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title-39•Title 39 — Health and Safety
Idaho Code, published by the Idaho Legislative Services Office. Idaho Statutes are updated to the website July 1 following the legislative session.
Sections 39-101 through 39-130, Idaho Code, may be known and cited as the "Idaho Environmental Protection and Health Act."
[39-101, added 1972, ch. 347, sec. 1, p. 1017; am. 1986, ch. 60, sec. 1, p. 170.]
(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:
(a) It is the policy of the state to prevent contamination of ground water from any source to the maximum extent practical.
(b) 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.
(c) All persons in the state should conduct their activities so as to prevent the nonregulated release of contaminants into ground water.
(d) 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.
[39-102, added 1972, ch. 347, sec. 2, p. 1017; am. 1989, ch. 421, sec. 1, p. 1028; am. 2015, ch. 223, sec. 1, p. 686.]
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 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;
(3) 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;
(4) 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; and
(5) 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.
[39-102A, added 2000, ch. 132, sec. 4, p. 314; am. 2025, ch. 47, sec. 5, p. 224.]
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.
(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.
[39-103, added 1992, ch. 305, sec. 4, p. 913; am. 1993, ch. 267, sec. 1, p. 900; am. 2000, ch. 132, sec. 5, p. 315; am. 2005, ch. 167, sec. 1, p. 509; am. 2010, ch. 23, sec. 1, p. 41.]
(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.
[(39-104) 1973, ch. 87, sec. 3, p. 137; I.C., sec. 39-104b, am. and redesig. 1974, ch. 23, sec. 48, p. 633; am. 1995, ch. 365, sec. 1, p. 1276; am. 2000, ch. 132, sec. 6, p. 318; am. 2007, ch. 83, sec. 1, p. 221.]
(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).
(b) "Facilities" or "facility" means a place, site or location or part thereof where swine are kept, handled, housed or otherwise maintained and includes, but is not limited to, buildings, lots, pens and animal waste management systems, and which has a one-time animal unit capacity of two thousand (2,000) or more animal units.
(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.
[39-104A, added 1999, ch. 263, sec. 1, p. 669; am. 2000, ch. 132, sec. 7, p. 319; am. 2000, ch. 221, sec. 1, p. 614; am. 2001, ch. 103, sec. 14, p. 265; am. 2001, ch. 350, sec. 1, p. 1229; am. 2011, ch. 227, sec. 3, p. 621.]
(1) The director shall have all of the rights, powers, and duties regarding environmental protection functions, 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, 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 law relating to any purpose that 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:
(a) 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 amended, and as appropriate.
(b) The enforcement of rules relating to public water supplies and administration of 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 and regulations promulgated pursuant to the act. This includes but is not limited to the development 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.
(c) The establishment of liaison with other governmental departments, agencies, and boards in order to effectively assist other governmental entities with planning for the control or abatement of environmental pollution. All of the rules adopted by the board hereunder shall apply to state institutions.
(d) The supervision and administration of a system to safeguard air quality and to limit and control the emission of air contaminants.
(e) 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.
(f) 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 and abatement of environmental pollution.
(g) The supervision and administration of a solid waste program and issuance of approvals, licenses, and permits in accordance with the provisions of the Idaho solid waste facilities act, chapter 74, title 39, Idaho Code, and, in particular, as follows:
(i) Issuing solid waste disposal site certificates;
(ii) Providing review and approval of the design of solid waste disposal facilities and ground water monitoring systems and approval of all applications for flexible standards as provided for in 40 CFR 258;
(iii) Providing review and approval of solid waste facility operation, closure, post-closure, and financial assurance plans;
(iv) Enforcing solid waste management operations and the provisions of chapter 74, title 39, Idaho Code, rules promulgated pursuant thereto, and applicable federal law and regulations;
(v) Developing and administering the research, development, and demonstration program, which is to be implemented as a part of the existing approved solid waste program, upon approval of the United States environmental protection agency; and
(vi) Promulgating rules, as necessary, subject to legislative approval, to supplement details of compliance with the Idaho solid waste facilities act and applicable federal regulations, provided that such rules shall not conflict with or be more stringent than applicable state law, including the provisions of chapter 74, title 39, Idaho Code, and applicable federal law and regulations.
(h) The establishment, administration, and operation of:
(i) 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;
(ii) 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, and to ensure the protection of public health and the environment; and
(iii) A program to 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.
(j) 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)(a) The director shall have the power to enter into and make contracts and agreements with any public agency 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 on the department.
(b) The director shall 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.
(c) The director shall have the power to enter into and make voluntary contracts and agreements with public agencies, municipal corporations, and private parties for funding or reimbursement of staff and consultant costs necessary for the director to discharge his duties as provided by state statute and administrative rule. Such contracts and agreements shall be limited to a five (5) year term but can be renewed upon agreement of all parties. Moneys received through these contracts and agreements shall be expended pursuant to appropriation.
(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, or other documents in the department shall be admitted in evidence equally with the originals thereof when authenticated under such seal.
[39-105, added 1972, ch. 347, sec. 5, p. 1017; am. 1974, ch. 23, sec. 49, p. 633; am. 1980, ch. 325, sec. 1, p. 821; am. 1988, ch. 47, sec. 2, p. 56; am. 1989, ch. 308, sec. 3, p. 765; am. 1991, ch. 332, sec. 2, p. 860; am. 1992, ch. 307, sec. 1, p. 915; am. 1992, ch. 331, sec. 2, p. 991; am. 1993, ch. 139, sec. 22, p. 365; am. 1993, ch. 275, sec. 4, p. 928; am. 1994, ch. 75, sec. 1, p. 156; am. 1997, ch. 26, sec. 1, p. 36; am. 1999, ch. 174, sec. 1, p. 467; am. 2000, ch. 132, sec. 8, p. 319; am. 2004, ch. 335, sec. 2, p. 1002; am. 2007, ch. 83, sec. 2, p. 222; am. 2018, ch. 169, sec. 7, p. 356; am. 2023, ch. 153, sec. 1, p. 415; am. 2025, ch. 47, sec. 6, p. 225; am. 2026, ch. 7, sec. 1, p. 23.]
The director shall, 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; and
(5) Create such units, sections and subdivisions as are or may be necessary for the proper and efficient functioning of the department.
[39-106, added 1972, ch. 347, sec. 6, p. 1017; am. 1974, ch. 23, sec. 50, p. 633; am. 1987, ch. 223, sec. 2, p. 476; am. 1990, ch. 56, sec. 2, p. 129; am. 2000, ch. 59, sec. 1, p. 125; am. 2000, ch. 132, sec. 9, p. 324; am. 2025, ch. 47, sec. 7, p. 227.]
(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 of 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. At least four (4) of the board members shall represent the public’s interest and not derive any significant portion of their income from persons subject to air quality permits or enforcement orders.
(b) 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, to 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 the board may 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 a 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 on the chairman of the board, the director of the department, and 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 at least 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. 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.
(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 consistent with the rules of administrative procedure adopted pursuant to section 67-5206, Idaho Code, the provisions of this act and other statutory authority of the department.
[39-107, added 1972, ch. 347, sec. 7, p. 1017; am. 1974, ch. 23, sec. 51, p. 633; am. 1978, ch. 45, sec. 2, p. 82; am. 1980, ch. 34, sec. 1, p. 57; am. 1980, ch. 247, sec. 32, p. 604; am. 1980, ch. 325, sec. 2, p. 823; am. 1981, ch. 122, sec. 1, p. 209; am. 1993, ch. 216, sec. 23, p. 605; am. 2000, ch. 132, sec. 10, p. 325; am. 2022, ch. 107, sec. 1, p. 360; am. 2023, ch. 314, sec. 10, p. 964; am. 2025, ch. 47, sec. 8, p. 228; am. 2025, ch. 151, sec. 1, p. 736.]
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.
[(39-107A) 39-107a, added 1996, ch. 205, sec. 1, p. 630; am. 2000, ch. 21, sec. 1, p. 41; am. and redesig. 2000, ch. 132, sec. 11, p. 328; am. 2009, ch. 8, sec. 1, p. 10.]
(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.
[39-107B, added 2000, ch. 132, sec. 12, p. 328.]
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.
[39-107C, added 2000, ch. 132, sec. 13, p. 328; am. 2016, ch. 130, sec. 1, p. 386.]
(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:
(a) The best available peer reviewed science and supporting studies conducted in accordance with sound and objective scientific practices; and
(b) 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:
(a) Identification of each population or receptor addressed by an estimate of public health effects or environmental effects; and
(b) Identification of the expected risk or central estimate of risk for the specific population or receptor; and
(c) Identification of each appropriate upper bound or lower bound estimate of risk; and
(d) 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
(e) 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), 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.
[39-107D, added 2002, ch. 144, sec. 1, p. 405; am. 2003, ch. 259, sec. 1, p. 682; am. 2007, ch. 83, sec. 3, p. 225; am. 2025, ch. 47, sec. 9, p. 230; am. 2026, ch. 7, sec. 35, p. 57.]
(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:
(a) 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;
(b) 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;
(c) 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;
(d) 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:
(a) Administrative enforcement action.
(i) 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.
(ii) 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.
(iv) 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.
(v) 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.
(vi) 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.
(b) 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.
(a) 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:
(i) 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;
(ii) 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
(iii) 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.
(b) 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).
[39-108, added 1972, ch. 347, sec. 8, p. 1017; am. 1974, ch. 23, sec. 52, p. 633; am. 1986, ch. 60, sec. 2, p. 170; am. 1993, ch. 275, sec. 5, p. 933; am. 1997, ch. 94, sec. 2, p. 221; am. 2000, ch. 132, sec. 16, p. 330; am. 2014, ch. 40, sec. 1, p. 92.]
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.
[39-109, added 1986, ch. 60, sec. 4, p. 174; am. 2000, ch. 132, sec. 17, p. 333.]
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.
[39-110, added 1972, ch. 347, sec. 10, p. 1017; am. 1986, ch. 60, sec. 5, p. 175; am. 2000, ch. 132, sec. 18, p. 333.]
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.
[39-111, added 1972, ch. 347, sec. 11, p. 1017; am. 1974, ch. 23, sec. 54, p. 633; am. 1986, ch. 60, sec. 6, p. 175; am. 1990, ch. 213, sec. 34, p. 508; am. 1998, ch. 125, sec. 2, p. 464; am. 2000, ch. 132, sec. 19, p. 333; am. 2015, ch. 141, sec. 82, p. 439.]
(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.
[39-112, added 1972, ch. 347, sec. 12, p. 1017; am. 2000, ch. 132, sec. 20, p. 334.]
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.
[39-113, added 1972, ch. 347, sec. 15, p. 1017; am. 2000, ch. 132, sec. 21, p. 334; am. 2018, ch. 169, sec. 8, p. 358.]
(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:
(a) 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
(b) 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.
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.
(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.
[39-114, added 2017, ch. 56, sec. 3, p. 87; am. 2019, ch. 32, sec. 1, p. 92.]
(1) (a) The director shall have the authority to issue pollution source permits in compliance with rules established hereunder.
(b) 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:
(i) 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;
(ii) 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;
(iii) 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
(iv) 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
(v) 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.
(c) 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.
(d) 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:
(a) Violations of pollution source permits or conditions thereof without the necessity of a prior revocation of the permit; or
(b) 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.
(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:
(a) 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;
(b) The facility has complied with local planning and zoning requirements;
(c) There has been an opportunity for public participation; and
(d) 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.
[39-115, as added by 1973, ch. 138, sec. 1, p. 269; am. 1974, ch. 23, sec. 56, p. 633; am. 1987, ch. 135, sec. 1, p. 269; am. 1987, ch. 198, sec. 2, p. 418; am. 1993, ch. 275, sec. 6, p. 936; am. 2000, ch. 132, sec. 23, p. 335; am. 2005, ch. 292, sec. 2, p. 929; am. 2005, ch. 324, sec. 1, p. 994.]
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.
[I.C., sec. 39-116, as added by 1973, ch. 139, sec. 1, p. 270; am. 1974, ch. 23, sec. 57, p. 633; am. 1986, ch. 60, sec. 7, p. 175; am. 2000, ch. 132, sec. 24, p. 336.]
(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:
(a) Protection of public health;
(b) Protection of environment;
(c) Ability of the person to pay for costs of compliance;
(d) Current fiscal obligations of the person;
(e) Other factors as determined by the department or the board.
[39-116A, added 2003, ch. 317, sec. 1, p. 869.]
(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.
[39-117, added 1973, ch. 137, sec. 1, p. 268; am. 1986, ch. 60, sec. 8, p. 176; am. 1993, ch. 275, sec. 7, p. 937; am. 1998, ch. 125, sec. 3, p. 464; am. 2014, ch. 40, sec. 2, p. 95.]
(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:
(a) Plans for dairy systems pursuant to section 37-401, Idaho Code.
(b) Plans developed to evidence compliance with storm water best management practices.
(c) Plans developed for routine maintenance or equipment replacement activities.
(d) 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.
(5) All plans and specifications for the construction, modification, expansion, or alteration of waste treatment or disposal facilities for aquaculture facilities licensed by the department of agriculture for both commercial fish propagation facilities as defined in section 22-4601, Idaho Code, and sport fish propagation facilities whether private or operated or licensed by the department of fish and game and other aquaculture facilities as defined in the Idaho waste management guidelines for aquaculture operations, shall be submitted to and approved by the director of the department of environmental quality before construction may begin and all construction shall be in compliance therewith. The director shall review plans and specifications within forty-five (45) days of submittal and notify the owner or responsible party of approval or disapproval. In the event of disapproval the director shall provide reasons for disapproval in writing to the owner or responsible party. Plans and specifications shall conform in style and quality to standard industry practices and guidelines developed pursuant to this subsection. The director shall establish industry guidelines or best management practices subcommittees composed of members of the department, specific regulatory agencies for the industry, general public, and persons involved in the industry to develop and update guidelines or best management practices as needed. Within thirty (30) days of the completion of the construction, modification, expansion or alteration of facilities subject to this subsection, the owner or responsible party shall submit a statement to the director that the construction has been completed and is in substantial compliance with the plans and specifications as submitted and approved. The director shall conduct an inspection within sixty (60) days of the date of submission of the statement and shall inform the owner or responsible party of its approval of the construction or in the event of nonapproval, the reasons for nonapproval.
[39-118, as added by 1973, ch. 136, sec. 1, p. 267; am. 1974, ch. 23, sec. 58, p. 633; am. 1976, ch. 116, sec. 1, p. 453; am. 1986, ch. 60, sec. 9, p. 176; am. 1994, ch. 290, sec. 1, p. 910; am. 1996, ch. 80, sec. 1, p. 263; am. 2000, ch. 132, sec. 25, p. 336; am. 2005, ch. 321, sec. 1, p. 988.]
(1) As used in this chapter, unless the context requires otherwise:
(a) "Application" means an application for a new or major modification permit.
(b) "As-built submittal" means a report regarding the constructed cyanidation facility that is stamped by an Idaho-licensed professional engineer and that is consistent with the criteria for as-built documentation and other supporting documents, including:
(i) As-built drawings; and
(ii) Quality assurance and quality control documentation demonstrating that the constructed cyanidation facility, including controls, substantially conforms to the final permit and issued for construction data package, if applicable.
(c) "Component or phase" means physical parts or locations of a cyanidation facility or temporal sequences of all or parts of a cyanidation facility, as applicable.
(d) "Controls" means any containment structures, liners, pads, equipment, devices, procedures, or systems utilized to meet the requirements of this section.
(e) "Cyanidation" means the method of extracting target precious metals from ores by treatment with cyanide solution, which is the primary leaching agent for extraction.
(f) "Cyanidation facility" means a portion of a new ore processing facility, or a material or major modification 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.
(g) "Cyanidation pollutants" means any chemical or constituent used or concentrated during cyanidation that is present in process water, spent ore, tailings, or other material from the cyanidation process in such concentrations or amounts that, if discharged into the environment, have the potential to cause adverse effects to any beneficial use of waters of the state or to degrade waters of the state.
(h) "Department" means the Idaho department of environmental quality.
(i) "Director" means the director of the department of environmental quality or an authorized designee.
(j) "Final permit decision" means the director’s final decision to approve or deny, in whole or in part, an application for a permit or other decision to modify or revoke a previously issued permit.
(k) "Issued for construction (IFC) data package" means plans and specifications for actual construction of a cyanidation facility consistent with the criteria for the IFC data package and other supporting documents that is stamped by an Idaho-licensed professional engineer and includes the following:
(i) IFC specifications, including any storage features or secondary containments, as applicable;
(ii) A final report documenting the basis of the design;
(iii) IFC drawings depicting facility layout and typical sections;
(iv) Final capacity calculations;
(v) Final load validation, if applicable; and
(vi) Plans consistent with IFC design for closure, monitoring, water management, operations, maintenance, and surveillance.
(l) "Major modification" or "material modification":
(i) Means any change to a previously permitted cyanidation facility that the department determines will:
Cause, or increase the potential to cause, degradation of water or impairment to the beneficial use of waters of the state, including a new cyanide process or cyanidation facility component or phase;
Significantly change the capacity, location, or process of an existing cyanidation facility component, including a new cyanide process or cyanidation facility component or phase;
Significantly change water quality compliance criteria or monitoring points; or
Significantly change the site condition in a way that was not adequately described in the original permit application; and
(ii) Does not mean or include:
Reclamation and closure-related activities at a cyanidation facility with an existing permit that did not actively add cyanide after January 1, 2005; or
Relocation of buildings, structures, or other similar modifications when such activity occurs within the same site footprint of the cyanidation facility, provided that containment is maintained.
(m) "Permit" means a permit for a new or materially modified cyanidation facility.
(n) "Procedural completeness" means that the permit application and its contents contain the required information, supporting plans, and documentation to allow the progression of the application to the technical completeness review.
(o) "Technical completeness" means that the permit application and its contents contain designs, specifications, supporting plans, and documentation that comply with the provisions of this section to contain, control, and treat cyanidation process water, spent ore, tailings, and other material from the cyanidation process by having adequate containment through the use of liners, barriers, structures, or other measures to prevent discharge of cyanidation pollutants into the environment that would impair beneficial use of waters of the state or would degrade waters of the state. For technical completeness, containment means:
(i) Secondary containment for process equipment, tanks, and piping; and
(ii) Primary and secondary liners associated with leach pads, tailings storage facilities, and process ponds.
(2)(a) A new or materially modified cyanidation facility shall not be constructed, operated, or closed prior to:
(i) Obtaining a permit from the department pursuant to the provisions of this section and rules promulgated thereunder; and
(ii) Obtaining necessary financial assurance and permanent closure plan approvals applicable to cyanidation facilities pursuant to the requirements of chapter 15, title 47, Idaho Code, and rules promulgated thereunder.
(b) 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 of a cyanidation facility after June 30, 2005, all provisions of this chapter shall apply to the modification or expansion. Reclamation or closure-related activities at a facility with an existing cyanidation permit approved by the department that did not actively add cyanide processes after January 1, 2005, shall not be considered a material modification or expansion thereof.
(3) A cyanidation facility shall be:
(a) Designed with controls sufficient to contain, control, and treat cyanidation process water, spent ore, tailings, and other material from the cyanidation processes to prevent discharge of cyanidation pollutants into the environment that would impair beneficial use of waters of the state or degrade waters of the state. Such controls shall be based on generally accepted design standards that are consistent with generally accepted engineering practices and quality control and quality assurance procedures; and
(b) Maintained and operated in a manner that prevents discharge of cyanidation pollutants into the environment that would impair beneficial use of waters of the state or degrade waters of the state.
(4) The department shall not issue a permit pursuant to 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 pursuant to this section shall prohibit construction and operation of the cyanidation facility until the permittee submits proof 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.
(5)(a) The director may deny a permit application if:
(i) The application is procedurally or technically incomplete and cannot be made complete with additional clarifying or supplemental information as requested by the department and provided by the applicant;
(ii) The cyanidation facility, or any component or phase thereof, as proposed, cannot be conditioned for construction, operation, and closure in a way that complies with the provisions of this section and rules promulgated thereunder; or
(iii) Any payment required by the cost recovery agreement is due and unpaid.
(b) If an application is denied, the director shall provide written notice to the applicant explaining the basis for the rejection.
(6) The department may request that the applicant provide supplemental or clarifying information at any point in the permitting process pursuant to this section and rules promulgated thereunder until a final permit decision is issued. The applicant’s failure or refusal to correct deficiencies or supply additional information as requested may result in permit denial.
(7)(a) Before conducting a pre-application conference or submitting a preliminary design report, the applicant and department shall execute a cost recovery agreement. The cost recovery agreement shall provide for the recovery of the actual costs incurred by the department during the permitting process pursuant to this section and rules promulgated thereunder. The cost recovery agreement may provide for recovery of actual costs incurred by the department for any other service rendered pursuant to this section and rules promulgated thereunder if the applicant so agrees. The permitting process may include but is not limited to:
(i) Pre-application meetings and interactions with the applicant;
(ii) Reviewing pre-application submittals, including the preliminary design report, conceptual designs, draft plans, and other supporting documents;
(iii) Conducting procedural completeness and technical reviews;
(iv) Reviewing supplemental information and revised documents;
(v) Reviewing final designs, supporting plans, and other documents;
(vi) Developing a draft permit and fact sheet;
(vii) Reviewing and preparing responses to public comments;
(viii) Developing a final permit and fact sheet;
(ix) Contracting with a third-party consultant; and
(x) Other activities related to processing permit applications.
(b) After a cost recovery agreement is executed, the department shall conduct a pre-application conference with the applicant. After the pre-application conference is held, the applicant shall submit a preliminary design report and permit application.
(8) A permit application shall:
(a) Address all of the criteria and standards provided in this section and rules promulgated thereunder;
(b) Include the proposed plans and specifications for controls to contain, control, and treat cyanidation process water, spent ore, tailings, and other material from the cyanidation processes that the proposed cyanidation facility will have to prevent discharges of cyanidation pollutants into the environment that would impair beneficial use of waters of the state or degrade waters of the state. The proposed designs and specifications shall be based on generally accepted engineering practices and quality control and quality assurance procedures; and
(c) Not be required to have the level of design and engineering necessary for the IFC data package, provided that in the final permit the director may condition construction on the review and approval of an IFC data package in accordance with subsection (18) of this section.
(9) A water quality monitoring plan for a cyanidation facility:
(a) Shall specify points of compliance and associated water quality compliance criteria for cyanidation pollutants for surface water and ground water;
(b) Shall specify monitoring points and threshold concentrations for parameters that provide for early detection of cyanidation pollutant discharge; and
(c) May not be required to contain points of compliance, compliance criteria, or monitoring locations for contaminants that are covered by other permits issued by the department, including ground water points of compliance established by rule for proposed mine activities, including cyanidation facilities.
(10)(a) The department’s review of any application made pursuant to this section shall not duplicate or conflict with other permits or the permitting process for other permits required pursuant to Idaho law, including permits administered by the department regarding protecting air, surface water, and ground water resources and authorizations made by the Idaho department of lands regarding reclamation and closure of a cyanidation facility. To the extent that other permits under Idaho law do not address or regulate potential cyanidation pollutants discharged from a cyanidation facility, the department may review and address such cyanidation pollutants or other pollutants in accordance with the provisions of this section and rules promulgated thereunder.
(b) The department’s review of an application shall be limited to the criteria and standards provided in this section and rules promulgated thereunder.
(c) The department’s review of an application for a major modification of a permit shall be limited to the proposed material modifications to the cyanidation facility that are required to be included therein.
(11)(a) Within one hundred eighty (180) days of receiving an application, the director shall deliver to the applicant a written notice of rejection or approval. If the director fails to deliver a notice of rejection or approval within such time period, the submitted application shall be deemed approved and the applicant may proceed with the construction, operation, or closure as if notice of approval had been received from the director.
(b) Within thirty (30) days of receiving an application, the director shall review the application for procedural completeness, in whole or in part, and issue written notice to the applicant and the Idaho department of lands indicating that the application, in whole or in part for specific components or phases, is procedurally complete or procedurally incomplete. If the application, or any part thereof, is procedurally incomplete, the director shall explain the specific deficiencies and may request additional information. A determination that an application, or any part thereof, is procedurally complete shall not preclude the department from requiring the applicant to submit additional information for the department to continue processing the application.
(c) Within sixty (60) days of the notice that the application is procedurally complete, in whole or in part, the director shall complete review of the application for technical completeness, in whole or in part. If the director determines that the application, or specific components or phases thereof, satisfies the technical completeness requirements provided in this section and rules promulgated thereunder, the director shall:
(i) Prepare a draft permit and fact sheet for the application or a specific component or phase thereof pursuant to the provisions of subsections (13) and (14) of this section;
(ii) Provide public notice pursuant to subsections (21) through (23) of this section;
(iii) Allow public comment pursuant to subsection (26) of this section; and
(iv) Hold a public meeting pursuant to subsection (25) of this section.
(12)(a) The department may contract with a third-party consultant to support review of an application, in whole or in part.
(b) The director may, in his discretion, review and approve the application in part for specific components or phases of a cyanidation facility if such components or phases of the facility and the provisions of the application with respect thereto satisfy the requirements of this section. The director shall obtain the consent of the applicant prior to reviewing an application in part, and if obtained, shall work with the applicant to create a schedule for review of the application in part. Approving a component or phase of an application shall not imply the approval of the remaining components or phases. If an application is reviewed in part, the remaining components or phases of the application:
(i) Shall not be subject to the timing requirements of subsection (11) of this section;
(ii) Shall not be considered permit modifications if subsequent changes to the application do not constitute material modifications from the original application; and
(iii) Shall be subject to public notice and comment provisions of subsections (21) through (26) of this section.
(13) A draft or final permit shall contain:
(a) All conditions necessary to require controls sufficient to prevent or mitigate the potential for the discharge of cyanidation pollutants into the environment that would impair beneficial use of waters of the state or degrade waters of the state;
(b) Any information incorporated into the permit by reference; and
(c) Any and all other conditions the director finds necessary to ensure compliance with this section and rules promulgated thereunder, including but not limited to:
(i) Review and approval of an IFC data package prior to authorizing commencement of construction; and
(ii) Review and approval of a permanent closure plan and issuance of financial assurance pursuant to chapter 15, title 47, Idaho Code, and rules promulgated thereunder.
(14) A fact sheet shall be published with a draft permit. The fact sheet shall:
(a) State the principal facts and describe the proposed activity sought to be permitted;
(b) Briefly describe the proposed cyanidation facility, operating plan, and application and state whether the application is being reviewed in whole or in part;
(c) State any significant legal and policy questions considered, including statutes, regulations, and references to the administrative record;
(d) Summarize the conditions imposed in the permit; and
(e) Provide the name and phone number of the department representative to contact for additional information.
(15) A final permit shall be modified, as necessary, based on review of public comments, supplemental information received, and other appropriate reasons. The fact sheet shall be updated to reflect public comments, supplemental information received, and modifications, if any, to the permit, and shall be published with the final permit.
(16)(a) A final permit issued pursuant to this section shall expire in two (2) years if construction has not been commenced. The applicant may request, in writing, that the two (2) year period be extended. The director may, in his discretion, allow a reasonable extension thereof.
(b) A final permit shall remain valid until the director determines that permanent closure is completed or the director revokes or modifies the permit.
(17) Construction of a new or a materially modified cyanidation facility shall not deviate from the plans and specifications approved by the department.
(18)(a) A final permit issued pursuant to this section shall authorize the immediate commencement of construction and operation of a cyanidation facility in accordance with the terms of the permit.
(b) A final permit may condition the commencement of construction of a cyanidation facility or a component or phase thereof on the department’s review and approval of an IFC data package. If an applicant is required to provide an IFC data package, the director:
(i) Shall meet with the applicant at least sixty (60) days prior to the submittal of the IFC data package to discuss the status of the data package and any minor modifications from the final permit that the applicant is proposing;
(ii) May open a public comment period for no more than thirty (30) days after receiving the IFC data package;
(iii) Shall complete review of the IFC data package within sixty (60) days from the director’s receipt of the data package to confirm that the data package is consistent with the plans and specifications approved in the final permit; and
(iv) Shall authorize construction, in whole or in part, if the director finds that the IFC data package meets the requirements of this section and rules promulgated thereunder, and that all other conditions of the final permit have been satisfied.
(19) Within thirty (30) days of completing construction on a cyanidation facility or component or phase thereof, if applicable, the operator shall submit an accurate as-built submittal depicting that actual construction of the cyanidation facility or component or phase thereof, if applicable, does not deviate from the plans and specifications approved in the permit and IFC data package, if applicable.
(20) Public notice shall not be required when a preliminary design report submitted by an applicant is rejected or when an application, or any part thereof, is deemed incomplete.
(21) The director shall give public notice of:
(a) A determination that an application is procedurally complete;
(b) Publication of a draft permit and fact sheet;
(c) Any authorized public comment period or public meeting;
(d) Issuance of a final permit and fact sheet;
(e) Approval to construct, if the final permit conditioned construction on the department’s review and approval of an IFC data package;
(f) A decision to reject a permit application;
(g) A decision to revoke a permit; and
(h) The filing of any appeal from any decision of the director with respect to any permit application for a new or materially modified cyanidation facility.
(22) A public notice issued pursuant to this section shall contain:
(a) A description of the cyanidation facility and its location;
(b) A description of the public involvement procedures;
(c) Information regarding the public comment period, if applicable;
(d) Information regarding the time and place of the public meeting, if applicable;
(e) Information on how to obtain additional available public information;
(f) The name and phone number of the department representative to contact for additional information; and
(g) Such other information as the department deems necessary.
(23) Public notice shall be given by:
(a) Certified or electronic mail to:
(i) The applicant;
(ii) Persons on the public notice mailing list developed pursuant to subsection (24) of this section; and
(iii) All federal, tribal, state, and local government entities who have an interest in the outcome of the permitting process;
(b) Publication for two (2) consecutive weeks in a daily or weekly newspaper of general circulation in the area of the proposed cyanidation facility; and
(c) Any other method reasonably calculated to give actual notice to potentially affected persons.
(24) The department shall develop a mailing list for public notices issued pursuant to this section by recording the names and contact information of those who request, in writing, to be on such list. The department shall make available on its website the ability to join the mailing list and shall periodically publish notice of the ability to join the mailing list in the local press, regional and state-funded newsletters, environmental bulletins, state law journals, or similar publications. The department may periodically update the mailing list by requesting written indication of continued interest from those listed and may delete from the list the name of any person who fails to respond to the department’s request.
(25) Within thirty (30) days of the public notice of publication of a draft permit, the department shall hold a public meeting.
(26) Public comment on a draft permit shall be permitted for sixty (60) days beginning on the date of the initial public notice of publication of a draft permit. Only written public comments received during the public comment period shall be accepted and considered by the department.
(27) The department shall respond to all written public comments individually, except when comments can be responded to by theme or topic. All written comments received during this public comment period and the department’s response thereto shall be made publicly available.
(28) Within thirty (30) days of the end of the public comment period, the director shall provide public notice of the final permit decision. This notice shall:
(a) Specify which provisions, if any, of the draft permit have been changed in the final permit and summarize the reasons for such changes;
(b) Include information on how to view the public comments received and the department’s responses thereto; and
(c) Include information regarding the procedures for administrative appeal under applicable law.
(29) The Idaho department of lands shall participate in public comment and meetings regarding performance criteria for permanent closure of a cyanidation facility.
(30) The director and the applicant may agree to pause or extend the statutory time frames established in this section for a reasonable time, provided that:
(a) The sixty (60) day technical completeness review may be paused upon the agreement of the director and the applicant for a period not to exceed one (1) year from the date of the director’s notice of procedural completeness to allow the applicant to submit additional information requested by the department; and
(b) Time frames requiring action by the director or department shall not be extended by more than sixty (60) days.
(31) Research and development activities, including bench and pilot scale testing facilities, shall be exempt from the provisions of this section and rules promulgated thereunder.
(32) The provisions of this section shall be applied retroactively to all permit applications submitted to the department on or before January 1, 2025, that are still under review by the department as of July 1, 2025.
(33)(a) The department shall promptly commence an administrative review of IDAPA 58.01.13 and shall promulgate rules, subject to legislative approval, to bring such rules into compliance with the provisions of this section.
(b) The department shall have until July 1, 2025, to issue temporary rules, if necessary, to administer the provisions of this section.
[39-118A, added 2025, ch. 228, sec. 2, p. 1051.]
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.
[39-118B, added 1993, ch. 275, sec. 1, p. 927.]
(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:
(a) Operating flexibility provisions;
(b) Provisions allowing off-permit changes;
(c) 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);
(d) 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;
(e) 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
(f) 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.
[39-118C, added 1993, ch. 275, sec. 2, p. 927.]
(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.
[39-118D, added 1993, ch. 275, sec. 3, p. 928; am. 2000, ch. 132, sec. 26, p. 337.]
The department shall implement a small business assistance program as required in 42 U.S.C. 7661a.
[39-118E, added 1993, ch. 275, sec. 8, p. 937; am. 2021, ch. 321, sec. 18, p. 964.]
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.
[I.C., sec. 39-119, as added by 1975, ch. 182, sec. 1, p. 499; am. 2000, ch. 132, sec. 27, p. 338.]
(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:
(a) 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.
(b) 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.
(c) 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.
[39-120, added 1989, ch. 421, sec. 2, p. 1028; am. 1990, ch. 151, sec. 1, p. 334; am. 2000, ch. 132, sec. 28, p. 338.]
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.
[39-121, added 1989, ch. 421, sec. 2, p. 1029; am. 2000, ch. 132, sec. 29, p. 339.]
(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.
[39-126, added 1989, ch. 421, sec. 2, p. 1032; am. 2000, ch. 132, sec. 31, p. 340.]
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.
[39-127, added 1989, ch. 421, sec. 2, p. 1033.]
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.
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.
The following zones are hereby established:
a. Zone 1, consisting of the counties of Benewah, Bonner, Boundary, Clearwater, Idaho, Kootenai, Latah, Lewis, Nez Perce and Shoshone.
b. Zone 2, consisting of the counties of Ada, Adams, Boise, Canyon, Elmore, Gem, Owyhee, Payette, Valley and Washington.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
[39-128, added 1992, ch. 189, sec. 2, p. 589.]
(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:
(a) Protection of public health;
(b) Protection of the environment;
(c) Current tax structure and rates as compared to other local governments;
(d) Ability of the local government to pay for costs of compliance;
(e) Current fiscal obligations of the local government;
(f) Other factors as determined by the department or the board.
[39-129, added 1994, ch. 162, sec. 2, p. 370; am. 2000, ch. 132, sec. 32, p. 341.]
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.
[39-130, added 2007, ch. 123, sec. 1, p. 373; am. 2016, ch. 289, sec. 11, p. 812.]
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.
[(39-171) 39-166, added 1996, ch. 204, sec. 1, p. 628; amended & redesig. 2001, ch. 103, sec. 15, p. 266.]
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.
[(39-172) 39-167, added 1996, ch. 204, sec. 2, p. 628; amended & redesig. 2001, ch. 103, sec. 16, p. 267.]
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.
[(39-173) 39-168, added 1996, ch. 204, sec. 3, p. 628; amended & redesig. 2001, ch. 103, sec. 17, p. 267; am. 2013, ch. 16, sec. 1, p. 26.]
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.
[(39-174) 39-169, added 1996, ch. 204, sec. 4, p. 629; amended & redesig. 2001, ch. 103, sec. 18, p. 267; am. 2013, ch. 16, sec. 2, p. 27.]
(1) The legislature finds:
(a) That navigable waters within the state are one of the state’s most valuable natural resources;
(b) 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;
(c) 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;
(d) 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;
(e) 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;
(f) 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;
(g) 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.
[39-175A, added 2005, ch. 57, sec. 1, p. 211; am. 2014, ch. 40, sec. 3, p. 96.]
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.
[39-175B, added 2005, ch. 57, sec. 1, p. 212; am. 2018, ch. 22, sec. 4, p. 36.]
(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.
[39-175C, added 2005, ch. 57, sec. 1, p. 212; am. 2014, ch. 40, sec. 4, p. 96; am. 2018, ch. 22, sec. 5, p. 37.]
(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.
[39-175D, added 2016, ch. 128, sec. 1, p. 373.]
(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).
[39-175E, added 2016, ch. 128, sec. 2, p. 374.]
(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.
[39-175F, added 2018, ch. 22, sec. 6, p. 37.]
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 proper design and construction of phosphogypsum stacks and phosphogypsum stack systems.
[39-176A, added 2020, ch. 51, sec. 1, p. 120; am. 2021, ch. 246, sec. 1, p. 763.]
(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 or future 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 and clarifies 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.
[39-176B, added 2020, ch. 51, sec. 2, p. 120; am. 2021, ch. 246, sec. 2, p. 763.]
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) "Intermediate liner" means a liner placed on top of an existing lined or unlined phosphogypsum stack to allow continued use of the existing phosphogypsum stack.
(4) "Lateral expansion" means a horizontal expansion of the waste boundaries of an existing phosphogypsum stack system.
(5) "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.
(6) "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.
(7) "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.
(8) "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.
(9) "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 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.
(10) "Phosphogypsum stack system component" means collection ponds, cooling ponds, decant ponds, surge ponds, and auxiliary holding ponds.
(11) "Process wastewater" means process wastewater from phosphoric acid production operations.
[39-176C, added 2020, ch. 51, sec. 3, p. 120; am. 2021, ch. 246, sec. 3, p. 763.]
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. The controls shall be capable of managing a flow resulting from a twenty-four (24) hour, twenty-five (25) year rainfall event or from a combined peak precipitation and snowmelt event over a twenty-four (24) hour period using snowfall, precipitation, and other meteorological data from the historical record.
(2) Any new phosphogypsum stack or lateral expansion shall be designed with an overall factor of safety of 1.5 for any potential failure surface encompassing the impoundment on top of the stack and passing through the phosphogypsum slope or bottom liner interfaces or extending into earthen material in contact with the bottom liner.
(3) Liner and leachate control systems that achieve the following minimum design standards:
(a) Phosphogypsum stacks, collection ponds, decant ponds, and cooling ponds 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. A composite liner will have both a synthetic and a nonsynthetic component.
(i) The synthetic component shall consist of a sixty (60) mil or thicker HDPE or equivalent geomembrane with a maximum water vapor transmission rate of twenty-four hundredths (0.24) of one gram per square meter per day as determined by the American society for testing and materials (ASTM) method E96-80, procedure BW.
(ii) The nonsynthetic component shall consist of either soil, phosphogypsum, or sedimented phosphogypsum or equivalent material.
Soil or equivalent material. A layer of compacted soil or other equivalent material at least eighteen (18) inches thick, placed below the geomembrane, with a maximum hydraulic conductivity of 1 x 10-7 centimeters per second, constructed in six (6) inch lifts.
Phosphogypsum. A layer of mechanically compacted phosphogypsum at least twenty-four (24) inches thick, placed above the geomembrane, with a maximum hydraulic conductivity of 1 x 10-4 centimeters per second. A layer of compacted phosphogypsum is not required for any vertical expansion or natural ground slopes steeper than 2.5H:1V abutting a vertical or horizontal expansion where phosphogypsum slurry is discharged in the expansion area.
(iii) The nonsynthetic layer of the composite liner is not required for vertical expansions where:
It has been demonstrated that a synthetic liner alone or in contact with sedimented phosphogypsum placed in slurry form will be equivalent or superior to a composite liner;
It has been demonstrated that a synthetic liner in contact with sedimented phosphogypsum placed in a slurry form is equivalent or superior to a composite liner with twenty-four (24) inches of compacted phosphogypsum placed above the geomembrane; or
For lateral expansions, it has been demonstrated and certified by a third-party professional engineer that a synthetic liner in contact with sedimented phosphogypsum placed in slurry form, and with consideration of the physical hydrogeological setting of the specific lateral expansion, provides an equivalent or superior degree of protection for human health and the environment.
(iv) The nonsynthetic layer of the composite liner will not be required for an alternative liner, such as a double synthetic liner, that has the equivalent hydraulic conductivity and durability to a composite liner.
(v) An approved alternative shall have the equivalent hydraulic conductivity and durability of a composite liner.
(vi) For an intermediate liner, a composite liner is not required.
(b) All liner and leachate control system components shall have appropriate quality control and quality assurance standards, specifications, and procedures for construction, including:
(i) Procedures and tests that will be used to monitor the installation of the liner system components shall be described in detail;
(ii) Description of sampling activities, sample size, sample locations, minimum frequency of testing, acceptance and rejection criteria, and plans for implementing corrective measures that may be necessary; and
(iii) Description of reporting for constructive quality assurance and quality control activities, including observation data sheets, problem identification, corrective measures, and final documentation.
(c) 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. All toe drain or leachate collection systems shall be constructed within the lined system. Leachate control systems shall:
(i) Have a perimeter underdrain system designed to stabilize the side slopes of the phosphogypsum stack that is installed above the geomembrane liner; and
(ii) Have perimeter drainage conveyances that either consist of covered or uncovered ditches that are lined continuously with sixty (60) mil or thicker HDPE or equivalent geomembrane, or of chemically compatible leachate collection pipes. Covered ditches shall have manholes or appropriate cleanout structures at appropriate intervals unless a third-party engineer certifies and identifies areas where manholes or cleanout structures in piped systems are not feasible.
(d) Auxiliary holding ponds shall be designed with a synthetic liner or an approved alternative of equivalent hydraulic conductivity and durability.
(e) Process wastewater conveyances shall be constructed with a liner or pipe.
(4) Perimeter dikes that shall incorporate minimum design standards for freeboard, safety, and slope stability design factors, construction methods, and other related parameters, including:
(a) Ground that will become the foundation of perimeter dikes shall be stripped of vegetation and organic detritus or residue, including muck, slimes, or other material that would flow or undergo excessive consolidation under heavy loading. All earth foundation surfaces on which fill is to be placed shall be scarified, or moistened and compacted, prior to spreading the first course of fill material.
(b) A program of soil sampling and testing adequate to determine the characteristics of the foundation material that will support the proposed perimeter dike and the material to be used to construct the perimeter dike.
(c) The crest of the perimeter dike shall be graded toward the inside slope or the outside slope. Both inside and outside slopes shall not be steeper than two and one-half (2.5) horizontal to one (1.0) vertical (2.5H:1V). A liner shall be constructed on the inside slope of the perimeter dike and be suitably connected to the remainder of the liner system to provide seepage control.
(d) The freeboard of an above-grade perimeter dike shall not be less than five (5) feet unless a freeboard of less than five (5) feet is justified based on results of seepage and stability analysis and wave run-up analysis. In no event shall the freeboard of an above-grade perimeter dike be less than three (3) feet.
(e) A stability analysis shall be performed taking into consideration the minimum fluid level as well as the fluid level at the freeboard on the upstream slope of the perimeter dike and possible fluctuations of the tailwater level. When applicable, the stability analysis will include a seepage or flow net analysis.
(f) The following minimum safety factors will be used for perimeter dikes: 1.75 for horizontal shear at base of fill; 1.5 for horizontal shear within the fill due to seepage through the outer face; 1.5 for horizontal shear or circular arc failure through the foundation soils; 1.5 for protection against shear failure of any circular arc in either inside or outside slope. In determining design safety factors, water pressure distribution must be addressed.
(g) A seismic stability analysis shall be performed.
(h) Appropriate quality control and quality assurance standards, specifications, and procedures for perimeter dike construction shall be implemented.
(5) 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.
(6) The design and construction plan submitted to the department must contain a process for notification and department approval of deviations from the approved design and construction plan.
[39-176E, added 2020, ch. 51, sec. 5, p. 121; am. 2021, ch. 246, sec. 5, p. 764.]
(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 operator shall pay the following fees for the department review and approval of plans and associated documents required by this section:
(a) Fifteen thousand dollars ($15,000) for a review of a new phosphogypsum stack system;
(b) Ten thousand dollars ($10,000) for a review of a horizontal or vertical phosphogypsum expansion;
(c) Five thousand dollars ($5,000) for a review of the placement of an intermediate liner; and
(d) Two thousand five hundred dollars ($2,500) for a review of a phosphogypsum stack component.
[39-176F, added 2020, ch. 51, sec. 6, p. 122; am. 2021, ch. 246, sec. 6, p. 767.]
(1) This act shall be known and may be cited as the "Idaho Vital Statistics Act."
(2) The legislature finds:
(a) As early as 1632, government officials began tracking vital statistics, specifically births, deaths, and marriages;
(b) Today, state and local vital records offices record over eleven million (11,000,000) vital events annually in the United States;
(c) 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;
(d) 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;
(e) 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.");
(f) 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;
(g) 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.
[39-240, added 1949, ch. 72, sec. 32, p. 117; am. and redesig. 39-240, 1983, ch. 7, sec. 1, p. 25; am. 2020, ch. 334, sec. 1, p. 970.]
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.
(a) "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.
(b) "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:
(a) The name of the qualified adoptee before placement in adoption;
(b) The name and address of each qualified birthparent as it appears in birth records;
(c) The current name, address and telephone number of the qualified adult adoptee; and
(d) 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.
(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.
[39-241, added 1949, ch. 72, sec. 1, p. 117; am. 1959, ch. 104, sec. 2, p. 221; am. 1974, ch. 23, sec. 61, p. 633; am. 1983, ch. 7, sec. 2, p. 25; am. 1985, ch. 59, sec. 1, p. 113; am. 2002, ch. 277, sec. 1, p. 810; am. 2007, ch. 243, sec. 1, p. 715; am. 2014, ch. 45, sec. 1, p. 117.]
The director shall:
(a) Establish a vital statistics unit with suitable offices properly equipped for the preservation of its official records;
(b) Install statewide system of vital statistics;
(c) 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.
[39-242, added 1949, ch. 72, sec. 2, p. 117; am. 1974, ch. 23, sec. 62, p. 633; am. 1983, ch. 7, sec. 3, p. 26.]
The director shall designate and appoint a state registrar of vital statistics who shall be qualified in accordance with the standards prescribed by law or regulations of the board. Compensation shall be fixed in the same manner as the salary of other employees of the department.
[39-243, added 1949, ch. 72, sec. 3, p. 117; am. 1974, ch. 23, sec. 63, p. 633; am. 1983, ch. 7, sec. 4, p. 26.]
The state registrar, under the direction of the director, shall:
(a) Have charge of the vital statistics unit;
(b) Be official custodian of all its files and records;
(c) Perform the duties prescribed by law and the regulations of the board;
(d) Have supervisory power over local vital statistics registration and local registration officers;
(e) Enforce this chapter and regulations of the board; and
(f) Have the authority to delegate portions of the vital records responsibility to the duly appointed local registrar(s).
[39-244, added 1949, ch. 72, sec. 4, p. 117; am. 1974, ch. 23, sec. 64, p. 633; am. 1983, ch. 7, sec. 5, p. 26.]
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.
[39-245, added 1949, ch. 72, sec. 5, p. 117; am. 1974, ch. 23, sec. 65, p. 633; am. 1983, ch. 7, sec. 6, p. 27.]
(1)(a) The legislature finds that:
(i) 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;
(ii) 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;
(iii) 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;
(iv) 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;
(v) Vital statistics are defined in section 39-241(21), Idaho Code, as data, being the plural of datum, which is a known fact;
(vi) 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;
(vii) 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;
(viii) 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
(ix) 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.
(b) 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.
(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" is as defined in section 73-114, Idaho Code.
(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;
(b) Is signed by:
(i) The parents identified on the certificate of birth; or
(ii) The child’s legal guardian;
(c) Is signed by the physician or other person in attendance who provided the medical information and certified to the facts of birth; and
(d) Declares that the information contained on the certificate of birth incorrectly represents a material fact at the time of birth.
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.
(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 subsection (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.
[39-245A, added 2020, ch. 334, sec. 2, p. 971; am. 2024, ch. 322, sec. 5, p. 1066.]
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.
[39-246, added 1949, ch. 72, sec. 6, p. 117; am. 1974, ch. 23, sec. 66, p. 633.]
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.
[39-247, added 1949, ch. 72, sec. 7, p. 117; am. 1983, ch. 7, sec. 7, p. 27.]
The director shall provide such assistants as the vital statistics unit may require and determine the compensation and duties of persons thus employed.
[39-248, added 1949, ch. 72, sec. 8, p. 117; am. 1974, ch. 23, sec. 67, p. 633; am. 1983, ch. 7, sec. 8, p. 27.]
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.
[39-249, added 1949, ch. 72, sec. 9, p. 117; am. 1983, ch. 7, sec. 9, p. 27.]
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.
[I.C., sec. 39-250, as replaced by 1959, ch. 104, sec. 3, p. 221; am. 1983, ch. 7, sec. 10, p. 27; am. 1998, ch. 106, sec. 2, p. 364; am. 2010, ch. 78, sec. 1, p. 129.]
Each local registrar shall be paid a fee to be established by regulations adopted by the board, for:
(a) 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
(b) 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.
[(39-251) 1949, ch. 72, sec. 12, p. 117; am. and redesignated 1983, ch. 7, sec. 11, p. 29.]
(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, pursuant to section 31-2810, Idaho Code.
[(39-252) 39-253, added 1949, ch. 72, sec. 13, p. 117; am. 1970, ch. 2, sec. 1, p. 4; am. 1981, ch. 200, sec. 1, p. 353; am. & redesig. 1983, ch. 7, sec. 12, p. 29; am. 2010, ch. 355, sec. 1, p. 932; am. 2025, ch. 96, sec. 10, p. 515.]
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.
[(39-253) 1949, ch. 72, sec. 14, p. 117; am. 1974, ch. 23, sec. 68, p. 633; am. 1976, ch. 51, sec. 8, p. 175; am. and redesignated 1983, ch. 7, sec. 13, p. 29; am. 1994, ch. 180, sec. 71, p. 474.]
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.
[(39-254) 1949, ch. 72, sec. 15, p. 117; am. and redesignated 1983, ch. 7, sec. 14, p. 29.]
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.
(a) 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.
(b) 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.
(c) The father, mother or guardian shall verify the facts entered on the certificate by their signature.
(d) 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.
(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:
(i) Paternity has been determined otherwise by a court of competent jurisdiction; or
(ii) 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.
[(39-255) 1949, ch. 72, sec. 16, p. 117; am. and redesignated 1983, ch. 7, sec. 15, p. 30; am. 1995, ch. 28, sec. 1, p. 42; am. 1995, ch. 53, sec. 1, p. 121; am. 1998, ch. 106, sec. 3, p. 365.]
(1) Subject to the requirements set forth in section 39-255, Idaho Code, a certificate of live birth shall be filed with the bureau of vital records and health statistics by the certifier with parentage as determined by the final court order of parentage issued pursuant to the provisions of chapter 16, title 7, Idaho Code. The birth record shall include all the facts of birth, including the gestational carrier’s demographic, medical, and health information. No certificate shall be deemed complete until every item of information required has been provided or its omission satisfactorily accounted for.
(2) Upon receipt by the bureau of the complete certificate of live birth from the certifier and the certified copy of the order of parentage, the bureau of vital records and health statistics shall accept the record for permanent filing. The birth certificate shall make no reference to the gestational carrier. The facts of birth as relating to the gestational carrier shall be filed with and remain part of the records of the bureau of vital records and health statistics in a sealed file with a certified copy of the order of parentage.
(3) In the absence of an order of parentage, the birth certificate shall be filed listing the gestational carrier as the mother of the child. The gestational carrier’s information may not be removed, and an intended parent’s information may not be listed on the birth certificate except:
(a) According to the provisions of section 39-255(e), Idaho Code, to add a biological father; or
(b) Upon receipt of a certified copy of an order of parentage and a certified report of gestational birth. The report form will be prescribed and furnished by the state registrar. Copies of birth certificates showing the gestational carrier as the mother of the child shall not be issued except upon order of an Idaho court.
(4) Information necessary to prepare the report of gestational birth shall be furnished by the intended parent or parents or the attorney for the intended parent or parents. The order of parentage and the report of gestational birth shall contain all known facts of birth and the identity of the intended parent or parents.
(5) Upon receipt by the bureau of the certified report of gestational birth and the certified order of parentage, a new certificate of birth shall be established bearing the full name of the child born and the identity of the intended parent or parents. The new birth certificate shall make no reference to the gestational carrier and shall not be marked as amended. The new birth certificate shall supplant and constitute replacement of any birth certificate for the child previously filed with the bureau of vital records and health statistics and shall be the only birth certificate subject to issuance. The certified report of gestational birth and certified order of parentage shall be filed with and remain part of the records of the bureau of vital records and health statistics in a sealed file with the original certificate.
(6) In respect to form and nature of contents, the new birth certificate shall be identical to the birth certificate originally filed with the bureau of vital records and health statistics, except that the intended parent or parents shall be entered on the certificate as shown in the report of gestational birth. The child’s name shall remain as shown on the original birth certificate unless the order of parentage specifically states how the bureau of vital records and health statistics should list the child’s name on the birth certificate.
(7) An order of parentage may be amended only to correct a clerical error.
(8) All records and information specified in this section, other than a birth certificate issued pursuant to this section, and all records, files, and information of any court in this state relating to gestational birth and parentage proceedings shall not be open to inspection except on order of a court of record of this state; provided, however, that any Idaho magistrate judge may furnish a certified copy of an order of parentage to any duly authorized agency of the United States or the state of Idaho without procuring any prior court order.
[39-255A, added 2023, ch. 228, sec. 4, p. 706.]
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.
[(39-256) 1949, ch. 72, sec. 17, p. 117; am. and redesignated 1983, ch. 7, sec. 16, p. 31.]
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.
[(39-257) I.C., sec. 39-259, as replaced by 1959, ch. 104, sec. 4, p. 221; am. and redesignated 1983, ch. 7, sec. 17, p. 31; am. 1990, ch. 213, sec. 35, p. 509; am. 1993, ch. 315, sec. 1, p. 1167; am. 1995, ch. 31, sec. 1, p. 49.]
(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 bureau of vital records and health statistics 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 bureau of vital records and health statistics.
(5) Upon receipt by the bureau of vital records and health statistics 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 bureau of vital records and health statistics) 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 bureau of vital records and health statistics 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 bureau of vital records and health statistics.
(6) 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.
(7) 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 bureau of vital records and health statistics in accordance with the time provisions in subsection (3) of this section. Unless otherwise directed by the court, the bureau of vital records and health statistics 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.
(8) 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.
(9) For adoptions that occur on or after July 1, 2022, the provisions of this section shall apply, except that the natural or adoptive parentage of each parent shall be demonstrated as determined by the registrar on the face of a new birth certificate described in subsection (6) of this section.
(10) For all adoptions, a copy of the original birth certificate, all medical and demographic information contained in the sealed file, and the report of adoption must be provided upon the signed request, on a form prescribed by the registrar, of the adoptee who is named on the birth certificate or such adoptee’s legal representative, provided that:
(a) The adoptee must be eighteen (18) years of age or older;
(b) The documents referenced in this subsection will be released to the adult adoptee upon completion of the voluntary adoption registration process. In the event of a match on the voluntary adoption registry, a minimum thirty (30) day waiting period will apply, during which time a registered birth parent may:
(i) Indicate a preferred method of contact, which method will be communicated to the adoptee at the time the documents are released;
(ii) Request no contact, which request will be communicated to the adoptee at the time the documents are released; or
(iii) Request that the registered birth parent’s name be redacted before records are released, which request shall be effective for five (5) years. After the five (5) years have elapsed, the adoptee may again request documents according to this subsection, and all provisions of this subsection shall apply; and
(c) The bureau of vital records and health statistics is not obligated to provide court records to the adoptee under the provisions of this subsection.
[(39-258) 39-218, as replaced by 1959, ch. 104, sec. 1, p. 221; am. 1965, ch. 208, sec. 1, p. 477; am. 1974, ch. 23, sec. 60, p. 633; am. and redesignated 1983, ch. 7, sec. 18, p. 32; am. 1985, ch. 59, sec. 2, p. 114; am. 2005, ch. 391, sec. 53, p. 1309; am. 2012, ch. 20, sec. 21, p. 71; am. 2022, ch. 282, sec. 1, p. 893; am. 2025, ch. 152, sec. 2, p. 754.]
(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 bureau of vital records and health statistics in the state department of health and welfare.
(4) 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 bureau of vital records and health statistics in accordance with the time provisions in subsection (3) of this section. Unless otherwise directed by the court, the bureau of vital records and health statistics 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 Idaho birth certificate shall be removed from the file and along with the decree of annulment or rescindment shall be placed in the sealed file for that person. Such sealed file shall not be subject to inspection except upon order of a court of record of this state.
(5) For adoptions that occur on or after July 1, 2022, the provisions of this section shall apply, except that:
(a) The natural or adoptive parentage of each parent shall be demonstrated as determined by the registrar on the face of a new birth certificate described in subsection (1) of this section; and
(b) A copy of the foreign birth certificate, if available, all medical and demographic information contained in the sealed file, and the report of adoption must be provided upon the signed request, on a form prescribed by the registrar, of the adoptee who is named on the birth certificate or such adoptee’s legal representative, provided that:
(i) The adoptee must be eighteen (18) years or older;
(ii) The documents referenced in this paragraph will be released to the adult adoptee upon completion of the voluntary adoption registration process. In the event of a match on the voluntary adoption registry, a minimum thirty (30) day waiting period will apply, during which time a registered birth parent may:
Indicate a preferred method of contact, which method will be communicated to the adoptee at the time the documents are released;
Request no contact, which request will be communicated to the adoptee at the time the documents are released; or
Request that the registered birth parent’s name be redacted before records are released, which request shall be effective for five (5) years. After the five (5) years have elapsed, the adoptee may again request documents according to this paragraph, and all provisions of this paragraph shall apply; and
(iii) The bureau of vital records and health statistics is not obligated to provide court records to the adoptee under the provisions of this paragraph.
[(39-259) added 1982, ch. 122, sec. 1, p. 348; am. and redesig. 1983, ch. 7, sec. 19, p. 23; am. 1985, ch. 59, sec. 3, p. 116; am. 1988, ch. 25, sec. 1, p. 32; am. 2005, ch. 391, sec. 54, p. 1311; am. 2022, ch. 282, sec. 2, p. 896.]
(a) 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.
(b) The state registrar of vital statistics shall establish and maintain a confidential list of qualified birth parents who have presented a consent regarding the release of identifying information about themselves. Any consent by a qualified birth parent shall be accompanied by the birth parent’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 parent desires release of his identifying information if a match occurs after his death. The qualified birth parent 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 parent. 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(8) and 39-259(2), (3), and (4), Idaho Code. Any birth parent 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 birth parent shall not be matched with a qualified adult adoptee without the consent of the other birth parent unless:
(1) There is only one (1) birth parent listed on the birth certificate; or
(2) The other birth parent is deceased; or
(3) The other birth parent 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 birth parent 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 birth parent seeking a match; said search to be in accordance with the rules and regulations promulgated by the department.
(c) 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 section 39-258(8) and 39-259 (2), Idaho Code, and this section.
(d) The state registrar shall maintain a confidential list of relatives of deceased qualified adult adoptees and relatives of deceased qualified birth parents 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.
(e) 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.
(f) When a match is made and both the adopted person and the birth parent 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.
(g) 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.
(h) 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.
(i) 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.
[39-259A, added 1985, ch. 59, sec. 4, p. 117; am. 1990, ch. 213, sec. 36, p. 510; am. 1993, ch. 315, sec. 2, p. 1168; am. 2022, ch. 282, sec. 3, p. 897.]
(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.
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:
(a) Personal data shall be supplied by the person best qualified to supply them; and
(b) 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:
(a) When no physician, physician assistant or advanced practice registered nurse was in attendance during the last illness of the deceased;
(b) When the circumstances suggest that the death occurred as a result of other than natural causes; or
(c) 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.
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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:
(a) 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
(b) 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.
[(39-260) 1949, ch. 72, sec. 18, p. 117; am. 1972, ch. 111, sec. 1, p. 226; am. and redesignated 1983, ch. 7, sec. 20, p. 34; am. 1995, ch. 28, sec. 2, p. 44; am. 2002, ch. 277, sec. 2, p. 811; am. 2007, ch. 244, sec. 1, p. 719; am. 2014, ch. 45, sec. 2, p. 119.]
If a stillbirth occurs and the stillborn child was delivered under the terms of a gestational agreement entered and validated pursuant to chapter 16, title 7, Idaho Code, then a certificate of stillbirth shall be filed with the bureau of vital records and health statistics according to the provisions of section 39-260(4) and (5), Idaho Code. The certificate shall show the name of the gestational carrier and shall note her status as a gestational carrier. No certificate shall be deemed completed until every item of information required has been provided or its omission satisfactorily accounted for.
[39-260A, added 2023, ch. 228, sec. 5, p. 707.]
(a) 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.
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.
(b) 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.
[(39-261) 1977, ch. 163, sec. 1, p. 424; am. and redesignated 1983, ch. 7, sec. 22, p. 37.]
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.
[(39-262) 1949, ch. 72, sec. 27, p. 117; am. and redesignated 1983, ch. 7, sec. 24, p. 37.]
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.
[(39-263) 1949, ch. 72, sec. 28, p. 117; am. and redesignated 1983, ch. 7, sec. 25, p. 38; am. 1984, ch. 29, sec. 3, p. 51; am. 1989, ch. 12, sec. 1, p. 13.]
(a) 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.
(b) 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.
[(39-265) 1949, ch. 72, sec. 29, p. 117; am. and redesignated 1983, ch. 7, sec. 27, p. 38.]
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.
[(39-266) 1949, ch. 72, sec. 11, p. 117; am. and redesignated 1983, ch. 7, sec. 28, p. 39.]
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.
[(39-267) 1949, ch. 72, sec. 21, p. 117; am. and redesignated 1983, ch. 7, sec. 29, p. 39; am. 2010, ch. 78, sec. 2, p. 130.]
(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:
(a) Remove a body or stillborn fetus from this state;
(b) Cremate the body or stillborn fetus; or
(c) 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.
(5) A permit for disposal shall not be required in the case of a dead fetus of less than twenty (20) weeks gestation and less than three hundred fifty (350) grams or twelve and thirty-five hundredths (12.35) ounces where disposal of the fetal remains is made within the institution where the delivery of the dead fetus occurred.
[(39-268) 1949, ch. 72, sec. 20, p. 117; am. 1972, ch. 123, sec. 1, p. 243; am. and redesignated 1983, ch. 7, sec. 30, p. 39; am. 2007, ch. 244, sec. 2, p. 721; am. 2014, ch. 45, sec. 3, p. 121.]
(1) 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.
(2) 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 person having the highest authority under the provisions of section 54-1142, Idaho Code, may choose to be present or may choose the designee to attend in the person’s place. The coffin shall not be opened either at place of disinterment or place of destination, except by special permit issued by the state registrar.
(3) In the 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.
(4) 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.
(5) 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.
[(39-269) C.S., sec. 1633a, as added by 1923, ch. 89, sec. 1, p. 101; I.C.A., sec. 38-210; am. 1974, ch. 23, sec. 59, p. 633; am. and redesignated 1983, ch. 7, sec. 31, p. 41; am. 1994, ch. 105, sec. 5, p. 236; am. 2006, ch. 109, sec. 1, p. 302; am. 2023, ch. 203, sec. 1, p. 567.]
(a) 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.
(b) 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 or at the direction of the state registrar to a state, federal or local public agency for child protection and child support enforcement purposes or for the purpose of investigation of fraud. 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.
(c) 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, except as provided in section 34-433, Idaho Code.
(d) The manner of keeping local records and the use thereof shall be prescribed by the board, in keeping with the provisions of this section.
(e) 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.
[(39-270) 39-264, added 1949, ch. 72, sec. 24, p. 117; am. 1978, ch. 73, sec. 1, p. 147; am. and redesignated 1983, ch. 7, sec. 32, p. 41; am. 1985, ch. 250, sec. 1, p. 584; am. 1990, ch. 213, sec. 37, p. 512; am. 1993, ch. 315, sec. 3, p. 1170; am. 2004, ch. 23, sec. 8, p. 29; am. 2005, ch. 391, sec. 55, p. 1312; am. 2015, ch. 141, sec. 83, p. 440; am. 2017, ch. 36, sec. 1, p. 56; am. 2021, ch. 33, sec. 2, p. 75; am. 2022, ch. 314, sec. 2, p. 1006; am. 2025, ch. 276, sec. 4, p. 1172.]
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.
[(39-271) 1949, ch. 72, sec. 25, p. 117; am. and redesignated 1983, ch. 7, sec. 33, p. 42.]
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.
[39-272, added 1983, ch. 7, sec. 34, p. 42.]
(a) 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.
(b) 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.
(c) 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.
(d) 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.
[(39-273) 1949, ch. 72, sec. 26, p. 117; am. and redesignated 1983, ch. 7, sec. 35, p. 42; am. 1994, ch. 323, sec. 1, p. 1037.]
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.
[(39-274) 1949, ch. 72, sec. 23, p. 117; am. and redesignated 1983, ch. 7, sec. 36, p. 44.]
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.
[39-275, added 1983, ch. 7, sec. 37, p. 44.]
This chapter shall be so construed as to effectuate its general purpose to make uniform the laws of those states which enact it.
[(39-276) 1949, ch. 72, sec. 31, p. 117; am. and redesignated 1983, ch. 7, sec. 38, p. 44.]
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.
[39-277, added 2006, ch. 241, sec. 1, p. 735.]
(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:
(a) If the petition is for a delayed registration of birth:
(i) That the person for whom the delayed certificate is requested was born in this state;
(ii) That the person’s birth is not registered in another state or country;
(iii) That a record for the person’s birth cannot be found in the state’s vital records;
(iv) 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;
(v) That the state registrar has issued a final rejection of the application for a delayed certificate of birth; and
(vi) The following information:
The original full name and sex of the registrant;
The date of birth and place of birth, including the:
(A) Facility;
(B) City, town or location;
(C) County; and
The full maiden name of the mother; and
The full name of the father, unless the registrant was born out of wedlock.
(b) If the petition is for a delayed registration of death or stillbirth:
(i) That the person for whom the delayed certificate is requested died in this state;
(ii) That the person’s death is not registered in another state or country;
(iii) That a record for the person’s death cannot be found in the state’s vital records;
(iv) 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;
(v) That the state registrar has issued a final rejection of the application for a delayed certificate of death; and
(vi) The following information:
The full name and sex of the deceased;
The date and place of death, including the:
(A) Facility;
(B) City, town or location;
(C) County; and
(A) The full maiden name of the mother; and
(B) The full name of the father, unless the mother was not married.
(c) If the petition is for another amendment to a vital record, in a manner otherwise permitted by department rule:
(i) The identity of the record registered with the state registrar and the item in the record the petitioner requests to be amended;
(ii) The change requested and the purpose of the amendment;
(iii) The rule under which the amendment is otherwise permitted; and
(iv) 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:
(a) The person for whom a delayed certificate of birth is requested was born in this state, it shall make findings as to:
(i) The original full name and sex of the registrant;
(ii) The date of birth and place of birth, including the:
Facility;
City, town or location;
County; and
(iii) The full maiden name of the mother; and
(iv) The full name of the father, unless the registrant was born out of wedlock.
(b) The person for whom a delayed certificate of death is requested died in this state, it shall make findings as to:
(i) The full name and sex of the deceased; and
(ii) The date and place of death, including the:
Facility;
City, town or location; and
County.
(c) 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.
[39-278, added 2010, ch. 78, sec. 3, p. 130.]
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.
[39-279, added 2020, ch. 334, sec. 3, p. 973.]
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.
[I.C., sec. 39-301, as added by S.L. 1975, ch. 149, sec. 1, p. 376; am. 1976, ch. 98, sec. 1, p. 416; am. 1987, ch. 289, sec. 1, p. 610.]
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) "Adolescent" means an individual twelve (12) years through seventeen (17) years of age.
(3) "Adult" means an individual eighteen (18) years of age or older.
(4) "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.
(5) "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.
(6) "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.
(7) "ASAM" means the manual of patient placement criteria for the treatment of substance-related disorders published by the American society of addiction medicine.
(8) "Department" means the Idaho department of health and welfare.
(9) "Director" means the director of the Idaho department of health and welfare.
(10) "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.
(11) "Eligibility screening" means the collection and review of information directly related to the individual’s substance use and level of functioning that the department uses to determine whether an individual is eligible for adult or adolescent substance use disorder services available through the department.
(12) "Idaho board of alcohol/drug counselor certification" or "IBADCC" means an entity affiliated with the international certification reciprocity consortium (ICRC) recognized by the department to oversee credentialing of Idaho student of addiction studies and certified alcohol/drug counselors in the state of Idaho.
(13) "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.
(14) "Incompetent person" means a person who has been adjudged incompetent by an appropriate court within this state.
(15) "Intoxicated person" means a person whose mental or physical functioning is substantially impaired as a result of the use of drugs or alcohol.
(16) "Licensed professional" means a person who holds an active license or registration with the applicable jurisdiction for the profession and provides services within the practice authority for the applicable profession consistent with the laws and regulations of the state where services are provided and consistent with the applicable standard of care.
(17) "National certification commission for addiction professionals" or "NCCAP" means an entity recognized by the department to provide counselor certification and endorsements in the state of Idaho.
(18) "Priority population" means individuals who receive services ahead of other persons. Priority populations are determined yearly by the department and align with federally mandated priorities.
(19) "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.
(20) "Substance abuse" means the misuse or excessive use of alcohol or other drugs or substances.
(21) "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, and vocational rehabilitation and career counseling, which may be extended to alcoholics and intoxicated persons and/or drug addicts.
[39-302, added 1975, ch. 149, sec. 1, p. 376; am. 1987, ch. 289, sec. 2, p. 610; am. 2006, ch. 407, sec. 1, p. 1232; am. 2008, ch. 94, sec. 1, p. 259; am. 2012, ch. 107, sec. 3, p. 288; am. 2025, ch. 178, sec. 3, p. 843.]
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:
(a) 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;
(b) Inpatient treatment;
(c) Intensive outpatient treatment;
(d) Outpatient treatment;
(e) Community detoxification provided by an approved facility; and
(f) 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.
[39-304, added 1975, ch. 149, sec. 1, p. 376; am. 1987, ch. 289, sec. 4, p. 612; am. 1989, ch. 282, sec. 3, p. 693; am. 2006, ch. 407, sec. 5, p. 1236; am. 2007, ch. 69, sec. 3, p. 186; am. 2008, ch. 94, sec. 2, p. 260; am. 2012, ch. 107, sec. 5, p. 290.]
(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.
[I.C., sec. 39-305, as added by S.L. 1975, ch. 149, sec. 1, p. 376.]
Each behavioral health program providing substance use disorders services shall employ the number and variety of staff needed to provide the services and treatments offered by the program as a multidisciplinary team. The program shall employ at least one (1) qualified substance use disorders professional for each behavioral health program location. For purposes of this section, "qualified substance use disorders professional" means an IBADCC-certified alcohol/drug counselor, an IBADCC-certified advanced alcohol/drug counselor, a master addictions counselor certified by the national board for certified counselors or the NCCAP, or a licensed professional.
[39-305A, added 2025, ch. 178, sec. 4, p. 844.]
(1) Prior to beginning work, a qualified substance use disorders professional trainee practicing in the provision of substance use disorders services shall possess either:
(a) A substance use disorder associate certification; or
(b) Formal documentation of current enrollment in a program for any licensed professional consistent with section 39-305A, Idaho Code.
(2) An individual who has completed a certification program described in section 39-305A, Idaho Code, and is awaiting licensure may continue as a qualified substance use disorders professional trainee at the same agency for a period of six (6) months from the date of program completion.
[39-305B, added 2025, ch. 178, sec. 5, p. 845.]
(1) Anyone who receives an unconditional denial or a denial after an exemption review by the department may apply for a behavioral health waiver to provide substance use disorder treatment or recovery support services.
(2) A person seeking a waiver pursuant to subsection (1) of this section may work or have access to participants only under supervision until the waiver request is processed and approved.
[39-305C, added 2025, ch. 178, sec. 6, p. 845.]
(1) Individuals may access substance use disorder services administered by the department through an eligibility screening. The eligibility screening shall be directly related to the individual’s substance-related disorder and level of functioning, and shall include questions about the individual’s substance use, substance use history, and income and living situation.
(2) Once an individual is found eligible for substance use disorder services, the individual will be authorized to receive a clinical assessment from a treatment provider in the department’s substance use disorder services network to determine ASAM level of care.
(3) The department may limit or prioritize adult or adolescent substance use disorder services, impose income limits, define eligibility criteria, and establish the number of persons eligible based on such factors as court-ordered services, availability of funding, the degree of financial need, or the degree of clinical need. To be eligible for substance use disorder services, an individual must:
(a) Be an adult or adolescent with family income at or below federal poverty guidelines established by the department;
(b) Be a resident of the state of Idaho;
(c) Be a member of a priority population;
(d) Meet diagnostic criteria for a substance-related disorder as described in the DSM-5; and
(e) Meet specifications in each of the ASAM dimensions required for the recommended level of care.
[39-306, added 2025, ch. 178, sec. 8, p. 845.]
A participant who is eligible for substance use disorder services may choose a service provider that is in the contracted substance use disorder provider network. Treatment services must be within the recommended level of care according to ASAM based on the individual’s needs identified in the clinical assessment and resulting individualized service plan.
[39-306A, added 2025, ch. 178, sec. 9, p. 846.]
Any contractor with the department providing residential treatment services under this chapter must be nationally accredited by the commission on accreditation of rehabilitation facilities and have an ASAM level of care certification, which verifies the program’s capacity to deliver services consistent with level III ASAM standards of care.
[39-306B, added 2025, ch. 178, sec. 10, p. 846.]
(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.
[39-307, as added by S.L. 1975, ch. 149, sec. 1, p. 376; am. 1987, ch. 289, sec. 6, p. 613; am. 2008, ch. 94, sec. 4, p. 261.]
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
(f) 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.
(g) 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.
(h) 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.
[39-307A, added 1976, ch. 98, sec. 3, p. 417; am. 1987, ch. 289, sec. 7, p. 613.]
(1) An individual receiving substance use disorder services through the department shall be responsible for paying for the services received. The financial responsibility for each service shall be based on the individual’s ability to pay as determined by the department.
(2) If treatment is provided by the department and the patient has not paid the charge for the treatment, 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.
(3) 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.
[39-309, added 1975, ch. 149, sec. 1, p. 376; am. 1976, ch. 98, sec. 4, p. 419; am. 2025, ch. 110, sec. 9, p. 581; am. 2025, ch. 178, sec. 11, p. 846; am. 2026, ch. 251, sec. 10, p. 1061.]
(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.
[39-310, added 1975, ch. 149, sec. 1, p. 376; am. 1987, ch. 289, sec. 9, p. 615; am. 2002, ch. 189, sec. 1, p. 544.]
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.
[I.C., sec. 39-311, as added by S.L. 1975, ch. 149, sec. 1, p. 376.]
(1) The various health districts, as provided for in this chapter, are not:
(a) A single department of state government unto themselves;
(b) A part of any of the twenty (20) departments of state government authorized by section 20, article IV, Idaho constitution;
(c) A part of the departments prescribed in section 67-2402, Idaho Code; or
(d) A department or an agency of county government.
(2) It is legislative intent that health districts operate and be recognized not as state or county 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 or county 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 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.
(3) It is legislative intent to affirm the provisions of section 39-413, Idaho Code, 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 section 67-5333, Idaho Code.
(4) 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.
(5) This section merely affirms that health districts created under this chapter are not state or county agencies and in no way changes the character of those agencies as they existed prior to this act.
(6) Public health districts will have the option to continue with agreements and service arrangements, including insurance arrangements, with state agencies that were effective prior to January 1, 2022, unless an agreement or service arrangement is expressly nullified by statute.
(7) Notwithstanding any other provision of law, a public health district may elect to participate in the comprehensive liability plan authorized by section 6-919, Idaho Code. A public health district making such election shall be considered a state department for purposes of risk management pursuant to chapter 57, title 67, Idaho Code, and the department of administration shall treat it as such. However, participation shall be subject to compliance with loss control policies adopted by the department of administration.
[39-401, added 1976, ch. 179, sec. 1, p. 645; am. 1986, ch. 63, sec. 1, p. 180; am. 2021, ch. 336, sec. 2, p. 1021; am. 2022, ch. 222, sec. 1, p. 735.]
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.
[39-408, added 1970, ch. 90, sec. 1, p. 218.]
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.
[39-409, added 1970, ch. 90, sec. 2, p. 218; am. 1973, ch. 29, sec. 1, p. 56; am. 1986, ch. 63, sec. 2, p. 181.]
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.
[39-410, added 1970, ch. 90, sec. 3, p. 218; am. 1973, ch. 29, sec. 2, p. 56.]
(1) For those districts comprised of:
(a) 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.
(b) 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. 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, added 1970, ch. 90, sec. 4, p. 218; am. 1972, ch. 159, sec. 1, p. 352; am. 1973, ch. 29, sec. 3, p. 56; am. 1984, ch. 38, sec. 1, p. 64; am. 1986, ch. 63, sec. 3, p. 181; am. 1992, ch. 122, sec. 1, p. 400; am. 1999, ch. 61, sec. 1, p. 158; am. 2007, ch. 163, sec. 1, p. 489; am. 2010, ch. 287, sec. 1, p. 768; am. 2018, ch. 296, sec. 1, p. 700; am. 2021, ch. 336, sec. 3, p. 1021.]
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.
[39-412, added 1970, ch. 90, sec. 5, p. 218; am. 1973, ch. 29, sec. 4, p. 56; am. 1980, ch. 247, sec. 33, p. 606; am. 1984, ch. 40, sec. 1, p. 66; am. 1989, ch. 68, sec. 1, p. 110; am. 2007, ch. 91, sec. 1, p. 270.]
A district health director shall be appointed by the district board and shall receive compensation as determined 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, for the conduct and duties of the district employees, for the orderly and efficient handling of business, and for 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:
(a) 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. This shall be the exclusive responsibility of the district health director, with the approval of the board, and no state official, elected or otherwise, or agency shall have any power to disapprove or interfere with the performance by the director and the board of this duty or to delay such performance in any way.
(b) Establish a personnel system to support rates of pay for appointments, promotions, demotions, and separations and to perform such other personnel actions as are needed. This shall be the exclusive responsibility of the district health director, with the approval of the board, and no state official, elected or otherwise, or agency shall have any power to disapprove or interfere with the performance by the director and the board of this duty or to delay such performance in any way.
(c) Create such units and sections as are or may be necessary for the proper and efficient functioning of the duties herein imposed.
[39-413, added 1970, ch. 90, sec. 6, p. 218; am. 1972, ch. 159, sec. 2, p. 352; am. 1973, ch. 29, sec. 5, p. 56; am. 1974, ch. 23, sec. 70, p. 633; am. 1976, ch. 179, sec. 2, p. 646; am. 1982, ch. 133, sec. 1, p. 380; am. 1986, ch. 63, sec. 4, p. 182; am. 2021, ch. 336, sec. 4, p. 1022; am. 2022, ch. 37, sec. 1, p. 98.]
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 undertake only those actions that are necessary and reasonable for preserving and protecting public health and preventive health as supported by scientific evidence. The board may enter into agreements with the director of the state department of health and welfare or the director of the department of environmental quality to provide services or do such other things as specified in the agreement, subject to the limitations described in this subsection. An agreement entered pursuant to this subsection may be between either such director and one (1) district or multiple districts. An order of a district board of health will take effect immediately. Notwithstanding the provisions of this subsection, if an order applies to all persons in a county or a public health district, the board of county commissioners within each affected county, after consulting with the district board of health, shall determine, by resolution, whether or not to approve the order within county limits within seven (7) days of the date of the order. If the board of county commissioners approves the order, then the order will take effect immediately for a period of thirty (30) days. Thereafter, the order may be extended, amended, or modified and reimposed for thirty (30) day periods, subject to approval by the board of county commissioners.
(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 regulation or by standards promulgated pursuant to this chapter or chapter 1, title 39, Idaho Code.
(5) To deposit all moneys or payment received or collected by gift, grant, devise, or any other way 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.
(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 chapter 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 chapter.
(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 services.
(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 or to obligate the state of Idaho concerning such financing.
(13) To select a board member to serve as trustee on the board of trustees of the Idaho district boards of health.
[39-414, added 1970, ch. 90, sec. 14, p. 218; am. 1973, ch. 29, sec. 6, p. 56; am. 1974, ch. 23, sec. 71, p. 633; am. 1976, ch. 51, sec. 9, p. 176; am. 1976, ch. 179, sec. 3, p. 644; am. 1980, ch. 118, sec. 1, p. 257; am. 1982, ch. 133, sec. 2, p. 381; am. 1986, ch. 63, sec. 5, p. 182; am. 1988, ch. 213, sec. 1, p. 403; am. 1992, ch. 331, sec. 3, p. 996; am. 1993, ch. 139, sec. 23, p. 370; am. 1994, ch. 180, sec. 72, p. 474; am. 1999, ch. 61, sec. 2, p. 159; am. 2000, ch. 132, sec. 33, p. 342; am. 2008, ch. 231, sec. 1, p. 702; am. 2021, ch. 90, sec. 1, p. 317; am. 2021, ch. 336, sec. 5, p. 1023; am. 2023, ch. 218, sec. 10, p. 613; am. 2025, ch. 169, sec. 1, p. 804; am. 2026, ch. 7, sec. 2, p. 26.]
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 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.
[39-414A, added 1977, ch. 71, sec. 6, p. 140; am. 1982, ch. 134, sec. 1, p. 383; am. 1993, ch. 327, sec. 20, p. 1211; am. 2021, ch. 89, sec. 14, p. 308; am. 2021, ch. 336, sec. 6, p. 1024; am. 2023, ch. 218, sec. 11, p. 615.]
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.
[39-415, added 1970, ch. 90, sec. 7, p. 218; am. 1973, ch. 29, sec. 7, p. 56.]
(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.
[39-416, added 1970, ch. 90, sec. 11, p. 218; am. 1973, ch. 29, sec. 8, p. 56; am. 1974, ch. 23, sec. 72, p. 633; am. 1976, ch. 179, sec. 4, p. 648; am. 1986, ch. 17, sec. 1, p. 58; am. 1993, ch. 296, sec. 1, p. 1094; am. 1999, ch. 61, sec. 3, p. 160; am. 2010, ch. 24, sec. 1, p. 43; am. 2010, ch. 310, sec. 1, p. 830.]
(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.
[39-417, added 1970, ch. 90, sec. 9, p. 218; am. 1973, ch. 29, sec. 9, p. 56; am. 1974, ch. 23, sec. 73, p. 633; am. 2000, ch. 132, sec. 34, p. 343.]
(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.
[39-418, added 1970, ch. 90, sec. 10, p. 218; am. 1973, ch. 29, sec. 10, p. 56; am. 1974, ch. 23, sec. 74, p. 633.]
(1) It shall be unlawful for any person 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.
(2) Any person 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 found to be in violation of this chapter or the rules promulgated thereunder shall be liable for any expense incurred by the district board of health in enforcing this chapter, or in removing or terminating any nuisance, source of filth, cause of sickness, or health hazard. Conviction under the penalty provisions of this chapter 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.
(4) Notwithstanding the provisions of subsection (2) of this section, if an order is applicable to all persons in a county or a public health district, then a person who willfully violates such order is guilty of an infraction punishable by a fine of fifty dollars ($50.00). No court costs or fees apply to such infraction.
[39-419, added 1970, ch. 90, sec. 8, p. 218; am. 1973, ch. 29, sec. 11, p. 56; am. 1986, ch. 63, sec. 6, p. 183; am. 1992, ch. 122, sec. 2, p. 400; am. 2000, ch. 132, sec. 35, p. 344; am. 2021, ch. 90, sec. 2, p. 318.]
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.
[39-420, added 1970, ch. 90, sec. 12, p. 218; am. 1973, ch. 29, sec. 12, p. 56.]
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.
[39-421, added 1970, ch. 90, sec. 13, p. 218; am. 1976, ch. 179, sec. 5, p. 648; am. 1992, ch. 122, sec. 3, p. 401.]
(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) Except for claims eligible for payment from the retained risk account established by section 67-5776, Idaho Code, 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 and losses eligible for payment from the retained risk account established by section 67-5776, Idaho Code.
[39-422, added 1970, ch. 90, sec. 15, p. 218; am. 1973, ch. 29, sec. 13, p. 56; am. 1974, ch. 23, sec. 75, p. 633; am. 1976, ch. 51, sec. 10, p. 176; am. 1976, ch. 179, sec. 6, p. 644; am. 1982, ch. 133, sec. 3, p. 382; am. 1994, ch. 180, sec. 73, p. 475; am. 1999, ch. 61, sec. 4, p. 161; am. 2022, ch. 222, sec. 2, p. 736.]
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.
Nothing in this section shall prevent the chairman of a board of county commissioners from appointing a designee to represent him on the budget committee if the chairman is unable to attend the budget committee meeting, provided that the designee must be an elected county commissioner from the same county as the chairman of the board of county commissioners.
[39-423, added 1970, ch. 90, sec. 16, p. 218; am. 1971, ch. 27, sec. 1, p. 71; am. 1973, ch. 29, sec. 14, p. 56; am. 1974, ch. 23, sec. 76, p. 633; am. 1974, ch. 58, sec. 1, p. 1134; am. 1977, ch. 77, sec. 1, p. 157; am. 1984, ch. 39, sec. 1, p. 65; am. 1986, ch. 63, sec. 7, p. 184; am. 1999, ch. 61, sec. 5, p. 161; am. 2021, ch. 336, sec. 7, p. 1025.]
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.
[39-424, added 1976, ch. 179, sec. 8, p. 649; am. 1986, ch. 63, sec. 8, p. 185; am. 1999, ch. 61, sec. 6, p. 162.]
(1) Beginning on January 1, 2022, and each year thereafter, the various boards of county commissioners shall be responsible for providing additional annual aid to the public health districts. The amount of such additional county aid shall not be less than the amount appropriated to the various public health districts by the legislature for state fiscal year 2021.
(2) The manner of apportioning the additional aid from the various counties shall be calculated pursuant to section 39-424, Idaho Code, unless an alternative manner of apportioning the additional aid is agreed to by the budget committees of the various public health districts.
(3) A county may use any fund balance accruing pursuant to chapter 35, title 31, Idaho Code, to fund the annual aid provided for in this section.
[39-424A, added 2021, ch. 336, sec. 8, p. 1025; am. 2022, ch. 318, sec. 60, p. 1032.]
(1) The legislature may authorize or grant additional funds to the various public health districts for selected projects.
(2) The liability of the state of Idaho to the public health districts and the public health district fund and its divisions is limited to:
(a) The funds actually authorized or granted to the various public health districts as provided for in subsection (1) of this section; and
(b) 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.
[39-425, added 1976, ch. 295, sec. 2, p. 1021; am. 1986, ch. 64, sec. 1, p. 186; am. 1990, ch. 32, sec. 1, p. 47; am. 1999, ch. 61, sec. 7, p. 163; am. 2021, ch. 336, sec. 9, p. 1026.]
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.
[39-426, added 1970, ch. 90, sec. 19, p. 218.]
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.
[39-501, added 2006, ch. 304, sec. 1, p. 937.]
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.
[39-502, added 2006, ch. 304, sec. 1, p. 938.]
(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.
[39-503, added 2006, ch. 304, sec. 1, p. 938.]
(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.
[39-504, added 2006, ch. 304, sec. 1, p. 938.]
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.
[39-505, added 2006, ch. 304, sec. 1, p. 939.]
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.
[39-506, added 2006, ch. 304, sec. 1, p. 940.]
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.
[39-507, added 2006, ch. 304, sec. 1, p. 940.]
(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.
[39-508, added 2006, ch. 304, sec. 1, p. 941.]
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.
[(39-601) 1921, ch. 200, secs. 1, 6, p. 406; I.C.A., sec. 38-501; am. 1945, ch. 52, sec. 1, p. 67; am. 1986, ch. 70, sec. 1, p. 195; am. 1988, ch. 45, sec. 1, p. 51; am. 1990, ch. 143, sec. 1, p. 322; am. 2012, ch. 311, sec. 1, p. 858.]
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.
[39-601A, added 1988, ch. 45, sec. 2, p. 51.]
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.
[(39-602) 1921, ch. 200, sec. 2, p. 406; I.C.A., sec. 38-502; am. 1974, ch. 23, sec. 95, p. 633; am. 1990, ch. 143, sec. 2, p. 322.]
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.
[(39-603) 1921, ch. 200, sec. 3, p. 406; I.C.A., sec. 38-503.]
(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:
(a) 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;
(b) When the prisoner is awaiting trial after an arrest by any state officer, the state agency employing such arresting officer shall reimburse such costs;
(c) 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.
[(39-604) 1921, ch. 200, sec. 4, p. 406; I.C.A., sec. 38-504; am. 1974, ch. 23, sec. 96, p. 633; am. 1988, ch. 45, sec. 3, p. 51; am. 1989, ch. 220, sec. 1, p. 536; am. 1990, ch. 310, sec. 1, p. 850; am. 1993, ch. 19, sec. 1, p. 71; am. 1994, ch. 408, sec. 1, p. 1278; am. 1999, ch. 323, sec. 1, p. 831; am. 2011, ch. 70, sec. 1, p. 148; am. 2012, ch. 311, sec. 2, p. 858; am. 2013, ch. 209, sec. 1, p. 498.]
The state board of health and welfare is hereby empowered and directed to make such rules as shall, in its judgment, be necessary for the carrying out of the provisions of this chapter, including rules providing for the control and treatment of persons isolated or quarantined, and such other rules, not in conflict with provisions of this chapter, concerning the control of venereal diseases, and concerning the care, treatment and quarantine of persons infected therewith, as it may from time to time deem advisable. All such rules so made shall be of force and binding upon all county and municipal health officers and other persons affected by this chapter, and shall have the force and effect of law. Such rules may be amended from time to time by the state board of health and welfare. All rules must be entered on the minutes of the state board of health and welfare and copies shall be furnished to all county and municipal health officers and to anyone else who may apply for same. Such rules shall be adopted and become effective in accordance with the provisions of chapter 52, title 67, Idaho Code.
[(39-605) 1921, ch. 200, sec. 5, p. 406; I.C.A., sec. 38-505; am. 1974, ch. 23, sec. 97, p. 633; am. 1993, ch. 216, sec. 24, p. 607; am. 2025, ch. 82, sec. 93, p. 377.]
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.
[(39-606) 1921, ch. 200, sec. 7, p. 406; I.C.A., sec. 38-506; am. 1974, ch. 23, sec. 98, p. 633; am. 1987, ch. 222, sec. 1, p. 475; am. 1990, ch. 213, sec. 38, p. 513; am. 2015, ch. 141, sec. 84, p. 440.]
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.
[(39-607) 1921, ch. 200, sec. 8, p. 406; I.C.A., sec. 38-507; am. 1945, ch. 55, sec. 1, p. 71; am. 1974, ch. 23, sec. 99, p. 633; am. 1988, ch. 45, sec. 4, p. 52.]
(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:
(a) "Body fluid" means semen (irrespective of the presence of spermatozoa), blood, saliva, vaginal secretion, breast milk, and urine.
(b) "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:
(a) 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.
(b) 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.
[39-608, added 1988, ch. 151, sec. 1, p. 271.]
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.
[39-609, added 1988, ch. 45, sec. 5, p. 52; am. 1990, ch. 143, sec. 3, p. 322.]
(1) 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.
(2) 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.
(3) Public health authorities may disclose personally identifying information in public health records 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.
(4) 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.
[39-610, added 1988, ch. 45, sec. 6, p. 53; am. 1990, ch. 143, sec. 4, p. 323; am. 1990, ch. 213, sec. 39, p. 513; am. 2015, ch. 141, sec. 85, p. 440; am. 2025, ch. 82, sec. 94, p. 378.]
As used in this chapter:
(1) "Automated external defibrillator" or "AED" refers to an automated external defibrillator approved for commercial distribution by the United States food and drug administration.
(2) "Cardiopulmonary resuscitation" or "CPR" shall have the same meaning as provided in section 39-4502, Idaho Code.
(3) "Health care directive" shall have the same meaning as provided in section 39-4502, Idaho Code.
(4) "Health care provider" shall have the same meaning as provided in section 39-4502, Idaho Code.
(5) "Person" means an individual, corporation, partnership, limited liability company, association, trust, unincorporated organization, or other legal entity or organization, or a government or governmental body.
(6) "Sudden cardiac arrest" means a life-threatening condition that results when a person’s heart suddenly and abruptly stops beating normally and fails to produce a pulse.
[39-701, added 2023, ch. 123, sec. 2, p. 356.]
Any person may, if the person reasonably believes that another person is in sudden cardiac arrest, administer CPR or use an AED on the other person.
[39-702, added 2023, ch. 123, sec. 2, p. 356.]
Any person who reasonably administers CPR or reasonably renders emergency care using an AED, without remuneration or expectation of remuneration, at the scene of an accident or emergency to a victim of the accident or emergency shall not be liable for any civil damages resulting from the person’s acts or omissions. The immunity provided by this section shall not apply to acts or omissions amounting to gross negligence or willful, wanton, or reckless misconduct.
[39-703, added 2023, ch. 123, sec. 2, p. 356.]
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).
[(39-901) 1921, ch. 233, sec. 1, p. 522; I.C.A., sec. 38-701.]
It shall be the duty of any person, hospital, or health care facility assisting in the birth of a child to report inflammation of the eyes of the newborn as described in section 39-901, Idaho Code, or other reportable disease in accordance with department of health and welfare rules to either the department of health and welfare or the local health district.
[39-902, added 2025, ch. 45, sec. 8, p. 217.]
Except as otherwise provided in this chapter, physicians and midwives shall apply ocular antibiotic prophylaxis to the eyes of a newborn for the prevention of gonococcal ophthalmia neonatorum in accordance with the guidelines of the centers for disease control and prevention and the United States preventive services task force as standard medical practice in Idaho.
[39-903, added 2025, ch. 45, sec. 9, p. 217.]
Every physician or midwife shall, in making a report of a birth, state whether the ocular antibiotic prophylaxis described in section 39-903, Idaho Code, was applied to the eyes of the newborn.
[(39-904) 1921, ch. 233, sec. 4, p. 522; I.C.A., sec. 38-704; am. 2025, ch. 45, sec. 10, p. 217.]
(1) Except as otherwise provided in this chapter, it shall be the duty of the administrative officer or other person in charge of each hospital, health care facility, or other institution caring for infants or newborns and the person responsible for the registration of the birth of such infants or newborns under section 39-255, Idaho Code, to cause to have administered to every infant or newborn in its or his care a test for phenylketonuria and such other tests for preventable diseases and blood specimen collection as prescribed in this section and section 39-906, Idaho Code, and by department of health and welfare rules. The person administering such tests or blood specimen collection shall carry out the duty and make such reports of the results thereof as required by this section, section 39-906, Idaho Code, and department of health and welfare rules.
(2) Pursuant to subsection (1) of this section, all infants and newborns shall be tested for at least the following conditions as standard medical practice in Idaho:
(a) Biotinidase deficiency;
(b) Congenital hypothyroidism;
(c) Critical congenital heart disease (CCHD);
(d) Galactosemia;
(e) Maple syrup urine disease; and
(f) Phenylketonuria.
(3) For births occurring outside of a hospital, the birth attendant shall assure that screening for CCHD is conducted through the use of pulse oximetry between twenty-four (24) and forty-eight (48) hours after birth following an algorithm adopted by the department of health and welfare. The birth attendant or his designee shall record the pulse oximetry results on the birth certificate and whether the CCHD screening was determined as "passed," "failed," or "not screened" following the algorithm adopted by the department of health and welfare. The person performing the screening is responsible for making an immediate referral for further evaluation of a newborn whose CCHD results are abnormal and informing the parent or legal guardian of the need for appropriate intervention.
(4) For births occurring in a hospital, the administrator of the responsible institution or his designee shall record the pulse oximetry results on the birth certificate and whether the CCHD screening was determined as "passed," "failed," or "not screened" following the algorithm adopted by the department of health and welfare. The administrator of the responsible institution or his designee shall make a referral for further evaluation of a newborn whose CCHD results are abnormal and inform the parent or legal guardian of the need for appropriate intervention.
[(39-905) 39-909, added 1965, ch. 223, sec. 1, p. 510; am. 1974, ch. 23, sec. 106, p. 633; am. 2018, ch. 169, sec. 9, p. 359; am. and redesig. 2025, ch. 45, sec. 11, p. 218.]
(1) In addition to other tests required by this chapter, all infants and newborns shall be screened for hearing loss prior to discharge from a hospital, health care facility, or birthing facility. For births occurring outside of a hospital, health care facility, or birthing facility, the birthing attendant shall ensure that the infant or newborn is screened for hearing loss or is referred to a hearing screening facility to be screened for hearing loss no later than twenty-one (21) days from the date of birth.
(2) The hearing loss screening required by this section shall employ physiologic screening methods approved by the Idaho educational services for the deaf and the blind (IESDB), including otoacoustic emissions or automated auditory brainstem response.
(3) The screening facility or provider shall report the results of all failed hearing screenings to the IESDB within seven (7) days and all other results monthly to ensure appropriate follow-up and early intervention.
(4) All tests and screenings required by this section shall be performed in accordance with standards, schedules, and protocols established or approved by the IESDB. The IESDB may provide guidance or educational materials to assist providers in carrying out the requirements of this section.
(5) The provisions of this section are contingent on continued receipt of federal funding intended to support infant and newborn hearing screening and shall not be enforceable if the loss of such federal funding would result in an increased cost to the state.
[39-905A, added 2026, ch. 266, sec. 1, p. 1119.]
(1) All infants or newborns shall have a dried blood specimen collection as standard medical practice in Idaho as required in this section.
(2) For healthy infants, the initial dried blood specimen for newborn screening must be obtained between twenty-four (24) and forty-eight (48) hours of age. All infants must be retested. A test kit shall be given to the parents or responsible party at the time of discharge from the institution where initial newborn care was rendered, with instructions to collect a second dried blood specimen. The preferred time for sample collection for healthy infants is between ten (10) and fifteen (15) days of age.
(3) For infants admitted to the neonatal intensive care unit (NICU), the initial dried blood specimen for newborn screening must be obtained upon admission to the NICU. Newborns who require a blood transfusion, hyperalimentation, or dialysis shall have a dried blood specimen collected for screening prior to these procedures.
(4) For infants with a low birth weight, infants with an illness requiring three (3) or more weeks of hospitalization, or other infants admitted to the NICU, the first newborn screening specimen should be collected upon admission to the NICU, the second at twenty-four (24) to forty-eight (48) hours of age, and the third at twenty-eight (28) days or four (4) weeks of age.
(5) For newborns transferred from one hospital to another, the originating hospital shall ensure that the dried blood specimen is drawn. If the newborn is too sick to have a dried blood specimen drawn for screening prior to transfer and a dried blood specimen is not obtained, the originating hospital shall document this fact and notify the hospital to which the newborn is being transferred that a dried blood specimen for newborn screening has not been obtained.
(6) Prior to the discharge of an infant from the institution where initial newborn care or specialized medical care was rendered, the administrator of the institution shall ensure that an adequate dried blood specimen has been collected regardless of the time the infant is discharged from the institution.
(7) For births occurring outside of a hospital, the birth attendant shall ensure that an acceptable dried blood specimen is properly collected for newborn screening as required by this section.
(8) The person obtaining the newborn screening specimen shall fully complete the data card attached to the sample kit.
(9) Within twenty-four (24) hours after collection, the dried blood specimen shall be mailed to the laboratory by first class mail or its equivalent, except when mailing service is not available. When mailing service is not available on weekends or holidays, dried blood specimens shall be mailed to the laboratory on the first available mail pick-up day. The preferred method of mailing, following a weekend or holiday, is by expedited mail service.
(10) The administrator of the responsible institution or a person designated by the administrator of the responsible institution shall maintain a record of all dried blood specimens collected for newborn screening. Such records shall contain:
(a) The name of the infant;
(b) The name of the attending physician or other attendant;
(c) The date the specimen was collected;
(d) The name of the person who collected the specimen; and
(e) A tracking number, if a courier service was used.
(11) The administrator of the responsible institution shall ensure that a protocol for collection and submission of dried blood specimens for newborn screening has been developed, documented, and implemented. The protocol shall clearly define and document individual responsibilities, including but not limited to requiring that the attending physician or birth attendant request that the blood specimen collection be performed. The responsible institution may make an appropriate charge for this service and seek reimbursement when available.
(12) The administrator of the responsible institution or a person designated by the administrator of the responsible institution shall record on the birth certificate whether the dried blood specimen for newborn screening has been collected. When a birth occurs outside a hospital, the person responsible for registering the birth of the child shall record on the birth certificate whether the dried blood specimen for newborn screening has been collected and submitted within twenty-four (24) hours following collection.
(13) The department of health and welfare shall provide access to newborn screening laboratory services. If the administration of the responsible institution or the person required to register the birth of a child chooses to utilize this service, the department shall collect a fee equal to the cost of the test kit, analytical services, and follow-up services provided by the laboratory. The fees must be remitted to the department before the laboratory provides the test kit to those responsible for ensuring the infant is tested according to this chapter.
(14) Laboratories receiving dried blood specimens for newborn screening of infants born in Idaho are encouraged to participate in the centers for disease control and prevention newborn screening quality assurance program. Dried blood specimens for newborn screening shall be processed within twenty-four (24) hours of receipt by the laboratory or before the close of the next business day. Normal test results may be reported by mail to the submitter. Other results shall be reported in accordance with department of health and welfare rules.
(15)(a) Laboratories receiving dried blood specimens for newborn screening shall immediately report any unsatisfactory dried blood specimens to the submitting institution that originated the dried blood specimen or to the health care provider responsible for the newborn’s care, with an explanation of the results. The laboratory shall request a repeat dried blood specimen for newborn screening from the institution or individual submitting the original sample or from the responsible provider as instructed by the newborn screening quality assurance program. Upon notification from the laboratory and as instructed by the newborn screening quality assurance program, the health care provider responsible for the newborn’s care at the time of the report shall collect a repeat dried blood specimen to be appropriately forwarded to the laboratory for screening.
(b) Laboratories receiving dried blood specimens for newborn screening shall report positive or suspicious results on an infant’s dried blood specimen to the attending physician or midwife, or, if there is none or the physician or midwife is unknown, to the person who registered the infant’s birth, and shall make recommendations on the necessity of follow-up testing.
(c) Confirmed positive cases of biotinidase deficiency, congenital hypothyroidism, galactosemia, maple syrup urine disease, and phenylketonuria must be reported as required by department of health and welfare rules.
[39-906, added 2025, ch. 45, sec. 12, p. 218.]
The provisions of this chapter shall not apply to any child whose parent or guardian:
(1) Objects on religious or other grounds, including philosophical or conscientious beliefs; or
(2) Submits 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 requirements of this chapter would endanger the life or health of the child.
[(39-907) 39-912, added 1965, ch. 223, sec. 4, p. 510; am. and redesig. 2025, ch. 45, sec. 13, p. 220; am. 2026, ch. 199, sec. 1, p. 869.]
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.
[39-909, added 1965, ch. 223, sec. 1, p. 510; am. 1974, ch. 23, sec. 106, p. 633; am. 2018, ch. 169, sec. 9, p. 359.]
It shall be the duty of the director of the department of health and welfare:
To enforce the provisions of this act.
To prescribe what tests shall be made for preventable diseases in addition to the test for phenylketonuria.
To publish rules of the board prescribing the time and manner of administering tests required by this act.
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.
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.
To disseminate information and advice to the public concerning the dangers and effects of phenylketonuria and other preventable diseases and their detection and treatment.
[39-910, added 1965, ch. 223, sec. 2, p. 510; am. 1974, ch. 23, sec. 107, p. 633.]
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.
[39-912, added 1965, ch. 223, sec. 4, p. 510.]
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.
[39-1001, added 1943, ch. 26, sec. 1, p. 53; am. 1970, ch. 26, sec. 1, p. 52; am. 1974, ch. 23, sec. 109, p. 633.]
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.
[39-1002, added 1943, ch. 26, sec. 2, p. 53; am. 1974, ch. 23, sec. 110, p. 633.]
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.
[39-1003, added 1943, ch. 26, sec. 3, p. 53; am. 1974, ch. 23, sec. 111, p. 633.]
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.
[39-1004, added 1943, ch. 26, sec. 4, p. 53; am. 1974, ch. 23, sec. 112, p. 633.]
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.
[39-1005, added 1943, ch. 26, sec. 5, p. 53.]
Any person who violates the provisions of sections 39-1001—39-1006 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, and whose request is refused, shall not be guilty of a misdemeanor.
[39-1006, added 1943, ch. 26, sec. 6, p. 53.]
It is hereby declared to be the policy of this state to establish a statewide system for the protection of children in daycare facilities. This system is intended to establish standards, while still leaving primary responsibility for evaluation and selection of daycare services with parents.
[39-1101, added 1987, ch. 56, sec. 1, p. 92; am. 2009, ch. 295, sec. 1, p. 873; am. 2025, ch. 185, sec. 1, p. 862.]
As used in this chapter:
(1) "Board" means the Idaho board of health and welfare.
(2) "Child" means a person less than thirteen (13) years of age.
(3) "Daycare" means care and supervision provided for compensation during part of a twenty-four (24) hour day, for a child or children not related by blood, marriage or legal guardianship to the person or persons providing the care, in a place other than the child’s or children’s own home or homes.
(4) "Daycare center" means a place or facility providing daycare for compensation for thirteen (13) or more children.
(5) "Daycare facility" means a place or facility providing daycare services for compensation to seven (7) or more children not related to the provider.
(6) "Department" means the Idaho department of health and welfare.
(7) "Employee" means any person working for compensation in a facility that provides daycare.
(8) "Family daycare home" means a home, place, or facility providing daycare for six (6) or fewer children.
(9) "Group daycare facility" means a home, place, or facility providing daycare for seven (7) to twelve (12) children.
(10) "Group size" means the maximum number of children in one (1) group or classroom.
(11) "Mixed age group" means a care group that includes children of multiple ages.
(12) "Operator" means a person who operates or maintains a licensed daycare facility.
(13) "Owner" means a person, group of individuals, or entity that has legal control and authority over a daycare business.
(14) "Provider" means a person who provides care and supervision at a daycare facility and is included in the child:staff ratio.
(15) "Ratio" means the number of staff required to supervise a certain number of children.
(16) "Single age group" means a care group that includes children of similar age.
(17) "Staff" means anyone who is sixteen (16) years of age or older who is employed by a daycare facility to provide care and supervision. "Staff" includes operators, owners, and providers.
(18) "Supervision" means:
(a) For a child less than five (5) years of age, a provider is within sight or normal hearing range of the child and near enough to render immediate assistance to the child;
(b) For a child five (5) years of age and older, a provider is within sight or normal hearing range of the child as appropriate to the child’s individual age, needs, and capabilities; and
(c) Notwithstanding paragraph (b) of this subsection, for all children while sleeping, swimming or engaging in other water activity involving a pool, hot tub, or other body of water, or on field trips or activities away from the facility, a provider is within sight and normal hearing range of the child.
(19) "Training" means continuing education in child development areas relating to child care.
[39-1102, added 1987, ch. 56, sec. 1, p. 93; am. 2009, ch. 295, sec. 2, p. 873; am. 2025, ch. 185, sec. 2, p. 862; am. 2025, ch. 186, sec. 1, p. 867; am. 2026, ch. 251, sec. 11, p. 1062.]
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 school for educational purposes for children over four (4) years of age or a 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 and after school programs for children over four (4) years of age or in kindergarten; or
(5) The provision of care for children of a family within the second degree of relationship.
[39-1103, added 1987, ch. 56, sec. 1, p. 93; am. 2009, ch. 295, sec. 3, p. 874; am. 2023, ch. 299, sec. 1, p. 909.]
(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 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 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.
(4) If an applicant fails to complete the application process within six (6) months, the application will be considered abandoned and shall be terminated. An applicant whose application is abandoned, and subsequently terminated, may start a new application at any time.
[39-1104, added 1987, ch. 56, sec. 1, p. 94; am. 2009, ch. 295, sec. 4, p. 874; am. 2025, ch. 185, sec. 3, p. 863.]
(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 chapter 25[27], title 56, 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.
[39-1105, added 1987, ch. 56, sec. 1, p. 94; am. 1992, ch. 90, sec. 1, p. 279; am. 1994, ch. 453, sec. 1, p. 1443; am. 2000, ch. 191, sec. 1, p. 472; am. 2009, ch. 295, sec. 5, p. 875; am. 2020, ch. 291, sec. 1, p. 840; am. 2026, ch. 220, sec. 7, p. 923.]
(1) Upon receipt of the completed application, inspection certificates and the criminal history, the department shall, upon a finding of compliance with the standards set forth in this chapter, issue a basic daycare license to the applicant within sixty (60) days. The license shall be valid for two (2) years, unless suspended or revoked, and 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.
[39-1106, added 1987, ch. 56, sec. 1, p. 94; am. 1992, ch. 90, sec. 2, p. 279; am. 2009, ch. 295, sec. 6, p. 875; am. 2020, ch. 291, sec. 2, p. 841; am. 2025, ch. 185, sec. 4, p. 863; am. 2025, ch. 186, sec. 2, p. 868; am. 2026, ch. 251, sec. 12, p. 1063.]
(1) The total fee to be assessed for a daycare license 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 all other 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.
(2) The department may use Idaho child care program funds 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.
[39-1107, added 1987, ch. 56, sec. 1, p. 94; am. 1992, ch. 72, sec. 1, p. 208; am. 1993, ch. 23, sec. 1, p. 83; am. 2009, ch. 295, sec. 7, p. 876; am. 2011, ch. 274, sec. 1, p. 744; am. 2025, ch. 186, sec. 3, p. 868.]
(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.
[39-1108, added 1987, ch. 56, sec. 1, p. 95; am. 1992, ch. 50, sec. 1, p. 155; am. 1993, ch. 416, sec. 1, p. 1528; am. 2009, ch. 295, sec. 8, p. 876; am. 2011, ch. 274, sec. 2, p. 744.]
(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:
(a) Adequate fire and smoke alarms;
(b) A functional telephone located on the daycare premises during the hours of operation;
(c) Adequate fire extinguishers;
(d) Adequate exits;
(e) Firearms or other weapons that 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;
(f) Pools, hot tubs, ponds and other bodies of water that are on the daycare facility premises must provide the following safeguards:
(i) 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:
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;
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;
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
(ii) 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;
(iii) Wading pools must be empty when not in use;
(iv) 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
(v) 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
(g) 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)(a) The maximum allowable child:staff ratio shall be a maximum of twelve (12) points per staff member using the following point system:
(i) Each child in attendance under the age of twenty-four (24) months shall equal two (2) points.
(ii) Each child in attendance from twenty-four (24) months to under thirty-six (36) months of age shall equal one and thirty-three hundredths (1.33) points.
(iii) Each child in attendance from thirty-six (36) months to under five (5) years of age shall equal nine hundred twenty-three thousandths (0.923) of a point.
(iv) Each child in attendance from five (5) years to under thirteen (13) years of age shall equal forty-eight hundredths (0.48) of a point.
(b) 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.
(c) Daycare facilities may operate with child:staff ratios more stringent than those specified in paragraph (a) of this subsection.
(5) Sleeping children must be within sight and normal hearing range of a provider.
(6) For daycare facilities providing overnight care of children:
(a) A sleeping child shall sleep on the same level as a staff member;
(b) At least one (1) staff member shall be awake and on duty;
(c) Sleeping children shall have separate cots, mats, or beds and blankets; and
(d) A child shall not share a bed with a non-parent adult.
[39-1109, added 1987, ch. 56, sec. 1, p. 95; am. 1997, ch. 164, sec. 1, p. 474; am. 2002, ch. 86, sec. 3, p. 197; am. 2009, ch. 295, sec. 9, p. 876; am. 2011, ch. 274, sec. 3, p. 745; am. 2025, ch. 185, sec. 6, p. 864; am. 2025, ch. 186, sec. 4, p. 869.]
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.
[39-1110, added 1987, ch. 56, sec. 1, p. 95; am. 1994, ch. 147, sec. 1, p. 335; am. 2009, ch. 295, sec. 10, p. 878; am. 2020, ch. 291, sec. 3, p. 841.]
Methods of behavior management and discipline for children shall be positive, consistent, and based on each child’s needs, stage of development, and behavior. Discipline is to promote self-control, self-esteem, and independence. The following acts are prohibited:
(1) Any punishment inflicted on the body, including spanking;
(2) Cruel and unusual physical exercise, including forcing a child to take an uncomfortable position;
(3) Use of excessive physical labor;
(4) Use of restraints;
(5) Locking a child in a room or area;
(6) Denying necessities, including food, clothing, bedding, rest, toilet use, personal care and sanitation, or entrance to the home or facility; and
(7) Mental or emotional cruelty or verbal abuse.
[39-1110A, added 2025, ch. 186, sec. 5, p. 870.]
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. The department shall seek to move all necessary rules into this chapter by July 1, 2026.
[39-1111, added 1987, ch. 56, sec. 1, p. 96; am. 2009, ch. 295, sec. 11, p. 879; am. 2025, ch. 185, sec. 7, p. 865.]
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.
[39-1112, added 1987, ch. 56, sec. 1, p. 96.]
The department shall make available to daycare consumers information to educate daycare consumers with informational tools useful in identifying quality daycare, including:
(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;
(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.
[39-1112A, added 2009, ch. 295, sec. 12, p. 879; am. 2025, ch. 185, sec. 8, p. 865.]
(1) The department shall investigate complaints against daycare facilities. If a preliminary investigation indicates that a more complete investigation is necessary, the operator of the facility shall be informed of the investigation and any action to be taken.
(2) 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.
(3) 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:
(a) Felony injury of a child, section 18-1501, Idaho Code.
(b) The sexual abuse of a child under sixteen years of age, section 18-1506, Idaho Code.
(c) The ritualized abuse of a child under eighteen years of age, section 18-1506A, Idaho Code.
(d) The sexual exploitation of a child, section 18-1507, Idaho Code.
(e) Sexual abuse of a child under the age of sixteen years, section 18-1506, Idaho Code.
(f) Lewd conduct with a child under the age of sixteen years, section 18-1508, Idaho Code.
(g) The sale or barter of a child for adoption or other purposes, section 18-1511, Idaho Code.
(h) Murder in any degree, section 18-4001 or 18-4003, Idaho Code.
(i) Assault with intent to murder, section 18-4015, Idaho Code.
(j) Voluntary manslaughter, section 18-4006, Idaho Code.
(k) Rape, section 18-6101, Idaho Code.
(l) Incest, section 18-6601, Idaho Code.
(m) Forcible sexual penetration by use of foreign object, section 18-6604, Idaho Code.
(n) Abuse, neglect or exploitation of a vulnerable adult, section 18-1505, Idaho Code.
(o) Aggravated, first degree, second degree and third degree arson, sections 18-801 through 18-805, Idaho Code.
(p) The infamous crime against nature, a felony offense formerly codified in chapter 66, title 18, Idaho Code, and whose conviction is entered before July 1, 2022.
(q) Kidnapping, sections 18-4501 through 18-4503, Idaho Code.
(r) Mayhem, section 18-5001, Idaho Code.
(s) Poisoning, section 18-4014 or 18-5501, Idaho Code.
(t) Robbery, section 18-6501, Idaho Code.
(u) Stalking in the first degree, section 18-7905, Idaho Code.
(v) Video voyeurism, section 18-6605, Idaho Code.
(w) Enticing of children, section 18-1509 or 18-1509A, Idaho Code.
(x) Inducing a child into commercial sexual activity, section 18-5609, Idaho Code.
(y) Inducing a child to engage in commercial sexual activity, section 18-5611, Idaho Code.
(z) Any felony punishable by death or life imprisonment.
(aa) 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.
(bb) 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.
(dd) A felony drug-related offense committed during the preceding five (5) years.
(ee) Sexual abuse of an animal, section 18-6602, Idaho Code.
(ff) Sexual abuse of human remains, section 18-6603, Idaho Code.
(4) 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:
(a) Aggravated assault, section 18-905, Idaho Code.
(b) Aggravated battery, section 18-907(1), Idaho Code.
(c) Burglary, section 18-1401, Idaho Code.
(d) Felony theft, sections 18-2403 and 18-2407(1), Idaho Code.
(e) Forgery of a financial transaction card, section 18-3123, Idaho Code.
(f) Fraudulent use of a financial transaction card or number, section 18-3124, Idaho Code.
(g) Forgery or counterfeiting, chapter 36, title 18, Idaho Code.
(h) Misappropriation of personal identifying information, section 18-3126, Idaho Code.
(i) Insurance fraud, section 41-293, Idaho Code.
(j) Damage to or destruction of insured property, section 41-294, Idaho Code.
(k) Public assistance fraud, section 56-227, Idaho Code.
(l) Provider fraud, section 56-227A, Idaho Code.
(m) Attempted strangulation, section 18-923, Idaho Code.
(n) 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.
(o) Misdemeanor injury to a child, section 18-1501(2), Idaho Code.
(5) 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.
(6) 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.
(7) When circumstances occur over which an operator has no control, a license may be suspended until the nonconformity is remedied. If a license is summarily suspended, children at the facility shall not be transported from the facility, but the parents or legal guardians of the children shall be contacted.
(8) A license may be suspended for violations of this chapter. Such suspension may lead to revocation if the operator fails to demonstrate to the department’s satisfaction that the violations have been corrected.
(9) The denial, suspension, or revocation of a license may occur if the owner or operator: fails to furnish records required by the department; has been found guilty of or is under investigation for fraud associated with the operation of the daycare facility or any felony; has knowingly permitted, aided, or abetted the commission of any illegal act on the premises of the daycare facility; endangers health or safety; has repeated law violations; misrepresents or omits information; refuses to allow access to the facility or documentation; or engages in abusive conduct.
(10) The denial, suspension, or revocation of a license under this chapter may be appealed through the administrative appeals process governed by the provisions of chapter 52, title 67, Idaho Code, with the opportunity for further review by the district court of the county in which the affected daycare facility is located.
(11) The department shall not accept an application from any person, corporation, or partnership, including any managing employee, officer, owner, or spouse or partner of an owner of an entity, that has had a license denied or revoked until five (5) years has elapsed from the final date of the disciplinary action.
[39-1113, added 1987, ch. 56, sec. 1, p. 96; am. 1990, ch. 271, sec. 1, p. 765; am. 1992, ch. 90, sec. 3, p. 280; am. 2009, ch. 295, sec. 13, p. 880; am. 2012, ch. 269, sec. 8, p. 762; am. 2016, ch. 296, sec. 16, p. 846; am. 2020, ch. 291, sec. 4, p. 842; am. 2022, ch. 124, sec. 26, p. 461; am. 2024, ch. 147, sec. 51, p. 587; am. 2025, ch. 186, sec. 6, p. 870.]
(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.
[39-1114, added 1987, ch. 56, sec. 1, p. 96; am. 2009, ch. 295, sec. 14, p. 881.]
(1) It shall be a misdemeanor to operate a daycare facility within this state without first obtaining a basic daycare license from the department unless otherwise exempted by this chapter.
(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 and passing 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.
(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.
[39-1115, added 1987, ch. 56, sec. 1, p. 97; am. 1992, ch. 90, sec. 4, p. 281; am. 2009, ch. 295, sec. 15, p. 881; am. 2025, ch. 185, sec. 9, p. 866.]
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.
[39-1116, added 1987, ch. 56, sec. 1, p. 97; am. 2009, ch. 295, sec. 16, p. 882.]
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.
[39-1117, added 1987, ch. 56, sec. 1, p. 97; am. 2009, ch. 295, sec. 17, p. 882.]
(1)(a) 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 this section; or can effectively demonstrate, through verification in a form approved by the department, immunity gained through prior contraction of the disease. Documentation shall be retained by the licensed daycare facility for each child as long as the child attends the daycare facility, plus one (1) year after last attendance.
(b) The age appropriate immunizations required pursuant to this paragraph shall conform to recognized standard medical practices in the state:
(i) Diphtheria, Tetanus and A-Cellular Pertussis (DTaP) vaccine;
(ii) Polio vaccine;
(iii) Measles, Mumps, and Rubella (MMR) vaccine;
(iv) Haemophilus Influenza Type B (HIB) vaccine;
(v) Hepatitis B vaccine;
(vi) Varicella vaccine;
(vii) Pneumococcal vaccine;
(viii) Rotavirus vaccine; and
(ix) Hepatitis A vaccine.
(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 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.
(3) Licensed daycare facilities shall describe the exemptions provided in subsection (2) of this section and shall provide a citation to this code section in any communication to parents or guardians regarding immunization.
(4) A child not meeting the conditions of this section shall be excluded by the licensed daycare facility operator until the child is in compliance. A child exempt from the provisions of this section pursuant to subsection (2) of this section may be excluded by the department in the event of a disease outbreak.
(5)(a) The department may randomly select and visit licensed daycare facilities to evaluate compliance with this section. The department shall inform licensed daycare facilities at least thirty (30) days in advance of such visits.
(b) The department shall record violations in writing and provide a copy to the licensed daycare operator. Licensed daycare operators shall have thirty (30) days following an inspection to state that the specified violations have been corrected. Failure to respond shall result in notification to the licensed daycare operator’s licensing authority.
[39-1118, added 1990, ch. 150, sec. 1, p. 334; am. 2009, ch. 295, sec. 18, p. 882; am. 2011, ch. 103, sec. 1, p. 266; am. 2023, ch. 72, sec. 1, p. 240; am. 2025, ch. 174, sec. 1, p. 819.]
The owner or operator of a daycare center shall ensure that each employee receives four (4) hours of ongoing training in child development areas related to daycare every twelve (12) months after the employee’s hire date. Each staff member counting toward the child:staff ratio shall have current certification in pediatric rescue breathing and pediatric first aid from a certified instructor. The owner or operator is responsible for maintaining documentation of each staff member’s training.
[39-1119, added 1993, ch. 416, sec. 2, p. 1529; am. 2025, ch. 186, sec. 7, p. 872.]
The department’s duties and responsibilities under this chapter are nondelegable.
[39-1120, added 2009, ch. 295, sec. 19, p. 883.]
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.
[(39-1201) 1963, ch. 320, sec. 1, p. 901; am. and redesignated 1990, ch. 215, sec. 2, p. 569.]
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 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 that 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 that 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; or (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:
(a) Foster homes;
(b) Residential schools;
(c) Children’s camps.
No facility expressly excluded from the definition of a children’s institution is included within the definition of a children’s residential care facility.
(8) "Children’s therapeutic outdoor program" is a program 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-three (23) 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.
(13) "Foster care" means child care by a person not related to the child, in lieu of parental care, in a foster home. The term also includes care provided by kin when placement has been made by the department and the kin are licensed by the department pursuant to 39-1211A, Idaho Code.
(14) "Foster home" means a home that 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. The term also includes a home of kin when placement has been made by the department and the kin is licensed by the department pursuant to 39-1211A, Idaho Code.
(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(8), 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) "Kin" means all relatives pursuant to this chapter, extended family members, and those who have a significant family-like relationship with a child.
(19) "Person" includes any individual, group of individuals, association, partnership, limited liability company or corporation.
(20) "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.
(21) "Relative" means a child’s grandparent, great grandparent, aunt, great aunt, uncle, great uncle, brother-in-law, sister-in-law, first cousin, sibling or half-sibling.
(22) "Representative" means an employee of the state department of health and welfare.
(23) "Residential facility" means any facility where child care is provided, as defined in this section, and that provides day and night accommodation.
(24) "Residential school" means a residential facility for children that:
(a) 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
(b) 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
(c) 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
(d) Is not:
(i) A college or university;
(ii) A children’s camp as defined in this section; or
(iii) A public or private day school in which the children leave the facility each day at the conclusion of the academic, vocational or school-supervised activities.
(25) "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.
[(39-1202) 39-1209, added 1963, ch. 320, sec. 2, p. 901; am. 1972, ch. 196, sec. 4, p. 483; am. 1974, ch. 23, sec. 113, p. 633; am. 1987, ch. 56, sec. 2, p. 92; am. 1990, ch. 214, sec. 1, p. 564; am. and redesig. 1990, ch. 215, sec. 3, p. 569; am. 2001, ch. 93, sec. 5, p. 236; am. 2002, ch. 219, sec. 1, p. 599; am. 2010, ch. 147, sec. 4, p. 319; am. 2010, ch. 235, sec. 22, p. 560; am. 2021, ch. 18, sec. 3, p. 44; am. 2022, ch. 23, sec. 3, p. 67; am. 2025, ch. 142, sec. 2, p. 721; am. 2026, ch. 198, sec. 3, p. 867.]
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:
(a) 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
(b) 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.
[39-1203, added 1990, ch. 215, sec. 4, p. 571; am. 1990, ch. 214, sec. 2, p. 566.]
(1) The department shall design a form for the initial disclosure report which shall contain only the following information:
(a) The name, address and telephone number(s) for each children’s agency or children’s institution.
(b) The name(s), address and telephone number(s) of the individual(s) in charge at each children’s agency or children’s institution.
(c) The number of children that can be accommodated for child care at each children’s institution and a description of such accommodations.
(d) 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.
(e) A complete description of the child care services to be provided at each children’s institution.
(f) 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.
(g) 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.
(h) 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.
[39-1204, added 1990, ch. 215, sec. 5, p. 571; am. 2002, ch. 219, sec. 2, p. 601; am. 2010, ch. 235, sec. 23, p. 562.]
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."
[39-1205, added 1990, ch. 215, sec. 6, p. 572; am. 2001, ch. 93, sec. 6, p. 238; am. 2002, ch. 219, sec. 3, p. 601.]
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.
[39-1206, added 1990, ch. 215, sec. 7, p. 572; am. 1990, ch. 214, sec. 3, p. 566.]
(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.
[39-1207, added 1990, ch. 215, sec. 8, p. 573.]
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:
(a) Statewide criminal identification bureau;
(b) Federal bureau of investigation (FBI) criminal history;
(c) National crime information center; and
(d) Statewide child abuse register.
[39-1208, added 2002, ch. 219, sec. 4, p. 602.]
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.
[39-1209, added 1990, ch. 215, sec. 10, p. 574.]
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:
(a) Assure social services on behalf of both the mother and infant; and
(b) 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:
(a) Statewide criminal identification bureau;
(b) Federal bureau of investigation (FBI) criminal history;
(c) National crime information center; and
(d) Statewide child abuse register.
[39-1210, added 1963, ch. 320, sec. 3, p. 901; am. 1980, ch. 325, sec. 3, p. 825; am. 1990, ch. 213, sec. 40, p. 513; am. 1990, ch. 215, sec. 11, p. 574; am. 2001, ch. 93, sec. 8, p. 239; am. 2015, ch. 141, sec. 86, p. 441.]
(1) The department shall assess the quality of care of all licensed children’s residential care facilities. To assess the quality of care, the department shall:
(a) Conduct an annual unannounced inspection of each licensed residential care facility and additional inspections as warranted by substantiated complaints, serious incidents, prior deficiencies, significant operational changes, or patterns of noncompliance. The annual inspection shall include:
(i) Review of the facility’s quality assurance program required by the department, including documentation demonstrating its implementation and effectiveness in meeting residents’ individual safety needs and service plan. Accreditation reports issued by a nationally recognized accrediting organization may be accepted as evidence of compliance with this requirement; and
(ii) Review of the program description to ensure the facility’s compliance with its approved program description and its capacity to serve the specific safety needs of each child.
(b) Conduct announced and unannounced interviews and surveys with children in the facility to identify strengths and weaknesses of the program and then integrate the children’s feedback into the quality improvement and licensing review processes;
(c) Review adherence to the youth bill of rights; and
(d) Conduct other activities as it deems appropriate.
(2) As part of the licensing inspection process, the department shall conduct confidential, in-person interviews with a sample representative of current residents and facility staff selected exclusively by department personnel using an independent and objective process. Facility administrators or staff shall not participate in the selection of interviewees. The department shall document the findings of these interviews and incorporate the results into its overall compliance assessment, quality review, and any required corrective action plan.
(3) Findings from inspections and interviews by the department that reveal violations of licensing requirements, the youth bill of rights, documentation requirements, or statutory protections shall be grounds for enforcement action, including corrective plans, sanctions, or referral to the child abuse reporting hotline or law enforcement as appropriate. Additionally, upon a finding of a violation, the department shall:
(a) Complete a critical incident report;
(b) Uphold standards for interview procedures, documentation, and confidentiality;
(c) Maintain the criteria for determining inspection frequency and scope; and
(d) Maintain timelines for follow-up inspections and compliance verifications.
[39-1210A, added 2026, ch. 139, sec. 2, p. 659.]
(1) Residential care facilities shall document the following information at the time of a child’s placement:
(a) The physical and emotional state of the child upon intake;
(b) The child’s primary diagnosis;
(c) The nature of the child’s problems;
(d) The child’s physical, social, and emotional development and any special problems and needs the child may have; and
(e) Reports on psychological tests, psychiatric examinations, and follow-up treatment, if obtained.
(2) The facility shall develop and document an individualized service plan for each child. The initial individualized service plan shall be written within thirty (30) days after a child has been admitted to the facility and shall include:
(a) The needs of the child and the child’s family;
(b) The goals for the child and time frames to achieve such goals;
(c) The services the facility will provide to assure the safety, health, and well-being of the child; and
(d) The criteria for discharge and the projected discharge date.
(3) The facility shall update the individualized service plan every ninety (90) days to document the progress toward achieving the goals referenced in the initial plan.
(4) If a child is placed in the facility for less than thirty (30) days, the initial service plan shall include, upon admission:
(a) The immediate needs of the child; and
(b) The services the facility will provide to assure the safety, health, and well-being of the child.
(5) The facility shall complete a discharge summary written within seven (7) days of the discharge of a child, which shall include:
(a) The date and reason for the child’s discharge from the facility;
(b) The physical, emotional, medical, and educational needs of the child; and
(c) Recommendations for treatment.
[39-1210B, added 2026, ch. 139, sec. 3, p. 660.]
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.
[39-1211, added 1963, ch. 320, sec. 4, p. 901; am. 1972, ch. 196, sec. 5, p. 483; am. 1974, ch. 23, sec. 114, p. 633; am. 1987, ch. 56, sec. 3, p. 92; am. 1990, ch. 215, sec. 12, p. 575; am. 2001, ch. 93, sec. 9, p. 240.]
(1) Kin providing foster care for a 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 for a relative. The department may establish separate standards or requirements for licensure of kin if, in the department’s judgment, the health and safety of the 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.
[39-1211A, added 2010, ch. 147, sec. 5, p. 321; am. 2025, ch. 142, sec. 3, p. 723; am. 2026, ch. 198, sec. 4, p. 868.]
(1) Foster homes licensed by the department shall meet the health and safety requirements described in this section, except as provided by section 39-1211A, Idaho Code.
(2) The living space of a home licensed by the department must have:
(a) An adequate supply of safe drinking water. In cases of non-municipal water, the department may test for safety;
(b) A properly operating kitchen with a sink, refrigerator, stove, and oven;
(c) At least one (1) toilet, sink, and tub or shower in operating condition;
(d) Heating and cooling as required by the geographic area, consistent with accepted community standards and in safe operating condition; and
(e) A working phone or access to a working phone in close walking proximity.
(3) The applicant’s home, grounds, and all structures on the grounds of the property must be properly maintained in a clean, safe, and sanitary condition and in a reasonable state of repair within community standards. The interior and exterior must be free from dangerous objects, conditions, and hazardous materials.
(4) The home shall have adequate lighting and ventilation, proper trash disposal, and, if recycling is available, proper recycling disposal.
(5) The home shall be free from rodent and insect infestation.
(6) The home shall have proper water heater temperature.
(7) Medications, poisonous materials, cleaning supplies, other hazardous materials, and alcoholic beverages in the home shall be stored such that they are not accessible by a child.
(8) Any pet or domestic animal that is suspected or known to be dangerous shall be kept in an area inaccessible to children. Dogs shall be vaccinated for rabies and comply with the provisions of section 25-2810, Idaho Code.
(9) Swimming pools, hot tubs, and spas shall meet all state, tribal, and local safety requirements. Additionally:
(a) Swimming pools shall have a barrier on all sides;
(b) Swimming pools shall have their methods of access through the barrier equipped with a safety device, such as a bolt lock;
(c) Swimming pools shall be equipped with a life saving device, such as a ring buoy;
(d) If a swimming pool cannot be emptied after each use, it shall have a working pump and filtering system; and
(e) Hot tubs and spas shall have safety covers that are locked when not in use.
(10) The home shall have at least one (1) functioning smoke detector on each level of occupancy of the home and at least one (1) functioning smoke detector near all sleeping areas.
(11) The home shall have at least one (1) functioning carbon monoxide detector on each level of occupancy of the home and at least one (1) functioning carbon monoxide detector near all sleeping areas. A living space that does not have equipment that produces carbon monoxide or does not have an attached garage is exempt from this requirement.
(12) The home shall:
(a) Have at least one (1) operable fire extinguisher that is readily accessible;
(b) Be free of obvious fire hazards such as defective heating equipment or improperly stored flammable materials;
(c) Have a written fire emergency evacuation plan posted in a prominent place in the home and reviewed with children placed for foster care;
(d) Maintain a comprehensive list of emergency telephone numbers, including poison control, posted in a prominent place in the home; and
(e) Maintain first aid supplies.
(13) The home shall provide a safe sleeping space, including sleeping supplies such as a mattress and linens or appropriate cribs for each individual child, as appropriate for the child’s needs and age and similar to other household members. Foster parents may not co-sleep or bed-share with infants.
[39-1211B, added 2025, ch. 124, sec. 1, p. 654.]
(1)(a) Prior to licensure pursuant to this chapter, each applicant, unless exempted, shall complete the following:
(i) Training on knowledge and skills relating to the reasonable and prudent parent standard as set forth in chapter 16, title 16, Idaho Code;
(ii) Orientation to foster care programs;
(iii) Training on understanding the impact of trauma on children;
(iv) Training on behavior management;
(v) Training on working with birth parents;
(vi) Training on court processes; and
(vii) Training on the physical safety of children in foster care.
(b) The required training described in this subsection shall not exceed ten (10) hours total, and each training shall include a check on learning to ensure understanding.
(2) The department shall make training available on an ongoing basis to all foster parents on the following topics: rights, roles, and responsibilities of foster parents; laws and regulations; the impact of childhood trauma; managing child behaviors; first aid and medication administration; gun safety in foster homes; and the importance of maintaining meaningful connections between the child and parents, including regular visitation.
[39-1211C, added 2025, ch. 124, sec. 2, p. 655; am. 2026, ch. 92, sec. 1, p. 519.]
(1) All children placed in foster care shall have the following safety-related rights:
(a) The right to reside in a safe and healthy environment;
(b) The freedom from physical, sexual, emotional, or other abuse. This includes the freedom to be placed away from other children, siblings, or individuals known to pose a credible threat of physical or sexual abuse to the foster child, either because of the foster child’s own risk factors or those of the other children, siblings, or individuals;
(c) The right to timely and appropriate medical assessments and forensic testing when a child discloses sexual abuse to a mandatory reporter, consistent with applicable Idaho law and mandatory reporting requirements;
(d) The right to adequate and appropriate basic essentials, including food, shelter, clothing, and personal necessities;
(e) The right to limit, restrict, suspend, or deny visitation by court order because visitation would be contrary to the safety and well-being of the child. Substantiated safety concerns shall be considered by the court to limit, restrict, suspend, or deny visitation. The court may consider any relevant factors, including:
(i) Safety and risk assessments;
(ii) Placement and supervision decisions;
(iii) Protective plans;
(iv) Medical, behavioral health, and developmental evaluations; and
(v) Reunification plans and case plans; and
(f) The right to reasonable consideration of the child’s safety during transitions between foster care placements when practicable and consistent with the safety of the child. Nothing in this paragraph shall be construed to delay an emergency placement or supersede a court order or immediate safety determination. In evaluating safety, the court may consider factors relevant to the child’s circumstances, including age, developmental needs, emotional or behavioral health, prior trauma, and the reasons for the placement change.
(2) The department shall develop a written notice of, at a minimum, the rights enumerated in this section. The department shall provide each child with such written notice at the time of initial placement in foster care, at each placement change, and at least annually. Foster homes licensed by the department shall post the notice in a place where children have access. Failure to provide or post such notice shall not, by itself, create a cause of action or constitute a violation of law.
(3) The rights in this section are a broad expression of the rights of children in foster care, are not exhaustive, and shall be interpreted and applied consistent with the best interests of the child.
(4) Nothing in this section shall be construed to expand the authority of the state or the department beyond that which is otherwise provided by law or be construed to create a private cause of action or a cause of action against the state, the judiciary, the department, or any employee, agent, or contractor thereof. Implementation of this section shall occur through existing court proceedings and department processes and shall not require new enforcement mechanisms, agencies, reporting structures, or appropriations.
(5) Alleged violations of the rights enumerated in this section may be raised within the child’s ongoing juvenile proceeding pursuant to chapter 16, title 16, Idaho Code, by the child’s attorney, guardian ad litem, court-appointed special advocate, the department, or another party to the proceeding already granted standing under existing Idaho law or by a foster parent through any of the aforementioned. Reports or information submitted by a mandatory reporter pursuant to Idaho law may be brought to the attention of the court through any such party and considered by the court in determining whether a violation of these rights has occurred. Upon such notice, the court shall consider the allegation and may, within its discretion, order appropriate remedies within the juvenile proceeding to promote the safety and welfare of the child. Nothing in this subsection shall be construed to require the initiation of a separate action or to expand the jurisdiction of the court beyond existing law. Relief under this subsection shall be limited to corrective orders within the juvenile proceeding pursuant to chapter 16, title 16, Idaho Code.
(6) The department shall make reasonable efforts to ensure that all reports received pursuant to mandatory reporting laws related to a child subject to a juvenile proceeding pursuant to chapter 16, title 16, Idaho Code, are documented and made available for consideration by the court within that proceeding in a manner consistent with existing confidentiality, evidentiary, and due process requirements.
(7) Nothing in this section shall be construed to limit the ability of a child, the child’s representative, a foster parent, or a party to the juvenile proceeding pursuant to chapter 16, title 16, Idaho Code, to contact the health and social services ombudsman regarding concerns related to the implementation of this section. Any review or recommendation by the health and social services ombudsman shall be advisory in nature and shall not create a cause of action or alter the authority of the court or the department.
[39-1212, added 2026, ch. 132, sec. 2, p. 628.]
(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-three (23) 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.
[39-1213, added 1963, ch. 320, sec. 6, p. 901; am. 1974, ch. 23, sec. 116, p. 633; am. 1980, ch. 302, sec. 1, p. 780; am. 1990, ch. 215, sec. 15, p. 576; am. 2001, ch. 93, sec. 10, p. 240; am. 2002, ch. 219, sec. 5, p. 602; am. 2025, ch. 142, sec. 4, p. 723.]
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.
[39-1214, added 1963, ch. 320, sec. 7, p. 901; am. 1990, ch. 215, sec. 16, p. 576; am. 2001, ch. 93, sec. 11, p. 241; am. 2002, ch. 219, sec. 6, p. 603.]
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.
[39-1215, added 1963, ch. 320, sec. 8, p. 901.]
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.
[39-1216, added 1963, ch. 320, sec. 9, p. 901; am. 1990, ch. 215, sec. 17, p. 577; am. 2001, ch. 93, sec. 12, p. 241; am. 2002, ch. 219, sec. 7, p. 603.]
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.
[39-1217, added 1963, ch. 320, sec. 10, p. 901; am. 1990, ch. 215, sec. 18, p. 577; am. 2001, ch. 93, sec. 13, p. 241; am. 2002, ch. 219, sec. 8, p. 603.]
(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.
[39-1218, added 1963, ch. 320, sec. 11, p. 901; am. 1974, ch. 23, sec. 117, p. 633; am. 1990, ch. 215, sec. 19, p. 577.]
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 chapter 52, title 67, Idaho Code, provided, however, the filing of notice of appeal shall not, unless otherwise ordered, stay the proceedings of the director.
[39-1219, added 1963, ch. 320, sec. 12, p. 901; am. 1974, ch. 23, sec. 118, p. 633; am. 1990, ch. 215, sec. 20, p. 578; am. 2002, ch. 219, sec. 9, p. 604; am. 2025, ch. 82, sec. 95, p. 379.]
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.
[39-1220, added 1963, ch. 320, sec. 13, p. 901; am. 1990, ch. 215, sec. 21, p. 578; am. 2001, ch. 93, sec. 14, p. 241; am. 2002, ch. 219, sec. 10, p. 604.]
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.
[39-1221, added 1963, ch. 320, sec. 14, p. 901; am. 1990, ch. 215, sec. 22, p. 578; am. 1990, ch. 214, sec. 4, p. 567; am. 2001, ch. 93, sec. 15, p. 241; am. 2002, ch. 219, sec. 11, p. 604.]
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.
[39-1222, added 1963, ch. 320, sec. 15, p. 901; am. 1990, ch. 215, sec. 23, p. 578; am. 2001, ch. 93, sec. 16, p. 242; am. 2002, ch. 219, sec. 12, p. 604.]
This act shall be liberally construed to the end that the legislative policy expressed herein is attained.
[39-1223, added 1963, ch. 320, sec. 17, p. 901.]
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.
[39-1224, added 1963, ch. 320, sec. 18, p. 901; am. 1987, ch. 56, sec. 4, p. 92; am. 1990, ch. 215, sec. 24, p. 579.]
(1) The department shall develop, publish, and periodically update a youth bill of rights that applies to all children residing in facilities licensed by the department pursuant to this chapter and department rules. The youth bill of rights shall include, at a minimum, rights related to:
(a) Physical and emotional safety;
(b) Access to medical and behavioral health care;
(c) Communication and visitation with family, legal representatives, and advocates;
(d) Privacy and confidentiality;
(e) Participation in educational and recreational activities;
(f) Freedom from abuse, neglect, and unreasonable restraints;
(g) Fair grievance and complaint processes without retaliation; and
(h) Reporting of concerns or violations to the department.
(2) The youth bill of rights shall clearly be explained, in plain language appropriate for the child’s age and abilities, how to contact the child abuse reporting hotline, including the phone number, website, and mailing address.
(3) Each licensed children’s residential facility shall:
(a) Post the youth bill of rights in a prominent, public area of the facility accessible to children and visitors;
(b) Distribute a copy of the youth bill of rights to each child and the child’s parent or legal guardian at the time of admission and upon request thereafter;
(c) Interpret and explain the youth bill of rights to the child and family in age-appropriate and culturally and linguistically appropriate formats, including provision of interpretation services for limited-English-proficient and disabled persons as necessary;
(d) Document that the youth bill of rights has been provided and explained, including the date, the recipients’ names, and the name of the staff member who conducted the explanation;
(e) Ensure that children are provided with access to private and unmonitored communication with the child abuse reporting hotline upon request;
(f) Document compliance with mandated requirements; and
(g) Adopt processes and procedures for children to confidentially contact the child abuse reporting hotline and for staff to assist children in doing so when requested.
(4) The department shall develop enforcement mechanisms and penalties for noncompliance with this section, including consideration as a licensing violation.
(5) No child or family member may be retaliated against for invoking or attempting to exercise any right provided in the youth bill of rights or for contacting the child abuse reporting hotline. Retaliation shall constitute a licensing violation subject to corrective action and potential sanctions determined by the department.
[39-1225, added 2026, ch. 139, sec. 4, p. 660.]
(1) As used in this section, "critical incident" means any event that threatens or significantly impacts the physical or psychological safety, health, rights, or well-being of a child in a licensed children’s residential care facility, including but not limited to:
(a) The death of a child;
(b) A suicide attempt or serious self-harm;
(c) Use of physical restraint, seclusion, or any emergency safety intervention;
(d) Denial or unreasonable delay of requested or necessary medical care;
(e) Admission to, or transport to or from, a hospital or emergency medical facility;
(f) Any allegation or incident of physical, sexual, or emotional abuse or harm;
(g) Any child detained, charged, or arrested by law enforcement or a regulatory agency;
(h) Any unauthorized absence, runaway, or attempted elopement;
(i) Any fire, evacuation, or environmental hazard on site;
(j) Any condition of the facility that poses an immediate threat to health or safety; and
(k) Any other incident designated by the department by rule.
(2) Each licensed children’s residential facility shall:
(a) Notify the department by close of the next business day of any critical incident using the department-approved reporting process;
(b) Notify the child’s parent, legal guardian, or placing agency of the incident by close of the next business day, unless prohibited by court order or safety concerns documented by the agency; and
(c) Maintain an internal critical incident log and supporting documentation, including incident reports, staff notes, and any follow-up or investigation records, which shall be made available for review during inspections.
(3) All reports and logs must protect personally identifiable information and comply with applicable state and federal confidentiality laws, including the health insurance portability and accountability act and the family educational rights and privacy act, as applicable. The department shall:
(a) Maintain and safeguard content of critical incident reports;
(b) Follow best practices for emergency safety interventions;
(c) Conduct reviews, follow-up, and data analysis of reported incidents; and
(d) Publicize the results with any substantiated findings and enforcement actions.
(4) This section shall not be construed to alter any reporting requirements pursuant to section 16-1605, Idaho Code.
[39-1226, added 2026, ch. 139, sec. 5, p. 661.]
For purposes of this section through section 39-1309, Idaho Code, the following terms shall be defined as follows:
(1) "CMS" means the centers for medicare and medicaid services.
(2) "Department" means the department of health and welfare.
(3) "Government unit" means the state, or any county, municipality, or other political subdivision, or any department, division, board, or other agency thereof.
(4) "Home health agency" means any business entity that primarily provides skilled nursing services by licensed nurses and also provides at least one (1) other health care service to an individual in that individual’s place of residence.
(5) "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.
(6) "Hospital" has the same meaning as in section 1861 of the social security act.
(7) "Intermediate care facility" 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.
(8) "Nursing facility" or "nursing home" has the same meaning as in 42 CFR.
(9) "Person" means any individual, firm, partnership, corporation, company, association, or joint stock association, and the legal successor thereof.
[39-1301, added 2025, ch. 122, sec. 20, p. 634.]
(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:
(a) 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
(b) The department finds the arrangement safe and effective; and
(c) 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.
[(39-1301A) 39-1301a, added 1998, ch. 238, sec. 1, p. 795; am. and redesig. 2000, ch. 274, sec. 6, p. 807.]
(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:
(a) 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
(b) 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.
[39-1301B, added 2000, ch. 274, sec. 7, p. 808.]
(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.
[39-1301C, added 2010, ch. 84, sec. 2, p. 164.]
Sections 39-1301 through 39-1309, Idaho Code, shall be known and may be cited as the "Streamlined Facilities Licensing and Inspection Act."
[39-1302, added 2025, ch. 122, sec. 21, p. 634.]
(1) All medicare-certified or medicaid-certified hospitals, nursing facilities, or intermediate care facilities shall meet the standards for licensing pursuant to this chapter.
(2) A hospital shall have and maintain medicare certification through an accreditation organization recognized by CMS or receive a determination from the department that the hospital meets the criteria in 42 CFR for operating a hospital.
(3) A nursing facility or an intermediate care facility shall have and maintain CMS certification.
(4) A hospital, nursing facility, or intermediate care facility making an initial application for a license shall be issued a license if the department determines that all application information is acceptable and that the hospital, nursing facility, or intermediate care facility is at least in substantial compliance with the provisions of this chapter.
(5) Each licensee shall be designated by a distinctive name in applying for a license, and the name shall not be changed without first notifying the department in writing. Each licensee shall specify the maximum number of allowable beds in the hospital, nursing facility, or intermediate care facility, whether in use or not, and the licensee shall not exceed such maximum number of beds.
(6) When applicable, a licensee shall comply with rules adopted by the department, subject to legislative approval, on criminal history and background checks.
(7) A hospital, nursing facility, or intermediate care facility shall notify the department, in accordance with the time frame established in federal regulations, for every change of ownership, lessee, or management firm. A hospital, nursing facility, or intermediate care facility shall notify the department within seventy-two (72) hours of any change in administrator and submit a new application for licensure for any change in ownership or operator.
(8) Neither medicare-certified hospice agencies nor home health agencies are required to be licensed or certified pursuant to this chapter.
[39-1303, added 2025, ch. 122, sec. 22, p. 635.]
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.
[(39-1303a) 1969, ch. 416, sec. 2, p. 1157; am. 1974, ch. 23, sec. 120, p. 633; am. and redesignated 1980, ch. 159, sec. 5, p. 336; am. 1981, ch. 32, sec. 2, p. 52.]
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.
[(39-1303b) 1976, ch. 122, sec. 1, p. 470; am. and redesignated 1980, ch. 159, sec. 6, p. 336.]
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.
[(39-1303c) 1976, ch. 122, sec. 2, p. 470; am. and redesignated 1980, ch. 159, sec. 7, p. 336.]
Notwithstanding the provisions of section 39-1303, Idaho Code, the department 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 or patient. A license issued pursuant to this chapter shall remain in force until the license is voluntarily surrendered or the facility fails to meet CMS certification standards.
[39-1304, added 2025, ch. 122, sec. 23, p. 635.]
The department shall make or cause to be made such inspections and investigations as it deems necessary. Any licensee or applicant desiring to make specified types of alterations or additions to its facilities or to construct new facilities shall, before commencing such alterations, additions, or new construction, submit plans and specifications to the department for inspection and approval or recommendations with respect to compliance with the regulations and standards authorized pursuant to sections 39-1301 through 39-1309, Idaho Code. The department recognizes the most recent edition of the facility guideline institute (FGI), guidelines for design and construction.
[(39-1305) 39-1309, added 1947, ch. 133, sec. 9, p. 324; am. and redesig. 2025, ch. 122, sec. 24, p. 635.]
Information received by the department through filed reports, inspections, or as otherwise authorized pursuant to sections 39-1301 through 39-1309, Idaho Code, that would identify individual residents or patients of facilities or agencies shall be subject to disclosure according to chapter 1, title 74, Idaho Code. Public disclosure of information obtained by the department for the purposes of sections 39-1301 through 39-1309, Idaho Code, shall be governed by chapter 1, title 74, Idaho Code. Nothing in sections 39-1301 through 39-1309, Idaho Code, however, shall be construed 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 or communications to and with nurses or other assisting persons or entities. Nothing in sections 39-1301 through 39-1309, Idaho Code, shall be construed to amend by implication such physician-patient communication privilege as provided by law, including without limitation section 9-203(4), Idaho Code, which shall remain inviolate.
[(39-1306) 39-1310, added 1947, ch. 133, sec. 12, p. 324; am. 1975, ch. 133, sec. 1, p. 294; am. and redesig. 1980, ch. 159, sec. 13, p. 338; am. 1990, ch. 213, sec. 41, p. 514; am. 2015, ch. 141, sec. 87, p. 442.; am. and redesig. 2025, ch. 122, sec. 25, p. 636.]
Any person establishing, conducting, managing, or operating a hospital, nursing facility, or intermediate care facility without a license pursuant to sections 39-1301 through 39-1309, Idaho Code, shall be guilty of a misdemeanor. A violation of this section is punishable by imprisonment in a county jail for a term not exceeding six (6) months, or by a fine not exceeding three hundred dollars ($300), or by both. Each day of continued violation of the provisions of this section shall constitute a separate offense.
[39-1307, added 2025, ch. 122, sec. 26, p. 636.]
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.
[39-1307A, added 1988, ch. 330, sec. 1, p. 992.]
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.
[39-1307B, added 1988, ch. 330, sec. 2, p. 992.]
Notwithstanding the existence or pursuit of any other remedy, the department may maintain an action in the name of the state for injunction or other process or remedy allowable by law against any person, entity, or governmental unit to restrain or prevent the establishment, conduct, management, or operation of a hospital, nursing facility, or intermediate care facility without a license pursuant to sections 39-1301 through 39-1309, Idaho Code.
[39-1308, added 2025, ch. 122, sec. 27, p. 636.]
(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.
[(39-1309) 39-1301C, added 2010, ch. 84, sec. 2, p. 164; am. and redesig. 2025, ch. 122, sec. 28, p. 637.]
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.
[39-1310, added 1947, ch. 133, sec. 12, p. 324; am. 1975, ch. 133, sec. 1, p. 294; am. and redesig. 1980, ch. 159, sec. 13, p. 338; am. 1990, ch. 213, sec. 41, p. 514; am. 2015, ch. 141, sec. 87, p. 442.]
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.
[(39-1312) 1947, ch. 133, sec. 15, p. 324; am. and redesignated 1980, ch. 159, sec. 15, p. 339.]
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.
[(39-1313) 1947, ch. 133, sec. 16, p. 324; am. and redesignated 1980, ch. 159, sec. 16, p. 339.]
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.
[(39-1314) 1947, ch. 133, sec. 18, p. 324; am. and redesignated 1980, ch. 159, sec. 17, p. 339.]
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, providing, and maintaining facilities and services for the necessary care and treatment of persons requiring medical services.
[39-1318, added 1965, ch. 173, sec. 1, p. 340; am. 1976, ch. 132, sec. 1, p. 497; am. 2021, ch. 46, sec. 1, p. 129.]
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.
[39-1319, added 1965, ch. 173, sec. 2, p. 340; am. 1976, ch. 132, sec. 2, p. 497; am. 1990, ch. 354, sec. 1, p. 956; am. 1993, ch. 137, sec. 1, p. 337.]
The organization of a hospital district shall be initiated by a petition filed with the board of county commissioners of the county of 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.
[39-1320, added 1965, ch. 173, sec. 3, p. 340.]
A hospital district as provided in section 39-1320 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 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.
[39-1321, added 1965, ch. 173, sec. 4, p. 340.]
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.
[39-1322, added 1965, ch. 173, sec. 5, p. 340.]
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.
[39-1323, added 1965, ch. 173, sec. 6, p. 340; am. 1995, ch. 118, sec. 48, p. 467.]
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.
[39-1324, added 1965, ch. 173, sec. 7, p. 340; am. 1995, ch. 118, sec. 49, p. 468; am. 2009, ch. 341, sec. 65, p. 1035.]
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 (1/2) 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 (1/2) 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.
[39-1325, added 1965, ch. 173, sec. 8, p. 340.]
(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.
[(39-1325A) 39-1325a, added 1988, ch. 173, sec. 1, p. 303; am. 1993, ch. 137, sec. 2, p. 338; am. 1995, ch. 118, sec. 50, p. 468; am. and redesig. 2004, ch. 263, sec. 1, p. 742; am. 2009, ch. 341, sec. 66, p. 1036.]
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.
[39-1325B, added 2004, ch. 263, sec. 2, p. 743.]
(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.
[39-1325C, added 2004, ch. 263, sec. 2, p. 743.]
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 is a resident of the hospital district and a qualified elector of the state of Idaho. A trustee may not be an employee of, or have an ownership interest or investment in, another ambulatory surgery center, hospital, or health system.
[39-1326, added 1965, ch. 173, sec. 9, p. 340; am. 1973, ch. 99, sec. 1, p. 168; am. 2016, ch. 287, sec. 1, p. 790; am. 2021, ch. 46, sec. 2, p. 130.]
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.
[39-1327, added 1965, ch. 173, sec. 10, p. 340.]
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.
[39-1328, added 1965, ch. 173, sec. 11, p. 340; am. 1977, ch. 101, sec. 1, p. 215; am. 1981, ch. 100, sec. 1, p. 147.]
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 ninety (90) 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.
[39-1329, added 1965, ch. 173, sec. 12, p. 340; am. 2016, ch. 287, sec. 2, p. 791; am. 2021, ch. 46, sec. 3, p. 130.]
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 them; 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 trustees 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 trustee, 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 trustee’s position, it shall not be necessary for the candidate to stand for election, and the board of trustees of the district shall declare such candidate elected as a trustee, 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:
(a) 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;
(b) 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;
(c) 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;
(d) 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;
(e) 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;
(f) 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.
[39-1330, added 1965, ch. 173, sec. 13, p. 340; am. 1995, ch. 118, sec. 51, p. 469; am. 1995, ch. 154, sec. 1, p. 631; am. 2009, ch. 341, sec. 67, p. 1036; am. 2011, ch. 11, sec. 22, p. 35; am. 2021, ch. 46, sec. 4, p. 130.]
For and on behalf of the district the board shall have the following powers:
a. To have and use a corporate seal.
b. To have perpetual existence.
c. To sue and be sued and be a party to suits, actions and proceedings.
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.
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.
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.
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.
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.
i. To hire and retain agents, employees, engineers and attorneys.
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.
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.
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.
[39-1331, added 1965, ch. 173, sec. 14, p. 340; am. 1976, ch. 132, sec. 3, p. 498.]
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.
[39-1332, added 1965, ch. 173, sec. 15, p. 340; am. 2012, ch. 38, sec. 2, p. 115.]
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.
[39-1333, added 1965, ch. 173, sec. 16, p. 340; am. 1985, ch. 243, sec. 1, p. 574; am. 1988, ch. 177, sec. 1, p. 310; am. 1996, ch. 208, sec. 20, p. 676.]
(a) 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.
(b) 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.
[39-1334, added 1965, ch. 173, sec. 17, p. 340; am. 1981, ch. 66, sec. 1, p. 96; am. 1995, ch. 82, sec. 16, p. 227; am. 1995, ch. 118, sec. 52, p. 470; am. 1996, ch. 322, sec. 35, p. 1064.]
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 of this act.
[39-1335, added 1965, ch. 173, sec. 18, p. 340.]
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.
[39-1336, added 1965, ch. 173, sec. 19, p. 340.]
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.
[39-1337, added 1965, ch. 173, sec. 20, p. 340; am. 1971, ch. 13, sec. 3, p. 24.]
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.
[39-1338, added 1965, ch. 173, sec. 21, p. 340; am. 1971, ch. 12, sec. 1, p. 23; am. 1981, ch. 55, sec. 1, p. 85.]
(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.
[39-1339, added 1965, ch. 173, sec. 22, p. 340; am. 1971, ch. 25, sec. 4, p. 61; am. 1976, ch. 132, sec. 4, p. 499; am. 1977, ch. 60, sec. 1, p. 115; am. 1980, ch. 350, sec. 17, p. 903; am. 1983, ch. 133, sec. 1, p. 329; am. 1990, ch. 354, sec. 2, p. 957; am. 1991, ch. 73, sec. 1, p. 176; am. 1995, ch. 118, sec. 53, p. 470; am. 2009, ch. 341, sec. 68, p. 1037; am. 2011, ch. 185, sec. 1, p. 535.]
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.
[39-1340, added 1965, ch. 173, sec. 23, p. 340; am. 1995, ch. 118, sec. 54, p. 472; am. 2009, ch. 341, sec. 69, p. 1038.]
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.
[39-1341, added 1965, ch. 173, sec. 24, p. 340; am. 2009, ch. 341, sec. 70, p. 1038.]
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.
[39-1342, added 1965, ch. 173, sec. 25, p. 340; am. 1971, ch. 25, sec. 5, p. 61; am. 1995, ch. 118, sec. 55, p. 472.]
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.
[39-1343, added 1965, ch. 173, sec. 26, p. 340.]
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.
[39-1344, added 1965, ch. 173, sec. 27, p. 340.]
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.
[39-1345, added 1965, ch. 173, sec. 28, p. 340.]
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.
[39-1346, added 1965, ch. 173, sec. 29, p. 340.]
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.
[39-1346B, added 2015, ch. 206, sec. 1, p. 634.]
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.
[39-1347, added 1965, ch. 173, sec. 30, p. 340.]
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.
[39-1348, added 1965, ch. 173, sec. 31, p. 340; am. 1980, ch. 61, sec. 6, p. 121.]
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.
[39-1349, added 1965, ch. 173, sec. 32, p. 340.]
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.
[39-1350, added 1965, ch. 173, sec. 33, p. 340.]
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.
[39-1351, added 1965, ch. 173, sec. 34, p. 340.]
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.
[39-1352, added 1965, ch. 173, sec. 35, p. 340.]
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.
[39-1353, added 1965, ch. 173, sec. 36, p. 340.]
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.
[I.C., sec. 39-1353a, as added by 1976, ch. 132, sec. 5, p. 500.]
(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.
[39-1354, added 1993, ch. 137, sec. 3, p. 339.]
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.
[39-1355, added 1993, ch. 137, sec. 4, p. 339.]
(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.
[39-1356, added 1993, ch. 137, sec. 5, p. 340.]
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.
[39-1357, added 1993, ch. 137, sec. 6, p. 340.]
A hospital district acting through its board of trustees shall have the right to convey or lease hospital district real property, facilities, and the personal property and equipment therein upon such terms and for such length of time as the board of trustees may decide. However, no such lease or sale, except those leases entered into between a hospital district and the Idaho health facilities authority as provided in section 39-1339, Idaho Code, shall be final or valid unless and until it has been approved by a majority of the qualified electors of the district voting on such question at an election held subject to the provisions of title 34, Idaho Code.
[39-1358, added 2022, ch. 180, sec. 1, p. 584.]
(1) As an alternative to the procedure set forth in section 39-1358, Idaho Code, the board of trustees of a hospital district may convey or lease hospital district real property, facilities, and the personal property and equipment therein subject to the following conditions:
(a) The conveyance or lease shall be to a nonprofit corporation;
(b) No lease term shall exceed ninety-nine (99) years;
(c) The governing body of the nonprofit corporation must be composed initially of the incumbent trustees of the hospital district board of trustees as individuals;
(d) The articles of incorporation must provide for a membership of the corporation that is:
(i) Broadly representative of the public it serves; or
(ii) A single nonprofit corporate member having articles of incorporation that provide for a membership of the corporation that is broadly representative of the public it serves. The articles must further provide for the selection of the governing body by the membership of the corporation or exclusively by a parent corporation that is a corporate member, with voting power, and not by the governing body itself, except to fill a vacancy for an unexpired term. The articles must further provide that no member of the governing body shall serve more than two (2) consecutive three (3) year terms;
(e) The nonprofit corporation must provide care for indigent patients and receive any person falling sick or maimed within the hospital district;
(f) The conveyance or lease agreement must provide for the transfer of patients, staff, and employees and for the continuing administration of any trusts or bequests or maintenance of records pertaining to the existing hospital district; and
(g) The conveyance or lease agreement shall provide for a price that is either of the following:
(i) The acceptance of all assets and assumption of all liabilities; or
(ii) Such other price to which the hospital district board of trustees and the nonprofit corporation agree.
(2) If any hospital that has been conveyed pursuant to this section ceases to be used as a nonprofit hospital, then the hospital so conveyed shall revert to the ownership of the hospital district, unless the premises so conveyed are sold and the proceeds used to erect or enlarge another nonprofit hospital. If any hospital that has been leased pursuant to this section ceases to be used as a nonprofit hospital, then the lease shall terminate.
[39-1359, added 2022, ch. 180, sec. 2, p. 584.]
(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:
(a) Any injury inflicted by means of a firearm; or
(b) 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.
[39-1390, added 1991, ch. 167, sec. 1, p. 407; am. 1995, ch. 169, sec. 1, p. 652; am. 2019, ch. 280, sec. 1, p. 817.]
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.
[39-1391, added 1973, ch. 82, sec. 1, p. 130.]
The furnishing of emergency or first aid services and care as permitted by section 39-1391 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.
[39-1391a, added 1973, ch. 82, sec. 2, p. 130.]
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.
[39-1391b, added 1973, ch. 82, sec. 3, p. 130.]
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.
[39-1391c, added 1973, ch. 82, sec. 4, p. 130.]
To encourage research, discipline and medical study by certain health care organizations for the purposes of reducing morbidity and mortality, enforcing and improving the standards of medical practice in the state of Idaho, certain records of such health care organizations shall be confidential and privileged as set forth in this chapter.
[39-1392, added 1973, ch. 265, sec. 1, p. 545; am. 1997, ch. 171, sec. 1, p. 486.]
The following terms shall have the following meanings when used in this section:
(1) "Emergency medical services personnel" means emergency medical services providers and ambulance-based clinicians licensed pursuant to chapter 9, title 46, Idaho Code.
(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 as defined in section 39-1301, 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 pursuant to chapter 9, title 46, Idaho Code.
(7) "Managed care organization" means a public or private person or organization that 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;
(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.
(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.
[39-1392a, added 1973, ch. 265, sec. 2, p. 545; am. 1984, ch. 113, sec. 1, p. 257; am. 1997, ch. 171, sec. 2, p. 486; am. 2003, ch. 244, sec. 1, p. 629; am. 2004, ch. 134, sec. 1, p. 455; am. 2005, ch. 103, sec. 1, p. 324; am. 2018, ch. 145, sec. 1, p. 300; am. 2025, ch. 82, sec. 101, p. 380; am. 2025, ch. 94, sec. 23, p. 468; am. 2025, ch. 122, sec. 30, p. 637; am. 2026, ch. 251, sec. 13, p. 1063.]
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.
[39-1392b, added 1973, ch. 265, sec. 3, p. 545; am. 1997, ch. 171, sec. 3, p. 487; am. 2003, ch. 244, sec. 2, p. 630; am. 2004, ch. 134, sec. 2, p. 456.]
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.
[39-1392c, added 1973, ch. 265, sec. 4, p. 545; am. 1997, ch. 171, sec. 4, p. 487; am. 2003, ch. 244, sec. 3, p. 631.]
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.
[39-1392d, added 1973, ch. 265, sec. 5, p. 545; am. 1997, ch. 171, sec. 5, p. 488; am. 2003, ch. 244, sec. 4, p. 631.]
(a) 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.
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.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
(f) 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.
[39-1392e, added 1973, ch. 265, sec. 6, p. 545; am. 1997, ch. 171, sec. 6, p. 488; am. 2004, ch. 134, sec. 3, p. 457; am. 2005, ch. 103, sec. 2, p. 326; am. 2018, ch. 145, sec. 2, p. 301.]
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.
[39-1392f, added 1986, ch. 95, sec. 1, p. 273.]
(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:
(a) The applicant or current member of the medical staff holds an ownership interest in one (1) or more competing health care organizations;
(b) The applicant or current member of the medical staff is affiliated with one (1) or more competing health care organizations; or
(c) 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.
[39-1392g, added 2012, ch. 167, sec. 1, p. 447.]
(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 Idaho military division 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 Idaho military division 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:
(a) 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
(b) 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:
(a) Restriction or limitation of privileges;
(b) Revocation of privileges;
(c) Suspension of privileges;
(d) Reduction of privileges;
(e) Denial of a request for initial privileges;
(f) Submission to monitoring of the physician’s physical or mental condition;
(g) 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;
(h) Surrender of privileges;
(i) Summary suspension or reduction of privileges lasting longer than thirty (30) days;
(j) Termination of employment;
(k) Suspension of employment lasting longer than thirty (30) days.
(4) The reporting requirements of this section shall not apply to:
(a) Actions based on compliance with medical records or confidentiality requirements of a health care organization;
(b) 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;
(c) 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;
(d) 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
(e) 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:
(a) A statement of the specific quality of care concerns or professional conduct which resulted in the professional review action sanction;
(b) A statement of the specific professional review action sanction; and
(c) 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 by the Idaho military division must be reported to the Idaho military division.
(9) The report to the Idaho military division 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.
[39-1393, added 2003, ch. 244, sec. 6, p. 632; am. 2004, ch. 134, sec. 4, p. 458; am. 2015, ch. 141, sec. 88, p. 442; am. 2025, ch. 94, sec. 24, p. 470.]
(1) Retention.
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) For purposes of this section, the term "hospital" shall include all facilities defined as hospitals in chapter 13, title 39, Idaho Code.
(2) Authentication.
(a) 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.
(b) 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.
(c) When telephone or oral orders must be used, they must be:
(i) Accepted only by personnel authorized to do so by medical staff policies and procedures, consistent with federal and state law; and
(ii) Authenticated in a timely manner as stipulated by hospital policy.
(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.
(e) 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.
[39-1394, added 1977, ch. 102, sec. 1, p. 217; am. 2001, ch. 67, sec. 1, p. 125; am. 2013, ch. 114, sec. 1, p. 275.]
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 medicine. 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 on 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.
[39-1395, added 1992, ch. 134, sec. 2, p. 423; am. 2004, ch. 133, sec. 1, p. 453; am. 2026, ch. 217, sec. 4, p. 908.]
(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:
(a) Recommended by the medical staff at the hospital or facility;
(b) Approved by the governing board of the hospital or facility; and
(c) 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.
[39-1396, added 2017, ch. 278, sec. 1, p. 728.]
This act may be cited as the "Health Facilities Construction Act."
[39-1401, added 1947, ch. 220, sec. 1, p. 526; am. 1965, ch. 123, sec. 1, p. 240.]
As used in this act:
(a) "Agency" means the department of health and welfare;
(b) "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;
(c) "Surgeon general" means the surgeon general of the United States department of health and human services;
(d) "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;
(e) "Secretary" means the secretary of health and human services of the United States, or his delegate to administer the federal act;
(f) "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.
[39-1402, added 1947, ch. 220, sec. 2, p. 526; am. 1965, ch. 123, sec. 2, p. 240; am. 1972, ch. 327, sec. 1, p. 812; am. 1974, ch. 23, sec. 122, p. 633; am. 2010, ch. 235, sec. 25, p. 563; am. 2015, ch. 244, sec. 22, p. 1020.]
There is hereby established in the state department of health and welfare a division of health facilities survey and construction which shall be administered by a full time salaried director under the supervision and direction of the agency.
[39-1403, added 1947, ch. 220, sec. 3, p. 526; am. 1965, ch. 123, sec. 3, p. 240; am. 1972, ch. 327, sec. 2, p. 812.]
In carrying out the purposes of the act, the agency is authorized and directed:
(a) To require such reports, inspections and investigations and prescribe such regulations as it deems necessary;
(b) To provide such methods of administration, appoint a director and other personnel of the division on a merit basis and take such other action as may be necessary to comply with the requirements of the federal act and the regulations thereunder;
(c) To procure in its discretion the temporary or intermittent services of experts or consultants or organizations thereof, by contract, when such services are to be performed on a part-time or fee-for-service basis and do not involve the performance of administrative duties;
(d) To the extent that it considers desirable to effectuate the purposes of this act, to enter into agreements for the utilization of the facilities and services of other departments, agencies, and institutions, public or private;
(e) To accept on behalf of the state and to deposit with the state treasury any grant, gift or contribution made to assist in meeting the cost of carrying out the purposes of this act as herein provided;
(f) To make a bi-annual report to the legislature on activities and expenditures pursuant to this act, including recommendations for such additional legislation as the agency considers appropriate to furnish adequate health facilities to the people of this state;
(g) To do all other things on behalf of the state necessary to obtain full benefits under the federal act as now and hereafter amended.
[39-1404, added 1947, ch. 220, sec. 4, p. 525; am. 1965, ch. 123, sec. 4, p. 240; am. 1972, ch. 327, sec. 3, p. 812.]
