§ 39-101. Short title.

Sections 39-101 through 39-130, Idaho Code, may be known and cited as the “Idaho Environmental Protection and Health Act.”

§ 39-102. State policy on environmental protection.

1. It is hereby recognized by the legislature that the protection of the environment and the promotion of personal health are vital concerns and are therefore of great importance to the future welfare of this state. It is therefore declared to be the policy of the state to provide for the protection of the environment and the promotion of personal health and to thereby protect and promote the health, safety and general welfare of the people of this state.
2. The goal of the legislature in enacting the ground water quality protection act of 1989 shall be to maintain the existing high quality of the state’s ground water and to satisfy existing and projected future beneficial uses including drinking water, agricultural, industrial and aquacultural water supplies. All ground water shall be protected as a valuable public resource against unreasonable contamination or deterioration. The quality of degraded ground water shall be restored where feasible and appropriate to support identified beneficial uses.
3. In enacting this law, the legislature intends to prevent contamination of ground water from point and nonpoint sources of contamination to the maximum extent practical. In attaining the goals enumerated in subsections (1) and (2) of this section, the legislature wishes to enumerate the following ground water quality protection goals:
   1. It is the policy of the state to prevent contamination of ground water from any source to the maximum extent practical.
   2. The discovery of any contamination that poses a threat to existing or projected future beneficial uses of ground water shall require appropriate actions to prevent further contamination. These actions may consist of investigation and evaluation or enforcement actions if necessary to stop further contamination or clean up existing contamination as required under the environmental protection and health act.
   3. All persons in the state should conduct their activities so as to prevent the nonregulated release of contaminants into ground water.
   4. Education of the citizens of the state is necessary to preserve and restore ground water quality.
4. It is the policy of the state to protect ground water and to allow for the extraction of minerals above and within ground water. A mine operator shall protect current and projected future beneficial uses of ground water at a point of compliance designated pursuant to rules of the department. Degradation of ground water is allowed at a point of compliance if the mine operator implements the level of protection during mining activities appropriate for the aquifer category.

§ 39-102A. Legislative intent in creating department of environmental quality.

The legislature finds and declares that:

1. The creation and establishment of the department of environmental quality to protect human health and the environment as its sole mission is in the public’s interest;
2. That all existing, but no new rights, powers, duties, budgets, funds, contracts, rulemaking proceedings, administrative proceedings, contested cases, civil actions, and other matters relating to environmental protection as described in this chapter, vested in the director of the department of health and welfare and the board of health and welfare on January 1, 2000, shall be transferred to the board of environmental quality, the department of environmental quality and its director as described herein effective July 1, 2000;
3. That protecting environmental values including, but not limited to, clean air, water and soil, reducing or eliminating environmental pollution arising from human activities, ensuring the proper treatment, storage and disposal of hazardous wastes and ensuring the proper cleanup and restoration of existing natural resources are vital interests of the state of Idaho;
4. That it is in the interest of the state and its citizens to establish a department of environmental quality to carry out programs to protect human health and the environment, to enforce environmental laws and develop pollution prevention, compliance assistance and other environmental incentive programs;
5. That the goals to protect human health and the environment can be best achieved by vesting responsibility for environmental protection as specified herein in a state department which has as its sole mission, protection for human health and the environment for the state of Idaho and its residents;
6. The legislature further intends that environmental quality programs be promulgated and managed such that the benefits of pollution control measures have a reasonable relationship to the public health costs, private property rights, environmental, economic and energy impacts of such measures, provided that this section does not require the preparation of any economic, environmental or other statement;
7. That the department of environmental quality shall utilize the designated program appropriations made to the department of health and welfare for environmental program functions, the division of environmental quality and the INEEL oversight program for fiscal year 2001.

§ 39-103. Definitions.

Whenever used or referred to in this chapter, unless a different meaning clearly appears from the context, the following terms shall have the following meanings:

1. “Air contaminant” or “air contamination” means the presence in the outdoor atmosphere of any dust, fume, mist, smoke, radionuclide, vapor, gas or other gaseous fluid or particulate substance differing in composition from or exceeding in concentration the natural components of the atmosphere.
2. “Air pollution” means the presence in the outdoor atmosphere of any contaminant or combination thereof in such quantity of such nature and duration and under such conditions as would be injurious to human health or welfare, to animal or plant life, or to property, or to interfere unreasonably with the enjoyment of life or property.
3. “Board” means the board of environmental quality.
4. “Cyanidation” means the method of extracting target precious metals from ores by treatment with cyanide solution, which is the primary leaching agent for extraction.
5. “Cyanidation facility” means that portion of a new ore processing facility, or a material modification or a material expansion of that portion of an existing ore processing facility that utilizes cyanidation and is intended to contain, treat, or dispose of cyanide containing materials including spent ore, tailings, and process water.
6. “Department” means the department of environmental quality.
7. “Director” means the director of the department of environmental quality or the director’s designee.
8. “Emission” means any controlled or uncontrolled release or discharge into the outdoor atmosphere of any air contaminant or combination thereof. Emission also includes any release or discharge of any air contaminant from a stack, vent or other means into the outdoor atmosphere that originates from an emission unit.
9. “Laboratory” means not only facilities for biological, serological, biophysical, cytological and pathological tests, but also facilities for the chemical or other examination of materials from water or other substances.
10. “Medical waste combustor” means any device, incinerator, furnace, boiler or burner, and any and all appurtenances thereto, which burns or pyrolyzes medical waste consisting of human or animal tissues, medical cultures, human blood or blood products, materials contaminated with human blood or tissues, used or unused surgical wastes, used or unused sharps, including hypodermic needles, suture needles, syringes and scalpel blades.
11. “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.
12. “Public water supply” or “public drinking water system” means a system for the provision to the public of water for human consumption through pipes or other constructed conveyances, if such system has at least fifteen (15) service connections, regardless of the number of water sources or configuration of the distribution system, or regularly serves an average of at least twenty-five (25) individuals daily at least sixty (60) days out of the year. Such term includes any collection, treatment, storage and distribution facilities that are under the control of the operator of such system and used primarily in connection with such system, and any collection or pretreatment storage facilities not under such control that are used primarily in connection with such system. Such term does not include any special irrigation district. (13) “Solid waste” means garbage, refuse, radionuclides and other discarded solid materials, including solid waste materials resulting from industrial, commercial and agricultural operations and from community activities but does not include solid or dissolved materials in domestic sewage or other significant pollutants in water resources, such as silt, dissolved or suspended solids in industrial waste water effluents, dissolved materials in irrigation return flows or other common water pollutants.
13. “Solid waste” means garbage, refuse, radionuclides and other discarded solid materials, including solid waste materials resulting from industrial, commercial and agricultural operations and from community activities but does not include solid or dissolved materials in domestic sewage or other significant pollutants in water resources, such as silt, dissolved or suspended solids in industrial waste water effluents, dissolved materials in irrigation return flows or other common water pollutants.
14. “Solid waste disposal” means the collection, storage, treatment, utilization, processing or final disposal of solid waste.
15. “State” means the state of Idaho.
16. “Substantive” means that which creates, defines or regulates the rights of any person or implements, interprets or prescribes law or policy, but does not include statements concerning only the internal management of the department and not affecting private rights or procedures available to the public.
17. “Water pollution” is such alteration of the physical, thermal, chemical, biological or radioactive properties of any waters of the state, or such discharge of any contaminant into the waters of the state as will or is likely to create a nuisance or render such waters harmful or detrimental or injurious to public health, safety or welfare or to domestic, commercial, industrial, recreational, esthetic or other legitimate uses or to livestock, wild animals, birds, fish or other aquatic life.
18. “Waters” means all accumulations of water, surface and underground, natural and artificial, public and private or parts thereof which are wholly or partially within, flow through or border upon this state except for private waters as defined in section 42-212, Idaho Code.

§ 39-104. Department of environmental quality — Creation.

1. There is created and established in the state government a department of environmental quality which shall for the purposes of section 20, article IV, of the constitution of the state of Idaho be an executive department of the state government. The executive and administrative power of this department shall be vested in the director of the department who shall be appointed and serve at the pleasure of the governor, with the advice and consent of the senate.
2. The department shall be organized in such administrative divisions or regions as may be necessary in order to efficiently administer the department. Each division shall be headed by an administrator who shall be appointed by and serve at the pleasure of the director.
3. The INL coordinator, deputy director, regional administrators and division administrators shall be nonclassified employees exempt from the provisions of chapter 53, title 67, Idaho Code.
4. No provision of this title shall be interpreted as to supersede, abrogate, injure or create rights to divert or store water and apply water to beneficial uses established under section 3, article XV of the constitution of the state of Idaho and title 42, Idaho Code. Nothing in this title shall be construed to allow the department to establish a water right for minimum stream flows or a water right for minimum water levels in any lakes, reservoirs or impoundments. Minimum stream flows and minimum water levels may only be established pursuant to chapter 15, title 42, Idaho Code.
5. Nothing in this title shall be construed to allow the department to establish or require minimum stream flows which would prevent any water from being diverted for irrigation purposes pursuant to existing water rights, or to establish or require minimum water levels in any lakes, reservoirs or impoundments in which any water is stored for irrigation purposes which would adversely affect existing water rights or contracts with the federal government.

§ 39-104b. [Amended and redesignated.]

§ 39-104c. Transfer of powers to administrator of department of environmental and community services. [Repealed.]

§ 39-104A. Authority to make rules regulating large swine feeding operations — Financial assurances.

1. The state of Idaho is experiencing the development of large swine feeding operations which are inadequately controlled through existing state regulatory mechanisms. If not properly regulated, these facilities pose a threat to the state’s surface and ground water resources. Due to existing rulemaking authority, the department of environmental quality is in the best position of all state agencies to modify its present rules and to make new rules to develop an adequate regulatory framework for large swine feeding operations.
2. The department of environmental quality is authorized to modify its existing administrative rules and to make new rules regulating large swine feeding operations, as they shall be defined by the department. The department is authorized to work with the Idaho department of agriculture in the development of such rules.
3. Owners and operators of swine facilities required to obtain a permit from the department of environmental quality to construct, operate, expand or close the facilities shall provide financial assurances demonstrating financial capability to meet requirements for operation and closure of the facilities and remediation. Requirements for financial assurances shall be determined by the agency as set forth in rule. Financial assurances may include any mechanism or combination of mechanisms meeting the requirements established by agency rule including, but not limited to, surety bonds, trust funds, irrevocable letters of credit, insurance and corporate guarantees. The mechanism(s) used to demonstrate financial capability must be legally valid, binding and enforceable under applicable law and must ensure that the funds necessary to meet the costs of closure and remediation will be available whenever the funds are needed. The director may retain financial assurances for up to five (5) years after closure of a facility to ensure proper closure and remediation, as defined by rule.
4. Those swine facilities described in section 39-7905, Idaho Code, shall meet the requirements of section 39-7907, Idaho Code, in addition to the requirements of this chapter and the department of environmental quality’s rules regulating swine facilities, prior to the issuance of a final permit by the director. The director shall require that swine facilities be constructed in a phased manner over a period of time and that no additional facilities be constructed until the director approves the associated waste treatment system.
5. Nothing in this section prohibits the boards of county commissioners of any county or the governing body of any city from adopting regulations that are more stringent or that require greater financial assurances than those imposed by the department of environmental quality. A board of county commissioners of a county or a governing body of a city in which a swine facility is located may choose to determine whether the facility is properly closed according to imposed standards or may leave that determination to the department. This choice shall be communicated to the director in writing when closure begins; provided that determinations of closure by a board of county commissioners of a county or a governing body of a city in which the swine facility is located shall not permit closure under less stringent requirements than those imposed by the department.
6. As used in this section: (a) “Animal unit” means a unit equaling two and one-half (2.5) swine, each weighing over twenty-five (25) kilograms (approximately fifty-five (55) pounds), or ten (10) weaned swine, each weighing under twenty-five (25) kilograms. Total animal units are calculated by adding the number of swine weighing over twenty-five (25) kilograms multiplied by four-tenths (.4) plus the number of weaned swine weighing under twenty-five (25) kilograms multiplied by one-tenth (.1).
   1. “Animal unit” means a unit equaling two and one-half (2.5) swine, each weighing over twenty-five (25) kilograms (approximately fifty-five (55) pounds), or ten (10) weaned swine, each weighing under twenty-five (25) kilograms. Total animal units are calculated by adding the number of swine weighing over twenty-five (25) kilograms multiplied by four-tenths (.4) plus the number of weaned swine weighing under twenty-five (25) kilograms multiplied by one-tenth (.1)

(c) “Large swine feeding operations” means swine facilities having a one-time animal unit capacity of two thousand (2,000) or more animal units.

(d) “One-time animal unit capacity” means the maximum number of animal units that a facility is capable of housing at any given time.

§ 39-105. Powers and duties of the director.

The director shall have the following powers and duties:

1. All of the rights, powers and duties regarding environmental protection functions vested in the department of health and welfare, and its director, administered by the division of environmental quality, including, but not limited to, those provided by chapters 1, 4, 30, 36, 44, 58, 65, 66, 70, 71, 72 and 74, title 39, Idaho Code. The director shall have all such powers and duties as described in this section as may have been or could have been exercised by his predecessors in law, and shall be the successor in law to all contractual obligations entered into by predecessors in law. All hearings of the director shall be governed by the provisions of chapter 52, title 67, Idaho Code.
2. The director shall, pursuant and subject to the provisions of the Idaho Code and the provisions of this act, formulate and recommend to the board rules as may be necessary to deal with problems related to water pollution, air pollution, solid waste disposal, and licensure and certification requirements pertinent thereto, which shall, upon adoption by the board, have the force of the law relating to any purpose which may be necessary and feasible for enforcing the provisions of this act, including, but not limited to, the prevention, control or abatement of environmental pollution or degradation including radionuclides and risks to public health related to any of the powers and duties described in this section. Any such rule may be of general application throughout the state or may be limited as to times, places, circumstances or conditions in order to make due allowance for variations therein.
3. The director, under the rules adopted by the board, shall have the general supervision of the promotion and protection of the environment of this state. The powers and duties of the director shall include, but not be limited to, the following:
   1. The issuance of licenses and permits as prescribed by law and by the rules of the board promulgated hereunder. For each air quality operating permit issued under title V of the federal clean air act and its implementing regulations, the director shall, consistent with the federal clean air act and its implementing regulations, expressly include a provision stating that compliance with the conditions of the permit shall be deemed compliance with the applicable requirements of the federal clean air act and the title V implementing regulations. The director may develop and issue general permits covering numerous similar sources, as authorized by 40 CFR 70.6(d), as may be amended, and as appropriate.
   2. The enforcement of rules relating to public water supplies and to administer the drinking water loan fund pursuant to chapter 76, title 39, Idaho Code, including making loans to eligible public drinking water systems as defined in the federal safe drinking water act, as amended, and to comply with all requirements of the act, 42 U.S.C. 300f et seq. and regulations promulgated pursuant to the act. This includes, but is not limited to: the development of and implementation of a capacity development strategy to ensure public drinking water systems have the technical, managerial and financial capability to comply with the national primary drinking water regulations; and the enhancement of protection of source waters for public drinking water systems.
   3. The establishment of liaison with other governmental departments, agencies and boards in order to effectively assist other governmental entities with the planning for the control of or abatement of environmental pollution. All of the rules adopted by the board hereunder shall apply to state institutions.
   4. The supervision and administration of a system to safeguard air quality and for limiting and controlling the emission of air contaminants.
   5. The supervision and administration of a system to safeguard the quality of the waters of this state including, but not limited to, the enforcement of rules relating to the discharge of effluent into the waters of this state and the storage, handling and transportation of solids, liquids, and gases that may cause or contribute to water pollution. For purposes of complying with the clean water act, the director may provide an exemption from additional reductions for those nonpoint sources that meet the applicable reductions set forth in an approved TMDL as defined in chapter 36, title 39, Idaho Code.
   6. The supervision and administration of administrative units whose responsibility shall be to assist and encourage counties, cities, other governmental units, and industries in the control of and/or abatement of environmental pollution.
   7. The administration of solid waste disposal site and design review in accordance with the provisions of chapter 74, title 39, Idaho Code, and chapter 4, title 39, Idaho Code, and in particular as follows:
      1. The issuance of a solid waste disposal site certificate in the manner provided in chapter 74, title 39, Idaho Code.
      2. Provide review and approval regarding the design of solid waste disposal facilities and ground water monitoring systems and approval of all applications for flexible standards as provided in 40 CFR 258, in accordance with the provisions of chapter 74, title 39, Idaho Code.
      3. Cooperating and coordinating with operational monitoring of solid waste disposal sites by district health departments pursuant to authority established in chapters 4 and 74, title 39, Idaho Code.
      4. The authority granted to the director pursuant to provisions of this subsection shall be effective upon enactment of chapter 74, title 39, Idaho Code, by the legislature.
      5. The authority to develop and propose rules as necessary to supplement details of compliance with the solid waste facilities act and applicable federal regulations, provided that such regulations shall not conflict with the provisions of this act nor shall such regulations be more strict than the requirements established in federal law or in the solid waste facilities act.
      6. Programs within the department to utilize the data obtained from such monitoring, and any other relevant data, in the enforcement of applicable agreements, statutes and rules pertaining to such facilities and programs to review, analyze and participate in remedial decisions and other proposed actions and projects to ensure the protection of public health and the environment.
   8. The establishment, administration and operation of:
   9. A network of environmental monitoring stations, independent of the United States department of energy, within and around the facilities of the Idaho national laboratory to provide authoritative auditing and analysis of emissions, discharges or releases of pollutants to the environment, including the air, water and soil from such facilities; and
   10. The enhancement and protection of source waters of the state pursuant to rules of the board.
4. The director, when so designated by the governor, shall have the power to apply for, receive on behalf of the state, and utilize any federal aid, grants, gifts, gratuities, or moneys made available through the federal government, including, but not limited to, the federal water pollution control act, for use in or by the state of Idaho in relation to health and environmental protection.
5. 1. The director shall have the power to enter into and make contracts and agreements with any public agencies or municipal corporation for facilities, land, and equipment when such use will have a beneficial or recreational effect or be in the best interest in carrying out the duties imposed upon the department. (5)(a) The director shall have the power to enter into and make contracts and agreements with any public agencies or municipal corporation for facilities, land, and equipment when such use will have a beneficial or recreational effect or be in the best interest in carrying out the duties imposed upon the department.
   2. The director shall also have the power to enter into contracts for the expenditure of state matching funds for local purposes. This subsection will constitute the authority for public agencies or municipal corporations to enter into such contracts and expend money for the purposes delineated in such contracts.
6. The director is authorized to adopt an official seal to be used on appropriate occasions, in connection with the functions of the department or the board, and such seal shall be judicially noticed. Copies of any books, records, papers and other documents in the department shall be admitted in evidence equally with the originals thereof when authenticated under such seal.

The director shall also monitor the implementation of agreements between the United States and the state of Idaho related to the operation and environmental protection obligations of the Idaho national laboratory and provide periodic information to the governor, the attorney general, the legislature and the people of Idaho concerning compliance with such agreements and obligations. The director shall have the power to enter into agreements with the United States department of energy in order to carry out the duties and authorities provided in this subsection. (i) The enforcement of all laws, rules, regulations, codes and standards relating to environmental protection and health.

§ 39-106. Director — Additional powers and duties — Transfer and continuation of rules and other proceedings.

1. The director shall exercise the following powers and duties in addition to all other powers and duties inherent in the position:
   1. Prescribe such policies and procedures as may be necessary for the administration of the department, the conduct and duties of the employees, the orderly and efficient management of department business, and the custody, use and preservation of department records, papers, books and property belonging to the state.
   2. Employ such personnel as may be deemed necessary, prescribe their duties and fix their compensation within the limits provided by the state personnel system law.
   3. Administer oaths for all purposes required in the discharge of his duties.
   4. Prescribe the qualifications of all personnel of the department on a nonpartisan merit basis, in accordance with the Idaho personnel system law, provided, however, that the administrators in charge of any division of the department shall serve at the pleasure of the director.
   5. Create such units, sections and subdivisions as are or may be necessary for the proper and efficient functioning of the department.
2. All books, records, papers, documents, property, real and personal, unexpended appropriations and pending business in any way pertaining to the rights, powers and duties regarding environmental protection functions vested in the department of health and welfare and its director, administered by the division of environmental quality, are transferred to and vested in the department and its director. The department established by this act is empowered to acquire, by purchase or exchange, any property which in the judgment of the department is needful for the operation of the facilities and programs for which it is responsible and to dispose of, by sale or exchange, any property which in the judgment of the department is not needful for the operation of the same.
3. All rules, standards, plans, licenses, permits, consent orders, compliance schedules, certification, and other agreements pertaining to environmental protection functions administered by the division of environmental quality heretofore adopted or issued by the department of health and welfare and its director are transferred to the department of environmental quality and shall remain in full force and effect until superseded. The terms “department” and “director” in such documents shall mean the department of environmental quality and its director, until such documents are amended.
4. The department of environmental quality and its director shall be the successor to all rights, powers and duties of the department of health and welfare and its director regarding all rulemaking proceedings, administrative proceedings, contested cases, civil actions, contracts, delegations, authorizations and other matters pertaining to environmental protection functions.

§ 39-107. Board — Composition — Officers — Compensation — Powers — Subpoena — Depositions — Review — Rules.

1. 1. The board of environmental quality shall consist of seven (7) members who shall be appointed by the governor, with the advice and consent of the senate. The members shall serve at the pleasure of the governor. Each member of the board shall be a citizen of the United States, a resident of the state of Idaho, and a qualified elector, and shall be appointed to assure appropriate geographic representation of the state of Idaho. Not more than four (4) members of the board shall be from any one (1) political party. Two (2) members of the board shall be chosen with due regard to their knowledge and interest in solid waste; two (2) members shall be chosen for their knowledge of and interest in air quality; two (2) members shall be chosen for their knowledge of and interest in water quality; and one (1) member shall be chosen with due regard for his knowledge of and interest in air, water and solid waste issues. (1)(a) The board of environmental quality shall consist of seven (7) members who shall be appointed by the governor, with the advice and consent of the senate. The members shall serve at the pleasure of the governor. Each member of the board shall be a citizen of the United States, a resident of the state of Idaho, and a qualified elector, and shall be appointed to assure appropriate geographic representation of the state of Idaho. Not more than four (4) members of the board shall be from any one (1) political party. Two (2) members of the board shall be chosen with due regard to their knowledge and interest in solid waste; two (2) members shall be chosen for their knowledge of and interest in air quality; two (2) members shall be chosen for their knowledge of and interest in water quality; and one (1) member shall be chosen with due regard for his knowledge of and interest in air, water and solid waste issues.
   2. The members of the board of environmental quality shall be appointed for a term of four (4) years. In appointing members whose terms begin in 2000, the governor shall designate three (3) members to be appointed for a term of three (3) years, two (2) members appointed for a term of four (4) years, and two (2) members appointed for a term of two (2) years. Successors to the members appointed for a term of less than four (4) years shall be appointed for a term of four (4) years thereafter.
2. The board annually shall elect a chairman, a vice chairman, and a secretary, and shall hold such meetings as may be necessary for the orderly conduct of its business, and such meetings shall be held from time to time on seventy-two (72) hours’ notice of the chairman or a majority of the members. Five (5) members shall be necessary to constitute a quorum at any regular or special meeting and the action of the majority of members present shall be the action of the board. The members of the board shall be compensated as provided in section 59-509(h), Idaho Code.
3. The board, in furtherance of its duties under this act and under its rules, shall have the power to administer oaths, certify to official acts, and to issue subpoenas for the attendance of witnesses and the production of papers, books, accounts, documents and testimony. The board may, if a witness refuses to attend or testify, or to produce any papers required by such subpoenas, report to the district court in and for the county in which the proceeding is pending, by petition, setting forth that due notice has been given of the time and place of attendance of said witnesses, or the production of said papers, that the witness has been properly summoned, and that the witness has failed and refused to attend or produce the papers required by this subpoena before the board, or has refused to answer questions propounded to him in the course of said proceedings, and ask an order of said court compelling the witness to attend and testify and produce said papers before the board. The court, upon the petition of the board, shall enter an order directing the witness to appear before the court at a time and place to be fixed by the court in such order, the time to be not more than ten (10) days from the date of the order, and then and there shall show cause why he has not attended and testified or produced said papers before the board. A copy of said order shall be served upon said witness. If it shall appear to the court that said subpoena was regularly issued by the board and regularly served, the court shall thereupon order that said witness appear before the board at the time and place fixed in said order, and testify or produce the required papers. Upon failure to obey said order, said witness shall be dealt with for contempt of court.
4. The director, his designee, or any party to the action may, in an investigation or hearing before the board, cause the deposition or interrogatory of witnesses or parties residing within or without the state, to be taken in the manner prescribed by law for like depositions and interrogatories in civil actions in the district court of this state, and to that end may compel the attendance of said witnesses and production of books, documents, papers and accounts.
5. Any person aggrieved by an action or inaction of the department shall be afforded an opportunity for a fair hearing upon request therefor in writing pursuant to chapter 52, title 67, Idaho Code, and the rules promulgated thereunder. In those cases where the board has been granted the authority to hold such a hearing pursuant to a provision of the Idaho Code, the hearing may be conducted by the board at a regular or special meeting, or the board may designate hearing officers, who shall have the power and authority to conduct hearings in the name of the board at any time and place. In any hearing, a member of the board or hearing officer designated by it, shall have the power to administer oaths, examine witnesses, and issue in the name of the board subpoenas requiring the testimony of witnesses and the production of evidence relevant to any matter in the hearing.
6. Any person adversely affected by a final determination of the board, may secure judicial review by filing a petition for review as prescribed under the provisions of chapter 52, title 67, Idaho Code. The petition for review shall be served upon the chairman of the board, the director of the department, and upon the attorney general of the state of Idaho. Such service shall be jurisdictional and the provisions of this section shall be the exclusive procedure for appeal.
7. The board, by the affirmative vote of four (4) of its members, may adopt, amend or repeal the rules, codes, and standards of the department, that are necessary and feasible in order to carry out the purposes and provisions of this act and to enforce the laws of this state.
8. All rulemaking proceedings and hearings of the board shall be governed by the provisions of chapter 52, title 67, Idaho Code.
9. The board shall adopt contested case rules that are consistent with the rules adopted by the attorney general under section 67-5206(4), Idaho Code, the provisions of this act and other statutory authority of the department.
10. All rules, permits and other actions heretofore adopted, issued or taken by the board of health and welfare pertaining to the environmental protection functions administered by the division of environmental quality shall remain in full force and effect until superseded.
11. The board of environmental quality shall be the successor to all rights, powers and duties of the board of health and welfare regarding all rulemaking proceedings, administrative proceedings, contested cases, civil actions, contracts, delegations, authority and other matters pertaining to environmental protection functions administered by the division of environmental quality.
12. Upon creation of the board of environmental quality, all pending business before the board of health and welfare relating to environmental protection functions administered by the division of environmental quality shall be transferred to and determined by the board of environmental quality.

The rules and orders so adopted and established shall have the force and effect of law and may deal with any matters deemed necessary and feasible for protecting the environment of the state.

§ 39-107A. Real property in Bunker Hill cleanup site.

Notwithstanding any other provision of law to the contrary, the department may accept transfer from the United States of any real property or interest in real property acquired by the United States for remediation purposes concerning any operable unit of the Bunker Hill Superfund Site pursuant to 42 U.S.C. section 9604(j). The state of Idaho shall incur no liability nor be subject to any claims related to the existence, release or threatened release of any hazardous substance or contaminant or pollutant on, or from, any such real property. The department may, in its sole discretion, manage, lease or dispose of such property for the purpose of facilitating appropriate operation and maintenance activities, encouraging economic development or assisting local governmental entities within the site. The management, lease or disposal of such property shall not be subject to chapter 3, title 58, Idaho Code. Any receipts from the management, lease or disposal of such property shall be deposited in the Bunker Hill Cleanup Trust Fund established by the Trust Fund Declaration of the state of Idaho dated May 2, 1994 (Attachment M, Consent Decree, United States of America v. Asarco, Inc. No. CV-94-0206-N-HLR (D. Idaho)) for the purpose of funding institutional control or operation and maintenance activities regarding the site.

§ 39-107B. Department of environmental quality fund.

1. There is hereby created a fund in the state treasury to be known as the department of environmental quality fund and all moneys deposited therein shall be available to be appropriated to the department of environmental quality for purposes for which the department was established.
2. All federal grants, fees for services, permitting fees, other program income and transfers from other funds subject to administration by the director of the department of environmental quality shall be placed in the fund provided that the statewide accounting and reporting system must provide for identification of the balance of each funding source within the fund.
3. The state controller shall make transfers to the fund from the general fund and any other funds appropriated to the department of environmental quality as requested by the director of the department and approved by the board of examiners.

§ 39-107C. Environmental protection trust fund established.

The director of the department of environmental quality may receive on behalf of the department any moneys or real or personal property donated, bequeathed, devised or conditionally granted to the department. Moneys received directly or derived from the sale of such property shall be held in a trust known as the environmental protection trust, which is hereby established, reserved, set aside, appropriated and made available until expended and used and administered to carry out the terms and conditions of such donation, bequest, devise or grant and to pay the costs and expenses arising from investment of the trust. There is hereby created in the state treasury a fund to be known as the “environmental protection trust fund,” which shall consist of moneys held in the environmental protection trust. Pending expenditure or use, surplus moneys in the environmental protection trust shall either be invested by the state treasurer in the manner provided for idle state moneys in the state treasury by section 67-1210, Idaho Code, or, in the alternative and with the concurrence of the director of the department, the state treasurer, and the endowment fund investment board, be invested with the endowment fund investment board pursuant to chapter 7, title 57, Idaho Code. Interest received on all such investments shall be paid into the environmental protection trust.

§ 39-107D. Rules of department or board.

1. The legislature directs that any rule formulated and recommended by the department to the board which is broader in scope or more stringent than federal law or regulations, or proposes to regulate an activity not regulated by the federal government, is subject to the following additional requirements: the notice of proposed rulemaking and rulemaking record requirements under chapter 52, title 67, Idaho Code, must clearly specify that the proposed rule, or portions of the proposed rule, are broader in scope or more stringent than federal law or regulations, or regulate an activity not regulated by the federal government, and delineate which portions of the proposed rule are broader in scope or more stringent than federal law or regulations, or regulate an activity not regulated by the federal government.
2. To the degree that a department action is based on science, in proposing any rule or portions of any rule subject to this section, the department shall utilize:
   1. The best available peer reviewed science and supporting studies conducted in accordance with sound and objective scientific practices; and
   2. Data collected by accepted methods or best available methods if the reliability of the method and the nature of the decision justify use of the data.
3. Any proposed rule subject to this section which proposes a standard necessary to protect human health and the environment shall also include in the rulemaking record requirements under chapter 52, title 67, Idaho Code, the following additional information:
   1. Identification of each population or receptor addressed by an estimate of public health effects or environmental effects; and
   2. Identification of the expected risk or central estimate of risk for the specific population or receptor; and
   3. Identification of each appropriate upper bound or lower bound estimate of risk; and
   4. Identification of each significant uncertainty identified in the process of the assessment of public health effects or environmental effects and any studies that would assist in resolving the uncertainty; and
   5. Identification of studies known to the department that support, are directly relevant to, or fail to support any estimate of public health effects or environmental effects and the methodology used to reconcile inconsistencies in the data.
4. The department shall also include a summary of the information required by subsection (3) of this section in the notice of rulemaking required by chapter 52, title 67, Idaho Code.
5. Any rule promulgated or adopted by the board which is broader in scope or more stringent than federal law or regulations, or which regulates an activity not regulated by the federal government, submitted to the standing committee of the legislature pursuant to section 67-5291, Idaho Code, shall include a notice by the board identifying the portions of the adopted rule that are broader in scope or more stringent than federal law or rules, or which regulate an activity not regulated by the federal government. (6) Nothing provided herein is intended to alter the scope or effect of sections 39-105(3)(g)(v), 39-118B, 39-3601, 39-4404, 39-7210 and 39-7404, Idaho Code, or any other provision of state law which limits or prohibits agency action or rulemaking that is broader in scope or more stringent than federal law or regulations.

§ 39-108. Investigation — Inspection — Right of entry — Violation — Enforcement — Penalty — Injunctions.

1. The director shall cause investigations to be made upon receipt of information concerning an alleged violation of this act or of any rule, permit or order promulgated thereunder, and may cause to be made such other investigations as the director shall deem advisable.
2. For the purpose of enforcing any provision of this chapter or any rule authorized in this chapter, the director or the director’s designee shall have the authority to:
   1. Conduct a program of continuing surveillance and of regular or periodic inspection of actual or potential environmental hazards, air contamination sources, water pollution sources and of solid waste disposal sites;
   2. Enter at all reasonable times upon any private or public property, upon presentation of appropriate credentials, for the purpose of inspecting or investigating to ascertain possible violations of this act or of rules, permits or orders adopted and promulgated by the director or the board;
   3. All inspections and investigations conducted under the authority 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 section 17, article I, of the constitution of the state of Idaho. The state shall not, under the authority granted by this chapter, conduct warrantless searches of private property in the absence of either consent from the property owner or occupier or exigent circumstances such as a public health or environmental emergency;
   4. Any district court in and for the county in which the subject property is located is authorized to issue a search warrant to the director upon a showing of (i) probable cause to suspect a violation, or (ii) the existence of a reasonable program of inspection. Any search warrant issued under the authority of this chapter shall be limited in scope to the specific purposes for which it is issued and shall state with specificity the manner and the scope of the search authorized.
3. Whenever the director determines that any person is in violation of any provision of this act or any rule, permit or order issued or promulgated pursuant to this act, the director may commence either of the following:
   1. Administrative enforcement action.
      1. Notice. The director may commence an administrative enforcement action by issuing a written notice of violation. The notice of violation shall identify the alleged violation with specificity, shall specify each provision of the act, rule, regulation, permit or order which has been violated and shall state the amount of civil penalty claimed for each violation. The notice of violation shall inform the person to whom it is directed of an opportunity to confer with the director or the director’s designee in a compliance conference concerning the alleged violation. A written response may be required within fifteen (15) days of receipt of the notice of violation by the person to whom it is directed.
      2. Scheduling compliance conference. If a recipient of a notice of violation contacts the department within fifteen (15) days of the receipt of the notice, the recipient shall be entitled to a compliance conference. The conference shall be held within twenty (20) days of the date of receipt of the notice, unless a later date is agreed upon between the parties. If a compliance conference is not requested, the director may proceed with a civil enforcement action as provided in paragraph (b) of this subsection. (iii) Compliance conference. The compliance conference shall provide an opportunity for the recipient of a notice of violation to explain the circumstances of the alleged violation and, where appropriate, to present a proposal for remedying damage caused by the alleged violation and assuring future compliance.
      3. Consent order. If the recipient and the director agree on a plan to remedy damage caused by the alleged violation and to assure future compliance, they may enter into a consent order formalizing their agreement. The consent order may include a provision providing for payment of any agreed civil penalty.
      4. Effect of consent order. A consent order shall be effective immediately upon signing by both parties and shall preclude any civil enforcement action for the same alleged violation. If a party does not comply with the terms of the consent order, the director may seek and obtain, in any appropriate district court, specific performance of the consent order and such other relief as authorized in this chapter.
      5. Failure to reach consent order. If the parties cannot reach agreement on a consent order within sixty (60) days after the receipt of the notice of violation or if the recipient does not request a compliance conference as per paragraph (a)(ii) of this subsection, the director may commence and prosecute a civil enforcement action in district court, in accordance with paragraph (b) of this subsection.
   2. Civil enforcement action. The director may initiate a civil enforcement action through the attorney general as provided in section 39-109, Idaho Code. Civil enforcement actions shall be commenced and prosecuted in the district court in and for the county in which the alleged violation occurred and may be brought against any person who is alleged to have violated any provision of this act or any rule, permit or order which has become effective pursuant to this act. Such action may be brought to compel compliance with any provision of this act or with any rule, permit or order promulgated hereunder and for any relief or remedies authorized in this act. The director shall not be required to initiate or prosecute an administrative action before initiating a civil enforcement action.
4. No civil or administrative proceeding may be brought to recover for a violation of any provision of this chapter or a violation of any rule, permit or order issued or promulgated pursuant to this chapter more than two (2) years after the director had knowledge or ought reasonably to have had knowledge of the violation.
5. Monetary penalties.
   1. Any person determined in a civil enforcement action to have violated any provision of this act or any rule, permit or order promulgated pursuant to this act shall be liable for a civil penalty not to exceed the following amounts:
      1. For any violation of any provision of this act, rule, permit or order related to air quality: ten thousand dollars ($10,000) for each separate air violation and day of continuing air violation, whichever is greater;
      2. For any violation of any provision of this act, rule, permit or order related to the Idaho national pollutant elimination system program: ten thousand dollars ($10,000) per violation or five thousand dollars ($5,000) for each day of a continuing violation, whichever is greater; or
      3. For any violation of any provision of this act, rule, permit or order related to any other regulatory program authorized by this act: ten thousand dollars ($10,000) per violation or one thousand dollars ($1,000) for each day of a continuing violation, whichever is greater. The method of recovery of said penalty shall be by a civil enforcement action in the district court in and for the county where the violation occurred. All civil penalties collected under this act shall be paid into the general fund of the state. Parties to an administrative enforcement action may agree to a civil penalty as provided in this subsection.
   2. The imposition or computation of monetary penalties may take into account the seriousness of the violation, good faith efforts to comply with the law, and an enforceable commitment by the person against whom the penalty is directed to implement a supplemental environmental project. For purposes of this section, “supplemental environmental project” means a project which the person is not otherwise required to perform and which prevents pollution, reduces the amount of pollutants reaching the environment, contributes to public awareness of environmental matters or enhances the quality of the environment. In evaluating a particular supplemental environmental project proposal, preference may be given to those projects with an environmental benefit that relate to the violation or the objectives of the underlying statute that was violated or that enhances the quality of the environment in the general geographic location where the violation occurred.
6. In addition to such civil penalties, any person who has been determined to have violated the provisions of this act or the rules, permits or orders promulgated thereunder shall be liable for any expense incurred by the state in enforcing the act, or in enforcing or terminating any nuisance, source of environmental degradation, cause of sickness or health hazard.
7. No action taken pursuant to the provisions of this act or of any other environmental protection law shall relieve any person from any civil action and damages that may exist for injury or damage resulting from any violation of this act or of the rules, permits and orders promulgated thereunder.
8. In addition to, and notwithstanding other provisions of this act, in circumstances of emergency creating conditions of imminent and substantial danger to the public health or environment, the prosecuting attorney or the attorney general may institute a civil action for an immediate injunction to halt any discharge, emission or other activity in violation of provisions of this act or rules, permits and orders promulgated thereunder. In such action the court may issue an ex parte restraining order.
9. In any administrative or civil enforcement proceeding for violation of any Idaho NPDES program rule, permit, requirement or order, the department shall comply with the public participation requirements set forth in 40 CFR 123.27(d)(2).

§ 39-109. Commencement of civil enforcement actions — Criminal actions authorized — Duties of attorney general.

Upon request of the director, it shall be the duty of the attorney general to institute and prosecute civil enforcement actions or injunctive actions as provided in section 39-108, Idaho Code, and to prosecute actions or proceedings for the enforcement of any criminal provisions of this chapter. In addition, when deemed by the director to be necessary, the director may retain or employ private counsel. The attorney general may delegate the authority and duty under this section to prosecute criminal actions to the prosecuting attorney of the county in which such a criminal action may arise.

§ 39-110. Registration of persons engaged in operations or construction where air pollution is a factor — Reports.

The director may require the registration of persons engaged in operations which may result in air pollution, and of persons causing, permitting or allowing construction of any facility or new equipment capable of emitting air contaminants into the atmosphere, or designed to eliminate or reduce emissions into the atmosphere, and the filing of reports by them with the department relating to locations, size of outlet, height of outlet, rate and period of emission and composition of effluent, and such other information as the director shall prescribe relative to air pollution.

§ 39-111. Availability of records.

Any records or other information furnished to the board, department or to agents, contractors, or other representatives of the department under any provisions of this chapter shall be subject to disclosure according to chapter 1, title 74, Idaho Code.

§ 39-112. Emergency — Order — Hearing — Modification, affirmance, or setting aside.

1. Any other provision of law to the contrary notwithstanding, if the director finds that a generalized condition of air pollution exists and that it creates an imminent and substantial endangerment to the public health or welfare constituting an emergency requiring immediate action to protect human health or safety, the director, with the concurrence of the governor as to the existence of such an emergency shall order persons causing or contributing to the air pollution to reduce or discontinue immediately the emission of air contaminants, and such order shall fix a time and place, not later than twenty-four (24) hours thereafter, for a hearing to be held before the director. Not more than twenty-four (24) hours after the commencement of such hearing, and without adjournment thereof, the director shall affirm, modify or set aside its order.
2. In the absence of a generalized condition of air pollution of the type referred to in subsection (1) of this section, if the director finds that emissions from the operation of one (1) or more air contaminant sources is causing imminent and substantial danger to human health or safety the director may bring suit through the attorney general in the appropriate district court to immediately restrain any person causing or contributing to the alleged pollution to stop the emission of air pollutants causing or contributing to such pollution. If it is not practicable to assure prompt protection of public health or welfare or the environment by commencement of such civil action, the director may order the person or persons responsible for the operation or operations in question to reduce or discontinue emissions immediately without regard to other provisions of this act. In such event, the requirements for hearing and affirmance, modification or setting aside of an order set forth in subsection (1) of this section shall apply. For purposes of subsections (1) and (2) of this section, imminent and substantial endangerment or danger shall be interpreted no more broadly than these words are interpreted under section 303 of the clean air act, 42 USC 7603.
3. Nothing in this section shall be construed to limit any power which the governor or any other officer may have to declare an emergency and act on the basis of such declaration, if such power is conferred by statute or constitutional provision, or inheres in the office.

§ 39-113. Transfer of employees.

All employees of the division of environmental quality and the INEEL oversight program of the department of health and welfare are transferred to the department of environmental quality. Such transfer shall in no manner affect the rights or privileges of any transferred employee under the public employee retirement system (chapter 13, title 59, Idaho Code), the group insurance plan (chapter 57, title 67, Idaho Code), or personnel system (chapter 53, title 67, Idaho Code). Additionally, when the department of health and welfare is used in terms of environmental protection, it shall mean the department of environmental quality.

§ 39-114. Open burning of crop residue.

