest waiver physician’s ability to remain in the area upon completion of the contract term is prohibited;
3. State that the physician must serve medicare clients, medicaid clients, low-income clients, uninsured clients and the population of the federal designation for the area of underservice full time;
4. Guarantee the physician a base salary of at least ninety-five percent (95%) of step II of the local prevailing wage for the field of practice in the area to be served;
5. Specify that benefits offered are not included as part of the base salary;
6. Include annual, sick, continuing medical education and holiday leave;
7. State that amendments shall adhere to state and federal national interest waiver requirements;
8. Acknowledge that the contract may be terminated only with cause and cannot be terminated by mutual agreement until the statutorily required five (5) years of medical service have expired;
9. Be assignable only by the employer to a successor with concurrence of the department;
10. Include the practice site address, the days and hours of practice and field of medicine;
11. Include a statement that the employment will start within ninety (90) days after the waiver approval has been issued;
12. Not be subject to changes which result in termination of contract, change in practice scope or relocation from a site approved in the application. Any proposed changes must be presented in writing to the department for consideration and approval at least thirty (30) days prior to the proposed change. Moving or placement of a physician to a location that was not approved by the department will result in the physician and applicant being in noncompliance with the program. It will also limit the applicant’s future participation in the program; and
13. Be signed by both the national interest waiver petitioning physician and the applicant employer, and the date it is signed must be clear.

§ 39-6110. Criteria for proposed practice location.

1. The proposed practice location must:
   1. Be located in an area of underservice federally designated by the secretary of health and human services; or
   2. Serve patients who reside in an area of underservice federally designated by the secretary of health and human services for flex waiver applications only.
2. If a new practice location is planned, additional criteria apply. New practice locations must:
   1. Have the legal, financial, and organizational structure necessary to provide a stable practice environment, and must provide a business plan that supports this information;
   2. Support a full-time physician practice;
   3. Have written referral plans that describe how patients using the new practice care location will be connected to existing secondary and tertiary care if needed.

§ 39-6111. Criteria for the J-1 petitioning physician.

1. The petitioning physician must not have a J-1 visa waiver pending for any other employment offer, and must provide a notarized statement testifying to this fact.
2. The physician must have the qualifications described in recruitment efforts for a specific vacancy.
3. Petitioning physicians must:
   1. Provide direct patient care full time; and
   2. Be trained in:
      1. Family medicine;
      2. Internal medicine;
      3. Pediatrics;
      4. Obstetrics and gynecology;
      5. General surgery;
      6. Psychiatry and its subspecialties; or
      7. Other specialties licensed or eligible for licensure by the Idaho board of medicine, if there is a demonstrated need by the applicant organization.
4. Physicians must apply and be eligible for an active Idaho medical license. The petitioning physician may be participating in an accredited residency program for this application, but must have successfully completed the third year of their residency training program for their employment contract to be activated. The petitioning physician must have an unrestricted license to practice in the state of Idaho and be board certified or eligible in his respective medical specialty at the commencement of employment. A copy of the acknowledgment of receipt form from the state board of medicine must be included in the waiver request.
5. Physicians must have at least one (1) recommendation from their residency program that:
   1. Addresses the physician’s interpersonal and professional ability to effectively care for diverse and low-income persons in the United States;
   2. Describes an ability to work well with supervisory and subordinate medical staff, and adapt to the culture of United States health care facilities;
   3. Documents the level of specialty training, if any;
   4. Is prepared on residency program letterhead and is signed by residency program staff or faculty; and
   5. Includes name, title, relationship to physician, address, and telephone number of signatory.
6. The petitioning physician must agree with all provisions of the employment contract as described in section 39-6109, Idaho Code. Other negotiable terms of the contract are between the petitioning physician and the hiring agency.
7. The petitioning physician must:
   1. Agree to work full time for no less than three (3) years in an area of underservice in the state of Idaho;
   2. Provide health care to medicare and medicaid beneficiaries;
   3. Post and implement a sliding fee discount schedule;
   4. Serve the low-income population;
   5. Serve the uninsured population; and
   6. Serve the shortage designation population; or
   7. Serve the population of a local, state, or federal governmental institution or corrections facility as an employee of the institution.

§ 39-6111A. Flex waivers for J-1 petitioning physicians.

The department will accept no more than ten (10) waiver applications six (6) months after the beginning of each federal fiscal year for petitioning J-1 visa waiver physicians to work in areas without a federal shortage area designation. The practice and petitioning physician must serve patients who reside in federally designated areas of underservice. The maximum number of flex applications may not exceed the total number of waiver slots available.

1. The practice location must be located outside of a federally designated shortage area to apply for a flex waiver.
2. The applicant organization and petitioning physician must meet all eligibility, application and reporting requirements with the exception of the practice location.
3. The applicant organization must submit documentation demonstrating how the practice location and petitioning physician will serve patients who reside in federally designated areas of underservice.
4. The maximum number of flex waiver applications available for specialists is limited to no more than five (5) per federal fiscal year.
5. Flex waiver applications must demonstrate a need for the primary care or specialty petitioning physician.

§ 39-6111B. Criteria for the national interest waiver petitioning physician.

The national interest waiver petitioning physician must:

1. 1. Provide direct patient care full time; and (1)(a) Provide direct patient care full time; and
   2. Be trained in:
      1. Family medicine;
      2. Internal medicine;
      3. Pediatrics;
      4. Obstetrics and gynecology;
      5. General surgery; or
      6. Psychiatry and its subspecialties.
2. Apply and be eligible for an active Idaho medical license. The physician may be participating in an accredited residency program for this application, but must have successfully completed the third year of his residency training program for his employment contract to be activated. The physician must have an unrestricted license to practice in the state of Idaho and be board certified or eligible in his respective medical specialty at the commencement of employment. A copy of the acknowledgment of receipt form from the state board of medicine must be included in the waiver request.
3. Have at least one (1) recommendation from their residency program and one (1) from a previous employer, if applicable, that:
   1. Addresses the physician’s interpersonal and professional ability to effectively care for diverse and low-income persons in the United States;
   2. Describes an ability to work well with supervisory and subordinate medical staff, and adapt to the culture of United States health care facilities;
   3. Documents the level of specialty training, if any;
   4. Is prepared on residency program letterhead or the employer’s business letterhead and is signed by residency program staff or faculty; and
   5. Includes name, title, relationship to physician, address and phone number of signatory.
4. Agree with all provisions of the employment contract as described in section 39-6109A, Idaho Code. Other negotiable terms of the contract are between the physician and the hiring agency.
5. 1. Agree to work full time for no less than five (5) years in an area of underservice in the state of Idaho unless the physician qualifies for the three (3) year service provision under the applicable national interest waiver rules and regulations or the physician is transferring from another area of underservice; (5)(a) Agree to work full time for no less than five (5) years in an area of underservice in the state of Idaho unless the physician qualifies for the three (3) year service provision under the applicable national interest waiver rules and regulations or the physician is transferring from another area of underservice;
   2. Provide health care to medicare and medicaid beneficiaries;
   3. Post and implement a sliding fee discount schedule;
   4. Serve the low-income population;
   5. Serve the uninsured population; and
   6. Serve the shortage designation population; or
   7. Serve the population of a local, state or federal governmental institution or corrections facility as an employee of the institution.

§ 39-6112. Joint reporting requirement upon commencement of practice.

1. Notification of waiver status and commencement of employment must be submitted to the department upon receipt of written notification of approval from the immigration agency. This notification must include the date the medical service obligation commences, and a copy of the notification of approval from the immigration agency.
2. The waiver physician and the applicant must, on commencement of practice and annually thereafter or more frequently as determined by the department, and upon expiration of the physician’s service obligation to the underserved area, verify the physician’s practice site address and field of practice. Further, documentation that the population the physician was to serve was indeed served must be submitted. This will include the facility’s payer mix, the number of patients seen by the physician, and the payer mix of those patients. When submitting the final report, the physician must indicate whether he intends to remain in the shortage area to practice.
3. Sites receiving waiver approval must agree to report to the department on the status of the physician’s activities at the beginning of the physician’s employment and every year thereafter during the three (3) to five (5) year medical service obligation period. Failure to provide these reports within thirty (30) days of the annual anniversary date of approval of the J-1 visa or national interest waiver in an accurate manner or failure to demonstrate good faith in utilizing a physician’s services in accordance with these policies will jeopardize future eligibility for placements and will be cause for reporting and referral to the United States department of state and immigration agency. This referral could ultimately lead to deportation proceedings against the physician.
4. Any amendments made to the required elements of the employment contract during the physician’s medical service obligation must be reported to the department for review. The department will complete review and provide notice of approval or declination of such amendments within thirty (30) calendar days of receipt.

§ 39-6113. Application fee.

At the time the application is submitted to the department, an administrative fee must be paid to the department by the applicant. The fee amount will be determined by the director of the department, will not be less than one thousand dollars ($1,000) for a J-1 visa waiver request, and three hundred fifty dollars ($350) for a national interest waiver request, and may be revised at the beginning of the state fiscal year by the director based on costs to administer the program. The fee is nonrefundable.

§ 39-6114. Required application forms and accompanying documents for a J-1 visa waiver request.

1. Applications for the J-1 visa waiver program must include, but not be limited to, the following:
   1. Evidence the applicant has no other mechanism through another process or interested government agency to apply for a J-1 visa waiver for the petitioning physician;
   2. Evidence of recruiting efforts over a minimum of six (6) months prior to when the physician applied for the vacancy; this must include regional and national electronic or print advertising stating the position available and the practice site location. Copies of advertisements submitted must show the publication date. Advertisements run at the time of or after preparation of the employment contract are unusable. Online advertisements must show dates the advertisements were online. Contracts with recruitment firms are allowable as evidence in lieu of electronic or print advertisements if the activities described in this section are provided under contract. Recruitment firm contracts must be included if applicable;
   3. Evidence that the petitioning physician selected for the position visited the practice site;
   4. A mailing list of physicians who applied for the position and the reason they were not selected;
   5. Evidence that the applicant has been providing medical or mental health care in Idaho for at least twelve (12) months or meets the requirements for a new start as defined in this chapter. This includes, but may not be limited to, the Idaho taxpayer identification number, facility address, fax and telephone numbers, and staffing list;
   6. A copy of an employment contract between the petitioning physician and the applicant for no less than three (3) years;
   7. Evidence that the employment site is in a designated area of underservice;
   8. The request must be submitted by the applicant or applicant’s representative. The letter must be written on the applicant’s letterhead stationery, which includes address, telephone and fax numbers, if any. Letters, contracts and forms must contain original signatures;
   9. A copy of the sliding fee scale which the health care facility must agree to implement and post;
   10. A copy of the petitioning physician’s license to practice medicine in the state of Idaho, or proof of the physician’s eligibility to apply for an Idaho license;
   11. Legible copies of all IAP-66/DS 2019 forms (certificate of eligibility for exchange visitor status), covering every period the physician was in J-1 status, submitted in chronological order;
   12. Legible copies (front and back) of all I-94 entry and departure cards for the physician and family members;
   13. The petitioning physician’s curriculum vitae;
   14. A statement of “no objection from the government” of the petitioning physician’s country of nationality, if applicable. The government of the country to which the petitioning physician is otherwise contractually obliged to return must furnish a letter to the director of the United States department of state with a statement in writing that there is no objection to such waiver in cases where the petitioning physician’s medical education or training is funded by the government of the petitioning physician’s home country. Whether or not there is foreign government funding can be determined from examining the physician’s IAP-66 form. This letter must be in English and follow the procedures and format outlined in federal register volume 60, number 197, published October 12, 1995 (or subsequent revisions);
   15. Payment of the department’s administrative application processing fee;
   16. Federal form G-28 or letterhead from the law office, if the physician is being represented by an attorney, with telephone and fax numbers, and a contact name and address;
   17. A copy of the United States department of state issued instruction sheet with case number.
2. The state may require any other documentation or information for the support and approval process in the waiver application on the part of the petitioning physician or the applicant.
3. These requirements are subject to change without notice.
4. J-1 visa waiver program application forms and instructions are available and may be requested from the department.
5. The petitioning physician’s case number must appear on each page. The case number is assigned by the United States department of state.
6. All required information and documentation must be submitted in a single package with all documents presented per instructions that will be provided by the department upon request. One (1) single-sided, unbound original and one (1) single-sided, unbound copy must be included. Waiver requests that do not comply with these requirements and the instructions provided by the department will not be considered.

§ 39-6114A. Required application forms and documents for a national interest waiver request.

1. Applications for the national interest waiver program must include, but not be limited to, the following:
   1. Evidence of recruiting efforts over a minimum of six (6) months prior to when the petitioning physician applied for the vacancy. This evidence must include regional and national electronic or print advertising stating the position available and the practice site location. Copies of advertisements submitted must show the publication date. Advertisements run at the time of or after preparation of the employment contract are unusable. Online advertisements must show dates the advertisements were online. Contracts with recruitment firms are allowable as evidence in lieu of electronic or print advertisements if the activities described in this paragraph are provided under contract. Recruitment firm contracts must be included, if applicable. The provision of evidence for recruitment efforts over a six (6) month period is not necessary for national interest waiver petitioning physicians who receive a J-1 visa waiver at the request of the state of Idaho;
   2. Evidence that the physician selected for the position visited the practice site;
   3. A mailing list of physicians who applied for the position and the reason they were not selected;
   4. Evidence that the applicant has been providing medical or mental health care in Idaho for at least twelve (12) months or meets the requirements for a new start as defined in section 39-6105, Idaho Code. This includes, but may not be limited to, the Idaho taxpayer identification number, facility address, fax and telephone numbers and staffing list;
   5. A copy of an employment contract between the physician and the applicant;
   6. Evidence that the employment site is in a federally determined area of underservice;
   7. The request must be submitted by the applicant or applicant’s representative. The letter must be written on the applicant’s letterhead stationery, which includes address, telephone and fax numbers, if any. Letters, contracts and forms must contain original signatures;
   8. A copy of the sliding fee scale which the health care facility must agree to implement and post;
   9. A copy of the physician’s license to practice medicine in the state of Idaho, or eligibility to apply for an Idaho license;
   10. Legible copies of any DS 2019 forms (formerly IAP-66), and other United States immigration documentation attesting to the physician’s current legal status and history of stay in the United States;
   11. The physician’s curriculum vitae; and
   12. Payment of the department’s administrative application processing fee.
2. The state of Idaho may require any other documentation or information for the support and approval process in the waiver application on the part of the physician or the applicant.
3. These requirements are subject to change without notice.

§ 39-6115. Criteria applied to federally designated facilities.

Local, state, or federal institutions which offer health care services and are federally designated as a shortage facility accompanied by a health professional shortage area score may submit an application. Physician services may be limited to the population of the institution. All other state and federal requirements must be met.

§ 39-6116. Department review and action.