The governor shall appoint such advisory councils to advise and consult with the agency charged with the carrying out of the administration of this act and shall also appoint the chairmen of all such advisory councils.
Members of the councils hereinafter created shall hold office for a term of six (6) years, their terms expiring successively on the second Monday in January in the odd-numbered years, except that any member appointed to fill a vacancy occurring prior to the expiration of the term for which his predecessor was appointed shall be appointed for the remainder of such term, and the terms of office of the members first taking office shall expire, as designated at the time of appointment, at least one-third (1/3) thereof at the end of the second year, at least one-third (1/3) thereof at the end of the fourth year, and at least one-third (1/3) thereof at the end of the sixth year after the date of appointment. Council members while serving on the business of the councils shall be compensated as provided by section 59-509(d), Idaho Code. The councils shall meet as frequently as the chairman deems necessary, but not less than once each year. Upon request by a majority of the members of a specific council, it shall be the duty of the chairman to call a meeting of that council.
The agency shall assist the governor in establishing the necessary guidelines and qualifications of appointees and direct to the attention of the governor the mandatory requirements of any federal statutes, regulations and standards concerning the number, representative capacity, professional background, and such other matters concerning membership and organization of said councils to insure state compliance with federal laws, regulations and standards.
[39-1405, added 1947, ch. 220, sec. 5, p. 526; am. 1965, ch. 123, sec. 5, p. 240; am. 1972, ch. 327, sec. 4, p. 812; am. 1980, ch. 247, sec. 35, p. 607.]
The agency is authorized and directed to make an inventory of existing health facilities, including public, nonprofit and proprietary, to survey the need for construction of health facilities, and, on the basis of such inventory and survey, to develop a program for the construction of such public and other nonprofit facilities as will, in conjunction with existing facilities, afford the necessary physical facilities for furnishing adequate health facilities and similar services to all the people of the state.
[39-1406, added 1947, ch. 220, sec. 6, p. 526; am. 1965, ch. 123, sec. 6, p. 240; am. 1972, ch. 327, sec. 5, p. 812.]
The construction program shall provide, in accordance with regulations prescribed under the federal act, for adequate health facilities for the people residing in this state and insofar as possible shall provide for their distribution throughout the state in such manner as to make all types of health facilities reasonably accessible to all persons in the state.
[39-1407, added 1947, ch. 220, sec. 7, p. 526; am. 1965, ch. 123, sec. 7, p. 240; am. 1972, ch. 327, sec. 6, p. 812.]
The agency is authorized to make application for and receive federal funds to assist in carrying out the activities herein provided. Such funds shall be delivered to the state treasurer and by him deposited in the funds hereinafter created. Such funds are hereby appropriated to the state board of health for expenditure for carrying out the activities authorized by this act. Any such funds received and not expended for such purposes shall be disposed of pursuant to the federal act.
[39-1408, added 1947, ch. 220, sec. 8, p. 526; am. 1965, ch. 123, sec. 8, p. 240; am. 1972, ch. 327, sec. 7, p. 812.]
The agency shall prepare and submit to the surgeon general and/or secretary a state plan which shall include the health facilities construction program developed under this act and which shall provide for the establishment, administration, and operation of health facilities construction activities in accordance with the requirements of the federal act and regulations thereunder. The agency shall, prior to the submission of such plan to the surgeon general and/or secretary, give publicity to a general description of all the provisions proposed to be included therein and cause a public hearing to be held at which all persons or organizations with a legitimate interest in such plan may be given an opportunity to express their views. After approval of the plan by the surgeon general and/or secretary, the agency shall publish a general description of the provisions thereof in such newspapers as will give circulation in each county in the state and shall make the plan, or a copy thereof, available upon request to all interested persons or organizations. The agency as required shall review the health facilities construction program and submit to the surgeon general and/or secretary any modifications thereof which he [it] may find necessary and may submit to the surgeon general and/or secretary such modifications of the state plan, not inconsistent with the requirements of the federal act, as it may deem advisable.
[39-1409, added 1947, ch. 220, sec. 9, p. 526; am. 1965, ch. 123, sec. 9, p. 240; am. 1972, ch. 327, sec. 8, p. 812.]
The agency shall by regulation prescribe minimum standards for the maintenance and operation of health facilities which receive federal aid for construction under the state plan.
[39-1410, added 1947, ch. 220, sec. 10, p. 526; am. 1965, ch. 123, sec. 10, p. 240; am. 1972, ch. 327, sec. 9, p. 812.]
The state plan shall set forth the relative need for the several projects included in the construction program determined in accordance with regulations prescribed pursuant to the federal act and provide for the construction, insofar as financial resources available therefor and for maintenance and operations make possible, in the order of such relative need.
[39-1411, added 1947, ch. 220, sec. 11, p. 526.]
Applications for health facilities construction projects for which federal funds are requested shall be submitted to the agency and may be submitted by the state or any political subdivision thereof or by any public or nonprofit agency authorized to construct and operate health facilities. Each application for a construction project shall conform to federal and state requirements.
[39-1412, added 1947, ch. 220, sec. 12, p. 526; am. 1965, ch. 123, sec. 11, p. 240; am. 1972, ch. 327, sec. 10, p. 812.]
The agency shall afford to every applicant for a construction project an opportunity for a fair hearing. If the agency, after affording reasonable opportunity for development and presentation of applications in the order of relative need, finds that a project application complies with the requirements of section 39-1412[, Idaho Code,] and is otherwise in conformity with the state plan, it shall approve such application and shall recommend and forward it to the surgeon general and/or secretary.
[39-1413, added 1947, ch. 220, sec. 13, p. 526; am. 1972, ch. 327, sec. 11, p. 812.]
From time to time the agency shall cause each construction project approved by the surgeon general and/or secretary to be inspected, and if the inspection so warrants, the agency shall certify to the surgeon general and/or secretary that work has been performed upon the project, or purchases have been made, in accordance with the approved plans and specifications, and that payment of an installment of federal funds is due to the applicant.
[39-1414, added 1947, ch. 220, sec. 14, p. 526; am. 1972, ch. 327, sec. 12, p. 812.]
There is hereby created an account in the trust and agency fund in the state treasury, and all moneys deposited therein are perpetually appropriated for construction projects under this act. All federal funds received from the federal government for a construction project approved by the surgeon general and/or secretary shall be delivered to the state treasurer and by him deposited in the health facilities construction account. Such money shall be used solely for payments due applicants for work performed, or purchases made, in carrying out approved projects.
[39-1415, added 1947, ch. 220, sec. 15, p. 526; am. 1965, ch. 123, sec. 12, p. 240; am. 1972, ch. 327, sec. 13, p. 812; am. 1974, ch. 23, sec. 123, p. 633; am. 1976, ch. 51, sec. 13, p. 178.]
Every county and municipality is authorized to accept, receive, receipt for, disburse, and expend federal and state moneys and all other moneys, public or private, made available by grant, loan, gift or devise for public health purposes, including the construction, alteration, equipping, operation and maintenance of projects authorized by this act and the federal act, subject only to the terms of such grant.
Any two (2) or more municipalities and/or counties may join together for the owning, construction, alteration, repair, equipping, operation and/or maintenance of a health facility, which may be located within or without any such municipality or county, and the funds therefor shall be contributed by each such municipality and/or county as the participating municipalities and counties may mutually agree.
Any municipality or county may enter into a contract or other arrangement with any other municipality or county to obtain health facilities or similar services, and pay for the same out of municipal or county funds.
[39-1416, added 1947, ch. 220, sec. 16, p. 526; am. 1965, ch. 123, sec. 13, p. 240; am. 1972, ch. 327, sec. 14, p. 812.]
If any provision of this act or the application thereof to any person or circumstance shall be held invalid, such invalidity shall not affect the provisions or applications 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.
[39-1417, added 1947, ch. 220, sec. 17, p. 526.]
This act may be referred to and cited as the "Idaho health facilities authority act."
[39-1441, added 1972, ch. 134, sec. 1, p. 286.]
It is hereby determined and declared that for the benefit of the people of the state of Idaho and the improvement of their health, welfare and living conditions, it is essential that the people of this state have adequate medical care and health facilities; that it is essential that health institutions within the state be provided with appropriate additional means to assist in the development and maintenance of public health, health care, hospitals and related facilities; that it is the purpose of this act to provide a measure of assistance and alternative methods to enable health institutions in the state to refund or refinance outstanding indebtedness incurred for health facilities and to provide additional facilities and structures which are sorely needed to accomplish the purposes of this act, all to the public benefit and good as more fully provided herein; and it is the intent of the legislature by the passage of this act to create the Idaho health facilities authority to lend money to health institutions and to authorize the authority to acquire, construct, reconstruct, repair, alter, improve, extend, own, lease and dispose of properties to the end that the authority may be able to promote the health and welfare of the people of this state and to vest such authority with all powers to enable such authority to accomplish such purpose; it is not intended by this act that the authority shall itself be authorized to operate any such health facility. This act shall be liberally construed to accomplish the intentions expressed herein.
[39-1442, added 1972, ch. 134, sec. 2, p. 286; am. 1973, ch. 178, sec. 1, p. 393.]
In this act, unless the context otherwise clearly requires, the terms used herein shall have the meanings ascribed to them as follows:
(a) "Authority" means the Idaho health facilities authority created by this act.
(b) "Bonds," "notes" or "bond anticipation notes" and "other obligations" means any bonds, notes, debentures, interim certificates or other evidences of financial indebtedness, respectively, issued by the authority pursuant to this act.
(c) "Health institution" means any:
(i) private not for profit hospital, corporation or institution, or
(ii) public hospital or institution,
authorized by law to provide or operate health facilities whether directly or indirectly through one (1) or more affiliates in the state of Idaho; and "participating health institution" means a health institution which, pursuant to the provisions of this act, shall undertake the financing and construction or acquisition of health facilities or shall undertake the refunding or refinancing of outstanding obligations as provided in and permitted by this act.
(d) "Health facilities" or "facilities," in the case of a participating health institution, means a structure or building suitable for use as a hospital, clinic, nursing home, or other health care facility, laboratory, laundry, nurses’, doctors’ or interns’ residence, administration building, research facility, maintenance, storage or utility facility, auditorium, dining hall, food service and preparation facility, mental and physical health care facility, dental care facility, nursing school, medical teaching facility, or other structures or facilities related to any of the foregoing or required or useful for the operation of a health facility, including, without limitation, offices, parking lots and garages and other supporting service structures, and all necessary, useful and related equipment, furnishings and appurtenances and including without limitation the acquisition, preparation and development of all lands, real and personal property, necessary or convenient as a site or sites for any of the foregoing; but shall not include such items as food, fuel, supplies or other items which are customarily considered as a current operating charge; facilities shall not include any property used or to be used primarily for sectarian instruction or study or as a place for devotional activities or religious worship.
(e) "Costs" as applied to facilities financed in whole or in part under the provisions of this act means and includes the sum total of all reasonable or necessary costs incidental to the acquisition, construction, reconstruction, repair, alteration, equipment, enlargement, improvement and extension of such facilities and acquisition of all lands, structures, real or personal property, rights, rights-of-way, franchises, easements and interest acquired, necessary, used for or useful for or in connection with a facility and all other undertakings which the authority deems reasonable or necessary for the development of a facility including, but not limited to, the cost of demolishing or removing any building or structures on land so acquired, the cost of acquiring any lands to which such building or structures may be moved, the cost of all machinery and equipment, financing charges, interest prior to and during construction, and if judged advisable by the authority, for a period after completion of such construction, the cost of financing facilities, including interest on bonds and notes issued by the authority to finance facilities; reserves for principal and interest and for extensions, enlargements, additions and improvements; including without limitation the cost of studies and surveys; the costs for land title and mortgage guaranty policies; plans, specifications, architectural and engineering services; legal, organization, marketing or other special services; financing, acquisition, demolition, construction, equipment and site development of new and rehabilitated buildings; rehabilitation, reconstruction, repair or remodeling of existing buildings and all other necessary and incidental expenses to the construction and acquisition of facilities, the financing of such construction, and acquisition and the placing of facilities in operation.
(f) "Revenues" means, with respect to facilities, the rents, fees, charges, interest, principal repayments and other income received or to be received by the authority from any source on account of such facilities.
(g) "Refinancing of outstanding obligations" means liquidation, with the proceeds of bonds or notes issued by the authority, of any indebtedness of a participating health institution incurred to finance or aid in financing a lawful purpose of such health institution not financed pursuant to this act which would constitute a facility had it been undertaken and financed by the authority, or consolidation of such indebtedness with indebtedness of the authority incurred for a facility related to the purpose for which the indebtedness of the health institution was incurred.
[39-1443, added 1972, ch. 134, sec. 3, p. 286; am. 1973, ch. 178, sec. 2, p. 393; am. 1976, ch. 183, sec. 1, p. 657; am. 2004, ch. 382, sec. 1, p. 1143.]
There is hereby created an independent public body politic and corporate to be known as the "Idaho health facilities authority." Said authority is constituted a public instrumentality and the exercise by the authority of the powers conferred by this act shall be deemed and held to be the performance of an essential public function. The authority shall consist of seven (7) members to be appointed by the governor who shall be residents of the state. Not more than four (4) of said seven (7) members of the authority shall be of the same political party. At least one (1) of the members to be appointed by the governor shall be or shall have been a trustee, director, comptroller or other employee of a public or not for profit hospital knowledgeable in hospital and health care construction and financing. At least one (1) such appointed member shall be a person experienced in and having a favorable reputation for skill, knowledge and experience in the field of state and municipal finance. At least one (1) of such appointed members shall be a person experienced in and having a favorable reputation for skill, knowledge and experience in the field of health facility architecture. In making appointments the governor shall take into consideration nominees recommended to him for appointment by professional organizations of hospitals, long term care facilities, investment banking and architects. The members of the authority first appointed by the governor shall serve for terms to be designated by the governor expiring on June 30, as follows: two (2) in 1973 and 1974 and one (1) each in 1975, 1976, and 1977, respectively. Upon the expiration of the term of any appointed member his successor shall be appointed for a term of five (5) years and until his successor has been appointed and has qualified. Any member shall be eligible for reappointment. The governor shall fill any vacancy for the remainder of any unexpired term. Any member of the authority may be removed by the governor for misfeasance, malfeasance or willful neglect of duty or other cause after notice and a public hearing unless such notice or hearing shall be expressly waived in writing.
[39-1444, added 1972, ch. 134, sec. 4, p. 286; am. 1973, ch. 178, sec. 3, p. 393.]
Four (4) members of the authority shall constitute a quorum for the purpose of conducting business and exercising its powers. Action may be taken by the authority upon the affirmative vote of at least four (4) of its members. No vacancy in the membership of the authority shall impair the right of a quorum to exercise all the rights and perform all the duties of the authority. Each meeting of the authority for any purpose whatsoever shall be open to the public. Notice of meetings shall be as provided in the by-laws of the authority. Resolutions need not be published or posted. Members of the authority shall receive no compensation for services but shall be entitled to the necessary expenses including traveling and lodging expenses incurred in the discharge of their duties. Any payments for compensation and expenses shall be paid from funds of the authority.
[39-1445, added 1972, ch. 134, sec. 5, p. 286; am. 1973, ch. 178, sec. 4, p. 393.]
A member of the authority designated by the governor shall call and convene the initial organizational meeting of the authority and shall serve as its chairman pro tem. At such meeting appropriate by-laws shall be presented for adoption. The by-laws may provide for the election or appointment of officers and the delegation of certain powers and duties and such other matters as the authority deems proper. At such meeting and annually thereafter the authority shall elect one (1) of its members as chairman and one (1) as vice chairman. It shall appoint an executive director or secretary and may appoint an associate executive director or associate secretary, who may but are not required to be members of the authority and who shall serve at its pleasure. They shall receive such compensation for special services as shall be fixed by the authority. The executive director or secretary or associate executive director or secretary, or other person designated by the authority, shall keep a record of the proceedings thereof and shall be custodian of all books, documents and papers filed with the authority, the minute books or journal thereof and its official seal. Said executive director or secretary or associate executive director or associate secretary or other person, may cause copies to be made of all minutes and other records and documents of the authority and may give certificates under the official seal of the authority to the effect that such copies are true copies and all persons dealing with the authority may rely on such certificates. The authority may delegate by resolution to one (1) or more of its members or to its executive director or secretary or associate executive director or associate secretary such powers and duties as it may deem proper. The executive director or secretary shall execute a surety bond in the penal sum of one hundred thousand dollars ($100,000) or, in lieu thereof, the chairman of the authority shall execute a blanket bond covering each member, the executive director or secretary and the employees or other officers of the authority, each surety bond to be conditioned upon the faithful performance of the duties of the office or offices covered, to be executed by a surety authorized to transact business in this state as surety. The cost of each such bond shall be paid by the authority. Notwithstanding any other law to the contrary it shall not constitute a conflict of interest for a trustee, director, officer or employee of any health institution, financial institution, investment banking firm, brokerage firm, commercial bank or trust company, architecture firm, insurance company or any other firm, person or corporation to serve as a member of the authority, provided such trustee, director, officer or employee shall abstain from deliberation, action and vote by the authority in each instance where the business affiliation of any such trustee, director, officer or employee is involved.
[39-1446, added 1972, ch. 134, sec. 6, p. 286.]
The authority shall have the following powers together with all powers incidental thereto or necessary for the performance thereof:
(1) to have perpetual succession as a body politic and corporate;
(2) to adopt by-laws for the regulation of its affairs and the conduct of its business;
(3) to sue and be sued and to prosecute and defend, at law or in equity, in any court having jurisdiction of the subject matter and of the parties;
(4) to have and to use a corporate seal and to alter the same at pleasure;
(5) to maintain an office at such place or places as it may designate;
(6) to determine the location and character of any facility to be financed under the provisions of this act to acquire, construct, reconstruct, renovate, improve, replace, maintain, repair, operate, lease as lessee or lessor and regulate the same, to enter into contracts for any and all of such purposes and for the management and operation of a facility to designate a participating health institution as its agent to determine the location and character of a facility undertaken by such participating health institution, under the provisions of this act and, as agent of the authority, to acquire, construct, reconstruct, renovate, replace, improve, maintain, repair, operate, lease as lessee or lessor and regulate the same, and, as agent of the authority, to enter into contracts for any and all of such purposes including contracts for the management and operation of such facility;
(7) to lease to a participating health institution any or all of the facilities upon such terms and conditions as the authority shall deem proper, and to charge and collect rent therefor and to terminate any such lease upon the failure of the lessee to comply with any of the obligations thereof; and to include in any such lease, if desired, provisions that the lessee thereof shall have options to renew the term of the lease for such period or periods and at such rent and upon such terms or conditions as shall be determined by the authority or to purchase any or all of the facilities or that upon payment of all of the indebtedness incurred by the authority for the financing of such facilities the authority may convey any or all of the facilities to the lessee or lessees thereof with or without consideration;
(8) to borrow money and to issue bonds, notes, bond anticipation notes or other obligations for any of its corporate purposes and to refund the same, all as provided for in this act;
(9) generally to fix and revise from time to time and charge and collect rates, rents, fees and charges for the use of and services furnished or to be furnished by facilities or any portion thereof and to contract with any person, association, partnership, firm or corporation or other body public or private in respect thereof;
(10) to establish rules and regulations for the use of facilities and to designate a participating health institution as its agent, to establish rules and regulations for the use of the facilities undertaken or operated by such participating health institution; to employ or contract for consulting engineers, architects, attorneys, accountants, construction and financial experts, superintendents, managers and such other employees and agents as may be necessary in its judgment and to fix their compensation;
(11) to receive and accept from the federal government or the state of Idaho or any other public agency loans or grants for or in aid of the construction of facilities or any portion thereof, or for equipping the same, and to receive and accept grants, gifts or other contributions from any source;
(12) to mortgage all or any portion of the facilities and the site or sites thereof, whether then owned or thereafter acquired, for the benefit of the holders of bonds issued to finance such facilities or any portion thereof;
(13) to make loans to any participating health institution, for the cost of the facilities in accordance with an agreement between the authority and such participating health institution; provided that no such loan shall exceed the total cost of such facilities as determined by such participating health institution, and approved by the authority;
(14) to make mortgage loans or other secured or unsecured loans to a participating health institution, to refund outstanding obligations, mortgages or advances issued, made or given by such institution for the cost of its facilities including the function to issue bonds and make loans to a participating health institution, to refinance outstanding obligations and indebtedness incurred for facilities undertaken and completed prior to or after the enactment of this act and when the authority finds that such financing is in the public interest and either alleviates the financial hardship upon the participating health institution or is in connection with other financing by the authority for such participating health institution or may be expected to result in a lesser cost of patient care and a saving to third parties, including state or federal governments, and to others who must pay for such health care, or any combination thereof;
(15) to do all things necessary and convenient to carry out the purposes of this act;
(16) to charge to and equitably apportion among participating health institutions its administrative costs and expenses incurred in the exercise of the powers and duties conferred by this act;
(17) to make and execute contracts and all other instruments necessary or convenient for the exercise of its powers and functions under this act.
The authority shall not have the power to operate the facilities as a business other than as a lessee or lessor. Any lease of the facilities entered into pursuant to the provisions of this act shall provide for rentals adequate to pay principal and interest on such bonds as the same fall due and to create and maintain such reserves and accounts for depreciation as the authority shall determine to be necessary.
[39-1447, added 1972, ch. 134, sec. 7, p. 286; am. 1973, ch. 178, sec. 5, p. 393; am. 1976, ch. 183, sec. 2, p. 659; am. 1985, ch. 72, sec. 1, p. 143.]
(1) As used in this section:
(a) "Authorized entity" means any of the following entities: the authority, a county that has created a hospital board under chapter 36, title 31, Idaho Code, and that owns and operates a county hospital or health facility, or a hospital district created and existing under section 39-1331, et seq., Idaho Code, that owns and operates a hospital or health facility.
(b) "Public securities" means bonds, notes, debentures, interim certificates, bond anticipation notes, commercial paper, or other evidences of indebtedness, or lease, installment purchase, or other agreements, or certificates of participation therein, issued or entered into by or on behalf of an authorized entity in accordance with applicable law for the purpose of financing health institutions, and including specifically leases between the authority and counties authorized by section 31-836, Idaho Code; and between the authority and hospital districts authorized by section 39-1339, Idaho Code.
(2) An authorized entity that has issued or entered into, or proposes to issue or enter into, public securities may enter into an agreement for an exchange of payments based on interest rates or for a hedge of interest rates as provided in this section if the authorized entity finds that such an agreement would be in the best interest of the authorized entity.
(3) An authorized entity may enter into an agreement to exchange payments based on interest rates or to hedge interest rates only if:
(a) The long-term debt obligations of the person or entity with whom the authorized entity enters into the agreement are rated in either of the two (2) highest rating categories of a nationally recognized rating agency, without regard to any modification of the rating; or
(b) The obligations pursuant to the agreement of the person or entity with whom the authorized entity enters into the agreement are either:
(i) Guaranteed by a person or entity whose long-term debt obligations are rated in either of the two (2) highest rating categories of a nationally recognized rating agency, without regard to any modification of the rating; or
(ii) Collateralized by obligations deposited with the authorized entity or an agent of the authorized entity which would: (A) be legal investment for such authorized entity and is in either of the two (2) highest rating categories of a nationally recognized rating agency, without regard to any modification of the rating; and (B) have a market value at least equal to the amount the person or entity would be required to pay to the authorized entity if the agreement was terminated before its final payment date, excluding any costs, legal fees or consequential damages.
(4) An authorized entity may agree, with respect to public securities that the authorized entity has issued or entered into, or proposes to issue or enter into, bearing interest at a variable rate, to pay sums equal to interest at a fixed rate or rates or at a different variable rate determined pursuant to a formula set forth in the agreement on an amount not to exceed the principal amount of the public securities with respect to which the agreement is made, in exchange for an agreement to pay sums equal to interest on the same principal amount at a variable rate determined pursuant to a formula set forth in the agreement.
(5) An authorized entity may agree, with respect to public securities that the authorized entity has issued or entered into, or proposes to issue or enter into, bearing interest at a fixed rate or rates, to pay sums equal to interest at a variable rate determined pursuant to a formula set forth in the agreement on an amount not to exceed the outstanding principal amount of the public securities with respect to which the agreement is made, in exchange for an agreement to pay sums equal to interest on the same principal amount at a fixed rate or rates set forth in the agreement.
(6) An authorized entity may, with respect to public securities that the authorized entity has issued or entered into, or proposes to issue or enter into, bearing interest at a fixed rate or rates or at a variable rate or rates, or with respect to securities with respect to which it has entered into an interest rate exchange agreement as described in subsection (4) or (5) of this section, enter into an interest rate hedge agreement to hedge future interest rates including, without limitation, an interest rate cap agreement, an interest rate floor agreement or any combination thereof, on a specified principal sum in exchange for a sum of money or an agreement to pay sums equal to interest on the same principal amount at a fixed rate or rates or variable rate or rates set forth in the agreement.
(7) The term of an agreement entered into pursuant to this section must not exceed the term of the public securities with respect to which the agreement was made.
(8) An agreement entered into pursuant to this section is not a debt or indebtedness or liability of the authorized entity for the purposes of any limitation upon the debt or indebtedness or liability of the authorized entity or any requirement for an election with regard to the issuance of debt or indebtedness or liability that is applicable to the authorized entity.
(9) Limitations upon the rate of interest on a public security do not apply to interest paid pursuant to an agreement entered into pursuant to this section.
(10) An authorized entity which has entered into an agreement pursuant to this section with respect to those public securities may treat the amount or rate of interest on the public securities as the amount or rate of interest payable after giving effect to the agreement for the purpose of calculating:
(a) Rates and charges of a revenue-producing enterprise whose revenues are pledged to or used to pay public securities of the authorized entity;
(b) Statutory requirements concerning revenue coverage that are applicable to public securities of the authorized entity;
(c) Tax levies to pay debt service on public securities of the authorized entity; and
(d) Any other amounts which are based upon the rate of interest of public securities of the authorized entity.
(11) Subject to covenants applicable to the public securities, any payments required to be made by the authorized entity under the agreement may be made from money pledged to pay debt service on the public securities with respect to which the agreement was made or from any other legally available source.
[39-1447A, added 2005, ch. 270, sec. 1, p. 832.]
The authority is authorized and empowered directly or by or through a participating health institution, as its agent, to acquire by purchase, lease, gift, devise or otherwise such lands, structures, property, real or personal, rights of way, franchises, easements, and other interests in lands, including lands lying under water and riparian rights which are located within or without the state as it may deem necessary or convenient for the construction or acquisition or operation of facilities but upon such terms as may be considered by the authority to be reasonable, and to take title thereto in the name of the authority or in the name of such participating health institution, as its agent.
[39-1448, added 1972, ch. 134, sec. 8, p. 286.]
The authority is authorized from time to time to issue its negotiable notes for any corporate purpose, including the payment of all or any part of the cost of any facility, and renew from time to time any notes by the issuance of new notes, whether the notes to be renewed have or have not matured. The authority may issue notes partly to renew notes or to discharge other obligations then outstanding and partly for any other purpose. The notes may be authorized, sold, executed and delivered in the same manner as bonds. Any resolution or resolutions authorizing notes of the authority or any issue thereof may contain any provisions which the authority is authorized to include in any resolution or resolutions authorizing bonds of the authority or any issue thereof, and the authority may include in any notes any terms, covenants or conditions which it is authorized to include in any bonds. All such notes shall be payable from the proceeds of bonds or renewal notes or from the revenues of the authority or other moneys available therefor and not otherwise pledged, subject only to any contractual rights of the holders of any of its notes or other obligations then outstanding.
[I.C., sec. 39-1448A, as added by 1973, ch. 178, sec. 6, p. 393.]
(a) The authority is authorized from time to time to issue its bonds in such principal amount as the authority shall determine for the purpose of financing all or a part of the cost of any facilities authorized hereby or for the refinancing of outstanding obligations. In anticipation of the sale of such bonds, the authority may issue bond anticipation notes and may renew the same from time to time. Such notes shall be paid from any revenues of the authority or other moneys available therefor and not otherwise pledged, or from the proceeds of sale of the bonds of the authority in anticipation of which they were issued. The notes shall be issued in the same manner as bonds. Such notes and the resolution or resolutions authorizing the same may contain any provisions, conditions or limitations which a bond resolution of the authority may contain.
(b) The bonds may be issued as serial bonds or as term bonds or a combination of both types. All bonds issued by the authority shall be payable solely out of the revenues and receipts derived from the leasing, mortgaging or sale by the authority of the facilities concerned or of any part thereof as may be designated in the resolutions of the authority under which the bonds shall be authorized to be issued or as may be designated in a trust indenture authorized by the authority, which such trust indenture shall name a bank or trust company within or without the state of Idaho as trustee or from other moneys available therefor and not otherwise pledged. Such bonds may be executed and delivered by the authority at any time and from time to time, may be in such form and denominations and of such terms and maturities, may be in fully registered form or in bearer form registerable either as to principal or interest or both, may bear such conversion privileges and be payable in such instalments and at such time or times not exceeding forty (40) years from the date thereof, may be payable at such place or places whether within or without the state of Idaho, may bear interest at such rate or rates per annum as shall be determined by the authority and without regard to any interest rate limitation appearing in any other law, payable at such time or times and at such place or places and evidenced in such manner, may be executed by such officers of the authority, either manually or by facsimile, and coupon bonds shall have attached thereto interest coupons bearing the facsimile signature of an authorized officer of the authority and may contain such provisions not inconsistent herewith, all as shall be provided in the resolutions of the authority whereunder the bonds shall be authorized to be issued or as shall be provided in a trust indenture authorized by the authority. Notwithstanding any provision of this section to the contrary, in the case of obligations maturing not later than one (1) year from the date of issuance thereof, the authority may authorize the executive director, associate executive director or any officer of the authority to fix principal amounts, maturity dates, interest rates, and purchase prices of any particular issue of such short-term obligations, subject to such limitations as to maximum term, maximum principal amount outstanding, and maximum interest rates as the authority shall prescribe by resolution. Any such authorization shall remain effective for the period of time designated in the resolution, regardless of whether the composition of the authority changes in the interim.
(c) If deemed advisable by the authority there may be retained in the resolutions or the trust indenture under which any bonds of the authority are authorized to be issued an option to redeem all or any part thereof as may be specified in such resolutions or in such trust indenture, at such price or prices and after such notice or notices and on such terms and conditions as may be set forth in such resolutions or in such trust indenture, and as may be briefly recited on the face of the bonds, but nothing herein contained shall be construed to confer on the authority the right or option to redeem any bonds except as may be provided in the resolutions or in such trust indenture under which they shall be issued.
(d) The bonds or notes of the authority may be sold at public or private sale for such price or prices and in such manner and from time to time as may be determined by the authority, and the authority may pay all expenses, premiums and commissions which it may deem necessary or advantageous in connection with the issuance thereof. The power to fix the date of sale of bonds and notes, to receive bids or proposals, to award and sell bonds and notes, and to take all other necessary action to sell and deliver bonds and notes may be delegated to the executive director of the authority by resolution of the authority. Pending preparation of the definitive bonds, the authority may issue interim receipts or certificates which shall be exchanged for such definitive bonds.
(e) Issuance by the authority of one (1) or more series of bonds for one (1) or more purposes shall not preclude it from issuing other bonds in connection with the same facilities or any other facilities or any other purpose hereunder, but the resolutions or trust indenture whereunder any subsequent bonds may be issued shall recognize and protect any prior pledge or mortgage made for any prior issue of bonds. Any bonds of the authority at any time outstanding may at any time and from time to time be refunded by the authority by the issuance of its bonds for such purpose in such amount as the authority may deem necessary and, if deemed advisable by the authority, for the additional purpose of paying all or any part of the cost of constructing and acquiring additions, improvements, extensions or enlargements of a facility or any portion thereof.
Any such refunding may be effected whether the bonds to be refunded shall have then matured or shall thereafter mature, either by sale of the refunding bonds and the application of the proceeds thereof for the payment of the bonds to be refunded thereby, or by the exchange of the refunding bonds for the bonds to be refunded thereby with the consent of the holders of the bonds so to be refunded, and regardless of whether or not the bonds to be refunded were issued in connection with the same facilities or separate facilities or for any other purpose hereunder, and regardless of whether or not the bonds proposed to be refunded shall be payable on the same date or different dates or shall be due serially or otherwise. The proceeds of any such bonds issued for the purpose of refunding outstanding bonds may, in the discretion of the authority, be applied to the purchase or retirement at maturity or redemption of such outstanding bonds either on their earliest or any subsequent redemption date or upon the purchase or at the maturity thereof and may, pending such application, be placed in escrow to be applied to such purchase or retirement at maturity or redemption on such date as may be determined by the authority. Any such escrowed proceeds, pending such use, may be invested and reinvested in obligations determined by the authority. The interest, income and profits, if any, earned or realized on any such investment may also be applied to the payment of the outstanding bonds or notes to be so refunded, to the payment of principal or interest on the refunding bonds or may be used by the authority in any lawful manner. After the terms of the escrow have been fully satisfied and carried out, any balance of such proceeds and interest, income and profits, if any, earned or realized on the investments thereof may be returned to the authority for use by it in any lawful manner. The portion of the proceeds of any such bonds issued for the additional purpose of paying all or any part of the cost of constructing and acquiring additions, improvements, extensions or enlargements of a facility may be invested and reinvested in obligations determined by the authority. The interest, income and profits, if any, earned or realized on such investment may be applied to the payment of all or any part of such cost or may be used by the authority in any lawful manner. All such bonds shall be subject to the provisions of this act in the same manner and to the same extent as other bonds issued pursuant to this act. All bonds and the interest coupons applicable thereto are hereby made and shall be construed to be negotiable instruments within the meaning of and for all the purposes of article 8, uniform commercial code, subject only to the provisions of such bonds, notes or other obligations for registration.
[39-1449, added 1972, ch. 134, sec. 9, p. 286; am. 1973, ch. 178, sec. 7, p. 393; am. 1985, ch. 72, sec. 2, p. 145; am. 2000, ch. 125, sec. 1, p. 296.]
The principal of and interest on any bonds or notes issued by the authority may be secured by a pledge of, or security interest in, the revenues, rentals and receipts out of which the same may be made payable or from other moneys available therefor and not otherwise pledged or used as security and may be secured by a trust indenture or mortgage or deed of trust (including assignment of leases or other contract rights of the authority thereunder) covering all or any part of the facilities from which the revenues, rentals or receipts so pledged or used as security may be derived, including any enlargements of and additions to any such facilities thereafter made. The resolution under which the bonds are authorized to be issued and any such trust indenture, mortgage or deed of trust may contain any agreements and provisions which shall be a part of the contract with the holders of the bonds or notes to be authorized as to:
(a) Pledging or providing a security interest in all or any part of the revenues of a facility or any revenue-producing contract or contracts made by the authority with any individual, partnership, corporation or association or other body, public or private, to secure the payment of the bonds or notes or of any particular issue of bonds, subject to such agreements with noteholders or bondholders as may then exist;
(b) Respecting the maintenance of the properties covered thereby;
(c) The fixing and collection of rents, fees, and other charges to be charged, and the amounts to be raised in each year thereby, and the use and disposition of the revenues;
(d) The setting aside, creation and maintenance of special and reserve funds and sinking funds and the use and disposition of the revenues;
(e) Limitations on the right of the authority or its agent to restrict and regulate the use of facilities;
(f) Limitations on the purpose to which the proceeds of sale of any issue of bonds or notes then or thereafter to be issued may be applied and pledging or providing a security interest in such proceeds to secure the payment of the bonds or notes or any issue of the bonds or notes;
(g) Limitations on the issuance of additional bonds, the terms upon which additional bonds may be issued and secured and the refunding of outstanding bonds;
(h) The procedure, if any, by which the terms of any contract with bondholders or noteholders may be amended or abrogated, the amount of bonds or notes the holders of which must consent thereto, and the manner in which such consent may be given;
(i) Limitations on the amount of moneys derived from a facility to be expended for operating, administrative or other expenses of the authority;
(j) Defining the acts or omissions to act which shall constitute a default in the duties of the authority to holders of its obligations and providing the rights and remedies of such holders in the event of a default;
(k) The mortgaging of a facility and the site thereof for the purpose of securing the bondholders or noteholders; and
(l) Such other additional covenants, agreements, and provisions as are judged advisable or necessary by the authority for the security of the holders of such bonds or notes.
Any pledge made by the authority shall be valid and binding from the time when the pledge is made; the revenues, moneys, or property so pledged and thereafter received by the authority shall immediately be subject to the lien of such pledge without any physical delivery thereof or further act, and the lien of such pledge shall be valid and binding as against all parties having claims of any kind in tort, contract or otherwise against the authority, irrespective of whether such parties have notice thereof. Neither the resolution nor any other instrument by which a pledge is created need be recorded. Each pledge, agreement, lease, indenture, mortgage and deed of trust made for the benefit or security of any of the bonds of the authority shall continue effective until the principal of and interest on the bonds for the benefit of which the same were made shall have been fully paid or provision for such payment duly made. In the event of default in such payment or in any agreements of the authority made as a part of the contract under which the bonds were issued, whether contained in the resolutions authorizing the bonds or in any trust indenture, mortgage or deed of trust executed as security therefor, said payment or agreement may be enforced by suit, mandamus, the appointment of a receiver in equity or by foreclosure of any mortgage and deed of trust, or any one (1) or more of said remedies.
In addition to the foregoing, bonds of the authority may be secured by a pooling of leases whereby the authority may assign its rights, as lessor, and pledge rents under two (2) or more leases of the facilities with two (2) or more participating health institutions, as lessees respectively, upon such terms as may be provided for in the resolutions of the authority or as may be provided for in a trust indenture authorized by the authority.
(m) Notwithstanding any other provision of chapter 9, title 28, Idaho Code, to the contrary, this section expressly governs the creation, perfection, priority and enforcement of a security interest created by the Idaho health facilities authority.
[39-1450, added 1972, ch. 134, sec. 10, p. 286; am. 1973, ch. 178, sec. 8, p. 393; am. 1976, ch. 183, sec. 3, p. 663; am. 2002, ch. 107, sec. 7, p. 304.]
Neither the members of the authority nor any person executing the bonds or notes shall be liable personally on the bonds or notes or be subject to any personal liability or accountability by reason of the issuance thereof.
[I.C., sec. 39-1450A, as added by 1973, ch. 178, sec. 9, p. 393.]
The authority shall have power out of any funds available therefor to purchase its bonds or notes. The authority may hold, pledge, cancel or resell such bonds or notes, subject to and in accordance with agreements with bondholders or noteholders.
[I.C., sec. 39-1450B, as added by 1973, ch. 178, sec. 9, p. 393; am. 1976, ch. 183, sec. 4, p. 664.]
In the discretion of the authority any bonds issued under this act may be secured by a trust agreement by and between the authority and a corporate trustee or trustees, which may be any trust company or bank having the powers of a trust company within or without the state of Idaho. Such trust agreement or the resolution providing for the issuance of such bonds may pledge or assign the revenues to be received or proceeds of any contract or contracts pledged and may convey or mortgage the project or any portion thereof. Such trust agreement or resolution providing for the issuance of such bonds may contain such provisions for protecting and enforcing the rights and remedies of the bondholders as may be reasonable and proper, and not in violation of law, including particularly such provisions as have been specifically authorized to be included in any resolution or resolutions of the authority authorizing bonds thereof. Any bank or trust company incorporated under the laws of this state, which may act as depository of the proceeds of bonds or of revenues or other moneys, may furnish such indemnifying bonds or pledge such securities as may be required by the authority. Any such trust agreement may set forth the rights and remedies of the bondholders and of the trustee or trustees, and may restrict the individual right of action by bondholders. In addition, any such trust agreement or resolution may contain such other provisions as the authority may deem reasonable and proper for the security of the bondholders. All expenses incurred in carrying out such trust agreement or resolution may be treated as a part of the cost of the operation of a facility.
[I.C., sec. 39-1450D, as added by 1973, ch. 178, sec. 9, p. 393; am. 1976, ch. 183, sec. 5, p. 664; am. 2000, ch. 125, sec. 2, p. 298.]
Bonds and notes issued by the authority shall not constitute or become an indebtedness, or a debt or liability of the state, the legislature thereof, or of any county, city, town, township, board of education or school district, or other subdivision of the state, or of any other political subdivision or body corporate and politic of or municipality within the state and neither the state, the legislature thereof, nor any county, city, town, township, board of education or school district or other subdivision of the state shall be liable thereon nor shall such bonds or notes constitute the giving, pledging or loaning of the faith and credit of the state, the legislature thereof, or of any county, city, town, township, board of education or school district, or other subdivision of the state, or of any other political subdivision or body corporate and politic of or municipality within the state, but shall be payable solely from the funds herein provided therefor. The issuance of bonds or notes under the provisions of this act shall not, directly or indirectly or contingently, obligate the state or any political subdivision thereof nor empower the authority, to levy or collect any form of taxes or assessments therefor or to create any indebtedness payable out of taxes or assessments or make any appropriation for their payment and such appropriation or levy is prohibited. Nothing in this section contained shall prevent or be construed to prevent the authority from pledging its full faith and credit or the full faith and credit of a participating health institution to the payment of bonds or notes authorized pursuant to this act. Nothing in this act shall be construed to authorize the authority to create a debt of the state within the meaning of the constitution or statutes of Idaho or authorize the authority to levy or collect taxes or assessments and all bonds issued by the authority pursuant to the provisions of this act are payable and shall state that they are payable solely from the funds pledged for their payment in accordance with the resolution authorizing their issuance or in any trust indenture or mortgage or deed of trust executed as security therefor and are not a debt or liability of the state of Idaho. The state shall not in any event be liable for the payment of the principal of or interest on any bonds of the authority or for the performance of any pledge, mortgage, obligation or agreement of any kind whatsoever which may be undertaken by the authority. No breach of any such pledge, mortgage, obligation or agreement shall impose any pecuniary liability upon the state or any charge upon its general credit or against its taxing power.
All expenses incurred in carrying out this act shall be payable solely from funds provided under the authority of this act and no liability or obligation shall be incurred by the authority beyond the extent to which moneys shall have been provided under this act.
[39-1451, added 1972, ch. 134, sec. 11, p. 286; am. 1973, ch. 178, sec. 10, p. 393; am. 1976, ch. 183, sec. 6, p. 665.]
The authority is hereby declared to be performing a public function for the benefit of the people of the state for the improvement of their health and living conditions and to be a public instrumentality of the state. Accordingly, the income or other revenues of the authority, and all properties at any time owned by the authority, and any bonds, notes, or other obligations issued under this act, their transfer and income therefrom, including any profit made on the sale thereof, shall be exempt at all times from all taxation in the state of Idaho. Also, bonds issued by the authority shall be exempt from the uniform securities act, chapter 14, title 30, Idaho Code, or any amendments thereto.
[39-1452, added 1972, ch. 134, sec. 12, p. 286; am. 1973, ch. 178, sec. 11, p. 393; am. 2004, ch. 45, sec. 5, p. 227.]
The authority is authorized to fix, revise, charge and collect rates, rents, fees and charges for the use of and for the services furnished or to be furnished by each facility and to contract with any person, partnership, association or corporation, or other body, public or private, in respect thereof. Such rates, rents, fees and charges shall be fixed and adjusted in respect of the aggregate of rates, rents, fees and charges from such facility so as to provide funds sufficient with other revenues or moneys available therefor, if any, to pay the cost of maintaining, repairing and operating the facility and each and every portion thereof, to the extent that the payment of such cost has not otherwise been adequately provided for, to pay the principal of and the interest on outstanding bonds or notes of the authority issued in respect of such facility as the same shall become due and payable, and to create and maintain reserves required or provided for in any resolution authorizing, or trust agreement securing, such bonds or notes of the authority. Such rates, rents, fees and charges shall not be subject to supervision or regulation by any department, commission, board, body, bureau or agency of this state other than the authority. A sufficient amount of the revenues derived in respect of a facility, except such part of such revenues as may be necessary to pay the cost of maintenance, repair and operation and to provide reserves and for renewals, replacements, extensions, enlargements and improvements as may be provided for in the resolution authorizing the issuance of any bonds or notes of the authority or in the trust agreement securing the same, shall be set aside at such regular intervals as may be provided in such resolution or trust agreement in a sinking or other similar fund which is hereby pledged to, and charged with, the payment of the principal of and the interest on such bonds or notes as the same shall become due, and the redemption price or the purchase price of bonds retired by call or purchase as therein provided. Such pledge shall be valid and binding from the time when the pledge is made; the rates, rents, fees and charges and other revenues or other moneys so pledged and thereafter received by the authority shall immediately be subject to the lien of such pledge without any physical delivery thereof or further act, and the lien of any such pledge shall be valid and binding as against all parties having claims of any kind in tort, contract or otherwise against the authority, irrespective of whether such parties have notice thereof. Neither the resolution nor any trust agreement nor any other agreement nor any lease by which a pledge is created need be filed or recorded except in the records of the authority. The use and disposition of moneys to the credit of such sinking or other similar fund shall be subject to the resolution authorizing the issuance of such bonds or notes or of such trust agreement. Except as may otherwise be provided in such resolution or such trust agreement, such sinking or other similar fund may be a fund for all such bonds or notes issued to finance facilities at a particular health institution without distinction or priority of one over another, provided the authority in any such resolution or trust agreement may provide that such sinking or other similar fund shall be the fund for a particular facility at a health institution and for the bonds issued to finance a particular facility and may, additionally, permit and provide for the issuance of bonds having a subordinate lien in respect of the security herein authorized to other bonds of the authority, and, in such case, the authority may create separate sinking or other similar funds in respect of such subordinate lien bonds.
[39-1453, added 1973, ch. 178, sec. 13, p. 393.]
All expenses of the authority incurred in carrying out the provisions of this act shall be payable solely from funds provided under the authority of this act and no liability shall be incurred by the authority beyond the extent to which moneys shall have been provided under this act, except that for the purposes of meeting the necessary expenses of initial organization and operation until such date as the authority derives moneys from funds provided hereunder, the authority shall be empowered to borrow moneys as may be required for such necessary expenses of organization and operation. Such borrowed moneys shall be repaid within a reasonable time after the authority receives funds provided for under this act. When any application is made to the authority by any participating health institution for financial assistance to provide for its facilities, such application shall be accompanied by an "initial planning service fee" in an amount determined by the authority. Such initial planning service fees shall be included in the cost of the facilities to be financed and shall not be refundable by the authority whether or not any such application is approved. In addition to such initial fee, an "annual planning service fee" shall be paid to the authority by each participating health institution in an amount determined by the authority. Such annual planning service fee shall be paid on said dates or in installments as may be satisfactory to the authority. It is anticipated such fees shall be used for; (i) necessary expenses to determine the need of facilities in the area concerned and to that end the authority may utilize recognized voluntary and official health planning organizations and agencies at local, regional and state levels as well as the state statutory bodies having health planning responsibilities; (ii) necessary administrative expenses; and (iii) reserves for anticipated future expenses. In addition the authority may, for a negotiated fee, retain the services of any other public or private person, firm, partnership, association or corporation for the furnishing of services and data for use by the authority in determining the need and location of any such facilities for which application is being made or for such other services or surveys as the authority deems necessary to carry out the purposes of this act.
[39-1453A, added 1976, ch. 183, sec. 7, p. 666.]
When the principal of (an) and interest on bonds issued by the authority to finance the cost of facilities or to refinance outstanding indebtedness of one or more participating health institutions, including any refunding bonds issued to refund and refinance such bonds, have been fully paid and retired or when adequate provision has been made to fully pay and retire the same, and all other conditions of the resolution, the lease, the trust indenture and the mortgage or deed of trust or any other form of security arrangement, if any, authorizing and securing the same have been satisfied and the lien of such mortgage or deed of trust or any other form of security arrangement has been released in accordance with the provisions thereof, the authority shall promptly do all things and execute such deeds and conveyances and other documents as are necessary and required to convey its right, title and interest in such facilities so financed, and any other facilities mortgaged or subject to deed of trust or any other form of security arrangement to secure the bonds, to such participating health institution or institutions.
[39-1454, added 1972, ch. 134, sec. 14, p. 286; am. 1976, ch. 183, sec. 8, p. 667.]
Neither this act nor anything herein contained shall be construed as a restriction or limitation upon any powers which the authority might otherwise have under any laws of this state, but shall be construed as cumulative of any such powers. No proceedings, referendum, notice or approval shall be required for the creation of the authority or the issuance of any bonds or any instrument as security therefor, except as herein provided, any other law to the contrary notwithstanding; provided, that nothing herein shall be construed to deprive the state and its governmental subdivisions of their respective police powers over properties of the authority, or to impair any power thereover of any official or agency of the state and its governmental subdivisions which may be otherwise provided by law.
[39-1455, added 1972, ch. 134, sec. 15, p. 286.]
All facilities shall be subject to the planning, zoning, sanitary and building laws, ordinances and regulations applicable to the locality in which any such facilities are to be situated.
[39-1456, added 1972, ch. 134, sec. 16, p. 286.]
The authority may invest the proceeds from the sale of a series of obligations or any funds related to the series in such securities and other investments, whether or not any such investment or reinvestment is authorized under any other law of the state, as may be provided in the proceedings under which the series of obligations are authorized to be issued. The authority may invest any other funds in obligations of the federal government, the state or of any municipality thereof or obligations of agencies of the federal government; in bonds, notes, certificates of indebtedness, treasury bills or other securities constituting direct obligations of the United States of America; in certificates of deposit or time deposits constituting direct obligations of any bank in Idaho; provided, however, that investments may be made only in those certificates of deposit or time deposits in banks which are insured by the federal deposit insurance corporation, if then in existence, and may exceed the maximum of such insurance; or in short term discount obligations of the federal national mortgage association. Any such securities may be purchased at the offering or market price thereof at the time of such purchase. The authority may invest any other funds with such maturities as the authority shall determine provided that such maturities are on a date or dates prior to the time when, in the judgment of the authority, the funds so invested will be required for expenditure. The express judgment of the authority as to the time when any such funds will be required for expenditure or be redeemable is final and conclusive.
[39-1457, added 1972, ch. 134, sec. 17, p. 286; am. 1973, ch. 178, sec. 14, p. 393; am. 1976, ch. 183, sec. 9, p. 668; am. 1985, ch. 72, sec. 4, p. 148.]
All moneys received pursuant to the authority of this act whether as proceeds from the sale of bonds, notes or other obligations or as revenues or receipts shall be deemed to be trust funds to be held and applied solely as provided in this act. Any officer with whom, or any bank or trust company with which, such moneys shall be deposited shall act as trustee of such moneys and shall hold and apply the same for the purposes of this act, subject to such regulations as this act and the resolution authorizing the bonds, notes or other obligations of any issue or the trust agreement securing such obligations shall provide.
[39-1457A, added 1976, ch. 183, sec. 10, p. 668.]
The state does hereby pledge to and agree with the holders of any bonds, notes and other obligations issued under this act, and with those parties who may enter into contracts with the authority pursuant to the provisions of this act, that the state will not limit, alter, restrict or impair the rights hereby vested in the authority to acquire, construct, reconstruct, maintain and operate any facility as defined in this act or to establish, revise, charge and collect rates, rents, fees and other charges as may be convenient or necessary to produce sufficient revenues to meet the expenses of maintenance and operation thereof and to fulfill the terms of any agreements made with the holders of bonds, notes or other obligations authorized and issued by this act, and with the parties who may enter into contracts with the authority pursuant to this act, or in any way impair the rights or remedies of the holders of such bonds, notes or other obligations of such parties until the bonds, notes and such other obligations, together with interest thereon, with interest on any unpaid installment of interest and all costs and expenses in connection with any action or proceeding by or on behalf of such holders, are fully met and discharged and such contracts are fully performed on the part of the authority. Nothing in this act precludes such limitation or alteration if and when adequate provision is made by law for the protection of the holders of such bonds, notes or other obligations of the authority or those entering into such contracts with the authority. The authority is authorized to include this pledge and undertaking for the state in such bonds, notes or other obligations and in such contracts.
[(39-1457B) 39-1459B, as added by 1976, ch. 183, sec. 11, p. 669; am. and redesig. 2005, ch. 25, sec. 59, p. 104.]
The state and all counties, cities, villages, incorporated towns and other municipal corporations, political subdivisions and public bodies, and public officers of any thereof, all banks, bankers, trust companies, savings banks and institutions, building and loan associations, savings and loan associations, investment companies, insurance companies and associations, and all executors, administrators, guardians, trustees and other fiduciaries may legally invest any sinking funds, moneys or other funds belonging to them or within their control in any bonds issued pursuant to this act.
[39-1458, added 1972, ch. 134, sec. 18, p. 286.]
The facilities are not subject to any requirements relating to public buildings, structures, grounds, works or improvements imposed by the laws of this state or any other similar requirements which may be lawfully waived by this section and any requirement of competitive bidding or other restriction imposed on the procedure for award of contracts for such purpose or the lease, sale or other disposition of property of the authority is not applicable to any action taken under authority of this act.
[39-1459, added 1972, ch. 134, sec. 19, p. 286.]
The powers conferred by this act shall be in addition and supplementary to, and the limitations by this act shall not affect the powers conferred by any other law except as herein provided. Facilities may be acquired, purchased, constructed, reconstructed, improved, bettered and extended and bonds may be issued under this act for said purposes notwithstanding that any other law may provide for the acquisition, purchase, construction, reconstruction, improvement, betterment and extensions of like facilities, or the issuance of bonds for like purposes, and without regard to the requirements, restrictions, limitations or other provisions contained in any other law. If any one or more sections or provisions of this act, or the application thereof to any person or circumstance, shall ever be held by any court of competent jurisdiction to be invalid, the remaining provisions of this act and the application thereof to persons or circumstances other than those to which it is held to be invalid, shall not be affected thereby, it being the intention of this general assembly to enact the remaining provisions of this act notwithstanding such invalidity.
[39-1460, added 1972, ch. 134, sec. 20, p. 286.]
The legislative intent of this chapter is to protect the public health by establishing standards and provisions for the regulation of food establishments; by delegating authority to the board of health and welfare to adopt rules covering the health and sanitation aspects of food establishments, to collect a fee to cover a portion of the cost of the food safety inspection program and by delegating the authority to the director of the department of health and welfare to enforce the provisions of this chapter. This chapter is enacted to ensure that consumers are not exposed to adverse health conditions arising out of the operation of food establishments.
[39-1601, added 1991, ch. 142, sec. 2, p. 334; am. 1997, ch. 194, sec. 1, p. 548; repealed/new section added 1997, ch. 194, secs. 9 & 10, p. 551 (2007, ch. 96, repealed ch. 194, secs. 9 & 10)]
As used in this chapter:
(1) "Commissary" means a place where food, containers, or supplies are stored, prepared, or packaged for transit, sale, or service at other locations.
(2) "Food establishment" means those operations in the food business, such as but not limited to food processing establishments, canning factories, salvage processing facilities, food service establishments, cold storage plants, commissaries, warehouses, food vending machine operations and location, caterers, mobile food units, and retail food stores. Such operations include all activities under the control of the license holder, including preparation, processing, storage, service, transportation vehicles, satellite locations, divisions and departments, and remote feeding sites. The term includes operations that are conducted in permanent, temporary, or mobile facilities or locations. It includes any food operation regardless of whether consumption is on or off the premises and regardless of whether there is a charge for the food. Individual divisions and departments on one (1) premises and under common ownership shall, as a whole, be considered a single food establishment. The term "food establishment" does not include:
(a) Private homes where food is prepared or served for individual family consumption;
(b) Fraternal, benevolent, or nonprofit charitable organizations that do not prepare or serve food on a regular basis. Food shall not be considered to be served on a regular basis if the food is served for a period not to exceed five (5) consecutive days on no more than three (3) occasions per year for foods that are not potentially hazardous, or if the food is served no more than one (1) meal a week for all other foods;
(c) Bed and breakfast establishments with ten (10) or fewer beds;
(d) Establishments that offer only factory-sealed foods that are not potentially hazardous;
(e) Any nonretail activity subject to regulation pursuant to the United States food and drug administration food safety modernization act, provided that such nonretail activity is subject to registration pursuant to section 415 of the federal food, drug and cosmetic act. Such activities shall be subject to regulation by the Idaho state department of agriculture pursuant to the provisions of section 22-113, Idaho Code, in the event the state enacts legislation providing that it should seek federal authorization of such regulation;
(f) Agricultural markets;
(g) Agricultural equipment used for the extraction or harvest of an agricultural product, including but not limited to mint stills; and
(h) Those operating pursuant to chapter 2, title 37, Idaho Code.
(3) "Intermittent food establishment" means a food vendor that operates for a period of time, not to exceed six (6) consecutive days per week, at a single, specified location in conjunction with a recurring event. Examples of a recurring event may be a farmers or community market or a holiday market. Intermittent food establishment does not include the vendor of farm-fresh ungraded eggs at a recurring event.
(4) "Mobile food establishment" means a food establishment selling or serving food for human consumption from any vehicle or other temporary or itinerant station and includes any movable food service establishment, truck, van, trailer, pushcart, bicycle, watercraft, or other movable food service with or without wheels, including hand-carried, portable containers in or on which food or beverage is transported, stored, or prepared for retail sale or given away at temporary locations.
(5) "Potentially hazardous food" means any food or ingredient, natural or synthetic, in a form capable of supporting the rapid and progressive growth of infectious or toxigenic microorganisms or the slower growth of clostridium botulinum. Included is any food of animal origin, either raw or heat-treated, and any food of plant origin that has been heat-treated or that is raw seed sprouts, cut melons, and garlic and oil mixtures. The term "potentially hazardous food" does not include:
(a) Air-dried hard-boiled eggs with shells intact;
(b) Foods with a water activity (aw) value of eighty-five hundredths (0.85) or less;
(c) Foods with a pH (hydrogen ion concentration) level of four and six-tenths (4.6) or below when measured at seventy-five (75) degrees Fahrenheit;
(d) Foods in unopened hermetically sealed containers that have been commercially processed to achieve and maintain commercial sterility under conditions of nonrefrigerated storage and distribution;
(e) Foods for which laboratory evidence, acceptable to the regulatory authority, demonstrates that rapid and progressive growth of infectious and toxigenic microorganisms or the slower growth of clostridium botulinum cannot occur;
(f) Milk, half-and-half cream, butter products, frozen dairy desserts, and other fluid milk products, in the original unopened container; and
(g) Any other food items determined by the department of health and welfare not to be potentially hazardous.
(6) "Regulatory authority" means the director of the Idaho department of health and welfare or the director’s designee.
(7) "Temporary food establishment" means a food establishment that operates for a period of not more than fourteen (14) consecutive days in conjunction with a single event or celebration.
[39-1602, added 1991, ch. 142, sec. 2, p. 334; am. 1993, ch. 114, sec. 1, p. 291; am. 1994, ch. 138, sec. 1, p. 311; am. 1997, ch. 194, sec. 2, p. 548; am. 2004, ch. 185, sec. 1, p. 576; am. 2009, ch. 190, sec. 1, p. 619; am. 2016, ch. 172, sec. 2, p. 474; am. 2026, ch. 91, sec. 9, p. 512.]
The board of health and welfare shall promulgate rules governing:
(1) The establishment and control of sanitation standards for food establishments;
(2) The issuance, suspension and revocation of licenses;
(3) The review of plans and specifications prior to construction or alteration of food establishments;
(4) The procedure and scope of inspections to determine compliance with the standards and rules adopted under this chapter;
(5) The criteria for the examination, embargo and destruction of food in compliance with section 37-118, Idaho Code; and
(6) The establishment of a grading system for food establishments to be used at local option.
[39-1603, added 1991, ch. 142, sec. 2, p. 335; am. 1997, ch. 194, sec. 3, p. 549.]
No person, firm or corporation shall operate a food establishment, for which no other state or federal food safety inspection or license is required, without a license approved by the director of the department of health and welfare or his designee. Food establishment licenses shall not be transferable and the type of license and any restrictions will be specified on the license.
Terms and conditions of licensure are to be established by rules in accordance with the intent of this chapter. Any applicant or license holder aggrieved by an action of the regulatory authority which results in denial, suspension, or revocation of a license has the right to a hearing conducted pursuant to chapter 52, title 67, Idaho Code, and appeal shall be provided therein.
[39-1604, added 1991, ch. 142, sec. 2, p. 335; am. 1997, ch. 194, sec. 4, p. 549.]
(1) The regulatory authority shall conduct unannounced inspections of every food establishment not subject to other state or federal food safety inspections to determine compliance or lack of compliance with the provisions of this chapter and the rules established by the board of health and welfare as often as deemed necessary by the authority.
(2) The application for, or the possession of a license is a consent to inspection. The regulatory authority representative upon presentation of proper credentials is to be permitted access to the premises of any food establishment during hours of operation in order to determine compliance with the rules adopted under this chapter. Failure to grant access shall be cause for nonissuance of a license or license revocation.
(3) The regulatory authority representative is to determine the degree of compliance by examining the food, including sampling as necessary, and by inspection in accordance with the rules adopted under this chapter.
(4) For inspection and enforcement purposes, an applicant for, or holder of, a license may specify that the license reflect separate departments or divisions within a single food establishment. In such cases, an enforcement action, when necessary, shall be taken against an individual department or division within a single food establishment in lieu of an enforcement action against the food establishment as a whole, except when the department or division fails to comply with the rules established by the board of health and welfare.
(5) An inspection report, the form and manner to be determined by the board, will be generated by each inspection and be given to the person in charge of the food establishment.
[39-1605, added 1991, ch. 142, sec. 2, p. 335; am. 1997, ch. 194, sec. 5, p. 550.]
The regulatory authority may seek to enforce the provisions of this chapter and any rule or standard adopted by the board pursuant to this chapter through a court of competent jurisdiction.
(1) Misdemeanor proceedings may be brought in accordance with sections 56-1008, 56-1010, 37-117 and 37-119, Idaho Code.
(2) Civil proceedings may be brought in accordance with sections 56-1009 and 56-1010, Idaho Code.
(3) Injunctive relief may be sought in accordance with sections 56-1009, 56-1010 and 37-116, Idaho Code.
[39-1606, added 1991, ch. 142, sec. 2, p. 336; am. 1997, ch. 194, sec. 6, p. 550; am. 2003, ch. 161, sec. 1, p. 455.]
(1) A fee may be charged by the department of health and welfare’s regulatory authority for licensing a food establishment. The fee per food establishment per year for licenses shall be:
(a) Thirty-five dollars ($35.00) for a temporary food establishment operating for one (1) day, forty-five dollars ($45.00) for a temporary food establishment operating for two (2) or three (3) days, and seventy-two dollars ($72.00) for a temporary food establishment operating for four (4) or more days or at multiple events;
(b) Sixty-five dollars ($65.00) for intermittent food establishments and mobile food establishments without a commissary;
(c) Eighty-five dollars ($85.00) for mobile food establishments with a commissary;
(d) One hundred twenty-five dollars ($125) for all other food establishments, except for food establishments with more than two (2) licenses on one (1) premises under common ownership; and
(e) One hundred fifty dollars ($150) for food establishments with more than two (2) licenses on one (1) premises under common ownership.
(2) Effective January 1, 2020, the fee per food establishment per year for licenses shall be:
(a) Thirty-five dollars ($35.00) for a temporary food establishment operating for one (1) day, forty-five dollars ($45.00) for a temporary food establishment operating for two (2) or three (3) days, and seventy-two dollars ($72.00) for a temporary food establishment operating for four (4) or more days or at multiple events;
(b) Seventy-two dollars ($72.00) for intermittent food establishments;
(c) Seventy-two dollars ($72.00) for mobile food establishments without a commissary;
(d) Ninety-two dollars ($92.00) for mobile food establishments with a commissary;
(e) One hundred sixty dollars ($160) for all other food establishments, except for food establishments with more than two (2) licenses on one (1) premises under common ownership; and
(f) Two hundred dollars ($200) for food establishments with more than two (2) licenses on one (1) premises under common ownership.
(3) Effective January 1, 2022, the fee per food establishment per year for licenses shall be:
(a) Thirty-five dollars ($35.00) for a temporary food establishment operating for one (1) day, forty-five dollars ($45.00) for a temporary food establishment operating for two (2) or three (3) days, and eighty dollars ($80.00) for a temporary food establishment operating for four (4) or more days or at multiple events;
(b) Eighty dollars ($80.00) for intermittent food establishments;
(c) Eighty dollars ($80.00) for mobile food establishments without a commissary;
(d) One hundred dollars ($100) for mobile food establishments with a commissary;
(e) Two hundred dollars ($200) for all other food establishments, except for food establishments with more than two (2) licenses on one (1) premises under common ownership; and
(f) Two hundred fifty dollars ($250) for food establishments with more than two (2) licenses on one (1) premises under common ownership.
(4) Effective July 1, 2019, in addition to other fees assessed by this section, the designated regulatory authority may assess:
(a) A plan review and preoperational inspection fee of one hundred dollars ($100);
(b) A late fee for any fees paid past the applicable deadline;
(c) A license reinstatement fee of eighteen dollars ($18.00);
(d) A request for variance fee of fifty dollars ($50.00) per hour;
(e) A compliance conference fee of one hundred dollars ($100) per hour;
(f) Enforcement and legal fees of one hundred fifty dollars ($150) per hour; and
(g) Fees covering operational costs for inspections conducted pursuant to federal law or regulation.
(5) Fees collected for licensing a food establishment shall be used by the designated regulatory authority for funding a portion of the food safety inspection program. The designated regulatory authority may not impose fees on food establishments in addition to those provided by this section or specifically authorized by other applicable law.
(6) The regulatory authority shall review at three (3) year intervals the cost data associated with the operation of the food safety inspection program as well as actions taken to increase the efficiency of such program and provide a report on such review to the health and welfare committees of the Idaho legislature.
[39-1607, added 1997, ch. 194, sec. 7, p. 551; am. 2002, ch. 140, sec. 3, p. 392; am. 2007, ch. 96, sec. 1, p. 279; am. 2009, ch. 190, sec. 2, p. 620; am. 2019, ch. 95, sec. 1, p. 342.]
As used in this chapter:
(1) "Guest" means any person who is registered in a hotel, or who is in the hotel and intends to register, and each person in such hotel who is present in the hotel with the registrant at the registrant’s invitation.
(2) "Hotel" means every building or structure kept, used, maintained or advertised as an inn, hotel or public lodging house, or place where sleeping accommodations are furnished for hire to transient guests, whether with or without meals, in which more than ten (10) rooms are used for the accommodation of such guests.
(3) "Hotel day" means a period which commences at three o’clock in the afternoon of each day and which concludes at three o’clock the following afternoon or at the posted checkout time of the following day in the event the guest is checking out, whichever occurs first. Rates per day for furnished rooms shall mean for such period, or any part thereof, following the time of acceptance of a room by the guest.
(4) "Hotelkeeper" means the owner, operator, management company, proprietor, keeper, manager or lessee of a hotel.
[39-1801, added 1991, ch. 296, sec. 2, p. 780.]
(1) In each hotel there shall be posted in a plainly legible fashion, in a conspicuous place in each sleeping room, the following information:
(a) The maximum rates at which such room is rented;
(b) A copy of section 18-2405, Idaho Code; and
(c) A copy of section 39-1804, Idaho Code.
(2) In each hotel there shall be posted a copy of this chapter in a plainly legible fashion, in at least two (2) conspicuous places.
[39-1802, added 1991, ch. 296, sec. 2, p. 780.]
Every hotel shall keep a record of the arrival and departure of its guests in such a manner that the record will be permanent for at least one (1) year from the date of departure.
[39-1803, added 1991, ch. 296, sec. 2, p. 780.]
(1) The hotelkeeper is under no obligation to accept for safekeeping any moneys, securities, jewelry, or precious stones of any kind belonging to any guest, and, if such are accepted for safekeeping, he shall not be liable for the loss thereof unless such loss is the proximate result of fault or negligence of the hotelkeeper. The liability, if any, of the hotelkeeper to a guest shall be limited to one thousand dollars ($1,000) for such loss, or such higher amount as the hotelkeeper may agree in writing to assume, if the hotel has given a receipt for the property to the guest, stating the value of the property accepted for safekeeping, on a form which states, in type large enough to be clearly noticeable, that the hotel is not liable for any loss exceeding one thousand dollars ($1,000), or such higher amount as the hotelkeeper may agree in writing to assume, and is only liable for that amount if the loss is the proximate result of fault or negligence of the hotelkeeper.
(2) The hotelkeeper shall not be liable or responsible to any guest for the loss of wearing apparel, goods, or other property, except as provided in subsection (1) of this section, unless such loss occurred as the proximate result of fault or negligence of such hotelkeeper. In case of such fault or negligence, the hotelkeeper shall not be liable for a sum greater than five hundred dollars ($500) unless prior to the loss or damage the guest files with the hotelkeeper an inventory of his effects and the value thereof and the hotelkeeper is given the opportunity to inspect such effects and check them against such inventory. The hotelkeeper shall not be liable or responsible to any guest for the loss of effects listed in such inventory in a total amount exceeding one thousand dollars ($1,000) or such higher amount as the hotelkeeper may agree in writing to assume.
[39-1804, added 1991, ch. 296, sec. 2, p. 780.]
(1) A hotelkeeper shall have the right to evict a guest who has failed to pay his hotel bill when due. Before such eviction may occur, demand for payment of the bill must be made and the guest must be requested to leave if the bill is not paid. If the guest fails to pay the bill after such demand, the hotelkeeper may evict such guest by locking the door to his room, removing said guest’s baggage and other personal property, or by any other peaceful means. The hotel shall have the right to hold said baggage and other property as hereinafter provided.
(2) A hotelkeeper also shall have the right to evict a person, whether or not such person is guest of the hotel, who:
(a) Is under the influence of alcohol, drugs or any other intoxicating substances;
(b) Is disorderly so as to disturb the peace of other guests;
(c) Seeks to use the hotel for any unlawful purpose;
(d) Seeks to bring property into the hotel which may be dangerous to other persons (such as firearms, explosives or hazardous or toxic substances) or the possession of which by such person is unlawful;
(e) Destroys, damages or defaces property of the hotel or its guests or threatens to do so;
(f) Would cause or permit any hotel room to exceed its maximum allowable occupancy as established by the hotelkeeper; or
(g) Refuses to abide by reasonable standards or policies established by the hotelkeeper for operation and management of the hotel.
[39-1805, added 1991, ch. 296, sec. 2, p. 781; am. 1993, ch. 125, sec. 1, p. 317.]
A hotelkeeper has a lien upon and may retain all baggage and other personal property in possession of a guest for the proper charges due to the hotel from the guest for his food, board, room rent, lodging and accommodations and for any other charges incurred by the guest and for all money and credit paid for or furnished to him and for the costs of enforcing such lien including court costs and reasonable attorney’s fees. The hotelkeeper shall have the right to retain and hold possession of such baggage and other personal property until the amount of such charges and money be fully paid, and to sell such baggage and other personal property for payment of such lien, charges and costs, including court costs and reasonable attorney’s fees in the manner provided in section 39-1807, Idaho Code. Such baggage and other personal property shall not be subject to attachment or execution until such lien and storage charge and costs of satisfying such lien are fully satisfied.
[39-1806, added 1991, ch. 296, sec. 2, p. 781.]
The hotelkeeper shall retain such baggage and other property upon which he has a lien as provided in section 39-1806, Idaho Code, for a period of thirty (30) days. At the expiration of such time if such lien is not fully satisfied he may proceed to sell such baggage and other personal property or a part thereof at public auction after posting notice of the sale as provided by law upon execution, and by mailing a notice fifteen (15) days prior to the sale by registered mail of the time and place of such sale to such guest at the address given by the guest on the hotel register. The proceeds of the sale shall be applied first to cost of the sale and attorney’s fees and then to the discharge of the lien. The remainder, if any, must be paid to the guest. Provided, however, if the hotelkeeper knew that the property brought upon his premises was not, when brought, legally in possession of such guest, or had written notice that such property was not then the property of such guest, at the time when such charges or indebtedness were incurred, such property shall not be subject to the lien or sale as hereinbefore provided.
[39-1807, added 1991, ch. 296, sec. 2, p. 781.]
When any baggage or other personal property is received by a hotel and left unclaimed, or left unclaimed by a guest in a hotel, the hotelkeeper may hold and store the same, until all just and reasonable storage and other charges are paid, and if no guest calls for his baggage or other personal property left in a hotel for a period of sixty (60) days or more, the hotelkeeper may sell such property at public auction to the highest bidder, having given fifteen (15) days prior notice, by registered mail, of the time and place of such sale to such guest at the address given by the guest on the hotel register, and by posting notice of such sale as provided by law upon execution. If any surplus be left after paying storage, freight, cost of advertising, and other reasonable charges, the same must be paid to the owner of such property, when known, at any time thereafter, upon demand being made therefor within thirty (30) days after the sale.
[39-1808, added 1991, ch. 296, sec. 2, p. 782.]
A hotelkeeper shall not be required to provide accommodations, facilities or privileges of a hotel to any person who:
(1) Is unwilling or unable to pay for the accommodations and services of the hotel. A hotelkeeper may require a prospective guest to demonstrate the ability to pay for the accommodations and services, including a damage deposit in a reasonable amount, by cash or acceptable credit card;
(2) The hotelkeeper reasonably believes to be under the influence of alcohol, drugs or any other intoxicating substances or who is disorderly so as to disturb the peace of other guests;
(3) The hotelkeeper reasonably believes seeks to use the hotel for any unlawful purpose;
(4) The hotelkeeper reasonably believes seeks to bring property into the hotel which may be dangerous to other persons (such as firearms, explosives or hazardous or toxic substances) or the possession of which by such person is unlawful;
(5) Destroys, damages or defaces property of the hotel or its guests or threatens to do so;
(6) Is under eighteen (18) years of age and unaccompanied by his parent or guardian. A hotelkeeper may condition the provision of accommodations, facilities or privileges of a hotel to persons under the age of eighteen (18) years by requiring the parent or guardian to:
(a) Agree in writing to accept liability for the costs of the accommodations, including the cost of the room, taxes, other charges and any damages to the hotel caused by such person or his invitees; and
(b) To provide an acceptable credit card or cash deposit sufficient to cover such costs;
(7) Would cause or permit any hotel room to exceed its maximum allowable occupancy as established by the hotelkeeper; or
(8) Refuses to abide by reasonable standards or policies established by the hotelkeeper for operation and management of the hotel.
[39-1809, added 1993, ch. 125, sec. 2, p. 317.]
(1) A license or permit properly issued to a person to serve beer, wine or liquor by the drink, which license or permit is used at or in a hotel, may not be suspended, revoked or not be renewed, nor may conditions be placed upon it, by reason of the fact that individuals at or in the hotel, whether or not they are guests, possess or consume beer, wine or liquor without being of a legal age to do so or at a time when such consumption is not legal if:
(a) (i) The alcohol was not sold, provided or delivered to the persons who are not of legal age by the licensee or its agents or employees; or
(ii) The alcohol was not sold, provided or delivered by the licensee or its agents or employees at a time when it was legally prohibited from doing so;
(b) The licensee, the hotelkeeper and their agents and employees took reasonable precautions to prevent:
(i) Persons who are not of legal age from possessing or consuming alcohol at or in the hotel; or
(ii) Possession or consumption of alcohol at or in the hotel at a time when such possession or consumption is not legal; and
(c) The possession or consumption is not on that portion of the premises which the hotelkeeper has identified as the bar or restaurant or in a meeting room, ballroom or the like in which beer, wine or liquor then is being sold by the licensee.
(2) A license or permit properly issued to a person to serve beer, wine or liquor by the drink, which license or permit is used at or in a hotel, may not be suspended, revoked or not be renewed, nor may conditions be placed upon it, by reason of the fact that hotel guests possess or consume beer, wine or liquor in their sleeping rooms and serve it there to their invitees who are not of legal age or at a time during which it would not be legal for the licensee to sell or permit the possession or consumption of alcohol on the premises.
[39-1810, added 1993, ch. 125, sec. 3, p. 318.]
It shall be unlawful for any person or persons, partnership or corporation, to sell or offer for sale, or take or solicit orders of sale, or purchase, or use, or have on hand or in store for the purpose of sale or use, in any state, any high explosive, unless on each and every box or package and wrapper containing any high explosive, there shall be plainly stamped or printed the name and place of business of the person or partnership or corporation by whom or which the same was manufactured, and the exact and true date of its manufacture, and the percentage of nitroglycerin or other high explosive contained therein.
[(39-2101) 1907, p. 314, sec. 1; reen. R.C. & C.L., sec. 1555; C.S., sec. 2593; I.C.A., sec. 38-1501; am. 1963, ch. 18, sec. 13, p. 154.]
It shall be unlawful for any person or persons, partnership or corporation, to have two (2) or more different dates on any such box or package containing high explosive; it shall further be unlawful for any person or persons, partnership or corporation, to use any box, package or wrapper formerly used by any other person or persons, partnership or corporation, in the packing of such high explosive; and the name and date on such box or package shall be the same as on the wrapper containing such explosive.
[(39-2102) 1907, p. 314, sec. 2; reen. R.C. & C.L., sec. 1556; C.S., sec. 2594; I.C.A., sec. 38-1502; am. 1963, ch. 18, sec. 14, p. 154.]
All persons, partnerships, or corporations who sell or offer to sell in the state of Idaho any type of paint, solvent, or cleansing liquids containing toxic additives shall cause a label to be placed on each and every box, package, or container showing thereon the name and type of such ingredients and/or toxic additives and the amount of each.
[(39-2102A) 39-2102(A), as added by 1963, ch. 40, sec. 1, p. 188; am. and redesig. 2007, ch. 90, sec. 19, p. 256.]
If any person or persons, partnership or corporation, shall violate any of the provisions of this chapter, such person or persons, the members of such partnership, or the officers or agents of such corporation, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine of not more than $300.00, or by imprisonment in the county jail for not more than six months, or by both such fine and imprisonment, in the discretion of the court.
[(39-2103) 1907, p. 314, sec. 3; reen. R.C. & C.L., sec. 1557; C.S., sec. 2595; I.C.A., sec. 38-1503.]
(1) As used in this section, "supplemental breast screening" means a medically necessary and clinically appropriate examination of the breast using either standard or abbreviated magnetic resonance imaging, contrast mammogram imaging, or, if such imaging is not possible, ultrasound if recommended by the treating physician to screen for breast cancer when there is no abnormality seen or suspected in the breast.
(2) This section shall apply only to a health benefit plan that provides benefits for medical or surgical expenses incurred as a result of a health condition, accident, or sickness, including an individual, group, blanket, or franchise insurance policy or insurance agreement, a group hospital service contract, or an individual group evidence of coverage or similar coverage document that is offered by:
(a) An insurance company;
(b) A group hospital service corporation operating pursuant to chapter 34, title 41, Idaho Code;
(c) A managed care organization operating pursuant to chapter 39, title 41, Idaho Code;
(d) A fraternal benefit society operating pursuant to chapter 32, title 41, Idaho Code; or
(e) An exchange operating pursuant to chapter 61, title 41, Idaho Code.
(3) Notwithstanding any other provision of law to the contrary, a group or individual health benefit plan providing benefits for medical or surgical expenses incurred as a result of a health condition, accident, or sickness shall also provide coverage for breast imaging. The minimum coverage required shall include all costs associated with one (1) supplemental breast screening every year in instances where a person is believed to be at an increased risk of breast cancer due to:
(a) Personal history of atypical breast histologies;
(b) Personal history or family history of breast cancer;
(c) Genetic predisposition for breast cancer;
(d) Prior therapeutic thoracic radiation therapy;
(e) Lifetime risk of breast cancer of greater than twenty percent (20%) according to risk assessment tools based on family history;
(f) Extremely dense breast tissue based on breast composition categories of the breast imaging and reporting data system established by the American college of radiology; or
(g) Heterogeneously dense breast tissue based on breast composition categories with any one (1) of the following risk factors:
(i) Personal history of BRCA1 or BRCA2 gene mutations;
(ii) First-degree relative with a BRCA1 or BRCA2 gene mutation who has not undergone genetic testing;
(iii) Prior therapeutic thoracic radiation therapy from ten (10) to thirty (30) years of age; or
(iv) Personal history of Li-Fraumeni syndrome, Cowden syndrome, or Bannayan-Riley-Ruvalcaba syndrome, or a first-degree relative with one (1) of these syndromes.
(4) Nothing in this section shall be construed as to prevent the application of deductible, copayment, or coinsurance provisions contained in the policy or plan for breast imaging in excess of the minimum coverage required.
[39-2301, added 2025, ch. 163, sec. 1, p. 783.]
(1) The purpose of this chapter is to provide for the development, establishment, and enforcement of standards for the care and treatment of individuals by agencies as provided by this chapter.
(2) For the purposes of this chapter, the board of health and welfare, in consultation with provider representatives, shall have the authority to define the services necessary to the operation of an agency, and to adopt rules, regulations and standards for the licensing of an agency.
[39-2401, added 1992, ch. 56, sec. 2, p. 163.]
As used in this chapter:
(1) "Board" means the board of health and welfare.
(2) "Business entity" means a public or private organization owned or operated by one or more persons.
(3) "Department" means the department of health and welfare.
(4) "Health care services" mean any of the following services that are provided at the residence of an individual:
(a) Skilled nursing services;
(b) Homemaker/home health aide services;
(c) Physical therapy services;
(d) Occupational therapy services;
(e) Speech therapy services;
(f) Nutritional services;
(g) Respiratory therapy services;
(h) Medical/social services; and
(i) Such other related services as may be authorized by regulation of the board of health and welfare.
(5) "Home health agency" means any business entity that primarily provides skilled nursing services by licensed nurses and at least one (1) other health care service to an individual in that individual’s place of residence.
(6) "Individual" means a natural person who is a recipient of provided health care services.
(7) "Skilled nursing services" mean those services provided by a state licensed nurse for the purpose of promoting, maintaining, or restoring the health of an individual or to minimize the effects of injury, illness, or disability.
[39-2402, added 1992, ch. 56, sec. 2, p. 164.]
After January 1, 1993, no private or public agency or organization may advertise, operate, manage, conduct, open, maintain, or hold itself out to the public to be a home health agency unless licensed by the department of health and welfare. The department may grant licenses without conducting a licensure survey to medicare certified agencies or agencies currently accredited by an accrediting body recognized by the health care financing administration pursuant to rules and regulations developed by the board prescribing the conditions under which these actions are made.
[39-2403, added 1992, ch. 56, sec. 2, p. 164.]
(1) An application for a license shall be made to the department upon forms provided by it and shall contain such information as it reasonably requires, which may include affirmative evidence of ability to comply with such reasonable standards, rules and regulations as are lawfully adopted by the board of health and welfare.
(2) Upon receipt of an application for license, the department shall issue a license if the applicant meets the requirements established under this chapter. A license, unless suspended or revoked, shall be renewable each and every year upon filing by the licensee, and approval by the department, of an annual report upon such uniform dates and containing such information in such form as the board 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 department. Licenses shall be posted in a conspicuous place on the licensed premises.
(3) The department 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 patient, or which will violate the patients’ bill of rights, or the home health agency does not meet requirements for licensure to the extent that it hinders its ability to provide quality services that comply with rules and regulations for home health agencies, or the home health agency has a history of repeat deficiencies. Before denial or revocation is final, the department shall provide opportunity for a hearing at which time the owner or sponsor of an agency 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, safety or rights of any patient. 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 department. Hearings for licensure, including denial and revocation, shall be conducted by the department pursuant to chapter 52, title 67, Idaho Code, and appeal shall be as provided therein.
[39-2404, added 1992, ch. 56, sec. 2, p. 164.]
The board of health and welfare, with the advice of the advisory board of home health providers, shall have the authority to adopt, amend, and enforce such rules, regulations and standards with respect to all home health agencies to be licensed under the provision of this chapter as are designed to further the accomplishment of the purposes of this chapter in promoting safe and adequate treatment of individuals by home health agencies in the interest of public health, safety and welfare.
Provided 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, 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.
[39-2405, added 1992, ch. 56, sec. 2, p. 165.]
The licensing agency shall make or cause to be made such inspections and investigations of home health agencies as it deems necessary, and may provide for consultations and conferences between agencies and the licensing agency.
[39-2406, added 1992, ch. 56, sec. 2, p. 165.]
Information received by the department through filed reports, inspection, or as otherwise authorized under this chapter, shall not be disclosed publicly in such a manner as to identify individual patients of agencies, except in a proceeding involving the question of licensure. Public disclosure of information obtained by the department for the purposes of this chapter shall be governed by rules and regulations adopted by the board. Nothing in this chapter, 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 agencies, or communications to and with nurses or other assisting persons or entities, nor shall this chapter 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.
[39-2407, added 1992, ch. 56, sec. 2, p. 165.]
Notwithstanding the existence or pursuit of any other remedy, the department 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 an agency without a license required under this chapter.
The department shall be represented by the county prosecutor of the county in which the violation occurs or by the office of the attorney general.
[39-2408, added 1992, ch. 56, sec. 2, p. 166.]
A licensee shall provide each person or designated representative with a written bill of rights which shall be in substantially the same form as the currently effective version of regulations affecting patients’ rights utilized for the medicare and medicaid programs.
[34-2409, added 1992, ch. 56, sec. 2, p. 166.]
No person may use any words in its corporate or business name, or advertise using such words to indicate that it is licensed under the provisions of this chapter or provides the type of services provided by an agency licensed under the provisions of this chapter unless it is in fact licensed as a home health agency under this chapter.
[39-2410, added 1992, ch. 56, sec. 2, p. 166.]
The following are not subject to regulation for the purposes of this chapter:
(1) A family member;
(2) An organization that provides only meal service in a person’s residence;
(3) Entities furnishing durable medical equipment that does not involve the delivery of professional services beyond those necessary to set up and monitor the proper functioning of the equipment and educate the user on its proper use;
(4) A professional licensed person who independently provides services in the home;
(5) An employee or volunteer of an agency who provides nonprofessional services only as an employee or volunteer;
(6) Facilities and institutions including, but not limited to, nursing homes, hospitals, boarding homes, developmental disability residential programs, or other facilities and institutions, only when providing services to persons residing within the facility or institution if the delivery of the services is regulated by the state;
(7) Nursing homes, hospitals, or other institutions, agencies, organizations, or persons that contract with licensed home health, hospice, or home care agencies for the delivery of services;
(8) In-home assessments by licensed professionals of an ill, disabled, or infirm person’s ability to adapt to the home environment that does not result in regular ongoing care at home by that licensed professional;
(9) Services conducted by and for the adherents of a church or religious denomination that rely upon spiritual means alone through prayer for healing in accordance with the tenets’ beliefs genuinely held by such adherents;
(10) A medicare approved dialysis center operating a medicare approved home dialysis program;
(11) Case management services which do not include the direct delivery of home health, hospice, or home care services;
(12) A medicare certified hospice agency; and
(13) A state authorized personal assistance agency or personal assistant as defined in chapter 56, title 39, Idaho Code.
[39-2411, added 1992, ch. 56, sec. 2, p. 166; am. 2000, ch. 274, sec. 8, p. 808.]
A rural and underserved nursing incentive program as set forth in this chapter shall be administered by the department of health and welfare. The program shall provide for the payment of nursing education loans for eligible nurses practicing in rural and underserved areas of the state subject to the requirements of this chapter. The department of health and welfare may promulgate rules to implement the provisions of this chapter.
[39-2501, added 2023, ch. 60, sec. 1, p. 218.]
As used in this chapter:
(1) "Applicant" means an individual submitting documents required by the department of health and welfare for the purpose of requesting a grant from the rural nursing loan repayment program.
(2) "Application period" means the time period from October 1 to November 30 of the state fiscal year for which funding is requested.
(3) "Approval" means written notification that the application will be awarded funding through the rural nursing loan repayment program.
(4) "Board" means the rural nursing loan repayment grant review board.
(5) "Department" means the department of health and welfare.
(6) "Director" means the director of the department.
(7) "Eligible area" means:
(a) A rural area also designated by the United States secretary of health and human services as a health professional shortage area;
(b) A county without a population center of twenty thousand (20,000) or more persons; or
(c) All certified Idaho critical access hospitals.
(8) "Eligible employer" means:
(a) Critical access hospitals, federally qualified health centers, rural health clinics, long-term care facilities, public health districts, state hospitals, licensed home health agencies, licensed hospice agencies, rural health care clinics, tribal clinics, veterans health administration hospitals, veterans health administration clinics, veterans health administration long-term care homes, or Indian health service clinics; or
(b) Any other employer located in a rural area that employs nurses for purposes of providing nursing services to patients, as determine by the board.
(9) "Grant period" means the time immediately following the application period from December 1 through June 30 for which funding is granted.
(10) "Nurse" means a licensed practical nurse or a registered nurse pursuant to chapter 14, title 54, Idaho Code.
(11) "Qualified nursing education debt" means a debt with a financial aid program or financial institution incurred to meet the educational costs of attending an accredited nursing school.
(12) "Recipient" means an individual who receives a grant pursuant to this chapter.
(13) "Rural nurse" means a licensed nurse who spends a minimum of thirty-two (32) hours per week, on average, providing nursing care to patients in an eligible area.
(14) "Rural nursing loan repayment fund" or "fund" means the fund in the state treasury established in section 39-2503, Idaho Code.
(15) "Rural nursing loan repayment grant" or "grant" means a grant awarded pursuant to this chapter.
(16) "Rural nursing loan repayment program" or "program" means the rural nursing loan repayment program established by this chapter.
[39-2502, added 2023, ch. 60, sec. 1, p. 218.]
There is hereby established in the state treasury a rural nursing loan repayment fund to be administered by the department. Moneys in the fund shall:
(1) Be subject to appropriation by the legislature to pay for:
(a) The educational debts of nurses in rural and underserved areas of the state that demonstrate a need for assistance in nursing recruitment and retention; and
(b) The expenses of administering the rural nursing loan repayment program, which expenses shall not exceed ten percent (10%) of the annual appropriation by the legislature; and
(2) Consist of:
(a) Legislative appropriations;
(b) Health care industry contributions, private donations, and federal funds as available; and
(c) Interest earned on idle moneys in the fund.
[39-2503, added 2023, ch. 60, sec. 1, p. 219.]
(1) The director shall appoint eight (8) members of a board to be known as the rural nursing loan repayment grant review board. Members of the board:
(a) Shall serve at the pleasure of the director; and
(b) Shall not be compensated but shall be reimbursed for travel expenses incurred for attendance at board meetings.
(2) The board shall meet at least annually for the purposes described in this chapter.
(3) The board shall be composed of the following:
(a) A rural hospital chief nursing officer or administrator;
(b) A rural long-term care chief nursing officer or administrator;
(c) A faculty member from an Idaho-accredited registered nursing school;
(d) A faculty member from an Idaho-licensed practical nursing school;
(e) A federally qualified health center or rural health clinic representative;
(f) A representative from the American nurses association-Idaho or the nurse leaders of Idaho association;
(g) An Idaho hospital association representative; and
(h) An Idaho health care association representative.
(4) Appointments to the board shall be for three (3) years, except for initial appointments to the board, which shall be staggered in such a manner that approximately one-third (1/3) of the board members are appointed for one (1) year, one-third (1/3) of the board members are appointed for two (2) years, and one-third (1/3) of the board members are appointed for three (3) years. Board members may be reappointed at the end of their terms.
(5) A majority of the board members constitutes a quorum for the transaction of business. A majority vote is required by the quorum in finalizing decisions.
[39-2504, added 2023, ch. 60, sec. 1, p. 219.]
(1) The board may award grants in accordance with the procedures and criteria in this chapter to nurses for qualified education debt repayments and for nursing education loan repayments.
(2) Rural nursing loan repayment grant awards.
(a) Grant award recipients will be determined annually by the board.
(b) Subject to available funding, the board may offer awards to up to fifty (50) qualified applicants per year.
(c) A nurse selected to receive a rural nursing loan repayment grant award shall be entitled to receive qualified nursing education debt repayments for a period not to exceed three (3) years.
(d) Award amounts shall consist of:
(i) Five thousand dollars ($5,000) after the verified completion of one (1) year of continuous employment by eligible employers in an eligible area;
(ii) Ten thousand dollars ($10,000) after the verified completion of two (2) years of continuous employment by eligible employers in an eligible area; and
(iii) Ten thousand dollars ($10,000) after the verified completion of three (3) years of continuous employment by eligible employers in an eligible area.
(e) The award shall not exceed the qualified nursing education debt incurred by the recipient, and the maximum amount of education debt repayments that a rural nurse may receive shall be twenty-five thousand dollars ($25,000) over a three (3) year period.
(f) All nursing grant awards shall be paid directly from the rural nursing loan repayment fund to the recipient of the award.
(g) In determining the awards to be made in any given year, the board and the department shall consider the value of retaining an appropriate balance in the fund for use in future years.
(h) An award payment to a recipient in a single year is not guaranteed or assured in subsequent years.
(3) Grant awards are limited to qualified education debt repayments and nursing loan repayments for nurses providing nursing care in eligible areas.
(4) Nothing in this chapter may be construed to require the provision of awards without an appropriation for that purpose.
[39-2505, added 2023, ch. 60, sec. 1, p. 219.]
(1) A nurse who meets the following requirements is eligible to apply for a rural nursing loan repayment grant award:
(a) During the period covered by the award, the nurse must be a rural nurse providing nursing care in an eligible area. A nurse may provide patient care services in nursing care in more than one (1) eligible area;
(b) The nurse must be licensed as a licensed practical nurse or a registered nurse and must have completed an accredited nursing program; and
(c) The nurse must hold an unrestricted Idaho nursing license and must be able to meet the nursing requirements of the eligible employer.
(2) Nurses receiving or having received other nursing educational loan repayment through programs such as the rural health care access program and the state loan repayment program are not eligible for this program.
(3) Advanced practice registered nurses are not eligible for this program.
[39-2506, added 2023, ch. 60, sec. 1, p. 220.]
(1) A completed grant application must be submitted by the applicant to the department for the purpose of requesting a grant on or before the conclusion of the application period specified for the appropriate grant cycle. All applications must include the required information.
(2) The grant application and any attachments submitted by the applicant shall be the primary source of information for awarding a grant. Additionally, the board may request or use other information known to it in making its decision.
(3) All grant applications shall:
(a) Be on a form prescribed by the department; and
(b) Include a letter of support from an eligible employer along with supporting documentation.
[39-2507, added 2023, ch. 60, sec. 1, p. 220.]
(1) The board shall conduct the grant process in accordance with the schedule provided in this section.
(2) The department will make available a list of areas eligible for potential grant assistance no later than August 1 prior to the application period.
(3) The department shall develop an application form and make guidance available no later than October 1, which shall initiate the application period prior to the grant period.
(4) The completed application shall be submitted to the department no later than November 30 of the application period.
(5) Applications will be reviewed by the board, and the board will select award recipients from qualified applicants.
(6) The board shall issue notification to every applicant regarding the disposition of their grant request by February 15 prior to the grant period.
(7) Funds for approved rural nursing loan repayment grants shall be disbursed upon verified completion of employment by eligible employers after one (1) year, two (2) years, or three (3) years of continuous employment, according to the payment schedule, that meets grant criteria.
[39-2508, added 2023, ch. 60, sec. 1, p. 221.]
(1) Grant awards shall be made by the board based on ranking and priority in accordance with the following criteria:
(a) Priority shall be given to licensed practical nurses and registered nurses who are Idaho residents and graduated from an accredited nursing program in Idaho; and
(b) Award priority shall be given to nurses working in an eligible area with a demonstrated nursing shortage.
(2) In reviewing and weighing the criteria listed in subsection (1) of this section, the board shall consider all relevant factors.
(3) If a nurse selected for an award of debt payments does not accept the award, then the award shall be made to an eligible nurse who has not yet been awarded a grant and who best satisfies the criteria provided in subsection (1) of this section.
[39-2509, added 2023, ch. 60, sec. 1, p. 221.]
Providing false information on any application or document submitted under this chapter is a misdemeanor and grounds for declaring the applicant ineligible. Any and all funds determined to have been acquired on the basis of fraudulent information must be returned to the rural nursing loan repayment grant program. This section shall not limit other remedies that may be available for the filing of false or fraudulent applications.
[39-2510, added 2023, ch. 60, sec. 1, p. 221.]
The state department of health and welfare is authorized to take all actions necessary to implement and enforce the provisions of this chapter, including the promulgation of rules.
[39-2511, added 2023, ch. 60, sec. 1, p. 221.]
Applicants aggrieved by the award or failure to award a grant pursuant to this chapter shall be afforded the remedies provided in chapter 52, title 67, Idaho Code.
[39-2512, added 2023, ch. 60, sec. 1, p. 221.]
The provisions of this chapter shall be null, void, and of no force and effect on and after June 30, 2029.
[39-2513, added 2023, ch. 60, sec. 1, p. 221.]
This act shall be known and may be cited as the "Fireworks Act of 1997."
[39-2601, added 1997, ch. 246, sec. 2, p. 709.]
As used in this chapter, these terms shall have the following meanings:
(1) "Authority having jurisdiction" means a city fire department if the area is within a city, or a fire protection district formed pursuant to provisions of the Idaho Code if the area is within a fire protection district, or the county commission if the area is not within a city or fire protection district.
(2) "Department" means the department of insurance, division of the state fire marshal.
(3) "Fireworks" means any combustible or explosive composition, or any substance or combination of substances, or article prepared for the purpose of producing a visible or audible effect by combustion, explosion, deflagration or detonation. Fireworks include items classified as common or special fireworks by the United States bureau of explosives or contained in the regulations of the United States department of transportation and designated as UN 0335 1.3G or UN 0336 1.4G. The term "fireworks" shall not include any automotive safety flares, toy guns, toy cannons, caps or other items designed for use with toy guns or toy cannons, party poppers, pop-its or other devices which contain twenty-five hundredths (.25) of a grain or less of explosive substance.
(4) "Importer" means any person who, for any purpose other than personal use, or a use associated with a specific public display or other event permit, is the first receiver of any fireworks in this state.
(5) "License" means a nontransferable, formal authorization, issued by the department to engage in the acts of importing fireworks into this state or operating a wholesale fireworks business within this state.
(6) "Nonaerial common fireworks" means any fireworks such as ground spinners, fountains, sparklers, smoke devices or snakes designed to remain on or near the ground and not to travel outside a fifteen (15) foot diameter circle or emit sparks or other burning material which land outside a twenty (20) foot diameter circle or above a height of twenty (20) feet. Nonaerial common fireworks do not include firecrackers, jumping jacks, or similar products.
(7) "Permit" means an authorization given by the authority having jurisdiction pursuant to section 39-2604 or 39-2605, Idaho Code.
(8) "Special fireworks" means any fireworks designed primarily for display and classified as special fireworks by the United States bureau of explosives or designated as UN 0335 1.3G.
(9) "Wholesale" means sale of fireworks to a retailer or wholesaler.
[39-2602, added 1997, ch. 246, sec. 2, p. 710.]
(1) A license shall be required for any person to import fireworks into this state or to operate a wholesale fireworks business in this state.
(2) Fireworks shall only be delivered in this state by a person with a valid wholesale or import license under the following circumstances:
(a) (i) To a person with a valid sales tax seller’s permit issued pursuant to section 63-3620, Idaho Code; and
(ii) During a period beginning sixty (60) days prior to a date on which the retail sale or use of nonaerial common fireworks is authorized under this chapter; or
(b) To a person with a valid permit issued pursuant to section 39-2605, Idaho Code, within a reasonable time period before the display or event.
(3) Possession of a wholesale or import license does not authorize the holder of the license to sell nonaerial common fireworks at retail, but a wholesaler or importer may also hold a retail permit in compliance with the provisions of this chapter.
(4) Wholesale or import licenses shall be issued for a twelve (12) month period beginning on March 31 each year and shall be nontransferable. The license shall be issued if the application is complete and in compliance with applicable law.
(5) Wholesale or import license applications shall be on a form approved by the department and shall include the name and address of the applicant (or the names of all partners, if a partnership, the name of the corporation and the corporate officers if a corporation, or the name of the limited liability company and all of its members, if a limited liability company) the primary location of the business, each location at which fireworks are to be stored and the applicant’s Idaho sales tax seller’s permit number, if applicable.
(6) A bond or valid certificate of public liability and property-casualty insurance providing coverage of at least one hundred thousand dollars ($100,000) for personal injury and property damage shall be presented at the time of application.
(7) The department may impose a fee for issuing a license under this section which shall not exceed one hundred dollars ($100).
(8) The license required under this section may be revoked if the licensee violates any provisions of this chapter. A license revocation proceeding shall comply with the provisions of chapter 52, title 67, Idaho Code.
(9) The license shall be displayed in public view at each location listed on the license.
(10) An importer or wholesaler shall keep a record of all wholesale transactions showing the name, address, sales tax seller’s permit number, if applicable, and type and quantity of items sold.
[39-2603, added 1997, ch. 246, sec. 2, p. 710.]
(1) The local authority having jurisdiction may require a permit for the retail sale of nonaerial common fireworks.
(2) If a permit is required the applications shall be on a form approved by the authority having jurisdiction and shall include the name and address of the applicant (or the names of all partners, if a partnership, the name of the corporation and the corporate officers if a corporation, or the name of the limited liability company and all of its members, if a limited liability company) the primary location of the business, each location at which fireworks are to be stored and the applicant’s Idaho sales tax seller’s permit number, if applicable.
(3) A bond or valid certificate of public liability and property-casualty insurance providing coverage of up to one hundred thousand dollars ($100,000) for personal injury and property damage may be required at the time of application.
(4) The authority having jurisdiction may assess a fee for issuing a permit under this section which shall not exceed twenty-five dollars ($25.00).
(5) The permit shall be issued if the application is complete and in compliance with applicable law, shall be valid for twelve (12) months from the date of issuance and shall be nontransferable.
(6) The permit required under this section may be revoked if the permittee violates any provisions of this chapter. A permit revocation proceeding shall comply with the provisions of chapter 52, title 67, Idaho Code.
(7) The permit shall be displayed in public view at the location listed on the permit.
[39-2604, added 1997, ch. 246, sec. 2, p. 711.]
(1) The authority having jurisdiction may, at its discretion, issue a permit for public display or other events in the following circumstances:
(a) After determining that the public display will be supervised by a qualified person and will not constitute an unreasonable hazard to persons or property. Appropriate national fire protection association or international fire code provisions may be used as guidance for this determination.
(b) After determining that sales and use of fireworks outside the normal sales period provided in section 39-2606, Idaho Code, or proposing the use of fireworks in addition to nonaerial common fireworks will not constitute an unreasonable hazard to persons or property.
(2) An application for a permit for public display or other event shall be on a form approved by, and contain the information reasonably requested by, the authority having jurisdiction.
(3) The permit shall be nontransferable, shall list the specific date or dates upon which the display or event shall occur and the types of fireworks and uses that will be allowed.
(4) A bond or valid certificate of public liability and property-casualty insurance providing coverage of up to one million dollars ($1,000,000) for personal injury and property damage may be required at the time of application for public display of special fireworks.
(5) The authority having jurisdiction may assess a fee for issuing a permit for public display under this section which shall not exceed one hundred twenty-five dollars ($125). There shall be no fee for the issuance of a permit for any event other than a public display event.
(6) Alteration of fireworks may be performed by a person in possession of a valid public display permit.
[39-2605, added 1997, ch. 246, sec. 2, p. 712; am. 2002, ch. 86, sec. 4, p. 197.]
(1) Nonaerial common fireworks may be sold at retail and used beginning at midnight June 23, and ending at midnight July 5 and beginning at midnight December 26 and ending at midnight January 1. The authority having jurisdiction may at its discretion extend each period of sales by not more than five (5) days.
(2) Fireworks may be sold and used at any time in compliance with permits issued under the provisions of section 39-2605, Idaho Code.
[39-2606, added 1997, ch. 246, sec. 2, p. 712.]
Retail sales of nonaerial common fireworks shall be allowed only from within a temporary fireworks stand unless the authority having jurisdiction finds appropriate circumstances justifying reasonable variance from strict compliance with this section. An existing permanent building which was used for the retail sale of fireworks in 1996 may continue to be used for that purpose if the building meets or exceeds the standards for temporary buildings established by this section and is operated, insofar as it is applicable, as provided by this section. Temporary fireworks stands shall be subject to the following provisions:
(1) A stand shall not be located within twenty-five (25) feet of any building or within one hundred (100) feet of the nearest fuel dispensing device.
(2) A stand shall meet the minimum structural stability requirements for temporary buildings as required by applicable local building codes. If no local building codes have been adopted, applicable state codes may be used.
(3) A stand shall meet the minimum requirements for temporary buildings for all lighting circuits or other electrical equipment used in conjunction with the operation of the stand as required by applicable local building codes or, if no local building codes have been adopted, by applicable state codes.
(4) A stand shall have two (2) exits, each a minimum of thirty (30) inches wide at each end of the stand or as near the ends as is practical in a mobile home conversion. One (1) additional door is required for each thirty-two (32) feet of rear wall in excess of thirty-two (32) feet. All doors shall open outward from the stand and shall be kept unlocked and unlatched during the hours of operation and free and clear of supplies and materials at all times.
(5) A stand shall have at least two (2) fire extinguishers with a 2A minimum rating, in good working order, with a current inspection tag in place, placed near the exits in a visible and readily accessible manner.
(6) "No smoking within 25 feet" signs shall be prominently displayed on all four (4) sides of the stand. Smoking shall not be permitted inside the stand.
(7) A stand shall not be erected before May 5 nor remain up after July 20 for the first sales period; nor shall it be erected before December 7 or remain up after January 16 for the second sales period. The premises on which the stand is erected shall be cleared of all structures and debris no later than July 20 or January 16, respectively.
(8) The fireworks stand operator shall not permit the discharge of fireworks within twenty-five (25) feet of the stand.
(9) The stand operator shall not allow any rubbish to accumulate in or around the stand causing a fire nuisance.
(10) Only noncombustible waste containers shall be permitted within the stand.
(11) Fireworks shall not be left in the stand when it is not open for business unless the stand is locked or secured. If fireworks are not stored in the stand they shall be stored in compliance with section 39-2608, Idaho Code.
(12) Notice as provided by the authority having jurisdiction cautioning each person purchasing fireworks of the prohibitions, liabilities and penalties incorporated in this chapter shall be posted at all retail locations.
(13) The authority having jurisdiction may charge a one (1) time inspection fee of twenty-five dollars ($25.00) for inspection of a temporary fireworks stand.
[39-2607, added 1997, ch. 246, sec. 2, p. 713.]
(1) A short-term storage facility may be used for the storage of nonaerial common fireworks for a period of sixty (60) days prior to, and fifteen (15) days after, any authorized retail sales date. The authority having jurisdiction shall be notified of the address or location of all short-term storage facilities when fireworks will not be stored in a temporary fireworks stand. If the short-term storage facility is not within the boundaries of the jurisdiction having issued the retail sales permit the permittee shall notify the authority having jurisdiction where the storage is to take place.
(2) Short-term storage is allowed in any of the following, provided it is locked or otherwise secured: a temporary fireworks stand, truck, trailer, or other vehicle. A truck, trailer or other vehicle used for short-term storage must remain at least twenty-five (25) feet from the stand during any time the stand is open for business, but may abut the stand when it is closed. A truck, trailer or vehicle used for short-term storage must be at least twenty-five (25) feet from any other inhabited building. Short-term storage may occur in a locked or secured shed, garage, barn or other building or storage container which is detached from an inhabited building and contains no open flames, including heating and lighting sources. The authority having jurisdiction may, in its discretion, allow short-term storage to occur in an attached garage with a one (1) hour fire wall separating the garage from any inhabited area.
[39-2608, added 1997, ch. 246, sec. 2, p. 714.]
It shall be unlawful for any person, except in compliance with this chapter, to:
(1) Alter any fireworks;
(2) Throw any fireworks from, into, or at a moving vehicle or at any person;
(3) Sell or use any fireworks at any time not permitted under this chapter;
(4) Use fireworks in any area that constitutes a severe fire threat based on the vegetative conditions during the current fire season as determined by the county commission or authority having jurisdiction, provided that notice of such areas is given in advance.
A violation of subsection (1) or (3) of this section shall constitute an infraction and shall be punishable by a fine of one hundred dollars ($100).
[39-2609, added 1997, ch. 246, sec. 2, p. 714; am. 2015, ch. 222, sec. 1, p. 685.]
The provisions of this chapter do not apply to and shall not prohibit:
(1) The use of flares, noisemakers or signals designed and used for the purpose of protecting the public;
(2) The use of blank cartridges;
(3) The use of flares or noisemakers designed and labeled specifically for pest control purposes and approved by the Idaho department of fish and game;
(4) The continued use of existing facilities for long-term storage of fireworks by wholesalers;
(5) Manufacturing of fireworks in this state; and
(6) The importation, storage and sale of fireworks for export from this state, or interstate commerce in fireworks.
[39-2610, added 1997, ch. 246, sec. 2, p. 714.]
The parents or other persons having custody or control of a minor shall be liable for damage caused by the use of fireworks by the minor.
[39-2611, added 1997, ch. 246, sec. 2, p. 715; am. 2012, ch. 257, sec. 10, p. 717.]
This chapter shall be enforced by the department, cities, counties, fire protection districts or other law enforcement agencies of the state.
[39-2612, added 1997, ch. 246, sec. 2, p. 715.]
Except as provided in section 39-2609, Idaho Code, any person violating the provisions of this chapter or any rules issued hereunder is guilty of a misdemeanor. Notwithstanding the existence or use of any other penalty or remedy, any person who violates the provisions of this chapter or any of the rules promulgated pursuant to this chapter may, upon application to or with written consent of the authority having jurisdiction, be enjoined in the manner provided by law from continuing the violation. Fireworks being used in violation of this chapter may be confiscated by the authority having jurisdiction.
[39-2613, added 1997, ch. 246, sec. 2, p. 715; am. 2015, ch. 222, sec. 2, p. 685.]
The department may adopt any rules necessary to carry out the provisions of this chapter which are consistent with the provisions of this chapter and which are necessary to carry out its duties under the provisions of this chapter.
[39-2614, added 1997, ch. 246, sec. 2, p. 715.]
(1) The legislature, having recognized that Alzheimer’s disease and related dementias (ADRD) are a looming state and national public health crisis and having found that it is in the best interest of the state and its citizenry to develop a statewide strategy to mobilize a coordinated state response, finds that it is in the best interest of the state and its citizenry to continue the work of the Alzheimer’s disease and related dementias alliance (ADRD alliance) in developing, implementing, amending, and updating the Idaho Alzheimer’s disease and related dementias strategic plan.
(2) The Idaho department of health and welfare, division of public health, Alzheimer’s disease and related dementias program, is directed to:
(a) Convene the ADRD alliance every five (5) years to update the Alzheimer’s disease and related dementias strategic plan for Idaho. The department shall serve as the focal point in convening the ADRD alliance and shall provide oversight in developing comprehensive, coordinated strategies that address the current and future impact of Alzheimer’s disease, an examination of existing resources available to persons living with Alzheimer’s disease and their caregivers, and information regarding Alzheimer’s disease trends and policies in the state; and
(b) Annually provide a report to the governor and the legislature that shall include, at a minimum, recommendations for state policy relating to ADRD, a review of services, public safety issues for those living with ADRD and their caregivers, public education, and services initiated and coordinated among public and private agencies to meet the needs of Idahoans with ADRD and their caregivers.
[39-2701, added 2023, ch. 151, sec. 1, p. 405.]
When used in this chapter:
(1) "Vector" means an animal, such as an insect, that transmits a disease producing organism from one host to another.
(2) "Vermin" means small animals, including insects, of public health and welfare concern which are difficult to control when they appear in large numbers.
[39-2801, added 2007, ch. 188, sec. 2, p. 548.]
There may be formed, under the provisions of this chapter, districts for the abatement of mosquitoes or other vermin of public health and welfare importance, in any area of the state from territory of one (1) or more counties, one (1) or more cities or towns, or any combination or portion thereof. No district shall contain noncontiguous areas except where a noncontiguous area of land consisting of not less than forty (40) contiguous acres, is separated from the district by public property owned by the federal, state or local government, such noncontiguous land may be included in the district by election or agreement of the private property owners. Any abatement district formed under this chapter, including an interim district formed under the provisions of section 39-2812, Idaho Code, shall be governed by the provisions of section 39-2804, Idaho Code.
[(39-2801A) 39-2801, added 1959, ch. 81, sec. 1, p. 186; am. & redesig. 2007, ch. 188, sec. 3, p. 548.]
(1) Abatement districts may be formed in the following ways:
(a) Upon presentation to the board of county commissioners of a petition requesting the formation of an abatement district, which is signed by property owners of the territory of the proposed abatement district, equal to not less than ten percent (10%) of the property owners within the proposed district, the commissioners shall publish such petition when the following conditions are met: the petition must define the boundaries of the proposed district and assessed tax valuation of the property therein. When the above conditions have been met the county commissioners shall publish the petition, and if after thirty (30) days no protests are received, an election must be held on a regularly scheduled election date specified in section 34-106, Idaho Code. The abatement district shall bear the expense of holding their portion of the election upon their successful formation from the first tax moneys collected. If there are written protests, the county commissioners must hold a public hearing within thirty (30) days after receipt of the written protests and after the hearing hold an election. Notice of the time and place of such election shall be published at least 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 in at least one (1) newspaper having general circulation in the proposed abatement district.
(b) The board of county commissioners may place the question on a ballot during either a primary or general election as to whether to create an abatement district. If the board of county commissioners determines to place such a question on the ballot, it shall be after they define the boundaries of the proposed district and assessed tax valuation of the property therein. Notice of the time and place of such election shall be published at least 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 in at least one (1) newspaper having general circulation in the proposed abatement district.
(2) No person shall be entitled to vote at any election held under the provisions of this chapter unless he shall possess all the qualifications required of electors under the general laws of the state and be a resident of the proposed district. A majority of the votes cast by the qualified electors shall establish the district.
[39-2802, added 1959, ch. 81, sec. 2, p. 186; am. 1995, ch. 118, sec. 56, p. 472; am. 2007, ch. 188, sec. 4, p. 549.]
A board of trustees shall be appointed from those residing within the area of the proposed abatement district to govern the abatement district. The trustees appointed shall at the first meeting of each year elect a president, secretary, and treasurer to serve during the ensuing year. The officers of the board shall be bonded to the extent of five hundred dollars ($500) to five thousand dollars ($5,000) each as set by the county commissioners. The members of the board shall be appointed by the county commissioners of the county they are to represent. When two (2) or more counties or portions thereof comprise an abatement district, the selection of trustees will be made by mutual agreement of the county commissioners concerned. A board of trustees may have three (3) or five (5) members, as determined by the county commissioners. Each trustee shall be a resident property owner and a registered voter. Trustees shall be appointed for four (4) years on staggered appointments. To initiate the board, at least one (1) member shall be appointed for two (2) years, one (1) for three (3) years, and one (1) for four (4) years. Subsequent appointments shall be for four (4) years. Trustees shall serve without compensation but will be reimbursed for necessary expenses involved with the performance of their official duties. The county health officer and the county agent shall be ex officio members of the board. Whenever two (2) or more counties or portions thereof are included in the district, the health officer and county agent for each county shall be ex officio members of the board. The directors or heads of the following state departments or their designated representatives shall be considered ex officio members of the board and may be called upon for their advice and assistance in the handling of abatement problems affecting their direct interests: agriculture, fish and game, lands, transportation, water resources, and health and welfare.
[39-2803, added 1959, ch. 81, sec. 3, p. 186; am. 1974, ch. 18, sec. 226, p. 364; am. 1974, ch. 23, sec. 141, p. 633; am. 2022, ch. 117, sec. 1, p. 425.]
The abatement district board of trustees is authorized:
(1) To appoint a director to direct the activities of the district, in accordance with training and experience necessary to fulfill the duties of the position.
(2) To appoint such other persons as necessary, determine their duties and compensation, and make rules and regulations respecting them.
(3) To take all necessary and proper steps for the control of mosquitoes and other vermin of public health and welfare importance in the district and for these purposes shall have the right to enter upon any and all lands.
(4) To sue and be sued.
(5) To contract to purchase, hold, dispose of, and acquire by gift real and personal property in the name of the district. To exercise the right of eminent domain and for these purposes to condemn any necessary land or rights-of-way in accordance with general law.
(6) To abate as nuisance breeding places of mosquitoes or other vermin of public health and welfare importance within the district or within migrating distance of the district by use of chemicals or permanent control measures and in this connection have the right to enter upon any and all lands.
(7) To work with the lateral ditch water users associations, irrigation, drainage and flood control districts and other cooperating organizations. The board of trustees of the abatement district may supplement funds of cooperating organizations for improvement, repair, maintenance and cleaning of ditches which will temporarily or permanently eliminate mosquito breeding or for other activities which will benefit the district.
(8) To file annually with the board of county commissioners for their approval an estimate of funds required for the next year, a plan of the work to be done, and methods to be employed. No procedure, work or contract for any year of operation shall be done or entered upon until plans and budget have been jointly approved by the board of county commissioners.
(9) To file, annually or by February 1 of the succeeding year, with the board of county commissioners a report setting forth the moneys expended during the previous year, methods employed, and work accomplishments.
(10) To approve a written mosquito or other vermin management plan submitted by a landowner requesting that their property be excluded from treatment by the abatement district. Such plan must be specific to the landowner’s property, provide adequate control measures, and be implemented by the landowner. The abatement district shall refrain from treatment of property included in the approved plan, but shall maintain monitoring and surveillance activities. If the landowner fails to follow the plan or does not provide adequate control measures, the abatement district may abate the mosquitoes or other vermin.
(11) To cooperate with other entities. At its discretion, a district may cooperate with and enter into annual agreements or contract with governmental agencies of this state, other states, agencies of the federal government, private associations, and private individuals in order to carry out the purposes and provisions of this chapter.
[39-2804, added 1959, ch. 81, sec. 4, p. 186; am. 1974, ch. 23, sec. 142, p. 633; am. 1993, ch. 199, sec. 1, p. 548; am. 2007, ch. 188, sec. 5, p. 549.]
The board of county commissioners must levy upon taxable property within the district a tax at a rate not greater than sufficient to raise the amount determined by the board of trustees as approved by the board of county commissioners, as necessary for the operation of the district for the ensuing year. In no event shall such tax exceed one tenth percent (.1%) of the market value for assessment purposes on all taxable property within the district. All taxes thus levied shall be collected in the same manner as other taxes and deposited to the credit of the abatement district and shall be used for no other purposes. Such funds may be withdrawn from the county treasury and upon warrant of the board of trustees of the abatement district, signed by the president of the board and countersigned by its secretary, for the activities of the abatement district.
[39-2805, added 1959, ch. 81, sec. 5, p. 186; am. 1974, ch. 23, sec. 143, p. 633; am. 1993, ch. 199, sec. 2, p. 549; am. 1995, ch. 82, sec. 17, p. 228.]
Contiguous territories may be annexed to organized abatement districts upon petition of a majority of the legal voters in the territory seeking annexation and of the owners of more than half, by assessed value, of the taxable property in such territory, or by written request for annexation of a designated area, submitted to the trustees of the existing abatement district and signed by all members of the board of county commissioners in which county the territory seeking annexation is located. For annexations that will increase the size of an existing contiguous district, there shall be no size restriction on the property being annexed. Noncontiguous areas shall not be annexed unless the area meets the provisions of section 39-2801A, Idaho Code. Upon receiving this petition or written request, the trustees of the existing abatement district must submit the question of annexation to the legal voters of the district at an election held subject to the provisions of section 34-106, Idaho Code.
[39-2806, added 1959, ch. 81, sec. 6, p. 186; am. 1993, ch. 81, sec. 1, p. 211; am. 1995, ch. 118, sec. 57, p. 473; am. 2007, ch. 188, sec. 6, p. 551.]
Two (2) or more contiguous districts may be consolidated. Any district board of trustees may seek consolidation by adoption of a resolution by a majority vote of its members. Consolidation is accomplished by a majority vote of the members of each of the boards of trustees involved in the consolidation. The consolidated districts may enter into arrangements for pooling funds and joint use of personnel, equipment, and supplies. The activities conducted under joint arrangement shall be considered as if conducted directly by the board having jurisdiction over the area concerned. The board of county commissioners must be given written notice of consolidation.
[39-2807, added 1959, ch. 81, sec. 7, p. 186; am. 1993, ch. 199, sec. 3, p. 549.]
It is the purpose of this act to provide additional and cumulative remedies to prevent, abate and control the spread of mosquitoes and/or other vermin affecting the public health, safety and welfare of the people of the state of Idaho. Nothing herein contained shall be construed to abridge or alter rights of action or remedies in equity or under the common law or statutory law, criminal or civil, nor shall any provision of this act, or an act done by virtue thereof, be construed as estopping the state or any municipality or person in the exercise of their rights of equity or under the common law or statutory law to suppress or abate nuisances.
[39-2808, added 1959, ch. 81, sec. 9, p. 186.]
This chapter may be cited as the "Idaho Mosquito and Vermin Abatement Act."
[39-2809, added 1959, ch. 81, sec. 10, p. 186; am. 2007, ch. 188, sec. 7, p. 551.]
Any portion of an abatement district which will not be reasonably benefited by remaining within such district may be withdrawn as in this section provided. Upon receiving a petition signed by fifty (50) or more landowners within the portion desired to be withdrawn from any abatement district, or by a majority of such landowners, if there are less than one hundred (100) landowners within the portion sought to be withdrawn, requesting the withdrawal of such portion from the district on the ground that such portion will not be reasonably benefited by remaining in said district, the board of county commissioners shall fix a time for hearing on such petition and for hearing protests to the continuance of the remaining territory as an abatement district. The hearing shall not be less than ten (10) days nor more than thirty (30) days after the receipt thereof. The board shall, at least one (1) week prior to the time so fixed, publish notice of such hearing by one (1) publication in a newspaper of general circulation in the district, which the board deems most likely to give notice to the inhabitants thereof, of the proposed withdrawal.
[39-2810, as added by 1965, ch. 177, sec. 1, p. 363; am. 2007, ch. 188, sec. 8, p. 551.]
Any person interested may appear at the hearing and object to the withdrawal of the portion from the district, or may object to the continuance of the remaining territory as an abatement district. The board of county commissioners shall consider all objections and shall pass upon the same, and if it finds that portion of the district sought to be withdrawn will not be reasonably benefited by remaining within the district, and the territory not sought to be withdrawn will be reasonably benefited by continuing as an abatement district, it shall grant the petition and enter an order thereon upon its records. In the event the board finds the district will not be reasonably benefited by continuing as an abatement district, it shall enter an order upon its records completely dissolving and terminating the previously existing abatement district. Upon the withdrawal of any territory from an abatement district, as in this section provided, all property acquired for the district shall remain vested in the county and be used for the purposes of the district. Upon complete dissolution of an abatement district as herein provided, all property acquired for the district shall remain vested in the county and be used for any general purpose of the county.
[39-2811, as added by 1965, ch. 177, sec. 1, p. 363; am. 2007, ch. 188, sec. 9, p. 551.]
(1) To provide for the timely response to an elevated or anticipated pest population that may constitute a risk to public health and welfare, the board of county commissioners of each county of this state, in collaboration with duly recognized local and state officials, and after a public hearing is called for such purpose as a special meeting pursuant to the provisions of section 74-204(2), Idaho Code, is hereby granted full power and authority to declare such pests as public health and welfare pests, and to initiate activities to hinder in the potential spread of disease, or adverse economic impact, caused by these pests by taking appropriate steps to intervene in the natural biological cycle of the pests or disease.
(2) Boards of county commissioners are further authorized and empowered, in the event of a disaster or emergency declared by such boards, to make direct appropriations for the purpose of controlling public health and welfare pests as declared pursuant to this section. All moneys raised by direct appropriation shall be placed in a county public health and welfare pest fund, which shall be used exclusively for the control of pests of public health and welfare significance and for payment of all necessary expenses incurred in such control program. In addition, the county may impose an annual property tax assessment pursuant to section 39-2805, Idaho Code, and in accordance with the provisions of sections 63-802 and 63-803, Idaho Code, for the term of the disaster or emergency or until all expenses incurred during the disaster or emergency have been recovered. Such fund shall be a revolving fund and all moneys returned to the fund under any of the provisions of this chapter shall continue to be available for the operation of the control program.
(3) The disaster or emergency declaration of a pest of public health and welfare significance within a county and subsequent pest management activity shall, except as provided herein, place the whole county into an interim abatement district for administrative purposes for no more than two (2) years. The transition of an interim abatement district into a formally defined abatement district, shall be brought to a vote of the electorate within twenty-four (24) months of the declaration, subject to the notification and establishment requirements provided in this chapter and conducted during a general election held on the first Tuesday following the first Monday in November of even numbered years, and if passed, the district shall be recognized and the provisions of this chapter shall be implemented. If the measure fails, the balance of revolving fund moneys shall be distributed as required by state law. In the event the disaster or emergency exceeds the county’s capacity or resources, provisions should be made to request state or federal disaster or emergency funds to address the evolving situation. If the interim abatement district provides the same service as an existing abatement district, the interim abatement district shall exclude any area within an existing abatement district.
[39-2812, added 2007, ch. 188, sec. 10, p. 552; am. 2015, ch. 141, sec. 89, p. 444.]
Any district board of trustees may seek operation of the district by the board of county commissioners by adoption of a resolution by a majority vote of its members and by a majority vote of the board of county commissioners. The board of county commissioners may provide by ordinance that the abatement district board of trustees shall function as an advisory board to the board of county commissioners. If such an ordinance is adopted, the board of county commissioners shall retain and may exercise the powers, duties and responsibilities otherwise charged to the abatement district board of trustees by the provisions of this chapter. Any such ordinance shall set forth the powers, duties, responsibilities, compensation, and terms of office of the abatement advisory board and may provide for any such other rules under which the abatement advisory board shall advise the board of county commissioners and conduct its operations. Any such ordinance may be repealed at any time and, if repealed, the provisions of this chapter shall apply as if no such ordinance had been adopted.
[39-2813, added 2007, ch. 188, sec. 11, p. 553.]
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.
[39-2814, added 2007, ch. 188, sec. 12, p. 553.]
The Western Interstate Nuclear Compact is hereby enacted into law and entered into by the state of Idaho as a party, and is in full force and effect between the state and any other state joining therein in accordance with the terms of the compact, which compact is substantially as follows:
ARTICLE I. POLICY AND PURPOSE
The party states recognize that the proper employment of scientific and technological discoveries and advances in nuclear and related fields and direct and collateral application and adaptation of processes and techniques developed in connection therewith, properly correlated with the other resources of the region, can assist substantially in the industrial progress of the West and the further development of the economy of the region. They also recognize that optimum benefit from nuclear and related scientific or technological resources, facilities and skills requires systematic encouragement, guidance, assistance, and promotion from the party states on a cooperative basis. It is the policy of the party states to undertake such cooperation on a continuing basis. It is the purpose of this compact to provide the instruments and framework for such a cooperative effort in nuclear and related fields, to enhance the economy of the West and contribute to the individual and community well-being of the region’s people.
ARTICLE II. THE BOARD
(a) There is hereby created an agency of the party states to be known as the "Western Interstate Nuclear Board" (hereinafter called the Board). The Board shall be composed of one member from each party state designated or appointed in accordance with the law of the state which he represents and serving and subject to removal in accordance with such law. Any member of the Board may provide for the discharge of his duties and the performance of his functions thereon (either for the duration of his membership or for any lesser period of time) by a deputy or assistant, if the laws of his state make specific provisions therefor. The federal government may be represented without vote if provision is made by federal law for such representation.
(b) The Board members of the party states shall each be entitled to one vote on the Board. No action of the Board shall be binding unless taken at a meeting at which a majority of all members representing the party states are present and unless a majority of the total number of votes on the Board are cast in favor thereof.
(c) The Board shall have a seal.
(d) The Board shall elect annually, from among its members, a chairman, a vice chairman, and a treasurer. The Board shall appoint and fix the compensation of an Executive Director who shall serve at its pleasure and who shall also act as Secretary, and who, together with the Treasurer, and such other personnel as the Board may direct, shall be bonded in such amounts as the Board may require.
(e) The Executive Director, with the approval of the Board, shall appoint and remove or discharge such personnel as may be necessary for the performance of the Board’s functions irrespective of the civil service, personnel or other merit system laws of any of the party states.
(f) The Board may establish and maintain, independently or in conjunction with any one or more of the party states, or its institutions or subdivisions, a suitable retirement system for its full-time employees. Employees of the Board shall be eligible for social security coverage in respect of old age and survivors insurance provided that the Board takes such steps as may be necessary pursuant to federal law to participate in such program of insurance as a governmental agency or unit. The Board may establish and maintain or participate in such additional programs of employee benefits as may be appropriate.
(g) The Board may borrow, accept, or contract for the services of personnel from any state or the United States or any subdivision or agency thereof, from any interstate agency, or from any institution, person, firm or corporation.
(h) The Board may accept for any of its purposes and functions under this compact any and all donations, and grants of money, equipment, supplies, materials and services (conditional or otherwise) from any state or the United States or any subdivision or agency thereof, or interstate agency, or from any institution, person, firm, or corporation, and may receive, utilize, and dispose of the same. The nature, amount and conditions, if any, attendant upon any donation or grant accepted pursuant to this paragraph or upon any borrowing pursuant to paragraph (g) of this Article, together with the identity of the donor, grantor or lender, shall be detailed in the annual report of the Board.
(i) The Board may establish and maintain such facilities as may be necessary for the transacting of its business. The Board may acquire, hold, and convey real and personal property and any interest therein.
(j) The Board shall adopt bylaws, rules, and regulations for the conduct of its business, and shall have the power to amend and rescind these bylaws, rules, and regulations. The Board shall publish its bylaws, rules, and regulations in convenient form and shall file a copy thereof, and shall also file a copy of any amendment thereto, with the appropriate agency or officer in each of the party states.
(k) The Board annually shall make to the governor of each party state, a report covering the activities of the Board for the preceding year, and embodying such recommendations as may have been adopted by the Board, which report shall be transmitted to the legislature of said state. The Board may issue such additional reports as it may deem desirable.
ARTICLE III. FINANCES
(a) The Board shall submit to the governor or designated officer or officers of each party state a budget of its estimated expenditures for such period as may be required by the laws of that jurisdiction for presentation to the legislature thereof.
(b) Each of the Board’s budgets of estimated expenditures shall contain specific recommendations of the amount or amounts to be appropriated by each of the party states. Each of the Board’s requests for appropriations pursuant to a budget of estimated expenditures shall be apportioned equally among the party states. Subject to appropriation by their respective legislatures, the Board shall be provided with such funds by each of the party states as are necessary to provide the means of establishing and maintaining facilities, a staff of personnel, and such activities as may be necessary to fulfill the powers and duties imposed upon and entrusted to the Board.
(c) The Board may meet any of its obligations in whole or in part with funds available to it under Article II(h) of this compact, provided that the Board takes specific action setting aside such funds prior to the incurring of any obligation to be met in whole or in part in this manner. Except where the Board makes use of funds available to it under Article II(h) hereof, the Board shall not incur any obligation prior to the allotment of funds by the party jurisdictions adequate to meet the same.
(d) Any expenses and any other costs for each member of the Board in attending Board meetings shall be met by the Board.
(e) The Board shall keep accurate accounts of all receipts and disbursements. The receipts and disbursements of the Board shall be subject to the audit and accounting procedures established under its bylaws. However, all receipts and disbursements of funds handled by the Board shall be audited yearly by a certified or licensed public accountant and the report of the audit shall be included in and become a part of the annual report of the Board.
(f) The Accounts of the Board shall be open at any reasonable time for inspection to persons authorized by the Board, and duly designated representatives of governments contributing to the Board’s support.
ARTICLE IV. ADVISORY COMMITTEES
The Board may establish such advisory and technical committees as it may deem necessary, membership on which may include but not be limited to private citizens, expert and lay personnel, representatives of industry, labor, commerce, agriculture, civic associations, medicine, education, voluntary health agencies, and officials of local, State and Federal Government, and may cooperate with and use the services of any such committees and the organizations which they represent in furthering any of its activities under this compact.
ARTICLE V. POWERS
The Board shall have power to–
(a) Encourage and promote cooperation among the party states in the development and utilization of nuclear and related technologies and their application to industry and other fields.
(b) Ascertain and analyze on a continuing basis the position of the West with respect to the employment in industry of nuclear and related scientific findings and technologies.
(c) Encourage the development and use of scientific advances and discoveries in nuclear facilities, energy, materials, products, by-products, and all other appropriate adaptations of scientific and technological advances and discoveries.
(d) Collect, correlate, and disseminate information relating to the peaceful uses of nuclear energy, materials, and products, and other products and processes resulting from the application of related science and technology.
(e) Encourage the development and use of nuclear energy, facilities, installations, and products as part of a balanced economy.
(f) Conduct, or cooperate in conducting, programs of training for state and local personnel engaged in any aspects of:
Nuclear industry, medicine, or education, or the promotion or regulation thereof.
Applying nuclear scientific advances or discoveries, and any industrial commercial or other processes resulting therefrom.
The formulation or administration of measures designed to promote safety in any matter related to the development, use or disposal of nuclear energy, materials, products, by-products, installations, or wastes, or to safety in the production, use and disposal of any other substances peculiarly related thereto.
(g) Organize and conduct, or assist and cooperate in organizing and conducting, demonstrations or research in any of the scientific, technological or industrial fields to which this compact relates.
(h) Undertake such nonregulatory functions with respect to non-nuclear sources of radiation as may promote the economic development and general welfare of the West.
(i) Study industrial, health, safety, and other standards, laws, codes, rules, regulations, and administrative practices in or related to nuclear fields.
(j) Recommend such changes in, or amendments or additions to the laws, codes, rules, regulations, administrative procedures and practices or local laws or ordinances of the party states of their subdivisions in nuclear and related fields, as in its judgment may be appropriate. Any such recommendations shall be made through the appropriate state agency, with due consideration of the desirability of uniformity but shall also give appropriate weight to any special circumstances which may justify variations to meet local conditions.
(k) Consider and make recommendations designed to facilitate the transportation of nuclear equipment, materials, products, by-products, wastes, and any other nuclear or related substances, in such manner and under such conditions as will make their availability or disposal practicable on an economic and efficient basis.
(l) Consider and make recommendations with respect to the assumption of and protection against liability actually or potentially incurred in any phase of operations in nuclear and related fields.
(m) Advise and consult with the federal government concerning the common position of the party states or assist party states with regard to individual problems where appropriate in respect to nuclear and related fields.
(n) Cooperate with the Atomic Energy Commission, the National Aeronautics and Space Administration, the Office of Science and Technology, or any agencies successor thereto, any other officer or agency of the United States, and any other governmental unit or agency or officer thereof, and with any private persons or agencies in any of the fields of its interest.
(o) Act as licensee, contractor or sub-contractor of the United States Government or any party state with respect to the conduct of any research activity requiring such license or contract and operate such research facility or undertake any program pursuant thereto, provided that this power shall be exercised only in connection with the implementation of one or more other powers conferred upon the Board by this compact.
(p) Prepare, publish and distribute (with or without charge) such reports, bulletins, newsletters or other materials as it deems appropriate.
(q) Ascertain from time to time such methods, practices, circumstances, and conditions as may bring about the prevention and control of nuclear incidents in the area comprising the party states, to coordinate the nuclear incident prevention and control plans and the work relating thereto of the appropriate agencies of the party states and to facilitate the rendering of aid by the party states to each other in coping with nuclear incidents.
The Board may formulate and, in accordance with need from time to time, revise a regional plan or regional plans for coping with nuclear incidents within the territory of the party states as a whole or within any subregion or subregions of the geographic area covered by this compact.
Any nuclear incident plan in force pursuant to this paragraph shall designate the official or agency in each party state covered by the plan who shall coordinate requests for aid pursuant to Article VI of this compact and the furnishing of aid in response thereto.
Unless the party states concerned expressly otherwise agree, the Board shall not administer the summoning and dispatching of aid, but this function shall be undertaken directly by the designated agencies and officers of the party states.
However, the plan or plans of the Board in force pursuant to this paragraph shall provide for reports to the Board concerning the occurrence of nuclear incidents and the requests for aid on account thereof, together with summaries of the actual working and effectiveness of mutual aid in particular instances.
From time to time, the Board shall analyze the information gathered from reports of aid pursuant to Article VI and such other instances of mutual aid as may have come to its attention, so that experience in the rendering of such aid may be available.
(r) Prepare, maintain, and implement a regional plan or regional plans for carrying out the duties, powers, or functions conferred upon the Board by this compact.
(s) Undertake responsibilities imposed or necessarily involved with regional participation pursuant to such cooperative programs of the federal government as are useful in connection with the fields covered by this compact.
ARTICLE VI. MUTUAL AID
(a) Whenever a party state, or any state or local governmental authorities therein, request aid from any other party state pursuant to this compact in coping with a nuclear incident, it shall be the duty of the requested state to render all possible aid to the requesting state which is consonant with the maintenance of protection of its own people.
(b) Whenever the officers or employees of any party state are rendering outside aid pursuant to the request of another party state under this compact, the officers or employees of such state shall, under the direction of the authorities of the state to which they are rendering aid, have the same powers, duties, rights, privileges and immunities as comparable officers and employees of the state to which they are rendering aid.
(c) No party state or its officers or employees rendering outside aid pursuant to this compact shall be liable on account of any act or omission on their part while so engaged, or on account of the maintenance or use of any equipment or supplies in connection therewith.
(d) All liability that may arise either under the laws of the requesting state or under the laws of the aiding state or under the laws of a third state on account of or in connection with a request for aid, shall be assumed and borne by the requesting state.
(e) Any party state rendering outside aid pursuant to this compact shall be reimbursed by the party state receiving such aid for any loss or damage to, or expense incurred in the operation of any equipment answering a request for aid, and for the cost of all materials, transportation, wages, salaries and maintenance of officers, employees and equipment incurred in connection with such requests: provided that nothing herein contained shall prevent any assisting party state from assuming such loss, damage, expense or other cost or from loaning such equipment or from donating such services to the receiving party state without charge or cost.
(f) Each party state shall provide for the payment of compensation and death benefits to injured officers and employees and the representatives of deceased officers and employees in case officers or employees sustain injuries or death while rendering outside aid pursuant to this compact, in the same manner and on the same terms as if the injury or death were sustained within the state by or in which the officer or employee was regularly employed.
ARTICLE VII. SUPPLEMENTARY AGREEMENTS
(a) To the extent that the Board has not undertaken an activity or project which would be within its power under the provisions of Article V of this compact, any two or more of the party states (acting by their duly constituted administrative officials) may enter into supplementary agreements for the undertaking and continuance of such an activity or project. Any such agreement shall specify the purpose or purposes; its duration and the procedure for termination thereof or withdrawal therefrom; the method of financing and allocating the costs of the activity or project; and such other matters as may be necessary or appropriate.
No such supplementary agreement entered into pursuant to this article shall become effective prior to its submission to and approval by the Board. The Board shall give such approval unless it finds that the supplementary agreement or activity or project contemplated thereby is inconsistent with the provisions of this compact or a program or activity conducted by or participated in by the Board.
(b) Unless all of the party states participate in a supplementary agreement, any cost or costs thereof shall be borne separately by the states party thereto. However, the Board may administer or otherwise assist in the operation of any supplementary agreement.
(c) No party to a supplementary agreement entered into pursuant to this article shall be relieved thereby of any obligation or duty assumed by said party state under or pursuant to this compact, except that timely and proper performance of such obligation or duty by means of the supplementary agreement may be offered as performance pursuant to the compact.
(d) The provisions to this Article shall apply to supplementary agreements and activities thereunder, but shall not be construed to repeal or impair any authority which officers or agencies of party states may have pursuant to other laws to undertake cooperative arrangements or projects.
ARTICLE VIII. OTHER LAWS AND REGULATIONS
Nothing in this compact shall be construed to–
(a) Permit or require any person or other entity to avoid or refuse compliance with any law, rule, regulation, order or ordinance of a party state or subdivision thereof now or hereafter made, enacted or in force.
(b) Limit, diminish, or otherwise impair jurisdiction exercised by the Atomic Energy Commission, any agency successor thereto, or any other federal department, agency or officer pursuant to and in conformity with any valid and operative act of Congress; nor limit, diminish, affect, or otherwise impair jurisdiction exercised by any officer or agency of a party state, except to the extent that the provisions of this compact may provide therefor.
(c) Alter the relations between and the respective internal responsibilities of the government of a party state and its subdivisions.
(d) Permit or authorize the Board to own or operate any facility, reactor, or installation for industrial or commercial purposes.
ARTICLE IX. ELIGIBLE PARTIES, ENTRY INTO
FORCE AND WITHDRAWAL
(a) Any or all of the states of Alaska, Arizona, California, Colorado, Hawaii, Idaho, Montana, Nevada, New Mexico, Oregon, Utah, Washington, and Wyoming shall be eligible to become party to this compact.
(b) As to any eligible party state, this compact shall become effective when its legislature shall have enacted the same into law: provided, that it shall not become initially effective until enacted into law by five states.
(c) Any party state may withdraw from this compact by enacting a statute repealing the same, but no such withdrawal shall take effect until two years after the governor of the withdrawing state has given notice in writing of the withdrawal to the governors of all other party states. No withdrawal shall affect any liability already incurred by or chargeable to a party state prior to the time of such withdrawal.
(d) Guam and American Samoa, or either of them may participate in the compact to such extent as may be mutually agreed by the Board and the duly constituted authorities of Guam or American Samoa, as the case may be. However, such participation shall not include the furnishing or receipt of mutual aid pursuant to Article VI, unless that Article has been enacted or otherwise adopted so as to have the full force and effect of law in the jurisdiction affected. Neither Guam nor American Samoa shall be entitled to voting participation on the Board, unless it has become a full party to the compact.
ARTICLE X. SEVERABILITY AND CONSTRUCTION
The provisions of this compact and of any supplementary agreement entered into hereunder shall be severable and if any phrase, clause, sentence or provision of this compact or such supplementary agreement is declared to be contrary to the constitution of any participating state or of the United States or the applicability thereof to any government, agency, person, or circumstance is held invalid, the validity of the remainder of this compact or such supplementary agreement and the applicability thereof to any government, agency, person or circumstance shall not be affected thereby. If this compact or any supplementary agreement entered into hereunder shall be held contrary to the constitution of any state participating therein, the compact or such supplementary agreement shall remain in full force and effect as to the remaining states and in full force and effect as to the state affected as to all severable matters. The provisions of this compact and of any supplementary agreement entered into pursuant thereto shall be liberally construed to effectuate the purposes thereof.
[39-3020, added 1969, ch. 34, sec. 1, p. 61.]
The member of the western interstate nuclear board representing the state of Idaho shall be appointed by the governor and serve at his pleasure.
[39-3021, added 1969, ch. 34, sec. 2, p. 61.]
The alternate required pursuant to article II(a) of the compact shall be designated by the western interstate nuclear board member representing the state of Idaho, and shall serve at his pleasure in an order specified by him.
[39-3022, added 1969, ch. 34, sec. 3, p. 61.]
Pursuant to article II(j) of the compact, the western interstate nuclear board shall file copies of its by-laws and any amendments thereto with the secretary of state and the executive director of the office of nuclear energy development.
[39-3023, added 1969, ch. 34, sec. 4, p. 61.]
The laws of the state of Idaho and any benefits payable thereunder shall apply and be payable to any persons dispatched to another state pursuant to article VI of the compact. If the aiding personnel are officers or employees of the state of Idaho or any subdivisions thereof, they shall be entitled to the same workmen’s compensation or other benefits in case of injury or death to which they would have been entitled if injured or killed while engaged in coping with a nuclear incident in their jurisdictions of regular employment.
[39-3024, added 1969, ch. 34, sec. 5, p. 61.]
The Northwest Interstate Compact on Low-level Radioactive Waste Management is hereby enacted into law and entered into by the state of Idaho as a party, and is in full force and effect between the state and any other state joining therein in accordance with the terms of the compact, which compact is substantially as follows:
NORTHWEST INTERSTATE COMPACT ON
LOW-LEVEL RADIOACTIVE WASTE MANAGEMENT
ARTICLE I — Policy and Purpose
The party states recognize that low-level radioactive wastes are generated by essential activities and services that benefit the citizens of the states. It is further recognized that the protection of the health and safety of the citizens of the party states and the most economical management of low-level radioactive wastes can be accomplished through cooperation of the states in minimizing the amount of handling and transportation required to dispose of such wastes and through the cooperation of the states in providing facilities that serve the region. It is the policy of the party states to undertake the necessary cooperation to protect the health and safety of the citizens of the party states and to provide for the most economical management of low-level radioactive wastes on a continuing basis. It is the purpose of this compact to provide the means for such a cooperative effort among the party states so that the protection of the citizens of the states and the maintenance of the viability of the states’ economies will be enhanced while sharing the responsibilities of radioactive low-level waste management.
ARTICLE II — Definitions
As used in this compact:
(1) "Facility" means any site, location, structure, or property used or to be used for the storage, treatment, or disposal of low-level waste, excluding federal waste facilities;
(2) "Low-level waste" means waste material which contains radioactive nuclides emitting primarily beta or gamma radiation, or both, in concentrations or quantities which exceed applicable federal or state standards for unrestricted release. Low-level waste does not include waste containing more than ten (10) nanocuries of transuranic contaminants per gram of material, nor spent reactor fuel, nor material classified as either high-level waste or waste which is unsuited for disposal by near-surface burial under any applicable federal regulations;
(3) "Generator" means any person, partnership, association, corporation, or any other entity whatsoever which, as a part of its activities, produces low-level radioactive waste;
(4) "Host state" means a state in which a facility is located.
ARTICLE III — Regulatory Practices
Each party state hereby agrees to adopt practices which will require low-level waste shipments originating within its borders and destined for a facility within another party state to conform to the applicable packaging and transportation requirements and regulations of the host state. Such practices shall include:
(1) Maintaining an inventory of all generators within the state that have shipped or expect to ship low-level waste to facilities in another party state;
(2) Periodic unannounced inspection of the premises of such generators and the waste management activities thereon;
(3) Authorization of the containers in which such waste may be shipped, and a requirement that generators use only that type of container authorized by the state;
(4) Assurance that inspections of the carriers which transport such waste are conducted by proper authorities, and appropriate enforcement action taken for violations;
(5) After receiving notification from a host state that a generator within the party state is in violation of applicable packaging or transportation standards, the party state will take appropriate action to assure that such violations do not recur. Such action may include inspection of every individual low-level waste shipment by that generator.
Each party state may impose fees upon generators and shippers to recover the cost of the inspections and other practices under this article. Nothing in this article shall be construed to limit any party state’s authority to impose additional or more stringent standards on generators or carriers than those required under this article.
ARTICLE IV — Regional Facilities
(1) Facilities located in any party state, other than facilities established or maintained by individual low-level waste generators for the management of their own low-level waste, shall accept low-level waste generated in any party state if such waste has been packaged and transported according to applicable laws and regulations.
(2) No facility located in any party state may accept low-level waste generated outside of the region comprised of the party states, except as provided in article V.
(3) Until such time as paragraph (2) of article IV takes effect, facilities located in any party state may accept low-level waste generated outside of any of the party states only if such waste is accompanied by a certificate of compliance issued by an official of the state in which such waste shipment originated. Such certificate shall be in such form as may be required by the host state, and shall contain at least the following:
(A) The generator’s name and address;
(B) A description of the contents of the low-level waste container;
(C) A statement that the low-level waste being shipped has been inspected by the official who issued the certificate or by his agent or by a representative of the United States nuclear regulatory commission, and found to have been packaged in compliance with applicable federal regulations and such additional requirements as may be imposed by the host state;
(D) A binding agreement by the state of origin to reimburse any party state for any liability or expense incurred as a result of an accidental release of such waste during shipment or after such waste reaches the facility.
(4) Each party state shall cooperate with the other party states in determining the appropriate site of any facility that might be required within the region comprised of the party states, in order to maximize public health and safety while minimizing the use of any one (1) party state as the host of such facilities on a permanent basis. Each party state further agrees that decisions regarding low-level waste management facilities in their region will be reached though a good faith process which takes into account the burdens borne by each of the party states as well as the benefits each has received.
(5) The party states recognize that the issue of hazardous chemical waste management is similar in many respects to that of low-level waste management. Therefore, in consideration of the state of Washington allowing access to its low-level waste disposal facility by generators in other party states, party states such as Oregon and Idaho which host hazardous chemical waste disposal facilities will allow access to such facilities by generators within other party states. Nothing in this compact shall be construed to prevent any party state from limiting the nature and type of hazardous chemical or low-level wastes to be accepted at facilities within its borders or from ordering the closure of such facilities, so long as such action by a host state is applied equally to all generators within the region comprised of the party states.
(6) Any host state may establish a schedule of fees and requirements related to its facility, to assure that closure, perpetual care, and maintenance and contingency requirements are met, including adequate bonding.
ARTICLE V — Northwest Low-Level Waste Compact Committee
The governor of each party state shall designate one (1) official of that state as the person responsible for administration of this compact. The officials so designated shall together comprise the northwest low-level waste compact committee. The committee shall meet as required to consider matters arising under this compact. The parties shall inform the committee of existing regulations concerning low-level waste management in their states, and shall afford all parties a reasonable opportunity to review and comment upon any proposed modifications in such regulations. Notwithstanding any provision of article IV to the contrary, the committee may enter into arrangements with states, provinces, individual generators, or regional compact entities outside the region comprised of the party states for access to facilities on such terms and conditions as the committee may deem appropriate. However, it shall require a two-thirds (2/3) vote of all such members, including the affirmative vote of the member of any party state in which a facility affected by such arrangement is located, for the committee to enter into such arrangement.
ARTICLE VI — Eligible Parties and Effective Date
(1) Each of the following states is eligible to become a party to this compact: Alaska, Hawaii, Idaho, Montana, Oregon, Utah, Washington, and Wyoming. As to any eligible party, this compact shall become effective upon enactment into law by that party, but it shall not become initially effective until enacted into law by two (2) states. Any party state may withdraw from this compact by enacting a statute repealing its approval.
(2) After the compact has initially taken effect pursuant to paragraph (1) of this article, any eligible party state may become a party to this compact by the execution of an executive order by the governor of the state. Any state which becomes a party in this manner shall cease to be a party upon the final adjournment of the next general or regular session of its legislature or July 1, 1983, whichever occurs first, unless the compact has by then been enacted as a statute by that state.
(3) Paragraph (2) of article IV of this compact shall take effect on July 1, 1983, if consent is given by congress. As provided in public law 96-573, congress may withdraw its consent to the compact after every five (5) year period.
ARTICLE VII — Severability
If any provision of this compact, or its application to any person or circumstance, is held to be invalid, all other provisions of this compact, and the application of all of its provisions to all other persons and circumstances, shall remain valid; and to this end the provisions of this compact are severable.
[39-3025, added 1981, ch. 345, sec. 1, p. 714.]
The state department of environmental quality shall adopt the practices and may impose the fees authorized under article III of the compact, except that the Idaho state police and the public utilities commission shall retain their existing enforcement and inspection authority relating to carriers. The board of environmental quality shall adopt such rules as may be necessary to enable the department of environmental quality to carry out the provisions of this section.
[39-3026, added 1981, ch. 345, sec. 2, p. 718; am. 2000, ch. 469, sec. 95, p. 1548; am. 2001, ch. 103, sec. 29, p. 273; am. 2007, ch. 83, sec. 5, p. 226.]
No law shall be enacted by the State of Idaho to prohibit the use of nuclear energy for the generation of electricity, unless the proposed measure shall have first been submitted to the electorate at the next earliest general election. The results of such submission of the question to the electorate shall be advisory in nature, and shall not prevent the legislature from acting in any manner on the measure.
[39-3027, added 1982, Init. Measure 3.]
(1) Legislative declaration. The legislature hereby finds and declares that the existence of uranium mill tailings at active and inactive mill operations could pose a potential radiation health hazard. This section is enacted to protect the public health, safety, and welfare by authorizing the department of environmental quality to cooperate with the federal government in providing for the stabilization, disposal, and control of such tailings in a safe and environmentally sound manner.
(2) Terms defined. For the purposes of this section, the terms "processing site" and "residual radioactive material" shall have the meanings specified in section 101(6) and (7), respectively, of public law 95-604, 42 U.S.C., section 7901, et seq., as from time to time amended.
(3) Authorization to participate. The department of environmental quality is hereby authorized to participate in federal implementation of the "Uranium Mill Tailings Radiation Control Act of 1978" (P.L. 95-604), and for such purpose the agency may:
(a) Enter into cooperative agreements with the secretary of energy to perform remedial actions at processing sites designated by the secretary;
(b) Obtain written consent from the record owner of a designated processing site to perform remedial actions at such site;
(c) Provide for reimbursement for the actual cost of any remedial action in accordance with the terms of public law 95-604;
(d) Acquire and dispose of any designated processing site, including any interest in such site, and any site to be used for the permanent disposition and stabilization of residual radioactive materials;
(e) Participate in the selection and performance of remedial actions.
(4) Financial participation.
(a) The legislature accepts in principle the provisions of section 107(a) of public law 95-604 which requires the state to pay ten percent (10%) of the actual cost of any remedial action and administrative costs from nonfederal moneys, reserving, however, the right and authority to limit through yearly appropriations the amount of state moneys committed to such costs.
(b) The state of Idaho may receive all or a share of the net profits derived from the recovery of minerals from residual radioactive materials at any designated processing site within the state in accordance with the provisions of section 108(b) of public law 95-604.
[39-3028, added 1984, ch. 257, sec. 1, p. 617; am. 2007, ch. 83, sec. 6, p. 226.]
It is the policy of this state to provide treatment services for its citizens living with mental illness and/or substance use disorder, acknowledging that these illnesses cause intense human suffering and severe social and economic loss to the state. Recognizing that there is insufficient funding to meet the many needs of Idahoans with behavioral health disorders, it is critical that the behavioral health system efficiently use existing and future resources and increase accountability for services and funding. Additionally, the system needs to distinguish between and accommodate for the difference in the treatment and support services for children, youth, adults and the transitions between them. Regional behavioral health services, providing early and appropriate diagnosis and treatment, have proven to be effective in reducing the adverse impact of these disorders and valuable in creating the possibility of recovery. Families play a key role in the successful treatment of behavioral health disorders and provision of services. Participation by consumers and their families in system governance is critical to ensure ongoing system improvements. Acknowledging the policy of the state to provide behavioral health services to all citizens in need of such care, it is the purpose of this chapter to delegate to the state behavioral health authority the responsibility and authority to establish and maintain regional behavioral health services in order to extend appropriate mental health and substance use disorder treatment services to its citizens within all regions of the state.
[39-3121, added 2014, ch. 43, sec. 2, p. 107.]
(1) "Adult" means an individual eighteen (18) years of age or older.
(2) "Applicant" means an adult who is seeking mental health services through the department who has completed, or has had completed on the adult’s behalf, an application for mental health services.
(3) "Behavioral health" means an integrated system for evaluation and treatment of mental health and substance use disorders.
(4) "Department" means the Idaho department of health and welfare.
(5) "Eligibility screening" means the collection and review of information directly related to the applicant’s mental health and level of functioning that the department uses to determine whether an applicant is eligible for adult mental heath services available through the department.
(6) "Family support partner" means an individual who:
(a) Has lived experience caring for a child with a behavioral health diagnosis, mental illness or mental illness with a co-occurring substance use disorder;
(b) Has specialized training related to such care; and
(c) Has successfully navigated the various systems of care.
(7) "Participant" means a person who is receiving mental health services through the department.
(8) "Peer support specialist" means an individual in recovery from mental illness or mental illness with a co-occurring substance use disorder who uses his or her lived experience and specialized training to assist other individuals in their own recovery.
(9) "Recovery coach" means an individual who has lived experience of recovery from a substance use disorder or co-occurring mental illness, either as a person in recovery or as a family member or significant other who uses his or her lived experience and specialized training to assist other individuals in their own recovery.
(10) "Region" means the administrative regions as defined by the department of health and welfare. Two (2) or more regions may consolidate for the purposes of this chapter. For the purposes of this chapter, regions will be consistent with judicial districts.
(11) "Serious mental illness" or "SMI" means any of the following psychiatric illnesses as defined by the American psychiatric association in the diagnostic and statistical manual of mental disorders (DSM-5-TR):
(a) Schizophrenia spectrum and other psychotic disorders;
(b) Bipolar disorders (mixed, manic, or depressive);
(c) Major depressive disorders (single episode or recurrent); or
(d) Obsessive-compulsive disorders.
(12) "Serious and persistent mental illness" or "SPMI" means a primary diagnosis under DSM-5-TR of schizophrenia, schizoaffective disorder, bipolar I disorder, bipolar II disorder, major depressive disorder recurrent severe, delusional disorder, or psychotic disorder not otherwise specified for a maximum of one hundred twenty (120) days without a conclusive diagnosis. The psychiatric disorder must be of sufficient severity to cause a substantial disturbance in role performance or coping skills in at least two (2) of the following functional areas in the last six (6) months:
(a) Vocational or educational;
(b) Financial;
(c) Social relationships or support;
(d) Family;
(e) Basic daily living skills;
(f) Housing;
(g) Community or legal; or
(h) Health or medical.
(13) "Supportive services" means ancillary nonclinical services provided as part of community family support and recovery support to promote and sustain the ability of individuals with behavioral health disorders to live in the community and avoid institutionalization. Supportive services include services provided by a family support partner, peer support specialist or recovery coach.
[39-3122, added 2014, ch. 43, sec. 3, p. 108; am. 2018, ch. 34, sec. 1, p. 64; am. 2025, ch. 178, sec. 12, p. 847.]
The Idaho department of health and welfare is hereby designated the state mental health authority and the state substance use disorder authority, hereinafter referred to as the state behavioral health authority. The state behavioral health authority is responsible for overseeing the state of Idaho’s behavioral health system of care. The department shall fulfill this role through a collaborative process, taking into consideration and incorporating whenever reasonably possible the recommendations and evaluations of the state behavioral health planning council in all statewide efforts to expand, improve, modify or transform the behavioral health service delivery system of the state. The provisions of this section shall not prohibit appropriations to executive agencies or the judiciary to fund community-based behavioral health treatment within their target population. The behavioral health authority shall report utilization, performance, outcome and other quality assurance data to the state behavioral health planning council on an annual basis.
[(39-3123) 39-3124, added 1969, ch. 202, sec. 2, p. 589; am. 1973, ch. 87, sec. 9, p. 137; am. 1974, ch. 23, sec. 147, p. 633; am. 2006, ch. 277, sec. 1, p. 849; am. and redesig. 2014, ch. 43, sec. 5, p. 108; am. 2026, ch. 25, sec. 6, p. 119.]
The behavioral health authority shall establish the Idaho behavioral health cooperative to advise it on issues related to the coordinated delivery of community-based behavioral health services. The membership shall include representatives from the Idaho state judiciary, the Idaho department of correction, the Idaho department of juvenile corrections, the office of drug policy, the Idaho association of counties, the state behavioral health planning council, an adult consumer of services, a family member of a youth consumer of services, the state department of education and the Idaho department of health and welfare, at a minimum, but may also include other members as deemed necessary by the behavioral health authority. The Idaho behavioral health cooperative shall meet quarterly, with additional meetings called at the request of the state behavioral health authority.
[39-3124, added 2014, ch. 43, sec. 6, p. 108.]
(1) A state behavioral health planning council, hereinafter referred to as the planning council, shall be established to serve as an advocate for children and adults with behavioral health disorders; to advise the state behavioral health authority on issues of concern, on policies and on programs and to provide guidance to the state behavioral health authority in the development and implementation of the state behavioral health systems plan; to monitor and evaluate the allocation and adequacy of behavioral health services within the state on an ongoing basis; to monitor and evaluate the effectiveness of state laws that address behavioral health services; to ensure that individuals with behavioral health disorders have access to prevention, treatment and rehabilitation services; to serve as a vehicle for policy and program development; and to present to the governor, the judiciary and the legislature by June 30 of each year a report on the council’s activities and an evaluation of the current effectiveness of the behavioral health services provided directly or indirectly by the state to adults and children. The planning council shall establish readiness and performance criteria for the regional boards to accept and maintain responsibility for family support and recovery support services. The planning council shall evaluate regional board adherence to the readiness criteria and make a determination if the regional board has demonstrated readiness to accept responsibility over the family support and recovery support services for the region.
(2) The planning council shall be appointed by the governor and be comprised of no more than fifty percent (50%) state employees or providers of behavioral health services. Membership shall also reflect to the extent possible the collective demographic characteristics of Idaho’s citizens. The planning council membership shall include representation from consumers; families of adults with serious mental illness or substance use disorders; behavioral health advocates; prevention specialists; principal state agencies and the judicial branch with respect to behavioral health, education, vocational rehabilitation, adult correction, juvenile justice and law enforcement, title XIX of the social security act and other entitlement programs; and public and private entities concerned with the need, planning, operation, funding and use of mental health services or substance use disorders, and related support services. The planning council may include members of the legislature.
(3) The planning council members will serve a term of two (2) years or at the pleasure of the governor, provided however, that of the members first appointed, one-half (1/2) of the appointments shall be for a term of one (1) year and one-half (1/2) of the appointments shall be for a term of two (2) years. The governor will appoint a chair and a vice-chair whose terms will be two (2) years.
(4) The council may establish subcommittees at its discretion.
[39-3125, added 2006, ch. 277, sec. 3, p. 849; am. 2014, ch. 43, sec. 7, p. 109; am. 2018, ch. 34, sec. 2, p. 65; am. 2026, ch. 25, sec. 8, p. 120.]
Recognizing both the need of every citizen to receive the best behavioral health services that the state is able to provide within budgetary confines and the disproportionate ability of counties to finance behavioral health services, the state behavioral health authority shall designate regions and be responsible for establishing regional behavioral health centers for all areas of the state. In the establishment of regions, primary consideration will be given to natural population groupings and service areas, the regions previously designated for the establishment of other health services, the behavioral health needs of the people within the proposed regions, and the appropriate maximal use of available funding.
[(39-3126) 39-3125, added 1969, ch. 202, sec. 3, p. 589; am. and redesig. 2006, ch. 277, sec. 2, p. 849; am. 2014, ch. 43, sec. 8, p. 110.]
The director of the department of health and welfare shall coordinate services between the regional behavioral health centers and the state psychiatric hospitals.
[39-3127, added 2014, ch. 43, sec. 9, p. 110; am. 2026, ch. 25, sec. 9, p. 120.]
The state behavioral health authority may contract for the lease of facilities appropriate for the establishment of behavioral health centers. In order to encourage the development of comprehensive and integrated health care and whenever feasible and consistent with behavioral health treatment, these facilities shall be in or near facilities within the region housing other health services.
[39-3128, added 2014, ch. 43, sec. 10, p. 110.]
The director of the department of health and welfare shall appoint a division administrator to manage the regional behavioral health centers and shall supervise its program; shall prescribe uniform standards of treatment, services and care provided by the regional behavioral health centers; shall set the professional qualifications for staff positions; and make such other policy as are necessary and proper to carry out the purposes and intent of this chapter.
[39-3129, added 2014, ch. 43, sec. 12, p. 110; am. 2026, ch. 25, sec. 10, p. 121.]
In such regions where natural population groupings overlap state boundaries, an interstate regional behavioral health service may be established jointly with a neighboring state or states. In such instances, the state behavioral health authority may enter into reciprocal agreements with these states to either share the expenses of the service in proportion to the population served; to allow neighboring states to buy services from Idaho; or to allow Idaho to purchase services that are otherwise not available to its citizens.
[(39-3130) (39-3127) 39-3126, added 1969, ch. 202, sec. 4, p. 589; am. and redesig. 2006, ch. 277, sec. 4, p. 850; am. and redesig. 2014, ch. 43, sec. 13, p. 111.]
The regional behavioral health center shall provide or arrange for the delivery of services that, combined with community family support and recovery support services provided through the regional behavioral health boards, medicaid and services delivered through a private provider network, will lead to the establishment of a comprehensive regional behavioral health system of care that incorporates patient choice and family involvement to the extent reasonably practicable and medically and professionally appropriate. The regional behavioral health center shall provide or arrange for the delivery of the following services:
(1) Treatment services for individuals who do not have other benefits available to meet their behavioral health needs as resources allow including, but not limited to, psychiatric services, medication management, rehabilitative and community-based services, outpatient and intensive outpatient services, assertive community treatment, case management and residential care;
(2) Evaluation and intervention for individuals experiencing a behavioral health emergency;
(3) Hospital precare and postcare services, in cooperation with state and community psychiatric hospitals, for individuals who have been committed to the custody of the director of health and welfare pursuant to sections 18-212 and 66-329, Idaho Code, or who are under an involuntary treatment order pursuant to chapter 24, title 16, Idaho Code;
(4) Evaluation and securing mental health treatment services as ordered by a court for individuals pursuant to section 19-2524, 20-511A or 20-519B, Idaho Code; and
(5) Evaluation and securing treatment services for individuals who are accepted into mental health courts.
[(39-3131) (39-3128) 39-3127, added 1969, ch. 202, sec. 5, p. 589; am. and redesig. 2006, ch. 277, sec. 5, p. 851; am. and redesig. 2014, ch. 43, sec. 15, p. 111; am. 2026, ch. 25, sec. 11, p. 121.]
(1) Individuals may access adult mental health services administered by the department through an eligibility screening. The eligibility screening must be directly related to the participant’s mental illness and level of functioning and based on the eligibility criteria described in this section.
(2) The department may limit or prioritize mental health services, define eligibility criteria, or establish the number of persons eligible based on such factors as court-ordered services, availability of funding, the degree of financial need, or the degree of clinical need.
(3) To be eligible for voluntary mental health services pursuant to section 39-3131, Idaho Code, an individual must:
(a) Be an adult;
(b) Be a resident of the state of Idaho; and
(c) Have a primary diagnosis of SMI or SPMI.
[39-3131A, added 2025, ch. 178, sec. 13, p. 848.]
There is hereby created and established in each region a regional behavioral health board. It is legislative intent that the regional behavioral health boards operate and be recognized not as a state agency or department, but as governmental entities whose creation has been authorized by the state, much in the manner as other single purpose districts. However, the regional behavioral health boards shall have no authority to levy taxes. For the purposes of section 59-1302(15), Idaho Code, the seven (7) regional behavioral health boards created pursuant to this chapter shall be deemed governmental entities. The regional behavioral health boards are authorized to provide the community family support and recovery support services identified in section 39-3135(7), Idaho Code. The services identified in section 39-3135(7), Idaho Code, shall not be construed to restrict the services of the regional behavioral health board solely to these categories.
[39-3132, added 2014, ch. 43, sec. 16, p. 112.]
Each regional behavioral health board shall annually elect from within its membership an executive committee of five (5) members empowered to make fiscal, legal and business decisions on behalf of the full board or join with another governmental entity that can fulfill the same management infrastructure function. If the regional behavioral health board elects to create its own internal executive committee, the membership shall be representative of the regional behavioral health board membership and must, at a minimum, include one (1) mental health consumer or advocate and one (1) substance use disorder consumer or advocate. The executive committees or the partner public entity shall have the power and duty, on behalf of the regional behavioral health boards, to:
(1) Establish a fiscal control policy as required by the state controller;
(2) Enter into contracts and grants with other governmental and private agencies, and this chapter hereby authorizes such other agencies to enter into contracts with the regional behavioral health boards as deemed necessary to fulfill the duties imposed upon the board to promote and sustain the ability of individuals with behavioral health disorders to live in the community and avoid institutionalization;
(3) Develop and maintain bylaws as necessary to establish the process and structure of the board; and
(4) Employ and fix the compensation, subject to the provisions of chapter 53, title 67, Idaho Code, of such personnel as may be necessary to carry out the duties of the regional behavioral health boards.
All meetings of the executive committee shall be held in accordance with the open meetings law as provided for in chapter 2, title 74, Idaho Code.
[39-3133, added 2014, ch. 43, sec. 18, p. 112; am. 2017, ch. 58, sec. 17, p. 112.]
A regional behavioral health board for each region shall consist of twenty-three (23) members and shall be appointed as provided herein. All meetings of the regional behavioral health board shall be held in accordance with the open meetings law as provided for in chapter 2, title 74, Idaho Code. Members shall be comprised of the following: three (3) county commissioners; two (2) department of health and welfare employees who represent the behavioral health system within the region; one (1) parent of a child with a serious emotional disturbance; one (1) parent of a child with a substance use disorder; a law enforcement officer; one (1) adult mental health services consumer representative; one (1) mental health advocate; one (1) substance use disorder advocate; one (1) adult substance use disorder services consumer representative; one (1) family member of an adult mental health services consumer; one (1) family member of an adult substance use disorder services consumer; one (1) prevention specialist; a private provider of mental health services within the region; a private provider of substance use disorder services within the region; a representative of the elementary or secondary public education system within the region; a representative of the juvenile justice system within the region; a representative of the adult correction system within the region; a representative of the judiciary appointed by the administrative district judge; a physician or other licensed health practitioner from within the region; and a representative of a hospital within the region. The consumer, parent and family representatives shall be selected from nominations submitted by behavioral health consumer and advocacy organizations. The board may have nonvoting members as necessary to fulfill its roles and responsibilities. The board shall meet at least twice each year and shall annually elect a chairperson and other officers as it deems appropriate.
The appointing authority in each region shall be the current chair of the regional behavioral health board, one (1) representative of the department of health and welfare, and one (1) county commissioner of a county situated within the region. The committee shall meet annually or as needed to fill vacancies on the board.
The term of each member of the board shall be for four (4) years; provided however, that of the members first appointed, one-third (1/3) from each region shall be appointed for a term of two (2) years; one-third (1/3) for a term of three (3) years; and one-third (1/3) for a term of four (4) years. After the membership representation required in this section is achieved, vacancies shall be filled for the unexpired term in the same manner as original appointments. Board members shall be compensated as provided for in section 59-509(b), Idaho Code, and such compensation shall be paid from the operating budget of the regional behavioral health board as resources allow.
[(39-3134) 39-3130, added 1969, ch. 202, sec. 8, p. 589; am. 2004, ch. 354, sec. 2, p. 1059; am. 2009, ch. 122, sec. 1, p. 386; am. and redesig. 2014, ch. 43, sec. 20, p. 113; am. 2017, ch. 58, sec. 18, p. 113; am. 2018, ch. 34, sec. 3, p. 65; am. 2019, ch. 151, sec. 1, p. 504.]