1. The open burning of crop residue to develop physiological conditions conducive to increase crop yields, or to control diseases, insects, pests or weed infestations, shall be an allowable form of open burning, such that it is expressly authorized as referenced in section 52-108, Idaho Code, as long as the open burning is conducted in accordance with the provisions of this section and the rules promulgated pursuant to this chapter.
2. Crop residue means any vegetative material remaining in the field after harvest or vegetative material produced on designated conservation reserve program (CRP) lands.
3. The open burning of crop residue shall be conducted in the field where it was generated. A burn may not take place without preapproval from the department. The department shall not approve a burn if it determines that ambient air quality levels:
   1. Are exceeding, or are expected to exceed, ninety percent (90%) of the ozone national ambient air quality standard (NAAQS) and seventy-five percent (75%) of the level of any other NAAQS on any day, and these levels are projected to continue or recur over at least the next twenty-four (24) hours; or
   2. Have reached, or are forecasted to reach and persist at, eighty percent (80%) of the one (1) hour action criteria for particulate matter pursuant to section 556 of IDAPA 58.01.01, rules for the control of air pollution in Idaho.
4. A fee in an amount of two dollars ($2.00) per acre burned shall be paid to the department. This fee shall not apply to propane flaming, as defined in the rules promulgated pursuant to this chapter. The department shall remit all fees quarterly to the state treasurer, who shall deposit the moneys in the general fund.

The department shall make available to the public, prior to the burn, information regarding the date of the burn, location, acreage and crop type to be burned. If the agricultural community desires to burn more than twenty thousand (20,000) acres annually of bluegrass within the state, that does not include Indian or tribal lands within the reservation boundaries as recognized by the federal clean air act, then, prior to approving the burning of the additional acres, the department shall complete an air quality review analysis to determine that the ambient air quality levels in this section will be met.

§ 39-115. Pollution source permits.

1. 1. The director shall have the authority to issue pollution source permits in compliance with rules established hereunder. (1)(a) The director shall have the authority to issue pollution source permits in compliance with rules established hereunder.
   2. To determine the applicability of permit requirements for any major or minor air pollution source in Idaho, the department shall develop and recommend to the board for adoption, rules that define “regulated air pollutant” as follows:
      1. For purposes of a major source permit to operate issued or modified by the department in accordance with title V of the federal clean air act amendments of 1990, “regulated air pollutant” shall have the same meaning as in title V of the federal clean air act amendments of 1990, and any applicable federal regulations promulgated pursuant to title V of the federal clean air act amendments of 1990;
      2. For purposes of any other operating permit issued or modified by the department, the federal definition of “regulated air pollutant” as defined in subsection (1)(b)(i) of this section shall also apply;
      3. For purposes of any permit to construct issued or modified by the department pursuant to part D of subchapter I of the federal clean air act, “regulated air pollutant” shall mean those air contaminants that are regulated pursuant to part D of subchapter I of the federal clean air act and applicable federal regulations promulgated pursuant to part D of subchapter I of the federal clean air act; and
      4. For purposes of major source compliance with 42 U.S.C. section 7412(g) and (i)(1), “regulated air pollutant” shall mean those air contaminants that are listed pursuant to 42 U.S.C. section 7412(b); and
      5. For purposes of any other major or minor permit to construct issued or modified by the department, “regulated air pollutant” shall mean those air contaminants that are regulated pursuant to part C of subchapter I of the federal clean air act and any applicable federal regulations promulgated pursuant to part C of subchapter I of the federal clean air act.
   3. To determine the applicability of any permit to construct or permit to operate requirement to any air pollution source in Idaho, fugitive emissions shall not be included in any applicability calculation, unless required by 42 U.S.C. section 7401 et seq. or any implementing regulation promulgated thereunder. The director shall develop and the board shall adopt rules that provide that, for both major and minor source permit applicability determinations, fugitive emissions shall be included only as required by 42 U.S.C. section 7401 et seq. or any implementing regulation promulgated thereunder.
   4. The director shall develop and recommend to the board for adoption through rulemaking, criteria to determine insignificant activities and such sources or modification with emissions at or below the de minimis level which shall not require either a permit to construct or a permit to operate; provided however, that a registration of the activities or sources may be required.
2. The director shall have the authority to sue in competent courts to enjoin any threatened or continuing:
   1. Violations of pollution source permits or conditions thereof without the necessity of a prior revocation of the permit; or
   2. Construction of an industrial or commercial air pollution source without a permit required under this chapter or rules adopted hereunder. (3) The department is authorized to charge and collect a fee for processing applications for industrial or commercial air pollution source permits in accordance with a fee schedule established by the board pursuant to this chapter. For fees charged for operating permits under title V of the federal clean air act amendments of 1990, the department shall not charge a fee on any hazardous air pollutant other than those listed under section 112 of the federal clean air act. The fee schedule shall be structured to provide an incentive for emission reduction.
3. The department is authorized to charge and collect a fee for processing applications for industrial or commercial air pollution source permits in accordance with a fee schedule established by the board pursuant to this chapter. For fees charged for operating permits under title V of the federal clean air act amendments of 1990, the department shall not charge a fee on any hazardous air pollutant other than those listed under section 112 of the federal clean air act. The fee schedule shall be structured to provide an incentive for emission reduction.
4. The director may issue air emission source permits to construct a facility to incinerate any waste or waste item contaminated with polychlorinated biphenyls (PCBs) only if the director finds:
   1. The facility will not be sited in complex valley terrain where the valley floor is less than five (5) miles wide and the valley walls rise more than one thousand (1,000) feet;
   2. The facility has complied with local planning and zoning requirements;
   3. There has been an opportunity for public participation; and
   4. The facility will employ best available technology and instrumentation.

Subsection (4) of this section shall not apply to incineration activities existing on or before January 1, 1987.

§ 39-116. Compliance schedules.

The director shall have the authority to issue compliance schedule orders to any person who is the source of any health hazard, air contaminant, water pollution or solid waste for which regulatory standards have been established, including regulatory standards then in effect or to become effective at a future date or at future successive dates. The purpose of any compliance schedule order shall be to identify and establish appropriate acts and time schedules for interim actions by those persons who are or who will be affected by regulatory standards, such acts and schedules being designed to assure timely compliance by those affected by the regulatory standards. Prior to the issuance of a compliance schedule order, the director shall solicit the cooperation of the person to whom the compliance schedule order will be directed by providing the person notice that identifies with reasonable specificity the applicable statutes and rules, the events or occurrences that necessitate the order, and the proposed terms of the order and that informs the person that a conference with the director to discuss the proposed terms of the order shall be provided if requested within fifteen (15) days of receipt of the notice. If requested, the director shall confer with the person and shall solicit the person’s cooperation in the selection of the terms of the order. The compliance schedule order may be issued at any time after the conference, if one is requested, and the expiration of sixty (60) days following the receipt of the notice. Any compliance schedule order shall be enforceable in the same manner as any order entered pursuant to section 39-108, Idaho Code, except the order may be challenged by an administrative appeal to the board as provided in section 39-107(5), Idaho Code. The order shall be effective and enforceable during an administrative appeal, unless the board or its designated hearing officer issues a stay of the order.

§ 39-116A. Compliance agreement schedules.

1. The director is hereby authorized to enter into a compliance agreement schedule with any person. An agreement entered into under this section shall not relieve any person from the obligation to comply with applicable human health and environmental protection statutes and rules, but may include an enforceable schedule for actions necessary for the person to come into or maintain compliance as expeditiously as practicable with such statutes and rules, if the person demonstrates to the satisfaction of the department that such a schedule is appropriate, given the factors listed in subsection (4) of this section. The provisions of this section shall not apply where prohibited by federal or state law.
2. The department may propose, and the board adopt, rules necessary for the implementation of this section.
3. In establishing any compliance agreement schedule, the term of the agreement shall not exceed ten (10) years, although successive agreements may be entered into. Agreements shall provide for annual meetings between the department and the person to reassess whether, considering the factors listed in subsection (4) of this section, the schedule and other terms of the agreement are still appropriate. All agreements must be signed by the director or his designee and an authorized representative on behalf of the person. All agreements are enforceable as orders under the provisions of this chapter.
4. Agreements and schedules entered into under this act shall take into account, in descending priority the:
   1. Protection of public health;
   2. Protection of environment;
   3. Ability of the person to pay for costs of compliance;
   4. Current fiscal obligations of the person;
   5. Other factors as determined by the department or the board.

§ 39-116B. Vehicle inspection and maintenance program.

1. The board shall initiate rulemaking to provide for the implementation of a motor vehicle inspection and maintenance program to regulate and ensure control of the air pollutants and emissions from registered motor vehicles in an attainment or unclassified area as designated by the United States environmental protection agency, not otherwise exempted in subsection (7) of this section, if the director determines the following conditions are met:
   1. An airshed, as defined by the department, within a metropolitan statistical area, as defined by the United States office of management and budget, has ambient concentration design values equal to or above eighty-five percent (85%) of a national ambient air quality standard, as defined by the United States environmental protection agency, for three (3) consecutive years starting with the 2005 design value; and
   2. The department determines air pollutants from motor vehicles constitute one (1) of the top two (2) emission sources contributing to the design value of eighty-five percent (85%).
2. In the event both of the conditions in subsection (1) of this section are met, the board shall establish by rule minimum standards for an inspection and maintenance program for registered motor vehicles, not otherwise exempted in subsection (7) of this section, which shall provide for:
   1. Counties and cities within the airshed that will be subject to the motor vehicle inspection and maintenance program;
   2. The requirements for licensing authorized inspection stations and technicians;
   3. The frequency with which inspections shall be required, provided that inspections shall occur no more than once every two (2) years;
   4. The procedures under which authorized inspection stations and technicians inspect motor vehicles and issue evidence of compliance;
   5. The criteria under which it is to be determined that a motor vehicle is eligible for a certificate of compliance;
   6. The parameters and diagnostic equipment necessary to perform the required inspection. The rules shall ensure that the equipment complies with any applicable standards of the United States environmental protection agency;
   7. A fee, bond or insurance which is necessary to carry out the provisions of this section and to fund an air quality public awareness and outreach program. The fee for a motor vehicle inspection shall not exceed twenty dollars ($20.00) per vehicle;
   8. The issuance of a pamphlet for distribution to owners of motor vehicles explaining the reasons for and the methods of the inspections; and
   9. The granting of a waiver from the minimum standards as provided by rule, which may be based on model year, fuel, size, or other factors, which shall include, but not be limited to, a repair waiver and a hardship waiver.
3. In the event both of the conditions in subsection (1) of this section are met, the director shall attempt to enter into a joint exercise of powers agreement under sections 67-2326 through 67-2333, Idaho Code, with the board of county commissioners of each county within the airshed in which a motor vehicle inspection and maintenance program is required under this section, and the councils of incorporated cities within those counties, to develop a standardized inspection and maintenance program. If the board of county commissioners or the councils of incorporated cities within those counties choose not to enter into a joint exercise of powers agreement with the director, then within one hundred twenty (120) days of the director’s written request to enter into such an agreement, the board of county commissioners or the councils of incorporated cities may notify the department that it will implement an alternative motor vehicle emission control strategy that will result in emissions reductions equivalent to that of a vehicle emission inspection program. If the department determines the emissions reductions of the alternative motor vehicle emission control strategy are not equivalent, or no equivalent reductions are proposed, the department or its designee shall implement the motor vehicle inspection and maintenance program required pursuant to the provisions of this section. (4) The Idaho transportation department shall revoke the registration of any motor vehicle identified by the department or its designee, or any city or county administering a program established under the provisions of this section as having failed to comply with such motor vehicle inspection and maintenance program, except that no vehicle shall be identified to the Idaho transportation department unless:
4. The Idaho transportation department shall revoke the registration of any motor vehicle identified by the department or its designee, or any city or county administering a program established under the provisions of this section as having failed to comply with such motor vehicle inspection and maintenance program, except that no vehicle shall be identified to the Idaho transportation department unless:
   1. The department or its designee, or the city or county certifies to the Idaho transportation department that the owner of the motor vehicle has been given notice and had the opportunity for a hearing concerning the program and has exhausted all remedies and appeals from any determination made at such hearing; and
   2. The department or its designee, or the city or county reimburses the Idaho transportation department for all direct costs associated with the registration revocation procedure.
5. The department shall annually review the results of the vehicle inspection and maintenance program. The review shall include, among other things, an estimate of the emission reduction obtained from the number of vehicles that initially fail the test and then pass after maintenance.
6. Every five (5) years beginning in 2013, the director shall review the air quality data and make recommendations to the legislature for its determination whether a program initially established pursuant to the provisions of this section should be continued, modified or terminated.
7. Electric or hybrid motor vehicles, new motor vehicles less than five (5) years old, classic automobiles, motorized farm equipment and registered motor vehicles engaged solely in the business of agriculture, shall be exempt from any motor vehicle inspection and maintenance program established pursuant to the provisions of this section.

Any vehicle registration that has been revoked pursuant to the provisions of this section that is found to be in compliance with current emissions standards shall have the registration reinstated without charge.

§ 39-117. Criminal violation — Penalty.

1. Any person who willfully or negligently violates any of the provisions of the non-air quality public health or environmental protection laws or the terms of any lawful notice, order, permit, standard, rule or regulation issued pursuant thereto shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not more than ten thousand dollars ($10,000) for each separate violation or one thousand dollars ($1,000) per day for continuing violations, whichever is greater.
2. Any person who knowingly violates any of the provisions of the air quality public health or environmental protection laws or the terms of any lawful notice, order, permit, standard or rule issued pursuant thereto shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not more than ten thousand dollars ($10,000) per day per violation. In addition, any person who knowingly releases into the ambient air any hazardous air pollutant listed pursuant to section 112 of the federal clean air act, 42 U.S.C. 7412, or any extremely hazardous substance listed pursuant to 42 U.S.C. 11002(a)(2) that is not listed under section 112, and who knows at the time that he thereby places another person in imminent danger of death or serious bodily injury shall, upon conviction, be punished by a fine of not more than two hundred fifty thousand dollars ($250,000) per day, or by imprisonment of not more than fifteen (15) years or both such fine and imprisonment. Any person committing such violation that is an organization shall, upon conviction under this subsection, be subject to a fine of not more than one million dollars ($1,000,000) for each violation. For any air pollutant for which the environmental protection agency or the board of environmental quality has set an emissions standard or for any source for which a permit has been issued under title V of the clean air act amendments of 1990, a release of such pollutant in accordance with that standard or permit shall not constitute a violation of the provisions of this subsection.
3. Any person who willfully or negligently violates any Idaho national pollutant discharge elimination system (NPDES) standard or limitation, permit condition or filing requirement shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not more than ten thousand dollars ($10,000) per violation or for each day of a continuing violation. Any person who knowingly makes any false statement, representation or certification in any Idaho NPDES form, in any notice or report required by an NPDES permit, or who knowingly renders inaccurate any monitoring device or method required to be maintained shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not more than five thousand dollars ($5,000) per violation or for each day of a continuing violation.

§ 39-118. Review of plans.

1. Except as provided by subsection (2) of this section, all plans and specifications for the construction of new sewage systems, sewage treatment plants or systems, other waste treatment or disposal facilities, public water supply systems or public water treatment systems or for material modification or expansion to existing sewage treatment plants or systems, waste treatment or disposal facilities, public water supply systems or public water treatment systems, shall be submitted to and approved by the director before construction may begin, and all construction shall be in substantial compliance therewith. Material modifications are those that are intended to increase system capacity or to alter the methods or processes employed. The director shall review plans and specifications and endeavor to resolve design issues within forty-two (42) days of submittal such that approval can be granted. If the director and applicant have not resolved design issues within forty-two (42) days or at any time thereafter, the applicant may file a written demand to the director for a decision. Upon receipt of such written demand, the director shall deliver a written decision to the applicant within no more than seven (7) days explaining any reasons for disapproval. The director shall maintain records of all written demands for decision made pursuant to this subsection with such records including the final decision rendered and the timeliness thereof. No material deviation shall be made from the approved plans and specifications without the prior approval of the director.
2. Plans meeting the following standards shall not require preconstruction approval by the director:
   1. Plans for dairy systems pursuant to section 37-401, Idaho Code.
   2. Plans developed to evidence compliance with storm water best management practices.
   3. Plans developed for routine maintenance or equipment replacement activities.
   4. Plans for sanitary sewer extensions, water main extensions, and storm drain extensions, when such facilities will be owned and operated by a city, county, quasi-municipal corporation or regulated public utility where such city, county, quasi-municipal corporation or regulated public utility provides for the review of such plans and specifications by a qualified licensed professional engineer to verify compliance with facility standards and approves construction plans prior to initiation of construction. Any plans approved pursuant to this subsection shall be transmitted to the director at the time construction is authorized along with a statement that the plans comply with the facility standards and that construction has been authorized by the public agency or public utility. At the discretion of any city, county, quasi-municipal corporation or regulated public utility, the plans addressed by this subsection may be referred to the director for review and approval prior to initiation of construction.
3. Within thirty (30) days of the completion of construction of facilities for which plans are required to be reviewed pursuant to subsection (1) or subsection (2)(d) of this section, record plans and specifications based on information provided by the construction contractor and field observations made by the engineer or the engineer’s designee depicting the actual construction of facilities performed must be submitted to the director by the engineer representing the public agency or regulated public utility, if the resultant facilities will be owned and operated by a public agency or regulated public utility, or by the design engineer or owner-designated substitute engineer if the constructed facilities will not be owned and operated by a public agency or regulated public utility. Such submittal by the professional engineer must confirm material compliance with the approved plans or disclose any material deviations therefrom. If construction does not materially deviate from the original plans and specifications previously provided to the department, the owner may have a statement to that effect prepared by a licensed professional engineer and filed with the department in lieu of submitting a complete and accurate set of record drawings. (4) All plans and specifications submitted to satisfy the requirements of subsection (1) of this section and all plans approved pursuant to subsection (2)(d) of this section shall be in compliance with applicable facility and design standards and conform in style and quality to regularly accepted engineering standards. The department shall review plans to determine compliance with applicable facility standards and engineering standards of care. As long as the plans and specifications comply with applicable facility and design standards, the department shall not substitute its judgment for that of the owner’s design engineer concerning the manner of compliance with design standards. Except with respect to plans and specifications for facilities addressed in subsection (5) of this section, and confined animal feeding operations, the board may require that certain types of plans and specifications must be stamped by registered professional engineers. If the director determines that any particular facility or category of facilities will produce no significant impact on the environment or on the public health, the director shall be authorized to waive the submittal or approval requirement for that facility or category of facilities.

§ 39-118A. Ore processing by cyanidation.

1. All plans and specifications for the construction of a cyanidation facility shall be submitted to and approved by the department before construction may begin, and all construction shall be in compliance therewith. Within thirty (30) days of the completion of such construction, modification or expansion, complete and accurate plans and specifications depicting that actual construction, modification or expansion does not deviate from the original approved plans and specifications shall be submitted to the department. All plans and specifications submitted to satisfy the requirements of this section shall be certified by registered professional engineers.
2. 1. A cyanidation facility shall not be constructed, operated, or closed prior to a permit being obtained from the department. (2)(a) A cyanidation facility shall not be constructed, operated, or closed prior to a permit being obtained from the department.
   2. Weather permitting, the director shall deliver to the operator within one hundred eighty (180) days after the receipt of a complete permit application the notice of rejection or notice of approval of the permit, as the case may be, provided however, that, subject to the provisions of subsection (3) of this section, if the director fails to deliver a notice of approval or notice of rejection within the time period, the permit submitted shall be deemed to comply with this chapter, and the operator may commence to build, operate or close the cyanidation facility covered by the permit, as the case may be, as if a notice of approval of the permit had been received from the director. Provided however, that if weather conditions prevent the director from inspecting the cyanidation facility to obtain information needed to approve or reject a submitted permit, he may, in writing to the operator, extend the time not to exceed thirty (30) days after weather conditions permit such inspection.
   3. The director may require a reasonable fee for processing permit applications.
3. 1. Prior to the effective date of rules promulgated under chapter 15, title 47, Idaho Code, the department is authorized to issue a permit under subsection (2) of this section if the cyanidation facility has provided financial assurance under the provisions of IDAPA 58.01.13 in an amount determined by the department to be the estimated reasonable costs to complete the activities specified in the permanent closure plan required in IDAPA 58.01.13, in the event of the failure of an operator to complete those activities, plus ten percent (10%) of such costs. In setting the amount of financial assurance, the department shall avoid duplication with any financial assurance, bonds and sureties deposited with other governmental agencies. (3)(a) Prior to the effective date of rules promulgated under chapter 15, title 47, Idaho Code, the department is authorized to issue a permit under subsection (2) of this section if the cyanidation facility has provided financial assurance under the provisions of IDAPA 58.01.13 in an amount determined by the department to be the estimated reasonable costs to complete the activities specified in the permanent closure plan required in IDAPA 58.01.13, in the event of the failure of an operator to complete those activities, plus ten percent (10%) of such costs. In setting the amount of financial assurance, the department shall avoid duplication with any financial assurance, bonds and sureties deposited with other governmental agencies.
   2. After the effective date of rules promulgated under chapter 15, title 47, Idaho Code, the department shall not issue a permit under subsection (2) of this section unless a permanent closure plan for the cyanidation facility has been submitted for approval under chapter 15, title 47, Idaho Code. Any permit issued by the department under subsection (2) of this section shall prohibit construction and operation of the cyanidation facility until the permittee submits proof acceptable to the department that financial assurance for the cyanidation facility permanent closure plan has been provided as required by chapter 15, title 47, Idaho Code.
4. A cyanidation facility with an existing permit approved by the department prior to July 1, 2005, shall be subject to the applicable laws and rules for ore processing by cyanidation in effect on June 30, 2005. If there is a material modification or a material expansion of a cyanidation facility after June 30, 2005, all provisions of this chapter shall apply to the modification or expansion; provided however, that reclamation or closure-related activities at a facility with an existing cyanidation permit approved by the department that did not actively add cyanide after January 1, 2005, shall not be considered to be material modifications or a material expansion of the facility. (5) The department shall promulgate temporary rules by August 1, 2005, to implement the provisions of this act; however, no rulemaking is necessary, nor shall be required, to increase the amount of financial assurance provided by the department’s interim authority under subsection (3)(a) of this section.

§ 39-118B. Relationship to federal law.

The board may promulgate rules and regulations to ensure that the state of Idaho is in compliance with the provisions of the federal clean air act. To the extent that the federal clean air act sets forth or the United States environmental protection agency adopts or has adopted a specific standard, emission limitation or control technology requirement under the clean air act, a more stringent standard, emission limitation or control technology requirement promulgated by the board shall not become effective until specifically approved by statute.

§ 39-118C. Legislative findings and declaration of purpose.

1. The legislature finds that it is an obligation of the state of Idaho under title V of the clean air act to provide for an operating permit program for sources of air pollution within the state.
2. The purpose of these amendments to the environmental protection and health act is to meet the state’s obligation to protect air quality with a cost-effective operating permit program.
3. The legislature intends that the department’s regulation under title V of the clean air act shall take advantage of the flexibility authorized by the federal clean air act to establish reasonable and cost-effective requirements. Such requirements shall include, but not be limited to:
   1. Operating flexibility provisions;
   2. Provisions allowing off-permit changes;
   3. Provisions that limit federally enforceable hazardous air pollutant requirements to that group of pollutants listed under section 112 of the federal clean air act (to the extent that the operating permits address hazardous air pollutants);
   4. Provisions for operating permits to be issued for fixed terms of five (5) years; provided that, in order to facilitate the implementation of the title V operating permit program, the director may issue operating permits with terms of from three (3) to five (5) years during the first three (3) years following environmental protection agency approval of Idaho’s title V operating permit program so long as those permits with fixed terms of less than five (5) years are renewed with terms of five (5) years thereafter; and provided further that if the maximum operating permit term under the federal clean air act should be extended beyond five (5) years, the director shall similarly extend the term of operating permits issued under the Idaho program; and provided further, that shorter terms are allowable when mutually agreed upon by the department and the applicant;
   5. Provisions for adequate, streamlined and reasonable procedures for processing modifications, including establishing criteria to determine insignificant changes that shall not require a permit modification, and establishing classes of modifications based on significance which shall include a minor modification class for which modifications may be processed in group as authorized by 40 CFR 70.7(e)(3) as may be amended; and
   6. Provisions allowing an existing source to make changes that reduce emissions without applying for a permit to construct or an amendment to an operating permit; provided, however, that an existing source that makes such changes may seek and obtain an operating permit modification if it chooses.

§ 39-118D. Idaho air quality permitting fund.

1. All moneys received from fees collected from the pollution sources requiring permitting under title V of the federal clean air act amendments of 1990 shall be forwarded to the department of environmental quality and shall be paid into the Idaho air quality permitting fund which is hereby created in the office of the state treasurer.
2. Such moneys and all interest earned thereon shall be kept in the Idaho air quality permitting fund and shall be expended for the technical, legal and administrative support necessary for implementing the operating permit program required under title V of the federal clean air act amendments of 1990.
3. All salaries, costs and expenses incurred by the department of environmental quality in performing the duties and the exercise of its powers in carrying out the operating permit program required under title V of the federal clean air act amendments of 1990 shall be paid out of the air quality permitting fund.

§ 39-118E. Small business assistance.

The department shall implement a small business assistance program as required in 42 U.S.C. 7661A [7661a].

§ 39-119. Collection of fees for services.

The department of environmental quality is hereby authorized to charge and collect reasonable fees, established by standards formulated by the director and approved by the board through rulemaking, for any service rendered by the department.

§ 39-120. Department of environmental quality primary administrative agency — Agency responsibilities.

1. The department of environmental quality is designated as the primary agency to coordinate and administer ground water quality protection programs for the state.
2. Recognizing that the department of water resources has the responsibility to maintain the natural resource geographic information system for the state and is the collector of baseline data for the state’s water resources, that the department of environmental quality has the responsibility for collecting and monitoring data for water quality management purposes and that the department of agriculture is responsible for regulating the use of pesticides and fertilizers and for licensing applicators, the department of environmental quality, the department of water resources and the department of agriculture shall:
   1. Develop a ground water monitoring plan, concurrently with the development of a ground water quality plan, for development and administration of a comprehensive ground water quality monitoring network, including point of use, point of contamination and problem assessment monitoring sites across the state and the assessment of ambient ground water quality utilizing, to the greatest degree possible, collection and coordination of existing data sources.
   2. Establish a system or systems within state departments and political subdivisions of the state for collecting, evaluating and disseminating ground water quality data and information.
   3. Develop and maintain a natural resource geographic information system and comprehensive water resource data system. The system shall be accessible to the public.
3. The responsible state departments or boards should adopt rules which specify the general standards for determining actions necessary to prevent ground water contamination and cleanup actions necessary to meet the goals of the state.
4. The director of the department of environmental quality may develop and recommend for approval by the board through rulemaking, ambient ground water quality standards for contaminants for which the administrator of the United States environmental protection agency has established drinking water maximum contaminant levels. The director may develop and recommend for approval by the board, through rulemaking, ground water quality standards for contaminants for which the administrator of the United States environmental protection agency has not established drinking water maximum contaminant levels. However, the existence of such standards, or the lack of them, should not be construed or utilized in derogation of the ground water quality protection goal and protection policies of the state.
5. The departments of environmental quality, water resources and agriculture should take actions necessary to promote and assure public confidence and public awareness of ground water quality protection. In pursuing this goal, the departments and public health districts should make public the results of investigations concerning ground water quality subject to the restrictions contained in section 39-111, Idaho Code.

§ 39-121. Definitions.

As used in section 39-102, Idaho Code, and in sections 39-120 through 39-127, Idaho Code:

1. “Cleanup” means removal, treatment or isolation of a contaminant from ground water through the directed efforts of humans or the removal or treatment of a contaminant in ground water through management practice or the construction of barriers, trenches and other similar facilities for prevention of contamination, as well as the use of natural processes such as ground water recharge, natural decay and chemical or biological decomposition.
2. “Contaminant” means any chemical, ion, radionuclide, synthetic organic compound, microorganism, waste or other substance which does not occur naturally in ground water or which naturally occurs at a lower concentration.
3. “Contamination” means the direct or indirect introduction into ground water of any contaminant caused in whole or in part by human activities.
4. “Ground water” means any water of the state which occurs beneath the surface of the earth in a saturated geological formation of rock or soil.
5. “Ground water quality plan” or “ground water quality protection plan” means the Idaho ground water quality plan adopted by the legislature in section 1, chapter 310, laws of 1992, and in section 1, chapter 273, laws of 1995.

§ 39-122, 39-123. Ground water quality council created; completion of ground water quality plan. [Repealed.]

§ 39-124. Legislative findings

Intent. [Null and void.]

§ 39-125. Moratorium on construction of certain coal fired power plants

Report. [Null and void.]

§ 39-126. Duties of state and local units of government.

1. All state agencies shall incorporate the adopted ground water quality protection plan in the administration of their programs and shall have such additional authority to promulgate rules to protect ground water quality as necessary to administer such programs which shall be in conformity with the ground water quality protection plan. Cities, counties and other political subdivisions of the state shall incorporate the ground water quality protection plan in their programs and are also authorized and encouraged to implement ground water quality protection policies within their respective jurisdictions, provided that the implementation is consistent with and not preempted by the laws of the state, the ground water quality protection plan and any rules promulgated thereunder. All state agencies, cities, counties and other political subdivisions shall cooperate with the department of environmental quality, the department of agriculture and the department of water resources in disseminating public information and education materials concerning the use and protection of ground water quality, in collecting ground water quality management data, and in conducting research on technologies to prevent or remedy contamination of ground water.
2. Notwithstanding any other provision of law to the contrary, except as provided in subsection (3) of this section, whenever a state agency, city, county or other political subdivision of the state issues a permit or license which deals with the environment, the entity issuing the permit or license shall take into account the effect the permitted or licensed activity will have on the ground water quality of the state and it may attach conditions to the permit or license in order to mitigate potential or actual adverse effects from the permitted or licensed activity on the ground water quality of the state. Nothing contained in this section shall authorize a state agency, city, county or other political subdivision of the state to issue or require a permit or license which it is not otherwise allowed by law to issue or require.
3. Except as otherwise provided by the ground water quality protection plan, if a permit or license which deals with the environment is required to be obtained from a state agency and that agency considers the effect of the permitted or licensed activity on ground water quality, after notice to other units of government which may otherwise have regulatory authority over the activity which is the subject of the permit or license, a city, county or other political subdivision of the state shall not prohibit, limit or otherwise condition the rights of the permittee or licensee under the permit or license on account of the effect the permitted or licensed activity may have on ground water quality.

Nothing contained in this section shall be deemed to permit cities, counties or other political subdivisions of the state to regulate ground water quality with respect to any activity for which another statute or other statutes may have expressly or impliedly preempted such local ground water quality regulation.

§ 39-127. Application of fertilizers and pesticides.

No person shall be liable for ground water contamination resulting from the application of fertilizers or pesticides if the person applies a fertilizer according to generally accepted agronomic practices, or applies a pesticide product registered under the federal insecticide, fungicide, rodenticide act according to label requirements, including precautionary statements, of the U.S. environmental protection agency, and such application of the pesticide or fertilizer is otherwise done with the proper equipment required by law, is without negligence and is in accordance with state laws.

§ 39-128. Applicability — Promulgation of rules — Establishment of zones — Combustor charging composition and recordkeeping — Report to local government — Permit processing.

1. Except as provided in subsection 2 of this section, the provisions of this section shall apply to medical waste combustors with a maximum rated capacity equal to or greater than three (3) tons per day. All combustors located on one (1) or more contiguous or adjacent properties and owned or operated by the same person or persons under common control shall be considered in determining the maximum rated capacity of a combustor.
2. The department is hereby directed to develop and propose, and the board is hereby directed to adopt, rules and regulations controlling emissions of air contaminants from all medical waste combustors, and implementing the provisions of this section except the provisions of subsections 8 and 9.
3. The following zones are hereby established:

1. a. Zone 1, consisting of the counties of Benewah, Bonner, Boundary, Clearwater, Idaho, Kootenai, Latah, Lewis, Nez Perce and Shoshone.
2. b. Zone 2, consisting of the counties of Ada, Adams, Boise, Canyon, Elmore, Gem, Owyhee, Payette, Valley and Washington.
3. c. Zone 3, consisting of the counties of Bannock, Bear Lake, Bingham, Blaine, Bonneville, Butte, Camas, Caribou, Cassia, Clark, Custer, Franklin, Fremont, Gooding, Jefferson, Jerome, Lemhi, Lincoln, Madison, Minidoka, Oneida, Power, Teton and Twin Falls.

4. Any county may petition the director to become incorporated into an adjacent zone. The director shall grant the petition provided it does not conflict with the purposes of this act, or any rule, regulation, permit or order issued or promulgated pursuant to this act.

5. For any combustor constructed or modified after the date of enactment of this section, no less than seventy per cent (70%) of the weight of the material charged into the combustor on an annual basis shall be material generated inside the zone in which the combustor is located.

6. An owner or operator of a combustor constructed and operated prior to the date of enactment of this section shall, by October 1, 1992, notify the department in writing describing the type, location and maximum rated capacity of the combustor.

7. Any person who owns or operates a combustor shall keep records as to the source, weight and type of material charged, and whether the material was generated within or outside the zone in which the combustor is located. These records shall be maintained for a period of not less than five (5) years and shall be made available to the department upon request. The requirements of this subsection may be fully or partially waived by the director if the owner or operator certifies to the department that no material generated outside the zone shall be charged into the combustor.

8. Any person proposing to construct or modify a combustor shall provide, in writing, to the local government a comprehensive report which shall include:

a. An overall description of the project;

b. The amount, type and disposal method of all solid waste produced;

c. The amount and content of any liquid to be discharged into the sewer system, applied to the land, or discharged into an impoundment or pond; d. The amount, type and control of air emissions;

e. The effect of the facility on vehicular traffic;

f. The amount of noise produced by the facility;

g. The extent and control of odors from the facility; and

h. Any additional information requested, in writing, by the local government pertaining to the effect of the proposed facility upon the community or local resources.

9. The local government shall conduct at least one (1) public hearing regarding any proposal to construct or modify a combustor within the jurisdiction of the local government at which interested persons shall have an opportunity to be heard. At least fifteen (15) days prior to the hearing, notice of the time and place of the hearing, a brief summary of the proposal, and the location of the comprehensive report required by the provisions of subsection 8 of this section, shall be published in a newspaper of general circulation within the jurisdiction of the local government. The local government shall, after hearing, notify in writing the person proposing to construct or modify the combustor that the proposal conforms or does not conform to applicable planning and zoning ordinances. Reasonable conditions may be placed on any approval so as to ensure that construction or modification of the combustor is in conformance with local planning and zoning ordinances and that all necessary local, state and federal permits are obtained.

10. Any person applying to the department for a permit to construct or modify a combustor shall submit, as part of the application, the notification required in subsection 8 of this section indicating that the proposal conforms, or conforms with conditions, to local government planning and zoning ordinances. Any application received by the department which does not include such a notification of approval or conditional approval shall be incomplete.

11. The director shall have authority to sue in competent courts to enjoin any threatened or continuing violation of the provisions of this section, or any rule, regulation, permit or order issued or promulgated to implement the provisions of this section. The court shall grant injunctive relief upon a showing that a violation of the provisions of this section or any rule, regulation, permit or order implementing the provisions of this section has occurred and is reasonably likely to continue.

12. The director shall have the authority to declare that an emergency exists and that a combustor may receive a waiver to combust material generated outside the zone in which the combustor is located in excess of the amount specified in subsection 5 of this section, provided the director finds that such an action is necessary to protect human health and the environment. The waiver shall not extend beyond six (6) months for any single combustor and eighteen (18) months in total duration.

13. For purposes of this section only:

a. The term “combustor” means a medical waste combustor as defined in section 39-103, Idaho Code.

b. The term “local government” means the city government for the city in which the combustor is to be located or, if the combustor is to be located outside the limits of an incorporated city, the county government for the county in which the combustor is to be located.

§ 39-129. Applicability — Definition of local government and mandates — Authorization for local government agreements — Adoption of rules — Establishment of schedules — Priority of considerations — Report and recommendations.

1. The provisions of this section shall apply to local governments providing drinking water, municipal waste disposal, municipal sewage or waste water disposal or treatment, or air pollution abatement, which can demonstrate to the satisfaction of the department that increasing and cumulative regulatory requirements applicable to such services cannot be met in a timely and reasonable manner. The provisions of the section do not apply where prohibited by federal or state laws or regulations for the protection of human health and the environment.
2. For purposes of this section the term “local government” means the government of a county or incorporated city, and the term “federal mandates” means those requirements arising from federal statutes or subsequent regulations administered by the United States environmental protection agency.
3. The department is hereby authorized to enter into agreements with local governments. The agreement may include a binding schedule enforceable under this chapter for the improvement, modification, construction, or other actions, necessary in order for the local government to come into compliance as expeditiously as practicable with human health and environmental protection statutes and rules stemming from federal mandates.
4. The department may propose, and the board adopt, rules necessary for the implementation of this section.
5. In establishing any local government agreement schedule, the term of the agreement shall not exceed fifteen (15) years, although successive agreements may be entered into. All agreements must be signed by the director or his designee and the mayor of the city or county commissioners of the county, as appropriate. All agreements are enforceable as orders under the provisions of this chapter.
6. Agreements and schedules entered into under this act shall take into account, in descending priority the:
   1. Protection of public health;
   2. Protection of the environment;
   3. Current tax structure and rates as compared to other local governments;
   4. Ability of the local government to pay for costs of compliance;
   5. Current fiscal obligations of the local government;
   6. Other factors as determined by the department or the board.

§ 39-130. Removal — Remediation — Bunker Hill mining and metallurgical complex superfund facility.

Notwithstanding any other provision of law to the contrary, removal and remediation actions in or related to any operable unit of the Bunker Hill mining and metallurgical complex superfund facility performed by or on behalf of the department of environmental quality shall not constitute public works pursuant to chapter 57, title 67, Idaho Code, chapter 19, title 54, Idaho Code, or any other provision of Idaho Code. In the letting and oversight of contracts for such removal or remediation actions, bonding of contractors may be required. The administrator of the division of waste management and remediation, department of environmental quality, and the director of the department of environmental quality, shall have the authority of the administrator of the division of purchasing, department of administration, and the director of the department of administration, respectively, in requiring open competitive bidding pursuant to chapter 92, title 67, Idaho Code, and any relevant rules of the department of administration.

§ 39-131 — 39-136. Emergency medical services — Intent — Definitions — Authorized actions — Rules and regulations — Liability — Failure to obtain consent. [Repealed.]

§ 39-137 — 39-138. [Reserved.]

§ 39-171. Legislative findings and purpose.

The legislature of the state of Idaho finds that:

1. Wood and mill yard debris is a byproduct of wood processing and manufacturing; and
2. If properly managed, wood and mill yard debris can be put to uses that have economic and environmental benefits; and
3. There is a need for guidance about how to manage, store, use or dispose of wood and mill yard debris so that nuisance and adverse environmental impacts are minimized; and
4. This guidance will enable the department and local units of government to more effectively regulate the use or disposal of wood and mill yard debris.

The purpose of sections 39-171 through 39-174, Idaho Code, is to provide guidance for the sound use, storage, management and disposal of wood and mill yard debris by requiring the director of the department of environmental quality to appoint a committee to study the issues and to gather and disseminate information to persons and entities that deal with wood and mill yard debris.

§ 39-172. Definitions.

For purposes of sections 39-171 through 39-174, Idaho Code:

1. “Committee” means the wood and mill yard debris committee.
2. “Director” means the director of the Idaho department of environmental quality.
3. “Wood or mill yard debris” means solid wood, bark, or wood fiber generated from the process of manufacturing wood products that may include components of soil, rock, or moisture, and for which the use, management, storage or final disposition is approved pursuant to sections 39-171 through 39-174, Idaho Code.

§ 39-173. Committee — Members — Terms.

As needed, to fulfill the duties described in section 39-174, Idaho Code, the director may appoint a committee that consists of seven (7) individuals and includes:

1. One (1) representative of the department of environmental quality, who will provide administrative and other support to the committee.
2. Two (2) representatives of the public health districts which have mill yard or wood debris within their districts.
3. Two (2) representatives from industries generating wood or mill yard debris.
4. Two (2) members with demonstrated technical knowledge important to the work of the committee.

Committee members shall be appointed to serve three (3) year terms. No member may serve more than two (2) full terms. Members serve at the pleasure of the director.

Members of the committee shall serve without compensation pursuant to section 59-509(a), Idaho Code.

§ 39-174. Committee duties — Meetings.

The committee’s duties shall include:

1. Developing a manual providing guidance for the use, storage, management and disposal of wood or mill yard debris to prevent public nuisances and minimize or prevent harmful environmental impacts. Guidance provided by the manual may be incorporated or adopted by reference in the rules of the department or other appropriate state agencies.
2. Considering and developing specific solutions to unforeseen wood or mill yard debris use, storage, management or disposal as needed.
3. Developing and sharing knowledge related to the use, storage, management and disposal of wood or mill yard debris including ways to constructively use or reclaim the debris.
4. Making recommendations for any necessary permits, rules or legislation related to the use, storage, management or disposal of wood or mill yard debris.

The committee shall meet on an as needed basis to implement the purpose of sections 39-171 through 39-174, Idaho Code. A committee member or member of the public may request a meeting by sending a written request to the department describing the reason for the meeting, or the department may schedule a meeting at the discretion of the director. Upon receiving the request, the department shall contact all committee members and arrange a time and place most convenient to the majority of the members. Meetings may be conducted using telephonic devices or other methods that allow adequate communication among members.

§ 39-175. [Reserved.]

1. The legislature finds:
   1. That navigable waters within the state are one of the state’s most valuable natural resources;
   2. That it is in the public interest to promote effective and efficient regulation of the discharge of pollutants into navigable waters, and that the state should control such permitting decisions as authorized under the federal clean water act;
   3. That the clean water act allows a state to develop and implement, with approval from the United States environmental protection agency, a national pollutant discharge elimination system (NPDES) program to be administered by the state;
   4. That the clean water act, as amended, and regulations adopted pursuant thereto, establishes complex and detailed provisions for regulation of those who discharge pollutants into navigable waters;
   5. That a state program to implement permitting decisions as authorized in the clean water act, and regulations adopted pursuant thereto, may enable the state to issue flexible permits consistent with the clean water act and avoid the existence of duplicative, overlapping or conflicting state and federal regulatory and enforcement processes;
   6. That a state program must be run with a minimum of federal interference in permitting, inspection and enforcement activities and that all state permitting actions under the approved state program are to be state actions and are not subject to consultation under the endangered species act or analysis under the provisions of the national environmental policy act. There should be no conditions of approval of the state program that have the effect of undermining or circumventing these principles;
   7. That the decision to accept delegation of authority from the environmental protection agency to operate an NPDES program has significant public policy implications that should be made by the legislature.
2. Therefore, it is the intent of the legislature to establish requirements that must be satisfied prior to legislative approval of a permitting program that complies with the clean water act and incorporates flexible permitting procedures and rules to be promulgated by the board.