1. The department will review applications for completeness in date order received.
2. Applications submitted for petitioning physicians with language skills appropriate to the community they wish to serve will be given priority.
3. Selection preference will be given to applications received from health professional shortage areas having the greatest unmet need for physicians.
4. Applications must be mailed, sent by commercial carrier, or delivered in person. Applications may not be sent electronically. The department is not responsible for applications or related materials lost in the mail.
5. The department may limit the time period during which applications may be submitted including refusing to process applications after the department has submitted requests for all applications allowed in a given federal fiscal year.
6. In the event an applicant for a J-1 visa waiver or a national interest waiver submits an application to the department, the department will acknowledge receipt of the copy of the application within five (5) business days of receipt.
7. The department will review applications within thirty (30) working days of receipt of the application to determine if the application is complete, and provide a written explanation of missing items.
8. An additional fee will not be charged for incomplete applications if the missing items are provided within thirty (30) calendar days of the date on the letter of explanation from the department. If new information is not received within this time frame, the application will be returned to the applicant. The application fee will not be returned.
9. The department will return applications and application fees to applicants having had two (2) approved J-1 visa waiver requests in the current federal fiscal year for the shortage area or applications received after thirty (30) placements have been recommended.
10. The department will review complete applications against the criteria specified in this chapter.
11. The department may:
    1. Request additional clarifying information;
    2. Verify information presented;
    3. Investigate the financial status of the applicant;
    4. Request verification of the health care facility’s payer mix for the previous twelve (12) to eighteen (18) months; and
    5. Return the application as incomplete if the applicant does not supply the requested clarifying information in its entirety within thirty (30) days of request. The application fee is nonrefundable. Incomplete applications must be resubmitted with the application fee. Resubmitted applications will be considered new applications and will be reviewed in date order received.
12. The department may request the director of the United States department of state to recommend that the immigration agency grant the J-1 visa waiver.
13. The department may provide a letter of attestation to the immigration agency that the physician’s work in Idaho is in the public interest for a national interest waiver.
14. The department will notify the applicant in writing of action taken by the department. If the decision is to decline the J-1 visa waiver or national interest waiver request, the department will provide an explanation of how the application failed to meet the stated criterion or criteria. The application fee is nonrefundable. (15) The department may deny a J-1 visa waiver or national interest waiver request or, prior to United States department of state or immigration agency approval, may withdraw a J-1 visa waiver or national interest waiver recommendation for cause, which shall include the following:
15. The department may deny a J-1 visa waiver or national interest waiver request or, prior to United States department of state or immigration agency approval, may withdraw a J-1 visa waiver or national interest waiver recommendation for cause, which shall include the following:
    1. The application is not consistent with state or federal criteria;
    2. Fraud;
    3. Misrepresentation;
    4. False statements;
    5. Misleading statements;
    6. Evasion or suppression of material facts in the J-1 visa waiver or national interest waiver application or in any of its required documentation and supporting materials;
    7. Incomplete or insufficient information;
    8. Allowable number of recommendations for the facility or year has been met.
16. Applications denied may be resubmitted with concerns addressed, with the application fee. Resubmitted applications will be considered new applications and will be reviewed in date order received.
17. The department retains the authority to audit, monitor and conduct unannounced site visits.

§ 39-6117. Eligibility for future participation.

Health care facilities may be denied future participation in the J-1 visa waiver program or national interest waiver program if:

1. The required annual reports are not submitted in a complete and timely manner;
2. A waiver physician does not serve the designated shortage area or shortage population approved at the time of placement for the full three (3) to five (5) years of employment. This does not apply only if the approved site is in a designated health professional shortage area that loses its designation after the waiver physician begins employment;
3. A waiver physician does not remain employed by the applicant for the full three (3) to five (5) years of employment;
4. The applicant or waiver physician is not in compliance with the terms defined in this chapter or any federal requirements.

§ 39-6118. Department responsibility to report.

The department shall report to the United States department of state and the immigration agency if the applicant or waiver physician is determined to be out of compliance with any of the provisions of this chapter or if the waiver physician is determined to have left employment in the federally designated area.

§ 39-6201. Short title. [Repealed.]

§ 39-6202. Legislative findings and purposes. [Repealed.]

§ 39-6203. Definitions. [Repealed.]

§ 39-6204. Legislative intent. [Repealed.]

§ 39-6205. Rules and regulations in general. [Repealed.]

§ 39-6206. General powers and duties of director. [Repealed.]

§ 39-6207. Unauthorized disposal of PCB waste prohibited. [Repealed.]

§ 39-6208. Records — Reporting

Monitoring. [Repealed.]

§ 39-6209. Investigation — Inspection

Right of entry. [Repealed.]

§ 39-6210. Enforcement procedures. [Repealed.]

§ 39-6211. Remedies. [Repealed.]

§ 39-6212. Violation — Penalty

Misdemeanor. [Repealed.]

§ 39-6213. Interstate cooperation. [Repealed.]

§ 39-6214. Employment security. [Repealed.]

§ 39-6215. Good samaritan protection. [Repealed.]

§ 39-6216. Severability. [Repealed.]

§ 39-6301. Short title.

This chapter shall be known and may be cited as the “Domestic Violence Crime Prevention Act.”

§ 39-6302. Statement of purpose.

For purposes of this chapter, the legislature adopts by reference the declaration of policy in section 39-5201, Idaho Code. Additionally, the legislature finds that a significant number of homicides, aggravated assaults, and assaults and batteries occur within the home between adult members of families. Furthermore, research shows that domestic violence is a crime which can be deterred, prevented or reduced by legal intervention. Domestic violence can also be deterred, prevented or reduced by vigorous prosecution by law enforcement agencies and prosecutors and by appropriate attention and concern by the courts whenever reasonable cause exists for arrest and prosecution.

The purpose of this act is to address domestic violence as a serious crime against society and to assure the victims of domestic violence the protection from abuse which the law and those who enforce the law can provide.

It is the intent of the legislature to expand the ability of the courts to assist victims by providing a legal means for victims of domestic violence to seek protection orders to prevent such further incidents of abuse. It is the intent of the legislature that the official response to cases of domestic violence shall stress the enforcement of the laws to protect the victim and shall communicate the attitude that violent behavior in the home is criminal behavior and will not be tolerated. It is the intent of the legislature to presume the validity of protection orders issued by courts in all states, the District of Columbia, United States territories and all federally recognized Indian tribes within the United States, and to afford full faith and credit to those orders. The provisions of this chapter are to be construed liberally to promote these purposes.

§ 39-6303. Definitions.

1. “Domestic violence” means the physical injury, sexual abuse or forced imprisonment or threat thereof of a family or household member, or of a minor child by a person with whom the minor child has had or is having a dating relationship, or of an adult by a person with whom the adult has had or is having a dating relationship.
2. “Dating relationship,” for the purposes of this chapter, is defined as a social relationship of a romantic nature. Factors that the court may consider in making this determination include:
   1. The nature of the relationship;
   2. The length of time the relationship has existed;
   3. The frequency of interaction between the parties; and
   4. The time since termination of the relationship, if applicable.
3. “Family member” means spouses, former spouses and persons related by blood, adoption or marriage.
4. “Family dwelling” is any premises in which the petitioner resides.
5. “Foreign protection order” means a protection order issued by a tribunal of another state.
6. “Household member” means persons who reside or have resided together, and persons who have a child in common regardless of whether they have been married or have lived together at any time.
7. “Judicial day” means any day upon which court business may be transacted as provided in sections 1-1606 and 1-1607, Idaho Code.
8. “Protection order” means any order issued for the purpose of preventing violent or threatening acts or acts of harassment against, or contact or communication with, or physical proximity to, another person, where the order was issued:
   1. Pursuant to this chapter;
   2. In another jurisdiction pursuant to a provision similar to section 39-6306, Idaho Code; or
   3. In any criminal or civil action, as a temporary or final order (other than a support or child custody order), and where the order was issued in a response to a criminal complaint, petition or motion filed by or on behalf of a person seeking protection, and issued after giving notice and an opportunity to respond to the person being restrained.
9. “Respondent” means the individual against whom enforcement of a protection order is sought.

§ 39-6304. Action for protection.

1. There shall exist an action known as a “petition for a protection order” in cases of domestic violence.
2. A person may seek relief from domestic violence by filing a petition based on a sworn affidavit with the magistrates division of the district court, alleging that the person or a family or household member, whether an adult or a child, is the victim of domestic violence. Any petition properly filed under this chapter may seek protection for any additional persons covered by this chapter. A custodial or noncustodial parent or guardian may file a petition on behalf of a minor child who is the victim of domestic violence.
3. A person’s right to petition for relief under this chapter shall not be affected by that person’s having left the residence or household to avoid abuse.
4. The petition shall disclose the existence of any custody or any marital annulment, dissolution or separation proceedings pending between the parties, the existence of any other custody order affecting the children of the parties, and the existence of child protection or adoption proceedings affecting the children of any party.
5. When the petitioner requests custody of any child, the petition shall disclose:
   1. The county and state where the child has resided for six (6) months immediately prior to the filing of the petition;
   2. The party or other responsible person with whom the child is presently residing; and
   3. The party or other responsible person with whom the child has resided for six (6) months immediately prior to the filing of the petition.
6. A petition shall be filed in the county of the respondent’s residence, the petitioner’s residence, or where the petitioner is temporarily residing.

§ 39-6305. Fees waived.

No filing fee, service fee, hearing fee or bond shall be charged for proceedings seeking only the relief provided under this chapter.

§ 39-6306. Hearing on petition for protection order — Relief provided and realignment of designation of parties.

1. Upon filing of a petition based upon a sworn affidavit for a protection order, the court shall hold a hearing to determine whether the relief sought shall be granted within fourteen (14) days. If either party is represented by counsel at a hearing seeking entry of a protection order, the court shall permit a continuance, if requested, of the proceedings so that counsel may be obtained by the other party. If the court finds that it is necessary for both parties to be represented by counsel, the court shall enter appropriate orders to ensure that counsel is retained. The order entered may require either the petitioner or respondent, or both, to pay for costs of counsel. Upon a showing that there is an immediate and present danger of domestic violence to the petitioner the court may, if requested, order for a period not to exceed one (1) year that:
   1. Temporary custody of the minor children of the petitioner or of the parties be awarded to the petitioner or respondent if exercise of such jurisdiction is consistent with the provisions of section 32-11-204, Idaho Code, and consistent with prior custody orders entered by a court of competent jurisdiction unless grounds exist pursuant to section 32-717, Idaho Code;
   2. A party be restrained from committing acts of domestic violence;
   3. Exclude the respondent from the dwelling which the parties share or from the residence of the petitioner;
   4. The respondent be ordered to participate in treatment or counseling services. The council on domestic violence [and victim assistance], in recognition of the particular treatment requirements for batterers, shall develop minimal program and treatment standards to be used as guidelines for recommending approval of batterer programs to the court;
   5. Other relief be ordered as the court deems necessary for the protection of a family or household member, including orders or directives to a peace officer, as allowed under this chapter;
   6. The respondent be required to pay service fees, and to reimburse the petitioner for costs incurred in bringing the action, including a reasonable attorney’s fee;
   7. The respondent be restrained from harassing, annoying, disturbing the peace of, telephoning, contacting, or otherwise communicating, directly or indirectly, with the petitioner and any designated family member or specifically designated person of the respondent’s household, including the minor children whose custody is awarded to the petitioner;
   8. The respondent be restrained from entering any premises when it appears to the court that such restraint is necessary to prevent the respondent from contacting, harassing, annoying, disturbing the peace of or telephoning the petitioner or the minor children whose custody is awarded to the petitioner; and/or
   9. The respondent be restrained from coming within one thousand five hundred (1,500) feet or other appropriate distance of the petitioner, the petitioner’s residence, the school or place of employment of the petitioner, or any specified place frequented by the petitioner and by any other designated family member or specifically designated person of the respondent’s household, including the minor children whose custody is awarded to the petitioner. (2) Immediate and present danger under this section includes, but is not limited to, situations in which the respondent has recently threatened the petitioner with bodily harm or engaged in domestic violence against the petitioner or where there is reasonable cause to believe bodily harm may result.

(3) No order made under this chapter shall in any manner affect title to real property.

(4) Relief shall not be denied because petitioner used reasonable force in self-defense against respondent, or because petitioner or respondent was a minor at the time of the incident of domestic violence.

(5) Any relief granted by the protection order, other than a judgment for costs, shall be for a fixed period not to exceed one (1) year; provided, that an order obtained pursuant to this chapter may, upon motion and upon good cause shown, continue for an appropriate time period as directed by the court or be made permanent if the requirements of this chapter are met, provided the order may be terminated or modified by further order of the court either on written stipulation filed with the court or on the motion of a party and after a hearing on the motion. The motion to renew an order may be granted without a hearing, if not timely objected to by the party against whom the order was entered.

(6) In providing relief under this chapter, the court may realign the designation of the parties as “petitioner” and “respondent” where the court finds that the original petitioner is the abuser and the original respondent is the victim of domestic violence.

§ 39-6306A. Uniform interstate enforcement of domestic violence protection orders act.