The regional behavioral health board:
(1) Shall advise the state behavioral health authority and the state planning council on local behavioral health needs of adults and children within the region;
(2) Shall advise the state behavioral health authority and the planning council of the progress, problems and proposed projects of the regional service;
(3) Shall promote improvements in the delivery of behavioral health services and coordinate and exchange information regarding behavioral health programs in the region;
(4) Shall identify gaps in available services including, but not limited to, services listed in sections 16-2402(3) and 39-3131, Idaho Code, and recommend service enhancements that address identified needs for consideration to the state behavioral health authority;
(5) Shall assist the planning council with planning for service system improvement. The planning council shall incorporate the recommendation to the regional behavioral health boards into the annual report provided to the governor by June 30 of each year. This report shall also be provided to the legislature;
(6) May develop, or obtain proposals for, a petition for regional services for consideration by the state behavioral health authority;
(7) May accept the responsibility to develop and provide community family support and recovery support services in their region. The board must demonstrate readiness to accept this responsibility and shall not be held liable for services in which there is no funding to provide. The readiness criteria for accepting this responsibility shall be established by the planning council. The planning council shall also determine when a regional behavioral health board has complied with the readiness criteria. Community family support and recovery support services include, but are not limited to:
(a) Community consultation and education;
(b) Housing to promote and sustain the ability of individuals with behavioral health disorders to live in the community and avoid institutionalization;
(c) Employment opportunities to promote and sustain the ability of individuals with behavioral health disorders to live in the community and avoid institutionalization;
(d) Evidence-based prevention activities that reduce the burden associated with mental illness and substance use disorders; and
(e) Supportive services to promote and sustain the ability of individuals with behavioral health disorders to live in the community and avoid institutionalization including, but not limited to, peer run drop-in centers, support groups, transportation and family support services;
(8) If a regional board, after accepting the responsibility for a recovery support service, fails to successfully implement and maintain access to the service, the behavioral health authority shall, after working with the board to resolve the issue, take over responsibility for the services until the board can demonstrate its ability to regain organization and provision of the services;
(9) Shall annually provide a report to the planning council, the regional behavioral health centers and the state behavioral health authority of its progress toward building a comprehensive community family support and recovery support system that shall include performance and outcome data as defined and in a format established by the planning council; and
(10) The regional board may establish subcommittees as it determines necessary and shall, at a minimum, establish and maintain a children’s mental health subcommittee.
[(39-3135) 39-3132, added 1969, ch. 202, sec. 10, p. 589; am. 2004, ch. 354, sec. 4, p. 1060; am. 2006, ch. 277, sec. 8, p. 851; am. 2009, ch. 122, sec. 2, p. 387; am. and redesig. 2014, ch. 43, sec. 23, p. 114.]
The financial support for the regional behavioral health centers shall be furnished by state appropriations and by whatever federal funds are available in an identifiable section within the behavioral health program budgets. Behavioral health services that are financed or contracted by local or federal sources may be incorporated into the regional behavioral health centers subject to the approval of the state behavioral health authority.
[39-3136, added 1969, ch. 202, sec. 14, p. 589; am. 2014, ch. 43, sec. 24, p. 115.]
No regional behavioral health center or regional behavioral health board shall refuse service to any person because of race, color or religion or because of ability or inability to pay. Persons receiving services will be charged fees in keeping with a fee schedule prepared by the state behavioral health authority. Fees collected by the regional behavioral health center shall become part of its budget and utilized at the direction of the behavioral health authority. Fees collected by the regional behavioral board shall become part of its budget and utilized at the direction of the executive board or governing entity.
[39-3137, added 1969, ch. 202, sec. 15, p. 589; am. 2014, ch. 43, sec. 25, p. 116.]
No section of this chapter shall invalidate, or prohibit the continuance of, existing state-county contracts for the delivery of behavioral health services within the participating counties.
[39-3138, added 1969, ch. 202, sec. 16, p. 589; am. 2014, ch. 43, sec. 26, p. 116.]
This chapter may be cited as the "Regional Behavioral Health Services Act."
[39-3139, added 1969, ch. 202, sec. 17, p. 589; am. 2014, ch. 43, sec. 27, p. 116.]
(1) As used in this section, "behavioral health services" means both voluntary and court-ordered services for the following programs:
(a) Regional behavioral health services pursuant to chapter 31, title 39, Idaho Code;
(b) Children’s mental health services pursuant to chapter 24, title 16, Idaho Code;
(c) Neurocognitive disorder services pursuant to chapter 21, title 56, Idaho Code; and
(d) Any other behavioral health program provided for by Idaho Code.
(2) Individuals receiving behavioral health services from the department may be charged for such services. The department shall serve as the payer of last resort in cases in which the individual qualifies for medicaid or has third-party coverage. The amount charged will be determined based on the cost of services and the individual’s ability to pay. In no case will the annual costs to parents or an adult patient exceed five percent (5%) of adjusted gross income of the family household, following all other coverage.
[39-3140, added 2025, ch. 110, sec. 13, p. 582.]
A certified individual who is seeking to provide peer support specialist, family support partner, or recovery coach services and receives an unconditional denial or a denial after an exemption review by the department may apply for a behavioral health waiver.
[39-3141, added 2025, ch. 178, sec. 14, p. 848.]
This chapter shall be known and may be cited as the "Idaho Community Health Center Grant Program."
[39-3201, added 2007, ch. 199, sec. 1, p. 605.]
There is hereby created in the state treasury a fund known as the "Community Health Center Grant Fund." Subject to appropriation by the legislature, moneys in the fund shall be used exclusively for the purpose of grants for community health centers in order to improve access to health care services for Idahoans and to provide for the administration of grants pursuant to this chapter.
[39-3202, added 2007, ch. 199, sec. 1, p. 605.]
As used in this chapter:
(1) "Applicant" means an entity submitting documents required by the community health center grant program for the purpose of requesting a grant from the community health center grant fund.
(2) "Application period" means the time period from July 1 to August 30 of the state fiscal year for which funding is requested.
(3) "Approval" means written notification that the application will be awarded funding through the community health center grant fund.
(4) "Board" means the health care access grant review board, as established in section 39-5904, Idaho Code.
(5) "Community health center" or "CHC" means a nonprofit organization or county-based governmental entity that:
(a) Provides comprehensive primary and preventive medical services and provides or makes referrals for dental and mental health services;
(b) Provides outpatient services to persons who are uninsured or have medicaid coverage without regard to a person’s ability to pay, provided that a minimum of twenty-five percent (25%) of such persons served by the organization or entity are uninsured;
(c) Charges for services using a sliding fee schedule based upon income and family size; and
(d) Is governed by a community-based board.
(6) "Community health center grant" means a grant awarded pursuant to this chapter.
(7) "Community health center grant program" means the program that administers the community health center grant fund.
(8) "Department" means the department of health and welfare.
(9) "Director" means the director of the department of health and welfare.
(10) "Grant period" means the time period from July 1 through June 30 (state fiscal year) for which funding is granted.
[39-3203, added 2007, ch. 199, sec. 1, p. 605.]
The board may award grants, in accordance with the procedures and criteria in this chapter, to community health centers for the purpose of improving access to health care services.
(1) Individual grant awards will be limited to a total of five hundred thousand dollars ($500,000) for direct and indirect costs, per year.
(2) No project may be funded for more than a total of one (1) year.
(3) In addition to other uses as approved by the board, funds awarded under a grant may be used for the purchase, construction, renovation or improvement of real property or for projects which are solely or predominantly designed for the purchase of equipment, including information technology and electronic health records.
[39-3204, added 2007, ch. 199, sec. 1, p. 606.]
(1) A completed community health center grant application must be submitted by the applicant for the purpose of requesting a grant on or before the conclusion of the application period specified for the appropriate grant cycle.
(2) Each application shall include:
(a) Identification of geographical area to be served;
(b) Individual or entity requesting funds;
(c) Narrative description of the community health needs and the methods to be used to address such needs and demonstrate the potential of the project to improve patient health outcomes and access to health care services in the community;
(d) Identification of measurable goals, objectives and patient health outcomes to be used to reach the goals, and the resources necessary to complete each activity;
(e) Estimation of how long it will take to accomplish the individual activities of the project;
(f) Demonstrated community support for the project;
(g) Proposed project budget including:
(i) A line item budget with a brief description of each expense category, including any anticipated operating expenses, capital and equipment or contract expenses;
(ii) Documentation of one (1) or more vendor price quotes for all proposed equipment purchases;
(iii) Contact person for verification of fiscal information; and
(h) Federal tax identification number.
(3) All applications must include the required information.
(4) The grant application and any attachments submitted by the applicant shall be the primary source of information for awarding a grant.
[39-3205, added 2007, ch. 199, sec. 1, p. 606.]
The board shall conduct the grant process in accordance with the following schedule:
(1) The director shall develop an application form in conformance with section 39-3205, Idaho Code, and make guidance available no later than July 1 which shall initiate the application period.
(2) The completed application shall be submitted no later than August 30 of the application period.
(3) The board shall issue notification to every applicant regarding the disposition of their grant request by October 30 of the grant period.
(4) Funds for approved grants shall be disbursed during November of that grant period or over the course of the current grant year as funds become available.
[39-3206, added 2007, ch. 199, sec. 1, p. 607.]
The board shall award grants based on the following weighted criteria:
(1) Background of applicant organization. The applicant must show adequate experience, knowledge, and qualifications to adequately perform the scope of work: weight = 15%;
(2) Community support. The applicant must demonstrate community support for the project: weight = 10%;
(3) Specificity and clarity of scope of project. The proposal will be evaluated based upon demonstrated need and the extent to which the goals and objectives are specific, measurable, and relevant to the purpose of the proposal and the activities planned to accomplish those objectives are germane and can be sustained beyond the grant time frame: weight = 30%;
(4) Monitoring and evaluation. The proposal will be evaluated based on the extent to which the monitoring and evaluation system will document program progress, or improved patient health outcomes if applicable, and measure effectiveness: weight = 15%;
(5) Budget. The proposal will be evaluated based on the extent to which a detailed itemized budget and justification are consistent with stated objectives and planned program activities: weight = 20%;
(6) Geographical community health center equity. The board shall consider the geographical distribution of past grant awards and shall endeavor to meet community health centers’ needs in an equitable manner statewide: weight = 10%.
[39-3207, added 2007, ch. 199, sec. 1, p. 607.]
Providing false information on any application or document submitted under this chapter is a misdemeanor and grounds for declaring the applicant ineligible. Any and all funds determined to have been acquired on the basis of fraudulent information must be returned to the community health center grant fund. This section shall not limit other remedies which may be available for the filing of false or fraudulent applications.
[39-3208, added 2007, ch. 199, sec. 1, p. 608.]
Applicants aggrieved by the award or failure to award a grant pursuant to this chapter shall be afforded the remedies provided in chapter 52, title 67, Idaho Code.
[39-3209, added 2007, ch. 199, sec. 1, p. 608.]
The purpose of a residential care or assisted living facility in Idaho is to provide a humane, safe, and homelike living arrangement for adults who need assistance with activities of daily living and personal care but do not require the care of a nursing facility as defined in section 39-1301, Idaho Code, other than for short exceptional stays meaning a treatment window designed to allow a resident to receive treatment for a short term acute episode as determined by a licensed professional nurse.
The state will encourage the development of facilities tailored to the needs of individual populations that operate in integrated settings.
A residential care or assisted living facility shall be operated and staffed by individuals who have the knowledge and experience required to provide safe and appropriate services to all residents of the facility.
The administrator or manager of the facility shall ensure that an objective, individualized assessment to determine resident needs is conducted, develop a comprehensive negotiated plan of care to meet those needs, deliver appropriate services to meet resident needs, and ensure resident rights are honored.
[39-3301, added 1990, ch. 116, sec. 2, p. 241; am. 1993, ch. 373, sec. 1, p. 1346; am. 2000, ch. 274, sec. 9, p. 809; am. 2005, ch. 280, sec. 3, p. 880; am. 2025, ch. 122, sec. 31, p. 638; am. 2025, ch. 208, sec. 1, p. 934.]
As used in this chapter:
(1) "Abuse" means a nonaccidental act of sexual, physical or mental mistreatment or injury of a resident through the action or inaction of another individual.
(2) "Accident" means an unexpected, unintended event that can cause a resident injury.
(3) "Accreditation" means a process of review that allows health care organizations to meet regulatory requirements and standards established by a recognized accreditation organization.
(4) "Accreditation commission" means the commission on accreditation of rehabilitation facilities (CARF), the joint commission, or another nationally recognized accreditation organization approved by the director.
(5) "Activities of daily living" means the performance of basic self-care activities in meeting an individual’s needs to sustain him in a daily living environment.
(6) "Administrator" means an individual, properly licensed by the division of occupational and professional licenses, who is responsible for operation of a residential care or assisted living facility.
(7) "Administrator’s designee" means a person authorized in writing to act in the absence of the administrator for no more than thirty (30) consecutive days when the administrator is on vacation, has days off, is ill, or is away for trainings or meetings. This individual shall be knowledgeable of facility operations, the residents and their needs, emergency procedures, the location and operation of emergency equipment, and how the administrator can be reached in the event of an emergency.
(8) "Adult" means a person who has attained the age of eighteen (18) years.
(9) "Advocate" means an authorized or designated representative of a program or organization operating under federal or state mandate to represent the interests of mentally ill, developmentally disabled, or elderly residents.
(10) "Assessment" means the conclusion reached using uniform criteria, which identifies resident strengths, weaknesses, risks and needs, to include functional, medical and behavioral needs. The assessment criteria shall be developed by the department and residential care or assisted living council.
(11) "Authorized provider" in this chapter means an individual who is a nurse practitioner or clinical nurse specialist or a physician assistant.
(12) "Board" means the board of health and welfare.
(13) "Chemical restraint" means a medication used to control behavior or to restrict freedom of movement and is not a standard treatment for the resident’s condition.
(14) "Complaint" means a formal expression of dissatisfaction, discontent, or unhappiness by, or on behalf of, a resident concerning the care or conditions at the facility. This expression could be oral or in writing or by an alternate means of communication.
(15) "Core issues" means abuse, neglect, exploitation, inadequate care, inoperable fire detection or extinguishing systems with no fire watch in place pending the correction of the system, and surveyors denied access to records, residents, or facilities.
(16) "Deficiency" means a determination of noncompliance with any section of this chapter.
(17) "Department" means the Idaho department of health and welfare.
(18) "Director" means the director of the Idaho department of health and welfare.
(19) "Exit conference" means a meeting with the facility administrator or his designee to provide review, discussion, and written documentation of non-core issues and to provide preliminary findings of core issues.
(20) "Exploitation" means the misuse of a resident’s funds, property, resources, identity or person for profit or advantage.
(21) "Facility" means a residential care or assisted living facility.
(22) "Follow-up survey" means a survey conducted to confirm the facility is in compliance and has the ability to remain in compliance.
(23) "Governmental unit" means the state, any county, any city, other political subdivision, or any department, division, board, or other agency thereof.
(24) "Immediate jeopardy" means that immediate corrective action is required because the facility is noncompliant with health and safety requirements placing patients at risk of serious harm, injury, or death.
(25) "Inadequate care" occurs when a facility engages in actions or omissions that cause harm to a resident or create a situation likely to result in immediate jeopardy to the health, safety, or well-being of a resident.
(26) "License" means a basic permit to operate a residential care or assisted living facility.
(27) "Licensee" means the owner of a license to operate a residential care or assisted living facility under this chapter.
(28) "Licensing agency" means the unit of the department of health and welfare that conducts inspections and surveys and issues licenses based on compliance with this chapter.
(29) "Manager" means the individual delegated by the administrator to manage the day-to-day operations of the facility.
(30) "Neglect" means failure to provide food, clothing, shelter, or medical care necessary to sustain the life and health of a resident.
(31) "Negotiated service agreement" means the agreement reached by the resident and/or the resident’s representative and the facility, based on the assessment, physician’s orders, admission records, and desires of the resident, and which outlines services to be provided and the obligations of the facility and the resident.
(32) "Non-core issue" means any finding of deficient practice that is not a core issue.
(33) "Personal assistance" means the provision by the staff of the facility of one (1) or more of the following services:
(a) Assisting the resident with activities of daily living;
(b) Arranging for supportive services;
(c) Being aware of the resident’s general whereabouts; and
(d) Monitoring the activities of the resident while on the premises of the facility to ensure the resident’s health, safety and well-being.
(34) "Physical restraint" means any device or physical force that restricts the free movement of a portion of an individual’s body, except for the temporary treatment of a medical condition, such as the use of a cast for a broken bone.
(35) "Political subdivision" means a city or county.
(36) "Resident" means an adult who lives in a residential care or assisted living facility.
(37) "Residential care or assisted living facility" means a facility or residence, however named, operated on either a profit or nonprofit basis for the purpose of providing necessary supervision, personal assistance, meals and lodging to three (3) or more adults not related to the owner.
(38) "Room and board" means lodging and meals.
(39) "Substantial compliance" means a facility has no core issue deficiencies.
(40) "Supervision" means administrative activity which provides the following: protection, guidance, knowledge of the resident’s general whereabouts, and assistance with activities of daily living. The administrator or manager is responsible for providing appropriate supervision based on each resident’s negotiated service agreement or other legal requirements.
(41) "Supportive services" means the specific services that are provided to the resident in the community.
[39-3302, added 1990, ch. 116, sec. 2, p. 241; am. 1993, ch. 373, sec. 2, p. 1347; am. 1996, ch. 207, sec. 1, p. 633; am. 2000, ch. 274, sec. 10, p. 810; am. 2005, ch. 280, sec. 4, p. 881; am. 2019, ch. 159, sec. 1, p. 515; am. 2022, ch. 94, sec. 2, p. 280; am. 2025, ch. 208, sec. 2, p. 935.]
(1)(a) Clients of the department who are receiving financial aid as set out in sections 56-207 and 56-208, Idaho Code, seeking placement in a residential care or assisted living facility will be assessed by the department regarding their need for specific types of services and supports. This assessment will determine the reimbursement rate to the service provider.
(b) Eligible participants must be allowed to choose the facility or services that are appropriate to meet their medical needs and financial ability to pay. The department is authorized to promulgate rules, subject to legislative approval, outlining the payment policy and calculations for clients of the department through negotiated rulemaking.
(2) Residents who are not clients of the department shall:
(a) Be assessed by the facility regarding their need for specific types of services and supports. This assessment, and the individual negotiated service agreement, shall determine the rate charged to the resident.
(b) Receive a full description of services provided by the facility and associated costs upon admission, according to facility policies and procedures. A thirty (30) day notice must be provided prior to a change in facility billing practices or policies. When a resident’s level of care changes, a facility is entitled to charge the increased rate no sooner than the date that notice is provided. Billing practices shall be transparent and understandable.
(c) Be charged for the use of furnishings, equipment, supplies and basic services as agreed upon in the negotiated service agreement or as identified in the admission agreement.
[39-3303, added 1990, ch. 116, sec. 2, p. 243; am. 1993, ch. 373, sec. 3, p. 1349; am. 1996, ch. 207, sec. 2, p. 635; am. 2000, ch. 274, sec. 11, p. 813; am. 2005, ch. 280, sec. 5, p. 884; am. 2009, ch. 214, sec. 1, p. 673; am. 2025, ch. 82, sec. 103, p. 382; am. 2025, ch. 208, sec. 3, p. 937.]
The state will foster the development of, and provide incentives for, residential care or assisted living facilities serving specific mentally ill and developmentally or physically disabled populations which are small in size to provide for family and homelike arrangements. Small facilities of eight (8) beds or less for individuals with developmental or physical disabilities or dementia and fifteen (15) beds or less for individual with mental illness will provide residents with the opportunity for normalized and integrated living in typical homes in neighborhoods and communities.
[39-3304, added 1990, ch. 116, sec. 2, p. 244; am. 1993, ch. 373, sec. 4, p. 1350; am. 2000, ch. 274, sec. 12, p. 813; am. 2005, ch. 280, sec. 6, p. 885.]
(1) The board is authorized to adopt, amend, repeal and enforce such rules, subject to legislative approval, as may be necessary or proper to carry out the purpose and intent of this chapter which are designed to protect the health, safety and individual rights of residents in residential care or assisted living facilities. The department shall exercise the powers and perform the duties conferred upon it by this chapter, not inconsistent with any statute of this state. These rules are authorized, subject to legislative approval, to be promulgated in accordance with the provisions of the Idaho administrative procedure act. The department is authorized to, through negotiated rulemaking, promulgate rules in the following areas, subject to legislative approval:
(a) Minimum criteria for the assessment;
(b) Minimum criteria for the negotiated service agreement;
(c) Guidelines for the facility’s physical environment and location;
(d) Criteria for the facility’s license, to include:
(i) Initial license application criteria and procedures;
(ii) License renewal criteria, procedures and timing;
(iii) Inspection criteria and procedures;
(iv) Denial and revocation of license criteria and procedures; and
(v) Effect of previous revocation or denial of license.
(e) Remedy and enforcement provisions for noncompliance with statute.
(2) Rules are authorized to be drafted and promulgated, subject to legislative approval, following negotiation with interested providers, assisted living associations, and advocates.
[39-3305, added 1990, ch. 116, sec. 2, p. 244; am. 1993, ch. 373, sec. 5, p. 1350; am. 2000, ch. 274, sec. 13, p. 814; am. 2005, ch. 280, sec. 7, p. 885; am. 2025, ch. 208, sec. 4, p. 938.]
This chapter and the rules promulgated pursuant to this chapter shall supersede any program of any political subdivision of the state which licenses or sets standards for residential care or assisted living facilities.
[39-3306, added 1990, ch. 116, sec. 2, p. 244; am. 1993, ch. 373, sec. 6, p. 1350; am. 2000, ch. 274, sec. 14, p. 814; am. 2005, ch. 280, sec. 8, p. 886.]
(1) A residential care or assisted living facility shall not admit or retain any resident requiring a level of services or type of service for which the facility is not licensed or which the facility does not provide or arrange for, or if the facility does not have the staff, appropriate in numbers and with appropriate skills, to provide.
(2) The department is authorized to develop rules, subject to legislative approval, governing admissions to residential care or assisted living facilities.
[39-3307, added 1990, ch. 116, sec. 2, p. 244; am. 1996, ch. 207, sec. 3, p. 636; am. 2000, ch. 274, sec. 15, p. 814; am. 2005, ch. 280, sec. 9, p. 886; am. 2025, ch. 208, sec. 5, p. 938.]
(1) Initial assessments may be completed within thirty (30) days prior to a resident’s move into a residential care or assisted living facility, but must be completed prior to admission.
(2) The department shall employ uniform assessment criteria to assess function and cognitive disability. The conclusions shall be deemed the assessment and shall be used to provide appropriate placement and funding for service needs. The assessment shall also be used to ensure funding is cost-effective and appropriate when compared to other state programs relevant to the needs of the client being assessed. The department is authorized to develop rules, subject to legislative approval, regarding:
(a) Qualifications of persons making the assessments;
(b) Department’s responsibility for state pay clients;
(c) Information to be included in an assessment;
(d) Use of an assessment in developing the negotiated service agreement;
(e) Use of assessments in determining facility staffing ratios; and
(f) Use of assessments for determining the ability of provider and facility to meet residents’ needs and special training or licenses that may be required in caring for certain residents.
(3) The administrator shall ensure policies and procedures are developed and implemented to ensure nursing services are performed in accordance with applicable state regulations and the provisions of this chapter.
(4)(a) A licensed nurse shall visit the facility at least once every ninety (90) days to conduct quarterly nursing assessments for each resident. A licensed nurse is responsible for delegating to others as appropriate based on the nurse’s license.
(b) The licensed nurse shall be available to address changes in a resident’s health or mental status, to review and implement new orders, and to notify a physician or authorized provider when a resident repeatedly refuses to follow physician orders.
[39-3308, added 1996, ch. 207, sec. 5, p. 636; am. 2005, ch. 280, sec. 10, p. 886; am. 2025, ch. 208, sec. 6, p. 938.]
(1) Each resident shall be provided a negotiated service agreement to provide for coordination of services and for guidance of the staff and management of the facility where the person resides. Upon completion, the agreement shall clearly identify the resident and describe the services to be provided to the resident and how such services are to be delivered. The negotiated service agreement shall be reviewed at least annually and upon any change in a diagnosis for the resident or other condition requiring substantially different additional or replacement services.
(2) A negotiated service agreement shall be based on the person’s:
(a) Assessment;
(b) Service needs for activities of daily living;
(c) Need for limited nursing services;
(d) Need for medication assistance;
(e) Frequency of needed services;
(f) Level of assistance, i.e., standby, reminding, total;
(g) Signature and approval of agreement; and
(h) Signing date that the plan was approved.
(3) The administrator or manager shall consult the resident or the resident’s family, guardian, representative, friends, or case manager, as necessary, in the development of the resident’s service agreement.
(4) A copy of the agreement shall be given to the resident and a copy placed in the resident’s records file no later than two (2) weeks from admission.
(5) A resident shall be given the choice and control of how and what services the facility shall provide, or external vendors shall provide, to the extent the resident can make choices, so long as the resident’s choice does not violate the provisions of section 39-3307(1), Idaho Code.
(6) On an exception basis, a record shall be made of any changes or inability to provide services outlined in the negotiated service agreement.
(7) The agreement shall include a statement regarding when there is a need for external services.
(8) There shall be documentation of refusal of certain treatments by competent resident or legal health care representative.
[39-3309, added 1996, ch. 207, sec. 7, p. 637; am. 2005, ch. 280, sec. 11, p. 886; am. 2025, ch. 208, sec. 7, p. 939.]
(1) Upon admission to a residential care or assisted living facility, the facility and the resident shall enter into an admission agreement. The admission agreement shall clearly outline who is financially responsible for resident charges and shall clearly outline the facility’s resident discharge policies. The agreement shall be in writing and shall be signed by both parties. The board shall promulgate rules governing admission agreements which may be integrated with the negotiated service agreement.
(2) A resident may be discharged for the following:
(a) A resident’s failure to pay;
(b) The facility’s inability to meet the resident’s needs;
(c) The resident’s needs are greater than the level of care provided by the specific facility;
(d) The resident is a danger to himself or others.
(3) A resident shall have the right to appeal a discharge as established by department rule.
(4) Should a residential care or assisted living facility choose not to carry professional liability insurance, that information shall be disclosed, in writing, to residents upon admission.
[39-3313, added 1990, ch. 116, sec. 2, p. 246; am. 1996, ch. 207, sec. 11, p. 638; am. 2000, ch. 274, sec. 18, p. 815; am. 2005, ch. 280, sec. 12, p. 887.]
Admission agreements may only be terminated pursuant to rules promulgated by the board.
[39-3314, added 1990, ch. 116, sec. 2, p. 246; am. 2000, ch. 274, sec. 19, p. 815.]
(1) Records required for admission to a facility shall be maintained and updated for administrative purposes only and shall be confidential. Their availability, subject to Idaho department of health and welfare rules, chapter 1, title 5, shall be limited to administration, professional consultants, the resident’s physician or authorized provider, and representatives of the licensing agency. They shall include at least the following information:
(a) Name and social security number.
(b) Permanent address if other than the facility.
(c) Marital status and sex.
(d) Birthplace and date of birth.
(e) Name, address and telephone number of responsible agent or agency.
(f) Personal physician or authorized provider.
(g) Admission date.
(h) Results of a physical or health status examination performed by a licensed physician or authorized provider within six (6) months prior to admission.
(i) A list of medications, treatments and diet prescribed for the resident which is signed and dated by the physician or authorized provider giving the order(s).
(j) Religious affiliation if resident chooses to so state.
(k) Interested relatives and friends other than those in paragraph (e) of this subsection. Names, addresses and telephone numbers of family members and/or significant others.
(l) Resident assessment.
(m) The results of any psychosocial evaluations or histories to ensure all resident needs are being met.
(2) The resident’s personal or religious preferences with respect to medical treatment and medications shall be honored.
[39-3315, added 1990, ch. 116, sec. 2, p. 246; am. 1996, ch. 207, sec. 12, p. 638; am. 2000, ch. 274, sec. 20, p. 815; am. 2005, ch. 280, sec. 13, p. 888.]
The administrator of a residential care or assisted living facility must ensure that policies and procedures are developed and implemented that protect and promote the rights of each resident, including each of the following rights:
(1) Resident records. Upon request, a resident or others authorized by law shall be provided immediate access to information on the resident’s record and shall be provided with copies of such information within two (2) business days. Each facility must maintain and keep current a record of the following information on each resident:
(a) A copy of the resident’s current negotiated service agreement and physician’s order.
(b) Written acknowledgment that the resident has received copies of the rights.
(c) A record of all personal property and funds that the resident has entrusted to the facility, including copies of receipts for the property.
(d) Information about any specific health problems of the resident that may be useful in a medical emergency.
(e) The name, address and telephone number of an individual identified by the resident who should be contacted in the event of an emergency or death of the resident.
(f) Any other health-related, emergency, or pertinent information the resident requests the facility to keep on record.
(g) The current admission agreement between the resident and the facility.
(2) Privacy. Each resident must be assured the right to privacy with regard to accommodations, medical and other treatment, written and telephone communications, visits, and meetings of family and resident groups.
(3) Humane care and environment, dignity, and respect.
(a) Each resident shall have the right to humane care and a humane environment, including the following:
(i) The right to a diet consistent with any religious or health-related restrictions.
(ii) The right to refuse a restricted diet.
(iii) The right to a safe and sanitary living environment.
(b) Each resident shall have the right to be treated with dignity and respect, including:
(i) The right to be treated in a courteous manner by staff.
(ii) The right to receive a response from the facility to any request of the resident within a reasonable time.
(iii) The right to be communicated with, orally and/or in writing, in a language the resident understands.
(4) Personal possessions. Each resident shall have the right to:
(a) Wear his own clothing.
(b) Determine his own dress or hair style.
(c) Retain and use his own personal property in his own living area so as to maintain individuality and personal dignity.
(5) Personal funds. Residents whose board and care is paid for by public assistance shall retain, for their personal use, the difference between their total income and the applicable rent, utilities, and food allowance established by department rules.
(a) A facility shall not require a resident to deposit his personal funds with the facility.
(b) Once the facility accepts the written authorization of the resident, it must hold, safeguard, and account for such personal funds under a system established and maintained by the facility in accordance with this paragraph.
(6) Management of personal funds. Upon a facility’s acceptance of written authorization of a resident, the facility must manage and account for the personal funds of the resident deposited with the facility as follows:
(a) The facility must deposit any amount of a resident’s personal funds in an account that is separate from any of the facility’s operating accounts.
(b) The facility must assure a full and complete separate accounting of each resident’s personal funds, maintain a written record of all financial transactions involving each resident’s personal funds deposited with the facility, and afford each resident or a legal representative of each resident reasonable access to such record.
(c) Upon the death of a resident with such an account, the facility must promptly convey the resident’s personal funds and a final accounting of such funds to the individual administering the resident’s estate. For clients of the department, the remaining balance of funds shall be refunded to the medicaid estate recovery unit.
(7) Access and visitation rights. Each facility must permit:
(a) Immediate in-person access to any resident by any representative of the department, by the state ombudsman for the elderly or his designees, or by the resident’s individual physician.
(b) Immediate in-person access to a resident, subject to the resident’s right to deny or withdraw consent at any time, by immediate family or other relatives.
(c) Immediate access to a resident, subject to reasonable restrictions and the resident’s right to deny or withdraw consent at any time, by others who are visiting with the consent of the resident.
(d) Reasonable access to a resident by any entity or individual that provides health, social, legal, or other services to the resident, subject to the resident’s right to deny or withdraw consent at any time.
(8) Employment. Each resident shall have the right to refuse to perform services for the facility except as contracted for by the resident and the administrator of the facility. If the resident is hired by the facility to perform services as an employee of the facility, the wage paid to the resident shall be consistent with state and federal law.
(9) Confidentiality. Each resident shall have the right to confidentiality of personal and clinical records.
(10) Freedom from abuse, neglect, and restraints. Each resident shall have the right to be free from physical, mental, or sexual abuse, neglect, corporal punishment, involuntary seclusion, and any physical or chemical restraints. The use of supportive devices with restraining qualities is permissible if the following conditions are met:
(a) For residents with the cognitive ability to consent, the facility shall document the following:
(i) The resident specifically requests or approves of the device and a licensed health care professional has informed the individual of the risks and benefits associated with the device;
(ii) A facility nurse acting within the nurse’s scope of license has conducted a thorough assessment;
(iii) The facility has documented other less restrictive alternatives evaluated prior to the use of the device and obtained written consent from the patient or representative; and
(iv) The facility has instructed direct care staff on the correct use and precautions related to the device.
(b) Supportive devices with restraining qualities are permissible for residents who are unable to evaluate the risks and benefits of the device when the conditions contained in paragraph (a)(ii) through (iv) of this subsection are present and documented by the facility. The facility shall also obtain and document the consent of the resident’s guardian, representative, or power of attorney as applicable.
(c) Documentation of the use of supportive devices with restraining qualities shall be included in the resident’s service plan and evaluated on a quarterly basis.
(11) Freedom of religion. Each resident shall have the right to practice the religion of his choice or to abstain from religious practice. Residents shall also be free from the imposition of the religious practices of others.
(12) Control and receipt of health-related services. Each resident shall have the right to control his receipt of health-related services, including:
(a) The right to retain the services of his own personal physician, dentist and other health care professionals.
(b) The right to select the pharmacy or pharmacist of his choice so long as it meets the statute and rules governing residential care or assisted living and the policies and procedures of the residential care or assisted living facility.
(c) The right to confidentiality and privacy concerning his medical or dental condition and treatment.
(d) The right to refuse medical services based on informed decision-making.
(i) The facility shall document that the resident and the resident’s legal guardian have been informed of the consequences of the refusal; and
(ii) The facility shall document that the resident’s physician or authorized provider has been notified of the resident’s refusal.
(13) Grievances. Each resident shall have the right to voice grievances with respect to treatment or care that is (or fails to be) furnished without discrimination or reprisal for voicing the grievances and the right to prompt efforts by the facility to resolve grievances the resident may have, including those with respect to the behavior of other residents.
(14) Participation in resident and family groups. Each resident shall have the right to organize and participate in resident groups in the facility and the right of the resident’s family to meet in the facility with the families of other residents in the facility.
(15) Participation in other activities. Each resident shall have the right to participate in social, religious, and community activities that do not interfere with the rights of other residents in the facility.
(16) Examination of survey results. Each resident shall have the right to examine, upon reasonable request, the results of the most recent survey of the facility conducted by the department with respect to the facility and any plan of correction in effect with respect to the facility.
(17) Access by advocates and representatives. A residential care or assisted living facility shall permit advocates and representatives of community legal services programs, whose purposes include rendering assistance without charge to residents, to have access to the facility at reasonable times.
(18) Access by protection and advocacy system. A residential care or assisted living facility shall permit advocates and representatives of the protection and advocacy system, designated by the governor pursuant to 42 U.S.C. 15043 and 10801 et seq., access to residents, facilities and records in accordance with applicable federal statutes and regulations.
(19) Access by the long-term care ombudsman. A residential care or assisted living facility shall permit advocates and representatives of the long-term care ombudsman program, pursuant to 42 U.S.C. 3058, section 67-5009, Idaho Code, and IDAPA 15.01.03, rules of the commission on aging, access to residents, facilities and records in accordance with applicable federal and state law, rules and regulations.
(20) A facility may not require precautions, such as health screenings, for in-person visitors that are more stringent than precautions for facility staff, and in-person access pursuant to subsection (7)(a) and (b) of this section shall not be precluded on the basis of a visitor’s vaccination status.
(21) Each resident shall have the right to be transferred or discharged only for medical reasons, for the resident’s welfare or the welfare of other residents, or for nonpayment of the resident’s stay. In non-emergency conditions, the resident shall be given at least thirty (30) calendar days notice of discharge. A resident has the right to appeal any involuntary discharge.
[39-3316, added 1990, ch. 116, sec. 2, p. 247; am. 1996, ch. 207, sec. 13, p. 639; am. 2000, ch. 274, sec. 21, p. 816; am. 2005, ch. 280, sec. 14, p. 888; am. 2023, ch. 202, sec. 1, p. 564; am. 2025, ch. 208, sec. 8, p. 940.]
Each facility shall:
(1) Inform each resident, orally and in writing, at the time of admission to the facility of the resident’s legal rights during the stay at the facility;
(2) Make available to each resident, upon reasonable request, a written statement of such rights, and notify a resident when such rights change;
(3) Ensure the written statement of legal rights includes a description of the protection of personal funds and a statement that a resident may file a complaint with the department regarding resident abuse, neglect, and misappropriation of resident property in the facility at any time; and
(4) Conspicuously post the residents’ rights in the facility at all times.
[39-3316A, added 2025, ch. 208, sec. 9, p. 943.]
Each facility must:
(1) Inform each resident, orally and in writing at the time of admission to the facility, of his legal rights during the stay at the facility.
(2) Make available to each resident, upon reasonable request, a written statement of such rights (which statement is updated upon changes in such rights).
(3) The written description of legal rights under this subsection shall include a description of the protection of personal funds and a statement that a resident may file a complaint with the licensing agency respecting resident abuse and neglect and misappropriation of resident property in the facility. A copy of the list of resident rights shall be conspicuously posted in the facility at all times.
[39-3317, added 1990, ch. 116, sec. 2, p. 249.]
In addition to any other requirements of this chapter, the residential care or assisted living facility shall have a process in place to address incidents and complaints.
[39-3318, added 1990, ch. 116, sec. 2, p. 250; am. 2000, ch. 274, sec. 22, p. 819; am. 2005, ch. 280, sec. 15, p. 892; am. 2025, ch. 208, sec. 10, p. 944.]
(1) Each residential care or assisted living facility must employ at least one (1) administrator licensed by the division of occupational and professional licenses, which is responsible for licensing residential care facility administrators for the state of Idaho. Up to three (3) multiple facilities under one (1) administrator will be allowed by the department.
(2) The administrator or the administrator’s designee is responsible for:
(a) Ensuring that policies and procedures are developed and implemented to comply with this chapter;
(b) Ensuring that adult protective services and law enforcement are notified when required pursuant to sections 39-5303 and 39-5310, Idaho Code;
(c) Ensuring that facility procedures for investigation of complaints, incidents, accidents, and allegations of abuse, neglect, or exploitation are implemented to ensure resident safety;
(d) Identifying and monitoring patterns of accidents, incidents, or complaints and developing interventions to prevent recurrences;
(e) Completing an investigation and written report of the findings within thirty (30) calendar days for each accident, incident, complaint, or allegation of abuse, neglect, or exploitation;
(f) Being reachable and available at all times; and
(g) Ensuring that no personnel providing hands-on care or supervision services is under seventeen (17) years of age, unless such personnel have completed a certified nursing assistant certification course.
(3) The administrator or the administrator’s designee must be notified of all serious incidents, accidents, or allegations of abuse, neglect, or exploitation immediately and notified of complaints regarding health and safety issues within one (1) business day.
(4) When abuse, neglect, exploitation, incidents, or accidents occur, corrective action shall be immediately taken and monitored to ensure the problem does not recur.
(5) When a reportable incident occurs, the administrator or administrator’s designee shall notify the licensing agency within one (1) business day of the incident.
(6) The facility shall notify the licensing agency, in writing, within three (3) business days of a change of administrator.
[39-3321, added 1990, ch. 116, sec. 2, p. 251; am. 1996, ch. 207, sec. 15, p. 642; am. 2000, ch. 274, sec. 25, p. 820; am. 2003, ch. 201, sec. 1, p. 529; am. 2005, ch. 280, sec. 16, p. 892; am. 2022, ch. 94, sec. 3, p. 281; am. 2025, ch. 208, sec. 11, p. 944.]
(1) Each facility must employ or arrange for sufficient trained staff to fully meet the needs of its residents and the requirements of this chapter. The facility shall have sufficient staff to provide care during all hours required in each resident’s negotiated service plan. Residential care or assisted living facilities shall not retain residents who require care at a nursing facility as defined in section 39-1301, Idaho Code, other than for short exceptional stays pursuant to negotiated rulemaking as defined in chapter 52, title 67, Idaho Code.
(2) Should a residential care or assisted living facility choose not to carry professional liability insurance, that information shall be disclosed, in writing, to employees at the time of hiring.
[39-3322, added 1990, ch. 116, sec. 2, p. 251; am. 1996, ch. 207, sec. 16, p. 642; am. 2000, ch. 274, sec. 26, p. 820; am. 2005, ch. 280, sec. 17, p. 893; am. 2025, ch. 122, sec. 32, p. 639; am. 2025, ch. 208, sec. 12, p. 945.]
All employees of a residential care or assisted living facility shall receive orientation and continuing education pertinent to their job responsibilities.
[39-3324, added 1990, ch. 116, sec. 2, p. 252; am. 2000, ch. 274, sec. 27, p. 821; am. 2005, ch. 280, sec. 18, p. 893.]
Licensed residential or assisted living facilities shall:
(1) Be located in geographical areas which are accessible to supportive services and are free from conditions which would pose a danger to the residents.
(2) Be maintained in such a manner as to be free from fire and/or safety hazards.
[39-3325, added 1990, ch. 116, sec. 2, p. 252; am. 2000, ch. 274, sec. 28, p. 821; am. 2005, ch. 280, sec. 19, p. 893.]
The medication policy governed by the policy and procedure of the facility shall include a policy permitting, under the conditions specified, a licensed nurse to fill individual dose systems such as blister pack, mediset, or other system approved by the department and label with the name, dosage, amount, time to be taken, and special instructions if appropriate. The policy shall provide for appropriate records to maintain security of medications received from a pharmacist in accordance with pharmacy standards. Facilities may choose to use bulk containers for over-the-counter medications.
[39-3326, added 2005, ch. 280, sec. 20, p. 894; am. 2025, ch. 208, sec. 13, p. 945.]
The department shall establish a state level advisory council consisting of twenty (20) members appointed by the organizations and/or agencies represented on the council. The chairman of the council shall be elected from the membership. The members of the council shall be determined by the bylaws of the council.
[39-3330, added 1990, ch. 116, sec. 2, p. 252; am. 1992, ch. 66, sec. 1, p. 200; am. 1993, ch. 373, sec. 7, p. 1350; am. 2000, ch. 274, sec. 29, p. 821; am. 2005, ch. 280, sec. 21, p. 894; am. 2011, ch. 123, sec. 1, p. 346.]
The residential care or assisted living advisory council shall have the following powers and duties:
(1) To make policy recommendations regarding the coordination of licensing and enforcement standards in residential care or assisted living facilities and the provision of services to residents of residential care or assisted living facilities.
(2) To advise the agency during development and revision of rules.
(3) To review and comment upon any proposed rules pertaining to residential care or assisted living.
(4) To submit an annual report to the legislature stating opinions and recommendations which would further the state’s capability in addressing residential care or assisted living facility issues.
[39-3331, added 1990, ch. 116, sec. 2, p. 253; am. 1992, ch. 66, sec. 2, p. 201; am. 2000, ch. 274, sec. 30, p. 822; am. 2005, ch. 280, sec. 22, p. 895; am. 2011, ch. 123, sec. 2, p. 347.]
The residential care or assisted living advisory council shall meet as necessary but not less than four (4) times a year. Meetings of the council shall be open to the public. The department shall provide:
(1) Staff necessary to assist the council in performing its duties.
(2) Space for meetings of the council.
(3) Accommodations for alternative meeting formats.
[39-3332, added 1990, ch. 116, sec. 2, p. 253; am. 2005, ch. 280, sec. 23, p. 895; am. 2011, ch. 123, sec. 3, p. 347.]
Members of the residential care and assisted living advisory council shall be reimbursed by the department for their actual expenses incurred in the performance of their duties, not to exceed the limits set forth in the state travel guidelines.
[39-3333, added 1990, ch. 116, sec. 2, p. 253; am. 2005, ch. 280, sec. 24, p. 895.]
(1) Any person, firm, partnership, association, governmental unit, or corporation within the state proposing to operate, establish, manage, conduct, or maintain a residential care or assisted living facility in the state shall have a license issued by the licensing agency of the department. A license is not transferable. The owner of the license has ultimate responsibility for the operation of the facility.
(2) Each residential care or assisted living facility in the state requires an administrator, properly licensed by the division of occupational and professional licenses. The licensed administrator may perform the day-to-day responsibilities at the facility or may delegate all day-to-day responsibilities to a facility manager. A licensed administrator may serve up to three (3) multiple facilities and delegate all day-to-day responsibilities to on-site managers.
(3) All facilities must be licensed by the department.
(a) Change of building ownership, new construction, or buildings being converted to a facility shall be licensed, and the operator shall follow the application procedures and obtain a license before commencing operation as a facility.
(b) When there is a change of operator or lessee in currently licensed buildings, the operator or lessee shall follow the licensing process for currently licensed buildings. Facilities shall submit requested licensing documents to the department. Any company or individual established in the state of Idaho with at least one (1) operating facility shall not be required to submit an updated copy of policies and procedures. The licensing process shall not require a fire life safety inspection prior to license issuance. Within one hundred eighty (180) days of license issuance fire life safety shall inspect and provide recommendations, if any, to the new operator or lessee.
(c) Any minor change of ownership of existing buildings shall be communicated to the department within sixty (60) days of the change.
(d) Exceptions to the provisions of this section may be made by the department for temporary management.
[39-3340, added 1990, ch. 116, sec. 2, p. 253; am. 1993, ch. 373, sec. 8, p. 1351; am. 2000, ch. 274, sec. 31, p. 822; am. 2005, ch. 280, sec. 25, p. 896; am. 2015, ch. 46, sec. 1, p. 98; am. 2022, ch. 94, sec. 4, p. 282; am. 2025, ch. 208, sec. 14, p. 945; am. 2026, ch. 251, sec. 14, p. 1065.]
The licensing agency may deny the issuance of a license or revoke any license when persuaded by a preponderance of evidence that such conditions exist as to endanger the health or safety of residents, or when the facility is not in substantial compliance with the provisions of this chapter or the rules promulgated pursuant to this chapter.
[39-3345, added 1990, ch. 116, sec. 2, p. 255; am. 2000, ch. 274, sec. 34, p. 824; am. 2005, ch. 280, sec. 26, p. 896.]
The licensing agency shall inspect and provide technical assistance to residential care or assisted living facilities. The department may provide consulting services upon request to any residential care or assisted living facility to assist in the identification or correction of deficiencies and in the upgrading of the quality of care provided by the facility.
[39-3349, added 1990, ch. 116, sec. 2, p. 256; am. 2000, ch. 274, sec. 36, p. 824; am. 2005, ch. 280, sec. 27, p. 896.]
The provisions of this chapter do not apply to any of the following:
(1) Any health facility as defined by chapter 13, title 39, Idaho Code;
(2) Any house, institution, hotel, congregate housing project, retirement home or other similar place that is limited to providing one (1) or more of the following: housing, meals, transportation, housekeeping, or recreational and social activities; or that has residents accessing supportive services from an entity approved to provide such services in Idaho and holding no legal ownership interest in the entity operating the facility; or
(3) Any arrangement for the receiving and care of persons by a relative.
[39-3351, added 1990, ch. 116, sec. 2, p. 256; am. 1996, ch. 207, sec. 18, p. 643; am. 2005, ch. 280, sec. 28, p. 897; am. 2025, ch. 208, sec. 15, p. 946.]
(1) No unlicensed residential care or assisted living facility shall operate in this state.
(2) A facility shall be deemed to be an "unlicensed residential care or assisted living facility" and "maintained and operated to provide services" if it is unlicensed and not exempt from licensure, and any one (1) of the following conditions is satisfied:
(a) The facility is, or is held out as or represented as, providing care, supervision and services.
(b) The facility accepts or retains residents who demonstrate the need for care, supervision, and services, as defined in this chapter or the rules adopted pursuant to this chapter.
(3) Upon discovery of an unlicensed residential care or assisted living facility, the department shall refer residents to the appropriate placement or adult protective services agency if either of the following conditions exist:
(a) There is an immediate threat to the resident’s health and safety.
(b) The facility will not cooperate with the licensing agency to apply for a license, meet licensing standards, and obtain a valid license.
(4) A person found to be operating a residential care or assisted living facility without a license may be guilty of a misdemeanor punishable by imprisonment in a county jail not to exceed six (6) months, or by a fine not to exceed five thousand dollars ($5,000).
(5) In the event the county attorney in the county where the alleged violation occurred fails or refuses to act within thirty (30) days of notification of the violation, the attorney general is authorized to prosecute violations under the provisions of this section.
[39-3352, added 1990, ch. 116, sec. 2, p. 256; am. 1993, ch. 373, sec. 10, p. 1352; am. 2000, ch. 274, sec. 38, p. 824; am. 2005, ch. 280, sec. 29, p. 897; am. 2025, ch. 208, sec. 16, p. 946.]
The board shall provide by rule a procedure whereby a temporary variance or a permanent waiver of a specific standard may be granted in the event that good cause is shown for such a variance or waiver and providing that a variance or waiver of a standard does not endanger the health and safety of any resident. The decision to grant a variance or waiver shall not be considered as precedent or be given any force or effect in any other proceeding.
[39-3354, added 1990, ch. 116, sec. 2, p. 257; am. 2005, ch. 280, sec. 30, p. 898.]
The department may grant a special waiver of the requirement for licensure as a residential care or assisted living facility when it is deemed in the best interests of individuals and with due consideration of the following criteria:
(1) The individuals are residents of a facility operated by a nonprofit health care and/or housing organization established as such in the state of Idaho and satisfying the requirements of U.S. Internal Revenue Code section 501(c) as a nonprofit;
(2) The support services required by the individuals are furnished by an entity approved to provide such services in the state of Idaho in good standing as demonstrated by routine inspections required for the type of entity providing services;
(3) Facilities seeking such waivers and providing meal service shall be inspected and licensed as a food service establishment by the district health department unless the meal service is provided by a kitchen already part of a facility licensed by the department;
(4) The costs of obtaining the needed services from another source are significantly greater and/or would pose a significant hardship on these individuals.
Any waiver granted under this section shall be reviewed annually and is subject to inspection by the department to ensure safety and sanitation.
[39-3354A, added 1998, ch. 188, sec. 1, p. 683; am. 2000, ch. 274, sec. 40, p. 825; am. 2005, ch. 280, sec. 31, p. 898.]
(1) The licensing agency shall cause to be made such inspections and investigations to determine compliance with this chapter and applicable rules.
(2) Inspections for such purposes will be made unannounced and without prior notice at the discretion of the department and at intervals determined by the licensing agency.
(3) An inspector shall have full access and authority to examine, among other things, quality of care and service delivery, a facility’s records, resident accounts, physical premises, including buildings, grounds and equipment, and any other areas necessary to determine compliance with this chapter and applicable rules.
(4) An inspector shall have authority to interview the licensee, administrator, staff and residents. Interviews with residents shall be confidential and conducted privately unless otherwise specified by the resident.
(5) The licensing agency shall notify the facility, in writing, of all deficiencies and shall approve a reasonable length of time for compliance by the facility.
(6) Current lists of deficiencies, including plans of correction, shall be available to the public upon request in the individual facilities or by written request to the department.
(7) The department shall accept an accreditation survey from an accreditation commission for a residential care or assisted living facility instead of regular compliance inspections conducted under the authority of this section if all of the following conditions are met:
(a) The accreditation commission’s standards meet or exceed the state requirements for licensure for residential care or assisted living facilities;
(b) The facility submits to the department a copy of its required accreditation reports to the accreditation commission in addition to the application and any other information required for renewal of a license;
(c) The inspection results are available for public inspection to the same extent that the results of an investigation or inspection conducted under this section are available for public inspection;
(d) The accreditation commission complies with the health insurance portability and accountability act and takes reasonable precautions to protect the confidentiality of personally identifiable information concerning the residents of the facility; and
(e) If the facility’s accreditation report is not valid for the entire licensure period, the department may conduct a compliance inspection of the facility during the time period for which the department does not have a valid accreditation report.
(8) The department shall not conduct an onsite compliance inspection of the residential care or assisted living facility during the time the accreditation report is valid except for complaint surveys, reportable incidents, or in cases of emergencies. Accreditation does not limit the department in performing any power or duty under this chapter or inspection authorized under this section, including taking appropriate action relating to a residential care or assisted living facility, such as suspending or revoking a license, investigating an allegation of abuse, exploitation, or neglect or another complaint, or assessing an administrative penalty.
[39-3355, added 1990, ch. 116, sec. 2, p. 257; am. 1996, ch. 207, sec. 20, p. 643; am. 2000, ch. 274, sec. 41, p. 826; am. 2005, ch. 280, sec. 32, p. 898; am. 2019, ch. 159, sec. 2, p. 516.]
(1) The licensing agency shall cause to be made such inspections and investigations to determine compliance with this chapter and applicable rules.
(2) Initial inspections, licensure or re-licensure inspections, follow-up inspections, and fire life safety inspections shall be scheduled in advance, with facilities receiving notice at least thirty (30) days prior to the inspection date.
(3) Initial surveys shall be conducted within ninety (90) days of licensure, followed by a licensure survey within fifteen (15) months.
(4) Complaint investigation surveys shall occur based on the potential severity of the complaint and shall be made unannounced and without prior notice.
(5) The department may accept the services of any qualified person or organization, either public or private, to examine, survey, or inspect any entity requesting or holding a facility license, including as described in subsection (13) of this section.
(6) An inspector shall have full access and authority to examine, among other things, quality of care and service delivery, a facility’s records, resident accounts, and physical premises, including buildings, grounds and equipment, and any other areas necessary to determine compliance with this chapter and applicable rules.
(7) An inspector shall have authority to interview the licensee, administrator, staff, and residents. Interviews with residents shall be confidential and conducted privately unless otherwise specified by the resident.
(8) The licensing agency shall notify the facility, in writing, of all deficiencies, provide a proposed plan of correction for all deficiencies, and approve a reasonable length of time for compliance by the facility. At the time of the exit conference, the licensing agency shall provide the facility a written report specifying the non-core issue deficiencies. Facilities are not required to submit plans of correction for non-core deficiencies.
(9) When core issues are identified during a survey, the licensing agency shall provide a written report within ten (10) business days of the exit conference or the last day of receipt of additional material. Facilities may either adopt the proposed plan of correction or submit an alternative plan of correction for approval by the department for core issue deficiencies.
(10) If any deficiencies constitute an immediate jeopardy, the department shall require immediate correction of deficient practice.
(11) Current lists of deficiencies, including plans of correction, shall be available to the public upon request in the individual facilities or by written request to the department.
(12) The licensing agency shall conduct follow-up surveys to ascertain corrections to issues are made according to the time frames established in the plan of correction for core issues. If the department identifies repeat deficient facility practices during any follow-up survey, the department may initiate or extend enforcement actions.
(13) The department shall accept an accreditation survey from an accreditation commission for a residential care or assisted living facility instead of regular compliance inspections conducted under the authority of this section if all of the following conditions are met:
(a) The accreditation commission’s standards meet or exceed the state requirements for licensure for residential care or assisted living facilities;
(b) The facility submits to the department a copy of its required accreditation reports to the accreditation commission in addition to the application and any other information required for renewal of a license;
(c) The inspection results are available for public inspection to the same extent that the results of an investigation or inspection conducted under this section are available for public inspection;
(d) The accreditation commission complies with the health insurance portability and accountability act and takes reasonable precautions to protect the confidentiality of personally identifiable information concerning the residents of the facility; and
(e) If the facility’s accreditation report is not valid for the entire licensure period, the department may conduct a compliance inspection of the facility during the time period for which the department does not have a valid accreditation report.
(14) The department shall establish a self-inspection program for facilities that receive a gold or silver rating, defined as high ratings with no significant deficiencies on the most recent inspection. Qualifying facilities shall conduct self-inspections for complaints received by the department that do not involve health or safety concerns. Facilities shall submit findings and corrective actions to the department. The department retains the authority to conduct verification inspections for complaints involving health or safety concerns or incomplete reports.
(15) The department shall not conduct an on-site compliance inspection of the residential care or assisted living facility during the time the accreditation report is valid except for complaint surveys or in cases of emergencies. Accreditation does not limit the department in performing any power or duty under this chapter or inspection authorized under this section, including taking appropriate action relating to a residential care or assisted living facility, such as suspending or revoking a license, investigating an allegation of abuse, exploitation, or neglect or another complaint, or assessing an administrative penalty.
[39-3355A, added 2025, ch. 208, sec. 18, p. 947.]
(1) The facility shall either accept the proposed plan of correction for core issues or develop and submit an acceptable plan of correction to the licensing agency within ten (10) business days of receipt of the written report of identified core issues. If an acceptable plan of correction is not submitted within the required time frame, the department may initiate or extend enforcement actions.
(2) An acceptable plan of correction shall include:
(a) A plan to ensure correction of each deficient practice and ongoing compliance;
(b) A description of how, and at what frequency, corrective actions will be monitored to ensure that each deficient practice is corrected and will not recur, such as what program will be put into place to monitor the continued effectiveness of the systemic change; and
(c) The completion date for correcting each deficiency. No correction date may be more than forty-five (45) days from the exit date printed on the written report except in unusual circumstances and only with the written approval of the licensing agency.
[39-3355B, added 2025, ch. 208, sec. 19, p. 949.]
(1) A person who believes that any provision of this chapter has been violated may file a complaint with the licensing agency.
(2) The licensing agency shall investigate, or cause to be investigated, any complaint alleging a violation of this chapter or applicable rules, regulations and standards. If the licensing agency reasonably believes a requirement of this chapter has been violated, it shall conduct an inspection of the facility unannounced, unscheduled, and without written notice.
(3) A complaint filed with the licensing agency which is subsequently released to the facility that is the subject of the complaint or to any member of the public shall not disclose the name or identifying characteristics of the complainant unless:
(a) The complainant consents in writing to the disclosure.
(b) The investigation results in a judicial proceeding and disclosure is ordered by the court.
(c) If the disclosure is essential to the investigation, the complainant shall be given an opportunity to withdraw the complaint before disclosure.
(4) The licensing agency shall inform the complainant or, if requested by the complainant, the complainant’s designated representative, of the results of the investigation and any action taken by the agency.
(5) Complaints shall not be listed on the department’s public website. Substantiated complaints that result in a citation may be included in the inspection results on the department’s public website.
[39-3356, added 1990, ch. 116, sec. 2, p. 257; am. 2025, ch. 208, sec. 20, p. 949.]
(1) If the licensing agency finds, on the basis of inspections as defined in this chapter or otherwise, that a residential or assisted living facility no longer meets a requirement of this chapter, and further finds that the facility’s deficiencies:
(a) Immediately jeopardize the health or safety of its residents, the department shall take immediate action to remove the jeopardy and correct the deficiencies through the remedy specified in section 39-3358(1)(c), Idaho Code, or prohibit the facility from keeping or admitting residents and may provide, in addition, for one (1) or more of the other remedies described in section 39-3358, Idaho Code.
(b) Do not immediately jeopardize the health or safety of its residents, the department shall provide for one (1) or more of the remedies described in section 39-3358, Idaho Code.
(2) Nothing in this section shall be construed as restricting the remedies available to the department to remedy a facility’s deficiencies. If the department finds that a facility meets the requirements of this chapter, but, as of a previous period, intentionally did not meet such requirements, the department may provide for a civil money penalty under section 39-3358(1)(b), Idaho Code, for the days in which it finds that the facility was not in compliance with such requirements.
(3) Residential care or assisted living facilities may be cited only for a violation of a requirement that is specified in an applicable law or in a rule promulgated in compliance with an applicable law. Facilities may not be cited for an act that is not expressly proscribed by an applicable law or rule or for an omission when an applicable law or rule does not expressly require the conduct omitted. If the department requires a specific corrective action in relation to a citation, that requirement must be in writing and reference the corresponding rule.
(4) If a civil money penalty is assessed against a facility for deficiencies that do not require relocation of residents or facility closure, the facility may use funds equal to the penalty amount to correct the deficiencies instead of paying the penalty. Documentation of expenditures addressing the deficiencies must be submitted to the department.
(5) Funds collected from such penalties, including those held by the department on July 1, 2025, or collected after such date, may be used by facilities through a department-administered grant program to improve resident care and quality of life. The department shall establish guidelines and a process for grant applications and fund distribution.
[39-3357, added 1990, ch. 116, sec. 2, p. 258; am. 2000, ch. 274, sec. 42, p. 826; am. 2016, ch. 210, sec. 1, p. 593; am. 2025, ch. 208, sec. 21, p. 949.]
(1) The department shall establish at least the following remedies:
(a) Prohibit the facility from admitting residents or prohibit a facility from keeping or admitting residents with a specific diagnosis.
(b) A civil money penalty assessed and collected, with interest, for each day the facility is or was out of compliance with a requirement of this chapter. Funds collected by the department as a result of imposition of such a penalty shall be applied to the protection of the health or property of residents of residential or assisted living facilities that the department finds deficient, including payment for the costs of relocation of residents to other facilities, maintenance of operation of a facility pending correction of deficiencies or closure, and reimbursement of residents for personal funds lost.
(c) The appointment of temporary management to oversee the operation of the facility and to assure the health and safety of the facility’s residents, where there is a need for temporary management while:
(i) There is an orderly closure of the facility.
(ii) Improvements are made in order to bring the facility into compliance with all the requirements of this chapter.
(iii) The temporary management under this clause shall not be terminated until the department has determined that the facility has the management capability to ensure continued compliance with all the requirements of this chapter.
(d) The authority, in the case of an emergency, to summarily suspend the license, to close the facility, and/or to transfer residents in that facility to other facilities.
(2) The department shall also specify criteria as to when and how each of such remedies is to be applied, the amounts of any fines, and the severity of each of these remedies, to be used in the imposition of such remedies. Such criteria shall be designed so as to minimize the time between the identification of violations and final imposition of the remedies and shall provide for the imposition of incrementally more severe fines for repeated or uncorrected deficiencies.
[39-3358, added 1990, ch. 116, sec. 2, p. 258; am. 2000, ch. 274, sec. 43, p. 827.]
This chapter shall be known and may be cited as the "Revised Uniform Anatomical Gift Act."
[39-3401, added 2007, ch. 30, sec. 2, p. 61.]
(1) In addition to any other duties and responsibilities, the director of the department of health and welfare shall register facilities for the storage and/or transport of human bodies or human body parts which are intended for research or for educational purposes. The director shall require such facilities to certify that the human body, part or parts to be supplied did not come from a person who has tested positive for acquired immunodeficiency syndrome (AIDS), AIDS related complexes (ARC), or other manifestations of human immunodeficiency virus (HIV) infection, and that the test was negative for the presence of HIV antibodies or antigens, hepatitis or other communicable diseases as that term is defined in departmental administrative rule.
(2) All facilities referred to in this section shall provide to the department, on a form provided by the department, the following: a place of business, legal mailing address, and a description of the nature of the facility, including the mechanism or manner of acquisition, storage and transport of human bodies or human body parts.
(3) The board of health and welfare shall promulgate rules implementing the provisions of this section.
(4) The director may initiate a civil enforcement action through the attorney general as provided in this subsection. 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 section or any rule or order that has become effective pursuant to this section. Such action may be brought to compel compliance with any provision of this section or with any rule or order promulgated hereunder. The director shall not be required to initiate or prosecute an administrative action before initiating a civil enforcement action.
(5) Any person determined in a civil enforcement action to have violated any provision of this section or any rule or order promulgated pursuant to this section shall be liable for a civil penalty not to exceed one thousand dollars ($1,000) per violation. 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 section shall be paid into the general fund of the state.
[39-3401A, added 2008, ch. 256, sec. 1, p. 748.]
In this chapter:
(1) "Adult" means an individual who is at least eighteen (18) years of age.
(2) "Agent" means an individual:
(a) Authorized to make health care decisions on the principal’s behalf by a power of attorney for health care; or
(b) Expressly authorized to make an anatomical gift on the principal’s behalf by any other record signed by the principal.
(3) "Anatomical gift" means a donation of all or part of a human body to take effect after the donor’s death for the purpose of transplantation, therapy, research or education.
(4) "Decedent" means a deceased individual whose body or part is or may be the source of an anatomical gift. The term includes a stillborn infant and, subject to restrictions imposed by law other than this chapter, a fetus.
(5) "Disinterested witness" means a witness other than the spouse, child, parent, sibling, grandchild, grandparent or guardian of the individual who makes, amends, revokes or refuses to make an anatomical gift, or another adult who exhibited special care and concern for the individual. The term does not include a person to which an anatomical gift could pass under section 39-3412, Idaho Code.
(6) "Document of gift" means a donor card or other record used to make an anatomical gift. The term includes a statement or symbol on a driver’s license, identification card or donor registry.
(7) "Donor" means an individual whose body or part is the subject of an anatomical gift.
(8) "Donor registry" means a database that contains records of anatomical gifts and amendments to or revocations of anatomical gifts.
(9) "Driver’s license" means a license or permit issued by the Idaho transportation department to operate a vehicle, whether or not conditions are attached to the license or permit.
(10) "Eye bank" means a person that is licensed, accredited, or regulated under federal or state law to engage in the recovery, screening, testing, processing, storage or distribution of human eyes or portions of human eyes.
(11) "Guardian" means a person appointed by a court to make decisions regarding the support, care, education, health or welfare of an individual. The term does not include a guardian ad litem.
(12) "Hospital" means a facility licensed as a hospital under the law of any state or a facility operated as a hospital by the United States, a state, or a subdivision of a state.
(13) "Identification card" means an identification card issued by the Idaho transportation department.
(14) "Know" means to have actual knowledge.
(15) "Minor" means an individual who is under eighteen (18) years of age.
(16) "Organ procurement organization" means a person designated by the secretary of the United States department of health and human services as an organ procurement organization.
(17) "Parent" means a parent whose parental rights have not been terminated.
(18) "Part" means an organ, an eye, or tissue of a human being. The term does not include the whole body.
(19) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency or instrumentality, or any other legal or commercial entity.
(20) "Physician" means an individual authorized to practice medicine or osteopathy under the law of any state.
(21) "Procurement organization" means an eye bank, organ procurement organization, or tissue bank.
(22) "Prospective donor" means an individual who is dead or near death and who has been determined by a procurement organization to have a part that could be medically suitable for transplantation, therapy, research or education. The term does not include an individual who has made a refusal.
(23) "Reasonably available" means able to be contacted by a procurement organization without undue effort and willing and able to act in a timely manner consistent with existing medical criteria necessary for the making of an anatomical gift.
(24) "Recipient" means an individual into whose body a decedent’s part has been or is intended to be transplanted.
(25) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(26) "Refusal" means a record created under section 39-3407, Idaho Code, that expressly states an intent to bar other persons from making an anatomical gift of an individual’s body or part.
(27) "Sign" means, with the present intent to authenticate or adopt a record:
(a) To execute or adopt a tangible symbol; or
(b) To attach to or logically associate with the record an electronic symbol, sound or process.
(28) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.
(29) "Technician" means an individual determined to be qualified to remove or process parts by an appropriate organization that is licensed, accredited or regulated under federal or state law. The term includes an enucleator.
(30) "Tissue" means a portion of the human body other than an organ or an eye. The term does not include blood unless the blood is donated for the purpose of research or education.
(31) "Tissue bank" means a person that is licensed, accredited, or regulated under federal or state law to engage in the recovery, screening, testing, processing, storage or distribution of tissue.
(32) "Transplant hospital" means a hospital that furnishes organ transplants and other medical and surgical specialty services required for the care of transplant patients.
[39-3402, added 2007, ch. 30, sec. 2, p. 61.]
This chapter applies to an anatomical gift or amendment to, revocation of, or refusal to make an anatomical gift, whenever made.
[39-3403, added 2007, ch. 30, sec. 2, p. 63.]
Subject to section 39-3408, Idaho Code, an anatomical gift of a donor’s body or part may be made during the life of the donor for the purpose of transplantation, therapy, research or education in the manner provided in section 39-3405, Idaho Code, by:
(1) The donor, if the donor is an adult or if the donor is a minor and is:
(a) Emancipated; or
(b) At least fifteen (15) years of age, provided however, that if the donor is fifteen (15) years of age or older and less than eighteen (18) years of age, a parent or an adult guardian must consent in writing in the presence of the donor.
(2) An agent of the donor, unless the power of attorney for health care or other record prohibits the agent from making an anatomical gift;
(3) A parent of the donor, if the donor is an unemancipated minor; or
(4) The donor’s guardian.
[39-3404, added 2007, ch. 30, sec. 2, p. 63; am. 2018, ch. 191, sec. 1, p. 417.]
(1) A donor may make an anatomical gift:
(a) By authorizing a statement or symbol indicating that the donor has made an anatomical gift to be imprinted on the donor’s driver’s license or identification card;
(b) In a will;
(c) During a terminal illness or injury of the donor, by any form of communication addressed to at least two (2) adults, at least one (1) of whom is a disinterested witness; or
(d) As provided in subsection (2) of this section.
(2) A donor or other person authorized to make an anatomical gift under section 39-3404, Idaho Code, may make a gift by a donor card or other record signed by the donor or other person making the gift or by authorizing that a statement or symbol indicating that the donor has made an anatomical gift be included on a donor registry. If the donor or other person is physically unable to sign a record, the record may be signed by another individual at the direction of the donor or other person and must:
(a) Be witnessed by at least two (2) adults, at least one (1) of whom is a disinterested witness, who have signed at the request of the donor or the other person; and
(b) State that it has been signed and witnessed as provided in paragraph (a) of this subsection.
(3) Revocation, suspension, expiration or cancellation of a driver’s license or identification card upon which an anatomical gift is indicated does not invalidate the gift.
(4) An anatomical gift made by will takes effect upon the donor’s death whether or not the will is probated. Invalidation of the will after the donor’s death does not invalidate the gift.
[39-3405, added 2007, ch. 30, sec. 2, p. 63.]
(1) Subject to section 39-3408, Idaho Code, a donor or other person authorized to make an anatomical gift under section 39-3404, Idaho Code, may amend or revoke an anatomical gift by:
(a) A record signed by:
(i) The donor;
(ii) The other person; or
(iii) Subject to subsection (2) of this section, another individual acting at the direction of the donor or the other person if the donor or other person is physically unable to sign; or
(b) A later-executed document of gift that amends or revokes a previous anatomical gift or portion of an anatomical gift, either expressly or by inconsistency.
(2) A record signed pursuant to subsection (1)(a)(iii) of this section must:
(a) Be witnessed by at least two (2) adults, at least one (1) of whom is a disinterested witness, who have signed at the request of the donor or the other person; and
(b) State that it has been signed and witnessed as provided in paragraph (a) of this subsection.
(3) Subject to section 39-3408, Idaho Code, a donor or other person authorized to make an anatomical gift under section 39-3404, Idaho Code, may revoke an anatomical gift by the destruction or cancellation of the document of gift, or the portion of the document of gift used to make the gift, with the intent to revoke the gift.
(4) A donor may amend or revoke an anatomical gift that was not made in a will by any form of communication during a terminal illness or injury addressed to at least two (2) adults, at least one (1) of whom is a disinterested witness.
(5) A donor who makes an anatomical gift in a will may amend or revoke the gift in the manner provided for amendment or revocation of wills or as provided in subsection (1) of this section.
[39-3406, added 2007, ch. 30, sec. 2, p. 64.]
(1) An individual may refuse to make an anatomical gift of the individual’s body or part by:
(a) A record signed by:
(i) The individual; or
(ii) Subject to subsection (2) of this section, another individual acting at the direction of the individual if the individual is physically unable to sign;
(b) The individual’s will, whether or not the will is admitted to probate or invalidated after the individual’s death; or
(c) Any form of communication made by the individual during the individual’s terminal illness or injury addressed to at least two (2) adults, at least one (1) of whom is a disinterested witness.
(2) A record signed pursuant to subsection (1)(a)(ii) of this section must:
(a) Be witnessed by at least two (2) adults, at least one (1) of whom is a disinterested witness, who have signed at the request of the individual; and
(b) State that it has been signed and witnessed as provided in paragraph (a) of this subsection.
(3) An individual who has made a refusal may amend or revoke the refusal:
(a) In the manner provided in subsection (1) of this section for making a refusal;
(b) By subsequently making an anatomical gift pursuant to section 39-3405, Idaho Code, that is inconsistent with the refusal; or
(c) By destroying or canceling the record evidencing the refusal, or the portion of the record used to make the refusal, with the intent to revoke the refusal.
(4) Except as otherwise provided in section 39-3408(8), Idaho Code, in the absence of an express, contrary indication by the individual set forth in the refusal, an individual’s unrevoked refusal to make an anatomical gift of the individual’s body or part bars all other persons from making an anatomical gift of the individual’s body or part.
[39-3407, added 2007, ch. 30, sec. 2, p. 65.]
(1) Except as otherwise provided in subsection (7) of this section and subject to subsection (6) of this section, in the absence of an express, contrary indication by the donor, a person other than the donor is barred from making, amending or revoking an anatomical gift of a donor’s body or part if the donor made an anatomical gift of the donor’s body or part under section 39-3405, Idaho Code, or an amendment to an anatomical gift of the donor’s body or part under section 39-3406, Idaho Code.
(2) A donor’s revocation of an anatomical gift of the donor’s body or part under section 39-3406, Idaho Code, is not a refusal and does not bar another person specified in section 39-3404 or 39-3409, Idaho Code, from making an anatomical gift of the donor’s body or part under section 39-3405 or 39-3410, Idaho Code.
(3) If a person other than the donor makes an unrevoked anatomical gift of the donor’s body or part under section 39-3405, Idaho Code, or an amendment to an anatomical gift of the donor’s body or part under section 39-3406, Idaho Code, another person may not make, amend or revoke the gift of the donor’s body or part under section 39-3410, Idaho Code.
(4) A revocation of an anatomical gift of a donor’s body or part under section 39-3406, Idaho Code, by a person other than the donor does not bar another person from making an anatomical gift of the body or part under section 39-3405 or 39-3410, Idaho Code.
(5) In the absence of an express, contrary indication by the donor or other person authorized to make an anatomical gift under section 39-3404, Idaho Code, an anatomical gift of a part is neither a refusal to give another part nor a limitation on the making of an anatomical gift of another part at a later time by the donor or another person.
(6) In the absence of an express, contrary indication by the donor or other person authorized to make an anatomical gift under section 39-3404, Idaho Code, an anatomical gift of a part for one (1) or more of the purposes set forth in section 39-3404, Idaho Code, is not a limitation on the making of an anatomical gift of the part for any of the other purposes by the donor or any other person under section 39-3405 or 39-3410, Idaho Code.
(7) If a donor who is an unemancipated minor dies, a parent of the donor who is reasonably available may revoke or amend an anatomical gift of the donor’s body or part.
(8) If an unemancipated minor who signed a refusal dies, a parent of the minor who is reasonably available may revoke the minor’s refusal.
[39-3408, added 2007, ch. 30, sec. 2, p. 65.]
(1) Subject to subsections (2) and (3) of this section and unless barred by section 39-3407 or 39-3408, Idaho Code, an anatomical gift of a decedent’s body or part for purpose of transplantation, therapy, research or education may be made by any member of the following classes of persons who is reasonably available, in the order of priority listed:
(a) An agent of the decedent at the time of death who could have made an anatomical gift under section 39-3404(2), Idaho Code, immediately before the decedent’s death;
(b) The spouse of the decedent;
(c) Adult children of the decedent;
(d) Parents of the decedent;
(e) Adult siblings of the decedent;
(f) Adult grandchildren of the decedent;
(g) Grandparents of the decedent;
(h) An adult who exhibited special care and concern for the decedent;
(i) The persons who were acting as the guardians of the person of the decedent at the time of death; and
(j) Any other person having the authority to dispose of the decedent’s body.
(2) If there is more than one (1) member of a class listed in subsection (1)(a), (c), (d), (e), (f), (g) or (i) of this section entitled to make an anatomical gift, an anatomical gift may be made by a member of the class unless that member or a person to which the gift may pass under section 39-3412, Idaho Code, knows of an objection by another member of the class. If an objection is known, the gift may be made only by a majority of the members of the class who are reasonably available.
(3) A person may not make an anatomical gift if, at the time of the decedent’s death, a person in a prior class under subsection (1) of this section is reasonably available to make or to object to the making of an anatomical gift.
[39-3409, added 2007, ch. 30, sec. 2, p. 66.]
(1) A person authorized to make an anatomical gift under section 39-3409, Idaho Code, may make an anatomical gift by a document of gift signed by the person making the gift or by that person’s oral communication that is electronically recorded or is contemporaneously reduced to a record and signed by the individual receiving the oral communication.
(2) Subject to subsection (3) of this section, an anatomical gift by a person authorized under section 39-3409, Idaho Code, may be amended or revoked orally or in a record by any member of a prior class who is reasonably available. If more than one (1) member of the prior class is reasonably available, the gift made by a person authorized under section 39-3409, Idaho Code, may be:
(a) Amended only if a majority of the reasonably available members agree to the amending of the gift; or
(b) Revoked only if a majority of the reasonably available members agree to the revoking of the gift or if they are equally divided as to whether to revoke the gift.
(3) A revocation under subsection (2) of this section is effective only if, before an incision has been made to remove a part from the donor’s body or before invasive procedures have begun to prepare the recipient, the procurement organization, transplant hospital, or physician or technician knows of the revocation.
[39-3410, added 2007, ch. 30, sec. 2, p. 67.]
In the absence of a document of gift or other evidence of an individual’s intention to make or refuse to make an anatomical gift, the following information shall be provided to any person or persons, listed in section 39-3409, Idaho Code, approached for purposes of obtaining informed consent:
(1) A confirmation of the donor’s identity and his or her clinical terminal condition;
(2) A general description of the purposes of anatomical gift donation;
(3) Identification of specific organs and/or tissues, including cells, that are being requested for donation, provided that subsequent information on the specific gifts recovered shall be supplied;
(4) An explanation that the retrieved organs and/or tissues may be used for transplantation, therapy, medical research or educational purposes;
(5) A general description of the recovery process including, but not limited to, timing, relocation of the donor if applicable, and contact information;
(6) An explanation that laboratory tests and a medical and/or social history will be completed to determine the medical suitability of the donor and that blood samples from the donor will be tested for certain transmissible diseases, including testing for HIV antibodies or antigens;
(7) An explanation that the spleen, lymph nodes and blood may be removed, and cultures may be performed, for the purpose of determining donor suitability and donor and recipient capability;
(8) A statement granting access to the donor’s medical records and providing that the medical records may be released to other appropriate parties;
(9) An explanation that costs directly related to the evaluation, recovery, preservation and placement of the organs and/or tissues will not be charged to the family members of the donor;
(10) An explanation of the impact the donation process may have on burial arrangements and on the appearance of the donor’s body; and
(11) A statement that tissues or parts may be retrieved and/or used by for-profit procurement entities.
[39-3411, added 2007, ch. 30, sec. 2, p. 67.]
(1) An anatomical gift may be made to the following persons named in the document of gift:
(a) A hospital; accredited medical school, dental school, college, or university; organ procurement organization; or other appropriate person, for research or education;
(b) Subject to subsection (2) of this section, an individual designated by the person making the anatomical gift if the individual is the recipient of the part;
(c) An eye bank or tissue bank.
(2) If an anatomical gift to an individual under subsection (1)(b) of this section cannot be transplanted into the individual, the part passes in accordance with subsection (7) of this section in the absence of an express, contrary indication by the person making the anatomical gift.
(3) If an anatomical gift of one (1) or more specific parts or of all parts is made in a document of gift that does not name a person described in subsection (1) of this section but identifies the purpose for which an anatomical gift may be used, the following rules apply:
(a) If the part is an eye and the gift is for the purpose of transplantation or therapy, the gift passes to the appropriate eye bank.
(b) If the part is tissue and the gift is for the purpose of transplantation or therapy, the gift passes to the appropriate tissue bank.
(c) If the part is an organ and the gift is for the purpose of transplantation or therapy, the gift passes to the appropriate organ procurement organization as custodian of the organ.
(d) If the part is an organ, an eye, or tissue and the gift is for the purpose of research or education, the gift passes to the appropriate procurement organization.
(4) For the purpose of subsection (3) of this section, if there is more than one (1) purpose of an anatomical gift set forth in the document of gift but the purposes are not set forth in any priority, the gift must be used for transplantation or therapy, if suitable. If the gift cannot be used for transplantation or therapy, the gift may be used for research or education.
(5) If an anatomical gift of one (1) or more specific parts is made in a document of gift that does not name a person described in subsection (1) of this section and does not identify the purpose of the gift, the gift may be used only for transplantation or therapy, and the gift passes in accordance with subsection (7) of this section.
(6) If a document of gift specifies only a general intent to make an anatomical gift by words such as "donor," "organ donor" or "body donor," or by a symbol or statement of similar import, the gift may be used only for transplantation or therapy, and the gift passes in accordance with subsection (7) of this section.
(7) For purposes of subsections (2), (5) and (6) of this section, the following rules apply:
(a) If the part is an eye, the gift passes to the appropriate eye bank.
(b) If the part is tissue, the gift passes to the appropriate tissue bank.
(c) If the part is an organ, the gift passes to the appropriate organ procurement organization as custodian of the organ.
(8) An anatomical gift of an organ for transplantation or therapy, other than an anatomical gift under subsection (1)(b) of this section, passes to the organ procurement organization as custodian of the organ.
(9) If an anatomical gift does not pass pursuant to subsections (1) through (8) of this section or the decedent’s body or part is not used for transplantation, therapy, research or education, custody of the body or part passes to the person under obligation to dispose of the body or part.
(10) A person may not accept an anatomical gift if the person knows that the gift was not effectively made under section 39-3405 or 39-3410, Idaho Code, or if the person knows that the decedent made a refusal under section 39-3407, Idaho Code, that was not revoked. For purposes of this subsection, if a person knows that an anatomical gift was made on a document of gift, the person is deemed to know of any amendment or revocation of the gift or any refusal to make an anatomical gift on the same document of gift.
(11) Except as otherwise provided in subsection (1)(b) of this section, nothing in this chapter affects the allocation of organs for transplantation or therapy.
[39-3412, added 2007, ch. 30, sec. 2, p. 68.]
(1) For purposes of this section, "first responder" means a law enforcement officer, firefighter, emergency medical services provider, coroner or other emergency rescuer.
(2) The following persons shall make a reasonable search of an individual who the person reasonably believes is dead or near death for a document of gift or other information identifying the individual as a donor or as an individual who made a refusal:
(a) A first responder finding the individual; and
(b) If no other source of the information is immediately available, a hospital, as soon as practical after the individual’s arrival at the hospital.
(3) For all individuals identified as a donor, following the determination that an individual is deceased by a person qualified to do so, such person shall, as soon as reasonably possible, notify the Idaho state communication center of the location where the deceased will be or has been transported to and include the deceased individual’s name and date of birth if known. The Idaho state communication center shall, as soon as reasonably possible, notify the appropriate organ procurement organization, tissue bank or eye bank.
(4) If a document of gift or a refusal to make an anatomical gift is located by the search required by subsection (2)(a) of this section and the individual or deceased individual to whom it relates is taken to a hospital, the person responsible for conducting the search shall send the document of gift or refusal to the hospital.
(5) A person is not subject to criminal or civil liability for failing to discharge the duties imposed by this section.
[39-3413, added 2007, ch. 30, sec. 2, p. 69; am. 2013, ch. 247, sec. 1, p. 597.]
(1) A document of gift need not be delivered during the donor’s lifetime to be effective.
(2) Upon or after an individual’s death, a person in possession of a document of gift or a refusal to make an anatomical gift with respect to the individual shall allow examination and copying of the document of gift or refusal by a person authorized to make or object to the making of an anatomical gift with respect to the individual or by a person to which the gift could pass under section 39-3412, Idaho Code.
[39-3414, added 2007, ch. 30, sec. 2, p. 69.]
(1) When a hospital refers an individual at or near death to a procurement organization, the organization shall make a reasonable search of the records of the Idaho transportation department and any donor registry that it knows exist for the geographical area in which the individual resides to ascertain whether the individual has made an anatomical gift.
(2) A procurement organization must be allowed reasonable access to information in the records of the Idaho transportation department to ascertain whether an individual at or near death is a donor.
(3) When a hospital refers an individual at or near death to a procurement organization, the organization may conduct any reasonable examination necessary to ensure the medical suitability of a part that is or could be the subject of an anatomical gift for transplantation, therapy, research or education from a donor or a prospective donor. During the examination period, measures necessary to ensure the medical suitability of the part may not be withdrawn unless the hospital or procurement organization knows that the individual expressed a contrary intent.
(4) Unless prohibited by law other than this chapter, at any time after a donor’s death, the person to which a part passes under section 39-3412, Idaho Code, may conduct any reasonable examination necessary to ensure the medical suitability of the body or part for its intended purpose.
(5) Unless prohibited by law other than this chapter, an examination under subsection (3) or (4) of this section may include an examination of all medical and dental records of the donor or prospective donor.
(6) Upon the death of a minor who was a donor or who had signed a refusal, unless a procurement organization knows the minor is emancipated, the procurement organization shall conduct a reasonable search for the parents of the minor and provide the parents with an opportunity to revoke or amend the anatomical gift or revoke the refusal.
(7) Upon referral by a hospital under subsection (1) of this section, a procurement organization shall make a reasonable search for any person listed in section 39-3409, Idaho Code, having priority to make an anatomical gift on behalf of a prospective donor. If a procurement organization receives information that an anatomical gift to any other person was made, amended or revoked, it shall promptly advise the other person of all relevant information.
(8) Subject to section 39-3412(9), Idaho Code, the rights of the person to which a part passes under section 39-3412, Idaho Code, are superior to the rights of all others with respect to the part. The person may accept or reject an anatomical gift in whole or in part. Subject to the terms of the document of gift and this chapter, a person that accepts an anatomical gift of an entire body may allow embalming, burial or cremation, and use of remains in a funeral service. If the gift is of a part, the person to which the part passes under section 39-3412, Idaho Code, upon the death of the donor and before embalming, burial or cremation, shall cause the part to be removed without unnecessary mutilation.
(9) Neither the physician who attends the decedent at death nor the physician who determines the time of the decedent’s death may participate in the procedures for removing or transplanting a part from the decedent.
(10) A physician or technician may remove a donated part from the body of a donor that the physician or technician is qualified to remove.
[39-3415, added 2007, ch. 30, sec. 2, p. 70.]
Each hospital in this state shall enter into agreements or affiliations with procurement organizations for coordination of procurement and use of anatomical gifts.
[39-3416, added 2007, ch. 30, sec. 2, p. 71.]
(1) Except as otherwise provided in subsection (2) of this section, a person that for valuable consideration, knowingly purchases or sells a part for transplantation or therapy if removal of a part from an individual is intended to occur after the individual’s death commits a felony and upon conviction is subject to a fine not exceeding fifty thousand dollars ($50,000) or imprisonment not exceeding five (5) years, or both such fine and imprisonment.
(2) A person may charge a reasonable amount for the removal, processing, preservation, quality control, storage, transportation, implantation or disposal of a part.
(3) A coroner acting pursuant to this section shall not authorize the removal of a part from a body within the coroner’s custody if the coroner, or any deputy or agent of the coroner, derives or may derive any direct or indirect financial benefit relative to the removal, donation or use of the part.
[39-3417, added 2007, ch. 30, sec. 2, p. 71.]
A person that, in order to obtain a financial gain, intentionally falsifies, forges, conceals, defaces or obliterates a document of gift, an amendment or revocation of a document of gift, or a refusal commits a felony and upon conviction is subject to a fine not exceeding fifty thousand dollars ($50,000) or imprisonment not exceeding five (5) years, or both such fine and imprisonment.
[39-3418, added 2007, ch. 30, sec. 2, p. 71.]
(1) A person that acts in accordance with this chapter or with the applicable anatomical gift law of another state, or attempts in good faith to do so, is not liable for the act in a civil action, criminal prosecution or administrative proceeding.
(2) Neither the person making an anatomical gift nor the donor’s estate is liable for any injury or damage that results from the making or use of the gift.
(3) In determining whether an anatomical gift has been made, amended or revoked under this chapter, a person may rely upon representations of an individual listed in section 39-3409(1)(b), (c), (d), (e), (f), (g) or (h), Idaho Code, relating to the individual’s relationship to the donor or prospective donor unless the person knows that the representation is untrue.
[39-3419, added 2007, ch. 30, sec. 2, p. 71.]
(1) A document of gift is valid if executed in accordance with:
(a) This chapter;
(b) The laws of the state or country where it was executed; or
(c) The laws of the state or country where the person making the anatomical gift was domiciled, has a place of residence or was a national at the time the document of gift was executed.
(2) If a document of gift is valid under this section, the law of this state governs the interpretation of the document of gift.
(3) A person may presume that a document of gift or amendment of an anatomical gift is valid unless that person knows that it was not validly executed or was revoked.
[39-3420, added 2007, ch. 30, sec. 2, p. 71.]
(1) The Idaho transportation department shall cooperate with a person that administers any donor registry that this state establishes, contracts for, or recognizes for the purpose of transferring to the donor registry all relevant information regarding a donor’s making, amendment to, or revocation of an anatomical gift.
(2) A donor registry must:
(a) Allow a donor or other person authorized under section 39-3404, Idaho Code, to include on the donor registry a statement or symbol that the donor has made, amended or revoked an anatomical gift;
(b) Be accessible to a procurement organization to allow it to obtain relevant information on the donor registry to determine, at or near death of the donor or a prospective donor, whether the donor or prospective donor has made, amended or revoked an anatomical gift; and
(c) Be accessible for purposes of paragraphs (a) and (b) of this subsection seven (7) days a week on a twenty-four (24) hour basis.
(3) Personally identifiable information on a donor registry about a donor or prospective donor shall not be used or disclosed without the express consent of the donor, prospective donor, or person that made the anatomical gift for any purpose other than to determine, at or near death of the donor or prospective donor, whether the donor or prospective donor has made, amended or revoked an anatomical gift.
(4) This section does not prohibit any person from creating or maintaining a donor registry that is not established by or under contract with the state. Any such registry must comply with subsections (2) and (3) of this section.
[39-3421, added 2007, ch. 30, sec. 2, p. 72.]
(1) In this section:
(a) "Advance health care directive" means a power of attorney for health care or a record signed or authorized by a prospective donor containing the prospective donor’s direction concerning a health care decision for the prospective donor.
(b) "Declaration" means a record signed by a prospective donor specifying the circumstances under which a life support system may be withheld or withdrawn from the prospective donor.
(c) "Health care decision" means any decision regarding the health care of the prospective donor.
(2) If a prospective donor has a declaration or advance health care directive and the terms of the declaration or directive and the express or implied terms of a potential anatomical gift are in conflict with regard to the administration of measures necessary to ensure the medical suitability of a part for transplantation or therapy, the prospective donor’s attending physician and prospective donor shall confer to resolve the conflict. If the prospective donor is incapable of resolving the conflict, an agent acting under the prospective donor’s declaration or directive, or, if none or the agent is not reasonably available, another person authorized by law other than this chapter to make health care decisions on behalf of the prospective donor, shall act for the donor to resolve the conflict. The conflict must be resolved as expeditiously as possible. Information relevant to the resolution of the conflict may be obtained from the appropriate procurement organization and any other person authorized to make an anatomical gift for the prospective donor under section 39-3409, Idaho Code. Before resolution of the conflict, measures necessary to ensure the medical suitability of the part may not be withheld or withdrawn from the prospective donor if withholding or withdrawing the measures is not contraindicated by appropriate end-of-life care.
[39-3422, added 2007, ch. 30, sec. 2, p. 72; am. 2009, ch. 176, sec. 1, p. 556.]
(1) A coroner shall cooperate with procurement organizations to maximize the opportunity to recover anatomical gifts for the purpose of transplantation, therapy, research or education.
(2) A part may not be removed from the body of a decedent under the jurisdiction of a coroner for transplantation, therapy, research or education unless the part is the subject of an anatomical gift and the removal will not interfere with any autopsy or investigation. The body of a decedent under the jurisdiction of the coroner may not be delivered to a person for research or education unless the body is the subject of an anatomical gift. This subsection does not preclude a coroner from performing the medicolegal investigation upon the body or parts of a decedent under the jurisdiction of the coroner.
[39-3423, added 2007, ch. 30, sec. 2, p. 73.]
In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
[39-3424, added 2007, ch. 30, sec. 2, p. 73.]
This chapter modifies, limits and supersedes the electronic signatures in global and national commerce act, 15 U.S.C. section 7001 et seq., but does not modify, limit or supersede section 101(a) of that act or authorize electronic delivery of any of the notices described in section 103(b) of that act.
[39-3425, added 2007, ch. 30, sec. 2, p. 73.]
(1) The purpose of a certified family home in Idaho is to provide a homelike alternative to more expensive or more restrictive congregate care or institutional care, designed to allow vulnerable adults to reside in a family-style living environment focused on integrated community living. Certified family homes provide housing and care to vulnerable adults who are elderly, who have mental illnesses, developmental disabilities, or physical disabilities, or who are otherwise unable to live alone without personal assistance and whose mental, emotional, and physical condition can be met by the care provider. The legislature supports the capabilities of individuals receiving services in certified family homes to direct their own care. The care provider must obtain a waiver to house and care for two (2) persons requiring care at a nursing facility as defined in section 39-1301, Idaho Code.
(2) The certified family home shall be operated by a care provider who has demonstrated the knowledge and experience required to provide safe and appropriate services to each resident of the certified family home. The care provider shall ensure an objective, individualized assessment is conducted to determine resident needs and shall develop a comprehensive, negotiated plan of service describing how to meet those needs. The care provider shall ensure delivery of appropriate services to meet resident needs as described in the plan of service and shall ensure resident rights are honored and protected.
(3) The department is responsible for monitoring and enforcing the provisions of this chapter. This responsibility includes but is not limited to monitoring the condition of the certified family home, ensuring that each resident has an individualized written plan of service, and managing enforcement procedures when violations occur.
[39-3501, added 2024, ch. 63, sec. 2, p. 311; am. 2025, ch. 122, sec. 33, p. 639.]
As used in this chapter:
(1) "Abuse" means a nonaccidental act of sexual, physical, or mental mistreatment or injury of a resident through the action or inaction of another individual.
(2) "Activities of daily living" means the performance of basic self-care activities in meeting resident needs to sustain the resident in a daily living environment, including but not limited to bathing, washing, dressing, toileting, grooming, eating, communication, continence, mobility, and associated tasks.
(3) "Adult" means a person who has attained the age of eighteen (18) years.
(4) "Advocate" means an authorized or designated representative of a program or organization operating under federal or state mandate to represent the interests of a population group served by the certified family home.
(5) "Assessment" means the conclusions reached using uniform criteria that identifies resident strengths, weaknesses, risks, and functional, medical, and behavioral needs.
(6) "Board" means the board of health and welfare.
(7) "Care provider" means the adult member of the certified family home designated as the care provider on the certificate issued by the department. The care provider is responsible for ensuring the resident’s needs are met, maintaining the home, and otherwise ensuring compliance with all laws and rules pertaining to the care provider’s certification. The care provider and the legal owner of the home may not necessarily be the same person.
(8) "Certified family home" means a home and care provider certified by the department to provide housing in a family-style living environment and care to one (1) to four (4) residents.
(9) "Certifying agent" means any person who under the authority of the department participates in the certification, inspection, and regulation of a proposed or existing certified family home.
(10) "Chemical restraint" means any drug that is used for discipline or convenience and not required to treat medical symptoms.
(11) "Core issues" means any of the following: abuse; neglect; exploitation; inadequate care; inoperable fire detection or extinguishing systems with no fire watch in place pending the correction of the system; operation without required department criminal history and background check clearances or with an unconditional denial of such clearance; and situations in which advocates, representatives of the department, or certifying agents are denied access to records, residents, or the certified family home according to their respective authorities.
(12) "Critical incident" means any actual or alleged event or situation that creates a significant risk of serious harm to the safety or well-being of a resident.
(13) "Department" means the Idaho department of health and welfare.
(14) "Director" means the director of the Idaho department of health and welfare.
(15) "Exploitation" means the illegal or improper use of, control over, or withholding of the property, income, resources, or trust fund of a vulnerable adult by any person or entity for profit or advantage other than for the vulnerable adult’s profit or advantage.
(16) "Governmental unit" means the state, any county, any city, any other political subdivision, or any department, division, board, or other agency thereof.
(17) "Health care professional" means a licensed worker in the field of medicine, nursing, anesthesiology, occupational or physical therapy, chiropractics, counseling, nutrition, dentistry, optometry, audiology, psychiatry, or any other profession focused on diagnosing or treating human health or wellness licensed by the state of Idaho.
(18) "Inadequate care" occurs when a certified family home: fails to provide the services required to meet the terms of any resident’s negotiated plan of service or to provide for room, board, assistance as needed with activities of daily living or instrumental activities of daily living, appropriate supervision, proper assistance and monitoring of medications, first aid or other emergency intervention as needed, coordination of supportive services, or a safe living environment; engages in any violation of residents’ rights; or admits or retains residents in violation of the provisions of section 39-3507, Idaho Code.
(19) "Incidental supervision" occurs when the care provider designates a responsible adult to provide only short-term supervision to the resident in the brief absence of the care provider.
(20) "Instrumental activities of daily living" means the performance of secondary level activities that enable a person to live independently in the community, including but not limited to preparing meals, accessing transportation, shopping, laundry, money management, housework, using tools and technology, and other associated tasks.
(21) "Medical foster home" means a private home approved by the department of veterans affairs in which a caregiver provides long-term primary health care to veteran residents with serious chronic disease and disability, as described in 38 CFR 17.
(22) "Neglect" means failure to ensure the provision of adequate food, clothing, shelter, or medical care reasonably necessary to sustain the life and health of a resident.
(23) "Personal assistance" means the provision by the certified family home of one (1) or more of the following services:
(a) Assisting the resident with activities of daily living or instrumental activities of daily living;
(b) Assisting the resident with medications;
(c) Coordinating supportive services for the resident;
(d) Supporting the resident with adequate and appropriate supervision; and
(e) Encouraging the resident toward independence and supporting the resident’s self-advocacy.
(24) "Physical restraint" means any manual method or physical or mechanical device, equipment, or material that is attached or adjacent to the resident’s body and that cannot be easily removed by the resident, that restricts the resident’s movement or normal access to the resident’s body, and that is imposed on the resident for reasons of discipline or convenience and not as a treatment for a condition as ordered by the resident’s health care professional.
(25) "Plan of service" means the negotiated agreement reached between the care provider and the resident or the resident representative, if applicable, describing the obligations of the certified family home for the resident’s care.
(26) "Political subdivision" means a city or county.
(27) "Primary residence" means a person’s place of permanent domicile or residence and to which, when the person is temporarily absent, the person intends to return.
(28) "Relative" means a person related by birth, adoption, or marriage to the third degree, including spouses, parents, children, siblings, grandparents, grandchildren, aunts, uncles, nephews, nieces, great-grandparents, great-grandchildren, great-aunts, great-uncles, and first cousins.
(29) "Representative of the department" means an employee of the department.
(30) "Resident" means an adult who lives in a certified family home who has contracted with the care provider to receive care and housing and who is not able to reside in his own home without personal assistance or who requires help in daily living, protection and security, supervision, or encouragement toward independence.
(31)(a) "Resident representative" means any of the following:
(i) A court-appointed guardian or conservator of the resident;
(ii) A person authorized by state or federal law, including but not limited to agents under power of attorney or representative payees and other fiduciaries, to act on behalf of the resident in order to: support the resident in decision-making; access medical, social, or other personal information of the resident; manage financial matters; or receive notifications;
(iii) A legal representative who stands in place of the resident under authority recognized by law with respect to the resident’s property or interests; or
(iv) An individual chosen by the resident in writing to act on behalf of the resident in order to: support the resident in decision-making; access medical, social, or other personal information of the resident; manage financial matters; or receive notifications.
(b) Nothing in this subsection is intended to expand the scope of authority of any resident representative beyond that authority specifically authorized by the resident, state or federal law, or a court of competent jurisdiction or to limit the number of representatives a resident may have.
(32) "Room and board" means lodging and meals.
(33) "Substitute caregiver" means an adult designated by the care provider to provide care and services to residents in a certified family home in the temporary absence of the regular care provider.
(34) "Supervision" means activity that provides protection, guidance, knowledge of the resident’s whereabouts, and monitoring of the activities of the resident while under the care of certified family home staff to ensure the resident’s safety and well-being.
(35) "Supportive services" means any service pertaining to the resident’s well-being that is not directly provided by the care provider and may include but is not limited to habilitation, rehabilitation, social, legal, medical, dental, educational, mental health, or community referral services.
[39-3502, added 2024, ch. 63, sec. 4, p. 312.]
(1) At or before the time of admission, the care provider shall negotiate a written, signed, and dated admission agreement between the care provider and the resident or the resident representative, if applicable, specifying the dollar amount of monthly compensation to be paid by the resident to the care provider and the monthly date by which payment is due.
(2) A dollar amount to be charged to the resident shall be negotiated in the admission agreement for monthly room and board, which includes breakfast, lunch, and dinner offered each day.
(3) If any portion of funding for the resident’s care is from a private source, the admission agreement shall include a separately listed dollar amount for any monthly care charges for which the resident is responsible. The care provider shall prorate and, if applicable, refund care charges for any day the resident did not receive certified family home services during the month.
(4) The care provider shall give the resident or resident representative, as appropriate, written notice in accordance with section 55-304, Idaho Code, before changing the terms of the admission agreement.
(5) An admission agreement signed by both parties shall remain in effect until one (1) of the following conditions are met:
(a) The admission agreement is properly terminated in accordance with Idaho landlord-tenant law; or
(b) The care provider is no longer certified by the department.
(6) The admission agreement shall include protections that address eviction and appeals comparable to those provided under Idaho landlord-tenant law and chapter 3, title 6, Idaho Code.
(7) The admission agreement shall remain in force and effect, excluding the certified family home’s responsibility to provide meals and care, while the resident is temporarily transferred from the certified family home to another care setting on an emergency basis. Provided, as long as the admission agreement remains in effect, the care provider shall allow the resident to resume receiving services in the certified family home after the emergency condition has improved enough for the certified family home to provide services in accordance with section 39-3507, Idaho Code.
[39-3503, added 2024, ch. 63, sec. 6, p. 314; am. 2025, ch. 65, sec. 2, p. 312.]
(1) Standards shall be developed through the regulatory process by the department to ensure a safe, sanitary and comfortable environment for residents of certified family homes.
(2) Any structure used for a certified family home shall be in a building suitable for residential use and is subject to department approval.
(a) The home shall be structurally sound and maintained to ensure safe occupancy.
(b) Single- or double-occupancy sleeping rooms shall be provided in the home for the residents’ personal space.
(c) The home shall contain common living areas for the residents’ enjoyment, including space and furnishings for socializing and dining.
(d) The home shall contain at least one (1) bathroom accessible to residents that is equipped with a flush toilet, a tub or shower, and a sink with a mirror. Toilet and shower or bathing facilities shall be separated from common living areas in the home by solid walls or partitions.
(e) The home shall contain at least one (1) kitchen accessible to residents that is equipped with a sink, oven, refrigerator, and counterspace.
(f) All plumbing in the home shall be maintained in good working order. Tubs, showers, and sinks shall be connected to hot and cold water and have adequate water pressure.
(g) The home shall have adequate storage space such that sundry items do not encroach on living areas or walkways and do not present a fire or life safety hazard.
(h) Temperatures in the home shall be maintained at levels promulgated in rule.
(i) Sufficient lighting shall be available in any room accessible to residents.
(3) The care provider shall take precautions to prevent disease by maintaining sanitary conditions in the home.
(a) The water supply used by the household shall be adequate, clean, and safe.
(b) Garbage and refuse shall be collected and regularly removed from the property.
(c) Sufficient housekeeping, including regular laundry service, shall be provided to maintain the home in a clean, safe, and orderly manner.
(d) The care provider shall ensure proper food handling, preparation, and storage standards are observed for meals offered to residents in the home.
(e) The home shall be well-ventilated.
(f) Pest control shall be implemented when necessary.
(4) The care provider shall take fire and life safety precautions, including equipping and maintaining the home to ensure the safety of residents.
(a) Egress from the home and ingress into the home shall not be obstructed. Clear pathways shall be maintained to and from points of egress and ingress.
(b) Potential hazards, including but not limited to tripping, burn, fire, explosion, poison, and drowning hazards or any other natural or man-made hazard, shall be removed or adequately mitigated as necessary for the safety of residents.
(c) The care provider shall develop and implement a written emergency preparedness plan, including the practice of regular emergency drills.
[(39-3504) 39-3578, added 1994, ch. 284, sec. 1, p. 890; am. 2000, ch. 274, sec. 116, p. 854; am. and redesig. 2005, ch. 280, sec. 55, p. 911; am. 2024, ch. 63, sec. 7, p. 315.]
The board shall have the power and it shall be its duty to promulgate appropriate rules necessary to implement and enforce the standards for certified family homes pursuant to this chapter, including but not limited to the following:
(1) The care provider shall admit or retain no more than two (2) residents concurrently in the certified family home. However, the department may grant a variance for up to four (4) residents to receive care in the certified family home upon application by the care provider and upon a finding by the department that the certified family home is able to comply with the requirements of section 39-3507, Idaho Code. The department shall not grant a variance for requests to admit or retain more than two (2) residents who require care at a nursing facility as defined in section 39-1301, Idaho Code. A variance to exceed the two (2) resident limit in a certified family home shall not be transferable to another resident or care provider. Certified family homes issued a variance to exceed the two (2) resident limit shall be subject to all statutes and rules governing certified family homes but shall not be subject to the residential care facility administrator licensing requirements of chapter 16, title 54, Idaho Code, or the requirements of section 39-3340, Idaho Code. Nothing in this subsection shall be construed to authorize increased group size for providers of any form of care other than certified family homes.
(2) The care provider shall live in the certified family home as the care provider’s primary residence.
(3) An individual cannot be approved as a care provider operating a certified family home if the individual charges room or board to any person staying in the home who is not a resident, a relative of the care provider, or full-time staff. A variance may be granted by the department for the spouse of a resident when the resident’s spouse does not require personal assistance.
(4) A home cannot be approved as a certified family home and for child foster care at the same time unless a variance is granted by the department.
(5) The care provider, care provider’s relative, or other adult living in the home shall not be the legal guardian of the resident unless the legal guardian is a relative of the resident. A variance may be granted by the department when it determines the guardianship is in the best interest of the nonrelative resident.
(6) The care provider must have sufficient resources to maintain the home and the services offered.
(7) Information obtained by the care provider about current or prospective residents shall be held confidential as described under section 39-3516(7), Idaho Code.
(8) The board may implement recordkeeping and reporting requirements as deemed necessary.
(a) The certified family home shall maintain and keep current a record of at least the following information for each resident:
(i) Admission records, including but not limited to the admission agreement, assessment, plan of service, history and physical examination, review of resident rights policy, emergency contacts, advance directives if so formulated by the resident, and a list of belongings the resident or resident representative chooses to inventory; and
(ii) Ongoing resident records as applicable, including but not limited to: medication management; incidents, accidents, or changes in the resident’s condition and the care provider’s response; and financial accounting records for use of the resident’s funds when the care provider is deemed to be managing such funds on behalf of the resident.
(b) The care provider shall report at least the following:
(i) To the certifying agent: any incident of house fire in the certified family home; any criminal investigation or conviction, or child protection or adult protection investigation, when the alleged perpetrator is the care provider, a substitute caregiver, or any adult member of the household; any critical incident; and any resident discharge from the home;
(ii) To the Idaho commission on aging: in accordance with section 39-5303, Idaho Code, any abuse, neglect, or exploitation of a vulnerable adult when the care provider has reasonable cause to believe that such has occurred; and
(iii) To local law enforcement: any serious physical injury to or the death of a resident when there is reasonable cause to believe the harm was due to abuse or neglect.
(9) The board may implement requirements to ensure the safety and adequate care of residents. The care provider shall be responsible for ensuring appropriate and adequate supervision is provided to each resident based on the resident’s plan of service.
(10) The board may implement requirements for management of medications, including:
(a) Development of acceptable policies and procedures regarding the following:
(i) Following the orders of the resident’s health care professionals;
(ii) Maintaining evidence of such orders; and
(iii) Training guidance that must be completed prior to any individual assisting the resident with medications;
(b) For residents who wish to self-administer their own medications, the evaluation and approval criteria that shall be met prior to the care provider allowing the resident to self-administer medications; and
(c) For residents who need assistance with medications:
(i) Conditions under which certified family home staff may offer assistance, taking into consideration the resident’s health status, level of assistance needed, and scope of any professional license held by the individual offering assistance;
(ii) Storage and safeguarding of medications, including taking regular inventory of narcotic medications;
(iii) Documentation of assistance; and
(iv) Proper and timely disposal of discontinued, unused, loose, or expired medications.
(11) The certified family home staff shall allow certifying agents to inspect and investigate the certified family home as necessary to determine compliance with this chapter and the department’s rules.
(12) The board may establish rules for the revocation of certification or other enforcement actions.
[39-3505, added 2024, ch. 63, sec. 9, p. 316; am. 2025, ch. 98, sec. 7, p. 538; am. 2025, ch. 122, sec. 34, p. 640.]
The provisions of this chapter, and the rules promulgated pursuant to this chapter, shall supersede any program of any political subdivision of the state which licenses or sets standards for individuals to whom the provisions of this chapter apply as described in section 39-3512, Idaho Code.
[39-3506, added 1993, ch. 374, sec. 1, p. 1357; am. 2000, ch. 274, sec. 68, p. 837; am. 2005, ch. 280, sec. 36, p. 902; am. 2024, ch. 63, sec. 10, p. 318.]
A certified family home shall not admit or retain any resident requiring a level of service or type of service that the certified family home, in concert with the resident’s supportive services, does not have the time, ability, or appropriate skills or equipment to safely and effectively provide. All admissions are subject to department approval.
[39-3507, added 1993, ch. 374, sec. 1, p. 1358; am. 1996, ch. 207, sec. 28, p. 648; am. 2000, ch. 274, sec. 69, p. 837; am. 2005, ch. 280, sec. 37, p. 902; am. 2024, ch. 63, sec. 11, p. 318.]
(1) The department shall employ uniform assessment criteria to assess residents accessing services through a publicly funded program according to the criteria developed to assess all participants within that respective program.
(2) The care provider shall employ uniform assessment criteria to assess private pay residents.
(3) The department and the advisory council established in section 39-3511, Idaho Code, shall jointly develop assessment criteria for all assessment types, including those used in publicly funded programs and those used for private pay residents. The conclusions shall be deemed the assessment and shall be used to ensure appropriate placement.
[39-3508, added 2024, ch. 63, sec. 13, p. 319.]
(1) The care provider shall ensure the resident or resident representative participates in the development of a written negotiated plan of service that provides for coordination of services and for guidance to the care provider in delivering services to the resident. Upon completion, the plan of service shall clearly identify the resident and describe the services to be provided to the resident and how such services are to be delivered.
(a) The plan of service shall be based on at least the following:
(i) The resident’s desires, to the greatest extent reasonably possible;
(ii) The resident’s assessment;
(iii) Information from the resident’s health care professionals, including current orders and the results of the resident’s most recent history and physical examination;
(iv) The resident’s supportive services; and
(v) The resident’s needs in the following areas:
Supervision;
Assistance with activities of daily living and instrumental activities of daily living;
Assistance with medications; and
Behavior management.
(b) The plan of service shall include:
(i) Identification of each care need;
(ii) A care plan for each need, describing how the care provider is to deliver service; and
(iii) Frequency of delivery for each service.
(2) The plan of service shall be completed shortly after the resident’s admission into the certified family home. The plan of service shall be reviewed and, if necessary, updated on an annual basis or upon any significant change in the resident’s condition, whichever occurs first.
(3) Upon initial completion and any subsequent update, the care provider and the resident or resident representative shall sign and date the plan of service.
[39-3509, added 2024, ch. 63, sec. 15, p. 319.]
If any section, subsection, paragraph, sentence, or any other part of this chapter is adjudged unconstitutional or invalid, such judgment shall not affect, impair, or invalidate the remainder of this chapter, but shall be confined to this section, subsection, paragraph, sentence, or any other part of this chapter directly involved in the controversy in which the judgment has been rendered.
[(39-3510) 39-3579, added 1994, ch. 284, sec. 1, p. 890; am. and redesig. 2005, ch. 280, sec. 56, p. 911.]
The department shall establish a state-level advisory council. This council may be the same body as that identified in section 39-3330, Idaho Code; otherwise, this council shall be a separate body formed pursuant to the provisions found in section 39-3330, Idaho Code. The advisory council shall have the following powers and duties:
(1) To make policy recommendations regarding certification and enforcement standards in certified family homes and the provision of services to residents;
(2) To provide advice to the department and to the board pertaining to development and revision of rules;
(3) To review and comment on any proposed rule or legislation pertaining to the certification of certified family homes; and
(4) To submit an annual report to the legislature stating opinions and recommendations that would further the state’s capability to address issues faced by certified family homes.
[39-3511, added 2024, ch. 63, sec. 17, p. 320.]
(1) Any individual who seeks payment for providing care to an elderly person or to an adult with a mental illness, developmental disability, or physical disability and who also houses the said vulnerable adult in his primary residence shall meet the requirements of this chapter or other provision of law governing care and housing for the elderly or for adults with mental illness, developmental disabilities, or physical disabilities if those provisions are more restrictive.
(2) The following are exempt from the requirements of this chapter:
(a) Arrangements for care to a vulnerable adult who does not live in his own home but lives in the primary residence of his relative, when payments for the vulnerable adult’s care to that relative is wholly privately funded and no portion is from a publicly funded program.
(b) Medical foster homes if the home provides care only to veterans who are not medicaid recipients and who are approved by the department of veterans affairs to receive care in the home. Medical foster homes that provide care to nonveterans as well as veterans shall not be exempt from the certification requirements of this chapter.
[39-3512, added 2024, ch. 63, sec. 19, p. 320.]
(1) The department shall ensure that during the initial application process to certify a certified family home the applicant receives training that includes but is not limited to recordkeeping requirements pursuant to section 39-3505, Idaho Code, and minimum standards of care consisting of at least assistance with medications, emergency intervention, emergency preparedness, and the rights of the residents.
(2) The department shall require annual continuing education for care providers relating to home safety or care, supervision, and services to the residents, as defined by rules promulgated pursuant to this chapter.
[39-3513, added 2024, ch. 63, sec. 21, p. 320.]
The care provider shall ensure staff protect and promote the rights of each resident, including each of the following rights:
(1) Privacy. Each resident shall be ensured the right to privacy with regard to accommodations, medical and other treatment, written and telephone communications, visits, and meetings of family and resident groups, including:
(a) The right to send and receive mail unopened, either by the postal service, electronically, or other means, unless the resident’s plan of service specifically calls for the care provider to monitor correspondence to protect the resident from abuse or exploitation; and
(b) The right to control the use of pictures or videos containing the resident’s image.
(2) Humane care and environment, dignity, and respect.
(a) Each resident shall have the right to humane care and a humane environment, including the following:
(i) The right to a diet that is consistent with any religious or health-related restrictions;
(ii) The right to refuse a restricted diet;
(iii) The right to refuse assistance with bathing, continence, toileting, or dressing from any person the resident is uncomfortable receiving such care from. The care provider is obligated to ensure that these services, if required in the resident’s plan of service, are offered by staff acceptable to the resident or resident representative;
(iv) The right to a safe and sanitary living environment; and
(v) The right to a living environment free of illicit drug use or possession and other criminal activities.
(b) Each resident shall have the right to be treated with dignity and respect, including:
(i) The right to be treated in a courteous manner;
(ii) The right to receive a response from the certified family home staff to any request of the resident within a reasonable time;
(iii) The right to make choices free from intimidation, manipulation, or coercion;
(iv) Freedom from discrimination on the basis of race, color, national origin, sex, religion, age, disability, or veteran status; and
(v) The right to determine personal dress and hairstyles.
(3) Personal possessions. Each resident shall have the right to:
(a) Wear personal clothing;
(b) Retain and use the resident’s own personal property in the resident’s own living area in order to maintain individuality and personal dignity as long as the storage or use of these items do not present a fire or safety hazard; and
(c) Be provided a separate storage area in the resident’s own living area and at least one (1) lockable cabinet or drawer for keeping personal property if requested by the resident.
(4) Personal funds. Each resident shall have the right to:
(a) Retain for personal use the difference between the resident’s total monthly income and the monthly charges by the certified family home, such that the resident is left with at least the amount established by department rules for a basic-needs allowance to the aged, blind, and disabled who live in certified family homes, when the resident’s care is paid for, in part or in full, by public assistance;
(b) Deposit personal funds into the resident’s own financial account and not into the account of any other person;
(c) Review financial accounting pertaining to the use of the resident’s funds. If the resident or the resident representative and care provider agree in writing that the care provider or another individual under the care provider’s influence will manage the resident’s personal funds on the resident’s behalf, the care provider must hold, safeguard, and account for such personal funds; and
(d) Receive remaining funds into the resident’s estate upon the resident’s death. Upon the death of a resident whose funds were deemed to be managed by the care provider or an individual under the provider’s influence, the care provider shall ensure the resident’s remaining personal funds, along with a final accounting of such funds, are promptly conveyed to the individual administering the resident’s estate.
(5) Access and visitation rights. Certified family home staff shall permit:
(a) Immediate access to any resident by the resident representative or the resident’s health care professional;
(b) Unless otherwise restricted by a lawful order from a government unit, immediate access to any resident by the resident’s relatives, subject to the resident’s right to deny or withdraw consent at any time; and
(c) Unless otherwise restricted by a lawful order from a government unit, immediate access to any resident by others who wish to visit the resident, subject to reasonable restrictions and the resident’s right to deny or withdraw consent at any time.
(6) Labor. Each resident shall have the right to refuse to perform services for the certified family home.
(7) Confidentiality. Each resident shall have the right to confidentiality of personal and clinical records. The care provider shall obtain written consent from the resident or resident representative prior to disclosing any such record, except to the following:
(a) Representatives of the department, including certifying agents;
(b) Representatives of the Idaho commission on aging;
(c) Advocates and representatives of the protection and advocacy system designated by the governor pursuant to 42 U.S.C. 15043 and 42 U.S.C. 10801, in accordance with applicable federal law and regulations;
(d) The resident’s authorized personal health care professional when the record is relevant to the condition the health care professional is treating; and
(e) The resident or the resident’s legally authorized representative.
(8) Freedom from harm. Each resident shall have the right to be free from:
(a) Physical abuse;
(b) Mental abuse;
(c) Sexual abuse;
(d) Neglect;
(e) Exploitation;
(f) Corporal punishment;
(g) Involuntary seclusion;
(h) Any physical restraint; and
(i) Any chemical restraint.
(9) Freedom of religion. Each resident shall have the right to practice the religion of the resident’s choice or to abstain from religious practice. Residents shall also be free from the imposition of the religious practices of others.
(10) Control and receipt of health-related services. Each resident or resident representative shall have the right to control the resident’s receipt of health-related services, including but not limited to:
(a) The right to retain the services of the resident’s own health care professionals;
(b) The right to select the pharmacy or pharmacist of the resident’s choice;
(c) The right to confidentiality and privacy concerning the resident’s medical or dental condition and treatment; and
(d) The right to decline treatment for any medical condition.
(11) Grievances. Each resident or resident representative shall have the right to voice grievances without discrimination or reprisal for voicing the grievances and the right to prompt efforts by the certified family home to resolve grievances, including a written response from the care provider. Grievances may include but are not limited to:
(a) Quality of services or care provided;
(b) Failure to provide service or care; and
(c) The behavior of other residents.
(12) Participation in other activities. Unless otherwise restricted by a lawful order from a governmental unit, each resident shall have the right to participate in social, religious, and community activities that do not interfere with the rights of other residents in the certified family home.
(13) Examination of home inspection reports. Each resident or resident representative shall have the right to examine the results of any home inspection of the certified family home conducted by the department and any department-approved plan of correction the care provider was or is expected to implement.
(14) List of alternative care settings. Each resident or resident representative shall have the right to review lists of alternative care settings, including other certified family homes, that may be available to meet the resident’s needs.
(15) Advance directives. Each resident shall have the right to be informed by the care provider in writing regarding the resident’s option to formulate advance care directives as described in chapter 45, title 39, Idaho Code.
(16) Other rights established by law. The resident shall have any other right established by law.
[39-3516, added 2024, ch. 63, sec. 23, p. 321.]
(1) Staff of the certified family home shall permit certifying agents, other representatives of the department, or any representative of adult protective services immediate and unrestricted access, according to the agent’s or representative’s respective authority, to the physical premises of the home and property, to the records required under this chapter and the rules promulgated thereunder, and to the residents.
(2) Staff of the certified family home shall permit advocates and representatives of community legal services programs, including the state long-term care ombudsman or its designee or representatives of the protection and advocacy system pursuant to 42 U.S.C. 15043 and 42 U.S.C. 10801 et seq., whose purposes include rendering assistance without charge to residents, to have access to the physical premises of the home, to the residents, and to records in accordance with federal and state law and regulations at reasonable times.
[39-3519, added 1993, ch. 374, sec. 1, p. 1363; am. 2000, ch. 274, sec. 76, p. 841; am. 2005, ch. 280, sec. 42, p. 907; am. 2024, ch. 63, sec. 24, p. 323.]
(1) An application for certification shall be made to the department on forms provided by the department and shall contain such information as the department reasonably requires, including, at a minimum, fingerprinting and a background check clearance through the department, a list of individuals living in the home, and payment of an application fee if charged.
(2) Following receipt of a completed application, the department shall conduct an initial certification study to determine the capability of the care provider to operate a certified family home. In the event the department establishes, prior to conducting an initial certification study, that a cause of denial exists pursuant to rules promulgated pursuant to this chapter, the department may choose to deny the application for certification without conducting or completing an initial certification study.
(3) Failure of the applicant to cooperate with the department in the application process may result in the department terminating the application. Failure to cooperate means that the applicant does not make the application fee payment within six (6) months of the date of the invoice or does not submit to the department the completed application materials and information in the form requested by the department within twelve (12) months of paying the application fee. An applicant whose application has been terminated may reapply for certification.
[39-3520, added 2024, ch. 63, sec. 26, p. 324.]
(1) Each certificate shall be issued only for the home and care provider named in the application and shall not be transferable or assignable.
(2) Upon certification, the department shall charge the care provider an ongoing monthly certification fee, to be invoiced by the department and paid as promulgated in rule. Timely payment of the certification fee shall keep the certification active unless it is suspended or revoked by the department.
(3) Each care provider intending to continue operation of a certified family home shall renew its certification annually. The department may shorten the certification time frame as part of an enforcement action or at its discretion to more efficiently or safely fulfill its obligations. The application for renewal shall be filed with the department at least thirty (30) days prior to the date of expiration specified on the certificate. The existing certificate, unless suspended or revoked, shall remain in force and effect until the department has acted on the renewal application when such application is timely filed.
[(39-3521) 39-3563, added 1994, ch. 284, sec. 1, p. 888; am. 2000, ch. 274, sec. 103, p. 852; am. and redesig. 2005, ch. 280, sec. 45, p. 909; am. 2024, ch. 63, sec. 27, p. 324.]
(1) Upon inspection or investigation, should an applicant for a certificate or a care provider be unable or unwilling to meet a standard because of one (1) or more conditions or acts that do not immediately jeopardize the health or safety of the resident, the department may grant a provisional certificate pending the satisfactory correction of all deficiencies and demonstration of continuing compliance for up to six (6) months.
(2) The department, at its discretion, may impose conditions on the certified family home, which if imposed shall be included with the notice of provisional certification. Such conditions may be imposed to ensure the care provider achieves compliance with the standard or to aid the department in monitoring the care provider’s performance during the provisional certification period.
[(39-3522) 39-3564, added 1994, ch. 284, sec. 1, p. 888; am. 2000, ch. 274, sec. 104, p. 852; am. and redesig. 2005, ch. 280, sec. 46, p. 910; am. 2024, ch. 63, sec. 28, p. 325.]
(1) The department may deny any application for a certificate when persuaded by a preponderance of evidence that such conditions exist as to endanger the health or safety of any resident or when the applicant fails to demonstrate compliance with any provision of this chapter or rules promulgated pursuant to this chapter. The department may also deny any application for a certificate for any other cause for denial listed in rules promulgated by the department.
(2) The department may revoke any certificate when persuaded by a preponderance of evidence that such conditions exist as to endanger the health or safety of any resident or when the care provider violates any provision of this chapter or rule promulgated pursuant to this chapter after having been notified by the department of such violation and given an opportunity to make corrections as described in the rules promulgated pursuant to this chapter. The department may also revoke any certification for any other cause for revocation listed in rules promulgated by the department.
[39-3523, added 2024, ch. 63, sec. 30, p. 325.]
(1) Consistent with provisions regarding emergency proceedings in section 67-5247, Idaho Code, the department shall immediately notify the applicant or care provider in writing when it denies an application for a certificate or revokes or suspends certification in a situation involving an immediate danger to the health or safety of residents.
(2) Absent emergency proceedings, the department shall provide notice and the opportunity to be heard prior to denial of an application for a certificate or revocation of a certificate consistent with section 67-5254, Idaho Code. The proceedings shall be conducted in accordance with the Idaho administrative procedure act and the department’s rules for contested care proceedings.
[39-3524, added 2024, ch. 63, sec. 32, p. 325.]
The department is not required to review the application of an applicant who has had a certificate revoked or previous application denied until five (5) years have elapsed from the date of revocation or denial or from the date of a final appeals decision affirming the department’s action, whichever is later.
[39-3525, added 2024, ch. 63, sec. 34, p. 326.]
Prior to initial certification, the applicant shall be provided a printed copy of all applicable statutes and rules by the department without additional charge.
[39-3526, added 2024, ch. 63, sec. 36, p. 326.]
The certifying agent shall inspect and provide technical assistance to certified family homes. The department may provide consulting services upon request to any certified family home to assist in the identification and correction of deficiencies and in the upgrading of the quality of care provided by the certified family home.
[39-3527, added 2005, ch. 280, sec. 51, p. 911; am. 2024, ch. 63, sec. 37, p. 326.]
(1) Any individual to whom the provisions of this chapter apply as described in section 39-3512, Idaho Code, who is paid for providing care to a vulnerable adult living in his home within the state without first obtaining certification as provided in this chapter shall be guilty of a misdemeanor.
(2) Authority to prosecute violations of this section is granted to the attorney general and the county attorney in the county where the person who is alleged to be operating without certification lives.
[39-3528, added 2024, ch. 63, sec. 39, p. 326.]
(1) A person who believes that any provision of this chapter, or rule promulgated under this chapter, has been violated may file a complaint with the department. Records and information that identify a complainant are exempt from disclosure as set forth in section 74-105(16), Idaho Code.
(2) The certifying agent shall investigate any complaint alleging a violation of this chapter or the rules promulgated pursuant to this chapter. The certifying agent has the discretion to decide the activities of investigation while considering the nature of each allegation and arriving at a conclusion informed by a thorough and objective exploration of the known evidence.
[39-3556, added 2024, ch. 63, sec. 42, p. 327.]
The legislature, recognizing that surface water is one of the state’s most valuable natural resources, has approved the adoption of water quality standards and authorized the director of the department of environmental quality in accordance with the provisions of this chapter, to implement these standards. In order to maintain and achieve existing and designated beneficial uses and to conform to the expressed intent of congress to control pollution of navigable waters of the United States, the legislature declares that it is the purpose of this chapter to enhance and preserve the quality and value of the navigable waters of the United States within the state of Idaho, and to define the responsibilities of public agencies in the control, and monitoring of water pollution, and, through implementation of this chapter, enhance the state’s economic well-being. In consequence of the benefits resulting to the public health, welfare and economy, it is hereby declared to be the policy of the state of Idaho to protect this natural resource by monitoring and controlling water pollution; to support and aid technical and planning research leading to the control of water pollution, and to provide financial and technical assistance to municipalities, soil conservation districts and other agencies in the control of water pollution. The director, in cooperation with such other agencies as may be appropriate, shall administer this chapter. It is the intent of the legislature that the state of Idaho fully meet the goals and requirements of the federal clean water act and that the rules promulgated under this chapter not impose requirements beyond those of the federal clean water act.
[39-3601, added 1995, ch. 352, sec. 1, p. 1166; am. 2001, ch. 103, sec. 30, p. 274; am. 2011, ch. 116, sec. 1, p. 320.]
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) "Applicable water quality standard" means those water quality standards identified in the rules of the department.
(2) "Attainable" beneficial uses means uses that can be achieved by the implementation of required effluent limits for point sources and cost-effective and reasonable best management practices for nonpoint sources.
(3) "Best management practice" means practices, techniques or measures developed, or identified, by the designated agency and identified in the state water quality management plan which are determined to be a cost-effective and practicable means of preventing or reducing pollutants generated from nonpoint sources to a level compatible with water quality goals.
(4) "Board" means the board of environmental quality.
(5) "Consult" or "consultation" with basin advisory groups and watershed advisory groups, when not otherwise defined in this chapter, means that the director shall:
(a) Upon request, provide the groups with all available information in the possession of the department concerning the subject of the consultation;
(b) Utilize the knowledge, expertise, experience and information of the groups in making the determination that is the subject of the consultation; and
(c) Consider the groups’ recommendations regarding the determination that is the subject of the consultation.
(6) "Control strategies" means cost-effective actions in TMDL implementation plans to control the discharge of pollutants that can reasonably be taken to improve the water quality within the physical, operational, economic and other constraints that affect individual enterprises and communities.
(7) "Degradation" or "lower water quality" means, for purposes of antidegradation review, a change in a pollutant that is adverse to designated or existing uses, as calculated for a new point source, and based upon monitoring or calculated information for an existing point source increasing its discharge. Such degradation shall be calculated or measured after appropriate mixing of the discharge and receiving water body.
(8) "Department" means the department of environmental quality.
(9) "Designated agency" means the department of lands for timber harvest activities, for oil and gas exploration and development and for mining activities; the soil and water conservation commission for grazing activities and for agricultural activities; the transportation department for public road construction; the department of agriculture for aquaculture; and the department of environmental quality for all other activities.
(10) "Designated use or designated beneficial use" means those uses assigned to waters as identified in the rules of the department whether or not the uses are being attained. The department may adopt subcategories of a use.
(11) "Director" means the director of the department of environmental quality, or his or her designee.
(12) "Discharge" means any spilling, leaking, emitting, escaping, leaching, or disposing of a pollutant into the waters of the state. For the purposes of this chapter, discharge shall not include surface water runoff from nonpoint sources or natural soil disturbing events.
(13) "Existing use" means those surface water uses actually attained on or after November 28, 1975, whether or not they are designated uses. Existing uses may form the basis for subcategories of designated uses.
(14) "Full protection, full support, or full maintenance of designated beneficial uses of water" means compliance with those levels of water quality criteria listed in the appropriate rules of the department, or where there is no applicable numerical criteria, compliance with the reference streams or conditions approved by the director in consultation with the appropriate basin advisory group.
(15) "General permit" means an NPDES permit issued by the U.S. environmental protection agency authorizing a category of discharges under the federal clean water act or a nationwide or regional permit issued by the U.S. army corps of engineers under the federal clean water act.
(16) "Integrated report" means the consolidated listing and reporting of the state’s water quality status pursuant to the federal clean water act.
(17) "National pollutant discharge elimination system (NPDES)" means the point source permitting program established pursuant to section 402 of the federal clean water act.
(18) "New nonpoint source activity" means a new nonpoint source activity or a substantially modified existing nonpoint source activity on or adversely affecting an outstanding resource water which includes, but is not limited to, new silvicultural activities, new mining activities and substantial modifications to an existing mining permit or approved plan, new recreational activities and substantial modifications to existing recreational activities, new residential or commercial development that includes soil disturbing activities, new grazing activities and substantial modifications to existing grazing activities, except that reissuance of existing grazing permits, or grazing activities and practices authorized under an existing permit, is not considered a new activity. It does not include naturally occurring events such as floods, landslides, and wildfire including prescribed natural fire.
(19) "Nonpoint source activities" includes grazing, crop production, silviculture, log storage or rafting, construction, mining, recreation, septic systems, runoff from storms and other weather related events and other activities not subject to regulation under the federal national pollutant discharge elimination system. Nonpoint source activities on waters designated as outstanding resource waters do not include issuance of water rights permits or licenses, allocation of water rights, operation of diversions, or impoundments.
(20) "Nonpoint source runoff" means water which may carry pollutants from nonpoint source activities into the waters of the state.
(21) "Outstanding resource water" means a high quality water, such as water of national and state parks and wildlife refuges and water of exceptional recreational or ecological significance, which has been so designated by the legislature. It constitutes an outstanding national or state resource that requires protection from point source and nonpoint source activities that may lower water quality.
(22) "Person" means any individual, association, partnership, firm, joint stock company, joint venture, trust, estate, political subdivision, public or private corporation, state or federal governmental department, agency or instrumentality, or any legal entity, which is recognized by law as the subject of rights and duties.
(23) "Point source" means any discernible, confined, and discrete conveyance including, but not limited to, any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are, or may be, discharged. This term does not include return flows from irrigated agriculture, discharges from dams and hydroelectric generating facilities or any source or activity considered a nonpoint source by definition.
(24) "Pollutant" means dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical waste, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, silt, cellar dirt; and industrial, municipal and agricultural waste, gases entrained in water; or other materials which, when discharged or released to water in excessive quantities cause or contribute to water pollution. Provided however, biological materials shall not include live or occasional dead fish that may accidentally escape into the waters of the state from aquaculture facilities.
(25) "Reference stream or condition" means one (1) of the following:
(a) The minimum biological, physical and chemical conditions necessary to fully support the designated beneficial uses; or
(b) A water body representing natural conditions with few impacts from human activities and which are representative of the highest level of support attainable in the basin; or
(c) A water body representing minimum conditions necessary to fully support the designated beneficial uses.
In highly mineralized areas or in the absence of such reference streams or water bodies, the director, in consultation with the basin advisory group and the technical advisers to it, may define appropriate hypothetical reference conditions or may use monitoring data specific to the site in question to determine conditions in which the beneficial uses are fully supported.
(26) "Short-term or temporary activity" means an activity which is limited in scope and is expected to have only minimal impact on water quality as determined by the director. Short-term or temporary activities include, but are not limited to, maintenance of existing structures, limited road and trail reconstruction, soil stabilization measures, and habitat enhancement structures.
(27) "Silviculture" means those activities associated with the regeneration, growing and harvesting of trees and timber including, but not limited to, disposal of logging slash, preparing sites for new stands of trees to be either planted or allowed to regenerate through natural means, road construction and road maintenance, drainage of surface water which inhibits tree growth or logging operations, fertilization, application of herbicides or pesticides, all logging operations, and all forest management techniques employed to enhance the growth of stands of trees or timber.
(28) "Soil and water conservation commission" means an agency of state government as created in section 22-2718, Idaho Code.
(29) "Soil conservation district" means an entity of state government as defined in section 22-2717, Idaho Code.
(30) "State" means the state of Idaho.
(31) "State water quality management plan" means the state management plan developed and updated by the department in accordance with sections 205, 208, and 303 of the federal clean water act.
(32) "Subbasin assessment" means a document that describes a watershed or watersheds for which a total maximum daily load is proposed, the water quality concerns, the status and attainability of designated uses and water quality criteria for individual water bodies, the nature and location of pollutant sources, past and ongoing pollutant control activities, and such other information that the director with the advice of the local watershed advisory group determines is pertinent to the analysis of water quality and the development and implementation of a total maximum daily load.
(33) "Total maximum daily load (TMDL)" means a plan for a water body not fully supporting designated beneficial uses and includes the sum of the individual wasteload allocations for point sources, load allocations for nonpoint sources, and natural background levels of the pollutant impacting the water body. Pollutant allocations established through TMDLs shall be at a level necessary to implement the applicable water quality standards for the identified pollutants with seasonal variations and a margin of safety to account for uncertainty concerning the relationship between the pollutant loading and water quality standards.
(34) "Waters or water body" means the navigable waters of the United States as defined in the federal clean water act. For the purposes of this chapter, water bodies shall not include municipal or industrial wastewater treatment or storage structures or private reservoirs, the operation of which has no effect on waters.
(35) "Water pollution" is such alteration of the thermal, chemical, biological or radioactive properties of any waters of the state, or such discharge or release 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, aesthetic or other legitimate uses or to livestock, wild animals, birds, fish or other aquatic life.
(36) "Water quality standards" are the designated uses of a water body and water quality criteria necessary to support those uses, and an antidegradation policy.
(37) "Watersheds" means the land area from which water flows into a stream or other body of water which drains the area. For the purposes of this chapter, the area of watersheds shall be recommended by the basin advisory group described in section 39-3613, Idaho Code.
[39-3602, added 1995, ch. 352, sec. 1, p. 1167; am. 1997, ch. 279, sec. 1, p. 829; am. 2001, ch. 103, sec. 31, p. 274; am. 2005, ch. 334, sec. 1, p. 1045; am. 2010, ch. 279, sec. 25, p. 747; am. 2011, ch. 116, sec. 2, p. 320; am. 2013, ch. 348, sec. 1, p. 941.]
(1) Policy.
(a) Maintenance of existing uses for all waters — Tier I protection. The existing instream beneficial uses of each water body and the level of water quality necessary to protect those uses shall be maintained and protected.
(b) High quality waters — Tier II protection. Where the quality of waters exceeds levels necessary to support propagation of fish, shellfish and wildlife and recreation in and on the water, that quality shall be maintained unless the department finds, after full satisfaction of the intergovernmental coordination and public participation provisions of this chapter, and the department’s planning processes, along with appropriate planning processes of other agencies, that lowering water quality is necessary to accommodate important economic or social development in the area in which the waters are located. In allowing such reductions in water quality, the department shall assure water quality adequate to protect existing uses fully.
(c) Outstanding resource waters — Tier III protection. Where an outstanding resource water has been designated by the legislature that water quality shall be maintained and protected from the impacts of point and nonpoint source activities.
(2) Implementation.
(a) General permits. For general permits issued on or after July 1, 2011, the department will conduct an antidegradation review, including any required Tier II analysis, at the time at which general permits are certified. For general permits that the department determines adequately address antidegradation, review of individual applications for coverage will not be required unless it is required by the general permit. For general permits that the department determines do not adequately address antidegradation, the department may conclude that other conditions, such as the submittal of additional information or individual certification at the time an application is submitted for coverage under a general permit, may be necessary in the general permit to provide reasonable assurance of compliance with the antidegradation policy. If supported by the permit record, the department may also presume that discharges authorized under a general permit are insignificant or that the pollution controls required in the general permit are the least degrading alternative as specified in the department’s rules.
(b) Identification of Tier II waters. The department will utilize a water body by water body approach in determining where Tier II protection is appropriate in addition to Tier I protection. This approach shall be based on an assessment of the chemical, physical, biological and other information regarding the water body. The most recent federally approved integrated report and supporting data will be used to determine the appropriate level of protection as follows:
(i) Water bodies identified in the integrated report as fully supporting assessed uses will be provided Tier II protection.
(ii) Water bodies identified in the integrated report as not assessed will be provided an appropriate level of protection on a case-by-case basis using information available at the time of a proposal for a new or reissued permit or license.
(iii) Water bodies identified in the integrated report as not fully supporting assessed uses will receive Tier I protection for the impaired aquatic life or recreational use, except as follows:
For aquatic life uses identified as impaired for dissolved oxygen, pH or temperature, if biological or aquatic habitat parameters show a healthy, balanced biological community is present, as described in the water body assessment guidance published by the department, then the water body shall receive Tier II protection for aquatic life.
For recreational uses, if water quality data show compliance with those levels of water quality criteria listed in the department’s rules, then the water body shall receive Tier II protection for recreational uses.
(iv) Special resource waters listed in the department’s rules shall be evaluated in the same fashion as all other waters.
(c) Tier II analysis for insignificant degradation. If the department determines an activity or discharge will cause degradation, then the department shall determine whether the degradation is insignificant.
(i) A cumulative decrease in assimilative capacity of more than ten percent (10%), from conditions as of July 1, 2011, shall constitute significant degradation. If the cumulative decrease in assimilative capacity from conditions as of July 1, 2011, is equal to or less than ten percent (10%), then, taking into consideration the size and character of the activity or discharge and the magnitude of its effect on the receiving stream, the department may determine that the degradation is insignificant.
(ii) The department may request additional information from the applicant as needed to determine the significance of the degradation.
(iii) If degradation is determined to be insignificant, then no further Tier II analysis for other source controls, alternatives analysis or socioeconomic justification is required.
[39-3603, added 1995, ch. 352, sec. 1, p. 1170; am. 2011, ch. 116, sec. 3, p. 324; am. 2014, ch. 60, sec. 1, p. 142.]
(1) The director shall designate the beneficial uses each surface water body can reasonably be expected to attain.
(2) Designated beneficial uses shall reflect existing uses. The director shall designate beneficial uses without regard to whether the uses are currently being attained or whether the uses are fully supported at the time of designation. In designating beneficial uses, the director shall consider:
(a) The existing uses of the water body;
(b) The physical, geological, hydrological, atmospheric, chemical and biological measures that affect the water body;
(c) The beneficial use attainability measures identified in section 39-3607, Idaho Code; and
(d) The economic impact of the designation and the economic costs required to fully support the beneficial uses.
(3) When designating beneficial uses for a water body, the director shall consult with the basin advisory group and the watershed advisory group with the responsibilities described in this chapter for the water body. After consultation, the director shall identify the designated beneficial uses of each water body in the rules of the department pursuant to the rulemaking and public participation provisions of chapter 52, title 67, Idaho Code.
(4) Persons who either conduct nonpoint activities or who conduct operations on waters described in section 39-3609, Idaho Code, pursuant to a national pollution discharge elimination system permit, shall not be required to meet water quality criteria other than those necessary for the full support of a water body’s existing and designated beneficial uses, except as provided in section 39-3611, Idaho Code.
[39-3604, added 1995, ch. 352, sec. 1, p. 1170; am. 1997, ch. 279, sec. 2, p. 832; am. 2013, ch. 348, sec. 2, p. 945.]
The director shall, in consultation with the appropriate basin advisory group, identify reference streams or conditions to assist in determining whether the designated beneficial uses of water bodies within a basin are being fully supported. Streams or conditions shall be selected to represent the land types, land uses, hydrology, water uses and geophysical features within the basins described in this chapter. Reference streams or conditions shall be representative of one (1) of the following:
(1) A stream or other water body reflecting natural conditions with few impacts from human activities and which is representative of the highest level of support attainable in the basin; or
(2) A stream or water body reflecting the minimum conditions necessary to fully support the designated beneficial uses of the stream or water body; or
(3) Physical, chemical and biological indicators identified in the rules of the department which reflect full support of designated beneficial uses.
[39-3605, added 1995, ch. 352, sec. 1, p. 1171; am. 1997, ch. 279, sec. 3, p. 833; am. 2013, ch. 348, sec. 3, p. 945.]
There is hereby created in the state treasury a fund to be known as the environmental remediation fund. Surplus moneys in the environmental remediation fund shall be invested by the state treasurer in the manner provided for idle state moneys in the state treasury under section 67-1210, Idaho Code. Interest received on all such investments shall be paid into the environmental remediation fund. The fund may have paid into it:
(1) Legislative appropriations and transfers from other funds;
(2) All donations and grants from any source which may be used for the provisions of this act;
(3) Any other funds which may hereafter be provided by law.
[39-3605C, added 1995, ch. 344, sec. 2, p. 1133.]
(1) The director shall conduct monitoring to determine whether designated beneficial uses of water bodies are fully supported. In making such determinations, the director shall consult with the basin advisory group and the watershed advisory group with the responsibilities described in this chapter for the water body. The director shall use the appropriate water quality standards as identified in the rules of the department and shall compare the physical, chemical and biological measures of the water body with the reference stream or condition appropriate to the land type, land uses, hydrology, water uses and geophysical features of the water body as described in section 39-3605(2), Idaho Code. If the water body has such physical, chemical or biological measures as the reference stream or condition, even though such measures may be diminished from the conditions set forth in section 39-3605(1), Idaho Code, then the director shall deem the designated beneficial uses for the water body to be fully supported and as having achieved the objectives of the federal clean water act and of this chapter. When site-specific standards have been developed for an activity pursuant to the rules of the department, the use of reference streams as described in this section shall not be necessary.
(2) The physical, geological, hydrological, atmospheric, chemical or biological measures of a water body to be used to determine whether beneficial uses are fully supported may include, but are not limited to: stream width, stream depth, stream shade, sediment, bank stability, water flows, physical characteristics of the stream that affect habitat for fish, macroinvertebrate species or other aquatic life, and the variety and number of fish or other aquatic life.
[39-3606, added 1995, ch. 352, sec. 1, p. 1171; am. 1997, ch. 279, sec. 4, p. 833; am. 2013, ch. 348, sec. 4, p. 946.]
Moneys in the environmental remediation fund may be used for annual legislative appropriations for the purpose of environmental cleanup and remediation and restoration in, but not limited to, the following areas:
(1) To provide the state’s matching share of grants for remediation including superfund grants;
(2) To provide for the operations of remediation activities.
[39-3606C, added 1995, ch. 344, sec. 3, p. 1133.]
The director shall, in consultation with the appropriate basin advisory group and watershed advisory group, conduct a beneficial use attainability assessment to determine whether beneficial uses should be revised. Designated uses shall be reviewed and revised when such physical, geological, hydrological, atmospheric, chemical or biological measures indicate the need to do so. The director shall consider the economic costs required to attain a revised beneficial use. A designated use, that is not an existing use, shall be removed when it is demonstrated that attaining the use is not feasible, using those factors set forth in 40 CFR 131.10(g).
Previous assessments of beneficial use attainability that are of a quality and content acceptable to the director shall constitute the baseline data against which future assessments shall be made to determine changes in the water body and what beneficial uses can be attained in it. In addition, the director, to the extent possible, may determine whether changes in the condition of the water body are the result of past or ongoing point or nonpoint source activities. The director shall also seek information from appropriate public agencies regarding land uses, water uses and geological or other information for the watershed that may affect water quality and the ability of the water body in question to attain designated beneficial uses. In carrying out the provisions of this section, the director may contract with private enterprises or public agencies to provide the desired data.
[39-3607, added 1995, ch. 352, sec. 1, p. 1171; am. 2013, ch. 348, sec. 5, p. 946.]
For streams or other water bodies where the director has determined that designated beneficial uses are being fully supported, the director shall assure, in a manner consistent with other existing applicable statutes, and rules, that all programs deemed necessary to maintain full support of designated beneficial uses are employed. In providing such assurances, the director may enter together into an agreement with public agencies in accordance with sections 67-2326 through 67-2333, Idaho Code.
[39-3608, added 1995, ch. 352, sec. 1, p. 1172.]
In accordance with the provisions set forth in the federal clean water act and after consultation with the appropriate basin advisory group and watershed advisory group, the director shall notify the appropriate public agencies of any water bodies in which the designated beneficial uses are not fully supported. For water bodies so identified, the director shall place such water bodies into one (1) of the following priority classifications for the development of total maximum daily load or equivalent processes:
(1) "High." The director shall place water bodies in this category taking into account the availability and quality of data, department resources, and whether the severity of pollution poses a significant risk to designated or existing beneficial uses. The director, in establishing this category, shall consider public involvement as set forth in this chapter.
(2) "Medium." The director shall place water bodies in this category taking into account the availability and quality of data, department resources, and whether the severity of the pollution poses a risk to designated or existing beneficial uses.
(3) "Low." The director shall place water bodies in this category taking into account the availability and quality of data, department resources, and whether the severity of pollution poses a minimal risk to designated or existing beneficial uses.
[39-3609, added 1995, ch. 352, sec. 1, p. 1172; am. 1997, ch. 279, sec. 5, p. 833; am. 2013, ch. 348, sec. 6, p. 947; am. 2016, ch. 111, sec. 1, p. 316.]
The director shall assure, in a manner consistent with existing statutes or rules, that for each category of water body, as described in section 39-3609(1) through (3), Idaho Code, the following limitations shall apply:
(1) For waters in the "high," category a total maximum daily load or equivalent process as described in this chapter shall be undertaken. Provided however, that nothing in this section shall be interpreted as requiring best management practices for agricultural operations which are not adopted on a voluntary basis.
(2) For waters in the "medium" category, such changes in permitted discharges from point sources on the water body or to the best management practices for nonpoint sources within the watershed deemed necessary to prohibit further impairment of the designated or existing beneficial uses.
(3) For waters in the "low" category, such changes in permitted discharges from point sources on the water body or to the best management practices for nonpoint sources within the watershed deemed necessary to prohibit further impairment of the designated or existing beneficial uses.
[39-3610, added 1995, ch. 352, sec. 1, p. 1172.]
(1) For water bodies described in section 39-3609, Idaho Code, the director shall, in accordance with the priorities set forth in section 39-3610, Idaho Code, and in accordance with sections 39-3614 through 39-3616, Idaho Code, and as required by the federal clean water act, prepare a subbasin assessment and develop a total maximum daily load to allocate pollutant loads to point source and nonpoint sources that discharge pollutants to the water body.
(2) Upon the completion of a total maximum daily load, the director shall publish notice of the final decision on the TMDL in the Idaho administrative bulletin and provide written notice to members of the applicable watershed advisory group. The director’s final decision shall be based upon a record that provides the basis for the total maximum daily load. The rulemaking provisions in sections 67-5220 through 67-5231, Idaho Code, shall not apply to TMDLs. The director’s final decision regarding a TMDL may be appealed to the board of environmental quality in accordance with section 39-107(5), Idaho Code, and the rules governing such appeals. The time for appeal to the board shall commence upon publication in the administrative bulletin. The board’s final decision is subject to judicial review under section 39-107(6), Idaho Code. The provisions of this subsection shall apply to all total maximum daily loads developed by the director after January 1, 1995. Provided however, that the rulemaking provisions in sections 67-5220 through 67-5231, Idaho Code, shall apply to TMDLs for metals in the Coeur d’Alene River Basin, upstream from the head of the Spokane River. Provided further, that nothing herein shall modify the requirement that water quality standards be promulgated as rules of the department pursuant to title 67, chapter 52, Idaho Code.
(3) For water bodies where an applicable water quality standard has not been attained due to impacts that occurred prior to 1972, no further restrictions under a total maximum daily load process shall be placed on a point source discharge unless the point source contribution of a pollutant exceeds twenty-five percent (25%) of the total load for that pollutant. Existing uses shall be maintained on all such water bodies.
(4) Subbasin assessments and total maximum daily load processes developed pursuant to this section shall include, but not be limited to:
(a) Identification of pollutant(s) impacting the water body;
(b) An inventory of all point and nonpoint sources of the identified pollutant(s), if practical, or an analysis of the land types, land uses and geographical features within the watershed that may be contributing identified pollutants to the water body;
(c) An analysis of why current control strategies are not effective in assuring full support of designated beneficial uses;
(d) A plan to monitor and evaluate progress toward meeting water quality standards;
(e) Pollution control strategies for both point sources and nonpoint sources;
(f) Identification of the period of time necessary to achieve full support of designated beneficial uses through implementation of pollution control strategies, which takes into account any expected changes to applicable water quality standards; and
(g) An adequate margin of safety to account for uncertainty.
(5) Point source discharges for which a national pollutant discharge elimination system permit is approved after January 1, 1995, shall be deemed to have met the requirements of this section.
(6) No instream target for a pollutant shall be set as part of a TMDL process unless the data and analysis in the subbasin assessment demonstrate that the pollutant is causing or contributing to a violation of a water quality standard in the stream for which the TMDL is being developed. If a pollutant load is allocated to a tributary inflow as part of a downstream TMDL, the director shall develop a plan to meet such allocation in consultation with the tributary watershed advisory group as provided in subsection (8) of this section.
(7) The director shall review and reevaluate each TMDL, supporting subbasin assessment, implementation plan(s) and all available data periodically at intervals of no greater than five (5) years. Such reviews shall include the assessments required by section 39-3607, Idaho Code, and an evaluation of the water quality criteria, instream targets, pollutant allocations, assumptions and analyses upon which the TMDL and subbasin assessment were based. If the members of the watershed advisory group, with the concurrence of the basin advisory group, advise the director that the water quality standards, the subbasin assessment, or the implementation plan(s) are not attainable or are inappropriate based upon supporting data, the director shall initiate the process or processes to determine whether to make recommended modifications. The director shall report to the legislature annually the results of such reviews.
(8) Each TMDL and any supporting subbasin assessment shall be developed and periodically reviewed and modified in consultation with the watershed advisory group for the watershed in which the water bodies are located. Consultation shall include, but not be limited to:
(a) Upon request, providing the watershed advisory group with all available information in the possession of the department concerning applicable water quality standards, water quality data, monitoring, assessments, reports, procedures and schedules for developing and submitting the TMDL and any supporting subbasin assessment to the United States environmental protection agency;
(b) Utilizing the knowledge, expertise, experience and information of the watershed advisory group in assessing the status, attainability or appropriateness of water quality standards, and in developing a TMDL and any supporting subbasin assessment; and
(c) Providing the watershed advisory group with an adequate opportunity to participate in drafting the documents for the TMDL and any supporting subbasin assessment and to suggest changes to the documents.
(9) No TMDL shall be published for public comment or submitted for approval to the United States environmental protection agency until consultation, as herein provided, has occurred. If, after consultation, the watershed advisory group disagrees with the TMDL or any supporting subbasin assessment, or has determined that applicable water quality standards should be reevaluated or revised, such position and the basis therefor shall be documented in the public notice of availability to the TMDL and any supporting subbasin assessment for review, and in any submission of the same to the United States environmental protection agency. The director shall respond to the points raised by the watershed advisory group and shall document the response in the final decision.
(10) Nothing in this section shall be interpreted as requiring best management practices for agricultural nonpoint source activities which are not adopted on a voluntary basis, nor shall this section be interpreted to relieve any person from the responsibility to comply with the Idaho forest practices act.
[39-3611, added 1995, ch. 352, sec. 1, p. 1173; am. 1997, ch. 279, sec. 6, p. 834; am. 2003, ch. 351, sec. 1, p. 938; am. 2005, ch. 334, sec. 2, p. 1049.]
Upon completion of total maximum daily load processes as set forth in section 39-3611, Idaho Code, the director shall integrate such processes into the state’s water quality management plan developed pursuant to the federal clean water act. Total maximum daily load processes shall be used by all designated agencies for achieving water quality standards.
[39-3612, added 1995, ch. 352, sec. 1, p. 1173; am. 2003, ch. 351, sec. 2, p. 939.]
The director, in consultation with the designated agencies, shall name, for each of the state’s major river basins, no less than one (1) basin advisory group which shall generally advise the director on water quality objectives for each basin and work in a cooperative manner with the director to achieve these objectives. Each such group shall establish by majority vote, operating procedures to guide the work of the group. Members shall be compensated pursuant to section 59-509(c), Idaho Code. The membership of each basin advisory group shall be representative of the industries and interests directly affected by the implementation of water quality programs within the basin and each member of the group shall either reside within the basin or represent persons with a real property interest within the basin. Recognized groups representing those industries or interests in the basin may nominate members of the group to the director. Each basin advisory group named by the director shall reflect a balanced representation of the interests in the basin and shall, where appropriate, include a representative from each of the following: agriculture, mining, nonmunicipal point source discharge permittees, forest products, local government, livestock, Indian tribes (for areas within reservation boundaries), water-based recreation, and environmental interests. In addition, the director shall name one (1) person to represent the public at large who may reside outside the basin. Members named to the basin advisory groups shall, in the opinion of the director, have demonstrated interest or expertise which will be of benefit to the work of the basin advisory group. The director may also name as may be needed those who have expertise necessary to assist in the work of the basin advisory group who shall serve as technical nonvoting advisers to the basin advisory group.
[39-3613, added 1995, ch. 352, sec. 1, p. 1174; am. 1997, ch. 214, sec. 1, p. 634; am. 2001, ch. 103, sec. 32, p. 277; am. 2001, ch. 371, sec. 1, p. 1296; am. 2007, ch. 90, sec. 21, p. 258.]
Each basin advisory group shall meet as necessary to conduct the group’s business and to provide general coordination of the water quality programs of all public agencies pertinent to each basin. Duties of the basin advisory groups shall include, but not be limited to, providing advice to the director for:
(1) Determining priorities for monitoring;
(2) Revisions in the beneficial uses designated for each stream and the status and attainability of designated or existing beneficial uses for the water bodies within the basin;
(3) Assigning water bodies to the categories described in section 39-3609, Idaho Code;
(4) Reviewing the development and implementation of total maximum daily load processes as described in section 39-3611, Idaho Code;
(5) Suggesting members of the watershed advisory groups described in section 39-3615, Idaho Code; and
(6) Establishing priorities for water quality programs within the basin based on the economic resources available to implement such programs.
In carrying out the provisions of this chapter, the director and the basin advisory groups shall employ all means of public involvement deemed necessary, including the public involvement required by section 39-3603, Idaho Code, or required in chapter 52, title 67, Idaho Code, and shall cooperate fully with the public involvement or planning processes of other appropriate public agencies.
[39-3614, added 1995, ch. 352, sec. 1, p. 1174.]
Basin advisory groups shall identify representatives of the industries and other interests affected by the management of water quality within a watershed who are prospective members of an advisory group for the watershed and shall advise the director of their findings. The director, upon the advice of the appropriate basin advisory group, shall name watershed advisory groups which will generally advise the department on the appropriateness, attainability and status of existing and designated beneficial uses and water quality criteria within the watershed, and on the development and implementation of TMDLs and other state water quality plans, including those specific actions needed to control point and nonpoint sources of pollution within the watersheds of those water bodies where designated beneficial uses are not fully supported. Each watershed advisory group shall be formed early enough to complete consultation, as provided in section 39-3611(8), Idaho Code, prior to the date the TMDL and any supporting subbasin assessment is scheduled to be submitted to the United States environmental protection agency for approval.
If the members of the watershed advisory group, with the concurrence of the basin advisory group, advise the director that applicable water quality standards within the watershed are not attainable or are inappropriate based upon supporting data, the director shall initiate the process or processes to assess such standards and to change or remove the standards that are shown by the assessment to be unattainable or inappropriate, consistent with this chapter.
Members of each watershed advisory group shall be representative of the industries and interests affected by the management of that watershed and shall, where appropriate, include a representative from each of the following: agriculture, mining, point source dischargers, forest products, local government, livestock, Indian tribes (for areas within reservation boundaries), water-based recreation, environmental interests and the land managing or regulatory agencies with an interest in the management of that watershed and the quality of the water bodies within it.
Members of each watershed advisory group shall serve and shall not be reimbursed for their expenses during their term of service.
[39-3615, added 1995, ch. 352, sec. 1, p. 1175; am. 1997, ch. 279, sec. 7, p. 835; am. 2005, ch. 334, sec. 3, p. 1051.]
Each watershed advisory group shall generally be responsible for recommending those specific actions needed to control point and nonpoint sources of pollution within the watershed so that, within reasonable periods of time, designated beneficial uses are fully supported and other state water quality plans are achieved. Watershed advisory groups shall, as described in this chapter, consult with the director and participate in the development of each TMDL and any supporting subbasin assessment for water bodies within the watershed, and shall develop and recommend actions needed to effectively control sources of pollution. In carrying out the provisions of this section, the director and the watershed advisory groups shall employ all means of public involvement deemed necessary or required in chapter 52, title 67, Idaho Code, and shall cooperate fully with the public involvement or planning processes of other appropriate public agencies.
[39-3616, added 1995, ch. 352, sec. 1, p. 1175; am. 1997, ch. 279, sec. 8, p. 835; am. 2005, ch. 334, sec. 4, p. 1052.]
Any person may request, in writing to the board of environmental quality, that a stream segment may be considered for designation as an outstanding resource water. The board shall recommend to the legislature those stream segments the board proposes for designation as outstanding resource waters. The legislature shall determine by law which such stream segments to designate as outstanding resource waters. Stream segments so designated shall be included in a list of outstanding resource waters to be compiled and updated by the department of environmental quality in its rules governing water quality standards. Interim status or special protection shall not be provided to streams recommended by the board prior to legislative designation as an outstanding resource water. No state agency shall delay actions, or deny or delay the processing or approval of any permit for a nonpoint source activity based on nomination of a segment for designation as an outstanding resource water, or while the legislature is considering such designation.
[39-3617, added 1995, ch. 352, sec. 1, p. 1175; am. 2001, ch. 103, sec. 33, p. 279.]
No person shall conduct a new or substantially modify an existing nonpoint source activity that can reasonably be expected to lower the water quality of an outstanding resource water, except for short-term or temporary nonpoint source activities which do not alter the essential character or special uses of a segment, issuance of water rights permits or licenses, allocation of water rights, or operation of water diversions or impoundments.
[39-3618, added 1995, ch. 352, sec. 1, p. 1176.]
Existing activities may continue and shall be conducted in a manner that maintains and protects the current water quality of an outstanding resource water. The provisions of this section shall not affect short-term or temporary activities that do not alter the essential character or special uses of a segment, allocation of water rights, or operations of water diversions or impoundments, provided that such activities shall be conducted in conformance with applicable laws and regulations.
[39-3619, added 1995, ch. 352, sec. 1, p. 1176.]
No person may conduct a new nonpoint source activity on or affecting an outstanding resource water, except for a short-term or temporary activity as set forth in section 39-3602, Idaho Code, prior to approval by the designated agency as provided in this section.
(1) Within six (6) months of designation of an outstanding resource water by the legislature, the designated agency shall develop best management practices for reasonably foreseeable new nonpoint source activities. In developing best management practices the designated agencies shall:
(a) Solicit technical advice from state and federal agencies, research institutions, and universities and consult with affected landowners, land managers, operators, and the public;
(b) Shall assure that all public participation processes required by law have been completed, but if no public participation process is required by law, will require public notification and the opportunity to comment; and
(c) Recommend proposed best management practices to the board of environmental quality.
(2) The board of environmental quality and designated agencies shall adopt the proposed best management practices that are in compliance with the rules and regulations governing water quality standards, and based on the recommendations of the designated agency and the comments received during the public participation process;
(3) After adoption, these best management practices will be known as the outstanding resource water best management practices and will be published by the designated agency. Outstanding resource water approved best management practices will be reviewed and revised where needed by the designated agency every four (4) years in consultation with the department, landowners, federal managers, operators and the public to determine conformance with objectives of this chapter;
(4) Following adoption of best management practices, the designated agency shall require implementation of applicable outstanding resource water best management practices which will assure that water quality of an outstanding resource water is not lowered;
(5) Where outstanding resource water best management practices have not been adopted as set forth in subsections (1) through (4) of this section, the designated agency shall:
(a) Assure that all public participation processes required by law have been completed, but if no public participation process is required by law, the designated agency shall provide for public notification of the new activity and the opportunity to comment;
(b) Determine that the site-specific best management practices selected for a new nonpoint source activity are designed to ensure that water quality of the outstanding resource water is not lowered; and
(c) Provide for review by the department that the activity is in compliance with rules and regulations governing water quality standards.
(6) When the applicable outstanding resource water best management practices are applied, the landowner, land manager, or operator applying those practices will be in compliance with the provisions of this chapter. In the event water quality is lowered, the outstanding resource water best management practices will be revised within a time frame established by the designated agency to ensure water quality is restored.
[39-3620, added 1995, ch. 352, sec. 1, p. 1176; am. 1997, ch. 279, sec. 9, p. 835; am. 2001, ch. 103, sec. 34, p. 279.]
The designated agencies, in cooperation with the appropriate land management agency and the department shall ensure best management practices are monitored for their effect on water quality. The monitoring results shall be presented to the department on a schedule agreed to between the designated agency and the department.
[39-3621, added 1995, ch. 352, sec. 1, p. 1177.]
(1) The designated agency shall ensure that the approved outstanding resource water best management practices are implemented for new nonpoint source activities. If a person fails to obtain approval from a designated agency for a new nonpoint source activity as set forth in section 39-3620, Idaho Code, or if a person fails to implement approved best management practices and water quality is lowered, the designated agency may institute a civil action for an immediate injunction to halt the activity or pursue other remedies provided by law.
(2) Nothing in this act shall restrict the enforcement authority of the department or designated agencies as provided by law.
[39-3622, added 1995, ch. 352, sec. 1, p. 1177.]
(1) Every rule promulgated within the authority conferred in sections 39-3617 through 39-3622, Idaho Code, shall be of temporary effect and shall become permanent only by enactment of statute at the first regular session following adoption of the rule. Rules not approved in the above manner shall be rejected, null, void and of no force and effect on July 1, following submission of the rules to the legislature.
(2) The rules promulgated within the authority conferred in this act and adopted by the board of environmental quality on November 10, 2010, and contained in IDAPA 58.01.02.010, 58.01.02.051 and 58.01.02.052, and on November 19, 2014, and contained in IDAPA 58.01.02.060 and 58.01.02.010 are hereby approved by the legislature. A mixing zone approved by the department shall be subject to the applicable laws and rules for mixing zones in effect at the time it is approved and such mixing zone shall remain effective until the applicable permit is renewed or modified.
[39-3623, added 1995, ch. 352, sec. 1, p. 1177; am. 2011, ch. 116, sec. 4, p. 325; am. 2015, ch. 98, sec. 1, p. 239; am. 2025, ch. 47, sec. 11, p. 231.]
The legislature, recognizing that water is one of the state’s most valuable natural resources, has adopted water quality and public drinking water standards and authorized the director of the department of environmental quality to implement these standards. In order to provide and maintain maximum water quality in the state for domestic, industrial, agricultural (irrigation and stockwatering), mining, manufacturing, electric power generation, municipal, fish culture, artificial ground water recharge, transportation and recreational purposes and to provide safe drinking water to the public at the earliest possible date, and to conform to the expressed intent of congress to abate pollution of ground waters, streams and lakes and to provide safe drinking water to the public, the legislature declares the purpose of this chapter is to enhance and preserve the quality and value of the water resources of the state of Idaho and to assist in the prevention, control, abatement and monitoring of water pollution. In consequence of the benefits resulting to the public health, welfare and economy it is hereby declared to be the policy of the state of Idaho to protect this natural resource and to provide safe drinking water to the public by assisting in monitoring, preventing and controlling water pollution; to support and aid technical and planning research leading to the prevention and control of water pollution; to provide financial and technical assistance to municipalities and other agencies in the abatement and prevention of water pollution; and to provide financial and technical assistance to community water systems and nonprofit noncommunity water systems. The director of the department of environmental quality shall administer this chapter and nothing herein shall be construed as impairing or in any manner affecting the statutory authority or jurisdiction of municipalities in providing domestic water, sewage collection and treatment.
[(39-3624) 1970, ch. 87, sec. 1, p. 211; am. 1974, ch. 23, sec. 153, p. 633; am. 1980, ch. 208, sec. 1, p. 474; am. 1987, ch. 174, sec. 1, p. 343; am. and redesig. 1995, ch. 352, sec. 8, p. 1182; am. 1999, ch. 137, sec. 9, p. 394; am. 2000, ch. 53, sec. 1, p. 103; am. 2001, ch. 103, sec. 35, p. 280.]
(1) "Sewage treatment works" means any facility for the purpose of collecting, treating, neutralizing or stabilizing sewage or industrial wastes of a liquid nature, including treatment by disposal plants, the necessary intercepting, outfall and outlet sewers, pumping stations integral to such plants or sewers, equipment and furnishings thereof and their appurtenances.
(2) "Community water system" means a public drinking water system that serves at least fifteen (15) service connections used by year-round residents or serves at least twenty-five (25) year-round residents.
(3) "Nonprofit noncommunity water system" means a public drinking water system that is not a community water system and is governed by section 501 of the Internal Revenue Code and includes, but is not limited to: state agencies, municipalities and nonprofit organizations such as churches and schools.
(4) "Construction" means the erection, building, acquisition, alteration, reconstruction, improvement or extension of sewage treatment works or best management practices, preliminary planning to determine the economic and engineering feasibility of sewage treatment works, community public water systems, nonprofit noncommunity public water systems or best management practices, the engineering, architectural, legal, fiscal and economic investigations, reports and studies, surveys, designs, plans, working drawings, specifications, procedures, and other action necessary in the construction of sewage treatment works, community public water systems, nonprofit noncommunity public water systems or best management practices, and the inspection and supervision of the construction of sewage treatment works, community public water systems, nonprofit noncommunity public water systems or best management practices.
(5) "Eligible construction project" means a project for construction of sewage treatment works, community public water systems, nonprofit noncommunity public water systems or for a project for the application of best management practices as set forth in the approved state water quality plan, in related project areas:
(a) For which approval of the Idaho board of environmental quality is required under section 39-118, Idaho Code;
(b) Which is, in the judgment of the Idaho board of environmental quality, eligible for water pollution abatement assistance or for provision of safe drinking water, whether or not federal funds are then available therefor;
(c) Which conforms with applicable rules of the Idaho board of environmental quality;
(d) Which is, in the judgment of the Idaho board of environmental quality, necessary for the accomplishment of the state’s policy of water purity as stated in section 39-3601, Idaho Code; and
(e) Which is needed, in the judgment of the Idaho board of environmental quality, to correct existing water pollution problems or public health hazards and to provide reasonable reserve capacity to prevent future water pollution problems or public health hazards or to provide for safe drinking water.
(6) "Municipality" means any county, city, special service district, nonprofit corporation or other governmental entity having authority to dispose of sewage, industrial wastes, or other wastes, or to provide for safe drinking water, any Indian tribe or authorized Indian tribal organization, or any combination of two (2) or more of the foregoing acting jointly, in connection with an eligible project.
(7) "Board" means the Idaho board of environmental quality.
(8) "Department" means the Idaho department of environmental quality.
(9) "Director" means the director of the Idaho department of environmental quality.
(10) "Nondomestic wastewater" means wastewater whose source of contamination is not principally human excreta.
(11) "Best management practice" means practices, techniques or measures identified in the state water quality plan which are determined to be the most effective, practicable means of preventing or reducing pollutants generated from nonpoint sources to a level compatible with water quality goals.
(12) "Nonpoint source pollution" means water pollution that comes from many varied, nonspecific and diffused sources and can be categorized by the general land disturbing activity that causes the pollution.
(13) "Training program" means any course of training established to provide sewage treatment plant operating personnel and public drinking water system personnel with increased knowledge to improve their ability to operate and maintain sewage treatment works and public drinking water systems.
[(39-3625) 1970, ch. 87, sec. 2, p. 211; am. 1974, ch. 23, sec. 154, p. 723; am. 1974, ch. 80, sec. 1, p. 1167; am. 1977, ch. 176, sec. 1, p. 452; am. 1980, ch. 208, sec. 2, p. 475; am. 1980, ch. 280, sec. 1, p. 727; am. 1986, ch. 66, sec. 1, p. 188; am. and redesig. 1995, ch. 352, sec. 9, p. 1183; am. 1999, ch. 137, sec. 10, p. 394; am. 2000, ch. 53, sec. 2, p. 104; am. 2001, ch. 103, sec. 36, p. 281.]