§ 39-175B. Relationship between state and federal law.

The legislature cannot conveniently or advantageously set forth in this chapter all the requirements of all of the regulations which have been or will be established under the clean water act. However, any state permitting program must avoid the existence of duplicative, overlapping or conflicting state and federal regulatory systems. Further, the board may promulgate rules to implement a state permitting program but such rules shall not impose conditions or requirements more stringent or broader in scope than the clean water act and regulations adopted pursuant thereto. Further, the department will not require Idaho pollutant discharge elimination system (IPDES) permits for activities and sources not required to have permits by the United States environmental protection agency.

§ 39-175C. Approval of Idaho pollutant discharge elimination system program.

1. The department is authorized to implement an Idaho pollutant discharge elimination system (IPDES) program consistent with the requirements of this section. The program shall not include the authority to issue permits for any discharge of sewage from vessels, effluent from properly functioning marine engines, laundry, shower, and galley sink wastes, or any other discharge incidental to the normal operation of a vessel. This exclusion does not apply to rubbish, trash, garbage, or other such materials discharged overboard; nor to other discharges when the vessel is operating in a capacity other than as a means of transportation, such as when used as an energy or mining facility, a storage facility or a seafood processing facility, or when secured to a storage facility or a seafood processing facility or when secured to the bed of a lake or river, contiguous zone or waters of the United States for the purpose of mineral or oil exploration or development.
2. The board is authorized to proceed with negotiated rulemaking and all other actions necessary to maintain approval of the IPDES program by the United States environmental protection agency including rules authorizing the collection of reasonable fees for processing and implementing an IPDES permit program. Such fees shall not be assessed or collected unless the state maintains an approved IPDES program consistent with the requirements of this section.
3. Any memorandum of agreement negotiated by the director to maintain approval to operate an IPDES program shall be binding on the state of Idaho upon enactment of this statute.
4. Implementation of the IPDES program shall not occur prior to statutory enactment of implementing legislation and authorization of a memorandum of agreement as specified in subsection(3) of this section.
5. The director, as appropriate, shall establish agreements with other state agencies with expertise to administer the IPDES program.
6. No provision of this chapter shall be interpreted as to supersede, abrogate, injure or create rights to divert or store water and apply water to beneficial uses established under section 3, article XV, of the constitution of the state of Idaho, and title 42, Idaho Code.
7. Nothing in this section is intended to supersede any existing agreements between federal, state or local agencies regarding authority over inspections, enforcement or other obligations under the clean water act.

§ 39-175D. Idaho pollutant discharge elimination system permit decisions and appeal of decisions.

1. Prior to making a final decision regarding Idaho pollutant discharge elimination system (IPDES) permits authorized by sections 39-175A through 39-175C, Idaho Code, the department shall provide the public notice and an opportunity to comment on the department’s tentative decision. The department shall develop an administrative record that shall, at a minimum, include the tentative decision, all comments received, the department’s response to comments and the basis for the department’s decision. The decision-making process and the final decision with respect to IPDES permits shall not be subject to the contested case provisions set forth in chapter 52, title 67, Idaho Code.
2. Notwithstanding any other provision of law, including without limitation, chapter 52, title 67, Idaho Code, the exclusive means of appealing the department’s final decision regarding an IPDES permit shall be as set forth in this section and in rules authorized by this section and sections 39-175A through 39-175C, Idaho Code. Any person aggrieved by the department’s final decision regarding an IPDES permit may appeal that decision. The appeal of the decision shall be heard by a hearing officer appointed by the director from a pool of hearing officers approved by the board. Hearing officers should be persons with technical expertise or experience in the issues presented in appeals. All appeals shall be based solely on the record developed by the department as required by subsection (1) of this section and the rules adopted by the board, and no further or additional evidence may be presented except as provided in rules adopted by the board.
3. No person, including the director and hearing officer, who has or shares authority to approve all or portions of IPDES permits either in the first instance, as modified or reissued, or on appeal, shall have a conflict of interest as defined in 40 CFR 123.25(c).
4. Any person aggrieved by a final determination of the hearing officer regarding an IPDES permit may secure judicial review by filing a petition for review as prescribed under the rules adopted by the board and the provisions of chapter 52, title 67, Idaho Code. The petition for review shall be served upon the hearing officer, the director of the department and the attorney general. Such service shall be jurisdictional, and the provisions of this section shall be the exclusive procedure for appeal.
5. The board shall adopt rules consistent with the provisions of this section.

§ 39-175E. Idaho pollutant discharge elimination system program investigation, inspection and enforcement authorities.

1. All investigation, inspection and enforcement authorities and requirements set forth in the environmental protection and health act, sections 39-101 through 39-130, Idaho Code, shall be available to the department and shall apply with respect to the Idaho pollutant discharge elimination system (IPDES) program. Such authorities include, without limitation, the authorities in sections 39-108, 39-109 and 39-117, Idaho Code, which shall be available to the department to conduct investigations, inspections and enforcement relating to violations of the rules, permits, requirements or orders issued or adopted pursuant to sections 39-175A through 39-175E, Idaho Code.
2. The department is further authorized to enforce, through the authorities provided in this section, pretreatment standards, including local limits, developed and adopted by publicly owned treatment works, as required by 40 CFR 403.10(f)(1)(iv).

§ 39-175F. IPDES program fund established.

1. There is hereby created in the state treasury a fund to be known as the “IPDES Program Fund,” which shall consist of all moneys received from fees collected from facilities obtaining an Idaho pollutant discharge elimination system (IPDES) permit or coverage under a general permit pursuant to section 39-175C(2), Idaho Code, and the rules promulgated pursuant thereto. Such fees shall be collected by the department and shall be paid into the IPDES program fund, which is hereby established, reserved, set aside, appropriated and made available until expended, used and administered consistent with this section.
2. All moneys deposited in the IPDES program fund and all interest earned thereon shall be kept in the IPDES program fund and shall be expended pursuant to appropriation for the costs and expenses incurred by the department in performing the duties and the exercise of its powers in carrying out the IPDES program including, but not limited to, compliance, training, technical, legal and administrative support and proceedings necessary for implementing the program required under the IPDES program as provided in this chapter.
3. Pending such expenditure and use, surplus moneys in the IPDES program fund established in this section shall be invested by the state treasurer in the manner provided for idle state moneys in the state treasury by section 67-1210, Idaho Code. Interest earned on all such investments shall be paid into the IPDES program fund.

§ 39-176A. Legislative findings and purpose.

1. The legislature finds that:
   1. A domestic supply of phosphate fertilizers is critical to our nation’s food security and Idaho’s agricultural economy;
   2. The production of phosphoric acid is a key ingredient in phosphate fertilizers and, given Idaho’s rich supply of phosphate rock, the state is home to phosphoric acid production facilities;
   3. Phosphogypsum is a calcium sulfate by-product produced by the reaction of sulfuric acid with phosphate rock to produce phosphoric acid and is disposed of and placed in phosphogypsum stacks near phosphoric acid production facilities;
   4. The United States congress and the environmental protection agency exempted certain high-volume, low-toxicity solid wastes, including phosphogypsum and process water from phosphoric acid production, from regulation as a hazardous waste under subtitle C of the resource conservation and recovery act (42 U.S.C. 6901 et seq.), as amended; and
   5. To both facilitate and encourage the continued manufacturing of phosphate fertilizers, and to benefit the surface water and groundwater environmental resources, the legislature recognizes the need for the department of environmental quality to develop a program to assure the proper design and construction of phosphogypsum stacks and phosphogypsum stack systems.
2. Therefore, it is the intent of the legislature to authorize the board of environmental quality to initiate negotiated rulemaking consistent with the requirements of sections 39-176A through 39-176F, Idaho Code.

§ 39-176B. Scope and applicability.

1. Nothing in this chapter shall be construed as superseding, amending, or modifying the mineral processing waste exemption provided in 40 CFR 261.4(b) (7) and IDAPA 58.01.05.005, for process wastewater and phosphogypsum from phosphoric acid production.
2. Nothing in this chapter is intended to supersede or modify any existing agreement with or approvals from the environmental protection agency or the department of environmental quality relating to the construction of a phosphogypsum stack, phosphogypsum stack system, or component thereof.
3. The requirements in sections 42-1710 through 42-1721, Idaho Code, shall not apply to phosphogypsum stacks and phosphogypsum stack systems.
4. This chapter establishes minimum design and construction requirements to ensure that phosphogypsum stack system impoundments meet critical safety standards and do not cause unplanned releases into the environment.

§ 39-176C. Definitions.

Wherever used or referred to in sections 39-176A through 39-176F, Idaho Code, unless a different meaning clearly appears from the context:

1. “Auxiliary holding pond” (AHP) means a lined storage pond typically used to hold process wastewater for the purpose of increasing system storage above that otherwise provided by a collection pond or ponds.
2. “Board” means the Idaho board of environmental quality.
3. “Lateral expansion” means a horizontal expansion of the waste boundaries of an existing phosphogypsum stack system.
4. “Leachate” means liquid or drainable pore water that has passed through or emerged from phosphogypsum and that may be collected within the phosphogypsum stack system or in a seepage collection drain.
5. “Operator” means any person or persons, any partnership, limited partnership, corporation, or any association of persons, either natural or artificial, that own, control, or direct the management of a phosphogypsum stack.
6. “Phosphogypsum” means calcium sulfate and by-products produced by the reaction of an acid, such as sulfuric acid or fluoride acid, with phosphate rock to produce phosphoric acid.
7. “Phosphogypsum stack” means any defined geographic area associated with a phosphoric acid production facility in which phosphogypsum and process wastewater from phosphoric acid production are disposed of or stored, other than within a fully enclosed building, container, or tank.
8. “Phosphogypsum stack system” means the defined geographic area associated with the phosphoric acid production facility in which phosphogypsum and process wastewater are disposed of or stored together, including all components such as pumps, piping, ditches, drainage, conveyances, water control structures, collection ponds, cooling ponds, decant ponds, surge ponds, auxiliary holding ponds, and any other collection or conveyance system associated with the transport of phosphogypsum from the plant to the phosphogypsum stack, its management at the stack, and the process wastewater return to phosphoric acid production to the phosphogypsum stack. This includes toe drain systems and ditches and other leachate collection systems, but does not include conveyances within the confines of the fertilizer production plant or emergency diversion impoundments used in emergency circumstances caused by power outages or rainfall events.
9. “Process wastewater” means process wastewater from phosphoric acid production operations.

§ 39-176D. Board powers.

In addition to the other duties and powers of the board prescribed by law, the board is granted and shall be entitled to proceed with negotiated rulemaking and adopt rules consistent with the requirements of sections 39-176A through 39-176F, Idaho Code, regarding the construction and lateral expansion and the management of phosphogypsum stacks and phosphogypsum stack systems and other such rules as may be necessary to carry out the intent and purposes of sections 39-176A through 39-176F, Idaho Code.

§ 39-176E. Construction requirements for new phosphogypsum stacks — Lateral expansions of existing phosphogypsum stacks.

Any operator desiring to construct a new phosphogypsum stack, a material component thereof, or a lateral expansion shall submit to the department of environmental quality for review and approval prior to commencing construction a design and construction plan, including construction quality control, that includes minimum design and construction requirements to control and minimize the movement of waste and waste constituents into the environment. Plans and specifications submitted to satisfy the requirements of sections 39-176A through 39-176F, Idaho Code, shall be certified by a registered professional engineer. The minimum design requirements include the following features and standards:

1. Run-on and runoff controls for the phosphogypsum stack systems for the collection, control, and treatment, as needed, of run-on and runoff from the systems;
2. Liner and leachate control systems that achieve the following minimum design standards:
   1. Phosphogypsum stacks shall be constructed atop a composite liner or approved alternative of equivalent hydraulic conductivity and durability. Liners shall be constructed of materials that have appropriate physical, chemical, and mechanical properties to prevent failure;
   2. All liner and leachate control system components shall have appropriate quality control and quality assurance standards, specifications, and procedures for construction.
   3. Phosphogypsum stacks shall have a leachate control system. Any leachate emanating from a phosphogypsum stack system shall be routed to a collection pond, such as a decant pond or similar water structure, to be contained within the system or recirculated to the production plant, or, if discharged, treated if required to meet applicable water quality and discharge requirements. Collection ponds shall be constructed with a composite liner or an approved alternative of equivalent hydraulic conductivity and durability;
   4. Auxiliary holding ponds shall be designed with a synthetic liner or an approved alternative of equivalent hydraulic conductivity and durability; and
   5. Process wastewater conveyances shall be constructed with a liner or pipe.
3. Perimeter dikes that shall incorporate minimum design standards for freeboard, safety, and slope stability design factors, construction methods, and other related parameters. Appropriate quality control and quality assurance standards, specifications, and procedures for perimeter dike construction shall be implemented;
4. Any lateral expansion must be constructed in accordance with the same requirements as a new phosphogypsum stack. Except for incidental deposits of phosphogypsum entrained in the process wastewater, or conditioned phosphogypsum used as a cushion layer against rock slope, placement of phosphogypsum outside the phosphogypsum stack footprint is considered a lateral expansion; and
5. A groundwater monitoring plan.

§ 39-176F. Plan — Approval or rejection by department.

1. Upon receipt by the department of environmental quality of a design and construction plan submitted by an operator, the department shall have ninety (90) days to review the plan.
2. Upon determination by the department that a design and construction plan submitted by an operator meets the requirements of this section, the department shall deliver to the operator, in writing, a notice of approval of such plan, and thereafter said plan shall govern and determine the nature and extent of the obligations of the operator for compliance with sections 39-176A through 39-176F, Idaho Code, with respect to the phosphogypsum stack system for which the plan was submitted.
3. If the department determines that a design and construction plan fails to fulfill the requirements of this section, it shall deliver to the operator, in writing, a notice of rejection of the plan and shall set forth in said notice of rejection the reasons for such a finding. Upon receipt of said notice of rejection, the operator may submit amended plans within forty-five (45) days. The department shall have sixty (60) days to review an amended plan. Upon further determination by the department that the amended plan does not fulfill the provisions of sections 39-176A through 39-176F, Idaho Code, it shall deliver to the operator, in writing, a notice of rejection of the amended plan in the same manner as provided for rejection of the original plan.
4. A notice of rejection may be appealed by the operator to the board.
5. The time periods in this section may be adjusted if agreed to by both the department and the operator.
6. A construction completion report shall be submitted to the department within ninety (90) days of completion of construction activities. The report shall include final record drawings and conformance of construction to the approved design and construction plan, including construction quality control plans for phosphogypsum stack components.
7. The board may require a fee sufficient for the review and approval of plans and associated documents required by this section.

§ 39-201 — 39-210. Jurisdiction of department of public welfare — Local registration districts — Local registrars — Dead bodies — Stillborn children — Death certificates — Burial permits — Disinterment. [Repealed.]

§ 39-211. [Amended and redesignated.]

§ 39-212. Duties of sexton. [Repealed.]

§ 39-213. Transportation of bodies of persons dying of certain diseases

Diseases. [Repealed.]

§ 39-214 — 39-217. Registration of births — Duties of physicians and midwives — Certificates of birth — Given names. [Repealed.]

§ 39-218. [Amended and redesignated.]

§ 39-219 — 39-221. Affidavit of legitimation — Correction of certificates of birth, death and marriage. [Repealed.]

§ 39-222 — 39-234. Registration of physicians, midwives, and undertakers — Statistical records and forms — Compensation of local registrars — Fees — Penalties — County recorder — Fees — Failure to perform duties — Punishment. [Repealed.]

§ 39-235 — 39-239. [Reserved.]

VITAL STATISTICS ACT

§ 39-240. Short title — Legislative findings.

1. This act shall be known and may be cited as the “Idaho Vital Statistics Act.”
2. The legislature finds:
   1. As early as 1632, government officials began tracking vital statistics, specifically births, deaths, and marriages;
   2. Today, state and local vital records offices record over eleven million (11,000,000) vital events annually in the United States;
   3. Material facts included in vital records include the date of birth, the individual’s sex, the location of birth, the parents’ identities, and the date of death;
   4. The purpose of documenting factual information on vital records is to help the government fulfill one of its most basic duties: protecting the health and safety of its citizens;
   5. Numerous courts have recognized that the purpose of vital records is to maintain an accurate database of factual information regarding births, deaths, and other vital events in a given jurisdiction. See Sea v. U.S. Citizenship & Immigration Servs. , 2015 WL 5092509, at *4 (D. Minn. Aug. 28, 2015) (“The public does have an interest in having accurate records on vital Statistics. . .)”; Ampadu v. U.S. Citizenship & Immigration Servs., Dist. Dir. , 944 F. Supp. 2d 648, 655 (C.D. Ill. 2013) (acknowledging ”the public’s interest in having accurate records on vital statistics“); Boiko v. Holder , 2013 WL 709047, at *2 (D. Colo. Feb. 26, 2013) (”[T]he government, and the public at large, would appear to benefit from having the most accurate vital statistics records possible.“); J.R. v. Utah , 261 F. Supp. 2d 1268, 1294 (D. Utah 2002) (”The State also has a significant interest in the accuracy of the records it keeps, particularly vital records like birth certificates.“);
   6. According to the national research council committee on national statistics, factual information contained in vital records is used to help diagnose and solve problems that impact national health, including tracking and diagnosing disparities in mortality rates based on age and sex, identifying factors that account for the significant differences in life expectancy between males and females, measuring and seeking solutions to socioeconomic inequalities in health based on sex and age, and studying infant death rates based on sex, location, birth weight, and other information collected from vital records;
   7. Factual information from vital records is also necessary for national security. It is used to identify potential disease epidemics, such as the zika virus, that may disproportionately impact one sex over the other; expose covert bioterrorist attacks, such as determining whether a sudden increase in certain symptoms in a population is due to random chance or should be further investigated; and identify criminals and terrorists, where vital records can be used to uncover fraudulently obtained driver’s licenses or passports; and (h) Allowing individuals to alter their vital records, including birth certificates, based upon subjective feelings or experiences undermines the government’s interest in having accurate vital records.

§ 39-241. Definitions.

For the purposes of this chapter and this chapter only, the following terms shall be construed to have the meanings hereinafter set forth:

1. “Adoptive parent” means an adult who has become a parent of a child through the legal process of adoption.
2. “Advanced practice registered nurse” means a registered nurse licensed in this state who has gained additional specialized knowledge, skills and experience as defined in section 54-1402, Idaho Code, and includes the following four (4) roles: certified nurse midwife; clinical nurse specialist; certified nurse practitioner; and certified registered nurse anesthetist as defined by the applicable board of nursing rule.
3. “Board” means the Idaho state board of health and welfare.
4. “Certified copy” means the reproduction of an original vital record by typewritten, photographic or electronic means. Such reproductions, when certified by the state registrar, shall be used as the original.
5. “Consent” means a verified written statement which has been notarized.
6. “Dead body” means a lifeless human body or such parts of the human body or the bones thereof from the state of which it reasonably may be concluded that death occurred.
7. “Director” means the director of the department of health and welfare.
8. “Fetal death” means death prior to the complete expulsion or extraction from its mother of a product of human conception, irrespective of the duration of pregnancy; the death is indicated by the fact that after such expulsion or extraction, the fetus does not breathe or show any other evidence of life such as beating of the heart, pulsation of the umbilical cord, or definite movement of voluntary muscles.
   1. “Induced termination of pregnancy (induced abortion)” means the purposeful interruption of pregnancy with an intention other than to produce a live-born infant or to remove a dead fetus and which does not result in a live birth.
   2. “Spontaneous fetal death” means the expulsion or extraction of a product of human conception resulting in other than a live birth and which is not an induced termination of pregnancy.
9. “Identifying information” includes the following information:
   1. The name of the qualified adoptee before placement in adoption;
   2. The name and address of each qualified birthparent as it appears in birth records;
   3. The current name, address and telephone number of the qualified adult adoptee; and
   4. The current name, address and telephone number of each qualified birthparent.
10. “Live birth” means the complete expulsion or extraction from its mother of a product of human conception, irrespective of the duration of pregnancy, which, after such expulsion or extraction, breathes, or shows any other evidence of life such as beating of the heart, pulsation of the umbilical cord, or definite movement of voluntary muscles, whether or not the umbilical cord has been cut or the placenta is attached. Heartbeats are to be distinguished from transient cardiac contractions; respirations are to be distinguished from fleeting respiratory efforts or gasps.
11. “Person in charge of interment” means any person who places or causes to be placed a stillborn fetus or dead body or the ashes of the same, after cremation, in a grave, vault, urn, or other receptacle, or otherwise disposes thereof. (12) “Physician” means a person legally authorized to practice medicine and surgery, osteopathic medicine and surgery or osteopathic medicine in this state as defined in section 54-1803, Idaho Code.
12. “Physician” means a person legally authorized to practice medicine and surgery, osteopathic medicine and surgery or osteopathic medicine in this state as defined in section 54-1803, Idaho Code.
13. “Physician assistant” means any person who is a graduate of an acceptable training program and who is otherwise qualified to render patient services as defined in section 54-1803, Idaho Code.
14. “Qualified adult adoptee” means an adopted person eighteen (18) years of age or older who was born in Idaho.
15. “Qualified adult birth sibling” means a genetic, biological, or natural brother or sister or half-brother or half-sister, eighteen (18) years of age or older.
16. “Qualified birthparent” means a genetic, biological, or natural parent whose rights were voluntarily or involuntarily terminated by a court or otherwise. “Birthparent” includes a man who is the parent of a child prior to the termination of parental rights.
17. “Record” means the original certificate of an event and any replacement thereof filed for record by virtue of authority contained in this chapter, as well as instruments of any nature provided by this chapter as a means of effecting replacement of certificates.
18. “Registrar” means the state registrar of vital statistics or a designated representative.
19. “Relative” includes only an individual’s spouse, birthparent, adoptive parent, sibling, or child who is eighteen (18) years of age or older.
20. “Stillbirth” means a spontaneous fetal death of twenty (20) completed weeks gestation or more, based on a clinical estimate of gestation, or a weight of three hundred fifty (350) grams (twelve and thirty-five hundredths (12.35) ounces) or more.
21. “Vital statistics” includes the registration, preparation, transcription, collection, compilation and preservation of data pertaining to births, adoptions, legitimations, deaths, stillbirths, induced terminations of pregnancy, marital status and data incidental thereto.
22. “Voluntary adoption registry” or “registry” means a place where eligible persons, as described in section 39-259A, Idaho Code, may indicate their willingness to have their identity and whereabouts disclosed to each other under conditions specified in section 39-259A, Idaho Code.

(f) In respect to form and nature of contents, such a new birth certificate shall be identical with a birth certificate issued to natural parents for the birth of a child, except that the adoptive parents shall be shown as parents and the adopted person shall have the name assigned by the decree of adoption as shown on the report of adoption. In a case where a single person adopts another person, any new birth certificate may designate the adopting parent as adoptive.

§ 39-242. Duties of director.

The director shall:

1. Establish a vital statistics unit with suitable offices properly equipped for the preservation of its official records;
2. Install statewide system of vital statistics;
3. Supervise and require the enforcement of this chapter and the regulations of the board made pursuant thereto. The board is authorized to adopt, amend and repeal regulations for the purpose of carrying out the provisions of this chapter, in accordance with chapter 52, title 67, Idaho Code.

§ 39-244. Duties of state registrar.

The state registrar, under the direction of the director, shall:

1. Have charge of the vital statistics unit;
2. Be official custodian of all its files and records;
3. Perform the duties prescribed by law and the regulations of the board;
4. Have supervisory power over local vital statistics registration and local registration officers;
5. Enforce this chapter and regulations of the board; and
6. Have the authority to delegate portions of the vital records responsibility to the duly appointed local registrar(s).

§ 39-245. Certificate forms.

The form of certificates used under the provisions of this chapter shall be prescribed by the director and shall include as a minimum the items required by the respective standard certificates as recommended by the national agency in charge of vital statistics; provided, however, that the provisions of section 39-1005, Idaho Code, shall be given effect on a certificate to which that section is applicable.

§ 39-245A. Certificates of birth — Material facts included — Amendments.

1. 1. The legislature finds that: (1)(a) The legislature finds that:
      1. There is a compelling interest in maintaining accurate, quantitative, biology-based material facts on Idaho certificates of birth that provide material facts fundamental to the performance of government functions that secure the public health and safety, including but not limited to identifying public health trends, assessing risks, conducting criminal investigations, and helping individuals determine their biological lineage, citizenship, or susceptibility to genetic disorders;
      2. The equal protection clause of the fourteenth amendment to the United States constitution prohibits purposeful discrimination, not facially neutral laws of general applicability, such as a biology-based definition of sex that has been consistently applied since our nation’s founding;
      3. Decades of court opinion have upheld the argument that biological distinctions between male and female are a matter of scientific fact, and biological sex is an objectively defined category that has obvious, immutable, and distinguishable characteristics;
      4. Identification of biological sex on a birth certificate impacts the health and safety of all individuals. For example, the society for evidence based gender medicine has declared that the conflation of sex and gender in health care is alarming, subjects hundreds of thousands of individuals to the risk of unintended medical harm, and will greatly impede medical research;
      5. Vital statistics are defined in section 39-241(21), Idaho Code, as data, being the plural of datum, which is a known fact;
      6. Idaho certificates of birth are of an evidentiary character and prima facie evidence of the facts recited therein, according to section 39-274, Idaho Code;
      7. Age and sex, unlike the names of natural parents whose rights have been terminated, are legally applicable facts fundamental to the performance of public and private policies and contracts;
      8. The failure to maintain accurate, quantitative vital statistics and legal definitions upon which the government and others may with confidence rely constitutes a breach of the public trust; and
      9. The government has a compelling interest in maintaining the public trust and confidence and a duty to fulfill, to the best of its ability, those functions that rely on accurate vital statistics.
   2. Based on the findings in paragraph (a) of this subsection, the legislature directs that an Idaho certificate of birth shall document specific quantitative, material facts at the time of birth, as provided in subsection (2) of this section.
   3. Is signed by:
   4. Is signed by the physician or other person in attendance who provided the medical information and certified to the facts of birth; and
   5. Declares that the information contained on the certificate of birth incorrectly represents a material fact at the time of birth.
2. Any certificate of birth issued under the provisions of this chapter shall include the following quantitative statistics and material facts specific to that birth: time of birth, date of birth, sex, birth weight, birth length, and place of birth.
3. For purposes of this chapter, “sex” means the immutable biological and physiological characteristics, specifically the chromosomes and internal and external reproductive anatomy, genetically determined at conception and generally recognizable at birth, that define an individual as male or female.
4. The quantitative statistics and material facts identified in subsection (2) of this section may be amended within one (1) year of the filing of the certificate by submitting to the registrar a notarized affidavit of correction that: (a) Is on a form prescribed by the registrar;
   1. The parents identified on the certificate of birth; or
   2. The child’s legal guardian;
5. In those instances in which an individual suffers from a physiological disorder of sexual development and the individual’s biological sex cannot be recognized at birth as male or female based upon externally observable reproductive anatomy, the physician shall make a presumptive determination of the individual’s sex, which may thereafter be amended based on the appropriate combination of genetic analysis and evaluation of the individual’s naturally occurring internal and external reproductive anatomy as provided in section (4) of this section.
6. Notwithstanding any provision of this section to the contrary, a hospital may correct a birth certificate for a clerical or data entry error at any time by submitting a notarized affidavit on a form specified by the registrar with any appropriate supporting documentation.

After one (1) year, the quantitative statistics and material facts identified in subsection (2) of this section may be challenged in court only on the basis of fraud, duress, or material mistake of fact, with the burden of proof upon the party challenging the acknowledgment.

§ 39-246. Local registration districts.

The director shall establish registration districts and change the boundaries of the same from time to time which shall conform to political subdivisions, or combinations or parts thereof.

§ 39-247. Local registration officers.

The state registrar shall appoint local registration officers for such registration districts as are established by the director. Such local registration officers shall meet the qualifications fixed by the board, and shall perform such duties as are required by the chapter and the regulations of the board.

§ 39-248. Other employees.

The director shall provide such assistants as the vital statistics unit may require and determine the compensation and duties of persons thus employed.

§ 39-249. Transmittal of certificates and local records.

Local registration officers shall transmit all certificates filed with them to the state registrar in accordance with the regulations of the board. Complete and accurate copies of all certificates shall be made by the local registrar for local records purposes.

§ 39-250. Completion and correction of certificates — Procedure — Other alterations prohibited.

A certificate of any event shall be completed, corrected, amended or otherwise altered after being filed with the vital statistics unit only in accordance with this chapter and rules promulgated by the board.

1. A certificate that is amended under the provisions of this section shall be marked “amended,” except as otherwise provided in this section. The date of amendment and a summary description of the evidence submitted in support of the amendment shall be filed with or made a part of the record. The department shall prescribe by rule the conditions under which additions or minor corrections may be made to certificates or records within one (1) year after the date of the event without the certificate being marked “amended.”
2. Upon receipt of a notarized voluntary acknowledgment of paternity, the state registrar shall amend the certificate of birth to show such paternity if paternity is not already shown on the certificate of birth, and change the child’s surname to that of the father, if both parents so request. Such certificate shall not be marked “amended.”
3. Upon receipt of both a notarized affidavit of nonpaternity signed by the husband attesting that he is not the father, and a notarized acknowledgment of paternity signed by the mother and the alleged father attesting that the alleged father is the father, the state registrar shall amend the certificate of birth to show such paternity, and change the child’s name, if so requested by the mother and the alleged father. Such certificate shall not be marked “amended.”
4. Upon receipt of a certified copy of an order of a court of competent jurisdiction changing the name of a person born in this state and upon request of such person or the parent(s), guardian, or legal representative, the state registrar shall amend the certificate of birth to show the new name.
5. When an applicant does not submit the minimum documentation required in the rules for amending a vital record in a manner otherwise permitted by rule, or when the state registrar has reasonable cause to question the validity or adequacy of the applicant’s sworn statements or the documentary evidence, and if the deficiencies are not corrected, the state registrar shall not amend the vital record and shall advise the applicant of the reason for this action and shall further advise the applicant of the right to petition a court of competent jurisdiction for an order establishing the facts necessary to make the requested amendment.
6. If an acknowledgment of paternity or affidavit of nonpaternity is rescinded pursuant to section 7-1106, Idaho Code, and the certificate of birth had been prepared or amended in accordance with the acknowledgment, the state registrar shall not release any copies of the certificate of birth except as required for a legal proceeding until a court order determining paternity has been provided to the state registrar. If the mother was married at the time of either conception or birth, or between conception and birth, the court shall also determine if the husband is the father of the child.

§ 39-251. Compensation of local registrars.

Each local registrar shall be paid a fee to be established by regulations adopted by the board, for:

1. each certificate returned by the local registrar to the state registrar in accordance with the provisions of this chapter and the regulations of the board; and
2. each report of no certificate filed during any calendar month. The board may establish a graduated scale for the payment of fees to local registrars, either by limiting the aggregate amount of fees to be paid or by graduating the fees according to the number of registrations.

§ 39-252. Fee for copies, searches and other services — Death certificates.

1. The state registrar shall be entitled to receive a fee of thirteen dollars ($13.00) for the making of certified copies of records or for a search of the files when no copies are made, provided that the national agency in charge of vital statistics may obtain copies or certifications of data from records without payment of fees, provided that the state incurs no expense in connection therewith. The fee shall be reviewed by the board of health and welfare, and future changes in the fee and enactment of fees for other services shall be established by rules adopted by the board.
2. For each certified copy of a death certificate there shall be charged an additional fee of one dollar ($1.00) to be deposited in the state treasurer’s local government investment pool, a fund hereby created for the Idaho state association of county coroners. Such moneys shall be used for the training of newly elected coroners and for the continuing education of county coroners and their deputies.

§ 39-253. Accounting for fees.

Fees received from the certifications of such records, from a search of the files or for other services shall be accounted for as prescribed by the state controller.

§ 39-254. Payment of fees to local registration officers.

All amounts payable to local registrars under the provisions of this chapter shall be paid by the respective treasurers of the incorporated city or county in which the registration district is situated out of the general fund of such incorporated city or county, upon certification by the state registrar. The state registrar shall certify to the auditors of the various counties and cities, not less than semiannually, or at such other regular times as may be deemed expedient, the names of the local registrars and the amounts due each at the rates fixed by the board by regulations promulgated pursuant to section 39-251, Idaho Code.

§ 39-255. Registration of births.

A certificate of each birth which occurs in this state shall be filed with the local registrar of the district in which the birth occurs, or as otherwise directed by the state registrar, within fifteen (15) days of the date of birth. No certificate shall be deemed complete until every item of information required shall have been provided or its omission satisfactorily accounted for.

1. When a birth occurs in an institution or en route thereto, the person in charge of the institution or a designated representative shall obtain the personal data, prepare the certificate, secure the signatures required, and file the certificate within fifteen (15) days of the date of birth. The physician or other person in attendance shall provide the medical information required by the certificate and certify to the facts of birth. When the physician, or other person in attendance, is physically unable to certify to the facts of birth within the time prescribed in this section, the person in charge of the institution may complete and sign the certificate.
2. When a birth occurs outside an institution, the certificate shall be prepared and filed by:
   1. The physician or other person in attendance at or immediately after such birth; or
   2. When no physician or other person is present at or immediately after such birth: the father, or in the event of the death, disability or absence of the father, the mother; or in the event of the death or disability of the mother, the householder or owner of the premises where the birth occurred.
3. The father, mother or guardian shall verify the facts entered on the certificate by their signature.
4. When a birth occurs on a moving conveyance within the United States and the child is first removed from the conveyance in this state, the birth shall be registered in this state and the place where the child is first removed shall be considered the place of birth. When a birth occurs on a moving conveyance while in international air space or in a foreign country or its air space and the child is first removed from the conveyance in this state, the birth shall be registered in this state, but the certificate shall show the actual place of birth insofar as can be determined.
5. 1. If the mother was married at the time of either conception or birth, or between conception and birth, the name of the husband shall be entered on the certificate as the father of the child, unless: (e)(1) If the mother was married at the time of either conception or birth, or between conception and birth, the name of the husband shall be entered on the certificate as the father of the child, unless:
      1. Paternity has been determined otherwise by a court of competent jurisdiction; or
      2. The husband has executed an affidavit of nonpaternity attesting that he is not the father, the mother has executed an acknowledgment of paternity attesting that the alleged father is the father, and the alleged father has executed an acknowledgment of paternity attesting that he is the father. Affidavits may be joint or individual or a combination thereof, and each signature shall be individually notarized. In such event, the alleged father shall be shown as the father on the certificate.
   2. If the mother was not married at the time of either conception or birth, or between conception and birth, the name of the father shall not be entered on the certificate without a notarized voluntary acknowledgment of paternity.
   3. In any case in which paternity of a child is determined by a court of competent jurisdiction, the name of the father and surname of the child shall be entered on the certificate of birth in accordance with the finding and order of the court. (4) If the father is not named on the certificate of birth, no other information about the father shall be entered on the certificate.

§ 39-256. Registration of foundlings.

A foundling certificate shall be filed for each child of unknown parentage within fifteen (15) days of the time the child was found and in the form prescribed by the board. The certificate shall be prepared by the person assuming custody of the child and shall be filed with the local registrar of the district in which the child was found. Such certificate shall be acceptable for all purposes in lieu of a certificate of birth.

§ 39-257. Marriage of natural parents of person born in Idaho — Judicial determination of parentage of person born in Idaho — New birth certificates — Procedure.

When a person born in Idaho has been legitimated by the subsequent marriage of said person’s natural parents and immediately assumes or is assigned a name other than is shown on the recorded birth certificate, the birth certificate of such person may be replaced by a new and conventional certificate (prepared and filed by the state registrar), reflecting the name so assumed or assigned, upon proper application therefor filed by such legitimated person or the parents or one of them, but no one else. Such application shall be in writing and shall be accompanied by a copy of the relevant marriage certificate (if there was one issued and regardless of where it was issued), certified by the issuer or recorder of the same, and, in any event, an affidavit of each of the spouses, factually indicating such parentage, the time and place of the marriage, the identity of the child concerned and the child named in the original birth certificate and giving the assumed or assigned name of the child, which instruments shall be filed of record along with the old birth certificate, but separate from any replacement issued hereunder (which shall be filed separately).

When a person born in Idaho has had said person’s natural parentage finally determined by an Idaho court, the court shall require the preparation of a report of paternity on a form prescribed and furnished by the state registrar. The report shall include such facts as necessary to complete the amended birth certificate and be certified by the clerk of the court. If a court of some other state issued a decree or report of paternity, the state registrar may prepare and file a new and conventional birth certificate for that person, reflecting the name(s) of the parent(s) and the child’s new name, if applicable, upon application made by that person or either or both of the persons adjudged to be the natural parent(s), or that person’s guardian, but no one else. This application shall be accompanied by a certified copy of the court decree in question and an affidavit of one (1) person factually indicating that the decree involves the same person that the original birth certificate involved. These instruments shall be filed of record along with the old birth certificate, but separate from any replacement issued hereunder (which shall be filed separately).

It shall be the duty of each clerk of court in the state of Idaho to file with the state registrar certified copies of each final decree of paternity determination made by that court within fifteen (15) days after each of such decrees becomes final. Such certified copies of such decrees and all other instruments mentioned in this section, except any replacement certificate, are confidential and shall not be revealed to any person other than the registrant, if of age, the parents or the duly appointed legal representative of any of them, or upon court order issued in the interest of justice.

§ 39-258. Adoption of persons born in Idaho — New birth certificate issued to replace original certificate — Procedure — Adoption proceedings not open to inspection with certain exceptions — Duties of the clerks of courts issuing adoption decrees — Duties of state registrar of vital statistics.

1. Whenever a final decree of adoption, issued by an Idaho court, declares a person born in Idaho to be adopted by someone other than his or her natural parents, the court shall require the preparation of a report (denominated as a certificate in accordance with Idaho court rules) of adoption on a form prescribed and furnished by the state registrar. The report shall include such facts as are necessary to locate and identify the certificate of birth of the person adopted; shall provide information necessary to establish a new certificate of birth for the person adopted; and shall identify the order of adoption and be certified by the clerk of the court.
2. Information necessary to prepare the report of adoption shall be furnished by each petitioner for adoption or the petitioner’s attorney. The provision of such information shall be prerequisite to the issuance of a final decree in the matter of the court.
3. The report of adoption shall, within fifteen (15) days after becoming final, be recorded by the clerk of the court with the vital statistics unit in the state department of health and welfare.
4. If a court of some other state issued a decree or report of adoption of a person actually born in Idaho, the certified copy or report may be similarly filed by the person involved or by the adoptive parents. Failure to file certified copies or reports of said decrees within said period of time, however, shall not bar issuance of a new birth certificate as hereinafter provided. This copy of said decree or report shall be filed with and remain a part of the records of the vital statistics unit.
5. Upon receipt by the vital statistics unit of the certified report of adoption, a new certificate of birth shall be issued (but only in cases where such person’s birth is already recorded with the vital statistics unit) bearing among other things the name of the person adopted, as shown in the report of adoption, except that a new certificate of birth shall not be established if so requested by the court decreeing the adoption, the adoptive parents, or the adopted person. No such birth certificate shall have reference to the adoption of said person. Such birth certificate shall supplant and constitute a replacement of any birth certificate previously issued for said person and shall be the only birth certificate open to public inspection.

Provided however, upon good cause shown and the affidavit of the adoptive parents that a diligent search has been made, but no certificate of birth for the adoptive child can be located, the magistrate judge may order the adoptive child examined, at the expense of the adoptive parents, by a doctor of medicine licensed by the state of Idaho. The examination will be conducted pursuant to rules promulgated by the state board of health and welfare for the purpose of determining those matters required for the issuance of an original birth certificate. Upon the examination of the doctor made pursuant to the rules of the state board of health and welfare, the court may order the vital statistics unit to issue an original birth certificate for the adoptive child based upon those facts determined by the examination and included in the court’s order. In such case a certified copy of the court order shall be provided to the vital statistics unit. (f) In respect to form and nature of contents, such a new birth certificate shall be identical with a birth certificate issued to natural parents for the birth of a child, except that the adoptive parents shall be shown as parents and the adopted person shall have the name assigned by the decree of adoption as shown on the report of adoption. In a case where a single person adopts another person, any new birth certificate may designate the adopting parent as adoptive.

(g) Whenever an adoption decree is amended, annulled or rescinded, the clerk of the court shall forward a certified copy of the amendment, annulment or rescindment to the vital statistics unit in accordance with the time provisions in subsection (c) of this section. Unless otherwise directed by the court, the vital statistics unit shall amend the certificate of birth upon receipt of a certified copy of an amended decree of adoption. Upon receipt of a certified copy of a decree of annulment or rescindment of adoption, the original certificate of birth shall be restored to its place in the files and the new certificate and evidence shall not be subject to inspection except upon order of a court of record of this state.

(h) All records and information specified in this section other than a new birth certificate issued hereunder, and all records, files and information of any court in this state relating to adoption proceedings, shall not be open to inspection except as provided in section 39-259A, Idaho Code, or upon the order of a court of record of this state; provided however, that the provisions of section 16-1616, Idaho Code, to the contrary notwithstanding, any magistrate judge may furnish a certified copy of a decree of adoption to any duly authorized agency of the United States or the state of Idaho without procuring any prior court order therefor.

§ 39-259. Adoption of persons born in foreign countries.