1. Short Title. This section may be cited as the “Uniform Interstate Enforcement of Domestic Violence Protection Orders Act.”
2. Definitions. As used in this section:
   1. “Issuing state” means the state whose tribunal issues a protection order.
   2. “Mutual foreign protection order” means a foreign protection order that includes provisions in favor of both the protected individual seeking enforcement of the order and the respondent.
   3. “Protected individual” means an individual protected by a protection order.
   4. “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands or any territory or insular possession subject to the jurisdiction of the United States. The term includes an Indian tribe or band that has jurisdiction to issue protection orders.
   5. “Tribunal” means a court, agency, or other entity authorized by law to issue or modify a protection order.
3. Judicial Enforcement of Order.
   1. A person authorized by the law of this state to seek enforcement of a protection order may seek enforcement of a valid foreign protection order in a tribunal of this state. The tribunal shall enforce the terms of the order, including terms that provide relief that a tribunal of this state would lack power to provide but for this section. The tribunal shall enforce the order, whether the order was obtained by independent action or in another proceeding, if it is an order issued in response to a complaint, petition or motion filed by or on behalf of an individual seeking protection. In a proceeding to enforce a foreign protection order, the tribunal shall follow the procedures of this state for the enforcement of protection orders.
   2. A tribunal of this state may not enforce a foreign protection order issued by a tribunal of a state that does not recognize the standing of a protected individual to seek enforcement of the order.
   3. A tribunal of this state shall enforce the provisions of a valid foreign protection order which govern custody and visitation if the order was issued in accordance with the jurisdictional requirements governing the issuance of custody and visitation orders in the issuing state.
   4. A foreign protection order is valid if it:
      1. Identifies the protected individual and the respondent;
      2. Is currently in effect;
      3. Was issued by a tribunal that had jurisdiction over the parties and subject matter under the law of the issuing state; and
      4. Was issued after the respondent was given reasonable notice and had an opportunity to be heard before the tribunal issued the order or, in the case of an order ex parte, the respondent was given notice and has had or will have an opportunity to be heard within a reasonable time after the order was issued, in a manner consistent with the rights of the respondent to due process.
   5. A foreign protection order valid on its face is prima facie evidence of its validity.
   6. Absence of any of the criteria for validity of a foreign protection order is an affirmative defense in an action seeking enforcement of the order. (g) A tribunal of this state may enforce provisions of a mutual foreign protection order which favor a respondent only if:
      1. The respondent filed a written pleading seeking a protection order from the tribunal of the issuing state; and
      2. The tribunal of the issuing state made specific findings in favor of the respondent.
4. Nonjudicial Enforcement of Order.
   1. A law enforcement officer of this state, upon determining that there is probable cause to believe that a valid foreign protection order exists and that the order has been violated, shall enforce the order as if it were the order of a tribunal of this state. Presentation of a foreign protection order that identifies both the protected individual and the respondent and, on its face, is currently in effect constitutes probable cause to believe that a valid foreign protection order exists. For the purposes of this subsection, the foreign protection order may be inscribed on a tangible medium or may have been stored in an electronic or other medium if it is retrievable in perceivable form. Presentation of a certified copy of a foreign protection order is not required for enforcement.
   2. If a foreign protection order is not presented, a law enforcement officer of this state may consider other information in determining whether there is probable cause to believe that a valid foreign protection order exists.
   3. If a law enforcement officer of this state determines that an otherwise valid foreign protection order cannot be enforced because the respondent has not been notified or served with the order, the officer shall inform the respondent of the order, make a reasonable effort to serve the order upon the respondent, and allow the respondent a reasonable opportunity to comply with the order before enforcing the order.
   4. Registration or filing of an order in this state is not required for the enforcement of a valid foreign protection order pursuant to this section.
5. Registration of Order.
   1. Any individual may register a foreign protection order in this state pursuant to section 39-6311, Idaho Code. To register a foreign protection order, an individual shall present a copy of a protection order which has been certified by the issuing state to a court of this state in order to be entered in the Idaho law enforcement telecommunications system pursuant to section 39-6311, Idaho Code.
   2. An individual registering a foreign protection order shall file with the court an affidavit by the protected individual stating that, to the best of the protected individual’s knowledge, the order is currently in effect.
   3. A fee may not be charged for the registration of a foreign protection order.
   4. A foreign protection order registered under this section may be entered in any existing state or federal registry of protection orders, in accordance with applicable law.
6. Immunity. This state or a local governmental agency, or a law enforcement officer, prosecuting attorney, clerk of court, or any state or local governmental official acting in an official capacity, is immune from civil and criminal liability for an act or omission arising out of the registration or enforcement of a foreign protection order or the detention or arrest of an alleged violator of a foreign protection order if the act or omission was done in good faith in an effort to comply with this section.
7. Uniformity of Application and Construction. In applying and construing this section, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it. (8) Transitional Provision. This section applies to foreign protection orders issued before July 1, 2002, and to continuing actions for enforcement of foreign protection orders commenced before July 1, 2002. A request for enforcement of a foreign protection order made on or after July 1, 2002, for violations of a foreign protection order occurring before that date is governed by this section.

§ 39-6307. Security.

Whenever a protection order is issued under this chapter, the issuing court may set a security amount for a violation of the order.

§ 39-6308. Ex parte temporary protection order.

1. Where an application under this section alleges that irreparable injury could result from domestic violence if an order is not issued immediately without prior notice to the respondent, the court may grant an ex parte temporary protection order based upon the affidavit submitted or otherwise shall hold a hearing which may be ex parte on the day a petition is filed or on the following judicial day to determine whether the court should grant an ex parte temporary protection order, pending a full hearing, and grant such other relief as the court deems proper, including an order:
   1. Restraining any party from committing acts of domestic violence;
   2. Excluding any party from the dwelling shared or from the residence of the other until further order of the court;
   3. Restraining any party from interfering with the other’s custody of the minor children or from removing the children from the jurisdiction of the court;
   4. Ordering other relief as the court deems necessary for the protection of a family or household member, including orders or directives to a peace officer, as allowed under this chapter;
   5. Restraining the respondent from contacting, molesting, interfering with or menacing the minor children whose custody is awarded to the petitioner;
   6. Restraining the respondent from entering any premises when it appears to the court that such restraint is necessary to prevent the respondent from contacting, molesting, interfering with or menacing the petitioner or the minor children whose custody is awarded to the petitioner; and/or
   7. Restraining the respondent from taking more than personal clothing and toiletries and any other items specifically ordered by the court.
2. An ex parte hearing to consider the issuance of a temporary protection order may be conducted by telephone in accordance with procedures established by the Idaho supreme court.
3. Irreparable injury under this section includes but is not limited to situations in which the respondent has recently threatened the petitioner with bodily injury or has engaged in acts of domestic violence against the petitioner.
4. The court shall hold an ex parte hearing on the day the petition is filed or on the following judicial day.

§ 39-6309. Issuance of order — Assistance of peace officer — Designation of appropriate law enforcement agency.

When an order is issued or a foreign protection order is recognized under this chapter upon request of the petitioner, the court may order a peace officer to accompany the petitioner and assist in placing the petitioner in possession of the dwelling or residence, or otherwise assist in the execution of the protection order. A certified copy of the order shall be prepared by the clerk for transmittal to the appropriate law enforcement agency as specified in section 39-6311, Idaho Code. Orders issued or foreign protection orders recognized under this chapter shall include an instruction to the appropriate law enforcement agency to execute, serve, or enforce the order.

§ 39-6310. Order and service.

1. An order issued under this chapter along with a copy of the petition for a protection order, if the respondent has not previously received the petition, shall be personally served upon the respondent, except as provided in subsections (6), (7) and (8) of this section.
2. A peace officer of the jurisdiction in which the respondent resides shall serve the respondent personally unless the petitioner elects to have the respondent served by a private party at the petitioner’s own expense.
3. If service by a peace officer is to be used, the clerk of the court shall have a copy of any order issued under this chapter and a copy of the petition for a protection order, if the respondent has not previously received the petition, forwarded on or before the next judicial day to the appropriate law enforcement agency specified in the order for service upon the respondent. Service of an order issued under this chapter shall take precedence over the service of other documents unless they are of a similar emergency nature.
4. If the peace officer cannot complete service upon the respondent within ten (10) days, the sheriff or municipal peace officer shall notify the petitioner. The petitioner shall provide information sufficient to permit notification.
5. Returns of service under this chapter shall be made in accordance with the applicable court rules.
6. If an order entered by the court recites that the respondent appeared in person before the court and receives a copy of the order, the necessity for further service is waived and proof of service of that order is not necessary.
7. If a party has appeared in person before the court and has waived personal service, the clerk of the court shall complete service of any notice of hearing or orders or modifications by certified mail to the party’s address as shown on the court petition which resulted in the issuance of the order or modification. Parties shall at all times keep the court informed of their current mailing address.
8. If a foreign protection order is registered with the court under section 39-6306A, Idaho Code, the necessity for further service is waived and proof of service of that order is not necessary.

§ 39-6311. Order — Transmittal to law enforcement agency — Record in Idaho public safety and security information system — Enforceability.

1. The orders issued under sections 39-6306 and 39-6308, Idaho Code, or foreign protection orders recognized under section 39-6306A, Idaho Code, shall be in a form approved by the supreme court of the state of Idaho.
2. 1. A copy of a protection order granted or a foreign protection order recognized under this chapter shall be forwarded by the clerk of the court on or before the next judicial day to the appropriate law enforcement agency specified in the order. (2)(a) A copy of a protection order granted or a foreign protection order recognized under this chapter shall be forwarded by the clerk of the court on or before the next judicial day to the appropriate law enforcement agency specified in the order.
   2. Upon receipt of the order, the law enforcement agency shall forthwith enter the order and its expiration date into the Idaho public safety and security information system available in this state used by law enforcement agencies to list outstanding warrants. Notification of service as required in section 39-6310, Idaho Code, shall also be entered into the Idaho public safety and security information system upon receipt. Entry into the Idaho public safety and security information system constitutes notice to all law enforcement agencies of the existence of the order. The order is fully enforceable in any county in the state. Renewals of the order shall be recorded in the same manner as original orders. The information entered shall specifically state that the protection order is civil in nature. If the appropriate law enforcement agency determines that the service information sheet is incomplete or cannot be entered into the Idaho public safety and security information system upon receipt, the service information sheet shall be returned to the clerk of the court. The clerk of the court shall then notify the petitioner of the error or omission.
3. Law enforcement agencies shall establish procedures reasonably adequate to assure that an officer approaching or actually at the scene of an incident of domestic violence may be informed of the existence and terms of such protection order.
4. A protection order shall remain in effect for the term set by the court or until terminated by the court. A protection order may, upon motion and upon good cause shown, be renewed for additional terms not to exceed one (1) year each if the requirements of this chapter are met. The motion to renew an order may be granted without a hearing, if not timely objected to by the party against whom the order was entered. If the petitioner voluntarily and without duress consents to the waiver of any portion of the protection order vis-a-vis the respondent pursuant to section 39-6313, Idaho Code, the order may be modified by the court.

§ 39-6312. Violation of order — Penalties.

1. Whenever a protection order is granted and the respondent or person to be restrained had notice of the order, a violation of the provisions of the order or of a provision excluding the person from a residence shall be a misdemeanor punishable by not to exceed one (l) year in jail and a fine not to exceed five thousand dollars ($5,000), ten dollars ($10.00) of which shall be deposited to the credit of the domestic violence project account created in section 39-5212, Idaho Code.
2. A peace officer may arrest without a warrant and take into custody a person whom the peace officer has probable cause to believe has violated an order, if the person restrained had notice of the order.
3. The person against whom a protection order has been issued by an out-of-state court is presumed to have notice of the order if the victim presents to the officer proof of service of the order.

§ 39-6313. Order — Modification — Transmittal.

Upon application with notice to all parties and after a hearing, the court may modify the terms of an existing protection order. In any situation where an order is terminated or modified before its expiration date, the clerk of the court shall forward on or before the next judicial day a true copy of the modified order or the termination order to the appropriate law enforcement agency specified in the modification or termination order. Upon receipt of the order, the law enforcement agency shall promptly enter it in the Idaho law enforcement telecommunications system [public safety and security information system].

§ 39-6314. Peace officers — Immunity.

No peace officer may be held criminally or civilly liable for actions or omissions in the performance of the duties of his office under this chapter, including the enforcement of out-of-state protection orders, if the peace officer acts in good faith and without malice.

§ 39-6315. Proceedings additional.

Any proceedings under this chapter are in addition to other civil or criminal remedies.

§ 39-6316. Law enforcement officers — Training, powers, duties.

1. All training provided by the peace officers standards and training academy relating to the handling of domestic violence complaints by law enforcement officers shall stress enforcement of criminal laws in domestic situations, availability of community resources, and protection of the victim. Law enforcement agencies and community organizations with expertise in the issue of domestic violence shall cooperate in all aspects of such training.
2. When a peace officer responds to a domestic violence call, the officer shall give a written statement to victims which alerts the victim to the availability of a shelter or other resources in the community, and give the victim a written notice provided by the Idaho state police substantially stating the following:
3. The peace officer shall make every effort to arrange, offer, or facilitate transportation for the victim to a hospital for treatment of injuries or to a place of safety or shelter.
4. The law enforcement agency shall forward the offense report to the appropriate prosecutor within ten (10) days of making such report if there is probable cause to believe that an offense has been committed, unless the case is under active investigation.

IF YOU ARE THE VICTIM OF DOMESTIC VIOLENCE, you can ask the city or county prosecuting attorney to file a criminal complaint. You also have the right to file a petition in magistrate court requesting an order for protection from domestic abuse which could include any of the following: (a) an order restraining your abuser from further acts of abuse; (b) an order directing your abuser to leave your household; (c) an order preventing your abuser from entering your residence, school, business, or place of employment; (d) an order awarding you or the other parent custody of or visitation with your minor child or children; and (e) an order restraining your abuser from molesting or interfering with minor children in your custody. The forms you need to obtain a protection order are available from the clerk of the district court. The resources available in this community for information relating to domestic violence, treatment of injuries and places of safety and shelters are: (For safety reasons, inclusion of shelter/safe house addresses is not necessary). You also have the right to sue for losses suffered as a result of the abuse, including medical and moving expenses, loss of earnings or support, and other out-of-pocket expenses for injuries sustained and damage to your property. This can be done without an attorney in small claims court if the total amount claimed is less than five thousand dollars ($5,000).

§ 39-6317. Severability.

The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of remaining portions of this act.

§ 39-6318. Order for transfer of wireless telephone service.

1. In order to ensure that a requesting party can maintain an existing wireless telephone number and the wireless numbers of any minor children in the care of the requesting party, a court may issue an order, after notice and a hearing, directing a wireless telephone service provider to transfer the billing responsibility for and rights to the wireless telephone number or numbers to the requesting party, if the requesting party is not the account holder.
2. 1. The order transferring billing responsibility for and rights to the wireless telephone number or numbers to a requesting party shall be a separate order that is directed to the wireless telephone service provider. The order shall list the name and billing telephone number of the account holder, the name and contact information of the person to whom the telephone number or numbers will be transferred and each telephone number to be transferred to that person. The court shall ensure that the contact information of the requesting party is not provided to the account holder. (2)(a) The order transferring billing responsibility for and rights to the wireless telephone number or numbers to a requesting party shall be a separate order that is directed to the wireless telephone service provider. The order shall list the name and billing telephone number of the account holder, the name and contact information of the person to whom the telephone number or numbers will be transferred and each telephone number to be transferred to that person. The court shall ensure that the contact information of the requesting party is not provided to the account holder.
   2. The order shall be served on the wireless service provider’s agent for service of process listed with the secretary of state.
   3. Where the wireless service provider cannot operationally or technically effectuate the order due to certain circumstances including, but not limited to, any of the following, the wireless service provider shall notify the requesting party when:
      1. The account holder has already terminated the account;
      2. Differences in network technology prevent the functionality of a device on the network; or
      3. There are geographic or other limitations on network or service availability.
3. 1. Upon transfer of billing responsibility for and rights to a wireless telephone number or numbers to a requesting party, pursuant to subsection (2) of this section, by a wireless telephone service provider, the requesting party shall assume all financial responsibility for the transferred wireless telephone number or numbers, monthly service costs and costs for any mobile device associated with the wireless telephone number or numbers. (3)(a) Upon transfer of billing responsibility for and rights to a wireless telephone number or numbers to a requesting party, pursuant to subsection (2) of this section, by a wireless telephone service provider, the requesting party shall assume all financial responsibility for the transferred wireless telephone number or numbers, monthly service costs and costs for any mobile device associated with the wireless telephone number or numbers.
   2. This section shall not preclude a wireless service provider from applying any routine and customary requirements for account establishment to the requesting party as part of this transfer of billing responsibility for a wireless telephone number or numbers and any devices attached to that number or numbers including, but not limited to, identification, financial information and customer preferences.
4. This section shall not affect the ability of the court to apportion the assets and debts of the parties as provided for in law or the ability to determine the temporary use, possession and control of personal property.
5. No cause of action shall lie against any wireless telephone service provider, its officers, employees or agents for actions taken in accordance with the terms of a court order issued pursuant to the provisions of this section.

§ 39-6401. Legislative intent. [Repealed.]

Repealed by S.L. 2010, ch. 59, § 1, effective July 1, 2010.

§ 39-6402. Definitions. [Repealed.]

Repealed by S.L. 2010, ch. 59, § 1, effective July 1, 2010.

§ 39-6403. Declaration of policies and purposes. [Repealed.]