(1) The state of Idaho is hereby authorized to make grants and loans at or below market interest rates, as funds are available, to any municipality to assist said municipality in the construction of sewage treatment works, to community public water systems and nonprofit noncommunity public water systems. The state of Idaho is hereby also authorized to make loans at or below market interest rates for the implementation of a management program established under section 319 of the federal water pollution control act, as amended.
(2) The department of environmental quality may use a portion of the interest revenues from wastewater and drinking water loans, in an amount not to exceed one percent (1%) of loans outstanding, subject to annual appropriation, for operation of the wastewater and drinking water loan programs.
(3) The Idaho board of environmental quality through the department of environmental quality shall be the agency for administration of funds authorized for grants or loans under this chapter, and may reserve up to four percent (4%) of the moneys accruing annually to the water pollution control and wastewater facility loan funds to be appropriated annually for the purpose of operating the water quality programs established pursuant to this chapter. The board may also reserve up to six percent (6%) of the moneys accruing annually to the water pollution control fund to be appropriated annually for the purpose of conducting water quality studies including monitoring.
(4) In allocating state construction grants and loans under this chapter, the Idaho board of environmental quality shall give consideration to water pollution control needs, protection of public health and provision of safe drinking water.
(5) Pursuant to subsection (4) of this section, the Idaho board of environmental quality shall establish an integrated list of priority municipal sewage facility and nonpoint source pollution control projects and a list of priority community and nonprofit noncommunity public water systems.
(6) The Idaho board of environmental quality through the department of environmental quality may transfer funds between the wastewater facility loan account and the drinking water loan account. Such transfers shall be listed in the annual intended use plan and approved by the Idaho board of environmental quality.
[(39-3626) 1970, ch. 87, sec. 3, p. 211; am. 1974, ch. 23, sec. 155, p. 725; am. 1974, ch. 80, sec. 2, p. 1167; am. 1977, ch. 176, sec. 2, p. 453; am. 1980, ch. 208, sec. 3, p. 476; am. 1980, ch. 280, sec. 2, p. 728; am. 1987, ch. 174, sec. 2, p. 343; am. 1988, ch. 270, sec. 1, p. 896; am. and redesig. 1995, ch. 352, sec. 10, p. 1184; am. 1999, ch. 137, sec. 11, p. 396; am. 2000, ch. 53, sec. 3, p. 105; am. 2000, ch. 363, sec. 1, p. 1200; am. 2001, ch. 103, sec. 37, p. 282; am. 2004, ch. 61, sec. 1, p. 279; am. 2014, ch. 59, sec. 1, p. 141.]
(1) The Idaho board of environmental quality may make payments not to exceed ninety percent (90%) of the estimated reasonable cost of an eligible construction project funded by a grant. Payments may be made which are equal to one hundred percent (100%) of the estimated reasonable cost of an eligible construction project funded by a loan.
(2) The Idaho board of environmental quality may, in the name of the state of Idaho, enter into contracts with municipalities and community and nonprofit noncommunity public water systems and any such municipality and community and nonprofit noncommunity public water system may enter into a contract with the Idaho board of environmental quality, concerning eligible construction projects. Any such contract may include such provisions as may be agreed upon by the parties thereto, and shall include, in substance, the following provisions:
(a) An estimate of the reasonable cost of the project as determined by the Idaho board of environmental quality.
(b) An agreement by the municipality or community and nonprofit noncommunity public drinking water system, binding for the actual service life of the sewage treatment works or the actual service life of the community and nonprofit noncommunity public drinking water system:
(i) To proceed expeditiously with, and complete, the project in accordance with plans approved pursuant to section 39-118, Idaho Code.
(ii) To commence operation of the sewage treatment works or community and nonprofit noncommunity public drinking water system on completion of the project, and not to discontinue operation or dispose of the sewage treatment works or community and nonprofit noncommunity public drinking water system without the approval of the board of environmental quality.
(iii) To operate and maintain the sewage treatment works or community and nonprofit noncommunity public drinking water system in accordance with applicable provisions and rules of the board.
(iv) To make available on an equitable basis the services of the sewage treatment works or community and nonprofit noncommunity public drinking water system to the residents and commercial and industrial establishments of areas it was designed to serve.
(v) To provide for the payment of the municipality’s share or the community and nonprofit noncommunity public drinking water system’s share of the cost of the project when the project is built using grant funds.
(vi) To develop and to secure the approval of the department of plans for the operation and maintenance of the sewage treatment works or community and nonprofit noncommunity public drinking water system; and of plans and programs for the recovery of the capital costs and operating expenses of the works or system.
(vii) To allow the board to make loans of up to one hundred percent (100%) and supplemental grants based upon financial capability to a municipality for the estimated reasonable cost of an eligible project, which may include treatment of nondomestic wastewater.
(viii) To provide for the accumulation of funds through the use of taxing powers, through charges made for services, through revenue bonds, or otherwise, for the purposes of: (1) capital replacement, (2) future improvement, betterment, and extension of such works occasioned by increased wastewater loadings on the works, and (3) establishing a fund dedicated solely to repayment of principal and interest of loans made subsequent to this chapter.
(ix) To commence annual principal and interest payments not later than one (1) year from the date construction is completed and to provide for full amortization of loans not later than thirty (30) years from the date project construction is completed.
(c) The terms under which the Idaho board of environmental quality may unilaterally terminate the contract and/or seek repayment from the municipality or community and nonprofit noncommunity public drinking water system of sums already paid pursuant to the contract for noncompliance by the municipality with the terms and conditions of the contract and the provisions of this chapter.
(3) The board of environmental quality may, in the name of the state of Idaho, enter into loan contracts with applicants for the implementation of nonpoint source pollution control programs. To be eligible for a loan the project proposed by an applicant must be consistent with the state nonpoint source management plan. Up to twenty percent (20%) of the total state revolving loan fund may be used for nonpoint source pollution control projects which demonstrate a benefit/nexus to a municipality.
(4) The board may adopt rules necessary for the making and enforcing of contracts hereunder and establishing procedures to be followed in applying for state construction grants or loans or training grants herein authorized as shall be necessary for the effective administration of the grants and loans program.
(5) All contracts entered into pursuant to this section shall be subject to approval by the attorney general as to form. All payments by the state pursuant to such contracts shall be made after audit and upon warrant as provided by law on vouchers approved by the director.
[(39-3627) 1970, ch. 87, sec. 4, p. 211; am. 1974, ch. 23, sec. 156, p. 725; am. 1974, ch. 80, sec. 3, p. 1167; am. 1977, ch. 176, sec. 3, p. 454; am. 1980, ch. 208, sec. 4, p. 476; am. 1980, ch. 280, sec. 3, p. 728; am. 1987, ch. 174, sec. 3, p. 344; am. 1988, ch. 270, sec. 2, p. 897; am. and redesig. 1995, ch. 352, sec. 11, p. 1185; am. 1999, ch. 137, sec. 12, p. 396; am. 2000, ch. 53, sec. 4, p. 106; am. 2000, ch. 363, sec. 2, p. 1201; am. 2001, ch. 103, sec. 38, p. 283; am. 2010, ch. 25, sec. 1, p. 44; am. 2011, ch. 44, sec. 1, p. 100.]
There is hereby created and established in the state treasury a separate fund to be known as the water pollution control fund. The fund shall have paid into it:
The moneys provided for in section 63-3638, Idaho Code, that are paid over to the state treasurer shall be deposited to the credit of the water pollution control fund, and not to the credit of the state general fund;
All donations and grants from any source which may be used for the provisions of this act;
Any other funds which may hereafter be provided by law.
[(39-3628) 1970, ch. 87, sec. 5, p. 211; am. 1987, ch. 174, sec. 4, p. 346; am. 1988, ch. 270, sec. 3, p. 899; am. and redesig. 1995, ch. 352, sec. 12, p. 1187; am. 2000, ch. 132, sec. 14, p. 329.]
(1) There is hereby created and established in the state treasury the agricultural best management practices (BMP) fund. The state treasurer shall invest the idle moneys of the account, and the interest earned on such investments shall be retained by the account. All moneys in the account are appropriated continuously to the department of environmental quality to be used and administered by it for the purposes specified in subsection (3) of this section and shall not be subject to the provisions of the standard appropriations act of 1945 or section 67-3516, Idaho Code.
(2) The fund shall have paid into it any gifts or grants from any source when the same are made for purposes consistent with those for which the fund is established, interest due to the investment of moneys in the account, or any other appropriation provided by the legislature.
(3) The department may expend or grant moneys from the agricultural best management practices (BMP) fund for a statewide grant program to support implementation of agricultural best management practices to help meet water quality standards in impaired water bodies in Idaho. The following are eligible for grants from the agricultural BMP fund:
(a) Agricultural producers;
(b) Organizations that provide irrigation water and drainage; and
(c) Soil conservation districts and other local public and private nonprofit organizations organized for the purpose of supporting agricultural BMP implementation. The department must ensure that such local organizations seeking funding for local agricultural BMP grant programs have sufficient knowledge, experience, and capability to conduct such programs and require that local agricultural BMP grants are subject to all the conditions and requirements of the statewide grant program.
(4) On or before the first day of each regular legislative session, the department must submit to the legislature a report of any moneys expended or obligated and any work begun or completed in the prior fiscal year pursuant to subsection (3) of this section.
[39-3628A, added 2021, ch. 175, sec. 1, p. 487.]
(1) There is hereby created and established in the state treasury the confined animal feeding operations (CAFO) improvement fund. The state treasurer shall invest the idle moneys of the fund, and the interest earned on such investments shall be retained by the fund. All moneys in the fund are appropriated continuously to the department of environmental quality to be used and administered by it for the purposes specified in subsection (3) of this section and shall not be subject to the provisions of chapter 36, title 67, Idaho Code, or section 67-3516, Idaho Code.
(2) The fund shall have paid into it any gifts or grants from any source when the same are made for purposes consistent with those for which the fund is established, interest due to the investment of moneys in the fund, or any other appropriation provided by the legislature.
(3) The department must expend or grant moneys from the CAFO improvement fund, as directed by the CAFO improvement fund committee, for a statewide grant program to support implementation of environmental improvement programs on confined animal feeding operations for the purpose of improving or implementing: by-product, waste, nutrient, and water management; application and storage systems; energy-efficiency projects related to processing of livestock by-products and waste; and renewable energy projects using livestock by-products or waste as a feedstock. The following are eligible for grants from the CAFO improvement fund:
(a) Owners and operators of a dairy farm as defined in section 37-604, Idaho Code;
(b) Owners and operators of a beef cattle animal feeding operation as defined in section 22-4904, Idaho Code; and
(c) Owners and operators of a concentrated animal feeding operation as defined in section 25-4002, Idaho Code.
(4) On or before the first day of each regular legislative session, the department must submit to the legislature a report of any moneys expended or obligated and any work begun or completed in the prior fiscal year pursuant to subsection (3) of this section.
(5) The CAFO improvement fund established under this section, and the administration of such fund, shall not be subject to the provisions of section 39-3614, Idaho Code.
(6)(a) There is hereby established the CAFO improvement fund committee to administer the CAFO improvement fund. The committee shall consist of seven (7) members as follows:
(i) One (1) representative selected by and appointed by the director of the Idaho department of environmental quality;
(ii) One (1) representative selected by and appointed by the director of the Idaho state department of agriculture;
(iii) Two (2) representatives selected by and appointed by the Idaho dairymen’s association;
(iv) Two (2) representatives selected by and appointed by the Idaho cattle association; and
(v) One (1) representative selected by and appointed by the dean of the college of agricultural and life sciences, university of Idaho.
(b) Each member shall be appointed to serve a three (3) year term, except that the term of the initial appointees shall commence on the date of appointment and shall be staggered such that at least two (2) positions are up for appointment each year. Appointments to fill vacancies shall be for the balance of the unexpired term. The director of the Idaho department of environmental quality may also name as may be needed those who have expertise necessary to assist in the work of the committee to serve as technical nonvoting advisers to the committee. Members of the committee shall be compensated pursuant to section 59-509(c), Idaho Code. The members of the committee shall appoint a chairperson from among its members. The committee shall meet as necessary to conduct its business and provide general direction to the director for administration of the funds under this section, but not less frequently than annually, provided that no annual meeting is required if there are no funds available under this section for administration.
(7) The CAFO improvement fund committee shall have sole responsibility and authority to:
(a) Establish the criteria for eligibility to receive a grant from the CAFO improvement fund, which shall include but not be limited to:
(i) That any application must be for a project that meets the purpose for which the CAFO improvement fund moneys may be expended, as described in subsection (3) of this section;
(ii) That any applicant must be of the class eligible to receive funds from the CAFO improvement fund, as described in subsection (3) of this section;
(iii) That the applicant for a project must contribute or obtain, in kind or in cash, no less than forty percent (40%) of the total project cost from sources other than the CAFO improvement fund; and
(iv) That no single project may receive in grant funding from the CAFO improvement fund more than twenty percent (20%) of the total funds appropriated to the CAFO improvement fund in any fiscal year.
(b) Solicit and review applications for qualifying projects as described in subsection (3) of this section;
(c) Establish the criteria to score and rank applications, which may include separating applications among classes based on CAFO size in order to ensure grant funding is made available to CAFOs of varying operational size;
(d) Score and rank project applications and determine the award of grants to applicants for qualifying projects that have been reviewed by the committee, and then direct the department accordingly;
(e) Monitor the completion of projects that receive a grant award and the results of projects after implementation; and
(f) Other duties as necessary to coordinate and implement administration of the provisions of this section by the director.
(8) The department of environmental quality shall provide staff assistance and support for the committee and administration of the CAFO improvement fund. The cost of administration of the provisions of this section shall be paid from legislative appropriations to the CAFO improvement fund.
[39-3628B, added 2022, ch. 51, sec. 1, p. 155.]
There is hereby created and established in the agency asset fund in the state treasury an account to be known as the wastewater facility loan account. Surplus moneys in the wastewater facility loan account shall be invested by the state treasurer in the manner provided for idle state moneys in the state treasury under section 67-1210, Idaho Code. Interest received on all such investments shall be paid into the wastewater facility loan account. The account shall have paid into it:
Federal funds which are received by the state to provide for wastewater facility loans together with required state matching funds coming from a portion of the moneys in the water pollution control account as established in section 39-3628, Idaho Code;
All donations and grants from any source which may be used for the provisions of this section;
All principal and interest repayments of loans made pursuant to this chapter;
Fund transfers from the drinking water loan account; and
Any other moneys which may hereafter be provided by law.
[(39-3629) 1987, ch. 174, sec. 5, p. 347; am. 1988, ch. 270, sec. 4, p. 900; am. and redesig. 1995, ch. 352, sec. 13, p. 1187; am. 1996, ch. 345, sec. 1, p. 1155; am. 1998, ch. 16, sec. 1, p. 114; am. 2014, ch. 59, sec. 2, p. 141.]
Moneys in the water pollution control fund are hereby perpetually appropriated for the following purposes:
(1) To provide revenue for the payment of general obligation bonds issued pursuant to section 39-3633, Idaho Code, and general obligation refunding bonds issued pursuant to chapter 115, 1973 laws of the state of Idaho.
(2) To provide payments for contracts entered into pursuant to this chapter.
(3) To provide funds to capitalize the wastewater facility loan account established in section 39-3629, Idaho Code, including the required matching share of federal capitalization funds.
(4) To provide funds to capitalize the drinking water loan account established in section 39-7602, Idaho Code, including the required matching share of federal capitalization funds.
(5) Pending such expenditure or use, surplus moneys in the water pollution control fund 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 received on all such investments shall be paid into the water pollution control fund.
[(39-3630) 1970, ch. 87, sec. 6, p. 211; am. 1977, ch. 176, sec. 4, p. 456; am. 1980, ch. 208, sec. 5, p. 478; am. 1980, ch. 280, sec. 4, p. 730; am. 1987, ch. 174, sec. 6, p. 347; am. 1988, ch. 270, sec. 5, p. 900; am. and redesig. 1995, ch. 352, sec. 14, p. 1188; am. 1996, ch. 345, sec. 2, p. 1155; am. 1998, ch. 16, sec. 2, p. 114; am. 2000, ch. 132, sec. 15, p. 329.]
Moneys in the wastewater facility loan fund are hereby perpetually appropriated for the following purposes:
(1) To provide loans and other forms of financial assistance authorized under title VI of the federal water quality act of 1987, P.L. 100-4, to any municipality for construction of sewage treatment works.
(2) To provide funds, subject to annual federal and state appropriation and applicable federal limitations, for operation of the wastewater facility loan program by the department of environmental quality.
[(39-3631) 1988, ch. 270, sec. 6, p. 901; am. and redesig. 1995, ch. 352, sec. 15, p. 1188; am. 1996, ch. 345, sec. 3, p. 1156; am. 1998, ch. 16, sec. 3, p. 115; am. 2001, ch. 103, sec. 39, p. 285.]
(1) The board of environmental quality may divide financial assistance for eligible construction projects into separate grants, loans or a combination of grants and loans for the design, planning, and construction stages of project development. The making of a grant or loan for early stages of a project does not obligate the state to make a grant or loans for later stages of the same project.
(2) The board may make grants from the water pollution control fund; provided, that the projected payments for such grants would not cause the projected balance in the fund to fall below zero at any time. All grant payments shall be subject to the availability of moneys in the fund.
(3) The board may make loans from the wastewater facility loan fund, provided that the projected payments for such loans would not cause the projected balance in the fund to fall below zero at any time. All loan payments shall be subject to the availability of moneys in the fund.
[(39-3632) 1981, ch. 33, sec. 1, p. 53; am. 1987, ch. 174, sec. 7, p. 347; am. 1988, ch. 270, sec. 7, p. 901; am. and redesig. 1995, ch. 352, sec. 16, p. 1188; am. 1996, ch. 345, sec. 4, p. 1156; am. 1998, ch. 16, sec. 4, p. 115; am. 2001, ch. 103, sec. 40, p. 285.]
(1) Water pollution control bonds, as provided by section 5, article VIII of the constitution of the state of Idaho, shall be authorized by resolution of the state board of environmental quality. The bonds may be issued in one (1) or more series, may bear such date or dates, may be in such denomination or denominations, may mature at such time or times, may mature in such amount or amounts, may bear interest at the most advantageous rate or rates available to the state at the time offered, payable semiannually, may be in such form, either coupon or registered, may carry such registration and such conversion privileges, may be executed in such manner, may be payable in such medium of payment, at such place or places, may be subject to such terms of redemption, with or without premium, as such resolution or other resolutions may provide. The bonds, if sold to a federal agency, may be sold at a private sale at not less than par and accrued interest, without advertising the same at competitive bidding. If not sold to a federal agency, the bonds shall be sold publicly in a manner to be provided by the state board of environmental quality. The bonds shall be fully negotiable within the meaning and for all purposes of the Uniform Commercial Code.
(2) The moneys derived from the sale of any bonds shall be deposited in the state treasury to the credit of the water pollution control fund for the purposes of that fund.
(3) All bonds issued pursuant to this chapter shall be obligations of the state and shall be payable in accordance with the terms of this chapter and the provisions of section 5, article VIII of the constitution of the state of Idaho.
[(39-3633) 1970, ch. 87, sec. 7, p. 211; am. 1974, ch. 23, sec. 157, p. 633; am. and redesig. 1995, ch. 352, sec. 17, p. 1189; am. 2001, ch. 103, sec. 41, p. 286.]
"Cottage site" is defined as a state owned lot containing one (1) acre or less which is or may be leased by the state of Idaho primarily for recreational or homesite use by a lessee.
[(39-3634) 1970, ch. 191, sec. 1, p. 555; am. and redesig. 1995, ch. 352, sec. 18, p. 1189.]
(1) After the effective date of sections 39-3634 through 39-3639, Idaho Code, all cottage site leases authorized by the state of Idaho shall require that each lessee must construct, at his cost and expense, sewage disposal facilities, certified by the director of the department of environmental quality as adequate, as follows:
(a) For all new cottage or house construction completed after July 1, 1971 on any cottage site the certificate shall be issued prior to occupancy.
(b) Those cottages or houses existing on the cottage sites prior to the effective date of sections 39-3634 through 39-3639, Idaho Code, shall meet those standards required by the director of the department of environmental quality for certification within two (2) years of the effective date of sections 39-3634 through 39-3639, Idaho Code, unless a public or private sewage collection or disposal system is being planned or constructed in which case the director of the department of environmental quality may grant extensions on a year by year basis but not exceed three (3) such extensions for any one (1) cottage site.
(c) Isolated dwellings on sites situated on mining, grazing or other similar types of state land board leases shall not be affected unless within two hundred (200) yards of any flowing stream or a lake.
(2) Wherever any cottage site is located within the boundaries of a district organized for water or sewer purposes, or a combination thereof, pursuant to the provisions of chapter 32, title 42, Idaho Code, as amended, the cottage site lessee shall connect his property to the sewer system of the district within sixty (60) days after written notice from the district so to do, provided, however, no cottage site lessee shall be compelled to connect his property with such sewer system unless a service line is brought by the district to a point within two hundred (200) feet of his dwelling place. All cottage site leases hereafter issued shall require, as a condition of acceptance thereof by the lessee, that the lessee will connect his property to a district sewer system as required in this subsection (2). With respect to all cottage site leases issued subsequent to July 1, 1970, filing with the department issuing the lease of evidence of connection to the district sewer system as contemplated in this subsection (2) shall be conclusive evidence of compliance by the cottage site lessee with the requirements of subsection (1) of this section and of the provisions of the cottage site lease to provide sewage disposal facilities at the expense of the cottage site lessee. Each cottage site lessee whose cottage site is subject to connection to a district sewer system as required in this subsection (2) shall pay to the district to which the cottage site is required to be connected, in a timely manner and when due, all connection fees and charges, all monthly rates, tolls and charges, as provided by chapter 32, title 42, Idaho Code, as amended, and all special benefits payments in lieu of tax payments provided for in subsection (3) of this section.
(3) Notwithstanding that title to a cottage site remains in the state of Idaho, each cottage site lessee shall pay to any district operating a sewer system to which the cottage site is connected as provided in subsection (2) of this section, each year in the same manner and at the same time as county taxes are paid and collected a sum of money in lieu of taxes equal to the sum which would have been paid had the cottage site been held in private ownership, hereinafter called special benefits payments. The special benefits payments shall be computed by applying the millage levy of the district to the cottage site in the ordinary course to the assessed valuation of the property as determined by the county assessor of the county in which the cottage site is located. No special benefits payments shall be imposed prior to January 1, 1980. The cottage site lessee shall have such rights of protest, hearings and appeals with respect to the valuation of the cottage site for purposes of determining the special benefits payments as if such cottage site were held in private ownership.
It shall be the duty of the county assessor to establish the value of each cottage site as compared to like property upon the request, in writing, of the district.
(4) Each water and sewer district shall immediately notify the department issuing a cottage site lease of the failure of any cottage site lessee to connect to the district sewer system, or to pay any connection fee or charge, monthly rate, toll or charge, or any special benefits payments, all as required or provided for in subsection (3) of this section. Any such notification shall set forth the amount of any such fees, charges or payments which are delinquent.
(5) Approval, pursuant to the provisions of section 39-118, Idaho Code, by the department of environmental quality of the plans and specifications of a sewer system to be constructed, acquired, improved or extended by a water and sewer district shall, as to all cottage sites connected to the district sewer system, satisfy the requirements of section 39-3637, Idaho Code.
(6) The state of Idaho, its boards, agencies or departments, shall not be liable, directly or indirectly, for any connection fees and charges, monthly rates, tolls and charges, or special benefits payments charged to cottage site lessees beyond those fees or payments collected from new lessees pursuant to section 58-304A, Idaho Code, and placed in the revolving fund created by section 58-141A, Idaho Code.
[(39-3635) 1970, ch. 191, sec. 2, p. 555; am. 1971, ch. 172, sec. 1, p. 810; am. 1974, ch. 23, sec. 158, p. 633; am. 1979, ch. 100, sec. 1, p. 242; am. and redesig. 1995, ch. 352, sec. 19, p. 1189; am. 2001, ch. 103, sec. 42, p. 286.]
Failure to provide certified sewage disposal as provided in section 39-3635(1), Idaho Code, or failure to connect to a district sewer system or to pay, when due, any connection fee or charge, any monthly rate, toll or charge, or any special benefits payment, all as required and provided for in subsections (2) and (3) of section 39-3635, Idaho Code, shall result in the following:
(a) Forfeiture of lease to the state of Idaho after reasonable notice and hearing, as shall be prescribed in rules to be adopted by the department issuing the lease pursuant to the applicable provisions of chapter 52, title 67, Idaho Code, as now or hereafter in force.
(b) Loss of sewage treatment facility credit on any transfer of lease or new lease of such site after notice and hearing before the department issuing such lease.
The department issuing any cottage site lease, upon its own motion or upon receiving notice from a water and sewer district pursuant to the provisions of section 39-3635(4), Idaho Code, of the failure of a cottage site lessee to connect to a district sewer system or to pay any connection fee or charge, any monthly rate, toll or charge, or any special benefits payments, when due, is authorized to invoke either or both remedies at its discretion or may take such other action allowed by law to enforce the provisions of the lease and the requirements of section 39-3635, Idaho Code, that each cottage site lessee connect to a district sewer system and pay all fees, charges and payments when due.
[(39-3636) 1970, ch. 191, sec. 3, p. 555; am. 1979, ch. 100, sec. 2, p. 244; am. and redesig. 1995, ch. 352, sec. 20, p. 1191.]
The state board of environmental quality shall adopt reasonable rules and standards for the installation and operation of cottage site sewage treatment facilities, and shall provide adequate inspection services so as not to delay unreasonably the construction of any lessee. Duplicate originals of all certificates issued by the director of the department of environmental quality shall be filed with the director of the department issuing a cottage site lease.
The director of the department of environmental quality shall maintain a site by site inventory of such sewage disposal systems that may exist. The inventory shall ascertain:
(1) If the existing system meets the board standards. If the system meets all standards and rules for cottage sewage disposal systems a certificate shall be issued immediately.
(2) If the system does not meet the board standards. In such case, the lessee shall be advised in writing of the actions necessary to meet the proper standards. A copy of such report shall be filed with the state agency granting the lease. The modifications, unless specifically exempted from the time limit, as provided in sections 39-3634 through 39-3637, Idaho Code, shall be completed within two (2) years of the date of the written notice.
[(39-3637) 1970, ch. 191, sec. 4, p. 555; am. 1971, ch. 172, sec. 2, p. 810; am. 1974, ch. 23, sec. 159, p. 633; am. and redesig. 1995, ch. 352, sec. 21, p. 1192; am. 2001, ch. 103, sec. 43, p. 288.]
In the event of dispute or unreasonable delay on the part of lessee or the department of environmental quality, the department issuing a cottage site lease may, upon notice and hearing, make a final determination consistent with control of water pollution and public health.
[(39-3638) 1970, ch. 191, sec. 5, p. 555; am. 1974, ch. 23, sec. 160, p. 633; am. and redesig. 1995, ch. 352, sec. 22, p. 1192; am. 2001, ch. 103, sec. 44, p. 288.]
(1) The legislature of the state of Idaho recognizes that certain state lands are presently leased for cottage site uses and are subject to leases and contracts duly authorized by law. It is legislative intent to continue to recognize such leases. However, it is also legislative intent that no new or additional lands be platted, subdivided or leased for cottage site leases, unless and until the condition and precedents listed below have been met.
(2) No additional state lands shall be further platted or subdivided, nor any new cottage site leases entered into, unless and until the following provisions have been met:
(a) The department of lands shall have completed a comprehensive planning process, as to its further participation in, and extension of, the cottage site lease program;
(b) The department of lands shall complete a comprehensive planning process as to the extension of cottage site leasing for that immediate geographic area;
(c) No new cottage site leases shall be entered into unless and until an adequate water system and an adequate sewage collection and treatment system have been installed. Both of these systems shall meet applicable state health standards and rules. (i) The costs for providing these systems shall be incorporated into the annual lease rates for the newly created serviced lots, unless other specific provisions for payment have been required by the state board of land commissioners. (ii) As an alternate means of securing the necessary funds for the construction of water and sewer systems which must meet state standards and rules, the state board of land commissioners may include as a condition of the new lease the requirement that the lessee must prepay his share of the construction costs of the water and sewer system. In all cases, however, such prepayment shall be made, and adequate water and sewer systems shall be installed and in operation before such cottage sites may be inhabited.
(3) The provisions of subsection (1) herein shall not apply to unimproved lots within cottage subdivisions in which at least eighty per cent (80%) of the lots already have cottages upon them.
[(39-3639) I.C., sec. 39-3613, as added by 1975, ch. 128, sec. 1, p. 280; am. and redesig. 1995, ch. 352, sec. 23, p. 1192.]
(1) It is the policy of the state of Idaho to support water quality trading and other voluntary, cost-effective, and innovative means of attaining and maintaining water quality standards established pursuant to this chapter.
(2) The provisions of this title, water quality standards, and total maximum daily loads and discharge permitting shall, where the department deems appropriate, be administered to support opportunities for water quality trading and other voluntary, innovative means of attaining and maintaining water quality standards established pursuant to this chapter.
(3) "Water quality trade" and "water quality trading" mean a voluntary transaction whereby a person who discharges or proposes to discharge a pollutant into a water body pursuant to a permit or license meets regulatory requirements by obtaining pollutant reductions from another source.
(4) The department is authorized to investigate, review, approve, modify, or deny water quality trades, trading frameworks, and the means of verifying water quality pollutant trading and other water quality attainment innovations that contribute to the attainment of water quality standards.
[39-3640, added 2021, ch. 94, sec. 1, p. 324.]
(1) Any person who is seventeen (17) years of age or older shall be eligible to donate blood in a voluntary and noncompensatory blood program without the necessity of obtaining parental permission or authorization.
(2) A person who is sixteen (16) years of age but not seventeen (17) years of age may donate blood in a voluntary and noncompensatory blood program if the parent, guardian or custodian of the child has given informed consent to the blood donation. After informed consent has been given, the parent, guardian or custodian of a child may revoke such consent at any time by clearly communicating such revocation to staff of the blood donation program. When consent has been revoked, the blood donation facility shall promptly discontinue any further steps for blood donation. The blood donation program may require the parent, guardian or custodian to sign a written revocation of consent regarding the donation of blood.
[39-3701, added 1970, ch. 27, sec. 1, p. 53; am. 1978, ch. 13, sec. 1, p. 25; am. 2011, ch. 126, sec. 1, p. 353.]
The procurement, processing, storage, distribution, or use of whole blood, plasma, blood products, blood derivatives, bodily tissue, tissue products, organs, parts of organs or products derived therefrom for the purpose of injecting, transfusing or transplanting the same, or any of them, into the human body for any purpose whatsoever is declared to be the rendering of a service by any person or entity (except a paid blood, organ or tissue donor, or a blood, organ or tissue bank operated for profit) participating therein and does not constitute a sale, whether or not any consideration is given therefor, and the implied warranties of merchantability and fitness for a particular purpose shall not be applicable as to a defect that cannot be detected or removed by reasonable use of standard established scientific procedures or techniques, except such person or entity shall remain liable for his or its own negligence or willful misconduct only.
[I.C., sec. 39-3702, as added by 1971, ch. 24, sec. 2, p. 60; am. 1987, ch. 148, sec. 2, p. 295.]
No anatomical parts of human bodies, including whole blood, plasma, blood products, blood derivatives, body tissue, organs, parts of organs or products derived therefrom, and including semen, ova and embryos, shall be used for any purpose of injecting, transfusing or transplanting into a human body unless such anatomical parts or the donor have been examined for acquired immunodeficiency syndrome (AIDS), AIDS related complexes (ARC), or other manifestations of human immunodeficiency virus (HIV) infection, and a test is negative for the presence of HIV antibodies or antigens.
The director of the department of health and welfare shall promulgate rules to fully implement the requirements of this section.
[39-3703, added 1988, ch. 17, sec. 1, p. 19.]
(1) As used in this section, "blood product" includes whole blood, blood plasma, blood derivatives, blood platelets, and blood clotting agents.
(2) Except as provided in subsection (3) of this section, a health care provider or facility may not prohibit a patient from providing, through a blood establishment complying with all federal requirements for the collection of blood products, the patient’s own blood or the blood product of the patient’s directed donor for any potential transfusion related to such patient’s health care.
(3) The provisions of subsection (2) of this section shall not apply if:
(a) The donation or transfusion of the blood product would be detrimental to the donor or patient;
(b) Insufficient time exists to coordinate and arrange for the patient’s provision of the blood product prior to a surgery or medical procedure; or
(c) A surgery or medical procedure is for emergency medical services.
(4) A health care provider or facility operating within the scope of the health care provider or facility’s license shall be immune from liability for injury, damages, or death occurring as a result of using the blood product provided by a patient pursuant to subsection (2) of this section, unless the health care provider or facility’s gross negligence regarding the blood product or transfusion contributed to the injury, damages, or death.
(5) Nothing in this section shall be construed to conflict with federal law governing the collection, donation, sale, or use of a blood product.
[39-3704, added 2026, ch. 26, sec. 1, p. 122.]
Notwithstanding any other provision of law, a minor fourteen (14) years of age or older who may have come into contact with any infectious, contagious, or communicable disease may give consent to the furnishing of hospital, medical and surgical care related to the diagnosis or treatment of such disease, if the disease or condition is one which is required by law, or regulation adopted pursuant to law, to be reported to the local health officer. Such consent shall not be subject to disaffirmance because of minority. The consent of the parent, parents, or legal guardian of such minor shall not be necessary to authorize hospital, medical and surgical care related to such disease and such parent, parents, or legal guardian shall not be liable for payment for any care rendered pursuant to this section.
[39-3801, added 1971, ch. 107, sec. 1, p. 227.]
The legislature of the state of Idaho acknowledges that sterilization procedures are highly intrusive, generally irreversible and represent potentially permanent and highly significant consequences for individuals incapable of giving informed consent. The legislature recognizes that certain legal safeguards are required to prevent indiscriminate and unnecessary sterilization of such individuals, and to assure equal access to desired medical procedures for all Idaho citizens.
[39-3901, added 2003, ch. 189, sec. 2, p. 512.]
For purposes of this chapter, the following words and terms have the meanings hereinafter stated:
(1) "Emergency medical treatment" means immediate medical intervention required, according to the prevailing medical standards of judgment and practice within the community, because of the medical condition of the person subject to this chapter.
(2) "Evaluation committee" means an interdisciplinary team consisting of at least four (4) individuals qualified by education and training to evaluate an individual as required by the provisions of this chapter, and an advocate designated by the person subject to this chapter. Each committee must include: two (2) social workers, at least one (1) of whom must be a master’s level; a clinical psychologist or a psychiatrist; and a physician.
(3) "Informed assent" means a process by which a person subject to this chapter who lacks or is alleged to lack the capacity to consent to sterilization is given a fair opportunity to acknowledge the nature, risks and consequences of the procedures and, insofar as he or she is able to, indicates willingness and choice to undergo sterilization.
(4) "Interested person" means an interested, responsible adult including, but not limited to, the legal guardian, spouse, parent, legal counsel, adult child, or next of kin of a person subject to this chapter, or if none of these are available, the department of health and welfare.
(5) "Medically necessary" means that, according to the prevailing medical standards of judgment and practice within the community, the procedure is reasonably calculated to prevent or treat conditions in the person subject to this chapter that endanger life, cause severe pain, or cause functionally significant deformity or malfunction, and for which there is not an equally effective alternative course of treatment available or suitable.
(6) "Person subject to this chapter" means all persons, except adults who may consent to their own treatment pursuant to chapter 45, title 39, Idaho Code. Adults who are alleged to lack this capacity are also persons subject to this chapter.
(7) "Physician" means a person duly licensed in the state of Idaho to practice medicine and surgery without restriction pursuant to laws of the state of Idaho.
(8) "Records" includes, but is not limited to, all court files of judicial proceedings brought under this chapter, written clinical information, observations and reports, or fiscal documents relating to a person subject to this chapter who has undergone or is about to undergo sterilization and which are related to the sterilization.
(9) "Sterilization" means any medical or surgical operation or procedure which can be expected to result in a patient’s permanent inability to reproduce.
[39-3902, added 2003, ch. 189, sec. 2, p. 512; am. 2005, ch. 120, sec. 5, p. 390; am. 2009, ch. 130, sec. 1, p. 409.]
Persons subject to this chapter have the legal right to be sterilized following the entry of an order providing for sterilization and the expiration of the time allowed by law for perfecting an appeal. In no event shall persons subject to this chapter be sterilized without court approval in accordance with this chapter unless sterilization occurs as part of emergency medical treatment.
[39-3903, added 2003, ch. 189, sec. 2, p. 513.]
A person subject to this chapter or any interested person may file a petition in the district court in which the person subject to this chapter resides, alleging that said person meets the requirements for sterilization.
[39-3904, added 2003, ch. 189, sec. 2, p. 513.]
Persons subject to this chapter shall have counsel at all stages of the proceedings provided for in this chapter. Unless independently provided for by the persons subject to this chapter, counsel shall be appointed by the district court which shall also conduct an investigation to determine whether or not the person has funds in trust or otherwise to pay reasonable compensation to counsel. If the investigation discloses that the person is without such funds, the court shall order that counsel be paid reasonable compensation at public expense.
[39-3905, added 2003, ch. 189, sec. 2, p. 513.]
The court shall order that the petition be served personally upon the person subject to this chapter, his or her guardian or parent, his or her counsel, his or her guardian ad litem, and such other persons as the court may designate.
[39-3906, added 2003, ch. 189, sec. 2, p. 513.]
The court shall refer the petition to the evaluation committee for review and recommendation.
[39-3907, added 2003, ch. 189, sec. 2, p. 513.]
(1) The court shall set a hearing on the petition upon receipt of the recommendation of the evaluation committee and shall order that copies of the evaluation committee’s reports and notice of the time and place of the hearing be provided the person subject to this chapter, their guardian, their counsel, their guardian ad litem, and such other persons as the court may designate.
(2) The person subject to this chapter is entitled to be present at the hearing, and to see and hear all evidence bearing on the petition. The person subject to this chapter may be absent from the hearing if he or she is unwilling or is unable to participate.
(3) A hearing shall be held in district court with the right of cross-examination preserved at all stages. The members of the evaluation committee may be subpoenaed and questioned by any party to the proceedings. Any party to the proceedings may submit additional evidence.
(4) The court must enter findings of fact and conclusions of law as well as an order either directing sterilization of the person subject to this chapter or dismissing the petition for insufficiency of evidence or any other reason.
[39-3908, added 2003, ch. 189, sec. 2, p. 513.]
(1) The court may grant an order authorizing a specific sterilization procedure if the court finds by clear and convincing evidence that the person subject to this chapter is functionally capable of giving and withholding informed assent to the proposed sterilization and has given informed assent to the proposed sterilization, or that the person is functionally incapable of giving or withholding informed assent but sterilization is in the best interest of the person.
(2) The person subject to this chapter assents to sterilization if the person manifests an uncoerced willingness to undergo sterilization after being fully informed of the nature, risks, consequences and alternatives to the procedure. A person who lacks the capacity to manifest an uncoerced willingness or unwillingness to sterilization cannot assent to the procedure. To determine whether the person is capable of giving informed assent, the court shall consider whether the person understands and appreciates:
(a) The causal relationship between sexual intercourse and pregnancy or parenthood;
(b) The causal relationship between sterilization and the impossibility of pregnancy or parenthood;
(c) The nature of the sterilization operation including the pain, discomfort and risks of the procedure;
(d) The probable permanency and irreversibility of the sterilization procedure;
(e) All medically approved alternatives to sterilization;
(f) The consequences of initiation of pregnancy or becoming pregnant, mothering or fathering a child, and becoming a parent; and
(g) The power to change one’s mind about being sterilized at any time before the procedure is performed.
To assure the adequacy of the person’s informed assent, evidence shall be presented showing that the person received appropriate counseling from the physician who will perform the sterilization and at least one (1) other qualified independent counselor such as a social worker with a master’s degree, a clinical nurse specialist, or a licensed psychologist or psychiatrist. The counseling shall cover the benefits or advantages to sterilization and conversely the losses and disadvantages of sterilization including the feelings, values and lifestyle changes attendant with sterilization.
Witnesses who attest in court as to the soundness of informed assent shall comment on and assess the person’s understanding of each issue and shall comment on and assess the degree to which the person expresses an uncoerced willingness to accept each risk and consequence. Any reservations or resistance expressed or otherwise evidenced by the person shall be disclosed to the court.
(3) The persons subject to this chapter may be sterilized if the court finds by clear and convincing evidence that:
(a) The person is functionally incapable of giving or withholding informed assent and that the incapacity is not likely to change in the foreseeable future; and
(b) Sterilization is in the best interest of the person.
(4) To determine whether sterilization is in the best interest of the person subject to this chapter the court shall find by clear and convincing evidence that:
(a) The person is likely to be fertile. Fertility may be conclusively presumed if the medical evidence indicates normal development of the sexual organs, and the evidence does not otherwise raise doubts about fertility;
(b) There is a likelihood that the person will engage in sexual intercourse;
(c) The nature and extent of the person’s disability, as determined by empirical evidence and not solely the basis of standardized tests, renders him or her permanently incapable of caring for a child, even with reasonable assistance;
(d) The person will suffer severe physical or psychological harm if he or she were to parent a child, which may include any harm occurring from the removal of the child from the person’s custody;
(e) The person will not suffer severe physical or psychological harm from the sterilization;
(f) Less restrictive alternatives to sterilization, both at the present time and under foreseeable future circumstances, are not feasible or medically advisable;
(g) The proposed method of sterilization entails the least invasion of the body of the individual; and
(h) Scientific or medical advances will not occur within the foreseeable future which will materially make possible the improvement of the person’s condition with respect to sterilization.
[39-3909, added 2003, ch. 189, sec. 2, p. 514.]
A sterilization procedure authorized under this chapter shall not include hysterectomy or castration unless the court finds by clear and convincing evidence that hysterectomy or castration is medically necessary treatment, independent of the need for sterilization. No sterilization procedure authorized under this chapter shall be performed by any person other than a physician.
[39-3910, added 2003, ch. 189, sec. 2, p. 515.]
The order approving, denying or otherwise disposing of the petition for sterilization shall be appealable to the supreme court of Idaho. Such appeal may be perfected in the same manner as in civil actions. In the case of appeals from any order directing sterilization, the order of the district court shall be stayed pending disposition of such appeal and no sterilization shall take place until after the expiration of the time allowed by law for perfecting appeal.
[39-3911, added 2003, ch. 189, sec. 2, p. 515.]
(1) There is established the evaluation committee composed of persons contracted by or employees of the department of health and welfare.
(2) The committee shall review and make recommendations to the court on all petitions for sterilization. In making its recommendation to the court, the committee shall investigate and determine whether the person subject to this chapter is capable of giving informed assent and, if not, whether sterilization is in the best interest of the person. The committee shall consider the criteria set forth in section 39-3909, Idaho Code, in determining whether the person is capable of providing informed assent or whether sterilization is in the best interest of the person.
(3) The committee or designated member of the committee may interview or request a written statement from the person subject to this chapter, physicians, relatives, concerned individuals, and others who, in the committee member’s judgment, possess relevant information concerning the petition for sterilization. Conversely, the person subject to this chapter, the guardian ad litem, the petitioner, or any other person may request to speak to the committee or submit a written statement to the committee concerning the proposed sterilization.
(4) The committee shall submit a report in writing to the court containing its recommendations together with supporting documents. Committee members who do not concur with the majority recommendation shall submit a report in writing to the court detailing the basis for their dissent.
[39-3912, added 2003, ch. 189, sec. 2, p. 515.]
(1) Records developed by the evaluation committee and records contained in court files of judicial proceedings brought under this chapter shall be governed by the provisions of chapter 1, title 74, Idaho Code.
(2) The administrative director of the courts shall compile statistics for each calendar year, accessible to the public, including:
(a) The total number of petitions filed pursuant to this chapter;
(b) The number of petitions in which the evaluation committee recommended a procedure and the number of petitions in which the evaluation committee recommended against a procedure;
(c) The number of petitions granted by the court;
(d) For categories described in paragraphs (b) and (c) of this subsection, the number of appeals taken from the court’s order in each category; and
(e) For each of the categories set out in paragraph (d) of this subsection, the number of cases for which the district court’s order was affirmed and the number of cases for which the district court’s order was reversed.
[39-3913, added 2003, ch. 189, sec. 2, p. 516; am. 2003, ch. 300, sec. 1, p. 826; am. 2015, ch. 141, sec. 91, p. 445.]
When an operation shall have been performed in compliance with the provisions of this law, no physician duly licensed to, without restriction, practice medicine and surgery in this state or other person legally participating in the execution of the provisions of this chapter shall be liable civilly or to criminal prosecution on account of such operation or participation therein, except in the case of negligence in the performance of said procedures. Nothing in this chapter shall be construed so as to prevent sterilization of persons subject to this chapter as part of emergency medical treatment or the voluntary sterilization of a person competent to give his or her consent.
[39-3914, added 2003, ch. 189, sec. 2, p. 516.]
No hospital shall be required to furnish facilities or admit any patient for sterilization procedures if, upon determination by its governing board, it elects not to do so. No physician, nurse, technician or other employee of any hospital, physician or governmental agency shall be required to assist or participate in any sterilization procedure if he or she, for religious or moral reasons, objects thereto. Any such objection shall be made in writing and shall state the reason for such objection. No refusal to accept a patient for sterilization procedures shall form the basis for any claim for damages or for recriminatory action against the declining person or hospital.
[39-3915, added 2003, ch. 189, sec. 2, p. 516.]
The administrator of the division of occupational and professional licenses shall enforce the provisions of this chapter. It shall be the responsibility and duty of the factory built structures advisory board to assist the administrator in the administration and enforcement of the provisions of this chapter as hereinafter provided.
[39-4001, added 1971, ch. 70, sec. 2, p. 157; am. 1974, ch. 39, sec. 50, p. 1023; am. 1995, ch. 267, sec. 1, p. 857; am. 1996, ch. 421, sec. 24, p. 1422; am. 2006, ch. 79, sec. 2, p. 238; am. 2016, ch. 342, sec. 1, p. 968; am. 2023, ch. 15, sec. 6, p. 77.]
It is unlawful for any person, firm, partnership, association or corporation to sell or offer for sale within this state any manufactured home that is not manufactured in compliance with this chapter after March 8, 1971.
[39-4002, added 1971, ch. 70, sec. 3, p. 157; am. 1988, ch. 264, sec. 3, p. 525; am. 1995, ch. 267, sec. 2, p. 857; am. 2006, ch. 79, sec. 3, p. 238.]
The administrator shall by rule define the term "manufactured home" to be consistent with 24 CFR 3280 (housing and urban development manufactured home construction and safety standards) and may seek assistance from the factory built structures advisory board in the enforcement and administration of those standards.
[39-4003, added 1971, ch. 70, sec. 4, p. 157; am. 1972, ch. 168, sec. 1, p. 417; am. 1974, ch. 39, sec. 51, p. 1023; am. 1988, ch. 264, sec. 4, p. 526; am. 1995, ch. 267, sec. 3, p. 857; am. 2006, ch. 79, sec. 4, p. 238; am. 2016, ch. 342, sec. 2, p. 968.]
In order to carry out the purposes of this chapter, the administrator or his authorized representative shall, during regular working hours and at other reasonable times, have the right of entry to conduct the inspections required by this chapter; the right of entry to make inspections to carry out the duties and responsibilities as an in-plant inspection agency (IPIA) by the authority granted by the U.S. department of housing and urban development pursuant to 24 CFR 3282.352 and 362; and the right of entry to make inspections to carry out the duties and responsibilities as a state administrative agency (SAA) by the authority granted by the U.S. department of housing and urban development pursuant to 24 CFR 3282.305.
[39-4003A, added 1978, ch. 118, sec. 1, p. 269; am. 1980, ch. 108, sec. 1, p. 245; am. 2006, ch. 79, sec. 5, p. 238.]
(1) The administrator is authorized to establish a schedule of fees to pay the cost of inspection and enforcement of this chapter without recourse to tax subsidies. Such fee schedule shall be consistent with the actual cost of maintaining the program.
(2) The administrator shall be authorized to participate in the fee distribution system of the U.S. department of housing and urban development set out in 24 CFR 3282. The administrator shall establish a monitoring inspection fee in an amount established by the secretary of the U.S. department of housing and urban development. This monitoring inspection fee shall be an amount paid by each manufactured home manufacturer in the state for each manufactured home produced by the manufacturer in the state. This fee shall be in addition to any in-plant inspection agency (IPIA) fees assessed by the administrator, which shall be consistent with the actual cost of providing such inspections.
(3) The monitoring inspection fee shall be paid by the manufacturer to the secretary of the U.S. department of housing and urban development who shall distribute the fees collected from all manufactured home manufacturers among the approved and conditionally-approved states based on the number of new manufactured homes whose first location after leaving the manufacturing plant is on the premises of a distributor, dealer, or purchaser in that state.
[39-4004, added 1971, ch. 70, sec. 5, p. 157; am. 1974, ch. 39, sec. 52, p. 1023; am. 1980, ch. 108, sec. 2, p. 246; am. 1988, ch. 264, sec. 5, p. 526; am. 2006, ch. 79, sec. 6, p. 239.]
Any person, firm, partnership, association or corporation constructing, in whole or in part, a manufactured home in this state, or constructing outside of this state but selling at retail in this state, shall issue a warranty in writing to the buyer containing the following terms:
(1) That the manufactured home is free from any substantial defects in materials or workmanship in the structure, plumbing, heating and electrical systems and all appliances and other equipment installed or included therein or thereon by the manufacturer.
(2) That the manufacturer shall take appropriate corrective action at the site of the manufactured home in instances of substantial defects in materials or workmanship which become evident within one (1) year from the date of delivery of the manufactured home to the buyer, provided the buyer gives written notice of such defects to the manufacturer or dealer at their business address not later than one (1) year and ten (10) days after date of delivery.
The warranty provided herein shall be in addition to and not in derogation of any other right or privilege which the buyer may have as otherwise provided by law or instrument. The manufacturer shall not require the buyer to waive his rights under this section and any waiver shall be deemed contrary to public policy and shall be void and unenforceable. Any action instituted by a buyer for failure of the manufacturer to comply with the provisions of this act shall be considered as an action within the provisions of section 12-120, Idaho Code, providing for recovery of attorney fees.
[I.C., sec. 39-4010, as added by S.L. 1972, ch. 173, sec. 1, p. 433; am. 1988, ch. 264, sec. 11, p. 528; am. 1995, ch. 267, sec. 8, p. 858.]
(1) Any person who violates any of the following provisions relating to manufactured homes, or any rule promulgated by the administrator of the division of occupational and professional licenses to administer the provisions of this chapter, shall be liable for a civil penalty of not to exceed one thousand dollars ($1,000) for each such violation. Each such violation shall constitute a separate violation with respect to each manufactured home, except that the maximum penalty shall not exceed one million dollars ($1,000,000) for any related series of violations occurring within one (1) year from the date of the first violation. Violations include:
(a) Manufacturing for sale, leasing, selling, offering for sale, or introducing or delivering or importing, in the state of Idaho, any manufactured home that is manufactured on or after the effective date of any applicable federal manufactured home construction and safety standard which does not comply with such standard;
(b) Failure or refusal to permit entry or inspection as required by section 39-4003A, Idaho Code;
(c) Failure of manufacturer to give notification of any defects in any manufactured home, in the manner required by 42 U.S.C. 5414;
(d) Failure to furnish to distributor or dealer at the time of delivery of each manufactured home produced by such manufacturer, certification that said manufactured home conforms to all applicable federal construction and safety standards or issuance of a certification to the effect that a manufactured home conforms to all applicable federal manufactured home construction and safety standards, if such person in the exercise of due care has reason to know that such certification is false or misleading in a material respect;
(e) Failure of any manufacturer, distributor or dealer of manufactured homes to establish and maintain such records, make such reports, and provide such information as the administrator of the division of occupational and professional licenses may reasonably require to enable him to determine whether such manufacturer, distributor or dealer has acted or is acting in compliance with this chapter and with federal manufactured home construction and safety standards; or failure to permit, upon request of a person duly designated by the administrator, inspection of appropriate books, papers, records and documents relative to determining whether such manufacturer, distributor or dealer has acted or is acting in compliance with federal manufactured home construction or safety standards.
(2) Any person or officer, director or agent of a corporation who willfully or knowingly violates the provisions enumerated in subsection (1)(a) through (e) of this section, in any manner which threatens the health or safety of any purchaser shall be fined not more than one thousand dollars ($1,000) or imprisoned for not more than one (1) year, or both.
(3) Violations of this chapter may be tried in any court of competent jurisdiction within the state of Idaho.
[39-4011, added 1978, ch. 118, sec. 2, p. 269; am. 1980, ch. 108, sec. 3, p. 246; am. 1988, ch. 264, sec. 12, p. 529; am. 1996, ch. 421, sec. 25, p. 1422; am. 2016, ch. 342, sec. 3, p. 969; am. 2023, ch. 15, sec. 7, p. 77.]
(1) Uniformity of building codes and uniformity in procedures for enforcing building safety codes throughout the state are matters of statewide concern and interest, in that uniformity would enhance elimination of obsolete, restricting, conflicting, duplicating and unnecessary regulations and requirements which could unnecessarily increase construction costs or retard the use of new materials and methods of installation or provide unwarranted preferential treatment to types or classes of materials or products or methods of construction.
(2) It is the intent of the legislature to:
(a) Promote the health, safety and welfare of the occupants or users of buildings and structures subject to this chapter;
(b) Require minimum performance standards and requirements for construction and construction materials, consistent with accepted standards of engineering, fire safety, life safety and accessibility for those with disabilities;
(c) Establish, for jurisdictions enforcing building codes pursuant to this chapter, minimum standards and requirements in terms of performance, energy efficiency, effect upon construction costs and consistency with nationally accepted standards;
(d) Permit the use of modern technical methods, devices and improvements; and
(e) Clarify and establish roles of the various jurisdictions subject to this chapter.
[39-4101, added 1975, ch. 180, sec. 2, p. 486; am. 1983, ch. 153, sec. 1, p. 407; am. 2000, ch. 465, sec. 1, p. 1439; am. 2002, ch. 345, sec. 3, p. 965.]
This chapter shall be known as "The Idaho Building Code Act."
[39-4102, added 1975, ch. 180, sec. 2, p. 486; am. 2002, ch. 345, sec. 4, p. 965.]
(1) This chapter authorizes the state division of occupational and professional licenses and local governments to adopt and enforce building codes pursuant to the provisions of this chapter.
(2) All buildings and other facilities owned by any state government agency or entity, including those owned, constructed or financed by the Idaho state building authority, shall conform to the codes adopted in this chapter, chapter 2, title 41, Idaho Code, chapter 10, title 54, Idaho Code, chapter 26, title 54, Idaho Code, and chapter 50, title 54, Idaho Code, and shall be subject to the jurisdiction of the state division of occupational and professional licenses and the state fire marshal for purposes of all plan reviews, permitting and inspections. In performing such plan reviews, permitting and inspections, the division of occupational and professional licenses and the state fire marshal shall route building plans to affected local government agencies, and shall take into consideration local government comments and ordinances and shall promptly notify the local jurisdictions of actions taken and the reasons therefor, and transmit to the local jurisdictions copies of final building plans.
(3) All buildings and other facilities owned by anyone other than state government agencies or entities which are constructed or renovated specifically for use or occupancy by any state agency or entity shall conform to all state adopted codes and standards. Nothing in this subsection shall limit the authority of local governments to issue permits, review plans and provide a full range of building code enforcement activities for such buildings.
(4) The following are exempt from the provisions of this chapter:
(a) Equipment used primarily for industrial chemical process purposes and for mineral extraction and mineral processing purposes. This exemption shall not include the erection and fabrication of new boilers, pressure vessels and other equipment as required to condition the building for personnel comfort and safety. Equipment in this regard shall mean and shall be limited to facilities or installations for heating, ventilating, air conditioning, refrigerating equipment, elevators, dumbwaiters, escalators, and boilers and pressure vessels associated with building heating systems.
(b) Modular buildings as defined in section 39-4301, Idaho Code, that are constructed in the state of Idaho for installation on building sites outside the state; provided however, that no modular building shall be installed on a building site in the state of Idaho until it has been approved and bears the insignia of approval of the division as being in compliance with the requirements set forth in chapter 43, title 39, Idaho Code.
[39-4103, added 1975, ch. 180, sec. 2, p. 486; am. 1988, ch. 264, sec. 13, p. 530; am. 2002, ch. 345, sec. 5, p. 966; am. 2003, ch. 256, sec. 1, p. 663; am. 2004, ch. 250, sec. 1, p. 716; am. 2004, ch. 272, sec. 1, p. 758; am. 2007, ch. 252, sec. 1, p. 737; am. 2023, ch. 15, sec. 8, p. 78.]
The administrator of the division of occupational and professional licenses shall enforce the provisions of this chapter that apply to the state. Local governments that adopt building codes shall enforce all of the provisions of this chapter that govern application by local governments.
[39-4104, added 1975, ch. 180, sec. 2, p. 486; am. 1996, ch. 421, sec. 26, p. 1423; am. 2002, ch. 345, sec. 6, p. 966; am. 2004, ch. 272, sec. 2, p. 759; am. 2023, ch. 15, sec. 9, p. 79.]
As used in this chapter, the terms defined in this section shall have the following meanings, unless the context clearly indicates another meaning. Where terms are not defined in this chapter and are defined in the currently adopted international building code published by the international code council, such terms shall have the meanings ascribed to them in that code:
(1) "Administrator" means the administrator of the division of occupational and professional licenses for the state of Idaho.
(2) "Board" means the Idaho building code board, herein created.
(3) "Building inspector" means a person who inspects buildings or structures for compliance with the provisions of this chapter.
(4) "Construction" means the erection, fabrication, reconstruction, demolition, alteration, conversion, or repair of a building or the installation of equipment therein normally a part of the structure.
(5) "Division" means the state of Idaho division of occupational and professional licenses.
(6) "International fire code" means the international fire code as published by the international code council.
(7) "Local government" means any city or county of this state.
(8) "Manufactured home" means a structure, constructed after June 15, 1976, in accordance with the HUD manufactured home construction and safety standards, and is transportable in one (1) or more sections, that, in the traveling mode, is eight (8) body feet or more in width or is forty (40) body feet or more in length, or when erected on site, is three hundred twenty (320) or more square feet, and that is built on a permanent chassis and designed to be used as a dwelling with or without a permanent foundation when connected to the required utilities, and includes the plumbing, heating, air conditioning, and electrical systems contained therein, except that such term shall include any structure that meets all the requirements of this subsection except the size requirements and with respect to which the manufacturer voluntarily files a certification required by the secretary of housing and urban development and complies with the standards established under 42 U.S.C. 5401 et seq. Manufactured homes include multidwelling unit manufactured homes that are constructed in accordance with the HUD manufactured home construction and safety standards.
(9) "Mobile home" means a factory-assembled structure or structures generally constructed prior to June 15, 1976, and equipped with the necessary service connections and made so as to be readily movable as a unit or units on their own running gear and designed to be used as a dwelling unit or units with or without a permanent foundation.
(10) "Telecommunications facilities" means all wires, cables, equipment, apparatus or other installations necessary to furnish service, by which there is accomplished or may be accomplished the sending or receiving of information, data, message writing signs, signals, pictures, and sounds of all kinds, by aid of such wires, cables, equipment, apparatus or other installations, but shall not include the habitable structure in which such telecommunications facilities are housed.
[39-4105, added 1975, ch. 180, sec. 2, p. 486; am. 1976, ch. 129, sec. 1, p. 488; am. 1983, ch. 153, sec. 2, p. 408; am. 1986, ch. 30, sec. 1, p. 85; am. 1992, ch. 197, sec. 1, p. 609; am. 1995, ch. 267, sec. 9, p. 859; am. 1996, ch. 421, sec. 27, p. 1423; am. 2002, ch. 345, sec. 7, p. 966; am. 2004, ch. 250, sec. 2, p. 717; am. 2007, ch. 252, sec. 2, p. 738; am. 2023, ch. 15, sec. 10, p. 79; am. 2026, ch. 171, sec. 1, p. 799.]
(1) The Idaho building code board is established within the division of occupational and professional licenses as an appeals, code adoption, and rulemaking board, to be appointed by the governor, and shall consist of ten (10) members: one (1) member of the general public; one (1) local fire official; one (1) licensed engineer; one (1) licensed architect; two (2) local building officials, one (1) from a county and one (1) from a city; two (2) building contractors, one (1) residential contractor who is an active member of the Idaho building contractors association with construction knowledge based primarily on a work history of buildings regulated by the International Residential Code, and one (1) commercial contractor who is an active member of either the associated builders and contractors or the associated general contractors of America with construction knowledge based primarily on a work history of buildings regulated by the International Building Code; one (1) representative of the modular building industry; and one (1) individual with a disability from an organization that represents people with all types of disabilities. Board members shall be appointed for terms of four (4) years and until their successor has been appointed. Three (3) consecutive failures by a member to attend meetings of the board without reasonable cause shall constitute cause for removal of the member from the board by the governor. Whenever a vacancy occurs, the governor shall appoint a qualified person to fill the vacancy for the unexpired portion of the term.
(2) The members of the board shall, at their first regular meeting following the effective date of this chapter and every two (2) years thereafter, elect, by majority vote of the members of the board, a chairman who shall preside at meetings of the board. A majority of the currently appointed members of the board shall constitute a quorum.
(3) Each member of the board not otherwise compensated by public moneys shall be compensated as provided by section 59-509(n), Idaho Code, for each day spent in attendance at meetings of the board.
(4) The board shall meet for regular business sessions at the call of the administrator, chairman, or at the request of four (4) members of the board, provided that the board shall meet at least biannually.
[39-4106, added 1975, ch. 180, sec. 2, p. 486; am. 1980, ch. 247, sec. 39, p. 611; am. 1983, ch. 153, sec. 3, p. 410; am. 1986, ch. 304, sec. 1, p. 755; am. 1988, ch. 264, sec. 14, p. 531; am. 1995, ch. 267, sec. 10, p. 861; am. 2000, ch. 465, sec. 2, p. 1440; am. 2001, ch. 151, sec. 1, p. 547; am. 2002, ch. 345, sec. 8, p. 969; am. 2009, ch. 173, sec. 1, p. 551; am. 2012, ch. 36, sec. 1, p. 107; am. 2021, ch. 222, sec. 2, p. 622.]
(1) The board shall continually study the operation of adopted codes, standards and rules relating to the construction of buildings or facilities under the jurisdiction of the division to ascertain their effect upon the public safety and shall support an ongoing effort to promote the uniform adoption, application and interpretation of safety, accessibility and building codes statewide. The board shall have the authority to adopt and enforce the codes specified in section 39-4109, Idaho Code, or later editions of such codes, and to promulgate rules in accordance with chapter 52, title 67, Idaho Code, to implement the provisions of this chapter.
(2) The board shall function as a board of appeals for the division as prescribed in the adopted building code. The board shall have no authority to waive any requirements of the codes enumerated in this chapter or in rules promulgated pursuant to this chapter. Provided further:
(a) The decisions of the board shall be final, and the board shall render all decisions and findings in writing to the appellant and the administrator within ten (10) working days of the conclusion of a hearing; and
(b) For each appeal brought before the board, the chairman shall appoint not less than three (3) members of the board to hear the appeal and render a decision and finding in the name of the board.
(3) The board shall utilize experts, consultants, and technical advisors for assistance and recommendations relative to codes, standards, and appeals.
(4) The administrator may make building code inspections for another state or local jurisdiction upon request by an appropriate building official. Such inspections shall be made in accordance with the applicable building codes of the requesting jurisdiction. Fees charged for such inspection services shall be as provided in rules promulgated by the board pursuant to chapter 52, title 67, Idaho Code.
(5) Notwithstanding the exemptions provided in subsection (4)(b) of section 39-4103, Idaho Code, the administrator may make inspections of modular buildings constructed in Idaho upon written request from the manufacturer.
(a) Such inspections shall be made in accordance with the codes adopted in this chapter.
(b) Inspection fees shall be as provided in section 39-4303, Idaho Code.
(c) The administrator of the division of occupational and professional licenses may issue an insignia of approval if the buildings are in compliance with the requirements set forth in chapter 43, title 39, Idaho Code.
[39-4107, added 1975, ch. 180, sec. 2, p. 486; am. 1983, ch. 153, sec. 4, p. 411; am. 2000, ch. 465, sec. 3, p. 1441; am. 2002, ch. 345, sec. 9, p. 969; am. 2004, ch. 250, sec. 3, p. 718; am. 2007, ch. 252, sec. 3, p. 739; am. 2023, ch. 15, sec. 11, p. 80.]
After July 1, 2002, state and local government building inspectors, including state safety advisors, shall hold a valid certification as a building inspector or building plans examiner issued by the International Code Council (ICC), except that a building inspector with a valid ICC residential building inspector certification may only inspect structures regulated by the International Residential Code (IRC). A building inspector with a valid ICC residential building inspector certification working under the supervision of an ICC-certified building inspector or building plans examiner may inspect all occupancy classifications for a period not to exceed three (3) years. An inspector may be hired without a valid ICC residential building inspector certification but must obtain such certification within a period of up to six (6) months after hire and must be under the supervision of an ICC-certified building inspector or building plans examiner until such certification is obtained. Until such certification is obtained, no official adverse action may be undertaken without review and approval of an ICC-certified building inspector or building plans examiner.
[39-4108, added 2002, ch. 345, sec. 11, p. 970; am. 2019, ch. 54, sec. 1, p. 143.]
(1) The following codes are hereby adopted for the state of Idaho division of occupational and professional licenses and shall only be applied by local governments as prescribed by section 39-4116, Idaho Code:
(a) The 2006 International Building Code shall be in effect, until such time as a subsequent version is adopted by the Idaho building code board, at which time the subsequent versions of the International Building Code as adopted and amended by the Idaho building code board through the negotiated rulemaking process as established in section 67-5221, Idaho Code, and as further provided in subsection (5) of this section and in accordance with subsections (2) and (3) of this section shall be in effect:
(i) Including appendices thereto pertaining to building accessibility;
(ii) Excluding the incorporated electrical codes, mechanical code, fuel gas code, plumbing codes, fire codes or property maintenance codes other than specifically referenced subjects or sections of the International Fire Code; and
(iii) Including the incorporated Idaho residential code, parts I, II, III and IX; Idaho energy conservation code; and rules promulgated by the board to provide equivalency with the provisions of the Americans with disabilities act accessibility guidelines and the fair housing act accessibility guidelines shall be included.
(b) The version of the International Residential Code adopted by the Idaho building code board, together with the amendments, revisions or modifications adopted by the Idaho building code board through the negotiated rulemaking process, except for parts IV, V, VI, VII and VIII, as they pertain to energy conservation, mechanical, fuel gas, plumbing and electrical requirements, shall collectively constitute and be named the Idaho residential code. The Idaho residential code shall be in effect until such time as a subsequent version is adopted by the Idaho building code board, at which time the subsequent version of the Idaho residential code, as adopted and amended by the Idaho building code board through the negotiated rulemaking process provided in this section, shall be in effect. Any amendments, revisions or modifications made to the Idaho residential code by the board shall be made by administrative rules promulgated by the board;
(c) The 2018 Idaho energy conservation code, as amended, revised, or modified by the Idaho building code board and approved by the legislature pursuant to section 39-9701, Idaho Code; and
(d) The 2006 International Existing Building Code as published by the International Code Council shall be in effect until such time as a subsequent version is adopted by the Idaho building code board, at which time the subsequent versions of the International Existing Building Code, as adopted and amended by the Idaho building code board through the negotiated rulemaking process provided in this section, shall be in effect.
(2) No amendments to the accessibility guidelines shall be made by the Idaho building code board that provide for lower standards of accessibility than those published by the International Code Council.
(3) No amendments to the Idaho residential building code shall be made by the Idaho building code board that provide for standards that are more restrictive than those published by the International Code Council.
(4) Any edition of the building codes adopted by the board will take effect on January 1 of the year following its adoption.
(5) In addition to the negotiated rulemaking process set forth in section 67-5221, Idaho Code, the board shall conduct a minimum of two (2) public hearings, not less than sixty (60) days apart. Express written notice of such public hearings shall be given by the board to each of the following entities not less than five (5) days prior to such hearing: associated general contractors of America, associated builders and contractors, association of Idaho cities, Idaho association of building officials, Idaho association of counties, Idaho association of REALTORS®, Idaho building contractors association, American institute of architects Idaho chapter, Idaho fire chiefs association, Idaho society of professional engineers, Idaho state independent living council, southwest Idaho building trades, Idaho building trades, and any other entity that, through electronic or written communication received by the administrator not less than twenty (20) days prior to such scheduled meeting, requests written notification of such public hearings.
[39-4109, added 2002, ch. 345, sec. 13, p. 971; am. 2004, ch. 272, sec. 3, p. 759; am. 2004, ch. 359, sec. 2, p. 1074; am. 2007, ch. 184, sec. 1, p. 532; am. 2009, ch. 173, sec. 2, p. 552; am. 2009, ch. 279, sec. 1, p. 841; am. 2010, ch. 79, sec. 14, p. 143; am. 2014, ch. 248, sec. 1, p. 623; am. 2018, ch. 338, sec. 1, p. 769; am. 2022, ch. 302, sec. 2, p. 957.]
By January 1, 2022, the Idaho building code board shall amend the current Idaho building code to include the provisions of the 2021 International Building Code relating to mass timber construction. This must include permitting the three (3) new mass timber construction types IV-A, IV-B, and IV-C, along with the corresponding maximum heights and fire safety features.
[39-4109A, added 2021, ch. 244, sec. 1, p. 761.]
(1) Notwithstanding any other provision of law to the contrary, neither the state of Idaho nor any local government in Idaho shall adopt any requirement that an electric vehicle (EV) charging station, a designated EV parking space, an upgraded electrical conduit, or other infrastructure for the purpose of EV charging station installation be included in a building plan.
(2) This section supersedes any local laws, ordinances, orders, rules, or regulations enacted by a political subdivision or municipality that requires an EV charging station, a designated EV parking space, an upgraded electrical conduit, or other infrastructure for the purpose of EV charging station installation to be included in a building plan.
[39-4109B, added 2025, ch. 33, sec. 1, p. 170.]
(1) Notwithstanding a local government’s adoption of the International Building Code or any other provision of law to the contrary, local governments may allow residential group R-2 apartment buildings to be served by one (1) single stairway under the following conditions:
(a) The building has no more than six (6) stories above grade plane without an occupiable roof, or has no more than five (5) stories above grade plane with an occupiable roof and no more than one (1) basement level;
(b) The building has no more than four (4) dwelling units on any floor with a maximum gross floor area not exceeding six thousand (6,000) square feet for each story;
(c) The building is of type I, II, III, IV, or V construction;
(d) An automatic sprinkler system shall be provided throughout the building in accordance with section 903.3.1.1 of the national fire protection association’s standard, NFPA 13;
(e) An interior stairway is provided and doors in the stairway swing into the interior stairway regardless of the occupant load served, provided that doors from the interior exit stairway to the building exterior are permitted to swing in the direction of exit travel;
(f) Openings into the interior exit stairway shall be ninety (90) minute fire protection rated with self-closers and no hold-open devices, unless they are interconnected with the fire alarm system to release upon activation of the occupant notification system and openings are limited to those required for exit access into the enclosure from normally occupied spaces, openings required for egress from the stairway, and openings to the exterior. Elevators shall not open into the interior exit stairway;
(g) The interior exit stairway and elevator shaft shall have a fire resistance rating of not less than two (2) hours regardless of the number of stories connected;
(h) The width of the exit stairway shall not be less than forty-eight (48) inches;
(i) A minimum one (1) hour fire resistance rated corridor separates each dwelling unit entry and exit door from the door to an interior exit stairway, including any related exit passageway, on each floor;
(j) Dwelling unit doors shall not open directly into an interior exit stairway;
(k) No more than twenty (20) feet of travel distance shall exist between the exit stairway and the entry and exit door of any dwelling unit;
(l) Exit access travel distance shall not exceed one hundred twenty-five (125) feet;
(m) An exit serving the group R-2 occupancy as defined in the International Building Code shall not discharge through any other occupancy, including an accessory parking garage;
(n) An exit shall not terminate in an egress court where the court depth exceeds the court width unless it is possible to exit in either direction to the public way;
(o) Exterior wall openings shall be three-fourths (3/4) hour fire protection rated when located within ten (10) feet of the exit discharge door or other unprotected exterior wall openings into the interior exit stairway;
(p) Emergency escape and rescue openings shall comply with the requirements of the International Building Code on all floors served by the single exit;
(q) No electrical receptacles shall be installed in an interior exit stairway. Any electrical receptacles in a common corridor or lobby shall have lockable outlet covers, accessible by maintenance personnel;
(r) An automatic smoke and fire detection system that activates the occupant notification system in accordance with the requirements of the International Building Code shall be installed in the building;
(s) An approved sign mounted adjacent to the fire alarm control panel shall be provided stating "THIS BUILDING CONTAINS ONLY ONE STAIR";
(t) There shall be no more than two (2) buildings, or two (2) areas in a single building, each provided with a single exit, per lot. Where there are two (2) buildings on the same lot, exception 1 of section 705.3 of the International Building Code shall not be allowed; and
(u) The building shall meet all other applicable provisions of the adopted local building codes.
(2) A manual fire alarm system and automatic smoke detection system that activates the occupant notification system in accordance with the requirements of the International Building Code shall be installed in single stairway apartment buildings provided for in this section in the following locations:
(a) Common spaces outside of dwelling units;
(b) Laundry rooms, mechanical equipment rooms, and storage rooms;
(c) Interior corridors serving dwelling units; and
(d) Interior corridors, interior exit stairways, and exit passageways.
[39-4109C, added 2026, ch. 320, sec. 1, p. 1282.]
(1) It shall be unlawful for any person to do, or cause or permit to be done, whether acting as principal, agent or employee, any construction, improvement, extension or alteration of any building, residence or structure, coming under the purview of the division, in the state of Idaho without first procuring a permit from the division authorizing such work to be done.
(2) It shall be unlawful for any person to do, or cause or permit to be done, whether acting as principal, agent or employee, any construction, improvement, extension or alteration of any building, residence or structure in a local government jurisdiction enforcing building codes, without first procuring a permit in accordance with the applicable ordinance or ordinances of the local government.
(3) Subject to building code requirements governing accessibility, no permit shall require that any improvement, extension or alteration of any building, residence or structure include an upgrade to comply with building code requirements in unaffected existing parts of the building, residence or structure where the existing parts complied with the applicable building code in effect when such parts were constructed. This limitation shall not apply where the division or enforcing jurisdiction identifies a specific substantial safety hazard that would be created in the existing building, residence or structure by reason of the new improvement, extension or alteration, provided that any additional permitting requirement shall be limited to correcting the specific substantial safety hazard. The burden shall be upon the division or enforcing jurisdiction to prove the existence of such specific substantial safety hazard. The permit shall identify the specific hazard and the basis for determining that it is a substantial hazard.
[39-4111, added 1975, ch. 180, sec. 2, p. 486; am. 1978, ch. 160, sec. 1, p. 348; am. 1983, ch. 153, sec. 8, p. 414; am. 1988, ch. 264, sec. 16, p. 532; am. 1995, ch. 267, sec. 12, p. 863; am. 2002, ch. 345, sec. 15, p. 971; am. 2011, ch. 228, sec. 1, p. 622.]
Building permit fees shall be as established by rules promulgated by the board. Until such rules are effective, building permit fees based on total value of the construction shall not exceed those given in table 3-A, Uniform Building Code, 1985.
[39-4112, added 1975, ch. 180, sec. 2, p. 486; am. 1983, ch. 153, sec. 9, p. 414; am. 1990, ch. 155, sec. 1, p. 341; am. 2002, ch. 345, sec. 16, p. 972.]
(1) The administrator shall establish a program for plan reviews and permit issuance entirely within the division of occupational and professional licenses. Plan reviews shall be for the provisions of this chapter and chapter 10, title 54, Idaho Code, chapter 26, title 54, Idaho Code, chapter 50, title 54, Idaho Code, and chapter 86, title 39, Idaho Code, pertaining to construction, alteration or repair of buildings or structures within the scope of the division’s jurisdiction pursuant to this chapter. Plans for schools reviewed by the division shall not include a review for compliance with the provisions of chapter 2, title 41, Idaho Code, or for local planning and zoning requirements.
(2) The local government or division performing a building plan review for public works, as defined in section 67-5710B, Idaho Code, shall complete the initial plan review within thirty (30) calendar days of submission of such plan.
(3) Plan review fees shall be established by rules promulgated by the board. Local governments elected by school districts to perform building plan reviews for public schools as provided for in this section shall not charge a fee for such review of building plans in excess of what the division has established by rule for building plan review services for public schools.
(4) Each manufacturer of commercial coaches and modular buildings shall submit the building plans for every model of such structure to the administrator for the purpose of review.
(5)(a) Public school building plans shall be approved by either the local government or the division of occupational and professional licenses, whichever the school district elects. Any city or county that has adopted by ordinance all the applicable codes pursuant to section 39-4109, Idaho Code, and the codes as permitted in chapter 10, title 54, Idaho Code, chapter 26, title 54, Idaho Code, and chapter 50, title 54, Idaho Code, shall be eligible to perform school plan reviews only if the following additional requirements are met: plans examiners performing building and energy code plan reviews shall hold current certification as a commercial building plans examiner by the International Code Council; examiners performing plumbing code plan reviews shall hold current certification as a plumbing inspector by the international association of plumbing and mechanical officials and shall be a licensed Idaho journeyman plumber; examiners performing electrical code plan reviews shall hold current certification as an electrical inspector by the national certification program for construction code inspectors and shall be a licensed Idaho journeyman electrician; and examiners performing mechanical code plan reviews shall hold current certification as a commercial mechanical inspector by the International Code Council.
(b) All plans examiners who perform public school plan reviews shall be either an employee of the division, an employee of the local jurisdiction in which the school is to be constructed, or performing plan reviews under an interagency contract between local jurisdictions, and shall meet the eligibility requirements as provided in paragraph (a) of this subsection.
(c) An eligible local government may contract with the division for review of any portion of the plans for which the local government does not have a properly certified plans examiner. A county may be deemed eligible to perform plan review services only for those types of installations for which they have authority pursuant to this chapter and chapter 50, title 54, Idaho Code, to adopt an enforcement program. Where an eligible county performs the plan review services, the electrical and plumbing code plan reviews shall be performed by the division at the hourly rate as established in rule by the division. Any local government elected to perform plan review services for public schools shall provide the division a copy of all approved plans.
(d) Wherein the proposed work is valued in excess of one hundred thousand dollars ($100,000), a school district may elect to utilize the school plan review services available from an eligible local government building code enforcement jurisdiction or from the division. Wherein the proposed work is valued at one hundred thousand dollars ($100,000) or less, a school district may elect to use a local government without regard to the eligibility requirements in paragraph (a) of this subsection. Election by a school district shall be made by submitting a written certification to both the division and the involved local government.
(e) Public school plan review services provided by either the division or an eligible local jurisdiction pursuant to this section shall include a review of the following disciplines: building (structural and nonstructural), mechanical, fuel gas, plumbing, electrical, accessibility, elevators, boilers, and energy conservation. At a minimum, plan review services shall include:
(i) A technical examination of all drawings and construction documents;
(ii) The approval of such drawings and construction documents by determining whether such are in accord with the codes adopted pursuant to sections 39-4109, 54-1001, 54-2601 and 54-5001, Idaho Code;
(iii) A determination that the drawings and construction documents are in compliance, or noncompliance, with the applicable codes, code interpretation, and the identification of approved modifications or alternative materials, design or methods; and
(iv) The identification of the reviewing official(s), the date upon which plans are approved, and a stamp or some other similar mark on the plans evidencing approval.
(f) If a school district elects to utilize the plan review services of the division, it shall submit to the division of occupational and professional licenses three (3) sets of working drawings and specifications for new public school buildings or facilities and additions or alterations to existing facilities. The division will review the plans submitted to it pursuant to this section for compliance with the current editions of the codes specified in this chapter or within rules promulgated pursuant to this chapter by the board and by section 39-8006, Idaho Code.
(6) Public school building plans shall be approved by either the local government or the division. The jurisdiction performing the public school building plan review shall complete the initial plan review within thirty (30) calendar days of submission of such plan. Once plans are reviewed and approved pursuant to this section, no material change shall be made to such plans without review and approval of such change by the jurisdiction performing the plan review. All school construction or remodeling governed by this chapter shall be inspected by building inspectors certified in accordance with section 39-4108, Idaho Code, or by Idaho-licensed architects or engineers to determine compliance with this chapter and the Idaho uniform school building safety act, chapter 80, title 39, Idaho Code. Nothing in this section shall limit the authority of local governments to issue building permits, perform fire code or other zoning and land use-related plan reviews or provide a full range of building code enforcement activities as they relate to inspections of school buildings or facilities sited within their jurisdiction regardless of the election exercised by the school district pursuant to this section.
[39-4113, added 1975, ch. 180, sec. 2, p. 486; am. 1978, ch. 160, sec. 2, p. 348; am. 1983, ch. 153, sec. 10, p. 414; am. 1988, ch. 264, sec. 17, p. 532; am. 1990, ch. 155, sec. 2, p. 341; am. 1990, ch. 167, sec. 1, p. 364; am. 1995, ch. 267, sec. 13, p. 863; am. 1996, ch. 2, sec. 1, p. 4; am. 2000, ch. 352, sec. 2, p. 1186; am. 2002, ch. 345, sec. 17, p. 972; am. 2009, ch. 219, sec. 1, p. 681; am. 2010, ch. 174, sec. 1, p. 357; am. 2015, ch. 110, sec. 10, p. 277; am. 2023, ch. 15, sec. 12, p. 81; am. 2026, ch. 277, sec. 1, p. 1165.]
The division shall designate a nonclassified employee to serve as the executive director of the board and such other personnel as necessary to effect enforcement of the codes herein enumerated or otherwise prescribed by rules promulgated by the board pursuant to this chapter.
[39-4115, added 1975, ch. 180, sec. 2, p. 486; am. 2002, ch. 345, sec. 19, p. 973; am. 2012, ch. 28, sec. 1, p. 85.]
(1) Local governments enforcing building codes shall do so only in compliance with the provisions of this section. Local governments that have not previously instituted and implemented a code enforcement program prior to the effective date of this act may elect to implement a building code enforcement program by passing an ordinance evidencing the intent to do so. Local governments may contract with a public or private entity to administer their building code enforcement program.
(2) Except as otherwise provided in this chapter, local governments that issue building permits and perform building code enforcement activities shall, by ordinance effective January 1 of the year following the adoption by the Idaho building code board, adopt the following codes as published by the International Code Council together with any amendments or revisions set forth in section 39-4109, Idaho Code, including subsequent versions of the International Building Code as adopted and amended by the Idaho building code board through the negotiated rulemaking process provided in this chapter:
(a) International Building Code, including all rules promulgated by the board to provide equivalency with the provisions of the Americans with disabilities act accessibility guidelines and the federal fair housing act accessibility guidelines;
(b) Idaho residential code, parts I-III and IX; and
(c) 2018 Idaho energy conservation code, pursuant to chapter 97, title 39, Idaho Code.
Local governments are not required by this chapter to adopt the other referenced codes in the International Building Code. Local jurisdictions shall not adopt provisions, chapters, sections or parts of subsequent versions of the International Residential Code or residential provisions of the International Energy Conservation Code, or subsequent versions in their entirety, that have not been adopted by the Idaho building code board except as provided in subsection (4) of this section.
(3) All single family homes and multiple family dwellings up to two (2) units are hereby exempted from the provisions of the International Fire Code, the International Building Code and the Idaho residential code that require such dwellings to have automatic fire sprinkler systems installed. Nothing in this section shall prevent any person from voluntarily installing an automatic fire sprinkler system in any residential dwelling.
(4) Except as provided in this subsection, local governments may amend by ordinance the adopted codes or provisions of referenced codes to reflect local concerns, provided such amendments establish at least an equivalent level of protection to that of the adopted building code. A local jurisdiction shall not have the authority to amend any accessibility provision pursuant to section 39-4109, Idaho Code, except as provided in this subsection.
(a) A local jurisdiction shall not have the authority to amend any accessibility provision pursuant to section 39-4109, Idaho Code.
(b) A local jurisdiction shall not adopt any provision, chapter, section or part of the International Residential Code or residential provisions of the International Energy Conservation Code, or subsequent versions in their entirety, that have not been adopted or that have been expressly rejected or exempted from the adopted version of those codes by the Idaho building code board through the negotiated rulemaking process as provided in section 39-4109, Idaho Code.
(c) Local jurisdictions may amend by ordinance the following provisions of the Idaho residential code to reflect local concerns:
(i) Part I, Administrative;
(ii) Part II, Definitions;
(iii) Part III, Building Planning and Construction, Section R 301, Design Criteria; and
(iv) Part IX, Appendices.
(d) Local jurisdictions may amend the remainder of Part III of the Idaho residential code if they find that good cause for building or life safety exists for such an amendment to such codes and that such amendment is reasonably necessary. Amendments shall be adopted by ordinance in accordance with the provisions of chapter 9, title 50, Idaho Code, or chapter 7, title 31, Idaho Code, and provided further that such local jurisdiction shall conduct a public hearing and, provided further, that notice of the time and place of the public hearing shall be published in the official newspaper or paper of general circulation within the jurisdiction and written notice of each of such public hearing and the proposed language shall be given by the local jurisdiction to the local chapters of the entities identified in section 39-4109(5), Idaho Code, not less than thirty (30) days prior to such hearing. In the event that there are no local chapters of such entities identified in section 39-4109(5), Idaho Code, within the local jurisdiction holding the hearings, the notice shall be provided to the state associations of the respective entities.
(5) Local governments shall exempt agricultural buildings from the requirements of the codes enumerated in this chapter and the rules promulgated by the board. A county may issue permits for agricultural buildings to assure compliance with road setbacks and utility easements, provided that the cost for such permits shall not exceed the actual cost to the county of issuing the permits.
(a) For the purposes of this subsection, "agricultural buildings" means:
(i) Livestock shelters or buildings, including shade structures and milking barns;
(ii) Poultry buildings or shelters;
(iii) Barns;
(iv) Storage and maintenance structures for equipment and machinery used exclusively in agricultural operations;
(v) Horticultural structures, including detached production greenhouses and crop protection shelters;
(vi) Sheds used as part of an agricultural operation;
(vii) Grain silos;
(viii) Stables; and
(ix) Any other structure designed, constructed, and intended to house, accommodate, or store farm implements, hay, grain, poultry, livestock, or other horticultural products.
(b) For the purposes of this subsection, "agricultural buildings" does not include:
(i) A place of human habitation, which means a space in a building for living, sleeping, or cooking. Structures with bathrooms, shower rooms, break rooms, locker rooms, storage or utility space, or other similar areas are not considered places of human habitation;
(ii) A place of employment where agricultural products are processed, treated, or packaged; or
(iii) A place used by the public.
(c) Counties shall not alter, amend, deny, limit, or narrow the exemption provided pursuant to this subsection by, including but not limited to, requiring size limitations of agricultural buildings, requiring maximum travel distances to exits within agricultural buildings, or requiring installation of automatic sprinkler systems in agricultural buildings.
(6) Permits shall be governed by the laws in effect at the time the permit application is received.
(7) The division shall retain jurisdiction for in-plant inspections and installation standards for manufactured or mobile homes and for in-plant inspections and enforcement of construction standards for modular buildings and commercial coaches.
[39-4116, added 2002, ch. 345, sec. 21, p. 973; am. 2004, ch. 272, sec. 4, p. 760; am. 2009, ch. 173, sec. 3, p. 553; am. 2009, ch. 219, sec. 2, p. 683; am. 2009, ch. 279, sec. 2, p. 841; am. 2010, ch. 79, sec. 15, p. 144; am. 2014, ch. 248, sec. 2, p. 625; am. 2018, ch. 338, sec. 2, p. 770; am. 2022, ch. 302, sec. 3, p. 958; am. 2025, ch. 40, sec. 1, p. 187; am. 2026, ch. 320, sec. 2, p. 1283.]
(1) A local government that requires building permits shall make available a document that describes in detail the requirements of its building permit process. The local government shall provide the document to the public on its website and in physical form upon request.
(2) An applicant for a building permit shall make a good faith effort to submit a complete application containing the necessary documentation required by a local government as specified in the document required pursuant to subsection (1) of this section. If an application is deemed incomplete, the local government shall, within ten (10) business days of receipt of a residential building permit application and within twenty (20) business days of receipt of a commercial building permit application, provide written notice to the applicant specifying any missing information necessary to proceed.
(3) Upon receipt of a submission or a revised submission following an incomplete determination, a local government shall have ten (10) business days for a residential building permit and twenty (20) business days for a commercial building permit to review the application or the revised submission for completeness. No later than the conclusion of the applicable ten (10) or twenty (20) business day review period, the local government shall provide written notice of determination on the completeness of the application. A local government’s determination that an application is complete shall not constitute approval but shall authorize the application to proceed to formal plan review.
(4) An applicant and a local government may agree in writing to an extension of the timelines specified in this section if additional time is needed for the completeness determination. Prior to any such agreement, a local government shall provide written notice to an applicant explaining that an extension is needed.
[39-4117, added 2025, ch. 272, sec. 1, p. 1164.]
(1) If an inspection requested by a permit holder is not performed within forty-eight (48) business hours, such permit holder shall be authorized to hire a third-party inspector to perform such inspection. The permit holder or third-party inspector shall notify the division or local government that such inspection is being completed by a third-party inspector. The permit holder shall provide a copy of the results of the completed inspection to the division or local government. A permit holder who obtains a third-party inspection under this section shall be refunded any fee, or portion thereof, that the permit holder paid to the division or local government for such inspection. If a local government contracts with and pays the division, county, or third party for an inspection that requires a refund pursuant to this section, the division, county, or third party shall be responsible for refunding the permit holder.
(2) The division or a local government shall refund ten percent (10%) of the fees, or the portion thereof, paid by a permit holder for an inspection if an inspector or building code administrator:
(a) Conducts an inspection on the work relating to the permit;
(b) Determines that the work has failed an inspection; and
(c) Fails to, within three (3) business days, provide the permit holder or his agent with a reason for the failure of such inspection pursuant to the provisions of this chapter.
(3) A third-party inspector under this section shall meet the qualifications prescribed by section 39-4108, Idaho Code, and shall conduct the inspection in substantial accord with the applicable jurisdiction’s standards provided by law, rule, or ordinance.
[39-4118, added 2025, ch. 221, sec. 2, p. 1041.]
(1) Except as otherwise provided for in this section, the division and local governments shall be authorized to perform live virtual re-inspections at their discretion.
(2) When conducting a live virtual re-inspection pursuant to this section, the division or a local government shall, with respect to each re-inspection, verify the address or physical location of such re-inspection. Such verification may be made by showing the physical address or other identifying features of the location where the live virtual re-inspection is taking place.
(3) Neither the division nor local governments shall use live virtual re-inspections for structural inspections on buildings that are three (3) stories or greater.
(4) For purposes of this section:
(a) "Live virtual inspection" means a form of visual inspection that uses real time visual or electronic aids to allow an inspector who is enforcing a building code to perform an inspection without having to be physically present at the job site during the inspection.
(b) "Live virtual re-inspection" means a live virtual inspection performed following a previous inspection by an inspector who was physically present at the location subject to such re-inspection.
[(39-4119) 39-4117, added 2025, ch. 221, sec. 1, p. 1040; am. and redesig. 2026, ch. 251, sec. 15, p. 1065.]
The board shall, within twenty (20) days after receipt of notice for an appeal, hear such appeals brought before it by persons affected by any code, rule, regulation or decision applicable to buildings within the jurisdiction of the division. Such proceedings shall be governed by the provisions of chapter 52, title 67, Idaho Code. Final decisions of the board, other than code interpretations, are subject to judicial review in accordance with the provisions of chapter 52, title 67, Idaho Code.
[39-4120, added 1975, ch. 180, sec. 2, p. 486; am. 1983, ch. 153, sec. 14, p. 416; am. 1993, ch. 216, sec. 26, p. 608; am. 2002, ch. 345, sec. 23, p. 974.]
All fees, charges, and fines received by the board under the provisions of this chapter shall be deposited in the state treasury to the credit of the occupational licenses fund, and all costs and expenses incurred by the board under the provisions of this chapter shall be a charge against and paid from the fund for such purposes. The funds collected under this chapter shall be immediately available for the administration of this chapter, the provisions of any other law notwithstanding.
[39-4124, added 2021, ch. 224, sec. 29, p. 670.]
The division may obtain from a district court having jurisdiction, a temporary injunction enjoining the construction of a building(s) or installation of modular buildings on any building site upon affidavit of the division that such building does not conform to the requirements of this chapter or to the rules adopted pursuant to this chapter or any other chapter of Idaho Code relating to building construction. The affidavit must set forth such violations in detail. The injunction may be made permanent, in the discretion of the court.
[39-4125, added 1975, ch. 180, sec. 2, p. 486; am. 1988, ch. 264, sec. 20, p. 534; am. 2002, ch. 345, sec. 27, p. 975.]
(1) Any person who willfully violates any provision of this chapter or who willfully violates any provisions of the codes enumerated in this chapter or rules promulgated by the administrator or the board pursuant to this chapter, is guilty of a misdemeanor, and upon conviction, shall be fined not more than three hundred dollars ($300), or imprisoned for not more than ninety (90) days or by both fine and imprisonment. Violations of this chapter shall be tried in any court of competent jurisdiction within the state of Idaho.
(2) A separate violation is deemed to have occurred with respect to each building not in compliance with this chapter. Each day such violation continues constitutes a separate offense.
(3) The misdemeanor provisions of subsections (1) and (2) of this section shall not apply to manufactured homes. Violations of manufactured home construction and safety standards shall be tried in any court of competent jurisdiction.
[39-4126, added 1975, ch. 180, sec. 2, p. 486; am. 1988, ch. 264, sec. 21, p. 534; am. 2002, ch. 345, sec. 28, p. 975.]
If any portion of this act, or the application of such provision to any person or circumstance, shall be held invalid, the remainder of this act, or the application of such provision to persons or circumstances other than those to which it is held invalid, shall not be affected thereby.
[I.C., sec. 39-4129, as added by 1975, ch. 180, sec. 2, p. 486.]
As used in this chapter:
(1) "Park model recreational vehicle" means a vehicle as defined in section 49-117, Idaho Code.
(2) "Recreational vehicle" means a vehicular type unit primarily designed as temporary living quarters for recreational, camping, or travel use, which either has its own motive power or is mounted on or drawn by another vehicle. The entities are: travel trailer, camping trailer, truck camper, fifth-wheel trailer, park model recreational vehicle and motor home.
(a) "Camping trailer" means a vehicular portable unit mounted on wheels and constructed with collapsible partial side walls which fold for towing by another vehicle and unfold at the campsite to provide temporary living quarters for recreational, camping or travel use.
(b) "Fifth-wheel trailer" means a vehicular unit, mounted on wheels, designed to provide temporary living quarters for recreational, camping or travel use, of such size or weight as not to require special highway movement permits, of gross trailer area not to exceed four hundred (400) square feet in the set-up mode, and designed to be towed by a motorized vehicle that contains a towing mechanism that is mounted above or forward of the tow vehicle’s rear axle.
(c) "Motor home" means a vehicular unit designed to provide temporary living quarters for recreational, camping or travel use built on or permanently attached to a self-propelled motor vehicle chassis or on a chassis cab or van which is an integral part of the completed vehicle.
(d) "Travel trailer" means a vehicular unit, mounted on wheels, designed to provide temporary living quarters for recreational, camping or travel use, of such size or weight as not to require special highway movement permits when towed by a motorized vehicle, and of gross trailer area less than three hundred twenty (320) square feet.
(e) "Truck camper" means a portable unit constructed to provide temporary living quarters for recreational, camping or travel use, consisting of a roof, floor and sides, designed to be loaded onto and unloaded from the bed of a pickup truck.
[39-4201, added 1995, ch. 267, sec. 15, p. 864; am. 2017, ch. 134, sec. 1, p. 312.]
No manufacturer shall sell or offer for sale within this state:
(1) Any new recreational vehicle that is not manufactured in compliance with the National Fire Protection Association (NFPA) 1192 Standard for Recreational Vehicles; or
(2) Any new park model recreational vehicle that is not manufactured in compliance with the American National Standards Institute (ANSI) A119.5 Standards for Recreational Park Trailers.
[39-4202, added 1995, ch. 267, sec. 15, p. 865; am. 2017, ch. 134, sec. 2, p. 313.]
No recreational vehicle that meets the National Fire Protection Association (NFPA) 1192 Standard for Recreational Vehicles and no park model recreational vehicle that meets the ANSI A119.5 Standard for Recreational Park Trailers shall be required to comply with any local ordinances or regulations adopting standards relating to plumbing, heat producing and electrical systems in recreational vehicles or park model recreational vehicles.
[39-4203, added 1995, ch. 267, sec. 15, p. 865; am. 2017, ch. 134, sec. 3, p. 313.]
As used in this chapter:
(1) "Administrator" means the administrator of the division of occupational and professional licenses for the state of Idaho.
(2) "Board" means the factory built structures advisory board, as created in section 39-4302, Idaho Code.
(3) "Building site" means any tract, parcel or subdivision of land upon which a modular building is installed or is to be installed.
(4) "Closed construction" means any manufactured building, structure or component thereof that may enclose factory installed structural, mechanical, electrical or plumbing systems and is not open for visual inspection at the building site.
(5) "Commercial coach" means a modular building with permanent running gear and a hitch assembly that is designed and constructed for nonresidential occupancy classifications only.
(6) "Division" means the Idaho division of occupational and professional licenses.
(7) "Factory built structure" means any building or building component, including a manufactured home, a mobile home or a modular building, that is of closed construction and is entirely or substantially prefabricated or assembled at a place other than the building site.
(8) "Manufactured home" means a structure as defined in section 39-4105, Idaho Code.
(9) "Mobile home" means a structure as defined in section 39-4105, Idaho Code.
(10) "Modular building" means any building or building component, other than a manufactured or mobile home, that is of closed construction and is either entirely or substantially prefabricated or assembled at a place other than the building site.
[39-4301, added 2007, ch. 252, sec. 5, p. 740; am. 2016, ch. 342, sec. 4, p. 969; am. 2023, ch. 15, sec. 13, p. 83.]
(1) The factory built structures advisory board is established in the division of occupational and professional licenses to advise the administrator in the administration and enforcement of the provisions of this chapter and chapter 40, title 39, and chapters 21, 22 and 25, title 44, Idaho Code. The board shall consist of eight (8) members appointed by the governor. One (1) member shall represent a manufacturer of commercial modular buildings, one (1) member shall be a consumer who lives in a manufactured home, two (2) members shall be licensed as a retailer or installer of manufactured or mobile homes, one (1) member shall represent a manufacturer of manufactured homes, two (2) members shall be either a dealer or installer of modular buildings, and one (1) member shall be a consumer who uses or has used modular buildings. The board shall serve at the pleasure of the governor and shall serve the following terms commencing July 1, 2016: two (2) members shall be appointed for a term of one (1) year, three (3) members shall be appointed for a term of two (2) years, and three (3) members shall be appointed for a term of three (3) years. Thereafter board members shall be appointed for a term of three (3) years and shall serve at the pleasure of the governor. Whenever a vacancy occurs, the governor shall appoint a qualified person to fill the vacancy for the unexpired portion of the term. The members of the board shall be compensated as provided in section 59-509(n), Idaho Code, for each day spent in attendance at meetings of the board. A majority of members shall constitute a quorum, and a quorum at any meeting called by the administrator shall have full and complete power to act upon and resolve in the name of the board any matter, thing or question referred to it by the administrator, or which by reason of any provision of this chapter, it has the power to determine.
(2) The board shall, on the first day of each July or as soon thereafter as practicable, elect a chairman, vice-chairman and secretary from among its members, and these officers shall hold office until their successors are elected. As soon as the board has elected its officers, the secretary shall certify the results of the election to the administrator. The chairman shall preside at all meetings of the board and the secretary shall make a record of the proceedings which shall be preserved in the offices of the division of occupational and professional licenses. If the chairman is absent from any meeting of the board, his duties shall be discharged by the vice-chairman. All members of the board present at a meeting shall be entitled to vote on any question, matter, or thing which properly comes before the board.
(3) The board shall have the authority to promulgate rules in accordance with chapter 52, title 67, Idaho Code, to implement the provisions of this chapter and chapter 40, title 39, and chapters 21, 22 and 25, title 44, Idaho Code.
[39-4302, added 2007, ch. 252, sec. 5, p. 741; am. 2010, ch. 160, sec. 1, p. 334; am. 2016, ch. 342, sec. 5, p. 970; am. 2021, ch. 222, sec. 3, p. 623.]
(1) The following fees shall be paid by the manufacturer of a modular building:
(a) Per building, one (1) building permit, plan review and inspection fee for structural, plumbing, electrical and HVAC, based upon the modular building permit fee schedule as provided in rule, plus ninety dollars ($90.00) and two and one-half percent (2.5%) of the plumbing, electrical and HVAC installation costs.
(b) The division may charge a one hundred dollar ($100) insignia fee in instances where building permit fees are not charged for modular buildings.
(2) All fees collected by the division under the provisions of this chapter shall be paid into the occupational licenses fund. The expenses incurred in administering and enforcing the provisions of this chapter shall be paid from the fund. The fees set forth in subsection (1) of this section and the modular building permit fees as provided in rule shall be the exclusive fee requirements applicable to modular buildings governed by the provisions of this chapter and shall supersede any program of any political subdivision of the state that sets fee requirements for the same inspections or services.
[39-4303, added 2007, ch. 252, sec. 5, p. 741; am. 2016, ch. 342, sec. 6, p. 971; am. 2020, ch. 278, sec. 1, p. 812; am. 2021, ch. 224, sec. 30, p. 670.]
(1) No modular building shall be installed on a building site in this state on or after July 1, 2007, unless it is approved and bears the insignia of approval of the division.
(2) Any modular building bearing an insignia of approval of the division shall be deemed to comply with codes, laws, or rules enacted by the state of Idaho which govern the manufacture and construction of such building.
(3) The cost of the insignia, if issued, shall be included as a part of the permit fee as set forth in section 39-4303, Idaho Code.
(4) No modular building which has been approved by the division shall be in any way modified prior to its initial occupancy unless approval of that modification is first made by the division.
(5) Insignias shall be placed on the front, left-hand side of the building.
[39-4304, added 2007, ch. 252, sec. 5, p. 742.]
The administrator may appoint such number of modular building inspectors as is necessary for the effective enforcement of this chapter. Each modular building inspector shall:
(1) Be knowledgeable regarding the type of installation being inspected;
(2) Be certified as an inspector by an organization designated in administrative rule promulgated by the board. Each inspection certification shall correspond to the type of installation being inspected;
(3) Demonstrate knowledge of the provisions of the Idaho Code and the administrative rule governing the type of installation being inspected; and
(4) Not be permitted to:
(a) Be engaged or be financially interested in any business, trade, practice or work related to this chapter;
(b) Sell any supplies connected to the electrical, plumbing or heating, ventilation and air conditioning (HVAC) business; or
(c) Act as an agent, directly or indirectly, for any person, firm, copartnership, association or corporation engaged in the electrical, plumbing or HVAC business.
[39-4304A, added 2009, ch. 127, sec. 1, p. 407.]
(1) If the administrator determines that standards for modular buildings that have been adopted by the statutes or rules of another state are at least equal to the standards adopted by the administrator, the administrator may so provide by rule.
(2) If the administrator determines that standards for modular buildings have not been adopted by another state, and modular buildings from that state are transported into this state to be offered for sale, the administrator may certify reciprocal states to inspect such modular buildings. If there is no reciprocity agreement with a state of manufacture, then Idaho will inspect the building, plumbing, electrical and HVAC, provided that the out-of-state manufacturer shall bear the costs of travel and inspection services related to such inspection. If the administrator shall then determine that the modular buildings meet the standards of this state, the product shall be acceptable and the administrator may issue insignia for said modular buildings.
[39-4305, added 2007, ch. 252, sec. 5, p. 742.]
Any person, partnership, company, firm, association or corporation who shall willfully violate any of the provisions of this chapter, or the rules of the factory built structures advisory board or of the administrator herein provided for, or who shall refuse to perform any duty lawfully enjoined upon him by the administrator within the prescribed time; or who shall fail, neglect, or refuse to obey any lawful order given or made by the administrator, shall be guilty of a misdemeanor. In addition to any criminal proceedings, the administrator is authorized to bring either an administrative action or a civil proceeding in the courts against the violator and impose and recover a civil penalty against the violator as established by administrative rule, but not to exceed one thousand dollars ($1,000). Each day of such violation shall constitute a separate offense. A violation will be considered a second or additional offense only if it occurs within one (1) year from the previous violation.
[39-4306, added 2007, ch. 252, sec. 5, p. 742; am. 2016, ch. 342, sec. 7, p. 971.]
This act may be known and cited as the "Hazardous Waste Management Act of 1983."
[39-4401, added 1983, ch. 154, sec. 1, p. 417.]
(1) The legislature of the State of Idaho finds:
(a) That continuing technological progress, increases in manufacturing, and the abatement of air and water pollution have resulted in ever-increasing quantities of hazardous waste;
(b) That the public health and safety, and the environment, are threatened when hazardous wastes are not managed in an environmentally sound manner;
(c) That the knowledge and technology necessary for alleviating adverse health, environmental, and aesthetic impacts resulting from current hazardous waste management and disposal practices are generally available; and
(d) That the problem of proper management of hazardous waste has become a matter of great statewide concern.
(2) Therefore, it is hereby declared that the purposes of this chapter are:
(a) To protect the public health and safety, the health of living organisms, and the environment from the effects of the improper, inadequate, or unsound management of hazardous waste;
(b) To establish a program to track and control hazardous wastes from the time they are generated through transportation, treatment, storage, and disposal; and
(c) To assure the safe and adequate management of hazardous wastes within this state.
(3) It is the intent of the legislature that the site licensing process provided for by this chapter not duplicate processes otherwise provided for by state or federal law. The site licensing procedure provided by sections 39-4433 through 39-4441, Idaho Code, is intended to be a preliminary, general review that does not include the type of specific, detailed technical information required for the hazardous waste management act permit process provided for by section 39-4409, Idaho Code.
[39-4402, added 1983, ch. 154, sec. 1, p. 417; am. 2026, ch. 89, sec. 2, p. 462.]
As used in this chapter:
(1) "Board" means the Idaho board of environmental quality.
(2) "Commercial hazardous waste facility or site" means any hazardous waste facility whose primary business is the treatment, storage, or disposal, for a fee or other consideration, of hazardous waste generated offsite by generators other than the owner and operator of the facility.
(3) "Department" means the Idaho department of environmental quality.
(4) "Designated facility" means a hazardous waste treatment, storage, or disposal facility that has received a permit, has interim status under, or is otherwise permitted pursuant to 42 U.S.C. 6901 et seq.
(5) "Director" means the director of the Idaho department of environmental quality or the director’s authorized agent.
(6) "Disposal" means the discharge, deposit, injection, dumping, spilling, leaking, or placing of any hazardous waste into or on any land or water so that such hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters.
(7) "Disposal facility" means a facility or a part thereof where the disposal of hazardous waste will remain after closure of the facility.
(8) "Gate ton" means the weight, in tons (2,000 pounds/ton), of waste material received at a facility. This weight does not include any subsequent changes to the weight resulting from the management of the waste by the facility.
(9) "Generator" means any person who, by virtue of ownership, management, or control, is responsible for causing or allowing to be caused the creation of a hazardous waste.
(10) "Hazardous waste" means a waste or combination of wastes of a solid, liquid, semisolid, or contained gaseous form which, because of its quantity, concentration or characteristics (physical, chemical or biological) may:
(a) Cause or significantly contribute to an increase in deaths or an increase in serious, irreversible or incapacitating reversible illnesses; or
(b) Pose a substantial threat to human health or to the environment if improperly treated, stored, disposed of, or managed. Such wastes include, but are not limited to, materials which are toxic, corrosive, ignitable, or reactive, or materials which may have mutagenic, teratogenic, or carcinogenic properties but do not include solid or dissolved material in domestic sewage, or solid or dissolved materials in irrigation return flows or industrial discharges which are point sources subject to national pollution discharge elimination system permits under the federal water pollution control act, as amended, 33 U.S.C., section 1251 et seq., or source, special nuclear, or byproduct material as defined by the atomic energy act of 1954, as amended, 42 U.S.C., section 2011 et seq.
(11) "Hazardous waste management" means the systematic control of the collection, source separation, storage, treatment, transportation, processing, and disposal of hazardous wastes.
(12) "Hazardous waste facility or site" means any property, structure, or ancillary equipment intended or used for the transportation, treatment, storage, or disposal of hazardous wastes.
(13) "Injection" means the subsurface emplacement of free liquids.
(14) "Major modification" means any material and substantial alteration, expansion, or addition to the facility or an activity conducted at a facility after a siting license has been issued that warrants an application to be submitted to the department to determine whether the license’s conditions need to be amended. The term may be further defined by rule, subject to legislative approval.
(15) "Manifest" means a form used for identifying the quantity, composition, origin, routing, waste identification code(s), and destination of hazardous waste during any transportation from the point of generation to the point of treatment, storage, or disposal.
(16) "Manifested waste" means waste which at the point of origin or generation is required to be manifested for transportation in a manner similar to that of the federal uniform hazardous waste manifest or by other manifest requirements designed to assure proper treatment, storage, and disposal of such waste.
(17) "On-site" means on the same or geographically contiguous property that may be divided by a public or private right-of-way if the entrance and exit between the pieces of property are at a crossroads intersection and access is by crossing rather than going along the right-of-way. Noncontiguous pieces of property owned by the same person but connected by a right-of-way that the owner controls and to which the public does not have access shall be considered on-site property.
(18) "Operator" means the person responsible for the overall operation of a hazardous waste facility authorized to operate pursuant to this chapter.
(19) "Panel" means a site review panel established pursuant to section 39-4437, Idaho Code.
(20) "PCB waste" means any waste or waste item which is not included in the definition of "hazardous waste" and which is contaminated with polychlorinated biphenyls.
(21) "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.
(22) "RCRA" means the resource conservation and recovery act of 1976 as amended from time to time.
(23) "Restricted hazardous waste" means a waste or combination of wastes regulated as land disposal restricted pursuant to federal statutes and regulations, including 40 CFR part 268. Restricted hazardous waste also includes byproduct, source, special nuclear materials or devices or equipment, except as provided below, utilizing such materials regulated under the federal atomic energy act of 1954, as amended. Restricted hazardous waste shall not include radiologically contaminated waste materials from "Formerly Utilized Sites Remedial Action Program (FUSRAP)" sites administered by the United States army corps of engineers or materials that have been exempted or released from radiological control or regulation under the atomic energy act of 1954, as amended, to be disposed of in a commercial hazardous waste facility as regulated pursuant to the rules, permit requirements, and acceptance criteria provided for by this chapter.
(24) "Storage" means the holding of hazardous waste for a temporary period, at the end of which the hazardous waste is treated, disposed of, or stored elsewhere.
(25) "Storage facility" means a facility or a part thereof where hazardous waste is subject to storage.
(26) "Transportation" means the movement of any hazardous waste from a hazardous waste facility or site by air, rail, highway, or water.
(27) "Transporter" means any person engaged in the off-site transportation of hazardous waste.
(28) "Treatment" means any method, technique, or process, including neutralization, designed to change the physical, chemical, or biological character or composition of any hazardous waste so as to:
(a) Neutralize such waste;
(b) Render such waste:
(i) Nonhazardous or less hazardous;
(ii) Safer to transport, store, or dispose of; or
(iii) Amenable for recovery or storage;
(c) Reduce such waste in volume; or
(d) Recover energy or material resources from such waste.
(29) "Waste" means any solid, semisolid, liquid, or contained gaseous material for which no reasonable use or reuse is intended or which is intended to be discarded.
[39-4403, added 1983, ch. 154, sec. 1, p. 418; am. 1984, ch. 205, sec. 1, p. 503; am. 1986, ch. 148, sec. 1, p. 416; am. 1986, ch. 324, sec. 1, p. 794; am. 1989, ch. 253, sec. 1, p. 626; am. 1993, ch. 291, sec. 1, p. 1083; am. 1994, ch. 419, sec. 1, p. 1310; am. 2001, ch. 103, sec. 45, p. 288; am. 2001, ch. 297, sec. 3, p. 1074; am. 2011, ch. 38, sec. 1, p. 92; am. 2014, ch. 265, sec. 1, p. 660; am. 2026, ch. 89, sec. 3, p. 463.]
The legislature intends that the state of Idaho enact and carry out a hazardous waste program that will enable the state to assume primacy over hazardous waste control from the federal government.
The legislature finds that the RCRA, as amended, 42 U.S.C., section 6901 et seq., and federal regulations adopted pursuant thereto, establish complex and detailed provisions for regulation of those who generate, transport, treat, store, and dispose of hazardous wastes. 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 RCRA. However, by the provisions of this chapter, the legislature desires to avoid the existence of duplicative, overlapping or conflicting state and federal regulatory systems.
Therefore, the board is directed to promulgate rules which are consistent with RCRA and the federal regulations adopted by the administrator of the United States environmental protection agency to implement RCRA. Farmers and ranchers who treat, store, or dispose of waste pesticides from their operations on lands owned or controlled by them shall not be required by board rules to do anything more than follow the instructions on the pesticide label and triple rinse empty containers in accordance with the RCRA regulations of the environmental protection agency. The board may not promulgate any rule that would impose conditions or requirements more stringent or broader in scope than RCRA and the RCRA regulations of the environmental protection agency. The board may, however, promulgate procedural rules and rules specifically authorized by this chapter or other state statutes without showing that those rules are required by RCRA or the regulations of the environmental protection agency; provided that those rules shall not conflict with this section, other sections of this chapter, RCRA, or the regulations of the environmental protection agency. Any rule promulgated by the board shall be valid until it is repealed or modified through the administrative process of chapter 52, title 67, Idaho Code.
[39-4404, added 1983, ch. 154, sec. 1, p. 419; am. 1986, ch. 182, sec. 1, p. 479; am. 1988, ch. 6, sec. 1, p. 6; am. 1988, ch. 259, sec. 1, p. 498; am. 1993, ch. 216, sec. 27, p. 608; am. 1993, ch. 291, sec. 2, p. 1085.]
Pursuant to the procedures established by the Idaho administrative procedure act, chapter 52, title 67, Idaho Code, the board shall adopt such rules as are necessary and feasible for the management of the generation, collection, transportation, treatment, storage, and disposal of hazardous wastes within the state. The board shall also adopt such rules as necessary to regulate persons who produce, burn, distribute, and market fuel containing hazardous waste. The rules promulgated by the board shall be a part of this code and shall have the force and effect of law. Such rules shall include, but not be limited to:
(1) Criteria for the determination of whether any waste or combination of wastes is hazardous for the purposes of this chapter;
(2) Rules for those who generate, transport, treat, store, or dispose of hazardous wastes;
(3) Rules, consistent with those issued by the United States environmental protection agency and the United States department of transportation, for containerization, labeling and manifesting of hazardous wastes;
(4) Rules specifying the terms and conditions under which the department shall issue, modify, suspend, revoke, or deny such permits as shall be required by this chapter;
(5) Lists of those wastes or combinations of wastes which are not compatible and which may not be stored or disposed of together;
(6) Procedures and requirements for the reporting of the generation, transportation, treatment, storage or disposal of hazardous wastes;
(7) Rules establishing standards and procedures for the training of personnel at generation sites and at hazardous waste facilities and sites;
(8) Release detection, prevention and correction rules applicable to all owners and operators of underground storage tanks, as may be necessary to protect human health and the environment;
(9) Rules specifying radioactive materials or other radioactive materials occurring naturally that may be disposed of at a commercial hazardous waste facility or site.
[39-4405, added 1983, ch. 154, sec. 1, p. 420; am. 1986, ch. 148, sec. 2, p. 418; am. 2001, ch. 297, sec. 4, p. 1076.]
The director:
(1) Shall take all actions not inconsistent with this chapter as are necessary and feasible to enable the department to assume and continue primacy over hazardous waste management, pursuant to RCRA;
(2) May conduct and publish studies of hazardous waste management in this state; and
(3) Shall exercise all powers and discharge all duties expressed in or implied from the other sections of this chapter.
[39-4406, added 1983, ch. 154, sec. 1, p. 420; am. 1993, ch. 291, sec. 3, p. 1086; am. 2026, ch. 89, sec. 4, p. 465.]
(1) The board shall establish criteria for determining if any waste or combination of wastes is hazardous or nonhazardous, for the purposes of this chapter.
(2) The board may adopt, and amend from time to time a list or lists of hazardous wastes. The board may, with public notice but without the necessity of a public hearing, list as hazardous any waste or combination of wastes determined to be hazardous by the United States environmental protection agency. To accomplish this goal, the board may adopt by reference the regulations containing the lists of hazardous wastes and the set of characteristics for identifying hazardous wastes promulgated by the United States environmental protection agency pursuant to RCRA. The board shall update the regulations adopted pursuant to this section as needed to reflect regulatory amendments promulgated by the United States environmental protection agency. The board may adopt regulations for a state hazardous waste delisting program equivalent to that set forth in 40 CFR sections 260.20(b) and 260.22. The state delisting program shall provide for public notice and opportunity for comment before granting or denying delisting requests.
[39-4407, added 1983, ch. 154, sec. 1, p. 421; am. 1993, ch. 291, sec. 4, p. 1086.]
(1) No person shall treat or store hazardous waste, nor shall any person discharge, incinerate, release, spill, place, or dispose any hazardous waste in such a manner that the waste, or any constituent thereof, may enter the environment, unless the department has issued said person a permit or a variance as required for the specific activity involved or exempted the activity from permit requirements.
(2) Nonhazardous liquids shall not be disposed of in a landfill for which a permit is required under section 39-4409, Idaho Code, or which is operating pursuant to interim status granted under section 3005(c) of RCRA, unless the owner or operator of the landfill demonstrates to the director that:
(a) The only reasonable alternative is placement in a landfill or unlined surface impoundment which contains or may contain hazardous waste; and
(b) Placement in the owner or operator’s landfill will not present a risk of contamination of any existing or potential underground source of drinking water.
(3) Waste or used oil or other material which is contaminated or mixed with any hazardous waste, other than wastes identified solely on the basis of ignitibility, shall not be used for dust suppression or road treatment.
(4) The board shall have authority to prohibit:
(a) Land disposal of any hazardous waste; and
(b) Storage of any hazardous waste prohibited from land disposal, unless such storage is solely for the purpose of the accumulation of such quantities of hazardous waste as are necessary to facilitate proper recovery, treatment or disposal.
[39-4408, added 1983, ch. 154, sec. 1, p. 421; am. 1986, ch. 148, sec. 3, p. 418; am. 2026, ch. 89, sec. 5, p. 466.]
(1) No person shall construct, operate, or modify a hazardous waste treatment, storage, or disposal facility or site without a permit from the department. The owner or operator of the facility or site rather than the builder shall be responsible for obtaining the permit. Permits may contain such conditions necessary to protect human health and environment. The board may exempt classes or categories of hazardous waste treatment, storage, or disposal facilities from the permit requirement if the exemption is in the public interest and consistent with RCRA requirements. The fact that a class or category of such facilities is not required to obtain a federal permit shall be persuasive evidence that an exemption is in the public interest.
(2) Interim status granted by RCRA or a permit issued by the United States environmental protection agency prior to the date that the state program is authorized by the administrator of that agency shall be adopted by the department as a state granted interim status or as a state granted permit until the department issues a new state permit. The board may adopt such rules and regulations as necessary to:
(a) Allow other facilities to qualify for interim status;
(b) Require existing interim status surface impoundments, new units, replacement of existing units and lateral expansions of existing interim status facilities to comply with all regulations which apply to new facilities; and
(c) Provide for the termination of interim status.
(3) The board shall promulgate rules and regulations establishing the terms and conditions for issuing permits to the described facilities and sites. The rules and regulations shall provide for, but not be limited to:
(a) Standards and procedures for the safe operation and maintenance of the facilities and sites;
(b) Education and training qualifications of personnel at the facilities and sites;
(c) Contractual commitment or consent to each facility or site from all holders of interests in the real property committed to that facility or site;
(d) Monetary assurances in such form and amount as are necessary for effective management, maintenance, and monitoring of the facilities and sites during and after operation;
(e) Evidence of financial responsibility for corrective action on-site and off-site;
(f) Liability insurance in such form and amount as is necessary to compensate for potential damages caused by the facilities and sites; provided, that liability insurance shall not be required in the event that liability insurance is not required by the federal regulations adopted pursuant to the RCRA;
(g) Emergency equipment and emergency response plans appropriate to the facilities and sites;
(h) Public participation in the permitting process consistent with 42 U.S.C. section 6974(b).
(4) Permits shall be issued for a period not to exceed ten (10) years or the maximum period allowed under RCRA, whichever is greater. However, permits may be reviewed at least every five (5) years and modified as necessary to take into account changes in this chapter or regulations promulgated pursuant thereto and improvements in technology.
(5) Any permit issued pursuant to this chapter shall require corrective action to be taken on-site and off-site for all releases of hazardous waste or constituents, from any solid waste management unit at the treatment, storage, or disposal facility seeking the permit, regardless of the time when the waste was placed in such unit.
(6) Any permit issued pursuant to this section may be revoked by the director pursuant to the provisions of section 39-4413, Idaho Code, if the permitted party fails to comply with the terms and conditions of the permit, this chapter, or the rules and regulations promulgated pursuant thereto.
(7) The department may issue a variance from the requirements of the rules and regulations promulgated under this section, if, in the judgment of the director, application of the requirements would cause unreasonable hardship and the granting of a variance would not be harmful to the public interest or inconsistent with RCRA requirements. A variance shall not exceed three (3) years in duration and may be renewed or extended only after the department provides public notice and an opportunity for public comment.
(8)(a) The director of the department may issue a research, development, and demonstration permit for any hazardous waste treatment technology or process for which permit standards for such experimental activity have not been promulgated. Any such permit shall include such terms and conditions as will ensure protection of human health and the environment. Such permits shall:
Provide for the construction of such facilities, as necessary, and for operation of the facility for not longer than one (1) year (unless renewed as provided below); and
Provide for the receipt and treatment by the facility of only those types and quantities of hazardous waste which the director deems necessary for purposes of determining the efficiency and performance capabilities of the technology or process and the effects of such technology or process on human health and the environment; and
Include such requirements as the director deems necessary to protect human health and the environment (including, but not limited to, requirements regarding monitoring, operation, insurance or bonding, financial responsibility, closure, and remedial action); and
Include such requirements as the director deems necessary regarding testing and providing of information to the director with respect to the operation of the facility.
(b) The director may apply the criteria set forth in paragraph (a) of this subsection in establishing the conditions of each permit without separate establishment of regulations implementing such criteria.
(c) For the purpose of expediting review and issuance of permits under this subsection, the director may, consistent with the protection of human health and the environment, modify or waive permit application and permit issuance requirements established in the general permit regulations except that there may be no modification or waiver of regulations regarding financial responsibility (including insurance) or of applicable public participation procedures.
(d) The director may renew a research, development and demonstration permit which has been issued pursuant to this subsection. The renewal term shall be no longer than one (1) year. A permit shall not be renewed more than three (3) times.
[39-4409, added 1983, ch. 154, sec. 1, p. 421; am. 1986, ch. 148, sec. 4, p. 419; am. 1987, ch. 102, sec. 1, p. 204; am. 1988, ch. 7, sec. 1, p. 7; am. 1988, ch. 259, sec. 2, p. 499; am. 2026, ch. 89, sec. 6, p. 466.]
(1) The board shall promulgate hazardous waste transportation rules and regulations to control the intrastate and interstate transportation of federally regulated types and quantities of hazardous waste. The rules and regulations shall be consistent with the rules and regulations issued by the United States department of transportation and the United States environmental protection agency. The rules and regulations shall also be consistent with the rules and regulations of the Idaho public utilities commission unless such consistency would impair the primacy or the effectiveness of the state’s hazardous waste management program. In that case the board shall confer with the commission and endeavor to develop mutually acceptable transportation rules and regulations. If mutually acceptable rules and regulations cannot be developed, the board shall promulgate transportation rules and regulations that minimize conflict with the commission’s rules and regulations while assuring the primary authority and effectiveness of the state’s hazardous waste management program. Rules and regulations so promulgated by the board shall prevail over conflicting rules and regulations of the commission.
(2) The hazardous waste transportation rules and regulations shall apply to all transporters of federally regulated types and quantities of hazardous waste generated either by themselves or by others. These rules and regulations shall apply to any movement of a regulated quantity of hazardous wastes to or from a hazardous waste facility or site.
(3) The hazardous waste transportation rules and regulations shall provide for but not be limited to:
(a) Standards for the containerization and labeling of hazardous wastes;
(b) Standards for the handling and placarding of hazardous waste shipments;
(c) A hazardous waste tracking system requiring that:
(i) All transporters of federally regulated types and quantities of hazardous waste obtain an identification number from the department, the environmental protection agency, or another approved state program, before accepting hazardous waste for transport;
(ii) All shipments of federally regulated types and quantities of hazardous waste to be shipped off site or received from off site be accompanied by a manifest or similar form describing the hazardous waste being shipped and its destination;
(iii) A copy of each manifest or similar form be returned to the generator and/or originator of the shipment and a copy be retained by the transporter for a minimum of three (3) years.
(4) The hazardous waste transportation rules and regulations may provide for special routing of hazardous waste shipments in this state when necessary to protect the public health, the public safety, or the environment consistent with federal statutory, regulatory and constitutional requirements.
(5) No commercial hazardous waste disposal facility or site permitted under section 39-4409, Idaho Code, shall receive regulated quantities of hazardous waste as defined by federal law from a motor vehicle or trailer unless the hazardous waste is accompanied by a proper manifest and the transporter has obtained a special permit from the Idaho transportation department as provided in sections 49-2202 and 49-2203, Idaho Code. If an improperly documented shipment of hazardous waste arrives at a permitted commercial hazardous waste facility or site, the owner or operator of the facility or site shall immediately notify the Idaho transportation department and the Idaho state police and follow the requirements of its permits and licenses for notification of appropriate agencies.
[39-4410, added 1983, ch. 154, sec. 1, p. 422; am. 1984, ch. 205, sec. 2, p. 504; am. 1986, ch. 231, sec. 1, p. 628; am. 1988, ch. 265, sec. 568, p. 867; am. 1993, ch. 291, sec. 5, p. 1087; am. 2000, ch. 469, sec. 98, p. 1549.]
(1) Pursuant to the provisions of section 39-4405, Idaho Code, the board shall adopt, and amend as necessary, such rules relating to records, reporting, and monitoring as may be needed to achieve the purposes of this chapter. These rules may include, but shall not be limited to, prescribing procedures and requirements for:
(a) The establishment, maintenance, and format of records and reports;
(b) The submittal of records and reports;
(c) The taking of samples and the performing of tests and of analyses;
(d) The use of approved monitoring methods and techniques;
(e) The installation, calibration, use, and maintenance of monitoring equipment; and
(f) The provision of relevant information to the department.
(2) Sixty (60) days after promulgation of the criteria and lists specified under section 39-4407, Idaho Code, and the rules required under section 39-4405, Idaho Code, and subsection (1) of this section, the generation, transportation, treatment, storage, or disposal of a hazardous waste in this state by any person without reporting such activity to the department as required by the rules issued pursuant to subsection (1) of this section shall be unlawful.
(3) Information obtained by the department or by 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.
(4) Each generator shall, at the discretion of the director, no later than January 31 of each calendar year, submit a written annual report to the department including the following information:
(a) The types and quantities of hazardous wastes generated;
(b) The types and quantities of such wastes shipped for treatment and disposal by landfilling or other means of disposal;
(c) The types and quantities of such wastes remaining in storage at the end of the reporting period;
(d) Whether such wastes are destined for disposal or treatment in this state or whether such wastes are destined for disposal or treatment outside this state.
(5) The operator of each commercial hazardous waste disposal facility or site in the state shall, no later than January 31 of each calendar year, submit a written annual report to the department providing information on the types and quantities of wastes received which were generated in Idaho, and information on the types and quantities of wastes received which were generated in other states.
(6) Prior to March 1 of each year the department shall submit a report to the governor and the legislature detailing:
(a) The types and quantities of hazardous wastes generated in this state;
(b) The types and quantities of such wastes shipped for treatment and disposal by landfilling or other means of disposal;
(c) The types and quantities of such wastes remaining in storage at the end of the most recent reporting period; and
(d) The types and quantities of hazardous waste generated outside this state and shipped into this state for storage or disposal.
[39-4411, added 1983, ch. 154, sec. 1, p. 423; am. 1984, ch. 258, sec. 1, p. 618; am. 1986, ch. 148, sec. 5, p. 421; am. 1990, ch. 213, sec. 43, p. 515; am. 1993, ch. 291, sec. 6, p. 1088; am. 1996, ch. 125, sec. 1, p. 439; am. 1998, ch. 125, sec. 4, p. 465; am. 2015, ch. 141, sec. 92, p. 446; am. 2026, ch. 89, sec. 7, p. 468.]
(1) All inspections and searches 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 article I, section 17, of the constitution of the state of Idaho. The state shall not, under the authority granted by this chapter, conduct warrantless administrative 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.
(2) For the purposes of developing or enforcing any provision of this chapter or any rule or regulation authorized by this chapter, any duly authorized state employee or representative may, upon presentation of appropriate state identification, at any reasonable time:
(a) Enter upon any private or public property where hazardous wastes are or have been generated, transported, treated, stored, or disposed of to inspect and to secure samples of such wastes, their containers, and their labels;
(b) Enter into any aircraft, vehicle, vessel, rail car, trailer, van, or other means of conveyance where hazardous wastes are or have been contained to inspect and to secure samples of such wastes, their containers, and their labels;
(c) Enter any private or public property, or means of conveyance, where records, reports, information, or test results relating to the generation, transportation, treatment, storage, or disposal of hazardous wastes exist to inspect and copy such documents.
(3) Upon request by an authorized agent of a property owner or facility operator, the department shall provide the property owner or facility operator with a receipt for samples taken and a copy of sample analysis. Duplicate samples shall similarly be provided upon request if the requesting party agrees to have the samples analyzed and to share the results of the analysis with the department.
(4) The right of entry of a duly authorized state employee or representative shall not be subject to the waiver of any potential tort liability of the facility owner or operator. The right of entry of a duly authorized state or health district employee shall not be subject to any confidentiality requirements other than those specified in section 39-4411(3), Idaho Code, and chapter 1, title 74, Idaho Code. The right of entry of a private contractor working in a representative capacity for the department may, however, be made subject to additional confidentiality requirements so long as those requirements do not interfere unreasonably with the development of information by the department or the transmission of information from the contractor to the department or the United States environmental protection agency.
(5) Any magistrate or district court judge is authorized to issue an administrative search warrant upon a request from the director describing reasonable cause for issuance of the warrant or the existence of a reasonable program of inspection.
[39-4412, added 1983, ch. 154, sec. 1, p. 424; am. 1990, ch. 213, sec. 44, p. 517; am. 2015, ch. 141, sec. 93, p. 446; am. 2026, ch. 89, sec. 8, p. 469.]
(A) Whenever the director determines that any person is in violation of any provision of this chapter or any permit, standard, regulation, condition, requirement, compliance agreement or order issued or promulgated pursuant to this chapter, one or more of the following actions may be taken:
(1) ADMINISTRATIVE ENFORCEMENT ACTIONS.
(a) 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.
(b) Scheduling Compliance Conference. If a recipient of a notice of violation contacts the department within fifteen (15) days of the receipt of 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 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 subsection (3) of this section.
(c) 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 for assuring future compliance. 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 for payment of any agreed civil penalty.
(d) 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.
(e) Failure to Reach Agreement on 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 pursuant to subsection (A)(1)(b) of this section, the director may commence and prosecute a civil enforcement action in district court, in accordance with subsection (A)(3) of this section.
(2) PERMIT SUSPENSION OR REVOCATION PROCEEDINGS.
(a) Grounds. The director may revoke or temporarily suspend the permit of any hazardous waste facility or site pursuant to the grounds provided in subsection (6) of section 39-4409, Idaho Code.
A violation that is shown to have occurred as the result of an unforeseeable act of God despite a permitted party’s reasonable efforts to comply with all applicable legal requirements shall not be grounds for a suspension or revocation.
(b) Notice of Hearing. The director shall commence a permit suspension or revocation action by giving a permitted party a written notice of intent to suspend or revoke. The notice shall inform the permitted party of facts or conduct which warrant suspension or revocation of the permit. The notice, hearing, and record requirements for contested cases contained in the Idaho administrative procedure act, chapter 52, title 67, Idaho Code, and subsection (A)(2)(c) of this section shall apply to proceedings initiated under this subsection. Revocation or suspension of a permit shall become final fifteen (15) days after delivery of the notice of intent to revoke or suspend unless the permitted party requests a hearing.
(c) Administrative Hearing Provisions.
(i) Upon a timely request by a permit holder for a hearing to review the director’s action under subsection (A)(2)(b) of this section, the director shall promptly conduct a hearing open to the public. The contested case provisions of the Idaho administrative procedure act shall apply to all hearings conducted under this subsection.
(ii) The director shall have the authority to request from the district court in and for Ada county or any other appropriate district court the issuance of an order in the nature of a subpoena compelling the attendance and testimony of witnesses and the production before the director of papers, books, drawings, documents, test results, and other evidence relevant to a permit suspension or revocation investigation or adjudication.
(iii) After the hearing, the director shall issue a written opinion setting forth findings of fact, conclusions of law and an order. An aggrieved person subject to the director’s order may seek its review as a final order in a district court as provided by the Idaho administrative procedure act. District court review of the director’s decision shall be limited to the record developed before the director.
(3) CIVIL ENFORCEMENT ACTION. The attorney general may commence and prosecute in district court a civil enforcement action. 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 chapter or any rule, regulation, permit, condition, requirement, consent order, or order which has become effective pursuant to this chapter. Such action may be brought to compel compliance with any provision of this chapter or with any rule, regulation, permit or order promulgated hereunder, and for any relief or remedies authorized in this chapter. The director shall not be required to initiate or prosecute an administrative action before the attorney general may commence and prosecute a civil enforcement action. In addition, the attorney general may delegate this authority regarding civil enforcement actions to the prosecuting attorney of the county where a civil enforcement action may arise.
(B) ACTIONS AGAINST GUARANTORS. If the owner or operator is in bankruptcy, reorganization or other arrangement pursuant to the federal bankruptcy code, or where jurisdiction cannot be obtained over an owner or operator likely to be solvent at the time of judgment, an action may be brought directly against a guarantor of financial responsibility by the state or any injured party for any claim arising from conduct for which guarantees of financial responsibility have been made. The guarantor may invoke all rights and defenses which would have been available to the owner or operator and all rights and defenses normally available to the guarantor.
(C) LIMITATION OF ACTION FOR ADMINISTRATIVE AND CIVIL COURT PROCEEDINGS BROUGHT UNDER THE PROVISIONS OF THIS CHAPTER. No civil or administrative proceeding may be brought to recover for a violation of this chapter or any permit, standard, regulation, condition, requirement 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.
[39-4413, added 1983, ch. 154, sec. 1, p. 425; am. 1986, ch. 148, sec. 6, p. 422; am. 1988, ch. 259, sec. 3, p. 501; am. 1989, ch. 38, sec. 1, p. 49.]
The remedies specified in this section are cumulative and nonexclusive.
(1) MONETARY PENALTIES.
(a) Any person who makes a false statement or representation in any application, label, manifest, record, report, permit or other document filed, maintained, or used for the purpose of complying with the provisions of this chapter shall be liable for a civil penalty not to exceed ten thousand dollars ($10,000) for each separate violation or for each day of a continuing violation.
(b) Any person who violates this chapter or any permit, standard, regulation, condition, requirement, compliance agreement, or order issued or promulgated pursuant to this chapter shall be liable for a civil penalty not to exceed ten thousand dollars ($10,000) for each separate violation or for each day of a continuing violation.
(c) 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, which relates to the violation or the objectives of the underlying statute which was violated, or which enhances the quality of the environment in the general geographic location where the violation occurred.
(2) ASSESSMENT OF COSTS. Any person who violates this chapter or any permit, standard, regulation, condition, requirement, compliance agreement, or order issued or promulgated pursuant to this chapter may be assessed for:
(a) The state’s costs for any nonroutine investigations, inspections, monitoring, or surveys which lead to evidence of the violation;
(b) The state’s costs, including the reasonable value of attorneys’ services, for preparing and litigating the case;
(c) The state’s costs for mitigating, removing, correcting or terminating adverse effects upon soil, air, or water quality resulting from the violation;
(d) The state’s costs for impounding, storing, and disposing of contaminated property;
(e) Compensation for damages to publicly held resources including but not limited to, land, water, recreational uses, wildlife, fish and aquatic life to restore the resource to its highest previous use;
(f) Compensation for damages to privately held resources including, but not limited to, livestock, land, water, or other personal property, and compensation for court costs allowed by statute, reasonable attorney’s fees for trial preparation and trial of the case, and all other reasonable costs of trial preparation and trial of the case;
(g) Compensation for damages to personal health and compensation for court costs allowed by statute, reasonable attorney’s fees for trial preparation and trial of the case, and all other reasonable costs of trial preparation and trial of the case;
(h) The imposition or computation of costs may take into account the seriousness of the violation and good faith efforts to comply with the law.
(3) RESTRAINING ORDERS, INJUNCTIONS AND OTHER RELIEF.
(a) Any person who violates any provision of this chapter or any permit, standard, regulation, condition, requirement, compliance agreement, or order issued or promulgated pursuant to this chapter shall be subject to a permanent or temporary injunction, restraining order, or other relief deemed appropriate. Upon a showing to the court that a violation is causing an imminent hazard to the public health, the public safety, or to the environment, the department need not allege or prove at any stage of the proceeding that long-term irreparable damage will occur should the injunction or order not be issued or that the remedy at law is inadequate.
(b) A receiver may be appointed to oversee or operate any hazardous waste facility or site which is established or operated in violation of this chapter or any standard, regulation, condition, requirement, compliance agreement, or order issued or promulgated pursuant to this chapter.
(4) PAYMENT TO HAZARDOUS WASTE EMERGENCY ACCOUNT. All moneys collected by the department pursuant to subsections (1), (2) and (3) of this section to resolve any enforcement proceeding instituted under section 39-4413, Idaho Code, shall be paid into the hazardous waste emergency account created by section 39-4417, Idaho Code.
[39-4414, added 1983, ch. 154, sec. 1, p. 427; am. 1984, ch. 157, sec. 1, p. 383; am. 1997, ch. 94, sec. 1, p. 219.]
(1) Any person who knowingly makes any false statement or representation in any application, label, manifest, record, report, permit, or other document filed, maintained or used for the purpose of complying with the provisions of this chapter shall be guilty of a misdemeanor and subject to a fine of not more than ten thousand dollars ($10,000) or to imprisonment not to exceed one (1) year, or to both, for each separate violation or for each day of a continuing violation.
(2) Any person who knowingly violates any provision of this chapter or any permit, standard, regulation, condition, requirement, compliance agreement, or order issued or promulgated pursuant to this chapter shall be guilty of a misdemeanor and subject to a fine of not more than ten thousand dollars ($10,000) or to imprisonment not to exceed one (1) year, or to both, for each separate violation or for each day of a continuing violation.
(3) An action may be commenced and prosecuted by the attorney general. The director shall not be required to initiate or prosecute an administrative or civil action before the attorney general may commence and prosecute a criminal action.
[39-4415, added 1983, ch. 154, sec. 1, p. 428; am. 1984, ch. 54, sec. 1, p. 94.]
(1) Except as provided in subsection (2) of this section, any person who has been injured or damaged by an alleged violation of any permit, standard, regulation, condition, requirement, or order which has become effective pursuant to this chapter, may commence a civil action on that person’s own behalf against any person alleged to have committed the violation. A person commencing an action under this section shall be required to file a bond or equivalent security in an amount not less than one thousand dollars ($1,000) or in conformance with the requirements of rule 65(c) of the Idaho Rules of Civil Procedure if injunctive relief is sought.
(2) No action may be commenced under subsection (1) of this section if the department has commenced and is diligently prosecuting an administrative, civil, or criminal action to require compliance with the law. Further, no action may be commenced under subsection (1) of this section unless the plaintiff has given the department sixty (60) days’ notice and substantial evidence of the violation upon which the citizens’ action is based. However, if the department commences an action in a court of the state of Idaho, any interested person may intervene as provided in rule 24(a) of the Idaho Rules of Civil Procedure.
(3) In any action under this section, the department may intervene as a matter of right.
(4) When issuing any final order in any action brought pursuant to this section, the court may award costs of litigation, including reasonable attorney and expert witness fees, to any prevailing party, whenever the court determines such an award is appropriate, except that the state of Idaho shall not be required to pay such costs in any citizen suit where the state has become a party.
(5) Nothing in this section shall restrict any right which a person, or class of persons, may have under any other statute or the common law.
[39-4416, added 1983, ch. 154, sec. 1, p. 429; am. 1993, ch. 291, sec. 7, p. 1089.]
(1) There is hereby created an account in the state treasury to be designated the hazardous waste emergency account.
(2) The account shall consist of moneys appropriated to the account by the legislature, moneys allotted to the account as a result of departmental compliance proceedings, moneys allotted to the account in a court ordered award or judgment, moneys allotted to the account in a court approved settlement, and moneys contributed to the account from other sources.
(3) Moneys in the account may be used by the director in the case of a hazardous waste emergency to pay the necessary costs of preventing, neutralizing, or mitigating any threat to the public health or safety, or to the environment caused by that emergency.
(4) The board may promulgate regulations for the withdrawal and use of funds from the account as specified in subsection (3) of this section.
(5) All moneys placed in the account are hereby perpetually appropriated to the department for the purposes described in subsection (3) of this section. All expenditures from the account shall be paid out in warrants drawn by the state controller upon presentation of the proper vouchers.
(6) Pending use, surplus moneys in the account shall be invested by the state treasurer in the same manner as provided under section 67-1210, Idaho Code. Interest earned on the investments shall be returned to the account.
[39-4417, added 1983, ch. 154, sec. 1, p. 429; am. 1994, ch. 180, sec. 74, p. 476.]
A permit for a new hazardous waste land disposal facility or site shall not be issued until the department has given ninety (90) days’ notice to the board of county commissioners of the county in which the proposed facility or site is to be located.
[39-4418, added 1983, ch. 154, sec. 1, p. 430.]
The director shall have the power and the duty to encourage cooperative activities between the department and other states for the improved management of hazardous wastes, and so far as is practical, to provide for uniform state regulations and for interstate agreements relating to hazardous waste management. The state may enter into such agreements with other states to accomplish the purposes as set out in this chapter.
[39-4419, added 1983, ch. 154, sec. 1, p. 430.]
(1) No employee of a hazardous waste generator, transporter or treatment, storage, or disposal facility or site shall be dismissed, suspended, or otherwise discriminated against because the employee testifies, provides information or otherwise assists in the enforcement or administration of the provisions of this chapter.
(2) Any employer who knowingly violates the provisions of subsection (1) of this section shall be liable for damages, costs and attorneys’ fees, in addition to any other liability or relief authorized by this chapter, by any other statute, or by the common law.
[39-4420, added 1983, ch. 154, sec. 1, p. 430.]
(1) Notwithstanding any provision of law to the contrary, no person who provides assistance or advice in mitigating or attempting to mitigate the effects of an actual or threatened leakage, seepage, or other release of hazardous waste, or in preventing, cleaning up, or disposing of or in attempting to prevent, clean up or dispose of any such leakage, seepage or other release, shall be subject to civil liabilities or penalties of any type.
(2) The immunities provided in subsection (1) of this section above shall not apply to any person:
(a) Whose act or omission caused in whole or in part such actual or threatened leakage, seepage or other release and who would otherwise be liable therefor; or
(b) Who receives compensation other than reimbursement for out-of-pocket expenses for services in rendering such assistance or advice.
(3) Nothing in section (1) above shall be construed to limit or otherwise affect the liability of any person for damages resulting from such person’s gross negligence, or from such person’s reckless, wanton, or intentional misconduct.
[39-4421, added 1983, ch. 154, sec. 1, p. 430.]
The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of remaining portions of this act.
[39-4422, added 1983, ch. 154, sec. 1, p. 431.]
(1) Notwithstanding any other provision of law to the contrary, no person shall discharge, deposit, inject, dump, spill, leak, or place any restricted hazardous waste, as defined in section 39-4403, Idaho Code, into or on any land or water at a commercial hazardous waste facility or site.
(2) The department may issue a variance from the requirements of subsection (1) of this section, if, in the judgment of the director, application of the requirements would cause undue hardship and the granting of the variance would not be harmful to the public interest or inconsistent with RCRA requirements. In issuing the variance, the director shall take into account:
(a) The long-term uncertainties associated with land disposal;
(b) The goal of managing hazardous waste in an appropriate manner in the first instance; and
(c) The persistence, toxicity, mobility, and propensity to bioaccumulate of such hazardous wastes and their hazardous constituents.
(3) (a) The board shall promulgate rules and regulations specifying those levels or methods of treatment, if any, which substantially diminish the toxicity of the waste or substantially reduce the likelihood of migration of hazardous constituents from the waste so that short-term and long-term threats to human health and the environment are minimized.
(b) If such restricted hazardous waste has been treated to the level or by a method specified in regulations promulgated under this subsection, such waste or residue thereof shall not be subject to the prohibition in subsection (1) of this section and may be disposed of in a land disposal facility which meets the requirements of this chapter.
[39-4423, added 1986, ch. 324, sec. 2, p. 797.]
Manifested waste, as that term is defined in section 39-4403, Idaho Code, shall only be treated, stored or disposed of in this state at a permitted hazardous waste treatment, storage or disposal facility unless the burning of such manifested waste to produce heat is otherwise lawful.
[39-4424, added 1989, ch. 253, sec. 2, p. 628.]
(1) The department of environmental quality shall assign a sufficient number of employees and equipment to inspect hazardous waste facilities or sites permitted under section 39-4409, Idaho Code, and located in Idaho where disposal of hazardous waste occurs for the purpose of assuring the protection of the health and safety of the public by monitoring the receipt and handling of hazardous wastes which have been transported by common carrier.
(2) All employees of the department designated pursuant to subsection (1) of this section shall alert proper authorities or peace officers regarding violations pursuant to this chapter, violations pursuant to title 49, Idaho Code, and violations to any rules issued pursuant to section 67-2901A, Idaho Code.
(3) All actions brought for violations of the provisions of this chapter or rules promulgated pursuant thereto shall be brought as provided for in this chapter. All actions brought for violations of the provisions of title 49, Idaho Code, shall be brought as provided in that title.
[39-4426, added 1984, ch. 205, sec. 4, p. 507; am. 1986, ch. 231, sec. 3, p. 630; am. 1988, ch. 265, sec. 569, p. 868; am. 1999, ch. 383, sec. 1, p. 1053; am. 2001, ch. 103, sec. 46, p. 290.]
(1) There is imposed on the owner or operator of every commercial hazardous waste disposal facility or site permitted under section 39-4409, Idaho Code, the lowest applicable fee for each ton of waste or fraction thereof, as follows:
(a) Thirty dollars ($30.00) per gate ton or fraction thereof for all hazardous wastes as defined by RCRA or section 39-4407, Idaho Code;
(b) Twenty-five dollars ($25.00) per gate ton or fraction thereof for all manifested wastes not otherwise defined in this subsection;
(c) Two dollars ($2.00) per gate ton or fraction thereof for all manifested remediation wastes not otherwise defined in this subsection;
(d) Twenty dollars ($20.00) per gate ton or fraction thereof for the first two thousand five hundred (2,500) gate tons or less of wastes received by a facility or site from the same site, property or hazardous waste management unit if the wastes: (i) are PCBs regulated under Idaho or federal law and are in concentrations greater than fifty (50) parts per million; (ii) are hazardous debris; (iii) are hazardous wastes that become subject to regulation solely as a result of a removal or remedial action taken in response to environmental contamination; or (iv) are hazardous wastes that result from corrective action or closure of a regulated or nonregulated hazardous waste management unit;
(e) Ten dollars ($10.00) per gate ton or fraction thereof for all wastes contained in paragraph (d) of this subsection, if the wastes are received by the same facility or site and are from the same site, property or hazardous waste management unit in an amount greater than two thousand five hundred (2,500) gate tons up to twelve thousand five hundred (12,500) gate tons;
(f) Five dollars ($5.00) per gate ton or fraction thereof for all wastes contained in paragraph (d) of this subsection, if the wastes are received by the same facility or site and are from the same site, property or hazardous waste management unit in an amount greater than twelve thousand five hundred (12,500) gate tons up to twenty-five thousand (25,000) gate tons;
(g) Two dollars and fifty cents ($2.50) per gate ton or fraction thereof for all wastes contained in paragraph (d) of this subsection, if the wastes are received by the same facility or site and are from the same site, property or hazardous waste management unit in an amount greater than twenty-five thousand (25,000) gate tons;
(h) Five dollars ($5.00) per gate ton or fraction thereof for all hazardous wastes that: (i) are delisted or treated so that the wastes are no longer hazardous wastes; or (ii) are nonhazardous radiologically contaminated wastes including materials from the "Formerly Utilized Sites Remedial Action Program (FUSRAP)" sites administered by the government of the United States; or (iii) are PCBs in concentrations less than fifty (50) parts per million and not otherwise regulated by Idaho or federal law; or (iv) are wastes not otherwise defined in this subsection.
(2) The fees set forth in subsection (1) of this section shall not apply to any of the following types of wastes:
(a) Wastes generated or disposed of by a public agency or other person operating a household hazardous waste collection program;
(b) Wastes generated or disposed of by any agency of the state of Idaho.
Any waste for which the fees are waived under the provisions of this section must be noted as fee-waived waste on the return required in section 39-4428, Idaho Code, and is subject to all audit provisions of section 39-4429, Idaho Code.
(3) For wastes disposed of by any agency of the state of Idaho at any commercial hazardous waste disposal facility or site permitted under section 39-4409, Idaho Code, the director, pursuant to a written agreement with the director, the owner or operator of any such facility or site, may credit on the return required in section 39-4428, Idaho Code, and in the fee remitted, an amount equal to the actual cost charged by such owner or operator per gate ton or fraction thereof for the characterization, collection, identification, transportation, treatment, storage and disposal of wastes at such facility or site.
[(39-4427) (39-4427A), added 1984, ch. 205, sec. 5, p. 507; am. 1992, ch. 251, sec. 1, p. 736; am. 1993, ch. 291, sec. 8, p. 1090; am. 1994, ch. 419, sec. 2, p. 1312; am. 1995, ch. 127, sec. 1, p. 560; am. 1997, ch. 313, sec. 2, p. 927; am. & redesig. 1998, ch. 229, sec. 1, p. 779; am. and redesig. 1999, ch. 290, sec. 2, p. 718; am. 2001, ch. 297, sec. 2, p. 1073; am. 2002, ch. 176, sec. 1, p. 522; am. 2004, ch. 117, sec. 1, p. 391.]
(1) The fees imposed under section 39-4427, Idaho Code, shall be due and payable in monthly installments by the owner, agent, employee, or operator of such hazardous waste facility or site and remittance shall be made to the Idaho department of environmental quality on or before the fifteenth day of the month next succeeding the end of the monthly period in which the fee accrued. The owner, operator or designated employee or agent of the hazardous waste facility or site, on or before the fifteenth day of the month, shall make out a return, upon such forms setting forth such information as the department may require, showing the amount of the fee for which the owner or operator of the hazardous waste facility or site is liable for the preceding monthly period, and shall sign and transmit the same to the department, together with a remittance for such amount in the form required.
(2) The department may relieve any person or class of persons from the obligation of filing monthly returns and may require the return to cover other reporting periods, but in no event shall returns be filed for a period greater than three (3) months.
[39-4428, added 1984, ch. 205, sec. 6, p. 508; am. 1998, ch. 229, sec. 5, p. 781; am. 1999, ch. 290, sec. 3, p. 719; am. 2001, ch. 103, sec. 47, p. 291.]
Every person or entity subject to the imposition of the fees specified in section 39-4427, Idaho Code, shall keep complete and accurate records, including itemized invoices and manifests for federally regulated types and quantities of hazardous waste ultimately disposed of at a hazardous waste facility or site in Idaho. All books, documents and papers, computer tapes, discs, and other records required to be kept by this section shall be preserved for a period of at least five (5) years from the date of the records or the date of the entries appearing in the records, unless the department in writing authorized their destruction or disposal at an earlier date. For purposes of this chapter, at any time during usual business hours, the department or duly authorized agents or employees may enter any place of business of the owner or operator of a hazardous waste facility or site where hazardous wastes are disposed and inspect the premises, the records required to be kept under this chapter, and the hazardous wastes or other chemicals contained therein to determine whether or not all the applicable provisions of sections 39-4427 and 39-4428, Idaho Code, are being fully complied with. Trade secret information obtained by the department under the provisions of this section shall be treated in the same manner as such information obtained under section 39-4411, Idaho Code. If the department or any of its authorized agents or employees is unreasonably denied free access or is unreasonably hindered or interfered with in making the examination of a hazardous waste facility or site, that hindrance or interference shall constitute grounds for suspension or revocation of the facility’s or the site’s permit by the director of the department of environmental quality under subsection (A)(2) of section 39-4413, Idaho Code.
[39-4429, added 1984, ch. 205, sec. 7, p. 508; am. 1998, ch. 229, sec. 6, p. 781; am. 1999, ch. 290, sec. 4, p. 720; am. 2001, ch. 103, sec. 48, p. 291; am. 2021, ch. 321, sec. 19, p. 964.]
The additions, penalties, and requirements provided by the Idaho income tax act, sections 63-3046, 63-3075, 63-3076 and 63-3077, Idaho Code, as they now exist or as they may be subsequently amended, shall apply in the same manner and to the same extent to this act as to the Idaho income tax act and shall cover such additions, penalties and requirements and shall, for this purpose, be described and be for acts, omissions, delinquencies, and requirements under this chapter.
[39-4430, added 1984, ch. 205, sec. 8, p. 509.]
(1) The collection and enforcement procedures available to the Idaho state tax commission provided by the Idaho income tax act, sections 63-3030A, 63-3038, 63-3039, 63-3040, 63-3042 through 63-3045A, 63-3047 through 63-3065A, 63-3068, 63-3071, 63-3072, 63-3073 and 63-3078, Idaho Code, as they now exist or as they may subsequently be amended, shall apply and be available to the department of environmental quality for the enforcement of the commercial disposal fee and for the assessment and collection of any amounts due thereunder. Said sections shall, for the aforementioned purposes, be considered part of this chapter and wherever liens or any other proceedings are defined as income tax liens or proceedings, they shall, when applied in enforcement or collection under this chapter, be described as commercial disposal fee liens and proceedings.
(2) The department of environmental quality may be made a party defendant in any action at law or in equity by any person aggrieved by the unlawful seizure or sale of his property, or in any suit for refund or to recover an overpayment, but only the state of Idaho shall be responsible for any final judgment secured against the department of environmental quality and said judgment shall be paid or satisfied out of the general fund of the state.
[39-4431, added 1984, ch. 205, sec. 9, p. 509; am. 1997, ch. 313, sec. 3, p. 928; am. 1999, ch. 290, sec. 5, p. 720; am. 2001, ch. 103, sec. 49, p. 292; am. 2015, ch. 244, sec. 23, p. 1021.]
The revenues received from the commercial disposal fees imposed by this chapter and any penalties, interest, or deficiency additions, shall be paid over to the state treasurer by the department to be distributed periodically but no less frequently than quarterly as follows:
(1) An amount equal to ninety-five percent (95%) shall be remitted to the general fund of the state, which percentage shall be reduced to ninety-three percent (93%) in fiscal year 2013, to ninety-one percent (91%) in fiscal year 2014, to eighty-five percent (85%) in fiscal year 2015, and shall remain at eighty-five percent (85%) for each fiscal year thereafter; and
(2) An amount equal to five percent (5%) shall be remitted to the county treasurer of the county where the activity occurred which caused the fees to be assessed pursuant to this chapter. Moneys returned to the county shall be utilized by the county to respond to health and environmental problems which may be caused by hazardous waste emergencies or spills, or improperly handled or packaged hazardous waste; and
(3) An amount equal to one percent (1%) in fiscal year 2013, an amount equal to two percent (2%) in fiscal year 2014, and an amount equal to five percent (5%) in fiscal year 2015, and an amount equal to five percent (5%) for each fiscal year thereafter shall be remitted to the treasurer of a county highway district created pursuant to chapter 13, title 40, Idaho Code, to maintain a road under the jurisdiction of such district that connects a rail transfer facility to a commercial hazardous waste facility affiliated with such rail transfer facility. The use of the moneys provided for in this subsection shall be used only for the maintenance, construction and repair of the road described in this subsection; and
(4) An amount equal to one percent (1%) in fiscal year 2013, an amount equal to two percent (2%) in fiscal year 2014, and an amount equal to five percent (5%) in fiscal year 2015, and an amount equal to five percent (5%) for each fiscal year thereafter shall be remitted to the state highway account established in section 40-702, Idaho Code, such amount to be utilized by the Idaho transportation department to maintain a road or roads under the state board of transportation’s jurisdiction that connects a rail transfer facility to a commercial hazardous waste facility affiliated with such rail transfer facility. The use of the moneys provided for in this subsection shall be used only for the maintenance, construction and repair of the road described in this subsection.
[39-4432, added 1984, ch. 205, sec. 10, p. 510; am. 1989, ch. 419, sec. 1, p. 1023; am. 1997, ch. 313, sec. 4, p. 928; am. 1998, ch. 229, sec. 7, p. 782; am. 1999, ch. 290, sec. 6, p. 721; am. 2012, ch. 304, sec. 1, p. 843.]
(1) No person shall commence construction of or undertake any major modification of a commercial hazardous waste facility or any on-site land disposal facility for wastes listed in section 201(d)(2) and (e), as modified by section 209 of the hazardous and solid waste amendments of 1984, without a siting license issued by the director.
(2) A permit shall not be issued pursuant to section 39-4409, Idaho Code, unless the applicant has been issued a site license by the director.
(3) The owner or operator of the facility or site, rather than a contractor or other third-party agent thereof, shall be responsible for obtaining the siting license.
(4) Facilities exempted from permitting pursuant to the provisions of section 39-4409, Idaho Code, shall not require a license under the provisions of this chapter.
(5) The director may exempt a facility from the requirement to obtain a siting license if the director determines that the exemption is in the public interest and is consistent with state and federal law.
(6) A hazardous waste facility that was in existence on July 1, 1985, shall not be subject to the provisions of this chapter unless a major modification is being proposed to such facility.
[39-4433, added 2026, ch. 89, sec. 9, p. 470.]
(1) An application for a siting license shall include:
(a) The name and address of the applicant;
(b) The location or proposed location of the hazardous waste facility;
(c) Engineering or hydrogeologic information demonstrating compliance with the technical criteria required by section 39-4435, Idaho Code, if applicable;
(d) A description of the types of activities and wastes that are proposed to be handled at the facility;
(e) Information showing that harm to scenic, historic, cultural, or recreational values is not substantial or that it can be mitigated;
(f) Information showing that the risk and impact of accident during transport of hazardous waste is not substantial or that it can be mitigated;
(g) Information showing that the impact on local government is not adverse regarding health, safety, cost, and consistency with local planning and existing development or that it can be mitigated; and
(h) The fee required by this section.
(2) The director shall establish a sliding fee scale for determining the requisite siting license application fee.
(a) The scale shall be based on the cost to the department for reviewing the siting license application and various site-specific characteristics, including the site size, projected waste volume, and hydrogeologic characteristics surrounding the site.
(b) The fee shall not exceed seven thousand five hundred dollars ($7,500).
(c) Fees received pursuant to this section may be expended by the director to pay the actual, reasonable, and necessary costs incurred by the department in acting on a siting license application.
(3) The director may promulgate rules, subject to legislative approval and in compliance with chapter 52, title 67, Idaho Code, to implement and administer the provisions of this section.
[39-4434, added 2026, ch. 89, sec. 10, p. 470.]
(1) A new hazardous waste facility shall not be sited:
(a) Where:
(i) The seasonal high depth of ground water, beneath the proposed site, is less than one hundred (100) feet below the lowest point of disposal. Perched saturated zones may be exempt from exclusionary criteria if it can be demonstrated that the saturated zone has no economic or consumptive usable purpose;
(ii) The thickness of fine-grained unconsolidated sediments above the water table is less than twenty-five (25) feet; or
(iii) The depth to fractured rock is less than one hundred (100) feet below the lowest point of disposal; or
(b) Within:
(i) Two thousand five hundred (2,500) feet of surface water bodies;
(ii) One thousand (1,000) feet of existing public, private, or irrigation water supply wells, unless it can be demonstrated that natural hydrogeologic barriers isolate the site location from the aquifer;
(iii) A five hundred (500) year floodplain;
(iv) Areas that are in close proximity to active fault zones or other tectonically active or unstable areas; or
(v) Areas overlying any subsurface mining.
(2) A new hazardous waste disposal or incineration facility shall not be sited within:
(a) Five thousand (5,000) feet of any off-site residential structure that is routinely occupied at least eight (8) hours per day;
(b) Three (3) miles of schools, airports, hospitals, or churches; or
(c) Three (3) miles from a population center greater than one hundred fifty (150) people.
(3) Incineration facilities may not be located in a class I area designated in accordance with section 162 or 164 of the federal clean air act.
(4) An area of at least five hundred (500) feet surrounding the active disposal location portion of the site shall be provided as an inactive buffer zone.
[39-4435, added 2026, ch. 89, sec. 11, p. 471.]
(1) Within forty-five (45) days of receiving an application, the director shall determine whether the application is complete and complies with the technical criteria required by section 39-4435, Idaho Code, if applicable. If the application is not complete, the director shall notify the applicant in writing and identify the deficiencies.
(2) Once the director determines an application is complete, the director shall:
(a) Notify the applicant of such determination;
(b) Establish a site review panel pursuant to section 39-4437, Idaho Code;
(c) Notify the city and county in which the hazardous waste facility is or is proposed to be located, the state fire marshal, the director of the department of fish and game, the director of the Idaho state police, the relevant divisions within the department, and other appropriate state and federal agencies. The notice shall describe the review process and expected schedule based on the complexity of the application; and
(d) Publish a notice that an application has been received by the department in a newspaper of general circulation in the county and immediate vicinity of the hazardous waste facility or proposed facility. The notice shall include:
(i) A map indicating the location or proposed location of the hazardous waste facility;
(ii) A description of the proposed action;
(iii) A brief description of the review, participation, and approval process by which the application may be approved and a siting license may be granted; and
(iv) The location where the complete application package may be reviewed.
(3) Upon official establishment of the panel, as provided for by section 39-4437, Idaho Code, the director shall:
(a) Submit such information as the panel may require to conduct its review and provide its recommendation to the director;
(b) Within sixty-five (65) days, submit preliminary findings that recommend approval or rejection of the application and, if approval is recommended, contain preliminary conditions for the license to ensure the facility’s compliance with applicable law, which may be more stringent than such provisions; and
(c) Make department staff available to assist the panel in carrying out its duties.
(4) Within thirty (30) days of receiving the panel’s recommendation pursuant to section 39-4438, Idaho Code, the director shall make a final decision on the application. The director shall approve the application and issue a siting license, with appropriate conditions, if any, if the director determines that:
(a) The technical criteria required by section 39-4435, Idaho Code, are met, if applicable;
(b) The harm to scenic, historic, cultural, or recreational values is not substantial or that it can be mitigated by appropriate license conditions;
(c) The risk and impact of accident during transportation of hazardous waste is not substantial or that it can be mitigated with appropriate license conditions;
(d) The impact on local government is not adverse regarding health, safety, cost, and consistency with local planning and existing development or that it can be mitigated with appropriate license conditions; and
(e) No other major concerns have been raised by the panel regarding public health or the environment that cannot be mitigated by special license conditions.
(5) Any person aggrieved by a decision of the director pursuant to this chapter may, within twenty-eight (28) days and after all of this chapter’s remedies have been exhausted, seek judicial review pursuant to chapter 52, title 67, Idaho Code.
[39-4436, added 2026, ch. 89, sec. 12, p. 472.]
(1) A site review panel shall be established pursuant to this section to review each siting license application received by the department, ensure public input and involvement in the application and licensing process, and provide recommendations to the director regarding the director’s final decision.
(2)(a) The panel shall consist of ten (10) members to be appointed as follows:
(i) One (1) member shall be the director or the director’s authorized representative;
(ii) One (1) member shall be the director of the Idaho transportation department or the director’s authorized representative;
(iii) One (1) member shall be the director of the Idaho department of water resources or the director’s authorized representative;
(iv) Three (3) members shall be public members appointed by the director. Of such members, one (1) shall be a geologist or hydrologist, one (1) an engineer, and one (1) a representative of industries that generate hazardous waste;
(v) Two (2) members shall be appointed by the city council of the city located closest to or in which the hazardous waste facility is located or is proposed to be located. At least one (1) of such members shall be an actual resident of the city; and
(vi) Two (2) members shall be appointed by the board of commissioners of the county in which the facility is located or is proposed to be located. Both members shall be actual residents of the county.
(b) The director or the member appointed as the director’s representative shall be the chair of each panel established pursuant to this section. The chair shall be a nonvoting member of the panel except when the chair’s vote is necessary to break an otherwise tied vote.
(c) Six (6) of the ten (10) members shall constitute a quorum for the purposes of conducting business and executing the panel’s duties.
(d) Members of the panel who are not state employees shall be entitled to receive reimbursement as provided in section 59-509(b), Idaho Code.
(e) All meetings of the panel shall be conducted pursuant to the state open meetings law, chapter 2, title 74, Idaho Code.
(3)(a) Once the director determines an application is complete, the director shall:
(i) Appoint the three (3) public members of the panel;
(ii) Notify the director of the department of transportation and the director of the department of water resources of the application and of their obligation to serve, or appoint a representative to serve, on the panel; and
(iii) Notify the appropriate city council and board of county commissioners of the application and instruct them to appoint the necessary representatives to the panel.
(b) Within thirty (30) days of the director’s notification, the required appointments shall be made and the director of the department of transportation, the director of the department of water resources, the city council, and the board of county commissioners shall notify the director of their respective selections.
[39-4437, added 2026, ch. 89, sec. 13, p. 473.]
(1) The panel’s primary responsibility shall be to consider the concerns and objections submitted by the public. The panel shall facilitate efforts to provide that the concerns and objections are mitigated by proposing additional conditions for licensure to the director. Such conditions may, among other objectives:
(a) Integrate the provisions of the city or county ordinances, permits, or requirements; and
(b) Include measures to mitigate public concerns for:
(i) The establishment or major modification of a hazardous waste facility; and
(ii) On-site disposal of wastes listed in section 201(d)(2) and (e) as modified by section 209 of the hazardous and solid waste amendments of 1984.
(2) Within thirty (30) days of the panel’s official establishment, the panel shall conduct its first meeting where it shall:
(a) Establish a timetable for the review of an application, public participation in the process, and submission of a recommendation to the director; and
(b) Set a date for a public hearing. Notice of the hearing shall be published at least thirty (30) days before such hearing. Such notice shall be published in a newspaper of general circulation in the county and immediate vicinity of the facility or proposed facility. The notice shall include:
(i) A map indicating the location or proposed location of the hazardous waste facility;
(ii) A description of the proposed action;
(iii) Information regarding the time, place, and location of the public hearing;
(iv) Information on how to submit public comment; and
(v) The location where the complete application package may be reviewed.
(3) The panel shall accept written comment for at least thirty (30) days prior to the public hearing and shall continue to accept written comment for fifteen (15) days after the public hearing date. Oral comment shall be provided for by the panel at the public hearing.
(4) When reviewing an application, the panel shall, among other things, consider:
(a) The risk and impact of accident during the transportation of hazardous waste;
(b) The risk of fires or explosions from improper treatment, storage, or disposal methods;
(c) The impact on local units of government in terms of health, safety, and cost;
(d) Whether the application is consistent with local planning and existing development;
(e) City and county ordinances, permits, or other requirements and their potential relationship to the proposed hazardous waste facility;
(f) The nature of the probable environmental impact;
(g) What conditions, if any, would eliminate or mitigate concerns, risks, and impacts;
(h) The director’s preliminary recommendation and associated conditions, if any such conditions are provided; and
(i) The public comment received.
(5) Within thirty (30) days of the end of the public comment period, the panel shall submit its recommendation to the director. The panel shall recommend that the application be approved and the license be issued or that the application and license be denied.
(a) If the panel recommends approval, it shall include recommended conditions, which may be the same as, different than, or in addition to the preliminary conditions submitted by the director. If such conditions are different or additional conditions, the panel shall provide a statement explaining the need for the condition.
(b) If the panel recommends denial, the panel shall provide a statement explaining the reasons for its recommended denial.
[39-4438, added 2026, ch. 89, sec. 14, p. 474.]
An ordinance, permit requirement, or other requirement of a city or county shall not prohibit the construction of a hazardous waste facility in that city or county.
[39-4439, added 2026, ch. 89, sec. 15, p. 475.]
(1) The director may certify a city, county, or health district to administer and enforce portions of this chapter to the extent consistent with maintaining authorization of the state’s hazardous waste management program pursuant to chapter 44, title 31, Idaho Code.
(2) The director may rescind certification upon the request of the certified city, county, or health district or after reasonable notice and hearing if the director finds that a city, county, or health district is not administering and enforcing the provisions of this chapter as required.
(3) Certification procedures may be established by rule, subject to legislative approval.
[39-4440, added 2026, ch. 89, sec. 16, p. 475.]
(1) Before construction of a hazardous waste facility, but in no case later than nine (9) months after approval of a site license for such facility, any owner or user of real property adversely affected by approval may bring an action in a district court of competent jurisdiction against the owner of the proposed facility.
(2) If a court determines that the planned construction and operation of the facility will result in the devaluation of the plaintiff’s property or will otherwise interfere with the plaintiff’s rights in the property, the court shall order the facility’s owner to compensate the plaintiff in an amount equal to the value of the plaintiff’s loss.
(3) The remedy provided by this section shall be in addition to other remedies provided by law for property owners or users aggrieved by the proposed construction and operation of a hazardous waste facility.