1. When it appears from a final decree of adoption issued by an Idaho court that a person born in a foreign country has been adopted in Idaho by someone other than the person’s natural parents, the court shall require the preparation of a report (denominated as a certificate in accordance with Idaho court rules) of adoption on a form prescribed and furnished by the state registrar. The report shall contain evidence from sources determined to be reliable by the court as to the true or probable date and place of birth and parentage of such person; shall provide information necessary to establish a new certificate of birth for the person adopted; and shall identify the order of adoption and be certified by the clerk of the court. Upon receipt by the state registrar of vital statistics of the report of adoption, the state registrar of vital statistics shall make and file a new birth certificate for the child when requested to do so by the court decreeing the adoption, the adoptive parents, or the adopted person. The new birth certificate shall show the true or probable foreign country (and city, town, village or other local designation, if known) of birth and the true or probable date of birth as established by the court and shown on the court report of adoption, the child’s new name and parentage as stated in the report of adoption, and any other necessary facts as required by the state registrar. This birth certificate shall not be evidence of United States citizenship. The form and content of the certificate of foreign birth shall be established by the director.
2. All records and information specified in this section other than a new birth certificate issued hereunder, and all records, files and information of any court in this state relating to adoption proceedings, shall not be open to inspection except as provided in section 39-259A, Idaho Code, or upon the order of a court of record of this state; provided however, that the provisions of section 16-1616, Idaho Code, to the contrary notwithstanding, any probate court, or the judge thereof, may furnish a certified copy of a decree of adoption to any duly authorized agency of the United States or the state of Idaho without procuring any prior court order therefor.
3. The report of adoption shall, within fifteen (15) days after becoming final, be recorded by the clerk of the court with the vital statistics unit in the state department of health and welfare.

§ 39-259A. Voluntary adoption registry for providing limited access to birth information of adult adoptees.

1. The state registrar of vital statistics shall establish and maintain a confidential list of qualified adult adoptees who have presented a consent regarding the release of identifying information about themselves. Any consent by a qualified adult adoptee shall be accompanied by the adoptee’s desired method of notification in the event that a match occurs; however, the state shall not incur costs of notification in excess of that part of the fee charged to the applicant for the purpose of notification. Any consent shall also indicate whether the qualified adult adoptee desires release of his identifying information if a match occurs after his death. The qualified adult adoptee may revise his consent with respect to change of address or method of notification. Any name and accompanying information shall be removed from the list upon the verified written request of the listed adoptee. The registrar shall maintain a closed record of such list and accompanying information, except as provided in accordance with the provisions of this section.
2. The state registrar of vital statistics shall establish and maintain a confidential list of qualified birthparents who have presented a consent regarding the release of identifying information about themselves. Any consent by a qualified birthparent shall be accompanied by the birthparent’s desired method of notification in the event that a match occurs; however, the state shall not incur costs of notification in excess of that part of the fee charged to the applicant for the purpose of notification. Any consent shall also indicate whether the qualified birthparent desires release of his identifying information if a match occurs after his death. The qualified birthparent may revise his consent with respect to change of address or method of notification. Any name and accompanying information shall be removed from the list upon the verified written request of the listed birthparent. The registrar shall maintain a closed record of such list and accompanying information, except as provided in accordance with the provisions of section 39-258(h), and subsections (b), (c) and (d) of section 39-259, Idaho Code. Any birthparent who, in terminating his parental rights, used an alias and this alias is listed in the original sealed birth certificate, may also file a consent with the registry. A birthparent shall not be matched with a qualified adult adoptee without the consent of the other birthparent unless:
   1. There is only one (1) birthparent listed on the birth certificate; or
   2. The other birthparent is deceased; or
   3. The other birthparent is unable to be located by the department of health and welfare or by a licensed child placement agency designated by the department of health and welfare, after a search, which shall consist, at a minimum, of a certified letter to the other birthparent at the last known address and a newspaper advertisement made in the county of the last known address; such search to be completed within ninety (90) days and the cost of said search to be fully funded and completed by the birthparent seeking a match; said search to be in accordance with the rules and regulations promulgated by the department.
3. The state registrar of vital statistics shall establish and maintain a confidential list of qualified adult birth siblings who have presented a consent regarding the release of identifying information about themselves. Any consent by a qualified birth sibling shall be accompanied by the birth sibling’s desired method of notification in the event that a match occurs; however, the state shall not incur costs of notification in excess of that part of the fee charged to the applicant for the purpose of notification. Any consent shall also indicate whether the qualified birth sibling desires release of his identifying information if a match occurs after his death. The qualified birth sibling may revise his consent with respect to change of address or method of notification. Any name and accompanying information shall be removed from the list upon the verified written request of the listed birth sibling. The registrar shall maintain a closed record of such list and accompanying information, except as provided in accordance with the provisions of sections 39-258(h) and 39-259(b), Idaho Code, and this section.
4. The state registrar shall maintain a confidential list of relatives of deceased qualified adult adoptees and relatives of deceased qualified birthparents who have presented a consent regarding the release of identifying information about themselves. Any consent by such relative shall be accompanied by the person’s desired method of notification in the event that a match occurs; however, the state shall not incur costs of notification in excess of that part of the fee charged to the applicant for the purpose of notification. Such relative may revise his consent with respect to change of address or method of notification. Any name and accompanying information shall be removed from the list upon the verified written request of the listed relative. The state registrar shall maintain a closed record of such list and accompanying information, except as provided in accordance with the provisions of this section.
5. The state registrar shall regularly review the lists provided for in subsections (a), (b), (c) and (d) of this section, and any other nonsealed administrative files or records within the office to determine if there is a match. If it appears that a match has occurred, then and only then is the registrar authorized to proceed to confirm the match through recourse to sealed documents on file in the office of the registrar. When a match is confirmed, the registrar shall notify each party, by its designated method only, prior to an exchange of identifying information. Nothing in this section shall be construed to allow any state or local governmental department, agency, or institution, or any employee thereof, to solicit any consent for the release of identifying information.
6. When a match is made and both the adopted person and the birthparent or parents, submit to the state registrar a notarized request for a copy of the original birth record of the adopted person, the state registrar shall issue such copy, marked “NOT FOR OFFICIAL USE”, at the usual cost of certificate copies.
7. Nothing in this section shall be construed to allow the registrar to issue a copy of the original birth certificate to any registrant, except as provided for in subsection (f) of this section.
8. Except upon order of a court of record of this state and notwithstanding any other provision of law, the information acquired by the registry shall not be disclosed under its public records law, sunshine or freedom of information legislation, rules or practice.
   1. The initial fee to be charged each person requesting that his name be placed on the list provided for in subsections (a), (b), (c) and (d) of this section, and for the services provided by the registrar in establishing and implementing the registry pursuant to this section, shall be ten dollars ($10.00). Except for the cost of the search described in subsection (b)(3) of this section, the fee shall cover all direct and indirect costs incurred pursuant to this section. The state board of health and welfare shall annually review the fees and expenses incurred pursuant to this section and, as needed, adjust the fees charged to cover the expenses of administering the provisions of this section. History.

§ 39-260. Registration of deaths and stillbirths.

1. A certificate of each death which occurs in this state shall be filed with the local registrar of the district in which the death occurs, or as otherwise directed by the state registrar, within five (5) days after the occurrence. However, the board shall, by rule and upon such conditions as it may prescribe to assure compliance with the purposes of the vital statistics act, provide for the filing of death certificates without medical certifications of cause of death in cases in which compliance with the applicable prescribed period would result in undue hardship; but provided, however, that medical certifications of cause of death shall be provided by the certifying physician, physician assistant, advanced practice registered nurse or coroner to the vital statistics unit within fifteen (15) days from the filing of the death certificate. No certificate shall be deemed complete until every item of information required shall have been provided or its omission satisfactorily accounted for. When death occurs in a moving conveyance in the United States and the body is first removed from the conveyance in this state, the death shall be registered in this state and the place where the body is first removed shall be considered the place of death. When a death occurs on a moving conveyance while in international airspace or in a foreign country or its airspace and the body is first removed from the conveyance in this state, the death shall be registered in this state but the certificate shall show the actual place of death insofar as can be determined. If the place of death is unknown but the dead body is found in this state, the certificate of death shall be completed and filed in accordance with this section. The place where the body is found shall be shown as the place of death. If the date of death is unknown, it shall be determined by approximation.
   1. Personal data shall be supplied by the person best qualified to supply them; and
   2. Except as otherwise provided, medical data shall be supplied by the physician, physician assistant or advanced practice registered nurse who attended the deceased during the last illness, who shall certify to the cause of death according to his best knowledge, information and belief within seventy-two (72) hours from time of death. In the absence of the attending physician, physician assistant or advanced practice registered nurse or with said person’s approval the certificate may be completed and signed by said person’s associate, who must be a physician, physician assistant or advanced practice registered nurse, the chief medical officer of the institution in which death occurred, or the physician who performed an autopsy upon the decedent, provided such individual has access to the medical history of the case, views the deceased at or after death, and death is due to natural causes. (2) The person in charge of interment or of removal of the body from the district shall refer the following cases to the coroner who shall make an immediate investigation, supply the necessary medical data, and certify to the cause of death:
2. The person in charge of interment or of removal of the body from the district shall refer the following cases to the coroner who shall make an immediate investigation, supply the necessary medical data, and certify to the cause of death:
   1. When no physician, physician assistant or advanced practice registered nurse was in attendance during the last illness of the deceased;
   2. When the circumstances suggest that the death occurred as a result of other than natural causes; or
   3. When death is due to natural causes and the physician, physician assistant or advanced practice registered nurse who attended the deceased during the last illness or said person’s designated associate who must be a physician, physician assistant or advanced practice registered nurse, is not available or is physically incapable of signing.
3. When a death is presumed to have occurred within this state but the body cannot be located, a death certificate may be prepared by the state registrar upon receipt of an order of a court of record of this state, which shall include the finding of facts required to complete the death certificate. Such a death certificate shall be marked “presumptive” and shall show on its face the date of registration and shall identify the court and the date of decree.
4. Each stillbirth, defined as a spontaneous fetal death of twenty (20) completed weeks gestation or more, based on a clinical estimate of gestation, or a weight of three hundred fifty (350) grams (twelve and thirty-five hundredths (12.35) ounces) or more, which occurs in this state shall be registered on a certificate of stillbirth within five (5) days after delivery with the local registrar of the district in which the stillbirth occurred. All induced terminations of pregnancy shall be reported in the manner prescribed in section 39-261, Idaho Code, and shall not be reported as stillbirths. No certificate shall be deemed complete until every item of information required shall have been provided or its omission satisfactorily accounted for.
   1. When a stillbirth occurs in an institution, the person in charge of the institution or a designated representative shall prepare the certificate, obtain the signature of the physician, physician assistant or advanced practice registered nurse in attendance, except as otherwise provided in subsection (5) of this section, who shall provide the medical data, and forward the certificate to the mortician or person acting as such. In the absence of the attending physician, physician assistant or advanced practice registered nurse or with said person’s approval the certificate may be completed and signed by said person’s associate, who must be a physician, physician assistant or advanced practice registered nurse, the chief medical officer of the institution in which the stillbirth occurred, or the physician who performed an autopsy on the stillborn fetus, provided such individual has access to the medical history of the case and views the fetus at or after stillbirth. The mortician or person acting as such shall provide the disposition information and file the certificate with the local registrar.
   2. When a stillbirth occurs outside an institution, the mortician or person acting as such shall complete the certificate, obtain the medical data from and signature of the attendant at the stillbirth, except as otherwise provided in subsection (5) of this section, and file the certificate. If the attendant at or immediately after the stillbirth is not a physician, physician assistant or advanced practice registered nurse, the coroner shall investigate and sign the certificate of stillbirth.
   3. When a stillbirth occurs in a moving conveyance in the United States and the stillborn fetus is first removed from the conveyance in this state, the stillbirth shall be registered in this state and the place where the stillborn fetus is first removed shall be considered the place of stillbirth. When a stillbirth occurs in a moving conveyance while in international airspace or in a foreign country or its airspace and the stillborn fetus is first removed from the conveyance in this state, the stillbirth shall be registered in this state but the certificate shall show the actual place of stillbirth insofar as can be determined.
   4. When a stillborn fetus is found in this state and the place of stillbirth is unknown, it shall be reported in this state. The place where the stillborn fetus was found shall be considered the place of stillbirth.
   5. The name of the father shall be entered on the certificate of stillbirth as provided by section 39-255, Idaho Code.
5. The person responsible for the preparation or completion of the stillbirth certificate as stated in subsection (4)(a) and (b) of this section shall refer the following cases to the coroner who shall make an immediate investigation, supply the necessary medical data and certify to the cause of stillbirth:
   1. When the circumstances suggest that the stillbirth occurred as a result of other than natural causes, excepting legally induced abortions, as defined by section 39-241, Idaho Code; or
   2. When death is due to natural causes and the physician, physician assistant or advanced practice registered nurse in attendance at or immediately after the stillbirth or said person’s designated associate is not available or is physically incapable of signing.

The person in charge of interment or of removal of the body from the district shall be responsible for obtaining and filing the certificate. Said person shall obtain the required information from the following persons, over their respective signatures:

§ 39-260A. Transportation of dead human bodies. [Repealed.]

§ 39-261. Induced abortion reporting forms — Compilations.

1. The vital statistics unit shall establish an induced abortion reporting form, which shall be used for the reporting of every induced abortion performed in this state. However, no information shall be collected which would identify the woman who had the abortion. Such form shall be prescribed by the department and shall include as a minimum the items required by the standard reporting form as recommended by the national center for health statistics, of the United States department of health and human services.
2. The department of health and welfare shall prepare and keep on permanent file compilations of the information submitted on the induced abortion reporting forms pursuant to such rules and regulations as established by the department of health and welfare, which compilations shall be a matter of public record.

The completed form shall be filed by the attending physician and sent to the vital statistics unit within fifteen (15) days after the end of each reporting month. The submitted form shall be an original, typed or written legibly in durable ink, and shall not be deemed complete until every item of information required shall have been provided or its omission satisfactorily accounted for. Carbon copies shall not be acceptable.

§ 39-262. Registration of marriage — Marriage certificates filed.

Every person who performs a marriage ceremony shall prepare and sign a certificate of marriage in duplicate, one (1) of which shall be given to the parties and the other filed by said person within ten (10) days after the ceremony with the county recorder. Every county recorder shall forward to the state registrar on or before the 15th day of each calendar month the certificates of marriage which were filed with said recorder during the preceding calendar month. The form of certificate of marriage shall be prescribed by the board, in accordance with the provisions of sections 32-401 and 32-402, Idaho Code. No certificate shall be deemed complete until every item of information required shall have been provided or its omission satisfactorily accounted for.

§ 39-263. Marriage license fees.

Every county recorder shall be paid a fee, to be established by regulations adopted by the board, for each marriage certificate recorded with said recorder and forwarded to the state registrar. The recording fee shall be as provided by section 31-3205, Idaho Code.

§ 39-264. Registration of persons authorized to perform marriage ceremony. [Repealed.]

§ 39-265. Registration of divorces — Annulments of marriage.

1. A certificate of each divorce or annulment granted by any court in this state shall be filed by the clerk of the court with the vital statistics unit and shall be registered if it has been completed and filed in accordance with this chapter. The certificate shall be prepared by the petitioner or the petitioner’s legal representative on a form furnished by the state registrar and shall be presented to the clerk of the court with the petition. In all cases the completed certificate shall be prerequisite to the granting of the final decree. No certificate shall be deemed complete until every item of information required shall have been provided or its omission satisfactorily accounted for.
2. Immediately after the decree becomes final, the certificate shall be forwarded by the clerk to the state registrar on the 15th day of the calendar month next succeeding.

§ 39-266. Fee for court clerk.

The clerk of the court shall be paid a fee for each certificate forwarded by the clerk to the state registrar in accordance with the provisions of this chapter and regulations of the board. Said fee to be collected as a part of the court costs and be assessed by the court according to law. Said fee to be established by regulations adopted by the board.

§ 39-267. Delayed registration.

Any certificate required to be filed under this chapter accepted for filing after the time prescribed by the board shall be filed in accordance with the minimum standards prescribed by the national agency in charge of vital statistics.

1. If a delayed certificate of birth is rejected under the provisions prescribed, a petition signed and sworn to by the petitioner may be filed with a court of competent jurisdiction for an order establishing a record of the date and place of birth and the parentage of the person whose birth is to be registered. An order entered following the procedure established in section 39-278, Idaho Code, shall be acceptable evidence for establishing a delayed certificate of birth in the vital statistics unit.
2. If a delayed certificate of death is rejected under the provisions prescribed, a petition signed and sworn to by the petitioner may be filed with a court of competent jurisdiction for an order establishing a record of the date and place of death. An order entered following the procedure established in section 39-278, Idaho Code, shall be acceptable evidence for establishing a delayed certificate of death.

§ 39-268. Authorization for final disposition.

1. The mortician or person acting as such who first assumes possession of a dead body or stillborn fetus shall make a written report to the registrar of the district in which death or stillbirth occurred or in which the body or stillborn fetus was found within twenty-four (24) hours after taking possession of the body or stillborn fetus, on a form prescribed and furnished by the state registrar and in accordance with rules promulgated by the board. Except as specified in subsection (2) of this section, the written report shall serve as permit to transport, bury or entomb the body or stillborn fetus within this state, provided that the mortician or person acting as such shall certify that the physician, physician assistant or advanced practice registered nurse in charge of the patient’s care for the illness or condition which resulted in death or stillbirth has been contacted and has affirmatively stated that said physician, physician assistant or advanced practice registered nurse or the designated associate according to section 39-260(1)(b) or (4)(a), Idaho Code, will sign the certificate of death or stillbirth.
2. The written report as specified in subsection (1) of this section shall not serve as a permit to:
   1. Remove a body or stillborn fetus from this state;
   2. Cremate the body or stillborn fetus; or
   3. Make disposal or disposition of any body or stillborn fetus in any manner when inquiry is required under chapter 43, title 19, Idaho Code, or section 39-260(2) or (5), Idaho Code.
3. In accordance with the provisions of subsection (2) of this section, the mortician or person acting as such who first assumes possession of a dead body or stillborn fetus shall obtain an authorization for final disposition prior to final disposal or removal from the state of the body or stillborn fetus. The physician, physician assistant, advanced practice registered nurse or coroner responsible for signing the death or stillbirth certificate shall authorize final disposition of the body or stillborn fetus, on a form prescribed and furnished by the state registrar. If the body is to be cremated, the coroner must also give additional authorization. In the case of stillbirths, the hospital may dispose of the stillborn fetus if the parent(s) so requests; authorization from the coroner is not necessary unless the coroner is responsible for signing the certificate of stillbirth.
4. When a dead body or stillborn fetus is transported into the state, a permit issued in accordance with the law of the state in which the death or stillbirth occurred or in which the body or stillborn fetus was found shall authorize the transportation and final disposition within the state of Idaho.

§ 39-269. Disinterment — Rules.

No body or stillborn fetus shall be disinterred within the state of Idaho except upon a permit granted by the state registrar of vital statistics. The forms of disinterment permits shall be prepared by the state registrar. Disinterment and removal must be done under the personal supervision of a licensed mortician, and only upon verified application of the person or persons having the highest authority under the provisions of section 54-1142, Idaho Code. Only such persons as are actually necessary shall be present. The coffin shall not be opened either at place of disinterment or place of destination, except special permit be issued by the state registrar. And in case of disinterment of bodies dead by reason of contagious and infectious diseases, as shown by the certificate of death given by the certifying physician or coroner, the sexton and all other persons engaged in such removal or being present shall immediately thereafter change and disinfect their clothing and properly disinfect their hands, head and face, provided, that such disinterment may also be governed by rules promulgated by the state board of health and welfare and a synopsis of the same shall be printed on the back of every permit. In case of any contagious and infectious disease where remains are to be shipped to points in other states, permission must first be obtained from the state health officer of such state. The state registrar may also issue a special disinterment permit for legal purposes. This permit for legal purposes shall be granted only upon application of a prosecuting attorney, the attorney general of this state, or the coroner of the county in which the body is interred, stating therein such facts which make it evident to the state registrar that the ends of justice require that disinterment be permitted. Such special disinterment for legal purposes shall be governed by rules promulgated by the state board of health and welfare and a synopsis of the same shall be printed on the back of every such special disinterment permit for legal purposes. Bodies in a receiving vault when prepared by a licensed mortician shall not be regarded as disinterred bodies until after the expiration of thirty (30) days.

§ 39-270. Disclosure of information.

1. Certificates and records in the custody of the state registrar shall be open to inspection subject to the provisions of this chapter and the rules of the board, the provisions of section 74-102, Idaho Code, to the contrary notwithstanding; and it shall be unlawful for any state or local official or employee under this chapter to disclose any data contained in the records, except as authorized by this chapter and the rules of the board.
2. A complete copy, or any part of a certificate, may be issued to any applicant who can show direct and tangible interest in the record for which he applies. A complete copy, or any part of a certificate, shall be issued upon request to a state, federal or local public agency for child support enforcement purposes pursuant to chapters 10, 11 and 12, title 7, Idaho Code, and sections 16-1628, 20-524, 32-710A and 56-203, Idaho Code, or for the purpose of investigation of fraud related to benefit payments. Subject to such provisions as the board may prescribe, data contained on records may be used by federal, state or municipal agencies for the purpose of verification of data.
3. As provided in chapter 1, title 74, Idaho Code, data contained on records may be used for research, public health or statistical purposes. No lists of registration shall be compiled for public use.
4. The manner of keeping local records and the use thereof shall be prescribed by the board, in keeping with the provisions of this section.
5. When one hundred (100) years have elapsed after the date of birth, or fifty (50) years have elapsed after the date of death, stillbirth, marriage or divorce, the records of these events in the custody of the state registrar shall become public records and information shall be made available in accordance with chapter 1, title 74, Idaho Code.

§ 39-271. Records of institutions.

Every person in charge of an institution, public or private, to which persons resort for treatment of diseases, confinements, or are committed by law, shall record all the personal and statistical particulars relative to those persons admitted or confined to their institutions that are required on the forms or the certificates prescribed by the board. The record shall be made by them at the time of admission of the patients and at such other times as may be required. The personal and statistical particulars and information shall be obtained from the individuals themselves, if it is practicable to do so, and when they can not be so obtained, they shall be secured in as complete a manner as possible from relatives, friends or other persons acquainted with the facts.

§ 39-272. Duties to provide information.

For the purposes of compilation of the vital record, any person having knowledge of the facts shall furnish to the state registrar such information as they may possess regarding any birth, death, stillbirth, marriage or divorce.

§ 39-273. Penalties.

1. The following acts, if committed unlawfully, purposely and with the intent to deceive, shall be felonies punishable by a fine of not more than five thousand dollars ($5,000) or imprisonment of not more than five (5) years, or both:
   1. furnishing false or fraudulent information affecting any certificate, record or report required by this chapter; or
   2. making, counterfeiting, altering, amending or mutilating of any certificate, record or report, or any certified copy of a certificate, record, or report authorized by this chapter; or
   3. obtaining, possessing, using, selling, or furnishing, or attempting to obtain, possess, use, sell, or furnish, any certificate, record, or report, or certified copy of a certificate, record, or report, which has been unlawfully made, counterfeited, altered, amended, or mutilated; or
   4. furnishing, selling or using any certificate, record or report, or any certified copy of a certificate, record or report, authorized by this chapter for the purpose of misrepresenting the age or identity of a person or misrepresenting the facts relating to a birth, death or adoption.
2. The following acts, if committed with knowledge, recklessness or with criminal negligence, shall be misdemeanors punishable by a fine of not more than one thousand dollars ($1,000) or imprisonment of not more than one (1) year, or both:
   1. except where a different penalty is provided by this section, violating any of the provisions of this chapter or the regulations promulgated pursuant to this chapter by the board; or
   2. neglecting or refusing to perform any of the duties imposed pursuant to this chapter; or
   3. transporting, accepting for transport, interring, or otherwise disposing of a dead body or stillborn fetus without a permit or other authorization issued in accordance with the provisions of this chapter.
3. In addition to the other penalties herein prescribed, any employee or officer of the department who knowingly, recklessly or negligently discloses any information in violation of section 39-270, Idaho Code, shall be subject to immediate dismissal from employment.
4. In addition to any other sanction or penalty authorized by law, the registrar may hereby impose a fine which may not exceed two hundred fifty dollars ($250) for each violation wherein a physician, hospital administrator or his designee, or other birth attendants, or coroner/deputy, or funeral director/mortician fails to sign a birth, or death or stillbirth certificate within fifteen (15) days of the death or within fifteen (15) days of the birth. Notice of intent to impose such fine must be given by the registrar to the alleged violator. Each day that a violation continues following the giving of the notice of intent may constitute a violation and the registrar may impose a fine which may not exceed fifty dollars ($50.00) per day. In determining the amount of any fine to be imposed for a violation, the registrar shall consider the following factors:
   1. the gravity of the violation or extent to which the provisions of the applicable statute or rule were violated;
   2. any action taken by the alleged violator to correct the violation or assure that the violation will not reoccur;
   3. any previous violation.

§ 39-274. Evidentiary character of records and copies of records.

Any certificate filed in accordance with the provisions of this chapter and the regulations prescribed by the board, or any copy of such records or part thereof, duly certified by the state registrar, shall be prima facie evidence of the facts recited therein.

§ 39-275. Applicability.

The provisions of this chapter also apply to all certificates of birth, death, marriage, divorce, stillbirth, and reports of induced abortion previously received by the vital statistics unit and in the custody of the state registrar.

§ 39-276. Uniformity of interpretation.

This chapter shall be so construed as to effectuate its general purpose to make uniform the laws of those states which enact it.

§ 39-277. Autopsies for suspected Creutzfeldt-Jakob disease.

When an attending physician or hospital has reported to the department of health and welfare that Creutzfeldt-Jakob disease (CJD) or variant CJD is suspected in relation to a person’s death, the state epidemiologist, as designated pursuant to department rule, shall cause to be performed an autopsy of the body, provided a definitive diagnosis has not been made prior to death and provided further that the person or persons having the highest authority under the provisions of section 54-1142, Idaho Code, do not refuse the performance of such autopsy. The state epidemiologist, in ordering an autopsy pursuant to this section, shall require the person or entity performing the autopsy to report the findings of such autopsy to the department of health and welfare.

§ 39-278. Procedure for delayed registration or amendment of vital record.

1. Following exhaustion of any administrative procedures or remedies provided by this chapter or by department rule, if an applicant has been denied a request to amend a vital record as provided by section 39-250(5), Idaho Code, or because the item for which an amendment is sought has already been once administratively denied, or if a delayed registration is rejected, including as provided in section 39-267, Idaho Code, the applicant may petition a court of competent jurisdiction of this state for an order establishing the facts necessary to establish or amend a vital record as provided in this section.
2. The petition must be verified and must allege at least:
   1. If the petition is for a delayed registration of birth:
      1. That the person for whom the delayed certificate is requested was born in this state;
      2. That the person’s birth is not registered in another state or country;
      3. That a record for the person’s birth cannot be found in the state’s vital records;
      4. That despite diligent efforts the petitioner was unable to obtain the information and evidentiary documents required for the creation and registration of a delayed certificate of birth;
      5. That the state registrar has issued a final rejection of the application for a delayed certificate of birth; and
      6. The following information:
         1. The original full name and sex of the registrant;
         2. The date of birth and place of birth, including the:
            1. Facility;
            2. City, town or location;
            3. County; and
         3. The full maiden name of the mother; and
         4. The full name of the father, unless the registrant was born out of wedlock.
   2. If the petition is for a delayed registration of death or stillbirth:
      1. That the person for whom the delayed certificate is requested died in this state;
      2. That the person’s death is not registered in another state or country;
      3. That a record for the person’s death cannot be found in the state’s vital records;
      4. That despite diligent efforts the petitioner was unable to obtain the information and evidentiary documents required for the creation and registration of a delayed certificate of death;
      5. That the state registrar has issued a final rejection of the application for a delayed certificate of death; and
      6. The following information:
         1. The full name and sex of the deceased;
         2. The date and place of death, including the:
            1. Facility;
            2. City, town or location;
            3. County; and
         3. For a stillbirth: (A) The full maiden name of the mother; and
   3. If the petition is for another amendment to a vital record, in a manner otherwise permitted by department rule:
      1. The identity of the record registered with the state registrar and the item in the record the petitioner requests to be amended;
      2. The change requested and the purpose of the amendment;
      3. The rule under which the amendment is otherwise permitted; and
      4. That the state registrar has issued a final rejection of the application for the requested amendment and the reason for the rejection.
3. The petitioner must attach all evidentiary documents presented to the registrar and the written final letter of denial or rejection from the registrar.
4. The petitioner must provide a complete copy of the petition, together with notice of the date, time and place of the hearing, by mailing a copy thereof at least fourteen (14) days before the time set for the hearing, by certified, registered or ordinary first class mail, to the state registrar at the address given in the written final letter of denial or rejection. The state registrar or an authorized representative may appear and present evidence at the hearing.
5. If the court finds from the evidence presented that:
   1. The person for whom a delayed certificate of birth is requested was born in this state, it shall make findings as to:
      1. The original full name and sex of the registrant;
      2. The date of birth and place of birth, including the:
         1. Facility;
         2. City, town or location;
         3. County; and
      3. The full maiden name of the mother; and
      4. The full name of the father, unless the registrant was born out of wedlock.
   2. The person for whom a delayed certificate of death is requested died in this state, it shall make findings as to:
      1. The full name and sex of the deceased; and
      2. The date and place of death, including the:
         1. Facility;
         2. City, town or location; and
         3. County.
   3. The person requesting any other amendment to a vital record in a manner otherwise permitted by department rule has established the facts necessary for the amendment and the amendment is otherwise appropriate, it shall make an order amending the item in the vital record as requested.
6. The order of the court shall include a description of the evidence presented and the date of the court’s action.
7. The order of the court shall not alter the fees otherwise required by the registrar for the requested amendment, or the time frames otherwise provided for the registrar to administratively establish or make the amendment requested.

(B) The full name of the father, unless the mother was not married.

§ 39-279. 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.

§ 39-300. Definitions. [Repealed.]

§ 39-301. Declaration of policy.

It is the policy of this state that alcoholics, intoxicated persons or drug addicts may not be subjected to criminal prosecution or incarceration solely because of their consumption of alcoholic beverages or addiction to drugs but rather should be afforded treatment in order that they may lead normal lives as productive members of society.

The legislature hereby finds and declares that it is essential to the health and welfare of the people of this state that action be taken by state government to effectively and economically utilize federal and state funds for alcoholism and drug addiction research, and the prevention and for the treatment and rehabilitation of alcoholics or drug addicts. To achieve this, it is necessary that existing fragmented, uncoordinated and duplicative alcoholism and drug treatment programs be merged into a comprehensive and integrated system for the prevention, treatment and rehabilitation of alcoholics.

The legislature continues to recognize the need for criminal sanctions for those who violate the provisions of the uniform controlled substances act.

§ 39-302. Definitions.

As used in this chapter, the terms defined in this section shall have the following meanings, unless the context clearly indicates another meaning:

1. “Addiction” or “alcoholism” means a primary, chronic, neurobiological disease with genetic, psychosocial and environmental factors influencing its development and manifestations. It is characterized by behaviors that include one (1) or more of the following: impaired control over drug or alcohol use, compulsive use, continued use despite harm, and craving.
2. “Alcoholic” means a person who has the disease of alcoholism, which is characterized by behaviors that include one (1) or more of the following: impaired control over alcohol use, compulsive use, continued use despite harm, and craving.
3. “Approved private treatment facility” means a private agency meeting the standards prescribed in section 39-305(1), Idaho Code, and approved under the provisions of section 39-305(3), Idaho Code, and rules promulgated by the board of health and welfare pursuant to this chapter.
4. “Approved public treatment facility” means a treatment agency operating under the provisions of this chapter through a contract with the department of health and welfare pursuant to section 39-304(7), Idaho Code, and meeting the standards prescribed in section 39-305(1), Idaho Code, and approved pursuant to section 39-305(3), Idaho Code, and rules promulgated by the board of health and welfare pursuant to this chapter.
5. “Department” means the Idaho department of health and welfare.
6. “Director” means the director of the Idaho department of health and welfare.
7. “Drug addict” means a person who has the disease of addiction, which is characterized by behaviors that include one (1) or more of the following: impaired control over drug use, compulsive use, continued use despite harm, and craving.
8. “Incapacitated by alcohol or drugs” means that a person, as a result of the use of alcohol or drugs, is unconscious or has his judgment otherwise so impaired that he is incapable of realizing and making a rational decision with respect to his need for treatment.
9. “Incompetent person” means a person who has been adjudged incompetent by an appropriate court within this state.
10. “Intoxicated person” means a person whose mental or physical functioning is substantially impaired as a result of the use of drugs or alcohol.
11. “Recovery support services” means those ancillary, nonclinical services needed for a client to maintain substance abuse or addiction recovery. These services may include transportation, childcare, drug testing, safe and sober housing and care management.
12. “Substance abuse” means the misuse or excessive use of alcohol or other drugs or substances.
13. “Treatment” means the broad range of emergency, outpatient, intensive outpatient, and inpatient services and care, including diagnostic evaluation, medical, psychiatric, psychological, and social service care, vocational rehabilitation and career counseling, which may be extended to alcoholics and intoxicated persons and/or drug addicts.

§ 39-303. Interagency committee on substance abuse prevention and treatment. [Null and void.]

Null and void, pursuant to S.L. 2006, ch. 407, § 6, effective July 1, 2011.

§ 39-303A. Regional advisory committees. [Repealed.]

Repealed by S.L. 2015, ch. 63, § 1, effective July 1, 2015. For present comparable provisions, see§ 39-3102 et seq.

§ 39-304. Comprehensive program for treatment.

The Idaho department of health and welfare is hereby designated as the state substance abuse authority.

1. The department shall establish a comprehensive and coordinated program for the treatment of alcoholics, intoxicated persons and drug addicts.
2. The program shall include:
   1. Emergency detoxification treatment and medical treatment directly related thereto provided by a facility affiliated with or part of the medical service of a general hospital;
   2. Inpatient treatment;
   3. Intensive outpatient treatment;
   4. Outpatient treatment;
   5. Community detoxification provided by an approved facility; and
   6. Recovery support services.
3. The department shall provide for adequate and appropriate treatment for persons admitted pursuant to section 39-307, Idaho Code. Treatment shall not be provided at a correctional institution except for inmates.
4. The department shall maintain, supervise, and control all facilities operated by it. The administrator of each such facility shall make an annual report of its activities to the director in the form and manner the director specifies.
5. All appropriate public and private resources shall be coordinated with and utilized in the program whenever possible.
6. The department shall prepare, publish and distribute annually a list of all approved public and private treatment facilities.
7. The department may contract for the use of any facility as an approved public treatment facility if the director considers this to be an effective and economical course to follow.
8. The program shall include an individualized treatment plan prepared and maintained for each client.

§ 39-305. Standards for public and private treatment facilities — Enforcement procedures — Penalties.

1. The board of health and welfare shall establish standards for approved treatment facilities, which shall be met in order for a treatment facility to be approved as a public or private treatment facility. The standards shall prescribe the health standards to be met and standards of treatment to be afforded patients.
2. The department shall periodically inspect approved public and private treatment facilities.
3. The department shall maintain a list of approved public and private treatment facilities.
4. Each approved public and private treatment facility shall file with the department any data, statistics, records, and information the department reasonably requires. An approved public or private treatment facility that, without good cause, fails to furnish any data, statistics, records, or information as requested, or that files fraudulent returns thereof, shall be removed from the list of approved treatment facilities.
5. The board of health and welfare, after holding a hearing, may suspend, revoke, limit, or restrict an approval, or refuse to grant an approval, for failure to meet its standards.
6. A district court may restrain any violation of this act, review any denial, restriction, or revocation of approval, and grant other relief required to enforce its provisions.

§ 39-306. Acceptance for treatment — Rules.

The board of health and welfare shall adopt rules for the acceptance of persons into the treatment program, considering available treatment resources and facilities, for the purpose of early and effective treatment of alcoholics, intoxicated persons and drug addicts. In establishing the rules the board shall be guided by the following standards:

1. If possible a patient shall be treated on a voluntary rather than an involuntary basis.
2. A patient shall be initially assigned or transferred to outpatient or intensive outpatient treatment, unless he is found to require inpatient treatment.
3. A person shall not be denied treatment solely because he has withdrawn from treatment against medical advice on a prior occasion or because he has relapsed after earlier treatment.
4. An individualized treatment plan shall be prepared and maintained on a current basis for each patient.
5. Provision shall be made for a continuum of coordinated treatment services, so that a person who leaves a facility or a form of treatment will have available and utilize other appropriate treatment.

§ 39-307. Voluntary treatment of alcoholics and drug addicts.

1. An alcoholic or a drug addict may apply for voluntary treatment directly to any approved public treatment facility. If the proposed patient is a minor or an incompetent person, he, a parent, legal guardian, or other legal representative shall make the application.
2. Subject to rules adopted by the board of health and welfare, the director or his designee may determine who shall be admitted to an approved public treatment facility.
3. If a patient receiving inpatient care leaves an approved public treatment facility, he shall be encouraged to consent to appropriate outpatient or intensive outpatient treatment, and the department shall assist in obtaining supportive services and residential facilities.
4. If a patient leaves an approved public treatment facility, upon the recommendation of departmental staff, the department shall make reasonable provisions for his transportation to another facility or to his home. If he has no home, he shall be assisted in obtaining shelter. If the patient is a minor or an incompetent person, the request for discharge from an inpatient facility shall be made by a parent, legal guardian, or other legal representative or by the minor or incompetent if he was the original applicant.

§ 39-307A. Protective custody.

1. An intoxicated or drug addicted person may come voluntarily to an approved public treatment facility for emergency treatment. A person who appears to be intoxicated in a public place and to be in need of help, if he consents to the proffered help, may be assisted to his home, an approved public treatment facility, an approved private treatment facility, or other health facility by a law enforcement officer.
2. A person who appears to be incapacitated by alcohol or drugs shall be taken into protective custody by a law enforcement officer and forthwith brought to an approved treatment facility for emergency treatment. If no approved treatment facility is readily available he may be taken to a city or county jail where he may be held until he can be transported to an approved treatment facility, but in no event shall such confinement extend more than twenty-four (24) hours. A law enforcement officer, in detaining the person and in taking him to an approved treatment facility, is taking him into protective custody and shall make every reasonable effort to protect his health and safety. In taking the person into protective custody, the detaining officer may take reasonable steps to protect himself. A taking into protective custody under this section is not an arrest. No entry or other record shall be made to indicate that the person has been arrested or charged with a crime.
3. A person who comes voluntarily or is brought to an approved treatment facility shall be examined as soon as possible. He may then be admitted as a patient or referred to another health facility. The referring approved treatment facility shall arrange for his transportation.
4. A person who by examination is found to be incapacitated by alcohol or drugs at the time of his admission or to have become incapacitated at any time after his admission, may not be detained at the facility (1) once he is no longer incapacitated by alcohol or drugs or (2) if he remains incapacitated by alcohol or drugs for more than seventy-two (72) hours after admission as a patient. A person may consent to remain in the facility as long as the person in charge believes appropriate.
5. If a patient is admitted to an approved treatment facility, his family or next of kin shall be notified as promptly as possible. If an adult patient who is not incapacitated requests that there be no notification, his request shall be respected.
6. Law enforcement officers, personnel of the department, and personnel of an alcohol or drug treatment facility who act in compliance with this section are acting in the course of their official duty and are not criminally or civilly liable therefor.
7. If the person in charge of the approved treatment facility determines it is for the patient’s benefit, the patient shall be encouraged to agree to further diagnosis and appropriate voluntary treatment.
8. That any person taken to a seventy-two (72) hour evaluation and treatment facility shall be informed immediately that he has the right to request and take a chemical test in order to ascertain whether he is an intoxicated or addicted person. If the person requests to take the test and the professional person in charge of the facility then determines that the person taken to the facility is not intoxicated or addicted, he shall immediately release him. A record shall be maintained by the facility of the results of the test.

§ 39-308. Records of alcoholics, intoxicated or addicted persons. [Repealed.]

Repealed by S.L. 2015, ch. 63, § 2, effective July 1, 2015.

§ 39-309. Payment for treatment — Financial ability of patients.

1. If treatment is provided by an approved public treatment facility and the patient has not paid the charge therefor, the department is entitled to any income or payment received by the patient or to which he may be entitled for the services rendered, and to any payment from any public or private source available to the department because of the treatment provided to the patient.
2. A patient in an approved treatment facility, or the estate of the patient, or a person obligated to provide for the cost of treatment and having sufficient financial ability, is liable to the department for the cost of transportation, maintenance and treatment of the patient therein in accordance with rates established by the department.
3. The board of health and welfare shall adopt rules and regulations governing financial ability that take into consideration the income, savings and other personal and real property of the person required to pay, as well as any support being furnished by him to any person whom he may be required by law to support.

§ 39-310. Criminal law limitations.

1. With the exception of persons below the statutory age for consuming alcoholic beverages and of persons affected by the provisions of subsection (3) herein, no person shall be incarcerated or prosecuted criminally or civilly for the violation of any law, ordinance, resolution or rule that includes drinking, being a common drunkard, or being found in an intoxicated or addicted condition as one of the elements of the offense giving rise to criminal or civil penalty or sanction.
2. No county, municipality, or other political subdivision may interpret or apply any law of general application to circumvent the provision of subsection (1) of this section.
3. Nothing in this chapter shall affect any law, ordinance, resolution, or rule against drunken driving, driving under the influence of alcohol or drugs, or other similar offense involving the operation of a vehicle, aircraft, boat, machinery, or other equipment, or regarding the sale, purchase, dispensing, possessing, or use of alcoholic beverages or drugs at stated times and places or by a particular class of persons, or regarding the carrying of a concealed weapon when intoxicated or under the influence of an intoxicating drink or drug, or regarding pedestrians who are under the influence of alcohol or drugs to a degree which renders them a hazard and who walk or are otherwise upon a highway except on a sidewalk, or regarding persons who are using or are under the influence of controlled substances or narcotic drugs and who are on public property, roadways or conveyances or on private property open to the public.
4. This chapter shall not limit or alter the terms or effect of section 18-116, Idaho Code.
5. Nothing in this chapter shall affect the enforcement of any other provisions of the uniform controlled substances act.

§ 39-311. Rules and regulations.

The board of health and welfare shall promulgate such rules and regulations as are deemed necessary to carry out the provisions of this act, subject to the provisions of chapter 52, title 67, Idaho Code.

§ 39-312 — 39-314. Disinfection of clothing and bedding — Exclusion of exposed persons from schools or public gathering — Hospital for infectious diseases. [Repealed.]

§ 39-315. Cremation and burial of bodies. [Repealed.]

§ 39-316. Quarantine of cities and counties. [Repealed.]

§ 39-401. Legislative intent.

The various health districts, as provided for in this chapter, are not a single department of state government unto themselves, nor are they a part of any of the twenty (20) departments of state government authorized by section 20, article IV, Idaho constitution, or of the departments prescribed in section 67-2402, Idaho Code.