Repealed by S.L. 2010, ch. 59, § 1, effective July 1, 2010.

§ 39-6404. Establishment of a regional clean lakes coordinating council. [Repealed.]

Repealed by S.L. 2010, ch. 59, § 1, effective July 1, 2010.

§ 39-6405. Membership. [Repealed.]

Repealed by S.L. 2010, ch. 59, § 1, effective July 1, 2010.

§ 39-6406. Public advisory committee. [Repealed.]

Repealed by S.L. 2010, ch. 59, § 1, effective July 1, 2010.

§ 39-6407. Technical advisory group. [Repealed.]

Repealed by S.L. 2010, ch. 59, § 1, effective July 1, 2010.

§ 39-6408. Duties of the regional council. [Repealed.]

Repealed by S.L. 2010, ch. 59, § 1, effective July 1, 2010.

§ 39-6409. Responsibilities. [Repealed.]

Repealed by S.L. 2010, ch. 59, § 1, effective July 1, 2010.

§ 39-6410. Lake management plans. [Repealed.]

Repealed by S.L. 2010, ch. 59, § 1, effective July 1, 2010.

§ 39-6411. Moneys. [Repealed.]

Repealed by S.L. 2010, ch. 59, § 1, effective July 1, 2010.

§ 39-6412. Organization. [Repealed.]

Repealed by S.L. 2010, ch. 59, § 1, effective July 1, 2010.

§ 39-6413. Quorum. [Repealed.]

Repealed by S.L. 2010, ch. 59, § 1, effective July 1, 2010.

§ 39-6501. Definitions.

As used in this chapter:

1. “City” means the city where the waste tire storage site is located.
2. “County” means the county where the waste tire storage site is located.
3. “Department” means the department of environmental quality.
4. “Dispose” means to drop, deposit, dump, spill or permanently place any waste tire onto or under the ground or into the waters of this state, or to own or control property where waste tires are dropped, deposited, dumped, spilled or permanently placed onto or under the ground or into the waters of this state.
5. “Existing waste tire storage site” means any property storing waste tires prior to recycle, reuse, or final disposal as of July 1, 2003, regardless of whether the owner or operator possesses a permit or other written city or county authorization authorizing the storage of waste tires at the property.
6. “Mining waste tire” means a waste tire which is greater than fifty-four (54) inches in diameter which was used in mining operations. Mining waste tires may be disposed of by burial. The department of lands shall prepare guidelines to govern the burial of mining waste tires.
7. “Motor vehicle” means any automobile, motorcycle, truck, trailer, semitrailer, truck tractor and semitrailer combination or other vehicle operated on the roads of this state, used to transport persons or property and propelled by power other than muscular power, but motor vehicle does not include bicycles.
8. “New waste tire storage site” means any property that is not storing waste tires as of July 1, 2003, and applies for and receives a permit or other written city or county authorization to store waste tires prior to recycle, reuse or final disposal on or after July 1, 2003.
9. “Operator” means any person presently, or who was during any period of waste tire storage or disposal, in control of, or having responsibility for a waste tire storage site or a waste tire disposal site.
10. “Owner” means a person who owned a waste tire storage site or disposal site at any time waste tires are stored or disposed at the property, and the current owner of the waste tire storage site or waste tire disposal site.
11. “Person” means an individual, public or private corporation, partnership, association, firm, joint stock company, joint venture, trust, estate, municipality, commission, political subdivision of the state, state or federal agency, department or instrumentality, special district, interstate body or any legal entity, which is recognized by law as the subject of rights and duties.
12. “Retail tire dealer” means any person actively engaged in the business of selling new, used, or retread replacement tires at the retail level.
13. “Store” or “storage” means to accumulate more than two hundred (200) waste tires at any time, in a manner that does not constitute final disposal at a waste tire disposal site, or to own or control property on which more than two hundred (200) waste tires accumulate at any given time, in a manner that does not constitute final disposal at a waste tire disposal site. The following activities shall not constitute “storing” or “storage” of waste tires:
    1. A retail tire dealer collecting less than one thousand five hundred (1,500) waste tires at any point in time for each retail business location.
    2. A tire retreader collecting less than three thousand (3,000) waste tires at any point in time for each individual retread operation so long as the waste tires are of the type the retreader is actively retreading.
    3. A wrecking salvage business collecting less than one thousand five hundred (1,500) waste tires for each retail business location.
    4. A waste tire disposal site collecting waste tires for disposal at the site in accordance with the site’s approved operating plan.
    5. A wholesale tire dealer collecting less than one thousand five hundred (1,500) waste tires at any point in time for each wholesale business location.
    6. An approved solid waste transfer station or solid waste landfill collecting less than one thousand five hundred (1,500) waste tires prior to transfer to an approved waste tire storage or disposal site.
    7. A farm or livestock operation which utilizes waste tires to secure farm or livestock silage or wastes provided the total number of waste tires shall not exceed one thousand five hundred (1,500).
    8. A permitted facility storing tires for an approved beneficial use.
14. “Tire” has the meaning provided in section 49-121, Idaho Code.
15. “Tire retreader” means any person actively engaged in the business of retreading tires by scarifying the surface to remove the old surface tread and attaching a new tread to make a usable tire.
16. “Transport” or “transporting” means picking up or hauling waste tires.
17. “Waste tire” means a motor vehicle tire originally used for operation of a vehicle on a public roadway which is no longer suitable for its original intended purpose because of wear, damage or defect.
18. “Waste tire storage site” means a new or existing waste tire storage site.
19. “Waste tire disposal site” means a public or private municipal solid waste landfill operating in compliance with section 39-6503, Idaho Code.
20. “Wholesale tire dealer” means any person engaged in the business of selling new replacement tires to tire retailers.
21. “Wrecking salvage business” means any establishment or place of business which is maintained, used, or operated, for storing, keeping, buying, or selling wrecked, scrapped, ruined, or dismantled motor vehicles or motor vehicle parts.

§ 39-6502. Waste tire storage sites.

1. No person shall store waste tires on any public or private property in this state or in the waters of this state unless the property is a waste tire storage site as defined or otherwise exempted in this chapter.
2. Permit or local authorization required. No person shall own or operate a waste tire storage site without a permit or other written county or city authorization, as follows:
   1. Counties and cities shall only issue permits or other written authorizations that contain terms and conditions that assure waste tire storage sites are operated in compliance with this chapter and any additional requirements the county or city deems appropriate. Counties and cities shall review waste tire storage site applications pursuant to the procedures contained in section 67-6512, Idaho Code.
   2. Existing waste tire storage sites.
      1. Within three (3) months of the effective date of this chapter, the owner or operator of an existing site that is:
         1. Operating without a permit or other written local authorization on the effective date of this chapter, shall apply to the respective county or city jurisdiction for approval to operate the existing site via an approved permit or other written city or county authorization; or
         2. Operating with a previously issued permit or other written city or county authorization on the effective date of this chapter, shall notify the respective county or city jurisdiction.
      2. If an existing waste tire storage facility fails to submit to the county or city an application by October 1, 2003, the existing waste tire storage site shall cease storing waste tires by January 1, 2004.
      3. If the county or city determines not to issue a permit, other written authorization, or a modification to an existing permit or approval, for the existing waste tire storage site, the existing waste tire storage site shall cease storing waste tires no later than three (3) months after receiving notice of the determination not to issue a permit, other written authorization, or modification for the site.
      4. The current owner or operator of a new waste tire storage site shall comply with the financial assurance requirement of this section prior to commencing waste tire storage at the site.
   3. New waste tire storage sites. The current owner or operator of a new waste tire storage site shall not commence waste tire storage at the site until the county or city issues a permit or other written authorization permitting waste tire storage.
   4. Counties and cities shall issue permits and other written local authorizations for waste tire storage sites.
   5. Financial assurance. The owner or operator of a waste tire storage site shall maintain financial assurance in the form of a cash bond payable to the county or city, in an amount acceptable to the county or city where the waste tire storage site is located; provided however, counties and cities shall require a minimum initial financial assurance of two dollars and fifty cents ($2.50) per tire authorized to be stored at the site. The amount of financial assurance shall be adjusted each year in accordance with the consumer price index on the anniversary date of the issuance of the permit or other city or county written authorization. Failure to adjust the amount of financial assurance on the anniversary date each year shall constitute failure to comply with the provisions of this chapter and shall result in automatic revocation of the permit or other written city or county authorization and forfeiture of the bond. Cities and counties shall only process an application submitted under this section when documentation submitted with the application establishes compliance with the financial assurance requirement of this paragraph. (i) The current owner or operator of an existing waste tire storage site shall comply with the financial assurance requirement of this paragraph by October 1, 2003. Except that the owner or operator of the existing waste tire storage site located in the magic valley as provided by rule of the department shall comply with the financial assurance requirement of this paragraph by July 1, 2005.
   6. Siting. Counties and cities shall only issue a permit or written authorization to a waste tire storage site when the application establishes that the proposed or existing site is located on property owned as exclusively for industrial use.
   7. Application processing fee. Counties and cities may charge a fee for processing a waste tire storage site permit or authorization application or renewal.
   8. Records. Owners and operators of a waste tire storage site shall record and maintain on-site for a period of three (3) years, operational records including, but not limited to, the daily quantity of tires transported to and from the site, and the estimated quantity of tires located at the site.
   9. Suspension, revocation, renewal of permit or written authorization. The county or city may suspend, revoke, or refuse to renew a waste tire storage site’s permit or written authorization if the county or city determines that the site is operating in violation of any requirement of this section or any term or condition of the site’s permit or written authorization.
3. In the event the current owner or operator of an existing or new waste tire storage site fails to comply with the requirements of this section, the board of county commissioners or city council may declare the site a public nuisance; and may declare a public health or safety emergency based on potential fire hazard, threat of insect borne disease, or potential contamination of the state’s ground or surface waters. If the respective governing authority has declared a public health or safety emergency, they may petition the board of examiners for, and the board of examiners may authorize, the issuance of deficiency warrants for the purpose of removing and properly disposing of the tires upon the recommendation of the state fire marshal in the event of fire hazard, or the district health department in the event of insect borne disease hazard, or the department in the event of ground or surface water contamination hazard.
   1. Upon authorization of deficiency warrants by the board of examiners in accordance with provisions of this section, the state controller shall, after notice to the state treasurer, draw deficiency warrants in the authorized amounts against the general fund.
   2. Nothing contained in this section shall be construed to change or impair any right of recovery or subrogation arising under any other provision of law.

Upon written request from the city council or board of county commissioners to the department, the department shall be responsible for the permitting and authorization requirements of this section with respect to any application submitted to the county or city, in lieu of the county or city.

Upon written request from the city council or board of county commissioners to the department, the cash bond will be written in favor of the department, in lieu of the city or county. In such cases, the department will oversee use of the bond should two (2) owners or operators become liable on the bond obligation.

§ 39-6503. Waste tire disposal.

1. No person shall dispose of waste tires on any public or private property in this state or in the waters of this state except at permitted public or private municipal solid waste landfills which have been approved to accept waste tires in their operating plans as specified in the following subsection.
2. Waste tires may be disposed at a permitted public or private municipal solid waste landfill with an approved operating plan only if the waste tires have been processed to meet the following criteria:
   1. The volume of one hundred (100) unprepared randomly selected whole tires in one (1) continuous test period must be reduced by at least sixty-five percent (65%) of the original volume as specified in subsection (3) of this section. No single void space greater than one hundred twenty-five (125) cubic inches may remain in the randomly placed processed tires; or
   2. The tires shall be reduced to an average chip size no greater than sixty-four (64) square inches in any randomly selected sample of ten (10) tires or more. No more than forty percent (40%) of the chips may exceed sixty-four (64) square inches.
3. Tire volumes shall be calculated as follows:
   1. Unprocessed whole tire volume shall be calculated by randomly placing one hundred (100) unprepared randomly selected whole tires in a rectangular container and multiplying the depth of unprocessed tires by the bottom area of the container.
   2. Processed tire volume shall be determined by randomly placing the processed tire test quantity in a rectangular container and leveling the surface. It shall be calculated by multiplying the depth of processed tires by the bottom area of the container.

§ 39-6504. Transport of waste tires.

1. No person shall transport waste tires for storage to any location in this state other than to a waste tire storage site for which a city or county has issued a permit or other written county or city authorization in active status.
2. No person shall transport waste tires for disposal to any location in this state other than to a municipal solid waste landfill which is operating in compliance with the requirements of section 39-6503, Idaho Code.
3. Nothing in this section shall prohibit any person from transporting waste tires to facilities in the state which possess a valid air quality permit, provided the permit allows for an approved beneficial use of the waste tires.

§ 39-6505. Prohibited acts.

No person shall advertise or represent himself/herself as being in the business of accepting waste tires for transport, storage, or disposal without being in full compliance with all the provisions of this chapter.

§ 39-6506. Recycling and reuse of waste tires.

The state of Idaho seeks to protect human health and the environment by encouraging the recycling and reuse of waste tires. Accordingly, the legislature directs the department to identify approved methods of recycling and reuse of waste tires.

§ 39-6507. Penalties.

Any person who knowingly stores, transports or disposes of a tire in violation of the provisions of this chapter is subject to a civil penalty of not more than five hundred dollars ($500) per violation and is subject to the provisions of the environmental protection and health act contained in section 39-108, Idaho Code. Each tire so disposed of improperly constitutes a separate violation.

§ 39-6508. Purpose.

The state of Idaho supports and encourages the reuse and recycling of waste tires. The legislature finds the paramount public interest in regulating waste tires is to protect public health and safety. In particular, the legislature is concerned with eliminating potential fire hazards; minimizing or eliminating potential breeding grounds for disease-bearing insects; and eliminating potential sources of surface and ground water contamination.

§ 39-6601. Legislative intent.

The legislature finds that the waters of Big Payette Lake and its watershed are threatened with deterioration due to expanding residential development, greater public use and growing land use activities, that these pressures may endanger the drinkability, economic potential, fisheries, natural beauty, recreational use, swimability and wildlife values of the lake; that the state holds all such public lakes in trust for the use of all its citizens; that to preserve and protect such public lakes and to increase and enhance the use and enjoyment of such lakes is in the best interest of all the citizens of the state; that natural lakes form an important basis of the state’s economy and that the increasing demand upon the lake waters of this state require coordinated state and local action to protect, preserve and improve the water qualify [quality] of the lakes.

The legislature declares that it is necessary to embark upon a program of water quality protection for the lake so that future generations of Idahoans may use and enjoy it. This act creates a program to protect, preserve and, where necessary, improve the water quality of the lake while accommodating private, public and commercial activities to the extent prudent and practicable. The program as set forth in this act shall require a working partnership of federal, state and local agencies.

§ 39-6602. Definitions.