(4) Nothing in this chapter shall prevent a property owner or user aggrieved by the construction and operation of a facility from seeking damages that result from a subsequent modification of the design or operation of the facility, but such damages are limited to the incremental damage that results from such modification. Any action for such damages under this section shall be brought within nine (9) months after the siting license for modification of the design or operation of the facility is approved.
(5) For the purpose of assessing damages, the value of the rights affected shall be fixed at the date the siting license is approved and the actual value of the right at that date shall be the basis for the determination of the amount of damage suffered, and no improvements to the property subsequent to the date of approval of the plans shall be included in the assessment of damages. For any subsequent modification of a facility, the value is fixed at the date of approval of the siting license.
(6) The owner or operator of a proposed facility may at any time before an award of damages abandon the construction or operation of the facility or any modification thereof and cause the action to be dismissed. As a condition of dismissal, the facility’s owner or operator shall compensate the plaintiff for any actual damage sustained as a result of construction or operation of the facility before abandonment together with court costs and reasonable attorney’s fees.
(7) Nothing in this chapter shall prevent a court from enjoining any activity at a hazardous waste facility that is outside of, or not in compliance with, the terms and conditions of an approved hazardous waste operations permit issued pursuant to section 39-4409, Idaho Code.
[39-4441, added 2026, ch. 89, sec. 17, p. 476.]
(1) The primary purposes of this chapter are:
(a) To provide and codify Idaho law concerning consent for the furnishing of hospital, medical, dental, surgical, and other health care services and concerning what constitutes an informed consent for such health care services; and
(b) To provide certainty and clarity in the law of medical consent in the furtherance of high standards of health care services and their ready availability in proper cases.
(2) Nothing in this chapter shall be deemed to amend or repeal the provisions of chapter 3 or chapter 4, title 66, Idaho Code, as those provisions pertain to hospitalization or commitment of people with mental illness or developmental disability or the powers of guardians of developmentally disabled persons, nor the provisions of chapter 6, title 18, Idaho Code, pertaining to the provision of examinations, prescriptions, devices, and informational materials regarding prevention of pregnancy or pertaining to therapeutic abortions and consent to the performance thereof.
(3) Nothing in this chapter shall be construed to permit or require the provision of health care services for a patient in contravention of the patient’s stated or implied objection thereto upon religious grounds nor shall anything in this chapter be construed to require the granting of permission for or on behalf of any patient who is not able to act for himself by his parent, spouse, or guardian in violation of the religious beliefs of the patient or the patient’s parent or spouse.
[39-4501, added 2005, ch. 120, sec. 2, p. 380; am. 2006, ch. 214, sec. 1, p. 645; am. 2007, ch. 196, sec. 1, p. 579; am. 2012, ch. 302, sec. 1, p. 825; am. 2023, ch. 307, sec. 1, p. 922.]
As used in this chapter:
(1) "Advance care planning document," "advance directive," "directive," or "health care directive" means a document that:
(a) Substantially meets the requirements of section 39-4510(1), Idaho Code;
(b) Is a POST form; or
(c) Is another document that represents a competent person’s authentic expression of such person’s wishes concerning health care services.
(2) "Advanced practice registered nurse" means a professional nurse licensed in this state who has gained additional specialized knowledge, skills, and experience through a nationally accredited program of study as defined by section 54-1402, Idaho Code, and is authorized to perform advanced nursing practice, which may include direct client care such as assessing, diagnosing, planning, and prescribing pharmacologic and nonpharmacologic therapeutic and corrective measures, health promotion, and preventive care as defined by rules of the board of nursing. An advanced practice registered nurse collaborates with other health professionals in providing health care services.
(3) "Artificial life-sustaining treatment" means any medical procedure or intervention that utilizes mechanical means to sustain or supplant a vital function. Artificial life-sustaining treatment does not include the administration of pain management medication or the performance of any medical procedure deemed necessary to provide comfort care or to alleviate pain.
(4) "Artificial nutrition and hydration" means supplying food and water through a conduit, such as a tube or intravenous line, where the recipient is not required to chew or swallow voluntarily, but does not include assisted feeding, such as spoon feeding or bottle feeding.
(5) "Attending licensed independent provider" means the licensed independent practitioner who is selected by, or assigned to, the patient and who has primary responsibility for the treatment and care of the patient.
(6) "Cardiopulmonary resuscitation" or "CPR" means measures to restore cardiac function and/or to support ventilation in the event of cardiac or respiratory arrest.
(7) "Comfort care" means treatment that may include oxygen and medicine to relieve pain and symptoms but does not include artificial life support, artificial hydration, and artificial nutrition. Comfort care may be provided in any setting.
(8) "Consent to treatment" means the agreement an individual makes to receive health care services. Consent to treatment also includes:
(a) Refusal to consent to treatment; and
(b) Consent to withholding or withdrawal of health care services.
(9) "Emergency medical services personnel" means personnel engaged in providing initial emergency medical assistance, including but not limited to first responders, emergency medical technicians, and paramedics.
(10) "Health care agent" means a person named in an advance care planning document to make medical decisions for another person.
(11) "Health care provider" or "provider" means any person or entity licensed, certified, or otherwise authorized by law to administer health care services in the ordinary course of business or practice of a profession, including emergency or other medical services personnel.
(12) "Health care services" means services for the diagnosis, prevention, treatment, cure, or relief of a health condition, illness, injury, or disease. Health care services may include hospital, medical, dental, surgical, or other services.
(13) "Licensed independent practitioner" means:
(a) An individual licensed as a physician or physician assistant pursuant to chapter 18, title 54, Idaho Code; or
(b) A person licensed as an advanced practice registered nurse pursuant to chapter 14, title 54, Idaho Code.
(14) "Nonbeneficial medical treatment" means treatment:
(a) For a patient whose death, according to the reasonable medical judgment of a licensed independent practitioner, is imminent within hours or a few days regardless of whether the treatment is provided; or
(b) That, according to the reasonable medical judgment of a licensed independent practitioner, will not benefit the patient’s condition.
(15) "Persistent vegetative state" means a condition in which a patient:
(a) Is in a state of partial arousal rather than true awareness;
(b) Is completely unresponsive to psychological or physical stimuli; and
(c) Displays no sign of higher brain function.
(16) "Physician" shall have the same meaning as provided in section 54-1803, Idaho Code.
(17) "Physician assistant" shall have the same meaning as provided in section 54-1803, Idaho Code.
(18) "POST form" means a form that satisfies the requirements of section 39-4512A, Idaho Code.
(19) "POST identification device" means jewelry worn around the wrist, neck, or ankle representing that the wearer has a POST form complying with section 39-4512A, Idaho Code, and that such person has chosen "Do Not Resuscitate: Allow Natural Death (No Code/DNR/DNAR): No CPR or advanced cardiac life support interventions" or the equivalent choice.
(20) "Surrogate decision-maker" means the person authorized to consent to or refuse health care services for another person as specified in section 39-4504(1), Idaho Code.
[39-4502, added 2007, ch. 196, sec. 2, p. 580; am. 2012, ch. 302, sec. 2, p. 826; am. 2023, ch. 12, sec. 4, p. 50; am. 2023, ch. 307, sec. 2, p. 922; am. 2024, ch. 16, sec. 14, p. 148.]
Any person, including one who is developmentally disabled and not a respondent as defined in section 66-402, Idaho Code, who comprehends the need for, the nature of, and the significant risks ordinarily inherent in any contemplated health care services is competent to consent thereto on his or her own behalf. Any health care provider may provide such health care services in reliance upon such a consent.
[(39-4503) 39-4502, added 2005, ch. 120, sec. 2, p. 381; am. and redesig. 2007, ch. 196, sec. 3, p. 581; am. 2012, ch. 302, sec. 3, p. 827; am. 2017, ch. 273, sec. 1, p. 713; am. 2023, ch. 307, sec. 3, p. 924.]
(1) Consent for the furnishing of health care services to any person who is not then capable of giving such consent as provided in this chapter or who is a minor may be given or refused in the order of priority set forth hereafter; provided however, that the surrogate decision-maker shall have sufficient comprehension as required to consent to his or her own health care services pursuant to the provisions of section 39-4503, Idaho Code; and provided further that the surrogate decision-maker shall not have authority to consent to or refuse health care services contrary to such person’s advance care planning document or wishes expressed by such person while the person was capable of consenting to his or her own health care services:
(a) The court-appointed guardian of such person;
(b) The person named in another person’s advance care planning document as the health care agent of such person pursuant to section 39-4510, Idaho Code, or a similar document authorized by this chapter if the conditions in such advance care planning document for authorizing the agent to act have been satisfied;
(c) If married, the spouse of such person;
(d) An adult child of such person;
(e) A parent of such person;
(f) The person named in a delegation of parental authority executed pursuant to section 15-5-104, Idaho Code;
(g) Any relative of such person;
(h) Any other competent individual representing himself or herself to be responsible for the health care of such person; or
(i) If the person presents a medical emergency or there is a substantial likelihood of his or her life or health being seriously endangered by withholding or delay in the rendering of health care services to such person and the person has not communicated and is unable to communicate his or her wishes, the attending health care provider may, in his or her discretion, authorize or provide such health care services, as he or she deems appropriate, and all persons, agencies, and institutions thereafter furnishing the same, including such health care provider, may proceed as if informed valid consent therefor had been otherwise duly given.
(2) No person who, in good faith, gives consent or authorization for the provision of health care services to another person as provided by this chapter shall be subject to civil liability therefor.
(3) No health care provider who, in good faith, obtains consent from a person pursuant to either section 39-4503 or 39-4504(1), Idaho Code, shall be subject to civil liability therefor.
Persons who may give consent to care for others. [effective January 1, 2027]
(1) Consent for the furnishing of health care services to any person who is not then capable of giving such consent as provided in this chapter or who is a minor may be given or refused in the order of priority set forth hereafter; provided however, that the surrogate decision-maker shall have sufficient comprehension as required to consent to his or her own health care services pursuant to the provisions of section 39-4503, Idaho Code; and provided further that the surrogate decision-maker shall not have authority to consent to or refuse health care services contrary to such person’s advance care planning document or wishes expressed by such person while the person was capable of consenting to his or her own health care services:
(a) The court-appointed guardian of such person;
(b) The person named in another person’s advance care planning document as the health care agent of such person pursuant to section 39-4510, Idaho Code, or a similar document authorized by this chapter if the conditions in such advance care planning document for authorizing the agent to act have been satisfied;
(c) If married, the spouse of such person;
(d) An adult child of such person;
(e) A parent of such person;
(f) The person named in a delegation of parental authority executed pursuant to section 15-5-128, Idaho Code;
(g) Any relative of such person;
(h) Any other competent individual representing himself or herself to be responsible for the health care of such person; or
(i) If the person presents a medical emergency or there is a substantial likelihood of his or her life or health being seriously endangered by withholding or delay in the rendering of health care services to such person and the person has not communicated and is unable to communicate his or her wishes, the attending health care provider may, in his or her discretion, authorize or provide such health care services, as he or she deems appropriate, and all persons, agencies, and institutions thereafter furnishing the same, including such health care provider, may proceed as if informed valid consent therefor had been otherwise duly given.
(2) No person who, in good faith, gives consent or authorization for the provision of health care services to another person as provided by this chapter shall be subject to civil liability therefor.
(3) No health care provider who, in good faith, obtains consent from a person pursuant to either section 39-4503 or 39-4504(1), Idaho Code, shall be subject to civil liability therefor.
[(39-4504) 39-4503, added 2005, ch. 120, sec. 2, p. 381; am. and redesig. 2007, ch. 196, sec. 4, p. 581; am. 2012, ch. 302, sec. 4, p. 827; am. 2023, ch. 307, sec. 4, p. 925; am. 2026, ch. 79, sec. 26, p. 416.]
(1) A licensed independent practitioner may consent to ordering tests of a patient’s or a deceased person’s blood or other body fluids for the presence of blood-transmitted or body fluid-transmitted viruses or diseases without the prior consent of the patient if:
(a) There has been or is likely to be a significant exposure to the patient’s or a deceased person’s blood or body fluids by a person providing emergency or medical services to such patient which may result in the transmittal of a virus or disease; and
(b) The patient is unconscious or incapable of giving informed consent and the licensed independent practitioner is unable to obtain consent pursuant to section 39-4504, Idaho Code.
(2) The department of health and welfare shall promulgate rules identifying the blood-transmitted or body fluid-transmitted viruses or diseases for which blood tests or body fluid tests can be ordered under this section and defining the term "significant exposure" as provided in this section.
(3) Results of tests conducted under this section that confirm the presence of a blood-transmitted or body fluid-transmitted virus or disease shall be reported to the director of the department of health and welfare in the name of the patient or deceased person. The department records containing such test results shall be used only by public health officials who must conduct investigations. The exposed person shall only be informed of the results of the test and shall not be informed of the name of the patient or deceased person. Protocols shall be established by hospitals to maintain confidentiality while disseminating the necessary test result information to persons who may have a significant exposure to blood or other body fluids and to maintain records of such tests to preserve the confidentiality of the test results.
(4) Any person who willfully or maliciously discloses the results of a test conducted under this section, except pursuant to a written authorization by the person whose blood was tested or by such person’s authorized representative, or as otherwise authorized by law, shall be guilty of a misdemeanor.
[(39-4505) 39-4504, added 2005, ch. 120, sec. 2, p. 382; am. and redesig. 2007, ch. 196, sec. 5, p. 582; am. 2023, ch. 307, sec. 5, p. 925.]
Consent, or refusal to consent, for the furnishing of health care services shall be valid in all respects if the person giving or refusing the consent is sufficiently aware of pertinent facts respecting the need for, the nature of, and the significant risks ordinarily attendant upon such a person receiving such services, as to permit the giving or withholding of such consent to be a reasonably informed decision. Any such consent shall be deemed valid and so informed if the health care provider to whom it is given or by whom it is secured has made such disclosures and given such advice respecting pertinent facts and considerations as would ordinarily be made and given under the same or similar circumstances.
[(39-4506) 39-4505, added 2005, ch. 120, sec. 2, p. 382; am. and redesig. 2007, ch. 196, sec. 6, p. 583; am. 2012, ch. 302, sec. 5, p. 828; am. 2023, ch. 307, sec. 6, p. 926.]
It is not essential to the validity of any consent for the furnishing of health care services that the consent be in writing or any other specific form of expression; provided however, when the giving of such consent is recited or documented in writing and expressly authorizes the health care services to be furnished, and when such writing or form has been executed or initialed by a person competent to give such consent for himself or another, such written consent, in the absence of convincing proof that it was secured maliciously or by fraud, is presumed to be valid for the furnishing of such health care services, and the advice and disclosures of the attending licensed independent practitioner or dentist, as well as the level of informed awareness of the giver of such consent, shall be presumed to be sufficient.
[(39-4507) 39-4506, added 2005, ch. 120, sec. 2, p. 383; am. and redesig. 2007, ch. 196, sec. 7, p. 583; am. 2023, ch. 307, sec. 7, p. 926.]
Obtaining sufficient consent for health care services is the duty of the attending licensed independent practitioner upon whose order or at whose direction the contemplated health care services are rendered; provided however, a licensed hospital and any employee of a health care provider, acting with the approval of such an attending licensed independent practitioner or other individual health care provider, may perform the ministerial act of documenting such consent by securing the completion and execution of a form or statement in which the giving of consent for such care is documented by or on behalf of the person. In performing such a ministerial act, the hospital or health care provider employee shall not be deemed to have engaged in the practice of medicine or dentistry.
[(39-4508) 39-4507, added 2005, ch. 120, sec. 2, p. 383; am. and redesig. 2007, ch. 196, sec. 8, p. 583; am. 2012, ch. 302, sec. 6, p. 828; am. 2023, ch. 307, sec. 8, p. 927.]
For purposes of sections 39-4509 through 39-4515, Idaho Code:
(1) The legislature recognizes the established common law and the fundamental right of competent persons to control the decisions relating to the rendering of their health care, including the decision to have artificial life-sustaining treatment withheld or withdrawn. The legislature further finds that modern medical technology has made possible the artificial prolongation of human life beyond natural limits. The legislature further finds that persons are sometimes unable to express their desire to withhold or withdraw such artificial life-sustaining treatment that provides nothing medically necessary or beneficial to the person because of the person’s inability to communicate with the attending licensed independent practitioner.
(2) In recognition of the dignity and privacy that persons have a right to expect, the legislature hereby declares that the laws of this state shall recognize the right of a competent person to have his or her wishes for health care services and for the withdrawal of artificial life-sustaining treatment carried out even though that person is no longer able to communicate with the attending licensed independent practitioner.
(3) It is the intent of the legislature to establish an effective means for such communication. It is not the intent of the legislature that the procedures described in sections 39-4509 through 39-4515, Idaho Code, are the only effective means of such communication, and nothing in sections 39-4509 through 39-4515, Idaho Code, shall impair or supersede any legal right or legal responsibility that a person may have to effect the withholding or withdrawal of artificial life-sustaining treatment in any lawful manner, provided that this sentence shall not be construed to authorize any violation of section 39-4514(3), Idaho Code. Any authentic expression of a person’s wishes with respect to health care services should be honored.
(4) "Competent person" means any person who meets the requirements of section 39-4503, Idaho Code.
[(39-4509) 39-4508, added 2005, ch. 120, sec. 2, p. 383; am. and redesig. 2007, ch. 196, sec. 9, p. 584; am. 2012, ch. 302, sec. 7, p. 829; am. 2012, ch. 305, sec. 1, p. 844; am. 2023, ch. 307, sec. 9, p. 927.]
(1) Any competent person aged eighteen (18) years or older may execute an advance care planning document (ACPD). Such document must contain the mandatory elements set forth in this section. Any provisions of an ACPD that are left blank by a person executing the document shall be deemed intentional and shall not invalidate the document. The department of health and welfare may create and promulgate an optional form for the ACPD. Such form is not mandatory. To be considered a valid ACPD, a document must include:
(a) The person’s name, date of birth, telephone number, and mailing address;
(b) The signature of the person for whom the ACPD is created or the authorized agent of such person; and
(c) The date on which the document was signed.
(2) An ACPD may but is not required to include the following:
(a) The electronic mail address of the person executing the ACPD;
(b) Nomination of one (1) or more persons to act as a health care agent;
(c) The name, mailing address, electronic mail address, and telephone number of any person nominated as a health care agent, as well as such person’s relationship to the person executing the ACPD;
(d) Resuscitation instructions;
(e) Instructions regarding pregnancy;
(g) Instructions for the release of information protected by the federal health insurance portability and accountability act;
(h) Instructions for end-of-life care;
(i) A description of treatment objectives;
(j) The names and contact information of witnesses to the execution of the ACPD; and
(k) Notarization.
[39-4510, added 2023, ch. 307, sec. 11, p. 928.]
(1) An advance care planning document (ACPD) may be revoked at any time by the maker thereof by any of the following methods:
(a) By being intentionally canceled, defaced, obliterated, burned, torn, or otherwise destroyed by the maker thereof, or by some person in his presence and by his direction;
(b) By a written signed revocation by the maker thereof expressing his intent to revoke;
(c) By an oral expression by the maker thereof expressing his intent to revoke; or
(d) By any other action that clearly manifests the maker’s intent to revoke the ACPD.
(2) The maker of the revoked ACPD is responsible for notifying his health care providers of the revocation. A health care provider who does not have actual knowledge of the revocation is entitled to rely on an otherwise apparently valid ACPD as though it had not been revoked.
(3) There shall be no criminal or civil liability on the part of any person for the failure to act upon a revocation of an ACPD made pursuant to this chapter unless that person has actual knowledge of the revocation.
[(39-4511A) 39-4511, added 2005, ch. 120, sec. 2, p. 389; am. 2006, ch. 67, sec. 4, p. 208; am. 2007, ch. 196, sec. 12, p. 590; am. and redesig. 2012, ch. 302, sec. 9, p. 834; am. 2017, ch. 273, sec. 2, p. 714; am. 2023, ch. 307, sec. 12, p. 928.]
(1) An advance care planning document (ACPD) may be suspended at any time by the maker thereof by any of the following methods:
(a) By a written signed suspension by the maker thereof expressing his intent to suspend;
(b) By an oral expression by the maker thereof expressing his intent to suspend; or
(c) By any other action that clearly manifests the maker’s intent to suspend the ACPD.
(2) A health care provider who does not have actual knowledge of the suspension is entitled to rely on an otherwise apparently valid ACPD as though it had not been suspended.
(3) There shall be no criminal or civil liability on the part of any person for the failure to act upon a suspension of an ACPD made pursuant to this chapter unless that person has actual knowledge of the suspension.
(4) Upon meeting the termination terms of the suspension, if any, as defined by the written or oral expression by the maker, the conditions set forth in the ACPD will resume.
[39-4511B, added 2012, ch. 302, sec. 10, p. 834; am. 2017, ch. 273, sec. 3, p. 714; am. 2023, ch. 307, sec. 13, p. 929.]
An advance care planning document shall be effective from the date of execution until it is revoked or replaced. Nothing in this chapter shall be construed to prevent a competent person from reexecuting an advance care planning document at any time.
[39-4512, added 2005, ch. 120, sec. 2, p. 389; am. 2023, ch. 307, sec. 14, p. 929.]
(1) A POST form is an order regarding scope of treatment signed by a licensed independent practitioner and a person or the person’s surrogate decision-maker, provided that the POST form shall not be contrary to the person’s last known expressed wishes or directions.
(2) The POST form shall be effective from the date of execution except while suspended or unless it is revoked.
(3) A licensed independent practitioner must, upon request of the person or the person’s surrogate decision-maker, provide the person or the person’s surrogate decision-maker with a copy of the POST form, discuss with the person or the person’s surrogate decision-maker the form’s content and ramifications and treatment options, and assist the person or the person’s surrogate decision-maker in the completion of the form.
(4) A person who has completed a POST form pursuant to the provisions of this section or for whom a POST form has been completed at the request of his or her surrogate decision-maker may wear a POST identification device as provided in section 39-4502, Idaho Code.
(5) The department of health and welfare shall develop, promulgate, and revise as needed a recommended POST form.
[39-4512A, added 2007, ch. 196, sec. 13, p. 590; am. 2012, ch. 302, sec. 11, p. 835; am. 2023, ch. 307, sec. 15, p. 929.]
(1) Health care providers shall comply with a person’s POST instruction when presented with a POST form that meets the requirements of section 39-4512A, Idaho Code, or when a person is wearing a proper POST identification device pursuant to section 39-4512A, Idaho Code.
(2) A POST form that meets the requirements of section 39-4512A, Idaho Code, is deemed to meet the requirements of "Do Not Resuscitate (DNR)" orders at all Idaho health care facilities. Health care providers shall not require the completion of other forms in order for the person’s wishes to be respected.
(3) Nothing in this chapter is intended to nor shall it prevent licensed independent practitioners from executing or utilizing DNR orders consistent with their licensure; provided however, that if the person or person’s surrogate decision-maker chooses to utilize the POST form, the licensed independent practitioner shall accept and comply with the POST form and shall not require the completion of a DNR order in addition to a valid POST form.
[39-4512B, added 2007, ch. 196, sec. 14, p. 591; am. 2012, ch. 302, sec. 12, p. 835; am. 2023, ch. 307, sec. 16, p. 930.]
Health care providers shall make reasonable efforts to inquire as to whether the patient has completed a POST form and inspect the patient for a POST identification device when presented with a situation calling for artificial life-sustaining treatment not caused by severe trauma or involving mass casualties and with no indication of homicide or suicide.
[39-4512C, added 2007, ch. 196, sec. 15, p. 591; am. 2023, ch. 307, sec. 17, p. 930.]
(1) No licensed independent practitioner, emergency medical services personnel, other health care provider, facility, or individual employed by, acting as the agent of, or under contract with any such health care provider or facility shall be civilly or criminally liable or subject to discipline for unprofessional conduct for acts or omissions carried out or performed in good faith pursuant to the directives in a facially valid advance care planning document, DNR order, or other health care directive, or pursuant to a POST identification device as provided for in section 39-4512A, Idaho Code.
(2) Any licensed independent practitioner or other health care provider who for ethical or professional reasons is unwilling to conform to the desires of the patient or the patient’s surrogate decision-maker may, subject to the requirements of section 39-4514(3), Idaho Code, withdraw without incurring any civil or criminal liability provided the licensed independent practitioner or other health care provider, before withdrawal of his or her participation, makes a good faith effort to assist the patient in obtaining the services of another licensed independent practitioner or other health care provider who is willing to provide care for the patient in accordance with the patient’s expressed or documented wishes.
(3) No person who exercises the responsibilities of a health care agent in good faith shall be subject to civil or criminal liability as a result.
(4) Neither the registration of an advance care planning document in the health care directive registry under section 39-4515, Idaho Code, nor the revocation or replacement of such an advance care planning document requires a licensed independent practitioner or other health care provider to request information from that registry. The decision of a licensed independent practitioner or other health care provider to request or not to request an advance care planning document from the registry shall be immune from civil or criminal liability. A licensed independent practitioner or other health care provider who in good faith acts in reliance on a facially valid advance care planning document received from the health care directive registry shall be immune from civil or criminal liability for those acts done in such reliance.
(5) Licensed independent practitioners and other health care providers may disregard the POST form or a POST identification device or a DNR order:
(a) If they believe in good faith that the order has been revoked;
(b) To avoid oral or physical confrontation; or
(c) If ordered to do so by a licensed independent practitioner.
[39-4513, added 2005, ch. 120, sec. 2, p. 389; am. 2006, ch. 67, sec. 5, p. 208; am. 2007, ch. 196, sec. 16, p. 591; am. 2012, ch. 302, sec. 13, p. 836; am. 2012, ch. 305, sec. 2, p. 844; am. 2023, ch. 307, sec. 18, p. 931.]
(1) Application. Except as specifically provided in this section, sections 39-4510 through 39-4512B, Idaho Code, shall have no effect or be in any manner construed to apply to persons not executing an advance care planning document or other health care directive pursuant to this chapter nor shall these sections in any manner affect the rights of any such persons or of others acting for or on behalf of such persons to give or refuse to give consent or withhold consent for any health care services; neither shall sections 39-4510 through 39-4512B, Idaho Code, be construed to affect chapter 3 or chapter 4, title 66, Idaho Code, in any manner.
(2) Euthanasia, mercy killing, or assisted suicide. This chapter does not make legal, and in no way condones, euthanasia, mercy killing, or assisted suicide or permit an affirmative or deliberate act or omission to end life, including any act or omission described in section 18-4017, Idaho Code, other than to allow the natural process of dying.
(3) Withdrawal of care. Assisted feeding or artificial nutrition and hydration may not be withdrawn or denied if its provision is directed by a competent patient in accordance with section 39-4503, Idaho Code, by a patient’s advance care planning document under section 39-4510, Idaho Code, or by a patient’s surrogate decision-maker in accordance with section 39-4504, Idaho Code. Health care services necessary to sustain life or to provide appropriate comfort for a patient other than assisted feeding or artificial nutrition and hydration may not be withdrawn or denied if its provision is directed by a competent patient in accordance with section 39-4503, Idaho Code, by a patient’s advance care planning document under section 39-4510, Idaho Code, or by a patient’s surrogate decision-maker in accordance with section 39-4504, Idaho Code, unless such care would be nonbeneficial medical treatment. Except as specifically provided in chapters 3 and 4, title 66, Idaho Code, health care services, assisted feeding, or artificial nutrition and hydration, the denial of which is directed by a competent patient in accordance with section 39-4503, Idaho Code, by a patient’s advance care planning document under section 39-4510, Idaho Code, or by a patient’s surrogate decision-maker in accordance with section 39-4504, Idaho Code, shall be withdrawn and denied in accordance with a valid advance care planning document.
(4) Comfort care. Persons caring for a person for whom artificial life-sustaining treatment or artificially administered nutrition and hydration are withheld or withdrawn shall provide comfort care as defined in section 39-4502, Idaho Code.
(5) Presumed consent to resuscitation. There is a presumption in favor of consent to cardiopulmonary resuscitation (CPR) unless:
(a) CPR is contrary to the person’s advance care planning document;
(b) The person’s surrogate decision-maker has communicated the person’s unconditional wishes not to receive CPR;
(c) The person’s surrogate decision-maker has communicated the person’s conditional wishes not to receive CPR and those conditions have been met;
(d) The person has a proper POST identification device pursuant to section 39-4502, Idaho Code; or
(e) The licensed independent practitioner has executed a DNR order.
(6) Nonbeneficial medical treatment. Nothing in this chapter shall be construed to require nonbeneficial medical treatment; provided that this subsection does not authorize any violation of subsection (3) of this section.
(7) Existing advance care planning documents. Any advance care planning document that contained the elements set forth in this chapter at the time of execution shall be deemed to be in compliance with this chapter. This section shall be liberally construed to give the effect to any authentic expression of the person’s prior wishes or directives concerning health care services.
(8) Insurance.
(a) The making of an advance care planning document or a DNR order pursuant to this chapter shall not restrict, inhibit, or impair in any manner the sale, procurement, or issuance of any policy of life insurance, nor shall it be deemed to modify the terms of an existing policy of life insurance. No policy of life insurance shall be legally impaired or invalidated in any manner by the withholding or withdrawal of artificial life-sustaining treatment from an insured person, notwithstanding any term of the policy to the contrary.
(b) No licensed independent practitioner, health care facility, or other health care provider and no health care service plan, insurer issuing disability insurance, self-insured employee plan, welfare benefit plan, or nonprofit hospital service plan shall require any person to execute an advance care planning document or a DNR order as a condition for being insured for, or receiving, health care services.
(9) Portability and copies.
(a) A POST form that meets the requirements of section 39-4512A, Idaho Code, shall be transferred with the person to, and be effective in, all care settings including but not limited to home care, ambulance or other transport, hospital, residential care facility, and hospice care. The POST form shall remain in effect until such time as there is a valid revocation or suspension pursuant to section 39-4511A, Idaho Code, or new orders are issued by a licensed independent practitioner.
(b) A photostatic, facsimile, or electronic copy of a valid POST form may be treated as an original by a licensed independent practitioner or other health care provider.
(10) Registration. An advance care planning document or the revocation or replacement of an advance care planning document meeting the requirements of this chapter may be registered with the department of health and welfare pursuant to section 39-4515, Idaho Code. Failure to register the advance care planning document shall not affect the validity of the advance care planning document.
(11) Rulemaking authority. The department of health and welfare shall adopt those rules and protocols necessary to administer the provisions of this chapter.
[39-4514, added 2005, ch. 120, sec. 2, p. 389; am. 2007, ch. 196, sec. 17, p. 592; am. 2012, ch. 302, sec. 14, p. 836; am. 2012, ch. 305, sec. 3, p. 845; am. 2013, ch. 151, sec. 1, p. 349; am. 2013, ch. 187, sec. 5, p. 450; am. 2017, ch. 273, sec. 4, p. 714; am. 2020, ch. 297, sec. 2, p. 858; am. 2023, ch. 307, sec. 19, p. 932.]
(1) The department of health and welfare shall create and maintain a health care directive registry. The health care directive registry shall be accessible through a web-based platform. The information contained in such registry shall include: the full name of the person executing the advance care planning document as stated in such document, the person’s date of birth, telephone number, and mailing address, and the date the advance care planning document was executed. The registry shall be made available twenty-four (24) hours a day, seven (7) days a week and shall incorporate advance care planning documents previously submitted to the secretary of state. A person may register with the department of health and welfare an advance care planning document or a revocation of an advance care planning document by submitting the document or revocation, completing and submitting an informational registration form as required by the department of health and welfare, and paying the department the fee that the department may require for registering an advance care planning document. The person may register either online or by submitting the registration form in the mail. The person who submits a document for registration pursuant to this section by mail shall provide a return address. The department of health and welfare may charge and collect a fee not to exceed ten dollars ($10.00) for the filing of an advance care planning document. All fees collected for the filing of an advance care planning document shall be deposited into the health care directive registry fund. No fee shall be charged for revoking an advance care planning document.
(2) The department of health and welfare and those granted access to the health care directive registry shall use information contained in the registry only for purposes prescribed in this section. No person granted access to the registry shall use the information for commercial solicitations or in any fraudulent or improper way. Any commercial solicitation or fraudulent or improper use of information contained in the registry shall constitute a violation of this section and a violation of the Idaho consumer protection act.
(3) The department of health and welfare is not required to review an advance care planning document or replacement thereof to ensure that the document complies with any applicable and statutory requirements. Entry of a document into the health care directive registry pursuant to this section does not create a presumption favoring the validity of the document.
(4) The department of health and welfare shall delete an advance care planning document and the informational registration form from the health care directive registry when the department of health and welfare receives:
(a) Written notification to remove an advance care planning document signed by the maker thereof or that person’s surrogate decision-maker; or
(b) Verification from the bureau of vital records and health statistics of the department of health and welfare that the person who executed the advance care planning document is deceased. The deletion under this paragraph shall be performed not less than once every two (2) years.
(5) Neither the department of health and welfare nor the state of Idaho shall be subject to civil liability for any claims or demands arising out of the administration or operation of the health care directive registry.
(6) There is hereby created in the state treasury the health care directive registry fund, the moneys of which shall be continuously appropriated, administered by the department of health and welfare, and used to support, promote, and maintain the health care directive registry. The fund shall consist of fees paid by persons registering advance care planning documents under this section and income from investment from the fund, gifts, grants, bequests, and other forms of voluntary donations. On notice from the department of health and welfare, the state treasurer shall invest and divest moneys in the fund, and moneys earned from such investment shall be credited to the fund.
[39-4515, added 2006, ch. 67, sec. 6, p. 209; am. 2020, ch. 297, sec. 3, p. 860; am. 2023, ch. 307, sec. 20, p. 934.]
(1) This section shall be known and may be cited as "Simon’s Law."
(2) As used in this section:
(a) "Order not to resuscitate" means a licensed independent practitioner’s order that resuscitative measures shall not be provided to a person under a licensed independent practitioner’s care in the event the person is found to have cardiopulmonary cessation. Order not to resuscitate shall include but is not limited to orders written as "do not resuscitate," "do not allow resuscitation," "do not allow resuscitative measures," "DNAR," "DNR," "allow natural death," or "AND";
(b) "Reasonable medical judgment" means a medical judgment that would be made by a reasonably prudent licensed independent practitioner who is knowledgeable about a patient’s case and the treatment possibilities with respect to the medical conditions involved; and
(c) "Unemancipated minor" means a minor who is not married or is not in active military service.
(3) An order not to resuscitate, an order to withhold artificial life-sustaining treatment, an order to withhold artificial nutrition and hydration, and a similar licensed independent practitioner’s order shall not be instituted, either orally or in writing, unless at least one (1) parent or legal guardian of an unemancipated minor who is a patient or resident of a hospital or health care facility under whose care the unemancipated minor has been admitted has first been notified of the licensed independent practitioner’s intent to institute such an order, and reasonable attempts have been made to notify any other parent or legal guardian, provided such parent or guardian is reasonably available and has custodial or visitation rights. Such notification must be provided both orally and in writing to at least one (1) parent or legal guardian of the unemancipated minor patient unless, in the licensed independent practitioner’s reasonable medical judgment, the urgency of the decision requires reliance on only providing the information orally. Such notification must also include informing the parent or legal guardian of the forty-eight (48) hour provision in subsection (5) of this section. Unless the parent or legal guardian agrees with the implementation of the following orders, an order not to resuscitate, an order to withhold artificial life-sustaining treatment, an order to withhold artificial nutrition and hydration, or a similar licensed independent practitioner’s order shall not be instituted, either orally or in writing, until at least forty-eight (48) hours after oral and written notice have been provided to at least one (1) parent or legal guardian in accordance with this section. The provision of such notification must be contemporaneously recorded in the patient’s medical record, specifying by whom and to whom the notification was given, the date and time of its provision, and whether it was provided in writing as well. When only one (1) parent or guardian has been notified, the nature of reasonable attempts to inform another parent or guardian, or the reason why such attempts were not made, must also be contemporaneously recorded in the unemancipated minor patient’s medical record.
(4) The requirements of subsection (3) of this section shall not apply after seventy-two (72) hours of diligent efforts have been made by the health care provider, without success, to contact and notify at least one (1) known parent or legal guardian of the unemancipated minor patient of the intent to implement an order not to resuscitate, an order to withhold artificial life-sustaining treatment, an order to withhold artificial nutrition and hydration, or a similar licensed independent practitioner’s order.
(5) Within forty-eight (48) hours of being notified of the intent to institute an order not to resuscitate, an order to withhold artificial life-sustaining treatment, an order to withhold artificial nutrition and hydration, or a similar licensed independent practitioner’s order according to subsection (3) of this section, a parent or legal guardian shall be entitled to request a transfer of the unemancipated minor patient or resident to another facility or discharge. If a transfer is requested by a parent or legal guardian, the hospital or health care facility under whose care the unemancipated minor is admitted must continue provision of artificial life-sustaining treatment and life-sustaining artificial nutrition and hydration for a minimum of fifteen (15) days after the transfer request has been made known and make every reasonable effort to assist the requesting parent or legal guardian in the transfer process. The hospital or health care facility’s duties and financial obligations regarding transfer shall be governed by existing state law, applicable rules or regulations, hospital policy, and relevant third-party payment contracts.
(6) If a transfer cannot be arranged and executed within fifteen (15) days from the parent’s or guardian’s request to transfer, an order not to resuscitate, an order to withhold artificial life-sustaining treatment, an order to withhold artificial nutrition and hydration, or a similar licensed independent practitioner’s order may be instituted.
(7) Nothing in this section shall be construed to limit the rights pursuant to section 39-4503, 39-4504, 39-4509, or 39-4510, Idaho Code.
[39-4516, added 2020, ch. 337, sec. 1, p. 980; am. 2023, ch. 307, sec. 21, p. 935.]
(1) A health care provider may not knowingly perform or authorize a student practicing under the provider’s authority to perform a pelvic examination on a patient who is anesthetized or unconscious unless:
(a) The patient or a person authorized to make health care decisions for the patient gave specific informed consent to the examination; or
(b) The examination is necessary for diagnostic or treatment purposes.
(2) A health care provider who violates the provisions of subsection (1) of this section is subject to discipline from the provider’s licensing board pursuant to title 54, Idaho Code.
[39-4517, added 2024, ch. 183, sec. 1, p. 670.]
This chapter shall be known and may be cited as the "Idaho Developmental Disabilities Services and Facilities Act of 1978."
[I.C., sec. 39-4601, as added by 1978, ch. 270, sec. 1, p. 624.]
It is declared to be the policy of the legislature of the state of Idaho to authorize and mandate the department of health and welfare to develop and coordinate services for developmentally disabled persons through adult and child development programs and through contracts with rehabilitation facilities. The complexities of developmental disabilities require the services of many state departments as well as those of the community. It is the intent of this chapter that the department of health and welfare will cooperate with recognized agencies, organizations and departments in implementing this chapter. Services should be planned and provided as a part of a continuum. A pattern of facilities, services and eligibility should be established which is sufficiently complete to meet the needs of each developmentally disabled person regardless of age or degree of disability, with consideration of the family.
[39-4602, added 1978, ch. 270, sec. 1, p. 624; am. 2010, ch. 235, sec. 26, p. 564.]
Persons with developmental disabilities shall have the same legal rights and responsibilities guaranteed all other persons by the constitution and laws of the United States of America and by the constitution and laws of the state of Idaho.
[39-4603, added 1978, ch. 270, sec. 1, p. 625.]
As used in this chapter:
(1) "Comprehensive developmental disability system" means a system of services including, but not limited to, the following basic services with the intention of providing alternatives to institutionalization:
(a) Evaluation services;
(b) Diagnostic services;
(c) Treatment services;
(d) Individualized developmental programs;
(e) Extended sheltered employment and work activities;
(f) Recreation services;
(g) Domiciliary care services;
(h) Special living arrangement services;
(i) Counseling services;
(j) Information and referral services;
(k) Follow-along services; and
(l) Transportation services.
(2) "Department" means the Idaho department of health and welfare.
(3) "Developmental disabilities facility" means any service or group of services which provide care to the developmentally disabled on an inpatient, outpatient, residential, clinical or other programmatic basis, including sheltered workshops and adult and child development centers.
(4) "Developmental disability" is:
(a) Attributable to an impairment, such as intellectual disability, cerebral palsy, epilepsy, autism or other condition found to be closely related to or similar to one of these impairments that requires similar treatment or services or is attributable to dyslexia resulting from such impairments;
(b) Has continued or can be expected to continue indefinitely; and
(c) Constitutes a substantial limitation to such person’s ability to function normally in society.
(5) "Habilitation" is the process of developing skills and abilities.
(6) "Normalization" is the process of providing services which promote a life as much as possible like that of the rest of the community, including living in the community and access to community resources.
(7) "Rehabilitation" is the process of improving skills or level of adjustment to increase the person’s ability to maintain satisfactory independent or dependent functioning.
(8) "Substantial limitation" is:
(a) A disability which results in substantial function limitation in three (3) or more of the following areas of major life activity:
(i) Self-care;
(ii) Receptive and expressive language;
(iii) Learning;
(iv) Mobility;
(v) Self-direction;
(vi) Capacity for independent living; or
(vii) Economic self-sufficiency; and
(b) Reflects the need for a combination and sequence of special, interdisciplinary, or generic care, treatment or other services which are:
(i) Lifelong or extended duration, and
(ii) Individually planned and coordinated.
[39-4604, added 1978, ch. 270, sec. 1, p. 625; am. 2010, ch. 235, sec. 27, p. 565.]
The department shall provide appropriate services of habilitation and rehabilitation to the eligible population of developmentally disabled, and shall consult with the state council on developmental disabilities. The department shall be the primary agency responsible for the services set forth herein, and shall:
(1) Develop and prepare an annual plan for the initiation and maintenance of developmental disabilities services authorized in this chapter. Such services shall include, but not be limited to community comprehensive developmental disability services;
(2) Initiate and provide services which shall include, but not be limited to, community comprehensive developmental disabilities services;
(3) In order to provide services, enter into agreements with any person or persons, corporation or association, approved by the department, for the contracting of all or a portion of the costs of the care, treatment, maintenance, support and training of developmentally disabled persons; and
(4) Provide technical assistance for state and local personnel working in the field of developmental disabilities under this chapter.
Any person, corporation or association may make application to the department for approval and certification of the applicant’s developmental disabilities facility. The department may either grant or deny certification or revoke certification previously granted after investigation of the applicant’s facilities, to ascertain whether or not such facilities are adequate for the health, safety and the care, treatment, maintenance, training and support of developmentally disabled persons, in accordance with standards as set forth in rules and regulations promulgated by the board of health and welfare and consistent with existing national accreditation bodies.
[39-4605, added 1978, ch. 270, sec. 1, p. 626; am. 1980, ch. 325, sec. 8, p. 830.]
Any person suspected of a developmental disability shall be eligible for initial intake and for diagnostic services through any comprehensive developmental disability center, without reference to any other eligibility criteria.
[39-4606, added 1978, ch. 270, sec. 1, p. 626.]
Nothing in this chapter shall be construed to prevent the continuation of existing developmental disabilities facilities or services in the state.
[39-4607, added 1978, ch. 270, sec. 1, p. 627.]
The services provided under this chapter shall be made available without discrimination on the basis of race, color, creed or ability to pay.
[39-4608, added 1978, ch. 270, sec. 1, p. 627.]
This act shall be known and may be cited as the "Yellow Dot Motor Vehicle Medical Information Act."
[39-4701, added 2020, ch. 283, sec. 1, p. 824.]
It is the intent of the Legislature to establish a yellow dot program to assist:
(1) Drivers and passengers who participate in the program;
(2) Emergency medical responders in reporting critical medical information in the event of a motor vehicle accident or a medical emergency involving a participant’s vehicle; and
(3) Peace officers, or other law enforcement personnel, in becoming aware of a motorist’s or passenger’s critical medical information that may affect the officer’s encounter with the motorist or passenger during a traffic stop or welfare check.
[39-4702, added 2020, ch. 283, sec. 1, p. 824.]
As used in this chapter:
(1) "Accident" means any event that results in an unintended injury or property damage attributable directly or indirectly to the motion of a motor vehicle or its load, a snowmobile, or special mobile equipment.
(2) "Department" means the department of health and welfare.
(3) "Driver" means every person who drives or is in actual physical control of a vehicle.
(4) "Emergency medical responder" means:
(a) Emergency medical services personnel licensed pursuant to chapter 9, title 46, Idaho Code; or
(b) A physician, nurse, or other health care provider on the scene of a motor vehicle accident or emergency situation as provided in section 39-4708, Idaho Code, or who is accompanying or attending a patient removed from such an accident or emergency situation in an ambulance.
(5) "Motor vehicle" or "vehicle" means every vehicle that is self-propelled and, for the purpose of titling and registration meets federal motor vehicle safety standards as defined in section 49-107, Idaho Code. Motor vehicle does not include vehicles moved solely by human power, electric personal assistive mobility devices, personal delivery devices, electric-assisted bicycles, and motorized wheelchairs or other such vehicles that are specifically exempt from titling or registration requirements under title 49, Idaho Code.
(6) "Other responder" means a firefighter, peace officer, or other law enforcement personnel on the scene.
(7) "Peace officer" means any employee of a police or law enforcement agency that is a part of or administered by the state or any political subdivision thereof and whose duties include and primarily consist of the prevention and detection of crime and the enforcement of penal, traffic, or highway laws of this state or any political subdivision of this state.
(8) "Yellow dot motor vehicle medical information program" or "yellow dot program" means the program established pursuant to this chapter.
[39-4703, added 2020, ch. 283, sec. 1, p. 824; am. 2025, ch. 94, sec. 25, p. 472.]
(1) The department is authorized to develop and assist in the implementation of the yellow dot program.
(2) The department may accept donations and grants from any source, including eligible federal safety funds, to pay the expenses the department in the development and implementation of the yellow dot program.
[39-4704, added 2020, ch. 283, sec. 1, p. 825.]
The department shall take reasonable measures to publicize the yellow dot program to potential participants, law enforcement officers, and emergency medical responders. In publicizing the yellow dot program, the department may cooperate with local law enforcement agencies, fire departments, emergency medical services agencies, the department of veterans affairs, and other governmental agencies. The department may also cooperate with and seek the assistance of interested nonprofit organizations, including but not limited to AARP, American automobile association, disabled American veterans, American veterans (AMVETS), the American legion, veterans of foreign wars of the United States, the military order of the purple heart, and the Idaho commission on aging. The department may also develop training materials on the yellow dot program that may be furnished to law enforcement agencies, fire departments, and emergency medical services agencies and used by such organizations for training purposes.
[39-4705, added 2020, ch. 283, sec. 1, p. 825.]
(1) The department is authorized to create a standard medical information form providing space for each participant to supply, at a minimum, the following information:
(a) The participant’s name;
(b) A photograph of the participant;
(c) Two (2) emergency contacts identified by the participant and their contact information;
(d) The participant’s relevant medical information, including medical conditions, recent surgeries, allergies, and medications;
(e) The participant’s hospital preference;
(f) Up to two (2) preferred physicians identified by the participant and their contact information; and
(g) The date on which the participant completed the form.
(2) The medical information form shall include a statement that the yellow dot program functions only as a facilitator and that all information supplied on the medical information form is the sole responsibility of the participant.
(3) The medical information form shall also include statements that the participant supplies the medical information voluntarily and that the participant authorizes the disclosure to, and use of, such medical information by emergency medical responders and other responders for the purposes described in section 39-4708, Idaho Code.
[39-4706, added 2020, ch. 283, sec. 1, p. 825.]
(1) The department may provide for, assist in, or authorize the printing of the standard medical information form as provided in section 39-4706, Idaho Code, and assembling of a yellow dot folder containing the medical information form and a yellow dot decal with an adhesive backing.
(2) Upon request, the department may provide yellow dot folders to the agencies and nonprofit organizations identified in section 39-4705, Idaho Code, subject to the limitations of resources for funding the program. The department may allow such agencies and organizations to copy the standard medical information form and assemble yellow dot folders for distribution to participants, or the department may authorize these agencies and organizations to prepare yellow dot folders for distribution.
(3) The department may also provide for dissemination of the medical information form and other yellow dot materials online.
(4) The department shall not charge any fee to participate in the yellow dot program.
[39-4707, added 2020, ch. 283, sec. 1, p. 826.]
(1) If a driver or passenger of a motor vehicle becomes involved in a motor vehicle accident or emergency situation and a yellow dot decal is affixed to the vehicle, an emergency medical responder or other responder at the scene is authorized to search the vehicle for a yellow dot folder or folders.
(2) An emergency medical responder or other responder may use the information contained in the yellow dot folder for the following purposes:
(a) To identify a participant in the yellow dot program;
(b) To ascertain whether the participant has a medical condition that may impede communication with the responder;
(c) To communicate with the participant’s emergency contacts about the location and general condition of the participant; and
(d) To consider the person’s current medications and preexisting medical conditions when emergency medical treatment is administered for any injury the participant suffers.
(3) If, during a traffic stop involving a motor vehicle with a yellow dot decal affixed to the vehicle, a law enforcement officer reasonably believes the driver or passenger has a medical condition that is affecting the officer’s encounter with the driver or a passenger, such law enforcement officer, upon receiving consent from the driver or passenger, is authorized to review any yellow dot folder or folders present in the vehicle.
[39-4708, added 2020, ch. 283, sec. 1, p. 826.]
Except for wanton or willful conduct, no emergency medical responder or other responder, nor any employer of an emergency medical responder or other responder, shall incur any liability if the emergency medical responder or other responder is unable to make contact, in good faith, with an emergency contact person or disseminates or fails to disseminate any information from the yellow dot folder to other emergency medical responders, hospitals, or any health care providers who render emergency medical treatment to the participant. No health care provider or employer of a health care provider shall incur any civil or criminal liability if the provider relies in good faith on the information provided through the yellow dot program.
[39-4709, added 2020, ch. 283, sec. 1, p. 826.]
Nothing in this chapter shall provide a peace officer with probable cause or other legal authority to stop a motor vehicle. Except for the limited authority provided in section 39-4708, Idaho Code, nothing in this chapter shall provide a peace officer with probable cause or other legal authority to search a motor vehicle or its occupants.
[39-4710, added 2020, ch. 283, sec. 1, p. 826.]
(1) Except as provided in subsections (5) and (6) of this section, any child in Idaho of school age may attend preschool and kindergarten through grade twelve (12) of any public, private, or parochial school operating in this state if otherwise eligible, provided that, upon admission, the parent or guardian shall provide an immunization record to the school authorities regarding the child’s immunity to certain childhood diseases. This record, signed by a physician, the physician’s representative, or another licensed health care professional, shall verify that such child has received or is in the process of receiving immunizations as specified by this section or can effectively demonstrate, through verification in a form approved by the department of health and welfare, immunity gained through prior contraction of the disease.
(2) The manner and frequency of administration of age appropriate immunizations pursuant to this subsection shall conform to recognized standard medical practices in the state:
(a) All children require the following:
(i) Diphtheria, Tetanus and A-Cellular Pertussis (DTaP) vaccine, five (5) doses;
(ii) Hepatitis A vaccine, two (2) doses;
(iii) Hepatitis B vaccine, three (3) doses;
(iv) Measles, Mumps, and Rubella (MMR) vaccine, two (2) doses;
(v) Polio vaccine, four (4) doses; and
(vi) Varicella vaccine, two (2) doses.
(b) In addition to the criteria listed in paragraph (a) of this subsection, the following must be met for admission into the seventh grade:
(i) Diphtheria, Tetanus and A-Cellular Pertussis (DTaP) Booster, one (1) dose; and
(ii) Meningococcal vaccine, one (1) dose.
(c) In addition to the criteria listed in paragraphs (a) and (b) of this subsection, prior to admission into the twelfth grade, students who received their first dose of meningococcal vaccine before sixteen (16) years of age must have two (2) doses of meningococcal vaccine, and students who received their first dose of meningococcal vaccine at sixteen (16) years age of older, or those who have never received a dose, must have one (1) dose of meningococcal vaccine.
(3) A student not meeting the conditions of this section shall be excluded by school authorities, and such students may not attend any Idaho public, private, or parochial school until the student is in compliance. A student exempted under subsections (5) or (6) of this section may be excluded by the department in the event of a disease outbreak.
(4) School authorities shall submit a report of the school’s immunization status by grade to the department on or before November 1 each year, including the following information:
(a) Inclusive dates or reporting period;
(b) Name and address of school, school district, and county;
(c) Grade being reported and total number of students enrolled in the grade;
(d) Name and title of the person completing the report form;
(e) Number of students who meet all of the immunizations criteria;
(f) Number of students who do not meet the specified number of immunizations listed by specific immunization type;
(g) Number of students who do not meet the immunization criteria but are in the process of receiving the immunizations; and
(h) Number of students who claimed exemption to the immunizations.
(5) Any minor child whose parent or guardian has submitted to school officials 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 immunizations would endanger the life or health of the child shall be exempt from the provisions of this chapter.
(6) Any minor child whose parent or guardian has submitted a signed statement to school officials stating their objections on religious or other grounds shall be exempt from the provisions of this chapter.
(7) School officials shall describe the exemptions provided in this section and provide a citation to this section in any communication to parents and guardians regarding immunization.
(8) Any student of majority age who submits a signed statement to school officials stating the student’s objections on religious or other grounds shall be exempt from any or all immunization criteria at every public, private, or parochial school in this state, including postsecondary, trade, college, university, or any other institute of primary, secondary, or higher learning.
[(39-4801) 1978, ch. 240, sec. 1, p. 624; am. and redesignated 1979, ch. 313, sec. 1, p. 845; am. 1991, ch. 251, sec. 1, p. 619; am. 1992, ch. 102, sec. 1, p. 321; am. 2011, ch. 212, sec. 1, p. 599; am. 2021, ch. 263, sec. 1, p. 810; am. 2025, ch. 174, sec. 2, p. 820.]
(1) Any minor child whose parent or guardian has submitted to school officials 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 chapter.
(2) Any minor child whose parent or guardian has submitted a signed statement to school officials stating their objections on religious or other grounds shall be exempt from the provisions of this chapter.
(3) School officials shall describe the exemptions provided in this section and provide a citation to this section in any communication to parents and guardians regarding immunization.
(4) Any student of majority age who submits a signed statement to school officials stating the student’s objections on religious or other grounds shall be exempt from any or all immunization requirements at every public, private, or parochial school in this state, including postsecondary, trade, college, university, or any other institute of primary, secondary, or higher learning.
[(39-4802) 1978, ch. 240, sec. 1, p. 624; am. and redesignated 1979, ch. 313, sec. 2, p. 846; am. 2021, ch. 263, sec. 2, p. 811; am. 2024, ch. 225, sec. 1, p. 793.]
(1) The department of health and welfare shall provide for the establishment of a voluntary registry of the immunization status of Idaho children against childhood diseases. The registry shall be maintained and its data disclosed as set out herein to further the following purposes:
(a) To make immunizations readily available to every Idaho citizen that desires to have their child immunized;
(b) To increase the voluntary immunization rate in Idaho to the maximum extent possible without mandating such immunizations;
(c) To recognize and respect the rights of parents and guardians to make health care decisions for their children; and
(d) To provide for timely reminders to parents of children in the registry.
(2) The name of a child and information relating to the immunization status of that child shall be collected and included in the registry unless a parent, guardian or other person legally responsible for the care of the child chooses not to have the child included in the registry upon a specified written statement. Such statement may not be part of a general authorization or release. The registry shall contain the following information for each child:
(a) The child’s name, address and birth date;
(b) The name and address of each parent of the child;
(c) The month, day, year and type of each immunization that has been administered to the child;
(d) The name, address and phone number of each provider that has administered an immunization to the child;
(e) If requested by a parent or guardian, any statement made pursuant to subsection (4) of this section; and
(f) Other information as authorized or requested by a parent or guardian.
(3) The department of health and welfare shall only disclose information relating to an individual child in the registry to the following upon a specific request:
(a) Employees of the health district in which the child resides or seeks medical services;
(b) Health records staff of the school or school district in which the child is enrolled;
(c) The operator of a licensed daycare facility in which the child is enrolled;
(d) Persons who are legally responsible for the long-term care of the child, including operators of licensed ICF/ID’s and residential or assisted living facilities, adoptive and foster parents and a guardian appointed pursuant to chapter 5, title 15, Idaho Code;
(e) Any health care provider rendering treatment to the child, and the provider’s agents;
(f) Any person possessing a lawful release, properly executed by the child’s parent or guardian;
(g) A parent of the child;
(h) Any hospital where the child is receiving care; or
(i) The Idaho health data exchange.
(4) A parent or guardian of the child shall have free and open access to all information in the registry that relates to their child or themselves. Upon the written request of a parent or guardian, the department of health and welfare shall:
(a) Cause all information relating to the child to be removed from the registry;
(b) Include in the registry the statement of a physician or parent pursuant to section 39-4801(5) or 39-1118(2), Idaho Code.
(5) All information contained in the registry or disclosed from it is confidential and may not be sold and may only be disclosed as specifically authorized in this section. A person or entity to whom information is disclosed from the registry may not thereafter disclose it to others except in accordance with state and federal laws applicable to the use of protected health information. Any person who discloses or authorizes disclosure of any information contained in the registry, except as authorized in this section, is guilty of a misdemeanor and is liable for civil damages in the amount of one hundred dollars ($100) for each violation.
[39-4803, added 1999, ch. 347, sec. 1, p. 927; am. 2000, ch. 274, sec. 118, p. 855; am. 2010, ch. 235, sec. 28, p. 566; am. 2010, ch. 336, sec. 1, p. 889; am. 2015, ch. 253, sec. 1, p. 1057; am. 2025, ch. 174, sec. 4, p. 822.]
(1) Before an immunization is administered to any child in this state, the parent or guardian of the child shall be notified that:
(a) Immunizations are not mandatory and may be refused on religious or other grounds;
(b) Participation in the immunization registry is voluntary;
(c) The parent or guardian is entitled to an accurate explanation of the complications known to follow such immunization.
(2) At the time information is initially collected regarding any child for entry into the registry created pursuant to this chapter, the parent or guardian shall be notified that:
(a) They have the right under Idaho law to submit a statement pursuant to the provisions of sections 39-1118 and 39-4801(5) or (6), Idaho Code, which exempts them from any requirement to have information regarding the child entered into the registry;
(b) At any time they have the right to remove any information from the registry regarding the child; and
(c) Immunizations are not mandatory and may be refused on religious or other grounds.
(3) The decision of a parent or guardian to:
(a) Submit a statement pursuant to the provisions of either section 39-1118(2) or 39-4801(5) or (6), Idaho Code;
(b) Remove any information regarding the child from the registry pursuant to the provisions of section 39-4803(4), Idaho Code; or
(c) Refuse the immunization on religious or other grounds;
shall not be used in any manner against the interests of the parent or guardian in any administrative, civil or criminal action.
[39-4804, added 1999, ch. 347, sec. 3, p. 930; am. 2010, ch. 336, sec. 2, p. 890; am. 2025, ch. 174, sec. 5, p. 823.]
(1) There is hereby created in the department of health and welfare the Idaho childhood immunization policy commission. The purpose of the commission is to evaluate policies regarding childhood immunization in Idaho and make recommendations to the board of health and welfare on policy and to the Idaho legislature on legislative action to increase immunization rates.
(2) The commission shall be composed of eight (8) regular members and two (2) ex officio members:
(a) One (1) representative of the department of health and welfare, division of public health, appointed by the director of the department;
(b) One (1) representative of Idaho public health districts, appointed by the Idaho association of public health district directors;
(c) One (1) member appointed by the Idaho primary care association;
(d) One (1) member appointed by the Idaho hospital association;
(e) One (1) member appointed by the Idaho academy of family physicians;
(f) One (1) member appointed by the Idaho chapter of the American academy of pediatrics;
(g) One (1) member appointed by the Idaho immunization coalition;
(h) One (1) member appointed by the Idaho medical association;
(i) One (1) member of the Idaho senate who will serve as an ex officio member of the commission, appointed by the president pro tempore of the senate; and
(j) One (1) member of the Idaho house of representatives who will serve as an ex officio member of the commission, appointed by the speaker of the house of representatives.
Each member of the commission shall serve at the pleasure of the person responsible for the member’s appointment. Members of the commission shall not be paid for their service or be entitled for reimbursement for travel expenses, except that members of the Idaho legislature serving as ex officio members of the commission shall be reimbursed for their vouched travel expenses associated with their service on the commission in a manner consistent with policy for other state officers and employees.
(3) The commission shall meet on or before October 1, 2010, and shall meet not less than once per each calendar year thereafter. At its initial meeting, the commission shall elect a chair, a vice chair and a secretary from among its members. These officers shall serve for terms of one (1) year and may be elected for successive terms. Meetings of the commission shall be held in Boise. Members may participate in meetings through electronic means.
(4) The department of health and welfare shall provide to the commission a suitable meeting location and reasonable clerical support.
(5) The duties and responsibilities of the commission are to:
(a) Review existing provisions of the Idaho Code and rules of the department of health and welfare regarding childhood immunization; and
(b) Make recommendations to the Idaho legislature for legislation and to the board of health and welfare for rulemaking on:
(i) Improving Idaho’s childhood immunization rates;
(ii) The immunization requirements for children attending daycare and school;
(iii) The Idaho immunization reminder information system;
(iv) Public and private partnerships to improve immunization rates; and
(v) Other states best practices on improving immunization rates.
(c) Make recommendations to public agencies, health care providers and others regarding policies and practices that are designed to improve Idaho’s childhood immunization rates.
[39-4805, added 2010, ch. 134, sec. 1, p. 285.]
It is the intent of the legislature to provide to all of Idaho residents a quality health care system for a reasonable cost and to prevent the deterioration of such system by the duplication of services or the introduction of new categories of services that are not necessary to their health. It is further the intent of the legislature to promote cooperation among health care providers in health planning activities and to provide access to necessary care for all who require it. It is hereby declared that it is in the public interest of the state, to provide for the relief from penalties of state and federal law, cooperative planning in health care that is likely to benefit the residents of the state.
[39-4901, added 1994, ch. 283, sec. 2, p. 884.]
As used in this chapter:
(1) "Cooperative agreement" means a written agreement between two (2) or more health care providers for the sharing, allocation or referral of patients, or the sharing or allocation of personnel, instructional programs, support services and facilities, medical, diagnostic, therapeutic or procedures or other services customarily offered by health care providers.
(2) "Certificate of public advantage" means a document issued by the attorney general to parties to a cooperative agreement, verifying that the attorney general declares that the purposes and objectives of the cooperative agreement meet the standards for such agreements set forth by statute.
(3) "Health care provider" means any person or health care facility licensed, registered, certified, permitted or otherwise officially recognized by the state to provide health care services in this state; or, in the case of a freestanding outpatient facility, one for which a facility fee is charged for health care services performed within.
[39-4902, added 1994, ch. 283, sec. 2, p. 884.]
(1) A health care provider may negotiate and enter into cooperative agreements with other health care providers in the state if the likely benefits resulting from the agreements outweigh the disadvantages attributable to a reduction in competition that may result from such agreements.
(2) Parties to a cooperative agreement may apply to the Idaho attorney general for a certificate of public advantage governing that cooperative agreement. The application must include an executed written copy of the cooperative agreement and describe the nature and scope of the cooperation in the agreement and any consideration passing to any party under the agreement.
(3) The attorney general shall review the application in accordance with the standards set forth in subsection (4) of this section and may hold a public hearing in accordance with rules adopted by the attorney general under chapter 52, title 67, Idaho Code. The attorney general shall grant or deny the application within sixty (60) days of the date of filing of the application and that decision must be in writing and set forth the basis for the decision. The attorney general shall furnish a copy of the decision to the applicants and any intervenor.
(4) The attorney general shall issue a certificate of public advantage for a cooperative agreement if he determines that the applicants have demonstrated by clear and convincing evidence that the likely benefits resulting from the agreement outweigh any disadvantages attributable to a reduction in competition that may result from the agreement.
(5) In evaluating the potential benefits of a cooperative agreement, the attorney general shall consider whether one (1) or more of the following benefits may result from such agreement:
(a) The quality of health care provided to the consumers in the state will be enhanced;
(b) A hospital, if any, and other health care facilities that customarily serve the communities in the area likely affected by the cooperative agreement will be preserved;
(c) Services provided by the parties to the cooperative agreement will gain cost efficiency;
(d) The utilization of health care resources and equipment in the area likely affected by the cooperative agreement will improve;
(e) Duplication of health care resources in the area likely affected by the cooperative agreement will be avoided.
(6) The attorney general’s evaluation of any disadvantages attributable to any reduction in competition likely to result from the cooperative agreement may include, but need not be limited to, the following:
(a) The likely adverse impact, if any, on the ability of health maintenance organizations, preferred provider plans, hospital provider organizations, persons performing utilization review, or other health care payers to negotiate optimal payment and service arrangements with hospitals and other health care providers;
(b) Whether any reduction in competition among physicians, allied health professionals or other health care providers is likely to result directly or indirectly from the cooperative agreement;
(c) Whether any arrangements that are less restrictive to competition could likely achieve substantially the same benefits or a more favorable balance of benefits over disadvantages than that likely to be achieved from reducing competition.
(7) Participants in an approved cooperative agreement issued under the provisions of this section are immune from civil enforcement action and criminal prosecution for actions that might otherwise violate antitrust laws of the state of Idaho taken in furtherance of the cooperative agreement. Nothing in this section shall limit the authority of the attorney general to initiate civil enforcement or criminal prosecution if he determines that the health care providers have exceeded the scope of the cooperative agreement approved under this act.
(8) The attorney general may request periodic written updates of the progress of the approved cooperative agreement. If updates are requested, the attorney general shall specify the intervals at which they must be submitted, which shall not be less than every ninety (90) days.
(9) Nothing in this act shall obligate health care providers to submit a request for approval of a cooperative agreement as set forth under the provisions of this section. Any person who implements any cooperative action or agreement without securing the approval of the attorney general under the provisions of this section is subject to any civil or criminal enforcement action for violations that may result from this action.
(10) It is the intent of this section to require the state of Idaho, through the office of the attorney general, to provide direction, supervision and control over approved cooperative agreements entered into under the provisions of this section. To achieve the goals specified in this section, this state direction, supervision and control of cooperative agreements will provide state action immunity under federal antitrust laws to health care providers who participate in discussions or negotiations authorized in this section, and to persons authorized by such persons to implement cooperative agreements.
(11) The attorney general may adopt rules for the implementation of this act, including rules establishing procedures and criteria for the review and evaluation of proposed cooperative agreements under this act. Rules adopted shall ensure that there is opportunity for public comment during the review and evaluation of proposed cooperative agreements.
(12) If the attorney general determines that the benefits resulting from or likely to result from a cooperative agreement under a certificate of public advantage no longer outweighs any disadvantages attributable to any actual or potential reduction in competition resulting from the cooperative agreement, he may revoke the certificate of public advantage governing the agreement and, if revoked, shall so notify the holders of the certificate. A holder of a certificate of public advantage whose certificate is revoked by the attorney general may contest the revocation by sending a written request for a hearing to the attorney general within ten (10) days after receipt of the notice of revocation.
(13) If a party to a cooperative agreement that is issued a certificate of public advantage terminates its participation in the agreement, the party shall file a notice of termination with the attorney general within thirty (30) days after the termination takes effect. If all parties to the cooperative agreement terminate their participation in the agreement, the attorney general shall revoke the certificate of public advantage for the agreement.
(14) The attorney general shall maintain files on all cooperative agreements for which certificates of public advantage are issued and that are in effect.
[39-4903, added 1994, ch. 283, sec. 2, p. 884.]
Any applicant or intervenor aggrieved by a decision of the attorney general in granting or denying an application for a certificate of public advantage, refusing to act on such application or termination of a certificate of public advantage, is entitled to judicial review of the decision in accordance with chapter 52, title 67, Idaho Code.
[39-4904, added 1994, ch. 283, sec. 2, p. 886.]
The policy of the state of Idaho is hereby declared to be a recognition of the increasing number of persons in the state who, having fulfilled the valuable role of homemaker, find themselves displaced because of death or disability of spouse, or divorce or other loss of family income. As a consequence, displaced homemakers have an insufficient income; high rate of unemployment due to age, lack of paid work experience and discrimination; and limited opportunities to collect funds of assistance from social security, unemployment compensation, medicaid or other health insurance benefits, or pension plans of the spouse. This chapter seeks to coordinate efforts by state and local public agencies in cooperation with private agencies and organizations to assist displaced homemakers to continue as productive citizens, even though their role has necessarily changed.
[(39-5001) 39-4901, added 1980, ch. 333, sec. 1, p. 859; am. and redesig. 2005, ch. 25, sec. 61, p. 105.]
For purposes of this chapter:
(1) "Displaced homemaker" means a person who:
(a) Has worked in the home providing household services for family members, but who has lost the primary source of economic support and who must gain employment skills in order to earn a living; or
(b) Is a single parent with primary financial and custodial responsibility for supporting dependent children and who must gain employment skills in order to earn a living.
(2) "Administrator" means the administrator of the division of career technical education.
[(39-5002) 39-4902, added 1994, ch. 283, sec. 2, p. 884; am. and redesig. 1999, ch. 329, sec. 23, p. 863; am. 2000, ch. 292, sec. 1, p. 1008; am. 2016, ch. 25, sec. 37, p. 56.]
The administrator is authorized to establish multipurpose service centers for displaced homemakers. Each center shall have an advisory board appointed by the administrator in consultation with the director of the center. Such board shall consist of individuals representing displaced homemakers, organizations and agencies providing services beneficial to displaced homemakers, and the general public.
Each center shall include the following services:
(a) Job counseling services designed for a displaced homemaker;
(b) Job training and placement services developed in cooperation with public and private employers to train displaced homemakers for available jobs in the public and private sectors, taking into account the skills and job experiences of a homemaker and to assist displaced homemakers in gaining admission to existing public and private job training programs;
(c) Health education and counseling services with respect to general principles of preventative health care, mental health, alcohol and drug addiction and other related health care matters;
(d) Financial management services which provide information and assistance with respect to insurance, taxes, estate and probate problems, mortgages, loans and other related financial matters; and
(e) Educational services including information about courses offering credit through secondary and postsecondary education programs and information about other services determined to be of interest and benefit to displaced homemakers.
[(39-4903) 1980, ch. 333, sec. 1, p. 860; am. 1982, ch. 20, sec. 1, p. 24.]
(a) In selecting sites for the centers established under this chapter, the administrator shall consider:
(1) The needs of each region of the state for a center;
(2) The needs of both urban and rural communities; and
(3) The availability of existing facilities adaptable for use as a center.
(b) The administrator may select a public or nonprofit private organization to administer the centers.
(c) The administrator is authorized to enter into contracts with and make grants to the organizations selected for the purpose of establishing and administering centers under this chapter.
(d) The administrator shall cooperate with other state, local and federal agencies to coordinate, through the service centers, all programs applicable to displaced homemakers and to avoid duplication of services.
(e) To the greatest extent possible, the staff of the service centers established under this chapter, including supervisory, technical and administrative positions, shall be filled by displaced homemakers. Where necessary, potential staff members shall be provided with on-the-job training.
[(39-5004) 39-4904, added 1980, ch. 333, sec. 1, p. 860; am. and redesig. 2005, ch. 25, sec. 62, p. 105.]
The administrator with the advice of the staff at the centers, shall promulgate rules concerning the eligibility of persons to receive assistance through the multipurpose service centers. A sliding fee may be charged for services at the discretion of the director of the center.
[(39-5005) 39-4905, added 1980, ch. 333, sec. 1, p. 861; am. and redesig. 2005, ch. 25, sec. 63, p. 105.]
The director of the center may, with approval of the administrator, apply for and accept any funds, grants, gifts or services made available by any agency or department of the federal government or any private agency or individual, which funds shall be used to carry out the total program of the centers.
[(39-5006) 39-4906, added 1980, ch. 333, sec. 1, p. 861; am. and redesig. 2005, ch. 25, sec. 64, p. 106.]
The director of each center shall report to the administrator or his/her designee, and shall evaluate the effectiveness of the job training, placement and service to displaced homemakers, including the number of persons trained, the number of persons placed in employment, follow-up data on such persons, the number of persons served by the various service programs, and cost effectiveness of the various components of the center. The administrator shall report annually to the education committees of the house of representatives and the senate of the legislature on the status of the displaced homemaker program. The report shall be filed not later than the fifteenth legislative day and in addition to compilations of the information received from each center, may include recommendations of the administrator relating to the program.
[(39-5007) 39-4907, added 1980, ch. 333, sec. 1, p. 861; am. and redesig. 2005, ch. 25, sec. 65, p. 106.]
No person shall, on the ground of sex, age, race, color, religion, national origin or disability, be excluded from participating in, be denied the benefits of, or be subjected to discrimination under any program or activity made available under this chapter.
[(39-5008) 39-4908, added 1980, ch. 333, sec. 1, p. 861; am. and redesig. 2005, ch. 25, sec. 66, p. 106; am. 2010, ch. 235, sec. 29, p. 567.]
(1) There is hereby created in the state operating fund the displaced homemaker account. All fees collected pursuant to subsection (2) of this section shall be deposited in the account. All moneys in the account shall be available for appropriation to the state board for career technical education for the purposes of this chapter.
(2) In addition to any other fees imposed for filing an action for divorce in the district court, there shall be collected a fee of twenty dollars ($20.00) for each divorce action. The clerk of the district court shall remit such fees, separately identified, to the state treasurer for deposit in the displaced homemaker account. Fees shall be remitted to the state treasurer at the same time as other court fees are remitted.
[39-5009, added 1982, ch. 187, sec. 1, p. 505; am. 1999, ch. 329, sec. 24, p. 864; am. 2016, ch. 25, sec. 38, p. 56.]
The legislature of the state of Idaho finds that:
(1) Families are the major providers of support, care, information, training, and other services to their family members with developmental disabilities.
(2) Families with individuals who have developmental disabilities may experience extraordinary financial outlays, physical and emotional challenges, and daily stress.
(3) Failure to provide the necessary services and supports to families with a member with developmental disabilities can result in admission of the individual to institutional care.
(4) Flexible and coordinated support and assistance to families avoids duplication of services, uses existing resources more efficiently, and prevents gaps in services to families.
(5) A family’s ability to make informed decisions regarding in-home or out-of-home living arrangements for a member who has a developmental disability is critical to the quality and cost-effective care of their family member.
(6) Family support and in-home assistance promotes and enhances the family’s capacity to provide care.
(7) Family support and in-home assistance stimulates the formation of community supports to use public dollars more efficiently.
Therefore, it is in the interest of the state of Idaho to provide in-home assistance for families for supports that enable family members with developmental disabilities to reside at home.
[39-5100, added 1997, ch. 33, sec. 2, p. 57.]
This act authorizes a program of financial assistance to eligible families who agree to carry out home-based support for their family members with developmental disabilities.
[39-5101, added 1981, ch. 234, sec. 1, p. 473; am. 1997, ch. 33, sec. 3, p. 57.]
As used in this chapter:
(1) "Department" means the Idaho department of health and welfare.
(2) "Developmental disability" means a chronic disability of an individual which appears before the age of twenty-two (22) years of age and:
(a) Is attributable to an impairment, such as intellectual disability, cerebral palsy, epilepsy, autism or a condition found to be closely related to or similar to one (1) of these impairments that requires similar treatment or services, or is attributable to dyslexia resulting from such impairments; and
(b) Results in substantial functional limitations in three (3) or more of the following areas of major life activity: self-care, receptive and expressive language, learning, mobility, self-direction, capacity for independent living, or economic self-sufficiency; and
(c) Reflects the need for a combination and sequence of special, interdisciplinary treatment or other services which are of lifelong or extended duration and individually planned and coordinated.
(3) "Director" means the director of the Idaho department of health and welfare.
(4) "Family" means a group of interdependent persons residing in the same household and includes an individual with a developmental disability and one (1) or more of the following:
(a) A birth or adoptive mother or father, stepparent, brother, sister or any combination; or
(b) Extended blood relatives, such as a grandparent, aunt, uncle, nephew or niece; or
(c) Legal guardian.
The term "family" does not include paid providers of care.
(5) "In-home assistance application" means a written document describing the needs of an individual with developmental disabilities and specifying the services or supports required.
(6) "Institution" means any public or private residential facility which is licensed in the state of Idaho for the purpose of providing care and treatment for individuals with developmental disabilities.
[39-5102, added 1981, ch. 234, sec. 1, p. 473; am. 1997, ch. 33, sec. 4, p. 58; am. 2010, ch. 235, sec. 30, p. 567.]
The director of the Idaho department of health and welfare shall have the power and it shall be his duty to promulgate appropriate rules necessary to implement and enforce the following standards for the provision of in-home assistance:
(1) Financial assistance provided under this chapter shall not exceed two hundred fifty dollars ($250) per month per individual, except that this limit may be waived by the department in cases of extraordinary need.
(2) The amount of a grant of assistance shall be made based upon the need for services as specified in section 39-5103(4), Idaho Code, without regard to the family’s income or eligibility for any other program administered by the department.
(3) Receipt of supports will be determined on an individual family basis. Support priorities will be determined with consideration for the following criteria:
(a) Families of individuals with a developmental disability who will be able to return to a home setting from an institution and to those families for whom supports will prevent placement of the member with a developmental disability in an institution;
(b) Severity of consequences without supports;
(c) Urgency of need;
(d) Availability of funds.
(4) Assistance moneys may be used for the following when no other assistance is available:
(a) Diagnostic and evaluative procedures;
(b) Purchase of special equipment;
(c) Specialized therapies;
(d) Special diets;
(e) Medical and dental care not covered under the family’s health insurance or other publicly funded programs;
(f) Home health or personal assistance services;
(g) Counseling for the individual or family, including behavior management;
(h) Respite care or out of the ordinary expenses related to supervised care according to the approved in-home assistance application, including necessary related sibling care;
(i) Environmental adaptations and technical assistance as necessary to permit successful integration and access;
(j) Special clothing including incontinence supplies;
(k) Necessary supports for participation in recreational services;
(l) Transportation;
(m) Housing modifications for the purpose of accessibility or ease in handling; and
(n) Similar or related costs.
(5) Families shall choose providers of services.
(6) Assistance moneys shall not be used for the payment of educational or educationally related services which properly are the responsibility of local public schools.
(7) Supports under this chapter shall not replace or reduce other public benefits to families, or be considered as resources or income in any eligibility determination or sliding fee scale.
[39-5103, added 1981, ch. 234, sec. 1, p. 473; am. 1997, ch. 33, sec. 5, p. 58.]
A family is eligible to participate in the family support and in-home assistance program if the family:
(1) Resides within the state of Idaho;
(2) Includes a family member with a developmental disability;
(3) Expresses willingness for the family member with a developmental disability to reside at home;
(4) Submits an in-home assistance application for the family member with a developmental disability;
(5) Obtains the agreed-upon services or equipment; and
(6) Accounts for the funds expended for the agreed-upon services and equipment.
[39-5104, added 1981, ch. 234, sec. 1, p. 474; am. 1997, ch. 33, sec. 6, p. 60.]
Assistance may be terminated under the following conditions:
(1) The family or individual requests termination;
(2) Death of the individual with a developmental disability;
(3) Eligibility criteria are no longer met; or
(4) Inadequate funds are available for continuance.
[39-5105, added 1981, ch. 234, sec. 1, p. 474; am. 1997, ch. 33, sec. 7, p. 60.]
This chapter shall be known and cited as the "Developmental Disabilities Family Support and In-Home Assistance Act."
[39-5106, added 1981, ch. 234, sec. 1, p. 475; am. 1997, ch. 33, sec. 8, p. 61.]
The legislature finds that domestic violence is an issue of growing concern. Research findings show that domestic violence constitutes a significant percentage of homicides, aggravated assaults, and assaults and batteries in the United States. Domestic violence is a disruptive influence on personal and community life and is often interrelated with a number of other family problems and stresses. Refuge for victims of domestic violence is essential to provide protection to victims from further abuse and physical harm. Refuge provides temporary safety and resources to victims who may not have access to such things if they remain in abusive situations.
It is the purpose of the legislature in the adoption of this chapter to provide funding for projects in the several areas of the state for the purpose of aiding victims of domestic violence and other crimes.
It is understood that the intention of the provisions of this chapter is not to supersede the authority or responsibilities of agencies of state government responsible for providing services to persons pursuant to the child protective act, crime victims compensation act or adult protective provisions in the Idaho Code.
[39-5201, added 1982, ch. 181, sec. 1, p. 470; am. 2000, ch. 343, sec. 1, p. 1161.]
As used in this chapter:
(1) "Domestic violence" means the physical injury, sexual abuse or forced imprisonment or threat thereof of a family or household member.
(2) "Family or household member" means one who is related by blood, marriage, or who resides or has resided with or has been married to the person committing the domestic violence.
(3) "Safe house" means a place available on an as needed basis for temporary residence to victims of domestic violence and their children.
(4) "Refuge" means a place available on a twenty-four (24) hour, seven (7) days a week basis, to provide temporary residence to victims of domestic violence and their children.
(5) "Crisis line" means an emergency twenty-four (24) hour telephone service staffed by persons able to provide information and referral to community services.
(6) "Council" means the Idaho council on domestic violence and victim assistance created in section 39-5203, Idaho Code.
[39-5202, added 1982, ch. 181, sec. 1, p. 470; am. 2000, ch. 343, sec. 2, p. 1162.]
(1) The Idaho council on domestic violence and victim assistance is hereby established. The council shall be the advisory body for programs and services affecting victims of domestic violence and other crimes in Idaho.
(2) For budgetary purposes and for administrative support purposes, the council shall be assigned, by the governor, to a department or office within the state government.
[39-5203, added 1982, ch. 181, sec. 1, p. 471; am. 2000, ch. 343, sec. 3, p. 1162.]
The council shall consist of seven (7) members appointed by the governor. At least one (1) member shall reside in each of the substate regions established pursuant to section 39-104, Idaho Code. Members shall represent persons who are victims of domestic violence, care providers, law enforcement officials, medical and mental health personnel, counselors, and interested and concerned members of the general public.
[39-5204, added 1982, ch. 181, sec. 1, p. 471; am. 2021, ch. 321, sec. 20, p. 965.]
Each member of the council shall be appointed for a term of three (3) years, except that of the members first appointed; two (2) shall be appointed for a term of one (1) year, two (2) shall be appointed for a term of two (2) years, and three (3) shall be appointed for a term of three (3) years. If a vacancy occurs, a new member shall be appointed in accordance with the provisions of the original appointment for the unexpired portion of the vacated term. Members may be replaced because of poor attendance, lack of participation in the council’s work, or malfeasance in office.
[39-5205, added 1982, ch. 181, sec. 1, p. 471.]
Members of the council shall be entitled to receive actual and necessary expenses plus compensation as provided in section 59-509(g), Idaho Code.
[39-5206, added 1982, ch. 181, sec. 1, p. 471.]
(1) The council shall annually designate one (1) of its members to serve as chairman and one (1) member to serve as vice chairman, who shall act as chairman in the chairman’s absence. The chairman shall call meetings as provided in the rules of the council.
(2) The council shall adopt and amend rules governing its proceedings, activities and organization including, but not limited to, provisions governing a quorum, procedure, frequency and location of meetings, and establishment, functions and membership of council committees.
(3) The council may employ and shall fix the compensation, subject to provisions of chapter 53, title 67, Idaho Code, of such personnel as may be necessary including, but not limited to, an administrator, who shall be designated as the executive director of the council and who shall be exempt from the provisions of chapter 53, title 67, Idaho Code.
[39-5207, added 1982, ch. 181, sec. 1, p. 471; am. 2000, ch. 343, sec. 4, p. 1162.]
The council shall:
(1) Establish standards for projects applying for grants from the council under this chapter;
(2) Disseminate information on availability of funds and the application process;
(3) Receive grant applications for the development and establishment of projects for victims of domestic violence and certain other crimes;
(4) Distribute funds after approval of projects meeting council standards;
(5) Assess, review and monitor the services and programs being provided for victims of domestic violence and other crimes under this chapter;
(6) Monitor programs and services for victims of domestic violence and other crimes to assure nonduplication of services and to encourage efficient and coordinated use of resources in the provision of services;
(7) Compile data on the services and programs provided to victims of domestic violence and other crimes and the geographic incidence of domestic violence and other crimes in this state; and
(8) Submit annual reports to the governor and the legislature.
[39-5208, added 1982, ch. 181, sec. 1, p. 471; am. 2000, ch. 343, sec. 5, p. 1163.]
The council shall promulgate, adopt and amend rules and criteria to implement the provisions of this chapter regarding applications and grants for domestic violence project funding and for funding under any other grant program administered by the council. Such promulgation, adoption and amendment shall be in compliance with the provisions of chapter 52, title 67, Idaho Code.
[39-5209, added 1982, ch. 181, sec. 1, p. 472; am. 2000, ch. 343, sec. 6, p. 1163.]
To be eligible for domestic violence grants pursuant to this chapter, a project must provide a safe house or refuge and a crisis line, except in the case of a project providing services to batterers. No funds may be granted to batterer programs from the domestic violence project account which are derived from marriage license or divorce fees. Other services which may be provided include, but are not limited to:
(1) Counseling;
(2) Educational services for community awareness, for prevention of domestic violence and for the care, treatment and rehabilitation of parties to domestic violence;
(3) Support groups;
(4) Assistance in obtaining legal, medical, psychological or vocational services.
[39-5210, added 1982, ch. 181, sec. 1, p. 472; am. 1990, ch. 243, sec. 1, p. 695; am. 1992, ch. 51, sec. 1, p. 156; am. 2000, ch. 343, sec. 7, p. 1164.]
To qualify for domestic violence grants under the provisions of this chapter, an applicant must:
(1) Propose to operate and provide an eligible project;
(2) Be a private, nonprofit corporation of the state of Idaho, or a public entity of the state of Idaho;
(3) Provide matching moneys equal to twenty-five percent (25%) of the amount of the grant. The applicant may contribute to or provide the required local matching funds. The value of in-kind contributions and volunteer labor from the community may be computed and included as part of the local matching requirement;
(4) Require persons employed by or volunteering services to the project to maintain the confidentiality of any information that would identify individuals served by the project; such information identifying individuals served by the project shall be subject to disclosure according to chapter 1, title 74, Idaho Code;
(5) Require victims to reimburse the project monetarily or through volunteer efforts for services provided as they are able to do so. Minimum reimbursement may be established by the council, with a sliding scale of reimbursement based on the victim’s ability to pay;
(6) Provide a policy of nondiscrimination in its admissions and provision of services on the basis of race, religion, gender, color, age, marital status, national origin or ancestry.
[39-5211, added 1982, ch. 181, sec. 1, p. 472; am. 1990, ch. 213, sec. 45, p. 518; am. 2000, ch. 343, sec. 8, p. 1164; am. 2015, ch. 141, sec. 94, p. 447.]
There is hereby created in the state operating fund the domestic violence project account. Moneys received from the fees imposed by section 39-5213, Idaho Code, and section 39-6312, Idaho Code, shall be credited to the account and shall be perpetually appropriated to the council on domestic violence and victim assistance for grants for domestic violence projects and to meet the costs of maintaining the operation of the council.
Eligible projects shall be given priority by the council based upon an allocation of funds to projects in the seven (7) substate regions established pursuant to section 39-104, Idaho Code, in the proportion that marriage licenses are filed in each region.
[39-5212, added 1982, ch. 181, sec. 1, p. 473; am. 1990, ch. 243, sec. 2, p. 695; am. 2000, ch. 343, sec. 9, p. 1164.]
(1) In addition to the fee due to the county recorder of each county of this state under the provisions of section 31-3205, Idaho Code, for the issuance of a marriage license, the recorder shall collect upon presentation of proper identification by the applicants an additional fee of fifteen dollars ($15.00) for each license issued, which additional fee shall be remitted to the state treasurer for credit to the "domestic violence project account" created in section 39-5212, Idaho Code.
(2) In addition to any other fee imposed for filing an action for divorce in the district court, there shall be collected a fee of twenty dollars ($20.00) for each divorce action, separately identified, which additional fee shall be remitted to the state treasurer for credit to the domestic violence project account created in section 39-5212, Idaho Code.
[39-5213, added 1982, ch. 181, sec. 1, p. 473; am. 1990, ch. 244, sec. 1, p. 696.]
This chapter shall be known and may be cited as the "Adult Abuse, Neglect and Exploitation Act."
[(39-5301) 1982, ch. 286, sec. 2, p. 734; am. and redesignated 1991, ch. 329, sec. 2, p. 847.]
(1) It is the intent of the adult abuse, neglect, and exploitation act to authorize the fewest possible restrictions on the exercise of personal freedom and religious beliefs consistent with a vulnerable adult’s need for services and to empower vulnerable adults to protect themselves.
(2) The legislature recognizes that vulnerable adults sometimes experience difficulties managing their own affairs or are unable to protect themselves from maltreatment. Often, vulnerable adults cannot find others who are able or willing to provide assistance.
(3) The commission is directed to investigate allegations of vulnerable adult maltreatment, to make appropriate referrals to law enforcement, and to arrange for the provision of necessary services. Further, the commission shall honor a vulnerable adult’s freedom of choice and right to self-determination. When it becomes necessary for the commission to assist a vulnerable adult, actions shall be tempered by the requirements of due process and must place the fewest possible restrictions on personal freedom. Services provided under this chapter are also intended to provide assistance to a caregiver to help maintain a vulnerable adult in the household.
(4) In the process of carrying out its adult protective services responsibilities, the commission is directed to make effective use of multidisciplinary services available through any and all public agencies, community-based organizations, and informal resources.
[39-5301A, added 1998, ch. 308, sec. 2, p. 1020; am. 2019, ch. 43, sec. 1, p. 116; am. 2023, ch. 158, sec. 1, p. 426.]
(1) For the purposes of this chapter:
(a) "Administrator" means the administrator of the Idaho commission on aging appointed pursuant to section 67-5004, Idaho Code.
(b) "Adult" means a person aged eighteen (18) years or older.
(c) "Adult protective services" or "APS" means the legal and bureaucratic systems and protections safeguarding vulnerable adults through investigation of APS reports alleging maltreatment and arrangements for the provision of emergency, supportive, or prevention services necessary to reduce or eliminate risk of harm.
(d) "APS report" means an allegation of maltreatment of a vulnerable adult made to adult protective services.
(e) "Caregiver" refers to a formal caregiver or an informal caregiver.
(f) "Commission" means the Idaho commission on aging, established pursuant to chapter 50, title 67, Idaho Code.
(g) "Department" means the Idaho department of health and welfare.
(h) "Emergency" means an exigent circumstance in which a vulnerable adult’s health and safety is placed in imminent danger. Imminent danger is when death or severe bodily injury could reasonably be expected to occur without intervention.
(i) "Facility" means a health or treatment facility as defined in statute or by the department, including:
(i) Certified family homes, as defined in section 39-3502, Idaho Code;
(ii) Developmental disabilities facilities, as defined in section 39-4604, Idaho Code;
(iii) Home health agencies, as defined in section 39-1301, Idaho Code;
(iv) Hospitals, as defined in section 39-1301, Idaho Code;
(v) Intermediate care facilities, as defined in section 39-1301, Idaho Code;
(vi) Residential care or assisted living facilities, as defined in section 39-3302, Idaho Code; and
(vii) Residential habilitation agencies.
(j) "Financial exploitation" means the illegal or improper use, control over, or withholding of the property, income, resources, or trust funds of a vulnerable adult by any person or entity for profit or advantage other than for the vulnerable adult’s profit or advantage. The term "financial exploitation" includes but is not limited to:
(i) The use of deception, intimidation, or undue influence by a person or an entity in a position of trust and confidence with a vulnerable adult to obtain or use the property, income, resources, or trust funds of the vulnerable adult for the benefit of a person or an entity other than the vulnerable adult;
(ii) The breach of a fiduciary duty, including but not limited to the misuse of a power of attorney, trust, or guardianship appointment that results in the unauthorized appropriation, sale, or transfer of the property, income, resources, belongings, or trust funds of the vulnerable adult for the benefit of a person or an entity other than the vulnerable adult; or
(iii) Obtaining or using a vulnerable adult’s property, income, belongings, resources, or trust funds without lawful authority by a person or an entity who knows or clearly should know that the vulnerable adult lacks the capacity to consent to the release or use of his property, income, belongings, resources, or trust funds.
(k) "Formal caregiver" means a person or an entity that accepts compensation to perform a service or services for a vulnerable adult. Compensation may be provided by an employer, the vulnerable adult, or someone acting in the interests of the vulnerable adult.
(l) "Human trafficking" means the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services through the use of force, fraud, or coercion, for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery.
(m) "Infirmities of aging" means physical or mental deterioration associated with advanced age or organic brain damage, or other physical, mental, or emotional dysfunction, such that the ability of an older adult to provide adequately for the adult’s own care or protection is impaired.
(n) "Informal caregiver" means a person who provides support for a vulnerable adult without expectation of compensation, goods, or services.
(o) "Investigation" means the evaluation of allegations conducted by a provider or the commission through interviews, observations, and examination of information.
(p) "Legal representative" means a guardian, a conservator, an attorney, or an individual with power of attorney who has the legal obligation to act for the benefit of another.
(q) "Licensed medical professional" means an individual practicing in a medical or medical-related field who is licensed, certified, or otherwise credentialed by the state of Idaho.
(r) "Neglect" means failure of a caregiver to provide food, clothing, shelter, or medical care, the absence of which impairs or threatens sustainable life or health of a vulnerable adult.
(s) "Older adult" means a person aged sixty-five (65) years or older.
(t) "Physical abuse" means the infliction of physical pain, injury, or unjust chemical or physical restraint on a vulnerable adult or death where:
(i) The vulnerable adult’s condition or death is not justifiably explained;
(ii) The history given concerning such condition or death is at variance with the degree or type of the condition or death; or
(iii) Circumstances indicate that such condition or death may not be the product of an accidental occurrence.
(u) "Prevention services" means interventions designed to reduce the risk of maltreatment, including but not limited to case management, the provision of goods or services, or caregiver support.
(v) "Protective action plan" or "PAP" means a person-centered plan addressing the remedial, social, legal, medical, educational, mental health, or other services available to reduce or eliminate the risk of harm to a vulnerable adult.
(w) "Provider" means an area agency on aging or a person or an entity capable of providing adult protective services, including duly authorized agents and employees.
(x) "Psychological abuse" means the infliction of fear, anguish, agitation, or other emotional distress through verbal or nonverbal acts or through unjust confinement of a vulnerable adult.
(y) "Self-neglect" means failure of a vulnerable adult to provide for himself or refusal to accept support needed to obtain food, clothing, shelter, or medical care reasonably necessary to sustain the life and health of the vulnerable adult.
(z) "Sexual abuse" means touching, fondling, intercourse, or any other sexual activity with a vulnerable adult when the vulnerable adult is unable to understand, unwilling to consent, threatened, or physically forced.
(aa) "Skilled nursing facility" shall have the same meaning as "nursing facility" provided in section 39-1301, Idaho Code.
(bb) "Supportive services" means social, legal, health, educational, mental health, and referral services.
(cc) "Undue influence" means influence exercised over a vulnerable adult with the intent to:
(i) Inhibit the vulnerable adult’s freedom of choice;
(ii) Deprive the vulnerable adult of freedom of choice; or
(iii) Substitute the influencer’s choice or desire over that of the vulnerable adult.
(dd) "Vulnerable adult" means an adult who is unable to protect himself from maltreatment because of:
(i) A mental, physical, or developmental disability;
(ii) A degenerative brain disease;
(iii) An inability to communicate or implement decisions regarding his person; or
(iv) Other infirmities of aging in an older adult.
(ee) "Vulnerable adult maltreatment" or "maltreatment" means the intentional or negligent infliction of pain or injury on a vulnerable adult, including financial exploitation, human trafficking, neglect, physical abuse, psychological abuse, or sexual abuse.
(2) Nothing in this chapter shall be construed to mean a person is abused, neglected, or exploited for the sole reason he is relying upon treatment by spiritual means through prayer alone in accordance with the tenets and practices of a recognized church or religious denomination; nor shall the provisions of this chapter be construed to require any medical care or treatment in contravention of the stated or implied objection of such a person.
[(39-5302) 1982, ch. 286, sec. 2, p. 734; am. and redesig. 1991, ch. 329, sec. 3, p. 847; am. 1996, ch. 78, sec. 1, p. 247; am. 1998, ch. 308, sec. 3, p. 1020; am. 2008, ch. 209, sec. 2, p. 663; am. 2019, ch. 43, sec. 2, p. 117; am. 2023, ch. 158, sec. 2, p. 427; am. 2025, ch. 122, sec. 35, p. 641.]
(1) Licensed medical professionals, emergency services personnel, facility employees, skilled nursing facility employees, employees of an entity responsible for providing care to a vulnerable adult, medical examiners, social workers, or law enforcement personnel who have reasonable cause to believe that a vulnerable adult is being or has been maltreated shall report such information to the commission’s designated APS provider as expeditiously as possible but within twenty-four (24) hours of acquiring the information that forms the basis of such reasonable cause. When there is reasonable cause to believe that maltreatment has resulted in death or serious physical injury jeopardizing the life, health, or safety of a vulnerable adult, any person required to report under this section shall also report such information as expeditiously as possible to the appropriate law enforcement agency but within four (4) hours of acquiring the information that forms the basis of such reasonable cause. Ombudsmen recognized by the commission are exempt from reporting maltreatment that is discovered in the course of their duties.
(2) Failure to report as provided under this section is a misdemeanor subject to punishment as provided in section 18-113, Idaho Code.
(3) Any person, including any officer or employee of a financial institution, who has reasonable cause to believe that a vulnerable adult is being abused, neglected, or exploited may report such information to the commission or its providers.
[(39-5303) 1982, ch. 286, sec. 2, p. 734; am. and redesig. 1990, ch. 213, sec. 46, p. 518; am. 1991, ch. 329, sec. 4, p. 849; am. 1996, ch. 78, sec. 2, p. 248; am. 1998, ch. 308, sec. 4, p. 1021; am. 1998, ch. 396, sec. 1, p. 1240; am. 2000, ch. 274, sec. 119, p. 856; am. 2018, ch. 56, sec. 1, p. 141; am. 2019, ch. 43, sec. 3, p. 117; am. 2023, ch. 158, sec. 3, p. 429.]
(1) The requirements set forth in section 39-5303, Idaho Code, pertaining to the reporting of vulnerable adult maltreatment to the commission or the department shall not apply to situations involving resident-to-resident contact within facilities or skilled nursing facilities that serve vulnerable adults, except in those cases involving sexual abuse, death, or serious physical injury that jeopardizes the life, health, or safety of a vulnerable adult or repeated resident-to-resident physical or verbal altercations, not resulting in observable physical or mental injury, but constituting an ongoing pattern of resident behavior that a facility’s staff are unable to remedy through reasonable efforts.
(2) This exemption applies only to reports involving resident-to-resident abuse that are to be directed to the commission or the department pursuant to section 39-5303, Idaho Code. This exemption shall not limit any other reporting obligation or requirement whether statutory or otherwise.
[39-5303A, added 2000, ch. 104, sec. 1, p. 232; am. 2023, ch. 158, sec. 4, p. 431.]
(1) When a report is made by an individual or required pursuant to this chapter, such report shall be made to the commission or appropriate provider. If known, the report shall contain:
(a) The name and address of the vulnerable adult, the caregiver, and the alleged perpetrator;
(b) The nature and extent of the suspected maltreatment; and
(c) Any other information that will be of assistance in the investigation.
(2) The timing of the initiation of APS investigations shall be determined based on factors provided in the APS report. Such factors may include but are not limited to the potential for immediate danger or harm to an individual, the current location of the alleged vulnerable adult, and the nature of the allegations.
(3) The APS investigation shall include a determination of the nature, extent, and cause of the maltreatment, examination of evidence and consultation with persons thought to have knowledge of the circumstances, and identification, if possible, of the person alleged to be responsible for the maltreatment of the vulnerable adult.
(4) The commission or APS provider may determine that an interview with the vulnerable adult is not necessary to the investigation or not possible. If the commission or APS provider determines that an interview is necessary, the preferred method of interviewing is a personal visit with the vulnerable adult in the adult’s dwelling. Alternatively, the interview may occur in the local office of the commission or APS provider, or by telephone conversation, or by any other means available to the commission or APS provider. Decisions regarding the method of conducting any interview will be within the discretion of the commission or APS provider.
(5) Upon completion of an APS investigation, the commission or APS provider shall prepare a final report of the investigation. If the vulnerable adult maltreatment is substantiated, the final report will be made to law enforcement pursuant to section 39-5310, Idaho Code. If the vulnerable adult maltreatment is substantiated to have occurred in a state-certified or state-licensed facility, a copy of the findings shall be sent to the licensing and certification office of the department. All records pertaining to APS investigations are held confidential in accordance with section 39-5307, Idaho Code, and federal law.
[39-5304, added 1991, ch. 329, sec. 5, p. 850; am. 1996, ch. 78, sec. 3, p. 248; am. 1998, ch. 308, sec. 5, p. 1022; am. 2000, ch. 104, sec. 2, p. 232; am. 2000, ch. 274, sec. 120, p. 857; am. 2001, ch. 79, sec. 1, p. 199; am. 2019, ch. 43, sec. 4, p. 119; am. 2023, ch. 158, sec. 5, p. 431.]
(1) Upon receiving information that a vulnerable adult is alleged to be maltreated, the commission or provider shall cause such investigation to be made in accordance with the provisions of this chapter as is appropriate. In making the investigation, the commission or provider shall use its own resources and may enlist the cooperation of peace officers. In an emergency, any authorized commission employee or provider shall enlist the cooperation of a peace officer to ensure the safety of the vulnerable adult and shall receive the peace officer’s assistance. Assistance in an emergency may include entry on private or public property where a vulnerable adult is allegedly subject to abuse, neglect or exploitation, and the removal and transportation of the vulnerable adult to a medical facility, care-providing facility, or other appropriate and safe environment.
(2) In a nonemergency, any peace officer may cooperate with an authorized commission employee or provider in ensuring the safety of a vulnerable adult who has been abused, neglected or exploited, including a vulnerable adult living in a condition of self-neglect. Assistance shall be provided only with the consent of the vulnerable adult or his legal representative.
(3) For the purposes of implementing or enforcing any provision of this chapter or any rule authorized under the provisions of this chapter, any duly authorized commission employee or provider may, upon presentation of appropriate credentials at any reasonable time, with consent or in an emergency, enter upon any private or public property where a vulnerable adult allegedly is subject to maltreatment.
(4) All inspections and searches conducted under the provisions of this chapter shall be performed in conformity with the prohibitions against unreasonable searches and seizures contained in the fourth amendment to the constitution of the United States and article I, section 17, of the constitution of the state of Idaho. The state shall not, under the authority granted in this chapter, conduct warrantless administrative searches of private property except with consent, or in an emergency.
(5) If consent to entry is not given, a commission employee or provider with the assistance of the county prosecutor may obtain, and any magistrate or district judge is authorized to issue, a search warrant upon showing that probable cause exists to believe a vulnerable adult is subject to maltreatment. Upon request of a commission employee or provider, a peace officer shall serve the search warrant.
[39-5305, added 1991, ch. 329, sec. 6, p. 851; am. 1996, ch. 78, sec. 4, p. 249; am. 1998, ch. 308, sec. 6, p. 1023; am. 2019, ch. 43, sec. 5, p. 119; am. 2023, ch. 158, sec. 6, p. 432.]
(1) If there is substantiated maltreatment of a vulnerable adult, the commission or provider has the responsibility to assist the adult in obtaining available services.
(2) If the commission or provider develops a protective action plan of supportive services for the vulnerable adult, the plan shall provide for appropriate supportive services available to the vulnerable adult that are least restrictive to personal freedom and shall provide encouragement for client self-determination and continuity of care.
(3) If the vulnerable adult does not consent to the receipt of reasonable and necessary supportive services, or if the vulnerable adult withdraws consent, services shall not be provided or continued.
(4) If a report is unsubstantiated, the commission or provider may assist the vulnerable adult or the vulnerable adult’s caregiver with prevention services.
[(39-5306) 1982, ch. 286, sec. 2, p. 734; am. and redesig. 1991, ch. 329, sec. 8, p. 852; am. 1996, ch. 78, sec. 5, p. 250; am. 1998, ch. 308, sec. 7, p. 1024; am. 2019, ch. 43, sec. 6, p. 120; am. 2023, ch. 158, sec. 7, p. 433.]
Any person, department, agency, or commission authorized to carry out the duties enumerated in this chapter shall have access to all relevant records, which shall be subject to disclosure according to chapter 1, title 74, Idaho Code, and section 39-5310, Idaho Code. Other persons and entities shall be granted such access only with the written consent of the vulnerable adult or his legal representative, or pursuant to other proper judicial process or federal law.
[(39-5307) 1982, ch. 286, sec. 2, p. 734; am. and redesignated 1990, ch. 213, sec. 47, p. 519; am. and redesignated 1991, ch. 329, sec. 9, p. 852; am. 2015, ch. 141, sec. 95, p. 448; am. 2023, ch. 158, sec. 8, p. 434.]
(1) In performing the duties set forth in this chapter, the commission or provider may request the assistance of the staffs and resources of all appropriate state departments, agencies and commissions, and local health directors and may utilize any other public or private agencies, groups, or individuals who are appropriate and who may be available. Interagency cooperation shall include the involvement, when appropriate, of law enforcement personnel, department personnel, medical personnel, and any other person or entity deemed necessary due to specialized training in providing services to vulnerable adults. Interagency cooperation may also include access to client information necessary for the provision of services to vulnerable adults.
(2) The commission shall provide to the department on at least a quarterly basis a listing of all alleged perpetrators associated with substantiated allegations of vulnerable adult maltreatment.
(3) The department shall provide to the commission or provider any report of vulnerable adult maltreatment received under this chapter from a skilled nursing facility.
(4) The commission or provider shall provide the department with any report received under this chapter involving allegations of maltreatment occurring in a skilled nursing facility.
(5) The commission, providers, and the department shall conduct a joint investigation and share client and facility information when necessary.
[(39-5308) 1982, ch. 286, sec. 2, p. 737; am. and redesig. 1991, ch. 329, sec. 10, p. 853; am. 1996, ch. 78, sec. 6, p. 251; am. 1998, ch. 308, sec. 8, p. 1024; am. 2000, ch. 274, sec. 121, p. 858; am. 2019, ch. 43, sec. 7, p. 121; am. 2023, ch. 158, sec. 9, p. 434.]
(1) Skilled nursing facilities and employees of such facilities shall make reports required under this chapter to the department. If an employee at a state-licensed or state-certified residential facility fails to report maltreatment resulting in death or serious physical injury jeopardizing the life, health, or safety of a vulnerable adult as provided under this section, then the department shall have the authority over the facility to:
(a) Revoke its license or contract with the state to provide services;
(b) Deny payment;
(c) Assess and collect a civil monetary penalty with interest from the facility owner or facility administrator;
(d) Appoint temporary management;
(e) Close the facility or transfer residents to another certified facility;
(f) Direct a plan of correction;
(g) Ban admission of persons with certain diagnoses or requiring specialized care;
(h) Ban all admissions;
(i) Assign monitors; or
(j) Reduce the licensed bed capacity.
(2) Any action taken by the department pursuant to subsection (1) of this section shall be appealable as provided in chapter 52, title 67, Idaho Code.
(3) Any person who makes a report pursuant to this chapter, testifies in an administrative or a judicial proceeding arising from such a report, or is authorized to provide supportive services pursuant to the provisions of this chapter shall be immune from any civil or criminal liability on account of such report, testimony, or services being provided in good faith, except that such immunity shall not extend to:
(a) Perjury;
(b) Reports made in bad faith or with malicious purpose; or
(c) In the provision of services, gross negligence under the existing circumstances.
(4) Any person who makes a report or allegation in bad faith, with malice, or knowing it to be false shall be liable to the party against whom the report was made for the amount of actual damages sustained or statutory damages in the amount of five hundred dollars ($500), whichever is greater, as well as for attorney’s fees and costs. If a court finds that a defendant acted with malice or oppression, then the court may award treble actual damages or treble statutory damages, whichever is greater.
[39-5309, added 2023, ch. 158, sec. 11, p. 434.]
(1) If, as the result of any investigation initiated under the provisions of this chapter, it appears that the maltreatment has caused injury or a serious imposition on the rights of the vulnerable adult, the commission shall immediately notify the appropriate law enforcement agency, which shall initiate an investigation and shall determine whether criminal proceedings should be initiated against the caregiver or other persons in accordance with applicable state law. Notwithstanding the prohibition against disclosure of names of persons associated with the written report of an investigation as provided in section 39-5304, Idaho Code, the commission shall disclose names associated with the written report when notification is made as required in this section.
(2) The abuse, neglect, or exploitation of a vulnerable adult is a crime under section 18-1505, Idaho Code, and is subject to punishments provided in that section and other applicable state law.
(3) If at any time an APS provider has reasonable belief that maltreatment has caused serious injury or imposition on the rights of a vulnerable adult, the provider shall notify law enforcement within twenty-four (24) hours of obtaining the information on which the reasonable belief is based.
[39-5310, added 1991, ch. 329, sec. 13, p. 853; am. 1996, ch. 78, sec. 8, p. 251; am. 1998, ch. 308, sec. 10, p. 1025; am. 2001, ch. 79, sec. 2, p. 200; am. 2005, ch. 166, sec. 3, p. 508; am. 2023, ch. 158, sec. 12, p. 435.]
Any action taken by a physician or health facility pursuant to an agreement with a vulnerable adult in accordance with the provisions of chapter 45, title 39, Idaho Code, shall not be construed to constitute abuse, exploitation, or neglect, so long as it is consistent with the withholding or withdrawal of artificial life-sustaining procedures from a qualified patient.
[(39-5311) 1982, ch. 286, sec. 2, p. 734; am. and redesignated 1991, ch. 329, sec. 14, p. 853.]
The director of the commission shall have the authority to adopt, promulgate and enforce such rules as he deems necessary in carrying out the provisions of this chapter, subject to the provisions of chapter 52, title 67, Idaho Code.
[(39-5312) 1982, ch. 286, sec. 2, p. 734; am. and redesignated 1991, ch. 329, sec. 15, p. 854; am. 1996, ch. 78, sec. 9, p. 251.]
As used in this act:
(1) "Artificial insemination" means introduction of semen of a donor as defined herein, into a woman’s vagina, cervical canal or uterus through the use of instruments or other artificial means.
(2) "Donor" refers to a man who is not the husband of the woman upon whom the artificial insemination is performed.
[39-5401, added 1982, ch. 349, sec. 1, p. 864.]
Only physicians licensed under chapter 18, title 54, Idaho Code, and persons under their supervision may select artificial insemination donors and perform artificial insemination.
[39-5402, added 1982, ch. 349, sec. 2, p. 864.]
(1) Artificial insemination shall not be performed upon a woman without her prior written request and consent and the prior written request and consent of her husband.
(2) If the physician who performs the artificial insemination does not deliver the child conceived as a result of the artificial insemination, it is the duty of the mother and her husband to give that physician notice of the child’s birth.
[39-5403, added 1982, ch. 349, sec. 3, p. 864; am. 1990, ch. 213, sec. 48, p. 519; am. 2015, ch. 141, sec. 96, p. 448; am. 2021, ch. 33, sec. 1, p. 74.]
No semen shall be donated for use in artificial insemination by any person who:
(1) Has any disease or defect known by him to be transmissible by genes; or
(2) Knows or has reason to know he has a venereal disease.
[39-5404, added 1982, ch. 349, sec. 4, p. 865.]
(1) The donor shall have no right, obligation or interest with respect to a child born as a result of the artificial insemination.
(2) A child born as a result of the artificial insemination shall have no right, obligation or interest with respect to such donor.
(3) The relationship, rights and obligation between a child born as a result of artificial insemination and the mother’s husband shall be the same for all legal intents and purposes as if the child had been naturally and legitimately conceived by the mother and the mother’s husband, if the husband consented to the performance of artificial insemination.
[39-5405, added 1982, ch. 349, sec. 5, p. 865.]
Except as may be otherwise provided by a judicial decree entered in any action filed before the effective date of this act, the provisions of this act apply to all persons conceived as a result of artificial insemination as defined herein.
[39-5406, added 1982, ch. 349, sec. 6, p. 865.]
A person who violates the provisions of sections 2, 3 or 4 of this act is guilty of a misdemeanor.
[39-5407, added 1982, ch. 349, sec. 7, p. 865.]
Every hospital, bank or other storage facility where a person has donated semen shall use all reasonable means to detect if the donor has an antibody to HTLV-III in his blood. In the event that an antibody to HTLV-III is detected, such semen shall not be used for any purposes of artificial insemination.
As used in this section, "HTLV-III" means the human T-cell lymphotropic virus type III that causes acquired immunodeficiency syndrome.
[39-5408, added 1986, ch. 111, sec. 1, p. 304.]
(1) Public health officials have concluded that secondhand tobacco smoke causes disease, including lung cancer and heart disease, in nonsmoking adults, as well as causes serious conditions in children such as asthma, respiratory infections, middle ear infections, and sudden infant death syndrome. In addition, public health officials have concluded that secondhand smoke can exacerbate adult asthma and allergies and cause eye, throat and nasal irritation. The conclusions of public health officials concerning secondhand tobacco smoke are sufficient to warrant measures that regulate smoking in public places in order to protect the public health and the health of employees who work at public places.
(2) The intent of this chapter is to protect the public health, comfort and environment, the health of employees who work at public places and the rights of nonsmokers to breathe clean air by prohibiting smoking in public places and at public meetings.
[39-5501, added 1985, ch. 60, sec. 1, p. 120; am. 2004, ch. 389, sec. 1, p. 1166.]
As used in this chapter:
(1) "Auditorium" means a public building where an audience sits and any corridors, hallways or lobbies adjacent thereto.
(2) "Bar" means any indoor area open to the public operated primarily for the sale and service of alcoholic beverages for on-premises consumption and where: (a) the service of food is incidental to the consumption of such beverages, or (b) no person under the age of twenty-one (21) years is permitted except as provided in section 23-943, Idaho Code, as it pertains to employees, musicians and singers, and all public entrances are clearly posted with signs warning patrons that it is a smoking facility and that persons under twenty-one (21) years of age are not permitted. "Bar" does not include any area within a restaurant.
(3) "Bar within a restaurant" means a bar that:
(a) Is physically isolated from all parts of the restaurant by solid floor to ceiling walls;
(b) Has a separate outside public entrance that is not shared with the restaurant;
(c) Does not have any windows that can be opened or doorways connecting it to the restaurant, either directly or through any public place, including lobbies, hallways, or passageways that the public uses. The bar may be connected through means not available for public use; and
(d) Does not require restaurant patrons to pass through the bar or any indoor public place connected to the bar to access restrooms or other facilities or accommodations of the restaurant.
(4) "Bowling alley" means a place of business with at least two (2) bowling lanes on its premises that is operated for public entertainment.
(5) "Educational facility" means any room, hall, or building that is used for instruction or is supportive of instruction, including classrooms, libraries, auditoriums, gymnasiums, lounges, study areas, restrooms, halls, registration areas, and bookstores of any private or public preschool, kindergarten, elementary school, junior high or intermediate school, high school, vocational school, college, or university.
(6) "Employer" means any person, partnership, limited liability company, association, corporation or nonprofit entity that employs one (1) or more persons, including the legislative, executive and judicial branches of state government; any county, city, or any other political subdivision of the state; or any other separate unit of state or local government.
(7) "Enclosed" means the space between a floor and ceiling being surrounded on all sides at any time by solid walls, windows, or similar structures, not including doors, that extend from the floor to the ceiling.
(8) "Incidental service of food" means only serving food that is low-risk and non-potentially hazardous food.
(9) "Indoor shopping mall" means an indoor facility located at least fifty (50) feet from any public street or highway and housing no less than ten (10) retail establishments.
(10) "Person in charge" or "proprietor" means any person, or agent of such person, who ultimately controls, governs, or directs the activities within a public place. The term does not mean the owner of the property unless such owner ultimately governs, controls, or directs the activities within the public place.
(11) "Public meeting" means all meetings open to the public.
(12) "Public place" means any enclosed indoor place of business, commerce, banking, financial service or other service-related activity, whether publicly or privately owned and whether operated for profit or not, to which persons not employed at the public place have general and regular access or which the public uses including:
(a) Buildings, offices, shops or restrooms;
(b) Waiting rooms for means of transportation or common carriers;
(c) Restaurants;
(d) Theaters, auditoriums, museums or art galleries;
(e) Hospitals, libraries, indoor shopping malls, indoor sports arenas, concert halls, or airport passenger terminals, and within twenty (20) feet of public entrances and exits to such facilities;
(f) Public or private elementary or secondary school buildings and educational facilities and within twenty (20) feet of entrances and exits of such buildings or facilities;
(g) Retail stores, grocery stores or arcades;
(h) Barbershops, hair salons or laundromats;
(i) Sports or fitness facilities;
(j) Common areas of nursing homes, resorts, hotels, motels, bed and breakfast lodging facilities and other similar lodging facilities, including lobbies, hallways, restaurants and other designated dining areas and restrooms of any of these;
(k) Any child care facility subject to licensure under the laws of Idaho, including those operated in private homes, when any child cared for under that license is present;
(l) Public means of mass transportation, including vans, trains, taxicabs, airplanes, buses, boats, and limousines when passengers are present. The term does not include private noncommercial vehicles; and
(m) Any public place not exempted by section 39-5503, Idaho Code.
(13) "Publicly-owned building or office" means any enclosed indoor place or portion of a place owned, leased or rented by any state, county or municipal government, or by any agency supported by appropriation of, or by contracts or grants from, funds derived from the collection of federal, state, municipal or county taxes.
(14) "Restaurant" means an eating establishment including, but not limited to, coffee shops, cafes, cafeterias, and private and public school cafeterias, which gives or offers for sale food to the public, guests, or employees, as well as kitchens and catering facilities in which food is prepared on the premises for serving elsewhere. The term "restaurant" shall include a bar area within a restaurant.
(15) "Smoking" includes the possession of any lighted tobacco product in any form.
(16) "Smoking area" means a designated area in which smoking is permitted.
(17) "Tobacco products" means any substance that contains tobacco, including cigarettes, cigars, pipes, snuff, smoking tobacco, tobacco paper, or smokeless tobacco. It is presumed that a lighted cigarette, cigar, or pipe contains tobacco.
[39-5502, added 1985, ch. 60, sec. 1, p. 120; am. 2004, ch. 389, sec. 2, p. 1167; am. 2025, ch. 64, sec. 1, p. 302.]
(1) No person shall smoke in a public place, publicly-owned building or office, or at a public meeting, except in the following which may contain smoking areas or be designated as smoking areas in their entirety:
(a) Bars;
(b) Retail businesses primarily engaged in the sale of tobacco or tobacco products;
(c) Buildings owned and operated by social, fraternal, or religious organizations when used by the membership of the organization, their guests or families, or any facility that is rented or leased for private functions from which the public is excluded and for which arrangements are under the control of the sponsor of the function;
(d) Guest rooms in hotels, motels, bed and breakfast lodging facilities, and other similar lodging facilities, designated by the person or persons having management authority over such public lodging establishment as rooms in which smoking may be permitted;
(e) Theatrical production sites, if smoking is an integral part of the story in the theatrical production;
(f) Areas of owner-operated businesses, with no employees other than the owner-operators, that are not commonly open to the public;
(g) Any office or business, other than child care facilities, located within the proprietor’s private home when all such offices and/or businesses occupy less than fifty percent (50%) of the total area within the private home;
(h) Idaho state veterans homes, established pursuant to section 66-901, Idaho Code, that permit smoking in designated areas, provided that physical barriers and ventilation systems are used to reduce smoke in adjacent nonsmoking areas; and
(i) A designated employee breakroom established by a small business owner employing five (5) or fewer employees, provided that all of the following conditions are met:
(i) The breakroom is not accessible to minors;
(ii) The breakroom is separated from other parts of the building by a floor to ceiling partition;
(iii) The breakroom is not the sole means of entrance or exit to the establishment or its restrooms and is located in an area where no employee is required to enter as part of the employee’s work responsibilities. For purposes of this paragraph, the term "work responsibilities" does not include custodial or maintenance work performed in a breakroom when it is unoccupied; and
(iv) "Warning: Smoking Permitted" signs are prominently posted in the smoking breakroom and properly maintained by the employer. The letters on such signs shall be at least one (1) inch in height.
(2) This section shall not be construed to require employers to provide reasonable accommodation to smokers, or to provide breakrooms for smokers or nonsmokers.
(3) Nothing in this section shall prohibit an employer from prohibiting smoking in an enclosed place of employment.
[39-5503, added 1985, ch. 60, sec. 1, p. 120; am. 2004, ch. 389, sec. 3, p. 1168; am. 2005, ch. 96, sec. 1, p. 315; am. 2007, ch. 272, sec. 1, p. 799.]
Notwithstanding any other provision of this chapter or any other statute, or county or city ordinance, no person shall smoke in any elevator generally accessible to the public. Signs indicating that smoking is prohibited shall be conspicuously posted in each elevator and at each entrance to an elevator car or bank of elevators.
[39-5505, added 1985, ch. 60, sec. 1, p. 121.]
(1) No employer or other person in charge of a public place or publicly-owned building or office shall knowingly or intentionally permit the smoking of tobacco products in violation of this chapter.
(2) Any employer or other person in charge of a public place or publicly-owned building or office who knowingly violates the provisions of this section is guilty of an infraction and is subject to a fine not to exceed one hundred dollars ($100).
(3) Any employer who discharges or in any manner discriminates against an employee because that employee has made a complaint or has given information to the department of health and welfare or the department of labor pursuant to this section shall be subject to a civil penalty of not less than one thousand dollars ($1,000) nor more than five thousand dollars ($5,000) for each violation.
[39-5506, added 1985, ch. 60, sec. 1, p. 121; am. 2004, ch. 389, sec. 5, p. 1169.]
An employer, or other person in charge of a public place or publicly owned building, or the agent or employee of such person, who observes a person smoking in apparent violation of this chapter shall ask the person to extinguish all lighted tobacco products. If the person persists in violating this chapter, the employer, person in charge, agent or employee shall ask the person to leave the premises. Any person who refuses to either extinguish all lighted tobacco products or leave the premises is guilty of an infraction and is subject to a fine of seventeen dollars and fifty cents ($17.50). Any violation may be reported to a law enforcement officer.
[39-5507, added 1985, ch. 60, sec. 1, p. 121; am. 2004, ch. 389, sec. 6, p. 1169; am. 2015, ch. 198, sec. 3, p. 608.]
Signs shall be appropriately sized, conspicuous, legible with letters at least one (1) inch in height, unobscured, and placed at a height and location easily seen and read by persons entering or within the posted area. Signs may contain information such as the international smoking and no smoking symbols and references to this chapter.
[39-5508, added 2025, ch. 64, sec. 3, p. 304.]
The provisions of this chapter shall not be deemed to amend, modify or repeal sections 18-5904, 18-5905 and 18-5906, Idaho Code, relating to no smoking during public meetings.
[39-5509, added 1985, ch. 60, sec. 1, p. 121.]
(1) Smoking of tobacco or other products in or upon any bus, except a charter bus, is a violation of the provisions of this chapter, and any person smoking tobacco or other products on a bus, except a charter bus shall be guilty of an infraction and shall be punished as provided in section 39-5507, Idaho Code. (2) As used in this section:
(a) "Bus" means any passenger bus or coach or other motor vehicle having a seating capacity of fifteen (15) or more passengers operated by a bus company for the purpose of carrying passengers or cargo for hire.
(b) "Bus company" means any person, group of persons, association, partnership, corporation or other recognized legal entity providing for-hire transportation to passengers or cargo by bus upon the highways in the state, including passengers and cargo in interstate or intrastate travel. These terms also include cities, counties, districts, public corporations, boards and commissions established under the laws of this state providing transportation to passengers or cargo by bus upon the highways in the state, whether or not for hire.
(c) "Charter" means a group of persons, pursuant to a common purpose and under a single contract, and at a fixed charge in accordance with a bus company’s tariff, which has acquired the exclusive use of a bus to travel together to a specified destination or destinations, or special excursions to one (1) specific destination.
[39-5510, added 1987, ch. 183, sec. 1, p. 362.]
Nothing in this chapter shall be interpreted to prevent local, county or municipal governments from adopting ordinances or regulations more restrictive than the provisions contained herein.
[39-5511, added 2004, ch. 389, sec. 7, p. 1170.]
The purpose and intent of this chapter is to authorize personal assistance services for medicaid eligible participants in the participant’s home and community. It is further the purpose of this chapter to help maintain these eligible participants in their own homes in order to provide for the greatest degree of independence and self-reliance possible.
Personal assistance services are an integral component of the long-term care service delivery system and they are to be designed to provide a range of services for persons who are elderly, for persons with disabilities and for children who meet medical necessity criteria for personal care services (PCS). These services are to help individuals compensate for functional limitations and are to be delivered over a sustained period of time to persons who lost or never acquired some degree of functional capacity. Services will be viewed as enhancing the quality of life, individual choice, consumer control, independence and community integration.
Personal assistance services related to functional need shall be provided in order to maintain the independence, privacy, and dignity of the individual in the least restrictive, most cost-effective setting.
The participant and, at the option of the participant, the family of the participant, if available, shall be involved in the development of the individual service plan based on the participant’s needs identified through an assessment conducted by the department.
[(39-5601) 39-A4701, added 1981, ch. 65, sec. 1, p. 93; am. & redesig. 1990, ch. 326, sec. 1, p. 889; am. 2000, ch. 274, sec. 122, p. 859; am. 2010, ch. 347, sec. 1, p. 905.]
As used in this chapter, the following terms shall have the following meanings:
(1) "Department" means the department of health and welfare of the state of Idaho.
(2) "Director" means the director of the department of health and welfare.
(3) "Eligible participant" or "participant" means an individual determined eligible by the department for Idaho medicaid services, as authorized by title XIX, of the social security act, as amended.
(4) "Fiscal intermediary agency" means an entity that provides services that allow the participant receiving personal assistance services, or his designee or legal representative, to choose the level of control he will assume in recruiting, selecting, managing, training and dismissing his personal assistant and over the manner in which services are delivered.
(5) "Individual service plan" means a document which outlines all services including, but not limited to, personal assistance services and IADLs, required to maintain the individual in his or her home and community.
(6) "Instrumental activities of daily living (IADL)" means those activities performed in supporting the activities of daily living for an adult, including, but not limited to: managing money, preparing meals, shopping, light housekeeping, using the telephone, or getting around in the community.
(7) "PCS family alternate care provider" means an individual licensed by the department to provide personal care services to one (1) or two (2) children who are unable to reside in their own home and require assistance with medically oriented tasks related to the child’s physical or functional needs.
(8) "Personal assistance agency" means an entity that recruits, hires, fires, trains, supervises, schedules, oversees quality of work, takes responsibility for services provided, provides payroll and benefits for personal assistants working for them, is the employer of record and in fact.
(9) "Personal assistance services" includes both attendant care services and personal care services and means services that involve personal and medically oriented tasks dealing with the functional needs of the participant and accommodating the participant’s needs for long-term maintenance, supportive care or IADLs. These services may include, but are not limited to, personal assistance and medical tasks that can be done by unlicensed persons or delegated to unlicensed persons by a health care professional or participant. Services shall be based on the participant’s abilities and limitations, medical diagnosis or other category of disability.
(10) "Personal assistant" means an individual who directly provides personal assistance services.
(11) "Personal care services (PCS)" means a range of medically oriented care services related to a participant’s physical or functional requirements. These services are provided in the participant’s home or personal residence but do not include housekeeping or skilled nursing care.
(12) "Provider" means a personal assistance agency, a fiscal intermediary agency or a PCS family alternate care provider.
(13) "Representative" means an employee of the department of health and welfare.
(14) "Service coordination" means a case management activity that assists individuals eligible for medicaid in gaining and coordinating access to necessary care and services appropriate to the needs of the individual. Service coordination is a brokerage model of case management.
(15) "Voucher service option" means a method of service provision whereby the participant receives vouchers to pay for personal assistance services.
[(39-5602) 39-A4702, added 1981, ch. 65, sec. 1, p. 93; am. & redesig. 1990, ch. 326, sec. 2, p. 889; am. 1997, ch. 316, sec. 1, p. 933; am. 1998, ch. 224, sec. 1, p. 770; am. 2000, ch. 274, sec. 123, p. 859; am. 2007, ch. 222, sec. 2, p. 665; am. 2010, ch. 347, sec. 2, p. 905.]
The director shall have the power and it shall be his duty to promulgate and adopt appropriate rules necessary to implement and enforce standards for provision of personal assistance services.
The following standards for provision of personal assistance services and other provisions contained throughout this chapter and rules shall apply to participants and providers receiving or providing personal assistance services either as a medicaid option service or a waivered service, unless prohibited by federal law or contents of the federal waiver agreement.
(1) Personal care services shall be included in the medicaid services described in section 56-255(3) and (4), Idaho Code.
(2) Attendant care shall be included as a service under medicaid home and community-based waiver(s).
(3) All attendant care services must be authorized by the department or its designee.
(4) The department will establish by rule maximum hours per month of personal care services available to the individual participant under the state medicaid plan.
(5) The department shall enter into agreements with providers for the provision of personal assistance services. A single provider may operate as both a personal assistance agency and a fiscal intermediary agency. However, the agency must clearly document whether it is operating as a personal assistance agency or as a fiscal intermediary for each participant. The department may deny provider status or revoke that status when a provider is found to endanger the health, person or property of the participant, or is in violation of rules promulgated by the department or the provider agreement.
(6) A personal assistance agency shall have the responsibility for the following:
(a) Recruitment, hiring, firing, training, supervision, scheduling, payroll, and the assurance of quality of service, of its personal assistants;
(b) Complying with state and federal labor and tax laws, rules and regulations;
(c) Maintaining liability insurance coverage;
(d) Provision of an appropriately qualified nurse when required;
(e) Assignment of a qualified personal assistant to each authorized participant after consultation with and prior approval of that participant;
(f) Assuring all personal assistants providing services meet the standards and qualifications of this chapter;
(g) Billing medicaid for services approved and authorized;
(h) Collecting any participant contribution due;
(i) Referring participants to the department for service coordination services based on established criteria;
(j) Providing for care by a qualified replacement when the regular personal assistant is unable to provide the services, and providing for unanticipated services approved on the individual service plan when requested by the participant; and
(k) Conducting, at least annually, participant satisfaction/quality control reviews available to the department and general public.
(7) A fiscal intermediary agency shall have the responsibility for the following:
(a) To assure compliance with legal requirements related to the employment of participant/family directed personal assistants;
(b) To offer services to enable participants or families to perform required employer tasks themselves;
(c) To bill the medicaid program for services approved and authorized by the department;
(d) To collect any participant contribution due;
(e) To pay personal assistants for services;
(f) To perform all necessary withholding as required by state and federal labor and tax laws, rules and regulations;
(g) To assure that all personal assistants providing services meet the standards and qualifications of this chapter;
(h) To refer participants to service coordination services based on established criteria;
(i) To maintain liability insurance coverage;
(j) To conduct, at least annually, participant satisfaction and quality control reviews which shall be available to the department and to the general public; and
(k) To maintain documentation that the participant or his legal representative agrees in writing that he takes responsibility for and accepts potential risks, and any resulting consequences, for his choice to manage his own personal assistance services.
(8) Personal assistants are not employees of the state.
(9) Service coordination shall be made available to personal assistance participants where and when appropriate. In order to avoid a conflict of interest, service coordination shall not be provided by the same agency that provides personal assistance services to the participant.
(10) The department’s regional medicaid staff shall review and approve the individual service plan, authorize personal assistance services, the hours of service, and make appropriate referrals for service coordination for eligible individuals.
(11) The department shall establish and maintain a community awareness program that will educate Idaho citizens regarding the purpose and function of all long-term care alternatives including, but not limited to, personal assistance services and individual participant rights. This program will be developed in cooperation with other state agencies including, but not limited to, the commission on aging and the state independent living council.
(12) It shall be the responsibility of the participant or his designee or legal representative, when appropriate, to select the provider of personal assistance services.
(13) The department shall provide the participant, his designee or legal representative, with a list of available providers of personal assistance services; however, this does not relieve the participant or his designee or legal representative of the responsibility of provider selection.
(14) In those cases where the participant or his designee or legal representative cannot arrange for personal assistance services or asks for help in making arrangements, a representative of the department may arrange for or help arrange for personal assistance services on behalf of the participant.
[(39-5603) 39-A4703, added 1981, ch. 65, sec. 1, p. 93; am. & redesig. 1990, ch. 326, sec. 3, p. 890; am. 1997, ch. 316, sec. 2, p. 934; am. 1998, ch. 224, sec. 2, p. 771; am. 2000, ch. 274, sec. 124, p. 861; am. 2006, ch. 283, sec. 1, p. 869; am. 2007, ch. 222, sec. 3, p. 666; am. 2010, ch. 347, sec. 3, p. 906.]
The director shall require providers to obtain health tests or screens, criminal background and nurse’s aide registry checks, and licenses and/or certifications necessary to protect the health, person and property of the participant for any personal assistant acting as an employee, agent, or contractor of a provider. He may deny provider status or revoke that status when a provider or an employee, agent, or contractor of a provider, is found to endanger the health, person or property of the participant.
[(39-5604) I.C., sec. 39-A4704, as added by 1981, ch. 65, sec. 1, p. 93; am. and redesignated 1990, ch. 326, sec. 4, p. 892; am. 2000, ch. 274, sec. 125, p. 863.]
The director may require a personal assistant to successfully complete a training program established by the rules before beginning to provide personal assistance services. Those providing personal assistance services when the rule is established will be given a reasonable period of time to obtain the required training. The director may establish different training requirements for different services provided and for personal assistants serving participants with intensive needs. The department shall conduct training to include, but not be limited to, administrative rules, billing procedures and service requirements.
[(39-5605) I.C., sec. 39-A4705, as added by 1981, ch. 65, sec. 1, p. 93; am. and redesignated 1990, ch. 326, sec. 5, p. 892; am. 1997, ch. 316, sec. 3, p. 936; am. 2000, ch. 274, sec. 126, p. 864.]
(1) The participant, his designee, or legal representative, if such is responsible, shall be liable for any acts of the participant performed or committed while receiving care or services under the provisions of this chapter.
(2) The department shall not be held liable for any actions under this chapter, except pursuant to section 39-5603(12), Idaho Code, when the representative of the department is acting on behalf of the participant, his designee, or legal representative; however, the provisions of section 39-5603(10), Idaho Code, shall remain in force.
(3) Nothing in this chapter shall exempt the provider of services from any liability caused by such provider’s negligence, abuse, or other improper action.
[(39-5608) 39-A4707, 39-5607, added 1981, ch. 65, sec. 1, p. 93; am. and redesig. 1990, ch. 326, sec. 7, p. 893; am. and redesig. 1997, ch. 316, sec. 6, p. 937; am. 2000, ch. 274, sec. 129, p. 865; am. 2006, ch. 283, sec. 2, p. 871; am. 2021, ch. 321, sec. 21, p. 965.]
The department shall establish, as part of the medical care advisory committee (MCAC), an oversight subcommittee consisting of providers of personal assistance services and participants of such services and advocacy organizations representing such participants, and other interested parties, for the purpose of planning, monitoring, and recommending changes to the medicaid waiver and personal assistance programs to the MCAC. At least fifty-one percent (51%) of the committee membership shall be participants or their representatives.
[39-5609, added 2000, ch. 274, sec. 130, p. 865; am. 2007, ch. 222, sec. 5, p. 668.]
The prevention of youth access to tobacco products and electronic smoking devices within the state of Idaho is hereby declared to be a state goal to promote the general health and welfare of Idaho’s young people.
Tobacco use is the leading cause of preventable death in Idaho, and nicotine is a highly addictive, potentially harmful substance. Both present an urgent public health challenge. New and emerging tobacco products and electronic nicotine delivery devices like electronic cigarettes are linked to an increase in youth use of tobacco and nicotine products, are connected to the use of traditional tobacco products like cigarettes, and are associated with increased addiction in youth users. Therefore, it is this state’s policy to prevent the illegal sale, theft, and easy access of tobacco products and electronic smoking devices to minors, to prohibit the possession, distribution, and use of tobacco products and electronic smoking devices by minors, and to otherwise discourage and prevent the possession, use, and trafficking in tobacco products and electronic smoking devices by minors.
[39-5701, added 1998, ch. 418, sec. 2, p. 1316; am. 2020, ch. 318, sec. 1, p. 906.]
The terms used in this chapter are defined as follows:
(1) "Business" means any company, partnership, firm, sole proprietorship, association, corporation, organization, or other legal entity, or a representative of the foregoing entities.
(2) "Cigar-related products" means products intended for use with cigars, including but not limited to humidors, cutters, lighters, and natural tobacco leaves or wraps used for the manual rolling of cigars.
(3) "Delivery sale" means to distribute tobacco products or electronic smoking devices to a consumer in a state where either:
(a) The individual submits the order for such sale by means of a telephonic or other method of voice transmission, data transfer via computer networks, including the internet and other online services, or facsimile, or the mails; or
(b) The tobacco products or electronic smoking devices are delivered by use of the mails or a delivery service.
(4) "Delivery service" means any person who is engaged in the commercial delivery of letters, packages or other containers.
(5) "Department" means the state department of health and welfare or its duly authorized representative.
(6) "Designated cigar garden" means a temporary, outdoor, physically enclosed, or roped-off area at a public or private event that is strictly restricted to persons twenty-one (21) years of age or older.
(7) "Distribute" means to give, deliver, sell, offer to give, offer to deliver, offer to sell or cause any person to do the same or hire any person to do the same.
(8) "Location" means the street address where tobacco or electronic smoking device products are sold or the uniform resource locator for retailers who sell tobacco or electronic smoking products exclusively via the internet.
(9) "Minor" means a person under twenty-one (21) years of age.
(10) "Minor-exempt permit" means a permittee location whose revenues from the sale of alcoholic beverages for on-site consumption comprises at least fifty-five percent (55%) of total revenues, or whose products and services are primarily obscene, pornographic, profane, or sexually oriented, is exempt from inspections assisted by a minor, if minors are not allowed in the location and such prohibition is posted clearly on all entrance doors.
(11) "Mobile cigar retailer" means a business permitted under this chapter that exclusively sells or distributes cigars and cigar-related products from a non-fixed, mobile unit, including but not limited to a motor vehicle or trailer.
(12) "Permit" means a permit issued by the department for the sale or distribution of tobacco products or electronic smoking devices.
(13) "Permit endorsement" means a sale or delivery method used by the permittee to sell tobacco or electronic smoking device products, including delivery sales, delivery service, and direct sales.
(14) "Permittee" means the holder of a valid permit for the sale or distribution of tobacco products or electronic smoking devices.
(15) "Photographic identification" means state, district, territorial, possession, provincial, national or other equivalent government driver’s license, identification card or military card, in all cases bearing a photograph and a date of birth, or a valid passport.
(16) "Random, unannounced inspection" means an inspection of retail outlets by a law enforcement agency or by the department, with or without the assistance of a minor, to monitor compliance of this chapter.
(17) "Seller" means the person who physically sells or distributes tobacco products or electronic smoking devices.
(18)(a) "Tobacco product or electronic smoking device" means:
(i) Any substance containing, made of, or derived from tobacco or nicotine that is intended for human consumption or is likely to be consumed, whether inhaled, absorbed, or ingested by any other means, including but not limited to cigarettes, cigars, pipes, snuff, smoking or chewing tobacco, snus, tobacco papers, or smokeless tobacco;
(ii) Any electronic smoking device that may be used to deliver an aerosolized or a vaporized substance to the person inhaling from the device, including but not limited to an electronic cigarette, an electronic cigar, an electronic pipe, a vape pen, or an electronic hookah, or any component, part, or accessory of such a device, or any substance intended to be aerosolized or vaporized during use of the device, whether or not the substance contains nicotine, or any heated or lighted device intended to be used for inhalation; or
(iii) Any components, parts, or accessories of a tobacco product or an electronic smoking device, whether or not they contain tobacco or nicotine, including but not limited to filters, rolling papers, blunt or hemp wraps, and pipes, whether manufactured, distributed, marketed, or sold as an electronic cigarette, electronic cigar, electronic hookah, or vape pen, or under any other product name or descriptor.
(b) The term "tobacco product or electronic smoking device" does not include drugs, devices, or combinations of products authorized for sale by the United States food and drug administration as those terms are defined in the federal food, drug, and cosmetic act.
(19) "Vending machine" means any mechanical, electronic, or other similar device that, upon the insertion of tokens, money or any other form of payment, dispenses tobacco products or electronic smoking devices.
(20) "Vendor-assisted sales" means any sale or distribution in which the customer has no access to the product except through the assistance of the seller.
(21) "Without a permit" means a business that has failed to obtain a permit or a business whose permit is suspended or revoked.
[39-5702, added 1998, ch. 418, sec. 2, p. 1317; am. 2003, ch. 159, sec. 1, p. 449; am. 2003, ch. 273, sec. 1, p. 728; am. 2004, ch. 318, sec. 5, p. 897; am. 2012, ch. 39, sec. 1, p. 118; am. 2020, ch. 318, sec. 2, p. 906; am. 2022, ch. 113, sec. 1, p. 416; am. 2025, ch. 64, sec. 4, p. 304; am. 2026, ch. 279, sec. 1, p. 1168.]
(1) It shall be unlawful for a minor to possess, receive, purchase, use, or consume tobacco products or electronic smoking devices or to attempt any of the foregoing.
(2) It shall be unlawful for a minor to sell or distribute tobacco products or electronic smoking devices or to attempt either of the foregoing.
(3) It shall be unlawful for a minor to provide false identification or make any false statement regarding their age in an attempt to obtain tobacco products or electronic smoking devices.
(4) A minor who is assisting with a random unannounced inspection in accordance with this chapter shall not be in violation of this chapter.
(5) A minor may possess but not sell or distribute tobacco products or electronic smoking devices in the course of employment, for duties such as stocking shelves or carrying purchases to customers’ vehicles.
(6) Penalties for violations by a minor. A violation of subsection (1) of this section by a minor shall constitute an infraction and shall be punishable by a fine of seventeen dollars and fifty cents ($17.50). The first violation of subsection (2) or (3) of this section by a minor shall constitute an infraction and shall be punishable by a fine of two hundred dollars ($200). A subsequent violation of subsection (2) or (3) of this section by a minor shall constitute a misdemeanor and shall be punishable by imprisonment in an appropriate facility not exceeding thirty (30) days, a fine not exceeding three hundred dollars ($300), or both such fine and imprisonment. The court may, in addition to the penalties provided in this section, require the minor and, if the minor is under eighteen (18) years of age, the minor’s parents or legal guardian to attend tobacco product or electronic smoking device awareness programs or to perform community service in programs related to tobacco product or electronic smoking device awareness.
[39-5703, added 1998, ch. 418, sec. 2, p. 1317; am. 2012, ch. 39, sec. 2, p. 119; am. 2015, ch. 158, sec. 1, p. 553; am. 2020, ch. 318, sec. 3, p. 908; am. 2022, ch. 113, sec. 2, p. 418.]
(1) It shall be unlawful to sell or distribute or offer tobacco products or electronic smoking devices for sale or distribution at retail or to possess tobacco products or electronic smoking devices with the intention of selling at retail without having first obtained a tobacco product or electronic smoking device permit from the department, which shall be the only retail tobacco product or electronic smoking device permit or license required. Provided however, this section shall not be deemed to require a wholesaler or manufacturer’s representative or employees who, in the course of their employment, stock shelves and replenish tobacco products or electronic smoking devices at a permittee’s place of business to obtain a permit.
(2) The department shall administer the permitting of tobacco product or electronic smoking device retailers and shall be authorized to ensure compliance with this chapter.
(3)(a) Permits shall be issued annually for each permanent business location to ensure compliance with the requirements of this chapter. A copy of signage required by this chapter, and any other materials deemed necessary shall be provided with each permit issued.
(b) Permits for each mobile cigar retailer shall be issued annually to a specific mobile unit identified by a vehicle identification number or other unique serial number. A single permit shall authorize the retailer to operate at various temporary locations throughout the state.
(4) A separate permit must be obtained for each place of business or mobile unit and is nontransferable to another person, business, or location.
(5) The applicant shall select one (1) or more permit endorsements and make the permit available upon request.
(6) A permittee may display a sign in each location within a place of business where tobacco products or electronic smoking devices are sold or distributed. A sign may be clearly visible to the customer and the seller and shall state: "STATE LAW PROHIBITS THE SALE OF TOBACCO PRODUCTS OR ELECTRONIC SMOKING DEVICES TO PERSONS UNDER THE AGE OF TWENTY-ONE (21) YEARS. PROOF OF AGE REQUIRED. ANYONE WHO SELLS OR DISTRIBUTES TOBACCO PRODUCTS OR ELECTRONIC SMOKING DEVICES TO A PERSON UNDER THE AGE OF TWENTY-ONE (21) YEARS IS SUBJECT TO STRICT FINES AND PENALTIES. PERSONS UNDER THE AGE OF TWENTY-ONE (21) YEARS ARE SUBJECT TO FINES AND PENALTIES."
(a) For a mobile cigar retailer, the sign described in this subsection and required permit shall be permanently affixed to the interior or exterior of the mobile unit in a location readily visible to patrons.
(b) When performing on-site cigar rolling services or operating a designated cigar garden at various temporary locations, the permittee shall display temporary signage at the specific point of distribution or entry. Such signage shall be clearly visible to both the customer and the seller and include the language provided in this subsection.
(7) Permittees are responsible to educate employees as to the requirements of this chapter and retain forms signed by each employee stating that the employee understands such requirements.
(8) It shall be unlawful for the permittee to allow employees who are minors to sell or distribute tobacco products or electronic smoking devices, except as provided in this subsection. Employees who are minors may possess but not sell or distribute tobacco products or electronic smoking devices in the course of employment, for such duties as stocking shelves or carrying purchases to customers’ vehicles, and employees who are eighteen (18) years to twenty (20) years of age may sell or distribute tobacco products or electronic smoking devices in the course and scope of their employment.
(9) A permit shall be closed when the permittee closes the business, no longer sells tobacco or electronic smoking device products, moves to a different physical location, or sells the business.
(10) A permit shall be revoked when it is determined that a permit was fraudulently obtained to avoid penalties on an existing permit.
(11) All permits expire annually at midnight on December 31 unless renewed. The department shall mail notice of renewal for permits at least ninety (90) days prior to expiration.
[39-5704, added 1998, ch. 418, sec. 2, p. 1318; am. 2020, ch. 318, sec. 4, p. 908; am. 2022, ch. 113, sec. 3, p. 418; am. 2025, ch. 64, sec. 5, p. 306; am. 2026, ch. 279, sec. 2, p. 1170.]
(1) It shall be unlawful to sell, distribute, or offer tobacco products or electronic smoking devices to a minor.
(2) It shall be an affirmative defense that the seller of a tobacco product or an electronic smoking device to a minor in violation of this section had requested, examined, and reasonably relied upon a photographic identification from such person establishing that the person is at least twenty-one (21) years of age prior to selling such person a tobacco product or an electronic smoking device. The failure of a seller to request and examine photographic identification from a person under twenty-one (21) years of age prior to the sale of a tobacco product or an electronic smoking device to such person shall be construed against the seller and form a conclusive basis for the seller’s violation of this section.
[39-5705, added 1998, ch. 418, sec. 2, p. 1319; am. 2001, ch. 39, sec. 1, p. 74; am. 2012, ch. 39, sec. 3, p. 119; am. 2020, ch. 318, sec. 5, p. 909; am. 2022, ch. 113, sec. 4, p. 419.]
(1) It shall be unlawful to sell or distribute tobacco products or electronic smoking devices by any means other than vendor-assisted sales where the customer has no access to the product except through the assistance of the seller.
(2) It shall be unlawful to sell or distribute tobacco products or electronic smoking devices from vending machines or self-service displays.
(3) Stores with tobacco products or electronic smoking devices comprising at least seventy-five percent (75%) of total merchandise are exempt from requiring vendor-assisted sales if minors are not allowed in the store and such prohibition is posted clearly on all entrance doors.
(4) This section shall not apply to a permitted mobile cigar retailer or designated cigar garden provided that the mobile unit or designated cigar garden is strictly restricted to persons twenty-one (21) years of age or older and is under the continuous supervision of the permittee or the permittee’s employee.
[39-5706, added 1998, ch. 418, sec. 2, p. 1319; am. 2012, ch. 39, sec. 4, p. 120; am. 2020, ch. 318, sec. 6, p. 909; am. 2025, ch. 64, sec. 6, p. 307; am. 2026, ch. 279, sec. 3, p. 1171.]
(1) It shall be unlawful to sell or distribute tobacco products or electronic smoking devices for commercial purposes other than in the federally required sealed package provided by the manufacturer with all the required warning labels and health warnings.
(2) It shall be unlawful to sell or distribute tobacco products or electronic smoking devices for free or below the cost of such products to the sellers or distributors of the products for commercial or promotional purposes to members of the general public in public places or at public events.
(3) The requirements for original sealed manufacturer packaging and the prohibition against free distribution shall not apply to a mobile cigar retailer providing on-site cigar rolling or experiential services at a private or public event restricted to persons of twenty-one (21) years of age or older, provided that:
(a) The products distributed consist only of cigars or natural tobacco leaves for on-site rolling; and
(b) The host of a private event has purchased the products at full retail price for distribution to guests or the consumer has purchased the product directly.
[39-5707, added 1998, ch. 418, sec. 2, p. 1319; am. 2020, ch. 318, sec. 7, p. 910; am. 2026, ch. 279, sec. 4, p. 1171.]
(1) Any permittee who fails to comply with any part of this chapter regarding the sale or distribution of tobacco products or electronic smoking devices shall be subject to a civil penalty as provided in this section or have their permit suspended, pursuant to compliance with the contested case provisions of the Idaho administrative procedure act, chapter 52, title 67, Idaho Code, or both.
(2) If a seller who is not a permittee violates section 39-5705, Idaho Code, and sells or distributes tobacco products or electronic smoking devices to a minor, then the seller shall be fined one hundred dollars ($100).
(3) In the case of a first violation, the permittee shall be notified in writing of penalties to be levied for further violations.
(4) In the case of a second violation, the permittee shall be fined two hundred dollars ($200) and shall be notified in writing of penalties to be levied for further violations. For a violation of section 39-5705, Idaho Code, the permittee shall not be fined if the permittee can show that a training program was in place for the employee and that the permittee has a form signed by that employee on file stating that the employee understands the tobacco product or electronic smoking device laws dealing with minors and the unlawful purchase of tobacco products or electronic smoking devices, but the permittee shall be notified in writing of penalties to be levied for any further violations. If no such training is in place, the permittee shall be fined two hundred dollars ($200).
(5) In the case of a third violation in a two (2) year period, the permittee shall be fined two hundred dollars ($200) and the permit may be suspended for up to seven (7) days. If the violation is by an employee, at the same location, who was involved in any previous citation for violation, the permittee shall be fined four hundred dollars ($400). Effective training and employment practices by the permittee, as determined by the department, shall be a mitigating factor in determining permit suspension. Evidence of mitigating factors shall be submitted to the department within ten (10) days of the date of violation. Tobacco product or electronic smoking device retailers must remove all tobacco products or electronic smoking devices from all areas accessible to or visible to the public while the permit is suspended.
(6) In the case of four (4) or more violations within a two (2) year period, the permittee shall be fined four hundred dollars ($400) and the permit shall be revoked until such time that the permittee demonstrates an effective training plan to the department, but in no case shall the revocation be for less than thirty (30) days. Tobacco product or electronic smoking device retailers must remove all tobacco products or electronic smoking devices from all areas accessible to or visible to the public while the permit is revoked.
(7) All moneys collected for violations pursuant to this section shall be remitted to the prevention of minors’ access to tobacco products or electronic smoking devices fund created in section 39-5711, Idaho Code.
(8) All fines shall be paid in full prior to renewal of a permit and within ten (10) days of the date of the violation.
[39-5708, added 1998, ch. 418, sec. 2, p. 1319; am. 2001, ch. 39, sec. 2, p. 75; am. 2012, ch. 39, sec. 5, p. 120; am. 2020, ch. 318, sec. 8, p. 910; am. 2025, ch. 64, sec. 7, p. 307.]
Sale or distribution of tobacco products or electronic smoking devices, or any violation of this chapter, without a permit is considered by the state of Idaho as an effort to subvert the state’s public purpose to prevent minor’s access to tobacco products or electronic smoking devices.
(1) The sale or distribution of tobacco products or electronic smoking devices without a permit shall constitute a misdemeanor punishable by imprisonment not exceeding six (6) months in the county jail, a fine of three hundred dollars ($300), or by both such fine and imprisonment. If the sale or distribution of tobacco products or electronic smoking devices was to a minor, the fine shall be no less than five hundred dollars ($500) nor more than one thousand dollars ($1,000). The provisions of this section shall not be applicable to an employee of the business engaged in the sale of tobacco products or electronic smoking devices if the sale occurred during the course of such employment and the seller does not have an ownership interest in the business.
(2) In addition to the penalties set forth in subsection (1) of this section, the court may impose an additional fine of one thousand dollars ($1,000) per day beginning the day following the date of citation as long as the illegal tobacco products or electronic smoking devices sales or distribution continues. The first seven (7) days of additional fines may be suspended, provided that the business or seller is able to prove that the business or seller has applied for the permit within seven (7) days of the citation.
[39-5709, added 1998, ch. 418, sec. 2, p. 1320; am. 2020, ch. 318, sec. 9, p. 911.]
(1) It is the intent of the legislature that law enforcement agencies, the attorney general, and the department shall enforce this chapter in a manner that can reasonably be expected to significantly reduce the extent to which tobacco products and electronic smoking devices are sold or distributed to minors.
(2) Law enforcement agencies may conduct random, unannounced inspections at locations where tobacco products or electronic smoking devices are sold or distributed to ensure compliance with this chapter. A copy of all citations issued under this chapter shall be submitted to the department.
(3) The department shall conduct at least one (1) random, unannounced inspection per year at all locations where tobacco products or electronic smoking devices are sold or distributed at retail to ensure compliance with this chapter. The department shall conduct inspections for minor-exempt permittees without the assistance of a minor. The department shall conduct inspections for all other permittees with the assistance of a minor. Each year, the department shall conduct random, unannounced inspections equal to the number of permittees on the last day of the calendar year multiplied by the violation percentage rate reported for the previous year multiplied by a factor of ten (10). In no instance will the number of inspections exceed twice the number of permittees. Local law enforcement agencies are encouraged to contract with the department to perform these required inspections.
(4) Minors may assist with random, unannounced inspections, provided that minors under the age of eighteen (18) years must have the written consent of a parent or legal guardian. When assisting with these inspections, minors shall not provide false identification or make any false statement regarding their age.
(5) Citizens may file a written complaint of noncompliance of this chapter with the department or with a law enforcement agency. Permit holders under 26 U.S.C. 5712 may file written complaints relating to delivery sales to the department or the attorney general’s offices. Complaints shall be investigated and the proper enforcement actions taken.
(6) Within a reasonable time, not later than two (2) business days after an inspection has occurred, a representative of the business inspected shall be informed in writing of the results of the inspection.
(7) The attorney general or his designee, or any person who holds a permit under 26 U.S.C. 5712, may bring an action in district court in Idaho to prevent or restrain violations of this chapter by any person or by any person controlling such person.
[39-5710, added 1998, ch. 418, sec. 2, p. 1321; am. 2001, ch. 39, sec. 3, p. 75; am. 2003, ch. 159, sec. 2, p. 450; am. 2003, ch. 273, sec. 2, p. 729; am. 2012, ch. 39, sec. 6, p. 121; am. 2020, ch. 318, sec. 10, p. 911; am. 2022, ch. 113, sec. 5, p. 420; am. 2025, ch. 64, sec. 8, p. 308.]
There is hereby created the prevention of minors’ access to tobacco products or electronic smoking devices fund in the state treasury. Moneys in the fund shall be used to fund the administration, inspections and enforcement of this chapter. Moneys in the fund may be expended only pursuant to appropriation. The fund shall consist of:
(1) The current federal funds that are available for inspections or for the prevention of minors’ access to tobacco products or electronic smoking devices shall be utilized by the department;
(2) The fines from the civil penalties pursuant to section 39-5708, Idaho Code; and
(3) Moneys from any other source.
[39-5711, added 1998, ch. 418, sec. 2, p. 1321; am. 2020, ch. 318, sec. 11, p. 912.]
If any section or provision of this chapter is held invalid, such invalidity shall not affect other sections or provisions of this chapter.
[39-5712, added 1998, ch. 418, sec. 2, p. 1321.]
No local unit of government may adopt or enforce requirements for the regulation, marketing, or sale of tobacco products or electronic smoking devices that are more restrictive than or in addition to this chapter. No local unit of government may impose or enforce a tax or fee on tobacco products or electronic smoking devices. This section shall not be construed to prevent a local unit of government from regulating the use of tobacco products or electronic smoking devices in any public place pursuant to section 39-5511, Idaho Code, or in any other public outdoor area. Nothing in this section shall preclude or preempt any local, county, or municipal government from exercising its lawful authority to regulate zoning or land use.
[39-5713, added 1998, ch. 418, sec. 2, p. 1321; am. 2012, ch. 39, sec. 7, p. 121; am. 2022, ch. 191, sec. 1, p. 627.]
(1) No permittee shall make a delivery sale of tobacco products or electronic smoking devices to any individual who is under age twenty-one (21) years in this state.
(2) Each permittee taking a delivery sale order shall comply with: the age verification requirements set forth in section 39-5715, Idaho Code; the disclosure and notice requirements set forth in section 39-5716, Idaho Code; the shipping requirements set forth in section 39-5717, Idaho Code; the registration and reporting requirements set forth in section 39-5718, Idaho Code; all tax collection requirements provided by title 63, Idaho Code; and all other laws of the state of Idaho generally applicable to sales of tobacco products or electronic smoking devices that occur entirely within Idaho, including but not limited to those laws imposing excise taxes, sales and use taxes, licensing and tax stamping requirements, and escrow or other payment obligations.
[39-5714, added 2003, ch. 273, sec. 3, p. 730; am. 2012, ch. 39, sec. 8, p. 122; am. 2020, ch. 318, sec. 12, p. 912; am. 2022, ch. 113, sec. 6, p. 420.]
No permittee shall mail or ship tobacco products or electronic smoking devices in connection with a delivery sale order unless, before mailing or shipping such tobacco products or electronic smoking devices, the permittee accepting the delivery sale order first obtains from the prospective customer a certification that includes proof of age that the purchaser is at least twenty-one (21) years old, the credit or debit card used for payment has been issued in the purchaser’s name, and the address to which the tobacco products or electronic smoking devices are being shipped matches the credit card company’s address for the cardholder or employs technology that requires and authenticates independent, third-party age and identity verification services, comparing data against third-party sources.
[39-5715, added 2003, ch. 273, sec. 3, p. 730; am. 2012, ch. 39, sec. 9, p. 122; am. 2020, ch. 318, sec. 13, p. 913; am. 2022, ch. 113, sec. 7, p. 421.]
For all delivery sales a permittee shall post on any advertisement or website:
(1) The cautionary language for signs under section 39-5704(6), Idaho Code;
(2) A prominent and clearly legible statement that consists of one (1) of the warnings set forth in section 4(a)(1) of the federal cigarette labeling and advertising act (15 U.S.C. section 1333(a)(1)) rotated on a quarterly basis;
(3) A prominent and clearly legible statement that sales of cigarettes are taxable under chapter 25, title 63, Idaho Code, and an explanation of how such tax has been, or is to be paid, with respect to such delivery sale.
[39-5716, added 2003, ch. 273, sec. 3, p. 730.]
Each permittee who mails or ships tobacco products or electronic smoking devices in connection with a delivery sale order shall include as part of the shipping documents a clear and conspicuous statement providing as follows:
TOBACCO PRODUCTS or electronic smoking devices: IDAHO LAW PROHIBITS SHIPPING TO INDIVIDUALS UNDER THE AGE OF TWENTY-ONE (21) YEARS AND REQUIRES THE PAYMENT OF TAXES PURSUANT TO CHAPTER 25, TITLE 63, IDAHO CODE. PERSONS VIOLATING THIS LAW MAY BE CIVILLY AND CRIMINALLY LIABLE.
Anyone who delivers any such container distributes tobacco products or electronic smoking devices as defined in section 39-5702, Idaho Code, and is subject to the terms and requirements of this chapter. If a permittee taking a delivery sale order also delivers the tobacco products or electronic smoking devices without using a third-party delivery service, the permittee shall comply with all the requirements of vendor-assisted sales as defined in section 39-5702, Idaho Code.
[39-5717, added 2003, ch. 273, sec. 3, p. 730; am. 2012, ch. 39, sec. 10, p. 122; am. 2020, ch. 318, sec. 14, p. 913; am. 2022, ch. 113, sec. 8, p. 421; am. 2025, ch. 64, sec. 10, p. 309; am. 2026, ch. 279, sec. 5, p. 1172.]
(1) Prior to making delivery sales or shipping tobacco products or electronic smoking devices in connection with any such sales, every business shall obtain a permit from the department and file with the state tax commission a statement setting forth the permittee’s name, trade name, and the address of the business’s principal place of business and any other place of business.
(2) No later than the tenth day of each calendar month, each permittee that has made a delivery sale or shipped or delivered tobacco products or electronic smoking devices in connection with any such sale during the previous calendar month shall file with the department and the state tax commission a memorandum or a copy of the invoice that provides for each and every such delivery sale:
(a) The name and address of the individual to whom the delivery sale was made;
(b) The brand or brands of the tobacco products or electronic smoking devices that were sold in such delivery sale; and
(c) The quantity of tobacco products or electronic smoking devices that were sold in such delivery sale.
(3) Any tobacco products or electronic smoking devices sold or attempted to be sold in a delivery sale that does not meet the requirements of this chapter shall be forfeited to the state of Idaho.
[39-5718, added 2003, ch. 273, sec. 3, p. 731; am. 2020, ch. 318, sec. 16, p. 913.]
This chapter shall be known and may be cited as the "State Hazardous Waste Facility Siting Act."
[39-5801, added 1985, ch. 113, sec. 1, p. 221.]
(1) The legislature of the state of Idaho hereby finds that adverse public health and environmental impacts can result from the improper land disposal of hazardous waste and that the need for establishing safe sites with adequate capacity for the disposal of hazardous waste is a matter of statewide concern, and the provisions of this chapter are therefore enacted to provide an effective method of establishing such sites.
(2) It is the intent of the legislature of the state of Idaho that generators of hazardous waste be encouraged to use on-site and off-site alternative treatment methods to reduce the amount of hazardous waste that must be discharged into the environment and to reduce associated hazards to the health and welfare of the citizens of this state. Alternative management technologies which detoxify, stabilize and reduce the amount of hazardous waste that must be buried are available. For such purpose, the provisions of this chapter are enacted to allow the development of safe alternative methods for the treatment of hazardous waste and to provide a means for the designation of hazardous waste disposal sites when such methods are unable to obviate the need for hazardous waste disposal on land. Whereas the state of Idaho may be responsible for the perpetual care of hazardous waste land disposal facilities, alternative technologies such as incineration, resource recovery, or physical, chemical or biological degradation should be implemented to the maximum extent possible.
(3) It is the intent of the legislature that the site license process not duplicate the existing hazardous waste management act permitting process as set forth in section 39-4409, Idaho Code. The site license is a preliminary, general review which is not based on the type of specific, detailed technical information required for the hazardous waste management act permit.
[39-5802, added 1985, ch. 113, sec. 1, p. 221; am. 1987, ch. 103, sec. 1, p. 207.]
As used in this chapter:
(1) "Panel" means the site review panel created in section 39-5812, Idaho Code.
(2) "Committee" means the state hazardous waste management planning committee created in section 39-5805, Idaho Code.
(3) "Department" means the department of environmental quality.
(4) "Designated facility" means a hazardous waste treatment, storage or disposal facility that has received a permit or has interim status under title II of the solid waste disposal act or has a permit from the state authorized under section 3006 of title II of the solid waste disposal act (42 U.S.C. 6926).
(5) "Director" means the director of the department of environmental quality.
(6) "Disposal" is defined in section 39-4403, Idaho Code.
(7) "Disposal facility" means a facility or a part of a facility at which managed hazardous waste, as defined by rule, is intentionally placed into or on any land or water and at which hazardous waste will remain after closure.
(8) "Generator" is defined in section 39-4403, Idaho Code.
(9) "Hazardous waste" is defined in section 39-4403, Idaho Code.
(10) "Hazardous waste management" is defined in section 39-4403, Idaho Code.
(11) "On-site" means on the same or geographically contiguous property that may be divided by a public or private right-of-way if the entrance and exit between the pieces of property are at a crossroads intersection and access is by crossing rather than going along the right-of-way. Noncontiguous pieces of property owned by the same person but connected by a right-of-way that the owner controls and to which the public does not have access is also considered on-site property.
(12) "Operator" means the person responsible for the overall operation of a disposal, treatment or storage facility with approval of the director either by contract or permit.
(13) "Person" is defined in section 39-4403, Idaho Code.
(14) "Plan" means the state hazardous waste management plan prepared under the provisions of section 39-5806, Idaho Code.
(15) "Storage" is defined in section 39-4403, Idaho Code.
(16) "Storage facility" means a facility or part of a facility at which managed hazardous waste, as defined by rule and regulation, is subject to storage.
(17) "Title II of the solid waste disposal act" means sections 1001 through 8006 of public law 89-272, 42 U.S.C. 6901, 6902 through 6910, 6912 through 6940, and 6942 through 6986.
For purposes of this chapter, words and phrases defined in section 39-4403, Idaho Code, shall carry the same meaning when used in this chapter unless the context clearly denotes otherwise.
[39-5803, added 1985, ch. 113, sec. 1, p. 221; am. 2001, ch. 103, sec. 50, p. 292; am. 2021, ch. 321, sec. 22, p. 965.]
The department and the committee in the conduct of their duties under the provisions of this chapter and under the provisions of chapter 44, title 39, Idaho Code, shall assist in encouraging, developing and implementing methods of hazardous waste management which are environmentally sound, which maximize the utilization of valuable resources and which encourage resource conservation including source separation and waste reduction.
[39-5804, added 1985, ch. 113, sec. 1, p. 222.]
(1) The state hazardous waste management planning committee is hereby created in the department. The committee shall represent diverse geographical areas of the state. No later than September 1, 1985, the governor shall, subject to the advice and consent of the senate, appoint seventeen (17) members to the committee consisting of the following representatives:
(a) One (1) representative of city government;
(b) One (1) representative of county government;
(c) One (1) hazardous waste transporter;
(d) One (1) hazardous waste generator;
(e) One (1) hazardous waste treatment, storage, or disposal facility operator;
(f) One (1) member of an environmental group;
(g) One (1) member of a conservation group;
(h) Two (2) members of the general public;
(i) The director of the department or his designee;
(j) The director of the department of water resources or his designee;
(k) One (1) licensed professional engineer;
(l) A faculty member of a university or college in this state well versed in geology, hydrology or other environmental matters;
(m) The director of the Idaho transportation department or his designee;
(n) One (1) representative of the mining industry;
(o) One (1) representative of the forest products industry; and
(p) One (1) representative of the agricultural industry.
(2) A vacancy occurring on the committee shall be filled in the same manner as the original appointment.
(3) The chairman of the committee shall be elected by the members of the committee and the chairman shall be a voting member of the committee.
(4) Members of the committee who are not state employees shall be entitled to receive compensation as provided in section 59-509(b), Idaho Code.
(5) The committee by majority vote shall establish operating procedures. The operating procedures shall be made available for public review.
(6) In the conduct of its business, the committee shall solicit the advice of, and consult periodically with cities, counties and persons within the state for the purpose of receiving information or advice that may be helpful in the preparation of the plan.
(7) Employees of the department of environmental quality, department of water resources and the transportation department shall assist the committee on a priority basis.
(8) The committee shall disband after final approval of the plan by the legislature.
(9) Upon petition to the director and the director’s recommendation to the governor, the governor shall appoint a committee in the same manner as the original committee to amend or revise the plan.
(10) The committee shall hold its first meeting as soon as practicable after confirmation by the senate.
[39-5805, added 1985, ch. 113, sec. 1, p. 222; am. 2001, ch. 103, sec. 51, p. 293.]
(1) Not later than January 1, 1987, the committee shall prepare a state hazardous waste siting management plan.
(2) The plan shall:
(a) Provide for a reasonable geographic distribution of hazardous waste treatment, storage, or disposal facilities to meet existing and probable future needs.
(b) Be based upon location of generators, health and safety, economics of transporting, types of waste and existing hazardous waste treatment, storage, or disposal facilities.
(c) Include necessary legislative, administrative and economic mechanisms, a timetable to carry out the plan.
(3) The committee may instruct the department of environmental quality, the department of water resources and the transportation department to complete studies as considered reasonably necessary for the completion of the plan. The studies may include:
(a) An inventory and evaluation of the sources of hazardous waste generation within this state or from other states, including the types and quantities of the hazardous waste.
(b) An inventory and evaluation of current hazardous waste management practices and costs, including treatment and disposal, within this state.
(c) A projection or determination of future hazardous waste management needs based on an evaluation of existing capacities, treatment or disposal capabilities, manufacturing activity, limitations and constraints. Projection of needs shall consider the types and sizes of hazardous waste treatment, storage, or disposal facilities, general locations within the state, management control systems, and an identified need for additional privately owned or state owned treatment, storage, or disposal facilities.
(d) An investigation and analysis of methods and incentives to encourage interstate and international cooperation in the management of hazardous waste.
(e) An investigation and analysis of methods, incentives or technologies for source reduction, reuse, recycling, or recovery of potentially hazardous waste and a strategy for encouraging the utilization or reduction of hazardous waste.
(f) An investigation and analysis of alternate methods for treatment and disposal of hazardous waste.
(4) Upon completion of the plan, the committee shall publish a notice after giving twenty (20) days’ notice as provided in section 60-109, Idaho Code, in a number of newspapers and shall issue a statewide news release announcing the availability of the plan for inspection by interested persons. The announcement shall indicate where and how the plan may be obtained or reviewed and shall indicate that not less than three (3) public hearings shall be conducted at varying locations in the state before formal adoption. The first public hearing shall not be held until sixty (60) days have elapsed from the date of the notice announcing the availability of the plan.
(5) After public hearings, the committee shall prepare a written summary of the comments received, provide comments on the major concerns raised, make amendments to the plan as necessary and shall formally adopt the plan, and shall submit the plan to the legislature at the first regular session of the legislature following adoption of the plan.
[39-5806, added 1985, ch. 113, sec. 1, p. 223; am. 2001, ch. 103, sec. 52, p. 294.]