It is legislative intent that health districts operate and be recognized not as state agencies or departments, but as governmental entities whose creation has been authorized by the state, much in the manner as other single purpose districts. Pursuant to this intent, and because health districts are not state departments or agencies, health districts are exempt from the required participation in the services of the purchasing agent or employee liability coverage, as rendered by the department of administration. However, nothing shall prohibit the health districts from entering into contractural [contractual] arrangements with the department of administration, or any other department of state government or an elected constitutional officer, for these or any other services.

It is legislative intent to affirm the provisions of section 39-413, Idaho Code, requiring compliance with the state merit system, and to affirm the participation of the health districts in the public employee retirement system, pursuant to section 39-426, Idaho Code, chapter 13, title 59, Idaho Code, and chapter 53, title 67, Idaho Code.

It is also legislative intent that the matters of location of deposit of health district funds, or the instruments or documents of payment from those funds shall be construed as no more than items of convenience for the conduct of business, and in no way reflect upon the nature or status of the health districts as entities of government.

This section merely affirms that health districts created under this chapter are not state agencies, and in no way changes the character of those agencies as they existed prior to this act.

§ 39-402 — 39-407. Public health districts — Establishment and regulation. [Repealed.]

§ 39-408. Establishment of districts.

There is hereby established within the state of Idaho seven (7) public health districts more particularly defined as follows:

District No. 1 shall include the counties of Boundary, Bonner, Kootenai, Benewah and Shoshone;

District No. 2 shall include the counties of Latah, Clearwater, Nez Perce, Lewis and Idaho;

District No. 3 shall include the counties of Adams, Washington, Payette, Gem, Canyon and Owyhee;

District No. 4 shall include the counties of Valley, Boise, Ada and Elmore;

District No. 5 shall include the counties of Camas, Blaine, Gooding, Lincoln, Jerome, Minidoka, Twin Falls and Cassia;

District No. 6 shall include the counties of Power, Oneida, Bannock, Franklin, Caribou, Bear Lake, Bingham and Butte;

District No. 7 shall include the counties of Lemhi, Custer, Clark, Jefferson, Bonneville, Teton, Madison and Fremont.

§ 39-409. District health departments — Establishment — Services.

There is hereby created and established in each of the above described public health districts a district health department, hereinafter referred to as the district health department. The district health department shall have as its head the district board of health.

The district health department will provide the basic health services of public health education, physical health, environmental health, and public health administration, but this listing shall not be construed to restrict the service programs of the district health department solely to these categories. Each district shall have a doctor of medicine licensed in Idaho as a staff member or as a regular consultant.

§ 39-410. District board of health — Establishment.

There is hereby created and established in each of the public health districts a district board of health, hereinafter referred to as the district board, which shall be vested with the authority, control, and supervision of the district health department, and with such powers as required to perform the duties as are set forth in this act and shall be responsible for supervision of all district health programs.

§ 39-411. Composition of district board — Qualifications of members — Appointment and removal — Terms — Selection of officers — Board of trustees of district boards of health. [For effective date — See Compiler’s notes.]

1. For those districts comprised of:
   1. Fewer than eight (8) counties, the district board of health shall consist of seven (7) members to be appointed by the boards of county commissioners within each district acting jointly, and each board of county commissioners may appoint a board member.
   2. Eight (8) counties, the district board of health shall consist of not fewer than eight (8) members nor more than nine (9) members, and each board of county commissioners may appoint a board member.
2. Each member of the district board of health shall be a citizen of the United States, a resident of the state of Idaho and the public health district for one (1) year immediately last past, and a qualified elector. One (1) member of the district board, if available to serve, shall be a physician licensed by the Idaho state board of medicine, and no more than one (1) member shall be appointed from any professional or special interest group. All members shall be chosen with due regard to their knowledge and interest in public health and in promoting the health of the citizens of the state and the public health district. Representation shall be assured from rural as well as urban population groups.
3. All appointments to the district board shall be confirmed by a majority vote of all the county commissioners of all the counties located within the public health district. Any member of the district board may be removed by majority vote of all the county commissioners of all the counties located within the district.
4. The members of the district board of health shall be appointed for a term of five (5) years, subject to reappointment; and vacancies on the board for an unexpired term shall be filled for the balance of the unexpired term. Notwithstanding any provision of this section as to term of appointment, if a board member is an appointee for a board of county commissioners, and if that board member is an elected county commissioner and leaves office prior to the expiration of the term on the district board of health, the board of county commissioners may declare the position vacant and may appoint another currently elected county commissioner to fill the unexpired portion of the term of that board member.
5. The members of the district board, each year, shall select a chairman, a vice chairman and a trustee. The trustee shall represent the district board as a member of the board of trustees of the Idaho district boards of health.
6. The board of trustees of the Idaho district boards of health shall have authority to allocate appropriations from the legislature to the health districts. Such authority is limited to the development and administration of formulas for the allocation of legislative appropriations. Any formula adopted by the board of trustees must be in use, without alteration, for at least two (2) years; provided that during the two (2) year period, the formula may be changed if an emergency occurs, the emergency is declared and there is a unanimous vote of the board of trustees to make the emergency formula change. All proceedings of the board of trustees shall be subject to the provisions of chapter 2, title 74, Idaho Code.

§ 39-411. Composition of district board — Qualifications of members — Appointment and removal — Terms — Trustee selected for board of trustees of district boards of health. [For effective date — See Compiler’s notes.]

For those districts comprised of less than eight (8) counties, the district board of health shall consist of seven (7) members to be appointed by the boards of county commissioners within each district acting jointly, and each board of county commissioners may appoint a board member. For those districts comprised of eight (8) counties, the district board of health shall consist of not less than eight (8) members nor more than nine (9) members and each board of county commissioners may appoint a board member. Each member of the district board of health shall be a citizen of the United States, a resident of the state of Idaho and the public health district for one (1) year immediately last past, and a qualified elector. One (1) member of the district board, if available to serve, shall be a physician licensed by the Idaho state board of medicine and no more than one (1) member shall be appointed from any professional or special interest group. All members shall be chosen with due regard to their knowledge and interest in public health and in promoting the health of the citizens of the state and the public health district. Representation shall be assured from rural as well as urban population groups. All appointments to the district board shall be confirmed by a majority vote of all the county commissioners of all the counties located within the public health district. Any member of the district board may be removed by majority vote of all the county commissioners of all the counties located within the district. The members of the district board, each year, shall select a chairman, a vice-chairman and a trustee. The trustee shall represent the district board as a member of the board of trustees of the Idaho district boards of health. The board of trustees of the Idaho district boards of health shall have authority to allocate appropriations from the legislature to the health districts. The board of trustees shall develop and administer a formula for the allocation of legislative appropriations.

§ 39-412. Meetings of the district board — Compensation of members.

The district board shall hold such meetings as may be necessary for the orderly conduct of its business and such meetings may be called upon seventy-two (72) hours’ notice by the chairman or a majority of the members. Four (4) members shall be necessary to constitute a quorum and the action of the majority of members present shall be the action of the board. The members of the board shall be compensated as provided by section 59-509(i), Idaho Code.

§ 39-413. District health director — Appointment — Powers and duties.

A district health director shall be appointed by the district board. The director shall have and exercise the following powers and duties in addition to all other powers and duties inherent in the position or delegated to him or imposed upon him by law or rule, regulation, or ordinance:

1. To be secretary and administrative officer of the district board of health;
2. To prescribe such rules and regulations, consistent with the requirements of this chapter, as may be necessary for the government of the district, the conduct and duties of the district employees, the orderly and efficient handling of business and the custody, use and preservation of the records, papers, books and property belonging to the public health district;
3. To administer oaths for all purposes required in the discharge of his duties;
4. With the approval of the district board to:
   1. Prescribe the positions and the qualifications of all personnel under the district health director on a nonpartisan merit basis in accordance with the objective standards approved by the district board.
   2. Fix the rate of pay and appoint, promote, demote, and separate such employees and to perform such other personnel actions as are needed from time to time in conformance with the requirements of chapter 53, title 67, Idaho Code.
   3. Create such units and sections as are or may be necessary for the proper and efficient functioning of the duties herein imposed.

§ 39-414. Powers and duties of district board.

The district board of health shall have and may exercise the following powers and duties:

1. To administer and enforce all state and district health laws, regulations, and standards.
2. To do all things required for the preservation and protection of the public health and preventive health, and such other things delegated by the director of the state department of health and welfare or the director of the department of environmental quality and this shall be authority for the director(s) to so delegate.
3. To determine the location of its main office and to determine the location, if any, of branch offices.
4. To enter into contracts with any other governmental or public agency whereby the district board agrees to render services to or for such agency in exchange for a charge reasonably calculated to cover the cost of rendering such service. This authority is to be limited to services voluntarily rendered and voluntarily received and shall not apply to services required by statute, rule, and regulations, or standards promulgated pursuant to this act or chapter 1, title 39, Idaho Code.
5. All moneys or payment received or collected by gift, grant, devise, or any other way shall be deposited to the respective division or subaccount of the public health district in the public health district fund authorized by section 39-422, Idaho Code.
6. To establish a fiscal control policy required by the state controller.
7. To cooperate with the state board of health and welfare, the department of health and welfare, the board of environmental quality and the department of environmental quality.
8. To enter into contracts with other governmental agencies, and this act hereby authorizes such other agencies to enter into contracts with the health district, as may be deemed necessary to fulfill the duties imposed upon the district in providing for the health of the citizens within the district.
9. To purchase, exchange or sell real property and construct, rent, or lease such buildings as may be required for the accomplishment of the duties imposed upon the district and to further obtain such other personal property as may be necessary to its functions.
10. To accept, receive and utilize any gifts, grants, or funds and personal and real property that may be donated to it for the fulfillment of the purposes outlined in this act.
11. To establish a charge whereby the board agrees to render services to or for entities other than governmental or public agencies for an amount reasonably calculated to cover the cost of rendering such service.
12. To enter into a lease of real or personal property as lessor or lessee, or other transaction with the Idaho health facilities authority for a term not to exceed ninety-nine (99) years upon a determination by the district board that the real or personal property to be leased is necessary for the purposes of the district, and to pledge nontax revenues of the district to secure the district’s obligations under such leases. For the purposes of this chapter, a public health district is not a subdivision of the state and shall be considered an independent body corporate and politic pursuant to section 1, article VIII, of the constitution of the state of Idaho, and is not authorized hereby to levy taxes nor to obligate the state of Idaho concerning such financing.
13. To administer and certify solid waste disposal site operations, closure, and post closure procedures established by statute or regulation in accordance with provisions of chapter 74, title 39, Idaho Code, in a manner equivalent to the site certification process set forth in section 39-7408, Idaho Code. (14) To select a board member to serve as trustee on the board of trustees of the Idaho district boards of health.

§ 39-414A. Audit of health district finances.

It shall be the duty of each district board of health to cause to be made a full and complete audit of all the financial transactions of the health district no less frequently than every two (2) years. Such audit shall be made by or under the direction of the legislative council, in accordance with generally accepted auditing standards and procedures. The district board of health shall include all necessary expenses for such audit in its budget.

§ 39-415. Quarantine.

The district board shall have the same authority, responsibility, powers, and duties in relation to the right of quarantine within the public health district as does the state.

§ 39-416. Rules adopted by district board — Procedure.

1. The district board by the affirmative vote of a majority of its members may adopt, amend or rescind rules and standards as it deems necessary to carry out the purposes and provisions of this act.
2. Every rule or standard adopted, amended, or rescinded by the district board shall be done in a manner conforming to the provisions of chapter 52, title 67, Idaho Code.
3. At the same time that proposed rules are transmitted to the director of legislative services, they shall be submitted for review and comment to the board of county commissioners of each county within the public health district’s jurisdiction. If the rules relate to environmental protection or programs administered by the department of environmental quality, the rules shall also be submitted for review and comment to the state board of environmental quality. All other rules that do not relate to environmental protection or programs administered by the department of environmental quality shall be submitted for review and comment to the state board of health and welfare. The state board of health and welfare, or the state board of environmental quality, shall, within seventy-five (75) days of receipt of a district board’s proposed rules, disapprove of the adoption of the rules if, on the advice of the attorney general, such rules would be in conflict with state laws or rules. The state board of health and welfare, or the state board of environmental quality, shall immediately advise the district board as to the reason for the disapproval.
4. This section does not apply to measures adopted for the internal operation of the district board or for federal programs where the regulations are established by the federal government but shall apply to all measures affecting the public at large or any identifiable segment thereof.
5. Public health districts shall have all proposed rules regarding environmental protection or programs administered by the department of environmental quality submitted for review and comment to the state board of environmental quality and such rules must be approved by adoption of a concurrent resolution by both houses of the legislature or such rules shall expire at the conclusion of a regular session of the legislature. It is the intent of the legislature that standards and rules relating to subsurface sewage systems, wastewater treatment, sewage systems and water quality be consistent statewide.

§ 39-417. Hearings by district board — Oaths — Witnesses — Subpoenas.

1. Any person, association, public or private agency, corporation, or the district director alleging a violation of this act, the rules promulgated thereunder, or any matter within the jurisdiction of the district board, or any alleged violator thereof, may, pursuant to the provisions of chapter 52, title 67, Idaho Code, and the rules promulgated thereunder by the state board of health and welfare or the board of environmental quality, seek a hearing before the district board and/or such other relief or remedy as is provided or available.
2. The hearings herein provided may be conducted by the district board or by its designated agent and in either case the district board or its agent shall have the same powers and authority set out in subsection (3) of section 39-107, Idaho Code. The provisions of this section shall not apply to the internal administrative affairs of the district board or department nor to its subordinate sections and units.

§ 39-418. Judicial review of district board’s determination — Exclusive procedure.

1. Judicial review of a final determination of the district board may be secured by any person adversely affected thereby by filing a petition for review as prescribed by chapter 52, title 67, Idaho Code, in the district court of the county wherein he lives within thirty (30) days after receipt of notice of the district board’s final determination. The petition for review shall be served upon the district health director and the director of the department of health and welfare of the state of Idaho. The director may appear in any such hearing as a matter of right. Such service shall be jurisdictional and the provisions of this section shall be the exclusive procedure for appeal or review.
2. If no appeal or review is sought within the time prescribed in (1) above, the final determination of the district board shall be conclusive as to factual matters decided therein and not subject to collateral attack in any proceeding to enforce its provisions.

§ 39-419. Violation of public health laws — Misdemeanor — Civil liability for expense.

1. It shall be unlawful for any person, association, or corporation, and the officers thereof to willfully violate, disobey, or disregard the provisions of the public health laws or the terms of any lawful notice, order, standard, rule, regulation, or ordinance issued pursuant thereto; or [.]
2. Any person, association, or corporation, or the officers thereof, violating any of the provisions of this chapter shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine not exceeding three hundred dollars ($300), or by imprisonment in the county jail for a term not exceeding six (6) months, or by both such fine and imprisonment. In addition to fine and imprisonment, any person, association or corporation, or the officers thereof, found to be in violation of this act or the rules promulgated thereunder shall be liable for any expense incurred by the district board of health in enforcing this act, or in removing or terminating any nuisance, source of filth, cause of sickness, or health hazard. Conviction under the penalty provisions of this act or any other health law or rules promulgated thereunder shall not relieve any person from any civil action in damages that may exist for any injury resulting from any violation of the public health laws or rules promulgated by the district board of health.
3. A violator of any law or rule within the jurisdiction of the district shall be liable in an amount not in excess of the limits prescribed in section 39-108, Idaho Code. The district board may seek recovery by commencing an action in the district court of the county wherein the violation occurred. Amounts recovered shall be deposited as required by the provisions of section 39-414(5), Idaho Code.

§ 39-420. Civil actions by district board — Enforcement of act — Abatement of nuisances.

The district board in its name shall commence and maintain all proper and necessary civil actions and proceedings to enforce the provisions of this act and the preservation and protection of the public and is specifically directed to abate nuisances when necessary for the purpose of elimination of sources of filth, infestations, infections, communicable diseases, health hazards, and conditions not compatible with the preservation and protection of the public health. Enforcement of a final determination of the district board shall be commenced by filing an action in the district court, by any party to the board action, the board, or the director, and the introduction of the final determination.

§ 39-421. Special counsel of district board.

The district board is hereby authorized to engage special counsel to defend it and the members in all action and proceedings brought against it or them with respect to their official duties hereunder. In addition, such special counsel may bring any civil action requested by the district board. The special counsel may request the prosecuting attorney of any county within the district for appointment as special prosecutor to assist in prosecuting any alleged violations of any of the provisions of this chapter which occurred within such county. Upon receipt of such request, the prosecutor of such county may forthwith designate the district’s special counsel as special prosecutor to assist in prosecuting the alleged offender, and such special counsel shall have all the powers of a prosecuting attorney while acting as special prosecuting attorney. Compensation of such special counsel for acting as special prosecutor shall be paid by the district and subject to recovery as provided in section 39-419, Idaho Code.

§ 39-422. Public health district fund — Establishment — Divisions — Fiscal officer — Expenditures.

1. There is hereby authorized and established in the state treasury a special fund to be known as the public health district fund for which the state treasurer shall be custodian. Within the public health district fund there shall be seven (7) divisions, one (1) for each of the seven (7) public health districts. Each division within the fund will be under the exclusive control of its respective district board of health and no moneys shall be withdrawn from such division of the fund unless authorized by the district board of health or its authorized agent.
2. The procedure for the deposit and expenditure of moneys from the public health district fund will be in accordance with procedures established between all district boards and the state controller. All income and receipts received by the districts shall be deposited in the public health district fund.
3. Claims against the divisions of the [public] health district fund are not claims against the state of Idaho. Claims against an individual health district are limited to that district’s division moneys.

§ 39-423. Budget committee of public health district.

The chairmen of the boards of county commissioners located within the public health district are hereby constituted as the budget committee of the public health district.

The district board will submit to the budget committee by the first Monday in June of each year the preliminary budget for the public health district and the estimated cost to each county, as determined by the provisions of section 39-424, Idaho Code.

On or before the first Monday in July, there will be held at a time and place determined by the budget committee a budget committee meeting and public hearing upon the proposed budget of the district. Notice of the budget committee meeting and public hearing shall be posted at least ten (10) full days prior to the date of said meeting in at least one (1) conspicuous place in each public health district to be determined by the district board of health. A copy of such notice shall also be published in the official newspaper or a generally circulated newspaper of each county of such public health district, in one (1) issue thereof, during such ten (10) day period. The place, hour and day of such hearing shall be specified in said notice, as well as the place where such budget may be examined prior to such hearing. A summary of such proposed budget shall be published with and as a part of the publication of such notice of hearing in substantially the form required by section 31-1604, Idaho Code.

On or before the first Monday in July a budget for the public health district shall be agreed upon and approved by a majority of the budget committee. Such determination shall be binding upon all counties within the district and the district itself.

§ 39-424. Cost of maintenance of district — Apportionment to member counties.

The manner of apportioning the contributions of the counties as part of the budget of the health district, created pursuant to section 39-423, Idaho Code, shall be as follows:

1. Seventy percent (70%) of the amount to be contributed by the counties shall be apportioned among the various counties within the health district on the basis of population. The proportion of the total population of each county as compared to the total population of the health district shall be the proportion by which such county shall share in the contribution of county funds for the maintenance of the health district, pursuant to this subsection. The population will be determined by the last general census when applicable. When a general census number is not applicable, population shall be estimated for each county by the state department of commerce and such estimated population number shall be certified to each health district by not later than April 1.
2. Thirty percent (30%) of the amount to be contributed by the counties shall be apportioned among the counties within the district on the basis of taxable market value for assessment purposes. The proportion of the total taxable market value for assessment purposes of each county as compared to the total taxable market value for assessment purposes of the health district shall be the proportion by which such county shall share in the contribution of funds for the maintenance of the health district, pursuant to this subsection. Total taxable market value for assessment purposes shall mean the total taxable market value for assessment purposes as computed by the county assessor for the preceding full calendar year. Taxable market value for each county shall be certified to the health districts by the state tax commission for the preceding year.

§ 39-425. General state aid to districts — Procedures.

1. Every year, the districts shall submit a request to the legislature for money to be used to match funds contributed by the counties pursuant to section 31-862, Idaho Code, for the maintenance and operation of district health departments. The matching amount to be included in the request shall be a minimum of sixty-seven percent (67%) of the amounts pledged by each county, as adopted as part of the budget for the health districts during the budget formulations, as provided for in section 39-423, Idaho Code. If the determined amount of participation by a county would exceed the amount which could be raised applying the maximum levy prescribed in section 31-862, Idaho Code, that county’s participation shall be reduced to the maximum amount which can be raised thereby.
2. The foregoing provision shall not limit the legislature from authorizing or granting additional funds for selected projects in excess of the percentage of participation of general aid granted all health districts.
3. General state aid to the various health districts shall be made available from state appropriations, and shall be distributed in the following manner:
   1. The amount appropriated to the health districts shall be divided based upon the formula developed and administered by the board of trustees of the Idaho district boards of health.
   2. One-half (½) of the amount appropriated shall be remitted to the public health trust fund on or before July 15; and
   3. The remaining one-half (½) of the amount appropriated shall be remitted to the public health trust fund on or before January 15.
4. The liability of the state of Idaho to the public health districts and the public health district fund and its divisions is limited to:
   1. The funds actually authorized and granted to the various public health districts as provided in subsection (1) of this section; and
   2. The funds actually authorized or granted to the various public health districts as provided for in subsection (2) of this section; and
   3. The funds due the various health districts in payment of legally authorized contracts and agreements entered into between the departments of the state of Idaho and the various public health districts.
5. If revenues to the state treasury are insufficient to fully meet appropriations, and reductions in spending authority have been ordered pursuant to law, the amount of moneys to match revenues contributed by the counties, pursuant to section 39-423, Idaho Code, which has been appropriated pursuant to this section, shall be reduced by the same percentage rate as other general account appropriations.

§ 39-426. Public employees retirement system.

All public health districts shall budget sufficient funds to allow for participation in the Idaho public employees retirement system as created by chapter 13, title 59, Idaho Code.

§ 39-427. Reporting of children suspected of having severe auditory and/or visual impairment. [Repealed.]

§ 39-501. Purpose.

The protection of ground water quality is essential for life, health and furthering matters of commerce. Multiple public agencies have regulatory jurisdiction over various aspects of everyday human activity that can and do pose risks to vital underground water supplies. Enforcement of current rules and regulations, implementation of educational programs, and inspection of potential sources of pollution require funding beyond the budgets of agencies charged with these responsibilities. The coordination of work by public agencies to assist in the prevention of degradation of valuable ground water can be a cost-effective alternative to after the fact remediation of a degraded resource. Certain ground water quality problems cannot be remedied, only prevented. The purposes of establishing an aquifer protection district include protection of the state’s economy, maintaining a water supply that does not require extensive treatment prior to human consumption or commercial use, avoiding the economic costs of remedial action, and protecting the well-being of communities that depend upon aquifers for essential human needs.

§ 39-502. Governing board.

For purposes of this chapter, the term “governing board” means the board of county commissioners of a county creating, or participating in, an aquifer protection district or multicounty aquifer protection district.

§ 39-503. Aquifer protection district authorized.

1. In counties where a state designated sensitive resource aquifer has been declared as prescribed by rules of the department of environmental quality, and such designation was made prior to the enactment of this act, the board of county commissioners of any such county may, upon petition, hold an election for establishment of, or participation in, an aquifer protection district as authorized by this chapter.
2. A multicounty aquifer protection district may be established by a joint powers agreement as authorized by chapter 23, title 67, Idaho Code, provided all participating counties have held elections and voted in favor of establishment of, or participation in, an aquifer protection district. Every reference to a county in this chapter may be applicable to the multiple counties that participate in a multicounty aquifer protection district.
3. An aquifer protection district is a political subdivision of the state of Idaho subordinate to the county or counties in which it is formed. The governing board of an aquifer protection district is authorized to provide coordination and funding for aquifer protection activities carried out by county government, other political subdivisions, state agencies, and private individuals or interests. The boundaries of an aquifer protection district shall conform as nearly as practicable to boundaries of the subject aquifer, the aquifer’s recharge areas, and areas that may be dependent upon the aquifer as a source of water.

§ 39-504. Petitions — Elections — Modification — Dissolution — Authority.

1. The establishment of, or participation in, an aquifer protection district may be initiated by the filing of a petition signed by not fewer than fifty (50) qualified electors of any county in which an eligible aquifer is located and who reside within the boundaries of the proposed aquifer protection district. The petition shall be filed with the county clerk of the county in which the signers of the petition are resident. The petition shall designate the proposed boundaries of the aquifer protection district.
2. Upon the filing of the petition, the county clerk shall promptly examine the petition and certify whether the required number of qualified petitioners have signed the petition. If the number of petition signers is sufficient, the county clerk shall transmit the certified petition to the board of county commissioners.
3. Upon receipt of a duly certified petition the board of county commissioners shall give notice of an election to be held, which election shall be held at the same time as the primary or general election, in such proposed district for the purpose of determining whether or not the proposed district shall be established or whether or not the county shall participate in a district. Such notice shall include the date and hours of the election, the polling places, the general purposes of the proposed district, a description of lands to be included in the proposed district, and a statement that a map of the proposed district is available in the office of the board of county commissioners. The notice shall be published once each week for three (3) consecutive weeks prior to such election in a newspaper of general circulation within the county.
4. The election shall be held and conducted consistent with the provisions of chapter 14, title 34, Idaho Code. The board of county commissioners shall appoint three (3) judges of election, one (1) of whom shall act as clerk for the election. At such election the electors shall vote for or against the establishment of, or participation in, the district.
5. The judges of election shall certify the returns of the election to the board of county commissioners. If a majority of the votes cast at said election are in favor of the establishment of, or participation in, the district, the board of county commissioners shall declare the district established and give it a name by which, in all proceedings, it shall thereafter be known.
6. Procedures for boundary modification or dissolution of a district created pursuant to this section shall be in substantial compliance with the provisions for petition and election provided in this section.
7. In the event a board of county commissioners declares a district established pursuant to the procedures prescribed by this section, the district shall be recognized as a legally established political subdivision of the state of Idaho. Unless otherwise limited by law, districts are authorized to work with and across the boundaries of all political subdivisions of the state of Idaho that are wholly or partially located within the external boundaries of the established aquifer protection district. Providing protection of a state-designated sensitive resource aquifer is a governmental function.

§ 39-505. Governance — Powers and duties.

In addition to powers and duties otherwise set forth in this chapter, governing boards shall have the following powers and duties:

1. To contract with public agencies and private individuals or entities to carry out district responsibilities and accomplish purposes of the district.
2. To apply for and receive grants to carry out aquifer protection district purposes.
3. To sue and be sued, and be a party to suits, actions and proceedings.
4. Except as otherwise provided in this chapter, to enter into contracts and agreements, cooperative and otherwise, affecting the affairs of the district, including contracts with the United States of America, the state of Idaho and any of its agencies or instrumentalities, public or private corporations, municipalities and other governmental subdivisions, and to cooperate with any one (1) or more of these entities to achieve the purposes of the district.
5. To borrow money, provided however, that borrowing shall be limited to the Idaho water resource board revolving development fund pursuant to section 42-1756, Idaho Code.
6. To have the management, control and supervision of all business and affairs of the district.
7. To hire and retain agents, consultants and professional advisers concerning district matters.
8. To fix, and from time to time to increase or decrease, aquifer protection fees or charges for services or facilities furnished by the district, for the payment of any current charges or indebtedness of the district.
9. To adopt and amend resolutions not in conflict with the constitution and laws of the state for carrying on the business, objectives and affairs of the board and of the district.
10. To have and exercise all rights and powers necessary or incidental to or implied from the specific powers granted herein. Such specific powers shall not be considered as a limitation upon any power necessary or appropriate to carry out the purposes and intent of this chapter.

§ 39-506. Powers not granted.

An aquifer protection district shall have no independent regulatory powers and no power to levy taxes. Such restriction shall not otherwise limit the police powers of the board of county commissioners.

§ 39-507. Policy and budget advisory committee.

Subsequent to formation of an aquifer protection district, and as it regards the aquifer protection district, the governing board shall appoint a policy and budget advisory committee comprised of not less than nine (9) nor more than eleven (11) members. The policy and budget advisory committee shall be comprised of residents of the aquifer protection district boundaries with the following characteristics:

1. A representative of a municipal domestic water provider;
2. A representative of a water district;
3. A representative of an irrigation district;
4. A representative of a private water system;
5. A representative of a well recognized business organization;
6. A representative of a well recognized environmental organization;
7. A representative of the agricultural community;
8. A hydrologist or engineer; and
9. A citizen consumer.

The responsibilities of the policy and budget advisory committee shall include making recommendations to the governing board for work program elements, proposing methods of cooperation among public agencies with regulatory jurisdiction concerning aspects of aquifer protection, developing an aquifer protection budget recommendation to forward to the governing board and carrying out such other aquifer protection activities as the governing board, resident and committee member interest, and appropriated budget allow. In addition to the budget hearing required by section 39-508, Idaho Code, the budget and policy advisory committee shall conduct at least one (1) public hearing during each fiscal year to solicit public comment regarding aquifer protection needs. Notice of such hearing shall, at a minimum, comply with the standards for legislative hearings as provided by law. Any vacancies on the policy and budget advisory committee shall be filled in the same manner as the initial appointment.

§ 39-508. Aquifer protection district funds — Fees — Budget.

1. Funds received and expended in the name of an aquifer protection district shall be budgeted, managed and audited in the same manner as funds of a county. Any such revenues and expenditures shall be accounted for separate from other county funds. The reasonable expenses of managing aquifer protection district fiscal and legal affairs are legitimate costs of district operation and use of county systems for fee collection is authorized hereby. The fiscal year for an aquifer protection district shall conform to the fiscal year for counties.
2. Fees reasonably related to the actual cost of services rendered by an aquifer protection district may be charged to owners of land benefitted by the availability of water from the aquifer to be protected by the district. The maximum fee authorized per dwelling unit shall not exceed twelve dollars ($12.00) annually. The maximum charge for nonresidential uses shall not exceed twice the maximum authorized residential fee, and such nonresidential fee shall be established and calculated in a manner that is roughly proportional to aquifer use or other measure of benefits derived from protection of the aquifer.
3. Each fiscal year the budget and policy advisory committee shall conduct a public budgetary process, including at least one (1) public hearing concerning a proposed aquifer protection district budget, before recommending a proposed budget to the governing board. Any such recommendation shall be transmitted to the governing board prior to the date of advertising the annual county budget hearing. The budget for an aquifer protection district shall be considered by the governing board in the course of its annual budget process. An aquifer protection district shall follow the financial accountability standards and limitations applicable to counties.

§ 39-601. Venereal diseases enumerated.

Syphilis, gonorrhea, human immunodeficiency virus (HIV), chlamydia and hepatitis B virus (HBV), hereinafter designated as venereal diseases, are hereby declared to be contagious, infectious, communicable and dangerous to public health; and it shall be unlawful for anyone infected with these diseases or any of them to knowingly expose another person to the infection of such diseases.

§ 39-601A. Policy on expenditures.

It is the intent of the legislature that governmental authorities shall be required to provide those services authorized or mandated by law for treatment or testing for the diseases enumerated in section 39-601, Idaho Code, only to the extent of funding and available resources appropriated.

§ 39-602. Report of venereal disease to health authorities.

Any physician or other person who makes a diagnosis of or treats a case of venereal disease, and any superintendent or manager of a hospital, dispensary or charitable or penal institution, in which there is a case of venereal disease, shall immediately make a report of such case to the department of health and welfare, according to such form and manner as the state board of health and welfare shall direct.

§ 39-603. Examination, treatment, and quarantine — Repression of prostitution.

State, county and municipal health officers, or their authorized deputies, within their respective jurisdiction, are hereby directed and empowered, when in their judgment it is necessary to protect the public health, to make examinations, or have examinations made by competent physician, of persons reasonably suspected of being infected with venereal disease, and to require persons infected with venereal disease to report for treatment to a reputable physician and continue treatment until cured, or to submit to treatment provided at public expense until cured, and also, when in their judgment it is necessary to protect the public health, to isolate or quarantine persons affected with venereal disease. It shall be the duty of all local and state health officers to investigate sources of infection of venereal diseases, to cooperate with the proper officials whose duty it is to enforce laws directed against prostitution, and otherwise to use every proper means for the repression of prostitution.

§ 39-604. Confined and imprisoned persons — Examination, treatment, and quarantine — Victims of sexual offenses — Access to offenders’ test results, testing for HIV, counseling and referral services.

1. All persons who shall be confined or imprisoned in any state prison facility in this state shall be examined for on admission, and again upon the offender’s request before release, and, if infected, treated for the diseases enumerated in section 39-601, Idaho Code, and this examination shall include a test for HIV antibodies or antigens. This examination is not intended to limit any usual or customary medical examinations that might be indicated during a person’s imprisonment. Nothing herein contained shall be construed to interfere with the service of any sentence imposed by a court as a punishment for the commission of crime. Nothing contained in this section shall be construed to impose upon any state prison facility an obligation to continue to treat a person who tested positive for any disease enumerated in section 39-601, Idaho Code, or be financially responsible for such treatment after the person is released from the state prison facility.
2. All persons who shall be confined in any county or city jail may be examined for and, if infected, treated for the venereal diseases enumerated in section 39-601, Idaho Code, if such persons have, in the judgment of public health authorities or the jailer, been exposed to a disease enumerated in section 39-601, Idaho Code.
3. All persons who are charged with any sex offense in which body fluid, as defined in this chapter, has likely been transmitted to another shall be tested for the human immunodeficiency virus (HIV). At the request of the victim or parent, guardian or legal custodian of a minor victim, such test shall be administered not later than forty-eight (48) hours after the date on which the information or indictment is presented.
4. All persons, including juveniles, who are charged with sex offenses, prostitution, any crime in which body fluid has likely been transmitted to another, or other charges as recommended by public health authorities shall be tested for the venereal diseases enumerated in section 39-601, Idaho Code, and for hepatitis C virus.
5. All persons who are charged with any crime involving the use of injectable drugs shall be tested for the presence of HIV antibodies or antigens, for hepatitis C virus and for hepatitis B virus.
6. If a person is tested as required in subsection (3), (4) or (5) of this section, the results of the test shall be revealed to the court. The court shall release the results of the test to the victim(s), or if the victim(s) is a minor, to the minor’s parent, guardian or legal custodian. Whenever a prisoner tests positive for HIV antibodies or antigens, the victim(s) of said prisoner shall be entitled to counseling regarding HIV, HIV testing in accordance with applicable law, and referral for appropriate health care and support services. Said counseling, HIV testing and referral services shall be provided to the victim(s) by the district health departments at no charge to the victim(s). Provided however, the requirement to provide referral services does not, in and of itself, obligate the district health departments to provide or otherwise pay for a victim’s health care or support services. Any court, when releasing test results to a victim(s), or if the victim(s) is a minor, to the minor’s parent, guardian, or legal custodian, shall explain or otherwise make the victim(s) or the victim’s parent, guardian, or legal custodian, aware of the services to which the victim(s) is entitled as described herein. (7) Responsibility for the examination, testing and treatment of persons confined in county or city jails shall be vested in the county or city that operates the jail. The county or city may contract with the district health departments or make other arrangements for the examination, testing and treatment services. The district health department or other provider may charge and collect for the costs of such examination and treatment, as follows:
   1. When the prisoner is a convicted felon awaiting transfer to the board of correction, or when the prisoner is a convicted felon being confined in jail pursuant to a contract with the board of correction, the board of correction shall reimburse such costs;
   2. When the prisoner is awaiting trial after an arrest by any state officer, the state agency employing such arresting officer shall reimburse such costs;
   3. When the prisoner is being held for any other authority or jurisdiction, including another state, the authority or jurisdiction responsible shall reimburse such costs unless otherwise provided for by contract.

§ 39-606. Reports.

Reports to the director of the department of health and welfare of the existence of diseases included in this chapter shall be made by the name of the patient being treated for such disease. It is the intent of this chapter to observe all possible secrecy for the benefit of the sufferer so long as the said sufferer conforms to the requirements of this chapter. Confidential disease reports containing patient identification reported under this section shall only be used by public health officials who must conduct investigations and shall be subject to disclosure according to chapter 1, title 74, Idaho Code. Any person who willfully or maliciously discloses the content of any confidential public health record, as described herein to any third party, except pursuant to a written authorization by the person who is the subject of the record or by his or her guardian or conservator, or as otherwise authorized by law, shall be guilty of a misdemeanor.

§ 39-607. Penalties for violations.

Any person who shall violate any lawful rule or regulation made by the state board of health and welfare, pursuant to the authority herein granted, or who shall fail or refuse to obey any lawful order issued by any public health authority, pursuant to the authority granted in this chapter, or any person who, knowing that he or she is infected with syphilis, gonorrhea or chancroid, exposes another person to the infection of such disease, shall be deemed guilty of a misdemeanor, and shall be punished, on conviction thereof, by a fine of not more than three hundred dollars ($300) or by imprisonment in the county jail for not more than six (6) months; or by both such fine and imprisonment.

§ 39-608. Transfer of body fluid which may contain the HIV virus — Punishment — Definitions — Defenses.

1. Any person who exposes another in any manner with the intent to infect or, knowing that he or she is or has been afflicted with acquired immunodeficiency syndrome (AIDS), AIDS related complexes (ARC), or other manifestations of human immunodeficiency virus (HIV) infection, transfers or attempts to transfer any of his or her body fluid, body tissue or organs to another person is guilty of a felony and shall be punished by imprisonment in the state prison for a period not to exceed fifteen (15) years, by fine not in excess of five thousand dollars ($5,000), or by both such imprisonment and fine.
2. Definitions. As used in this section:
   1. “Body fluid” means semen (irrespective of the presence of spermatozoa), blood, saliva, vaginal secretion, breast milk, and urine.
   2. “Transfer” means engaging in sexual activity by genital-genital contact, oral-genital contact, anal-genital contact; or permitting the use of a hypodermic syringe, needle, or similar device without sterilization; or giving, whether or not for value, blood, semen, body tissue, or organs to a person, blood bank, hospital, or other medical care facility for purposes of transfer to another person.
3. Defenses:
   1. Consent. It is an affirmative defense that the sexual activity took place between consenting adults after full disclosure by the accused of the risk of such activity.
   2. Medical advice. It is an affirmative defense that the transfer of body fluid, body tissue, or organs occurred after advice from a licensed physician that the accused was noninfectious.

§ 39-609. Declaration of policy.

The legislature hereby declares that infection with human immunodeficiency virus, the virus which causes acquired immune deficiency syndrome (AIDS), is an infectious and communicable disease that endangers the population of this state. The legislature further declares that reporting of HIV infection to public health officials is essential to enable a better understanding of the disease, the scope of exposure, the impact on the community, and the means of control and that efforts to control the disease should include public education, counseling, and voluntary testing and that restrictive enforcement measures should be used only when necessary to protect the public health. It is hereby declared to be the policy of this state that an effective program of preventing AIDS must maintain the confidentiality of patient information and restrict the use of such information solely to public health requirements. This confidentiality is essential so that infected persons are encouraged to reveal their condition to persons who have a legitimate need to know in order that they may assist the patient. Conversely, there is a need for certain individuals to know of the patient’s condition so that they may be protected from the disease or protect themselves and others closely associated with them or with the patient. The legislature believes that the balancing of the need to know by certain individuals in relationship to the need to maintain confidentiality to encourage reporting is essential to control the spread of the disease. This balancing cannot be fully codified in statutory law and must be left to the judgment and discretion of public health officials. If in the judgment of public health authorities an imminent danger to the public health exists due to an individual having a disease enumerated in section 39-601, Idaho Code, public health authorities shall take such action as is authorized in this chapter and as is necessary to prevent danger to the public health. Persons who have a legitimate need to know may include health care personnel, doctors, nurses, dentists, persons providing emergency medical services, morticians, lab technicians and school authorities. This is not intended to limit the usual and customary exchange of information between health care providers.

§ 39-610. Disclosure of HIV and HBV reporting information.

1. Confidential public health record as described in section 39-606, Idaho Code, shall be subject to disclosure according to chapter 1, title 74, Idaho Code, shall not be discoverable, and shall not be compelled to be produced in any civil or administrative hearing.
2. State or local health authorities may contact and advise those persons who, in the judgment of health authorities, have been exposed to the HIV (human immunodeficiency virus) or hepatitis B (HBV) infections.
3. The department of health and welfare shall, in a manner established by rules and regulations, accept from persons involved in providing emergency or medical services reports of significant exposures to the blood or body fluids of a patient or deceased person. The department of health and welfare shall promulgate rules and regulations defining the term “significant exposure” as used in this section. Upon receipt of a report made pursuant to section 39-602, Idaho Code, confirming the presence of HIV or HBV virus in a patient or a deceased person, the director of the department of health and welfare, or his designee, shall immediately contact and advise any and all persons who, on the basis of information then or thereafter reported to the department, have had a significant exposure to the blood or body fluids of that infected patient or deceased person. The significantly exposed person shall be informed only that he may have been exposed to HIV or HBV, as the case may be, and thereafter advised of whatever prophylactic and testing procedures are appropriate. The significantly exposed person shall not be informed of the name of the infected patient or deceased person. Additionally, the department of health and welfare shall, to the greatest extent consistent with public health requirements, maintain the confidentiality of the identity of the significantly exposed person.
4. Public health authorities may disclose personally identifying information in public health records, as described in section 39-606, Idaho Code, to other local or state public health agencies when the confidential information is necessary to carry out the duties of the agency in the investigation, control and surveillance of disease, as determined by the state board of health and welfare, or as otherwise authorized by law.
5. Nothing in this chapter imposes liability or criminal sanction for disclosure or nondisclosure of the results of a blood test to detect HIV or HBV virus in accordance with any reporting requirements of the department of health and welfare.

§ 39-701 — 39-704. Advertising treatments unlawful — Exemptions — Penalty for violation. [Repealed.]

§ 39-801. Registration required to sell and distribute prophylactics and contraceptives

Fees. [Repealed.]

Repealed by S.L. 2016, ch. 75, § 1, effective July 1, 2016.

§ 39-802. Manufacturer to be identified — Compliance with standards

Rules and regulations. [Repealed.]

Repealed by S.L. 2016, ch. 75, § 1, effective July 1, 2016.

§ 39-803. Revocation or suspension of licenses — Arrest of violators

Seizure and confiscation. [Repealed.]

Repealed by S.L. 2016, ch. 75, § 1, effective July 1, 2016.

§ 39-804. Penalty for violations. [Repealed.]

Repealed by S.L. 2016, ch. 75, § 1, effective July 1, 2016.