Whenever used in this chapter:

1. “Citizens committee” means the committee named by the council consisting of members of the public.
2. “Council” means the “Big Payette Lake Water Quality Council” established in this chapter.
3. “Lake” means the Big Payette Lake and its watershed which shall include all tributaries, and small lakes on those tributaries, to the North Fork of the Payette River above Big Payette Lake. The term “lake” shall also include all tributaries, and small lakes on those tributaries, that drain directly into Big Payette Lake before the dam on the North Fork of the Payette Lake as it leaves Big Payette Lake.
4. “Plan” means the comprehensive water quality management plan for the lake to be developed after the initial study, and as modified over time.
5. “Pollution” means water pollution as defined in section 39-103, Idaho Code.
6. “Program” means all the actions to be performed by the council pursuant to this chapter.
7. “Study” means the comprehensive, scientifically-based study of water quality in the lake.
8. “Technical committee” means the advisory committee named by the council pursuant to this chapter.

§ 39-6603. Establishment of the Big Payette Lake water quality council.

There is hereby created a Big Payette Lake water quality council for the lake. It shall be the responsibility of the council to develop and implement the program created in this chapter. The council shall be assisted in carrying out its responsibilities by the department of environmental quality, the local public health district and other appropriate state and local agencies as needed.

§ 39-6604. Declaration of policies and purposes.

The council shall develop and implement a program that includes:

1. The assembly of all historical data on water quality studies in the lake.
2. An assessment of present and projected land and water uses related to the lake.
3. The performance of a comprehensive, scientifically-based study of water quality in the lake. This study will include, but not be limited to, all point and nonpoint sources of nutrients, bacteria, sediments and potential pollution.
4. The continued collection of important data after the initial study is completed as required by and for use in a nutrient load/lake response predictive model which shall be developed as part of the initial study.
5. The preparation of a water quality management plan upon completion of the initial study, such plan to be updated regularly as new knowledge becomes available.
6. The submittal of such plan to the legislature which shall accept, modify or reject the plan. The council will assist and coordinate the implementation of the accepted plan with federal, state and local authorities for seven (7) years after acceptance, after which the council and its committees will disband and be succeeded by appropriate multiagency oversight of the plan, its modification, and maintenance of the nutrient load/lake response predictive model. The city council of McCall and the Valley county commission may establish appropriate public committees to advise in matters related to the implementation of the plan on a continuing basis.
7. An active public participation program with stakeholders and other interested parties in the design of the study, and the preparation and implementation of the plan, from the beginning of the council’s activities and until its disbandment. This program shall include regular reports to the public through forums, printed material and otherwise of lake conditions, findings of the study and progress in the development and implementation of the plan.

§ 39-6605. Membership.

The council shall consist of nine (9) members appointed by the governor. The governor shall appoint one (1) member who shall be a Valley county commissioner at the time of their appointment, one (1) member who shall be an elected member of the McCall city government at the time of their appointment, one (1) local resident to represent sporting interests in the area, one (1) member to represent lumbering interests in the watershed, one (1) member to represent commercial interests in Valley county, and four (4) members at large who are full or part-time residents of Valley county. The terms of the members shall be three (3) years with the initial term to be staggered in terms of one (1), two (2), and three (3) years by the governor when he makes the appointment. Vacancies shall be filled by appointment of the governor upon recommendation of the council. A majority of the members of the council must maintain their primary residence in Valley county. Once established, the council will convene to adopt rules for its operation.

§ 39-6606. Duties of council.

The council shall have the following duties:

1. To coordinate activities related to the study of water quality in the lake, the development of a water quality management plan, and the implementation of that plan until disbandment as provided herein.
2. To conduct a public awareness program to educate the general public on methods and responsibilities to protect the lake.
3. To make an examination, as the council deems necessary, of environmental conditions in, upon and around the lake. The objective shall be to obtain a scientifically sound baseline study for planning future action by appropriate authorities.
4. To undertake and complete a management plan with recommendations for the lake based upon such examination and study. The plan to be prepared shall specifically identify and address lake protection concerns upon the lake and within the surrounding watershed where land use, scenic values, water uses, residential development, wildlife habitat, fisheries, industry, commerce and other forms of human activity are both influenced by the lake and may reasonably be expected to significantly impact the water quality of the lake.
5. To promote, until disbandment, the implementation of the plan by serving in an advisory capacity to those city, planning and zoning, county, state and federal authorities with responsibilities affecting lake management or lake water quality. The council may recommend, as appropriate, the adoption of any statutes, ordinances, rules and regulations needed to implement the plan.
6. To consult with the public and keep the public informed through public forums and written reports of all activities of the council.
7. The duties of the council are ongoing and continuous until its disbandment. The council shall have the authority to complete the examination and study and prepare the plan complete with recommendations for the lake and its tributaries.
8. The council and all its committees will automatically disband seven (7) years after the plan, as and/or if, modified, is adopted by the legislature. Before disbandment, the council shall assist local, city, state and federal authorities in the establishment of a multiagency oversight capability to succeed the council.
9. The council shall not have any regulatory or enforcement powers.

§ 39-6607. Organization.

1. After appointment, the members of the council shall choose one (1) member as chairman of the council and shall elect a secretary and treasurer of the council who may or may not be members of the council. The secretary and the treasurer may be one (1) person. The secretary shall keep a record of all council proceedings, minutes of all meetings, certificates, contracts, bonds given by employees and all corporate acts which shall be open to inspection to all interested parties.
2. The treasurer shall keep strict and accurate accounts of all money received by and disbursed for and on behalf of the council in permanent records. The treasurer shall prepare or cause to be prepared annual financial statements on a fiscal year basis ending June 30 of each year. Such financial statements shall be available for inspection by any citizen.
3. Members of the council shall serve without compensation. No member shall receive any compensation as an employee of the council or otherwise, other than herein provided, and no member of the council shall be interested in any contract or transaction with the council except in his official representative capacity.
4. It shall be the duty of the council to cause an audit to be made of all financial affairs of the council during each year ending June 30. A financial statement shall be certified by the person making such audit.

§ 39-6608. Quorum.

1. A majority of the members of the council shall constitute a quorum for the transaction of business. A majority vote of the members present shall be required to take action with respect to any matter. The vote of each member shall be individually recorded.
2. The council may in other respects adopt its own operating procedures, which procedures shall be made available for public review.

§ 39-6609. Technical committee.

To assist in the development of its program, the council shall create a technical committee which may include, but is not exclusively limited to, designated representatives of the public health district, city and county planning or engineering departments, the county planning and zoning commission, the McCall water and sewer district, department of environmental quality, department of lands, department of fish and game, department of parks and recreation, department of water resources, state soil and water conservation commission, United States forest service, United States army corps of engineers, United States agricultural conservation and stabilization services, United States natural resources conservation service, United States geological survey, United States environmental protection agency and representatives proposed by interests in agriculture, environmental protection, forest products, sporting and mining. Indian tribes may nominate a representative for the technical committee. Members shall serve without state compensation except such normal compensation received by members who are state, city, county, district or federal employees serving in the normal course and scope of their employment.

§ 39-6610. Citizens committee.

The council shall create a citizens committee comprised of citizens who express an interest in the council’s program for the lake, the study and the plan. Citizens performing volunteer services in support of the council’s program shall be automatic members of the citizens committee. Members of the citizens committee may meet with the council with full right to participate in all proceedings and discussions except that citizen committee members shall not be voting members.

§ 39-6611. Lake management plan.

1. When the council has received and accepted the study, it shall make the same available to all appropriate and interested city, county, health district, state and federal agencies and to any interested individual or affected lake agency or association. For a period of ninety (90) days after dissemination, any interested agency or person may submit written suggestions, comments or proposals for the lake management plan or recommendations to the council.
2. The council shall thereafter prepare a lake management plan and recommendations which shall be completed within one hundred eighty (180) days after dissemination of the examination and baseline study.
3. The council shall identify sources and types of pollution within the planning area and identify existing and potential programs and measures by which this pollution might be abated, and summarize the past successes of these efforts, including notable voids in funding, regulatory powers or interagency coordination.
4. The council shall identify present and future water and land uses within the watershed and comment on the implication of these various uses on the lake.
5. Once completed, the council shall provide copies of its plan and recommendations to all agencies, persons and associations who have indicated an interest in the examination and baseline study. The council shall thereupon provide for one (1) or more public hearings upon its lake management plan and recommendations with notice given as provided in chapter 52, title 67, Idaho Code.
6. After receiving the information obtained at the public hearing(s), the council shall make such changes and revisions as it deems necessary and within thirty (30) days after such public hearing, but in no event later than the next regular session of the Idaho legislature, the council shall submit the plan to the legislature.
7. The legislature shall, within the next regular session during or after which it receives the plan, accept, reject or modify the plan. Such accepted or modified plan shall have the force and effect of law.
8. Thereafter, the council shall assist public and governmental authorities to adopt and enforce the provisions of the plan for which that authority has a responsibility. Before its disbandment, the council shall also assist these authorities to establish an ongoing joint-agency oversight responsibility for the plan and its recommendations.

§ 39-6612. Accounts.

1. There is hereby created in the state treasury a dedicated fund known as the Payette Lake trust account. Moneys in the Payette Lake trust account may come from appropriations, grants, gifts, donations, use fees or such other sources as may be authorized by the legislature. Moneys in the account shall be exclusively for the development and implementation of the program. Moneys in the account may only be expended pursuant to appropriation, and then only as authorized by a resolution duly adopted by a majority of the council.
2. There is hereby created in the state treasury a dedicated fund known as the Big Payette Lake water quality council administrative account. All money in the account is to be derived exclusively from private, nongovernmental funding sources. All money in the account is appropriated continuously to the council to be used exclusively to defray the costs of council administration. The account shall not be subject to the provisions of the standard appropriations act of 1945.

§ 39-6701. Legislative statement of findings and intent.

1. The legislature finds that the air quality in certain regions of the state is threatened with deterioration. This deterioration may endanger the breathability, economic potential, public health, natural beauty, recreational use and livability in various regions of the state. It is the intent of the legislature in establishing this chapter to preserve and protect the air quality of the entire state.
2. The legislature declares that it is necessary to embark upon a program of air quality protection for future generations of Idahoans. This chapter establishes a treasure valley air quality council and also allows for the creation of regional air quality councils as necessary to protect, preserve and, where necessary, improve the quality of air in a specified geographical area while accommodating private, public and commercial activities. The plan developed by an air quality council as set forth in this chapter shall require a working partnership of state and local agencies of government as well as the private sector.

§ 39-6702. Establishment of the Treasure Valley air quality council.

There is hereby established a Treasure Valley air quality council within the Idaho department of environmental quality. It shall be the responsibility of the council to develop a plan and carry out the duties established by this chapter. The council shall be assisted in its work by the department of environmental quality and other appropriate state and local agencies as needed.

§ 39-6703. Establishment of a regional air quality council — Petition.

1. There is hereby authorized the establishment of regional air quality councils within the Idaho department of environmental quality.
2. Any ten (10) persons living within the boundaries of a geographical area proposed for the establishment of a regional air quality council may file a petition with the board of environmental quality within the department of environmental quality requesting a regional air quality council be established. The petition shall set forth:
   1. The proposed name of the regional air quality council;
   2. The needs, in the interest of the public health, safety and welfare, for such a council;
   3. The geographical boundaries of the territory proposed for development of a plan by a council; and
   4. A request that the board duly define the geographic boundaries for a council.
3. Within thirty (30) days after such petition has been filed with the board, it shall cause due notice to be given of a proposed hearing upon the petition. After such hearing, if the board determines upon the facts presented at the hearing and upon such other relevant facts and information as may be available, that there is need in the interest of the public health, safety and welfare, for the establishment of a regional air quality council, it shall approve the petition and shall make and record such approval. The board shall immediately as practicable notify the governor by forwarding a copy of the board’s approval to the governor. Within a reasonable time, but not to exceed ninety (90) days, the governor shall appoint members to that regional air quality council in accordance with the provisions of section 39-6708, Idaho Code.
4. It shall be the responsibility of any council established under this chapter to develop a plan and carry out the duties established by this chapter. The council shall be assisted in its work by the department of environmental quality and other appropriate state and local agencies as needed.

§ 39-6704. Establishment of a citizens committee.

Each council established under the provisions of this chapter shall create a citizens committee comprised of citizens who express an interest in the council’s purpose and work. Citizens performing volunteer services in support of the work of a council shall automatically be members of the citizens committee. Members of the citizens committee may meet with the council with full right to attend all proceedings and discussions and submit comments, except that citizen committee members shall not be voting members.

§ 39-6705. Definitions.

Whenever used in this chapter:

1. “Air pollution” means air pollution as defined in section 39-103, Idaho Code.
2. “Air quality plan” means the comprehensive, air quality management plan for a specified regional area as developed and modified by a regional air quality council.
3. “Citizens committee” means the committee consisting of members of the public created pursuant to section 39-6704, Idaho Code, by an air quality council established under the provisions of this chapter.
4. “Council” means a regional air quality council established pursuant to this chapter.
5. “Local governing agency” means a county or city government agency.
6. “Specified regional area” means a county or counties, or a defined geographical area where air quality is threatened.
7. “Study” means the comprehensive, scientifically-based study of air quality in a specified regional area including the study of air quality in the Treasure Valley.
8. “Treasure Valley” means the geographic boundaries encompassed by Ada and Canyon counties.
9. “Treasure Valley air quality council” means the regional air quality council established in section 39-6702, Idaho Code.
10. “Treasure Valley air quality plan” means the comprehensive, air quality management plan for Ada and Canyon counties as developed and modified by the Treasure Valley air quality council.

§ 39-6706. Declaration of policies and purposes.

The Treasure Valley air quality council, and any regional air quality council established pursuant to this chapter, shall develop and implement an air quality plan in accordance with the environmental protection and health act, sections 39-101 through 39-130, Idaho Code, that includes:

1. The compilation of all historical data on air quality studies in the Treasure Valley, or in a specified regional area;
2. An assessment of present and projected emissions related to the Treasure Valley, or related to a specified regional area;
3. The completion of a comprehensive, scientifically-based study of air quality in the Treasure Valley, or in a specified regional area;
4. A description of actions to be taken by governmental agencies and nongovernmental entities to protect, preserve and, when necessary, improve the air quality in the Treasure Valley, or in a specified regional area; and
5. The submittal of an air quality management plan to the legislature which may reject the plan in whole or in part pursuant to a concurrent resolution. The Treasure Valley air quality council, and any regional air quality council established pursuant to this chapter, shall assist and coordinate the implementation of the accepted plan with federal, state and local authorities for seven (7) years after acceptance, after which the Treasure Valley air quality council, or any regional air quality council, and its committees shall disband.

§ 39-6707. Membership of the Treasure Valley air quality council.

1. The Treasure Valley air quality council shall consist of fourteen (14) members appointed by the governor. The governor shall appoint one (1) member who shall be an Ada county commissioner; one (1) member who shall be a Canyon county commissioner; one (1) member who is an elected member of a city government in Ada county; one (1) member who is an elected member of a city government in Canyon county; two (2) members who represent agricultural interests in the Treasure Valley; two (2) members who represent commercial interests in the Treasure Valley; two (2) members from manufacturing or food processing industries located in the Treasure Valley; two (2) members from recognized Idaho environmental organizations; and two (2) members at large who are full-time residents of Ada or Canyon county.
2. The terms of the members shall be three (3) years with the initial term to be staggered in terms of one (1), two (2), and three (3) years by the governor when he makes the original appointment.
3. The governor shall designate one (1) member to serve as chair of the Treasure Valley air quality council.
4. Vacancies shall be filled by appointment of the governor.
5. All members of the Treasure Valley council shall maintain their primary residence in either Ada or Canyon county during the term of the member’s appointment.