The legislature shall amend, adopt or reject the plan by passage of a concurrent resolution at the regular legislative session when it receives the plan. If the legislature amends or rejects the plan, it shall indicate its reasons for amendment or rejection by passage of a concurrent resolution and return the plan to the committee.
[39-5807, added 1985, ch. 113, sec. 1, p. 224.]
No person shall construct, expand, enlarge or alter a commercial hazardous waste disposal, treatment or storage facility or any on-site land disposal facility for wastes listed pursuant to section 201(d)(2) and (e), as modified by section 209 of "The Hazardous and Solid Waste Amendments of 1984," as enacted by the U.S. congress, without a siting license from the department. The owner or operator of the facility or site rather than the builder shall be responsible for obtaining the license. Facilities exempted from permitting under the provisions of section 39-4409, Idaho Code, shall not require a license under the provisions of this chapter.
[39-5808, added 1985, ch. 113, sec. 1, p. 225.]
The director may issue permits under the provisions of chapter 44, title 39, Idaho Code, or licenses pursuant to this chapter, for existing or proposed hazardous waste treatment, storage or disposal facilities and other authorized operations before the adoption of the plan by the committee.
[39-5809, added 1985, ch. 113, sec. 1, p. 225.]
After the plan has been adopted by the committee, the director shall not issue a license under the provisions of this chapter for a hazardous waste treatment, storage or disposal facility until the director has made a determination that the action is consistent with the adopted hazardous waste management plan. The director may exempt classes or categories of hazardous waste treatment, storage or disposal facilities from complying with the hazardous waste management plan if the exemption is in the public interest and consistent with state and federal law. If the director exempts classes or categories of hazardous waste treatment, storage or disposal facilities from complying with the hazardous waste management plan, rules and regulations shall be promulgated in compliance with chapter 52, title 67, Idaho Code, specifically indicating the exemption.
[39-5810, added 1985, ch. 113, sec. 1, p. 225.]
(1) A hazardous waste treatment, storage, or disposal facility in existence on July 1, 1985, shall not require a review under the provisions of this chapter.
(2) The expansion, enlargement, or alteration of a hazardous waste treatment, storage, or disposal facility in existence on July 1, 1985, constitutes a new proposal for which a siting license is required.
[39-5811, added 1985, ch. 113, sec. 1, p. 225.]
(1) A site review panel shall be established to insure public input in the licensing process and to recommend to the director conditions which should be included in the siting license. Such conditions may include measures to mitigate public concerns for the following types of facilities:
(a) All commercial hazardous waste disposal facilities not in existence prior to July 1, 1985;
(b) All commercial hazardous waste treatment or storage facilities not in existence prior to July 1, 1985;
(c) Any on-site disposal of wastes listed pursuant to section 201(d)(2) and (e) as modified by section 209 of "The Hazardous and Solid Waste Amendments of 1984," as enacted by the U.S. congress, for sites not in existence prior to July 1, 1985;
(d) Any significant expansion of the above-listed facilities after July 1, 1985.
A panel shall consist of ten (10) members to be appointed as provided in subsections (2) and (3) of this section.
(2) The following six (6) members shall serve on every panel established to review a siting license application:
(a) Three (3) members shall be representatives of this state, one (1) each from the department of environmental quality, the department of water resources and the Idaho transportation department. A member who is a representative of this state shall be appointed by each of the directors of the respective departments and a vacancy shall be filled as necessary by the appropriate director. A member who is a representative of the state shall be appointed to serve on site review panels for a period of two (2) years and may be appointed for additional two (2) year periods. In addition, a member who is a representative of the state may serve beyond the expiration of the member’s two (2) year period of service for so long a period of time as is necessary to complete action on siting license applications pending at the expiration of the member’s term.
(b) Three (3) members shall be public members appointed by the governor with the advice and consent of the senate. One (1) public member shall be a geologist or hydrologist, one (1) an engineer, and one (1) a representative of industries which generate hazardous waste. One (1) public member shall be on the faculty of an institution of higher education in this state. A vacancy shall be filled for the unexpired portion of the period in the same manner as the original appointment. A member who is a public member shall be appointed to serve on site review panels for a period of three (3) years and may be appointed for additional three (3) year periods.
(3) The following four (4) members shall serve on a panel which is established to consider a particular siting license application:
(a) Two (2) members shall be appointed by the city council of the city located closest to or in which the hazardous waste treatment, storage, or disposal facility is proposed to be located, at least one (1) of whom shall be a resident of the city. The members serving pursuant to this subsection shall serve until the particular siting license application subject to their review is approved, or until the application is rejected and is no longer subject to their review.
(b) Two (2) members shall be residents of the county where the hazardous waste treatment, storage, or disposal facility is proposed to be located and shall be appointed by the board of commissioners of the county. The members serving pursuant to this subsection shall serve until the particular siting license application subject to their review is approved, or until the application is rejected and is no longer subject to their review.
(4) The member appointed as the representative of the state from the department shall be chairman of each panel and shall notify the city council of the nearest city and the board of county commissioners of a siting license application filed with the department, and shall instruct the city and county to appoint the necessary representatives to a panel. The chairman shall be a nonvoting member of the panel except when the chairman’s vote is necessary to break a tie vote.
(5) Six (6) of the ten (10) members of the panel shall constitute a quorum for the transaction of business of the panel and the concurrence of six (6) members of the panel shall constitute a legal action of the panel. All meetings of the panel shall be conducted pursuant to the state open meeting law.
(6) The director shall make staff available to assist a panel in carrying out its responsibilities.
(7) Members of the panel who are not state employees shall be entitled to receive compensation as provided in section 59-509(b), Idaho Code.
[39-5812, added 1985, ch. 113, sec. 1, p. 225; am. 1987, ch. 103, sec. 2, p. 208; am. 2001, ch. 103, sec. 53, p. 295.]
(1) An application for a siting license shall include:
(a) The name and residence of the applicant;
(b) The location of the proposed hazardous waste treatment, storage, or disposal facility;
(c) Engineering or hydrogeologic information to indicate compliance with technical criteria as adopted in the hazardous waste management plan if applicable;
(d) A description of the types of wastes proposed to be handled at the facility;
(e) Information showing that harm to scenic, historic, cultural or recreational values is not substantial or can be mitigated;
(f) Information showing that the risk and impact of accident during transport of hazardous waste is not substantial or can be mitigated; and
(g) Information showing that the impact on local government is not adverse regarding health, safety, cost and consistency with local planning and existing development or can be mitigated.
(2) Within thirty (30) days after receipt of the application, the director shall determine whether it is complete. If it is not complete, the director shall notify the applicant and state the areas of deficiency.
(3) The application shall be accompanied by a siting license fee. The director shall establish by rule, the scale for determining the siting license application fee. The fee shall not exceed seven thousand five hundred dollars ($7,500) and shall be based on the cost to the department of reviewing the siting license application. The scale shall be based on characteristics including the site size, projected waste volume, and hydrogeological characteristics surrounding the site. Fees received pursuant to this section may be expended by the director to pay the actual, reasonable and necessary costs incurred by the department in acting upon a siting license application. The director may promulgate rules and regulations in compliance with chapter 52, title 67, Idaho Code, in order to implement and administer the provisions of this section.
[39-5813, added 1985, ch. 113, sec. 1, p. 227; am. 1987, ch. 103, sec. 3, p. 209.]
(1) Upon receipt of a complete siting license application, the director or an authorized representative of the director shall:
(a) Immediately notify the permanent panel members, the city and/or county in which the hazardous waste treatment, storage, or disposal facility is located or proposed to be located, the state fire marshal, the director of the department of fish and game, the director of the Idaho state police, and each division within the department that has responsibility in land, air or water management, and other appropriate agencies. The notice shall describe the procedure and the schedule based on the complexity of the application by which the siting license may be approved or denied.
(b) Immediately publish a notice that the application has been received, as provided in section 60-109, Idaho Code, in a newspaper having major circulation in the county and the immediate vicinity of the proposed hazardous waste treatment, storage, or disposal facility. The required published notice shall contain a map indicating the location of the proposed hazardous waste treatment, storage, or disposal facility and shall contain a description of the proposed action and the location where the complete application package may be reviewed and where copies may be obtained. The notice shall describe the procedure by which the siting license may be granted.
(2) Upon notification by the director, the chairman shall immediately notify the representatives of the state to the panel and the public members. The chairman shall also notify the applicable county and city for their appointment of members as provided in subsection (3) of section 39-5812, Idaho Code. Within thirty (30) days after the notification, the board of commissioners of the county and the city council shall select the members to serve on the panel. The panel shall be created at that time and notification of the creation of the panel shall be made to the chairman.
(3) If technical criteria are not applicable, the director shall submit to the panel a draft site license which includes conditions based on the information submitted in the application. The director shall also recommend to the panel that the license be issued or denied. The draft license submittal shall be made within sixty-five (65) days after a complete application is received.
(4) If technical criteria as adopted in the hazardous waste management plan are applicable, the director shall determine if the proposed facility complies with the criteria. Such determination shall be made within forty-five (45) days after a complete application is received. If the technical criteria are not met, the director shall deny the license and the panel shall be disbanded. If the technical criteria are met, the director shall submit to the panel a draft site license which includes conditions regarding the technical criteria to be met. These conditions may be more stringent than those in the plan if warranted by information provided in the application. The draft license may also include additional conditions based on the information submitted in the application regarding the construction of the facility. The director shall also recommend to the panel that the license be issued or denied. The denial or draft license submittal shall be made within sixty-five (65) days after a complete application is received. The director shall immediately notify the applicant and the chairman of the panel of the denial or draft license submittal.
(5) Within ten (10) days after submittal of a draft license, the panel shall meet to review and establish a timetable for the consideration of the draft site license.
(6) The panel shall:
(a) Set a date and arrange for publication of notice of a public hearing in a newspaper having major circulation in the vicinity of the proposed site, at its first meeting. The public notice shall:
(i) Contain a map indicating the location of the proposed hazardous waste treatment, storage, or disposal facility, a description of the proposed action, and the location where the application for a siting license may be reviewed and where copies may be obtained;
(ii) Identify the time, place and location for the public hearing held to receive public comment and input on the application for a siting license;
(b) Publish the notice not less than thirty (30) days before the date of the public hearing and the notice shall be, at a minimum, a twenty (20) days’ notice as provided in section 60-109, Idaho Code.
(7) Comment and input on the proposed hazardous waste treatment, storage, or disposal facility may be presented orally or in writing at the public hearing, and shall continue to be accepted in writing by the panel for fifteen (15) days after the public hearing date.
(8) The panel shall consider, among other things:
(a) The risk and impact of accident during the transportation of hazardous waste;
(b) The risk of fires or explosions from improper treatment, storage, or disposal methods;
(c) The impact on local units of government where the proposed hazardous waste treatment, storage, or disposal facility is to be located in terms of health, safety, cost and consistency with local planning and existing development. The panel shall also consider city and county ordinances, permits or other requirements and their potential relationship to the proposed hazardous waste treatment, storage, or disposal facility;
(d) The nature of the probable environmental impact.
(9) The panel’s primary responsibility shall be to consider the concerns and objections submitted by the public. The panel shall facilitate efforts to provide that the concerns and objections are mitigated by proposing additional conditions regarding the construction of the facility. The panel may propose conditions which integrate the provisions of the city or county ordinances, permits or requirements.
(10) Within ninety (90) days after creation, the panel shall recommend to the director that the license be issued as proposed, issued with different or additional conditions, or denied. The director shall make a final decision within thirty (30) days after receipt of the panel’s recommendation. If the panel recommends different or additional conditions, a clear statement of the need for the condition must be submitted to the director. If the panel recommends denial, a clear statement of the reasons for the denial must be submitted to the director.
(11) The director shall issue a siting license if the director determines that:
(a) The technical criteria are met;
(b) The harm to scenic, historic, cultural or recreational values is not substantial or can be mitigated by appropriate license conditions;
(c) The risk and impact of accident during transportation of hazardous waste is not substantial or can be mitigated with appropriate license conditions;
(d) The impact on local government is not adverse regarding health, safety, cost and consistency with local planning and existing development or can be mitigated with appropriate license conditions; and
(e) No other major concerns have been raised by the panel regarding public health or the environment which cannot be mitigated by special license conditions.
(12) An applicant denied a siting license pursuant to this chapter or any person aggrieved by a decision of the director pursuant to this chapter may within twenty-eight (28) days, after all remedies have been exhausted under the provisions of this chapter, seek judicial review under the procedures provided in chapter 52, title 67, Idaho Code.
(13) No permit pursuant to section 39-4409, Idaho Code, shall be issued unless the applicant has been issued a site license.
[39-5814, added 1985, ch. 113, sec. 1, p. 227; am. 1987, ch. 103, sec. 4, p. 210; am. 1993, ch. 216, sec. 29, p. 609; am. 2000, ch. 469, sec. 99, p. 1550.]
An ordinance, permit requirement or other requirement of a city or county shall not prohibit the construction of a hazardous waste treatment, storage, or disposal facility in that city or county.
[39-5816, added 1985, ch. 113, sec. 1, p. 231.]
The director shall coordinate and integrate the provisions of this chapter for purposes of administration and enforcement with appropriate state and federal law.
[39-5817, added 1985, ch. 113, sec. 1, p. 231.]
(1) Except as provided in subsection (2) of this section, information obtained by the department under the provisions of this chapter shall be deemed to be a public record.
(2) A person regulated under the provisions of this chapter may designate a record, site license application, other information, or a portion of a record, site license application, or other information furnished to or obtained by the department or its agents, as being only for the use of the department and the panel. The material shall then be subject to disclosure according to chapter 1, title 74, Idaho Code.
[39-5818, added 1985, ch. 113, sec. 1, p. 231; am. 1990, ch. 213, sec. 49, p. 520; am. 2015, ch. 141, sec. 97, p. 448.]
The department may certify a city, county or health district to administer and enforce portions of this chapter and chapter 44, title 39, Idaho Code, but only to the extent consistent with obtaining and maintaining authorization of the state’s hazardous waste management program pursuant to section 3006 of title II of the solid waste disposal act. Certification procedures shall be established by the department by rule and regulations. The director may rescind certification upon the request of the certified city, county, or health district, or after reasonable notice and hearing, if the director finds that a city, county, or health district is not administering and enforcing the provisions of this chapter or chapter 44, title 39, Idaho Code, or both, as required.
[39-5819, added 1985, ch. 113, sec. 1, p. 231.]
(1) Before construction of a hazardous waste treatment, storage, or disposal facility, but in no case later than nine (9) months after approval of a site license for a hazardous waste treatment, storage, or disposal facility, any owner or user of real property adversely affected by approval may bring an action in a district court of competent jurisdiction against the owner of the proposed facility. If the court determines that the planned construction and operation of the hazardous waste treatment, storage, or disposal facility will result in the devaluation of the plaintiff’s property or will otherwise interfere with the plaintiff’s rights in the property, it shall order the owner to compensate the plaintiff in an amount equal to the value of the plaintiff’s loss.
(2) The remedy provided in subsection (1) of this section shall be in addition to other remedies provided by law for owners or users aggrieved by the proposed construction and operation of a hazardous waste treatment, storage or disposal facility.
(3) Nothing in this chapter shall prevent an owner or user of property aggrieved by the construction and operation of a facility from seeking damages that result from a subsequent modification of the design or operation of a facility but such damages are limited to the incremental damage that results from the modification. Any action for such damages under this section shall be brought within nine (9) months after the siting license for modification of the design or operation of the facility is approved.
(4) For the purpose of assessing damages, the value of the rights affected is fixed at the date the siting license is approved and the actual value of the right at that date is the basis for the determination of the amount of damage suffered, and no improvements to the property subsequent to the date of approval of the plans shall be included in the assessment of damages. Similarly, for any subsequent modification of a facility, value is fixed at the date of approval of the siting license.
(5) The owner or operator of a proposed facility may, at any time before an award of damages, abandon the construction or operation of the facility or any modification and cause the action to be dismissed. As a condition of dismissal, however, the owner or operator shall compensate the plaintiff for any actual damage sustained as a result of construction or operation of the facility before abandonment together with court costs and a reasonable attorney’s fee.
(6) Nothing in this chapter shall prevent a court from enjoining any activity at a hazardous waste treatment, storage, or disposal facility that is outside of, or not in compliance with, the terms and conditions of an approved hazardous waste operations permit pursuant to section 39-4409, Idaho Code.
[39-5820, added 1985, ch. 113, sec. 1, p. 232.]
This act shall be known and cited as the "Idaho Rural Health Care Access Program."
[39-5901, added 2000, ch. 262, sec. 2, p. 735.]
(1) There is hereby created in the state treasury a fund known as the "Rural Health Care Access Fund." Subject to appropriation by the legislature, moneys in the fund shall be used exclusively for the purpose of grants for improving access to primary care medical services in areas designated as primary care health professional shortage areas and medically underserved areas and their administration pursuant to this chapter.
(2) There is hereby created in the state treasury a fund known as the "Rural Physician Incentive Fund." Money is payable into the fund as provided for in section 33-3723, Idaho Code. The moneys in the rural physician incentive fund are hereby appropriated for the uses of the fund. The state department of health and welfare may use the moneys in the fund to pay:
(a) The educational debts of rural physicians who practice primary care medicine in medically underserved areas of the state that demonstrate a need for assistance in physician recruitment; and
(b) The expenses of administering the rural physician incentive program. The expenses of administering the program shall not exceed ten percent (10%) of the annual fees assessed pursuant to section 33-3723, Idaho Code.
[39-5902, added 2000, ch. 262, sec. 2, p. 735; am. 2012, ch. 44, sec. 4, p. 132.]
As used in this chapter:
(1) "Applicant" means an entity submitting documents required by the department for the purpose of requesting a grant from the rural health care access and physician incentive program.
(2) "Application period" means the time period from July 1 to August 30 of the state fiscal year for which funding is requested.
(3) "Approval" means written notification that the application will be awarded funding through the rural health care access and physician incentive program.
(4) "Board" means the joint health care access and physician incentive grant review board.
(5) "Community sponsoring organization" means a hospital, medical clinic or other medical organization that is located in an eligible area and employs physicians for purposes of providing primary care medical services to patients.
(6) "Department" means the department of health and welfare.
(7) "Director" means the director of the department of health and welfare.
(8) "Eligible area for physician incentive grants" means a medically underserved area of Idaho, further defined to mean an area designated by the United States secretary of health and human services as a health professional shortage area.
(9) "Grant period" means the time immediately following the application period from July 1 through June 30 (state fiscal year) for which funding is granted.
(10) "Nurse practitioner" means a health care provider licensed pursuant to chapter 14, title 54, Idaho Code.
(11) "Oral health care provider" means a dentist or dental hygienist licensed pursuant to chapter 9, title 54, Idaho Code.
(12) "Physician assistant" means a health care provider licensed pursuant to chapter 18, title 54, Idaho Code.
(13) "Primary care," for purposes of rural health care access grants, means the provision of professional comprehensive health services, including oral health care services, that includes health education and disease prevention, initial assessment of health problems, treatment of acute care and chronic health problems, and the overall management of an individual’s or family’s health care services as provided by an Idaho licensed internist, obstetrician, gynecologist, pediatrician, family practitioner, general practitioner, dentist, dental hygienist, nurse practitioner or physician assistant. It provides the initial contact for health services and referral for secondary and tertiary care.
(14) "Primary care health professional shortage area" means a geographic area or population group which the U.S. secretary of health and human services has determined is underserved by primary care health professional(s).
(15) "Primary care medicine," for purposes of rural physician incentive grants, means family medicine, general internal medicine and general pediatrics. Provided however, if there is a demonstrated high level of need in an eligible area as determined by the board, it may also include obstetrics and gynecology, general psychiatry, general surgery and emergency medicine.
(16) "Medically underserved area" means a geographic area which the U.S. secretary of health and human services has determined is underserved by primary care health professional(s).
(17) "Qualified medical education debt" means a debt with a financial aid program or financial institution incurred to meet the educational costs of attending a medical school.
(18) "Rural health care access grant" means a grant awarded pursuant to this chapter.
(19) "Rural health care access and physician incentive program" means the program that administers the rural health care access and physician incentive funds.
(20) "Rural physician," for purposes of physician incentive grants, means a licensed Idaho physician, whether a medical doctor or doctor of osteopathic medicine, who spends a minimum of twenty-eight (28) hours per week, on average, providing primary care medicine services to patients in an eligible area.
(21) "Rural physician incentive fee" means the fee assessed by the state to students preparing to be physicians in the fields of medicine or osteopathic medicine who are supported by the state pursuant to an interstate compact for professional education in those fields, as those fields are defined by the compact.
(22) "Rural physician incentive fund" means the special revenue account in the state treasury created pursuant to section 39-5902, Idaho Code, relating to the rural health care access and physician incentive grant program.
[39-5903, added 2000, ch. 262, sec. 2, p. 735; am. 2002, ch. 354, sec. 1, p. 1010; am. 2007, ch. 199, sec. 2, p. 608; am. 2009, ch. 119, sec. 1, p. 382; am. 2012, ch. 44, sec. 5, p. 133.]
(1) The director shall appoint the members of a board to be known as the joint health care access and physician incentive grant review board, who shall serve at the pleasure of the director. Board members shall not be compensated, but shall be reimbursed for travel expenses incurred for attendance at board meetings.
(2) The board shall meet at least annually, for the purposes described in this chapter.
(3) The board shall be composed of the following: a representative from the Idaho academy of family physicians, a representative from the nurse practitioner conference group, a rural hospital administrator, a representative from the physician assistant association, a representative from the office of rural health, division of public health, a faculty member from one (1) of the Idaho family medicine residency programs, an Idaho medical association representative, an Idaho hospital association representative, an Idaho primary care association representative, an Idaho area health education center representative, a medical student program administrator representative from each state supported program, and an Idaho association of counties representative.
(4) Appointments to the board shall be for three (3) years. Board members may be reappointed at the end of each three (3) year period. Initial appointments shall be staggered in such a manner that approximately one-third (1/3) are appointed for one (1) year, one-third (1/3) are appointed for two (2) years, and one-third (1/3) are appointed for three (3) years.
(5) A majority of the board members constitutes a quorum for the transaction of business. A majority vote is required by the quorum in finalizing decisions.
[39-5904, added 2000, ch. 262, sec. 2, p. 736; am. 2007, ch. 199, sec. 3, p. 609; am. 2012, ch. 44, sec. 6, p. 134.]
The board may award grants, in accordance with the procedures and criteria in this chapter, to governmental and nonprofit entities and to physicians for qualified medical education debt repayments for the purpose of improving access to primary health care services to rural and underserved areas and for physician loan repayment.
(1) Rural health care access grant awards:
(a) Individual grant awards will be limited to a total of thirty-five thousand dollars ($35,000), direct and indirect costs, per year.
(b) Applicants may propose projects for funding for up to three (3) years.
(i) Continued funding for projects beyond the first grant year, years two (2) and three (3), shall be subject to the appropriation of funds and grantee performance.
(ii) No project may be funded for more than a total of three (3) years.
(iii) Any unused grant funds shall be returned to the rural health care access fund by the applicant no later than June 1 of the grant period.
(c) No funds awarded under a grant may be used for purchase, construction, renovation or improvement of real property or for projects which are solely or predominantly designed for the purchase of equipment. Use of funds for the purchase of equipment may be allowed when such equipment is an essential component of a program. However, the purchase of equipment may not represent more than forty percent (40%) of the total annual share of a proposal. Indirect costs shall not exceed fifteen percent (15%) of the total project.
(2) Physician incentive grant awards:
(a) A physician selected to receive a rural physician incentive grant award shall be entitled to receive qualified medical education debt repayments for a period not to exceed four (4) years in such amount as is determined annually.
(b) Award amounts shall be established annually based on recommendations of the joint health care access and physician incentive grant review board utilizing such factors as availability of funding, the number of new applicants and the hours an award recipient will devote to providing primary care medicine in an eligible area.
(c) The award shall not exceed the qualified medical education debt incurred by the recipient, and the maximum amount of educational debt repayments that a rural physician may receive shall be one hundred thousand dollars ($100,000) over such four (4) year period.
(d) All physician incentive grant awards shall be paid directly from the physician incentive fund to the physician receiving the award.
(e) In determining the awards to be made in any given year, the board shall consider the value of retaining an appropriate balance in the fund for use in future years.
(f) An award payment to a recipient in a single year is not guaranteed or assured in subsequent years and may be increased or reduced.
(g) Any unused grant funds shall be returned to the physician incentive fund by the applicant no later than June 1 of the grant period.
[39-5905, added 2000, ch. 262, sec. 2, p. 736; am. 2009, ch. 119, sec. 2, p. 383; am. 2012, ch. 44, sec. 7, p. 135; am. 2015, ch. 159, sec. 1, p. 554.]
(1) There are three (3) categories of rural health care access grant assistance:
(a) Telehealth projects — Grant funds may be used for projects that involve the use of telecommunications technologies for distance learning and for projects to improve access to care for rural communities.
(b) Community development projects — Grant funds may be used for health needs assessments, marketplace analysis, financial analysis and strategic planning activities.
(c) Other — Communities may choose to apply for funds for activities that they have identified and determined will help to improve access to primary care in rural areas, including loan repayment for primary care providers, recruitment incentive, and/or reimbursement of relocation expenses for primary care providers.
(2) Physician incentive grants: Grants are limited to loan repayment for physicians providing primary care medicine in eligible areas.
[39-5906, added 2000, ch. 262, sec. 2, p. 737; am. 2012, ch. 44, sec. 8, p. 136.]
Applicants must meet the following requirements:
(1) Rural health care access grant awards:
(a) The geographical area to be benefitted must be located in a current primary care or dental health professional shortage area or a medically underserved area.
(b) The applicant must be a governmental entity or a nonprofit entity registered with the Idaho secretary of state.
(2) Rural physician incentive grant awards:
(a) A physician who meets the following requirements is eligible to apply for a rural physician incentive grant award:
(i) During the period covered by the award, the physician must be a rural physician providing primary care medicine in an eligible area. A physician may provide patient care services in primary care medicine in more than one (1) eligible area;
(ii) The physician must be a doctor of medicine or doctor of osteopathic medicine and have completed an accreditation council of graduate medical education or American osteopathic association residency;
(iii) The physician must be Idaho medical board certified/board eligible, be eligible for an unrestricted Idaho medical license and be able to meet the medical staffing requirements of the sponsoring organization when applicable; and
(iv) The physician must accept medicare and medicaid patients within the capacity of his or her primary care medicine practice.
(b) Physicians who have paid the fee authorized in section 33-3723, Idaho Code, shall be given a preference over other applicants.
(c) A physician shall not be entitled to receive an award under this program if the physician is receiving payments for purposes of repaying qualified medical education debt from another state or from a federal debt repayment program.
[39-5907, added 2000, ch. 262, sec. 2, p. 737; am. 2012, ch. 44, sec. 9, p. 136.]
(1) A completed grant application must be submitted by the applicant for the purpose of requesting a grant or contract, on or before the conclusion of the application period specified for the appropriate grant cycle. All applications must include the required information.
(2) The grant application and any attachments submitted by the applicant shall be the primary source of information for awarding a grant. Additionally, the board may request and/or use other information known to it in making its decision.
(3) All rural health care access applications shall include:
(a) Geographical area of need;
(b) Individual or entity requesting funds;
(c) Narrative description of the methods to be used to address needs and demonstrate the potential of the project to improve access to health care services in the community;
(d) Identification of measurable goals, objectives to be used to reach the goals, and the resources necessary to complete each activity;
(e) Estimation of how long it will take to accomplish the individual activities of the project;
(f) Demonstrated community and organizational support for the project;
(g) County or local governmental endorsement;
(h) Operating budget including:
(i) Proportion of operating budget, if any, the applicant proposes to match with the rural health care access grant funds;
(ii) Documentation of one (1) or more vendor price quotes for all proposed equipment purchases;
(iii) Contact person for verification of fiscal information;
(i) Federal tax identification number; and
(j) Other information required by the board.
(4) All rural physician incentive applications shall:
(a) Be on a form prescribed by the rural health care access and physician incentive board; and
(b) Include a letter of support along with supporting documentation.
[39-5908, added 2000, ch. 262, sec. 2, p. 737; am. 2012, ch. 44, sec. 10, p. 137.]
The board shall conduct the grant process in accordance with the following schedule:
(1) The rural health care access and physician incentive program manager will generate, and make available, a list of areas eligible for potential grant assistance no later than May 1 prior to the application period.
(2) The rural health care access and physician incentive program manager shall develop an application form and make guidance available no later than July 1 which shall initiate the application period prior to the grant period.
(3) The completed application shall be submitted no later than August 30 of the application period.
(4) The board shall issue notification to every applicant regarding the disposition of their grant request by October 30 prior to the grant period.
(5) Funds for approved rural health care access grants shall be disbursed during November of that grant period or over the course of the current grant year as funds become available.
(6) Funds for approved rural physician incentive grants shall be disbursed upon completion of six (6) months of service in an eligible area during the initial grant period and annually thereafter upon completion of a twelve (12) month term of service in an eligible area.
[39-5909, added 2000, ch. 262, sec. 2, p. 738; am. 2002, ch. 354, sec. 2, p. 1011; am. 2009, ch. 119, sec. 3, p. 383; am. 2012, ch. 44, sec. 11, p. 137.]
(1) Rural health care access awards shall be made by the board based on the following weighted criteria:
(a) Background of bidding organization. The applicant must show adequate experience, knowledge, and qualifications to adequately perform the scope of work: weight = 10%;
(b) Community and organizational support. The applicant must demonstrate community and organizational support for the project: weight = 15%;
(c) Specificity and clarity of scope of project. The proposal will be evaluated based on the extent to which the goals and objectives are specific, measurable, and relevant to the purpose of the proposal and the activities planned to accomplish those objectives are germane and can be sustained beyond the grant time frame. Additionally, there must be a demonstrated need for and lack of availability of funds from other sources to address the primary health care needs of the defined area of service: weight = 35%;
(d) Monitoring and evaluation. The proposal will be evaluated based on the extent to which the monitoring and evaluation system will document program or activity progress and measure effectiveness: weight = 15%;
(e) Budget. The proposal will be evaluated based on the extent to which a detailed itemized budget and justification are consistent with stated objectives and planned program activities: weight = 25%.
(2) Physician incentive awards shall be made by the board based on ranking and priority of applicants in accordance with the following criteria:
(a) (i) Priority selection for physicians who were Idaho resident students and were assessed the rural physician incentive fee and paid into the fund, followed by physicians who were Idaho residents prior to completing medical school out of state and who did not contribute to the fund, followed by physicians from other states who were not Idaho residents;
(ii) Demonstrated physician shortage in the eligible area to be benefitted;
(iii) Demonstrated physician recruiting difficulties in the eligible area to be benefitted;
(iv) Support of the medical community and community leaders in the eligible area.
(b) In reviewing and weighing criteria, all relevant factors shall be considered.
(c) If a physician selected for an award of debt payments does not accept the award in the manner provided pursuant to the provisions of this chapter, then the award shall be awarded to the next eligible applicant who has not received an award.
(d) The physician is liable for the payments if the physician ceases to practice in the eligible area during the contract period.
[39-5910, added 2000, ch. 262, sec. 2, p. 738; am. 2012, ch. 44, sec. 12, p. 138.]
Providing false information on any application or document submitted under this statute is a misdemeanor and grounds for declaring the applicant ineligible. Any and all funds determined to have been acquired on the basis of fraudulent information must be returned to the rural health care access and physician incentive grant program. This section shall not limit other remedies which may be available for the filing of false or fraudulent applications.
[39-5912, added 2000, ch. 262, sec. 2, p. 739; am. 2012, ch. 44, sec. 14, p. 139.]
Applicants aggrieved by the award or failure to award a grant pursuant to this chapter shall be afforded the remedies provided in chapter 52, title 67, Idaho Code.
[39-5913, added 2000, ch. 262, sec. 2, p. 739.]
(1) There is hereby created within the department of health and welfare a children’s trust fund and a children’s trust fund board to administer the children’s trust fund.
(2) The children’s trust fund board shall consist of a chairperson and nine (9) other members as follows:
(a) The chairperson and six (6) other members of the board shall be appointed by the governor and shall be selected for their interest and expertise in the prevention of child abuse. There shall be one (1) board member appointed from each of the seven (7) judicial districts of the state as enumerated in chapter 8, title 1, Idaho Code. Members shall be appointed to serve for three (3) year terms. Vacancies shall be filled for any unexpired term by appointment in the same manner as the original appointments were made.
(b) The superintendent of public instruction, the attorney general, and the director of the department of health and welfare or their designees shall be members and shall serve as voting members of the children’s trust fund board.
(3) A quorum of the children’s trust fund board shall consist of a majority of its members which quorum must be present in order to conduct any business.
(4) The chairperson of the children’s trust fund board shall have no vote except in the event of a tie vote of a quorum of the members of the board.
(5) Board members shall be compensated as provided in section 59-509(b), Idaho Code.
(6) Members of the children’s trust fund board shall serve until a successor has been appointed but may be removed by the appointing official for misconduct or failure to carry out the duties provided in this chapter.
[39-6001, added 1985, ch. 31, sec. 2, p. 60; am. 2002, ch. 292, sec. 2, p. 841; am. 2014, ch. 52, sec. 1, p. 129.]
To carry out the purposes of this chapter, the children’s trust fund board may:
(1) Independently, in collaborative relationships or partnerships, contract with public or private nonprofit organizations, agencies, schools or with qualified individuals, establish community-based educational and service programs and initiatives designed to reduce or prevent the occurrence of child abuse and neglect.
(a) Each contract entered into by the board shall contain a provision for the evaluation of services provided under the contract. Contracts for services to prevent child abuse and child neglect may be awarded to new programs, existing programs, initiatives, and to demonstration projects.
(b) Continuation of contracts shall be based upon goal attainment.
(2) Facilitate the exchange of information between groups concerned with families and children.
(3) Consult with state departments, agencies, commissions and boards to help determine the probable effectiveness, fiscal soundness, and need for proposed educational and service programs for the prevention of child abuse and neglect.
(4) Adopt rules pursuant to chapter 52, title 67, Idaho Code, to carry out the provisions of this chapter.
(5) Employ an executive director who shall be responsible for the performance of the administrative functions of the board and such other duties as the board may direct. The board may also employ or contract with other individuals to provide professional, clerical or other services deemed necessary by the board to effectuate the provisions of this chapter and the rules of the board, and purchase or rent necessary office space, equipment and supplies. The compensation of the executive director and other personnel shall be determined by the board, and the executive director shall be exempt from the provisions of chapter 53, title 67, Idaho Code.
(6) Solicit and accept grants, donations, gifts and other moneys as necessary to carry out the purposes of this chapter.
[39-6002, added 1985, ch. 31, sec. 2, p. 61; am. 1990, ch. 208, sec. 1, p. 464; am. 2002, ch. 292, sec. 3, p. 842; am. 2014, ch. 52, sec. 2, p. 129.]
(1) Programs contracted for with moneys received pursuant to section 63-3067A, Idaho Code, are intended to provide prevention services. "Prevention services" means any community-based educational or service program designed to prevent or alleviate child abuse or neglect. "Prevention services" shall not include direct treatment programs.
(2) Moneys appropriated by the legislature may also be used for salaries pursuant to subsection (5) of section 39-6002, Idaho Code.
(3) The children’s trust fund board shall develop policies to determine whether programs will receive renewed funding. Nothing in this chapter shall be construed to require continued funding by the state of Idaho or the children’s trust fund board.
(4) The children’s trust fund board shall prepare a report on its activities and the effectiveness of those activities in fostering the prevention of child abuse and neglect annually, and deliver that report to the governor and legislature on January 15 of each year.
[39-6003, added 1985, ch. 31, sec. 2, p. 61; am. 1990, ch. 208, sec. 2, p. 465; am. 2002, ch. 292, sec. 4, p. 842; am. 2014, ch. 52, sec. 3, p. 130.]
In awarding contracts pursuant to section 39-6002, Idaho Code, consideration shall be given to factors such as need, coordination with or enhancement of existing services, and evidence of community support or volunteers for the program.
[39-6004, added 1985, ch. 31, sec. 2, p. 61; am. 2018, ch. 169, sec. 10, p. 359.]
The children’s trust fund board, in its discretion, may require a certain percentage of the funding for programs approved by the board be provided by the entity sponsoring or proposing the program. Contributions such as materials, personnel, supplies, physical facilities or services may be considered as all or part of the funding provided by the petitioning entity.
[39-6005, added 1985, ch. 31, sec. 2, p. 61; am. 2002, ch. 292, sec. 5, p. 843.]
(1) There is hereby created in the state treasury the children’s trust fund.
(2) The fund shall consist of:
(a) Moneys appropriated to the fund;
(b) Moneys as provided in section 63-3067A, Idaho Code;
(c) Donations, gifts, grants and other moneys from any source; and
(d) Any other moneys which may hereafter be provided by law.
(3) Moneys in the fund may be expended for purposes provided in this chapter, provided that the children’s trust fund advisory board is authorized to expend up to fifty percent (50%) of the moneys generated annually pursuant to section 63-3067A, Idaho Code. Interest earned on the investment of idle money in the children’s trust fund shall be returned to the children’s trust fund.
(4) Disbursements of moneys from the fund shall be on the authorization of the children’s trust fund board or a duly authorized representative of the board.
(5) After the balance in the children’s trust fund has reached two million five hundred thousand dollars ($2,500,000), no further collections shall be received by the state tax commission, and all references to the fund shall be deleted from income tax forms.
[39-6007, added 1985, ch. 31, sec. 2, p. 62; am. 1987, ch. 337, sec. 4, p. 711; am. 2002, ch. 292, sec. 7, p. 843; am. 2005, ch. 342, sec. 1, p. 1069; am. 2014, ch. 52, sec. 4, p. 130.]
The department of health and welfare under the direction of the children’s trust fund board shall be responsible for the management and accounting of moneys expended from the children’s trust fund.
[39-6008, added 1985, ch. 31, sec. 2, p. 62; am. 2002, ch. 292, sec. 8, p. 844.]
This chapter shall be known and may be cited as the "Idaho Conrad J-1 Visa Waiver Program and National Interest Waiver Program."
[39-6101, added 2004, ch. 128, sec. 1, p. 437; am. 2009, ch. 106, sec. 2, p. 326.]
Under this chapter, rural and underserved communities in Idaho would be able to apply for the placement of a foreign trained physician after demonstrating that they are unable to recruit an American physician and all other recruitment/placement possibilities have proven to be inaccessible.
(1) The "Idaho Conrad J-1 Visa Waiver Program" authorizes the Idaho department of health and welfare to recommend up to thirty (30) foreign trained physicians per federal fiscal year to locate in communities that are federally designated as having a health workforce shortage. Recommendations may be for pediatrics, internal medicine, family medicine, obstetrics, gynecology, psychiatry, general surgery, or physician specialists. Applications for specialists must demonstrate a need for the type of specialty held by the petitioning physician. Final approval of J-1 visa waiver requests are made by the United States bureau of citizenship and immigration services.
(2) Provided health care organizations located in federally designated shortage areas do not utilize the full annual allocation of J-1 visa waivers, the department may accept waiver applications six (6) months after the beginning of each federal fiscal year for petitioning J-1 visa waiver physicians to work in areas without a federal shortage area designation. The practice and petitioning physician must serve patients who reside in federally designated areas of underservice.
(3) The "National Interest Waiver Program" allows the Idaho department of health and welfare to testify that it is in the public’s interest that a waiver be granted to a foreign trained physician who commits to locating in a community that is federally determined as having a health workforce shortage. Final approval of the national interest waiver request is made by the United States bureau of citizenship and immigration services.
[39-6102, added 2004, ch. 128, sec. 1, p. 437; am. 2009, ch. 106, sec. 3, p. 326; am. 2017, ch. 72, sec. 1, p. 171; am. 2023, ch. 31, sec. 1, p. 150.]
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.
[39-6103, added 2004, ch. 128, sec. 1, p. 437.]
P.L. 103-416, amended by P.L. 107-273, November 2, 2002, 8 U.S.C. 1184(l) and 22 CFR 41.63(e), F.R. volume 60, No. 197, 8 CFR 214.12, 8 CFR 245 and 18 U.S.C. 1001 are incorporated by reference.
[39-6104, added 2004, ch. 128, sec. 1, p. 437; am. 2009, ch. 106, sec. 4, p. 326; am. 2021, ch. 321, sec. 23, p. 966.]
As used in this chapter:
(1) "Applicant" means a health care facility that seeks to employ a physician and is requesting state support of a J-1 visa waiver or national interest waiver.
(2) "Area of underservice" means a health professional shortage area in primary care or mental health, a medically underserved area, or a medically underserved population federally designated by the secretary of health and human services.
(3) "Department" means the Idaho department of health and welfare.
(4) "Employment contract" means a legally binding agreement between the applicant and the physician named in the J-1 visa waiver or national interest waiver application that contains all terms and conditions of employment, including but not limited to the salary, benefits, length of employment and any other consideration owing under the agreement. The employment contract must meet all state and federal criteria, including labor and immigration rules.
(5) "Federal fiscal year" means the twelve (12) months that commence the first day of October in each year and close on the thirtieth day of September of the following year.
(6) "Flex" means the applications that may be submitted six (6) months following the beginning of each federal fiscal year for J-1 visa waiver physicians to work in areas without a federal shortage area designation.
(7) "Full time" means a working week of a minimum of forty (40) hours at one (1) or more health care facilities.
(8) "Health care facility" means an entity with an active Idaho taxpayer identification number doing business or proposing to do business in the practice location where the physician would be employed, whose stated purposes include the delivery of primary medical or mental health care.
(9) "Interested government agency" means an agency that has the authority from the United States department of state to submit requests for J-1 visa waivers of foreign physician petitioners on behalf of public interest.
(10) "J-1 visa" means an entrance permit into the United States for a foreign trained physician who is a nonimmigrant admitted under section 101(a)(15)(J) of the United States immigration and nationality act or who acquired such status or who acquired exchange visitor status under the act.
(11) "J-1 visa waiver" means a federal action that waives the requirement for a foreign physician in the United States on a J-1 visa to return to his home country for a two (2) year period following medical residency training.
(12) "National interest waiver" means an exemption from the labor certification process administered by the United States department of labor for foreign physicians whose will to stay in the United States and work in an area of underservice in Idaho is determined to be in the public interest by the Idaho department of health and welfare.
(13) "New start" means a health care facility, as defined in subsection (8) of this section, that has been in existence for twelve (12) months or less.
(14) "Petitioning physician" means the foreign physician, named in the J-1 visa waiver or national interest waiver application, who requires a waiver to remain in the United States to practice medicine.
(15) "Primary care" means a medical doctor or doctor of osteopathy licensed in pediatrics, family medicine, internal medicine, obstetrics, gynecology, general surgery or psychiatry.
(16) "Specialist" means a medical doctor or doctor of osteopathy in any specialty or subspecialty other than pediatrics, family medicine, internal medicine, obstetrics, gynecology, general surgery or psychiatry.
(17) "Unmet need" means a vacancy or shortage of primary care or specialist physicians experienced by a community or population, as defined by federally designated health professional shortage areas or medically underserved areas/populations or as demonstrated by additional data and information required by the department.
(18) "Vacancy" means a full-time physician practice opportunity in the delivery of health care services.
[39-6105, added 2004, ch. 128, sec. 1, p. 438; am. 2009, ch. 106, sec. 5, p. 326; am. 2014, ch. 61, sec. 1, p. 144; am. 2017, ch. 72, sec. 2, p. 172; am. 2023, ch. 31, sec. 2, p. 150.]
(1) J-1 visa waiver or national interest waiver request. The department may only submit a waiver request when:
(a) The application contains all of the required information and documentation;
(b) The application meets all state and federal criteria;
(c) Foreign exchange physicians having a J-1 case number assigned by the United States department of state have paid all federal processing fees; and
(d) The applicant has paid the state of Idaho application processing fee.
(2) Limitations of department actions.
(a) Prior to submission of an application, the department may provide information to the applicant on preparing a complete application.
(b) The department will not be responsible for adding any information to incomplete application packets.
(c) For applicants who have benefited from department waiver requests previously, the applicant’s history of compliance will be a consideration in future decisions for waiver requests.
(d) In any single program year, a health care facility will not be allotted more than five (5) J-1 visa waiver request applications per practice location.
(e) The shortage area designation must be current on the date the United States department of state reviews and recommends the application and on the date the immigration agency approves the J-1 visa waiver and national interest waiver. Any application that is being submitted to the department at the end of the three (3) year health professional shortage area designation cycle may be summarily denied if the renewal is not obtained.
(i) Participation by the department in the J-1 visa waiver program and in the national interest waiver program is completely discretionary and voluntary. The department may elect not to participate in the program at any time. The submission of a complete waiver application package does not ensure the department will recommend a waiver. The department reserves the right to recommend or decline any request for a waiver.
(ii) The department, its employees or agents are held harmless of any perceived consequence for the denial of a waiver petitioner or the approved placement of one that is not favorable.
(iii) Application procedures for J-1 visa waiver physician placements were developed by the department in compliance with P.L. 103-416 and subsequent revisions. The procedures for the issuance of national interest waiver recommendations were developed by the department in compliance with 8 CFR 214.12 and 8 CFR 245 and subsequent revisions. These procedures are subject to updates and changes at any time. Interpretation of these procedures rests solely with the department in consultation with the appropriate federal agencies.
[39-6106, added 2004, ch. 128, sec. 1, p. 439; am. 2009, ch. 106, sec. 6, p. 327; am. 2017, ch. 72, sec. 3, p. 173; am. 2023, ch. 31, sec. 3, p. 151.]
(1) Option of last resort. The J-1 visa waiver and national interest waiver programs are considered a final source for recruiting qualified physicians. These programs are not a substitute for broad recruiting efforts for graduates from United States medical schools, but an option of last resort. Any application that qualifies for consideration under any other interested government agency or federal program, such as the one administered by the department of health and human services, must be submitted under that program in lieu of the J-1 visa waiver program. The option of last resort principle does not apply to national interest waiver petitioning physicians for whom a J-1 visa waiver request was issued by the state of Idaho; in which case, physician retention is the objective if it is determined to be in the public interest.
(2) Waiver request applications will only be considered for health care facilities that can provide evidence of sustained active recruitment over a period of at least three (3) months for the physician vacancy in the practice location. The three (3) month vacancy requirement does not apply to a national interest waiver petitioning physician for whom a J-1 visa waiver request was issued by the state of Idaho.
(3) The J-1 visa waiver program and national interest waiver program will be used to assist health care facilities that can document the provision of health care services to all residents of the federally determined area of underservice. When a federal designation is for an underserved population, the health care facility must document the provision of care to, and assure access by, the underserved population.
[39-6107, added 2004, ch. 128, sec. 1, p. 440; am. 2009, ch. 106, sec. 7, p. 328; am. 2017, ch. 72, sec. 4, p. 174; am. 2023, ch. 31, sec. 4, p. 152.]
(1) Applicants must be existing health care facilities that:
(a) Have an active taxpayer identification number in Idaho; and
(b) Have provided medical or mental health care in Idaho for a minimum of twelve (12) months prior to submitting the application or meet the requirements for a new start as defined in this chapter.
(2) The waiver request to the department must come from a U.S. health care facility on behalf of the physician and not directly from the physician or his representative.
(3) J-1 visa waiver and national interest waiver petitioners with fellowship training must contract with employers to provide primary care services full time.
(4) Applicants must not be former J-1 visa waiver or national interest waiver physicians who are currently fulfilling their required three (3) or five (5) year obligation.
(5) Applicants may not submit waiver requests for a relative.
(6) Applicants must accept all patients regardless of their ability to pay.
(7) Except for state institutional and correctional facilities designated as federal shortage areas, the applicant must serve medicare clients, medicaid clients, low-income clients, uninsured clients, and the population of a federal shortage designation.
(8) Applicants must have a signed employment contract with the physician and guarantee wages for the duration of the contract.
(9) Applicants must cooperate in providing the department with clarifying information, in verifying information already provided, or in any investigation of the applicant’s financial status and payer mix.
(10) Applicants must first apply through any organization with federal or interested governmental agency authority that submits waiver requests for Idaho’s underserved rural areas. Documentation that fully explains why this route was not taken for placement is required as part of the application.
(11) The physician’s name and practice location will be made available to the public as a provider who accepts medicare and medicaid.
(12) An assurance letter that the health care facility, its principals, and the J-1 or national interest waiver petitioning physician are not under investigation for, under probation for, or under restriction for medicare or medicaid fraud, or other violations of law or licensure restrictions that may indicate that it may not be in the public interest that a waiver be granted, must be provided.
(13) The applicant and its principals must be free of default on any federal or state scholarship or loan repayment program such as the national health service corps.
[39-6108, added 2004, ch. 128, sec. 1, p. 440; am. 2009, ch. 106, sec. 8, p. 329; am. 2017, ch. 72, sec. 5, p. 174; am. 2023, ch. 31, sec. 5, p. 153.]
Throughout the period of obligation, regardless of the petitioning physician’s visa status, the employment contract must:
(1) Meet state and federal requirements;
(2) Not prevent the physician from providing medical services in the designated shortage area after the term of employment. A noncompetition clause or any provision that purports to limit the J-1 visa waiver physician’s ability to remain in the area upon completion of the contract term is prohibited by regulation;
(3) State that the physician must serve medicare clients, medicaid clients, low-income clients, uninsured clients, and the population of the federal designation for the area of underservice full time;
(4) Include a notarized statement by the physician that he agrees to meet the requirements set forth in section 214(l) of the immigration and nationality act;
(5) Guarantee the physician a base salary of at least ninety-five percent (95%) of step II of the local prevailing wage for the field of practice in the area to be served;
(6) Specify that benefits offered are not included as part of base salary;
(7) Include leave (annual, sick, continuing medical education and holiday);
(8) State that amendments shall adhere to state and federal J-1 visa waiver requirements;
(9) Acknowledge that the contract may be terminated only with cause and cannot be terminated by mutual agreement until the statutorily required three (3) years of medical service have expired;
(10) Be assignable only by the employer to a successor with concurrence of the department;
(11) Include the practice site address, the days and hours of practice, field of medicine, and a statement that on-call and travel times are not included in the minimum hours;
(12) Include a statement that the employment will start within ninety (90) days after the waiver approval has been issued;
(13) Not commence until after the petitioning physician’s J-1 waiver and appropriate work authorization are approved and the residency program has been successfully completed. The contract shall affirm that no transfer or other modification regarding the duration of contract dates will be approved unless extenuating circumstances are shown to exist, as determined by the department and approved by the United States attorney general in accordance with applicable federal rules and regulations;
(14) Not be subject to changes which result in termination of contract, change in practice scope, or relocation from a site approved in the application. Any proposed changes must be presented in writing to the department for consideration and approval at least thirty (30) days prior to the proposed change. Moving or placement of a J-1 visa waiver physician to a location that was not approved by the department will result in the physician and applicant being in noncompliance with the program and will be reported as such to the immigration agency. It will also limit the applicant’s future participation in the program;
(15) Be signed by both the J-1 visa waiver petitioning physician and the applicant employer, and the date it is signed must be clear.
[39-6109, added 2004, ch. 128, sec. 1, p. 441; am. 2009, ch. 106, sec. 9, p. 330; am. 2017, ch. 72, sec. 6, p. 175.]
Throughout the period of obligation, regardless of physician’s visa status, the employment contract must:
(1) Meet state and federal requirements;
(2) Not prevent the physician from providing medical services in the designated shortage area after the term of employment. A noncompetition clause or any provision that purports to limit the national interest waiver physician’s ability to remain in the area upon completion of the contract term is prohibited;
(3) State that the physician must serve medicare clients, medicaid clients, low-income clients, uninsured clients and the population of the federal designation for the area of underservice full time;
(4) Guarantee the physician a base salary of at least ninety-five percent (95%) of step II of the local prevailing wage for the field of practice in the area to be served;
(5) Specify that benefits offered are not included as part of the base salary;
(6) Include annual, sick, continuing medical education and holiday leave;
(7) State that amendments shall adhere to state and federal national interest waiver requirements;
(8) Acknowledge that the contract may be terminated only with cause and cannot be terminated by mutual agreement until the statutorily required five (5) years of medical service have expired;
(9) Be assignable only by the employer to a successor with concurrence of the department;
(10) Include the practice site address, the days and hours of practice and field of medicine;
(11) Include a statement that the employment will start within ninety (90) days after the waiver approval has been issued;
(12) Not be subject to changes which result in termination of contract, change in practice scope or relocation from a site approved in the application. Any proposed changes must be presented in writing to the department for consideration and approval at least thirty (30) days prior to the proposed change. Moving or placement of a physician to a location that was not approved by the department will result in the physician and applicant being in noncompliance with the program. It will also limit the applicant’s future participation in the program; and
(13) Be signed by both the national interest waiver petitioning physician and the applicant employer, and the date it is signed must be clear.
[39-6109A, added 2009, ch. 106, sec. 10, p. 331.]
(1) The proposed practice location must:
(a) Be located in an area of underservice federally designated by the secretary of health and human services; or
(b) Serve patients who reside in an area of underservice federally designated by the secretary of health and human services for flex waiver applications only.
(2) If a new practice location is planned, additional criteria apply. New practice locations must:
(a) Have the legal, financial, and organizational structure necessary to provide a stable practice environment, and must provide a business plan that supports this information;
(b) Support a full-time physician practice;
(c) Have written referral plans that describe how patients using the new practice care location will be connected to existing secondary and tertiary care if needed.
[39-6110, added 2004, ch. 128, sec. 1, p. 442; am. 2009, ch. 106, sec. 11, p. 331; am. 2017, ch. 72, sec. 7, p. 176.]
(1) The petitioning physician must not have a J-1 visa waiver pending for any other employment offer, and must provide a notarized statement testifying to this fact.
(2) The physician must have the qualifications described in recruitment efforts for a specific vacancy.
(3) Petitioning physicians must:
(a) Provide direct patient care full time; and
(b) Be trained in:
(i) Family medicine;
(ii) Internal medicine;
(iii) Pediatrics;
(iv) Obstetrics and gynecology;
(v) General surgery;
(vi) Psychiatry and its subspecialties; or
(vii) Other specialties licensed or eligible for licensure by the Idaho board of medicine, if there is a demonstrated need by the applicant organization.
(4) Physicians must apply and be eligible for an active Idaho medical license. The petitioning physician may be participating in an accredited residency program for this application, but must have successfully completed the third year of their residency training program for their employment contract to be activated. The petitioning physician must have an unrestricted license to practice in the state of Idaho and be board-certified or eligible in his respective medical specialty at the commencement of employment. A copy of the acknowledgment of receipt form from the state board of medicine must be included in the waiver request.
(5) The petitioning physician must agree with all provisions of the employment contract as described in section 39-6109, Idaho Code. Other negotiable terms of the contract are between the petitioning physician and the hiring agency.
(6) The petitioning physician must:
(a)(i) Agree to work full time for no less than three (3) years in an area of underservice in the state of Idaho;
(ii) Provide health care to medicare and medicaid beneficiaries; and
(iii) Serve all individuals within a shortage designation population, including low-income and uninsured individuals; or
(b) Serve the population of a local, state, or federal governmental institution or corrections facility as an employee of the institution.
[39-6111, added 2004, ch. 128, sec. 1, p. 442; am. 2009, ch. 106, sec. 12, p. 332; am. 2014, ch. 61, sec. 2, p. 145; am. 2017, ch. 72, sec. 8, p. 177; am. 2023, ch. 31, sec. 6, p. 154.]
The department will accept waiver applications six (6) months after the beginning of each federal fiscal year for petitioning J-1 visa waiver physicians to work in areas without a federal shortage area designation. The practice and petitioning physician must serve patients who reside in federally designated areas of underservice. The maximum number of flex applications may not exceed the total number of waiver slots available.
(1) The practice location must be located outside of a federally designated shortage area to apply for a flex waiver.
(2) The applicant organization and petitioning physician must meet all eligibility, application and reporting requirements with the exception of the practice location.
(3) The applicant organization must submit documentation demonstrating how the practice location and petitioning physician will serve patients who reside in federally designated areas of underservice.
(4) Flex waiver applications must demonstrate a need for the primary care or specialty petitioning physician.
[39-6111A, added 2017, ch. 72, sec. 9, p. 178; am. 2023, ch. 31, sec. 7, p. 155.]
The national interest waiver petitioning physician must:
(1)(a) Provide direct patient care full time; and
(b) Be trained in:
(i) Family medicine;
(ii) Internal medicine;
(iii) Pediatrics;
(iv) Obstetrics and gynecology;
(v) General surgery;
(vi) Psychiatry and its subspecialties; or
(vii) Other specialties licensed or eligible for licensure by the Idaho board of medicine, if there is a demonstrated need by the applicant organization.
(2) Apply and be eligible for an active Idaho medical license. The physician may be participating in an accredited residency program for this application, but must have successfully completed the third year of his residency training program for his employment contract to be activated. The physician must have an unrestricted license to practice in the state of Idaho and be board-certified or eligible in his respective medical specialty at the commencement of employment. A copy of the acknowledgment of receipt form from the state board of medicine must be included in the waiver request.
(3) Agree with all provisions of the employment contract as described in section 39-6109A, Idaho Code. Other negotiable terms of the contract are between the physician and the hiring agency.
(4)(a)(i) Agree to work full time for no less than five (5) years in an area of underservice in the state of Idaho unless the physician qualifies for the three (3) year service provision under the applicable national interest waiver rules and regulations or the physician is transferring from another area of underservice;
(ii) Provide health care to medicare and medicaid beneficiaries; and
(iii) Serve all individuals within a shortage designation population, including low-income and uninsured individuals; or
(b) Serve the population of a local, state or federal governmental institution or corrections facility as an employee of the institution.
[(39-6111B) 39-6111A, added 2009, ch. 106, sec. 13, p. 333; am. 2014, ch. 61, sec. 3, p. 146; am. and redesig. 2017, ch. 72, sec. 10, p. 178; am. 2023, ch. 31, sec. 8, p. 155.]
(1) Notification of waiver status and commencement of employment must be submitted to the department upon receipt of written notification of approval from the immigration agency. This notification must include the date the medical service obligation commences, and a copy of the notification of approval from the immigration agency.
(2) The waiver physician and the applicant must, on commencement of practice and annually thereafter or more frequently as determined by the department, and upon expiration of the physician’s service obligation to the underserved area, verify the physician’s practice site address and field of practice. Further, documentation that the population the physician was to serve was indeed served must be submitted. This will include the facility’s payer mix, the number of patients seen by the physician, and the payer mix of those patients. When submitting the final report, the physician must indicate whether he intends to remain in the shortage area to practice.
(3) Sites receiving waiver approval must agree to report to the department on the status of the physician’s activities at the beginning of the physician’s employment and every year thereafter during the three (3) to five (5) year medical service obligation period. Failure to provide these reports within thirty (30) days of the annual anniversary date of approval of the J-1 visa or national interest waiver in an accurate manner or failure to demonstrate good faith in utilizing a physician’s services in accordance with these policies will jeopardize future eligibility for placements and will be cause for reporting and referral to the United States department of state and immigration agency. This referral could ultimately lead to deportation proceedings against the physician.
(4) Any amendments made to the required elements of the employment contract during the physician’s medical service obligation must be reported to the department for review. The department will complete review and provide notice of approval or declination of such amendments within thirty (30) calendar days of receipt.
[39-6112, added 2004, ch. 128, sec. 1, p. 443; am. 2009, ch. 106, sec. 14, p. 334; am. 2017, ch. 72, sec. 11, p. 179.]
At the time the application is submitted to the department, an administrative fee must be paid to the department by the applicant. The fee amount will be determined by the director of the department, will not be less than one thousand dollars ($1,000) for a J-1 visa waiver request, and three hundred fifty dollars ($350) for a national interest waiver request, and may be revised at the beginning of the state fiscal year by the director based on costs to administer the program. The fee is nonrefundable.
[39-6113, added 2004, ch. 128, sec. 1, p. 444; am. 2009, ch. 106, sec. 15, p. 334.]
(1) Applications for the J-1 visa waiver program must include but not be limited to the following:
(a) Evidence the applicant has no other mechanism through another process or interested government agency to apply for a J-1 visa waiver for the petitioning physician;
(b) Evidence of recruiting efforts over a minimum of three (3) months prior to when the physician applied for the vacancy; this must include documentation that the health care facility has utilized broad recruitment efforts and was unsuccessful;
(c) Evidence that the petitioning physician selected for the position visited the practice site;
(d) A list of physicians who applied for the position and the reason they were not selected;
(e) Evidence that the applicant has been providing medical or mental health care in Idaho for at least twelve (12) months or meets the requirements for a new start as defined in this chapter. This includes but may not be limited to the Idaho taxpayer identification number, facility address, fax and telephone numbers, and staffing list;
(f) A copy of an employment contract between the petitioning physician and the applicant for no less than three (3) years;
(g) Evidence that the employment site is in a designated area of underservice;
(h) A copy of the petitioning physician’s license to practice medicine in the state of Idaho, or proof of the physician’s eligibility to apply for an Idaho license;
(i) Legible copies of all DS 2019 forms (certificate of eligibility for exchange visitor status), covering every period the physician was in J-1 status, submitted in chronological order;
(j) Legible copies (front and back) of all I-94 entry and departure cards for the physician and family members;
(k) The petitioning physician’s curriculum vitae;
(l) A statement of "no objection from the government" of the petitioning physician’s country of nationality, if applicable. The government of the country to which the petitioning physician is otherwise contractually obliged to return must furnish a letter to the director of the United States department of state with a statement in writing that there is no objection to such waiver in cases where the petitioning physician’s medical education or training is funded by the government of the petitioning physician’s home country. Whether or not there is foreign government funding can be determined from examining the physician’s DS 2019 form. This letter must be in English and follow the procedures and format outlined in federal register volume 60, number 197, published October 12, 1995 (or subsequent revisions);
(m) Payment of the department’s administrative application processing fee;
(n) Federal form G-28 or letterhead from the law office, if the physician is being represented by an attorney, with telephone and fax numbers, and a contact name and address; and
(o) A copy of the United States department of state-issued instruction sheet with case number.
(2) The state may require any other documentation or information for the support and approval process in the waiver application on the part of the petitioning physician or the applicant.
(3) These requirements are subject to change without notice.
(4) J-1 visa waiver program application forms and instructions are available and may be requested from the department.
(5) The petitioning physician’s case number must appear on each page. The case number is assigned by the United States department of state.
(6) All required information and documentation must be submitted in a single package with all documents presented per instructions that will be provided by the department upon request. One (1) single-sided, unbound original and one (1) single-sided, unbound copy must be included. Waiver requests that do not comply with these requirements and the instructions provided by the department will not be considered.
(7) The request must be submitted by the applicant or applicant’s representative. The letter must be written on the applicant’s letterhead stationery, which includes address, telephone and fax numbers, if any. Letters, contracts and forms must contain original signatures.
[39-6114, added 2004, ch. 128, sec. 1, p. 444; am. 2009, ch. 106, sec. 16, p. 335; am. 2017, ch. 72, sec. 12, p. 180; am. 2023, ch. 31, sec. 9, p. 156.]
(1) Applications for the national interest waiver program must include but not be limited to the following:
(a) Evidence of recruiting efforts over a minimum of three (3) months prior to when the petitioning physician applied for the vacancy. This evidence must include documentation that the health care facility has utilized broad recruitment efforts and was unsuccessful;
(b) Evidence that the physician selected for the position visited the practice site;
(c) A list of physicians who applied for the position and the reason they were not selected;
(d) Evidence that the applicant has been providing medical or mental health care in Idaho for at least twelve (12) months or meets the requirements for a new start as defined in section 39-6105, Idaho Code. This includes but may not be limited to the Idaho taxpayer identification number, facility address, fax and telephone numbers, and staffing list;
(e) A copy of an employment contract between the physician and the applicant;
(f) Evidence that the employment site is in a federally determined area of underservice;
(g) A copy of the physician’s license to practice medicine in the state of Idaho, or eligibility to apply for an Idaho license;
(h) Legible copies of any DS 2019 forms and other United States immigration documentation attesting to the physician’s current legal status and history of stay in the United States;
(i) The physician’s curriculum vitae; and
(j) Payment of the department’s administrative application processing fee.
(2) The state of Idaho may require any other documentation or information for the support and approval process in the waiver application on the part of the physician or the applicant.
(3) The request must be submitted by the applicant or applicant’s representative. The letter must be written on the applicant’s letterhead stationery, which includes address, telephone and fax numbers, if any. Letters, contracts and forms must contain original signatures.
(4) These requirements are subject to change without notice.
[39-6114A, added 2009, ch. 106, sec. 17, p. 336; am. 2017, ch. 72, sec. 13, p. 181; am. 2023, ch. 31, sec. 10, p. 158.]
Local, state, or federal institutions which offer health care services and are federally designated as a shortage facility accompanied by a health professional shortage area score may submit an application. Physician services may be limited to the population of the institution. All other state and federal requirements must be met.
[39-6115, added 2004, ch. 128, sec. 1, p. 445; am. 2017, ch. 72, sec. 14, p. 182.]
(1) The department will review applications for completeness in date order received.
(2) Applications submitted for petitioning physicians with language skills appropriate to the community they wish to serve will be given priority.
(3) Selection preference will be given to applications received from health professional shortage areas having the greatest unmet need for physicians.
(4) Applications must be mailed, sent by commercial carrier, or delivered in person. Applications may not be sent electronically. The department is not responsible for applications or related materials lost in the mail.
(5) The department may limit the time period during which applications may be submitted including refusing to process applications after the department has submitted requests for all applications allowed in a given federal fiscal year.
(6) In the event an applicant for a J-1 visa waiver or a national interest waiver submits an application to the department, the department will acknowledge receipt of the copy of the application within five (5) business days of receipt.
(7) The department will review applications within thirty (30) working days of receipt of the application to determine if the application is complete and provide a written explanation of missing items.
(8) An additional fee will not be charged for incomplete applications if the missing items are provided within thirty (30) calendar days of the date on the letter of explanation from the department. If new information is not received within this time frame, the application will be returned to the applicant. The application fee will not be returned.
(9) The department will return applications and application fees to applicants having had five (5) approved J-1 visa waiver requests in the current federal fiscal year for the shortage area or applications received after thirty (30) placements have been recommended.
(10) The department will review complete applications against the criteria specified in this chapter.
(11) The department may:
(a) Request additional clarifying information;
(b) Verify information presented;
(c) Investigate the financial status of the applicant;
(d) Request verification of the health care facility’s payer mix for the previous twelve (12) to eighteen (18) months; and
(e) Return the application as incomplete if the applicant does not supply the requested clarifying information in its entirety within thirty (30) days of request. The application fee is nonrefundable. Incomplete applications must be resubmitted with the application fee. Resubmitted applications will be considered new applications and will be reviewed in date order received.
(12) The department may request the director of the United States department of state to recommend that the immigration agency grant the J-1 visa waiver.
(13) The department may provide a letter of attestation to the immigration agency that the physician’s work in Idaho is in the public interest for a national interest waiver.
(14) The department will notify the applicant in writing of action taken by the department. If the decision is to decline the J-1 visa waiver or national interest waiver request, the department will provide an explanation of how the application failed to meet the stated criterion or criteria. The application fee is nonrefundable.
(15) The department may deny a J-1 visa waiver or national interest waiver request or, prior to United States department of state or immigration agency approval, may withdraw a J-1 visa waiver or national interest waiver recommendation for cause, which shall include the following:
(a) The application is not consistent with state or federal criteria;
(b) Fraud;
(c) Misrepresentation;
(d) False statements;
(e) Misleading statements;
(f) Evasion or suppression of material facts in the J-1 visa waiver or national interest waiver application or in any required documentation and supporting materials;
(g) Incomplete or insufficient information; or
(h) Allowable number of recommendations for the facility or year has been met.
(16) Applications denied may be resubmitted with concerns addressed, with the application fee. Resubmitted applications will be considered new applications and will be reviewed in date order received.
(17) The department retains the authority to audit, monitor and conduct unannounced site visits.
[39-6116, added 2004, ch. 128, sec. 1, p. 445; am. 2009, ch. 106, sec. 18, p. 337; am. 2017, ch. 72, sec. 15, p. 182; am. 2023, ch. 31, sec. 11, p. 159.]
Health care facilities may be denied future participation in the J-1 visa waiver program or national interest waiver program if:
(1) The required annual reports are not submitted in a complete and timely manner;
(2) A waiver physician does not serve the designated shortage area or shortage population approved at the time of placement for the full three (3) to five (5) years of employment. This does not apply only if the approved site is in a designated health professional shortage area that loses its designation after the waiver physician begins employment;
(3) A waiver physician does not remain employed by the applicant for the full three (3) to five (5) years of employment;
(4) The applicant or waiver physician is not in compliance with the terms defined in this chapter or any federal requirements.
[39-6117, added 2004, ch. 128, sec. 1, p. 447; am. 2009, ch. 106, sec. 19, p. 338; am. 2017, ch. 72, sec. 16, p. 184.]
The department shall report to the United States department of state and the immigration agency if the applicant or waiver physician is determined to be out of compliance with any of the provisions of this chapter or if the waiver physician is determined to have left employment in the federally designated area.
[39-6118, added 2004, ch. 128, sec. 1, p. 447; am. 2017, ch. 72, sec. 17, p. 184.]
This chapter shall be known and may be cited as the "Domestic Violence Crime Prevention Act."
[39-6301, added 1988, ch. 341, sec. 1, p. 1013.]
For purposes of this chapter, the legislature adopts by reference the declaration of policy in section 39-5201, Idaho Code. Additionally, the legislature finds that a significant number of homicides, aggravated assaults, and assaults and batteries occur within the home between adult members of families. Furthermore, research shows that domestic violence is a crime which can be deterred, prevented or reduced by legal intervention. Domestic violence can also be deterred, prevented or reduced by vigorous prosecution by law enforcement agencies and prosecutors and by appropriate attention and concern by the courts whenever reasonable cause exists for arrest and prosecution.
The purpose of this act is to address domestic violence as a serious crime against society and to assure the victims of domestic violence the protection from abuse which the law and those who enforce the law can provide.
It is the intent of the legislature to expand the ability of the courts to assist victims by providing a legal means for victims of domestic violence to seek protection orders to prevent such further incidents of abuse. It is the intent of the legislature that the official response to cases of domestic violence shall stress the enforcement of the laws to protect the victim and shall communicate the attitude that violent behavior in the home is criminal behavior and will not be tolerated. It is the intent of the legislature to presume the validity of protection orders issued by courts in all states, the District of Columbia, United States territories and all federally recognized Indian tribes within the United States, and to afford full faith and credit to those orders. The provisions of this chapter are to be construed liberally to promote these purposes.
[39-6302, added 1988, ch. 341, sec. 1, p. 1013; am. 1989, ch. 136, sec. 1, p. 306; am. 1999, ch. 330, sec. 1, p. 888.]
(1) "Domestic violence" means the physical injury, sexual abuse or forced imprisonment or threat thereof of a family or household member, or of a minor child by a person with whom the minor child has had or is having a dating relationship, or of an adult by a person with whom the adult has had or is having a dating relationship.
(2) "Dating relationship," for the purposes of this chapter, is defined as a social relationship of a romantic nature. Factors that the court may consider in making this determination include:
(a) The nature of the relationship;
(b) The length of time the relationship has existed;
(c) The frequency of interaction between the parties; and
(d) The time since termination of the relationship, if applicable.
(3) "Family member" means spouses, former spouses and persons related by blood, adoption or marriage.
(4) "Family dwelling" is any premises in which the petitioner resides.
(5) "Foreign protection order" means a protection order issued by a tribunal of another state.
(6) "Household member" means persons who reside or have resided together, and persons who have a child in common regardless of whether they have been married or have lived together at any time.
(7) "Judicial day" means any day upon which court business may be transacted as provided in sections 1-1606 and 1-1607, Idaho Code.
(8) "Protection order" means any order issued for the purpose of preventing violent or threatening acts or acts of harassment against, or contact or communication with, or physical proximity to, another person, where the order was issued:
(a) Pursuant to this chapter;
(b) In another jurisdiction pursuant to a provision similar to section 39-6306, Idaho Code; or
(c) In any criminal or civil action, as a temporary or final order (other than a support or child custody order), and where the order was issued in a response to a criminal complaint, petition or motion filed by or on behalf of a person seeking protection, and issued after giving notice and an opportunity to respond to the person being restrained.
(9) "Respondent" means the individual against whom enforcement of a protection order is sought.
[39-6303, added 1988, ch. 341, sec. 1, p. 1014; am. 1989, ch. 136, sec. 2, p. 306; am. 1999, ch. 330, sec. 2, p. 889; am. 2000, ch. 136, sec. 1, p. 355; am. 2002, ch. 213, sec. 1, p. 587; am. 2002, ch. 331, sec. 1, p. 937; am. 2003, ch. 16, sec. 9, p. 55.]
(1) There shall exist an action known as a "petition for a protection order" in cases of domestic violence.
(2) A person may seek relief from domestic violence by filing a petition based on a sworn affidavit with the magistrates division of the district court, alleging that the person or a family or household member, whether an adult or a child, is the victim of domestic violence. Any petition properly filed under this chapter may seek protection for any additional persons covered by this chapter. A custodial or noncustodial parent or guardian may file a petition on behalf of a minor child who is the victim of domestic violence.
(3) A person’s right to petition for relief under this chapter shall not be affected by that person’s having left the residence or household to avoid abuse.
(4) The petition shall disclose the existence of any custody or any marital annulment, dissolution or separation proceedings pending between the parties, the existence of any other custody order affecting the children of the parties, and the existence of child protection or adoption proceedings affecting the children of any party.
(5) When the petitioner requests custody of any child, the petition shall disclose:
(a) The county and state where the child has resided for six (6) months immediately prior to the filing of the petition;
(b) The party or other responsible person with whom the child is presently residing; and
(c) The party or other responsible person with whom the child has resided for six (6) months immediately prior to the filing of the petition.
(6) A petition shall be filed in the county of the respondent’s residence, the petitioner’s residence, or where the petitioner is temporarily residing.
[39-6304, added 1988, ch. 341, sec. 1, p. 1014; am. 1989, ch. 136, sec. 3, p. 307; am. 2000, ch. 136, sec. 2, p. 356.]
No filing fee, service fee, hearing fee or bond shall be charged for proceedings seeking only the relief provided under this chapter.
[39-6305, added 1988, ch. 341, sec. 1, p. 1014.]
(1) Upon filing of a petition based upon a sworn affidavit for a protection order, the court shall hold a hearing to determine whether the relief sought shall be granted within fourteen (14) days. If either party is represented by counsel at a hearing seeking entry of a protection order, the court shall permit a continuance, if requested, of the proceedings so that counsel may be obtained by the other party. If the court finds that it is necessary for both parties to be represented by counsel, the court shall enter appropriate orders to ensure that counsel is retained. The order entered may require either the petitioner or respondent, or both, to pay for costs of counsel. Upon a showing that there is an immediate and present danger of domestic violence to the petitioner the court may, if requested, order for a period not to exceed one (1) year that:
(a) Temporary custody of the minor children of the petitioner or of the parties be awarded to the petitioner or respondent if exercise of such jurisdiction is consistent with the provisions of section 32-11-204, Idaho Code, and consistent with prior custody orders entered by a court of competent jurisdiction unless grounds exist pursuant to section 32-717, Idaho Code;
(b) A party be restrained from committing acts of domestic violence;
(c) Exclude the respondent from the dwelling which the parties share or from the residence of the petitioner;
(d) The respondent be ordered to participate in treatment or counseling services. The council on domestic violence, in recognition of the particular treatment requirements for batterers, shall develop minimal program and treatment standards to be used as guidelines for recommending approval of batterer programs to the court;
(e) Other relief be ordered as the court deems necessary for the protection of a family or household member, including orders or directives to a peace officer, as allowed under this chapter;
(f) The respondent be required to pay service fees, and to reimburse the petitioner for costs incurred in bringing the action, including a reasonable attorney’s fee;
(g) The respondent be restrained from harassing, annoying, disturbing the peace of, telephoning, contacting, or otherwise communicating, directly or indirectly, with the petitioner and any designated family member or specifically designated person of the respondent’s household, including the minor children whose custody is awarded to the petitioner;
(h) The respondent be restrained from entering any premises when it appears to the court that such restraint is necessary to prevent the respondent from contacting, harassing, annoying, disturbing the peace of or telephoning the petitioner or the minor children whose custody is awarded to the petitioner; and/or
(i) The respondent be restrained from coming within one thousand five hundred (1,500) feet or other appropriate distance of the petitioner, the petitioner’s residence, the school or place of employment of the petitioner, or any specified place frequented by the petitioner and by any other designated family member or specifically designated person of the respondent’s household, including the minor children whose custody is awarded to the petitioner.
(2) Immediate and present danger under this section includes, but is not limited to, situations in which the respondent has recently threatened the petitioner with bodily harm or engaged in domestic violence against the petitioner or where there is reasonable cause to believe bodily harm may result.
(3) No order made under this chapter shall in any manner affect title to real property.
(4) Relief shall not be denied because petitioner used reasonable force in self-defense against respondent, or because petitioner or respondent was a minor at the time of the incident of domestic violence.
(5) Any relief granted by the protection order, other than a judgment for costs, shall be for a fixed period not to exceed one (1) year; provided, that an order obtained pursuant to this chapter may, upon motion and upon good cause shown, continue for an appropriate time period as directed by the court or be made permanent if the requirements of this chapter are met, provided the order may be terminated or modified by further order of the court either on written stipulation filed with the court or on the motion of a party and after a hearing on the motion. The motion to renew an order may be granted without a hearing, if not timely objected to by the party against whom the order was entered.
(6) In providing relief under this chapter, the court may realign the designation of the parties as "petitioner" and "respondent" where the court finds that the original petitioner is the abuser and the original respondent is the victim of domestic violence.
[39-6306, added 1988, ch. 341, sec. 1, p. 1013; am. 1989, ch. 136, sec. 4, p. 305; am. 1990, ch. 234, sec. 1, p. 667; am. 1991, ch. 300, sec. 1, p. 787; am. 1995, ch. 357, sec. 1, p. 1212; am. 2000, ch. 227, sec. 3, p. 640; am. 2006, ch. 287, sec. 1, p. 883.]
(1) Short Title. This section may be cited as the "Uniform Interstate Enforcement of Domestic Violence Protection Orders Act."
(2) Definitions. As used in this section:
(a) "Issuing state" means the state whose tribunal issues a protection order.
(b) "Mutual foreign protection order" means a foreign protection order that includes provisions in favor of both the protected individual seeking enforcement of the order and the respondent.
(c) "Protected individual" means an individual protected by a protection order.
(d) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands or any territory or insular possession subject to the jurisdiction of the United States. The term includes an Indian tribe or band that has jurisdiction to issue protection orders.
(e) "Tribunal" means a court, agency, or other entity authorized by law to issue or modify a protection order.
(3) Judicial Enforcement of Order.
(a) A person authorized by the law of this state to seek enforcement of a protection order may seek enforcement of a valid foreign protection order in a tribunal of this state. The tribunal shall enforce the terms of the order, including terms that provide relief that a tribunal of this state would lack power to provide but for this section. The tribunal shall enforce the order, whether the order was obtained by independent action or in another proceeding, if it is an order issued in response to a complaint, petition or motion filed by or on behalf of an individual seeking protection. In a proceeding to enforce a foreign protection order, the tribunal shall follow the procedures of this state for the enforcement of protection orders.
(b) A tribunal of this state may not enforce a foreign protection order issued by a tribunal of a state that does not recognize the standing of a protected individual to seek enforcement of the order.
(c) A tribunal of this state shall enforce the provisions of a valid foreign protection order which govern custody and visitation if the order was issued in accordance with the jurisdictional requirements governing the issuance of custody and visitation orders in the issuing state.
(d) A foreign protection order is valid if it:
(i) Identifies the protected individual and the respondent;
(ii) Is currently in effect;
(iii) Was issued by a tribunal that had jurisdiction over the parties and subject matter under the law of the issuing state; and
(iv) Was issued after the respondent was given reasonable notice and had an opportunity to be heard before the tribunal issued the order or, in the case of an order ex parte, the respondent was given notice and has had or will have an opportunity to be heard within a reasonable time after the order was issued, in a manner consistent with the rights of the respondent to due process.
(e) A foreign protection order valid on its face is prima facie evidence of its validity.
(f) Absence of any of the criteria for validity of a foreign protection order is an affirmative defense in an action seeking enforcement of the order.
(g) A tribunal of this state may enforce provisions of a mutual foreign protection order which favor a respondent only if:
(i) The respondent filed a written pleading seeking a protection order from the tribunal of the issuing state; and
(ii) The tribunal of the issuing state made specific findings in favor of the respondent.
(4) Nonjudicial Enforcement of Order.
(a) A law enforcement officer of this state, upon determining that there is probable cause to believe that a valid foreign protection order exists and that the order has been violated, shall enforce the order as if it were the order of a tribunal of this state. Presentation of a foreign protection order that identifies both the protected individual and the respondent and, on its face, is currently in effect constitutes probable cause to believe that a valid foreign protection order exists. For the purposes of this subsection, the foreign protection order may be inscribed on a tangible medium or may have been stored in an electronic or other medium if it is retrievable in perceivable form. Presentation of a certified copy of a foreign protection order is not required for enforcement.
(b) If a foreign protection order is not presented, a law enforcement officer of this state may consider other information in determining whether there is probable cause to believe that a valid foreign protection order exists.
(c) If a law enforcement officer of this state determines that an otherwise valid foreign protection order cannot be enforced because the respondent has not been notified or served with the order, the officer shall inform the respondent of the order, make a reasonable effort to serve the order upon the respondent, and allow the respondent a reasonable opportunity to comply with the order before enforcing the order.
(d) Registration or filing of an order in this state is not required for the enforcement of a valid foreign protection order pursuant to this section.
(5) Registration of Order.
(a) Any individual may register a foreign protection order in this state pursuant to section 39-6311, Idaho Code. To register a foreign protection order, an individual shall present a copy of a protection order which has been certified by the issuing state to a court of this state in order to be entered in the Idaho law enforcement telecommunications system pursuant to section 39-6311, Idaho Code.
(b) An individual registering a foreign protection order shall file with the court an affidavit by the protected individual stating that, to the best of the protected individual’s knowledge, the order is currently in effect.
(c) A fee may not be charged for the registration of a foreign protection order.
(d) A foreign protection order registered under this section may be entered in any existing state or federal registry of protection orders, in accordance with applicable law.
(6) Immunity. This state or a local governmental agency, or a law enforcement officer, prosecuting attorney, clerk of court, or any state or local governmental official acting in an official capacity, is immune from civil and criminal liability for an act or omission arising out of the registration or enforcement of a foreign protection order or the detention or arrest of an alleged violator of a foreign protection order if the act or omission was done in good faith in an effort to comply with this section.
(7) Uniformity of Application and Construction. In applying and construing this section, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
(8) Transitional Provision. This section applies to foreign protection orders issued before July 1, 2002, and to continuing actions for enforcement of foreign protection orders commenced before July 1, 2002. A request for enforcement of a foreign protection order made on or after July 1, 2002, for violations of a foreign protection order occurring before that date is governed by this section.
[39-6306A, added 2002, ch. 213, sec. 3, p. 588; am. 2003, ch. 213, sec. 1, p. 559.]
Whenever a protection order is issued under this chapter, the issuing court may set a security amount for a violation of the order.
[39-6307, added 1988, ch. 341, sec. 1, p. 1015.]
(1) Where an application under this section alleges that irreparable injury could result from domestic violence if an order is not issued immediately without prior notice to the respondent, the court may grant an ex parte temporary protection order based upon the affidavit submitted or otherwise shall hold a hearing which may be ex parte on the day a petition is filed or on the following judicial day to determine whether the court should grant an ex parte temporary protection order, pending a full hearing, and grant such other relief as the court deems proper, including an order:
(a) Restraining any party from committing acts of domestic violence;
(b) Excluding any party from the dwelling shared or from the residence of the other until further order of the court;
(c) Restraining any party from interfering with the other’s custody of the minor children or from removing the children from the jurisdiction of the court;
(d) Ordering other relief as the court deems necessary for the protection of a family or household member, including orders or directives to a peace officer, as allowed under this chapter;
(e) Restraining the respondent from contacting, molesting, interfering with or menacing the minor children whose custody is awarded to the petitioner;
(f) Restraining the respondent from entering any premises when it appears to the court that such restraint is necessary to prevent the respondent from contacting, molesting, interfering with or menacing the petitioner or the minor children whose custody is awarded to the petitioner; and/or
(g) Restraining the respondent from taking more than personal clothing and toiletries and any other items specifically ordered by the court.
(2) An ex parte hearing to consider the issuance of a temporary protection order may be conducted by telephone in accordance with procedures established by the Idaho supreme court.
(3) Irreparable injury under this section includes but is not limited to situations in which the respondent has recently threatened the petitioner with bodily injury or has engaged in acts of domestic violence against the petitioner.
(4) The court shall hold an ex parte hearing on the day the petition is filed or on the following judicial day.
(5) An ex parte temporary protection order shall be effective for a fixed period not to exceed fourteen (14) days, but may be reissued. A full hearing, as provided in this chapter, shall be set for not later than fourteen (14) days from the issuance of the temporary order. The respondent shall be served with a copy of the ex parte order along with a copy of the petition and notice of the date set for the hearing. If the ex parte temporary protection order substantially affects the respondent’s rights to enter the domicile or the respondent’s right to custody or visitation of the respondent’s children and the ends of justice so require, the respondent may move the court for an order shortening the time period within which the hearing required under the provisions of section 39-6306, Idaho Code, must be held. Motions seeking an order shortening the time period must be served upon the petitioner at least two (2) days prior to the hearing on the motion.
[39-6308, added 1988, ch. 341, sec. 1, p. 1016; am. 1989, ch. 136, sec. 5, p. 308; am. 1990, ch. 234, sec. 2, p. 668.]
When an order is issued or a foreign protection order is recognized under this chapter upon request of the petitioner, the court may order a peace officer to accompany the petitioner and assist in placing the petitioner in possession of the dwelling or residence, or otherwise assist in the execution of the protection order. A certified copy of the order shall be prepared by the clerk for transmittal to the appropriate law enforcement agency as specified in section 39-6311, Idaho Code. Orders issued or foreign protection orders recognized under this chapter shall include an instruction to the appropriate law enforcement agency to execute, serve, or enforce the order.
[39-6309, added 1988, ch. 341, sec. 1, p. 1016; am. 1999, ch. 330, sec. 4, p. 890; am. 2002, ch. 213, sec. 4, p. 591.]
(1) An order issued under this chapter along with a copy of the petition for a protection order, if the respondent has not previously received the petition, shall be personally served upon the respondent, except as provided in subsections (6), (7) and (8) of this section.
(2) A peace officer of the jurisdiction in which the respondent resides shall serve the respondent personally unless the petitioner elects to have the respondent served by a private party at the petitioner’s own expense.
(3) If service by a peace officer is to be used, the clerk of the court shall have a copy of any order issued under this chapter and a copy of the petition for a protection order, if the respondent has not previously received the petition, forwarded on or before the next judicial day to the appropriate law enforcement agency specified in the order for service upon the respondent. Service of an order issued under this chapter shall take precedence over the service of other documents unless they are of a similar emergency nature.
(4) If the peace officer cannot complete service upon the respondent within ten (10) days, the sheriff or municipal peace officer shall notify the petitioner. The petitioner shall provide information sufficient to permit notification.
(5) Returns of service under this chapter shall be made in accordance with the applicable court rules.
(6) If an order entered by the court recites that the respondent appeared in person before the court and receives a copy of the order, the necessity for further service is waived and proof of service of that order is not necessary.
(7) If a party has appeared in person before the court and has waived personal service, the clerk of the court shall complete service of any notice of hearing or orders or modifications by certified mail to the party’s address as shown on the court petition which resulted in the issuance of the order or modification. Parties shall at all times keep the court informed of their current mailing address.
(8) If a foreign protection order is registered with the court under section 39-6306A, Idaho Code, the necessity for further service is waived and proof of service of that order is not necessary.
[39-6310, added 1988, ch. 341, sec. 1, p. 1017; am. 1996, ch. 236, sec. 1, p. 766; am. 1997, ch. 69, sec. 1, p. 145; am. 1999, ch. 330, sec. 5, p. 890; am. 2000, ch. 72, sec. 1, p. 154; am. 2002, ch. 213, sec. 5, p. 591.]
(1) The orders issued under sections 39-6306 and 39-6308, Idaho Code, or foreign protection orders recognized under section 39-6306A, Idaho Code, shall be in a form approved by the supreme court of the state of Idaho.
(2) (a) A copy of a protection order granted or a foreign protection order recognized under this chapter shall be forwarded by the clerk of the court on or before the next judicial day to the appropriate law enforcement agency specified in the order.
(b) Upon receipt of the order, the law enforcement agency shall forthwith enter the order and its expiration date into the Idaho public safety and security information system available in this state used by law enforcement agencies to list outstanding warrants. Notification of service as required in section 39-6310, Idaho Code, shall also be entered into the Idaho public safety and security information system upon receipt. Entry into the Idaho public safety and security information system constitutes notice to all law enforcement agencies of the existence of the order. The order is fully enforceable in any county in the state. Renewals of the order shall be recorded in the same manner as original orders. The information entered shall specifically state that the protection order is civil in nature. If the appropriate law enforcement agency determines that the service information sheet is incomplete or cannot be entered into the Idaho public safety and security information system upon receipt, the service information sheet shall be returned to the clerk of the court. The clerk of the court shall then notify the petitioner of the error or omission.
(3) Law enforcement agencies shall establish procedures reasonably adequate to assure that an officer approaching or actually at the scene of an incident of domestic violence may be informed of the existence and terms of such protection order.
(4) A protection order shall remain in effect for the term set by the court or until terminated by the court. A protection order may, upon motion and upon good cause shown, be renewed for additional terms not to exceed one (1) year each if the requirements of this chapter are met. The motion to renew an order may be granted without a hearing, if not timely objected to by the party against whom the order was entered. If the petitioner voluntarily and without duress consents to the waiver of any portion of the protection order vis-a-vis the respondent pursuant to section 39-6313, Idaho Code, the order may be modified by the court.
[39-6311, added 1988, ch. 341, sec. 1, p. 1017; am. 1989, ch. 136, sec. 6, p. 310; am. 1990, ch. 293, sec. 1, p. 813; am. 1991, ch. 300, sec. 2, p. 788; am. 1995, ch. 357, sec. 2, p. 1214; am. 1996, ch. 362, sec. 1, p. 1218; am. 1999, ch. 330, sec. 6, p. 891; am. 2002, ch. 213, sec. 6, p. 592; am. 2013, ch. 187, sec. 6, p. 452.]
(1) Whenever a protection order is granted and the respondent or person to be restrained had notice of the order, a violation of the provisions of the order or of a provision excluding the person from a residence shall be a misdemeanor punishable by not to exceed one (l) year in jail and a fine not to exceed five thousand dollars ($5,000), ten dollars ($10.00) of which shall be deposited to the credit of the domestic violence project account created in section 39-5212, Idaho Code.
(2) A peace officer may arrest without a warrant and take into custody a person whom the peace officer has probable cause to believe has violated an order, if the person restrained had notice of the order.
(3) The person against whom a protection order has been issued by an out-of-state court is presumed to have notice of the order if the victim presents to the officer proof of service of the order.
[39-6312, added 1988, ch. 341, sec. 1, p. 1018; am. 1990, ch. 234, sec. 3, p. 670; am. 1991, ch. 169, sec. 1, p. 409; am. 1999, ch. 330, sec. 7, p. 892.]
Upon application with notice to all parties and after a hearing, the court may modify the terms of an existing protection order. In any situation where an order is terminated or modified before its expiration date, the clerk of the court shall forward on or before the next judicial day a true copy of the modified order or the termination order to the appropriate law enforcement agency specified in the modification or termination order. Upon receipt of the order, the law enforcement agency shall promptly enter it in the Idaho law enforcement telecommunications system.
[39-6313, added 1988, ch. 341, sec. 1, p. 1018.]
No peace officer may be held criminally or civilly liable for actions or omissions in the performance of the duties of his office under this chapter, including the enforcement of out-of-state protection orders, if the peace officer acts in good faith and without malice.
[39-6314, added 1988, ch. 341, sec. 1, p. 1018; am. 1999, ch. 330, sec. 8, p. 892.]
Any proceedings under this chapter are in addition to other civil or criminal remedies.
[39-6315, added 1988, ch. 341, sec. 1, p. 1018.]
(1) All training provided by the peace officers standards and training academy relating to the handling of domestic violence or sexual assault complaints by law enforcement officers shall stress enforcement of criminal laws in domestic situations and sexual assault situations, availability of community resources, and protection of the victim. Law enforcement agencies and community organizations with expertise in the issue of domestic violence and sexual assault shall cooperate in all aspects of such training.
(2) When a peace officer responds to a domestic violence or sexual assault call, the officer shall give a written statement to the victim that alerts the victim to the availability of a shelter or other resources in the community and a written notice provided by the Idaho state police substantially stating the following:
IF YOU ARE THE VICTIM OF DOMESTIC VIOLENCE OR SEXUAL ASSAULT, you can ask the city or county prosecuting attorney to file a criminal complaint. You also have the right to file a petition in magistrate court requesting an order for protection from domestic abuse which could include any of the following: (a) an order restraining your abuser from further acts of abuse; (b) an order directing your abuser to leave your household; (c) an order preventing your abuser from entering your residence, school, business, or place of employment; (d) an order awarding you or the other parent custody of or visitation with your minor child or children; and (e) an order restraining your abuser from molesting or interfering with minor children in your custody. The forms you need to obtain a protection order are available from the clerk of the district court. The resources available in this community for information relating to domestic violence or sexual assault, treatment of injuries and places of safety and shelters are: (For safety reasons, inclusion of shelter/safe house addresses is not necessary). You also have the right to sue for losses suffered as a result of the abuse, including medical and moving expenses, loss of earnings or support, and other out-of-pocket expenses for injuries sustained and damage to your property. This can be done without an attorney in small claims court if the total amount claimed is less than five thousand dollars ($5,000).
(3) The peace officer shall make every effort to arrange, offer, or facilitate transportation for the victim to a hospital for treatment of injuries or to a place of safety or shelter.
(4) The law enforcement agency shall forward the offense report to the appropriate prosecutor within ten (10) days of making such report if there is probable cause to believe that an offense has been committed, unless the case is under active investigation.
[39-6316, added 1988, ch. 341, sec. 1, p. 1018; am. 1990, ch. 234, sec. 4, p. 670; am. 1992, ch. 74, sec. 4, p. 212; am. 2000, ch. 250, sec. 12, p. 708; am. 2000, ch. 469, sec. 100, p. 1553; am. 2006, ch. 263, sec. 5, p. 817; am. 2022, ch. 65, sec. 1, p. 200.]
The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of remaining portions of this act.
[39-6317, added 1988, ch. 341, sec. 1, p. 1019.]
(1) In order to ensure that a requesting party can maintain an existing wireless telephone number and the wireless numbers of any minor children in the care of the requesting party, a court may issue an order, after notice and a hearing, directing a wireless telephone service provider to transfer the billing responsibility for and rights to the wireless telephone number or numbers to the requesting party, if the requesting party is not the account holder.
(2)(a) The order transferring billing responsibility for and rights to the wireless telephone number or numbers to a requesting party shall be a separate order that is directed to the wireless telephone service provider. The order shall list the name and billing telephone number of the account holder, the name and contact information of the person to whom the telephone number or numbers will be transferred and each telephone number to be transferred to that person. The court shall ensure that the contact information of the requesting party is not provided to the account holder.
(b) The order shall be served on the wireless service provider’s agent for service of process listed with the secretary of state.
(c) Where the wireless service provider cannot operationally or technically effectuate the order due to certain circumstances including, but not limited to, any of the following, the wireless service provider shall notify the requesting party when:
(i) The account holder has already terminated the account;
(ii) Differences in network technology prevent the functionality of a device on the network; or
(iii) There are geographic or other limitations on network or service availability.
(3)(a) Upon transfer of billing responsibility for and rights to a wireless telephone number or numbers to a requesting party, pursuant to subsection (2) of this section, by a wireless telephone service provider, the requesting party shall assume all financial responsibility for the transferred wireless telephone number or numbers, monthly service costs and costs for any mobile device associated with the wireless telephone number or numbers.
(b) This section shall not preclude a wireless service provider from applying any routine and customary requirements for account establishment to the requesting party as part of this transfer of billing responsibility for a wireless telephone number or numbers and any devices attached to that number or numbers including, but not limited to, identification, financial information and customer preferences.
(4) This section shall not affect the ability of the court to apportion the assets and debts of the parties as provided for in law or the ability to determine the temporary use, possession and control of personal property.
(5) No cause of action shall lie against any wireless telephone service provider, its officers, employees or agents for actions taken in accordance with the terms of a court order issued pursuant to the provisions of this section.
[39-6318, added 2018, ch. 227, sec. 2, p. 518.]
As used in this chapter:
(1) "City" means the city where the waste tire storage site is located.
(2) "County" means the county where the waste tire storage site is located.
(3) "Department" means the department of environmental quality.
(4) "Dispose" means to drop, deposit, dump, spill or permanently place any waste tire onto or under the ground or into the waters of this state, or to own or control property where waste tires are dropped, deposited, dumped, spilled or permanently placed onto or under the ground or into the waters of this state.
(5) "Existing waste tire storage site" means any property storing waste tires prior to recycle, reuse, or final disposal as of July 1, 2003, regardless of whether the owner or operator possesses a permit or other written city or county authorization authorizing the storage of waste tires at the property.
(6) "Mining waste tire" means a waste tire which is greater than fifty-four (54) inches in diameter which was used in mining operations. Mining waste tires may be disposed of by burial. The department of lands shall prepare guidelines to govern the burial of mining waste tires.
(7) "Motor vehicle" means any automobile, motorcycle, truck, trailer, semitrailer, truck tractor and semitrailer combination or other vehicle operated on the roads of this state, used to transport persons or property and propelled by power other than muscular power, but motor vehicle does not include bicycles.
(8) "New waste tire storage site" means any property that is not storing waste tires as of July 1, 2003, and applies for and receives a permit or other written city or county authorization to store waste tires prior to recycle, reuse or final disposal on or after July 1, 2003.
(9) "Operator" means any person presently, or who was during any period of waste tire storage or disposal, in control of, or having responsibility for a waste tire storage site or a waste tire disposal site.
(10) "Owner" means a person who owned a waste tire storage site or disposal site at any time waste tires are stored or disposed at the property, and the current owner of the waste tire storage site or waste tire disposal site.
(11) "Person" means an individual, public or private corporation, partnership, association, firm, joint stock company, joint venture, trust, estate, municipality, commission, political subdivision of the state, state or federal agency, department or instrumentality, special district, interstate body or any legal entity, which is recognized by law as the subject of rights and duties.
(12) "Retail tire dealer" means any person actively engaged in the business of selling new, used, or retread replacement tires at the retail level.
(13) "Store" or "storage" means to accumulate more than two hundred (200) waste tires at any time, in a manner that does not constitute final disposal at a waste tire disposal site, or to own or control property on which more than two hundred (200) waste tires accumulate at any given time, in a manner that does not constitute final disposal at a waste tire disposal site. The following activities shall not constitute "storing" or "storage" of waste tires:
(a) A retail tire dealer collecting less than one thousand five hundred (1,500) waste tires at any point in time for each retail business location.
(b) A tire retreader collecting less than three thousand (3,000) waste tires at any point in time for each individual retread operation so long as the waste tires are of the type the retreader is actively retreading.
(c) A wrecking salvage business collecting less than one thousand five hundred (1,500) waste tires for each retail business location.
(d) A waste tire disposal site collecting waste tires for disposal at the site in accordance with the site’s approved operating plan.
(e) A wholesale tire dealer collecting less than one thousand five hundred (1,500) waste tires at any point in time for each wholesale business location.
(f) An approved solid waste transfer station or solid waste landfill collecting less than one thousand five hundred (1,500) waste tires prior to transfer to an approved waste tire storage or disposal site.
(g) A farm or livestock operation which utilizes waste tires to secure farm or livestock silage or wastes provided the total number of waste tires shall not exceed one thousand five hundred (1,500).
(h) A permitted facility storing tires for an approved beneficial use.
(14) "Tire" has the meaning provided in section 49-121, Idaho Code.
(15) "Tire retreader" means any person actively engaged in the business of retreading tires by scarifying the surface to remove the old surface tread and attaching a new tread to make a usable tire.
(16) "Transport" or "transporting" means picking up or hauling waste tires.
(17) "Waste tire" means a motor vehicle tire originally used for operation of a vehicle on a public roadway which is no longer suitable for its original intended purpose because of wear, damage or defect.
(18) "Waste tire storage site" means a new or existing waste tire storage site.
(19) "Waste tire disposal site" means a public or private municipal solid waste landfill operating in compliance with section 39-6503, Idaho Code.
(20) "Wholesale tire dealer" means any person engaged in the business of selling new replacement tires to tire retailers.
(21) "Wrecking salvage business" means any establishment or place of business which is maintained, used, or operated, for storing, keeping, buying, or selling wrecked, scrapped, ruined, or dismantled motor vehicles or motor vehicle parts.
[39-6501, added 1991, ch. 308, sec. 1, p. 808; am. 1993, ch. 375, sec. 1, p. 1373; am. 2001, ch. 103, sec. 57, p. 298; am. 2003, ch. 281, sec. 1, p. 758.]
(1) No person shall store waste tires on any public or private property in this state or in the waters of this state unless the property is a waste tire storage site as defined or otherwise exempted in this chapter.
(2) Permit or local authorization required. No person shall own or operate a waste tire storage site without a permit or other written county or city authorization, as follows:
(a) Counties and cities shall only issue permits or other written authorizations that contain terms and conditions that assure waste tire storage sites are operated in compliance with this chapter and any additional requirements the county or city deems appropriate. Counties and cities shall review waste tire storage site applications pursuant to the procedures contained in section 67-6512, Idaho Code.
(b) Existing waste tire storage sites.
(i) Within three (3) months of the effective date of this chapter, the owner or operator of an existing site that is:
Operating without a permit or other written local authorization on the effective date of this chapter, shall apply to the respective county or city jurisdiction for approval to operate the existing site via an approved permit or other written city or county authorization; or
Operating with a previously issued permit or other written city or county authorization on the effective date of this chapter, shall notify the respective county or city jurisdiction.
(ii) If an existing waste tire storage facility fails to submit to the county or city an application by October 1, 2003, the existing waste tire storage site shall cease storing waste tires by January 1, 2004.
(iii) If the county or city determines not to issue a permit, other written authorization, or a modification to an existing permit or approval, for the existing waste tire storage site, the existing waste tire storage site shall cease storing waste tires no later than three (3) months after receiving notice of the determination not to issue a permit, other written authorization, or modification for the site.
(c) New waste tire storage sites. The current owner or operator of a new waste tire storage site shall not commence waste tire storage at the site until the county or city issues a permit or other written authorization permitting waste tire storage.
(d) Counties and cities shall issue permits and other written local authorizations for waste tire storage sites.
Upon written request from the city council or board of county commissioners to the department, the department shall be responsible for the permitting and authorization requirements of this section with respect to any application submitted to the county or city, in lieu of the county or city.
(e) Financial assurance. The owner or operator of a waste tire storage site shall maintain financial assurance in the form of a cash bond payable to the county or city, in an amount acceptable to the county or city where the waste tire storage site is located; provided however, counties and cities shall require a minimum initial financial assurance of two dollars and fifty cents ($2.50) per tire authorized to be stored at the site. The amount of financial assurance shall be adjusted each year in accordance with the consumer price index on the anniversary date of the issuance of the permit or other city or county written authorization. Failure to adjust the amount of financial assurance on the anniversary date each year shall constitute failure to comply with the provisions of this chapter and shall result in automatic revocation of the permit or other written city or county authorization and forfeiture of the bond. Cities and counties shall only process an application submitted under this section when documentation submitted with the application establishes compliance with the financial assurance requirement of this paragraph.
(i) The current owner or operator of an existing waste tire storage site shall comply with the financial assurance requirement of this paragraph by October 1, 2003. Except that the owner or operator of the existing waste tire storage site located in the magic valley as provided by rule of the department shall comply with the financial assurance requirement of this paragraph by July 1, 2005.
(ii) The current owner or operator of a new waste tire storage site shall comply with the financial assurance requirement of this section prior to commencing waste tire storage at the site.
Upon written request from the city council or board of county commissioners to the department, the cash bond will be written in favor of the department, in lieu of the city or county. In such cases, the department will oversee use of the bond should two (2) owners or operators become liable on the bond obligation.
(f) Siting. Counties and cities shall only issue a permit or written authorization to a waste tire storage site when the application establishes that the proposed or existing site is located on property owned as exclusively for industrial use.
(g) Application processing fee. Counties and cities may charge a fee for processing a waste tire storage site permit or authorization application or renewal.
(h) Records. Owners and operators of a waste tire storage site shall record and maintain on-site for a period of three (3) years, operational records including, but not limited to, the daily quantity of tires transported to and from the site, and the estimated quantity of tires located at the site.
(i) Suspension, revocation, renewal of permit or written authorization. The county or city may suspend, revoke, or refuse to renew a waste tire storage site’s permit or written authorization if the county or city determines that the site is operating in violation of any requirement of this section or any term or condition of the site’s permit or written authorization.
(3) In the event the current owner or operator of an existing or new waste tire storage site fails to comply with the requirements of this section, the board of county commissioners or city council may declare the site a public nuisance; and may declare a public health or safety emergency based on potential fire hazard, threat of insect borne disease, or potential contamination of the state’s ground or surface waters. If the respective governing authority has declared a public health or safety emergency, they may petition the board of examiners for, and the board of examiners may authorize, the issuance of deficiency warrants for the purpose of removing and properly disposing of the tires upon the recommendation of the state fire marshal in the event of fire hazard, or the district health department in the event of insect borne disease hazard, or the department in the event of ground or surface water contamination hazard.
(a) Upon authorization of deficiency warrants by the board of examiners in accordance with provisions of this section, the state controller shall, after notice to the state treasurer, draw deficiency warrants in the authorized amounts against the general fund.
(b) Nothing contained in this section shall be construed to change or impair any right of recovery or subrogation arising under any other provision of law.
(c) The attorney general shall act to fully recover all costs incurred by the state of Idaho and its political subdivisions pursuant to this section.
[39-6502, added 2003, ch. 281, sec. 3, p. 761.]
(1) No person shall dispose of waste tires on any public or private property in this state or in the waters of this state except at permitted public or private municipal solid waste landfills which have been approved to accept waste tires in their operating plans as specified in the following subsection.
(2) Waste tires may be disposed at a permitted public or private municipal solid waste landfill with an approved operating plan only if the waste tires have been processed to meet the following criteria:
(a) The volume of one hundred (100) unprepared randomly selected whole tires in one (1) continuous test period must be reduced by at least sixty-five percent (65%) of the original volume as specified in subsection (3) of this section. No single void space greater than one hundred twenty-five (125) cubic inches may remain in the randomly placed processed tires; or
(b) The tires shall be reduced to an average chip size no greater than sixty-four (64) square inches in any randomly selected sample of ten (10) tires or more. No more than forty percent (40%) of the chips may exceed sixty-four (64) square inches.
(3) Tire volumes shall be calculated as follows:
(a) Unprocessed whole tire volume shall be calculated by randomly placing one hundred (100) unprepared randomly selected whole tires in a rectangular container and multiplying the depth of unprocessed tires by the bottom area of the container.
(b) Processed tire volume shall be determined by randomly placing the processed tire test quantity in a rectangular container and leveling the surface. It shall be calculated by multiplying the depth of processed tires by the bottom area of the container.
[39-6503, added 2003, ch. 281, sec. 4, p. 763.]
(1) No person shall transport waste tires for storage to any location in this state other than to a waste tire storage site for which a city or county has issued a permit or other written county or city authorization in active status.
(2) No person shall transport waste tires for disposal to any location in this state other than to a municipal solid waste landfill which is operating in compliance with the requirements of section 39-6503, Idaho Code.
(3) Nothing in this section shall prohibit any person from transporting waste tires to facilities in the state which possess a valid air quality permit, provided the permit allows for an approved beneficial use of the waste tires.
[39-6504, added 2003, ch. 281, sec. 5, p. 764.]
No person shall advertise or represent himself/herself as being in the business of accepting waste tires for transport, storage, or disposal without being in full compliance with all the provisions of this chapter.
[39-6505, added 2003, ch. 281, sec. 6, p. 764.]
The state of Idaho seeks to protect human health and the environment by encouraging the recycling and reuse of waste tires. Accordingly, the legislature directs the department to identify approved methods of recycling and reuse of waste tires.
[39-6506, added 2003, ch. 281, sec. 7, p. 764.]
Any person who knowingly stores, transports or disposes of a tire in violation of the provisions of this chapter is subject to a civil penalty of not more than five hundred dollars ($500) per violation and is subject to the provisions of the environmental protection and health act contained in section 39-108, Idaho Code. Each tire so disposed of improperly constitutes a separate violation.
[39-6507, added 1991, ch. 308, sec. 1, p. 811; am. 1993, ch. 375, sec. 7, p. 1376; am. 2003, ch. 281, sec. 8, p. 764.]
The state of Idaho supports and encourages the reuse and recycling of waste tires. The legislature finds the paramount public interest in regulating waste tires is to protect public health and safety. In particular, the legislature is concerned with eliminating potential fire hazards; minimizing or eliminating potential breeding grounds for disease-bearing insects; and eliminating potential sources of surface and ground water contamination.
[39-6508, added 2003, ch. 281, sec. 9, p. 765.]
The legislature finds that the waters of Big Payette Lake and its watershed are threatened with deterioration due to expanding residential development, greater public use and growing land use activities, that these pressures may endanger the drinkability, economic potential, fisheries, natural beauty, recreational use, swimability and wildlife values of the lake; that the state holds all such public lakes in trust for the use of all its citizens; that to preserve and protect such public lakes and to increase and enhance the use and enjoyment of such lakes is in the best interest of all the citizens of the state; that natural lakes form an important basis of the state’s economy and that the increasing demand upon the lake waters of this state require coordinated state and local action to protect, preserve and improve the water qualify of the lakes.
The legislature declares that it is necessary to embark upon a program of water quality protection for the lake so that future generations of Idahoans may use and enjoy it. This act creates a program to protect, preserve and, where necessary, improve the water quality of the lake while accommodating private, public and commercial activities to the extent prudent and practicable. The program as set forth in this act shall require a working partnership of federal, state and local agencies.
[39-6601, added 1993, ch. 200, sec. 1, p. 550.]
Whenever used in this chapter:
(1) "Citizens committee" means the committee named by the council consisting of members of the public.
(2) "Council" means the "Big Payette Lake Water Quality Council" established in this chapter.
(3) "Lake" means the Big Payette Lake and its watershed which shall include all tributaries, and small lakes on those tributaries, to the North Fork of the Payette River above Big Payette Lake. The term "lake" shall also include all tributaries, and small lakes on those tributaries, that drain directly into Big Payette Lake before the dam on the North Fork of the Payette Lake as it leaves Big Payette Lake.
(4) "Plan" means the comprehensive water quality management plan for the lake to be developed after the initial study, and as modified over time.
(5) "Pollution" means water pollution as defined in section 39-103, Idaho Code.
(6) "Program" means all the actions to be performed by the council pursuant to this chapter.
(7) "Study" means the comprehensive, scientifically-based study of water quality in the lake.
(8) "Technical committee" means the advisory committee named by the council pursuant to this chapter.
[39-6602, added 1993, ch. 200, sec. 1, p. 550.]
There is hereby created a Big Payette Lake water quality council for the lake. It shall be the responsibility of the council to develop and implement the program created in this chapter. The council shall be assisted in carrying out its responsibilities by the department of environmental quality, the local public health district and other appropriate state and local agencies as needed.
[39-6603, added 1993, ch. 200, sec. 1, p. 551; am. 2001, ch. 103, sec. 61, p. 300.]
The council shall develop and implement a program that includes:
(1) The assembly of all historical data on water quality studies in the lake.
(2) An assessment of present and projected land and water uses related to the lake.
(3) The performance of a comprehensive, scientifically-based study of water quality in the lake. This study will include, but not be limited to, all point and nonpoint sources of nutrients, bacteria, sediments and potential pollution.
(4) The continued collection of important data after the initial study is completed as required by and for use in a nutrient load/lake response predictive model which shall be developed as part of the initial study.
(5) The preparation of a water quality management plan upon completion of the initial study, such plan to be updated regularly as new knowledge becomes available.
(6) The submittal of such plan to the legislature which shall accept, modify or reject the plan. The council will assist and coordinate the implementation of the accepted plan with federal, state and local authorities for seven (7) years after acceptance, after which the council and its committees will disband and be succeeded by appropriate multiagency oversight of the plan, its modification, and maintenance of the nutrient load/lake response predictive model. The city council of McCall and the Valley county commission may establish appropriate public committees to advise in matters related to the implementation of the plan on a continuing basis.
(7) An active public participation program with stakeholders and other interested parties in the design of the study, and the preparation and implementation of the plan, from the beginning of the council’s activities and until its disbandment. This program shall include regular reports to the public through forums, printed material and otherwise of lake conditions, findings of the study and progress in the development and implementation of the plan.
[39-6604, added 1993, ch. 200, sec. 1, p. 551; am. 2000, ch. 27, sec. 1, p. 52.]
The council shall consist of nine (9) members appointed by the governor. The governor shall appoint one (1) member who shall be a Valley county commissioner at the time of their appointment, one (1) member who shall be an elected member of the McCall city government at the time of their appointment, one (1) local resident to represent sporting interests in the area, one (1) member to represent lumbering interests in the watershed, one (1) member to represent commercial interests in Valley county, and four (4) members at large who are full or part-time residents of Valley county. The terms of the members shall be three (3) years with the initial term to be staggered in terms of one (1), two (2), and three (3) years by the governor when he makes the appointment. Vacancies shall be filled by appointment of the governor upon recommendation of the council. A majority of the members of the council must maintain their primary residence in Valley county. Once established, the council will convene to adopt rules for its operation.
[39-6605, added 1993, ch. 200, sec. 1, p. 552.]
The council shall have the following duties:
(1) To coordinate activities related to the study of water quality in the lake, the development of a water quality management plan, and the implementation of that plan until disbandment as provided herein.
(2) To conduct a public awareness program to educate the general public on methods and responsibilities to protect the lake.
(3) To make an examination, as the council deems necessary, of environmental conditions in, upon and around the lake. The objective shall be to obtain a scientifically sound baseline study for planning future action by appropriate authorities.
(4) To undertake and complete a management plan with recommendations for the lake based upon such examination and study. The plan to be prepared shall specifically identify and address lake protection concerns upon the lake and within the surrounding watershed where land use, scenic values, water uses, residential development, wildlife habitat, fisheries, industry, commerce and other forms of human activity are both influenced by the lake and may reasonably be expected to significantly impact the water quality of the lake.
(5) To promote, until disbandment, the implementation of the plan by serving in an advisory capacity to those city, planning and zoning, county, state and federal authorities with responsibilities affecting lake management or lake water quality. The council may recommend, as appropriate, the adoption of any statutes, ordinances, rules and regulations needed to implement the plan.
(6) To consult with the public and keep the public informed through public forums and written reports of all activities of the council.
(7) The duties of the council are ongoing and continuous until its disbandment. The council shall have the authority to complete the examination and study and prepare the plan complete with recommendations for the lake and its tributaries.
(8) The council and all its committees will automatically disband seven (7) years after the plan, as and/or if, modified, is adopted by the legislature. Before disbandment, the council shall assist local, city, state and federal authorities in the establishment of a multiagency oversight capability to succeed the council.
(9) The council shall not have any regulatory or enforcement powers.
[39-6606, added 1993, ch. 200, sec. 1, p. 552; am. 2000, ch. 27, sec. 2, p. 53.]
(1) After appointment, the members of the council shall choose one (1) member as chairman of the council and shall elect a secretary and treasurer of the council who may or may not be members of the council. The secretary and the treasurer may be one (1) person. The secretary shall keep a record of all council proceedings, minutes of all meetings, certificates, contracts, bonds given by employees and all corporate acts which shall be open to inspection to all interested parties.
(2) The treasurer shall keep strict and accurate accounts of all money received by and disbursed for and on behalf of the council in permanent records. The treasurer shall prepare or cause to be prepared annual financial statements on a fiscal year basis ending June 30 of each year. Such financial statements shall be available for inspection by any citizen.
(3) Members of the council shall serve without compensation. No member shall receive any compensation as an employee of the council or otherwise, other than herein provided, and no member of the council shall be interested in any contract or transaction with the council except in his official representative capacity.
(4) It shall be the duty of the council to cause an audit to be made of all financial affairs of the council during each year ending June 30. A financial statement shall be certified by the person making such audit.
[39-6607, added 1993, ch. 200, sec. 1, p. 553.]
(1) A majority of the members of the council shall constitute a quorum for the transaction of business. A majority vote of the members present shall be required to take action with respect to any matter. The vote of each member shall be individually recorded.
(2) The council may in other respects adopt its own operating procedures, which procedures shall be made available for public review.
[39-6608, added 1993, ch. 200, sec. 1, p. 553.]
To assist in the development of its program, the council shall create a technical committee which may include, but is not exclusively limited to, designated representatives of the public health district, city and county planning or engineering departments, the county planning and zoning commission, the McCall water and sewer district, department of environmental quality, department of lands, department of fish and game, department of parks and recreation, department of water resources, state soil and water conservation commission, United States forest service, United States army corps of engineers, United States agricultural conservation and stabilization services, United States natural resources conservation service, United States geological survey, United States environmental protection agency and representatives proposed by interests in agriculture, environmental protection, forest products, sporting and mining. Indian tribes may nominate a representative for the technical committee. Members shall serve without state compensation except such normal compensation received by members who are state, city, county, district or federal employees serving in the normal course and scope of their employment.
[39-6609, added 1993, ch. 200, sec. 1, p. 553; am. 2001, ch. 103, sec. 62, p. 301; am. 2010, ch. 279, sec. 27, p. 750.]
The council shall create a citizens committee comprised of citizens who express an interest in the council’s program for the lake, the study and the plan. Citizens performing volunteer services in support of the council’s program shall be automatic members of the citizens committee. Members of the citizens committee may meet with the council with full right to participate in all proceedings and discussions except that citizen committee members shall not be voting members.
[39-6610, added 1993, ch. 200, sec. 1, p. 554.]
(1) When the council has received and accepted the study, it shall make the same available to all appropriate and interested city, county, health district, state and federal agencies and to any interested individual or affected lake agency or association. For a period of ninety (90) days after dissemination, any interested agency or person may submit written suggestions, comments or proposals for the lake management plan or recommendations to the council.
(2) The council shall thereafter prepare a lake management plan and recommendations which shall be completed within one hundred eighty (180) days after dissemination of the examination and baseline study.
(3) The council shall identify sources and types of pollution within the planning area and identify existing and potential programs and measures by which this pollution might be abated, and summarize the past successes of these efforts, including notable voids in funding, regulatory powers or interagency coordination.
(4) The council shall identify present and future water and land uses within the watershed and comment on the implication of these various uses on the lake.
(5) Once completed, the council shall provide copies of its plan and recommendations to all agencies, persons and associations who have indicated an interest in the examination and baseline study. The council shall thereupon provide for one (1) or more public hearings upon its lake management plan and recommendations with notice given as provided in chapter 52, title 67, Idaho Code.
(6) After receiving the information obtained at the public hearing(s), the council shall make such changes and revisions as it deems necessary and within thirty (30) days after such public hearing, but in no event later than the next regular session of the Idaho legislature, the council shall submit the plan to the legislature.
(7) The legislature shall, within the next regular session during or after which it receives the plan, accept, reject or modify the plan. Such accepted or modified plan shall have the force and effect of law.
(8) Thereafter, the council shall assist public and governmental authorities to adopt and enforce the provisions of the plan for which that authority has a responsibility. Before its disbandment, the council shall also assist these authorities to establish an ongoing joint-agency oversight responsibility for the plan and its recommendations.
[39-6611, added 1993, ch. 200, sec. 1, p. 554.]
(1) There is hereby created in the state treasury a dedicated fund known as the Payette Lake trust account. Moneys in the Payette Lake trust account may come from appropriations, grants, gifts, donations, use fees or such other sources as may be authorized by the legislature. Moneys in the account shall be exclusively for the development and implementation of the program. Moneys in the account may only be expended pursuant to appropriation, and then only as authorized by a resolution duly adopted by a majority of the council.
(2) There is hereby created in the state treasury a dedicated fund known as the Big Payette Lake water quality council administrative account. All money in the account is to be derived exclusively from private, nongovernmental funding sources. All money in the account is appropriated continuously to the council to be used exclusively to defray the costs of council administration. The account shall not be subject to the provisions of the standard appropriations act of 1945.
[39-6612, added 1993, ch. 200, sec. 1, p. 555.]
(1) The legislature finds that the air quality in certain regions of the state is threatened with deterioration. This deterioration may endanger the breathability, economic potential, public health, natural beauty, recreational use and livability in various regions of the state. It is the intent of the legislature in establishing this chapter to preserve and protect the air quality of the entire state.
(2) The legislature declares that it is necessary to embark upon a program of air quality protection for future generations of Idahoans. This chapter allows for the creation of regional air quality councils as necessary to protect, preserve and, where necessary, improve the quality of air in a specified geographical area while accommodating private, public and commercial activities. The plan developed by an air quality council as set forth in this chapter shall require a working partnership of state and local agencies of government as well as the private sector.
[39-6701, added 2005, ch. 206, sec. 1, p. 616; am. 2022, ch. 110, sec. 3, p. 365.]
(1) The department of environmental quality shall annually review and determine whether the three (3) year design value equal to or above eighty-five percent (85%) of a national ambient air quality standard, as defined by the United States environmental protection agency, is met in certain regions of the state.
(2) If the three (3) year design value is equal to or above eighty-five percent (85%) of a national ambient air quality standard, the department of environmental quality shall evaluate potential further air quality deterioration and determine whether to make a recommendation to the legislature that a regional air quality advisory committee should be formed and devoted to evaluating air pollution reduction actions.
[39-6702, added 2022, ch. 110, sec. 5, p. 365.]
(1) The legislature, upon receipt of the air quality review and recommendation from the department of environmental quality, may form regional air quality councils as needed to evaluate air pollution reduction actions.
(2) Each regional air quality council shall be independently created by the legislature pursuant to subsection (1) of this section and, upon creation, shall be located within the Idaho department of environmental quality.
(3) The governor shall appoint members to regional air quality councils in accordance with the provisions of section 39-6708, Idaho Code.
(4) It shall be the responsibility of any council established under this chapter to develop a plan and carry out the duties established by this chapter. The council shall be assisted in its work by the department of environmental quality and other appropriate state and local agencies as needed.
[39-6703, added 2022, ch. 110, sec. 7, p. 366.]
Each council established under the provisions of this chapter shall create a citizens committee comprised of citizens who express an interest in the council’s purpose and work. Citizens performing volunteer services in support of the work of a council shall automatically be members of the citizens committee. Members of the citizens committee may meet with the council with full right to attend all proceedings and discussions and submit comments, except that citizen committee members shall not be voting members.
[39-6704, added 2005, ch. 206, sec. 1, p. 617.]
Whenever used in this chapter:
(1) "Air pollution" means air pollution as defined in section 39-103, Idaho Code.
(2) "Air quality plan" means the comprehensive air quality management plan for a specified regional area as developed and modified by a regional air quality council.
(3) "Citizens committee" means the committee consisting of members of the public created pursuant to section 39-6704, Idaho Code, by an air quality council established under the provisions of this chapter.
(4) "Council" means a regional air quality council established pursuant to this chapter.
(5) "Local governing agency" means a county or city government agency.
(6) "Specified regional area" means a county or counties, or a defined geographical area, where air quality is threatened.
(7) "Study" means the comprehensive, scientifically based study of air quality in a specified regional area.
(8) "Three (3) year design value" or "design value" means the statistic that describes the air quality status of a given location relative to the level of the national ambient air quality standards. A three (3) year design value is the statistic calculated using three (3) years of ambient air quality data.
[39-6705, added 2005, ch. 206, sec. 1, p. 617; am. 2022, ch. 110, sec. 8, p. 366.]
Any regional air quality council established pursuant to this chapter shall develop and implement an air quality plan in accordance with the environmental protection and health act, sections 39-101 through 39-130, Idaho Code, that includes:
(1) The compilation of all historical data on air quality studies in the specified regional area;
(2) An assessment of present and projected emissions related to the specified regional area;
(3) The completion of a comprehensive, scientifically based study of air quality in the specified regional area;
(4) A description of actions to be taken by governmental agencies and nongovernmental entities to protect, preserve and, when necessary, improve the air quality in the specified regional area; and
(5) The submittal of an air quality management plan to the legislature that may reject the plan in whole or in part pursuant to a concurrent resolution. Any regional air quality council established pursuant to this chapter shall assist and coordinate the implementation of the accepted plan with federal, state, and local authorities for seven (7) years after acceptance, after which any regional air quality council and its committees shall disband.
[39-6706, added 2005, ch. 206, sec. 1, p. 618; am. 2022, ch. 110, sec. 9, p. 367.]
(1) A council shall consist of fourteen (14) members appointed by the governor. The governor shall appoint two (2) members from each of the following categories: two (2) members who are county commissioners within the specified regional area; two (2) members who are at the time of appointment, elected members of a city government in the specified regional area; two (2) members who represent agricultural interests in the specified regional area; two (2) members who represent commercial interests in the specified regional area; two (2) members from industries located in the specified regional area; two (2) members from recognized Idaho environmental organizations; and two (2) members at large who are full-time residents of the specified regional area.
(2) The terms of the members shall be three (3) years with the initial term to be staggered in terms of one (1), two (2), and three (3) years by the governor when he makes the original appointments.
(3) The governor shall designate one (1) member to serve as chair of the council.
(4) Vacancies shall be filled by appointment of the governor.
(5) All members of a council shall maintain their primary residence in the specified regional area during the term of the member’s appointment.
[39-6708, added 2005, ch. 206, sec. 1, p. 618.]
(1) A majority of the members of a regional council shall constitute a quorum for the transaction of business. A majority vote of the members present shall be required to take action with respect to any matter.
(2) A regional council may adopt its own operating rules and procedures, which shall be made available to the public.
[39-6710, added 2005, ch. 206, sec. 1, p. 619; am. 2022, ch. 110, sec. 12, p. 367.]
(1) A regional air quality council shall develop and accept the study within one (1) year after establishment of the council. It shall make the study available to all appropriate and interested local, state and federal agencies and to any interested persons. For a period of ninety (90) days after dissemination, any interested agency or person may submit written suggestions, comments or proposals for the plan, or recommendations to the council.
(2) The council shall thereafter prepare a final regional air quality plan which shall be completed within one hundred eighty (180) days after dissemination of the study.
(3) The council shall identify present and future air issues in the specified regional area.
(4) Once completed, the council shall provide copies of its plan to all agencies and persons who have indicated an interest in the study. The council shall thereupon provide for one (1) or more public hearings upon its plan and recommendations with notice given as provided in chapter 52, title 67, Idaho Code.
(5) After receiving the information obtained at the public hearing, the council shall make such changes and revisions as it deems necessary and within thirty (30) days after such public hearing, but in no event later than the next regular session of the Idaho legislature, the council shall submit the plan to the legislature.
(6) The legislature shall, within the next regular session during or after which it receives the plan, accept, reject or modify the plan by concurrent resolution.
(7) Thereafter, the council shall assist in the adoption and enforcement of the provisions of the plan. Before its dissolution, the council shall also assist these local, state and federal agencies to establish an ongoing, joint-agency oversight responsibility for the plan.
[39-6714, added 2005, ch. 206, sec. 1, p. 621.]
To the greatest extent practicable, all Idaho state and local government agencies shall incorporate and implement the plan and its recommendations. In circumstances where any state or local government agency chooses not to implement any element of the plan, any such agency shall provide to the council a written explanation of its failure to implement that portion of the plan.
[39-6715, added 2005, ch. 206, sec. 1, p. 621.]
There is hereby created in the state treasury a dedicated fund known as the "Regional Air Quality Trust Fund" which shall be referred to as the regional fund. Moneys in the regional fund may come from grants, gifts, donations, use fees or such other sources as may be authorized by the legislature. Moneys in the fund shall be used exclusively for the purpose of fulfillment of the statutorily-required duties of a regional air quality council. Moneys in the fund may only be expended as authorized by a resolution duly adopted by a majority of a council.
[39-6716, added 2005, ch. 206, sec. 1, p. 621.]
Nothing in this chapter shall alter or affect the provisions of section 39-114, Idaho Code, on the open burning of crop residue.
[39-6717, added 2005, ch. 206, sec. 1, p. 622; am. 2008, ch. 71, sec. 5, p. 191.]
This chapter shall be known and may be cited as the "Institutional Controls Program for the Bunker Hill Mining and Metallurgical Complex Superfund Facility Act."
[39-6801, added 2023, ch. 73, sec. 1, p. 241.]
In accordance with the comprehensive environmental response, compensation, and liability act of 1980 (CERCLA), 42 U.S.C. 9605, as amended by the superfund amendments and reauthorization act of 1986 (SARA), P.L. 99-499, and, to the extent practicable, the national oil and hazardous substances pollution contingency plan, 40 CFR 300, the remedial actions for the Bunker Hill superfund site are selected and documented in decision documents referred to as a record of decision (ROD) and the body of documents referred to as the administrative record. The institutional controls program (ICP) was established under the residential soils/populated areas August 30, 1991, ROD as a component of the human health remedy to maintain protective barriers to underlying contamination. As the Bunker Hill superfund site expanded, this area was referred to as operable unit (OU)-1. The ICP was incorporated into the non-populated areas for OU-2 in the September 22, 1992, ROD to focus on areas of future development, and OU-3 in the September 12, 2002, interim ROD for residential and community areas outside of OU-1 and OU-2. Institutional controls administrative area maps showing the geographic boundaries for the ICP are available to the public on the internet or through the department upon request.
[39-6802, added 2023, ch. 73, sec. 1, p. 241.]
As used in this chapter, unless a different meaning clearly appears from the context:
(1) "Access restrictions" means physical barriers such as fences, barricades, curbs, barrier rocks, trenches, and temporary barriers that restrict access by vehicles, pedestrians, and animals to contaminated areas.
(2) "Agricultural land" means land used for pasturing animals or for cultivation and production of agricultural crops, including conservation reserve activities.
(3) "Applicant" means any person, contractor, public utility, government, or other entity that is required to apply for an institutional controls program (ICP) permit.
(4) "Barrier" means any physical structure, material, or mechanism that acts to break the pathway between contaminants and human receptors, including but not limited to soil, crushed aggregate/gravel, asphalt and Portland cement concrete, fences, walls, floors, ceilings, access restrictions, or other structure or covering that separates contaminants from contact with people or keeps contaminants in place.
(5) "Board" means the Idaho board of environmental quality.
(6) "Building construction" means construction activity to be performed for any new structure involving disturbance of soil in excess of one (1) cubic yard.
(7) "Building renovation" means construction activity to be performed on any existing structure involving ceiling or insulation removal, work in dirt crawl spaces or basements, or disturbance of soil in basements or crawl spaces in excess of one (1) cubic yard.
(8) "Commercial property" means retail, wholesale, and commercial businesses; public and common use areas; public buildings; and undeveloped properties accessed by a maintained road or street and zoned for commercial development.
(9) "Contaminants" means soil or other material containing, or likely to contain, concentrations of lead, arsenic, or cadmium as identified in the standards for contaminant management pursuant to this chapter.
(10) "Department" means the Idaho department of environmental quality.
(11) "Designee" means the entity responsible for implementing the requirements of this chapter as identified by the department through a formal agreement.
(12) "Developed recreation areas" means commercial and public recreation areas containing constructed features such as boat ramps, picnic areas, and campgrounds outside the city limits of incorporated communities in the Coeur d’Alene river corridor as defined under ICP administrative area for OU-3. The developed recreation areas of the trail of the Coeur d’Alenes includes all constructed trail surfaces, stop and views, oases, rest stops, and trailheads, exclusive of all undeveloped areas within the trail right-of-way.
(13) "Director" means the director of the Idaho department of environmental quality.
(14) "Disposal" means the placement of contaminants into an authorized repository.
(15) "Eligible properties" means residential properties and commercial properties within the institutional controls administrative areas for OU-1 and OU-2 that were maintained properties when the ROD for the OU was established, or maintained properties in OU-3 and existing as of March 27, 2007, and requiring remediation, but not yet remediated.
(16) "Excavation" means any digging, breaching, or disruption of soil or other protective barrier, not including cultivation of agricultural lands and gardens or mining activities regulated under other state and federal programs, that may release or expose contaminants to the environment.
(17) "ICP permit" means a permit for the contaminant management authorization for projects subject to this chapter.
(18) "Infrastructure" means facilities such as trails, roads, streets, highways, and bridges; stormwater, drinking water, and wastewater systems; flood prevention systems, including dikes and levees; and utilities, including electrical power and natural gas systems.
(19) "Large project" means a project where one (1) cubic yard or more of soil containing contaminants is disturbed or removed and also includes but is not limited to infrastructure construction and maintenance; building construction, renovation, and demolition; demolition of existing buildings and construction of subdivisions and planned unit developments (PUD); construction within and maintenance of right-of-ways; and land development or any change in the use of land that may result in the release or migration of contaminants.
(20) "Mining activities" means the recovery of a mineral from mineral-bearing deposits, which includes reclamation, extraction, excavation, overburden placement, disposal of tailings resulting from processing, and disposal of mineral extraction wastes, including tailings that are the result of extraction, waste rock, and other extraction wastes uniquely associated with mining.
(21) "OU-1" means the operable unit 1 for the institutional controls administrative area designated to include the twenty-one (21) square-mile area surrounding the former smelter complex, also referred to as the "Bunker Hill box." OU-1 includes the populated areas of the Bunker Hill box.
(22) "OU-2" means the operable unit 2 for the institutional controls administrative area designated to include the twenty-one (21) square-mile area surrounding the former smelter complex, also referred to as the "Bunker Hill box." OU-2 includes the non-populated areas of the Bunker Hill box.
(23) "OU-3" means the operable unit 3 for the institutional controls administrative area designated to include areas of mining-, milling-, and smelting-related contamination in the south fork of the Coeur d’Alene river corridor from its headwaters to the confluence with the north fork of the Coeur d’Alene river and from the confluence of the north and south fork to the mouth of the river and its confluence with Coeur d’Alene lake, including adjacent floodplains, tributaries, and fill areas. The area also includes the trail of the Coeur d’Alenes inside and outside the administrative boundary, except that portion within the exterior boundaries of the Coeur d’Alene Indian reservation. The area also includes areas in the Coeur d’Alene river corridor, as defined in this subsection, outside the administrative boundary where testing has verified that contaminants related to mining, milling, and smelting have come to lie and remediation is required. This area is also referred to as the "Coeur d’Alene basin." The area does not include any area within OU-1 or OU-2 or any other area excluded under this chapter.
(24) "Owner" means any person, partnership, or corporation having ownership, title, or dominion over property for which an ICP permit is required.
(25) "Record of compliance" means the record maintained pursuant to this chapter for small projects.
(26) "Record of decision" or "ROD" means the decision document identifying the selected remedy under CERCLA.
(27) "Release" means any excavation, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, dumping, or disposing of contaminants into the environment.
(28) "Repository" means an authorized disposal location for contaminants that has been established by the department and the United States environmental protection agency.
(29) "Residential property" means property used by private individuals or families as a residence and undeveloped properties accessed by a maintained road or street and zoned for residential development.
(30) "Sensitive populations" means pregnant women and children up to twelve (12) years old.
(31) "Site" means the geographic area that includes the institutional controls administrative areas for OU-1, OU-2, and OU-3 within the Bunker Hill superfund site.
(32) "Small project" means a project where less than one (1) cubic yard of soil containing contaminants is disturbed or means interior work that is not building renovation.
(33) "Trail of the Coeur d’Alenes" means all developed recreation areas and undeveloped areas within the former Union Pacific railroad Mullan and Wallace branch right-of-way.
[39-6803, added 2023, ch. 73, sec. 1, p. 242.]
(1) The purpose of this chapter is to ensure that ICP activities associated with excavation and grading, such as infrastructure development and maintenance; building construction and renovation; and land development, redevelopment, or modification within the institutional controls administrative areas, provide for the construction and maintenance of contaminant barriers and implementation of other contaminant management requirements to preclude the release and migration of contaminants as necessary to protect public health and the environment. It is imperative that current and future development and construction activities proceed in a manner that minimizes the release of contaminants into the environment to minimize exposure to area residents, communities, workers involved in area project work, and environmental receptors and to complement existing land use regulations and permitting processes and provide a screening process to determine whether proposed activities are subject to this chapter.
(2) It is the intent of the department to work with local governments, Idaho public health district No. 1, the United States environmental protection agency, federal land management agencies, the Coeur d’Alene Tribe, and private parties in managing contaminants within the regulated area by way of the ICP. This chapter establishes standards for barrier installation and maintenance and other contaminant management practices by:
(a) Requiring ICP permits and requiring barriers for certain construction and excavation activities;
(b) Licensing contractors, utilities, and government entities that may disrupt or construct barriers or otherwise disturb contaminants;
(c) Adopting performance standards;
(d) Inspecting for project compliance as required;
(e) Regulating the movement and disposal of contaminants;
(f) Making it unlawful to knowingly disrupt a barrier in a fashion likely to expose persons to contaminants;
(g) Maintaining records of ICP activities, including a database tracking system to assist the public, lenders, and potential purchasers of property within the site;
(h) Providing technical assistance and testing;
(i) Providing health screening and intervention;
(j) Ensuring a readily available repository for contaminants;
(k) Providing materials to maintain and restore barriers for small projects;
(l) Providing disposal containers to assist in removing contaminated soil for small projects and for transport and disposal of such soil;
(m) Providing health and safety information and training to licensees and the public;
(n) Providing plastic, gravel, and use of vacuums for interior projects; and
(o) Maintaining guidelines for managing contaminants.
(3) The department may delegate its authority to implement the ICP, as defined by this chapter, to a designee with local multi-jurisdictional authority through a formal agreement.
(4)(a) This chapter does not apply to:
(i) Operations undertaken at the direction of, under the supervision of, and subject to inspection by the United States environmental protection agency, including directing, supervising, and inspecting project work or on lands owned or otherwise under the jurisdiction, custody, and control of the Coeur d’Alene Tribe or the federal land management agencies such as the United States department of agriculture forest service and the bureau of land management; or
(ii) The Union Pacific railroad or its contractors when conducting activities within the trail of the Coeur d’Alenes pursuant to the requirements of the consent decree entered August 25, 2000, by the United States district court for the district of Idaho (Case Nos. 91-0342 and 99-606).
(b) This chapter does not address financial liability for contaminant management resulting from a failure of a CERCLA remedy due to a natural disaster.
(5) Contaminant management on eligible properties will not require construction of final barriers in accordance with this chapter by the owner but may require dust, erosion, and health and safety and temporary cap controls to prevent further migration onto lands of others. Applicant performed soil testing will be conducted consistent with sampling and analytic procedures developed by the department.
[39-6804, added 2023, ch. 73, sec. 1, p. 244.]
(1) Except as otherwise provided in this chapter, contaminant management is required on all properties within the institutional controls administrative areas of OU-1, OU-2, and OU-3, including properties that have been remediated; properties tested and scheduled for remediation; properties not yet tested; properties with testing of deep soils (below eighteen (18) inches) by the applicant where a project may result in deep excavations; and properties with replacement and repair of remediation barriers in accordance with the remedial design report or other management activities designated for that geographic location or specific property.
(2) As necessary to protect public health and the environment, the department may impose contaminant management requirements, other than barrier installations, on projects where:
(a) For OU-1 and OU-2, soils exhibit lead concentrations in excess of three hundred fifty (350) parts per million (ppm) lead, particularly where a property has been remediated with either six (6) or twelve (12) inches of clean fill but contaminants in the three hundred fifty (350) to one thousand (1,000) ppm lead range remain below the six (6) or twelve (12) inch depth and those contaminants may be disturbed by a large or small project;
(b) For OU-1 and OU-2, any large or small project or building renovation involves the breaching or disturbance of a barrier or the disturbance or migration of contaminants exceeds one thousand (1,000) ppm lead; and
(c) For OU-3, properties testing below action levels in the top eighteen (18) inches where large or small projects may disturb contaminants below eighteen (18) inches are in excess of one thousand (1,000) ppm lead or one hundred (100) ppm arsenic.
(3) Developed recreation areas with surface soil containing lead concentrations greater than seven hundred (700) ppm lead and one hundred (100) ppm arsenic shall be capped pursuant to the applicable remedial design report or other management activities designated for that geographic location.
(4) Agricultural and undeveloped land within the institutional controls administrative area are exempt, unless excavation and grading activities such as soil transport off-site or development by the owner or his agents on these lands is likely to result in the release or migration of contaminants from these lands to adjacent nonagricultural or undeveloped areas.
(5) All barriers existing or constructed after the effective date of this chapter shall be maintained and protected to construction specifications as directed by the department. Materials used for barriers will be sampled for contaminants to ensure:
(a) For OU-1 and OU-2, that they have no earthen materials containing, on average, more than one hundred (100) ppm of lead or arsenic, nor more than five (5) ppm of cadmium, with no individual sample containing more than one hundred fifty (150) ppm of lead; and
(b) For OU-3, that soil and crushed aggregate/gravel imported for barrier material shall contain less than one hundred (100) ppm lead, thirty-five (35) ppm arsenic, and five (5) ppm cadmium based on average of backfill sampling results. No single sample of replacement materials may exceed one hundred fifty (150) ppm lead or forty-five (45) ppm arsenic.
(6) No new PUD or subdivision will be developed without contaminant management on any portion of the property that exceeds the following contaminant concentrations:
(a) For OU-1 and OU-2, average of three hundred fifty (350) ppm lead or a single lot exceeds one thousand (1,000) ppm lead; and
(b) For OU-3, one thousand (1,000) ppm lead or one hundred (100) ppm arsenic.
(7) No person may conduct, except in accordance with this chapter, any activity within the institutional controls administrative area that breaches a barrier, may breach a barrier, or disturbs the same or otherwise results in a threat to public health or the environment from the migration of contaminants through tracking on tires or vehicles, visible airborne dust, excavation, transport, disposal, renovation, demolition, or run-on or run-off from stormwater or in any other manner on properties tested and requiring remediation and on properties not yet tested within the institutional controls administrative area.
(8) Barriers are required as necessary to attain the standards described in this chapter. Construction and maintenance criteria for barriers are specified in the remedial design report designated for each applicable geographic location and are available through the department upon request.
[39-6805, added 2023, ch. 73, sec. 1, p. 245.]
(1) An ICP permit is required for large projects and building renovations.
(2) An ICP permit is required for a project that changes the use of a property containing contaminants. A new barrier or additional or more substantial barrier may be required unless waived by the department.
(3) A single annual ICP permit covering a specific list of projects may be obtained from the department by public utilities and government entities eligible under this chapter at the beginning of each year’s construction season.
(4) To apply for an ICP permit, all applicants need to complete a form provided by the department.
(5) The department may waive certain application requirements or information, or request additional or alternative actions or information, depending on the type and extent of the project and conditions encountered. In no instance may a waiver violate the intent of this chapter or the applicable ROD for the relevant OU.
(6) Work requiring an ICP permit may not commence until an inspection has been made or waived by the department and an ICP permit has been issued.
(7) If the ICP permit involves work within any public right-of-way, the appropriate agencies shall be notified of the work by the entity receiving the ICP permit.
(8) All work governed by this chapter is subject to inspection by the department.
(a) All ICP permits granted pursuant to this chapter remain subject to other inspections and requirements prescribed by state or local governments.
(b) The applicant will notify the department within forty-eight (48) hours of completing the work, excluding weekends and holidays, and call for inspection in accordance with the terms of the ICP permit. The inspector will note approval of the work in writing and enter same in the database tracking system or note reasons for disapproval and steps that shall be taken to complete the work. Upon completion of the work to the department’s satisfaction, the final approval will be noted in the database tracking system. Such entry constitutes the record of compliance for the project. The department may waive the inspection requirement.
(9) Any ICP permit may be revoked or a stop work order may be issued, without notice by the department, for noncompliance with or violation of any of the provisions of this chapter or any requirement or limitation of the ICP permit. If an ICP permit is revoked, the department shall take such steps as are necessary to eliminate any danger from contamination, including completion of work by the department. The applicant, contractor, or owner may be required to pay all costs and expenses for abatement of any danger and completion of the project, including legal fees incurred by the department to obtain compliance. The department will endeavor to provide written notice but reserves the right to act summarily to protect public health and the environment.
(10) A record of compliance for small projects that documents compliance with the performance standards established by this chapter will be entered into the database tracking system based on an inspection requested of the department by the property owner or tenant. The record of compliance signifies the property owner or tenant was informed of and provided with applicable performance standards and guidelines and materially complied with the same.
(11) Licensing for contractors, public utilities, and government entities.
(a) Any contractor working on a project requiring an ICP permit shall be licensed by the department. There will be no charge for a contractor’s license. A contractor’s license will not be needed for an owner working on his own property.
(b) Any public utility or government entity, including a city, county, special purpose district, or the state of Idaho, upon a demonstration that supervisory employees have participated in training approved by the department, may receive an annual license that will allow its employees to perform excavation and grading operations without obtaining individual ICP permits. This license may be granted by the department and will require that the utility or entity comply with the standards of contaminant management and all other requirements contained in this chapter. Entities licensed under this section shall maintain a log of all excavations and grading operations on a form approved by the department. All forms shall be forwarded to the department on a schedule determined by the department. All licensees shall telephone the Shoshone county or Kootenai county one-call locating service, as appropriate, prior to any excavation or grading operation. Licenses will be renewed annually upon a showing that the utility or government entity has operated in compliance with this chapter.
(c) To obtain a license from the department, the contractor, public utility, or government entity shall participate in training approved by the department and pass an annual examination administered by the department, focusing on the reasons for and methods of controlling contaminants. Supervisors involved in activities dealing with contaminants shall participate in the training and pass information on to employees as is necessary to protect their health and safety and assure compliance with this chapter.
(d) Any contractor whose license has been revoked by the department within the past three (3) years shall, as a condition of reinstatement and maintaining the status of a licensed contractor, be bonded in the minimum amount of two thousand dollars ($2,000). Said bond shall be at least five percent (5%) of the cost of any contract the contractor is engaged in, whichever is greater; shall be in a form approved by the department; and shall be suitable to insure payment for completion of barrier work not completed by the contractor. A cash deposit or other security acceptable to the department may be utilized in lieu of a bond. The department may establish a bonding program for all contractors, if deemed necessary to carry out the provisions of this chapter.
(e) Suspension or revocation of license.
(i) Upon a showing that a contractor, public utility, or government entity licensee has violated any provision of this chapter or has violated any other health or building code within the boundaries of the site or institutional controls administrative area, suspension or revocation of license may be imposed. Suspension may be made by the department. Revocation may be made by the director upon recommendation of the department. Notification of suspension or revocation shall be in writing. No suspension may be made for more than thirty (30) days without approval of the director. Revocation of license may be made by the director upon a showing of good cause.
(ii) Any person aggrieved by suspension or revocation of license may petition for review pursuant to section 39-107(5), Idaho Code. Filing a petition for review stays the suspension or revocation, unless the board of environmental quality makes a finding that such stay is likely to present a health risk to a person or persons.
(iii) If a license is revoked, the contractor may, upon payment of any cleanup or remediation costs related to past work, reapply for reinstatement of license after one (1) year; however, a contractor whose license has been revoked may not obtain a new license under a different corporate or partnership status until the provisions of this paragraph are satisfied.
(12) Performance of work.
(a) All work done pursuant to an ICP permit shall be completed in a neat and workmanlike manner and so scheduled as to cause the minimum interference with traffic or public use, if applicable, and a minimum dispersal of contaminants.
(b) If the work is unduly delayed by the applicant, and if the public interest reasonably so demands, the department has the authority, upon twenty-four (24) hours’ written notice to the applicant, to complete the work to the extent that the barrier is restored and any hazardous material is covered or removed. The actual cost of work by the department, including legal fees plus fifteen percent (15%) as an overhead charge, shall be charged to and paid by the applicant or the owner.
(13) Approval of alternative standards. Any person seeking approval of alternative standards as described in this chapter may submit a written request for approval to the department. The request shall be accompanied by an engineering report indicating why the requesting party should be relieved of the requirement for compliance or why the requested alternate standard is appropriate. At the applicant’s expense, the department may consult with its own engineer to confirm the applicability of this chapter to the proposed project. The department may approve an alternate standard where such approval does not jeopardize the public welfare or existing barriers. The decision of the department will be in writing, stating the reasons for its decision. Any person aggrieved by the department’s action or inaction may petition for review pursuant to section 39-107(5), Idaho Code.
(14) Owner and applicant responsibility for claims and liabilities. Both the owner and the applicant are responsible for ensuring that all requirements of this section are complied with. The applicant is responsible for all claims and liabilities arising out of work performed by the applicant under the ICP permit or arising out of the applicant’s failure to perform obligations with respect to these regulations. The owner is responsible for all claims and liabilities for work done by the owner with or without an ICP permit and for work done at the direction of the owner without an ICP permit. The owner remains responsible to complete the project or to restore the premises to a safe condition to the satisfaction of the department should the applicant fail to complete or restore it.
(15) Responsibility of permit applicant. It is the responsibility of any person applying for, or required to apply for, a permit by this chapter to show affirmatively, by all reasonable means, that his undertaking complies with this chapter or with any related rules, statutes, or ordinances.
(16) Permit revocation. Any permit or permission, actual or implied, granted by the department may be revoked, for cause, by written notice sent to the permit holder or his agent. Any person, association, or corporation who continues to act under such permit or permission, actual or implied, more than ten (10) days after the sending or delivery of notice of revocation is presumed to be in violation of this chapter and subject to the penalties provided in this section.
(17) Variances. A variance may be granted only upon an affirmative showing by an applicant that a unique and undue hardship is caused by a physical characteristic of a project site under an ICP permit that is not of the applicant’s making and that approval of the variance would not be contrary to the public interest or to the purposes of this chapter.
(18) Enforcement. Failure to comply with the provisions of this chapter shall be subject to enforcement pursuant to the enforcement provisions of the Idaho environmental protection and health act in section 39-108, Idaho Code.
[39-6806, added 2023, ch. 73, sec. 1, p. 246.]
If any provision of this chapter is inconsistent with the provisions of any other law, general, specific, or local, the provisions of this chapter control.
[39-6807, added 2023, ch. 73, sec. 1, p. 249.]
For the purpose of this chapter, "lead acid battery" means a battery with a core of elemental lead and a capacity of six (6) or more volts which is suitable for use in farm equipment, construction equipment, a motor vehicle or a boat. Batteries only suitable for motor cycles, off-road recreation vehicles or lawn and garden equipment are exempt from the fees in this chapter.
[39-7001, added 1991, ch. 292, sec. 1, p. 752.]
(1) The disposal of lead acid batteries in landfills and the incineration of those batteries is prohibited. An owner or operator of a solid waste disposal facility shall not knowingly accept a lead acid battery for disposal unless the owner or operator is removing lead acid batteries from the waste stream for recycling. A lead acid battery shall be discarded or disposed of only as follows:
(a) A lead acid battery retailer or wholesaler may deliver a lead acid battery to any one (1) of the following:
(i) A permitted secondary lead smelter.
(ii) A battery manufacturer.
(iii) A collection or recycling facility authorized by the federal environmental protection agency or department of environmental quality.
(iv) In the case of battery retailers only, an agent of a battery wholesaler.
(v) A landfill operator who offers collection services for recycling lead acid batteries.
(2) A person other than a lead acid battery retailer or wholesaler may deliver a lead acid battery to any of the following:
(a) A lead acid battery retailer or wholesaler.
(b) A permitted secondary lead smelter.
(c) A collection or recycling facility authorized by the federal environmental protection agency or the department of environmental quality.
(d) A landfill operator who offers collection services for recycling lead acid batteries.
[39-7002, added 1991, ch. 292, sec. 1, p. 752; am. 2001, ch. 103, sec. 63, p. 301.]
(1) A lead acid battery seller shall accept from customers at the point of transfer used lead acid batteries of the type and quantity sold at that point of transfer and may accept additional batteries. A lead acid battery seller shall post a written notice which is clearly visible in the public sales area of the establishment and which contains the following language:
"It is unlawful to dispose of a motor vehicle battery or other lead acid battery in a landfill or any unauthorized site.
Recycle all used batteries."
The seller is required by law to accept used lead acid batteries. When any new lead acid battery is purchased, an additional fee of ten dollars ($10.00) will be charged unless a used battery is returned for refund within thirty (30) days.
(2) Each person who purchases a new lead acid battery shall be assessed a fee of ten dollars ($10.00) per battery by the seller. A seller shall refund the ten dollar ($10.00) fee to any person who presents a used lead acid battery to the seller with a receipt for the purchase of a new battery from that seller within the thirty (30) day period immediately following the purchase. A seller may keep any lead acid battery fee moneys which are not properly claimed within thirty (30) days after the date of sale.
(3) All lead acid batteries sold after July 1, 1992, shall bear a universally accepted recycling symbol.
(4) An advertisement or other printed promotional material related to the sale of lead acid batteries shall contain the following notice in bold print:
"A fee is imposed on the purchase of each new lead acid battery unless a used battery is returned where applicable."
(5) The provisions of this section do not apply to a person whose sales of batteries are not in the ordinary course of business.
(6) A wholesale seller of lead acid batteries who sells batteries to this state, to a political subdivision of this state or to a private entity which resells the batteries is not subject to the fees in this chapter.
(7) A person or entity who manufactures or sells equipment or vehicles, the final product of which includes a lead acid battery as a component part, is not subject to the fees in this chapter as long as the lead acid battery is attached to and is a component part of said equipment or vehicle.
[39-7003, added 1991, ch. 292, sec. 1, p. 753; am. 2009, ch. 172, sec. 1, p. 550.]
(1) A person who improperly disposes of a battery in violation of the provisions of this chapter is subject to a civil penalty of not more than five hundred dollars ($500) per violation and is subject to the penalty provisions of the environmental protection and health act contained in chapter 1, title 39, Idaho Code. Each battery which is so disposed of improperly constitutes a separate violation.
(2) A person who knowingly violates any provision of this chapter other than as described in subparagraph (1) of this section is subject to a civil penalty of not more than one hundred dollars ($100) per violation.
[39-7004, added 1991, ch. 292, sec. 1, p. 753.]
This chapter may be known and cited as the "Idaho Hazardous Substance Response Act."
[39-7101, added 1991, ch. 242, sec. 1, p. 583.]
(1) The legislature of the state of Idaho finds:
(a) That the state has a duty to protect the health, safety and welfare of the people of Idaho;
(b) That the protection and preservation of Idaho’s environment promotes the health, safety and welfare of her people;
(c) That the unexpected and uncontrolled releases or threat of releases of hazardous substances constitute a threat to the people and environment of Idaho; and
(d) That knowledgeable persons, governmental entities and organizations should be encouraged to lend expert assistance in the event of a hazardous substance incident.
(2) Therefore, it is hereby declared that the purposes of the provisions of this chapter are:
(a) To facilitate emergency response planning and coordination at a state and local level;
(b) To provide for the prompt response and containment of releases or threats of release of hazardous or potentially hazardous substances to include explosives and weapons of mass destruction;
(c) To provide liability for emergency response costs associated with responding to hazardous substances incidents;
(d) To encourage knowledgeable persons, governmental entities and organizations to lend assistance by providing them with limited immunity from civil liability; and
(e) To provide a mechanism for recovery of costs incurred by the state and local governments in responding to emergency hazardous substance incidents to be used in lieu of, and not in addition to, cost recovery mechanisms or claims for relief provided by applicable federal laws. By enacting this chapter, it is the intent of the legislature that the state and local governments elect to proceed in state courts under the provisions of this chapter and other provisions of state law rather than in federal court under federal laws, where necessary to recover emergency response costs. There is no provision for cost recovery for a hazardous substance incident response occurring on private property where the owner responds to the incident with the approval of the incident commander.
[39-7102, added 1991, ch. 242, sec. 1, p. 583; am. 2009, ch. 281, sec. 1, p. 844.]
As used in this chapter:
(1) "Emergency" means a release or threat of release that, in the reasonable judgment of the local emergency response authority in consultation with the office, threatens immediate harm to the environment or the health and safety of any individual and that requires immediate action for the containment or control of a hazardous or potentially hazardous substance to prevent, minimize or mitigate harm to the public health, safety or the environment which may result if action is not taken.
(2) "Hazardous substance incident" means an emergency circumstance requiring a response by the state emergency response team or the local emergency response authority to monitor, assess and evaluate a release or threat of a release of a hazardous or potentially hazardous substance. A hazardous substance incident may require containment or confinement or both, but does not include site cleanup or remediation efforts after the incident commander has determined the emergency has ended.
(3) "Hazardous substance" means:
(a) Any "hazardous substance" within the scope of section 101(14) of the federal comprehensive environmental response, compensation and liability act (CERCLA), 42 U.S.C. 9601(14);
(b) Any hazardous substance within the scope of section 104 of the federal hazardous materials transportation act, 49 U.S.C. 1803, and the federal department of transportation regulations promulgated pursuant thereto;
(c) Any extremely hazardous substance within the scope of section 302 of the federal emergency planning and community right-to-know act, 42 U.S.C. 11002; and
(d) Any explosive or weapon of mass destruction utilized or threatened to be utilized in an act of terrorism, crime or other threat to public safety.
(4) "Incident commander" is the person in charge of all responders to a hazardous substance incident and who is identified in the Idaho hazardous materials emergency incident command and response plan or the private emergency response plan.
(5) "Local emergency response authority" means those persons designated under section 39-7105, Idaho Code, by the city, county, or the military division to be first responders to hazardous substance incidents.
(6) "Military division" means the military division of the office of the governor.
(7) "Office" means the Idaho office of emergency management within the military division.
(8) "Person" means any individual, public or private corporation, partnership, joint venture, association, firm, trust, estate, the United States or any department, institution, or agency thereof, the state or any department, institution, or agency thereof, any municipal corporation, county, city, or other political subdivision of the state, or any other legal entity whatsoever which is recognized by law as the subject of rights and duties.
(9) "Potentially hazardous substance" means any substance which in the reasonable judgment of the local emergency response authority in consultation with the office is likely a hazardous substance.
(10) "Private emergency response plan" means a plan designed to respond to emergency releases of hazardous or potentially hazardous substances at a specific facility or under a specific set of conditions.
(11) "Release" means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, escaping, dumping or disposing of a hazardous or potentially hazardous substance, or the threat of the same, into the environment. "Release" does not include any discharge of a hazardous substance into the environment which is authorized by limits and conditions in a federal or state permit relating to the protection of public health or the environment so long as the permitted activity from which the release occurs is in compliance with applicable limits and conditions of the permit.
(12) "State emergency response team" means one (1) of the state emergency response teams authorized by the military division to respond to hazardous substance incidents.
(13) "Threat of release" means the release of a hazardous or potentially hazardous substance is likely.
[39-7103, added 1991, ch. 242, sec. 1, p. 584; am. 1997, ch. 121, sec. 1, p. 357; am. 2004, ch. 58, sec. 1, p. 268; am. 2009, ch. 281, sec. 2, p. 845; am. 2016, ch. 118, sec. 3, p. 331.]
(1) The military division through the Idaho office of emergency management shall implement the provisions of this chapter and direct the activities of its staff and, in so doing, the military division may:
(a) Through the office, in accordance with the laws of the state, hire, fix the compensation, and prescribe the powers and duties of such other individuals, including consultants, emergency teams and committees, as may be necessary to carry out the provisions of this chapter.
(b) Create and implement state emergency response teams that have appropriately trained personnel and necessary equipment to respond to hazardous substance incidents. The military division shall enter into a written agreement with each entity or person providing equipment or services to a designated emergency response team. The teams shall be available and may respond to hazardous substance incidents at the direction of the military division or its designee or local incident commander.
(c) Contract with persons to meet state emergency response needs for the teams and response authorities.
(d) Advise, consult and cooperate with agencies of the state and federal government, other states and their state agencies, cities, counties, tribal governments and other persons concerned with emergency response and matters relating to and arising out of hazardous substance incidents.
(e) Encourage, participate in, or conduct studies, investigations, training, research, and demonstrations for and with state emergency response teams, local emergency response authorities and other interested persons.
(f) Collect and disseminate information relating to emergency response to hazardous substance incidents.
(g) Accept and administer loans, grants, or other funds or gifts, conditional or otherwise, made to the state for emergency response activities provided for in this chapter.
(h) Submit an annual report prior to February 1 to the governor and to the legislature concerning emergency response to hazardous substance incidents.
(i) Prepare, coordinate, implement and update a statewide hazardous materials incident command and response plan that coordinates state and local emergency response authorities to respond to hazardous substance incidents within the state for approval by the legislature. The plan shall address radiation, explosive and weapons of mass destruction incidents. The Idaho hazardous materials incident command and response plan shall be consistent with and a part of the Idaho state disaster plan provided in section 46-1006, Idaho Code, after legislative approval.
(2) The military division shall have the powers and duties of a state emergency response commission under the federal emergency planning and community right-to-know act, 42 U.S.C. section 11001 et seq.
(3) The military division may promulgate rules and procedures to govern reimbursement of claims pursuant to this chapter.
(4) All state agencies and institutions will cooperate and provide staff assistance to the military division in carrying out its duties under this chapter.
[39-7104, added 1991, ch. 242, sec. 1, p. 585; am. 1997, ch. 121, sec. 2, p. 358; am. 1998, ch. 99, sec. 1, p. 347; am. 2004, ch. 58, sec. 2, p. 270; am. 2009, ch. 281, sec. 3, p. 846; am. 2016, ch. 118, sec. 4, p. 333.]
(1) It is the purpose of the provisions of this section to provide for the designation of local emergency response authorities for hazardous substance incidents.
(2) Cities and counties shall designate the local emergency response authorities for hazardous substance incidents that occur within their respective jurisdictions. Cities and counties are encouraged to appoint a response authority whose members will become trained in hazardous substance incident response.
(a) The governing body of every city shall designate by ordinance or resolution a local emergency response authority for hazardous substance incidents occurring within the corporate limits of such city. A city may designate the county as its emergency response authority and participate in the county plan for hazardous substance incident response, and shall notify the county of that designation in writing.
(b) The board of county commissioners of every county in the state shall designate by ordinance or resolution a local emergency response authority for hazardous substance incidents occurring within the unincorporated area of such county.
(c) The governing body of every city and every board of county commissioners shall notify the military division and Idaho emergency medical services communications center of its designated local emergency response authority. Such notification shall be in writing and shall occur as soon as practicable, and, in any event, no later than sixty (60) calendar days after this chapter becomes effective. Thereafter, any changes in such designations shall be communicated to the military division and Idaho emergency medical services communications center no later than ten (10) working days before such change becomes effective.
(d) If no local emergency response authority having the ability to respond to a hazardous substance incident exists within a city or county or if such a political subdivision is unable to obtain the services of an emergency response authority by way of a mutual aid agreement, contract or otherwise, such city or county may petition the military division to designate an emergency response authority to respond to hazardous substance incidents within the petitioning political subdivision’s jurisdiction. The military division, in consultation with such political subdivision, may thereafter designate appropriate local emergency response authorities.
(3) If a hazardous substance incident occurs in an area in which no local emergency response authority has been designated, or if the Idaho state police has been designated as the local emergency response authority, the Idaho state police shall be the local emergency response authority for such hazardous substance incident for the purposes of this section.
[39-7105, added 1991, ch. 242, sec. 1, p. 586; am. 1995, ch. 116, sec. 24, p. 404; am. 1997, ch. 121, sec. 3, p. 360; am. 2000, ch. 469, sec. 101, p. 1554.]
(1) Every local emergency response authority designated in or pursuant to this chapter will respond to a hazardous substance incident occurring within its jurisdiction in a fashion consistent with the Idaho hazardous materials emergency incident command and response plan except as provided in a private emergency response plan. The local emergency response authority will also respond to a hazardous substance incident which initially occurs within its jurisdiction but which spreads to another jurisdiction. If a hazardous substance incident occurs on a boundary between two (2) jurisdictions or in an area where the jurisdiction is not readily ascertainable, the first local emergency response authority to arrive at the scene of the incident will perform the initial emergency response.
(2) The incident commander shall declare the hazardous substance incident ended when the threat to public health and safety has ended and the threat to the environment has been minimized.
(3) Mutual aid agreements or contracts are encouraged among governmental entities, private parties, local emergency response authorities and the military division in order to safely respond to hazardous substance incidents. Further, mutual aid agreements are encouraged among governmental entities, local emergency response authorities and the military division with other similar entities in other states and Canada in order to ensure appropriate response to hazardous substance incidents.
(4) Any local emergency response authority designated in or pursuant to the provisions of section 39-7105, Idaho Code, may request the military division to provide assistance consistent with the Idaho hazardous materials emergency incident command and response plan.
[39-7106, added 1991, ch. 242, sec. 1, p. 587; am. 1997, ch. 121, sec. 4, p. 361.]
In the event a disaster emergency or local disaster emergency is declared by proper authority as defined and set forth in chapter 10, title 46, Idaho Code, as a result of a hazardous substance incident, the provisions of chapter 10, title 46, Idaho Code, shall govern, except that the provisions of section 39-7109, Idaho Code, shall govern reimbursement of emergency response costs and the provisions of sections 39-7111 and 39-7112, Idaho Code, shall govern the liability of and cost recovery against persons responsible for hazardous substance incidents resulting in disaster emergencies in any case.
[39-7107, added 1991, ch. 242, sec. 1, p. 588.]
(1) Any person who has responsibility for reporting a release under the federal comprehensive environmental response, compensation and liability act (CERCLA), 42 U.S.C. 9603, shall, as soon as practicable after he has knowledge of any such reportable release other than a permitted release or as exempted in section 39-7108(3), Idaho Code, notify the military division of such release.
(2) Any person who has responsibility for reporting a release under the federal emergency planning and community right-to-know act, 42 U.S.C. 11001 et seq., shall as soon as practicable after he has knowledge of any such reportable release other than a permitted release notify the military division of such release.
(3) Any facility having a release reportable under section 39-7108(1), Idaho Code, shall not be required to report the release to the military division if the following circumstances are met:
(a) Such release is not reportable under subsection (2) of section 39-7108, Idaho Code.
(b) The facility has an approved private emergency response plan that details how such spills shall be responded to and reported.
This provision does not relieve the facility from any reporting required under other federal statutory, regulatory or other permit authorities.
(4) The military division shall immediately notify the department of environmental quality of any release reported to the military division. Such reporting to the military division shall fulfill all state reporting requirements for the department of environmental quality.
(5) Any person who does not notify the military division in accordance with the provisions of section 39-7108, Idaho Code, shall be liable for a civil penalty of a sum not to exceed one thousand dollars ($1,000) for each day the violation continues to a maximum of twenty-five thousand dollars ($25,000).
(6) No penalty pursuant to this section shall occur if an incident occurs on private property and results in no offsite environmental damage.
[39-7108, added 1991, ch. 242, sec. 1, p. 588; am. 1997, ch. 121, sec. 5, p. 362; am. 2001, ch. 103, sec. 64, p. 302.]
(1) State emergency response teams and local emergency response authorities may submit claims to the military division for reimbursement of the following documented costs incurred as a result of their response to a hazardous substance incident:
(a) Disposable materials and supplies acquired, consumed and expended specifically for the purpose of the response;
(b) Compensation of employees for the time and efforts devoted specifically to the response that are not otherwise provided for in the applicant’s operating budget, (e.g., overtime pay for permanent full-time and other than full-time employees, recalled personnel or responding when out of jurisdiction);
(c) Rental or leasing of equipment used specifically for the response (e.g., protective equipment or clothing, scientific and technical equipment);
(d) Replacement costs for equipment owned by the applicant that is contaminated beyond reuse or repair, if the applicant can demonstrate that the equipment was a total loss and that the loss occurred as a result of the response (e.g., self-contained breathing apparatus irretrievably contaminated during the response);
(e) Decontamination of equipment contaminated during the response;
(f) Special technical services specifically required for the response (e.g., costs associated with the time and efforts of local and state personnel to recover the costs of response and of technical experts/specialists not otherwise provided for by the local government);
(g) Medical monitoring or treatment of response personnel;
(h) Laboratory costs for purposes of analyzing samples taken during the response; and
(i) Disposal costs. Such costs may be reimbursed as provided in this chapter.
Reimbursement for the costs identified in paragraphs (a) through (c) of this subsection will not exceed the duration of the response.
(2) A private person, who is not a part of the state emergency response team or a local emergency response authority and is not liable under section 39-7111, Idaho Code, may submit a claim to the military division for costs identified in section 39-7109, Idaho Code, if their response was requested by the incident commander.
(3) Claims for reimbursement shall be submitted to the military division within sixty (60) days after termination of the hazardous substance incident for the state’s determination of payment, if any.
(4) Reimbursements shall only be paid after the military division finds that the actions by the state emergency response team or the local emergency response authority were taken in response to a hazardous substance incident as defined in this chapter.
(5) The state of Idaho shall be subrogated to the rights of any such person so reimbursed to the extent of such reimbursement.
[39-7109, added 1991, ch. 242, sec. 1, p. 589; am. 1997, ch. 121, sec. 6, p. 362; am. 2009, ch. 281, sec. 4, p. 847.]
(1) The military division shall review all claims for reimbursement and make recommendations as to payment or nonpayment of the claims to the board of examiners within one hundred twenty (120) days after termination of the hazardous substance incident. The board of examiners may authorize the issuance of deficiency warrants for the purpose of reimbursing reasonable and documented costs associated with emergency response actions taken pursuant to this chapter. The costs associated with routine firefighting procedures shall not be reimbursable costs under this chapter.
(2) Deficiency warrants authorized by the board of examiners shall not exceed the sum of one hundred thousand dollars ($100,000) for reimbursement of all claims made as a result of a single hazardous substance incident. In the event all claims for reimbursement for a single hazardous substance incident exceed the sum of one hundred thousand dollars ($100,000), the board of examiners shall determine an appropriate and equitable basis of payment of reimbursements.
(3) Upon authorization of deficiency warrants by the board of examiners in accordance with the provisions of this section, the state controller shall draw deficiency warrants in the authorized amounts against the general fund.