§ 39-805 — 39-807. Retail licenses and sales — Compliance with standards, rules and regulations — Display and advertising unlawful. [Repealed.]

§ 39-808. Penalty for violations. [Amended and redesignated.]

§ 39-809, 39-810. Suppositories and other articles — Revocation or suspension of licenses — Arrest — Seizure and confiscation. [Repealed.]

§ 39-901. Inflammation of eyes of newborn defined.

Any inflammation, swelling, or unusual redness in either one (1) or both eyes of any infant, either apart from, or together with any unnatural discharge from the eye or eyes of such infant, independent of the nature of the infection, if any, occurring at any time within two (2) weeks after the birth of such infant, shall be known as “inflammation of the eyes of the newborn” (Ophthalmia neonatorum).

§ 39-902. Report to health officer — Warning of danger — Treatment of indigent cases.

It shall be the duty of any physician, surgeon, obstetrician, midwife, nurse, maternity home or hospital of any nature, parent, relative and persons attendant on or assisting in any way whatsoever any infant, or the mother of any infant at childbirth, or any time within two (2) weeks after childbirth, knowing the condition hereinabove defined to exist, immediately to report such fact in writing, to the local health officer of the county, city, town, magisterial district or whatever other political division there may be within which the infant or the mother of any infant may reside. Midwives shall immediately report conditions to some qualified practitioner of medicine and thereupon withdraw from the case except as they may act under the physician’s instructions. On receipt of such report, the health officer, or the physician notified by a midwife, shall immediately give to the parents or persons having charge of such infant a warning of the dangers to the eye or eyes of said infant, and shall for indigent cases provide the necessary treatment at the expense of said county, city, or town.

§ 39-903. Germicide to be instilled in eyes of newborn baby.

It shall be unlawful for any physician or midwife practicing midwifery to neglect, or otherwise fail to instill or have instilled immediately upon its birth, in the eyes of the newborn babe, some germicide of proved efficiency in preventing the development of ophthalmia neonatorum.

§ 39-904. Statement in report of birth.

Every physician or midwife shall, in making a report of a birth, state whether or not the above germicide was instilled into the eyes of said infant.

§ 39-905. Duties of local health officer.

It shall be the duty of the local health officer:

1. To investigate, or have investigated, each case as filed with him in pursuance of the law, and any other cases as may come to his attention.
2. To report all cases of inflammation of the eyes of the newborn, and the result of all such investigations as the state board of health and welfare shall direct.
3. To conform to such other rules and regulations as the state board of health and welfare shall promulgate for his further guidance.

§ 39-906. Duties of director.

It shall be the duty of the director of the department of health and welfare:

1. To enforce the provisions of this chapter.
2. To administer such rules and regulations as shall, under this chapter, be necessary for the purpose of this chapter and such as the state board of health and welfare may deem necessary for the further and proper guidance of local health officers.
3. To publish and promulgate such further advice and information concerning the dangers of inflammation of the eyes of the newborn as is necessary for prompt and effective treatment.
4. To furnish copies of this law to all physicians and midwives who may be engaged in the practice of obstetrics or assisting at childbirth.
5. To keep a proper record of any and all cases of inflammation of the eyes of the newborn, which shall be filed in the office of the state board of health and welfare in pursuance of this law, and which may come to his attention in any way, and to constitute such records a part of the annual report to the governor.
6. To furnish birth certificates, which shall include the question: “Did you comply with section six [three] of this act? If so, state what solution was used.”

§ 39-907. Birth reports not showing compliance — Certification to prosecuting attorney.

It shall be the duty of the clerk of the county court of each county on or before the fifteenth day of each month to certify to the prosecuting attorney of his county all reports of births filed during the preceding calendar month which fail to show that the solution hereinbefore provided for was instilled.

§ 39-908. Penalty for violation. [Repealed.]

Repealed by S.L. 2020, ch. 285, § 2, effective July 1, 2020.

§ 39-909. Tests for phenylketonuria and preventable diseases in newborn infants.

It shall be the duty of the administrative officer or other person in charge of each hospital or other institution caring for newborn infants and the person responsible for the registration of the birth of such infants under section 39-255, Idaho Code, to cause to have administered to every newborn infant in its or his care a test for phenylketonuria and such other tests for preventable diseases as prescribed by the state board of health and welfare. The person administering such tests shall make such reports of the results thereof as required by the state board of health and welfare.

§ 39-910. Duties of director in enforcing act.

It shall be the duty of the director of the department of health and welfare:

1. To enforce the provisions of this act.
2. To prescribe what tests shall be made for preventable diseases in addition to the test for phenylketonuria.
3. To publish rules of the board prescribing the time and manner of administering tests required by this act.
4. To furnish copies of this act and the rules promulgated hereunder to physicians, hospitals or other institutions or persons required by this act to have tests administered to newborn infants.
5. To maintain a record of all infants found to have phenylketonuria or other preventable diseases and to supervise local health agencies in the treatment and cure of such infants.
6. To disseminate information and advice to the public concerning the dangers and effects of phenylketonuria and other preventable diseases and their detection and treatment.

§ 39-911. Violations

Penalty. [Repealed.]

Repealed by S.L. 2020, ch. 285, § 3, effective July 1, 2020.

§ 39-912. Exemption because of religious belief.

The provisions of this act shall not apply to any child whose parent or guardian objects thereto on the grounds that it conflicts with the tenets or practices of a recognized church or religious denomination of which said parent or guardian is an adherent or member.

§ 39-1001. Serological test of pregnant or recently-delivered women.

Every licensed physician attending a pregnant woman for a condition relating to her pregnancy, or at delivery, or after delivery for a condition relating to her pregnancy, shall in the case of every woman so attended, take or cause to be taken a sample of blood of such woman at the time of first examination or within fifteen (15) days thereafter, and shall submit such sample to the laboratory of the department of health and welfare or to a laboratory approved by the director of the department, for a standard serological test for syphilis. In submitting such sample to the laboratory, the physician shall specify whether it is for a prenatal test or a test following recent delivery. The laboratory of the department of health and welfare shall analyze such sample upon the request of any licensed physician and may collect a fee for the performance of such analyses.

§ 39-1002. Procedure when woman not attended by licensed physician.

Every other person attending a pregnant or recently delivered woman in the state, but not permitted by law to take blood samples, shall within fifteen (15) days of the first examination cause a sample of blood of such woman to be taken by a licensed physician and have the sample submitted to the laboratory of the state department of health and welfare for a standard serological test for syphilis, or to a laboratory approved by said board [department].

§ 39-1003. Standard serological test defined. — For the purpose of sections 39-1001

39-1006, Idaho Code, a standard serological test shall be a test for syphilis approved by the state board of health and welfare.

§ 39-1004. Laboratory report of test.

The laboratory analyzing the blood sample shall furnish to the physician offering the sample a detailed report of the standard serological test, and including the result of the test. If the laboratory is not operated by the state department of health and welfare, a copy of such report shall be filed with the department. The report shall be held in absolute confidence, and shall not be open to public inspection.

§ 39-1005. Reports of births and stillbirths to note making of test.

In reporting every birth and stillbirth, physicians and others required to make such reports shall state on the certificates of birth or death whether a standard serological test for syphilis has been made upon a sample of blood taken from the woman who bore the child for which a certificate is filed, and the approximate date when the sample was taken. The birth or death certificate shall not state the result of the test.

§ 39-1006. Penalty for violations. — Any person who violates the provisions of sections 39-1001 — 39-1006[, Idaho Code,] shall be guilty of a misdemeanor; provided, however, that every licensed physician or other person attending a pregnant or recently delivered woman, who requests such sample in accordance with the provisions of sections 39-1001

39-1006[, Idaho Code], and whose request is refused, shall not be guilty of a misdemeanor.

§ 39-1101. Policy.

It is hereby declared to be the policy of this state to establish a minimum statewide system for the protection of children in daycare facilities. This system is intended to establish minimum standards, while still leaving primary responsibility for evaluation and selection of daycare services with parents. The minimum standards established by this chapter shall not be construed as preempting more stringent regulation by county or city ordinance.

§ 39-1103. Licensing authority.

The department is hereby authorized and directed to issue “basic daycare licenses” as provided in this chapter. The department is authorized to establish procedures for issuing licenses to daycare facilities which shall be maintained and operated in conformity with the standards authorized in this chapter. Nothing in this chapter shall be construed to limit or restrict the teaching of religious doctrines, values, or tenets in a facility licensed under the provisions of this chapter. The provisions of this chapter shall not apply to:

1. The occasional care of a neighbor’s, relative’s or friend’s child or children by a person not ordinarily in the business of providing daycare;
2. The operation of a private school or religious school for educational purposes for children over four (4) years of age or a religious kindergarten;
3. The provision of occasional care exclusively for children of parents who are simultaneously in the same building;
4. The operation of day camps, programs and religious schools for less than twelve (12) weeks during a calendar year or not more often than once a week; or
5. The provision of care for children of a family within the second degree of relationship.

§ 39-1104. Application for license — Fire safety and health inspections.

1. Application. A person who wishes to operate a daycare facility shall be a minimum of eighteen (18) years of age, shall submit an application on the forms provided by the department, and shall obtain the required certificates of inspection as provided herein.
2. Inspections. A person who wishes to operate a daycare facility shall submit: (a) a certificate of a fire inspection of the proposed center, conducted by a fire department or fire district official, establishing compliance with the minimum standards specified in section 39-1109, Idaho Code; and (b) a health and safety inspection of the proposed facility conducted by a qualified inspector as designated by the department, establishing compliance with the minimum standards specified in sections 39-1109 and 39-1110, Idaho Code.
3. Continued compliance and reinspection. Daycare facilities shall at all times maintain compliance with the safety and health requirements identified in this chapter. The department may cause any daycare facility to be reinspected during the term of a license for safety and health compliance as determined necessary by the department. No charge for any reinspection after the initial inspection in any license period shall be made to the daycare facility.

§ 39-1105. Criminal history checks.

1. All owners, operators, and employees of a daycare facility who have direct contact with children and all other individuals thirteen (13) years of age or older who have unsupervised direct contact with children or are regularly on the premises of a daycare facility shall complete and pass a criminal history and background check in conformance with section 56-1004A, Idaho Code, at least every five (5) years.
2. Criminal history checks on those persons under eighteen (18) years of age shall include a check of the juvenile justice records of adjudications of the magistrate division of the district court, county probation services and department records as authorized by the minor and his parent or guardian.
3. Notwithstanding the provisions of section 39-1103, Idaho Code, which provide for exemption from the provisions of this chapter, any person who owns, operates or is employed by a private school for educational purposes for children four (4) through six (6) years of age or a private kindergarten shall comply with the provisions of this section.

§ 39-1106. Issuance of license — Renewal.

1. Upon receipt of the application, inspection certificates and the criminal history, the department shall, upon a finding of compliance with the minimum standards set forth in this chapter, issue a basic daycare license to the applicant. The license shall be valid for two (2) years and shall be posted in a conspicuous place at the daycare facility.
2. The department shall send a renewal application to the owner of the daycare facility no later than ninety (90) days prior to the expiration of an existing license. The owner shall submit to the department the renewal application with the required renewal fee and a criminal history check prior to the expiration of the existing license. A complete criminal history check shall be provided for any new persons requiring a criminal history check in accordance with section 39-1105, Idaho Code.
3. Criminal history checks on those persons under eighteen (18) years of age shall include a check of the juvenile justice records of adjudications of the magistrate division of the district court, county probation services and department records as authorized by the minor and his parent or guardian.
4. The department shall maintain a list of all licensees for public use.
5. Submission of a renewal application, fee and required criminal history check shall entitle the daycare facility owner to continue daycare services, subject to action by the department pursuant to section 39-1113, Idaho Code.

§ 39-1107. Fees.

1. The department shall establish by rule the maximum total fee to be assessed for a basic daycare license which shall not exceed three hundred twenty-five dollars ($325) for daycare centers with more than twenty-five (25) children in attendance at any given time, two hundred fifty dollars ($250) for daycare centers with thirteen (13) to twenty-five (25) children in attendance at any given time and one hundred dollars ($100) for group daycare facilities. Criminal history background check fees shall be in addition, but at actual cost. No other fees shall be charged for each license period. The department may allocate the fees to daycare licensing administration costs as it deems appropriate.
2. The department is authorized to utilize Idaho child care program funds as otherwise allowed by law to pay for the costs associated with licensing of daycare facilities to the extent that fees collected from the facilities do not fully cover such costs. It is the intent of the legislature that licensing fees and Idaho child care program funds shall fully fund daycare facility licensing administration.

§ 39-1108. Local option.

1. If a city or county, within its respective jurisdiction, has adopted an ordinance for regulation and/or licensing of daycare services, then the provisions of this chapter shall not apply with such city or county unless the ordinance is subsequently repealed. To qualify for exemption, regulation of centers must include a criminal history background check at least as stringent as the check required in section 39-1105, Idaho Code, compliance with safety standards at least as stringent as required in section 39-1109, Idaho Code, compliance with health standards at least as stringent as required in section 39-1110, Idaho Code, compliance with immunization requirements at least as stringent as required in section 39-1118, Idaho Code, and compliance with training requirements at least as stringent as required in section 39-1119, Idaho Code. Cities and counties are hereby granted authority and may adopt ordinances for regulation and/or licensing of daycare services.
2. For purposes of determining whether or not local options are more stringent than as required in section 39-1109, Idaho Code, a city or county within its respective jurisdiction may, but is not required to, count a child or children of a provider for purposes of determining child:staff ratios.

§ 39-1109. Safety standards.

1. Daycare facilities, owners and operators shall comply with the following safety standards in the area of the daycare facility in which daycare is provided:
   1. Adequate fire and smoke alarms;
   2. A functional telephone located on the daycare premises during the hours of operation;
   3. Adequate fire extinguishers;
   4. Adequate exits;
   5. Firearms or other weapons which are stored on the premises of a daycare facility must be kept in a locked container that is inaccessible to children while daycare attendees are present;
   6. Pools, hot tubs, ponds and other bodies of water that are on the daycare facility premises must provide the following safeguards:
      1. The area surrounding the body of water must be fenced and locked in a manner that prevents access by children and meets the following requirements:
         1. The fence must be at least four (4) feet high with no vertical opening more than four (4) inches wide, be designed so that a young child cannot climb or squeeze under or through the fence, surround all sides of the pool and have a gate that is self-closing and that has a self-latching mechanism in proper working order out of the reach of young children;
         2. If the house forms one (1) side of the barrier for the pool, all doors that provide unrestricted access to the pool must have alarms that produce an audible sound when the door is opened;
         3. Furniture or other large objects must not be left near the fence in a manner that would enable a child to climb on the furniture or other large object and gain access to the pool; and
      2. If the area surrounding a pool, hot tub, pond or other body of water is not fenced and locked, there must be a secured protective covering that will not allow access by a child;
      3. Wading pools must be empty when not in use;
      4. Children must be under direct supervision of at least one (1) adult employee while using a pool, hot tub, pond or other body of water; and
      5. A minimum of a four (4) foot high fence must be present that prevents access from the daycare facility premises if the daycare premises are adjacent to a body of water; and
   7. The owner or operator of a daycare facility shall ensure that at all times when a child or children are present, at least one (1) adult employee on the premises has current certification in pediatric rescue breathing and first-aid treatment from a certified instructor.
2. No fire standards developed pursuant to this chapter shall be more stringent than the standards contained in the International Fire Code, as adopted by Idaho.
3. At least one (1) adult employee must be present at all times when a child or children are in attendance.
4. 1. The maximum allowable child:staff ratio shall be a maximum of twelve (12) points per staff member using the following point system: (4)(a) The maximum allowable child:staff ratio shall be a maximum of twelve (12) points per staff member using the following point system:
      1. Each child in attendance under the age of twenty-four (24) months shall equal two (2) points.
      2. Each child in attendance from twenty-four (24) months to under thirty-six (36) months of age shall equal one and one-half (1 ½) points.
      3. Each child in attendance from thirty-six (36) months to under five (5) years of age shall equal one (1) point. (iv) Each child in attendance from five (5) years to under thirteen (13) years of age shall equal one-half (½) point.
   2. Each child in attendance shall be counted by the department for purposes of calculating maximum allowable points, counting the number of children in attendance and for determining compliance with child:staff ratios.

§ 39-1110. Health standards.

Daycare facilities shall comply with the following health standards:

1. Food for use in daycare facilities shall be prepared and served in a sanitary manner with sanitized utensils and on surfaces that have been cleaned, rinsed and sanitized prior to use to prevent contamination;
2. All food that is to be served in daycare facilities shall be stored in such a manner that it is protected from potential contamination;
3. Diaper changing shall be conducted in such a manner as to prevent the spread of communicable diseases;
4. Sleeping and play areas, restrooms and fixtures shall be maintained in a safe, sanitary condition, and infant sleep areas shall consist of a space in which children up to age twelve (12) months may sleep alone, on their backs, and in a crib;
5. Children and facility personnel shall be provided with individual or disposable towels for handwashing and the handwashing area shall be equipped with soap and hot and cold running water;
6. The water supply, where the source is other than a public water system, must be approved in accordance with the rules adopted by the department;
7. Medicines, cleaning supplies and other hazardous substances must be stored out of reach of children;
8. Smoking or alcohol consumption is prohibited on the premises of a daycare facility during the daycare facility’s hours of operation; and
9. Representatives of health and safety inspectors shall not be denied access to a daycare facility during hours of operation for purposes of control of communicable disease or inspection.

§ 39-1111. Rules authorized.

In order to implement the provisions of this chapter, the department, in addition to other duties imposed by law, is hereby authorized and directed through rulemaking to establish procedures necessary to implement the provisions of this chapter including procedure for submission of required certificates as provided in sections 39-1109 and 39-1110, Idaho Code, and to conduct the criminal history check provided in section 39-1105, Idaho Code.

The rulemaking authority granted in this section shall be limited to the specific standards and procedures required by this chapter.

§ 39-1112. Visitation.

Any parent or guardian shall have the absolute right to enter the premises of any facility during the period of care for the parent’s or guardian’s child or children. Any failure or refusal to allow entry to a parent or guardian may be grounds for suspension or revocation of the license, pursuant to section 39-1113, Idaho Code. If a parent or guardian has been granted limited or has been denied visitation rights by a court of competent jurisdiction, this section shall not confer a right to visitation.

§ 39-1112A. Access to information.

The department shall make available to daycare consumers an informational pamphlet, created by the department, to educate daycare consumers with informational tools useful in identifying quality daycare. The department may deliver pamphlets during direct contact with daycare consumers, or by delivering pamphlets to daycare providers during the licensing or renewal process, during inspections or through other appropriate means. The pamphlet shall include:

1. The importance of parents being vigilant for the safety, emotional health and training of their children that cannot be replaced by any other institution or individual;
2. The basic characteristics of a quality daycare;
3. A strong suggestion to parents to inquire about criminal history checks for any provider in a family daycare home;
4. A link to a department approved website that contains more detailed information; and
5. A department or other phone number for parents to report unsafe, dangerous or harmful activities within the daycare.

§ 39-1113. Denial, suspension or revocation of license.

1. A license may be denied, suspended or revoked by the department if the department finds that the applicant or licensee does not comply with the provisions of this chapter.
2. No person who pleads guilty to, has been found guilty of or received a withheld judgment for any offense involving neglect or any physical injury to or other abuse of a child, including the following offenses or a similar provision in another jurisdiction, shall be eligible for a license under the provisions of this chapter:
   1. Felony injury of a child, section 18-1501, Idaho Code.
   2. The sexual abuse of a child under sixteen years of age, section 18-1506, Idaho Code.
   3. The ritualized abuse of a child under eighteen years of age, section 18-1506A, Idaho Code.
   4. The sexual exploitation of a child, section 18-1507, Idaho Code.
   5. Sexual abuse of a child under the age of sixteen years, section 18-1506, Idaho Code.
   6. Lewd conduct with a child under the age of sixteen years, section 18-1508, Idaho Code.
   7. The sale or barter of a child for adoption or other purposes, section 18-1511, Idaho Code.
   8. Murder in any degree, section 18-4001 or 18-4003, Idaho Code.
   9. Assault with intent to murder, section 18-4015, Idaho Code.
   10. Voluntary manslaughter, section 18-4006, Idaho Code.
   11. Rape, section 18-6101, Idaho Code.
   12. Incest, section 18-6602, Idaho Code.
   13. Forcible sexual penetration by use of foreign object, section 18-6608, Idaho Code.
   14. Abuse, neglect or exploitation of a vulnerable adult, section 18-1505, Idaho Code.
   15. Aggravated, first degree, second degree and third degree arson, sections 18-801 through 18-805, Idaho Code.
   16. Crimes against nature, section 18-6605, Idaho Code.
   17. Kidnapping, sections 18-4501 through 18-4503, Idaho Code.
   18. Mayhem, section 18-5001, Idaho Code.
   19. Poisoning, section 18-4014 or 18-5501, Idaho Code.
   20. Robbery, section 18-6501, Idaho Code.
   21. Stalking in the first degree, section 18-7905, Idaho Code.
   22. Video voyeurism, section 18-6609, Idaho Code.
   23. Enticing of children, section 18-1509 or 18-1509A, Idaho Code.
   24. Inducing individuals under eighteen years of age into prostitution, section 18-5609, Idaho Code.
   25. Inducing person under eighteen years of age to patronize a prostitute, section 18-5611, Idaho Code.
   26. Any felony punishable by death or life imprisonment.
   27. Attempt, section 18-306, Idaho Code, conspiracy, section 18-1701, Idaho Code, or accessory after the fact, section 18-205, Idaho Code, to commit any of the crimes designated in this subsection.
   28. Domestic violence, section 18-918(2), Idaho Code. (cc) Any offense requiring registration on a state sex offender registry or the national sex offender registry.
   29. A felony drug-related offense committed during the preceding five (5) years.
3. No person who has pleaded guilty to, been found guilty of or received a withheld judgment for any offense involving neglect or any physical injury to or other abuse of a child, including the following offenses or a similar provision in another jurisdiction, shall be eligible for a license for a period of five (5) years under the provisions of this chapter:
   1. Aggravated assault, section 18-905, Idaho Code.
   2. Aggravated battery, section 18-907(1, Idaho Code.
   3. Burglary, section 18-1401, Idaho Code.
   4. Felony theft, sections 18-2403 and 18-2407(1), Idaho Code.
   5. Forgery of a financial transaction card, section 18-3123, Idaho Code.
   6. Fraudulent use of a financial transaction card or number, section 18-3124, Idaho Code.
   7. Forgery or counterfeiting, chapter 36, title 18, Idaho Code.
   8. Misappropriation of personal identifying information, section 18-3126, Idaho Code.
   9. Insurance fraud, section 41-293, Idaho Code.
   10. Damage to or destruction of insured property, section 41-294, Idaho Code.
   11. Public assistance fraud, section 56-227, Idaho Code.
   12. Provider fraud, section 56-227A, Idaho Code.
   13. Attempted strangulation, section 18-923, Idaho Code.
   14. Attempt, section 18-306, Idaho Code, conspiracy, section 18-1701, Idaho Code, or accessory after the fact, section 18-205, Idaho Code, to commit any of the crimes designated in this subsection.
   15. Misdemeanor injury to a child, section 18-1501(2), Idaho Code.
4. A daycare facility license may be denied, suspended or revoked by the department if the department finds that the daycare facility is not in compliance with the standards provided for in this chapter or criminal activity that threatens the health or safety of a child.
5. A daycare facility license or privilege to operate a family daycare home shall be denied or revoked if a registered sex offender resides on the premises where daycare services are provided.
6. The denial, suspension, or revocation of a license under this chapter may be appealed through the administrative appeals process governed by the provisions of IDAPA 16.05.03, with the opportunity for further review by the district court of the county in which the affected daycare facility is located.

§ 39-1114. Limited applications.

1. Any person providing daycare for four (4) or more children in a family daycare home shall not be required to be licensed, but shall comply with the requirements of section 39-1105, Idaho Code, for a criminal history check.
2. Fire inspections may be conducted by department designated health and safety inspectors where necessary. The fire inspection certificate and the criminal history check shall be available for inspection on the premises.
3. A family daycare home providing care for fewer than seven (7) children may elect to comply with the provisions of this chapter and upon a finding of compliance by the department, shall receive a basic daycare license.

§ 39-1115. Misdemeanor.

1. It shall be a misdemeanor to operate a daycare facility within this state without first obtaining a basic daycare license from the department or to operate a daycare facility without posting a basic daycare license in a conspicuous place. A copy of this chapter shall be available on the premises at all times for staff and parents to read on request.
2. If a daycare facility is found to be operating without a license, the licensing agency may grant a grace period of no more than sixty (60) days to allow the daycare facility to come into compliance with the provisions of this chapter.
3. It shall be a misdemeanor to operate a family daycare home caring for four (4) or more children without obtaining the criminal history check required in section 39-1105, Idaho Code; provided, that in the event of an initial citation for violation of the provisions of this subsection, if a person makes the applications required within twenty (20) days, the complaint shall be dismissed. Operation of a family daycare home caring for four (4) or more children after failure to pass a required criminal history check shall be a misdemeanor.
4. It is a misdemeanor for any person to provide daycare services if such person has been found guilty in this state’s courts, in any other state’s courts, or in any federal court, of any offense listed under the provisions of section 39-1113, Idaho Code.

§ 39-1116. Prosecution.

It shall be the duty of the prosecuting attorney of the county in which the daycare facility is located to prosecute violations of the provisions of this chapter.

§ 39-1117. No liability to state or political subdivisions.

The issuance of a license or certificate pursuant to this chapter shall not constitute a representation of affirmance to any person that the daycare facility to which a license is issued is free from risk with regard to the standards in this chapter. The state, its political subdivisions or any employees or agents of the state or its political subdivisions shall not be liable for nor shall a cause of action exist for any loss or damage based upon the failure of any person to meet the standards contained in this chapter.

§ 39-1118. Immunization required.

1. Within fourteen (14) days of a child’s initial attendance at any licensed daycare facility, the parent or guardian shall provide an immunization record to the operator of the daycare facility 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 the child has received or is in the process of receiving immunizations as specified by the board; or can effectively demonstrate, through verification in a form approved by the department, immunity gained through prior contraction of the disease.
2. Any minor child whose parent or guardian has submitted to officials of a licensed daycare facility a certificate signed by a physician licensed by the state board of medicine stating that the physical condition of the child is such that all or any of the required immunizations would endanger the life or health of the child shall be exempt from the provisions of this section. Any minor child whose parent or guardian has submitted a signed statement to officials of the daycare facility stating their objections on religious or other grounds shall be exempt from the provisions of this section.

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

§ 39-1119. Training requirements.

The owner or operator of a day care center shall ensure that each employee receives four (4) hours of ongoing training every twelve (12) months after the employee’s hire date.

§ 39-1120. Nondelegable duties and responsibilities.

The department’s duties and responsibilities under this chapter are nondelegable.

§ 39-1201. Policy.

It is hereby declared to be the policy of this state to insure that children of this state shall receive adequate substitute parental care in the event of absence, temporary or permanent inability of parents to provide care and protection for their children or the parents are seeking alternative twenty-four (24) hour long-term care for their children. This policy is predicated upon the fact that children are vulnerable, not capable of protecting themselves, and when their parents for any reason have relinquished their care to others, there arises the possibility of certain risks to the children’s lives, health and safety which the community as a whole must protect against. This requires the offsetting statutory protection of review and, in certain instances, licensing or registration.

The provisions of this chapter shall apply only to those entities specifically addressed herein. It is not the intent of the legislature to restrict, regulate, or otherwise control private day schools or home schools.

§ 39-1202. Definitions.

For the purposes of this chapter:

1. “Board” means the Idaho board of health and welfare.
2. “Child care” means that care, control, supervision or maintenance of children for twenty-four (24) hours a day which is provided as an alternative to parental care.
3. “Child” means an individual less than eighteen (18) years of age who is not enrolled in an institution of higher education.
4. “Children’s agency” means a person who operates a business for the placement of children in foster homes or for adoption in a permanent home and who does not provide child care as part of that business. Children’s agency does not include a licensed attorney or physician assisting or providing natural and adoptive parents with legal services or medical services necessary to initiate and complete adoptive placements.
5. “Children’s camp” means a program of child care at a location away from the child’s home which is primarily recreational and includes the overnight accommodation of the child and is not intended to provide treatment, therapy or rehabilitation for the child.
6. “Children’s institution” means a person who operates a residential facility for children not related to that person if that person is an individual, for the purpose of providing child care. Children’s institutions include, but are not limited to, foster homes, maternity homes, children’s therapeutic outdoor programs, or any facilities providing treatment, therapy or rehabilitation for children. Children’s institutions do not include: (a) facilities which provide only daycare as defined in chapter 11, title 39, Idaho Code; (b) facilities and agencies including hospitals, skilled nursing facilities, intermediate care facilities, and intermediate care facilities for people with intellectual disabilities licensed pursuant to chapter 13, title 39, Idaho Code; (c) day schools; (d) individuals acting in an advisory capacity, counseling a child in a religious context, and providing no child care associated with the advice; (e) the occasional or irregular care of a neighbor’s, relative’s or friend’s child or children by a person not ordinarily engaged in child care.
7. “Children’s residential care facility” means a children’s institution, excluding:
   1. Foster homes;
   2. Residential schools;
   3. Children’s camps.
8. “Children’s therapeutic outdoor program” is a program which is designed to provide behavioral, substance abuse, or mental health services to minors in an outdoor setting. This does not include children’s camps, church camps, or other outdoor programs primarily designed to be educational or recreational, such as Boy Scouts, Girl Scouts, 4-H or sports camps.
9. “Continued care” means the ongoing placement of an individual in a foster home, children’s residential care facility, or transitional living placement who reaches the age of eighteen (18) years but is less than twenty-one (21) years of age.
10. “Day school” means a public, private, parochial or secular facility offering an educational program in which the children leave the facility each day at the conclusion of the academic, vocational or school supervised activities.
11. “Department” means the state department of health and welfare. (12) “Director” means the director of the department of health and welfare.
    1. Provides a planned, scheduled, regular, academic or vocational school program for students in the elementary, middle or secondary grades as defined in section 33-1001, Idaho Code; and
    2. Provides services substantially comparable to those provided in nonresidential public schools where the primary purpose is the education and academic pursuits of the students; and
    3. Does not seek, receive or enroll students for treatment of such special needs as substance abuse, mental illness, emotional disturbance, developmental disability or intellectual disability; and
    4. Is not:
       1. A college or university; or
       2. A children’s camp as defined in this section; or
       3. A public or private day school in which the children leave the facility each day at the conclusion of the academic, vocational and school supervised activities.
       4. Authenticated in a timely manner as stipulated by hospital policy.

No facility expressly excluded from the definition of a children’s institution is included within the definition of a children’s residential care facility.

(13) “Foster care” means child care by a person not related to the child, in lieu of parental care, in a foster home.

(14) “Foster home” means a home which accepts, for any period of time, with or without compensation, one (1) or more children who are not related to the foster parent as members of the household for the purpose of providing substitute parental care.

(15) “Group care” means foster care of a number of children for whom child care in a family setting is not available or appropriate, in a dormitory or cottage type setting, characterized by activities and discipline of a more regimented and less formal nature than found in a family setting.

(16) “Juvenile detention” is as defined in section 20-502(6), Idaho Code, of the juvenile corrections act.

(17) “Juvenile detention center” means a facility established pursuant to sections 20-517 and 20-518, Idaho Code.

(18) “Person” includes any individual, group of individuals, association, partnership, limited liability company or corporation.

(19) “Placement” means finding a suitable licensed foster home or suitable adoptive home for a child and completing the arrangements for a child to be accepted into and adjusted to such home.

(20) “Relative” means a child’s grandparent, great grandparent, aunt, great aunt, uncle, great uncle, brother-in-law, sister-in-law, first cousin, sibling and half-sibling.

(21) “Representative” means an employee of the state department of health and welfare.

(22) “Residential facility” means any facility where child care is provided, as defined in this section, and which provides day and night accommodation.

(23) “Residential school” means a residential facility for children which:

(24) “Transitional living” means living arrangements and aftercare services for children, or as continued care, to gain experience living on their own in a supportive and supervised environment prior to emancipation.

§ 39-1203. Filing of disclosure reports.

All children’s institutions except foster homes shall file with the department a disclosure report as designed by the department and containing only such information as set forth in section 39-1204, Idaho Code. All such disclosure reports shall be signed under oath by the administrative employee responsible for operation of the children’s institution.

1. An initial disclosure report shall be filed with the department:
   1. Within six (6) months of the effective date of this chapter for all children’s institutions which are providing child care on the effective date of this chapter; or
   2. At least thirty (30) days prior to the acceptance of any child for child care.
2. An annual update disclosure report shall be filed by all children’s institutions except foster homes each year within thirty (30) days of the anniversary of the filing of the initial disclosure report. The department may waive the filing of an annual disclosure report by any children’s institution.

§ 39-1204. Form for disclosure report.

1. The department shall design a form for the initial disclosure report which shall contain only the following information:
   1. The name, address and telephone number(s) for each children’s agency or children’s institution.
   2. The name(s), address and telephone number(s) of the individual(s) in charge at each children’s agency or children’s institution.
   3. The number of children that can be accommodated for child care at each children’s institution and a description of such accommodations.
   4. Whether and how the children’s institution seeks, receives or enrolls students for treatment of special needs such as substance abuse, mental illness, emotional disturbance, developmental disability, intellectual disability, or students who have been identified by the judicial system as requiring treatment, therapy, rehabilitation or supervision.
   5. A complete description of the child care services to be provided at each children’s institution.
   6. Whether and how the children’s institution expects to receive payment, including payment from health insurance carriers, for identified treatment needs such as substance abuse, mental illness, emotional disturbance, developmental disability, or intellectual disability.
   7. Whether and how the children’s institution represents to the payor of the child care services provided by the children’s institution that such payment may qualify for health insurance reimbursement by the payor’s carrier or may qualify for tax benefits relating to medical services.
   8. A description of the educational programs provided at each children’s institution and their accreditation status.
2. The department shall design a form for the annual update disclosure report which shall reference the information provided in the initial disclosure report and shall request identification of any changes in the information provided on the initial report or the previous annual update disclosure report.

§ 39-1205. Evaluation of disclosure reports.

The department shall review all initial and annual update disclosure reports and shall categorize each children’s institution, based on the type of care provided, into one (1) of the following categories:

1. Foster homes;
2. Residential schools;
3. Children’s camps;
4. Children’s therapeutic outdoor program; or
5. Each children’s institution not otherwise categorized in subsections (1) through (4) of this section, except any day school, shall be designated as a “children’s residential care facility.”

§ 39-1206. Children’s camps.

A children’s camp which provides child care for any one (1) child for more than nine (9) consecutive weeks in any one (1) year period shall constitute a children’s treatment facility. A children’s camp which also constitutes a residential school shall be governed under the provisions of this chapter as a residential school. A children’s camp which provides child care for any one (1) child for less than nine (9) consecutive weeks in any one (1) year period shall be exempt from the licensure and disclosure provisions of this chapter.

§ 39-1207. Residential schools.

1. Upon receipt of an initial disclosure report from a children’s institution that the department categorizes as a residential school, the department shall provide a copy of such initial disclosure report to the Idaho department of education.
2. The Idaho department of education shall certify to the department whether each residential school has been accredited according to the accrediting standards promulgated by the Idaho department of education, the Idaho state board of education or a secular or religious accrediting association recognized by the Idaho department of education.
3. If a residential school has been certified as accredited under subsection (2) of this section, then the department shall exercise no further jurisdiction under this chapter over that accredited residential school so long as the accreditation for the residential school remains in effect.
4. Upon certification of accreditation, the Idaho department of education shall notify the accredited residential school that all future update disclosure reports or other reports as the Idaho department of education may require shall be filed with the Idaho department of education so long as the accreditation remains in effect.
5. Upon the determination by the Idaho department of education that a residential school is no longer accredited, it shall notify the department and shall notify the residential school that all future update disclosure reports must be filed with the department.
6. A residential school that is not certified or accredited pursuant to this section or has lost accreditation shall be subject to the jurisdiction of the department as a children’s treatment facility pursuant to section 39-1210, Idaho Code, unless and until accreditation is certified by the Idaho department of education pursuant to this section.
7. The department has the authority to postpone for up to one (1) year the designation of a nonaccredited residential school as a children’s treatment facility upon receipt of an affidavit under oath signed by a legally authorized agent of the nonaccredited residential school that application for accreditation has been made to the Idaho department of education, the Idaho state board of education or an affiliated accrediting association recognized by the Idaho department of education; and the department determines that the application is being pursued in good faith.

§ 39-1208. Standards for children’s therapeutic outdoor programs.

The board shall have the power and it shall be its duty to promulgate appropriate rules necessary to implement and enforce the following standards for licensing a children’s therapeutic outdoor program:

1. Assure the organizational stability of the program, which may require incorporation under the laws of Idaho.
2. Require from the policymaking authority of the program the promulgation of a statement setting forth the program’s purposes and objectives and describing the character and extent of the services which it offers and maintains, and the geographical area to be served.
3. Require a statement of solvency sufficient to maintain programs and personnel necessary to achieve its purposes and objectives and to maintain its services.
4. Assure such recordkeeping and reporting as may be deemed necessary to the program’s services and to the department’s licensing responsibility.
5. Assure the safety and physical care of children for whom the program assumes or accepts responsibility.
6. Establish the legal status of each child accepted for care and the legal authority and responsibility of the program for the child.
7. Require a statement of intake policy which shall set forth criteria for accepting children for care or service in relation to the program’s purposes and physical demands.
8. The department shall obtain a criminal history check on the owners, operators and employees of all children’s therapeutic outdoor programs. The criminal history check shall be fingerprint based and include the following:
   1. Statewide criminal identification bureau;
   2. Federal bureau of investigation (FBI) criminal history;
   3. National crime information center; and
   4. Statewide child abuse register.

§ 39-1209. Standards for children’s agencies.

The board shall have the power and it shall be its duty to promulgate appropriate rules and regulations necessary to implement and enforce the following standards for licensing children’s agencies to:

1. Assure the organizational stability of children’s agencies, which may require incorporation under the laws of this state;
2. Require from the policy-making authority of the agency a statement setting forth the agency’s purposes and objectives and describing the character and extent of the services which it offers and maintains, and the geographical area to be served;
3. Require a statement of financial solvency sufficient to maintain facilities and personnel necessary to achieve its purposes and objectives and to maintain its services.

§ 39-1210. Standards for children’s residential care facilities.

The board of health and welfare shall have the power and it shall be its duty to promulgate appropriate rules necessary to implement and enforce the following standards for licensing a children’s residential care facility:

1. Assure the organizational stability of the facility, which may require incorporation under the laws of Idaho.
2. Require from the policy-making authority of the facility the promulgation of a statement setting forth the facility’s purposes and objectives and describing the character and extent of the services which it offers and maintains, and the geographical area to be served.
3. Require a statement of solvency sufficient to maintain facilities and personnel necessary to achieve its purposes and objectives and to maintain its services.
4. Assure such recordkeeping and reporting as may be deemed necessary to the facility’s services and to the department’s licensing responsibility.
5. Assure the safety and physical care of children for whom the facility assumes or accepts responsibility.
6. Establish the legal status of each child accepted for care and the legal authority and responsibility of the facility for the child.
7. Require a statement of intake policy which shall set forth criteria for accepting children for care or service in relation to the facility’s purposes and facilities.
8. Provide through observation and collateral inquiry for studies of homes into which children may be placed sufficient to enable a judgment determining the adequacy of the homes in relation to the needs of the children.
9. In the case of an institution specializing in maternity care to unmarried mothers:
   1. Assure social services on behalf of both the mother and infant; and
   2. Assure protection of the legal rights and rights to confidential treatment of minor unmarried mothers and their children which shall be subject to disclosure according to chapter 1, title 74, Idaho Code.
10. The department shall obtain a criminal history check on the owners, operators and employees of all children’s residential care facilities. The criminal history check shall include the following:
    1. Statewide criminal identification bureau;
    2. Federal bureau of investigation (FBI) criminal history;
    3. National crime information center; and
    4. Statewide child abuse register.

§ 39-1211. Standards for foster homes — Board authorized to implement and enforce.

The board of health and welfare shall have the power, and it shall be its duty to promulgate appropriate rules necessary to implement and enforce the following standards for licensing private foster homes pursuant to this chapter. Such rules shall:

1. Require evidence of income and resources sufficient to maintain the home and the services offered.
2. Require such recordkeeping and reporting regarding children’s status and progress as may be deemed necessary.
3. Assure the safety and adequate physical care of children under care.
4. Require that foster parents be physically and emotionally suited to care for unrelated children and to deal with problems presented by children away from their own homes and own parents and shall require a criminal background check.

Provided, however, nothing in this chapter shall be construed to cover the occasional or irregular care of a neighbor’s, relative’s or friend’s child or children by a person not ordinarily engaged in child care.

§ 39-1211A. Relative foster care — Limited variance or waiver.

1. A relative providing foster care for a related child pursuant to chapter 16, title 16, Idaho Code, must be licensed in accordance with this chapter.
2. Notwithstanding the provisions of subsection (1) of this section, the department may expedite placement with a relative, issue a foster care license or grant a limited variance or waiver of a licensing standard or requirement if, in the department’s judgment, the health and safety of the related child is not thereby endangered.
3. If the department grants a limited variance or waiver of a licensing standard or requirement to the child’s relative pursuant to this section, the department shall document the grounds for granting the limited variance or waiver and the reasons the limited variance or waiver will not compromise the related child’s safety and health.
4. A limited variance or waiver of a licensing standard or requirement granted to a child’s relative pursuant to this section shall be reviewed by the department for continuing compliance, need, and approval at regular intervals, subject to the provisions of section 39-1113, Idaho Code.
5. The board shall promulgate appropriate rules necessary to implement and enforce the provisions of this section.

§ 39-1212. Application of administrative procedures act.

Actions of the department relating to adoption of rules and regulations, notice, hearings, appeals from decisions of the department or the director, and review shall be governed by the provisions of chapter 52, title 67, Idaho Code, the administrative procedures act.

§ 39-1213. Licensing authority.