§ 39-6708. Membership of a regional air quality council.

1. A council shall consist of fourteen (14) members appointed by the governor. The governor shall appoint two (2) members from each of the following categories: two (2) members who are county commissioners within the specified regional area; two (2) members who are at the time of appointment, elected members of a city government in the specified regional area; two (2) members who represent agricultural interests in the specified regional area; two (2) members who represent commercial interests in the specified regional area; two (2) members from industries located in the specified regional area; two (2) members from recognized Idaho environmental organizations; and two (2) members at large who are full-time residents of the specified regional area.
2. The terms of the members shall be three (3) years with the initial term to be staggered in terms of one (1), two (2), and three (3) years by the governor when he makes the original appointments.
3. The governor shall designate one (1) member to serve as chair of the council.
4. Vacancies shall be filled by appointment of the governor.
5. All members of a council shall maintain their primary residence in the specified regional area during the term of the member’s appointment.

§ 39-6709. Duties of the Treasure Valley air quality council and any regional air quality council — Powers.

1. The Treasure Valley air quality council, and any regional council established pursuant to this chapter, shall have the following duties:
   1. To coordinate activities related to the study of air quality, the development of an air quality plan for the area, and oversee the implementation of that plan.
   2. To conduct a public awareness program to educate the general public on methods and responsibilities to protect the air shed.
   3. To examine, as the Treasure Valley or regional council deems necessary, air quality conditions in, upon and around the Treasure Valley, or in, upon and around a specified regional area. The objective shall be to obtain a scientifically-sound baseline study for planning future action by appropriate federal, state and local government, and the private sectors.
   4. To promote, until dissolution, the implementation of the Treasure Valley air quality plan, or the air quality plan of a regional council, by serving in an advisory capacity to those local, state and federal government agencies with responsibilities affecting air quality. Any council may recommend, as appropriate, the adoption of any statutes, ordinances, policies and rules needed by such governmental agencies to implement the plan.
   5. To consult with the public and keep the public informed of activities of the council through public forums and written reports.
   6. To establish a citizens committee pursuant to section 39-6704, Idaho Code.
   7. To perform its duties continuously until its dissolution.
   8. Prior to the automatic dissolution of the council and all its committees seven (7) years after the council’s plan is adopted by the legislature, to assist local, state and federal agencies in the establishment of a multiagency oversight capability to succeed the council.
2. A council shall not have any regulatory or enforcement powers.

§ 39-6710. Quorum — Procedures.

1. A majority of the members of the Treasure Valley air quality council, or a regional council, shall constitute a quorum for the transaction of business. A majority vote of the members present shall be required to take action with respect to any matter.
2. The Treasure Valley air quality council, or a regional council, may adopt its own operating rules and procedures which shall be made available to the public.

§ 39-6711. Treasure Valley air quality plan.

1. The Treasure Valley air quality council shall complete a draft plan by July 1, 2006. It shall make the study available to all appropriate and interested local, state and federal agencies and to any interested persons. For a period of ninety (90) days after dissemination, any interested agency or person may submit written suggestions, comments or proposals for the plan, or recommendations to the council.
2. The council shall thereafter prepare a final Treasure Valley air quality plan which shall be completed within one hundred eighty (180) days after dissemination of the study.
3. The council shall identify in the plan all known present and future air issues in Ada and Canyon counties.
4. Once completed, the council shall provide copies of its plan to all agencies and persons who have indicated an interest in the study. The council shall thereupon provide for one (1) or more public hearings upon its plan and recommendations with notice given as provided in chapter 52, title 67, Idaho Code.
5. After receiving the information obtained at the public hearing, the council shall make such changes and revisions as it deems necessary and within thirty (30) days after such public hearing, but in no event later than the next regular session of the Idaho legislature, the council shall submit the plan to the legislature.
6. The legislature may, within the next regular session during or after which it receives the plan, reject the plan in whole or in part by concurrent resolution.
7. Thereafter, the council shall assist in the implementation of the provisions of the plan. Before its dissolution, the council shall also assist these local, state and federal agencies to establish an ongoing, joint-agency oversight responsibility for the plan.

§ 39-6712. Implementation of the Treasure Valley air quality plan.

To the greatest extent practicable, all Idaho state and local government agencies shall implement the plan and its recommendations. In circumstances where any state or local government agency chooses not to so incorporate and implement any element of the plan, any such agency shall provide to the council in writing the reasons why such incorporation and implementation have not been adopted.

§ 39-6713. Treasure Valley air quality trust fund.

There is hereby created in the state treasury a dedicated fund known as the “Treasure Valley Air Quality Trust Fund” which shall be referred to as the Treasure Valley fund. Moneys in the Treasure Valley fund may come from grants, gifts, donations, use fees or such other sources as may be authorized by the legislature. Moneys in the fund shall be used exclusively for the purpose of fulfillment of the statutorily-required duties of the Treasure Valley air quality council. Moneys in the fund may only be expended as authorized by a resolution duly adopted by a majority of the council.

§ 39-6714. Air quality plan of a regional air quality council.

1. A regional air quality council shall develop and accept the study within one (1) year after establishment of the council. It shall make the study available to all appropriate and interested local, state and federal agencies and to any interested persons. For a period of ninety (90) days after dissemination, any interested agency or person may submit written suggestions, comments or proposals for the plan, or recommendations to the council.
2. The council shall thereafter prepare a final regional air quality plan which shall be completed within one hundred eighty (180) days after dissemination of the study.
3. The council shall identify present and future air issues in the specified regional area.
4. Once completed, the council shall provide copies of its plan to all agencies and persons who have indicated an interest in the study. The council shall thereupon provide for one (1) or more public hearings upon its plan and recommendations with notice given as provided in chapter 52, title 67, Idaho Code.
5. After receiving the information obtained at the public hearing, the council shall make such changes and revisions as it deems necessary and within thirty (30) days after such public hearing, but in no event later than the next regular session of the Idaho legislature, the council shall submit the plan to the legislature.
6. The legislature shall, within the next regular session during or after which it receives the plan, accept, reject or modify the plan by concurrent resolution.
7. Thereafter, the council shall assist in the adoption and enforcement of the provisions of the plan. Before its dissolution, the council shall also assist these local, state and federal agencies to establish an ongoing, joint-agency oversight responsibility for the plan.

§ 39-6715. Implementation of a regional air quality plan.

To the greatest extent practicable, all Idaho state and local government agencies shall incorporate and implement the plan and its recommendations. In circumstances where any state or local government agency chooses not to implement any element of the plan, any such agency shall provide to the council a written explanation of its failure to implement that portion of the plan.

§ 39-6716. Regional fund.

There is hereby created in the state treasury a dedicated fund known as the “Regional Air Quality Trust Fund” which shall be referred to as the regional fund. Moneys in the regional fund may come from grants, gifts, donations, use fees or such other sources as may be authorized by the legislature. Moneys in the fund shall be used exclusively for the purpose of fulfillment of the statutorily-required duties of a regional air quality council. Moneys in the fund may only be expended as authorized by a resolution duly adopted by a majority of a council.

§ 39-6717. Savings clause.

Nothing in this chapter shall alter or affect the provisions of section 39-114, Idaho Code, on the open burning of crop residue.

Chapter 70 SALE AND DISPOSAL OF BATTERIES

Sec.

§ 39-7101. Short title.

This chapter may be known and cited as the “Idaho Hazardous Substance Response Act.”

§ 39-7102. Legislative findings and purposes.

1. The legislature of the state of Idaho finds:
   1. That the state has a duty to protect the health, safety and welfare of the people of Idaho;
   2. That the protection and preservation of Idaho’s environment promotes the health, safety and welfare of her people;
   3. That the unexpected and uncontrolled releases or threat of releases of hazardous substances constitute a threat to the people and environment of Idaho; and
   4. That knowledgeable persons, governmental entities and organizations should be encouraged to lend expert assistance in the event of a hazardous substance incident.
2. Therefore, it is hereby declared that the purposes of the provisions of this chapter are:
   1. To facilitate emergency response planning and coordination at a state and local level;
   2. To provide for the prompt response and containment of releases or threats of release of hazardous or potentially hazardous substances to include explosives and weapons of mass destruction;
   3. To provide liability for emergency response costs associated with responding to hazardous substances incidents;
   4. To encourage knowledgeable persons, governmental entities and organizations to lend assistance by providing them with limited immunity from civil liability; and
   5. To provide a mechanism for recovery of costs incurred by the state and local governments in responding to emergency hazardous substance incidents to be used in lieu of, and not in addition to, cost recovery mechanisms or claims for relief provided by applicable federal laws. By enacting this chapter, it is the intent of the legislature that the state and local governments elect to proceed in state courts under the provisions of this chapter and other provisions of state law rather than in federal court under federal laws, where necessary to recover emergency response costs. There is no provision for cost recovery for a hazardous substance incident response occurring on private property where the owner responds to the incident with the approval of the incident commander.

§ 39-7103. Definitions.

As used in this chapter:

1. “Emergency” means a release or threat of release that, in the reasonable judgment of the local emergency response authority in consultation with the office, threatens immediate harm to the environment or the health and safety of any individual and that requires immediate action for the containment or control of a hazardous or potentially hazardous substance to prevent, minimize or mitigate harm to the public health, safety or the environment which may result if action is not taken.
2. “Hazardous substance incident” means an emergency circumstance requiring a response by the state emergency response team or the local emergency response authority to monitor, assess and evaluate a release or threat of a release of a hazardous or potentially hazardous substance. A hazardous substance incident may require containment or confinement or both, but does not include site cleanup or remediation efforts after the incident commander has determined the emergency has ended.
3. “Hazardous substance” means:
   1. Any “hazardous substance” within the scope of section 101(14) of the federal comprehensive environmental response, compensation and liability act (CERCLA), 42 U.S.C. 9601(14);
   2. Any hazardous substance within the scope of section 104 of the federal hazardous materials transportation act, 49 U.S.C. 1803, and the federal department of transportation regulations promulgated pursuant thereto;
   3. Any extremely hazardous substance within the scope of section 302 of the federal emergency planning and community right-to-know act, 42 U.S.C. 11002; and
   4. Any explosive or weapon of mass destruction utilized or threatened to be utilized in an act of terrorism, crime or other threat to public safety.
4. “Incident commander” is the person in charge of all responders to a hazardous substance incident and who is identified in the Idaho hazardous materials emergency incident command and response plan or the private emergency response plan.
5. “Local emergency response authority” means those persons designated under section 39-7105, Idaho Code, by the city, county, or the military division to be first responders to hazardous substance incidents.
6. “Military division” means the military division of the office of the governor.
7. “Office” means the Idaho office of emergency management within the military division.
8. “Person” means any individual, public or private corporation, partnership, joint venture, association, firm, trust, estate, the United States or any department, institution, or agency thereof, the state or any department, institution, or agency thereof, any municipal corporation, county, city, or other political subdivision of the state, or any other legal entity whatsoever which is recognized by law as the subject of rights and duties.
9. “Potentially hazardous substance” means any substance which in the reasonable judgment of the local emergency response authority in consultation with the office is likely a hazardous substance.
10. “Private emergency response plan” means a plan designed to respond to emergency releases of hazardous or potentially hazardous substances at a specific facility or under a specific set of conditions. (11) “Release” means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, escaping, dumping or disposing of a hazardous or potentially hazardous substance, or the threat of the same, into the environment. “Release” does not include any discharge of a hazardous substance into the environment which is authorized by limits and conditions in a federal or state permit relating to the protection of public health or the environment so long as the permitted activity from which the release occurs is in compliance with applicable limits and conditions of the permit.

(12) “State emergency response team” means one (1) of the state emergency response teams authorized by the military division to respond to hazardous substance incidents.

(13) “Threat of release” means the release of a hazardous or potentially hazardous substance is likely.

§ 39-7104. Military division — Powers and duties.

1. The military division through the Idaho office of emergency management shall implement the provisions of this chapter and direct the activities of its staff and, in so doing, the military division may:
   1. Through the office, in accordance with the laws of the state, hire, fix the compensation, and prescribe the powers and duties of such other individuals, including consultants, emergency teams and committees, as may be necessary to carry out the provisions of this chapter.
   2. Create and implement state emergency response teams that have appropriately trained personnel and necessary equipment to respond to hazardous substance incidents. The military division shall enter into a written agreement with each entity or person providing equipment or services to a designated emergency response team. The teams shall be available and may respond to hazardous substance incidents at the direction of the military division or its designee or local incident commander.
   3. Contract with persons to meet state emergency response needs for the teams and response authorities.
   4. Advise, consult and cooperate with agencies of the state and federal government, other states and their state agencies, cities, counties, tribal governments and other persons concerned with emergency response and matters relating to and arising out of hazardous substance incidents.
   5. Encourage, participate in, or conduct studies, investigations, training, research, and demonstrations for and with state emergency response teams, local emergency response authorities and other interested persons.
   6. Collect and disseminate information relating to emergency response to hazardous substance incidents.
   7. Accept and administer loans, grants, or other funds or gifts, conditional or otherwise, made to the state for emergency response activities provided for in this chapter.
   8. Submit an annual report prior to February 1 to the governor and to the legislature concerning emergency response to hazardous substance incidents.
   9. Prepare, coordinate, implement and update a statewide hazardous materials incident command and response plan that coordinates state and local emergency response authorities to respond to hazardous substance incidents within the state for approval by the legislature. The plan shall address radiation, explosive and weapons of mass destruction incidents. The Idaho hazardous materials incident command and response plan shall be consistent with and a part of the Idaho state disaster plan provided in section 46-1006, Idaho Code, after legislative approval.
2. The military division shall have the powers and duties of a state emergency response commission under the federal emergency planning and community right-to-know act, 42 U.S.C. section 11001 et seq.
3. The military division may promulgate rules and procedures to govern reimbursement of claims pursuant to this chapter.
4. All state agencies and institutions will cooperate and provide staff assistance to the military division in carrying out its duties under this chapter.

§ 39-7105. Local emergency response authorities — Designation.

1. It is the purpose of the provisions of this section to provide for the designation of local emergency response authorities for hazardous substance incidents.
2. Cities and counties shall designate the local emergency response authorities for hazardous substance incidents that occur within their respective jurisdictions. Cities and counties are encouraged to appoint a response authority whose members will become trained in hazardous substance incident response.
   1. The governing body of every city shall designate by ordinance or resolution a local emergency response authority for hazardous substance incidents occurring within the corporate limits of such city. A city may designate the county as its emergency response authority and participate in the county plan for hazardous substance incident response, and shall notify the county of that designation in writing.
   2. The board of county commissioners of every county in the state shall designate by ordinance or resolution a local emergency response authority for hazardous substance incidents occurring within the unincorporated area of such county.
   3. The governing body of every city and every board of county commissioners shall notify the military division and Idaho emergency medical services communications center of its designated local emergency response authority. Such notification shall be in writing and shall occur as soon as practicable, and, in any event, no later than sixty (60) calendar days after this chapter becomes effective. Thereafter, any changes in such designations shall be communicated to the military division and Idaho emergency medical services communications center no later than ten (10) working days before such change becomes effective.
   4. If no local emergency response authority having the ability to respond to a hazardous substance incident exists within a city or county or if such a political subdivision is unable to obtain the services of an emergency response authority by way of a mutual aid agreement, contract or otherwise, such city or county may petition the military division to designate an emergency response authority to respond to hazardous substance incidents within the petitioning political subdivision’s jurisdiction. The military division, in consultation with such political subdivision, may thereafter designate appropriate local emergency response authorities.
3. If a hazardous substance incident occurs in an area in which no local emergency response authority has been designated, or if the Idaho state police has been designated as the local emergency response authority, the Idaho state police shall be the local emergency response authority for such hazardous substance incident for the purposes of this section.