(4) Nothing contained in this section shall be construed to change or impair any right of recovery or subrogation arising under any other provisions of law.
[39-7110, added 1991, ch. 242, sec. 1, p. 589; am. 1994, ch. 180, sec. 75, p. 476; am. 1997, ch. 121, sec. 7, p. 363; am. 2003, ch. 32, sec. 21, p. 129.]
(1) Any person who owns, controls, transports, or causes the release or threat of release of a substance which is involved in a hazardous substance incident shall be strictly liable for the costs arising out of a hazardous substance incident, identified in section 39-7112, Idaho Code. There shall be no liability under this chapter for a person otherwise liable who can establish by a preponderance of the evidence that:
(a) The hazardous substance incident was caused solely by:
(i) An act of God;
(ii) An act of war;
(iii) An act or omission of a third party, other than an employee or agent of the potentially liable person if:
The potentially liable person exercised reasonable care with respect to the substance involved, taking into consideration the characteristics of the substance in light of all relevant facts and circumstances; and
The potentially liable person took precautions against foreseeable acts or omissions of any such third party and the consequences that could foreseeably result from such acts or omissions; or
(iv) Application of a pesticide product or fertilizer registered under the federal insecticide, fungicide, and rodenticide act, 7 U.S.C. section 136, et seq., according to label requirements; or
(b) The substance was not a hazardous substance and the person otherwise liable acted reasonably under the circumstances.
[39-7111, added 1991, ch. 242, sec. 1, p. 590; am. 2009, ch. 281, sec. 5, p. 848.]
(1) The military division shall be responsible for recovering those costs incurred by the state arising out of a hazardous substance incident identified in section 39-7109, Idaho Code, and other costs including processing the documented costs submitted by response agencies, attorney’s fees, investigation costs, prelitigation and litigation costs.
(2) In deciding whether to commence a cost recovery action, and against whom a cost recovery action will be filed, the military division in exercising its prosecutorial discretion will take into consideration the cause of the incident, the total amount of cost incurred in responding to the incident, the avoidability of the incident and such other factors as the military division deems appropriate.
(3) The remedy for the recovery of those emergency response costs identified in section 39-7109, Idaho Code, provided by this chapter shall be exclusive and shall not be used in conjunction with or in addition to any other remedy for recovery of such costs provided by applicable federal laws. Any person who receives compensation for the emergency response costs pursuant to any other federal or state law shall be precluded from recovering compensation for such costs pursuant to this chapter. Nothing in this chapter shall otherwise affect or modify in any way the obligations or liability of any person under any other provision of state or federal law, including common law, for damages, injury or loss resulting from the release of any hazardous substance or potentially hazardous substance or for remedial action or the cost of remedial action for such release.
(4) It shall be the duty of the attorney general to commence any civil action brought by the military division pursuant to this chapter. At the request of a political subdivision of the state or a local governmental entity who has responded to or contained a hazardous substance incident, the attorney general may commence a civil action on their behalf pursuant to this chapter.
(5) Any person who renders assistance at the request of the incident commander or his authorized designee in response to a hazardous substance incident may file a civil action under the provisions of this chapter for recoverable costs which have not been reimbursed by the state.
(6) There is hereby created in the state treasury the hazardous substance emergency response fund. Recoveries by the state for reimbursed costs shall be deposited in said fund to offset amounts paid as reimbursement.
[39-7112, added 1991, ch. 242, sec. 1, p. 590; am. 1997, ch. 121, sec. 8, p. 364; am. 2004, ch. 181, sec. 1, p. 568; am. 2009, ch. 281, sec. 6, p. 848.]
(1) Consistent with the provisions of subsections (2) and (3) of this section:
(a) The state shall be liable for the acts or omissions of the state emergency response teams responding to a hazardous substance incident.
(b) The designating or requesting city or county shall be liable for the acts or omissions of a local emergency response authority responding to a hazardous substance incident within its jurisdiction.
(2) Notwithstanding any provision of law to the contrary, any state emergency response team, local emergency response authority or other person who responds to a hazardous substance incident at the request of an incident commander shall not be subject to civil liability for assistance or advice, except as provided in subsection (3) of this section.
(3) The exemption from civil liability provided in this section shall not apply to:
(a) An act or omission that caused in whole or in part such hazardous substance incident or a person who may otherwise be liable therefor; or
(b) Any person who has acted in a grossly negligent, reckless, or intentional manner.
(4) Nothing in this section shall be construed to abrogate or limit the immunity granted to governmental entities pursuant to chapter 9, title 6, Idaho Code.
[39-7113, added 1991, ch. 242, sec. 1, p. 591.]
Private emergency response plans may be prepared for any facility or specific set of conditions. A private emergency response plan must be approved by the local emergency response authority or the military division unless the plan:
(1) Is a contingency plan that has been approved in the issuance of a final part B operating permit, in accordance with section 39-4401, Idaho Code, by the Idaho department of environmental quality;
(2) Is a contingency plan prepared in accordance with the requirements of rules promulgated pursuant to section 39-4401, Idaho Code, by the Idaho department of environmental quality;
(3) Has otherwise been approved by the military division or department of environmental quality. Private emergency response plans must be submitted, for file purposes, to the local emergency response authorities and the military division to qualify as a private emergency response plan under this section.
[39-7114, added 1991, ch. 242, sec. 1, p. 592; am. 1997, ch. 121, sec. 9, p. 365; am. 2001, ch. 103, sec. 65, p. 302.]
(1) There is hereby established within the military division the Idaho directorate of civil air patrol. The mission of the directorate shall be to provide support for and facilitate the operation of the Idaho wing of civil air patrol, which shall be under the command and control of the duly appointed commanding officer of such wing.
(2) In consideration for services rendered to the state of Idaho and its citizens by the Idaho wing of civil air patrol, the military division shall provide in-kind services or direct financial support to the Idaho wing of civil air patrol, in the form of land use, hangar facilities, mess and billeting facilities, office space, travel, and participation fees for attendance at educational and training opportunities sponsored by civil air patrol, and other entities when deemed necessary and when such facilities are available. The military division shall administer any moneys that may be appropriated from time to time for the benefit of the Idaho wing of civil air patrol, by promptly transferring said moneys to the Idaho wing of civil air patrol, by a grant or similar means in an amount not less than the moneys appropriated. The military division may specify such reporting requirements as it deems appropriate, and the Idaho wing of civil air patrol shall make available to the military division its financial records accounting for usage of any appropriated moneys.
(3) Any operational or training missions assigned to the Idaho wing of civil air patrol by the Idaho office of emergency management and accepted for execution by the Idaho wing of civil air patrol shall be governed by a separate memorandum of understanding that shall be executed from time to time between the Idaho office of emergency management and civil air patrol. Any reimbursement to the Idaho wing of civil air patrol of mission expenses specified by that memorandum of understanding shall be in addition to any appropriated moneys described in this section and shall be paid from moneys otherwise available to the Idaho office of emergency management.
[39-7114A, added 2012, ch. 313, sec. 1, p. 862; am. 2016, ch. 118, sec. 5, p. 334; am. 2022, ch. 154, sec. 1, p. 537.]
The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of remaining portions of this act.
[39-7115, added 1991, ch. 242, sec. 1, p. 592.]
This chapter may be known and cited as the "Idaho Land Remediation Act."
[39-7201, added 1996, ch. 252, sec. 1, p. 796.]
The legislature hereby finds and declares:
(1) That it is the policy of the state of Idaho to provide for the protection of the public health, welfare, safety, and environment; and to foster the remediation, transfer, reuse, or redevelopment of sites or groups of sites based on the risk to human health and the environment where releases or threatened release of hazardous substances or petroleum exists. The minimization of risk to public health and the environment on a commercial and industrial site offers significant potential economic benefit to local communities and is vital to their use and reuse as sources of employment, housing, recreation and open-space areas.
(2) That establishing a voluntary program for the remediation of hazardous substance or petroleum contaminated sites will encourage innovation and cooperation between the state, local communities, and interested persons and will promote the economic revitalization of property. It is intended that this program will provide for an expedited remediation process by eliminating the need for many adversarial enforcement actions and delays in remediation plan approvals.
(3) That providing financial assistance to eligible property owners who conduct voluntary cleanups will promote the economic revitalization of property, particularly in rural communities, and will reduce or eliminate the need for many adversarial enforcement actions and delays in remediation plan approvals.
[39-7202, added 1996, ch. 252, sec. 1, p. 796; am. 2006, ch. 308, sec. 1, p. 947.]
As used in this chapter:
(1) "Board" means the board of environmental quality.
(2) "Department" means the department of environmental quality.
(3) "Eligible property owner" means any individual, association, partnership, firm, joint stock company, trust, estate, private corporation, or any other nonpublic entity that is the current owner of a contaminated property, but that did not cause, contribute, or consent to the release that led to the contamination or own the property at the time of the release that led to the contamination. An eligible property owner shall not include any individual, association, partnership, firm, joint stock company, trust, estate, private corporation, or any other nonpublic entity that is:
(a) Affiliated with any individual or entity that caused, contributed, or consented to the release that led to the contamination, or owned the property at the time of the release that led to the contamination, whether directly or through a direct or indirect familial relationship, or any contractual, corporate, or financial relationship, excluding such relationships created by a contract for the sale of the property at issue; or
(b) The owner as a result of a reorganization of an entity that caused, contributed, or consented to the release that led to the contamination, or that owned the property at the time of the release that led to the contamination.
(4) "Hazardous substance" has the meaning set forth in section 101(14) of the comprehensive environmental, response, compensation and liability act (CERCLA), 42 U.S.C. 9601 (14) as amended.
(5) "Person" means any individual, association, partnership, firm, joint stock company, trust, estate, political subdivision, public or private corporation, state or federal governmental department, agency or instrumentality, or any other legal entity which is recognized by law as the subject of rights and duties.
(6) "Petroleum" includes petroleum asphalt and crude oil or any part of petroleum asphalt or crude oil that is liquid at standard conditions of temperature and pressure (sixty (60) degrees Fahrenheit and fourteen and seven-tenths (14.7) pounds per square inch absolute).
(7) "Qualifying remediation costs" means reasonable costs incurred performing remediation activities integral to achieving the cleanup goals identified in a remediation work plan approved by the department.
(8) "Release" means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment, including the abandonment or discarding of barrels, containers, or other closed receptacles containing any hazardous substance or petroleum.
(9) "Remediation" means any of the following:
(a) Actions necessary to prevent, minimize, or mitigate damages to the public health or welfare or to the environment, which may otherwise result from a release or threat of a release; or
(b) Actions consistent with a permanent remedy taken instead of, or in addition to, removal actions in the event of a release or threatened release of a hazardous substance or petroleum into the environment to eliminate the release of hazardous substances or petroleum so that the hazardous substances or petroleum do not migrate to cause substantial danger to present or future public health or welfare or the environment; or
(c) The cleanup or removal of released hazardous substances or petroleum from the environment.
(10) "Site" means a parcel of real estate for which an application has been submitted under section 39-7204, Idaho Code.
(11) "Technical professional" means a professional geologist or professional engineer registered in the state of Idaho.
[39-7203, added 1996, ch. 252, sec. 1, p. 796; am. 2001, ch. 103, sec. 66, p. 303; am. 2006, ch. 308, sec. 2, p. 948.]
(1) To participate in the remediation program a person must submit an application to the department as described under subsection (2) of this section.
(2) An application submitted under this section must meet the following conditions:
(a) Contain the following general information concerning:
(i) the person,
(ii) the site, and
(iii) other background information as requested by the department;
(b) An environmental assessment that conforms to ASTM Standard Practice E 1527, as amended, or equivalent.
(3) Not more than thirty (30) days after receiving an application under subsection (2) of this section, the department shall determine if the person is eligible to participate in the remediation program under this chapter.
(4) The department may reject an application submitted under subsection (2) of this section for any of the following reasons:
(a) Remediation is required pursuant to sections 39-101 through 39-129, sections 39-4401 through 39-4432, or sections 39-7401 through 39-7429, Idaho Code, or rules promulgated thereunder, or other applicable statutory or common law; or
(b) The condition of the hazardous substance or petroleum described in the application constitutes an imminent and substantial threat to human health or the environment; or
(c) The application is not complete.
(5) If the application is rejected under subsection (4)(c) of this section, the department shall provide the person with a list of all information needed to make the application complete. If the department fails to comply with this subsection, the application shall be considered completed for the purposes of this chapter.
(6) If the department rejects an application, the department shall do the following:
(a) Notify the person that the department rejected the application;
(b) Explain the reason the department rejected the application.
[39-7204, added 1996, ch. 252, sec. 1, p. 797; am. 2026, ch. 7, sec. 36, p. 58.]
(1) If the department determines an application is eligible under this chapter, the person may submit a proposed voluntary remediation work plan to the department. Before the department evaluates a proposed voluntary remediation work plan, the person who submitted the work plan and the department must enter into a voluntary remediation agreement that sets forth the terms and conditions of the evaluation and the implementation of the work plan.
(a) A voluntary remediation agreement must include the following:
(i) An estimation of costs the department may incur under this chapter;
(ii) A payment schedule of all reasonable costs estimated to be incurred by the department in the review and oversight of the work plan;
(iii) A provision for the department’s oversight including access to site and pertinent site records;
(iv) A timetable for the department to do the following:
Reasonably review and evaluate the adequacy of the work plan; or
Make a determination concerning the approval or rejection of the work plan;
(v) A provision to modify the voluntary remediation agreement and voluntary remediation work plan based upon unanticipated site conditions;
(vi) Any other conditions considered necessary by the department or the person concerning the effective and efficient implementation of this chapter.
(b) A proposed voluntary remediation work plan must include a proposed statement of work and schedule to accomplish the remediation in accordance with rules established by the board. Any institutional control proposed as part of a work plan that requires activity and/or use limitations shall comply with the uniform environmental covenants act, chapter 30, title 55, Idaho Code.
(2) If a voluntary remediation agreement is not reached between a person and the department within a reasonable time after good faith negotiations have begun, the person or the department may withdraw from the negotiations.
[39-7205, added 1996, ch. 252, sec. 1, p. 798; am. 2010, ch. 99, sec. 1, p. 191.]
(1) Pursuant to the signed voluntary remediation agreement, the department or a person under contract with the department shall do the following:
(a) Review and evaluate the site and the affected area surrounding the site;
(b) Review and evaluate the proposed voluntary remediation work plan for protection of public health and the environment based on rules promulgated by the board.
(2) At any time during the evaluation of a proposed voluntary remediation work plan, the department may request that a person submit additional or corrected information to the department. A person may:
(a) Comply with the request; or
(b) Withdraw the person’s proposed voluntary remediation work plan from consideration and terminate the voluntary remediation agreement.
(3) Before the department approves a proposed voluntary remediation work plan under this section, the department must:
(a) Notify local government units located in a county affected by the proposed voluntary remediation work plan of the work plan; and,
(b) Provide that a copy of the proposed voluntary remediation work plan and a copy of the voluntary remediation agreement be placed in at least one (1) public library in a county affected by the work plan; and,
(c) Notify by reasonable public notice potentially affected persons to request comments concerning the proposed voluntary remediation work plan; and,
(d) Provide a comment period of at least thirty (30) days following publication of a notice under this section. During the comment period, interested potentially affected persons may do the following:
(i) submit written comments to the department concerning the proposed voluntary remediation work plan,
(ii) request a public hearing concerning the proposed voluntary remediation work plan.
(4) If the department receives a significant number of written requests from potentially affected persons, the department may hold a public hearing in the geographical area affected by the proposed voluntary remediation work plan on the question of whether to modify, approve or reject the work plan. All written comments and public testimony shall be considered by the department.
(5) The department shall:
(a) Approve;
(b) Modify and approve; or
(c) Reject the proposed voluntary remediation work plan.
(6) If the department rejects a proposed voluntary remediation work plan under this section:
(a) The department shall notify the person and specify the reasons for rejecting the work plan; and
(b) The person may appeal the department’s decision under chapter 52, title 67, Idaho Code.
(7) If the department approves, or modifies and approves, a proposed voluntary remediation work plan under this section, the department shall:
(a) Notify the person in writing, under the applicable provisions set forth in this chapter, that the voluntary remediation work plan has been approved, or modified and approved;
(b) Incorporate the approved voluntary remediation work plan into the voluntary remediation agreement.
[39-7206, added 1996, ch. 252, sec. 1, p. 798.]
(1) If the department determines that a person has successfully completed a voluntary remediation work plan approved under this chapter, the department shall certify that the work plan has been successfully implemented or satisfied by issuing the person a certificate of completion. The issuance of a certificate of completion under this section is a final agency action for purposes of this chapter.
(2) A person who receives a certificate of completion under this section shall record a copy of the certificate of completion with the deed for the site on which the remediation took place.
(3) If the department determines that the person has not successfully implemented a voluntary remediation work plan approved under this chapter, the department shall notify the person of this determination under this chapter.
(4) If the department issues a certificate of completion to a person under this chapter, the department, upon request, shall also negotiate and provide the person a covenant not to sue for any claim for environmental remediation under state law resulting from or based upon the release or threatened release of a hazardous substance or petroleum that is the subject of the approved voluntary remediation work plan successfully implemented under this chapter. The covenant not to sue shall extend to any current or future owner or operator of the site or portion thereof who did not cause, aggravate, or contribute to the release or threatened release.
(5) A covenant not to sue issued under this section shall not apply to claims for a condition or the extent of a condition that:
(a) Was present on the site involved in an approved and implemented voluntary remediation work plan; and
(b) Was not known to the department at the time the department issued the certificate of completion under this chapter.
(6) Except as provided under federal law or agreed to by a federal governmental entity, a covenant not to sue issued under this section shall not release a person from liability to the federal government for claims based on federal law.
(7) During the implementation of an approved voluntary remediation work plan, the department shall not bring an action, including an administrative or judicial action for any liability for remediation relating to the release or threatened release of a hazardous substance or petroleum that is the subject of the voluntary remediation work plan, against a person who entered into a voluntary remediation agreement and who is implementing the voluntary remediation work plan in accordance with such agreement implementing the voluntary remediation work plan.
[39-7207, added 1996, ch. 252, sec. 1, p. 799.]
(1) This chapter does not prohibit or limit the department’s recision of the voluntary remediation agreement or the covenant not to sue at any time if:
(a) The person implementing the work plan fails substantially to comply with the terms and conditions of:
(i) a voluntary remediation agreement, or
(ii) covenant not to sue;
(b) A hazardous substance or petroleum release becomes an imminent and substantial threat to human health or the environment.
(2) The department shall also notify the county in which the said site exists of recision of the covenant not to sue for the purposes of determining property exemptions provided under section 63-602BB, Idaho Code.
[39-7208, added 1996, ch. 252, sec. 1, p. 800; am. 1997, ch. 117, sec. 41, p. 339.]
Pursuant to rules adopted by the board, a person who maintains indicia of ownership primarily to protect a security interest in a site, and who does not participate in the management of the site, shall not be considered an owner or operator of that site, nor liable under any pollution control or other environmental protection law, rule or regulation, or otherwise responsible for any environmental contamination or response activity costs consistent with United States environmental protection agency policy, 60 Federal Register 63517, dated December 11, 1995, as amended. This section shall apply to all indicia of ownership existing at the time of passage of this chapter and those arising thereafter.
[39-7209, added 1996, ch. 252, sec. 1, p. 800.]
Within one (1) year after the effective date of this section, the board shall, through negotiated rulemaking, adopt rules to carry out the purposes of this provision consistent with federal and state law which shall provide for the following:
(1) The establishment of methodologies to determine site-specific risk-based remediation standards, which shall be no more stringent than applicable or appropriate relevant federal and state standards and are consistent with 42 U.S.C. 9621, taking into consideration scientific information regarding the following:
(a) protection of public health and the environment,
(b) the future industrial, commercial, residential, or other use of the site to be remediated and of surrounding properties,
(c) the availability of institutional or engineering controls that are protective of public health and the environment, including deed restrictions, and
(d) natural background levels for hazardous constituents;
(2) The establishment of administrative procedures that minimize delay and expense of the remediation, processing submissions and overseeing remediation;
(3) The issuance of certificates of completion once the voluntary remediation work plans is implemented;
(4) Consistent with applicable local, state and federal law, guidelines to assist in the issuance of any permits required to initiate and complete a voluntary remediation work plan;
(5) Collection and payment of fees to defray the actual reasonable costs of the voluntary remediation program.
(6) Lender liability consistent with United States environmental protection agency policy, 60 Federal Register 63517, dated December 11, 1995, as amended.
[39-7210, added 1996, ch. 252, sec. 1, p. 801.]
(1) There is hereby established in the state treasury a fund to be known as the Idaho community reinvestment pilot initiative fund which shall consist of moneys appropriated to the fund, donations, gifts and grants from any source and any other moneys which may hereafter be provided by law. The state treasurer shall be the custodian of the fund and shall invest said moneys in accordance with law. Any interest earned on the moneys in the fund shall be deposited in the fund. Moneys in the fund shall be disbursed in accordance with the directions of the director of the department of environmental quality. All moneys in the fund are perpetually appropriated to the director for expenditure in accordance with the provisions of this section.
(2) The state of Idaho hereby authorizes financial assistance to eligible property owners conducting voluntary cleanup actions pursuant to this chapter. The financial assistance authorized by this section shall not exceed one hundred fifty thousand dollars ($150,000) per project and shall be limited to, subject to the one hundred fifty thousand dollars ($150,000) maximum, seventy-percent (70%) of a project’s qualifying remediation costs certified by the department pursuant to this section.
(3) Pursuant to general fund appropriation, the maximum overall financial assistance authorized by this section is one million five hundred thousand dollars ($1,500,000) in qualified remediation cost expenditures. A maximum of ten (10) projects may participate in the initiative.
(4) The department shall establish an annual priority list for community revitalization projects. The priority list shall be used as the method for allocating funds under this initiative.
(a) On an annual basis, the department shall establish, at a minimum, a continuous three (3) month calendar period in which eligible property owners may submit a written request, on a standard form developed by the department, to participate.
(b) On an annual basis, the department shall develop a priority list based on a weighted numerical points system established by the department. The rating system shall consider the following criteria wherein the department shall weigh each succeeding criteria less heavily than the preceding criteria:
(i) Whether the project is located in a city with a population of under twenty thousand (20,000) residents;
(ii) The level of social and economic benefit expected from the proposed reuse plan;
(iii) Whether contamination is preventing or complicating redevelopment;
(iv) Whether a reuse plan meets local planning and reuse goals, is compatible with long-term plans, and is ready to proceed;
(v) The level of human health risks the cleanup will remedy;
(vi) Current property conditions, including building safety concerns, vacancy rates and the level of negative visual impact the property has on the community.
(c) The department shall maintain annual priority lists of the twenty-five (25) highest priority projects.
(d) After finalizing the priority list, the department shall contact, in writing, the eligible property owners that submitted the ten (10) highest ranked priority projects and will set a target date for the eligible property owners to enter into a voluntary remediation agreement as described in subsection (1) of section 39-7205, Idaho Code.
(e) The department may bypass a project, and submit in its place the next highest priority project on the project list, for any of the following reasons:
(i) The eligible property owner fails to enter into a voluntary remediation agreement by the target date established by the department;
(ii) The eligible property owner, in writing, withdraws its request to participate; or
(iii) The voluntary remediation agreement is terminated or rescinded by the department prior to commencement of remediation as described in the voluntary remediation agreement approved by the department.
The department shall notify the bypassed eligible property owner of the reason or reasons for the bypass.
(5) Eligible property owners may request a community investment rebate by submitting documentation and certifications enumerated in paragraphs (a) through (c) of this subsection to the department. Eligible property owners shall submit this information no more than sixty (60) days after the department issues a certificate of completion for the project. Eligible property owners must receive a written certificate of completion from the department before the department may certify qualifying remediation costs or provide a community reinvestment rebate. Information to be submitted includes:
(a) Copies of contracts and documentation of contract negotiations, accounts, invoices, sales tickets, or other payment records from purchases, sales, leases, or other transactions involving actual costs incurred completing remediation activities in accordance with the work plan approved by the department;
(b) Notarized documentation completed and signed by the participant certifying that all information contained in the application, including all records of claims, costs incurred, and costs paid, are true and correct and constitute qualifying remediation costs;
(c) Notarized documentation completed and signed by a technical professional certifying that a technical professional oversaw all remediation work plan activities and that all costs associated with documents submitted pursuant to this subsection constitute qualifying remediation costs.
(6) Community reinvestment rebate requests shall be reviewed and certified as follows:
(a) The department shall review each community reinvestment rebate request and determine whether the request is complete. If the department determines the request is incomplete, the department shall return the request, with the deficiencies indicated, to the eligible property owner by certified mail;
(b) Once a community reinvestment rebate request is deemed complete, the department shall review the request and determine the project’s qualifying remediation costs. The department shall then issue a certification of the qualifying remediation costs for all those costs found to be reasonable by the department;
(c) The department shall issue the eligible property owner a community reinvestment rebate in the amount it certified as qualified remediation costs no more than thirty (30) days after department certification;
(d) Any eligible property owner or technical professional determined in a civil enforcement action to have submitted a false statement, representation or certification in any application, record, report, plan or other document submitted to the department, shall reimburse the state of Idaho for moneys wrongfully rebated and shall be liable for civil penalties and expenses incurred by the department in accordance with chapter 1, title 39, Idaho Code.
(7) Eligible property owners that receive a community investment rebate are not eligible to receive the property tax exemption established under section 63-602BB, Idaho Code.
[39-7211, added 2006, ch. 308, sec. 3, p. 949.]
(1) The state of Idaho and its political subdivisions, including but not limited to counties, cities, towns, precincts, water districts, school districts, school administrative units, or quasi-public entities, shall not be compelled to engage in the enforcement of, or any collaboration with the enforcement of, any requirements or mandates issued by the world health organization.
(2) Any requirements or mandates issued by the world health organization shall not be used in the state as a basis for action or to direct, order, or otherwise impose, contrary to the constitution and laws of this state, any requirements whatsoever, including those for masks, vaccines, or medical testing, or to gather any public or private information about the state’s citizens or residents and shall have no force or effect in this state.
[39-7301, added 2025, ch. 81, sec. 1, p. 365.]
(1) The legislature finds:
(a) That adverse public health and environmental impacts can result from the improper land disposal of solid waste and that the need for establishing safe sites with adequate capacity for the disposal of solid waste is a matter of statewide concern and necessity; and
(b) That the resource conservation and recovery act, 42 U.S.C. 6901 et seq., as amended, and regulations adopted pursuant thereto, establish complex, detailed, and costly provisions for the location, design, operation, and monitoring of solid waste disposal sites, including such sites as may be operated pursuant to the responsibility established in chapter 44, title 31, Idaho Code; and
(c) That a state program to implement flexible standards provided in 40 CFR 258, if approved by the U.S. environmental protection agency, enables a state to take advantage of site specific factors in the design, operation, closure, post-closure, and financial assurance of solid waste facilities and flexibility in meeting federal criteria set forth in that regulation; and
(d) That 40 CFR 258 provides that such a program of flexible standards requires approvals by a designated state agency; and
(e) That chapter 1, title 39, Idaho Code, vests the Idaho department of environmental quality with the responsibility to issue a certificate of suitability concerning prospective solid waste landfill sites, to approve solid waste facility design and ground water monitoring programs, and to provide approvals pursuant to 40 CFR 258; and
(f) That chapter 44, title 31, Idaho Code, imposes on the counties the primary responsibility for the development and operation of a solid waste management system; and
(g) That chapter 74, title 39, Idaho Code, vests the Idaho department of environmental quality with the responsibility for the review and approval of solid waste facility operations, closure, post-closure, and corrective action plans, and the enforcement of solid waste management operations; and
(h) That the coordination and timeliness of response to federal law on the part of all public officials within the state is critical to compliance with federal regulations, the ability of each affected agency to carry out their statutory responsibilities, and the avoidance of excessive construction and public expenditures.
(2) Therefore, it is the intent of the legislature to establish a program of solid waste management which complies with federal regulations and facilitates the incorporation of flexible standards in facility design, operations, closure, post-closure, and corrective action. The legislature hereby establishes the solid waste disposal standards and procedures outlined herein and a facility approval process for the state of Idaho, the political subdivisions thereof, and any private solid waste disposal site owner in order to facilitate the development and operation of solid waste disposal sites, effect timely and responsible completion of statutory duties, ensure protection of human health and the environment, and protect the air, land, and waters of the state of Idaho.
[39-7401, added 1992, ch. 331, sec. 1, p. 973; am. 1993, ch. 139, sec. 1, p. 343; am. 2001, ch. 103, sec. 67, p. 304; am. 2026, ch. 7, sec. 3, p. 27.]
(1) The standards and procedures set forth in this chapter apply to owners and operators of new municipal solid waste landfill (MSWLF) units, existing MSWLF units, and lateral expansions of existing MSWLF units, except as otherwise specifically provided.
(2) The requirements of this chapter do not apply to MSWLF units that ceased to accept waste on or prior to October 9, 1991.
(3) MSWLF units that receive waste after October 9, 1991, but stop receiving waste in conformance with the provisions of 40 CFR 258.1(d), are exempt from the requirements of this chapter, except as expressly provided herein.
(4) All MSWLF units that receive waste on or after October 9, 1993, must comply with all of the requirements of this chapter, unless otherwise allowed in 40 CFR 258.1(d), (e), or (f).
(5) MSWLF units failing to satisfy these standards shall cease operation and shall not accept solid waste for disposal by order of the department of environmental quality until provisions of this chapter are complied with, unless a compliance schedule or corrective action plan has been approved by the director of the department of environmental quality.
(6) MSWLF units failing to satisfy the requirements set forth in this chapter are considered open dumps for purposes of state solid waste management planning and are prohibited under section 4005 of RCRA.
(7) MSWLF units containing sewage sludge and which fail to satisfy the criteria set forth in 40 CFR 258 violate sections 309 and 405(e) of the clean water act.
[39-7402, added 1992, ch. 331, sec. 1, p. 974; am. 1993, ch. 139, sec. 2, p. 344; am. 1994, ch. 75, sec. 2, p. 160; am. 2001, ch. 103, sec. 68, p. 304; am. 2026, ch. 7, sec. 4, p. 28.]
This chapter shall not apply to any facility subject to the provisions of subtitle C of RCRA or the hazardous waste management act of 1983, as amended, chapter 44, title 39, Idaho Code.
[(39-7402A) 1992, ch. 292, sec. 2, p. 892; am. and redesig. 1993, ch. 139, sec. 3, p. 345; am. 2026, ch. 89, sec. 18, p. 476.]
As used in this chapter:
(1) "Active portion" means that part of a facility or unit that has received or is receiving wastes and that has not been closed in accordance with 40 CFR 258.60.
(2) "Agricultural wastes" means wastes generated on farms resulting from the production of agricultural products including, but not limited to, manures and carcasses of dead animals weighing each or collectively in excess of fifteen (15) pounds but does not include wastes that are classified as hazardous.
(3) "Applicant" means the owner or the operator with the owner’s written consent.
(4) "Aquifer" means a geological formation, group of formations, or a portion of a formation capable of yielding significant quantities of ground water to wells or springs.
(5) "Board" means the Idaho board of environmental quality.
(6) "Buffer zone" means that part of a facility that lies between the active portion and the property boundary.
(7) "Clean soils and clean dredge spoils" means soils and dredge spoils which are not hazardous wastes and do not pose a significant risk to human health or the environment.
(8) "Co-located waste facilities" or "CWF" means facilities that accept both household waste and nonmunicipal solid waste in separate waste management units on geographically contiguous property that, separately, are subject to the provisions of this title and rules promulgated pursuant thereto.
(9) "Commercial solid waste" means all types of solid waste generated by stores, offices, restaurants, warehouses, and other nonmanufacturing activities, excluding residential and industrial wastes.
(10) "Construction/demolition waste" means the waste building materials, packaging, and rubble resulting from construction, remodeling, repair, and demolition operations on pavements, houses, commercial buildings, and other structures. Such waste includes, but is not limited to, bricks, concrete, other masonry materials, soil, rock, lumber, road spoils, rebar, paving materials, and tree stumps. Noninert wastes and asbestos wastes are not considered to be demolition waste for the purposes of this chapter.
(11) "Contaminate" means to allow discharge of a substance from a landfill that would cause:
(a) The concentration of that substance in the ground water to exceed the maximum contamination level (MCL) specified in Idaho drinking water standards or federal regulations; or
(b) A statistically significant increase in the concentration of that substance in the ground water where the existing concentration of that substance exceeds the maximum contamination level specified in paragraph (a) of this subsection; or
(c) A statistically significant increase above background in the concentration of a substance which:
(i) Is not specified in paragraph (a) of this subsection;
(ii) Is a result of the disposal of solid waste; and
(iii) Has been determined by the department to present a substantial risk to human health or the environment in the concentrations found at the point of compliance.
(12) "County" means any county in the state of Idaho.
(13) "Cover material" means soil or other suitable material that is used to protect the active portion of the MSWLF unit.
(14) "Department" means the Idaho department of environmental quality.
(15) "Director" means the director of the Idaho department of environmental quality.
(16) "Existing MSWLF unit" means any municipal solid waste landfill unit that is receiving solid waste as of the applicable date specified in 40 CFR 258.1(e).
(17) "Facility" means all contiguous land and structures, buffer zones, and other appurtenances and improvements on the land used for the disposal of solid waste.
(18) "Floodplain" means the area encompassed by the one hundred (100) year flood as defined by applicable federal emergency management agency (FEMA) flood insurance maps or, if no map exists, then as defined in 40 CFR 258.11.
(19) "Ground water" means water below the land surface in a zone of saturation.
(20) "Holocene fault" means a fault characterized as a fracture or a zone of fractures in any material along which strata on one (1) side have been displaced with respect to that on the other side and holocene being the most recent epoch of the quaternary period, extending from the end of the pleistocene epoch to the present.
(21) "Household waste" means any solid waste, including garbage, trash, and sanitary waste in septic tanks, derived from households, including single and multiple residences, hotels and motels, bunkhouses, ranger stations, crew quarters, campgrounds, picnic grounds, and day use recreation areas.
(22) "Industrial solid waste" means solid waste generated by manufacturing or industrial processes that is not a hazardous waste regulated under subtitle C of RCRA. Such waste may include, but is not limited to, waste resulting from the following manufacturing processes: electric power generation; fertilizer and agricultural chemicals; food and related products and byproducts; inorganic chemicals; iron and steel manufacturing; leather and leather products; nonferrous metals manufacturing/foundries; organic chemicals; plastics and resins manufacturing; pulp and paper industry; rubber and miscellaneous plastic products; stone, glass, clay and concrete products; textile manufacturing; transportation equipment; and water treatment. This term does not include mining waste or oil and gas waste.
(23) "Inert wastes" means noncombustible, nonhazardous, nonputrescible, nonleaching solid wastes that are likely to retain their physical and chemical structure under expected conditions of disposal, including resistance to biological attack.
(24) "Landfill" means an area of land or an excavation in which wastes are placed for permanent disposal, and that is not a land application unit, surface impoundment, injection well, or waste pile.
(25) "Landspreading disposal facility" or "land application unit" means a facility that applies sludges or other solid wastes onto or incorporates solid waste into the soil surface, excluding manure spreading operations, at greater than agronomic rates, soil conditioners, and immobilization rates.
(26) "Lateral expansion" means a horizontal expansion of the waste boundaries of an existing MSWLF unit.
(27) "Leachate" means a liquid that has passed through or emerged from solid waste and contains soluble, suspended, or miscible materials removed from such waste.
(28) "Limited purpose landfill" means a landfill that receives solid waste of limited type with known and consistent composition other than wood wastes, household waste, inert waste, and construction/demolition waste.
(29) "Liquid waste" is as defined in 40 CFR 258.28(c)(1).
(30) "Monofill" means a landfill which contains a specific waste whose waste stream characteristics remain unchanged over time and may include special wastes or other consistent characteristic wastes but does not include wastes regulated under any other applicable regulation.
(31) "Municipal solid waste landfill unit " or "MSWLF" means a discrete area of land or an excavation that receives household waste, and that is not a land application unit, surface impoundment, injection well, or waste pile, as those terms are defined in 40 CFR 257.2. A MSWLF unit also may receive other types of RCRA subtitle D wastes, such as commercial solid waste, nonhazardous sludge, conditionally exempt small quantity generator waste, and industrial solid waste. Such a landfill may be publicly or privately owned. A MSWLF unit may be a new MSWLF unit, an existing MSWLF unit, or a lateral expansion.
(32) "New MSWLF unit" means any municipal solid waste landfill unit that has not received waste prior to October 9, 1993, or prior to October 9, 1995, if the MSWLF unit meets the conditions specified in 40 CFR 258.1(f)(1).
(33) "No potential for migration" means the geologic formation beneath the site and above the uppermost aquifer has sufficient hydrogeological characteristics and holding capacity adequate to contain all hazardous constituents generated during the active life, closure, and post-closure care periods.
(34) "Nonmunicipal solid waste" or "NMSW" means a solid waste that is not mixed with household waste and not excluded by statute or rule.
(35) "Nonmunicipal solid waste landfill" or "NMSWLF" means a landfill that accepts only nonmunicipal solid waste.
(36) "Open burning" means the combustion of solid waste without:
(a) Control of combustion air to maintain adequate temperature for efficient combustion;
(b) Containment of the combustion reaction in an enclosed device to provide sufficient resident time and mixing for complete combustion; and
(c) Control of the emission of the combustion products.
(37) "Operations plan" means the written plan developed by an owner or operator of an MSWLF unit detailing how the facility is to be operated during its active life, during closure, and throughout the post-closure period.
(38) "Operator" means the person(s) responsible for the overall operation of a facility or part of a facility.
(39) "Owner" means the person(s) who owns a facility or part of a facility.
(40) "Permeability" means the capacity of a material to transmit a liquid. For the purposes of this chapter permeability is expressed in terms of hydraulic conductivity of water in centimeters-per-second units of measurement.
(41) "Person" means an individual, association, firm, partnership, political subdivision, public or private corporation, state or federal agency, municipality, industry, or any other legal entity whatsoever.
(42) "Pile" or "waste pile" means any noncontainerized solid, nonflowing waste that is accumulated for treatment or storage.
(43) "Point of compliance" means a vertical surface located at the hydraulically downgradient intercept with the uppermost aquifer at which a release from a waste management unit measured as change in constituent values will trigger assessment monitoring. Point of compliance shall be used to define the facility design, location, and frequency of ground water monitoring wells and corrective action.
(44) "Post-closure" means the requirements placed upon the MSWLF unit after closure to ensure their environmental safety for a thirty (30) year period or until the site becomes stabilized in accordance with this chapter.
(45) "Processing" means an operation conducted on solid waste to prepare it for disposal.
(46) "Qualified professional" means a licensed professional geologist or licensed professional engineer, as appropriate, holding current professional registration in compliance with applicable provisions of the Idaho Code.
(47) "RCRA" means the resource conservation and recovery act, 42 U.S.C. 6901 et seq., as amended.
(48) "Run-off" means any rainwater, leachate, or other liquid that drains over land from any part of a facility.
(49) "Run-on" means any rainwater, leachate, or other liquid that drains over land onto any part of a facility.
(50) "Saturated zone" means that part of the earth’s crust in which all voids are filled with water.
(51) "Septage" means a semisolid consisting of settled sewage solids combined with varying amounts of water and dissolved materials generated from a septic tank system.
(52) "Sludge" means any solid, semisolid, or liquid waste generated from a municipal, commercial, or industrial waste water treatment plant, water supply treatment plant, or air pollution control facility, exclusive of the treated effluent from a waste water treatment plant.
(53) "Solid waste" means any garbage or refuse, sludge from a waste water treatment plant, water supply treatment plant, or air pollution control facility and other discarded material including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations and from community activities. Solid waste does not include:
(a) Overburden, waste dumps, and low-grade stockpiles from mining operations;
(b) Liquid wastes whose discharge or potential discharge is regulated under federal, state, or local water pollution permits;
(c) Hazardous wastes, as designated in the hazardous waste management act, chapter 44, title 39, Idaho Code;
(d) Wood waste used for ornamental, animal bedding, mulch and plant bedding and road building purposes;
(e) Agricultural wastes, limited to manures and crop residues, returned to the soils at agronomic rates;
(f) Clean soils and clean dredge spoils as otherwise regulated under section 404 of the federal clean water act (PL 95-217);
(g) Septage taken to a sewage treatment plant permitted by either the U.S. environmental protection agency or the department;
(h) Wood debris resulting from the harvesting of timber and the disposal of which is permitted pursuant to chapter 1, title 38, Idaho Code;
(i) Solid or dissolved materials in domestic sewage;
(j) Solid or dissolved materials in irrigation return flows;
(k) Industrial discharges that are point sources subject to permit under 33 U.S.C. 1342; and
(l) Source, special nuclear, or byproduct material as defined in the atomic energy act of 1954, as amended.
(54) "Special waste" means those wastes which require special treatment or handling after arrival at the disposal site, including but not limited to, asbestos containing material, petroleum contaminated soils, low-level PCB containing material, low-level dioxin containing material, and unprocessed tires.
(55) "Statistically significant" means significant as determined by a statistical test method outlined in 40 CFR 258.53(g) or by another method that meets the requirements provided by 40 CFR 258.53(h).
(56) "Uppermost aquifer" means the geological formation nearest the natural ground surface that is an aquifer as well as lower aquifers that are hydraulically interconnected with this aquifer within the facility’s property boundary.
(57) "Waste management unit boundary" means a vertical surface located at the hydraulically downgradient limit of the unit. This vertical surface extends down into the uppermost aquifer.
(58) "Water quality standard" means a standard set for maximum allowable contamination in surface waters and ground water as set forth in the water quality standards for waters for the state of Idaho.
(59) "Wetlands" is as defined by federal law or regulations.
(60) "Wood waste" means solid waste consisting of wood pieces or particles generated as a byproduct or waste from the manufacturing of wood products, handling and storage of raw materials and trees and stumps. This includes, but is not limited to, sawdust, chips, shavings, bark, pulp, hog fuel and log yard waste, but does not include wood pieces or particles containing chemical preservatives such as creosote, pentachlorophenol, or copper-chrome-arsenate.
Undefined terms shall be given their usual and ordinary meaning within the context of the provisions of this chapter.
[39-7403, added 1992, ch. 331, sec. 1, p. 974; am. 1993, ch. 139, sec. 4, p. 345; am. 1994, ch. 75, sec. 3, p. 161; am. 1996, ch. 419, sec. 1, p. 1390; am. 2001, ch. 103, sec. 69, p. 305; am. 2007, ch. 83, sec. 8, p. 227; am. 2026, ch. 7, sec. 5, p. 29.]
(1) The legislature intends that the state of Idaho enact and carry out a solid waste program that will enable the state to achieve approved state status with respect to solid waste disposal facility regulation from the federal government.
(2) The legislature finds that subtitle D of RCRA, and in particular the code of federal regulations, title 40, part 257 and 258, establish complex, detailed, and costly provisions for the disposal of solid waste. By the provisions of this chapter, the legislature desires to avoid duplicative or conflicting state and federal regulatory systems and allow local MSWLF unit owners the maximum flexibility possible under federal regulations, to meet the substantive goals of protection of human health and the environment with consideration for actual site and climatic conditions. At any time that applicable federal law or regulations are amended, any additional flexibility or extension otherwise prohibited by this chapter shall be allowed as applicable.
(3) The board may not promulgate any rule pursuant to this chapter that would impose conditions or requirements more stringent or broader in scope than the referenced RCRA regulations of the United States environmental protection agency or the provisions of this chapter. Until regulations are adopted, agency conclusions in appendix B through appendix H, inclusive, per the "Federal Register" of October 9, 1991, or the solid waste disposal technical manual published by the United States environmental protection agency in November 1993 and revised in April 1998, shall be used for technical guidance for relevant provisions of this chapter.
[39-7404, added 1992, ch. 331, sec. 1, p. 979; am. 1993, ch. 139, sec. 5, p. 350; am. 1994, ch. 75, sec. 4, p. 166; am. 2026, ch. 7, sec. 6, p. 33.]
The local government entity with legal responsibility for disposal of solid waste pursuant to the provisions of chapter 44, title 31, Idaho Code, shall have full authority to manage and control the ownership, disposition and ultimate disposal of solid waste within its jurisdiction. It is the intention of the legislature that this grant of authority shall be construed in manner commensurate with the full extent of the duties established in chapter 44, title 31, Idaho Code.
[39-7405, added 1992, ch. 331, sec. 1, p. 979.]
(1) The county and director each perform key roles in statewide solid waste management. Principal jurisdiction for the various functions of solid waste regulation and management as it pertains to site selection, development, operation, and closure shall be carried out as outlined herein:
(a) Each county may select a solid waste landfill site or sites, evaluate said site(s) for compliance with site certification criteria, develop design plans for construction and operation of MSWLF unit(s), including ground water monitoring programs, provide for public review of its site certification, facility design and operations plans through any public comment period conducted pursuant to this chapter, publish legal notices, serve as the repository of funds established for financial assurance, cooperate with the director to construct and operate a solid waste disposal system which protects human health and the environment, and perform such other solid waste related duties as may be specified in chapter 44, title 31, Idaho Code;
(b) The director shall :
(i) Interact and cooperate with federal agencies to secure approved state status concerning solid waste programs;
(ii) Administer the site selection process by requiring an owner to certify, through such professional documentation as may be required in this chapter, that the site is not encumbered by critical site limitations as set forth in section 39-7407, Idaho Code, ascertaining that such certification has been made by a qualified professional;
(iii) Review and approve MSWLF unit design plans, the ground water monitoring program, alternative daily cover and final cover, alternative closure and post-closure care requirements, financial assurance, and any other approvals required by this chapter or 40 CFR 258;
(iv) Prepare and adopt such regulations as may be necessary to implement the provisions of this chapter;
(v) Cooperate in actual site monitoring and corrective action programs;
(vi) Ensure operations standards are met;
(vii) Prepare and adopt technical guidance; and
(viii) Review and enforce all aspects of operation, closure, and post-closure.
(c) All approvals required by 40 CFR 258 shall be obtained by the owner and/or applicant; and all provisions of 40 CFR 258 which provide for flexibility may be obtained by the owner and/or applicant; and the director shall have the authority to grant all such approvals in accordance with the provisions of this chapter, the duty to make a determination that an application meets standards or provides an acceptable alternative, and the duty to approve or disapprove the application in a timely manner prescribed in this chapter.
(2) This chapter shall be liberally construed to allow these public entities having jurisdiction to perform their respective roles to protect human health and the environment through expeditious and technically proper solid waste management practices, while recognizing the authority of local governments to act in their governmental capacity to perform the duties prescribed in chapter 44, title 31, Idaho Code.
[39-7406, added 1992, ch. 331, sec. 1, p. 979; am. 1993, ch. 139, sec. 6, p. 351; am. 1994, ch. 75, sec. 5, p. 166; am. 2026, ch. 7, sec. 7, p. 34.]
(1) The following location restrictions shall apply to all new MSWLF units, existing MSWLF units, and lateral expansions. Existing sites that cannot demonstrate compliance with the following standards for airports, floodplains, or unstable areas, must close by October 9, 1996, except as otherwise provided in 40 CFR 258.16.
(2) All MSWLF units to which this chapter is applicable shall meet the following locational standards:
(a) Shall not be located proximate to an airport runway except as provided in 40 CFR 258.10;
(b) Shall not be located in areas designated by the United States fish and wildlife service or the Idaho department of fish and game as critical habitat for endangered or threatened species of plants, fish, or wildlife, or designated as critical migratory routes for protectively managed species;
(c) Shall not be located so that the active portion is closer than two hundred (200) feet to the property line of adjacent land;
(d) Shall not be located so as to be at variance with any locally adopted land use plan or zoning requirement unless otherwise provided by local law or ordinance, provided that if no land use plan has been adopted by the local government which would have land use jurisdiction pursuant to chapter 65, title 67, Idaho Code, the site certification shall contain an analysis of the factors outlined in section 67-6508, Idaho Code, accompanied by findings and conclusions, setting forth the reasons therefore, entered by the local government with jurisdiction after a public hearing in accord with provisions of section 67-6509, Idaho Code, that the public interest would be served by locating a solid waste landfill on the site for which certification is sought;
(e) Shall not be located so that the active portion is any closer than one thousand (1,000) feet to any state or national park, or land reserved or withdrawn for scenic or natural use;
(f) Shall not be located within a one hundred (100) year flood plain except as provided in 40 CFR 258.11;
(g) Shall not be located in wetlands, except as provided in 40 CFR 258.12;
(h) A MSWLF unit active portion shall not be located:
(i) within three hundred (300) feet or the distance of the point of compliance, whichever is greater, upstream of a perennial stream, or river; and
(ii) within one thousand (1,000) feet of any perennial lake or pond.
(i) A MSWLF unit active portion shall not be located where the integrity of the site would be compromised by the presence of ground water which would interfere with construction or operation of the site;
(j) A MSWLF unit shall not be located:
(i) within two hundred (200) feet of a holocene fault as defined in 40 CFR 258.13 or adjacent to geologic features which could compromise the structural integrity of the MSWLF unit; and
(ii) within seismic impact zones except as provided in 40 CFR 258.14; and
(k) A MSWLF unit active portion shall not be located on any site whose natural state would be considered unstable in that its undisturbed character would not permit establishment of an MSWLF unit without unduly threatening the integrity of the design due to inherent site instability. The provisions of 40 CFR 258.15 shall be followed.
[39-7407, added 1992, ch. 331, sec. 1, p. 980; am. 1993, ch. 139, sec. 7, p. 352.]
(1) It shall be the responsibility of each applicant to obtain site certification from the director. The site certification process is hereby established to ascertain compliance with the requirements of section 39-7407, Idaho Code.
(2) The site certification procedure shall be administered in accordance with the provisions of this chapter and rules promulgated pursuant thereto.
(3) Site certification is transferable with ownership of the site.
[39-7408, added 1992, ch. 331, sec. 1, p. 982; am. 1993, ch. 139, sec. 8, p. 354; am. 2026, ch. 7, sec. 8, p. 35.]
In addition to obtaining site certification as provided in section 39-7408, Idaho Code, no owner or operator of a commercial solid waste facility shall construct, expand or enlarge such a facility without a siting license from the director. Commercial solid waste facilities constructed and in operation on the effective date of this section are not required to obtain a siting license except to expand or enlarge such facilities.
[39-7408A, added 1996, ch. 419, sec. 2, p. 1394.]
(1) A site review panel shall be established to insure public input in the licensing process, to recommend to the director conditions which should be included in a siting license and to recommend to the director whether a particular facility should or should not be constructed, expanded or enlarged.
(2) A panel shall consist of eight (8) members to be appointed as follows:
(a) Three (3) members shall be the director of the department of environmental quality or his designee, the director of the Idaho transportation department or his designee and the director of the department of water resources or his designee.
(b) One (1) member shall be a public member appointed by the governor. The public member shall be an environmental professional, shall serve as chairman of the panel and shall be a voting member. A member who is a public member shall be appointed to serve on site review panels only until the particular siting license application subject to their review is approved, or until the application is rejected and is no longer subject to their review.
(c) Two (2) members shall be appointed by the city council of the city located closest to or in which the commercial solid waste facility is proposed to be located, at least one (1) of whom shall be a resident of the city. The members serving pursuant to this subsection shall serve until the particular siting license application subject to their review is approved, or until the application is rejected and is no longer subject to their review.
(d) Two (2) members shall be appointed by the county commission and be residents of the county where the commercial solid waste facility is proposed to be located. The members serving pursuant to this subsection shall serve until the particular siting license application subject to their review is approved, or until the application is rejected and is no longer subject to their review.
(e) A person nominated to represent a city or county shall not have a conflict of interest, as that term is defined in section 74-403, Idaho Code, or derive any economic gain as that term is defined in section 74-403, Idaho Code, from the location or siting of the proposed commercial solid waste facility.
(3) The director shall notify the city council of the nearest city and the board of county commissioners of a siting license application filed with the department, and shall instruct the city and county to appoint the necessary members to a panel.
(4) Five (5) of the eight (8) members of the panel shall constitute a quorum for the transaction of business of the panel and the concurrence of five (5) members of the panel shall constitute a legal action of the panel, provided that no meeting of the panel shall occur unless there are at least as many members present representing the city and county as there are representing the state and the public as appointed pursuant to subsections (2)(a) and (b) of this section. All meetings of the panel shall be conducted pursuant to the state open meeting law.
(5) The director shall make staff available to assist a panel in carrying out its responsibilities.
(6) Members of the panel who are not state employees shall be entitled to receive compensation as provided in section 59-509(b), Idaho Code.
[39-7408B, added 1996, ch. 419, sec. 2, p. 1395; am. 2001, ch. 103, sec. 70, p. 310; am. 2015, ch. 141, sec. 98, p. 449.]
(1) An application for a siting license shall include:
(a) The name and residence of the applicant;
(b) The location of the proposed commercial solid waste facility;
(c) Engineering, hydrogeologic and air quality information to indicate compliance with technical criteria as may be provided by law;
(d) A description of the types of wastes proposed to be handled at the facility;
(e) Information showing that harm to scenic, public health, historic, cultural or recreational values is not substantial or can be mitigated;
(f) Information showing that the risk and impact of accident during transportation of solid waste is not substantial or can be mitigated;
(g) Information showing that the impact on local government is not adverse regarding health, safety, cost and consistency with local planning and existing development or can be mitigated;
(h) Financial information to indicate the applicant’s financial capability to construct, operate and close a commercial solid waste facility.
(2) Within thirty (30) days after receipt of the application, the director shall determine whether it is complete. If it is not complete, the director shall notify the applicant and state the areas of deficiency.
(3) The application shall be accompanied by a siting license fee. The director shall establish by rule the scale for determining the siting license application fee. The fee shall not exceed seven thousand five hundred dollars ($7,500) and shall be based on the cost to the department of reviewing the siting license application. The scale shall be based on characteristics including the site size, projected waste volume, and hydrogeological and atmospheric characteristics surrounding the site. Fees received pursuant to this section may be expended by the director to pay the actual, reasonable and necessary costs incurred by the department in acting upon a siting license application.
(4) The director shall promulgate rules in compliance with chapter 52, title 67, Idaho Code, to implement the provisions of this section.
[39-7408C, added 1996, ch. 419, sec. 2, p. 1396.]
(1) Upon receipt of a complete siting license application, the director or an authorized representative of the director shall:
(a) Notify the permanent panel members, the city and/or county in which the commercial solid waste facility is located or proposed to be located, the director of the department of fish and game, the director of the Idaho state police, and other state agencies as deemed appropriate by the director.
(b) Publish a notice that the application has been received, as provided in section 60-109, Idaho Code, in a newspaper having major circulation in the county and the immediate vicinity of the proposed commercial solid waste facility. The notice shall contain a map indicating the location of the proposed commercial solid waste facility, a description of the proposed action and the location where the application may be reviewed. The notice shall describe the procedure by which the siting license may be granted.
(2) Upon notification by the director, the chairman shall immediately notify the representatives of the state to the panel and the public members. The chairman shall also notify the applicable county and city for their appointment of members as provided in subsection (2) of section 39-7408B, Idaho Code. Within thirty (30) days after the notification, the board of commissioners of the county and the city council shall select the members to serve on the panel. The panel shall be created at that time and notification of the creation of the panel shall be made to the chairman.
(3) Within thirty (30) days after appointment of panel members, the panel shall meet to review and establish a timetable for the consideration of the draft site license.
(4) The panel shall:
(a) Set a date and arrange for publication of notice of a public hearing in a newspaper having major circulation in the vicinity of the proposed site, at its first meeting. The public notice shall:
(i) Contain a map indicating the location of the proposed commercial solid waste facility, a description of the proposed action, and the location where the application for a siting license may be reviewed and where copies may be obtained;
(ii) Identify the time, place and location for the public hearing held to receive public comment and input on the application for a siting license;
(b) Publish the notice not less than thirty (30) days before the date of the public hearing and the notice shall be, at a minimum, a twenty (20) days’ notice as provided in section 60-109, Idaho Code.
(5) Comment and input on the proposed commercial solid waste facility may be presented orally or in writing at the public hearing, and shall continue to be accepted in writing by the panel for thirty (30) days after the public hearing date. The public hearing shall be held in the same county as the proposed site. If the proposed site is adjacent to a city or populated area in a neighboring county, it is recommended that public hearings also be held in the neighboring county.
(6) The panel shall consider, but not be limited to, the following:
(a) The risk of the spread of disease or impact upon public health from improper treatment, storage, or incineration methods;
(b) The impact on local units of government where the proposed commercial solid waste facility is to be located in terms of health, safety, cost and consistency with local planning and existing development. The panel shall also consider city and county ordinances, permits or other requirements and their potential relationship to the proposed commercial solid waste facility;
(c) The nature of the probable environmental and public health impact;
(d) The financial capability of the applicant to construct, operate and close the commercial solid waste facility.
(7) The panel shall consider the concerns and objections submitted by the public. The panel shall facilitate efforts to provide that the concerns and objections are mitigated by proposing additional conditions regarding the construction of the commercial solid waste facility. The panel may propose conditions which integrate the provisions of the city or county ordinances, permits or requirements.
(8) Within one hundred eighty (180) days after creation, the panel shall recommend to the director that the license be issued, issued with conditions, or rejected. The director shall act on a license application within sixty (60) days after receipt of the panel’s recommendation. If the panel recommends conditions, a clear statement of the need for a condition must be submitted to the director. If the panel recommends rejection, a clear statement of the reasons for the denial must be submitted to the director.
(9) The director shall issue, issue with conditions or reject a siting license only as recommended by the siting panel. The director may reconvene a siting panel and request reconsideration of its original recommendation prior to the director’s final action.
(10) An applicant or any person aggrieved by a decision of the director pursuant to this chapter may within sixty (60) days of the director’s decision, and, after all remedies have been exhausted under the provisions of this chapter, seek judicial review under the procedures provided in chapter 52, title 67, Idaho Code, and may also seek de novo judicial review.
[39-7408D, added 1996, ch. 419, sec. 2, p. 1396; am. 2000, ch. 469, sec. 102, p. 1555.]
(1) An applicant may submit a combined application for a CWF pursuant to the provisions of this chapter.
(2) A single notice of approval for a CWF shall be issued by the director pursuant to the provisions of this chapter.
(3) The review and approval process shall be administered in accordance with the provisions of this chapter and rules promulgated pursuant thereto that are applicable to the applicant’s CWF design and operations.
(4) Co-located waste facilities shall be subject to the annual inspection fee assessed on municipal solid waste landfills and shall be subject to tonnage fees in an amount equal to the waste that is disposed in the municipal solid waste landfill portion of the co-located facility.
[39-7409, added 2026, ch. 7, sec. 13, p. 36.]
(1) These standards apply to new MSWLF units and lateral expansions of existing facilities as provided in 40 CFR 258.40.
(2) An application shall indicate the liner design that will be used in each phase of construction. All MSWLF units shall use one (1) or more of the following designs, in combination or alone:
(a) A composite liner design, as provided under 40 CFR 258.40(b) that includes a leachate collection system as provided under 40 CFR 258.40(a)(2);
(b) A site-specific alternate liner design based upon environmental performance, as allowed under 40 CFR 258.40(a)(1), which will ensure that the concentration values listed in table 1, 40 CFR 258.40, or as amended, will not be exceeded in the uppermost aquifer at the relevant point of compliance. This design shall demonstrate consideration of site specific factors as provided in 40 CFR 258.40(c) and shall include a leachate collection system as provided under 40 CFR 258.40(a)(2);
(c) A site-specific arid design based upon environmental performance, as allowed under 40 CFR 258.40(a)(1) which will ensure that the concentration values listed in table 1, 40 CFR 258.40, or as amended, will not be exceeded in the uppermost aquifer at the relevant point of compliance. This design shall use both field collected data and predictions that maximize contaminant migration for demonstrating no potential for migration. This design only applies if:
(i) Solid waste is deposited no less than fifty (50) feet above the seasonal high level of ground water in the uppermost aquifer;
(ii) The geologic formation beneath the site and above the uppermost aquifer must have capillary capacities greater than the projected maximum volume of leachate generated during the active life of the MSWLF unit;
(iii) No potential for migration is demonstrated; and
(iv) The location has less than twenty-five (25) inches of precipitation annually, net evaporative losses greater than thirty (30) inches annually, and a holding capacity in native soils greater than annual absorbance.
(3) For each MSWLF unit, the relevant point of compliance shall be set by a qualified professional by criteria contained in 40 CFR 258.40(d), subject to approval by the director.
(4) Leachate discharge shall comply with permitted discharge requirements under the federal clean water act (PL 95-217) and federal storm water discharge regulations (40 CFR part 122).
[(39-7410) 39-7409, added 1992, ch. 331, sec. 1, p. 986; am. and redesig. 1993, ch. 139, sec. 11, p. 356; am. 1994, ch. 75, sec. 6, p. 167; am. 1997, ch. 11, sec. 1, p. 11; am. and redesig. 2026, ch. 7, sec. 14, p. 36.]
(1) This section applies to MSWLF units except:
(a) When the MSWLF unit meets the conditions for exemption provided for in 40 CFR 258.1(f); provided that the director may, at his discretion, require monitoring of a MSWLF unit which meets the conditions for exemption in 40 CFR 258.1(f), if necessary to protect ground water resources. If the director does require ground water monitoring of such MSWLF unit, a method other than the ground water monitoring wells required in this section and in 40 CFR 258.51 through 258.55 may be used to detect a release of contamination from the unit; or
(b) When suspended upon demonstration, in accordance with 40 CFR 258.50, that there is no potential for migration of hazardous constituents from the MSWLF unit to the uppermost aquifer during the active life of the unit and the post-closure care periods when certified by a qualified professional and approved by the director.
(2) All ground water monitoring programs shall be conducted in a manner consistent with the guidance of relevant portions of appendix F per the "Federal Register" of October 9, 1991, or the solid waste disposal technical manual published by the United States environmental protection agency in November 1993 and revised in April 1998. The schedule for compliance as provided by 40 CFR 258.50 shall apply unless an alternative schedule is approved by the director.
(a) A ground water monitoring system must be installed that consists of a sufficient number of wells, installed at appropriate locations and depths, to conform with the requirements of 40 CFR 258.51(a) and (d).
(b) A multiunit ground water monitoring system may be constructed instead of separate ground water monitoring systems for each MSWLF unit as provided in 40 CFR 258.51(b).
(c) Monitoring wells must be cased in a manner that maintains the integrity of the monitoring well bore hole as provided in 40 CFR 258.51(c). Wells must be constructed in such a manner as to prevent contamination of the samples, the sampled strata, and between aquifers and water bearing strata, and in accordance with Idaho department of water resources, well construction standards and the monitoring well standards of the national ground water association.
(3) For each MSWLF unit, the relevant point of compliance shall be set as a function of site and monitoring program design subject to the approval of the director. The relevant point of compliance for purposes of MSWLF unit design, well location, and corrective action shall be:
(a) Located within the flow pathway(s) predicted from the results of the hydrogeologic investigation;
(b) No more than one hundred fifty (150) meters downgradient from the waste management unit boundary;
(c) On contiguous property owned, or otherwise subject to possessory rights by the MSWLF owner;
(d) Identified by the qualified professional on all reports and documents pertaining to analysis of ground water protection measures; and
(e) Determined in consideration of factors provided in 40 CFR 258.40(d).
(4) The ground water monitoring system must include sampling and analysis procedures consistent with 40 CFR 258.53.
(a) Monitoring wells shall be tested for the constituents listed in 40 CFR 258, appendix I, plus temperature, unless otherwise authorized by the director as provided in 40 CFR 258.54.
(b) Background values shall be based on an independent sample from each well sampled at three (3) month intervals in a one (1) year period.
(5) Detection monitoring is required throughout the active life and post-closure care period at MSWLF units as provided in 40 CFR 258.54 at all ground water monitoring wells as defined in 40 CFR 258.51(a)(1) and (a)(2) for constituents listed in 40 CFR 258, appendix I.
(a) Each well shall be monitored on a semiannual basis after background characterization. Alternative constituents and sampling frequency may be approved by the director based upon considerations as defined in 40 CFR 258.54 (a)(2) and (b). Requests for alternative constituents or frequency shall be based on a report certified by a qualified professional.
(b) Each ground water sample event must include a determination of the ground water surface elevation, flow direction, and rate.
[(39-7411) 39-7410, added 1993, ch. 139, sec. 12, p. 358; am. and redesig. 2026, ch. 7, sec. 15, p. 37.]
(1) Design of a MSWLF unit shall not be reviewed until site certification has been obtained. After obtaining site certification, an applicant shall produce design plans and specifications which comply with the design standards set forth in this chapter. The responsibility for complying with said standards shall rest solely with the applicant.
(2) The applicant shall conduct a preliminary investigation. In so doing, the applicant shall conduct aerial and cadastral surveys and perform other relevant studies to demonstrate compliance with this chapter and rules promulgated pursuant thereto.
(3) After completing the preliminary investigation, the applicant shall submit findings and a preliminary design plan to the director for review and approval pursuant to this chapter. The preliminary design plan shall include:
(a) A hydrogeologic report;
(b) Climatic data;
(c) Location restrictions;
(d) A preliminary ground water monitoring plan;
(e) A preliminary schematic design of environmental monitoring systems;
(f) A preliminary schematic design of the facility; and
(g) Such other information as is relevant or necessary to demonstrate compliance with the provisions of this chapter and rules promulgated pursuant thereto and to provide for meaningful comment by the public and the department.
(4) Upon approval of the preliminary design by the director, the applicant shall submit a final design report to the director for review and approval pursuant to this chapter.
(a) The final design report shall include:
(i) A site-specific analysis of hydrogeologic conditions;
(ii) Location restrictions;
(iii) Factors relevant to long-term site integrity;
(iv) A ground water monitoring program;
(v) Facility design and specifications; and
(vi) Such other information as is relevant or necessary to demonstrate compliance with the provisions of this chapter and rules promulgated pursuant thereto.
(b) The submittal shall be prepared and stamped by a qualified professional in a manner consistent with sound professional practices.
(5) Expansion of the site, facility, or operations, including adding a CWF, or addition of activities not included in the approved preliminary design shall require the applicant to submit an application to update the preliminary design with the department for review and approval. The review and approval process for such applications shall depend on whether the proposed action is considered to be a major or minor modification.
[(39-7412) 39-7411, added 1992, ch. 331, sec. 1, p. 985; am. and redesig. 1993, ch. 139, sec. 13, p. 360; am. and redesig. 2026, ch. 7, sec. 16, p. 38.]
Owners or operators of all MSWLF units shall:
(1) Obtain site certification, design approval, and operating plan approval prior to accepting waste;
(2) Implement a program for detecting and preventing disposal of regulated hazardous wastes as provided in 40 CFR 258.20;
(3) Provide for daily cover as provided in 40 CFR 258.21. Alternative materials or cover frequency other than daily cover may be used only as specified by the MSWLF plan of operation;
(4) Provide disease vector control as provided in 40 CFR 258.22;
(5) Implement a program of routine methane monitoring and control as provided in 40 CFR 258.23;
(6) Ensure that MSWLF units do not violate any ambient air quality standard or emission standard from any emission of landfill gases, combustion or any other emission associated with a MSWLF unit as provided in 40 CFR 258.24;
(7) Provide and control access as provided in 40 CFR 258.25;
(8) Design, construct, and maintain run-on and run-off control systems as provided in 40 CFR 258.26 to:
(a) Prevent all the run-on of surface waters and other liquids resulting from a maximum flow of a twenty-five (25) year storm, or snowmelt into the active portion of the MSWLF unit;
(b) Control the collection of the run-off of surface waters and other liquids resulting from a twenty-four (24) hour, twenty-five (25) year storm, or snowmelt, whichever is greater, from the active portion and the closed portions of a MSWLF unit; and
(c) Prevent the discharge of pollutants into waters of the United States and the state of Idaho as defined in 40 CFR 258.27;
(9) Prohibit the disposal of noncontainerized liquids or sludges containing free liquids in MSWLF units except as provided in 40 CFR 258.28;
(10) Establish an operating and recordkeeping procedure as provided in 40 CFR 258.29;
(11) Comply with operating procedures established by the board for implementation by the department, which are intended to ensure operations protect the public health and maintain the integrity of the landfill design; and
(12) For MSWLF units that dispose of more than twenty (20) tons per day of municipal solid waste based on an annual average:
(a) Monitor daily precipitation, air temperature, and wind speed and direction through on-site facilities or a designated local weather station; and
(b) Weigh all incoming waste or provide an equivalent method of measuring waste tonnage capable of estimating total annual solid waste tonnage.
[(39-7413) 39-7412, added 1992, ch. 331, sec. 1, p. 986; am. and redesig. 1993, ch. 139, sec. 14, p. 361; am. 1994, ch. 75, sec. 7, p. 169; am. and redesig. 2026, ch. 7, sec. 17, p. 41.]
(1) Prior to operation of a MSWLF unit, an operations plan shall be submitted to the department. It shall be the responsibility of each applicant of a MSWLF unit to certify to the department that the operations plan complies with this chapter and rules promulgated pursuant thereto. No solid waste disposal facility shall accept waste without a current operating certificate from the department.
(2) An applicant shall provide information in the operations plan in sufficient detail to show compliance with this chapter and rules promulgated pursuant thereto.
(3) Proposed alternative operating criteria may be included in the operations plan for review and approval by the director pursuant to this chapter. Alternative operating criteria may also be approved by submitting an application to amend the operations plan with the department. The review and approval process for such applications shall depend on whether the proposed operating criteria is considered to be a major or minor modification.
(4) Expansion of the site, facility, or operations, including adding a CWF, or addition of activities not included in the approved operations plan shall require the applicant to submit an application to amend the operations plan with the department. The review and approval process for such applications shall depend on whether the proposed operating criteria is considered to be a major or minor modification.
(5) Operations plans shall be recertified every five (5) years, at a minimum, pursuant to this chapter.
(6) The review and approval process for a new operations plan, an amendment thereto, or recertification thereof shall be conducted pursuant to this chapter.
[(39-7414) 39-7413, added 1993, ch. 139, sec. 15, p. 362; am. and redesig. 2026, ch. 7, sec. 18, p. 42.]
(1) These standards apply whenever a statistically significant increase over background has been detected for one (1) or more constituents listed in 40 CFR 258, appendix I or an alternative list approved in accordance with 40 CFR 258.54(a)(2).
(2) Assessment monitoring programs shall be performed in accordance with 40 CFR 258.55.
(3) Assessment of corrective measures shall be performed in accordance with 40 CFR 258.56. Pursuant to 40 CFR 258.56, the owner or operator shall discuss the results of the corrective measures assessment, prior to the selection of a remedy, in a public meeting with interested and affected persons.
(4) Selection of a remedy shall be performed in accordance with 40 CFR 258.57.
(5) Implementation of a corrective action program shall be performed in accordance with 40 CFR 258.58.
[(39-7415) 39-7414, added 1992, ch. 331, sec. 1, p. 988; am. 1993, ch. 139, sec. 16, p. 362; am. 1994, ch. 75, sec. 8, p. 169; am. 2010, ch. 99, sec. 2, p. 191; am. and redesig. 2026, ch. 7, sec. 19, p. 43.]
(1) These standards apply to all MSWLF units that receive wastes on or after October 9, 1993, except as provided by 40 CFR 258. MSWLF units that accept waste after October 9, 1991, but cease to accept waste prior to October 9, 1993, shall, at a minimum, comply with subsections (2)(a) and (3) of this section in addition to the "sanitary landfill closure guidance" criteria as adopted by the technical guidance committee on June 8, 1990.
(2) Owners or operators of MSWLF units shall install one (1) of the following final cover systems:
(a) A cover as provided in 40 CFR 258.60(a) or (b); or
(b) A cover that has a fine-grained cover material with intrinsic permeability no greater than 1 X 10-3 cm/sec and a minimum thickness of twenty-four (24) inches and:
(i) There is a capillary holding capacity greater than the projected maximum accumulated volume of water as determined by utilization of accepted water balance methodology based on local or regional twenty-five (25) year climatic records;
(ii) Annual precipitation is less than twenty-five (25) inches with net evaporative losses greater than thirty (30) inches annually;
(iii) The top six (6) inches of the cover shall be capable of sustaining shallow rooted native plant growth; and
(iv) The design demonstrates consideration of site specific factors as provided in 40 CFR 258.60(b).
(3) The final grade of slopes shall be greater than two percent (2%) unless otherwise supported by the post-closure plan and uses approved by the department, and the grade of side slopes not more than thirty-three percent (33%).
(4) Closure plan preparation, placement in operating record, notice of intent to close, time requirements for commencement and completion of closure activities, certification, recordation of an environmental covenant, and removal of an environmental covenant shall be conducted as provided in 40 CFR 258.60(c) through (j), inclusive. The recordation and removal of an environmental covenant shall comply with the uniform environmental covenants act, chapter 30, title 55, Idaho Code.
(5) After completion and certification of an MSWLF closure, the owner or operator shall record an environmental covenant, pursuant to the uniform environmental covenants act, chapter 30, title 55, Idaho Code, on the property where the MSWLF is located, and its future use may be restricted in accordance with a post-closure care plan. A copy of the environmental covenant shall be sent to the department after recording with the county clerk.
(6) The review and approval process for a closure plan shall be conducted pursuant to this chapter.
(7) The owner or operator of an MSWLF that is closing shall cause notice of closure to be published in a newspaper of general circulation in the county and in the immediate vicinity of the facility and shall post notice of closure signs at the facility’s entrance. The notice shall be published and posted:
(a) Between thirty (30) and ninety (90) days before the date of last receipt of waste for a facility that has reached disposal capacity; or
(b) Between thirty (30) and ninety (90) days before the closure, if the facility has remaining capacity and there is a reasonable likelihood that the facility will receive additional waste.
[(39-7416) 39-7415, added 1992, ch. 331, sec. 1, p. 989; am. 1993, ch. 139, sec. 17, p. 363; am. 1994, ch. 75, sec. 9, p. 170; am. and redesig. 2026, ch. 7, sec. 20, p. 43.]
(1) Post-closure maintenance standards apply to all MSWLF units that receive wastes on or after October 9, 1993, except as provided by 40 CFR 258.1.
(2) Post-closure care shall be conducted as provided in 40 CFR 258.61.
(3) The review and approval process for a post-closure care plan shall be conducted pursuant to this chapter.
[(39-7417) 39-7416, added 1992, ch. 331, sec. 1, p. 989; am. 1993, ch. 139, sec. 18, p. 363; am. 1994, ch. 75, sec. 10, p. 170; am. and redesig. 2026, ch. 7, sec. 21, p. 44.]
(1) These requirements shall apply to new MSWLF units, existing MSWLF units, and lateral expansions, except as exempted in 40 CFR 258.1(d) and 258.70(a).
(2) The requirements of this section are effective April 9, 1995, except for MSWLF units meeting the conditions of 40 CFR 258.1(f)(1), in which case the effective date is October 9, 1995, or at such later date upon subsequent amendment of 40 CFR 258.70 through 258.74.
(3) All MSWLF units shall be underwritten by financial assurance provisions as provided by the following:
(a) Closure as provided in 40 CFR 258.71;
(b) Post-closure care as provided in 40 CFR 258.72; and
(c) Corrective action as provided in 40 CFR 258.73.
(4) The financial assurance mechanisms provided for MSWLF units shall include any mechanism or a combination of mechanisms meeting the criteria of 40 CFR 258.74.
(5) Counties may use available borrowing capability through registered warrants for a prearranged amount and preapproved by a lending institution as a financial mechanism to assure assessment monitoring and corrective action needs.
(6) Subdivisions of the state may use any method provided by law to meet the requirements of this section.
(7) MSWLF units owned or operated by subdivisions of the state that qualify under 40 CFR 258.74(f) may include any mechanism allowed to them upon adoption and publication.
(8) Financial assurance funds for MSWLF units not located on federal or state lands shall be deposited in a county trust fund in the county in which the MSWLF unit is located. The county shall act as the trustee for the trust funds, and as named coprincipal for surety bonds, letters of credit, and insurance. As trustee, the county may require an independent audit of the adequacy of the financial assurance but shall not become liable for financial assurance except in the case of default as otherwise defined by federal and state law.
(9) The review and approval process for a financial assurance plan shall be conducted pursuant to this chapter.
[(39-7418) 39-7417, added 1992, ch. 331, sec. 1, p. 990; am. 1993, ch. 139, sec. 19, p. 364; am. and redesig. 2026, ch. 7, sec. 22, p. 45.]
(1) The following modifications to approved sites shall be considered major modifications:
(a) Lateral expansion;
(b) Unpredictable change affecting any environmental monitoring program;
(c) Change of liner design, if not equivalent to the approved preliminary design’s liner design;
(d) A modification of the design or operation due to initiation of corrective action and remediation; or
(e) Any change to operation or design that, as determined by a qualified professional and affirmed by the director, may appear to result in an increased risk to human health or the environment.
(2) The following modifications shall be considered minor modifications:
(a) Waste processing methodologies;
(b) Installation or decommissioning of landfill gas extraction or ground water monitoring wells;
(c) Alternative daily cover practices;
(d) Solid waste diversion programs; or
(e) Other actions or modifications that, as determined by a qualified professional and affirmed by the director, will not result in an increased risk to human health or the environment.
(3) The director may further define the scope of subsections (1) and (2) of this section by rule or other official policy document.
(4) The owner or operator of a facility shall apply to and obtain approval from the director prior to implementing a major or minor modification.
(5)(a) An applicant may request, in writing, that the director provide a preliminary determination on whether a modification is major or minor. Such preliminary determination shall not prohibit the director from making a different determination after reviewing a formal major or minor modification application.
(b) The director shall provide a preliminary decision within fourteen (14) days of receiving the request if the request is submitted with a summary of the proposed changes. If no such summary is provided, the director shall provide a preliminary decision within twenty-eight (28) days of receiving the request.
(6) The review and approval process for a major or minor modification application shall be conducted pursuant to this chapter.
(a) Notice of a rejected minor modification application shall be sent with empirical evidence that the modification will increase the risk to human health or the environment.
(b) An applicant may appeal any rejection or condition of modification pursuant to the procedures provided in this chapter.
(7) Approved and implemented major and minor modifications shall be accounted for in the operations plan when the plan is submitted for recertification. Such modifications may be accounted for prior to recertification by submitting an operations plan amendment with the director for review and approval pursuant to this chapter.
[(39-7419) 39-7418, added 1992, ch. 331, sec. 1, p. 990; am. 1993, ch. 139, sec. 20, p. 364; am. and redesig. 2026, ch. 7, sec. 23, p. 45.]
(1) A prospective applicant may request to meet with the department to discuss applicable standards, schedules, processes, potential concerns, and other information relevant to submitting an application pursuant to the provisions of this chapter.
(2)(a) Wherever technical evaluation of relevant information is required during the application process, a qualified professional, as appropriate, shall certify compliance with the applicable standards.
(b) The director shall accept certification by a qualified professional that standards have been met upon presentation of the professional’s certification of compliance and presentation of a written explanation of operational practices that will be undertaken to meet applicable standards.
(3) Failure of the department or director to adhere to the statutory deadlines provided for in this chapter shall constitute:
(a) Notice that an application is determined to be complete; or
(b) Approval of an application.
(4) At any time in the review or reconciliation process, the applicant and director may agree, in writing, to:
(a) Extend any of the statutory time frames provided for in this chapter; or
(b) Enter into mediation or arbitration.
(5) Upon receipt of notice of approval, the applicant shall cause notice to be published pursuant to this chapter, informing the public of such approval.
[39-7420, added 2026, ch. 7, sec. 24, p. 46.]
(1) The process set forth in this section applies to the following applications:
(a) Site certifications;
(b) Preliminary designs;
(c) New operations plans;
(d) Major modifications; and
(e) Research, development, and demonstration permits and permit renewals.
(2) Within fourteen (14) days of receiving an application, the department shall notify the applicant, in writing, that the application is complete or incomplete.
(a) If the application is deemed incomplete by the department, the notice shall:
(i) Explain the application’s deficiencies;
(ii) Identify applicable standards, requirements, and other information relied on by the department in determining that the application is incomplete;
(iii) Inform the applicant that the application can be resubmitted pursuant to this section; and
(iv) State that the applicant may request a meeting with the department to review the application, its deficiencies, and solutions thereto.
(b) Incomplete applications can be resubmitted within one (1) year of the date on the department’s notice. The resubmitted application shall address all deficiencies identified in the notice. The department shall have fourteen (14) days to review the resubmitted application. If the department determines that deficiencies remain, the department shall notify the applicant, in writing, that the application has been rejected and shall include in such notice an explanation of the deficiencies and information relied on in making such determination.
(3)(a) Upon receipt of the department’s determination that an application is complete, the applicant shall:
(i) Cause notice to be published in a newspaper of general circulation in the county where the facility is located, or proposed to be located, once a week for two (2) consecutive weeks;
(ii) Cause notice to be posted in the immediate vicinity of the facility or proposed facility during the publication and public comment period;
(iii) Provide written notice to the county in which the facility or proposed facility is located; and
(iv) Provide a copy of such notices to the department within five (5) business days of the second publication.
(b) The notice shall include:
(i) The name and location of the facility or proposed facility;
(ii) A general description of the proposed operations or modifications;
(iii) The place where the application may be reviewed; and
(iv) Instructions directing the public to submit comments to the department within thirty-five (35) days of the date of the second publication.
(4) Within fourteen (14) days of the end of the public comment period, the department shall provide the applicant with all of the public comments received by the department and may provide comments of its own. The applicant may provide the department with a response to the comments within twenty-one (21) days of receiving the comments from the department.
(5) Within seventy (70) days of the end of the public comment period, the director shall notify the applicant, in writing, that the application has been accepted or rejected.
(a) When reviewing an application, the director shall:
(i) Consider all of the comments received, including the department’s and the applicant’s, if provided; and
(ii) Defer to the opinion of the applicant’s qualified professionals, unless there is reliable empirical evidence that the affirmations in the application are erroneous.
(b) An application shall be approved if the director determines that all applicable standards, requirements, and criteria of applicable law, rules, and regulations have been satisfied.
(c) A rejected application shall be accompanied by written findings that thoroughly explain the reason for rejecting the application and provide the rationale, evidence, applicable standards, requirements, and information relied on by the director in rejecting the application.
[39-7421, added 2026, ch. 7, sec. 25, p. 47.]
(1) The process set forth in this section applies to the following applications:
(a) Final design reports;
(b) Ground water monitoring plans;
(c) Operations plan recertifications or amendments;
(d) Closure plans;
(e) Post-closure care plans;
(f) Financial assurance plans; and
(g) Minor modifications.
(2) Within fourteen (14) days of receiving an application, the department shall notify the applicant, in writing, that the application is complete or incomplete.
(a) If the application is deemed incomplete by the department, the notice shall:
(i) Explain the application’s deficiencies;
(ii) Identify applicable standards, requirements, and other information relied on by the department in determining that the application is incomplete;
(iii) Inform the applicant that the application can be resubmitted pursuant to this section; and
(iv) State that the applicant may request a meeting with the department to review the application, its deficiencies, and solutions thereto.
(b) Incomplete applications can be resubmitted within six (6) months of the date on the department’s notice. The resubmitted application shall address all deficiencies identified in the notice. The department shall have fourteen (14) days to review the resubmitted application. If the department determines that deficiencies remain, the department shall notify the applicant, in writing, that the application has been rejected and shall include in such notice an explanation of the deficiencies and information relied on in making such determination.
(3) Within thirty-five (35) days of the date on the notice of a complete application, the director shall notify the applicant, in writing, that the application has been accepted or rejected.
(a) When reviewing an application, the director shall defer to the opinion of the applicant’s qualified professionals, unless there is reliable empirical evidence that the affirmations in the application are erroneous.
(b) An application shall be approved if the director determines that all applicable standards, requirements, and criteria of applicable local, state, and federal law, rules, and regulations have been satisfied.
(c) A rejected application shall be accompanied by written findings that thoroughly explain the reason for rejecting the application and provide the rationale, evidence, applicable standards, requirements, and information relied on by the director in rejecting the application.
[39-7422, added 2026, ch. 7, sec. 26, p. 48.]
(1) Upon notice of application rejection, an automatic twenty-one (21) day stay of proceedings shall commence, unless such stay is waived by the applicant in writing.
(2) If, at any point during the stay, the director determines that a reconciled application satisfies all of the applicable standards, requirements, and criteria of applicable local, state, and federal law, rules, and regulations, the director shall issue a notice of approval.
(3) Upon waiver or expiration of the stay:
(a) The director shall provide the applicant with a written notice that:
(i) Informs the applicant that the application remains rejected;
(ii) Includes a revised explanation of the rationale and basis for rejection; and
(iii) Informs the applicant that the applicant is entitled to judicial review pursuant to this section and chapter 52, title 67, Idaho Code; and
(b) The applicant, the department, and affected persons are entitled to judicial review pursuant to chapter 52, title 67, Idaho Code. If judicial review is sought by the applicant or director, the parties shall stipulate to accelerated judicial review pursuant to court approval when the ordinary review period provided in chapter 52, title 67, Idaho Code, may reasonably result in substantial increased costs to the applicant, potential violations of federal or state environmental laws, or threats to public health and the environment.
[39-7423, added 2026, ch. 7, sec. 27, p. 49.]
(1) In order to facilitate the department assuming the responsibility for the activities formerly the responsibility of the various public health districts, it is necessary to impose a system of fees upon each municipal solid waste disposal facility or site authorized pursuant to this chapter, or other disposal facility authorized by the director, to support the additional regulatory responsibilities of the department. Costs and expenses incurred by the department in performing the duties provided for in this chapter that were formerly the responsibility of the various public health districts shall be paid out of the solid waste regulatory fund created in this chapter. The fees imposed pursuant to this section shall apply to all solid waste disposed of in an MSWLF located within this state, whether disposal remains in state or is exported out of state, and regardless of whether such waste is subsequently mined or otherwise recovered for items of value.
(2) Each facility subject to regulation pursuant to this chapter shall pay an annual inspection fee.
(a) MSWLFs shall pay an annual inspection fee of four thousand dollars ($4,000).
(b) All other solid waste facilities shall pay an annual inspection fee in an amount to be established by the director.
(3) In addition to the annual inspection fee, a tonnage fee of seven cents ($0.07) per ton of solid waste shall be imposed. The tonnage fee shall be assessed only on:
(a) Solid waste disposed of at an MSWLF in the state of Idaho; and
(b) Solid waste accepted at a transfer station and transported for disposal at an MSWLF located outside the state of Idaho.
(4) Applicants shall pay an application fee in an amount to be established by the director at the time of submitting an application to the department. Application fees are intended to promote accountability by ensuring complete and accurate submittal and not to cover the full costs incurred by the department when carrying out its duties during application review and administration.
(5) The legislature shall reevaluate the sufficiency of this section’s fee amounts in the 2030 legislative session and shall adjust the fees accordingly, if necessary.
[39-7424, added 2026, ch. 7, sec. 28, p. 49.]
(1) The annual inspection fee shall be due and payable on or before October 31 of each year. The department may adopt rules for pro-rating the annual inspection fee for new or closed facilities.
(2) The tonnage fees shall be due and payable in monthly installments by the owner, operator, or designated employee or agent of such disposal facility or site.
(a) On or before the thirtieth day following the end of each monthly period in which the fee imposed pursuant to this chapter accrued, the owner, operator, or designated employee or agent shall file a return with the department on such forms as the department may require. The return shall be signed and shall include:
(i) The quantity of waste in tons for facilities with scales;
(ii) The quantity of waste in tons, using five hundred (500) pounds per cubic yard, for facilities exempt from having scales;
(iii) The amount of the fee for which the owner or operator is liable for the preceding monthly period; and
(iv) The remittance for such amount in such form required by the department.
(b) The department may relieve any person from the obligation of filing monthly returns and may instead require the return to cover other reporting periods, but in no event shall returns be filed for a period greater than three (3) months.
[39-7425, added 2026, ch. 7, sec. 29, p. 50.]
(1) There is hereby created and established in the state treasury the solid waste regulatory fund.
(2) The fund shall consist of revenues from the fees imposed by this chapter, together with any penalties, interest, or deficiency moneys collected by the department pursuant to the provisions of this chapter, and such other moneys that may be provided by legislative appropriation.
(3) Moneys in the fund and all interest earned thereon shall be kept in the solid waste regulatory fund and shall be expended by the department for the technical, legal, inspection, and administrative support necessary for implementing this chapter and rules promulgated to meet requirements of this chapter and applicable federal regulations.
[39-7426, added 2026, ch. 7, sec. 30, p. 50.]
(1) All MSWLF units shall be subject to routine inspection by the owner and director in accordance with relevant provisions of the Idaho Code.
(2)(a) Facilities subject to the imposition of the fees provided for in this chapter shall keep complete and accurate records, including certified scale or volume data as identified in this chapter, itemized invoices, shipping papers, and manifests for all types and quantities of solid waste subject to the fees imposed by this chapter.
(b) All books, documents, papers, electronic records, and other information required to be kept by this section shall be preserved for a period of at least five (5) years from the date of the record or the date of the entries appearing therein, unless the department, in writing, authorizes their destruction or disposal at an earlier date.
(3) An authorized agent or employee of the department may enter any facility or site subject to the provisions of this chapter during normal business hours and inspect the premises and records required to be kept pursuant to this section to determine whether the facility or site is in compliance with provisions of this chapter and rules promulgated to meet requirements of this chapter and applicable federal law and regulations.
(4) Every three (3) to five (5) years, the owner and director shall jointly conduct a comprehensive inspection of the facility and review of the designs and plans to evaluate compliance with the applicable laws and regulations, identify areas of improvement, and provide technical guidance. A record of the review shall be kept at the facility and by the director.
(5) The director shall inspect ground water monitoring reports and financial assurance documentation annually.
[(39-7427) 39-7419, added 1992, ch. 331, sec. 1, p. 990; am. 1993, ch. 139, sec. 20, p. 364; am. and redesig. 2026, ch. 7, sec. 31, p. 51.]
The additions, penalties, and requirements provided by the Idaho income tax act, sections 63-3046, 63-3075, 63-3076, and 63-3077, Idaho Code, shall apply in the same manner and to the same extent to this chapter as to the Idaho income tax act and shall cover such additions, penalties, and requirements and shall, for this purpose, be described and be for acts, omissions, delinquencies, and requirements provided in this chapter.
[39-7428, added 2026, ch. 7, sec. 32, p. 52.]
(1) Failure to comply with the requirements established in this chapter, requirements of rules established pursuant to this chapter, and reasonable conditions of approval granted pursuant to this chapter shall be unlawful. Particularly with respect to siting and operation of a municipal solid waste landfill to satisfy the requirements of chapter 44, title 31, Idaho Code, enforcement should focus on remediation of deficiencies, rather than punishment. Penalties should be imposed where practices show disregard for protection of human health, safety, and the environment.
(2) Each public agency with responsibility for enforcement of requirements established in this chapter may inspect, monitor, and employ such methods of enforcement as they may be empowered to use by statute or local ordinance.
(3) The director shall apply the provisions of section 39-108, Idaho Code, to ensure compliance.
(4) The collection and enforcement procedures available to the Idaho state tax commission provided by the Idaho income tax act, sections 63-3030A, 63-3038, 63-3039, 63-3040, 63-3042 through 63-3045A, 63-3047 through 63-3065A, 63-3068, 63-3071, 63-3072, 63-3073, and 63-3078, Idaho Code, shall apply and be available to the department for the enforcement of the solid waste disposal fees and for the assessment and collection of any amounts due thereunder. Said sections shall, for the aforementioned purposes, be considered part of this chapter and wherever liens or any other proceedings are defined as income tax liens or proceedings, they shall, when applied under this chapter, be described as solid waste disposal fee liens and proceedings.
(5) The director may employ the use of negotiated compliance agreements, in addition to civil legal remedies and misdemeanor criminal penalties otherwise authorized, in order to obtain compliance.
(6) Where more than one (1) public entity undertakes enforcement efforts to obtain compliance with the provisions of this chapter, enforcement efforts should be coordinated to the greatest extent possible to minimize conflict among requirements and costs of compliance.
(7) A private right of action on behalf of any person who has been injured or damaged by any approval authorized in this chapter or violation of the terms of any approval or regulation authorized in this chapter may be maintained in accordance with the provisions of this chapter and of chapter 52, title 67, Idaho Code, as applicable.
(8) The department may be made a party in any action at law or in equity related to this chapter by any person aggrieved by the unlawful seizure or sale of his property, or in any suit for refund or to recover an overpayment, but only the state of Idaho shall be responsible for any final judgment secured against the department, and said judgment shall be paid or satisfied out of the general fund of the state.
[(39-7429) 39-7420, added 1992, ch. 331, sec. 1, p. 990; am. 1993, ch. 139, sec. 21, p. 365; am. and redesig. 2026, ch. 7, sec. 33, p. 52.]
(1) The provisions of 42 U.S.C. 6945(c)(1)(B) and 40 CFR 258 allow the administrator of the United States environmental protection agency to approve state research, development, and demonstration permit programs.
(2) The director shall initiate the process outlined in 40 CFR 239 by which the state may receive authorization to issue research, development, and demonstration (RDD) permits in compliance with 40 CFR 258.4 at such time as:
(a) The department receives a request from any individual who expresses an intent to apply for an RDD permit; and
(b) The department and requesting individual enter into a written agreement in which the requesting individual agrees to reimburse the department for the reasonable and necessary cost to make such application.
(3) Upon receipt of state authorization to issue such permits, the director may issue an RDD permit for a new MSWLF unit, existing MSWLF unit, or lateral expansion for which the owner or operator proposes to utilize innovative and new methods which vary from either or both of the following criteria:
(a) The run-on control systems required by this chapter; and
(b) The liquid restrictions pursuant to this chapter.
(4) Any permit issued under subsection (3) of this section shall include the following terms and conditions:
(a) The MSWLF unit shall have a leachate collection system designed and constructed to maintain less than a thirty (30) centimeter depth of leachate on the liner;
(b) Any liquids to be recirculated, injected or otherwise placed in the MSWLF unit shall be appropriate for the purposes of determining the efficacy and performance capabilities of the technology or process and shall be approved by the director;
(c) The MSWLF unit owner or operator shall install and operate a landfill gas collection and control system in accordance with emission control requirements specified in 40 CFR part 60, and, when collected in economically feasible volumes, landfill gas shall be used for energy generation.
(5) Upon receipt of state authorization to issue such permits, the director may issue an RDD permit for a new MSWLF unit, existing MSWLF unit, or lateral expansion, for which the owner or operator proposes to utilize innovative and new methods which vary from the final cover criteria of 40 CFR 258.60 (a)(1), (a)(2) and (b)(1) provided the landfill owner or operator demonstrates that the infiltration of liquid will not cause contamination of ground water or surface water, or cause leachate depth on the liner to exceed thirty (30) centimeters.
(6) Any permit issued under the provisions of this section shall include terms and conditions at least as protective as the criteria for MSWLFs to assure protection of human health and the environment. Such permits shall:
(a) Provide for the construction and operation of such facilities as necessary, for not longer than three (3) years, unless renewed as provided in subsection (8) of this section;
(b) Provide that the MSWLF unit must receive only those types and quantities of solid waste and nonhazardous wastes which the director deems appropriate for the purposes of determining the efficacy and performance capabilities of the technology or process;
(c) Include such requirements as necessary to protect human health and the environment, including such requirements as necessary for testing and providing information to the director with respect to the operation of the facility;
(d) Require the owner or operator of an MSWLF unit permitted under this section to submit an annual report to the director showing whether and to what extent the site is progressing in attaining project goals. The report shall also include a summary of all monitoring and testing results, as well as any other operating information specified by the director in the permit. Annual reports shall be submitted to the director within three (3) months after the anniversary date of the approved permit or permit renewal; and
(e) Require compliance with all criteria in chapter 74, title 39, Idaho Code, except as permitted under this section.
(7) The director may order an immediate termination of all operations at the facility allowed under this section or other corrective measures at any time the director determines that the overall goals of the project are not being attained including, but not limited to, protection of human health or the environment.
(8) Any permit issued under the provisions of this section shall not exceed three (3) years and each renewal of a permit shall not exceed three (3) years.
(a) The total term for a permit for a project, including renewals, shall not exceed twenty-one (21) years.
(b) During permit renewal, the applicant shall provide a detailed assessment of the project showing the status with respect to achieving project goals, a list of problems and status with respect to problem resolutions, and any other requirements that the director determines necessary for permit renewal.
(c) Owners or operators requesting permit renewal shall submit the permit renewal application to the director at least six (6) months prior to the existing permit’s expiration date.
(9) It shall be unlawful to begin construction to implement or otherwise utilize the exemptions provided in this section without first receiving a permit from the director. Permit applications will be processed in the following manner:
(a) The director shall review the RDD permit application and each subsequent permit renewal in the same manner as the director reviews requests for design approval pursuant to this chapter. An applicant shall provide information in the permit application in sufficient detail to address design, operating, closure, post-closure and financial assurance requirements.
(b) Each permit application and permit renewal application shall require the owner or operator to certify to the director that the information contained in the application is, to the best of his or her knowledge, accurate and true, and the MSWLF unit is in compliance with applicable law.
(10) Permit review and oversight costs incurred by the department shall be reimbursed by the applicant or permittee. Reimbursable review and oversight costs shall include, but are not limited to:
(a) Reasonable costs associated with the director’s review of a permit application submitted pursuant to this section, including department staff time and the cost of goods and services contracted by the department in performance of the activities described in this section;
(b) Reasonable costs associated with the department’s oversight of permitted RDD units, including inspections and the review of annual reports, monitoring, and testing results required pursuant to this section or required by permit, and the processing of permit amendments and terminations; and
(c) All other reasonable and necessary costs of actions taken by the department pursuant to this section.
(11) Reimbursable review and oversight costs incurred by the department, as defined in subsection (10) of this section, shall be reimbursed as follows:
(a) Each permit application submitted to the director pursuant to this section shall be accompanied by a nonrefundable fee of two hundred fifty dollars ($250) and an estimation of reimbursable review and oversight costs the department may incur associated with the review of the permit application and oversight of the permit. Each permit renewal application submitted to the director pursuant to this section shall be accompanied by a nonrefundable fee of one hundred dollars ($100) and an estimation of reimbursable review and oversight costs the department may incur associated with the review and oversight of the permit renewal.
(b) If the department determines that the applicant’s estimation of reimbursable review and oversight costs is accurate, and the submission of such funds will adequately reimburse the department for the cost of all review and oversight activities associated with that permit application or renewal application, the department shall notify the applicant, and the applicant shall submit to the department the full amount, or an installment deposit in the amount required pursuant to this subsection.
(c) If the department determines that the applicant’s estimation of reimbursable review and oversight costs is not accurate, and the submission of such funds will not adequately reimburse the department for the cost of all review and oversight activities associated with that permit application or renewal application, the department shall notify the applicant and the application shall be returned to the applicant.
(d) Upon receipt of funds in the amount estimated by the applicant and concurred to by the department or receipt of an installment deposit in the amount required under this subsection, the director shall initiate permit application review or permit renewal review.
(e) Once the department concurs with an applicant’s estimation of reimbursable review and oversight costs, and the department provides the applicant notice thereof, a permit applicant or permit renewal applicant may submit to the department the reimbursement funds in their entirety or an installment deposit of two thousand five hundred dollars ($2,500). Should funding be required for costs incurred in excess of the initial two thousand five hundred dollar ($2,500) deposit, the department shall notify the applicant of required successive deposits in the amount of two thousand five hundred dollars ($2,500). Any unused portion of the reimbursement funds, deposit, or successive deposit shall be returned to the applicant within sixty (60) days of the director’s final decision to issue or deny a permit or permit renewal pursuant to this section. If the applicant fails to submit a successive deposit, the department shall suspend review of the permit application or renewal application, and the director shall be relieved of any applicable statutory or regulatory permit application or renewal application review deadlines during the review suspension.
(f) The director shall, as a condition of renewal, require renewal applicants to reimburse the department for previously uncaptured reimbursable permit review and oversight costs incurred by the department during the prior permit term.
(g) Upon request, the department shall provide documentation to the applicant to aid in the development of the applicant’s estimation of reimbursable review and oversight costs or to support the department’s claims for such reimbursement.
(h) Funds submitted to the department pursuant to this section shall not be returned if a permit application is terminated, withdrawn, returned, or denied unless the funds, or some portion thereof, have not been used by the department as of the date of the termination, withdrawal, return, or denial.
(12) A permit issued pursuant to this section may be transferred only to a new owner or operator of the permitted MSWLF. The new owner or operator shall submit to the director, in writing, a request for permit transfer. The request shall include a statement that the new owner or operator will comply with all terms and conditions of the permit. Upon transfer of the permit, the new owner or operator shall be responsible for compliance with all terms and conditions of the permit, and shall be subject to enforcement of such terms and conditions.
(13) The following MSWLF units are not eligible for a permit issued pursuant to this section:
(a) MSWLF units operating under an exemption set forth in this chapter.
(b) MSWLF units operating under an exemption set forth in 40 CFR 258.1(f).
(c) MSWLF units that dispose of twenty (20) tons of solid waste per day or less, based on an annual average, are not eligible for a variance from 40 CFR 258.60(b)(1), except in accordance with 40 CFR 258.60(b)(3).
(d) MSWLF units that have exceeded ground water protection standards at statistically significant levels as specified in this chapter, from any waste unit on site and have not implemented a remedy in accordance with this chapter, prior to RDD permit application submittal.
(e) MSWLF units that have landfill gas concentration exceedances, as specified in this chapter, from any waste unit on site and have not implemented a remedy in accordance with this chapter, prior to RDD permit application submittal.
(14) Owners or operators of MSWLF units circulating leachate or gas condensate derived from the MSWLF unit in compliance with this chapter, and 40 CFR 258.28, and not implementing or otherwise utilizing an exemption under this section, are not required to comply with the requirements of this section.
(15) An applicant or permittee may appeal any final decision made by the director under this section by filing a request for hearing in accordance with rules promulgated by the department governing contested cases, or in the absence of such rules, in accordance with the procedures in chapter 52, title 67, Idaho Code.
[(39-7430) 39-7421, added 2010, ch. 146, sec. 1, p. 309; am. and redesig. 2026, ch. 7, sec. 34, p. 53.]
The interstate compact on adoption and medical assistance is hereby enacted into law and entered into by the state of Idaho as a party, and is in full force and effect between the state and other states joining the agreement in accordance with its terms.
INTERSTATE COMPACT ON ADOPTION AND MEDICAL ASSISTANCE
ARTICLE I. FINDINGS
The states which are parties to this Compact find that:
(a) In order to obtain adoptive families for children with special needs, states must assure prospective adoptive parents of substantial assistance (usually on a continuing basis) in meeting the high costs of supporting and providing for the special needs and the services required by such children.
(b) The states have a fundamental interest in promoting adoption for children with special needs because the care, emotional stability, and general support and encouragement required by such children can be best, and often only, obtained in family homes with a normal parent-child relationship.
(c) The states obtain fiscal advantages from providing adoption assistance because the alternative is for the states to bear the higher cost of meeting all the needs of children while in foster care.
(d) The necessary assurances of adoption assistance for children with special needs, in those instances where children and adoptive parents live in states other than the one undertaking to provide the assistance, include the establishment and maintenance of suitable substantive guarantees and workable procedures for interstate cooperation and payments to assist with the necessary costs of child maintenance, the procurement of services, and the provision of medical assistance.
ARTICLE II. PURPOSES
The purposes of this Compact are to:
(a) Strengthen protections for the interests of children with special needs on behalf of whom adoption assistance is committed to be paid, when such children are in or move to states other than the one committed to provide adoption assistance.
(b) Provide substantive assurances and operating procedures which will promote the delivery of medical and other services to children on an interstate basis through programs of adoption assistance established by the laws of the states which are parties to this Compact.
ARTICLE III. DEFINITIONS
As used in this Compact, unless the context clearly requires a different construction:
(a) "Child with special needs" means a minor who has not yet attained the age at which the state normally discontinues children’s services, or a child who has not yet reached the age of 21 where the state determines that the child’s mental or physical handicaps warrant the continuation of assistance beyond the age of majority, for whom the state has determined the following:
That the child cannot or should not be returned to the home of his or her parents;
That there exists with respect to the child a specific factor or condition (such as his ethnic background, age, or membership in a minority or sibling group, or the presence of factors such as medical condition or physical, mental, or emotional handicaps) because of which it is reasonable to conclude that such child cannot be placed with adoptive parents without providing adoption assistance;
That, except where it would be against the best interests of the child because of such factors as the existence of significant emotional ties with prospective adoptive parents while in their care as a foster child, a reasonable but unsuccessful effort has been made to place the child with appropriate adoptive parents without providing adoption assistance.
(b) "Adoption assistance" means the payment or payments for the maintenance of a child which are made or committed to be made pursuant to the adoption assistance program established by the laws of a party state.
(c) "State" means a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, the Commonwealth of the Northern Mariana Islands, or a Territory or Possession of the United States.
(d) "Adoption assistance state" means the state that is signatory to an adoption assistance agreement in a particular case.
(e) "Residence state" means the state in which the child is a resident by virtue of the residence of the adoptive parents.
(f) "Parents" mean either the singular or plural of the word "parent".
ARTICLE IV. ADOPTION ASSISTANCE
(a) Each state shall determine the amounts of adoption assistance and other aid which it will give to children with special needs and their adoptive parents in accordance with its own laws and programs. The adoption assistance and other aid may be made subject to periodic reevaluation of eligibility by the adoption assistance state in accordance with its laws.
(b) The adoption assistance, medical assistance, and other services and benefits to which this Compact applies are those provided to children with special needs and their adoptive parents from the effective date of the adoption assistance agreement.
(c) Every case of adoption assistance shall include a written adoption assistance agreement between the adoptive parents and the appropriate agency of the state undertaking to provide the adoption assistance. Every such agreement shall contain provisions for the fixing of actual or potential interstate aspects of the assistance so provided as follows:
An express commitment that the assistance so provided shall be payable without regard for the state of residence of the adoptive parents, both at the outset of the agreement period and at all times during its continuance;
A provision setting forth with particularity the types of care and services toward which the adoption assistance state will make payments;
A commitment to make medical assistance available to the child in accordance with Article V of this Compact;
An express declaration that the agreement is for the benefit of the child, the adoptive parents and the state and that is enforceable by any or all of them; and
The date or dates upon which each payment or other benefit provided thereunder is to commence, but in no event prior to the effective date of the adoption assistance agreement.
(d) Any services or benefits provided for a child by the residence state and the adoption assistance state may be facilitated by the party states on each other’s behalf. To this end, the personnel of the child welfare agencies of the party states will assist each other, as well as the beneficiaries of adoption assistance agreements, in assuring prompt and full access to all benefits expressly included in such agreements. It is further recognized and agreed that, in general, all children to whom adoption assistance agreements apply will be eligible for benefits under the child welfare, education, rehabilitation, mental health, and other programs of their state of residence on the same basis as other resident children.
(e) Adoption assistance payments on behalf of a child in another state shall be made on the same basis and in the same amounts as they would be made if the child were living in the state making the payments, except that the laws of the adoption assistance state may provide for the payment of higher amounts.
ARTICLE V. MEDICAL ASSISTANCE
(a) Children for whom a party state is committed, in accordance with the terms of an adoption assistance agreement to provide federally aided medical assistance under Title XIX of the Social Security Act, are eligible for such medical assistance during the entire period for which the agreement is in effect. Upon application therefor, the adoptive parents of a child who is the subject of such an adoption assistance agreement shall receive a medical assistance identification document made out in the child’s name. The identification shall be issued by the medical assistance program of the residence state and shall entitle the child to the same benefits, pursuant to the same procedures, as any other child who is covered by the medical assistance program in that state, whether or not the adoptive parents are themselves eligible for medical assistance.
(b) The identification document shall bear no indication that an adoption assistance agreement with another state is the basis for its issuance. However, if the identification is issued pursuant to such an adoption assistance agreement, the records of the issuing state and the adoption assistance state shall show the fact, and shall contain a copy of the adoption assistance agreement and any amendment or replacement thereof, as well as all other pertinent information. The adoption assistance and medical assistance programs of the adoption assistance state shall be notified of the issuance of such identification.
(c) A state which has issued a medical assistance identification document pursuant to this Compact, which identification is valid and currently in force, shall accept, process and pay medical assistance claims thereon as it would with any other medical assistance claims by eligible residents.
(d) The federally aided medical assistance provided by a party state pursuant to this Compact shall be in accordance with paragraphs (a) through (c) of this Article. In addition, when a child who is covered by an adoption assistance agreement is living in another party state, payment or reimbursement for any medical services and benefits specified under the terms of the adoption assistance agreement, which are not available to the child under the Title XIX medical assistance program of the residence state, shall be made by the adoption assistance state as required by its law. Any payments so provided shall be of the same kind and at the same rates as provided for children who are living in the adoption assistance state. However, where the payment rate authorized for a covered service under the medical assistance program of the adoption assistance state exceeds the rate authorized by the residence state for that service, the adoption assistance state shall not be required to pay the additional amounts for the services or benefits covered by the residence state.
(e) A child referred to in paragraph (a) of this Article, whose residence is changed from one party state to another party state shall be eligible for federally aided medical assistance under the medical assistance program of the new state of residence.
ARTICLE VI. COMPACT ADMINISTRATION
(a) In accordance with its own laws and procedures, each state which is a party to this Compact shall designate a Compact Administrator and such Deputy Compact Administrator as it deems necessary. The Compact Administrator shall coordinate all activities under this Compact within his or her state. The Compact Administrator shall also be the principal contact for officials and agencies within and without the state for the facilitation of interstate relations involving this Compact and the protection of benefits and services provided pursuant thereto. In this capacity, the Compact Administrator will be responsible for assisting child welfare agency personnel from other party states and adoptive families receiving adoption and medical assistance on an interstate basis.
(b) Acting jointly, the Compact Administrators shall develop uniform forms and administrative procedures for the interstate monitoring and delivery of adoption and medical assistance benefits and services pursuant to this Compact. The forms and procedures so developed may deal with such matters as:
Documentation of continuing adoption assistance eligibility;
Interstate payments and reimbursements; and
Any and all other matters arising pursuant to this Compact.
(c) (1) Some or all of the parties to this Compact may enter into supplementary agreements for the provision of or payment for additional medical benefits and services, as provided in Article V(d); for interstate service delivery, pursuant to Article IV(d); or for matters related thereto. Such agreements shall not be inconsistent with this Compact, nor shall they relieve the party states of any obligation to provide adoption and medical assistance in accordance with applicable state and federal law and the terms of this compact.
(2) Administrative procedures or forms implementing the supplementary agreements referred to in paragraph (c)(1) of this Article may be developed by joint action of the Compact Administrators of those states which are party to such supplementary agreements.
(d) It shall be the responsibility of the Compact Administrator to ascertain whether and to what extent additional legislation may be necessary in his or her own state to carry out the provisions of this Article IV or any supplementary agreements pursuant to this Compact.
ARTICLE VII. JOINDER AND WITHDRAWAL
(a) This Compact shall be open to joinder by any state. It shall enter into force as to a state when its duly constituted and empowered authority has executed it.
(b) In order that the provisions of this Compact may be accessible to and known by the general public, and so that they may be implemented as law in each of the party states, the authority which has executed the Compact in each party state shall cause the full text of the Compact and a notice of its execution to be published in his or her state. The executing authority in any party state shall also provide copies of the Compact upon request.
(c) Withdrawal from this Compact shall be by written notice, sent by the authority which executed it, to the appropriate officials of all other party states, but no such notice shall take effect until one year after it is given in accordance with the requirements of this paragraph.
(d) All adoption assistance agreements outstanding and to which a party state is a signatory at the time when its withdrawal from this compact takes effect shall continue to have the effects given to them pursuant to this Compact until they expire or are terminated in accordance with their provisions. Until such expiration or termination, all beneficiaries of the agreements involved shall continue to have all rights and obligations conferred or imposed by this Compact, and the withdrawing state shall continue to administer the Compact to the extent necessary to accord and implement fully the rights and protections preserved hereby.
ARTICLE VIII. CONSTRUCTION AND SEVERABILITY
The provisions of this Compact shall be liberally construed to effectuate the purposes thereof. The provisions of this Compact shall be severable, and if any phrase, clause, sentence, or provision of this Compact is declared to be contrary to the Constitution of the United States or of any party state, or where the applicability thereof to any government, agency, person, or circumstance is held invalid, the validity of the remainder of this Compact and the applicability thereof to any government, agency, person or circumstance shall not be affected thereby. If this Compact shall be held contrary to the constitution of any state party thereto, the Compact shall remain in full force and effect as to the remaining states and in full force and effect as to the state affected as to all severable matters.
[39-7501, added 1994, ch. 69, sec. 1, p. 141.]
Pursuant to said compact, the governor is hereby authorized and empowered to designate an officer who shall be the compact administrator and who, acting jointly with like officers of other party states, shall develop guidelines and procedures to carry out more effectively the terms of the compact. Said compact administrator shall serve subject to the pleasure of the governor. The compact administrator is hereby authorized, empowered and directed to cooperate with all departments, agencies and officers of and in the government of this state and its subdivisions in facilitating the proper administration of the compact or of any supplementary agreement or agreements entered into by this state thereunder.
[39-7502, added 1994, ch. 69, sec. 1, p. 146.]
The compact administrator is hereby authorized and empowered to enter into supplementary agreements with appropriate officials of other states pursuant to the compact. In the event that such supplementary agreement shall require or contemplate the use of any institution or facility of this state or require or contemplate the provision of any service of this state, said supplementary agreement shall have no force or effect until approved by the head of the department or agency under whose jurisdiction said institution or facility is operated or whose department or agency will be charged with the rendering of such service. The compact administrator, subject to the approval of the board of examiners, may make or arrange for any payments necessary to discharge any financial obligations imposed upon this state by the compact or by any supplementary agreement entered into thereunder.
[39-7503, added 1994, ch. 69, sec. 1, p. 146.]
The compact administrator shall take appropriate action pursuant to existing law to effect the recovery from relevant parents of estate, at the option of said administrator, of any and all costs expended by the state, or any of its subdivisions, with respect to Idaho children handled under said compact.
[39-7504, added 1994, ch. 69, sec. 1, p. 146; am. 2012, ch. 257, sec. 11, p. 717.]
The courts, departments, agencies and officers of this state and its subdivisions shall enforce this compact and shall do all things appropriate to the effectuation of its purposes and intent which may be within their respective jurisdiction.
[39-7505, added 1994, ch. 69, sec. 1, p. 147.]
The director is hereby authorized to make loans at or below market interest rates, as funds are available, to any eligible public water system to assist the public water system or which will facilitate their compliance with national primary drinking water regulations applicable to the system or to otherwise significantly further the health protection objectives of this chapter.
[39-7601, added 1997, ch. 26, sec. 2, p. 40.]
(1) There is hereby created the drinking water loan fund. The department of environmental quality shall use moneys from this fund only for providing loans, or as a source of reserve and security for leveraged loans, the proceeds of which are deposited in the drinking water loan fund, or for other financial assistance authorized in this chapter or by federal law to community water systems and nonprofit noncommunity water systems. Financial assistance under this section may be used by a public water system only for project expenditures, not including monitoring, operation and maintenance expenditures, which will facilitate compliance with national primary drinking water standards applicable to the system or which will significantly further the health protection objectives of this chapter. The funds may also be used for public water systems using constructed conveyances and not piped water systems if they meet the requirements of the safe drinking water act amendments of 1996 and the director determines that the water provided for residential or similar uses for cooking, drinking and bathing is centrally treated or treated at the point of entry to achieve the equivalent level of protection provided by the applicable national primary drinking water regulations. The funds shall not be used for the acquisition of real property or an interest in real property unless the acquisition is integral to the project authorized by this section and the purchase is from a willing seller.
(2) (a) Except as provided in subsection (2)(b) of this section, no loan assistance shall be provided to a public water system that:
(i) Does not have the technical, managerial and financial capability to ensure compliance with the requirements of this chapter; or
(ii) Is in significant noncompliance with any requirement of a national primary drinking water regulation or variance.
(b) A public water system referenced in subsection (2)(a) of this section may receive assistance under this section if:
(i) The assistance will ensure compliance, and
(ii) If subsection (2)(a)(i) of this section applies to the system, the owner or operator of the system agrees to undertake feasible and appropriate changes in operations, including ownership, management, accounting, rates, maintenance, consolidation, alternative water supply or other procedures, and then only if the director determines that the measures are necessary to ensure that the system has the technical, managerial and financial capability to comply with the requirements of this chapter and the safe drinking water act amendments of 1996.
(3) Except as otherwise prohibited by state law, the amounts deposited into the drinking water loan fund under this chapter may be used only for the following:
(a) To make loans on the conditions that:
(i) The interest rate for each loan is less than or equal to the market interest rate,
(ii) Principal and interest payments on each loan will commence not later than one (1) year after completion of the project for which the loan was made and each loan will be fully amortized not later than twenty (20) years after completion of the project, except that in the case of a disadvantaged community, an extended form for a loan may be allowed if it terminates not later than thirty (30) years after the date the project is completed, and does not exceed the design life of the project,
(iii) The recipient of each loan will establish a dedicated source of revenue, or, in the case of a privately owned system, demonstrate that there is adequate security, for the repayment of the loan, and
(iv) The drinking water loan fund will be credited with all payment of principal and interest on each loan;
(b) To buy or refinance the debt obligation of a municipality or an intermunicipal or interstate agency within the state at an interest rate that is less than or equal to the market interest rate in any case in which a debt obligation is incurred after July 1, 1993;
(c) As a source of revenue or security for the payment of principal and interest on revenue or general obligation bonds issued by the state if the proceeds of the sale of the bonds will be deposited into the drinking water loan fund; and
(d) To earn interest on the amounts deposited into the drinking water loan fund.
(4) For every agreement between the state and the federal government by which funds are made available, the state shall deposit in the drinking water loan fund an amount equal to at least twenty percent (20%) of the total amount of the grant to be made to the state on or before the dates on which grant payments are made to the state.
(5) The director may promulgate rules necessary for the making and enforcing of loan contracts hereunder and for establishing procedures to be followed in applying for state loans or loan subsidies or training assistance herein authorized as shall be necessary for the effective administration of the loan program.
(6) All contracts entered into pursuant to this chapter shall be subject to approval by the attorney general as to form. All disbursements by the state pursuant to such contracts shall be made after audit and upon warrant as provided by law on vouchers approved by the director.
[39-7602, added 1997, ch. 26, sec. 2, p. 40; am. 2001, ch. 103, sec. 71, p. 311.]
Surplus moneys in the drinking water loan account established by section 39-7602, Idaho Code, shall be invested by the state treasurer in the manner for idle state moneys in the state treasury as provided for in section 67-1210, Idaho Code. Interest received on all such investments shall be paid into the account. The account shall have paid into it: federal funds which are received by the state to provide for drinking water loans to public water systems together with the required state matching funds; all principal and interest repayments of loans made pursuant to this chapter; all donations and grants from any source which may be used for the provisions of this chapter; fund transfers from the wastewater facility loan account; and any moneys which may hereafter be provided by law.
[39-7603, added 1997, ch. 26, sec. 2, p. 42; am. 2014, ch. 59, sec. 3, p. 142.]
Moneys in the drinking water loan account are hereby perpetually appropriated to provide loans and other forms of financial assistance authorized under title XVI of the public health service act known as the safe drinking water act and the safe drinking water act amendments of 1996, 42 U.S.C. 300f et seq., to any eligible public water system in order to enable the system to comply with the above referenced act and relevant regulations.
[39-7604, added 1997, ch. 26, sec. 2, p. 43.]
The director may make loans to eligible public water systems pursuant to the requirements of this chapter and federal laws and regulations provided, that the projected disbursements for such loans would not cause the projected balance in the loan fund to fall below zero at any time. All loan disbursements shall be subject to the availability of moneys in the account.
[39-7605, added 1997, ch. 26, sec. 2, p. 43.]
(1) There is hereby created in the state treasury the public water system supervision fund. Moneys in the fund shall consist of fees assessed pursuant to rules of the department on regulated public drinking water systems, federal funds which are received by the state to provide for the public water system supervision program, donations, state appropriations and any other moneys from whatever source.
(2) Idle or surplus moneys in the public water system supervision fund established by this section shall be invested by the state treasurer in the manner for idle state moneys in the state treasury as provided for in section 67-1210, Idaho Code. Interest received on all such investments shall be paid into the fund. Moneys in the fund may be expended pursuant to appropriation.
[39-7606, added 2000, ch. 165, sec. 1, p. 416.]
The legislature of the state of Idaho finds that access to high quality health care services is a concern of all persons. However, access to such services is severely limited for some residents of the state, particularly those who reside in remote, rural areas or in the urban areas. Physicians and other health care professionals have traditionally worked to assure broad access to health care services and many are willing to volunteer their services to address the health care needs of Idahoans who may otherwise not be able to obtain such services. The public policy of this state is to encourage and facilitate voluntary provision of health care services.
[39-7701, added 1998, ch. 295, sec. 1, p. 976.]
As used in this chapter:
(1) "Community health screening event" means an event sponsored by a school, a church, a civic club or another community organization for the purpose of providing health screenings by health care providers who are not compensated for their volunteer service at the event.
(2) "Compensation" means any remuneration, whether by way of salary, fee or otherwise, for health care services rendered. Compensation does not include actual and necessary expenses that are incurred by a volunteer health care provider in connection with the services provided or the duties performed by the health care provider on behalf of a free clinic, and that are reimbursed to the volunteer health care provider.
(3) "Free medical clinic" means a facility other than a hospital or health care provider’s office which is an organized community-based program, registered with the department of health and welfare, at which primary medical care is provided without charge to individuals unable to pay for it, and at which the care provided does not include the use of general anesthesia or require an overnight stay in a health care facility.
(4) "Health care provider" means any physician, dentist, optometrist, physician assistant, nurse, or other person who is licensed, certified, or registered under title 54, Idaho Code, to provide health care or other professional services or who is otherwise authorized to practice in Idaho. "Health care provider" also includes an individual enrolled in an accredited education or training program for licensure, certification, or registration under title 54, Idaho Code, while the individual is providing services under the direct supervision of a person who is licensed, certified, or registered under title 54, Idaho Code, and practicing within his regulated scope of practice, as long as the patient has been notified that the individual is a student.
(5) "Health screening" means an examination, an evaluation or another health care assessment of a person by a licensed health care provider practicing within the provider’s scope of practice to determine the fitness of an individual to participate in an event or activity or to determine whether an individual needs additional health care evaluation or treatment.
(6) "Voluntary provision of health care services" means providing professional services by a health care provider without compensation.
[39-7702, added 1998, ch. 295, sec. 1, p. 976; am. 2018, ch. 38, sec. 1, p. 97; am. 2020, ch. 57, sec. 1, p. 138.]
(1) Any health care provider who voluntarily provides needed medical or health care services to any person at a free medical clinic or who provides health screenings at a community health screening event without compensation or the expectation of compensation shall be immune from liability for any civil action arising out of the provision of such medical or health services. This section shall not extend immunity to the health care provider for any acts constituting intentional, willful or grossly negligent conduct or to acts by a health care provider that are outside the scope of practice authorized by the provider’s licensure, certification or registration.
(2) Immunity pursuant to subsection (1) of this section shall apply only if the health care provider and the patient execute a written waiver in advance of the rendering of such medical services specifying that such services are provided without the expectation of compensation and that the health care provider shall be immune as specified herein.
(3) Nothing in this section shall prohibit a free medical clinic from accepting voluntary contributions for health care services provided to a patient who has acknowledged his or her ability and willingness to pay a portion of the value of the health care services provided. Any voluntary contribution collected for providing care at a free medical clinic shall be used only to pay overhead expenses of operating the clinic. No portion of any moneys collected shall be used to provide compensation to any health care provider.
(4) If a health care provider is insured for liability for negligent acts or omissions arising from providing health care services at a free clinic, the immunity provided in subsection (1) of this section is waived, provided however, the amount recovered shall not exceed the limits of such applicable insurance coverage.
[39-7703, added 1998, ch. 295, sec. 1, p. 977; am. 2018, ch. 38, sec. 2, p. 98.]
(1) Before providing volunteer health care services in this state, a free medical clinic shall register with the department of health and welfare by submitting a registration fee of fifty dollars ($50.00) and filing a registration form that shall contain:
(a) The name of the free clinic and sponsoring organization, if any;
(b) The name of the principal individual or individuals who are the officers or organizational officials responsible for the operation of the free clinic or sponsoring organization, if any;
(c) The address, including street, city, zip code and county, of the free clinic;
(d) Telephone number;
(e) Such additional information as the department may require.
(2) Each free clinic shall maintain a list of health care providers associated with its provision of voluntary health care services. For each such health care provider, the free clinic shall maintain a copy of a current license, certificate or registration and shall further require each health care provider to attest in writing that such provider’s license, certificate or registration is not suspended or revoked pursuant to disciplinary proceedings in any jurisdiction.
(3) The free clinic shall maintain such records for a period of at least five (5) years following the provision of health care services and shall furnish such records upon request to the department.
(4) Compliance with subsections (1) and (2) of this section shall be prima facie evidence that the free clinic has exercised due care in its selection of health care providers and shall be immune from suit for negligent acts or omissions as provided in subsection (1) of section 39-7703, Idaho Code.
(5) The department may revoke the registration of any free clinic who fails to comply with the requirements of subsections (1) through (4) of this section. Any such revocation shall be conducted in accordance with the administrative procedure act.
(6) The provisions of this section shall not apply to community health screening events.
[39-7704, added 1998, ch. 295, sec. 1, p. 977; am. 2018, ch. 38, sec. 3, p. 98.]
Notwithstanding any other provision of law to the contrary, if a party names as a defendant a health care provider who has immunity pursuant to section 39-7703, Idaho Code, in a suit alleging willful or intentional misconduct or gross negligence arising out of treatment at a free clinic which qualifies for immunity pursuant to section 39-7703, Idaho Code, and the trial judge dismisses the complaint or grants a defendant’s motion for judgment on the pleadings, or directs a verdict for a defendant, or grants a defendant’s motion for judgment notwithstanding the verdict, or at any point in the proceedings grants a plaintiff’s motion to discontinue the action against the defendant, the defendant shall be entitled to full costs and reasonable attorney’s fees expended in connection with the defendant’s defense of the action. If good reason is shown, the trial judge may suspend the operation of this section.
[39-7705, added 1998, ch. 295, sec. 1, p. 978.]
(a) Cigarette smoking presents serious public health concerns to the state of Idaho ("state") and to the citizens of the state. The surgeon general has determined that smoking causes lung cancer, heart disease and other serious diseases, and that there are hundreds of thousands of tobacco-related deaths in the United States each year. These diseases most often do not appear until many years after the person in question begins smoking.
(b) Cigarette smoking also presents serious financial concerns for the state. Under certain health-care programs, the state may have a legal obligation to provide medical assistance to eligible persons for health conditions associated with cigarette smoking, and those persons may have a legal entitlement to receive such medical assistance.
(c) Under these programs, the state pays millions of dollars each year to provide medical assistance for these persons for health conditions associated with cigarette smoking.
(d) It is the policy of the state that financial burdens imposed on the state by cigarette smoking be borne by tobacco product manufacturers rather than by the state to the extent that such manufacturers either determine to enter into a settlement with the state or are found culpable by the courts.
(e) On November 23, 1998, leading United States tobacco product manufacturers entered into a settlement agreement, entitled the "Master Settlement Agreement," with the state. The Master Settlement Agreement obligates these manufacturers, in return for a release of past, present and certain future claims against them as described therein, to pay substantial sums to the state (tied in part to their volume of sales); to fund a national foundation devoted to the interests of public health; and to make substantial changes in their advertising and marketing practices and corporate culture, with the intention of reducing underage smoking.
(f) It would be contrary to the policy of the state if tobacco product manufacturers who determine not to enter into such a settlement could use a resulting cost advantage to derive large, short-term profits in the years before liability may arise without ensuring that the state will have an eventual source of recovery from them if they are proven to have acted culpably. It is thus in the interest of the state to require that such manufacturers establish a reserve fund to guarantee a source of compensation and to prevent such manufacturers from deriving large, short-term profits and then becoming judgment-proof before liability may arise.
[39-7801, added 1999, ch. 7, sec. 1, p. 8.]
(a) "Adjusted for inflation" means increased in accordance with the formula for inflation adjustment set forth in Exhibit C to the Master Settlement Agreement.
(b) "Affiliate" means a person who directly or indirectly owns or controls, is owned or controlled by, or is under common ownership or control with, another person. Solely for purposes of this definition, the terms "owns," "is owned" and "ownership" mean ownership of an equity interest, or the equivalent thereof, of ten percent (10%) or more, and the term "person" means an individual, partnership, committee, association, corporation or any other organization or group of persons.
(c) "Allocable share" means allocable share as that term is defined in the Master Settlement Agreement.
(d) "Cigarette" means any product that contains nicotine, is intended to be burned or heated under ordinary conditions of use, and consists of or contains: (1) any roll of tobacco wrapped in paper or in any substance not containing tobacco; or (2) tobacco, in any form, that is functional in the product, which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette; or (3) any roll of tobacco wrapped in any substance containing tobacco which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette described in clause (1) of this definition. The term "cigarette" includes "roll-your-own" (i.e., any tobacco which, because of its appearance, type, packaging, or labeling is suitable for use and likely to be offered to, or purchased by, consumers as tobacco for making cigarettes). For purposes of this definition of "cigarette," nine one-hundredths (0.09) ounces of "roll-your-own" tobacco shall constitute one (1) individual "cigarette."
(e) "Master Settlement Agreement" means the settlement agreement (and related documents) entered into on November 23, 1998, by the state and leading United States tobacco product manufacturers.
(f) "Qualified escrow fund" means an escrow arrangement with a federally or state-chartered financial institution having no affiliation with any tobacco product manufacturer and having assets of at least one billion dollars ($1,000,000,000) where such arrangement requires that such financial institution hold the escrowed funds’ principal for the benefit of releasing parties and prohibits the tobacco product manufacturer placing the funds into escrow from using, accessing or directing the use of the funds’ principal except as consistent with section 39-7803, Idaho Code.
(g) "Released claims" means released claims as that term is defined in the Master Settlement Agreement.
(h) "Releasing parties" means releasing parties as that term is defined in the Master Settlement Agreement.
(i) "Tobacco product manufacturer" means an entity that after the date of enactment of this act directly (and not exclusively through any affiliate):
(1) Manufactures cigarettes anywhere that such manufacturer intends to be sold in the United States, including cigarettes intended to be sold in the United States through an importer (except where such importer is an original participating manufacturer (as that term is defined in the Master Settlement Agreement) that will be responsible for the payments under the Master Settlement Agreement with respect to such cigarettes as a result of the provisions of subsections II(mm) of the Master Settlement Agreement and that pays the taxes specified in subsection II(z) of the Master Settlement Agreement, and provided that the manufacturer of such cigarettes does not market or advertise such cigarettes in the United States);
(2) Is the first purchaser anywhere for resale in the United States of cigarettes manufactured anywhere that the manufacturer does not intend to be sold in the United States; or
(3) Becomes a successor of an entity described in paragraph (1) or (2) of this subsection.
The term "tobacco product manufacturer" shall not include an affiliate of a tobacco product manufacturer unless such affiliate itself falls within any of paragraphs (1) through (3) of this subsection.
(j) "Units sold" means the number of individual cigarettes sold in the state by the applicable tobacco product manufacturer (whether directly or through a distributor, retailer or similar intermediary or intermediaries) during the year in question, as measured by excise taxes collected by the state on packs (or "roll-your-own" tobacco containers) bearing the excise tax stamp of the state or on unstamped "roll-your-own" tobacco containers, with each nine one-hundredths (0.09) ounces of "roll-your-own" tobacco equaling one (1) unit sold. The state tax commission shall promulgate such rules as are necessary to ascertain the amount of state excise tax paid on the cigarettes of such tobacco product manufacturer for each year.
[39-7802, added 1999, ch. 7, sec. 1, p. 8; am. 2005, ch. 39, sec. 1, p. 159.]
Any tobacco product manufacturer selling cigarettes to consumers within the state (whether directly or through a distributor, retailer or similar intermediary or intermediaries) after the date of enactment of this act shall do one (1) of the following:
(a) Become a participating manufacturer (as that term is defined in section II(jj) of the Master Settlement Agreement) and generally perform its financial obligations under the Master Settlement Agreement; or
(b) (1) Place into a qualified escrow fund by April 15 of the year following the year in question the following amounts (as such amounts are adjusted for inflation):
1999: $.0094241 per unit sold after the date of enactment of this act;
2000: $.0104712 per unit sold;
For each of 2001 and 2002: $.0136125 per unit sold;
For each of 2003 through 2006: $.0167539 per unit sold;
For each of 2007 and each year thereafter: $.0188482 per unit sold.
(2) A tobacco product manufacturer that places funds into escrow pursuant to paragraph (1) of this subsection shall receive the interest or other appreciation on such funds as earned. Such funds themselves shall be released from escrow only under the following circumstances:
(A) To pay a judgment or settlement on any released claim brought against such tobacco product manufacturer by the state or any releasing party located or residing in the state. Funds shall be released from escrow under this subparagraph: (i) in the order in which they were placed into escrow; and (ii) only to the extent and at the time necessary to make payments required under such judgment or settlement;
(B) To the extent that a tobacco product manufacturer establishes that the amount it was required to place into escrow on account of units sold in the state in a particular year was greater than the Master Settlement Agreement payments, as determined pursuant to section IX(i) of that Agreement including after final determination of all adjustments, that such manufacturer would have been required to make on account of such units sold had it been a participating manufacturer, the excess shall be released from escrow and revert back to such tobacco product manufacturer; or
(C) To the extent not released from escrow under subparagraphs (A) or (B) of this paragraph, funds shall be released from escrow and revert back to such tobacco product manufacturer twenty-five (25) years after the date on which they were placed into escrow.
(3) Each tobacco product manufacturer that elects to place funds into escrow pursuant to this section shall annually certify to the attorney general that it is in compliance with this section. The attorney general may bring a civil action on behalf of the state against any tobacco product manufacturer that fails to place into escrow the funds required under this section. Any tobacco product manufacturer that fails in any year to place into escrow the funds required under this section shall:
(A) Be required within fifteen (15) days to place such funds into escrow as shall bring it into compliance with this section. The court, upon a finding of a violation of this section, may impose a civil penalty to be paid to the general fund of the state in an amount not to exceed five percent (5%) of the amount improperly withheld from escrow per day of the violation and in a total amount not to exceed one hundred percent (100%) of the original amount improperly withheld from escrow;
(B) In the case of a knowing violation, be required within fifteen (15) days to place such funds into escrow as shall bring it into compliance with this section. The court, upon a finding of a knowing violation of this subsection, may impose a civil penalty to be paid to the general fund of the state in an amount not to exceed fifteen percent (15%) of the amount improperly withheld from escrow per day of the violation and in a total amount not to exceed three hundred percent (300%) of the original amount improperly withheld from escrow; and
(C) In the case of a second knowing violation, be prohibited from selling cigarettes to consumers within the state (whether directly or through a distributor, retailer or similar intermediary) for a period not to exceed two (2) years.
Each failure to make an annual deposit required under this section shall constitute a separate violation.
(4) In any action brought under this section, the court shall award the attorney general, if he is the prevailing party, reasonable costs, expenses and attorney’s fees in bringing his action.
Requirements. [EFFECTIVE UPON GOVERNOR’S PROCLAMATION REGARDING CONSTITUTIONALITY OF PRECEDING /SECTION 39-7803 BEING FILED WITH SECRETARY OF STATE]
Any tobacco product manufacturer selling cigarettes to consumers within the state (whether directly or through a distributor, retailer or similar intermediary or intermediaries) after the date of enactment of this act shall do one (1) of the following:
(a) Become a participating manufacturer (as that term is defined in section II(jj) of the Master Settlement Agreement) and generally perform its financial obligations under the Master Settlement Agreement; or
(b) (1) Place into a qualified escrow fund by April 15 of the year following the year in question the following amounts (as such amounts are adjusted for inflation):
1999: $.0094241 per unit sold after the date of enactment of this act;
2000: $.0104712 per unit sold;
For each of 2001 and 2002: $.0136125 per unit sold;
For each of 2003 through 2006: $.0167539 per unit sold;
For each of 2007 and each year thereafter: $.0188482 per unit sold.
(2) A tobacco product manufacturer that places funds into escrow pursuant to paragraph (1) of this subsection shall receive the interest or other appreciation on such funds as earned. Such funds themselves shall be released from escrow only under the following circumstances:
(A) To pay a judgment or settlement on any released claim brought against such tobacco product manufacturer by the state or any releasing party located or residing in the state. Funds shall be released from escrow under this subparagraph: (i) in the order in which they were placed into escrow; and (ii) only to the extent and at the time necessary to make payments required under such judgment or settlement;
(B) To the extent that a tobacco product manufacturer establishes that the amount it was required to place into escrow in a particular year was greater than the state’s allocable share of the total payments that such manufacturer would have been required to make in that year under the Master Settlement Agreement (as determined pursuant to section IX(i)(2) of the Master Settlement Agreement, and before any of the adjustments or offsets described in section IX(i)(3) of that Agreement other than the inflation adjustment) had it been a participating manufacturer, the excess shall be released from escrow and revert back to such tobacco product manufacturer; or
(C) To the extent not released from escrow under subparagraphs (A) or (B) of this paragraph, funds shall be released from escrow and revert back to such tobacco product manufacturer twenty-five (25) years after the date on which they were placed into escrow.
(3) Each tobacco product manufacturer that elects to place funds into escrow pursuant to this section shall annually certify to the attorney general that it is in compliance with this section. The attorney general may bring a civil action on behalf of the state against any tobacco product manufacturer that fails to place into escrow the funds required under this section. Any tobacco product manufacturer that fails in any year to place into escrow the funds required under this section shall:
(A) Be required within fifteen (15) days to place such funds into escrow as shall bring it into compliance with this section. The court, upon a finding of a violation of this section, may impose a civil penalty to be paid to the general fund of the state in an amount not to exceed five percent (5%) of the amount improperly withheld from escrow per day of the violation and in a total amount not to exceed one hundred percent (100%) of the original amount improperly withheld from escrow;
(B) In the case of a knowing violation, be required within fifteen (15) days to place such funds into escrow as shall bring it into compliance with this section. The court, upon a finding of a knowing violation of this subsection, may impose a civil penalty to be paid to the general fund of the state in an amount not to exceed fifteen percent (15%) of the amount improperly withheld from escrow per day of the violation and in a total amount not to exceed three hundred percent (300%) of the original amount improperly withheld from escrow; and
(C) In the case of a second knowing violation, be prohibited from selling cigarettes to consumers within the state (whether directly or through a distributor, retailer or similar intermediary) for a period not to exceed two (2) years.
Each failure to make an annual deposit required under this section shall constitute a separate violation.
(4) In any action brought under this section, the court shall award the attorney general, if he is the prevailing party, reasonable costs, expenses and attorney’s fees in bringing his action.
[39-7803, added 1999, ch. 7, sec. 1, p. 10; am. 2000, ch. 118, sec. 1, p. 256; am. 2003, ch. 289, sec. 1, p. 781; repeal and new section added, ch. 289, secs. 3 & 4, p. 783.]
This act shall be known as the "Local Option Swine Facilities Siting Act."
[39-7901, added 2000, ch. 268, sec. 1, p. 755.]
(1) The legislature finds that:
(a) The swine industry is experiencing rapid changes such as increased sophistication of production technology, increased demand for capital to maintain or expand operations, consolidation of production and packing facilities and changing consumer demands and markets;
(b) Large swine facilities increase social and environmental impacts in the areas where these facilities are located;
(c) Adverse public health and environmental impacts can result from the improper siting of large swine facilities, therefore the need for establishing safe sites with an adequate supply of natural resources, such as water, and an adequate capacity for the disposal of animal waste is a matter of statewide concern;
(d) Section 39-104A, Idaho Code, vests the department of environmental quality with the responsibility to make rules regulating swine operations; and section 39-105, Idaho Code, vests the department of environmental quality with the responsibility for the general supervision of the promotion and protection of the life, health and environment of the people of the state, including regulation of air quality, water quality and disposal of solid waste.
(2) (a) To facilitate swine facility siting decisions by boards of county commissioners and governing bodies of cities, this chapter establishes a review process within the department of environmental quality for construction or expansion of large swine facilities of a certain size, and to require approval of sites.
(b) The procedures and requirements established in this chapter are necessary to facilitate the proper siting of large swine facilities, to effect timely and responsible completion of statutory duties and to ensure protection of human health, natural resources, private property values and the environment of the state.
(c) The site approval required in this chapter is required in addition to any other license, permit or approval required by law or rule.
(3) It is the intent of the legislature that this chapter will be applied only to swine facilities with a capacity of twenty thousand (20,000) animal units or more and that this chapter will not be applied to any other confined animal feeding operations.
[39-7902, added 2000, ch. 268, sec. 1, p. 756; am. 2001, ch. 103, sec. 72, p. 313.]
As used in this chapter:
(1) "Active unit" means that part of a facility or unit that has received or is receiving wastes and that has not been closed.
(2) "Animal unit" is a unit of measurement equaling two and one-half (2 1/2) 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 (approximately fifty-five (55) pounds) multiplied by four-tenths (.4), plus the number of weaned swine weighing under twenty-five (25) kilograms multiplied by one-tenth (.1).
(3) "Animal waste" means animal excrement, feed wastes, process wastewater or any other waste associated with the confinement of swine.
(4) "Animal waste management system" means any structure or system that provides for the collection, treatment, disposal, distribution or storage of animal waste.
(5) "Applicant" means the owner or the operator with the owner’s written consent.
(6) "Aquifer" means a geological formation, group of formations, or a portion of a formation capable of yielding significant quantities of ground water to wells or springs.
(7) "Certified planner" means a person who has completed the nutrient management certification in accordance with the nutrient management standard.
(8) "County" means any county in the state of Idaho.
(9) "Department" means the Idaho department of environmental quality.
(10) "Director" means the director of the Idaho department of environmental quality or his designee.
(11) "Existing facility" means a facility built and in operation one (1) year or more before the original effective date of this chapter.
(12) "Expand" or "expanding facility" means a swine facility of less than twenty thousand (20,000) animal units that increases its one-time animal unit capacity to twenty thousand (20,000) or more animal units.
(13) "Facility" means any place, site or location or part thereof where swine are kept, handled, housed, or otherwise maintained and includes, but is not limited to, all buildings, lots, pens, animal waste management systems, structures, and other appurtenances and improvements on the land.
(14) "Ground water" means water below the land surface in a zone of saturation.
(15) "Holocene fault" means a fault characterized as a fracture or a zone of fractures in any material along which strata on one (1) side have been displaced with respect to that on the other side and holocene being the most recent epoch of the quaternary period, extending from the end of the pleistocene epoch to the present.
(16) "Land application" means the spreading on or incorporation of animal waste into the soil mantle primarily for beneficial purposes.
(17) "Natural resources conservation service" or "NRCS" means the United States department of agriculture, natural resources conservation service.
(18) "Nutrient management plan" means a plan prepared in compliance with the nutrient management standard or other equally protective standard approved by the director for managing the amount, source, placement, form and timing of the land application of nutrients and soil amendments for plant production and to minimize the potential for environmental degradation, particularly of water quality.
(19) "Nutrient management standard" means the standard of the United States department of agriculture, natural resource conservation service code 590 or the Idaho agricultural pollution abatement plan, nutrient management standard component practice.
(20) "One-time animal unit capacity" means the maximum number of animal units that a facility is capable of housing at any given point in time.
(21) "Operate" means to confine, feed, propagate, house or otherwise sustain swine.
(22) "Operator" means the person(s) responsible for the overall operation of a facility or part of a facility.
(23) "Owner" means the person(s) who owns a facility or part of a facility.
(24) "Permit" when used as a noun means a permit issued by the director pursuant to rules of the department.
(25) "Person" means an individual, association, firm, partnership, political subdivision, public or private corporation, state or federal agency, municipality, industry or any other legal entity whatsoever, and includes owners and operators.
(26) "Plan of operation" or "operating plan" means the written plan developed by an owner or operator of a swine facility unit detailing how the facility is to be operated during its active life, during closure, and throughout the postclosure period.
(27) "Process wastewater" means any water used in the facility that comes into contact with any manure, litter, bedding, raw, intermediate, or final material or product used in or resulting from the production of swine and any products directly or indirectly used in the operation of a facility, such as spillage or overflow from animal watering systems; washing, cleaning, or flushing pens, barns, manure pits, or spray cooling of animals; and dust control and any precipitation which comes into contact with animals or animal waste.
(28) "Qualified professional" means a licensed professional geologist or licensed professional engineer, as appropriate, holding current professional registration in compliance with applicable provisions of the Idaho Code.
(29) "Unauthorized discharge" means a release of animal waste to the environment or waters of the state that is not authorized by the license or the terms of a national pollutant discharge elimination system (NPDES) permit issued by the federal environmental protection agency.
(30) "Water quality standard" means a standard set for maximum allowable contamination in surface waters and ground water as set forth in the water quality standards for waters for the state of Idaho.
(31) "Waters of the state" means all the accumulations of water, surface and underground, natural and artificial, public and private, or parts thereof which are wholly or partially within, which flow through or border upon the state.
[39-7903, added 2000, ch. 268, sec. 1, p. 756; am. 2001, ch. 103, sec. 73, p. 313.]
(1) No person may construct or expand a large swine facility regulated by this chapter without first obtaining site approval from the director as provided in this chapter.
(2) The site approval required by this chapter for construction or expansion of a large swine facility is required in addition to requirements of any rules of the department. Further, the site approval required by this chapter must be obtained in addition to any other license, permit or approval required by law or rule.
(3) This chapter does not preempt the local regulation of swine facilities. This chapter provides boards of county commissioners and governing bodies of cities with an optional procedure for siting swine facilities. If boards of county commissioners and governing bodies of cities do not exercise their option to comply with this chapter, they are not subject to its provisions and may exercise individual authority to accept, regulate or reject swine facilities independently of this chapter.
(4) This chapter applies only if the board of county commissioners or governing body of a city, whichever has jurisdiction over the site for a proposed swine facility, chooses to comply with this chapter. If a board of county commissioners or a governing body of a city with jurisdiction chooses not to comply with this chapter, the department is not required to take any action under this chapter.
(5) Boards of county commissioners and governing bodies of cities that choose to comply with this chapter shall signify compliance by resolution or ordinance communicated to the director in writing.
(6) If a board of county commissioners or a governing body of a city chooses to comply with this chapter, the department does not have to issue a determination or notice of environmental suitability of facility location pursuant to its rules for swine facilities, IDAPA 58.01.09.
[39-7904, added 2000, ch. 268, sec. 1, p. 758; am. 2021, ch. 321, sec. 24, p. 966.]
(1) The following swine facilities must obtain site approval under this chapter:
(a) New swine facilities having a one-time animal unit capacity of twenty thousand (20,000) or more animal units; and
(b) Existing swine facilities that expand their one-time animal unit capacity to twenty thousand (20,000) animal units or more.
(2) Two (2) or more swine facilities under common owners, operators or those with whom the owners or operators contract or are located within the same county or within five (5) miles of each other shall be considered, for purposes of licensing, to be a single facility regulated under this chapter, even though separately their capacity is less than twenty thousand (20,000) animal units. In each case, the director shall determine whether one (1) or multiple site approvals are required.
(3) (a) Existing swine facilities with a one-time animal unit capacity of twenty thousand (20,000) animal units built and in operation one (1) year or more before the original effective date of this chapter are exempt from the requirement to obtain a site approval pursuant to this chapter unless they expand as provided in this section. However, such facilities shall register with the director within three (3) months after the original effective date of this chapter. The director shall determine the information that must be submitted as part of their registration.
(b) Existing swine facilities required in this subsection to register with the director shall submit a nutrient management plan and closure plan to the director for approval within two (2) years of the original effective date of this chapter in accordance with rules of the department. An application fee shall not be required unless the facility is expanding.
[39-7905, added 2000, ch. 268, sec. 1, p. 759.]
(1) The director may adopt administrative rules he deems necessary or helpful to carry out the purposes of this chapter.
(2) The director may enter into contracts, agreements, memorandums and other arrangements with federal, state and local agencies to carry out the purposes of this chapter.
[39-7906, added 2000, ch. 268, sec. 1, p. 760.]
This section provides location guidelines for swine facilities regulated by this chapter. Where the location guidelines provide a specific setback distance, that distance is the minimum setback distance that may be imposed. Further setback distances shall be imposed as circumstances require.
(1) A swine facility regulated by this chapter shall not:
(a) Locate its closest waste facility within at least two (2) miles of any occupied residence not owned or leased by the owner or operator of the swine facility;
(b) Land apply liquid animal waste within at least one (1) mile of the nearest corner of an occupied residence not owned or leased by the owner or operator of the swine facility.
(2) The setback distances provided in subsection (1) of this section do not apply if the affected property owner executes a written waiver with the owner or operator of the swine facility, under terms and conditions that the parties may negotiate. The written waiver is effective when recorded in the offices of the recorder of deeds in the county in which the property is located. The recorded waiver shall preclude enforcement of the setback distances contained in subsection (1) of this section. A change in ownership of the applicable property or change in ownership of the swine facility does not affect the validity of the waiver.
(3) All distances between occupied residences and swine facilities shall be measured from the closest corner of the walls of the occupied residence to the closest point of the nearest waste structure or waste facility, as defined by the director.
(4) No liquid animal waste may be land applied within at least one hundred (100) feet of an existing public or private drinking water well.
(5) The minimum distance from a waste structure or waste facility to a domestic well, public well or public water source shall be at least one (1) mile.
(6) Further, swine facilities shall not be located:
(a) In areas designated by the United States fish and wildlife service or the Idaho department of fish and game as critical habitat for endangered or threatened species of plants, fish or wildlife;
(b) So as to be at variance with any locally adopted land use plan or zoning requirement unless otherwise provided by local law or ordinance. If no land use plan has been adopted by the local government which would have land use jurisdiction pursuant to chapter 65, title 67, Idaho Code, the recommendations of the panel approving a site shall contain an analysis of the requirements and guidelines provided in this chapter. The analysis shall be accompanied by findings and conclusions, entered by the local government with jurisdiction after the local government has held a public hearing in accord with section 67-6509, Idaho Code, that the public interest would be served by locating a swine facility on the site for which approval is sought;
(c) No nearer than one (1) mile to any local, state or national park, or land reserved or withdrawn for scenic or natural use; and
(d) No nearer than two (2) miles to a school, church, hospital or community center.
(7) A swine facility active unit shall not be located:
(a) Within a one hundred (100) year flood plain;
(b) Within five hundred (500) feet upstream of a perennial stream or river;
(c) Within one thousand (1,000) feet of any perennial lake or pond;
(d) So as to cause any measurable impact on water quality limited streams;
(e) Within a wetland;
(f) Within two hundred (200) feet to the property line of adjacent land;
(g) Within two hundred (200) feet of a holocene fault or adjacent to geologic features which could compromise the structural integrity of a swine facility active unit unless the owner or operator demonstrates to the director that an alternative setback distance of less than two hundred (200) feet will prevent damage to the structural integrity of the swine facility unit and will be protective of human health and the environment. For the purposes of this subsection:
(i) "Fault" means a fracture or a zone of fractures in any material along which strata on one (1) side have been displaced with respect to that on the other side;
(ii) "Displacement" means the relative movement of any two (2) sides of a fault measured in any direction;
(iii) "Holocene" means the most recent epoch of the quaternary period, extending from the end of the pleistocene epoch to the present.
(h) Within seismic impact zones, unless the owner or operator demonstrates to the director that all swine facility active units and surface water control systems, are designed to resist the maximum horizontal acceleration in lithified earth material for the site. The owner or operator must place the demonstration in the operating record and notify the director that it has been placed in the operating record. For the purposes of this section:
(i) "Seismic impact zone" means an area with a ten percent (10%) or greater probability that the maximum horizontal acceleration in lithified earth material, expressed as a percentage of the earth’s gravitational pull (g), will exceed one-tenth (0.10g) in two hundred fifty (250) years;
(ii) "Maximum horizontal acceleration in lithified earth material" means the maximum expected horizontal acceleration depicted on a seismic hazard map, with a ninety percent (90%) or greater probability that the acceleration will not be exceeded in two hundred fifty (250) years, or the maximum expected horizontal acceleration based on a site-specific seismic risk assessment;
(iii) "Lithified earth material" means all rock, including all naturally occurring and naturally formed aggregates or masses of minerals or small particles of older rock that formed by crystallization of magma or by induration of loose sediments. This term does not include man-made materials, such as fill, concrete and asphalt, or unconsolidated earth materials, soil, or regolith lying at or near the earth’s surface.
(i) On any site whose natural state would be considered unstable in that its undisturbed character would not permit establishment of a swine facility without unduly threatening the integrity of the design due to inherent site instability;
(j) Where the integrity of the site would be compromised by the presence of ground water which would interfere with construction or operation of the active unit.
[39-7907, added 2000, ch. 268, sec. 1, p. 760; am. 2001, ch. 350, sec. 2, p. 1230.]
(1) A site review panel shall be established to ensure public input in the siting process and to recommend to the director site approval, approval with conditions or rejection.
(2) A panel shall consist of eight (8) members to be appointed as follows:
(a) Three (3) members shall be the director of the department of environmental quality or his designee, the director of the department of water resources or his designee, and the director of the department of agriculture or his designee.
(b) One (1) member shall be a public member appointed by the governor. The public member shall be an environmental professional, shall serve as chairman of the panel and shall be a voting member. A member who is a public member shall be appointed to serve on site review panels only until the particular site application subject to their review is approved, or until the application is rejected and is no longer subject to their review.
(c) Two (2) members shall be appointed by the city council of the city located closest to, or in which the swine facility is proposed to be located or expanded, provided the governing body of the city has signified compliance with this chapter as provided in section 39-7903, Idaho Code. At least one (1) shall be a resident of the city. However, if two (2) cities are equidistant from the proposed or expanding swine facility, plus or minus five (5) miles, the city council of each city shall appoint one (1) member each to the site review panel, each of whom shall be a resident of the city appointing them. The members serving pursuant to this subsection shall serve until the particular site application subject to their review is approved or it is rejected and is no longer subject to their review.
(d) Two (2) members shall be appointed by the county commission and be residents of the county where the swine facility is proposed to be located or expanded, provided the board of county commissioners has signified compliance with this chapter as provided in section 39-7903, Idaho Code. The members serving pursuant to this subsection shall serve until the particular site application subject to their review is approved, or until the application is rejected and is no longer subject to their review.
(e) A person nominated to represent a city or county shall not have a conflict of interest, as that term is defined in section 74-403, Idaho Code, or derive any economic gain as that term is defined in section 74-403, Idaho Code, from the location of the proposed or expanding swine facility.
(3) The director shall notify the city council of the nearest city, or cities if two (2) cities are within five (5) miles of the site of the proposed facility, and the board of county commissioners in which the site is located, of a site application filed with the department and shall instruct the city or cities and county to appoint the necessary members to a panel.
(4) A majority of members of the panel shall constitute a quorum for the transaction of business of the panel and the concurrence of a majority of the panel shall constitute a legal action of the panel, provided that no meeting of the panel shall occur unless there are at least as many members present representing the city and county as there are representing the state and the public as appointed pursuant to subsections (2)(a) and (b) of this section. All meetings of the panel shall be conducted pursuant to the state open meeting law.
(5) The director shall make staff available to assist the panel in carrying out its responsibilities.
(6) Members of the panel who are not state employees shall be entitled to receive compensation as provided in section 59-509(b), Idaho Code.
[39-7908, added 2000, ch. 268, sec. 1, p. 762; am. 2001, ch. 103, sec. 74, p. 315; am. 2015, ch. 141, sec. 99, p. 450.]
(1) A site application shall include, in a format set forth by the director and when determined applicable by the director, the following information:
(a) Name, mailing address and phone number of the facility owner;
(b) Name, mailing address and phone number of the facility operator;
(c) Name and mailing address of the facility;
(d) Legal description of the facility location;
(e) The legal structure of the entity owning the facility, including the names and addresses of all directors, officers, registered agents and partners;
(f) The names and locations of all swine facilities owned and/or operated by the applicant within the last ten (10) years;
(g) The one-time animal unit capacity of the facility;
(h) The type of animals to be confined at the facility;
(i) Evidence that a valid water right exists to supply adequate water for the proposed facility or a copy of either an application for a permit to appropriate water or an application to change the point of diversion, place, period and nature of use of an existing water right that has been filed with the Idaho department of water resources which, if approved, will supply adequate water for the proposed operation;
(j) The facility’s biosecurity and sanitary standards.
(2) A facility plan. Plans and specifications for the facility’s animal waste management system that include the following information:
(a) Vicinity map(s) prepared on one (1) or more seven and one-half minute (7.5′) USGS topographic quadrangle maps or a high quality reproduction(s) that includes the following:
(i) Layout of the facility, including buildings and animal waste management system;
(ii) The one hundred (100) year FEMA flood zones or other appropriate flood data for the facility site and land application sites owned or leased by the applicant;
(iii) The location of occupied dwellings, public and private gathering places, such as schools, churches and parks, and incorporated municipalities which are within a two (2) mile radius of the facility; and
(iv) Private and community domestic water wells, irrigation wells, irrigation conveyance and drainage structures, monitoring wells, wetlands, streams, springs, and reservoirs which are within a one (1) mile radius of the facility.
(b) Facility specifications including:
(i) A site plan showing:
Building locations;
Waste facilities;
All waste conveyance systems; and
All irrigation systems used for land application, including details of approved water supply protection devices.
(ii) Building plans showing:
All wastewater collection systems in housed units;
All freshwater supply systems, including details of approved water supply protection devices;
Detailed drawings of wastewater collection and conveyance systems and containment construction; and
Detailed construction and installation procedures.
(3) Site characterization. A characterization of the facility and any land application site(s) owned or operated by the applicant, prepared by a registered professional geologist, a registered professional engineer or a qualified ground water hydrologist, that includes the following information:
(a) A description of monitoring methods, frequency and reporting components related to either leak detection systems and/or ground water monitoring wells;
(b) The climatic, hydrogeologic and soil characteristics;
(c) The depth to water and a potentiometric map for the uppermost and regional aquifer;
(d) The vertical and horizontal conductivity, gradient and ground water flow direction and velocity;
(e) Estimates of recharge to the uppermost aquifer;
(f) Information which characterizes the relationship between the ground water and adjacent surface waters; and
(g) A summary of local ground water quality data.
(4) A nutrient management plan. A plan prepared by a certified planner demonstrating compliance with the nutrient management standard for land application.
(5) A plan for meeting standards for heavy metals as those provided in 40 CFR section 503, subchapter O.
(6) A plan for disposal of dead animal carcasses.
(7) An air quality management plan.
(8) A closure plan. A plan describing the procedures for final closure of a facility that ensures no adverse impacts to the environment and waters of the state and that includes:
(a) The estimated length of operation of the facility;
(b) A description of the procedures, methods and schedule to be implemented at the facility for final disposal, handling, management and/or treatment of all animal waste;
(c) A plan for permanent disposal of residual solid waste.
(9) Other information. An applicant shall provide any other information relative to this section and deemed necessary by the director to assess protection of human health and the environment, including information showing that:
(a) The harm to scenic, public health, environmental, private property, historic, cultural or recreational values is not substantial or can be mitigated;
(b) The risk and impact of accident during transportation of animal waste or animal carcasses is not substantial or can be mitigated. Dead animals shall be removed from the facility for rendering, cremation, burial, composting or other disposal in accordance with IDAPA 02.04.03, "Rules of Department of Agriculture Governing Animal Industry," section 050, "Dead Animals, Movement, Disposal";
(c) The impact on local government is not adverse regarding health, safety, cost and consistency with local planning and existing development or can be mitigated;
(d) The facility or operations associated with the facility do not create a public health hazard or nuisance conditions including odors;
(e) The applicant has the financial ability to construct, operate and close the facility.
(10) Within thirty (30) days after receipt of the application, the director shall determine whether it is complete. If it is not complete, the director shall notify the applicant and state the areas of deficiency.
(11) The application shall be accompanied by a fee. The director shall establish by rule the scale for determining the application fee. The fee shall be based on the cost to the site review panel of reviewing the application. The scale shall be based on characteristics including the site size, projected waste volume, and hydrogeological and atmospheric characteristics surrounding the site. Fees received pursuant to this section may be expended by the director to pay the actual, reasonable and necessary costs incurred by the department in acting upon an application.
[39-7909, added 2000, ch. 268, sec. 1, p. 763.]
(1) Upon determination that a siting application is complete, the director shall:
(a) Notify the permanent panel members, the city and/or county in which the swine facility site is located, the director of the department of fish and game, the director of the Idaho state police, and other state agencies as deemed appropriate by the director.
(b) Publish a notice that the application has been received, as provided in section 60-109, Idaho Code, in a newspaper having major circulation in the county and the immediate vicinity of the site. The notice shall contain a map indicating the location of the site, a description of the proposed action and the location where the application may be reviewed. The notice shall describe the procedure by which the siting approval under this chapter may be granted.
(2) Upon notification by the director, the chairman shall immediately notify the representatives of the state to the panel and the public members. The chairman shall also notify the applicable county and city for their appointment of members as provided in subsection (2) of section 39-7908, Idaho Code. Within thirty (30) days after the notification, the board of commissioners of the county and the city council shall select the members to serve on the panel. The panel shall be created at that time and notification of the creation of the panel shall be made to the chairman.
(3) Within thirty (30) days after appointment of panel members, the panel shall meet to review and establish a timetable for the consideration of the draft site approval.
(4) The panel shall:
(a) Set a date and arrange for publication of notice of a public hearing, in a newspaper having major circulation in the vicinity of the proposed site, at its first meeting. The public notice shall:
(i) Contain a map indicating the location of the site and proposed facility, a description of the proposed action, and the location where the application for a siting approval may be reviewed and where copies may be obtained;
(ii) Identify the time, place and location for the public hearing held to receive public comment and input on the application for a siting approval;
(b) Publish the notice not less than thirty (30) days before the date of the public hearing, and the notice shall be, at a minimum, a twenty (20) days’ notice as provided in section 60-109, Idaho Code.
(5) Comment and input on the proposed siting of the swine facility may be presented orally or in writing at the public hearing and shall continue to be accepted in writing by the panel for thirty (30) days after the public hearing date. The public hearing shall be held in the same county as the proposed site. If the proposed site is adjacent to a city or populated area in a neighboring county, it is recommended that public hearings also be held in the neighboring county.
(6) The panel shall consider, but not be limited to, the following:
(a) The risk of the spread of disease or impact upon public health from improper treatment, storage or incineration methods;
(b) The impact on local units of government where the proposed swine facility is to be located in terms of health, safety, cost and consistency with local planning and existing development;
(c) The nature of the probable environmental and public health impact;
(d) The financial capability of the applicant to construct, operate and close the swine facility; and
(e) Impact on adjacent property values.
(7) The panel shall consider the concerns and objections submitted by the public. The panel shall facilitate efforts to provide that the concerns and objections are mitigated by proposing additional conditions regarding the construction of the swine facility. The panel may propose conditions that integrate the provisions of the city or county ordinances, permits or requirements.
(8) Within one hundred eighty (180) days after creation, the panel shall issue an approval letter, approval letter with conditions, or rejection. If the panel recommends conditions, a clear statement of the need for a condition must be submitted to the director. If the panel recommends rejection, a clear statement of the reasons for the rejection must be submitted to the director.
(9) The director shall not issue a permit to operate under IDAPA 58.01.09, unless a site has been approved by the site review panel. Approval of a site by the panel does not require the director to issue a permit to operate under IDAPA 58.01.09.
[39-7910, added 2000, ch. 268, sec. 1, p. 765; am. 2021, ch. 321, sec. 25, p. 967.]
(1) All swine facilities regulated by section 39-104A, Idaho Code, and this chapter shall provide financial assurances demonstrating financial capability to meet requirements for 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.
(2) 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.
[39-7911, added 2000, ch. 268, sec. 1, p. 767; am. 2001, ch. 103, sec. 75, p. 317.]
The applicant shall provide the director with additional information the director deems necessary to process an application, within thirty (30) days of the director’s request. The time period within which the director must act with regard to an application shall be stayed until the information requested is provided. If an applicant fails to provide the information within this time period, unless a longer time period is allowed by the director, the director may stop the application process and require the applicant to submit a new application.
[39-7912, added 2000, ch. 268, sec. 1, p. 767.]
(1) The following acts are unlawful:
(a) Failure to comply with this chapter and any rules of the department regulating swine facilities, and conditions of site approval granted pursuant to this chapter;
(b) Knowingly making a false statement, representation, or certification in any application report, document, or record developed, maintained, or submitted pursuant to this chapter, rules or conditions of a site approval.
(2) Any person violating this chapter or any site approval or order under this chapter is liable for a civil or criminal penalty in accordance with chapter 1, title 39, Idaho Code. The director may apply the provisions of chapter 1, title 39, Idaho Code, to ensure compliance.
(3) The director may revoke a site approval:
(a) For material violation of any condition of a site approval, final agency order or order or judgment of a court secured by any state or federal agency and relating to the operation of a swine facility;
(b) If an approval was obtained by misrepresentation or failure to disclose all relevant facts;
(c) If approval for adequate water rights cannot be obtained from the Idaho department of water resources;
(d) The site or facility does not meet the requirements of this chapter.
(4) A private right of action on behalf of any person who has been injured or damaged by any approval authorized in this chapter or violation of the terms of any approval or rule authorized in this chapter may be maintained in accordance with the provisions of this chapter and/or the provisions of chapter 52, title 67, Idaho Code, as applicable.
[39-7913, added 2000, ch. 268, sec. 1, p. 767.]
Information obtained by a public agency pursuant to this chapter or its associated rules is subject to public disclosure pursuant to the provisions of chapter 1, title 74, Idaho Code. Information submitted under a trade secret claim may be entitled to confidential treatment as provided in section 74-114, Idaho Code, and rules of the department of environmental quality.
[39-7914, added 2000, ch. 268, sec. 1, p. 768; am. 2001, ch. 103, sec. 76, p. 317; am. 2015, ch. 141, sec. 100, p. 451.]
If any provision of this chapter or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.
[39-7915, added 2000, ch. 268, sec. 1, p. 768.]
If a conflict arises between this chapter and rules of the department regulating swine facilities, the most restrictive provision shall apply.
[39-7916, added 2000, ch. 268, sec. 1, p. 768.]
This chapter shall be known and may be cited as the "Idaho Uniform School Building Safety Act."
[39-8001, added 2000, ch. 352, sec. 1, p. 1183; am. 2023, ch. 15, sec. 14, p. 83.]
The purpose of this act is to assure the safety of children and others who use Idaho’s public schools by providing for a uniform school building safety code to apply to school buildings and by establishing procedures for achieving compliance with the code.
[39-8002, added 2000, ch. 352, sec. 1, p. 1183.]
This act shall apply to all facilities, existing now or constructed in the future, that are owned, leased or used for educational purposes by public school districts, charter schools, or a school for children in any grades kindergarten through twelve (12) that is operated by the state of Idaho receiving state funding. The authority granted under this act shall not prohibit local governments from acting to enforce applicable building and fire codes.
[39-8003, added 2000, ch. 352, sec. 1, p. 1183; am. 2001, ch. 326, sec. 4, p. 1151.]
As used in this act:
(1) "Administrator" means the administrator of the division of occupational and professional licenses or his designated representative.
(2) "Day" shall mean a calendar day unless otherwise specified.
(3) "Imminent safety hazard" means a condition that presents an unreasonable risk of death or serious bodily injury to occupants of a building.
(4) "Licensed professional" means a person licensed by the state of Idaho as an architect or an engineer.
(5) "Local government" means any city or county of this state.
(6) "Serious safety hazard" means a condition that presents an unreasonable health risk or risk of injury to occupants of a building.
[39-8004, added 2000, ch. 352, sec. 1, p. 1183; am. 2002, ch. 158, sec. 2, p. 461; am. 2023, ch. 15, sec. 15, p. 83.]
(1) The committee shall develop the Idaho uniform school building safety code to be adopted by rule of the administrator pursuant to section 39-8007, Idaho Code. The Idaho uniform school building safety code shall address elements of the national codes identified in section 39-4109, Idaho Code, and rule of the state board of education at IDAPA 08.02.02.130.
(2) Until the Idaho uniform school building safety code is adopted by rule pursuant to section 39-8007, Idaho Code, the national codes adopted under section 39-4109, Idaho Code, and rule of the state board of education at IDAPA 08.02.02.130 shall serve as the interim Idaho uniform school building safety code.
[39-8006, added 2000, ch. 352, sec. 1, p. 1184.]
(1) The administrator shall enforce the provisions of this chapter in cooperation with the superintendent of public instruction and the building code advisory board.
(2) The administrator shall promulgate rules necessary to carry out the provisions of this chapter. Such rules shall be promulgated pursuant to the provisions of chapter 52, title 67, Idaho Code.
(3) The administrator shall establish a program for the timely review of public school construction plans as required by section 39-4113 (5)(f), Idaho Code.
(4) Upon request, the administrator shall provide training to school districts on the Idaho uniform school building safety code.
[39-8007, added 2000, ch. 352, sec. 1, p. 1184; am. 2009, ch. 219, sec. 3, p. 684; am. 2010, ch. 166, sec. 2, p. 340; am. 2010, ch. 174, sec. 2, p. 359; am. 2026, ch. 277, sec. 2, p. 1167.]
(1) The administrator shall have authority under this section to enter all public school facilities covered by this chapter at reasonable times to inspect, on an annual basis, such facilities for compliance with the Idaho uniform school building safety code; provided however, that inspections shall take into account the age of the school facilities and the appropriate codes that would have been in effect at the time of the construction of such facilities; provided further, that regardless of the codes in effect at the time of construction, imminent safety hazards found in public school facilities shall be identified and the provisions of this chapter relating to such imminent safety hazards shall apply.
(2) If the administrator finds a violation of the Idaho uniform school building safety code that he concludes does not constitute an imminent safety hazard or serious safety hazard, he shall notify in writing the school district superintendent, principal, board member, or other person in charge. Such notification shall state, in bold print, that the citations for violations or nonconformances constitute recommendations only.
(3) If the administrator finds a violation of the Idaho uniform school building safety code that he concludes constitutes a serious safety hazard, he shall immediately issue a written order or notice requiring the school superintendent, principal, board of trustees or other person in charge to eliminate the condition without delay and within the time specified by the administrator in the notice or order, but not exceeding one (1) year. The administrator may also designate a licensed professional to independently evaluate the identified condition prior to issuing a written order to eliminate the condition.