1. The board of health and welfare is hereby authorized and directed to establish procedures for licensing foster homes, children’s agencies, children’s therapeutic outdoor programs and children’s residential care facilities which are maintained and operated in conformity with the rules and standards authorized herein. Such procedures shall include the manner and form for making application for license, investigation upon application and notice of decision.
2. It is recognized that children’s agencies may have their own procedure for approval of foster homes affiliated with their program. Any foster home which has been approved by a licensed children’s agency shall be exempt from the licensing provisions of this chapter, provided that the standards for approval by such agency are no less restrictive than rules and standards established by the board of health and welfare, and provided further that such children’s agency is maintained and operated in conformity with rules and standards of the board of health and welfare. The board of health and welfare may promulgate rules necessary to implement the provisions of this section.
3. The board of health and welfare is hereby authorized to establish rules allowing for continued care for appropriate individuals eighteen (18) to twenty-one (21) years of age who have been receiving services by, through, or with the authorization of the department of health and welfare or the department of juvenile corrections prior to their eighteenth birthday.

§ 39-1214. Eligibility for license.

Any foster home, children’s agency, children’s therapeutic outdoor program or children’s residential care facility which applies for a license in the manner and form prescribed by the board of health and welfare and is found upon investigation by the department to be established in conformity with the rules and standards established by the department under the authority conferred herein shall be licensed for a period of one (1) year.

§ 39-1215. Expiration — Renewal.

If a licensee desires to apply for a renewal of its license, an application for renewal shall be filed sixty (60) days prior to the expiration date of the license in force. When such application for renewal has been made in the proper manner and form, the existing license shall, unless officially revoked, remain in force until the department has acted on the application for renewal.

§ 39-1216. Provisional license.

Upon initial investigation, should an applicant for a license be unable to meet a standard because of conditions that are unlikely to endure beyond six (6) months from the date of such investigation, the department may, if in its judgment the health and safety of any child is not thereby endangered, issue a provisional license for a period not to exceed six (6) months. No more than one (1) provisional license shall be issued to the same foster home, children’s agency, children’s therapeutic outdoor program or children’s residential care facility in any twelve (12) month period.

§ 39-1217. Visitation.

For the purpose of determining whether every licensed foster home, licensed children’s agency, licensed children’s therapeutic outdoor program and licensed children’s residential care facility consistently maintains conformity with the standards established under the authority conferred herein, the department, through an authorized representative, shall visit each such home and facility as often as it deems necessary or desirable, but in any event at intervals not to exceed twelve (12) months.

§ 39-1218. License — Denial — Suspension — Revocation — Nonrenewal — Hearing.

1. Any license issued pursuant to this chapter may be denied, suspended, revoked or not renewed, by notice in writing by the director or his authorized representative served upon the applicant or licensee by registered or certified mail, setting forth the reasons therefor, if upon investigation it is found that the licensee has failed or refused to comply with any of the provisions of this chapter or with any of the rules, regulations or standards established pursuant to this chapter.
2. Within fifteen (15) days from receipt of notice of grounds for denial, suspension, revocation or nonrenewal, the applicant or licensee may serve upon the director by registered or certified mail, a written request for hearing. Upon receipt of such request, the director shall fix a date for hearing, which date shall not be more than thirty (30) days from receipt of the request and shall give the applicant or licensee at least fifteen (15) days’ notice of said hearing date.
3. If no request for hearing is made within the time specified, the license shall be deemed denied, suspended or revoked. The department shall notify the applicant or licensee of the decision of the director or his authorized representative within thirty (30) days after conclusion of the hearing.

§ 39-1219. Appeal from decision of director.

If an applicant or licensee feels aggrieved by a decision rendered as a result of a hearing, as provided in section 39-1218, Idaho Code, appeal may be taken to the district court of the county in which the group or foster home, facility, program or agency is located, in the manner and form as provided in section 39-1212, Idaho Code, provided, however, the filing of notice of appeal shall not, unless otherwise ordered, stay the proceedings of the director.

§ 39-1220. Operating without license misdemeanor.

Any person or persons who operate a foster home, children’s agency, children’s therapeutic outdoor program or children’s residential care facility, within this state, without first obtaining a license as provided in this chapter shall be guilty of a misdemeanor. However, in the event of an initial citation for violation of the provisions of this section, if a person makes the application required within thirty (30) days, the complaint shall be dismissed. The penalty for violation of the provisions of this section shall be three hundred dollars ($300) for each day of a continuing violation, which penalty shall accrue from thirty (30) days following the initial notice of violation in the event of a finding of violation.

§ 39-1221. Removal of children.

Any child or children receiving child care in a children’s residential care facility or children’s therapeutic outdoor program found to be operating without a license may be removed from such home, agency or institution upon order of the magistrate court of the county in which the child is receiving care and returned to the child’s own home, or placed in the custody of the department if the child’s custodial parent is not available. The prosecuting attorneys of the several counties shall represent the department at all stages of the proceedings before the magistrate court. The magistrate court shall retain jurisdiction relative to child custody pursuant to the provisions of this section. In the event that the prosecuting attorney in the county where the alleged violation occurred fails or refuses to act within sixty (60) days of notification of the violation, the attorney general is authorized to prosecute violations under this chapter.

§ 39-1222. Action against unlicensed foster home, children’s agency, children’s therapeutic outdoor program or children’s residential care facility.

Notwithstanding the existence or pursuit of any other remedy, the department shall, upon showing good cause to the prosecuting attorney who shall represent the department in the proceeding, maintain an action in the name of the state for injunction or other process against a person as defined herein who shall hereafter operate or maintain any foster home, children’s agency, children’s therapeutic outdoor program or children’s residential care facility without first having secured a license pursuant to the provisions of this chapter. Upon a finding that the safety of children at a foster home, children’s agency, children’s therapeutic outdoor program or children’s residential care facility is endangered, the department has the authority to immediately revoke a license.

§ 39-1223. Construction of act.

This act shall be liberally construed to the end that the legislative policy expressed herein is attained.

§ 39-1224. Title of act.

This act shall be known and cited as the “Child Care Licensing Reform Act,” and the caption for chapter 12, title 39, Idaho Code, shall so designate.

§ 39-1301. Definitions.

For purposes of this chapter the following definitions will apply:

1. “Hospital” means a facility which:
   1. Is primarily engaged in providing, by or under the supervision of physicians,
      1. concentrated medical and nursing care on a twenty-four (24) hour basis to inpatients experiencing acute illness; and
      2. diagnostic and therapeutic services for medical diagnosis and treatment, psychiatric diagnosis and treatment, and care of injured, disabled, or sick persons; and
      3. rehabilitation services for injured, disabled, or sick persons; and
      4. obstetrical care.
      5. “Licensing agency” means the department of health and welfare.
      6. “Board” means the board of health and welfare.
      7. “Physician” means an individual licensed to practice medicine and surgery by the Idaho state board of medicine or the Idaho state board of podiatry.
      8. “Authorized provider” means an individual who is a nurse practitioner or clinical nurse specialist, licensed to practice in Idaho in accordance with the Idaho nurse practice act; or a physician’s assistant, licensed by the Idaho state board of medicine.
      9. “Hospice house” means a facility that is owned and operated by a medicare certified hospice agency for the purpose of providing inpatient hospice services consistent with 42 CFR 418.110.
   2. Provides for care of two (2) or more individuals for twenty-four (24) or more consecutive hours.
   3. Is staffed to provide professional nursing care on a twenty-four (24) hour basis.

(b) “Nursing facility” (nursing home) means a facility whose design and function shall provide area, space and equipment to meet the health needs of two (2) or more individuals who, at a minimum, require inpatient care and services for twenty-four (24) or more consecutive hours for unstable chronic health problems requiring daily professional nursing supervision and licensed nursing care on a twenty-four (24) hour basis, restorative, rehabilitative care, and assistance in meeting daily living needs. Medical supervision is necessary on a regular, but not daily, basis.

(c) “Intermediate care facility for people with intellectual disabilities (ICF/ID)” means a nonnursing home facility, designed and operated to meet the unique educational, training, habilitative and medical needs of the developmentally disabled through the provision of active treatment.

(d) “Person” means any individual, firm, partnership, corporation, company, association, or joint stock association, and the legal successor thereof.

(e) “Government unit” means the state, or any county, municipality, or other political subdivision, or any department, division, board or other agency thereof.

§ 39-1301A. Waivers for certified family homes — Definitions.

1. Chapter 13, title 39, Idaho Code, shall not have the effect of preventing two (2) persons in need of the care described in section 39-1301(b), Idaho Code, from residing in a certified family home when:
   1. Each of the persons has given a written statement to the department requesting the arrangement and each person making the request is informed, not coerced, and competent; and
   2. The department finds the arrangement safe and effective; and
   3. The department issues a written waiver permitting the arrangement.
2. The department shall use negotiated rulemaking when promulgating rules to carry out the provisions of this section to ensure a person’s ability to choose services and service provider is considered.
3. The department shall revoke any waiver granted pursuant to this section where it is determined there is a threat to the life or safety of either person or where one (1) of the persons leaves the living arrangement permanently or notifies the department in writing that he does not wish to reside in the setting with the other individual. Any waiver granted under this section shall be reviewed annually.

§ 39-1301B. Nursing facility conversions.

1. A nursing facility that voluntarily reduces the number of its licensed beds to provide residential and assisted living services, certified family home services, adult day health services, respite care, hospice, outpatient therapy services, congregate meals, home health, senior wellness clinic, or other services provided under a medicaid home and community-based services waiver for the aged or disabled may convert the original facility or portion of the facility back, and thereby increase the number of nursing home beds to no more than the previously licensed number of nursing home beds provided the facility has been in continuous operation and has not been purchased or leased. Any conversion to the original licensed bed capacity, or to any portion thereof, shall comply with the same life safety code requirements as existed at the time the nursing facility voluntarily reduced its licensed beds.
2. To convert beds back to nursing facility beds under this section, the nursing home must:
   1. Give notice of its intent to preserve conversion options to the department no later than thirty (30) days after the effective date of the license reduction; and
   2. Give notice to the department and any affected participant of the intent to convert beds back. If construction is required for the conversion of beds back, the notice of intent to convert beds back must be given, at a minimum, one (1) year prior to the effective date of license modification reflecting the restored beds; otherwise, the notice must be given a minimum of ninety (90) days prior to the effective date of license modification reflecting the restored beds.
3. Conversion of beds back to nursing facility use under this section must be completed no later than four (4) years after the effective date of the license reduction. However, for good cause shown, the four (4) year period for conversion may be extended by the department for an additional four (4) year period.

§ 39-1301C. Deemed status of hospice agency and its hospice home — No Idaho license or certification required.

1. A hospice house and its owner and operator medicare certified hospice agency must have and maintain deemed status through a centers for medicare & medicaid services recognized accrediting organization.
2. Neither a medicare certified hospice agency nor its hospice home is required to be licensed or certified by the state of Idaho.

§ 39-1302. Purpose. — The purpose of sections 39-1301

39-1314, Idaho Code, is to provide for the development, establishment and enforcement of standards (1) for the care and treatment of individuals in facilities or by agencies as defined, and (2) for the construction, maintenance and operation of facilities or agencies as defined which, in the light of advancing knowledge, will promote safe and adequate treatment of such individuals in facilities or by agencies as defined.

§ 39-1303. Licensure. — After January 1, 1948, no person or governmental unit, acting severally or jointly with any other person or governmental unit shall establish, conduct or maintain a facility or agency, as defined, in this state without a license under sections 39-1301

39-1314, Idaho Code.

§ 39-1303a. Definition of services and regulation of facilities in preceding section.

For the purposes of this act, the board shall have the authority to define the services requisite to the operation of the facilities defined and to establish rules and regulations and standards for the licensing of each type of facility and for the administrative personnel of each type of facility.

§ 39-1303b. Agreements for allocation of services between neighboring hospitals.

Hospitals serving the same, or generally the same, geographical area may, by agreement or other arrangement to eliminate duplication, allocate as between themselves, in whole or in part, the provision of those services and facilities defined by the board of health and welfare as requisite to their licensure as hospitals.

§ 39-1303c. Curtailment of required services.

Any licensed facility or agency as defined, upon petition and showing of good cause therefor, to the satisfaction of the board may reduce, curtail or eliminate any service or facility which might otherwise be required for licensure by the board. A showing that the service or facility is unnecessary by reason of an arrangement with another facility or agency as defined, pursuant to section 39-1303b, Idaho Code, shall be conclusively deemed to be a showing of good cause under this section, and any licensed facility or agency as defined which, prior to January 1, 1976, had already reduced, curtailed or eliminated any service or facility by reason of the same being provided by another licensed facility or agency as defined, in the same community shall be deemed to have complied with this section.

§ 39-1303d. [Amended and redesignated.]

§ 39-1304. Application for license.

An application for a license shall be made to the licensing agency upon forms provided by it and shall contain such information as the licensing agency reasonably requires, which may include affirmative evidence of ability to comply with such reasonable standards, rules and regulations as are lawfully prescribed hereunder by the board of health and welfare.

§ 39-1305. Issuance and renewal of license.

Upon receipt of an application for license and the license fee, when required, the licensing agency shall issue a license if the applicant meets the requirements established under this law. A license, unless sooner suspended or revoked, shall be renewable annually without charge upon filing by the licensee, and approval by the licensing agency, of an annual report upon such uniform dates and containing such information in such form as the licensing agency prescribes by regulation. Each license shall be issued only for the premises and persons or governmental units named in the application and shall not be transferable or assignable except with the written approval of the licensing agency. Licenses shall be posted in a conspicuous place on the licensed premises.

§ 39-1306. Denial or revocation of license — Hearings and review.

The licensing agency may deny any application or revoke any license when persuaded by evidence that such conditions exist as to endanger the health or safety of any resident. Before denial or revocation is final, the licensing agency shall provide opportunity for a hearing at which time the owner or sponsor of any facility or agency, as defined, may appear and show cause why the license should not be denied or revoked. The board shall provide by rule and regulation a procedure whereby a waiver of a specific rule, regulation or standard may be granted in the event that good cause is shown for such a waiver and providing that said waiver does not endanger the health and safety of any resident. The decision to grant a waiver shall not be considered as precedent or be given any force or effect in any other proceeding. Said waiver may be renewed annually if sufficient written justification is presented to the licensing agency. Hearings for licensure, including denial and revocation, shall be conducted by the licensing agency pursuant to chapter 52, title 67, Idaho Code, and appeal shall be as provided therein.

§ 39-1307. Rules, regulations, and enforcement.

The board shall have the authority to adopt, amend, and enforce rules, regulations, and standards consistent with the provisions of this chapter that are designed to protect the health and safety of patients being cared for in facilities or agencies as defined.

The board of health and welfare, with the advice of the advisory hospital council, shall adopt, amend, promulgate, and enforce such rules, regulations, and standards with respect to all hospitals or different types of hospitals to be licensed hereunder as may be designed to further the accomplishment of the purposes of this chapter in promoting safe and adequate treatment of individuals in hospitals in the interest of public health, safety, and welfare. Any such rules, regulations, and standards issued under this chapter that are more restrictive than medicare conditions of participation shall not apply to hospitals that are certified by medicare, through accreditation, survey, or otherwise, to participate in the medicare program. Provided further that nothing in this chapter or the rules and regulations adopted pursuant thereto shall be construed as authorizing the supervision, regulation, or control of the remedial care or treatment of residents or patients in any home, facility, or agency as defined, conducted for those who rely upon treatment by prayer or spiritual means in accordance with the creed or tenets of any well-recognized church or religious denomination except as to sanitary and safe conditions of the premises, cleanliness of operation, and its physical equipment.

§ 39-1307A. Food purchasing and storage.

Rules, regulations and minimum standards adopted by the board governing skilled nursing facilities or intermediate care facilities may provide requirements for food purchasing and storage, except that no rule, regulation or minimum standard may limit the maximum size of a container in which milk for drinking purposes may be purchased.

§ 39-1307B. Minimum staffing requirements.

The board shall make no rule designed to limit the work activities of any person regularly assigned to duty as nursing or auxiliary personnel preceding the assignment within the facility governed by the rules, regulations and minimum standards of the board.

§ 39-1308. Effective date of regulations. — Any facility or agency as defined, which is in operation at the time of promulgation of any applicable rules or regulations or minimum standards under sections 39-1301

39-1314, Idaho Code, shall be given a reasonable time, not to exceed two (2) years from the date of such promulgation, within which to comply with such rules and regulations and minimum standards, except for those conditions which present an imminent hazard to the health and safety of patients housed therein.

§ 39-1309. Inspections and consultations.

The licensing agency shall make or cause to be made such inspections and investigations as it deems necessary. The licensing agency may prescribe by regulations that any licensee or applicant desiring to make specified types of alteration or addition to its facilities or to construct new facilities shall before commencing such alteration, addition or new construction, submit plans and specifications therefor to the licensing agency for preliminary inspection and approval or recommendations with respect to compliance with the regulations and standards herein authorized. Necessary conferences and consultations may be provided.

§ 39-1310. Information.

Information received by the licensing agency through filed reports, inspection, or as otherwise authorized under this law, which would identify individual residents or patients of facilities or agencies as defined shall be subject to disclosure according to chapter 1, title 74, Idaho Code, except in a proceeding involving the question of licensure. Public disclosure of information obtained by the licensing agency for the purposes of this act shall be governed by chapter 1, title 74, Idaho Code. Nothing in this act, however, shall be construed, nor shall any rule or regulation be promulgated under this section, as to impair, restrict or alter the confidentiality and privilege afforded the physician and patient communications, including without limitation, documentation thereof in records of facilities or agencies as defined, or communications to and with nurses or other assisting persons or entities, nor shall this act be construed to amend by implication such physician-patient communication privilege as provided elsewhere in this code, including without limitation section 9-203(4), Idaho Code, which shall remain inviolate.

§ 39-1311. Functions of advisory hospital council. [Repealed.]

§ 39-1312. Penalty for operating a facility or agency without license. — Any person establishing, conducting, managing, or operating any facility or agency as defined, without a license under sections 39-1301

39-1314, Idaho Code, shall be guilty of a misdemeanor punishable by imprisonment in a county jail for a period of time not exceeding six (6) months, or by a fine not exceeding three hundred dollars ($300), or by both, and each day of continuing violations shall constitute a separate offense.

In the event that the county attorney in the county where the alleged violation occurred fails or refuses to act within sixty (60) days of notification of the violation, the attorney general is authorized to prosecute violations under this act.

§ 39-1313. Injunction to prevent operation without license. — Notwithstanding the existence or pursuit of any other remedy, the licensing agency may in the manner provided by law maintain an action in the name of the state for injunction or other process against any person or governmental unit to restrain or prevent the establishment, conduct, management or operation of a facility or agency as defined, without a license under sections 39-1301

39-1314, Idaho Code.

The licensing agency shall be represented by the county prosecutor of the county in which the violation occurs or by the office of the attorney general.

§ 39-1314. Separability. — If any provision of sections 39-1301

39-1314, Idaho Code, or the application thereof to any person or circumstance shall be held invalid, such invalidity shall not affect the provisions or application of this act which can be given effect without the invalid provision or application, and to this end the provisions of the act are declared to be severable.

§ 39-1315. [Amended and redesignated.]

§ 39-1316. [Amended and redesignated.]

§ 39-1317. [Amended and redesignated.]

§ 39-1318. Hospital boards — Duty to acquire, construct, improve and maintain public hospitals and medical clinics.

The betterment and protection of the public health and care of the sick and afflicted are hereby declared to be the established and permanent policy of the state of Idaho, the duty is hereby imposed upon the hospital boards provided for by this act of acquiring, constructing, improving and maintaining public hospitals or medical clinics within their districts for the necessary care and treatment of persons requiring medical services.

§ 39-1319. Definitions.

A “hospital district” is one to furnish general hospital services, and together with such hospital services, nursing home services, or medical clinic services to the general public and all other such services as may be necessary for the care of the injured, maimed, sick, disabled, convalescent or long-term care patients. As used in sections 39-1318 through 39-1357, Idaho Code, “medical clinic” means a place devoted primarily to the maintenance and operation of facilities for outpatient medical, surgical and emergency care of acute and chronic conditions or injury.

The word “board” as used in this act shall mean the board of trustees of the district. A “qualified elector” of a district within the meaning of and entitled to vote under this act, is a person qualified to vote at general elections in this state, and who has been a bona fide resident of the district for at least thirty (30) days prior to any election in the district. A “taxpayer” within the meaning of and as used in this act is a person or the husband or wife of a person whose name appears on the tax rolls of the county and is there assessed with unexempted real or personal property owned and subject to taxation within the boundaries of the district.

Whenever the term “publication” is used in this act and no manner specified therefor, it shall be taken to mean once a week for three (3) consecutive weeks in at least one (1) newspaper of general circulation in the district. It shall not be necessary that publication be made on the same day of the week in each of the three (3) weeks, but not less than fourteen (14) days (excluding the first day of publication), shall intervene between the first publication and the last publication, and publication shall be complete on the day of the last publication.

§ 39-1320. Organization of hospital district — Petition — Contents — Filing.

The organization of a hospital district shall be initiated by a petition filed with the board of county commissioners of the county of [in] which the said district is situated. Said petition shall be signed by not less than ten per cent (10%) of the qualified electors and taxpayers of the proposed district. The equalized county assessment list last preceding the presentation of the petition for the organization of the hospital district shall be sufficient evidence of the title for the purpose of this act, but other evidence may be received.

The petition shall set forth:

1. The name of the proposed district consisting of a chosen name preceding the words “hospital district”.
2. A general statement of the purpose of the formation of said district.
3. A general description of the boundaries of the district or territory to be included therein with such certainty to enable a property owner to determine whether or not his property is within the district.
4. A map showing the general boundaries of such district in relation to outstanding natural monuments and terraine features.
5. A prayer for the organization of the district.

Similar petitions or duplicate copies of the same petition for the organization of the same district may be filed and shall together be regarded as one (1) petition. All petitions filed prior to the hearing on the first petition filed shall be considered by the board the same as though filed with the first petition placed on file.

Provided, however, that no such district shall be organized unless it shall appear that the boundaries of said district are wholly within the limits of a single county and that there shall be no unnatural extension of the boundaries of said district.

The petition together with all maps and other papers filed therewith shall at all proper hours be open to public inspection in the office of the clerk of the board of county commissioners between the date of their said filing and the date of an election to be held as hereinafter provided.

§ 39-1321. Joint districts in one or more counties.

A hospital district as provided in section 39-1320[, Idaho Code,] may be organized where it appears that said district will be within the boundaries of one (1) or more counties, where all the other requirements provided in section 39-1320[, Idaho Code,] have been met, and the county commissioners of each county in which such district will be formed shall affirmatively find that the public welfare of that portion of the county will be served by the inclusion thereof in such joint county district, that such district is not an unnatural extension of a service district for hospital services, and that the petition for such district has been signed by not less than 10% of the qualified electors and taxpayers of that portion of the proposed district lying within the county.

§ 39-1322. Notice of time of hearing on petition — Order fixing boundaries — Appeal.

When such petition is presented to the board of county commissioners and filed in the office of the clerk of such board, the said board shall set a time for a hearing upon such petition which shall not be less than four (4) nor more than six (6) weeks from the date of the presentation and filing of such petition. A notice of time of such hearing shall be published by said board once each week for three (3) successive weeks previous to the time set for such hearing in a newspaper published within the county in which said district is situated. Said notice shall state that a hospital district is proposed to be organized giving the proposed boundaries thereof and that any taxpayer within the proposed boundaries of such proposed district may on the date fixed for such hearing appear and offer any objection to the organization of such district, the proposed boundaries thereof or the including or excluding of any real property, therein or therefrom. After hearing and considering any and all objections, if any such be interposed, the county commissioners shall thereupon make an order, either denying such petition or granting the same, with or without modification, and shall accordingly fix the boundaries of such proposed district in any order granting such petition. The boundaries so fixed shall be the boundaries of said district after its organization be completed as provided in this act, and a map showing the boundaries of such proposed district, as finally fixed and determined by the board of county commissioners, shall be prepared and filed in the office of the clerk of said board. Any person aggrieved by said order, or any taxpayer within said proposed district may take an appeal from said order establishing the boundaries of said district, in the manner provided by sections 31-1509, 31-1510, 31-1511, and 31-1512, Idaho Code, on questions of both law and fact.

§ 39-1323. Election in proposed district — Notice — Qualifications of voters.

Such petition may be filed with the clerk of the board of county commissioners at any time, and on such filing and after the county commissioners have made an order finally fixing and determining the boundaries of the proposed district, and have made and entered an order calling an election to be held, subject to the provisions of section 34-106, Idaho Code, in said district, said clerk shall cause to be published a notice of an election to be held in such proposed district for the purpose of determining whether or not the same shall be organized under the provisions of this act. Provided, however, if an appeal is taken from such order establishing the boundaries, such election shall not be held until after the determination of such appeal. Such notice shall plainly and clearly designate the boundaries in or the boundaries of said districts, and shall state the name of the proposed districts as designated in the petition.

Such notice shall be published once not less than twelve (12) days prior to the election, and a second time not less than five (5) days prior to such election in a newspaper published within the county as aforesaid. At such election the voters shall vote for or against the organization of the district. No person shall be entitled to vote at any election held under the provisions of this chapter unless he or she shall possess all the qualifications required of electors under the general laws of the state and be a resident of the proposed district.

§ 39-1324. Election — Manner of conducting.

Such election shall be held and conducted in accordance with the general election laws of the state, including the provisions of chapter 14, title 34, Idaho Code.

The board of county commissioners shall establish as many election precincts within such proposed district as may be necessary, and define the boundaries thereof. The county clerk shall appoint judges of election, one (1) of whom shall act as clerk for each such election precinct who shall perform the same duties as judges of election under the general laws of the state, and the result of such election shall be certified, canvassed and declared by the board of county commissioners. The reasonable compensation of said judges and clerks of election, and the expenses of publication of notices, printing of ballots and furnishing of supplies for the election shall be paid by the petitioners, and to this end the board of county commissioners are empowered to require the deposit of all estimated costs in advance of such election.

§ 39-1325. Election results — Canvass and certification — Order establishing district.

Immediately after any election for voting upon the organization of a hospital district, the judges of said election shall certify the official results of said election to the clerk of said board of commissioners. The said board of commissioners shall, at its next regular meeting, proceed to canvass the votes cast at such election, and if upon such canvass it shall appear that one half (½) or more of the votes cast at such election are “. . . . hospital district, no.”, then a record of that fact shall be duly entered upon the minutes of said board, and all proceedings in regard to the organization of said district shall be void. If it shall appear, upon such canvass, that more than one half (½) of the votes cast at such election are “. . . . hospital district, yes.”, the said board shall by order entered on its minutes, declare such territory duly organized as a hospital district under the name designated in the petition.

If an order be entered establishing the district, such order shall be deemed final and no appeal or writ of error shall lie therefrom, and the entry of such order shall finally and exclusively establish the regular organization of the said district against all persons, except the state of Idaho in an action in the nature of a writ of quo warranto commenced by the attorney general within thirty (30) days after the date of said order declaring such district organized, as herein provided, and not otherwise. The organization of said district shall not be directly or collaterally questioned in any suit, action or proceeding except as herein expressly authorized.

Said board shall cause one (1) copy of such order duly certified to be immediately filed for record in the office of the county recorder in the county in which such district is situated and shall transmit to the governor one (1) certified copy thereof.

From and after the date of such filing of said order of the board of county commissioners, declaring such territory duly organized as a hospital district, the organization of such district shall be completed, and thereupon the district shall be a governmental subdivision of the state of Idaho and a body corporate with all the powers of a public or quasi-municipal corporation.

§ 39-1325A. Petitions for dissolution of hospital districts.

1. Proceedings for the dissolution of a hospital district may be initiated by a petition containing the signatures of qualified electors of the district or owners of property within the district equal in number to ten percent (10%) of the qualified electors and taxpayers of the district, the same percentage required for the organization of the district, but not earlier than four (4) years after the date of its establishment.
2. The petition, when completed and verified, shall be filed with the clerk of the court of the county or counties if more than one (1) county is involved. The county clerk shall publish notice and the county commissioners shall hold a hearing on the matter. If necessary, they shall hold an election, subject to the provisions of section 34-106, Idaho Code, on the matter. The hearing and election shall be held in accordance with the terms and provisions of title 34, Idaho Code. The disposition of hospital district assets on dissolution and the provision for payment of district indebtedness shall be made in accordance with the provisions of sections 63-4105 and 63-4106, Idaho Code.
3. If the hospital district embraces territory in more than one (1) county, an election for its dissolution shall be deemed approved only if a majority of the votes cast in each such county were cast in the affirmative. If, upon the canvass of ballots, it be determined that the proposition has been approved, the board of county commissioners of each county shall enter its order to that effect, subject to the provisions of section 39-1325C, Idaho Code, and the order shall by them be made a matter of record.

§ 39-1325B. Nonfunctioning district.

Any hospital district which fails or has ceased to function for two (2) or more years may be dissolved by the board or boards of county commissioners of the county or counties in which it is located. The county commissioners may initiate such action by resolution subject to the provisions of section 39-1325C, Idaho Code.

§ 39-1325C. Effect of dissolution.

1. A dissolved hospital district continues its existence under the supervision of the board or boards of county commissioners of the county or counties in which the district is located, but may not carry on any business except that appropriate to wind up and liquidate its business and affairs, including the power to levy property taxes pursuant to the provisions of this chapter.
2. The disposition of such property shall be governed by the provisions of section 63-4105, Idaho Code.
3. Upon completion of winding up and liquidating the district’s business and affairs, the commissioners shall enter a final order terminating the district and shall notify in writing the social security administrator at the Idaho state controller’s office within ninety (90) days of the dissolution.

§ 39-1326. Board of trustees of district — Qualifications of members.

The board of trustees of such hospital district shall consist of seven (7) residents of the district who shall be elected or appointed as herein provided. Immediately following the establishment of a hospital district, the commissioners in the county in which the same is established shall appoint the seven (7) members of the first board, three (3) members to act until the first biennial election, two (2) until the second biennial election, and two (2) until the third biennial election, all of whom shall serve until the election and qualification of their successors. Upon a unanimous vote, the board of trustees may also appoint not more than two (2) additional members to serve as trustees for the purpose of obtaining necessary and specialized skills as determined by the board of trustees to assist board deliberations and decision-making. Members who are appointed by the board shall serve for a term not to exceed six (6) years. Such appointed board members shall serve at the pleasure of the board and may be removed with or without cause by a majority vote of the elected members of the board. Appointed board members shall have the same duties, oaths and obligations as elected board members; provided however, that an appointed board member shall not be entitled to vote on any decision to levy a tax pursuant to this chapter.

No person shall be qualified to serve as a trustee of a district organized under the provisions of this chapter unless he or she shall be a resident of the hospital district and a qualified elector of the state of Idaho.

§ 39-1327. Oaths and bonds of board members.

Whenever a district has been declared duly organized the members of the board shall qualify by filing with the clerk of the board of county commissioners their oaths of office, and corporate surety bonds at the expense of the district in an amount not to exceed one thousand dollars ($1,000) each, the form thereof to be fixed and approved by the board of county commissioners conditioned for the faithful performance of their duties as trustees.

§ 39-1328. Organization of board — Seal — Duties of treasurer — Compensation of members — Financial statement.

After taking oath and filing bonds, the board shall choose one (1) of its members as chairman of the board and president of the district, and shall elect a secretary and treasurer of the board and of the district who may or may not be members of the board. The secretary and treasurer may be one (1) person. Such board shall adopt a seal and the secretary shall keep in a well bound book a record of all its proceedings, minutes of all meetings, certificates, contracts, bonds given by employees and all corporate acts which shall be open to inspection by all owners of real property in the district as well as to all other interested parties.

The treasurer shall keep strict and accurate accounts of all moneys received by and disbursed for and on behalf of the district in permanent records. He shall file with the board of trustees of the district, at the expense of the district, a corporate fidelity bond in an amount to be fixed by the board of trustees, in any case not less than ten thousand dollars ($10,000), conditioned on the faithful performance of the duties of his office.

Each member of the board may receive as compensation for his services, a sum not in excess of six hundred dollars ($600) per annum, payable monthly. Such annual sum shall be fixed by the board, by resolution adopted by majority vote, at a regular monthly meeting in advance of the fiscal year in which it is to become effective. In addition, each member of the board shall receive the amount of his actual and necessary expenses incurred in the performance of his official duties as authorized by the board of trustees. No member of the board shall receive any compensation as an employee of the district or otherwise, other than that herein provided, and no member of the board shall be interested in any contract or transaction with the district except in his official representative capacity.

It shall be the duty of the board of trustees to cause an audit to be made of all financial affairs of the district during each fiscal year which audit shall be made within one hundred twenty (120) days following the end of the fiscal year. A financial statement shall be certified by the person making such audit, which shall be published in the newspaper of general circulation in the district in one (1) issue not more than thirty (30) days following the audit; such audit shall be made by registered accountant or certified public accountant, who is not otherwise employed by the district.

The court having jurisdiction of the district shall have the power to remove directors for cause shown on petition, notice and hearing.

§ 39-1329. Meetings — Quorum — Vacancies.

The board shall meet regularly once each month at a time and place to be designated by the board. Special meetings may be held as often as the needs of the district require on notice to each member of the board. A majority of the members of the board shall constitute a quorum at any meeting. Any vacancy of an elected member on the board shall be filled by the remaining members or member of the board, the appointee to act until the next biennial election, when the vacancy shall be filled by election. If the board shall fail, neglect or refuse to fill any vacancy within thirty (30) days after the same occurs, the board of county commissioners of the county in which said district is situated shall fill such vacancy. In the case of a vacancy on the board of an appointed member, a majority of the board shall determine whether to fill the vacant position.

§ 39-1330. Biennial election of board members — Terms of office.

On the third Tuesday of May in the next odd-numbered calendar year after the organization of any district, and on the third Tuesday of May every second year thereafter, an election shall be held which shall be known as the biennial election of the district.

At the first biennial election in any district hereafter organized and each sixth year thereafter there shall be elected by the qualified electors of the district three (3) members of the board to serve for a term of six (6) years; at the second biennial election and each sixth year thereafter there shall be elected two (2) members of the board to serve for a term of six (6) years; at the third biennial election and each sixth year thereafter there shall be elected two (2) members of the board to serve for terms of six (6) years.

The county clerk shall provide for holding such elections and shall appoint judges to conduct it; the county clerk shall give notice of election by publication and shall arrange such other details in connection therewith as the board may direct. The returns of the election shall be certified to and shall be canvassed and declared by the board of county commissioners. The candidate or candidates according to the number of directors to be elected, receiving the most votes shall be elected. Any new member of the board shall qualify in the same manner as members of the first board qualify.

In any election for director, if after the deadline for filing a declaration of intent as a write-in candidate, it appears that only one (1) qualified candidate has been nominated for a director’s position, it shall not be necessary for the candidate to stand for election, and the board of directors of the district shall declare such candidate elected as a director, and the secretary of the board of the district shall immediately make and deliver to such person a certificate of election.

For the purpose of achieving an orderly transition to a term of six (6) years and to hold trustee elections in odd-numbered years, the following schedule shall be followed:

1. For trustees elected in 2005, their terms shall expire in 2011 and the terms for each of those elected in 2011 shall be six (6) years and thereafter those terms shall be for six (6) years;
2. For trustees elected in 2006, their terms shall expire in 2013 and the terms for each of those elected in 2013 shall be six (6) years and thereafter those terms shall be for six (6) years;
3. For trustees elected in 2007, their terms shall expire in 2013 and the terms for each of those elected in 2013 shall be six (6) years and thereafter those terms shall be for six (6) years;
4. For trustees elected in 2008, their terms shall expire in 2015 and the terms for each of those elected in 2015 shall be six (6) years and thereafter those terms shall be for six (6) years;
5. For trustees elected in 2009, their terms shall expire in 2015 and the terms for each of those elected in 2015 shall be six (6) years and thereafter those terms shall be for six (6) years;
6. For trustees elected in 2010, their terms shall expire in 2017 and the terms for each of those elected in 2017 shall be six (6) years and thereafter those terms shall be for six (6) years.

§ 39-1330A, 39-1330B. One nomination — No board election — Write in candidacy — Declaration of intent. [Repealed.]

§ 39-1331. Powers and duties of board.

For and on behalf of the district the board shall have the following powers:

1. a. To have and use a corporate seal.
2. b. To have perpetual existence.
3. c. To sue and be sued and be a party to suits, actions and proceedings.
4. d. To purchase, acquire, dispose of and encumber real and personal property and hold lands, buildings, and all types of property, make such contracts and purchases, acquire and hold such personal property as may be necessary or convenient for its purposes, provided, however, that before any real property of such district may be sold, notice thereof must be given by publication in a legal newspaper of general circulation in the county where such district is situated for three (3) consecutive weekly issues.
5. e. In addition to the other means providing revenue for such districts as herein provided, the board shall have the power and authority to levy and collect ad valorem taxes on and against all taxable property within the district, as hereinafter provided.
6. f. To borrow money and incur indebtedness and evidence the same by certificates, notes or debentures, and to issue bonds in accordance with the provisions of this act.
7. g. To refund any bonded indebtedness of the district without an election, provided, however, that the obligations of the district shall not be increased by any refund of bonded indebtedness. Otherwise the terms and conditions of refunding bonds shall be substantially the same as those of an original issue of bonds.
8. h. To have the management, control and supervision of all the business and affairs of the district, and the construction, installation, operation and maintenance of district improvements therein or therefor.
9. i. To hire and retain agents, employees, engineers and attorneys.
10. j. To have and exercise the power of eminent domain in manner provided by law for the condemnation of private property for public use; to take any property necessary to the exercise of the powers herein granted.
11. k. To adopt and amend by-laws not in conflict with the constitution and laws of the state for carrying on business, objects and affairs of the board and of the district.
12. l. To have and exercise all rights and powers necessary or incidental to, or implied from the specific powers granted herein, including the charging of reasonable rates for services rendered to patients of said hospital or medical clinic. Such specific powers shall not be considered as a limitation upon any power necessary or appropriate to carry out the purposes and intent of this act.

§ 39-1332. Annual statement of valuation of taxable property.

On or before the third Monday in July of each year the county auditor shall deliver to the secretary of each hospital district within the county a statement showing the aggregate valuation of all the taxable property in such district, and thereafter the district board shall levy the taxes herein provided for.

§ 39-1333. Levy and collection of taxes — Initial financing.

To levy and collect taxes, as herein provided, the board shall, in each year, determine the amount of money necessary to be raised by taxation, taking into consideration other sources of revenue of the district, and shall fix a rate of levy, which when levied upon every dollar of assessed valuation of taxable property within the district, and with other revenues, will raise the amount required by the district annually to supply funds to pay for expenses of organization, purchase of necessary equipment, operation, maintenance and upkeep of the works and equipment of the district, provided, however, that said levy shall not exceed six hundredths percent (.06%) of market value for assessment purposes of all taxable property within the district for the purposes hereinbefore set forth, and provided further, that no levy shall be made in excess of four hundredths percent (.04%) of market value for assessment purposes for the purposes set forth in this section, unless the board of trustees of the district shall grant a public hearing, after notice of the time, place and purpose of said hearing has been published in a newspaper of general circulation in the district. Provided, that in the first year after organization, the board of a district may, for the purpose of organization, to finance general preliminary expenses of the district or for any other purpose of the hospital district law, and before making a tax levy, incur an indebtedness not exceeding in the aggregate a sum equal to three tenths percent (.3%) of market value for assessment purposes of all real and personal property within the district. To repay any such organizational indebtedness incurred, on or after March 21, 1985, the board shall have authority to levy and collect an additional tax not to exceed one tenth percent (.1%) of market value for assessment purposes of all taxable property within the district. Such additional levy shall not be used for any purpose other than repayment of the organizational indebtedness and interest thereon. Such additional levy may be imposed until the organizational indebtedness and interest thereon is paid in full.

§ 39-1334. Additional tax levies.

1. If it becomes necessary and expedient so to do, it shall be lawful for the board to levy additional taxes and collect revenue for the purpose of creating a reserve sinking fund for the purpose of accumulating moneys with which to add new buildings or necessary equipment, and to provide extensions of and betterments to the improvements of the district, and for such purposes may levy an additional tax not to exceed two hundredths of one percent (.02%) of the market value for assessment purposes on all taxable property in the district.
2. If the board finds it necessary to maintain the solvency of a facility or facilities, the board is authorized to levy additional taxes and collect revenue in excess of the limitations prescribed by section 39-1333, Idaho Code, for the sole purpose of retiring current or past due obligations accruing where operating expenses for such a facility or facilities have exceeded all available sources of revenue in the fiscal year preceding the anticipated date of levy; provided, that any such additional levy shall be authorized only if approved by two-thirds (2/3) of the qualified electors of the district voting at an election called and conducted in the manner specified in sections 39-1339 through 39-1342, Idaho Code.

§ 39-1335. Tax levy to pay interest on bonds and other obligations.

In addition to the taxes hereinbefore provided for, the said board shall have the authority to levy and collect taxes as herein provided in each year sufficient to promptly pay in full, when due, all interest on the principal of bond and other obligations of the district authorized as provided by sections 39-1338 and 39-1339[, Idaho Code,] of this act.

§ 39-1336. Maturing indebtedness a consideration in annual levies.

The board in certifying annual levies as herein provided, shall take into account maturing indebtedness for the ensuing year as provided in its contracts, maturing bonds, and interest on bonds and deficiencies and defaults of prior years, and shall make ample provision for the payment thereof.

§ 39-1337. Tax rate — Certification — Levy and collection.

The board shall, on or before the first day of September of each year, certify to the board of commissioners the rate so fixed with corrections that at the time and in the manner required by law for levying taxes for county purposes such board of county commissioners shall levy such taxes upon the assessed valuation of all taxable property within the district, in addition to such other taxes as may be levied by such board of county commissioners at the rate so fixed and determined. It shall be the duty of the body having authority to levy taxes within each county to levy the taxes provided in this act, and it shall be the duty of all officials charged with the duty of collecting taxes to collect such taxes at the time and in the manner and form and with like interest and penalties as other taxes are collected, and when collected, to pay the same to the district ordering its levy and collection, and the payment of such collection shall be made monthly to the treasurer of the district and paid into the depository thereof, to the credit of the district.

§ 39-1338. Bond issues authorized — Form and terms.

To carry out the purposes of this act and to pay the necessary expenses of the district, the board is hereby authorized to issue negotiable coupon bonds of the district. Bonds shall bear interest payable semiannually, and shall be due and payable serially either annually or semiannually, commencing not later than three (3) years from the date of issuance. The form and terms of said bonds, including provisions for their payment and redemption, shall be determined by the board. If the board so determines, such bonds may be redeemable prior to maturity, upon payment of a premium not exceeding three per cent (3%) of the net principal thereof. Said bonds shall be executed in the name of, and on behalf of, the district and signed by the chairman of the board with the seal of the district affixed thereto, and attested by the secretary of the board. Said bonds shall be in such denominations as the board shall determine, and the bonds and coupons thereto attached shall be payable to bearer. Interest coupons shall bear the original or facsimile signature of the chairman of the board. In all other respects, said bonds shall be issued, sold and paid in accordance with the provisions of chapter 2, title 57, Idaho Code, known as the “Municipal Bond Law” of the state of Idaho.