§ 39-7106. Local emergency response authorities — Powers and duties.

1. Every local emergency response authority designated in or pursuant to this chapter will respond to a hazardous substance incident occurring within its jurisdiction in a fashion consistent with the Idaho hazardous materials emergency incident command and response plan except as provided in a private emergency response plan. The local emergency response authority will also respond to a hazardous substance incident which initially occurs within its jurisdiction but which spreads to another jurisdiction. If a hazardous substance incident occurs on a boundary between two (2) jurisdictions or in an area where the jurisdiction is not readily ascertainable, the first local emergency response authority to arrive at the scene of the incident will perform the initial emergency response.
2. The incident commander shall declare the hazardous substance incident ended when the threat to public health and safety has ended and the threat to the environment has been minimized.
3. Mutual aid agreements or contracts are encouraged among governmental entities, private parties, local emergency response authorities and the military division in order to safely respond to hazardous substance incidents. Further, mutual aid agreements are encouraged among governmental entities, local emergency response authorities and the military division with other similar entities in other states and Canada in order to ensure appropriate response to hazardous substance incidents.
4. Any local emergency response authority designated in or pursuant to the provisions of section 39-7105, Idaho Code, may request the military division to provide assistance consistent with the Idaho hazardous materials emergency incident command and response plan.

§ 39-7107. State disaster preparedness act controls disaster emergencies, except for the liability of responsible persons.

In the event a disaster emergency or local disaster emergency is declared by proper authority as defined and set forth in chapter 10, title 46, Idaho Code, as a result of a hazardous substance incident, the provisions of chapter 10, title 46, Idaho Code, shall govern, except that the provisions of section 39-7109, Idaho Code, shall govern reimbursement of emergency response costs and the provisions of sections 39-7111 and 39-7112, Idaho Code, shall govern the liability of and cost recovery against persons responsible for hazardous substance incidents resulting in disaster emergencies in any case.

§ 39-7108. Notification of release is required.

1. Any person who has responsibility for reporting a release under the federal comprehensive environmental response, compensation and liability act (CERCLA), 42 U.S.C. 9603, shall, as soon as practicable after he has knowledge of any such reportable release other than a permitted release or as exempted in section 39-7108(3), Idaho Code, notify the military division of such release.
2. Any person who has responsibility for reporting a release under the federal emergency planning and community right-to-know act, 42 U.S.C. 11001 et seq., shall as soon as practicable after he has knowledge of any such reportable release other than a permitted release notify the military division of such release.
3. Any facility having a release reportable under section 39-7108(1), Idaho Code, shall not be required to report the release to the military division if the following circumstances are met:
   1. Such release is not reportable under subsection (2) of section 39-7108, Idaho Code.
   2. The facility has an approved private emergency response plan that details how such spills shall be responded to and reported.
4. The military division shall immediately notify the department of environmental quality of any release reported to the military division. Such reporting to the military division shall fulfill all state reporting requirements for the department of environmental quality.
5. Any person who does not notify the military division in accordance with the provisions of section 39-7108, Idaho Code, shall be liable for a civil penalty of a sum not to exceed one thousand dollars ($1,000) for each day the violation continues to a maximum of twenty-five thousand dollars ($25,000).
6. No penalty pursuant to this section shall occur if an incident occurs on private property and results in no offsite environmental damage.

This provision does not relieve the facility from any reporting required under other federal statutory, regulatory or other permit authorities.

§ 39-7109. Right to claim reimbursement.

1. State emergency response teams and local emergency response authorities may submit claims to the military division for reimbursement of the following documented costs incurred as a result of their response to a hazardous substance incident:
   1. Disposable materials and supplies acquired, consumed and expended specifically for the purpose of the response;
   2. Compensation of employees for the time and efforts devoted specifically to the response that are not otherwise provided for in the applicant’s operating budget, (e.g., overtime pay for permanent full-time and other than full-time employees, recalled personnel or responding when out of jurisdiction);
   3. Rental or leasing of equipment used specifically for the response (e.g., protective equipment or clothing, scientific and technical equipment);
   4. Replacement costs for equipment owned by the applicant that is contaminated beyond reuse or repair, if the applicant can demonstrate that the equipment was a total loss and that the loss occurred as a result of the response (e.g., self-contained breathing apparatus irretrievably contaminated during the response);
   5. Decontamination of equipment contaminated during the response;
   6. Special technical services specifically required for the response (e.g., costs associated with the time and efforts of local and state personnel to recover the costs of response and of technical experts/specialists not otherwise provided for by the local government);
   7. Medical monitoring or treatment of response personnel;
   8. Laboratory costs for purposes of analyzing samples taken during the response; and
   9. Disposal costs. Such costs may be reimbursed as provided in this chapter.
2. A private person, who is not a part of the state emergency response team or a local emergency response authority and is not liable under section 39-7111, Idaho Code, may submit a claim to the military division for costs identified in section 39-7109, Idaho Code, if their response was requested by the incident commander.
3. Claims for reimbursement shall be submitted to the military division within sixty (60) days after termination of the hazardous substance incident for the state’s determination of payment, if any.
4. Reimbursements shall only be paid after the military division finds that the actions by the state emergency response team or the local emergency response authority were taken in response to a hazardous substance incident as defined in this chapter.
5. The state of Idaho shall be subrogated to the rights of any such person so reimbursed to the extent of such reimbursement.

Reimbursement for the costs identified in paragraphs (a) through (c) of this subsection will not exceed the duration of the response.

§ 39-7110. Deficiency warrants for reimbursement of response costs.

1. The military division shall review all claims for reimbursement and make recommendations as to payment or nonpayment of the claims to the board of examiners within one hundred twenty (120) days after termination of the hazardous substance incident. The board of examiners may authorize the issuance of deficiency warrants for the purpose of reimbursing reasonable and documented costs associated with emergency response actions taken pursuant to this chapter. The costs associated with routine firefighting procedures shall not be reimbursable costs under this chapter.
2. Deficiency warrants authorized by the board of examiners shall not exceed the sum of one hundred thousand dollars ($100,000) for reimbursement of all claims made as a result of a single hazardous substance incident. In the event all claims for reimbursement for a single hazardous substance incident exceed the sum of one hundred thousand dollars ($100,000), the board of examiners shall determine an appropriate and equitable basis of payment of reimbursements.
3. Upon authorization of deficiency warrants by the board of examiners in accordance with the provisions of this section, the state controller shall draw deficiency warrants in the authorized amounts against the general fund.
4. Nothing contained in this section shall be construed to change or impair any right of recovery or subrogation arising under any other provisions of law.

§ 39-7111. Liability for release of a hazardous substance.

1. Any person who owns, controls, transports, or causes the release or threat of release of a substance which is involved in a hazardous substance incident shall be strictly liable for the costs arising out of a hazardous substance incident, identified in section 39-7112, Idaho Code. There shall be no liability under this chapter for a person otherwise liable who can establish by a preponderance of the evidence that:
   1. The hazardous substance incident was caused solely by:
      1. An act of God;
      2. An act of war;
      3. An act or omission of a third party, other than an employee or agent of the potentially liable person if:
         1. The potentially liable person exercised reasonable care with respect to the substance involved, taking into consideration the characteristics of the substance in light of all relevant facts and circumstances; and
         2. The potentially liable person took precautions against foreseeable acts or omissions of any such third party and the consequences that could foreseeably result from such acts or omissions; or
      4. Application of a pesticide product or fertilizer registered under the federal insecticide, fungicide, and rodenticide act, 7 U.S.C. section 136, et seq., according to label requirements; or
   2. The substance was not a hazardous substance and the person otherwise liable acted reasonably under the circumstances.

§ 39-7112. Cost recovery and civil remedies.

1. The military division shall be responsible for recovering those costs incurred by the state arising out of a hazardous substance incident identified in section 39-7109, Idaho Code, and other costs including processing the documented costs submitted by response agencies, attorney’s fees, investigation costs, prelitigation and litigation costs.
2. In deciding whether to commence a cost recovery action, and against whom a cost recovery action will be filed, the military division in exercising its prosecutorial discretion will take into consideration the cause of the incident, the total amount of cost incurred in responding to the incident, the avoidability of the incident and such other factors as the military division deems appropriate.
3. The remedy for the recovery of those emergency response costs identified in section 39-7109, Idaho Code, provided by this chapter shall be exclusive and shall not be used in conjunction with or in addition to any other remedy for recovery of such costs provided by applicable federal laws. Any person who receives compensation for the emergency response costs pursuant to any other federal or state law shall be precluded from recovering compensation for such costs pursuant to this chapter. Nothing in this chapter shall otherwise affect or modify in any way the obligations or liability of any person under any other provision of state or federal law, including common law, for damages, injury or loss resulting from the release of any hazardous substance or potentially hazardous substance or for remedial action or the cost of remedial action for such release.
4. It shall be the duty of the attorney general to commence any civil action brought by the military division pursuant to this chapter. At the request of a political subdivision of the state or a local governmental entity who has responded to or contained a hazardous substance incident, the attorney general may commence a civil action on their behalf pursuant to this chapter.
5. Any person who renders assistance at the request of the incident commander or his authorized designee in response to a hazardous substance incident may file a civil action under the provisions of this chapter for recoverable costs which have not been reimbursed by the state.
6. There is hereby created in the state treasury the hazardous substance emergency response fund. Recoveries by the state for reimbursed costs shall be deposited in said fund to offset amounts paid as reimbursement.

§ 39-7113. Persons rendering assistance relating to hazardous substance incidents — Good samaritan limited immunity.

1. Consistent with the provisions of subsections (2) and (3) of this section:
   1. The state shall be liable for the acts or omissions of the state emergency response teams responding to a hazardous substance incident.
   2. The designating or requesting city or county shall be liable for the acts or omissions of a local emergency response authority responding to a hazardous substance incident within its jurisdiction.
2. Notwithstanding any provision of law to the contrary, any state emergency response team, local emergency response authority or other person who responds to a hazardous substance incident at the request of an incident commander shall not be subject to civil liability for assistance or advice, except as provided in subsection (3) of this section.
3. The exemption from civil liability provided in this section shall not apply to:
   1. An act or omission that caused in whole or in part such hazardous substance incident or a person who may otherwise be liable therefor; or
   2. Any person who has acted in a grossly negligent, reckless, or intentional manner.
4. Nothing in this section shall be construed to abrogate or limit the immunity granted to governmental entities pursuant to chapter 9, title 6, Idaho Code.

§ 39-7114. Private emergency response plan approval.

Private emergency response plans may be prepared for any facility or specific set of conditions. A private emergency response plan must be approved by the local emergency response authority or the military division unless the plan:

1. Is a contingency plan that has been approved in the issuance of a final part B operating permit, in accordance with section 39-4401, Idaho Code, by the Idaho department of environmental quality;
2. Is a contingency plan prepared in accordance with the requirements of rules promulgated pursuant to section 39-4401, Idaho Code, by the Idaho department of environmental quality;
3. Has otherwise been approved by the military division or department of environmental quality. Private emergency response plans must be submitted, for file purposes, to the local emergency response authorities and the military division to qualify as a private emergency response plan under this section.

§ 39-7114A. Civil air patrol.

1. There is hereby established within the military division and the Idaho office of emergency management the Idaho directorate of civil air patrol. The mission of the directorate shall be to provide support for and facilitate the operation of the civil air patrol, Idaho wing, which shall be under the command and control of the duly appointed commanding officer of such wing.
2. In consideration for services rendered to the state of Idaho by the directorate of civil air patrol, Idaho wing, the military division shall provide in-kind services to the directorate in the form of land use, hangar facilities, mess and billeting facilities, office space and other entities when deemed necessary and when such facilities are available.

§ 39-7115. Severability.

The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of remaining portions of this act.

§ 39-7201. Short title.

This chapter may be known and cited as the “Idaho Land Remediation Act.”

§ 39-7202. Legislative findings.

The legislature hereby finds and declares:

1. That it is the policy of the state of Idaho to provide for the protection of the public health, welfare, safety, and environment; and to foster the remediation, transfer, reuse, or redevelopment of sites or groups of sites based on the risk to human health and the environment where releases or threatened release of hazardous substances or petroleum exists. The minimization of risk to public health and the environment on a commercial and industrial site offers significant potential economic benefit to local communities and is vital to their use and reuse as sources of employment, housing, recreation and open-space areas.
2. That establishing a voluntary program for the remediation of hazardous substance or petroleum contaminated sites will encourage innovation and cooperation between the state, local communities, and interested persons and will promote the economic revitalization of property. It is intended that this program will provide for an expedited remediation process by eliminating the need for many adversarial enforcement actions and delays in remediation plan approvals.
3. That providing financial assistance to eligible property owners who conduct voluntary cleanups will promote the economic revitalization of property, particularly in rural communities, and will reduce or eliminate the need for many adversarial enforcement actions and delays in remediation plan approvals.

§ 39-7203. General definitions.

As used in this chapter:

1. “Board” means the board of environmental quality.
2. “Department” means the department of environmental quality.
3. “Eligible property owner” means any individual, association, partnership, firm, joint stock company, trust, estate, private corporation, or any other nonpublic entity that is the current owner of a contaminated property, but that did not cause, contribute, or consent to the release that led to the contamination or own the property at the time of the release that led to the contamination. An eligible property owner shall not include any individual, association, partnership, firm, joint stock company, trust, estate, private corporation, or any other nonpublic entity that is:
   1. Affiliated with any individual or entity that caused, contributed, or consented to the release that led to the contamination, or owned the property at the time of the release that led to the contamination, whether directly or through a direct or indirect familial relationship, or any contractual, corporate, or financial relationship, excluding such relationships created by a contract for the sale of the property at issue; or
   2. The owner as a result of a reorganization of an entity that caused, contributed, or consented to the release that led to the contamination, or that owned the property at the time of the release that led to the contamination.
4. “Hazardous substance” has the meaning set forth in section 101(14) of the comprehensive environmental, response, compensation and liability act (CERCLA), 42 U.S.C. 9601 (14) as amended.
5. “Person” means any individual, association, partnership, firm, joint stock company, trust, estate, political subdivision, public or private corporation, state or federal governmental department, agency or instrumentality, or any other legal entity which is recognized by law as the subject of rights and duties.
6. “Petroleum” includes petroleum asphalt and crude oil or any part of petroleum asphalt or crude oil that is liquid at standard conditions of temperature and pressure (sixty (60) degrees Fahrenheit and fourteen and seven-tenths (14.7) pounds per square inch absolute).
7. “Qualifying remediation costs” means reasonable costs incurred performing remediation activities integral to achieving the cleanup goals identified in a remediation work plan approved by the department.
8. “Release” means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment, including the abandonment or discarding of barrels, containers, or other closed receptacles containing any hazardous substance or petroleum.
9. “Remediation” means any of the following:
   1. Actions necessary to prevent, minimize, or mitigate damages to the public health or welfare or to the environment, which may otherwise result from a release or threat of a release; or
   2. Actions consistent with a permanent remedy taken instead of, or in addition to, removal actions in the event of a release or threatened release of a hazardous substance or petroleum into the environment to eliminate the release of hazardous substances or petroleum so that the hazardous substances or petroleum do not migrate to cause substantial danger to present or future public health or welfare or the environment; or (c) The cleanup or removal of released hazardous substances or petroleum from the environment.
10. “Site” means a parcel of real estate for which an application has been submitted under section 39-7204, Idaho Code.
11. “Technical professional” means a professional geologist or professional engineer registered in the state of Idaho.