§ 39-1339. Creation of indebtedness for works, improvements or equipment — Election on proposed indebtedness — Indebtedness or liability without election.

1. Whenever the board of the hospital district shall by resolution determine that it is in the interest of said district and in the public interest or necessity to purchase, contract, lease or construct or otherwise acquire facilities, equipment, technology and real property for health care operations or make any contract with the United States or other persons or corporations, public or private, municipalities or governmental subdivisions to carry out the said public works, acquisitions, improvements, objects or purposes of said district requiring the creation of an indebtedness payable out of taxes of five hundred thousand dollars ($500,000) or more, and in any event when the indebtedness will exceed the income and revenue provided for the year, the board shall order the submission of the proposition of issuing such obligations or bonds or creating other indebtedness payable out of taxes to the qualified electors of the district at an election held, subject to the provisions of section 34-106, Idaho Code, for that purpose. The declaration of public interest or necessity, herein required, and the provision for the holding of such election may be included within one (1) and the same resolution, which resolution, in addition to such declaration of public interest or necessity shall recite the objects and purposes for which the indebtedness is proposed to be incurred, the estimated costs of the works, improvements, or medical or business equipment, as the case may be, the amount of principal of the indebtedness to be incurred therefor, and the maximum rate of interest to be paid on such indebtedness. Such resolutions shall also fix the date upon which such election shall be held, and the manner of holding the same in accordance with the provisions of title 34, Idaho Code, and the method of voting for or against the incurring of the proposed indebtedness; such resolution shall designate the polling place or places and the county clerk shall appoint judges, provided, however, that no district shall issue or have outstanding its coupon bonds in excess of two percent (2%) of the market value for assessment purposes of the real and personal property within the said district, according to the assessment of the year preceding any such issuance of such evidence of indebtedness for any or all of the propositions specified in this election, provided, however, that such bonds shall not be issued, nor shall any indebtedness be incurred, at any time that there shall be a bond issue outstanding and unpaid for the construction, acquisition or maintenance of a county hospital in the county in which such district is organized.
2. No election shall be required for any lease or other transaction entered into between the hospital district and the Idaho health facilities authority. Notwithstanding any other provision, the hospital district shall be entitled to enter into a lease or other transaction regardless of the amount involved with the Idaho health facilities authority upon determination by the board of the hospital district that it is in the interest of the hospital district and best interests of the public to enter into such lease or other transaction.
3. Notwithstanding subsection (1) or (2) of this section and provided that no property tax revenues shall be used for payment of indebtedness authorized by this subsection, district hospitals, ancillary to their operations and in furtherance of health care needs in their service areas, may incur indebtedness or liability without an election to purchase, contract, lease or construct or otherwise acquire facilities, equipment, technology and real property for health care operations.

§ 39-1340. Notices of election on proposed indebtedness.

When such election is ordered to be held, subject to the provisions of section 34-106, Idaho Code, the board shall direct the county clerk as provided in section 34-1406, Idaho Code, to give notice by publication once not less than twelve (12) days prior to the election and a second time not less than five (5) days prior to the election published in one (1) or more newspapers within the district, if a newspaper is published therein. Said notices shall recite the action of the board in deciding to bond the district, the purpose thereof and the amount of the bonds supposed to be issued, the estimated costs of the works or improvements as the case may be, the amount of principal of the indebtedness to be incurred therefor, and the maximum rate of interest to be paid on such indebtedness, and shall also specify the date of the election and the time during which the polls shall be open. Notices shall also list the polling places.

§ 39-1341. Conduct of election for proposed indebtedness.

The county clerk shall conduct the election in a manner prescribed by law in title 34, Idaho Code. The returns thereof shall be canvassed and the results thereof shall be declared by the board of county commissioners.

§ 39-1342. Indebtedness incurred upon favorable vote — Resubmission of proposition not received favorably.

In the event that it shall appear from said returns that two-thirds (2/3) of the qualified electors of the district voting at such election shall have voted in favor of such proposition or any proposition submitted hereunder at such election, the district shall thereupon be authorized to incur such indebtedness or obligations, enter into such contract or issue and sell bonds of the district, as the case may be, all for the purpose or purposes, and object or objects provided for in the propositions submitted hereunder and in the resolution therefor and in the amount so provided at a rate of interest not exceeding the rate of interest recited in such resolution. The submission of the proposition of incurring such obligation or bonded or other indebtedness at such an election shall not prevent or prohibit submission of the same, or other propositions, at subsequent election or elections called for such purpose at any time, held subject to the provisions of section 34-106, Idaho Code.

§ 39-1343. Officials and sureties liable on bond.

All county officers entrusted with the assessment, collection, paying over or custody of taxes of any hospital district within the county, and their sureties, shall be liable upon their official bonds for the faithful performance of their duties in the assessment, collection and safe keeping of such hospital district taxes.

§ 39-1344. Taxes levied a lien — Collection.

All taxes levied by hospital districts, shall become a lien upon the property so assessed from the date of such assessment, and shall be due and payable at the time state and county taxes are due and payable and in all respects are to be collected in the same way, except that the assessor must keep a separate list or assessment roll therefor.

§ 39-1345. Due and delinquent dates of taxes assessed.

All hospital district taxes levied and assessed under the provisions of this act shall become due and delinquent and shall attach to and become a lien on the real property assessed at the same time as state and county taxes. All the provisions of the Idaho Code governing and assessing and collecting state and county taxes are hereby made applicable to the assessment and collection of said hospital district taxes wherever the same are not inconsistent with the provisions of this act.

§ 39-1346. Treasurer of hospital district — Duties.

It is hereby made the duty of the treasurer of the hospital district to keep account with such district, to place to the credit of such district all moneys received by him from the collector of taxes, or from any other officer charged with the collection of taxes as the proceeds of taxes levied by the hospital board or from any other sources and of all other moneys belonging to such district and to pay over all moneys belonging to the district by legally drawn warrants or orders of the district officer entitled to draw the same.

§ 39-1346A. [Reserved.]

It shall be the duty of the treasurer of a hospital district to invest idle moneys of such hospital. Such investment of idle moneys shall be limited to investments that carry an A rating or better by a commonly known rating service and that are authorized by the legislature for the state treasurer pursuant to sections 67-1210 and 67-1210A, Idaho Code.

§ 39-1347. Warrants and drafts — Payment.

The secretary shall countersign all drafts and warrants on the district treasury, and no payment of district funds shall be made except on draft or warrant countersigned by him. He shall not countersign any such draft or warrant until he has found that payment has been legally authorized; that the money therefor has been duly appropriated and that such appropriation has not been exhausted.

Such warrants shall be drawn by, and countersigned upon the order of the president of the hospital board, or, in his absence, the other member of the board; but no drafts or warrants shall be drawn, except upon the appropriation of the board, nor in excess of the moneys actually in the district treasury; except that warrants may be issued in anticipation of the collection of taxes, but not in excess of seventy-five per cent (75%) of the amount of the levy therefor, nor shall any warrants be issued nor indebtedness incurred in anticipation of such levy.

When a warrant is presented for payment, if there is money in the treasury for the purpose, the treasurer must pay the same and write on the face thereof, “paid”, the date of payment and sign his name thereto.

§ 39-1348. Warrants — Inability to pay — Indorsement.

When any warrant is presented to the district treasurer for payment, and the same is not paid for want of funds, the treasurer must endorse on the back of said warrant, “not paid for want of funds,” and shall write thereon the day of presentation and sign his name thereto, and warrants so endorsed by the treasurer shall draw interest at a rate established by the board of the hospital district from the date of endorsement until paid.

§ 39-1349. Bulletin board — Notices posted for presentation of district warrants.

The district treasurer shall provide himself, at the expense of the district, with a bulletin board, across the top of which shall be printed or inscribed the words “. . . . hospital district warrant bulletin.” It shall be the duty of the treasurer to keep such bulletin board conspicuously, securely and permanently in place in his office, and thereupon to place in a manner which will insure continuous notice of not less than sixty (60) days, all notices issued by him, whether written or printed, calling for the presentation of district warrants for payment.

§ 39-1350. Notice warrants will be paid on presentation.

Whenever there is an amount to the credit of the district fund, as shown by the books of the treasurer, sufficient to pay the warrant or warrants next entitled to payment therefrom, the treasurer shall immediately place in his office, as provided in the preceding section, a notice that such warrant or warrants will be paid on presentation, stating therein the number and series of any such warrants; and the treasurer shall thereupon send, by mail, to the record holder of such warrant, in case such holder shall have left with the treasurer his address for that purpose, notice that such warrant will be paid on presentation.

§ 39-1351. Interest on warrants — Cessation thirty days from posting notice.

Interest on any warrant shall cease on the expiration of thirty (30) days from the time of posting of the notice provided for in the last preceding section; and for all sums which may be paid by the treasurer, as interest on any warrant or warrants, after the expiration of thirty (30) days from the earliest date at which there were sufficient funds with which to have called and paid the same, such treasurer and his sureties shall be liable upon his official bond.

§ 39-1352. Notation of interest amount on warrant.

When the treasurer pays any warrant on which any interest is due, he must note on the warrant the amount of interest paid thereon and enter on his account the amount of such interest distinct from the principal.

§ 39-1353. Power to issue and sell tax anticipation notes or bonds.

Hospital districts created and existing under this chapter shall have the further power to issue and sell tax anticipation notes or bonds in the manner, and for the purposes and to the extent authorized by chapter 31 of title 63 of Idaho Code.

§ 39-1353a. Practice of medicine not authorized.

Anything to the contrary hereinabove notwithstanding, this act shall not be construed to permit or authorize any hospital district or hospital therein in the state of Idaho directly or indirectly to engage in the practice of medicine as defined in chapter 18, title 54, Idaho Code, which privilege is reserved exclusively to persons licensed for that purpose pursuant to chapter 18, title 54, Idaho Code.

§ 39-1354. Annexation of territory not having a tax supported hospital — Petitions and signatures — Election.

1. Any area contiguous to a hospital district which does not support another tax supported hospital may become annexed to the district by petition and election.
2. A petition for annexation shall comply with the requirements of section 39-1320, Idaho Code, in the area seeking to become annexed to the hospital district. A true copy of the petition shall be transmitted to the board of trustees of the district, and to the board of county commissioners in each county affected. The board of trustees of the hospital district may approve or disapprove such petition, and shall give notice of its decision to the board of county commissioners in each county affected.
3. When it has received notice of approval of the board of trustees of the district, the board of county commissioners in the county or counties in which the petition arose shall enter its order calling for an election on the question. The election shall be held in the area proposed to be annexed. Notice of the election shall be given, the election shall be conducted, and the returns thereof canvassed as provided in sections 39-1323, 39-1324 and 39-1325, Idaho Code. The ballot shall bear the question: “Shall .... become part of the .... hospital district .... Yes” and “Shall .... become part of the .... hospital district .... No” each followed by a box in which the voter may express his choice by marking a cross. The proposal shall be deemed approved only if the majority of the votes cast is in the affirmative.
4. If the proposal has been approved at the election, the board of county commissioners in each county in which the district is located following annexation shall enter its order amending the boundaries of the district, and a copy shall be transmitted to the board of trustees of the hospital district. Annexation shall be effective as of the date of the last such order entered.
5. Such other notices as may be required by law shall be filed by the board of trustees of the hospital district with the state tax commission within ten (10) days of the effective date of the change, including a legal description and map of the altered boundaries.
6. Addition of new territory to an existing hospital district shall not be considered an initial establishment. The existing board of trustees shall continue to serve for the term for which elected. When a vacancy occurs, appointment shall be made as provided in section 39-1326, Idaho Code.

§ 39-1355. Existing tax supported hospitals may consolidate.

The ownership and operation of any municipal, city/county, county, district, or tax supported community hospital or medical clinic may be consolidated with an established hospital district by majority vote of the qualified electors of the established hospital district and of the political subdivision having jurisdiction over such other tax supported hospital according to procedure set forth in section 39-1354, Idaho Code. A true copy of the petition and the established hospital district board’s notice of approval or disapproval shall be sent to the governing body of the political subdivision having jurisdiction over a petitioning hospital. A true copy of that petition shall, at the same time, be sent to the governing body of the nonpetitioning hospital. When the notice carries the approval of the boards, or other governing bodies of both hospitals, that governing body shall conduct the election and give notice of the results to the hospital district board and the relevant boards of county commissioners as provided in section 39-1354, Idaho Code. As a result of any such consolidation, the boundaries of the hospital district remaining after consolidation shall be expanded to include the political subdivision which previously had jurisdiction over the consolidated hospital or medical clinic.

§ 39-1356. Equalization of levy between consolidating hospitals.

1. When two (2) districts’ hospitals or medical clinics have agreed to consolidate, the tax levies of the two (2) hospitals will be equalized in the following manner: the certified budget figures from ad valorem taxes of the district will be added together. The resulting figure will provide the base budget amount for the new consolidated district. In any such consolidation, the existing bonded debt of any district or districts shall not become the obligation of the proposed consolidated hospital district. The debt shall remain an obligation of the property which incurred the indebtedness.

§ 39-1356A. Hospital districts in more than one county. [Repealed.]

§ 39-1357. Adjustment of boundary lines or consolidation of hospital districts.

When there are two (2) or more hospital districts, which have at least one (1) common boundary, the boards of trustees of the hospital districts, meeting together, may determine that it is in the best interest of the qualified electors and prospective hospital patients that the boundary lines be adjusted or that the districts be consolidated, as herein provided.

The boards of trustees shall jointly prepare a petition describing the boundaries of the existing hospital districts, the names of the existing hospital districts, and praying for the reorganization of the territory therein described as one (1) or more hospital districts to be known as the “.... hospital district or districts” and with boundaries as set forth in the petition.

The petition shall be signed by the chairpersons of the hospital boards upon majority approval of the respective boards involved in the boundary adjustment or consolidation.

The petition shall be forwarded to the clerk of the board of county commissioners in each of the counties affected who shall verify the signatures, and shall file the petition. Thereupon, the board of county commissioners in each of the counties affected shall proceed with the hearing and resolution as outlined in sections 39-1320, 39-1321 and 39-1322, Idaho Code, and an election in the manner required for the establishment of a hospital district.

In the order granting the petition and adjusting the boundaries or establishing consolidation, the board of county commissioners in all counties affected shall certify the new boundaries and the name of the district or districts.

A copy of the order shall be transmitted to the board of trustees of the hospital districts involved.

Such other notices as may be required by law shall be filed by the board of trustees of the district, including a legal description and map of altered boundaries to be filed with the state tax commission within ten (10) days of the effective date of the change.

Following boundary adjustment, the board of county commissioners within five (5) days shall take action to reaffirm members of the board of trustees, or to appoint members of the board or boards, who shall be chosen from the members of the boards initiating the boundary adjustment to the extent possible. These trustees shall serve until the next annual election of trustees or until their successors are elected and qualified as provided in section 39-1326, Idaho Code. The board or boards of trustees shall be sworn by a member of the board of county commissioners.

Following a consolidation, the board of county commissioners within five (5) days shall appoint the members of the first board of trustees, who shall be chosen from the members of the boards of the consolidated districts and who shall serve until the next annual election of trustees or until their successors are elected and qualified. The board shall be sworn by a member of the board of county commissioners.

§ 39-1358 — 39-1389. Hospital districts established — Procedure. [Repealed.]

§ 39-1390. Reports to law enforcement agencies of certain types of injuries.

1. As soon as treatment permits, any person operating a hospital or other medical treatment facility, or any physician, resident on a hospital staff, intern, physician assistant, nurse or emergency medical technician, shall notify the local law enforcement agency of that jurisdiction upon the treatment of or request for treatment of a person when the reporting person has reason to believe that the person treated or requesting treatment has received:
   1. Any injury inflicted by means of a firearm; or
   2. Any injury indicating that the person may be a victim of a criminal offense.
2. The report provided to the law enforcement agency pursuant to subsection (1) of this section shall include the name and address of the injured person, the character and extent of the person’s injuries, and the medical basis for making the report. Provided however, that when an adult injured person is being seen for the purposes of administration of an anonymous sexual assault evidence kit pursuant to section 67-2919, Idaho Code, the name, address, and any other personally identifying information of the adult injured person shall not be included in the report.
3. Any person operating a medical facility, or any physician, resident on a hospital staff, intern, physician assistant, nurse or emergency medical technician, shall be held harmless from any civil liability for reasonable compliance with the provisions of this section.

§ 39-1391. Emergency treatment without admission — Liability.

Any hospital licensed in this state may provide to any person appearing or represented to be seriously sick or injured, without admission of such person to the hospital and without the immediate presence of a licensed physician and surgeon, such emergency treatment and care or, if such hospital does not maintain and operate an emergency department, such first aid services and care as may be indicated, considering the facilities and personnel available. Neither any hospital nor its agents or employees providing such services, pursuant to standby orders duly promulgated by the medical staff of said hospital, shall be deemed, by so doing, to be engaged in the practice of medicine, nor shall any such hospital, its agents or employees, or any physician be held liable in any civil action arising out of the furnishing of such services and care, in the absence of gross negligence under the existing circumstances.

§ 39-1391a. Emergency treatment not to constitute admission.

The furnishing of emergency or first aid services and care as permitted by section 39-1391[, Idaho Code,] shall not in and of itself constitute admission to such hospital of the person receiving such services and care, nor shall such hospital, its employees, or any physician be subject to civil suit for abandonment or failure to provide care if, upon examination by a licensed physician and surgeon, it is determined by such physician, in the good faith exercise of his professional judgment, that the admission of any person receiving or presented for such services and care is not advisable or required.

§ 39-1391b. Emergency treatment by hospital not required — Discrimination prohibited.

Nothing in this act shall be deemed to require any hospital to provide facilities or personnel for the furnishing of such emergency or first aid services and care or to furnish such services and care, without admission by a licensed physician and surgeon, to any person who may request the same; provided, however, that emergency or first aid services and care shall not be refused to any person by reason of race, creed, national origin or financial ability to pay therefor.

§ 39-1391c. Immunity from civil liability.

Any licensed physician and surgeon shall be conclusively presumed to be qualified to undertake and to furnish any emergency medical or surgical care and treatment, regardless of the specialty training or skills which might otherwise be preferred for care and treatment of the particular patient, whenever, in the good faith judgment of such physician and surgeon, the condition and best interests of the patient require such physician and surgeon to undertake such care and treatment, and, in the absence of gross negligence under the existing circumstances, no physician so proceeding nor any hospital where such care and treatment is provided shall be held liable in any civil action arising out of the furnishing of such emergency care and treatment.

Nothing in this act shall be deemed to require any physician to undertake to or to furnish medical care and treatment, whether on an emergency basis or otherwise, to any person requesting or presented for such care and treatment, nor shall any such physician be held liable in any civil action by reason of his refraining from the furnishing of such care and treatment or referring the same to a specialist or other physician believed by him to be more uniquely or appropriately experienced and qualified. Neither shall any physician responding to any request for emergency care be held liable in any civil action by reason of failure to so respond with any greater promptness than may be reasonably required or expected, under the existing circumstances, of physicians and surgeons practicing in the particular community where such care and treatment is to be furnished.

§ 39-1392a. Definitions.

The following terms shall have the following meanings when used in this section:

1. “Emergency medical services personnel” means emergency medical services providers certified by the department of health and welfare pursuant to section 56-1011 et seq., Idaho Code, and ambulance-based clinicians as defined in the rules governing emergency medical services as promulgated by the department of health and welfare.
2. “Group medical practice” means a partnership, corporation, limited liability company, or other association formed for the purpose of offering health care services through physicians and other licensed or otherwise authorized health care providers who are partners, shareholders, members, employees, or contractors of such group medical practice.
3. “Health care organization” means a hospital, in-hospital medical staff committee, medical society, managed care organization, licensed emergency medical service, group medical practice, residential care facility or skilled nursing facility.
4. “Hospital” means a facility in Idaho licensed under sections 39-1301 through 39-1314, Idaho Code, and defined in section 39-1301(a)(1), Idaho Code.
5. “In-hospital medical staff committees” means any individual doctor who is a hospital staff member, or any hospital employee, or any group of such doctors and/or hospital employees, who are duly designated a committee by hospital staff bylaws, by action of an organized hospital staff, or by action of the board of directors of a hospital, and which committee is authorized by said bylaws, staff or board of directors, to conduct research or study of hospital patient cases, or of medical questions or problems using data and information from hospital patient cases.
6. “Licensed emergency medical service” means an ambulance service or a nontransport service licensed by the department of health and welfare pursuant to section 56-1011 et seq., Idaho Code.
7. “Managed care organization” means a public or private person or organization which offers a managed care plan.
8. “Managed care plan” means a contract of coverage given to an individual, family or group of covered individuals pursuant to which a member is entitled to receive a defined set of health care benefits through an organized system of health care providers in exchange for defined consideration and which requires the member to use, or creates financial incentives for the member to use, health care providers owned, managed, employed by or under contract with the managed care organization.
9. “Medical society” means any duly constituted, authorized and recognized professional society or entity made up of physicians licensed to practice medicine in Idaho, having as its purpose the maintenance of high quality in the standards of health care provided in Idaho or any region or segment of the state, operating with the approval of the Idaho state board of medicine, or any official committee appointed by the Idaho state board of medicine.
10. “Patient care records” means written or otherwise recorded, preserved and maintained records of the medical or surgical diagnostic, clinical, or therapeutic care of any patient treated by or under the direction of licensed professional personnel, including emergency medical services personnel, in every health care organization subject to this act, whether as an inpatient or outpatient of the health care organization.
11. “Peer review” means the collection, interpretation and analysis of data by a health care organization for the purpose of bettering the system of delivery of health care or to improve the provision of health care or to otherwise reduce patient morbidity and mortality and improve the quality of patient care. Peer review activities by a health care organization include, without limitation: (a) Credentialing, privileging or affiliating of health care providers as members of, or providers for, a health care organization;
12. “Peer review records” means all evidence of interviews, reports, statements, minutes, memoranda, notes, investigative graphs and compilations and the contents thereof, and all physical materials relating to peer review of any health care organization. “Peer review records” does not mean or include patient care records; provided however, that the records relating to the identification of which particular patient care records were selected for, or reviewed, examined or discussed in peer review by a health care organization and the methodology used for selecting such records shall be considered peer review records.
13. “Skilled nursing facility” means a facility licensed under chapter 13, title 39, Idaho Code, to provide skilled care to recipients.

(b) Quality assurance and improvement, patient safety investigations and analysis, patient adverse outcome reviews, and root-cause analysis and investigation activities by a health care organization; and

(c) Professional review action, meaning an action or recommendation of a health care organization which is taken or made in the conduct of peer review, that is based on the competence or professional conduct of an individual physician or emergency medical services personnel where such conduct adversely affects or could adversely affect the health or welfare of a patient or the physician’s privileges, employment or membership in the health care organization or in the case of emergency medical services personnel, the emergency medical services personnel’s scope of practice, employment or membership in the health care organization.

§ 39-1392b. Records confidential and privileged.

Except as provided in section 39-1392e, Idaho Code, all peer review records shall be confidential and privileged, and shall not be directly or indirectly subject to subpoena or discovery proceedings or be admitted as evidence, nor shall testimony relating thereto be admitted in evidence, or in any action of any kind in any court or before any administrative body, agency or person for any purpose whatsoever. No order of censure, suspension or revocation of licensure, or of a certification in the case of emergency medical services personnel, or health care organization privilege of any physician licensed to practice medicine in Idaho shall be admissible in any civil proceeding seeking damages or other civil relief against the physician, emergency medical services personnel, or health care organization which may be a defendant in said cause. However, this section shall not prohibit or otherwise affect the use of documents, materials or testimony in health care organization proceedings, nor shall it prohibit or otherwise affect the dissemination, for medical purposes, of information contained in such documents or materials or the conclusions and findings of such health care organization. This section shall not affect the admissibility in evidence in any action or proceeding of the patient care records of any patient.

§ 39-1392c. Immunity from civil liability.

The furnishing of information or provision of opinions to any health care organization or the receiving and use of such information and opinions shall not subject any health care organization or other person to any liability or action for money damages or other legal or equitable relief. Custodians of such records and persons becoming aware of such data and opinions shall not disclose the same except as authorized by rules adopted by the board of medicine or as otherwise authorized by law. Any health care organization may receive such disclosures, subject to an obligation to preserve the confidential privileged character thereof and subject further to the requirement that such requests shall be made and such use shall be limited to aid the health care organization in conducting peer review.

§ 39-1392d. Property of health care organization.

All peer review records of a health care organization shall be the property of the health care organization concerned which obtains or compiles the same. A health care organization may provide peer review records to persons or entities that perform accreditation, certification or quality assurance review or evaluation of the health care organization. The provision of any peer review records to such persons or entities shall not be deemed to be a waiver by the health care organization of any peer review privilege. Persons and entities receiving peer review records shall preserve the confidential privileged character thereof and such persons and entities shall not be subject to subpoena or order compelling production of peer review records. Nothing in this section shall be deemed to require the health care organization to provide persons or entities with peer review records. A health care organization may provide peer review records to persons or entities with whom the health care organization is affiliated through any common ownership interest or by contract, which affiliation or contract includes the person’s or entity’s involvement in the peer review process or the provision of any management or administrative services to the health care organization. The provision of peer review records to such persons or entities shall not be deemed to be a waiver by the health care organization of any peer review privilege. Such persons and entities receiving peer review records shall preserve the confidential privileged character thereof, and such persons and entities shall not be subject to any subpoena or order compelling production of peer review records. Nothing in this section shall be deemed to require the health care organization to provide such persons or entities with peer review records. This section shall in no way impair the rights of individuals conducting such research or studies in the exercise of any right or the discharge of any legitimate responsibility which they may have in connection with such research or studies and the results thereof. Nothing in this act shall be construed as restricting or altering the rights of inspection and copying by patients and their duly authorized representatives with respect to such patients’ official patient care records, which right of copying and inspection and use of patient care records and their contents in appropriate judicial proceedings is unaltered by this enactment.

§ 39-1392e. Limited exceptions to privilege and confidentiality.

1. In the event of a claim or civil action against a physician, emergency medical services personnel, a hospital, a residential care facility or a skilled nursing facility arising out of a particular physician-patient, emergency medical services personnel-patient, hospital-patient, residential care facility-patient or skilled nursing facility-patient relationship, or which concerns the sufficiency of the delivery of particular health care to a specific patient, any health care organization having information of the kind covered by section 39-1392b, Idaho Code, shall, when interrogated as hereinafter provided, advise any such claimant who is or was such a patient or who, in a representative capacity, acts on behalf of such patient or his heirs, as follows:
   1. Whether it has conducted or has in progress an inquiry, proceeding or disciplinary matter regarding the quality or propriety of the health care involved, which concerns the subject patient while he was under the care or responsibility of a member of such health care organization or while he was a patient in such hospital or facility; and, if so,
   2. Whether disposition of any kind resulted or will result therefrom; and, if so,
   3. What the disposition was, or, if not yet determined, approximately when it will be determined.
2. Such a claimant shall likewise be entitled to inquire of such health care organization respecting the names and addresses of persons who such health care organization knows to have direct knowledge of the provision of the health care in question, such inquiry to be limited, however, to the particular patient and the particular times and occasions germane to the specific occurrences on which the claim is based; provided, names shall not be disclosed respecting persons who have gained secondary knowledge or formed opinions respecting the matter solely by participating as witnesses, officials, investigators or otherwise on, for, or in connection with such a health care organization committee, staff, governing board or the state board of medicine.
3. Such limited, conditional discovery and disclosure of information as provided above shall be allowed only in response to inquiries directed to such a health care organization, and then only if initially propounded by a claimant of the type above described. If the matter is in litigation, inquiry may be by customary means of discovery under the Idaho rules of civil procedure, or, if pending in a United States court, then under discovery as allowed by its applicable rules; provided, pendency of the claim in the United States court or before any other tribunal shall not operate to broaden the exception to the rules of privilege, confidentiality and immunity set down in this act.
4. Such disclosures may be voluntarily made without judicial order or formal discovery if all disciplined, accused or investigated physicians or emergency medical services personnel consent thereto, and if privileged or confidential information regarding any other patient, physician, emergency medical services personnel, or person will not be disclosed thereby. When the terms of this paragraph are complied with, such voluntary disclosures may be made without civil liability therefor as if in due response to valid judicial process or order.
5. If any claimant makes such inquiry of any such health care organization, he shall be deemed to have consented to like inquiry and disclosure rights for the benefit of all parties against whom he asserts such claim or brings such suit or action, and all other persons who are parties to such action, and thereafter all such persons and parties may invoke the provisions of this section, seeking and securing specific information as herein provided for the benefit of such claimant, to the same extent as the same is allowed to such claimant.
6. If any physician, emergency medical services personnel, patient, person, organization or entity whose conduct, care, chart, behavior, health or standards of ethics or professional practice is the subject of investigation, comment, testimony, dispositive order of any kind or other written or verbal utterance or publication or act of any such health care organization or any member or committee thereof in the course of research, study, disciplinary proceeding or investigation of the sort contemplated by this act, makes claim or brings suit on account of such health care organization activity, then, in the defense thereof, confidentiality and privilege shall be deemed waived by the making of such claim, and such health care organization and the members of their staffs and committees shall be allowed to use and resort to such otherwise protected information for the purpose of presenting proof of the facts surrounding such matter, and this provision shall apply whether such claim be for equitable or legal relief or for intentional or unintentional tort of any kind and whether pressed by a patient, physician, emergency medical services personnel, or any other person, but such waiver shall only be effective in connection with the disposition or litigation of such claim, and the court shall, in its discretion, enter appropriate orders protecting, and as fully as it reasonably can do so, preserving the confidentiality of such materials and information.

Such disclosure of information shall be limited to the health care organization’s actions in connection with the physician, emergency medical services personnel, hospital or skilled nursing facility against whom such claim is asserted.

§ 39-1392f. Peer review.

Every hospital subject to this act shall cause the hospital’s medical staff to organize in-hospital medical staff committees which shall have the responsibility of reviewing the professional practices of members of the hospital’s medical staff for the purpose of reducing morbidity and mortality, and for the improvement of the care of patients in the hospital. This review shall include, but not be limited to, the quality and necessity of care provided to patients.

§ 39-1392g. Medical staff membership and privileges.

1. Except as specifically provided in subsection (2) of this section, nothing in this section shall in any way change the authority of the governing body of any health care organization to make such rules, regulations, standards or qualifications for medical staff membership as it, in its discretion, may deem necessary or advisable, or to grant or refuse membership on a medical staff.
2. An applicant for medical staff membership or privileges in a health care organization that has an organized medical staff, an applicant for reappointment to the medical staff of such health care organization, or a current member of the medical staff of such health care organization shall not be denied medical staff membership or privileges, nor shall membership or privileges be withdrawn, revoked, suspended or limited by such health care organization for the reason that:
   1. The applicant or current member of the medical staff holds an ownership interest in one (1) or more competing health care organizations;
   2. The applicant or current member of the medical staff is affiliated with one (1) or more competing health care organizations; or
   3. The applicant or current member of the medical staff is a competitor of one (1) or more members of the medical staff.
3. Nothing in this section shall require a health care organization to grant privileges to an applicant for services that are subject to an exclusive contract or not offered in that facility.
4. Nothing in this section shall be interpreted as changing the privilege, confidentiality, discoverability and admissibility of the information and records granted in section 39-1392b, Idaho Code.

§ 39-1393. Notification of professional review action imposed upon physician or emergency medical services personnel.

1. Any health care organization in this state that is by law required to conduct peer review or which voluntarily formally elects to conduct professional review actions shall notify the board of medicine of professional review actions taken against physicians licensed in Idaho required to be reported as provided in this section. Such reports shall be made to the board of medicine within fifteen (15) days of completion of the professional review action by the health care organization. For emergency medical services personnel, such reports shall be made to the department of health and welfare within fifteen (15) days of completion of the professional review action by the health care organization. Such required reports shall be made on forms approved by the board of medicine for reports concerning physicians, or the department of health and welfare for reports concerning emergency medical services personnel, consistent with the reporting requirements of this section. The reporting obligation shall not be stayed by the filing of any court proceeding unless otherwise ordered by the court.
2. A health care organization in Idaho shall report to the board of medicine if it:
   1. Takes a professional review action against a physician licensed in Idaho and imposes a sanction of the type included in subsection (3) of this section which lasts longer than thirty (30) days; or
   2. Accepts a voluntary sanction by a physician licensed in Idaho of the type identified in subsection (3) of this section while the physician is under investigation or to avoid investigation by the health care organization relating to the professional competence or professional conduct of the physician or in exchange for the health care organization not conducting such an investigation or initiating a professional review action, if the sanction lasts longer than thirty (30) days.
3. Professional review action sanctions against a physician which must be reported to the board of medicine pursuant to subsection (2) of this section, whether voluntary or involuntary, shall be:
   1. Restriction or limitation of privileges;
   2. Revocation of privileges;
   3. Suspension of privileges;
   4. Reduction of privileges;
   5. Denial of a request for initial privileges;
   6. Submission to monitoring of the physician’s physical or mental condition;
   7. Submission to monitoring of the physician’s delivery of medical services other than to assess and monitor the physician’s qualifications for new or additional privileges;
   8. Surrender of privileges;
   9. Summary suspension or reduction of privileges lasting longer than thirty (30) days;
   10. Termination of employment;
   11. Suspension of employment lasting longer than thirty (30) days.
4. The reporting requirements of this section shall not apply to:
   1. Actions based on compliance with medical records or confidentiality requirements of a health care organization;
   2. Voluntary requests for assistance or monitoring by a physician as part of an educational process to improve physician skills or enhance patient care when unrelated to a professional review action concerning the quality or necessity of patient medical care;
   3. Voluntary or involuntary revocation, nonrenewal, denial, reduction, restriction, resignation, or limitation of privileges or employment of a physician based upon factors not directly impacting the quality of patient care or safety of practice of the physician;
   4. Adverse actions taken against a physician by a health care organization that is not required by law to conduct peer review and that has not voluntarily formally elected to conduct professional review actions; and
   5. The denial of a physician’s request for additional privileges or credentials with a health care organization.
5. The report to the board of medicine required by this section shall include a statement of the quality of care concerns or professional conduct that is the basis of the professional review action or investigation and the reportable professional review action sanction voluntarily accepted or involuntarily imposed.
6. A health care organization required to report a professional review action concerning a physician to the board of medicine pursuant to this section shall, if requested by the board of medicine, provide to the board the following:
   1. A statement of the specific quality of care concerns or professional conduct which resulted in the professional review action sanction;
   2. A statement of the specific professional review action sanction; and
   3. Any patient care records of the health care organization regarding the care provided by the reported physician. However, the board of medicine may not request or require production of any peer review records from any person or health care organization, including the identification of which particular patient care records were selected for, or reviewed, examined or discussed in any peer review activity of a health care organization, or the method used by the health care organization to select such patient care records for peer review.
7. The records lawfully requested by the board of medicine pursuant to subsection (6) of this section shall be provided by the health care organization without a subpoena or court order. If the health care organization fails to comply with the board of medicine’s lawful request, the board may petition the district court for an order compelling compliance with the board’s request, which shall be granted if disclosure is required by law.
8. Professional review action sanctions against emergency medical services personnel, whether voluntary or involuntary, which are the result of any action, conduct, or failure to act which is inconsistent with the professionalism and/or standards established in the rules governing emergency medical services personnel as promulgated by the department of health and welfare must be reported to the department of health and welfare.
9. The report to the department of health and welfare required by this section shall include a statement of the quality of care concerns or professional conduct that is the basis of the professional review action or investigation and the reportable professional review action sanction voluntarily accepted or involuntarily imposed. (10) Any person or health care organization that provides notification as required by law, or in a good faith belief that such notification is required by law, shall be immune from any civil or other liability arising from providing the notification. Such immunity shall likewise pertain to the provision of files, records and information a health care organization may in good faith provide to the board of medicine pursuant to this section or other applicable law. Such materials provided to the board of medicine shall be subject to disclosure by the board according to chapter 1, title 74, Idaho Code, and available only to the board of medicine and its staff unless and until such matter becomes the subject of formal proceedings by or before the board of medicine or authorized by it.

§ 39-1394. Patient care records — Retention — Authentication.

1. Retention.
   1. Hospital records relating to the care and treatment of a patient may be preserved in microfilm, other photographically reproduced form or electronic medium. Such reproduced and preserved copies shall be deemed originals for purposes of section 9-420, Idaho Code.
   2. Clinical laboratory test records and reports may be destroyed five (5) years after the date of the test recorded or reported therein, pursuant to paragraph (d) of this subsection.
   3. X-ray films may be destroyed five (5) years after the date of exposure, or five (5) years after the patient reaches the age of majority, whichever is later, pursuant to paragraph (d) of this subsection, if there are in the hospital record written findings of a physician who has read such x-ray films.
   4. At any time after the retention periods specified in paragraphs (b) and (c) of this subsection, the hospital may, without thereby incurring liability, destroy such records, by burning, shredding or other effective method in keeping with the confidential nature of their contents, provided, however, that destruction of such records must be in the ordinary course of business and no record shall be destroyed on an individual basis.
   5. For purposes of this section, the term “hospital” shall include all facilities defined as hospitals in chapter 13, title 39, Idaho Code.
2. Authentication.
   1. Hospital records relating to orders for the care and treatment of a patient or for the administration of any drug or pharmaceutical must be authenticated to ensure accuracy and patient safety.
   2. All orders must be authenticated by the author of the order or another practitioner who is responsible for the care of the patient and who is authorized to write orders by hospital policy in accordance with state law.
   3. When telephone or oral orders must be used, they must be:
   4. Accepted only by personnel authorized to do so by medical staff policies and procedures, consistent with federal and state law; and
   5. Each hospital must have in place policies and mechanisms to assure timely authentication of all orders and to assure that only the author of an order or another practitioner who is responsible for the care of the patient and who is authorized to write orders by hospital policy in accordance with state law can authenticate the order.

(d) Authentication may occur either manually, with the practitioner’s signature, or electronically by facsimile transmission signed by the practitioner or by means of a unique electronic code known only to the practitioner.

§ 39-1395. Practice of podiatry — Medical staff membership.

Except as otherwise provided in this section, no provision or provisions of this section shall in any way change or modify the authority or power of the governing body of any hospital to make such rules, standards or qualifications for medical staff membership as they, in their discretion, may deem necessary or advisable, or to grant or refuse membership on a medical staff.

An applicant for medical staff membership may not be denied membership solely on the ground that the applicant holds a license to practice podiatry issued by the Idaho state board of podiatry. The criteria utilized for granting medical staff membership shall be reasonable and shall not discriminate against podiatry.

The process for considering applications for medical staff membership and privileges shall afford each applicant due process.

All applications for medical staff membership shall be acted upon within one hundred twenty (120) days from the date the required information is submitted.

The accordance and delineation of clinical privileges for podiatrists shall be determined on an individual basis and commensurate with the applicant’s education, training, experience and demonstrated competence. In implementing these procedures, each hospital shall formulate and apply reasonable standards that do not discriminate in the evaluation of an applicant’s credentials.

A member of the medical staff licensed pursuant to chapter 18, title 54, Idaho Code, shall have responsibility for the overall medical care of the patient while in the hospital. Arrangements for the services of a member of the medical staff licensed pursuant to chapter 18, title 54, Idaho Code, for the purposes of this section shall be the sole responsibility of the admitting podiatrist and not that of the hospital or any other member of the medical staff.

§ 39-1396. Authority to admit patients.

1. A hospital or facility may grant to physicians, physician assistants and advanced practice nurses the privilege to admit patients to such hospital or facility; provided however, that admitting privileges may be granted only if the privileges are:
   1. Recommended by the medical staff at the hospital or facility;
   2. Approved by the governing board of the hospital or facility; and
   3. Within the scope of practice conferred by the license of the physician, physician assistant or advanced practice nurse.
2. A hospital or facility shall specify in its bylaws the process by which its governing body and medical staff oversee those practitioners granted admitting privileges. Such oversight shall include, but is not limited to, credentialing and competency review.

§ 39-1401. Short title.

This act may be cited as the “Health Facilities Construction Act.”

§ 39-1402. Definitions.

As used in this act:

1. “Agency” means the department of health and welfare;
2. “Federal act” shall mean, when applicable, either (1) Public Law 725 of the 79th Congress, approved August 13, 1946, entitled the Hospital Survey and Construction Act and amendments thereto or (2) Mental Retardation Facilities and Community Mental Health Centers Construction Act of 1963, Public Law 88-164, and amendments thereto or (3) Public Law 91-517 of the 91st Congress, and amendments thereto;
3. “Surgeon general” means the surgeon general of the United States department of health and human services;
4. “Health facilities” shall mean any of the following:
   1. “Hospital” means a place devoted primarily to the maintenance and operation of facilities for the diagnosis, treatment or care for not less than twenty-four (24) hours in any week of two (2) or more nonrelated individuals suffering from illness, disease, injury, deformity, or requiring care because of old age, or a place devoted primarily to providing for not less than twenty-four (24) hours in any week of obstetrical or other medical or nursing care for two (2) or more nonrelated individuals. The term hospital includes public health centers in general, tuberculosis, mental, chronic disease and other types of hospitals, and related facilities, such as laboratories, outpatient departments, nurses’ home and training facilities, and central service facilities operated in connection with hospitals;
   2. A facility for the provision of public health services, including related facilities such as laboratories, clinics, and administrative offices operated in connection with said facility;
   3. A facility specially designed for the diagnosis, treatment, education, training, or custodial care of people with intellectual disabilities, including facilities for training specialists and sheltered workshops for people with intellectual disabilities, but only if such workshops are part of facilities which provide or will provide comprehensive services for people with intellectual disabilities;
   4. A facility providing services for the prevention or diagnosis of mental illness, or care and treatment of mentally ill patients, or rehabilitation of such persons, which services are provided principally for persons residing in a particular community or communities in or near which the facility is situated or at a statewide facility;
5. “Secretary” means the secretary of health and human services of the United States, or his delegate to administer the federal act;
6. “Nonprofit facility” means a facility which is owned and operated by one (1) or more nonprofit corporations or associations no part of the net earnings of which inures, or may lawfully inure, to the benefit of any private shareholder or individual.