§ 39-7204. Participation.

1. To participate in the remediation program a person must submit an application to the department as described under subsection (2) of this section.
2. An application submitted under this section must meet the following conditions:
   1. Contain the following general information concerning:
      1. the person,
      2. the site, and
      3. other background information as requested by the department;
   2. An environmental assessment that conforms to ASTM Standard Practice E 1527, as amended, or equivalent.
3. Not more than thirty (30) days after receiving an application under subsection (2) of this section, the department shall determine if the person is eligible to participate in the remediation program under this chapter.
4. The department may reject an application submitted under subsection (2) of this section for any of the following reasons:
   1. Remediation is required pursuant to sections 39-101 through 39-129, sections 39-4401 through 39-4432, or sections 39-7401 through 39-7420, Idaho Code, or rules promulgated thereunder, or other applicable statutory or common law; or
   2. The condition of the hazardous substance or petroleum described in the application constitutes an imminent and substantial threat to human health or the environment; or
   3. The application is not complete.
5. If the application is rejected under subsection (4)(c) of this section, the department shall provide the person with a list of all information needed to make the application complete. If the department fails to comply with this subsection, the application shall be considered completed for the purposes of this chapter.
6. If the department rejects an application, the department shall do the following:
   1. Notify the person that the department rejected the application;
   2. Explain the reason the department rejected the application.

§ 39-7205. Work plans.

1. If the department determines an application is eligible under this chapter, the person may submit a proposed voluntary remediation work plan to the department. Before the department evaluates a proposed voluntary remediation work plan, the person who submitted the work plan and the department must enter into a voluntary remediation agreement that sets forth the terms and conditions of the evaluation and the implementation of the work plan.
   1. A voluntary remediation agreement must include the following:
      1. An estimation of costs the department may incur under this chapter;
      2. A payment schedule of all reasonable costs estimated to be incurred by the department in the review and oversight of the work plan;
      3. A provision for the department’s oversight including access to site and pertinent site records;
      4. A timetable for the department to do the following:
         1. Reasonably review and evaluate the adequacy of the work plan; or
         2. Make a determination concerning the approval or rejection of the work plan;
      5. A provision to modify the voluntary remediation agreement and voluntary remediation work plan based upon unanticipated site conditions;
      6. Any other conditions considered necessary by the department or the person concerning the effective and efficient implementation of this chapter.
      7. request a public hearing concerning the proposed voluntary remediation work plan.
   2. A proposed voluntary remediation work plan must include a proposed statement of work and schedule to accomplish the remediation in accordance with rules established by the board. Any institutional control proposed as part of a work plan that requires activity and/or use limitations shall comply with the uniform environmental covenants act, chapter 30, title 55, Idaho Code.
2. If a voluntary remediation agreement is not reached between a person and the department within a reasonable time after good faith negotiations have begun, the person or the department may withdraw from the negotiations.

§ 39-7206. Evaluation and review responsibilities.

1. Pursuant to the signed voluntary remediation agreement, the department or a person under contract with the department shall do the following:
   1. Review and evaluate the site and the affected area surrounding the site;
   2. Review and evaluate the proposed voluntary remediation work plan for protection of public health and the environment based on rules promulgated by the board.
2. At any time during the evaluation of a proposed voluntary remediation work plan, the department may request that a person submit additional or corrected information to the department. A person may:
   1. Comply with the request; or
   2. Withdraw the person’s proposed voluntary remediation work plan from consideration and terminate the voluntary remediation agreement.
3. Before the department approves a proposed voluntary remediation work plan under this section, the department must:
   1. Notify local government units located in a county affected by the proposed voluntary remediation work plan of the work plan; and,
   2. Provide that a copy of the proposed voluntary remediation work plan and a copy of the voluntary remediation agreement be placed in at least one (1) public library in a county affected by the work plan; and,
   3. Notify by reasonable public notice potentially affected persons to request comments concerning the proposed voluntary remediation work plan; and,
   4. Provide a comment period of at least thirty (30) days following publication of a notice under this section. During the comment period, interested potentially affected persons may do the following:
   5. submit written comments to the department concerning the proposed voluntary remediation work plan,
4. If the department receives a significant number of written requests from potentially affected persons, the department may hold a public hearing in the geographical area affected by the proposed voluntary remediation work plan on the question of whether to modify, approve or reject the work plan. All written comments and public testimony shall be considered by the department.
5. The department shall:
   1. Approve;
   2. Modify and approve; or
   3. Reject the proposed voluntary remediation work plan.
6. If the department rejects a proposed voluntary remediation work plan under this section:
   1. The department shall notify the person and specify the reasons for rejecting the work plan; and
   2. The person may appeal the department’s decision under chapter 52, title 67, Idaho Code.
7. If the department approves, or modifies and approves, a proposed voluntary remediation work plan under this section, the department shall: (a) Notify the person in writing, under the applicable provisions set forth in this chapter, that the voluntary remediation work plan has been approved, or modified and approved;

(b) Incorporate the approved voluntary remediation work plan into the voluntary remediation agreement.

§ 39-7207. Covenant not to sue.

1. If the department determines that a person has successfully completed a voluntary remediation work plan approved under this chapter, the department shall certify that the work plan has been successfully implemented or satisfied by issuing the person a certificate of completion. The issuance of a certificate of completion under this section is a final agency action for purposes of this chapter.
2. A person who receives a certificate of completion under this section shall record a copy of the certificate of completion with the deed for the site on which the remediation took place.
3. If the department determines that the person has not successfully implemented a voluntary remediation work plan approved under this chapter, the department shall notify the person of this determination under this chapter.
4. If the department issues a certificate of completion to a person under this chapter, the department, upon request, shall also negotiate and provide the person a covenant not to sue for any claim for environmental remediation under state law resulting from or based upon the release or threatened release of a hazardous substance or petroleum that is the subject of the approved voluntary remediation work plan successfully implemented under this chapter. The covenant not to sue shall extend to any current or future owner or operator of the site or portion thereof who did not cause, aggravate, or contribute to the release or threatened release.
5. A covenant not to sue issued under this section shall not apply to claims for a condition or the extent of a condition that:
   1. Was present on the site involved in an approved and implemented voluntary remediation work plan; and
   2. Was not known to the department at the time the department issued the certificate of completion under this chapter.
6. Except as provided under federal law or agreed to by a federal governmental entity, a covenant not to sue issued under this section shall not release a person from liability to the federal government for claims based on federal law.
7. During the implementation of an approved voluntary remediation work plan, the department shall not bring an action, including an administrative or judicial action for any liability for remediation relating to the release or threatened release of a hazardous substance or petroleum that is the subject of the voluntary remediation work plan, against a person who entered into a voluntary remediation agreement and who is implementing the voluntary remediation work plan in accordance with such agreement implementing the voluntary remediation work plan.

§ 39-7208. Recision.

1. This chapter does not prohibit or limit the department’s recision of the voluntary remediation agreement or the covenant not to sue at any time if:
   1. The person implementing the work plan fails substantially to comply with the terms and conditions of:
      1. a voluntary remediation agreement, or
      2. covenant not to sue;
   2. A hazardous substance or petroleum release becomes an imminent and substantial threat to human health or the environment.
2. The department shall also notify the county in which the said site exists of recision of the covenant not to sue for the purposes of determining property exemptions provided under section 63-602BB, Idaho Code.

§ 39-7209. Lender liability.

Pursuant to rules adopted by the board, a person who maintains indicia of ownership primarily to protect a security interest in a site, and who does not participate in the management of the site, shall not be considered an owner or operator of that site, nor liable under any pollution control or other environmental protection law, rule or regulation, or otherwise responsible for any environmental contamination or response activity costs consistent with United States environmental protection agency policy, 60 Federal Register 63517, dated December 11, 1995, as amended. This section shall apply to all indicia of ownership existing at the time of passage of this chapter and those arising thereafter.

§ 39-7210. Rules.

Within one (1) year after the effective date of this section, the board shall, through negotiated rulemaking, adopt rules to carry out the purposes of this provision consistent with federal and state law which shall provide for the following:

1. The establishment of methodologies to determine site-specific risk-based remediation standards, which shall be no more stringent than applicable or appropriate relevant federal and state standards and are consistent with 42 U.S.C. 9621, taking into consideration scientific information regarding the following:
   1. protection of public health and the environment,
   2. the future industrial, commercial, residential, or other use of the site to be remediated and of surrounding properties,
   3. the availability of institutional or engineering controls that are protective of public health and the environment, including deed restrictions, and
   4. natural background levels for hazardous constituents;
2. The establishment of administrative procedures that minimize delay and expense of the remediation, processing submissions and overseeing remediation;
3. The issuance of certificates of completion once the voluntary remediation work plans is [are] implemented;
4. Consistent with applicable local, state and federal law, guidelines to assist in the issuance of any permits required to initiate and complete a voluntary remediation work plan;
5. Collection and payment of fees to defray the actual reasonable costs of the voluntary remediation program.[;]
6. Lender liability consistent with United States environmental protection agency policy, 60 Federal Register 63517, dated December 11, 1995, as amended.

§ 39-7211. Idaho community reinvestment pilot initiative. [For contingent repeal, see Compiler’s note.]

1. There is hereby established in the state treasury a fund to be known as the Idaho community reinvestment pilot initiative fund which shall consist of moneys appropriated to the fund, donations, gifts and grants from any source and any other moneys which may hereafter be provided by law. The state treasurer shall be the custodian of the fund and shall invest said moneys in accordance with law. Any interest earned on the moneys in the fund shall be deposited in the fund. Moneys in the fund shall be disbursed in accordance with the directions of the director of the department of environmental quality. All moneys in the fund are perpetually appropriated to the director for expenditure in accordance with the provisions of this section.
2. The state of Idaho hereby authorizes financial assistance to eligible property owners conducting voluntary cleanup actions pursuant to this chapter. The financial assistance authorized by this section shall not exceed one hundred fifty thousand dollars ($150,000) per project and shall be limited to, subject to the one hundred fifty thousand dollars ($150,000) maximum, seventy-percent (70%) of a project’s qualifying remediation costs certified by the department pursuant to this section.
3. Pursuant to general fund appropriation, the maximum overall financial assistance authorized by this section is one million five hundred thousand dollars ($1,500,000) in qualified remediation cost expenditures. A maximum of ten (10) projects may participate in the initiative.
4. The department shall establish an annual priority list for community revitalization projects. The priority list shall be used as the method for allocating funds under this initiative.
   1. On an annual basis, the department shall establish, at a minimum, a continuous three (3) month calendar period in which eligible property owners may submit a written request, on a standard form developed by the department, to participate.
   2. On an annual basis, the department shall develop a priority list based on a weighted numerical points system established by the department. The rating system shall consider the following criteria wherein the department shall weigh each succeeding criteria less heavily than the preceding criteria:
      1. Whether the project is located in a city with a population of under twenty thousand (20,000) residents;
      2. The level of social and economic benefit expected from the proposed reuse plan;
      3. Whether contamination is preventing or complicating redevelopment;
      4. Whether a reuse plan meets local planning and reuse goals, is compatible with long-term plans, and is ready to proceed;
      5. The level of human health risks the cleanup will remedy;
      6. Current property conditions, including building safety concerns, vacancy rates and the level of negative visual impact the property has on the community.
   3. The department shall maintain annual priority lists of the twenty-five (25) highest priority projects.
   4. After finalizing the priority list, the department shall contact, in writing, the eligible property owners that submitted the ten (10) highest ranked priority projects and will set a target date for the eligible property owners to enter into a voluntary remediation agreement as described in subsection (1) of section 39-7205, Idaho Code.
   5. The department may bypass a project, and submit in its place the next highest priority project on the project list, for any of the following reasons:
      1. The eligible property owner fails to enter into a voluntary remediation agreement by the target date established by the department;
      2. The eligible property owner, in writing, withdraws its request to participate; or
      3. The voluntary remediation agreement is terminated or rescinded by the department prior to commencement of remediation as described in the voluntary remediation agreement approved by the department.
5. Eligible property owners may request a community investment rebate by submitting documentation and certifications enumerated in paragraphs (a) through (c) of this subsection to the department. Eligible property owners shall submit this information no more than sixty (60) days after the department issues a certificate of completion for the project. Eligible property owners must receive a written certificate of completion from the department before the department may certify qualifying remediation costs or provide a community reinvestment rebate. Information to be submitted includes:
   1. Copies of contracts and documentation of contract negotiations, accounts, invoices, sales tickets, or other payment records from purchases, sales, leases, or other transactions involving actual costs incurred completing remediation activities in accordance with the work plan approved by the department;
   2. Notarized documentation completed and signed by the participant certifying that all information contained in the application, including all records of claims, costs incurred, and costs paid, are true and correct and constitute qualifying remediation costs;
   3. Notarized documentation completed and signed by a technical professional certifying that a technical professional oversaw all remediation work plan activities and that all costs associated with documents submitted pursuant to this subsection constitute qualifying remediation costs.
6. Community reinvestment rebate requests shall be reviewed and certified as follows:
   1. The department shall review each community reinvestment rebate request and determine whether the request is complete. If the department determines the request is incomplete, the department shall return the request, with the deficiencies indicated, to the eligible property owner by certified mail;
   2. Once a community reinvestment rebate request is deemed complete, the department shall review the request and determine the project’s qualifying remediation costs. The department shall then issue a certification of the qualifying remediation costs for all those costs found to be reasonable by the department;
   3. The department shall issue the eligible property owner a community reinvestment rebate in the amount it certified as qualified remediation costs no more than thirty (30) days after department certification;
   4. Any eligible property owner or technical professional determined in a civil enforcement action to have submitted a false statement, representation or certification in any application, record, report, plan or other document submitted to the department, shall reimburse the state of Idaho for moneys wrongfully rebated and shall be liable for civil penalties and expenses incurred by the department in accordance with chapter 1, title 39, Idaho Code. (7) Eligible property owners that receive a community investment rebate are not eligible to receive the property tax exemption established under section 63-602BB, Idaho Code.

The department shall notify the bypassed eligible property owner of the reason or reasons for the bypass.

Chapter 74 IDAHO SOLID WASTE FACILITIES ACT

Sec.