(4) If the administrator finds a violation of the Idaho uniform school building safety code that he concludes constitutes an imminent safety hazard, he shall, within two (2) working days, designate a licensed professional to independently evaluate the identified condition prior to issuing any report under this chapter. That licensed professional shall, within fourteen (14) days, complete its independent evaluation of the condition identified by the administrator and notify the administrator of its conclusions. If the administrator determines that the condition constituting an imminent safety hazard could reasonably be expected to cause death or serious physical harm before the evaluation of the designated licensed professional can be completed and before the condition can be eliminated, he shall determine the extent of the area where such condition exists and thereupon shall issue a written order or notice requiring the school district superintendent, principal, board of trustees or other person in charge to cause all persons, except those necessary to eliminate the condition, to be withdrawn from and to be restrained from entering such area pending the evaluation of the designated licensed professional. This order shall be withdrawn if the evaluation of the designated licensed professional does not concur with the administrator that the condition constitutes an imminent safety hazard as could reasonably be expected to cause death or serious physical harm before the condition can be eliminated.
(5) If, upon receipt of the findings of the designated licensed professional, the administrator concludes that any condition identified by such licensed professional constitutes an imminent safety hazard, the administrator shall immediately serve, or cause to be served, written notice or order upon the school district superintendent, principal, board of trustees or other person in charge describing the imminent safety hazard. The administrator shall also notify in writing the state superintendent of public instruction of such imminent safety hazard. Upon receipt of such written notice or order, the school district superintendent, principal, board of trustees, or other person in charge shall require all changes necessary to eliminate the imminent safety hazard be made without delay and within the time specified by the administrator in the notice or order. If the condition presenting an imminent safety hazard is not corrected within the specified time, or if the administrator determines that the condition constituting such imminent safety hazard could reasonably be expected to cause death or serious physical harm before the condition can be eliminated, and if he has not previously done so, he shall determine the extent of the area where such condition exists and thereupon shall issue an order or notice requiring the school district superintendent, principal, board member, or other person in charge to cause all persons, except those necessary to eliminate the condition, to be withdrawn from and to be restrained from entering such area. The school district superintendent, principal, board member, or other person in charge shall assist the administrator as necessary to post such areas to prevent injury.
(6) If the administrator finds a violation of the Idaho uniform school building safety code that he concludes constitutes a serious safety hazard and issues a written order or notice requiring the conditions to be eliminated in not more than one (1) year, and the school superintendent, principal, board of trustees, or other person in charge contests the administrator’s finding that the condition is a serious safety hazard, then the school superintendent, principal, board of trustees, or other person in charge shall have fourteen (14) days from the date of the issuance of the administrator’s written order or notice to request a hearing to initiate a contested case under chapter 52, title 67, Idaho Code. If a hearing is requested, the superintendent of public instruction shall appoint a hearing officer to consider the contested case. All administrative proceedings under this subsection shall be expedited as necessary to assure that serious safety hazards are eliminated as required by this section if the administrator’s initial determination that there was a serious safety hazard is confirmed in the contested case proceedings.
(7) The administrator shall monitor the school district’s progress in addressing any identified imminent safety hazard or serious safety hazard to ensure that appropriate corrective action was taken. The administrator may extend the time for completing corrective action if he deems necessary.
(8) Upon completion of corrective action and verification of such completion by the division of occupational and professional licenses and the department of administration, the administrator shall provide a report to the state superintendent of public instruction, the local superintendent of schools and the chair of the local school board.
(9) Annual inspections of public school facilities conducted by the administrator under the provisions of this section shall be funded pursuant to legislative appropriation.
[39-8008, added 2000, ch. 352, sec. 1, p. 1184; am. 2001, ch. 326, sec. 5, p. 1151; am. 2002, ch. 126, sec. 2, p. 353; am. 2002, ch. 158, sec. 3, p. 461; am. 2003, ch. 16, sec. 10, p. 56; am. 2010, ch. 166, sec. 3, p. 341; am. 2023, ch. 15, sec. 18, p. 84.]
Upon failure of the district superintendent, principal, board of trustees, or other person in charge to comply with the requirements stated in any notice or order relating to an imminent safety hazard or serious safety hazard, the administrator may maintain an action in the name of the state of Idaho to enjoin the district superintendent, principal, board of trustees or other person in charge from acting in violation of such notice or order or from doing any action that interferes with the administrator carrying out his statutory duties. Such action shall be brought in the district court in which said acts are claimed to have been committed by filing a verified complaint setting forth said act. The court, if satisfied from such complaint or affidavits that the act complained of has been or is being committed and will persist, may issue a temporary writ without notice or bond enjoining the defendant from the commission of such act pending final disposition of the cause. The cause shall proceed as in other causes for injunction. If, at the trial, the commission of said act by the defendant be established and the court further finds it probable that the defendant will continue in such act or similar acts, the court shall enter a decree enjoining said defendant from committing said or similar acts.
[39-8009, added 2000, ch. 352, sec. 1, p. 1185; am. 2002, ch. 158, sec. 4, p. 463.]
(1) The Idaho building code board shall, within ten (10) days after receipt of notice for an appeal, hear such appeal brought before it by a school district affected by any finding pursuant to this chapter that there exists in a school building a violation of the uniform school building safety code, provided however, that an appeal brought pursuant to this section shall not affect the ability of the administrator to obtain an injunction pursuant to section 39-8009, Idaho Code. Such hearing shall be governed by the provisions of chapter 52, title 67, Idaho Code. Final decisions of the board, other than code interpretations, are subject to judicial review in accordance with the provisions of chapter 52, title 67, Idaho Code.
(2) The board shall provide reasonable interpretations of the codes enumerated in this chapter.
(3) Within ten (10) days of the conclusion of the hearing, the board shall render its findings and decisions in writing to the state superintendent of public instruction, the administrator of the division of occupational and professional licenses and the appealing district.
[39-8010, added 2000, ch. 352, sec. 1, p. 1185; am. 2010, ch. 166, sec. 4, p. 343; am. 2023, ch. 15, sec. 19, p. 86.]
(1) If a school district, the district superintendent, principal, board of trustees, or other person in charge willfully violates the provisions of this chapter, the state superintendent of public instruction shall withhold such ensuing apportionments as are necessary to make repairs to abate the identified imminent safety hazard or serious safety hazard. Withheld funds, not to exceed one and one-half percent (1 1/2%) of the district’s appropriation, shall be disbursed only to pay for such repairs.
(2) If the funds that would be raised over two (2) fiscal years from applying the provisions of subsection (1) of this section are insufficient, in combination with all moneys that will be available in the district’s school building maintenance allocation for the same period, to provide sufficient moneys to abate the identified imminent or serious safety hazard, then the administrator shall submit an application to abate said hazard to the Idaho public school facilities cooperative funding program panel pursuant to section 33-909, Idaho Code.
(3) It is a misdemeanor to remove, without permission of the administrator, a notice or order posted pursuant to this chapter.
[39-8011, added 2000, ch. 352, sec. 1, p. 1186; am. 2002, ch. 158, sec. 5, p. 463; am. 2006, ch. 311, sec. 10, p. 966; am. 2007, ch. 142, sec. 2, p. 414.]
If any portion of this act, or the application of any provision of this act to any person or circumstance, shall be held invalid, the remainder of this act, or the application of such provision to persons or circumstances other than those to which it is held invalid, shall not be affected.
[39-8012, added 2000, ch. 352, sec. 1, p. 1186.]
This act may be known and cited as the "Basin Environmental Improvement Act."
[39-8101, added 2001, ch. 371, sec. 2, p. 1297.]
The Idaho legislature declares that environmental protection and improvement of the Coeur d’Alene basin to protect human health and enhance natural resources is very important to the state. Therefore, it is the policy of the state to provide in this chapter a system for environmental remediation, natural resource restoration and related measures to address heavy metal contamination in the basin. The system provided in this chapter is intended to protect and promote the health, safety and general welfare of the people of Idaho in a manner consistent with local, state, federal and tribal participation and resources.
[39-8102, added 2001, ch. 371, sec. 2, p. 1297.]
As used in this chapter, unless a different meaning clearly appears from the context:
(1) "Administrator" means the administrator or a member of the board of administrators of the basin environmental improvement fund and financing authority.
(2) "Basin" means the watershed of Coeur d’Alene Lake within the counties of Shoshone, Kootenai and Benewah in the state of Idaho.
(3) "Basin environmental improvement fund and financing authority" or "financing authority" means the entity established by the authority of this chapter, and agreements, compacts, reciprocal legislation or resolutions with or by the United States of America, the Coeur d’Alene tribe or the state of Washington to accept and invest funds and finance the activities of the basin project.
(4) "Basin environmental improvement project" or "basin project" means the environmental and natural resources restoration and related measures regarding heavy metal contamination in the basin undertaken by the commission.
(5) "Basin environmental improvement project commission" or "commission" means the entity organized by the authority of this chapter and agreements, compacts, reciprocal legislation or resolutions with or by the United States of America, the Coeur d’Alene tribe or the state of Washington to implement the basin project.
(6) "Board of administrators" or "administrators" means the administrator or board of administrators of the basin environmental improvement fund and financing authority.
(7) "Board of commissioners" or "commission" means the board of commissioners of the basin environmental improvement project commission.
(8) "Bonds" or "notes" or "bond anticipation notes" or "other obligations" means any bonds, notes, debentures, interim certificates or other evidence of financial indebtedness issued by the financing authority pursuant to this chapter.
(9) "Commissioner" means a member of the board of commissioners of the basin environmental improvement project commission.
(10) "Executive director" means the executive director of the basin environmental improvement project commission.
[39-8103, added 2001, ch. 371, sec. 2, p. 1298.]
The director of the department of environmental quality and the attorney general of the state of Idaho or their delegates shall represent the state of Idaho in negotiations with representatives of the state of Washington, the Coeur d’Alene tribe and the United States of America for the purpose of reaching agreements or compacts between the state of Idaho and any or all of the other named governments regarding participation in the basin project commission and the basin financing authority, for the purpose of providing for environmental remediation and natural resource restoration in the Coeur d’Alene basin in a manner consistent with local, state, federal and tribal authorities and resources; provided however, that any agreement or compact entered into on behalf of the named governments shall not be binding or obligatory upon any of those governments until the agreement or compact is approved by the requisite named governments. The governor of the state of Idaho may enter into any agreement or compact consistent with this chapter.
[39-8104, added 2001, ch. 371, sec. 2, p. 1298.]
The governor of the state of Idaho shall advise the chairman of the Coeur d’Alene tribe, the governor of the state of Washington and the president of the United States of America of the enactment of this chapter and request that, if necessary, reciprocal resolutions or legislation be enacted by those governments to authorize negotiation and entry into agreements or compacts regarding participation in the basin environmental improvement project commission and financing authority.
[39-8105, added 2001, ch. 371, sec. 2, p. 1299.]
(1) The basin environmental improvement project commission is hereby created and shall become operational when the director of the department of environmental quality, by execution of an appropriate order, determines that:
(a) Significant funds from any source have been provided to the basin improvement fund and financing authority; or
(b) Any one (1) or more agreements or compacts have been entered into between the state of Idaho and the state of Washington, the Coeur d’Alene tribe or the United States of America providing for participation in the basin project commission and financing authority.
(2) Any agreement or compact providing for participation in the basin project commission and financing authority shall be consistent with the terms of this chapter.
(3) The board of commissioners of the basin project commission shall include one (1) representative of the state of Idaho and one (1) representative from each of the county commissions of Shoshone, Kootenai and Benewah counties of the state of Idaho as appointed by the governor of the state of Idaho. Upon participation of the state of Washington, the Coeur d’Alene tribe or the United States of America through agreement or compact, the board of commissioners shall also include, according to such participation: one (1) representative of the state of Washington appointed by the governor of Washington; one (1) tribal council member of the Coeur d’Alene tribe appointed by the council of the Coeur d’Alene tribe; and one (1) representative of the United States of America appointed by the president of the United States of America.
(4) The commission shall act by majority vote except that the vote of any commissioner representative of the state of Idaho, the Coeur d’Alene tribe or the United States of America, or the unanimous vote of all three (3) commissioners representing Shoshone, Kootenai and Benewah counties, may veto any majority vote, in which event the action is not valid. The fiduciary duties of each commissioner shall be to their respective federal, tribal, state, or local governmental entity and such duties shall not disqualify any commissioner from full participation in any commission action. The commission may establish an advisory group to provide local citizen input to the commission in the performance of its duties. The commission shall distribute and publish a public involvement policy, to include procedures to assure adherence to the open meeting law and the public records act.
(5) The commission shall adopt as the basin project workplan a record of decisions approved pursuant to the federal comprehensive environmental responsibility compensation and liability act of 1980 (CERCLA), as amended, by the environmental protection agency of the United States of America, the department of environmental quality of the state of Idaho and, upon its participation, the Coeur d’Alene tribe, for environmental remediation and related measures pertaining to contamination by heavy metals in the basin. Amendment of the basin project workplan shall be made by the commission upon approval of the United States environmental protection agency, the Idaho department of environmental quality and the Coeur d’Alene tribe.
(6) The commission shall, to the extent that funds are available from the financing authority and any other source, implement the basin project workplan.
(7) The commission may select institutional control measures in implementation of the basin project workplan. The measures shall be adopted and implemented by appropriate local and tribal governments as a condition of remediation or restoration activities within those jurisdictions.
(8) The commission shall appoint an executive director to administer the basin project.
(9) The commission shall annually fix and determine, consistent with the basin project workplan and its schedule, the priorities of the basin project, the amount of money required from the financing authority, federal grants and taxation for implementing the basin project priorities including costs of construction and other activities, costs of operation and maintenance of the work, equipment of the basin project, and costs of administration.
(10) The commission shall have, within the basin, the authority of a board of commissioners of a flood control district as provided in chapter 31, title 42, Idaho Code, and the authority of a board of commissioners of a drainage district as provided in chapters 29 and 30, title 42, Idaho Code.
(11) The commission shall have the following powers and duties which may be exercised through the executive director of the basin project commission:
(a) To employ personnel as may be necessary to carry out the purposes and objectives of the basin project commission;
(b) To sue and be sued in the name of the basin project commission and to make and execute contracts and other instruments necessary or convenient to the exercise of its power;
(c) To manage and conduct the business and affairs of the basin project commission, both within and without the basin;
(d) To design, construct, operate and maintain structural works and actions as provided by the basin project workplan or procure or contract for the performance of those works and actions or portions thereof by any local, state, tribal or federal governmental entity or any private entity or individual;
(e) To prescribe the duties of officers, agents and employees as may be required;
(f) To establish the fiscal year of the basin project commission, to keep records of all business transactions of the basin project commission and to provide an annual public accounting of all expenditures;
(g) To obtain options upon and acquire by purchase, exchange, lease, gift, grant, bequest, devise, or otherwise, any real or personal property, and improve any properties acquired; to receive income from properties and to expend the income in carrying out the purposes and provisions of the basin project commission; and to lease any of its property or interest therein in furtherance of the purposes and provisions of the basin project commission;
(h) To convey rights-of-way and easements for highways, public roads, public utilities, and for other purposes, over basin project property, as shall be determined by the commission to be in the best interests of the basin project;
(i) To convey by deed, bill of sale, or other appropriate instrument all of the estate and interest of the basin project commission, in any real or personal property;
(j) To enter into contracts or agreements with the United States of America or any of its agencies, the states of Idaho or Washington or any of their agencies or political subdivisions or the Coeur d’Alene tribe or any of its agencies or subdivisions or private entities or individuals and to cooperate with those governments, agencies, subdivisions, private entities or individuals in effectuating, promoting and accomplishing the purposes of the basin project;
(k) To bear its allocated share of the cost of any project resulting from any contract or agreement entered into as provided in this chapter;
(l) To assume, administer and maintain pursuant to any agreement or contract entered into in accordance with this chapter any environmental remediation or restoration measure within the basin undertaken by or in cooperation with the United States of America or any of its agencies, the states of Idaho or Washington or any of their agencies or subdivisions, or the Coeur d’Alene tribe or any of its agencies or subdivisions, or any combinations thereof;
(m) To accept donations, gifts and contributions in money, services, materials, or otherwise, from the United States of America or any of its agencies, or the states of Idaho or Washington or any of their agencies or political subdivisions, or the Coeur d’Alene tribe or any of its agencies or subdivisions, or private entities or individuals, or any combinations thereof, and to expend such moneys, services, or materials in carrying on its operations;
(n) To exercise all other powers necessary or helpful in carrying out the purposes and provisions of the basin project commission as provided in this chapter and by agreements or compacts between the states of Idaho and Washington, the Coeur d’Alene tribe and the United States of America.
[39-8106, added 2001, ch. 371, sec. 2, p. 1299; am. 2002, ch. 39, sec. 1, p. 87; am. 2003, ch. 220, sec. 1, p. 570.]
(1) The basin environmental improvement fund and financing authority is hereby created and shall become operational when the director of the department of environmental quality, by execution of an appropriate order, determines that significant funds have been provided to the financing authority from any source, or any one (1) or more agreements or compacts between the state of Idaho and the state of Washington, the Coeur d’Alene tribe or the United States of America providing for participation in the basin project commission and financing authority. The financing authority shall be an independent public body corporate and politic within the meaning of section 1, article viii, of the constitution of the state of Idaho, with no power to levy taxes or to obligate the general fund of the state of Idaho.
(2) The administrator or board of administrators of the financing authority shall consist of one (1) representative appointed by the governor of the state of Idaho. Upon participation in the basin project by agreement or compact, one (1) representative shall be appointed by the council of the Coeur d’Alene tribe, one (1) representative shall be appointed by the governor of the state of Washington and one (1) representative shall be appointed by the president of the United States of America. Appointments shall be made on the basis of demonstrated investment and financial management expertise. Each administrator shall serve at the pleasure of his or her respective appointing authority and may be removed and replaced at any time. Administrators shall not be compensated. Two (2) or more administrators shall constitute a board and may act by majority vote. Meetings shall be held whenever a majority of administrators so request. The administrator or board of administrators shall direct the activities of the financing authority.
(3) The funds of the financing authority may include moneys and any income paid in settlement of any claims or lawsuits regarding heavy metals contamination in the basin, annual appropriations by the states of Idaho and Washington or the Coeur d’Alene tribe, receipts from the issuance of bonds and any other source, public or private. To the extent allowed by law, the funds of the financing authority shall not be considered federal funds and shall be available for use as state matching funds for federal grants.
(4) The financing authority may administer its funds to maximize income to fund the basin project. The financing authority is hereby authorized to invest any funds not needed for immediate use or disbursement, including any funds held in reserve, in:
(a) Bonds, notes and other obligations of the United States of America or any agency or instrumentality thereof and other securities secured by such bonds, notes or other obligations;
(b) Money market funds which are insured or the assets of which are limited to obligations of the United States of America or any agency or instrumentality thereof;
(c) Time certificates of deposit and savings accounts; and
(d) Commercial paper which, at the time of its purchase, is rated in the highest category by a nationally recognized rating service.
(5) The financing authority may contract for services deemed necessary to carry out its duties including, but not limited to, financial, legal and accounting services.
(6) The financing authority may provide moneys from its funds to the basin project commission not to exceed such amounts as annually may be requested by the basin project commission.
(7) The financing authority shall establish its fiscal year, keep records of all investments, expenditures and business transactions and provide for an annual public accounting.
(8) The financing authority may exercise all other powers necessary or appropriate to carry out its corporate purposes including, without limitation, the following:
(a) To sue and be sued in its own name;
(b) To have an official seal and to alter the seal at its pleasure;
(c) To maintain an office at a place or places within this state as it may designate;
(d) To hire officers, agents and employees as may be required and to prescribe its duties;
(e) To make and execute contracts and all other instruments necessary or convenient for the exercise of its powers and functions;
(f) To obtain insurance against any loss in connection with its property and other assets in amounts and from insurers it deems desirable;
(g) To borrow money and issue bonds and notes or other evidences of indebtedness as hereinafter provided; and
(h) To the extent permitted under its contract with the holders of bonds, notes and other obligations of the financing authority, to consent to any modification of any contract, lease or agreement of any kind to which the financing authority is a party.
[39-8107, added 2001, ch. 371, sec. 2, p. 1301.]
(1) The financing authority may issue from time to time its notes and bonds in a principal amount as the financing authority determines to be necessary to provide sufficient funds for achieving any of its corporate purposes, including the payment of interest on notes and bonds of the financing authority, establishment of reserves to secure notes and bonds, and all other expenditures of the financing authority incident to and necessary or convenient to carry out its corporate purposes and powers.
(2) The financing authority may issue:
(a) Bonds or notes, in one (1) or more series, to finance the basin project or any portion or portions thereof;
(b) Notes in anticipation of appropriations or other revenues;
(c) Notes to renew notes; and
(d) Bonds to pay notes, including the interest thereon, and whenever it deems refunding expedient, to refund any bonds by the issuance of new bonds, whether the bonds to be refunded have or have not matured, and to issue bonds partly to refund bonds then outstanding and partly for any of its corporate purposes. The refunding bonds may be:
(i) Exchanged for bonds to be refunded; or
(ii) Sold and the proceeds applied to the purchase, redemption or payment of such bonds.
(3) Every issue of its notes and bonds shall be special obligations of the financing authority payable out of such fund or funds as shall be specified by the financing authority.
(a) The notes and bonds shall be authorized by resolution or resolutions of the financing authority, shall bear a date or dates and shall mature at a time or times as the resolution or resolutions may provide, except that no note shall mature more than one (1) year from the date of its issue and no bond shall mature more than thirty (30) years from the date of its issue. The bonds may be issued as serial bonds payable in annual installments or as term bonds or as a combination thereof. The notes and bonds shall bear interest at a rate or rates, be in denominations, be in a form, either coupon or registered, carry registration privileges, be executed in a manner, be payable in a medium of payment, at a place or places, and be subject to terms of redemption as the resolution or resolutions may provide. The notes and bonds of the financing authority may be sold by the financing authority, at public or private sale, at a price or prices, at, above, or below par, as the financing authority shall determine.
(b) Any resolution or resolutions authorizing any notes or bonds or any issue thereof may contain provisions, which shall be a part of the contract or contracts with the holders thereof, as to:
(i) Pledging all or any part of the revenues to secure the payment of the notes or bonds or of any issue thereof, subject to such agreements with noteholders or bondholders as may then exist;
(ii) Pledging all or any part of the assets of the financing authority to secure the payment of the notes or bonds or of any issue of notes or bonds, subject to agreements with noteholders or bondholders as may then exist;
(iii) The setting aside of reserves or sinking funds and the regulation and disposition thereof;
(iv) Limitations on the purpose to which the proceeds of sale of notes or bonds may be applied;
(v) Limitations on the issuance of additional notes or bonds, the terms upon which additional notes or bonds may be issued and secured, and the refunding of outstanding or other notes or bonds;
(vi) The procedure, if any, by which the terms of any contract with noteholders or bondholders may be amended or abrogated, the amount of notes or bonds the holders of which must consent thereto, and the manner in which such consent may be given;
(vii) Limitations on the amount of moneys to be expended by the financing agency for operating expenses of the financing authority;
(viii) Vesting in a trustee’s or trustees’ property, rights, powers and duties in trust as the financing authority may determine, which may include any or all of the rights, powers and duties of the trustee appointed by the bondholders pursuant to this chapter, and limiting or abrogating the right of the bondholders to appoint a trustee under this chapter or limiting the rights, powers and duties of the trustee;
(ix) Defining the acts or omissions to act which shall constitute a default in the obligations and duties of the financing authority to the holders of the notes or bonds and providing for the rights and remedies of the holders of the notes or bonds in the event of a default, including as a matter of right the appointment of a receiver; provided however, that these rights and remedies shall be consistent with this chapter and the laws of the state of Idaho;
(x) Any other matters, of like or different character, which in any way affect the security or protection of the holders of the notes or bonds.
(c) Any pledge made by the financing authority shall be valid and binding from the time when the pledge is made; the revenues, moneys or property so pledged and thereafter received by the financing agency shall immediately be subject to the lien of the pledge without any physical delivery thereof or further act, and the lien of the pledge shall be valid and binding against all parties having claims of any kind in tort, contract or otherwise against the financing authority, irrespective of whether the parties have notice thereof. Neither the resolution nor any other instrument by which a pledge is created need be recorded.
(d) Neither any administrator of the financing authority nor any other person executing the notes or bonds are subject to any personal liability or accountability by reason of the issuance thereof.
(e) The financing authority, subject to agreements with noteholders or bondholders as may then exist, shall have power out of any funds available therefor to purchase notes or bonds of the financing authority, which shall thereupon be canceled, at a price not exceeding:
(i) If the notes or bonds are then redeemable, the redemption price, including redemption premium, if any, then applicable plus accrued interest to the next interest payment thereon; or
(ii) If the notes or bonds are not then redeemable, the redemption price applicable on the first date after such purchase upon which the notes or bonds become subject to redemption plus accrued interest to such date.
(f) In the discretion of the financing authority, the bonds may be secured by a trust indenture by and between the financing authority and a corporate trustee which may be any trust company or bank having the power of a trust company in the state. The trust indenture may contain provisions for protecting and enforcing the rights and remedies of the bondholders as may be reasonable and proper and not in violation of law, including covenants setting forth the duties of the financing authority in relation to the exercise of its corporate powers and the custody, safeguarding and application of all moneys. The financing authority may provide by a trust indenture for the payment of the proceeds of the bonds and the revenues to the trustee under the trust indenture or other depository, and for the method of disbursement thereof, with safeguards and restrictions as it may determine. All expenses incurred in carrying out the trust indenture may be treated as a part of the operating expenses of the financing agency. If the bonds are secured by a trust indenture, the bondholders have no authority to appoint a separate trustee to represent them.
(g) Whether or not the notes and bonds are of a form and character as to be negotiable instruments under the terms of the uniform commercial code, the notes and bonds are hereby made negotiable instruments within the meaning, and for all the purposes, of the uniform commercial code, subject only to the provisions of the notes and bonds for registration.
(h) In case any of the administrators or officers of the financing authority whose signatures appear on any notes or bonds or coupons shall cease to be administrators or officers before the delivery of the notes or bonds, the signatures shall, nevertheless, be valid and sufficient for all purposes, the same as if the administrators or officers had remained in office until delivery.
(4) The financing authority may provide for the issuance of refunding obligations for the purpose of refunding any obligations then outstanding which have been issued under the provisions of this chapter, including the advance refunding of obligations as provided by section 57-504, Idaho Code, and including the payment of any redemption premium thereon and any interest accrued or to accrue to the date of redemption of such obligations and for any corporate purpose of the financing authority. The issuance of the obligations, the maturities and other details thereof, the rights of the holders thereof, and the rights, duties and obligations of the financing authority in respect of the same shall be governed by the provisions of this chapter which relate to the issuance of obligations, insofar as such provisions may be appropriate.
(5) Refunding obligations issued as provided in subsection (4) of this section may be sold or exchanged for outstanding obligations issued under this chapter and, if sold, the proceeds thereof may be applied, in addition to any other authorized purposes, to the purchase, redemption or payment of such outstanding obligations. Pending the application of the proceeds of any refunding obligations, with any other available funds, to the payment of the principal, accrued interest and any redemption premium on the obligations being refunded, and, if so provided or permitted in the resolution authorizing the issuance of the refunding obligations or in the trust agreement securing the same, to the payment of any interest on the refunding obligations and any expenses in connection with refunding, the proceeds may be invested in direct obligations of, or obligations the principal of and the interest on which are unconditionally guaranteed by the United States of America which shall mature or which shall be subject to redemption by the holders thereof, at the option of the holders, not later than the respective dates when the proceeds, together with the interest accruing thereon, will be required for the purposes intended.
(6) All funds of the financing authority except as otherwise authorized or provided in this chapter shall be deposited as soon as practicable in a separate account or accounts in banks or trust companies organized under the laws of the state of Idaho or the national banking association. The moneys in the accounts shall be paid out on checks signed by the chair of the board of administrators or other officers or employees of the financing authority as the administrators authorize. All deposits of the moneys shall, if required by the financing authority, be secured by obligations of the United States of America, of the state or of any municipalities or political subdivisions or agencies of the state at a market value equal at all times to the amount of the deposit, and all banks and trust companies are authorized to give security for the deposits.
(7) Notwithstanding the provisions of this section, the financing authority may contract with the holders of any of its notes or bonds as to the custody, collection, securing, investment and payment of any moneys of the financing authority and of any moneys held in trust or otherwise for the payment of notes or bonds, and to carry out the contract. Moneys held in trust or otherwise for the payment of notes or bonds or in any way to secure notes or bonds and deposits of the moneys may be secured in the same manner as moneys of the financing authority, and all banks and trust companies are authorized to give security for the deposits.
(8) The financing authority may contract with the holders of bonds or notes with respect to the rights of such holders in the event of a default in the payment of principal or interest on such bonds or notes.
[39-8108, added 2001, ch. 371, sec. 2, p. 1303.]
The state pledges to and agrees with the holders of any notes or bonds issued under this chapter that the state will not limit or alter the rights hereby vested in the financing authority to fulfill the terms of any agreements made with the holders thereof or in any way impair the rights and remedies of the holders until the notes and bonds, together with the interest thereon, with interest on any unpaid installments of interest, and all costs and expenses in connection with any action or proceeding by or on behalf of the holders, are fully met and discharged. The financing authority may include this pledge and agreement of the state in any agreement with the holders of the notes or bonds.
[39-8109, added 2001, ch. 371, sec. 2, p. 1306.]
The notes, bonds or other obligations of the financing authority are not an indebtedness or obligation of the state of Idaho, or of any department, board, commission, agency, political subdivision, body corporate and politic, or instrumentality of a municipality or county within the state, nor shall such notes, bonds or obligations of the financing authority constitute the giving or loaning of the credit of the state of Idaho, or of any department, board, commission, agency, political subdivision, body corporate and politic or instrumentality of a municipality or county within the state, nor shall they be payable out of any funds other than those of the financing authority; and the notes and bonds shall contain on the face thereof a statement to that effect.
[39-8110, added 2001, ch. 371, sec. 2, p. 1307.]
The state may make grants of money or property to the financing authority for the purpose of enabling it to carry out its corporate purposes and for the exercise of its powers including, but not limited to, deposits to the reserve funds. This section does not limit any other power the state may have to make grants to the financing authority.
[39-8111, added 2001, ch. 371, sec. 2, p. 1307.]
The notes and bonds of the financing authority are legal investments in which all public officers and public bodies of this state, its political subdivisions, all municipalities and municipal subdivisions, all insurance companies and associations and other persons carrying on an insurance business, all banks, bankers, banking associations, trust companies, savings banks and savings associations, including savings and loan associations, building and loan associations, investment companies and other persons carrying on a banking business, all administrators, guardians, executors, trustees and other fiduciaries, and all other persons whatsoever who are now or may hereafter be authorized to invest in bonds or in other obligations of the state, may properly and legally invest funds, including capital, in their control or belonging to them. The notes and bonds are also hereby made securities which may properly and legally be deposited with and received by all public officers and bodies of the state or any agency or political subdivision of the state and all municipalities and public corporations for any purpose for which the deposit of bonds or other obligations of the state is authorized by law.
[39-8112, added 2001, ch. 371, sec. 2, p. 1307.]
The basin project commission and the financing authority perform essential governmental functions in the exercise of the powers conferred upon them under this chapter. The notes and bonds of the financing authority issued under this chapter, and the income therefrom, including any profit made on the sale thereof, and all its fees, charges, gifts, grants, revenues, receipts, and other moneys received, pledged to pay or secure the payment of the notes or bonds, are exempt from taxation by the state, municipalities and all other political subdivisions of the state. Any property acquired or used by the basin project commission consistent with this chapter are exempt from taxation and assessments.
[39-8113, added 2001, ch. 371, sec. 2, p. 1307.]
This chapter does not restrict or limit the powers which the basin project commission or financing authority might otherwise have under any laws of this state, and this chapter is cumulative to those powers. This chapter provides an additional and alternative method for actions authorized and shall be regarded as supplemental and additional to powers conferred by other laws. However, the issuance of bonds, notes and other obligations and refunding bonds under this chapter need not comply with the requirements of any other state law applicable to the issuance of bonds, notes and other obligations. Contracts for the construction and acquisition of any facilities undertaken pursuant to this chapter need not comply with any other state law applicable to contracts for the construction and acquisition of state owned property. No proceedings, notice or approval is required for the issuance of any bonds, notes and other obligations or any instrument as security therefor, except as is provided in this chapter.
[39-8114, added 2001, ch. 371, sec. 2, p. 1308.]
If any provision of this chapter is inconsistent with the provisions of any other law, general, specific or local, the provisions of this chapter control.
[39-8115, added 2001, ch. 371, sec. 2, p. 1308.]
This chapter shall be known as the "Idaho Safe Haven Act."
[(39-8201) 39-8101, added 2001, ch. 357, sec. 1, p. 1253; am. and redesig. 2005, ch. 25, sec. 68, p. 106.]
As used in this chapter, the following terms shall mean:
(1) "Custodial parent," for the purposes of this chapter, means, in the absence of a court decree, the parent with whom the child resides.
(2) "Indian child" means any unmarried person who is under eighteen (18) years of age and is either:
(a) A member or citizen of an Indian tribe; or
(b) Eligible for membership or citizenship in an Indian tribe and is the biological child of a member or citizen of an Indian tribe.
(3) "Newborn safety device" means a device that is voluntarily installed in a supporting wall of a hospital, fire station, law enforcement agency, or medical services provider that is staffed twenty-four (24) hours per day and that has an exterior point of access allowing an individual to place a newborn infant inside and an interior point of access allowing individuals inside the building to safely retrieve the newborn infant.
(4) "Safe haven" means:
(a) Hospitals licensed in the state of Idaho;
(b) Licensed physicians in the state of Idaho and staff working at their offices and clinics;
(c) Advanced practice professional nurses, including certified nurse-midwives, clinical nurse specialists, nurse practitioners and certified registered nurse anesthetists licensed or registered pursuant to chapter 14, title 54, Idaho Code;
(d) Physician assistants licensed pursuant to chapter 18, title 54, Idaho Code;
(e) Medical personnel acting or serving in the capacity as a licensed provider, affiliated with a recognized Idaho EMS agency. For purposes of this act, "medical personnel" shall include those individuals certified by the Idaho military division as:
(i) First responders;
(ii) Emergency medical technicians – basic;
(iii) Advanced emergency medical technicians – ambulance;
(iv) Emergency medical technicians – intermediate; and
(v) Emergency medical technicians – paramedic; and
(f) A fire station operated by a city, a county, a tribal entity, a fire protection district or a volunteer fire department if there are personnel on duty.
[(39-8202) 39-8102, added 2001, ch. 357, sec. 1, p. 1253; am. and redesig. 2005, ch. 25, sec. 69, p. 107; am. 2017, ch. 200, sec. 1, p. 502; am. 2024, ch. 115, sec. 1, p. 495; am. 2025, ch. 94, sec. 26, p. 473; am. 2025, ch. 127, sec. 1, p. 659.]
(1) A safe haven shall take temporary physical custody of a child, without court order, if the child is personally delivered to a safe haven or to a safe haven through a newborn safety device, provided that:
(a) The child is no more than thirty (30) days of age;
(b) The custodial parent delivers the child to the safe haven; and
(c) The custodial parent does not express an intent to return for the child.
(2) A hospital, fire station, law enforcement agency, or medical services provider that is staffed twenty-four (24) hours per day seven (7) days a week, without exception, may use a newborn safety device to accept surrendered newborn infants pursuant to this section if the device is:
(a) Physically part of the building of the hospital, fire station, law enforcement agency, or medical services provider;
(b) Temperature-controlled and ventilated for the safety of newborns;
(c) Equipped with a functional alarm system that automatically triggers an alarm inside the building when the newborn infant is placed in the device; and
(d) Located such that the interior point of access is in an area that is conspicuous and visible to the employees of the hospital, fire station, law enforcement agency, or medical services provider.
(3) If a safe haven takes temporary physical custody of a child pursuant to subsection (1) of this section, the safe haven shall:
(a) Perform any act necessary, in accordance with generally accepted standards of professional practice, to protect, preserve, or aid the physical health and safety of the child during the temporary physical custody, including but not limited to delivering the child to a hospital for care or treatment; and
(b) Immediately notify a peace officer or other person appointed by the court of the abandonment.
(4) The safe haven shall not inquire as to the identity of the custodial parent and, if the identity of a parent is known to the safe haven, the safe haven shall keep all information as to the identity confidential. The custodial parent leaving the child shall not be required to provide any information to the safe haven but may voluntarily provide information, including but not limited to Indian tribe membership or citizenship and medical history of the parent(s) or the child.
(5) A safe haven with responsibility for performing duties under this section, and any employee, doctor, or other personnel working at the safe haven, are immune from any civil or criminal liability that otherwise might result from their actions, if they are acting in good faith in receiving a child and performing duties under this section.
(6) A custodial parent may leave a child with a safe haven or with a safe haven through a newborn safety device in this state without being subjected to prosecution for abandonment pursuant to the provisions of title 18, Idaho Code, provided that the child was no more than thirty (30) days of age when it was left at the safe haven or at a safe haven through a newborn safety device, as determined within a reasonable degree of medical certainty.
[(39-8203) 39-8103, added 2001, ch. 357, sec. 1, p. 1253; am. and redesig. 2005, ch. 25, sec. 70, p. 107; am. 2024, ch. 115, sec. 2, p. 496; am. 2025, ch. 127, sec. 2, p. 660.]
(1) Upon notification by a safe haven that a child has been abandoned pursuant to the provisions of this chapter, a peace officer or other person appointed by the court shall take protective custody of the child and shall immediately deliver the child to the care, control and custody of the department of health and welfare.
(2) The department of health and welfare shall maintain a list of licensed adoption agencies to contact for the placement of abandoned children and shall transfer care, control, and custody of an abandoned child to the department’s selected adoption agency for placement within twenty-four (24) hours of taking custody of an abandoned child, unless exigent circumstances exist.
(3) When an abandoned child requires further medical evaluation, care, or treatment and the adoption agency selected by the department of health and welfare pursuant to subsection (2) of this section is unable to locate a prospective adoptive family within forty-eight (48) hours, the child shall be left in the care of a hospital, and the peace officer or other person appointed by the court shall notify the court and prosecutor of the action taken and the location of the child so that a shelter care hearing may be held.
(4) If, at any time, a party knows or has reason to know that the child is an Indian child, the jurisdiction of the Indian child welfare act (ICWA), 25 U.S.C. 1901, et seq., applies. If a party knows or has reason to know that the child is an Indian child, the department of health and welfare shall send immediate ICWA notification to the child’s Indian tribe and to any other tribe or to the bureau of Indian affairs as required by ICWA or federal regulations implementing ICWA. Within ten (10) days of receiving the information that causes the department of health and welfare to know or have reason to know that the child is an Indian child, the department shall issue any notice required by this subsection.
(5) A peace officer or other person appointed by the court who takes a child into custody under this section, shall not be held liable either criminally or civilly unless the action of taking the child was exercised in bad faith or in violation of the provisions of this chapter.
[(39-8204) 39-8104, added 2001, ch. 357, sec. 1, p. 1254; am. and redesig. 2005, ch. 25, sec. 71, p. 108; am. 2025, ch. 127, sec. 3, p. 661.]
(1) A shelter care hearing shall be held pursuant to section 16-1615, Idaho Code, and the department shall file a petition for adjudicatory hearing to vest legal custody in the department pursuant to section 16-1621, Idaho Code, at or prior to the time set for shelter care hearing.
(2) A child protective investigation or criminal investigation shall not be initiated based on a claim of abandonment unless a claim of parental rights is made and the court orders the investigation.
(3) During the initial thirty (30) day period from the time the child was delivered to a safe haven or to a safe haven through a newborn safety device by a custodial parent, the department shall request assistance from law enforcement officials to investigate through the missing children information clearinghouse and other state and national resources to ensure that the child is not a missing child.
(4) An adjudicatory hearing shall be conducted pursuant to the provisions of section 16-1619, Idaho Code, and section 16-1621, Idaho Code.
(5) As soon as practicable following the initial thirty (30) day period from the time the child was delivered to a safe haven by a custodial parent, the department shall petition to terminate the parental rights of the parent who abandoned the child at the safe haven and any unknown parent pursuant to section 16-1624, Idaho Code, and in accordance with chapter 20, title 16, Idaho Code.
[(39-8205) 39-8105, added 2001, ch. 357, sec. 1, p. 1254; am. and redesig. 2005, ch. 25, sec. 72, p. 108; am. and redesig. 2005, ch. 391, sec. 56, p. 1312; am. 2024, ch. 115, sec. 3, p. 496.]
(1) A parent of the child may make a claim of parental rights of an abandoned child, abandoned pursuant to the provisions of this chapter, by filing a notice of claim of parental rights with the vital statistics unit of the department of health and welfare. The vital statistics unit of the department of health and welfare shall maintain an abandoned child registry for this purpose which shall be subject to disclosure according to chapter 1, title 74, Idaho Code. The department shall provide forms for the purpose of filing a claim of parental rights, and the forms shall be made available through the vital statistics unit of the Idaho department of health and welfare and in the office of the county clerk in every county of this state. Any parent claiming a parental right of an abandoned child, abandoned pursuant to the provisions of this chapter, shall file the form with the vital statistics unit of the department of health and welfare. The form must be filled out completely and provide the name and address for service of the person asserting the parental claim and set forth the approximate date the child was left in a safe haven or in a safe haven through a newborn safety device. The form must be signed by the person claiming the parental right and be witnessed before a notary public. The department shall record the date and time the claim of parental rights is filed with the department. The claim shall be deemed to be duly filed with the department as of the date and time recorded on the claim by the department. To be valid, a claim of parental rights must be filed before an order terminating parental rights is entered by the court. A parent that fails to file a claim of parental rights prior to entry of an order terminating their parental rights is deemed to have abandoned the child and waived and surrendered any right in relation to the child, including the right to notice of any judicial proceeding in connection with the termination of parental rights or adoption of the child. Registration of notice of commencement of paternity proceedings pursuant to chapter 15, title 16, Idaho Code, shall not satisfy the requirements of this section.
(2) Prior to the time set for hearing on the petition to terminate parental rights filed by the department of health and welfare, and prior to entry of an order terminating parental rights by the court, the department of health and welfare shall obtain and file with the court a certificate from the vital statistics unit of the department of health and welfare, signed by the state registrar of vital statistics, which certificate shall state that a diligent search has been made of the registry of claims of parental rights of abandoned children, abandoned pursuant to this chapter, and shall set forth the results of that search.
(3) If a claim of parental rights is made before an order terminating parental rights is entered by the court, notice pursuant to section 16-2007, Idaho Code, will be required and the court shall hold the action for involuntary termination of parental rights in abeyance for a period of time not to exceed sixty (60) days unless otherwise ordered by the court. During that period:
(a) The court shall order genetic testing to establish maternity or paternity, at the expense of the person or persons claiming the parental right.
(b) The department of health and welfare shall conduct an investigation pursuant to section 16-2008, Idaho Code, and in those cases where a guardian ad litem has been appointed, the guardian ad litem shall have all rights, powers and duties as provided for in chapter 16, title 16, Idaho Code, and as provided for in chapter 20, title 16, Idaho Code.
(c) When indicated as a result of the investigation, a shelter care hearing shall be conducted by the court in accordance with section 16-1615, Idaho Code, within forty-eight (48) hours, or at an earlier time if ordered by the court, to determine whether the child should remain in the physical custody of the department or be released to a parent or other third party.
(d) Further proceedings shall be conducted as the court determines appropriate. However, where a claim of parental rights is made before an order terminating parental rights is entered by the court, a parent shall not be found to have neglected or abandoned a child placed in accordance with this chapter solely because the child was left with a safe haven.
(4) If there is no showing that a parent has claimed a parental right to the child, the department of health and welfare shall file with the court a certificate from the vital statistics unit of the department of health and welfare, signed by the state registrar of vital statistics, stating that a diligent search has been made of the registry of parental claims for children abandoned pursuant to the provisions of this chapter and that no parental claim has been made. The certificate shall be filed with the court prior to the entrance of the final order of termination of parental rights.
[(39-8206) 39-8106, added 2001, ch. 357, sec. 1, p. 1255; am. and redesig. 2005, ch. 25, sec. 73, p. 109; am. and redesig. 2005, ch. 391, sec. 57, p. 1313; am. 2015, ch. 141, sec. 101, p. 451; am. 2024, ch. 115, sec. 4, p. 497.]
The department of health and welfare shall evaluate the program and shall submit a written report on the program, including recommendations for revisions and improvements, to the senate health and welfare committee and the house of representatives health and welfare committee of the legislature of the state of Idaho no later than two (2) years after the effective date of this act.
[(39-8207) 39-8107, added 2001, ch. 371, sec. 2, p. 1301; am. and redesig. 2005, ch. 25, sec. 74, p. 110.]
This chapter shall be known and may be cited as the "Genetic Testing Privacy Act."
[39-8301, added 2006, ch. 293, sec. 1, p. 904.]
As used in this chapter:
(1) "Blood relative" means a person’s biologically related parent, grandparent, child, grandchild, sibling, uncle, aunt, nephew, niece or first cousin.
(2) "DNA" means deoxyribonucleic acid, ribonucleic acid and chromosomes which may be analyzed to detect heritable diseases or conditions, including the identification of carriers, predicting risk of disease, or establishing a clinical diagnosis.
(3) "DNA sample" means any human biological specimen from which DNA can be extracted, or DNA extracted from such specimen.
(4) "Employer" means any person, partnership, limited liability company, association, corporation, labor organization, employment agency or nonprofit entity that employs five (5) or more persons including relatives, and including the legislative, executive and judicial branches of state government; any county, city, or any other political subdivision of the state; or any other separate unit of state or local government.
(5) "Foreign adversary" means the People’s Republic of China, the Russian Federation, the Islamic Republic of Iran, the Democratic People’s Republic of Korea, the Republic of Cuba, the Venezuelan regime of Nicolás Maduro, or the Syrian Arab Republic, including any agent of or any other entity under significant control of such foreign adversary, or any other entity deemed by the governor in consultation with the adjutant general.
(6) "Genetic analysis" or "genetic test" means the testing or analysis of an identifiable individual’s DNA that results in information that is derived from the presence, absence, alteration or mutation of an inherited gene or genes, or the presence or absence of a specific DNA marker or markers. "Genetic analysis" or "genetic test" does not mean:
(a) A routine physical examination;
(b) A routine chemical, blood or urine analysis;
(c) A test to identify the presence of drugs or HIV infection; or
(d) A test performed due to the presence of signs, symptoms or other manifestations of a disease, illness, impairment or other disorder.
(7) "Genetic sequencer" means any device or platform used to conduct genetic analysis, resequencing, isolation, or other genetic research.
(8) "Human genome" means DNA or ribonucleic acid (RNA) found in human cells.
(9) "Individual" means the person from whose body the DNA sample originated.
(10) "Medical facility" means a facility for the delivery of health services that:
(a) Receives state moneys, including interagency pass-through appropriations from the federal government; and
(b) Conducts research or testing on, with, or relating to genetic analysis or the human genome.
(11) "Operational or research software" means computer programs used for the operation, control, analysis, or other necessary functions of genetic analysis or genetic sequencers.
(12) "Person" means any person, organization or entity other than the individual.
(13) "Private genetic information" means any information about an identifiable individual that is derived from the presence, absence, alteration or mutation of an inherited gene or genes, or the presence or absence of a specific DNA marker or markers, and which has been obtained from a genetic test or analysis of the individual’s DNA or from a genetic test or analysis of a person’s DNA of whom the individual is a blood relative. "Private genetic information" does not include information that is derived from:
(a) A routine physical examination;
(b) A routine chemical, blood or urine analysis;
(c) A test to identify the presence of drugs or HIV infection; or
(d) A test performed due to the presence of signs, symptoms or other manifestations of a disease, illness, impairment or other disorder.
(14) "Research facility" means a facility that:
(a) Receives state moneys, including interagency pass-through appropriations from the federal government; and
(b) Conducts research on, with, or relating to genetic analysis or the human genome.
[39-8302, added 2006, ch. 293, sec. 1, p. 904; am. 2024, ch. 318, sec. 3, p. 1052.]
(1) Except as provided in subsections (2) and (3) of this section, an employer shall not, in connection with a hiring, promotion, retention or other related decision:
(a) Access or otherwise take into consideration private genetic information about an individual;
(b) Request or require an individual to consent to a release for the purpose of accessing private genetic information about the individual;
(c) Request or require an individual or his blood relative to submit to a genetic test; or
(d) Inquire into the fact that an individual or his blood relative has taken or refused to take a genetic test.
(2)(a) Notwithstanding the provisions of subsection (1) of this section, an employer may seek an order compelling the disclosure of private genetic information held by an individual or third party pursuant to subsection (2)(b) of this section in connection with:
(i) An employment-related judicial or administrative proceeding in which the individual has placed his health at issue; or
(ii) An employment-related decision in which the employer has a reasonable basis to believe that the individual’s health condition poses a real and unjustifiable safety risk requiring the change or denial of an assignment.
(b)(i) An order compelling the disclosure of private genetic information pursuant to this subsection may be entered only upon a finding that:
(A) Other ways of obtaining the private information are not available or would not be effective; and
(B) There is a compelling need for the private genetic information that substantially outweighs the potential harm to the privacy interests of the individual.
(ii) An order compelling the disclosure of private genetic information pursuant to this subsection shall:
(A) Limit disclosure to those parts of the record containing information essential to fulfill the objective of the order;
(B) Limit disclosure to those persons whose need for the information is the basis of the order; and
(C) Include such other measures as may be necessary to limit disclosure for the protection of the individual.
(3) An employer who conducts DNA analysis for law enforcement purposes as a forensic laboratory or for the purposes of human remains identification may request or require genetic information of its employees or contractors but only to the extent that such genetic information is used for analysis of DNA identification markers for quality control to detect sample contamination.
[39-8303, added 2006, ch. 293, sec. 1, p. 905; am. 2022, ch. 141, sec. 1, p. 512.]
(1) Whenever the attorney general has reason to believe that any employer is engaging, has engaged, or is about to engage in any act in violation of this chapter, the attorney general may bring an action in the name of the state against that employer:
(a) To obtain a declaratory judgment that the act violates the provisions of this chapter;
(b) To enjoin any act that violates the provisions of this chapter by issuance of a temporary restraining order or preliminary or permanent injunction, without bond, upon the giving of appropriate notice;
(c) To recover on behalf of the state and its agencies actual damages or restitution; or
(d) To recover civil penalties of up to twenty-five thousand dollars ($25,000) per violation and reasonable expenses, investigative costs and attorney’s fees.
(2) The penalties provided in this section are in addition to any other available remedy at law or equity.
(3) Any civil penalty imposed pursuant to this section shall be deposited in the state general fund.
[39-8304, added 2006, ch. 293, sec. 1, p. 905.]
(1) No medical facility or research facility in the state of Idaho shall utilize genetic sequencers or operational or research software used for genetic analysis if the final product is produced in or by a foreign adversary, a state-owned enterprise of a foreign adversary, a company domiciled within a foreign adversary, or a company-owned or company-controlled subsidiary or affiliate of a company domiciled within a foreign adversary for the purpose of conducting genetic analysis. Nothing in this section shall apply to final products that have been merely assembled within a foreign adversary or which subcomponent parts or inputs have been sourced from foreign adversaries but that are not produced by foreign adversary companies. Nothing in this section shall apply to companies domiciled within a foreign adversary but who are owned by or whom a controlling financial interest is held by a United States business or a business owned by a United States alliance country.
(2) All genetic sequencers and operational and research software used for genetic sequencers or genetic analysis devices prohibited under subsection (1) of this section that is not permanently disabled shall be removed and replaced with genetic sequencers and operational and research software used for genetic sequencers or genetic analysis that is not prohibited under subsection (1) of this section.
(3) Subject to appropriation, a medical facility or research facility in the state of Idaho may request a reimbursement up to the cost of replacement of the equipment and software prohibited under subsection (1) of this section from the state controller, provided the request includes purchase orders and is submitted by October 1, 2024.
[39-8305, added 2024, ch. 318, sec. 4, p. 1054.]
The legislature finds that violations of Idaho’s tobacco master settlement agreement act threaten the integrity of Idaho’s master settlement agreement with leading tobacco product manufacturers, the fiscal soundness of the state, and the public health. The legislature finds that enacting procedural enhancements will help prevent violations of Idaho’s tobacco master settlement agreement act and thereby safeguard the master settlement agreement, the fiscal soundness of the state and the public health.
[39-8401, added 2003, ch. 33, sec. 2, p. 146.]
(1) "Brand family" means all styles of cigarettes sold under the same trademark and differentiated from one another by means of additional modifiers or descriptors including, but not limited to, "menthol," "lights," "kings," and "100s," and includes any brand name (alone or in conjunction with any other word), trademark, logo, symbol, motto, selling message, recognizable pattern of colors, or any other indicia of product identification identical or similar to, or identifiable with, a previously known brand of cigarettes.
(2) "Cigarette" has the same meaning as that term is defined in section 39-7802(d), Idaho Code.
(3) "Commission" means the state tax commission for the state of Idaho.
(4) "Master settlement agreement" has the same meaning as that term is defined in section 39-7802(e), Idaho Code.
(5) "Nonparticipating manufacturer" means any tobacco product manufacturer that is not a participating manufacturer.
(6) "Participating manufacturer" has the same meaning as that term is defined in section II(jj) of the master settlement agreement and all amendments thereto.
(7) "Qualified escrow fund" has the same meaning as that term is defined in section 39-7802(f), Idaho Code.
(8) "Stamping agent" means a person who is authorized to wholesale cigarettes or is required to affix tax stamps to packages or other containers of cigarettes as well as any person who pays a tobacco products tax on "roll your own" tobacco, pursuant to chapter 25, title 63, Idaho Code.
(9) "Tobacco product manufacturer" has the same meaning as that term is defined in section 39-7802(i), Idaho Code.
(10) "Units sold" has the same meaning as that term is defined in section 39-7802(j), Idaho Code.
[39-8402, added 2003, ch. 33, sec. 2, p. 146; am. 2006, ch. 74, sec. 1, p. 227.]
(1) Every tobacco product manufacturer whose cigarettes are sold in this state whether directly or through a wholesaler, distributor, retailer or similar intermediary or intermediaries shall execute and deliver on a form prescribed by the attorney general a certification to the attorney general no later than the thirtieth day of April each year, certifying, under penalty of perjury, that, as of the date of such certification, such tobacco product manufacturer is either: a participating manufacturer; or in full compliance with section 39-7803(b), Idaho Code, including all quarterly installment payments required by section 39-8405(5), Idaho Code.
(a) A participating manufacturer shall include in its certification a list of its brand families. The participating manufacturer shall update such list thirty (30) days prior to any addition to or modification of its brand families by executing and delivering a supplemental certification to the attorney general.
(b) A nonparticipating manufacturer shall include in its certification a complete list of all of its brand families that were sold in the state at any time during the preceding calendar year, or that have been sold in the state at any time during the current calendar year, and shall:
(i) List, for each brand family, the number of units sold in the state during the preceding calendar year;
(ii) Note, by means of an asterisk, any brand family sold in the state during the preceding calendar year that is no longer being sold in the state as of the date of such certification;
(iii) Identify by name and address any other manufacturer of such brand families in the preceding calendar year or the current calendar year. The nonparticipating manufacturer shall update such list thirty (30) days prior to any addition to or modification of its brand families by executing and delivering a supplemental certification to the attorney general;
(c) In the case of a nonparticipating manufacturer, such certification shall further certify:
(i) That such nonparticipating manufacturer is registered to do business in the state or has appointed an agent for service of process and provided notice thereof as required by section 39-8404, Idaho Code;
(ii) That such nonparticipating manufacturer has:
Established and continues to maintain a qualified escrow fund;
Executed a qualified escrow agreement that has been reviewed and approved by the attorney general and that governs the qualified escrow fund;
(iii) That such nonparticipating manufacturer is in full compliance with section 39-7803(b), Idaho Code, and this section, and any rules promulgated pursuant thereto.
(iv) 1. The name, address, and telephone number of the financial institution where the nonparticipating manufacturer has established such qualified escrow fund required pursuant to section 39-7803(b), Idaho Code, and all rules promulgated thereto;
The account number of such qualified escrow fund and any subaccount number for the state of Idaho;
The amount such nonparticipating manufacturer placed in such fund for cigarettes sold in the state during the preceding calendar year, the date and amount of each such deposit, and such evidence or verification as may be deemed necessary by the attorney general to confirm the foregoing;
The amount and date of any withdrawal or transfer of funds the nonparticipating manufacturer made at any time from such fund or from any other qualified escrow fund into which it ever made escrow payments pursuant to section 39-7803(b), Idaho Code, and all rules promulgated thereto.
(d) A tobacco product manufacturer may not include a brand family in its certification unless:
(i) In the case of a participating manufacturer, said participating manufacturer affirms that the brand family is to be deemed to be its cigarettes for purposes of calculating its payments under the master settlement agreement for the relevant year, in the volume and shares determined pursuant to the master settlement agreement; and
(ii) In the case of a nonparticipating manufacturer, said nonparticipating manufacturer affirms that the brand family is to be deemed to be its cigarettes for purposes of section 39-7803(b), Idaho Code. Nothing in this section shall be construed as limiting or otherwise affecting the state’s right to maintain that a brand family constitutes cigarettes of a different tobacco product manufacturer for purposes of calculating payments under the master settlement agreement or for purposes of section 39-7803(b), Idaho Code.
(e) Tobacco product manufacturers shall maintain all invoices and documentation of sales and other such information relied upon for such certification for a period of five (5) years, unless otherwise required by law to maintain them for a greater period of time.
(2) Not later than September 30, 2003, the attorney general shall develop and publish on his website a directory listing all tobacco product manufacturers that have provided current and accurate certifications conforming to the requirements of subsection (1) of this section, and all brand families that are listed in such certifications, except as noted below.
(a) The attorney general shall not include or retain in such directory the name or brand families of any nonparticipating manufacturer that fails to provide the required certification or whose certification the attorney general determines is not in compliance with subsections (1)(b) and (c) of this section, unless the attorney general has determined that such violation has been cured to the satisfaction of the attorney general.
(b) Neither a tobacco product manufacturer nor a brand family shall be included or retained in the directory if the attorney general concludes in the case of a nonparticipating manufacturer that:
(i) Any escrow payment required pursuant to section 39-7803(b), Idaho Code, for any period and for any brand family, whether or not listed by such nonparticipating manufacturer, has not been fully paid into a qualified escrow fund governed by a qualified escrow agreement that has been approved by the attorney general; or
(ii) Any outstanding final judgment, including interest thereon, for a violation of Idaho’s tobacco master settlement agreement act has not been fully satisfied for such brand family and such manufacturer.
(c) The attorney general shall update the directory as necessary in order to correct mistakes and to add or remove a tobacco product manufacturer or brand families to keep the directory in conformity with the requirements of this chapter. The attorney general shall transmit by electronic mail, if possible, or by other means as are reasonable to each stamping agent, notice of the addition to, or removal from, the directory of any tobacco product manufacturer or brand family.
(d) Every stamping agent shall provide and update as necessary a mailing address and, where available, an electronic mail address to the attorney general for the purpose of receiving any notifications as may be required by this chapter.
(3) It shall be unlawful for any person:
(a) To affix a stamp to a package or other container of cigarettes of a tobacco product manufacturer or brand family not included in the directory;
(b) To sell, offer or possess for sale in this state, cigarettes of a tobacco product manufacturer or brand family not included in the directory;
(c) To acquire, hold, own, possess, transport, import, or cause to be imported cigarettes that the person knows or should know are intended for distribution or sale in the state in violation of this subsection (3).
(4) Nothing in this chapter shall excuse payment of cigarette taxes under chapter 25, title 63, Idaho Code, by any person in regard to any package or other container of cigarettes not included in the directory but sold by that person.
(5) The attorney general may condition certification of a nonparticipating tobacco product manufacturer upon obtaining from the manufacturer its consent to be sued in Idaho district court for purposes of the state of Idaho enforcing any provisions of chapter 78 or 84, title 39, Idaho Code, or for the state bringing a released claim as that term is defined by subsection (g) of section 39-7802, Idaho Code.
[39-8403, added 2003, ch. 33, sec. 2, p. 146; am. 2005, ch. 40, sec. 1, p. 160.]
(1) Any nonresident or foreign nonparticipating manufacturer that has not registered to do business in this state as a foreign corporation or business entity shall, as a condition precedent to having its brand families listed or retained in the directory, appoint and continually engage without interruption the services of an agent in this state to act as agent for the service of process on whom all process, and any action or proceeding against it concerning or arising out of the enforcement of this chapter and Idaho’s tobacco master settlement agreement act, may be served in any manner authorized by law. Such service shall constitute legal and valid service of process on the nonparticipating manufacturer. The nonparticipating manufacturer shall provide the name, address, phone number and proof of the appointment and availability of such agent to, and to the satisfaction of, the attorney general.
(2) The nonparticipating manufacturer shall provide notice to the attorney general thirty (30) calendar days prior to termination of the authority of an agent and shall further provide proof to the satisfaction of the attorney general of the appointment of a new agent no less than five (5) calendar days prior to the termination of an existing agent appointment. In the event an agent terminates an agency appointment, the nonparticipating manufacturer shall notify the attorney general of said termination within five (5) calendar days and shall include proof to the satisfaction of the attorney general of the appointment of a new agent.
(3) Any nonparticipating manufacturer whose products are sold in this state, without appointing or designating an agent as herein required, shall be deemed to have appointed the secretary of state as such agent and may be proceeded against in courts of this state by service of process upon the secretary of state; however, the appointment of the secretary of state as such agent shall not satisfy the condition precedent to having its brand families listed or retained in the directory.
[39-8404, added 2003, ch. 33, sec. 2, p. 149.]
(1) Not later than twenty (20) calendar days after the end of each calendar quarter, and more frequently if so directed by the attorney general, each stamping agent shall submit such information as the attorney general requires to facilitate compliance with this chapter including, but not limited to, a list by brand family of the total number of cigarettes for which the stamping agent affixed stamps during the previous calendar quarter or otherwise paid the tax due for such cigarettes. The stamping agent shall maintain, and make available to the attorney general, all invoices and documentation of sales of all nonparticipating manufacturer cigarettes and any other information relied upon in reporting to the attorney general for a period of five (5) years.
(2) The commission is authorized to disclose to the attorney general any information received under this chapter or Idaho’s tobacco master settlement agreement act and requested by the attorney general for purposes of determining compliance with and enforcing the provisions of this chapter. The commission and attorney general shall share with each other the information received under this chapter or chapter 25, title 63, Idaho Code, and may share such information with other federal, state or local agencies only for purposes of enforcement of this chapter, Idaho’s tobacco master settlement agreement act, or corresponding laws of other states.
(3) The attorney general may require at any time from the nonparticipating manufacturer proof, from the financial institution in which such manufacturer has established a qualified escrow fund for the purpose of compliance with Idaho’s tobacco master settlement agreement act, of the amount of money in such fund, exclusive of interest, and the amount and date of each deposit to the fund, and the amount and date of each withdrawal from the fund.
(4) In addition to the information required to be submitted pursuant to this chapter, the attorney general may require a stamping agent or tobacco product manufacturer to submit any additional information including, but not limited to, samples of the packaging or labeling of each brand family, as is necessary to enable the attorney general to determine whether a tobacco product manufacturer or stamping agent is in compliance with this chapter.
(5) To promote compliance with the provisions of this chapter, the attorney general may promulgate rules requiring a tobacco product manufacturer subject to the requirements of section 39-7803(b), Idaho Code, to make the escrow deposits required in quarterly installments during the year in which the sales covered by such deposits are made. The attorney general may require production of information sufficient to enable the attorney general to determine the adequacy of the amount of the installment deposit.
[39-8405, added 2003, ch. 33, sec. 2, p. 150.]
(1) Each stamp affixed, each sale or offer to sell, and each cigarette possessed in violation of section 39-8403(3), Idaho Code, shall constitute a separate violation. For each violation hereof, the district court may impose a civil penalty in an amount not to exceed the greater of five hundred percent (500%) of the retail value of the cigarettes or five thousand dollars ($5,000) upon a determination of violation of section 39-8403(3), Idaho Code, or any rule adopted pursuant thereto.
(2) In addition to or in lieu of any other civil or criminal remedy provided by law, upon a determination that a stamping agent has violated section 39-8403(3), Idaho Code, or any rule adopted pursuant thereto, the commission may revoke or suspend the license of any stamping agent in the manner provided by law.
(3) Any cigarettes that have had stamps affixed, been sold, offered for sale or possessed for sale in this state in violation of section 39-8403(3) shall be deemed contraband under section 63-2513, Idaho Code, and such cigarettes shall be subject to seizure and forfeiture by the commission as provided in such section, and all such cigarettes so seized and forfeited shall be destroyed and not resold.
(4) The attorney general may seek an injunction to prevent or restrain a threatened or actual violation of section 39-8403(3), 39-8405(1) or 39-8405(4), Idaho Code, by a stamping agent and to compel the stamping agent to comply with such subsections.
(5) A person who violates section 39-8403(3), Idaho Code, engages in an unfair and deceptive trade practice in violation of the Idaho consumer protection act, chapter 6, title 48, Idaho Code.
[39-8406, added 2003, ch. 33, sec. 2, p. 150.]
(1) A determination of the attorney general to exclude or remove from the directory a brand family or tobacco product manufacturer shall be subject to review in the manner prescribed by Idaho’s administrative procedure act.
(2) No person shall be issued a license or granted a renewal of a license to act as a stamping agent unless such person has certified, in writing, that such person will comply fully with this chapter.
(3) For the year 2003, the first report of stamping agents required by section 39-8405(1), Idaho Code, shall be due thirty (30) calendar days after the effective date of this chapter; the certifications by a tobacco product manufacturer described in section 39-8403(1), Idaho Code, shall be due forty-five (45) days after such effective date; and the directory described in section 39-8403(2), Idaho Code, shall be published or made available within ninety (90) calendar days after such effective date.
(4) The commission and the attorney general may promulgate rules necessary to effect the purposes of this chapter.
(5) In any action brought by the attorney general to enforce this chapter, the attorney general shall be entitled to recover the costs of investigation, expert witness fees, costs of the action and reasonable attorney’s fees.
(6) If a court determines that a person has violated this chapter, the court shall order any profits, gain, gross receipts or other benefit from the violation to be disgorged and paid to the state treasurer for deposit in the general fund. Unless otherwise expressly provided the remedies or penalties provided by this chapter are cumulative to each other and to the remedies or penalties available under all other laws of this state.
(7) If a court of competent jurisdiction finds that the provisions of this chapter and of the Idaho tobacco master settlement agreement act conflict and cannot be harmonized, then such provisions of the Idaho tobacco master settlement agreement act, chapter 78, title 39, Idaho Code, shall control. If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this chapter causes the Idaho tobacco master settlement agreement act to no longer constitute a qualifying or model statute, as those terms are defined in the master settlement agreement, then that portion of this chapter shall not be valid. If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this chapter is for any reason held to be invalid, unlawful or unconstitutional, such decision shall not affect the validity of the remaining portions of this chapter or any part thereof.
[39-8407, added 2003, ch. 33, sec. 2, p. 151.]
(1) The legislature finds that the commercial use of cigarette rolling machines in this state has the potential to circumvent various requirements under Idaho law related to the manufacturing, marketing, sale and taxation of cigarettes. Such use is to the detriment of the fiscal soundness of the state and the public health.
(2) This legislation is intended to ensure that cigarette rolling machine operators comply with applicable Idaho laws governing the manufacturing, marketing, sale and taxation of cigarettes and that the use of such cigarette rolling machines will not circumvent these laws and undercut the purposes for which they were enacted.
[39-8420, added 2012, ch. 206, sec. 1, p. 548.]
As used in sections 39-8420 through 39-8425, Idaho Code:
(1) The definitions set forth in section 39-8402, Idaho Code, of the Idaho tobacco master settlement agreement complementary act, and in this section, apply to sections 39-8420 through 39-8425, Idaho Code.
(2) "Cigarette rolling machine" means any machine or device that has the capability to produce at least one hundred fifty (150) cigarettes in less than thirty (30) minutes.
(3) "Cigarette rolling machine operator" means any person who owns or leases or otherwise has available for use a cigarette rolling machine and makes such a machine available for use by another person in a commercial setting in order to manufacture a cigarette. No person shall be deemed a cigarette rolling machine operator based solely upon that person’s manufacture, sale, enabling, disabling, or repair of a cigarette rolling machine.
(4) "Minor" has the same meaning as that term is defined in section 39-5702, Idaho Code.
(5) "Person" means natural persons, corporations both foreign and domestic, trusts, partnerships both limited and general, incorporated or unincorporated associations, companies, business entities, and any other legal entity, or any other group associated in fact although not a legal entity.
(6) "Tobacco products" means any substance that contains tobacco, including but not limited to cigarettes, cigars, pipes, snuff, smoking tobacco, tobacco papers, or smokeless tobacco.
[39-8421, added 2012, ch. 206, sec. 2, p. 548; am. 2020, ch. 318, sec. 18, p. 914; am. 2025, ch. 64, sec. 11, p. 309; am. 2026, ch. 279, sec. 6, p. 1172.]
A cigarette rolling machine operator may not locate at, offer, or make a cigarette rolling machine available for use, or offer for sale cigarettes manufactured by the operator or any other person at the location of the operator’s cigarette rolling machine, until the operator has first been certified by the attorney general upon a form prescribed by the attorney general. The attorney general shall annually certify a cigarette rolling machine operator, but only after he has obtained adequate certification from the operator, as set forth in section 39-8423, Idaho Code, and has been provided by the operator sufficient information identifying the operator, the location, the make and brand of the operator’s cigarette rolling machine, and the person(s) from whom the operator will purchase its tobacco for purposes of the operator’s cigarette rolling machine’s manufacturing of cigarettes.
[39-8422, added 2012, ch. 206, sec. 3, p. 549.]
(1) Before a cigarette rolling machine operator may be certified by the attorney general, the operator shall certify, under penalty of perjury, that:
(a) All tobacco to be used in the operator’s cigarette rolling machine, regardless of the tobacco’s label or description thereof, will only be of a brand family and of a tobacco product manufacturer listed on the directory maintained by the attorney general pursuant to section 39-8403, Idaho Code, of the Idaho tobacco master settlement agreement complementary act;
(b) All applicable state tobacco taxes have been paid, as required by the cigarette and tobacco products tax act, chapter 25, title 63, Idaho Code, for the tobacco to be used in the operator’s cigarette rolling machine;
(c) The operator has obtained, and has a current permit issued, pursuant to section 39-5704, Idaho Code;
(d) All cigarette tubes used in the operator’s cigarette rolling machine shall be constructed of paper of a type determined by the attorney general, pursuant to regulations to be promulgated by the attorney general, to reduce the likely ignition propensity of cigarettes to be made with such tubes;
(e) (i) At any location where the operator has a cigarette rolling machine, seventy-five percent (75%) of the revenues of the operator’s total merchandise sales at that location are comprised of tobacco products; or
(ii) The location where the cigarette rolling machine is situated prohibits minors from entering the premises;
(f) The operator will not sell cigarettes or make a cigarette rolling machine available for use, in any quantity less than twenty (20) cigarettes per transaction, except for samples prepared in connection with the purchase or prospective purchase of tobacco and consumed or destroyed at the premises where the cigarette rolling machine is located; and
(g) The operator will not accept or allow its cigarette rolling machine to be used to manufacture cigarettes with tobacco that was not first purchased or obtained from the operator and for which the operator will timely and properly report to the attorney general as set forth in subsection (2) of this section.
(2) After being certified, the cigarette rolling machine operator shall annually certify, under penalty of perjury, to the provisions set forth in subsection (1) of this section. Additionally, the operator shall quarterly report to the attorney general on a form prescribed by the attorney general:
(a) The number of cigarettes that the operator’s cigarette rolling machine manufactured during that quarter;
(b) The brand families, the tobacco product manufacturer of each brand family, and the ounces of tobacco of each such brand family that were used in the operator’s cigarette rolling machine to manufacture cigarettes during the quarter; and
(c) The person or persons from whom the operator purchased or obtained the tobacco that the operator’s machine used to manufacture cigarettes.
(3) The cigarette rolling machine operator’s annual certification shall be due to the attorney general no later than the thirtieth day of April each year.
(4) All tobacco certified under subsection (1)(a) of this section shall be deemed to be "roll-your-own" tobacco for purposes of section 39-7802(d), Idaho Code, of the Idaho tobacco master settlement agreement act.
(5) A cigarette rolling machine operator shall not be required to comply with the provisions of subsection (1)(d) of this section until the attorney general has promulgated rules implementing this subsection, pursuant to section 39-8425, Idaho Code, and the effective date provided for such rules has passed.
[39-8423, added 2012, ch. 206, sec. 4, p. 549; am. 2020, ch. 318, sec. 19, p. 915.]
(1) Any person who violates any provision of this act, or any certification provided by the attorney general, is subject to the imposition of a civil penalty by the district court in the amount set forth in section 39-8406(1), Idaho Code. The attorney general and the district courts shall have the same authority in enforcing and carrying out the provisions of this section as is granted the attorney general and district courts under sections 39-8406 and 39-8407, Idaho Code, of the Idaho tobacco master settlement agreement complementary act.
(2) In addition to the authority set forth in subsection (1) of this section:
(a) The district court shall have the authority to revoke the cigarette rolling machine operator’s permit issued by the department of health and welfare, pursuant to chapter 57, title 39, Idaho Code, for a period of at least three (3) months but up to one (1) year.
(b) (i) The attorney general may suspend or revoke a cigarette rolling machine operator’s certification for violation of any provisions of this act or the operator’s certification or any rule adopted by the attorney general pursuant to this act.
(ii) A determination by the attorney general to deny a certification application or to suspend or revoke a cigarette rolling machine operator’s certification shall be subject to review in the manner prescribed by Idaho’s administrative procedure act, chapter 52, title 67, Idaho Code. In instances where a certification is suspended or revoked, the cigarette rolling machine operator may not thereafter use or make the machine available for use and shall have ten (10) days after receiving actual notice that its certification has been suspended or revoked to remove the machine from the operator’s commercial premises. If the operator fails to remove the cigarette rolling machine within this time period, the machine shall be deemed contraband and subject to seizure and forfeiture. During the period in which the operator’s certification has been suspended or revoked, the operator may store the machine at a storage site as long as the machine is not used by or available to persons for use to manufacture cigarettes.
(3) No person who manufactures a cigarette using a cigarette rolling machine shall sell or offer that cigarette for sale in this state. This prohibition shall not apply to any person holding a federal license as a cigarette manufacturer.
(4) Unless expressly provided, the remedies or penalties provided by this act are cumulative to each other and to the remedies or penalties available under all other laws of this state.
[39-8424, added 2012, ch. 206, sec. 5, p. 550; am. 2020, ch. 318, sec. 20, p. 916.]
The attorney general may adopt rules to implement this act. With respect to section 39-8423(1)(d), Idaho Code, the attorney general shall adopt rules with an effective date that is no earlier than July 1, 2013. In adopting rules implementing subsection 39-8423(1)(d), Idaho Code, the attorney general may provide for an effective date that is later than July 2, 2013, if, in his discretion, such later effective date is warranted.
[39-8425, added 2012, ch. 206, sec. 6, p. 551.]
There is hereby created in the area in and around Bonner county, the Lake Pend Oreille, Pend Oreille River, Priest Lake and Priest River commission.
[(39-8501) 39-8401, added 2003, ch. 231, sec. 1, p. 591; am. and redesig. 2004, ch. 318, sec. 7, p. 898.]
The commission shall consist of seven (7) members as follows: a chairman and four (4) members who may be residents of the county of Bonner and shall be selected by the governor; the regional director of the United States fish and wildlife service; and the attorney general of the state of Idaho or the attorney general’s designee. The governor of the state of Montana or the Montana governor’s designee shall be an ex officio member of the commission. The terms of the members shall be three (3) years with the initial term to be staggered in terms of one (1), two (2) and three (3) years by the governor when he makes the appointment. A majority of the commission shall constitute a quorum for the transaction of business. The chairman and the four (4) members appointed by the governor shall be confirmed by the senate. Members shall be compensated as provided in section 59-509(b), Idaho Code.
[(39-8502) 39-8402, added 2003, ch. 231, sec. 1, p. 591; am. and redesig. 2004, ch. 318, sec. 8, p. 898.]
(1) The Lake Pend Oreille, Pend Oreille River, Priest Lake and Priest River commission shall have:
(a) The duty to study, investigate and select ways and means of controlling the water quality and water quantity as they relate to waters of Lake Pend Oreille, Pend Oreille River, Priest Lake and Priest River for the communities’ interests and interests of the state of Idaho and for the survival of the native species of fish contiguous to the Pend Oreille Priest Basin. Those species are bull trout, westslope cutthroat, mountain white fish, pike minnow and the forage base for bull trout and kokanee salmon;
(b) The authority to study, investigate, develop and select strategies with the department of water resources, the department of environmental quality, the department of fish and game, the department of lands, the United States fish and wildlife service, and the U.S. army corps of engineers for the preservation of the said species of native fish, scenic beauty, health, recreation, transportation and commercial purposes necessary and desirable for all the inhabitants of the state;
(c) The authority to receive and direct any mitigation moneys into the Lake Pend Oreille, Pend Oreille River, Priest Lake and Priest River commission fund created in section 39-8504, Idaho Code; and
(d) The authority to designate one (1) or more representatives to participate in proceedings relating to the Columbia River Basin, including but not limited to those of the Albeni Falls mitigation work group, the technical management team and other proceedings regarding federal Columbia River power system operations, the Columbia River treaty, and the Idaho invasive species council.
(2) Nothing in this section shall be construed to authorize the commission to establish or require minimum stream flows or lake levels, which may only be established under the provisions of chapter 15, title 42, Idaho Code.
[(39-8503) 39-8403, added 2003, ch. 231, sec. 1, p. 591; am. and redesig. 2004, ch. 318, sec. 9, p. 899; am. 2018, ch. 63, sec. 1, p. 154.]
There is hereby created in the state treasury the Lake Pend Oreille, Pend Oreille River, Priest Lake and Priest River commission fund. Moneys in the fund may consist of appropriations, federal funds, mitigation moneys, donations or moneys of any source. Moneys in the fund may be dispersed for necessary corrective actions to complete the corrective measures as they pertain to duties of the commission created under this chapter. The release of any mitigation funds from the fund shall be authorized by the state board of examiners. Moneys in the fund may also be used to pay the administrative costs of the commission and to provide for participation in proceedings relating to the Columbia River Basin, as authorized under the provisions of section 39-8503, Idaho Code.
[(39-8504) 39-8404, added 2003, ch. 231, sec. 1, p. 592; am. and redesig. 2004, ch. 318, sec. 10, p. 899; am. 2018, ch. 63, sec. 2, p. 155.]
This chapter shall be known and may be cited as the "Elevator Safety Code Act."
[39-8601, added 2004, ch. 359, sec. 1, p. 1067.]
(1) The purpose of this chapter is to provide for safety of life and limb and to ensure that the safe design, mechanical and electrical operation, erection, installation, alteration, maintenance, inspection and repair of elevators, escalators, moving walks, platform lifts, material lifts, and dumbwaiters, and all such operation, erection, installation, alteration, maintenance, inspection and repair subject to the provisions of this chapter shall be reasonably safe to persons and property and in conformity with the provisions of this chapter. The use of unsafe and defective lifting devices imposes a substantial probability of serious and preventable injury to employees and the public exposed to unsafe conditions. The prevention of these injuries and the protection of employees and the public from unsafe conditions is in the best interest of the people of this state. Personnel performing work covered by this chapter must, by documented training or experience or both, be familiar with the operation and safety functions of the components and equipment and be licensed in accordance with this chapter. Training and experience shall include, but are not limited to, recognizing the safety hazards and performing the procedures to which they are assigned in conformance with the requirements of this chapter. This chapter establishes the minimum acceptable standards for personnel performing all inspections required in this chapter.
(2) This chapter is not intended to prevent the use of systems, methods or devices of equivalent or superior quality, strength, fire resistance, code effectiveness, durability and safety to those required by this chapter, provided that there is technical documentation to demonstrate the equivalency of the system, method or device, as prescribed in this chapter and the rules adopted under this chapter.
[39-8602, added 2004, ch. 359, sec. 1, p. 1067.]
As used in this chapter, the terms defined in this section shall have the following meanings unless the context clearly indicates another meaning:
(1) "Administrator" means the administrator of the division of occupational and professional licenses for the state of Idaho.
(2) "ANSI" means the American national standards institute.
(3) "ASME" means the American society of mechanical engineers.
(4) "Conveyance" includes elevators, escalators, moving walks, platform lifts, material lifts, and dumbwaiters.
(5) "Division" means the Idaho division of occupational and professional licenses.
(6) "Dumbwaiter" means a hoisting and lowering mechanism equipped with a car of limited size that is used exclusively for carrying materials and that moves in guide rails and serves two (2) or more landings.
(7) "Elevator" means a hoisting or lowering machine equipped with a car or platform that moves in guides and services two (2) or more floors or landings of a building or structure.
(8) "Escalator" means a power-driven, inclined, continuous stairway used for raising and lowering passengers.
(9) "Installation" means a complete conveyance including any hoistway, hoistway enclosures and related construction and all machinery and equipment for its operation.
(a) "Existing installation" means an installation that has been completed or upon which construction was commenced prior to July 1, 2004.
(b) "New installation" means any installation not classified as an existing installation by definition, or an existing conveyance moved to a new location subsequent to July 1, 2004.
(10) "Maintenance" means a process of routine examination, lubrication, cleaning, adjustment, and replacement of parts for the performance in accordance with applicable code requirements.
(11) "Major alteration" means any change to equipment or other maintenance, repair or replacement where work is defined by any applicable code requirement.
(12) "Material lift" means a hoisting and lowering mechanism normally classified as an elevator, equipped with a car that moves within a guide system installed at an angle of greater than seventy degrees (70°) from the horizontal, serving two (2) or more landings, for the purpose of transporting materials that are manually or automatically loaded or unloaded.
(13) "Modernization" means the replacing or upgrading of any major operating component(s) of a conveyance.
(14) "Moving walks" means a type of passenger-carrying device on which passengers stand or walk and in which the passenger-carrying surface remains parallel to its direction of motion and is uninterrupted.
(15) "Owner" includes the designated agent or representative of the owner.
(16) "Platform lift" means a hoisting and lowering mechanism that moves within a guide system and serves two (2) or more landings and may include vertical or inclined platform lifts used by persons who are mobility impaired.
(17) "Private residence" means a separate dwelling or a separate apartment in a multiple dwelling occupied only by the members of a single family unit.
(18) "Qualified elevator inspector" or "QEI" means a person who is currently certified by the National Association of Elevator Safety Authorities International (NAESA International) accredited certifying organization as meeting the requirements of the ASME QEI-1 Standard for the Qualification of Elevator Inspectors and who is employed by or under contract to the division of occupational and professional licenses.
(19) "Repair" means the process of rehabilitation, upgrading or replacement of parts that are basically the same as the originals for the purpose of ensuring performance in accordance with the applicable code requirements.
(20) "Replacement" means the substitution of a device or component in its entirety with a new unit that is basically the same as the original for the purpose of ensuring performance in accordance with the applicable code requirements.
[39-8603, added 2004, ch. 359, sec. 1, p. 1068; am. 2020, ch. 99, sec. 1, p. 258; am. 2023, ch. 15, sec. 20, p. 86.]
The administrator shall enforce the provisions of this chapter. Local governments shall not adopt codes or institute enforcement programs with regard to conveyances.
[39-8604, added 2004, ch. 359, sec. 1, p. 1069.]
The administrator may adopt rules and codes governing the operation, installation, alteration, maintenance, inspection and repair of conveyances and shall adopt minimum standards governing existing installations. The administrator may adopt such rules and fees as are reasonably necessary to establish and administer the provisions of this chapter.
[39-8605, added 2004, ch. 359, sec. 1, p. 1069.]
(a) The provisions of this chapter shall apply to all conveyances within the state of Idaho except the following or as provided in subsection (b) of this section:
(1) Conveyances located in private residences;
(2) Conveyances in federally owned facilities;
(3) Conveyances permanently removed from service or made effectively inoperative; and
(4) Conveyances erected temporarily for use only during construction work that are of such a design that they must be operated by a workman stationed at the hoisting machine.
(b) Conveyances erected before July 1, 2004, pursuant to section 39-8614(3), Idaho Code, are subject only to the requirements of the safety code for existing elevators and escalators (ASME A17.3). Such conveyances, however, shall also be exempted from any requirements of that ASME A17.3 requiring conveyances to be modified with upgrades or replacements that would fall within the definition of "modernization" as defined in section 39-8603, Idaho Code, or to be modified with additional safety features falling within the definition of "alteration" unless:
(1) The total cost of the modification is less than five thousand dollars ($5,000); or
(2) The conveyance is not situated in a privately owned business facility; or
(3) The facility in which the conveyance is located is being altered, as defined within the provisions and guidelines applicable to the Americans with disabilities act of 1990 and amendments thereto, provided that said alterations are significant in that they affect the accessibility of the majority of floor space on at least one (1) floor of the building.
[39-8606, added 2004, ch. 359, sec. 1, p. 1069; am. 2012, ch. 42, sec. 1, p. 130.]
On and after July 1, 2004, all installations and periodic inspections required by this chapter shall be performed by a QEI as defined in this chapter.
[39-8607, added 2004, ch. 359, sec. 1, p. 1070.]
(1) On and after July 1, 2004, it shall be unlawful for any person to do, or cause or permit to be done, whether acting as principal, agent or employee, any installation or major alteration of any conveyance in the state of Idaho without first procuring an installation permit from the division of occupational and professional licenses authorizing the work to be done.
(2) The owner of a conveyance shall submit an application for the permit in a form that the division may prescribe. A copy of the plans or specifications for the installation, erection, major alteration, or relocation shall be attached to the permit application.
(3) The permit issued by the division shall be kept posted conspicuously at the site of installation.
(4) No installation permit is required for repairs and replacement normally necessary for maintenance and made with parts of equivalent materials, strength and design, or for installations and major alterations that have been commenced prior to July 1, 2004, or for new installations let for bid prior to November 1, 2002.
(5) The installation permit and inspections required in this chapter are not exclusive. Installations and major alterations of conveyances as herein defined may be subject to licensing, permitting and inspection requirements set forth in other provisions of law.
[39-8608, added 2004, ch. 359, sec. 1, p. 1070; am. 2023, ch. 15, sec. 21, p. 87.]
(1) The person installing or altering a conveyance is responsible for its operation and maintenance until the division has issued an operating certificate for the conveyance. The owner is responsible for all tests of a new, relocated or altered conveyance until the division has issued an operating permit for the conveyance.
(2) The owner shall be responsible for the safe operation and proper maintenance of the conveyance after the division has issued the operating certificate and also during the period of effectiveness of any temporary operating permit. The owner shall be responsible for assuring that all required periodic tests are performed by a QEI as defined in this chapter.
[39-8609, added 2004, ch. 359, sec. 1, p. 1070.]
A temporary certificate to operate may be issued by the administrator. No temporary certificate shall be issued when life-safety nonconformances are present. Before the expiration of the temporary certificate, the conveyance shall be reinspected and a five (5) year certificate to operate shall be issued or the conveyance shall be put out of service.
[39-8610, added 2004, ch. 359, sec. 1, p. 1070; am. 2011, ch. 24, sec. 1, p. 65.]
(1) Inspection and certificate. No conveyance shall be placed into operation until an inspection has been performed and a certificate to operate has been issued by the division.
(2) Inspection prior to issuance. A certificate to operate may be issued only if, after a thorough inspection, the QEI finds that the conveyance meets the required safety standards. If the conveyance is found to be unsafe, the division shall prohibit the use of the conveyance until it is made safe. Conveyances shall comply with the codes set forth in section 39-8614, Idaho Code.
(3) Term of certificate. A certificate to operate shall be in effect for five (5) years, provided that the conveyance continues to meet the requirements of the appropriate codes as evidenced by annual inspections.
(4) Revocation of certificate. The certificate to operate shall remain the property of the state of Idaho and may be revoked at any time if the conveyance fails to meet the requirements of the appropriate codes or if the annual certification fee is not paid.
[39-8611, added 2004, ch. 359, sec. 1, p. 1070; am. 2007, ch. 137, sec. 1, p. 397.]
Whenever any conveyance is being operated without a certificate required by this chapter, the administrator may apply to the district court of the county in which the conveyance is located for a temporary restraining order or a temporary or permanent injunction restraining the operation of the conveyance until the division issues a certificate to operate. Notwithstanding any other provision of law, the division shall not be required to post a bond.
[39-8612, added 2004, ch. 359, sec. 1, p. 1071.]
(1) The administrator may order the owner or person operating a conveyance to discontinue the operation of a conveyance, and may place a notice that states that the conveyance shall not be operated, in a conspicuous place in the conveyance if the conveyance:
(a) Has not been constructed, installed, maintained or repaired in accordance with the requirements of this chapter; or
(b) Has otherwise become unsafe.
(2) The administrator’s order is effective immediately and shall not be stayed by a request for an administrative hearing.
(3) The administrator shall prescribe a form for the order to discontinue operation. The order shall specify why the conveyance violates this chapter or is otherwise unsafe.
(4) The administrator shall rescind the order to discontinue operation if the conveyance is fixed or modified to bring it into compliance with this chapter.
(5) An owner or a person that knowingly operates or allows the operation of a conveyance in contravention of an order to discontinue operation, or that removes a notice not to operate, is:
(a) Guilty of a misdemeanor; and
(b) Subject to a civil penalty.
(6) The division may conduct random on-site inspections and tests on existing installations and may witness periodic inspections and testing in order to ensure satisfactory performance.
(7) Administrative hearings of appeals from orders issued by the administrator shall be governed by the provisions of the Idaho administrative procedure act, chapter 67, title 52, Idaho Code.
[39-8613, added 2004, ch. 359, sec. 1, p. 1071.]
(1) The following codes, including those updates, addenda and amendments thereto hereafter adopted by the division as set forth in the duly promulgated administrative rules, are hereby adopted for all conveyances subject to this chapter as may be applicable:
(a) ANSI/ASME, A17.1 Safety Code for Elevators and Escalators.
(b) ANSI/ASME, A17.3 Safety Code for Existing Elevators and Escalators.
(c) ANSI/ASME, A17.4 Guide for Emergency Personnel.
(d) ANSI/ASME, A17.5 Elevator and Escalator Electrical Equipment.
(e) ANSI/ASME, A17.6 Standard for Elevator Suspension, Compensation, and Governor Systems.
(f) ANSI/ASME, A17.7 Performance-Based Safety Code for Elevators and Escalators.
(g) ANSI/ASME, A17.8 Standard for Wind Turbine Tower Elevators.
(h) ICC/ANSI, A117.1 Accessible and Usable Buildings and Facilities.
(i) ANSI/ASME, A18.1 Safety Standard for Platform Lifts and Chairlifts.
(j) ASME, QEI-1 Standard for the Qualification of Elevator Inspectors.
(2) Conveyances placed into operation after July 1, 2004, shall comply with those codes in effect on the date the division received the application for the permit or certificate for the conveyance.
(3) Conveyances placed into operation prior to July 1, 2004, shall be required to comply only with the Safety Code for Existing Elevators and Escalators.
[39-8614, added 2004, ch. 359, sec. 1, p. 1071; am. 2007, ch. 137, sec. 2, p. 397; am. 2020, ch. 99, sec. 2, p. 259.]
Conveyances shall have an inspection performed in accordance with ANSI/ASME standards set forth in section 39-8614, Idaho Code. The following types of inspections are required:
(1) Acceptance. The initial inspection and tests of new or altered equipment by a QEI to check for compliance with the applicable code requirements.
(2) Periodic. Periodic inspection and tests plus additional detailed examination and operation of equipment at specified intervals performed by a QEI to check for compliance with the applicable code requirements. Periodic inspections are required at least every five (5) years.
(3) Routine. Annual examinations performed in compliance with applicable codes to verify compliance with requirements.
[39-8615, added 2004, ch. 359, sec. 1, p. 1072.]
The division shall have authority to charge certain fees in accordance with the fee schedule established by the division, which schedule shall not exceed the amounts set forth as follows and which amounts may be reduced by the division as set forth in duly promulgated administrative rules:
(1) Installation, alteration, modernization or relocation fee schedule. Fees include one (1) plan review and certificate to operate, and two (2) acceptance inspections (each inspection thereafter will incur a reinspection fee):
(a) Certification fee:
(i) Traction and roped hydraulic elevator
(ii) Moving walk/escalator
(iii) Hydraulic elevator
(iv) Platform lift/material lift/dumbwaiter
(b) Reinspection fee:
(i) Traction and roped hydraulic elevator
(ii) Moving walk/escalator
(iii) Hydraulic elevator
(iv) Platform lift/material lift/dumbwaiter
(2) Annual certificate to operate fee schedule. Fees include annual certificate to operate and periodic inspection (every five (5) years), and one (1) reinspection as may be necessary (each inspection thereafter will incur a reinspection fee):
(a) Certification fee:
(i) Traction and roped hydraulic elevator
(ii) Moving walk/escalator
(iii) Hydraulic elevator
(iv) Platform lift/material lift/dumbwaiter
(b) Reinspection fee:
(i) Traction and roped hydraulic elevator
(ii) Moving walk/escalator
(iii) Hydraulic elevator
(iv) Platform lift/material lift/dumbwaiter
(3) Temporary certificate to operate fee schedule (same as annual) and one (1) reinspection fee as may be necessary (each inspection thereafter will incur a reinspection fee):
(a) Temporary certification fee:
(i) Traction and roped hydraulic elevator
(ii) Moving walk/escalator
(iii) Hydraulic elevator
(iv) Platform lift/material lift/dumbwaiter
(b) Reinspection fee:
(i) Traction and roped hydraulic elevator
(ii) Moving walk/escalator
(iii) Hydraulic elevator
(iv) Platform lift/material lift/dumbwaiter
(4) Application for initial certification (nonrefundable):
All conveyances
[39-8616, added 2004, ch. 359, sec. 1, p. 1072; am. 2007, ch. 137, sec. 3, p. 398.]
Certificates to operate shall be renewed annually by making application to the division on such forms as the division may prescribe. Successful application shall require payment of the annual renewal fee and submission of a satisfactory routine inspection form, provided however, that on each five (5) year anniversary of issuance of the certificate, successful application shall require payment of the annual renewal fee and submission of a satisfactory periodic inspection form.
[39-8617, added 2004, ch. 359, sec. 1, p. 1073.]
(1) Within fifteen (15) days of completion of the inspection, all inspection reports shall be filed with the division and a copy shall be sent to the owner for corrective actions as required.
(2) Within thirty (30) days of the delivery of an inspection report to the owner and the division, the owner and the division shall enter into a compliance agreement whereby the owner and the division shall agree upon a schedule for corrective actions identified in the inspection report. The division shall issue a temporary certificate to operate if the corrective actions are not related to life safety issues. The owner and the division shall thereafter act in good faith to comply with the provisions of the compliance agreement.
(3) Where there are practical difficulties involved in complying with this chapter or any provision of any applicable code, as part of a compliance agreement, the owner and the division may identify alternative means of compliance so long as such alternative means do not lessen health, fire and life safety requirements and are otherwise consistent with the intent and purpose of applicable codes.
(4) An owner’s failure to complete the corrective actions set forth in the compliance agreement shall constitute grounds for the imposition of civil penalties and such further action as the division may deem appropriate if the owner:
(a) Fails to initiate corrective action; and
(b) Fails to provide evidence of compliance within thirty (30) days of the owner’s receipt of written notice from the division of a failure to comply.
(5) An owner shall not be deemed to be in violation of this chapter:
(a) If the owner and the division are in the process of entering into a compliance agreement; or
(b) If the owner is undertaking corrective action as set forth in the compliance agreement; or
(c) If upon the expiration of thirty (30) days from receipt of written notice from the division specifying the particulars in which the owner has failed to perform its obligations under a compliance agreement, the owner fails, prior to expiration of said thirty (30) day period, to rectify the particulars specified in such notice; or
(d) If an owner’s failure to perform under this chapter cannot be reasonably rectified within thirty (30) days from receipt of written notice from the division, but the owner, having received the notice, has commenced actions necessary to cure the failure and is diligently pursuing the cure of the failure.
[39-8618, added 2004, ch. 359, sec. 1, p. 1073; am. 2007, ch. 137, sec. 4, p. 399.]
(1) Any person who willfully violates any provision of this chapter or the duly promulgated rules hereunder is guilty of a misdemeanor and, upon conviction, shall be punished by a fine of not more than three hundred dollars ($300) or by imprisonment for not more than six (6) months or by both such fine and imprisonment.
(2) A separate violation is deemed to have occurred with respect to each conveyance not in compliance with this chapter. Each day such violation continues constitutes a separate offense.
[39-8619, added 2004, ch. 359, sec. 1, p. 1073.]
(1) The administrator may assess a penalty against a person violating a provision of this chapter. The penalty shall be not more than five hundred dollars ($500) per violation. Each day that the violation continues is a separate violation and is subject to a separate penalty.
(2) The administrator shall notify the violator of his action and the reasons for his action in writing. The administrator shall send the notice by certified mail to the violator’s last known address. The notice shall inform the violator that a hearing may be requested under the provisions of the Idaho administrative procedure act, chapter 52, title 67, Idaho Code. A request for a hearing shall not stay the effect of the penalty.
[39-8620, added 2004, ch. 359, sec. 1, p. 1073.]
This chapter shall not be construed to relieve or lessen the responsibility of any person, firm or corporation owning, operating, controlling, maintaining, erecting, constructing, installing, altering, inspecting, testing or repairing any conveyance covered by this chapter for damages to any person or property caused by any defect therein, nor does the state assume any such liability or responsibility for any liability to any person for whatever reason whatsoever by the adoption of this chapter or any acts or omissions arising hereunder.
[39-8621, added 2004, ch. 359, sec. 1, p. 1074.]
The owner shall promptly notify the division of each accident to a person requiring the service of a physician or resulting in a disability exceeding one (1) day and shall afford the division every facility for investigating and inspecting the accident. After being so notified, the division shall without delay make an inspection and shall place on file a full and complete report of the accident. The report shall detail all material facts and information gathered as a part of the investigation and shall include the potential cause or causes of the accident, as may be ascertained by the division. The report shall be open to public inspection at all reasonable hours. When an accident involves the failure or destruction of any part of the construction or the operating mechanism of a conveyance, the use of the conveyance is forbidden until it has been made safe, it has been reinspected, any repairs, changes or alterations have been approved by the division, and a permit has been issued by the division. The removal of any part of the damaged construction or operating mechanism from the premises is forbidden until the division grants permission to do so.
[39-8622, added 2004, ch. 359, sec. 1, p. 1074.]
All moneys received by the administrator under the provisions of this chapter shall be paid into the state treasury as directed by section 59-1014, Idaho Code, and shall be placed by the state treasurer to the credit of a dedicated fund to be known as the "Idaho Elevator Safety Fund" which is hereby established. All such moneys hereafter placed in the fund are hereby set aside and appropriated to the division of occupational and professional licenses to carry into effect the provisions of this chapter.
[39-8623, added 2006, ch. 81, sec. 1, p. 243; am. 2023, ch. 15, sec. 22, p. 88.]
This chapter shall be known and may be cited as the "Idaho Commonsense Consumption Act."
[39-8701, added 2004, ch. 380, sec. 1, p. 1141.]
Except as provided in section 39-8703, Idaho Code, a manufacturer, packer, distributor, carrier, holder, seller, marketer or advertiser of a food, as defined in section 39-8704, Idaho Code, or an association of one (1) or more of such entities, shall not be subject to civil liability arising under any Idaho law for any claim, as defined in section 39-8704, Idaho Code, arising out of weight gain, obesity, a health condition associated with weight gain or obesity, or any other generally known obesity-related condition allegedly caused by or allegedly likely to result from long-term consumption of food.
[39-8702, added 2004, ch. 380, sec. 1, p. 1141.]
Notwithstanding section 39-8702, Idaho Code, civil liability shall not be precluded where the claim of weight gain, obesity, a health condition associated with weight gain or obesity, or any other generally known obesity-related condition allegedly caused by or allegedly likely to result from long-term consumption of food is based on:
(1) A material violation of an adulteration or misbranding provision set forth by statute, rule or regulation in Idaho or the United States provided the claimed injury was proximately caused by such violation; or
(2) Any other material violation of federal or state law applicable to manufacturing, marketing, distribution, advertising, labeling or the sale of food, provided such violation is knowing and willful, as defined in section 39-8704, Idaho Code, and provided further that the claimed injury was proximately caused by such violation.
[39-8703, added 2004, ch. 380, sec. 1, p. 1141.]
As used in this chapter:
(1) "Claim" means any claim by or on behalf of a natural person as well as any derivative or other claim arising therefrom asserted by or on behalf of any other person.
(2) "Food" means:
(a) Articles used for food or drink for persons or other animals;
(b) Chewing gum; and
(c) Articles used for components of any other such article.
(3) "Generally known obesity-related condition allegedly caused by or allegedly likely to result from long-term consumption" means an obesity-related condition generally known to result or to likely result from the cumulative effect of consumption and not from a single instance of consumption.
(4) "Knowing and willful violation" means:
(a) The conduct constituting the violation was committed with the intent to deceive or injure consumers or with actual knowledge that such conduct was injurious to consumers; and
(b) The conduct constituting the violation was not required by any law, regulation, order or rule of the United States, the state of Idaho, or any political subdivision thereof.
(5) "Person" means any individual, partnership, corporation, firm, association, governmental subdivision or agency, public or private organization or other legal entity.
[39-8704, added 2004, ch. 380, sec. 1, p. 1141.]
(1) In any action exempted pursuant to section 39-8703(1), Idaho Code, the complaint initiating such action shall state with particularity the following:
(a) The statute, rule, regulation or other law of Idaho or the United States that was allegedly violated;
(b) The facts that are alleged to constitute a material violation of such law; and
(c) The facts that are alleged to demonstrate that such violation proximately caused actual injury to the plaintiff.
(2) In any action exempted pursuant to section 39-8703(2), Idaho Code, the complaint initiating such action shall state with particularity facts sufficient to support a reasonable inference that the violation was done with the intent to deceive or injure consumers or with actual knowledge that such violation was injurious to consumers.
[39-8705, added 2004, ch. 380, sec. 1, p. 1142.]
In any action exempted pursuant to section 39-8703, Idaho Code, all discovery and other proceedings shall be stayed during the pendency of any motion to dismiss unless the court finds upon the motion of any party that particularized discovery is necessary to preserve evidence or to prevent undue prejudice to that party. During the pendency of any stay of discovery, unless otherwise ordered by the court, any party to the action with actual notice of the allegations contained in the complaint shall treat all documents, data compilations, including electronically recorded or stored data, and tangible objects that are in the custody or control of such party and that are relevant to the allegations, as if they were the subject of a continuing request for production of documents from an opposing party.
[39-8706, added 2004, ch. 380, sec. 1, p. 1142.]
This act may be known and cited as the "Idaho Underground Storage Tank Act."
[39-8801, added 2007, ch. 29, sec. 1, p. 57.]
(1) The legislature of the state of Idaho finds:
(a) That the protection of the environment from leaking underground storage tanks is a matter of statewide concern;
(b) That subchapter IX of the solid waste disposal act (42 U.S.C. 6991, et seq. (2000)), as amended by the underground storage tank compliance act, public law 109-58, title XV, August 8, 2005, and regulations adopted pursuant thereto, establish federal law regulating underground storage tanks; and
(c) That 42 U.S.C. 6991c(a) and 40 CFR part 281 allow the administrator of the United States environmental protection agency to approve a state program.
(2) Therefore, it is the intent of the legislature:
(a) To establish a state underground storage tank program to comply with the requirements of the underground storage tank compliance act, public law 109-58, title XV, August 8, 2005, and the regulations adopted pursuant thereto, and 40 CFR part 280, so that the Idaho department of environmental quality may promulgate rules, through negotiated rulemaking, to implement a state underground storage tank program as provided in section 39-8805, Idaho Code;
(b) That such program not constitute a new corrective action program;
(c) That such program qualify the state for federal funding from the federal leaking underground storage tank trust fund;
(d) That such program may be funded as provided in section 39-119, Idaho Code, not to exceed one hundred dollars ($100) per tank per year. These funds shall only be used for the underground storage tank program;
(e) A fee balance greater than thirty-five thousand dollars ($35,000) as of December 31 of each year, excluding any early payments for the fees due January 2 of the following year, shall be used to reduce the following year’s fee; and
(f) Prior to February 1 of each year, the director shall report to the governor and the legislature on the use of fees collected the previous year. At a minimum, the report shall include:
(i) A list of all tanks subject to inspection;
(ii) The type of inspection and regulatory authority or guidance used; and
(iii) A detailed accounting of how fee funds were spent.
[39-8802, added 2007, ch. 29, sec. 1, p. 57; am. 2016, ch. 52, sec. 1, p. 148.]
As used in this chapter:
(1) "Board" means the Idaho board of environmental quality.
(2) "Board of trustees" means the board of trustees established in section 41-4904, Idaho Code.
(3) "Department" means the Idaho department of environmental quality.
(4) "Director" means the director of the Idaho department of environmental quality.
(5) "Underground storage tank system" means underground storage tank as defined by 42 U.S.C. 6991(10).
[39-8803, added 2007, ch. 29, sec. 1, p. 58.]
The requirements of this chapter and rules promulgated pursuant to this chapter, shall apply to underground storage tank systems in the state of Idaho, owners and operators of underground storage tank systems in the state of Idaho, persons who install or inspect installations of underground storage tank systems in the state of Idaho, persons who manufacture any regulated component of an underground storage tank system installed in the state of Idaho, and persons who deliver fuel to a regulated underground storage tank system in the state of Idaho.
[39-8804, added 2007, ch. 29, sec. 1, p. 58.]
(1) Pursuant to the procedures established by the Idaho administrative procedure act, chapter 52, title 67, Idaho Code, the department shall promulgate through negotiated rulemaking, and the board shall adopt, rules as are necessary to regulate underground storage tank systems within the state. This includes, but is not limited to, rules addressing:
(a) Inspection and certification of underground storage tanks;
(b) Operator training;
(c) Release prevention, compliance and enforcement;
(d) Delivery prohibitions; and
(e) Additional measures to protect ground water.
(2) The board of trustees shall participate in any such negotiated rulemaking through designated representatives.
(3) The rules, promulgated and adopted pursuant to this chapter, and guidance or policy provisions developed in regard to rules promulgated and adopted pursuant to this chapter, shall not be broader in scope, more stringent than, or propose to regulate an activity not regulated by federal law or regulations governing underground storage tanks except as provided by section 39-107D, Idaho Code.
(4) To the degree that any rule promulgated and adopted pursuant to this chapter, or guidance or policy developed in regard to any rule promulgated and adopted pursuant to this chapter, is based upon science, the department shall use:
(a) The best available peer reviewed science and supporting studies conducted in accordance with sound and objective scientific practices; and
(b) Data collected by accepted methods or best available methods if the reliability of the method and the nature of the decision justifies use of the data.
[39-8805, added 2007, ch. 29, sec. 1, p. 58.]
(1) Compliance with the additional testing and inspection requirements set forth in 40 CFR 280.10 concerning emergency power generators, 40 CFR 280.35 concerning spill prevention equipment and containment sumps used for interstitial monitoring of piping and overfill prevention equipment, and 40 CFR 280.40 concerning release detection, as adopted by Idaho and incorporated by reference in IDAPA 58.01.07.004, shall be required only on and after October 13, 2021, notwithstanding any prior date set forth in said regulations or rule.
(2) The provisions of subsection (1) of this section shall be retroactive to the effective date of IDAPA 58.01.07.004, to wit March 24, 2017.
[39-8805A, added 2019, ch. 34, sec. 1, p. 96.]
New and replacement underground storage tank systems and connected piping installed after the effective date of this chapter and located within one thousand (1,000) feet of any existing community water system or any existing potable drinking water well, shall comply with the secondary containment requirements of 42 U.S.C. 6991b(i)(1).
[39-8806, added 2007, ch. 29, sec. 1, p. 59.]
(1) The department shall adopt an operator training program to be conducted by either the department or a state of Idaho approved third party to help underground storage tank system owners and operators and their employees understand and comply with the requirements of this chapter and rules promulgated pursuant to this chapter. The training shall be consistent with 42 U.S.C. 6991i(a).
(2) Training conducted by the department shall be offered on location to owners, operators and employees of underground storage tank systems regulated under this chapter. The training shall be specific to the equipment on location.
[39-8807, added 2007, ch. 29, sec. 1, p. 59; am. 2016, ch. 52, sec. 2, p. 149.]
(1) Underground storage tank systems regulated under this chapter which have not been inspected by the department or the United States environmental protection agency since December 22, 1998, shall be inspected by the department in compliance with this chapter.
(2) After completion of all inspections required under subsection (1) of this section, the department or a third party inspector certified by an approved state or national program, shall conduct on-site inspections of underground storage tank systems regulated under this chapter at least once every three (3) years to determine compliance with this chapter.
(3) If the department conducts the inspection, it shall not charge an additional fee for the inspection.
[39-8808, added 2007, ch. 29, sec. 1, p. 59; am. 2016, ch. 52, sec. 3, p. 149.]
(1) Effective August 8, 2007, it shall be unlawful for any person to deliver to, deposit into, or accept a regulated substance into an underground storage tank regulated under this chapter at a facility which has been identified by the department to be ineligible for such delivery, deposit, or acceptance.
(2) The department shall promulgate through negotiated rulemaking, and the board shall adopt, rules governing delivery prohibition as provided in section 39-8805, Idaho Code.
[39-8809, added 2007, ch. 29, sec. 1, p. 59.]
The department shall develop and use a database, which shall be available to the public on the internet, detailing the status of all underground storage tanks in the state of Idaho which are subject to regulation, including whether they are subject to delivery prohibition. The department shall develop the database within one (1) year of the effective date of this chapter. Such database shall be accurate, updated no less than quarterly, and subject to public review and correction by petition to the department.
[39-8810, added 2007, ch. 29, sec. 1, p. 60.]
Failure to comply with this chapter or rules promulgated pursuant to this chapter shall be subject to enforcement pursuant to the enforcement provisions of the Idaho environmental protection and health act contained in section 39-108, Idaho Code, provided however, that any monetary penalties for violations of the provisions of this chapter, or rules promulgated pursuant to this chapter, shall be assessed against the violator, or the violator shall be sued to recover in court, as follows:
(1) Anyone subject to the provisions of this chapter as provided in section 39-8804, Idaho Code, or rules promulgated pursuant to this chapter, who has been determined in a civil enforcement action to have failed to comply with tank notification requirements, or to have submitted false information pursuant to tank notification requirements, as provided in this chapter, any rule promulgated pursuant to this chapter or any order entered related to such violation, shall be liable for penalties of up to five thousand dollars ($5,000) per violation.
(2) Anyone subject to the provisions of this chapter as provided in section 39-8804, Idaho Code, or rules promulgated pursuant to this chapter, who has been determined in a civil enforcement action to have failed to comply with any provisions of this chapter, any rule promulgated pursuant to this chapter or any order entered related to such violation, for existing or new tank systems, shall be liable for penalties of up to five thousand dollars ($5,000) for each tank for each day of violation. If the violation is continuous, the violator shall be liable for penalties of up to five thousand dollars ($5,000) for each day of violation.
[39-8811, added 2007, ch. 29, sec. 1, p. 60; am. 2011, ch. 41, sec. 1, p. 96.]
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 remaining portions of this chapter.
[39-8812, added 2007, ch. 29, sec. 1, p. 60.]
(1) All moneys received from fees collected from all regulated underground storage tanks shall be forwarded to the department and shall be paid into the Idaho underground storage tank program 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 underground storage tank program fund and shall be expended for compliance, training, technical, legal and administrative support necessary for implementing the program required under the Idaho underground storage tank act as provided in this chapter.
(3) Costs and expenses incurred by the department in performing the duties, and the exercise of its powers in carrying out the underground storage tank program, shall be paid out of the fund.
(4) Idle moneys in the Idaho underground storage tank program fund established in this section shall be invested by the state treasurer as provided in section 67-1210, Idaho Code. Interest earned on all such investments shall be paid into the fund. Moneys in the fund may be expended pursuant to appropriation.
[39-8813, added 2017, ch. 40, sec. 1, p. 62.]
This act may be known and cited as the "Reduced Cigarette Ignition Propensity and Firefighter Protection Act."
[39-8901, added 2008, ch. 278, sec. 1, p. 792.]
As used in this chapter:
(1) "Agent" means any person authorized by the state tax commission to purchase and affix stamps on packages of cigarettes.
(2) "Cigarette" means any roll for smoking, whether made wholly or in part of tobacco or any other substance, irrespective of size or shape, and whether or not such tobacco or substance is flavored, adulterated or mixed with any other ingredient, the wrapper or cover of which is made of paper or any other substance or material, other than tobacco.
(3) "Manufacturer" means:
(a) Any entity that manufactures or otherwise produces cigarettes or causes cigarettes to be manufactured or produced anywhere that the manufacturer intends to be sold in this state, including cigarettes intended to be sold in the United States through an importer; or
(b) The first purchaser anywhere that intends to resell in the United States cigarettes manufactured anywhere that the original manufacturer or maker does not intend to be sold in the United States; or
(c) Any entity that becomes a successor of an entity described in paragraph (a) or (b) of this subsection.
(4) "Quality control and quality assurance program" means the laboratory procedures implemented to ensure that operator bias, systematic and nonsystematic methodological errors, and equipment-related problems do not affect the results of the testing. The program ensures that the testing repeatability remains within the required repeatability values stated in section 39-8903(1)(f), Idaho Code, for all test trials used to certify cigarettes in accordance with this chapter.
(5) "Repeatability" means the range of values within which the repeat results of cigarette test trials from a single laboratory will fall ninety-five percent (95%) of the time.
(6) "Retail dealer" means any person, other than a manufacturer or wholesale dealer, engaged in selling cigarettes or tobacco products.
(7) "Sale" means any transfer of title or possession or both, exchange or barter, conditional or otherwise, in any manner or by any means whatever or any agreement therefor. In addition to cash and credit sales, the giving of cigarettes as samples, prizes or gifts, and the exchanging of cigarettes for any consideration other than money, are considered sales.
(8) "Wholesale dealer" means any person other than a manufacturer who sells cigarettes or tobacco products to retail dealers or other persons for purposes of resale, and any person who owns, operates or maintains one (1) or more cigarette or tobacco product vending machines in, at or upon premises owned or occupied by any other person.
[39-8902, added 2008, ch. 278, sec. 1, p. 792.]
(1) Except as provided in subsection (7) of this section, no cigarettes may be sold or offered for sale in this state or offered for sale or sold to persons located in this state unless the cigarettes have been tested in accordance with the test method and meet the performance standard specified in this section, a written certification has been filed by the manufacturer with the state fire marshal in accordance with section 39-8904, Idaho Code, and the cigarettes have been marked in accordance with section 39-8905, Idaho Code.
(a) Testing of cigarettes shall be conducted in accordance with the American society of testing and materials (ASTM) standard E2187-04, "standard test method for measuring the ignition strength of cigarettes."
(b) Testing shall be conducted on ten (10) layers of filter paper.
(c) No more than twenty-five percent (25%) of the cigarettes tested in a test trial in accordance with this section shall exhibit full-length burns. Forty (40) replicate tests shall comprise a complete test trial for each cigarette tested.
(d) The performance standard required in this section shall only be applied to a complete test trial.
(e) Written certifications shall be based upon testing conducted by a laboratory that has been accredited pursuant to standard ISO/IEC 17025 of the international organization for standardization (ISO), or other comparable accreditation standard required by the state fire marshal.
(f) Laboratories conducting testing in accordance with this section shall implement a quality control and quality assurance program that includes a procedure that will determine the repeatability of the testing results. The repeatability value shall be no greater than 0.19.
(g) This section does not require additional testing if cigarettes are tested consistent with this chapter for any other purpose.
(h) Testing performed or sponsored by the state fire marshal to determine a cigarette’s compliance with the performance standard required in this section shall be conducted in accordance with this section.
(2) Each cigarette listed in a certification submitted pursuant to section 39-8904, Idaho Code, that uses lowered permeability bands in the cigarette paper to achieve compliance with the performance standard set forth in this section shall have at least two (2) nominally identical bands on the paper surrounding the tobacco column. At least one (1) complete band shall be located at least fifteen (15) millimeters from the lighting end of the cigarette. For cigarettes on which the bands are positioned by design, there shall be at least two (2) bands fully located at least fifteen (15) millimeters from the lighting end and ten (10) millimeters from the filter end of the tobacco column, or ten (10) millimeters from the labeled end of the tobacco column for nonfiltered cigarettes.
(3) A manufacturer of a cigarette that the state fire marshal determines cannot be tested in accordance with the test method prescribed in paragraph (1)(a) of this section shall propose a test method and performance standard for the cigarette to the state fire marshal. Upon approval of the proposed test method and a determination by the state fire marshal that the performance standard proposed by the manufacturer is equivalent to the performance standard prescribed in paragraph (1)(c) of this section, the manufacturer may employ that test method and performance standard to certify the cigarette pursuant to section 39-8904, Idaho Code. If the state fire marshal determines that another state has enacted reduced cigarette ignition propensity standards that include a test method and performance standard that are the same as those contained in this chapter, and the state fire marshal finds that the officials responsible for implementing those requirements have approved the proposed alternative test method and performance standard for a particular cigarette proposed by a manufacturer as meeting the fire safety standards of that state’s law or regulation under a legal provision comparable to this section, then the state fire marshal shall authorize that manufacturer to employ the alternative test method and performance standard to certify that cigarette for sale in this state, unless the state fire marshal demonstrates a reasonable basis why the alternative test should not be accepted under this chapter. All other applicable requirements of this section shall apply to the manufacturer.
(4) Each manufacturer shall maintain copies of the reports of all tests conducted on all cigarettes offered for sale for a period of three (3) years, and shall make copies of these reports available to the state fire marshal and the attorney general upon written request. Any manufacturer who fails to make copies of these reports available within sixty (60) days of receiving a written request shall be subject to a civil penalty not to exceed ten thousand dollars ($10,000) for each day after the sixtieth day that the manufacturer does not make the copies available.
(5) The state fire marshal may adopt a subsequent ASTM standard test method for measuring the ignition strength of cigarettes upon a finding that the subsequent method does not result in a change in the percentage of full-length burns exhibited by any tested cigarette when compared to the percentage of full-length burns the same cigarette would exhibit when tested in accordance with ASTM standard E2187-04 and the performance standard in subsection (1)(c) of this section.
(6) The state fire marshal shall review the effectiveness of this section and report the state fire marshal’s findings every three (3) years to the legislature and, if appropriate, make recommendations for legislation to improve the effectiveness of this chapter. The report and legislative recommendations shall be submitted no later than June 30 following the conclusion of each three (3) year period.
(7) The requirements of subsection (1) of this section shall not prohibit:
(a) Wholesale or retail dealers from selling their existing inventory of cigarettes on or after the effective date of this chapter if the wholesale or retail dealer can establish that state tax stamps were affixed to the cigarettes prior to the effective date and the wholesale or retail dealer can establish that the inventory was purchased prior to the effective date in comparable quantity to the inventory purchased during the same period of the prior year; or
(b) The sale of cigarettes solely for the purpose of consumer testing. For purposes of this subsection, the term "consumer testing" means an assessment of cigarettes that is conducted by a manufacturer, or under the control and direction of a manufacturer, for the purpose of evaluating consumer acceptance of those cigarettes, utilizing only the quantity of cigarettes that is reasonably necessary for the assessment.
(8) This chapter shall be implemented in accordance with the implementation and substance of the New York fire safety standards for cigarettes.
[39-8903, added 2008, ch. 278, sec. 1, p. 793.]
(1) Each manufacturer shall submit to the state fire marshal a written certification attesting that:
(a) Each cigarette listed in the certification has been tested in accordance with section 39-8903, Idaho Code; and
(b) Each cigarette listed in the certification meets the performance standard set forth in section 39-8903, Idaho Code.
(2) Each cigarette listed in the certification shall be described with the following information:
(a) Brand, or trade name on the package;
(b) Style, such as light or ultra light;
(c) Length in millimeters;
(d) Circumference in millimeters;
(e) Flavor, such as menthol or chocolate, if applicable;
(f) Filter or nonfilter;
(g) Package description, such as soft pack or box;
(h) Marking pursuant to section 39-8905, Idaho Code;
(i) The name, address and telephone number of the laboratory, if different than the manufacturer that conducted the test; and
(j) The date that the testing occurred.
(3) The certifications shall be made available to the attorney general for purposes consistent with this chapter and the state tax commission for purposes of ensuring compliance with this section.
(4) Each cigarette certified under this section shall be recertified every three (3) years.
(5) For each brand family listed in a certification, a manufacturer shall pay to the state fire marshal a one thousand dollar ($1000) fee. The fee paid shall apply to all cigarettes within the brand family certified and shall include any new cigarette certified within the brand family during the three (3) year certification period.
(6) All moneys collected as certification fees submitted by manufacturers shall be deposited in the state treasury to the credit of a special account in the state operating fund hereby created to be known as the "Reduced Cigarette Ignition Propensity and Firefighter Protection Act Enforcement Fund." The fund shall, in addition to any other moneys made available for that purpose, be available to the state fire marshal solely to support processing, testing, enforcement and oversight activities under this chapter.
(7) If a manufacturer has certified a cigarette pursuant to this section, and thereafter makes any change to the cigarette that is likely to alter its compliance with the reduced cigarette ignition propensity standards required in this chapter, that cigarette shall not be sold or offered for sale in this state until the manufacturer retests the cigarette in accordance with the testing standards set forth in section 39-8903, Idaho Code, and maintains records of that retesting as required by section 39-8903, Idaho Code. Any altered cigarette which does not meet the performance standard set forth in section 39-8903, Idaho Code, may not be sold in this state.
[39-8904, added 2008, ch. 278, sec. 1, p. 795.]
(1) Cigarettes that are certified by a manufacturer in accordance with section 39-8904, Idaho Code, shall be marked to indicate compliance with the requirements of section 39-8903, Idaho Code. The marking shall be in eight (8) point type or larger and consist of:
(a) Modification of the product UPC code to include a visible mark printed at or around the area of the UPC code. The mark may consist of alphanumeric or symbolic characters permanently stamped, engraved, embossed or printed in conjunction with the UPC; or
(b) Any visible combination of alphanumeric or symbolic characters permanently stamped, engraved or embossed upon the cigarette package or cellophane wrap; or
(c) Printed, stamped, engraved or embossed text that indicates that the cigarettes meet the standards of this chapter.
(2) A manufacturer shall use only one (1) marking, and shall apply this marking uniformly for all packages including, but not limited to, packs, cartons and cases, and brands marketed by that manufacturer.
(3) The state fire marshal shall be notified as to the marking that is selected.
(4) Prior to the certification of any cigarette, a manufacturer shall present its proposed marking to the state fire marshal for approval. Upon receipt of the request, the state fire marshal shall approve or disapprove the marking offered, except that the state fire marshal shall approve:
(a) Any marking in use and approved for sale in another state; or
(b) The letters "FSC," which signify fire standards compliant, appearing in eight (8) point type or larger and permanently printed, stamped, engraved or embossed on the package at or near the UPC code.
Proposed markings shall be deemed approved if the state fire marshal fails to act within ten (10) business days of receiving a request for approval.
(5) No manufacturer shall modify its approved marking unless the modification has been approved by the state fire marshal in accordance with this section.
(6) Manufacturers certifying cigarettes in accordance with section 39-8904, Idaho Code, shall provide a copy of the certifications to all wholesale dealers and agents to which they sell cigarettes, and shall also provide sufficient copies of an illustration of the package marking utilized by the manufacturer pursuant to this section for each retail dealer to which the wholesale dealers or agents sell cigarettes. Wholesale dealers and agents shall provide a copy of these package markings received from manufacturers to all retail dealers to which they sell cigarettes. Wholesale dealers, agents and retail dealers shall permit the state fire marshal, the state tax commission, the attorney general, and their employees to inspect markings of cigarette packaging marked in accordance with this section.
[39-8905, added 2008, ch. 278, sec. 1, p. 796.]
(1) A manufacturer, wholesale dealer, agent or any other person or entity who knowingly sells or offers to sell cigarettes, other than through retail sale, in violation of section 39-8903, Idaho Code, shall be subject to a civil penalty not to exceed one hundred dollars ($100) for each pack of the cigarettes sold or offered for sale; provided however, that in no case shall the penalty against that person or entity exceed one hundred thousand dollars ($100,000) during any thirty (30) day period.
(2) A retail dealer who knowingly sells or offers to sell cigarettes in violation of section 39-8903, Idaho Code, shall be subject to a civil penalty not to exceed one hundred dollars ($100) for each pack of the cigarettes sold or offered for sale; provided however, that in no case shall the penalty against that retail dealer exceed twenty-five thousand dollars ($25,000) during any thirty (30) day period.
(3) In addition to any penalty prescribed by law, any corporation, partnership, sole proprietor, limited partnership or association engaged in the manufacture of cigarettes that knowingly makes a false certification pursuant to section 39-8904, Idaho Code, shall be subject to a civil penalty of at least seventy-five thousand dollars ($75,000) and not to exceed two hundred fifty thousand dollars ($250,000) for each false certification.
(4) Any person violating any other provision in this chapter shall be subject to a civil penalty for a first offense not to exceed one thousand dollars ($1,000), and for a subsequent offense subject to a civil penalty not to exceed five thousand dollars ($5,000) for each violation.
(5) Any cigarettes that have been sold or offered for sale that do not comply with the performance standard required by section 39-8903, Idaho Code, shall be subject to forfeiture. Cigarettes forfeited pursuant to this subsection shall be destroyed; provided however, that prior to the destruction of any cigarettes forfeited pursuant to these provisions, the true holder of the trademark rights in the cigarette brand shall be permitted to inspect the cigarettes.
(6) In addition to any other remedy provided by law, the state fire marshal or attorney general may file an action in district court for a violation of this chapter, including petitioning for injunctive relief or to recover any costs or damages suffered by the state because of a violation of this chapter, including enforcement costs relating to the specific violation and attorney’s fees. Each violation of this chapter or of rules adopted under this chapter constitutes a separate civil violation for which the state fire marshal or attorney general may obtain relief.
(7) Whenever any law enforcement personnel or duly authorized representative of the state fire marshal shall discover any cigarettes that have not been marked in the manner required in section 39-8905, Idaho Code, the personnel is hereby authorized and empowered to seize and take possession of the cigarettes. The cigarettes shall be turned over to the state tax commission, and shall be forfeited to the state. Cigarettes seized pursuant to this subsection shall be destroyed; provided however, that prior to the destruction of any cigarettes seized pursuant to these provisions, the true holder of the trademark rights in the cigarette brand shall be permitted to inspect the cigarettes.
[39-8906, added 2008, ch. 278, sec. 1, p. 797.]
(1) The state fire marshal may promulgate rules pursuant to the provisions of chapter 52, title 67, Idaho Code, the administrative procedure act, necessary to effectuate the purposes of this chapter.
(2) The state tax commission in the regular course of conducting inspections of wholesale dealers, agents and retail dealers, as authorized under chapter 25, title 63, Idaho Code, may inspect the cigarettes to determine if the cigarettes are marked as required in section 39-8905, Idaho Code. If the cigarettes are not marked as required, the state tax commission shall notify the state fire marshal.
[39-8907, added 2008, ch. 278, sec. 1, p. 798.]
To enforce the provisions of this chapter, the attorney general, the state tax commission and the state fire marshal, their duly authorized representatives and other law enforcement personnel are hereby authorized to examine the books, papers, invoices and other records of any person in possession, control or occupancy of any premises where cigarettes are placed, stored, sold or offered for sale, as well as the stock of cigarettes on the premises. Every person in the possession, control or occupancy of any premises where cigarettes are placed, sold or offered for sale, is hereby directed and required to give the attorney general, the state tax commission and the state fire marshal, their duly authorized representatives and other law enforcement personnel the means, facilities and opportunity for the examinations authorized in this section.
[39-8908, added 2008, ch. 278, sec. 1, p. 798.]
All moneys collected as civil penalties under section 39-8906, Idaho Code, shall be deposited in the state treasury to the credit of a special account in the state operating fund hereby created to be known as the "Reduced Cigarette Ignition Propensity and Firefighter Protection Act Fund." The moneys shall be deposited to the credit of the fund and shall, in addition to any other moneys made available for that purpose, be made available to the state fire marshal to support fire safety and prevention programs.
[39-8909, added 2008, ch. 278, sec. 1, p. 798.]
Nothing in this chapter shall be construed to prohibit any person or entity from manufacturing or selling cigarettes that do not meet the requirements of section 39-8903, Idaho Code, if the cigarettes are or will be stamped for sale in another state or are packaged for sale outside the United States and that person or entity has taken reasonable steps to ensure that the cigarettes will not be sold or offered for sale to persons located in this state.
[39-8910, added 2008, ch. 278, sec. 1, p. 798.]
This chapter shall be repealed if a federal reduced cigarette ignition propensity standard that preempts this chapter is adopted and becomes effective.
[39-8911, added 2008, ch. 278, sec. 1, p. 798.]
This chapter shall be known and may be cited as the "Idaho Health Freedom Act."
[39-9001, added 2010, ch. 46, sec. 1, p. 84.]
(1) "Health care services" shall mean any service, treatment, or provision of product for the care of physical or mental disease, illness, injury, defect or condition, or to otherwise maintain or improve physical or mental health, subject to all laws and rules regulating health service providers and products within the state of Idaho.
(2) "Mode of securing" shall mean to purchase directly or on credit or by trade, or to contract for third-party payment by insurance or other legal means authorized by the state of Idaho, or to apply for or accept employer or government sponsored health care benefits under such conditions as may legally be required as a condition of such benefits, or any combination of the same.
(3) "Penalty" shall mean any civil or criminal fine, tax, salary or wage withholding, surcharge, fee or any other imposed consequence, established by law or rule of the federal government of the United States of America or its subdivision or agency, that is used to punish or discourage the exercise of rights protected under this chapter.
[39-9002, added 2010, ch. 46, sec. 1, p. 84.]
(1) The power to require or regulate a person’s choice in the mode of securing health care services, or to impose a penalty related thereto, is not found in the Constitution of the United States of America, and is therefore a power reserved to the people pursuant to the Ninth Amendment, and to the several states pursuant to the Tenth Amendment. The state of Idaho hereby exercises its sovereign power to declare the public policy of the state of Idaho regarding the right of all persons residing in the state of Idaho in choosing the mode of securing health care services free from the imposition of penalties, or the threat thereof, by the federal government of the United States of America relating thereto.
(2) It is hereby declared that the public policy of the state of Idaho, consistent with our constitutionally recognized and inalienable rights of liberty, is that every person within the state of Idaho is and shall be free to choose or decline to choose any mode of securing health care services without penalty or threat of penalty by the federal government of the United States of America.
(3) The policy stated herein shall not be applied to impair any right of contract related to the provision of health care services to any person or group.
[39-9003, added 2010, ch. 46, sec. 1, p. 84.]
(1) No public official, employee, or agent of the state of Idaho or any of its political subdivisions, shall act to impose, collect, enforce, or effectuate any penalty in the state of Idaho that violates the public policy set forth in section 39-9003(2), Idaho Code.
(2) The attorney general shall take such action as is provided in section 67-1401(15), Idaho Code, in the defense or prosecution of rights protected under this act.
[39-9004, added 2010, ch. 46, sec. 1, p. 85.]
This chapter shall be known and may be cited as the "Behavioral Health Community Crisis Centers Act."
[39-9101, added 2014, ch. 131, sec. 1, p. 365.]
(1) Citizens of Idaho experiencing a behavioral health crisis are often incarcerated, hospitalized or treated in hospital emergency departments because an appropriate level of care to meet their needs is not available.
(2) Hospital emergency departments, jails and law enforcement agencies in Idaho have become the default providers of crisis intervention to Idaho citizens with behavioral health disorders. Extensive resources are being unnecessarily expended by law enforcement and hospitals on behavioral health crisis services.
(3) It is the policy of this state that citizens with behavioral health disorders should not be needlessly incarcerated when no crime has been perpetrated or the crime is of a minor nature arising from a behavioral health disorder, crisis or incident.
(4) Therefore, it is the intent of the legislature that behavioral health community crisis centers, hereinafter referred to as crisis centers, be developed and operated, as funding is appropriated, to provide the appropriate level of care to meet the needs of Idahoans experiencing behavioral health crises.
(5) The crisis centers shall be available on a voluntary basis to individuals experiencing a behavioral health crisis. The centers shall provide transitional de-escalation, stabilization and community referral services only, and the centers shall not serve as inpatient or residential facilities.
(6) This chapter and any subsequent administrative rules shall not assume authority over other community efforts to assist Idahoans experiencing behavioral health crises.
[39-9102, added 2014, ch. 131, sec. 1, p. 365.]
(1) "Behavioral health" means an integrated or combined system for evaluation and treatment of mental health and substance use disorders.
(2) "Behavioral health community crisis center" or "crisis center" means a voluntary outpatient facility operated twenty-four (24) hours a day, seven (7) days a week and three hundred sixty-five (365) days a year to provide evaluation, intervention and referral for individuals experiencing a crisis due to a behavioral health condition. The facility may not provide services to a client for more than twenty-three (23) hours and fifty-nine (59) minutes in a single episode of care.
(3) "Department" means the department of health and welfare.
(4) "Director" means the director of the department of health and welfare.
(5) "Region" means the administrative regions as defined by the department of health and welfare. Two (2) or more regions may consolidate for the purposes of this chapter. For the purposes of this chapter, regions will be consistent with judicial districts.
[39-9103, added 2014, ch. 131, sec. 1, p. 365.]
(1) Crisis centers shall be directed by a board of directors. The board of directors shall guide the organization, implementation and operation of the crisis center.
(2) The board shall consist of no fewer than five (5) members and shall include, at a minimum, a local behavioral health consumer, a physician, law enforcement and a county commissioner from within the region.
(3) If the organization contracted for operation of the crisis centers is already governed by a board of directors, the board shall establish an advisory committee to advise it on the organization, implementation and operation of the crisis center.
(4) If the organization contracted for operation of the crisis center develops an advisory committee, the committee shall have no fewer than five (5) members and shall include a local behavioral health consumer, a physician, law enforcement and a county commissioner from within the region.
(5) The term of board or advisory committee membership, appointment authority for members and organizational structures shall be guided by bylaws, articles of incorporation or other policy directives established by the entity operating the facility.
(6) The department, as the state behavioral health authority established by section 39-3123, Idaho Code, shall oversee the crisis centers to ensure compliance with the intent of this chapter, application of the model, associated administrative rules and patient safety. The department shall be authorized to perform annual audits of crisis centers as necessary to fulfill its oversight responsibility.
[39-9104, added 2014, ch. 131, sec. 1, p. 366.]
Each crisis center shall annually evaluate the effectiveness and cost efficacy of its center and submit a report of findings to the department of health and welfare by August 1 of each year. The department shall annually report findings of the crisis center evaluations to germane committees of the Idaho legislature.
[39-9105, added 2014, ch. 131, sec. 1, p. 366.]
Subject to appropriation by the legislature, the department shall be responsible for administering, allocating and distributing all appropriations from the legislature for crisis centers.
[39-9106, added 2014, ch. 131, sec. 1, p. 366.]
Communities that receive state funding to establish a crisis center shall, to the maximum extent possible, contribute financial or in-kind support to the development and operation of the crisis center.
[39-9107, added 2014, ch. 131, sec. 1, p. 366.]
No regional crisis center shall refuse service to any person because of race, color, religion or because of inability to pay. Persons receiving services may be charged fees for the services they receive. The crisis center fee determination schedule shall be approved by the department of health and welfare. Fees collected by the crisis centers shall become part of their budget and utilized at the direction of the crisis center’s board or governance committee.
[39-9108, added 2014, ch. 131, sec. 1, p. 366.]
The director is authorized to promulgate rules necessary to implement the provisions of this chapter that are consistent with its provisions.
[39-9109, added 2014, ch. 131, sec. 1, p. 367.]
This chapter shall be known and may be cited as the "Idaho Direct Primary Care Act."
[39-9201, added 2015, ch. 291, sec. 1, p. 1164.]
It is the policy of the state of Idaho to promote personal responsibility for health care and the cost-effective delivery of medical services by encouraging innovative use of direct patient-provider practices for primary medical care. Direct patient-provider practices utilize a model of periodic fees for provider access and medical management over time, rather than simply a fee for visit or procedure service model. Some patients and individual primary care providers may wish to establish direct agreements with one another as an alternative to traditional fee-for-service care financed through health insurance. The purpose of this act is to confirm that direct patient-provider agreements that satisfy the provisions of this chapter do not constitute insurance.
[39-9202, added 2015, ch. 291, sec. 1, p. 1164.]
For purposes of this chapter, the following definitions apply:
(1) "Direct fee" means an agreed-upon fee charged by a primary care provider as consideration for providing and being available to provide direct primary care services described in a direct primary care agreement.
(2) "Direct primary care agreement" means a written contract between a primary care provider and an individual patient or a patient’s representative in which the primary care provider agrees to provide direct primary care services to the patient over a specified period of time for payment of a direct fee.
(3) "Direct primary care services" means those services that a primary care provider is licensed or otherwise legally authorized to provide and may include, but are not limited to, such services as screening, assessment, diagnosis and treatment for the purpose of promoting health; detection, management and care of disease or injury; or routine preventive or diagnostic dental treatment. Such services may be provided in a primary care provider’s office, the patient’s home or other locations where a patient visit with the primary care provider needs to occur.
(4) "Patient" means a person who is entitled to receive direct primary care services under a direct care agreement.
(5) "Patient’s representative" means a person identified in section 39-4504(1)(a) through (g), Idaho Code.
(6) "Primary care provider" means a natural person licensed or otherwise legally authorized to provide health care services in the state of Idaho in the field of pediatrics, family medicine, internal medicine or dentistry, who provides such services either alone or in professional association with others in a form and within a scope permitted by such licensure or legal authorization for the provision of such services, and who enters into a direct primary care agreement.
[39-9203, added 2015, ch. 291, sec. 1, p. 1164.]
(1) A direct primary care agreement shall identify:
(a) The primary care provider and the patient;
(b) The general scope of services as well as the specific services to be provided by the primary care provider;
(c) The location or locations where services are to be provided;
(d) The amount of the direct fee and the time interval at which it is to be paid; and
(e) The term of the agreement and the conditions upon which it may be terminated by the primary care provider. The agreement shall be terminable at will by written notice from the patient to the primary care provider.
(2) If a party provides written notice of termination of the direct primary care agreement, the primary care provider shall refund to the patient all unearned direct fees within thirty (30) days following the notice of termination.
[39-9204, added 2015, ch. 291, sec. 1, p. 1165.]
Neither the patient nor the primary care provider shall submit a bill to an insurer for the services provided under a direct primary care agreement.
[39-9205, added 2015, ch. 291, sec. 1, p. 1165.]
Direct primary care agreements are not subject to regulation as insurance under title 41, Idaho Code.
[39-9206, added 2015, ch. 291, sec. 1, p. 1165.]
A direct primary care agreement shall include the following disclaimer: "This agreement does not provide health insurance coverage, including the minimal essential coverage required by applicable federal law. It provides only the services described herein. It is recommended that health care insurance be obtained to cover medical services not provided for under this direct primary care agreement."
[39-9207, added 2015, ch. 291, sec. 1, p. 1165.]
A direct primary care agreement may not be sold or transferred by the primary care provider without the written consent of the patient and may be transferred only to another primary care provider. A direct primary care agreement may not be sold to a group, employer or group of subscribers because it is an individual agreement between a primary care provider and a patient. These limitations do not prohibit the presentation of marketing materials to groups of potential patients or their representatives but said marketing materials are subject to chapter 6, title 48, Idaho Code.
[39-9208, added 2015, ch. 291, sec. 1, p. 1165.]
This chapter does not prohibit health care providers who are not primary care providers from entering into agreements with patients to the extent such agreements do not violate the provisions of title 41, Idaho Code.
[39-9209, added 2015, ch. 291, sec. 1, p. 1166.]
This chapter shall be known and may be cited as the "Idaho Unborn Infants Dignity Act."
[39-9301, added 2016, ch. 368, sec. 1, p. 1078.]
(1) The legislature of the state of Idaho finds that:
(a) Deceased unborn infants deserve the same respect and dignity as other deceased human beings.
(b) It continues to be the public policy of the state of Idaho to promote live childbirth over abortion. Permitting the sale, transfer, distribution or donation of the bodily remains of aborted infants, particularly for pecuniary gain, and the use of the remains of aborted infants for experimentation undermine that public policy as well as proper ethical standards of medical conduct.
(c) It is contrary to the public policy of the state of Idaho for an individual to become pregnant for the purpose of aborting an unborn infant and thereafter selling, transferring, distributing or donating the unborn infant’s bodily remains for experimentation or other use.
(2) Based on the findings in subsection (1) of this section, the purpose of this chapter is to:
(a) Prohibit the sale, transfer, distribution or other unlawful disposition of an unborn infant or the bodily remains of an aborted infant;
(b) Prohibit the use of bodily remains of aborted infants for experimentation;
(c) Ensure that the bodily remains of unborn infants whose death resulted from an occurrence other than abortion are not sold, transferred or distributed for experimentation without the mother’s informed, written consent; and
(d) In accordance with the provisions of this chapter, prohibit all Idaho institutions of higher education that receive public moneys from engaging in medical research using organs or tissue, including human embryonic stem cells, obtained from aborted infants.
[39-9302, added 2016, ch. 368, sec. 1, p. 1078.]
As used in this chapter:
(1) "Aborted infant" means a deceased unborn infant whose death was caused by abortion.
(2) "Abortion" has the same meaning as provided in section 18-604, Idaho Code.
(3) "Bodily remains" means the physical remains, body parts or tissue of a deceased unborn infant who has been expelled or extracted from the infant’s mother.
(4) "Experiment" or "experimentation" means the use of bodily remains, including embryonic stem cells, or the use of an unborn infant intended to be aborted, in any trial, test, procedure or observation carried out with the goal of verifying, refuting or establishing the validity of a hypothesis, but does not include:
(a) Diagnostic or remedial tests, procedures or observations that have the purpose of promoting the life or health of an unborn infant or of the mother of an unborn infant; or
(b) Pathological study.
(5) "Fetal death" means the death of an unborn infant prior to expulsion or extraction from the unborn infant’s mother, provided that the unborn infant reached a stage of development such that there are cartilaginous structures or fetal or skeletal parts. The unborn infant’s death is indicated by the fact that, after such expulsion or extraction, the unborn infant does not breathe or show any other evidence of life such as a heartbeat, pulsation of the umbilical cord or definite movement of voluntary muscles.
(6) "Final disposition" means the burial, cremation or other legal disposition of a deceased unborn infant.
(7) "Miscarriage" means the spontaneous or accidental death of an unborn infant in utero other than by induced abortion or stillbirth. The infant’s death is indicated by the fact that, after the expulsion or extraction of the unborn infant, the infant does not breathe or show any other evidence of life such as a heartbeat, pulsation of the umbilical cord or definite movement of voluntary muscles.
(8) "Pathological" means the examination of body tissue for diagnostic or forensic purposes and any related activities necessary to perform such a study. The term "study" includes any study or test, genetic or otherwise, to determine paternity or the cause of death.
(9) "Stillbirth" has the same meaning as provided in section 39-241, Idaho Code.
(10) "Unborn infant" has the same meaning as "fetus" and "unborn child" as provided in section 18-604, Idaho Code.
[39-9303, added 2016, ch. 368, sec. 1, p. 1079.]
In every instance of fetal death involving miscarriage or stillbirth, the individual in charge of the institution where the bodily remains of the deceased unborn infant were expelled or extracted, or the individual’s designee, shall notify the mother or the mother’s authorized representative that the mother has a right to direct the receipt and disposition of her deceased unborn infant’s bodily remains. Upon request by the mother or her authorized representative, the institution shall make arrangements for the release of the bodily remains to the mother or her authorized representative for final disposition in accordance with applicable law.
[39-9304, added 2016, ch. 368, sec. 1, p. 1079.]
The state registrar of vital statistics shall establish such forms and procedures as are necessary to file miscarriage certificates for unborn infants whose death occurred as a result of miscarriage. The filing of a miscarriage certificate shall be voluntary at the request of the unborn infant’s parent or parents and shall be filed only if the miscarriage is certified by a physician, a physician’s assistant or an advanced practice registered nurse.
[39-9305, added 2016, ch. 368, sec. 1, p. 1080.]
(1) Except as otherwise provided in this chapter, no person shall knowingly sell, transfer, distribute, donate, accept, use or attempt to use the body or bodily remains of an aborted infant.
(2) Except as otherwise provided in this chapter, no person shall knowingly aid or abet any such sale, transfer, distribution, other unlawful disposition, acceptance, use or attempted use of the body or bodily remains of an aborted infant.
(3) Except as otherwise provided in this chapter, no person or public institution operating in Idaho shall knowingly use an unborn infant or the bodily remains or embryonic stem cells of an aborted infant in animal or human research, experimentation or study, or for transplantation, except:
(a) For diagnostic or remedial procedures that have the purpose of promoting the life or health of the unborn infant or the unborn infant’s mother;
(b) For pathological study; or
(c) For the applicable materials used in research projects and grants that were undertaken or made before July 1, 2016.
(4) Except as otherwise provided in this chapter, no person shall knowingly experiment upon an unborn infant who is intended to be aborted unless the experimentation is therapeutic to the unborn infant.
(5) The terms "transfer," "accept" and "acceptance" as used in this section do not apply to the transfer or acceptance of the body or bodily remains of an aborted infant for the sole purpose of lawfully disposing of the body or bodily remains of the aborted infant.
[39-9306, added 2016, ch. 368, sec. 1, p. 1080; am. 2017, ch. 298, sec. 1, p. 796.]
Bodily remains of an unborn infant whose death occurred as a result of miscarriage or stillbirth may be used for animal or human research, experimentation, study or transplantation only if the mother of the deceased unborn infant makes a signed, written statement declaring that:
(1) The mother donates the specific bodily remains for animal or human research, experimentation, study or transplantation;
(2) The donation is made without any restriction regarding the identity of individuals who may be the recipients of transplantations of any bodily remains;
(3) The mother has not been informed of the identity of any individuals who may be recipients of transplantations of bodily remains;
(4) The mother understands her right to obtain the bodily remains for final disposition in accordance with the provisions of this act; and
(5) Full disclosure has been provided to the mother with regard to the attending physician’s interest, if any, in the research, experimentation, study or transplantation to be conducted with specific bodily remains.
[39-9307, added 2016, ch. 368, sec. 1, p. 1080.]
(1) A person who violates section 39-9306(1) or (2), Idaho Code, shall be guilty of a felony for each violation and shall be subject to a fine not to exceed ten thousand dollars ($10,000), imprisonment in the state prison for a term not to exceed five (5) years, or both.
(2) A person who violates section 39-9306(3) or (4), Idaho Code, shall be guilty of a misdemeanor and shall be subject to a fine not to exceed one thousand dollars ($1,000), imprisonment in a county jail not to exceed six (6) months, or both. Any person who pleads guilty to or is found guilty of a violation of section 39-9306(3) or (4), Idaho Code, who previously has pled guilty to or been found guilty of a violation of either such subsection, notwithstanding the form of the judgment or withheld judgment, shall be guilty of a felony and shall be subject to a fine not to exceed ten thousand dollars ($10,000), imprisonment in the state prison not to exceed one (1) year, or both.
[39-9308, added 2016, ch. 368, sec. 1, p. 1081.]
The Idaho attorney general or the appropriate prosecuting attorney may initiate actions or proceedings for a violation of any criminal provisions in this chapter.
[39-9309, added 2016, ch. 368, sec. 1, p. 1081.]
(1) In addition to the remedies available under the statutory or common laws of Idaho, failure to comply with the requirements of section 39-9306, Idaho Code, shall provide a basis for recovery of damages for the parent of an unborn infant or, if the mother is a minor, for the parent or guardian of the mother of an unborn infant, for the unlawful disposition of or experimentation on an unborn infant or on bodily remains.
(2) Any conviction of a health care provider for failure to comply with the requirements of section 39-9306, Idaho Code, shall result in the suspension of such provider’s license for a period of at least one (1) year, and such license shall be reinstated after that time only under such conditions as the Idaho board of medicine shall require to ensure compliance with this chapter.
[39-9310, added 2016, ch. 368, sec. 1, p. 1081.]
Nothing in this chapter shall be construed to create or recognize a right to abortion.
[39-9311, added 2016, ch. 368, sec. 1, p. 1081.]
This chapter shall be known and may be cited as the "Right to Try Act."
[(39-9401) 39-9301, added 2016, ch. 168, sec. 1, p. 466; am. and redesig. 2017, ch. 58, sec. 19, p. 114.]
It is the intent of the legislature to provide the opportunity for terminally ill patients to have access to certain investigational treatments without requiring another party, including a physician, manufacturer, insurer or government agency, to offer, provide or pay for such treatments. By enacting this chapter, the legislature intends only to permit these treatments to terminally ill patients in Idaho. It is not the intent of the legislature to create an obligation but to ensure that all persons or parties availing themselves of this chapter do so voluntarily. Due to the experimental nature of these treatments, it is further the intent of the legislature to protect physicians and other parties from civil, criminal or professional liability relating to the treatments.
[(39-9402) 39-9302, added 2016, ch. 168, sec. 1, p. 466; am. and redesig. 2017, ch. 58, sec. 19, p. 114.]
As used in this chapter:
(1) "Eligible patient" or "patient" means an individual who has a terminal illness and has:
(a) Considered all other treatment options currently approved by the United States food and drug administration;
(b) Received a recommendation from the patient’s treating physician for an investigational drug, biological product or device for purposes related to the terminal illness;
(c) Given written, informed consent for the use of the recommended investigational drug, biological product or device; and
(d) Received documentation from the eligible patient’s treating physician that the eligible patient meets the requirements of this subsection.
(2) "Investigational drug, biological product or device" means a drug, biological product or device that has successfully completed phase 1 of a clinical trial but has not yet been approved for general use by the United States food and drug administration and remains under investigation in a United States food and drug administration-approved clinical trial.
(3) "Terminal illness" means a progressive disease or medical or surgical condition that:
(a) Entails functional impairment that significantly impacts the patient’s activities of daily living;
(b) Is not considered by a treating physician to be reversible even with administration of current United States food and drug administration-approved and available treatments; and
(c) Without life-sustaining procedures, will soon result in death.
(4) "Written, informed consent" means a written document that is signed by the eligible patient and, if the patient is a minor, a parent or legal guardian, which document is attested to by the patient’s physician and a witness and that includes the following:
(a) An explanation of the currently approved products and treatments for the disease or condition from which the patient suffers;
(b) An attestation that the patient concurs with the patient’s physician in believing that all currently approved and conventionally recognized treatments are unlikely to prolong the patient’s life;
(c) Clear identification of the specific proposed investigational drug, biological product or device that the patient is seeking to use;
(d) A description of the potentially best and worst outcomes of using the investigational drug, biological product or device and a realistic description of the most likely outcome. The description shall include the possibility that new, unanticipated, different or worse symptoms might result and that death could be hastened by the proposed treatment. The description shall be based on the physician’s knowledge of the proposed treatment in conjunction with an awareness of the patient’s condition;
(e) A statement that the patient’s health plan or third-party administrator and provider are not obligated to pay for any care or treatments consequent to the use of the investigational drug, biological product or device unless specifically required to do so by law or contract;
(f) A statement that the patient’s eligibility for hospice care might be withdrawn if the patient begins curative treatment with the investigational drug, biological product or device and that care may be reinstated if the treatment ends and the patient meets hospice eligibility requirements; and
(g) A statement that the patient understands that the patient is responsible for all expenses consequent to the use of the investigational drug, biological product or device and that this liability extends to the patient’s estate unless a contract between the patient and the manufacturer of the drug, biological product or device states otherwise.
[(39-9403) 39-9303, added 2016, ch. 168, sec. 1, p. 466; am. and redesig. 2017, ch. 58, sec. 19, p. 114.]
(1) An eligible patient may request, and a manufacturer may make available to an eligible patient under the supervision of the patient’s treating physician, the manufacturer’s investigational drug, biological product or device, which drug, product or device shall be clearly labeled as investigational; provided however, that this chapter does not require that a manufacturer make available an investigational drug, biological product or device to an eligible patient.
(2) A manufacturer may:
(a) Provide an investigational drug, biological product or device to an eligible patient without receiving compensation; or
(b) Require an eligible patient to pay the costs associated with the manufacture of the investigational drug, biological product or device.
[(39-9404) 39-9304, added 2016, ch. 168, sec. 1, p. 467; am. and redesig. 2017, ch. 58, sec. 19, p. 115.]
(1) This chapter does not expand the coverage required of an insurer under the laws of this state.
(2) A health plan, third-party administrator or government agency may, but is not required to, provide coverage for the cost of an investigational drug, biological product or device or the cost of services related to the use of an investigational drug, biological product or device.
(3) This chapter does not require any health plan, third-party administrator or government agency to pay costs associated with the use of an investigational drug, biological product or device.
(4) This chapter does not require a hospital or facility licensed in this state to provide new or additional services unless such services are approved by the hospital or facility.
[(39-9405) 39-9305, added 2016, ch. 168, sec. 1, p. 468; am. and redesig. 2017, ch. 58, sec. 19, p. 115.]
If a patient dies while being treated by an investigational drug, biological product or device under the terms of this chapter, the patient’s heirs are not liable for any outstanding debt related to the treatment or lack of insurance due to the treatment.
[(39-9406) 39-9306, added 2016, ch. 168, sec. 1, p. 468; am. and redesig. 2017, ch. 58, sec. 19, p. 115.]
(1) A licensing board or disciplinary body of this state shall not revoke, fail to renew, suspend or take any action against a health care provider’s license based solely on the provider’s recommendations to an eligible patient regarding access to or treatment with an investigational drug, biological product or device as allowed under this act.
(2) An entity responsible for medicare certification shall not take action against a health care provider’s medicare certification based solely on the health care provider’s recommendation that a patient have access to an investigational drug, biological product or device as allowed under this act.
(3) An official, employee or agent of this state shall not block or attempt to block an eligible patient’s access to an investigational drug, biological product or device as allowed under this act.
[(39-9407) 39-9307, added 2016, ch. 168, sec. 1, p. 468; am. and redesig. 2017, ch. 58, sec. 19, p. 116.]
(1) This chapter does not create a private cause of action against a manufacturer of an investigational drug, biological product or device or against a physician or any other person or entity involved in the care of an eligible patient using an investigational drug, biological product or device for any harm done to the eligible patient resulting from the investigational drug, biological product or device, provided that the manufacturer, physician, or person or entity has exercised reasonable care and complied in good faith with the terms of this chapter.
(2) This chapter does not create a private cause of action against a treating physician who refuses to recommend an investigational drug, biological product or device to a patient with a terminal illness.
[(39-9408) 39-9308, added 2016, ch. 168, sec. 1, p. 468; am. and redesig. 2017, ch. 58, sec. 19, p. 116.]
This chapter does not affect any mandatory health care coverage for participation in clinical trials provided elsewhere by law.
[(39-9409) 39-9309, added 2016, ch. 168, sec. 1, p. 468; am. and redesig. 2017, ch. 58, sec. 19, p. 116.]
This act shall be known and may be cited as the "Abortion Complications Reporting Act."
[39-9501, added 2018, ch. 225, sec. 1, p. 509.]
(1) The legislature of the state of Idaho asserts and finds that:
(a) The state "has legitimate interests from the outset of pregnancy in protecting the health of women," as found by the United States Supreme Court in Planned Parenthood of Southeastern Pennsylvania v. Casey;
(b) Specifically, the state "has a legitimate concern with the health of women who undergo abortions," as found by the United States Supreme Court in Akron v. Akron Ctr. for Reproductive Health, Inc.;
(c) Surgical abortion is an invasive procedure that can cause severe physical and psychological complications for women, both short-term and long-term, including, but not limited to, uterine perforation, cervical perforation, infection, bleeding, hemorrhage, blood clots, failure to actually terminate the pregnancy, incomplete abortion, retained tissue, pelvic inflammatory disease, endometritis, missed ectopic pregnancy, cardiac arrest, respiratory arrest, renal failure, metabolic disorder, shock, embolism, coma, placenta previa in subsequent pregnancies, preterm delivery in subsequent pregnancies, free fluid in the abdomen, adverse reactions to anesthesia and other drugs, an increased risk for developing breast cancer, psychological or emotional complications such as depression, suicidal ideation, anxiety and sleeping disorders, and death;
(d) To facilitate reliable scientific studies and research on the safety and efficacy of abortion, it is essential that the medical and public health communities have access to accurate information both on the abortion procedure and on complications resulting from abortion;
(e) Abortion "record keeping and reporting provisions that are reasonably directed to the preservation of maternal health and that properly respect a patient’s confidentiality and privacy are permissible," according to the United States Supreme Court in Planned Parenthood v. Danforth;
(f) Abortion and complication reporting provisions do not impose an undue burden on a woman’s right to choose whether or not to terminate a pregnancy. Specifically, the "collection of information with respect to actual patients is a vital element of medical research, and so it cannot be said that the requirements serve no purpose other than to make abortions more difficult," as found by the United States Supreme Court in Planned Parenthood v. Casey;
(g) The use of RU-486 as part of a chemical abortion can cause significant medical risks including, but not limited to, abdominal pain, cramping, vomiting, headache, fatigue, uterine hemorrhage, infections and pelvic inflammatory disease;
(h) The risk of abortion complications increases with advancing gestational age;
(i) Studies document that increased rates of complications, including incomplete abortion, occur even within the gestational limit approved by the federal food and drug administration (FDA);
(j) In July 2011, the FDA reported two thousand two hundred seven (2,207) adverse events after women used RU-486 for abortions. Among these events were fourteen (14) deaths, six hundred twelve (612) hospitalizations, three hundred thirty-nine (339) blood transfusions, and two hundred fifty-six (256) infections, including forty-eight (48) severe infections;
(k) The adverse event reports systems relied upon by the FDA have limitations and typically detect only a small proportion of events that actually occur. Furthermore, the FDA has failed to publicly release data since 2011, and it is necessary to develop a state-based information system in the wake of court rulings legalizing telemedicine abortions; and
(l) To promote its interest in maternal health and life, the state of Idaho maintains an interest in:
(i) Collecting information on all complications from all abortions performed in the state; and
(ii) Compiling statistical reports based on abortion complication information collected pursuant to this chapter for future scientific studies and public health research.
(2) Based on the findings in subsection (1) of this section, it is the purpose of this chapter to promote the health and safety of women by adding to the sum of medical and public health knowledge through the compilation of relevant data on all abortions performed in the state, as well as on all medical complications and maternal deaths resulting from these abortions.
[39-9502, added 2018, ch. 225, sec. 1, p. 509.]
As used in this chapter:
(1) "Abortion" shall have the same meaning as provided in section 18-502, Idaho Code.
(2) "Complication" means any of the following, if it constitutes an abnormal or a deviant process or event arising from the performance or completion of an abortion:
(a) Uterine perforation or injury to the uterus;
(b) Injury or damage to any organ;
(c) Cervical perforation or injury to the cervix;
(d) Infection;
(e) Heavy or excessive bleeding;
(f) Hemorrhage;
(g) Blood clots;
(h) Blood transfusion;
(i) Failure to actually terminate the pregnancy;
(j) Incomplete abortion or retained tissue;
(k) Weakness, nausea, vomiting or diarrhea that lasts more than twenty-four (24) hours;
(l) Pain or cramps that do not improve with medication;
(m) A fever of one hundred and four-tenths (100.4) degrees or higher for more than twenty-four (24) hours;
(n) Hemolytic reaction due to the administration of ABO-incompatible blood or blood products;
(o) Hypoglycemia where onset occurs while the patient is being cared for in the abortion facility;
(p) Pelvic inflammatory disease;
(q) Endometritis;
(r) Missed ectopic pregnancy;
(s) Cardiac arrest;
(t) Respiratory arrest;
(u) Renal failure;
(v) Metabolic disorder;
(w) Shock;
(x) Embolism;
(y) Coma;
(z) Placenta previa or preterm delivery in subsequent pregnancies;
(aa) Free fluid in the abdomen;
(bb) Adverse or allergic reaction to anesthesia or other drugs;
(cc) Subsequent development of breast cancer;
(dd) Death;
(ee) Any psychological or emotional condition reported by the patient, such as depression, suicidal ideation, anxiety or a sleeping disorder; or
(ff) Any other adverse event as defined by the federal food and drug administration criteria provided in the medwatch reporting system.
(3) "Department" means the state department of health and welfare.
(4) "Facility" means any public or private hospital, clinic, center, medical school, medical training institution, health care facility, physician’s office, infirmary, dispensary, ambulatory surgical center or other institution or location where medical care is provided to any person.
(5) "Hospital" means any institution licensed as a hospital pursuant to chapter 13, title 39, Idaho Code.
(6) "Medical practitioner" means a licensed medical care provider capable of making a diagnosis within the scope of such provider’s license.
(7) "Pregnant" or "pregnancy" means the reproductive condition of having an unborn child in the uterus.
[39-9503, added 2018, ch. 225, sec. 1, p. 510; am. 2019, ch. 50, sec. 1, p. 135.]
(1) Every hospital, licensed health care facility or individual medical practitioner shall file a written report with the department regarding each woman who comes under the hospital’s, health care facility’s or medical practitioner’s care and receives treatment for any item listed in section 39-9503(2), Idaho Code, that the attending medical practitioner has reason to believe, in the practitioner’s reasonable medical judgment, constitutes an abnormal or a deviant process or event arising from the performance or completion of an abortion. Such reports shall be completed by the hospital, health care facility or attending medical practitioner who treated the woman, signed by the attending medical practitioner and transmitted to the department within ninety (90) days from the last date of treatment or other care or consultation for the complication.
(2) Every hospital, licensed health care facility or individual medical practitioner required to submit a complication report shall attempt to ascertain and shall report on the following:
(a) The age and race of the woman;
(b) The woman’s state and county of residence;
(c) The number of previous pregnancies, number of live births and number of previous abortions of the woman;
(d) The date the abortion was performed and the date that the abortion was completed, as well as the gestational age of the fetus, as defined in section 18-604, Idaho Code, and the methods used;
(e) Identification of the physician who performed the abortion, the facility where the abortion was performed and the referring medical practitioner, agency or service, if any;
(f) The specific complication, as that term is defined in section 39-9503(2), Idaho Code, including, where applicable, the location of the complication in the woman’s body, the date on which the complication occurred and whether there were any preexisting medical conditions that would potentially complicate pregnancy or the abortion;
(g) Whether any post-abortion follow-up visit was scheduled or required by the abortion provider and, if so, whether the woman refused or failed to attend such follow-up visit;
(h) Whether the woman was referred to a hospital, emergency department, or urgent care clinic or department for treatment for any item listed in section 39-9503(2), Idaho Code;
(i) Any follow-up care, surgery, or aspiration procedure performed because of incomplete abortion or retained tissue; and
(j) Whether the woman received treatment from any other medical practitioner for the specific complication and, if so, when such previous treatment occurred, and the medical practitioner or practitioners who provided the treatment.
(3) Reports required under this section shall not contain:
(a) The name of the woman;
(b) Common identifiers such as the woman’s social security number or motor vehicle operator’s license number; or
(c) Other information or identifiers that would make it possible to identify, in any manner or under any circumstances, a woman who has obtained an abortion and subsequently suffered an abortion-related complication.
(4) The department shall prepare a comprehensive annual statistical report for the legislature based on the data gathered from reports under this section. The statistical report shall not lead to the disclosure of the identity of any medical practitioner, or any person filing a report under this section nor of a woman about whom a report is filed. The aggregate data shall also be made independently available to the public by the department in a downloadable format.
(5) The department shall summarize aggregate data from the reports required under this chapter and submit the data to the federal centers for disease control and prevention for the purpose of inclusion in the annual vital statistics report. The aggregate data shall also be made independently available to the public by the department in a downloadable format.
(6) Reports filed pursuant to this section shall not be deemed public records and shall remain confidential, except that disclosure may be made to law enforcement officials upon an order of a court after application showing good cause. The court may condition disclosure of the information upon any appropriate safeguards it may impose.
(7) Absent a valid court order or judicial subpoena, the department, any other state department, agency or office, or any employees or contractor thereof shall not compare data concerning abortions or abortion complications maintained in an electronic or other information system file with data in any other electronic or other information system, a comparison of which could result in identifying, in any manner or under any circumstances, a woman obtaining or seeking to obtain an abortion.
(8) Statistical information that may reveal the identity of a woman obtaining or seeking to obtain an abortion shall not be maintained by the department, any other state department, agency or office, or any employee or contractor thereof.
(9) The department or an employee or contractor of the department shall not disclose to a person or entity outside the department the reports or the contents of the reports required under this section in a manner or fashion that would permit the person or entity to whom the report is disclosed to identify, in any way or under any circumstances, the woman who is the subject of the report.
(10) Original copies of all reports filed under this section shall be available to the state board of medicine for use in the performance of its official duties.
(11) The department shall communicate this reporting requirement to all medical professional organizations, medical practitioners, hospitals, emergency departments, abortion facilities, clinics, ambulatory surgical facilities, and other health care facilities operating in the state.
[39-9504, added 2018, ch. 225, sec. 1, p. 511; am. 2019, ch. 50, sec. 2, p. 137.]
The department shall create the forms required by this chapter within sixty (60) days after the effective date of this chapter. Such forms shall provide for the reporting of information required by section 39-9504(2), Idaho Code. No provision of this chapter requiring the reporting of information on forms published by the department shall be applicable until ten (10) days after the requisite forms are first created or until the effective date of this chapter, whichever is later.
[39-9505, added 2018, ch. 225, sec. 1, p. 513.]
(1) Any person who willfully delivers or discloses to the department any report, record or information required pursuant to this chapter and known by him or her to be false is guilty of a misdemeanor.
(2) Any person who willfully discloses any information obtained from reports filed pursuant to this chapter, other than the disclosure authorized by this chapter or otherwise authorized by law, is guilty of a misdemeanor.
(3) Any person required under this chapter to file a report, keep any records or supply any information, who willfully fails to file such report, keep such records or supply such information at the time or times required by law or rule, is:
(a) Guilty of unprofessional conduct, and his or her professional license is subject to discipline in accordance with procedures governing his or her license; and
(b) Subject to a civil fine of five hundred dollars ($500) for each instance of failure to report, if such person is a medical practitioner responsible for filing an adverse reaction report with the department.
(4) In addition to the above penalties, any facility that willfully violates any of the requirements of this chapter shall:
(a) In the case of a first violation, be subject to a civil fine of one thousand dollars ($1,000) for each instance of failure to report;
(b) Have its license suspended for a period of six (6) months for the second violation; and
(c) Have its license suspended for a period of one (1) year upon a third or subsequent violation.
[39-9506, added 2018, ch. 225, sec. 1, p. 513.]
(1) Nothing in this chapter shall be construed as creating or recognizing a right to abortion.
(2) It is not the intention of this chapter to make lawful an abortion that is currently unlawful.
[39-9507, added 2018, ch. 225, sec. 1, p. 513.]
The legislature, by concurrent resolution, may appoint one (1) or more of its members who sponsored or co-sponsored this chapter in his or her official capacity, or other member or members if the original sponsors and co-sponsors are no longer serving, to intervene as a matter of right in any case in which the constitutionality of this law is challenged.
[39-9508, added 2018, ch. 225, sec. 1, p. 513.]
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.
[39-9509, added 2018, ch. 225, sec. 1, p. 514.]
(1) On and after July 1, 2022, the Idaho state energy code shall be the 2018 international energy conservation code, as amended, revised, or modified by the Idaho building code board and approved by the legislature. The international energy conservation code, together with such amendments, revisions, or modifications as approved by the Idaho building code board through rulemaking conducted pursuant to the Idaho administrative procedure act, chapter 52, title 67, Idaho Code, and approved by the legislature, shall collectively constitute and be named the Idaho energy conservation code and shall be deemed approved by the Idaho building code board and the legislature.
(2) The provisions of this chapter preempt, eliminate, and prohibit any cities, counties, incorporated or unincorporated areas, special use districts, or any other local governmental entities of any kind from adopting energy code or energy-related requirements through any code, ordinance, process, policy, or guidance that differ from or are more extensive than the requirements of the Idaho energy conservation code as provided for in this chapter. The provisions of this chapter shall not apply to chapter 1 of the 2018 international energy conservation code with respect to the administrative processes of any city, county, incorporated or unincorporated area, special use district, or any other local governmental entity.
(3) This chapter shall apply to codes or amendments adopted by local jurisdictions prior to, on, or after July 1, 2022.
[39-9701, added 2022, ch. 302, sec. 1, p. 956; am. 2023, ch. 236, sec. 1, p. 733.]
As used in this chapter:
(1) "Assistance" means aid in meeting daily living needs.
(2) "Essential caregiver" means a patient’s or resident’s spouse, adult child, parent, guardian, conservator, health care agent, or surrogate decision-maker as described in section 39-4504, Idaho Code, and may also include any person or persons designated by a patient, resident, or surrogate decision-maker to visit the patient or resident at the facility. The patient, resident, or surrogate decision-maker may revoke the designation of essential caregiver at any time. A facility may not:
(a) Limit the number of essential caregivers that may be designated by a patient, resident, or surrogate decision-maker; or
(b) Define the term "essential caregiver" more narrowly than the term is defined in this section.
(3) "Facility" means an institution providing health care services, a health care setting, or a setting in which to receive assistance, including but not limited to hospitals and other licensed inpatient centers, ambulatory surgical or treatment centers, nursing facilities, skilled nursing centers, residential treatment centers, rehabilitation and other therapeutic health settings, or assisted living facilities.
(4) "Health care services" means services for the diagnosis, prevention, treatment, cure, or relief of a health condition, illness, injury, or disease.
(5) "Patient" means a person seeking or receiving health care services at a facility.
(6) "Resident" means a person seeking or receiving assistance at a facility.
[(39-9801) 39-9701, added 2022, ch. 134, sec. 1, p. 500; am. and redesig. 2023, ch. 218, sec. 12, p. 615; am. and redesig. 2023, ch. 300, sec. 1, p. 910; am. 2024, ch. 241, sec. 1, p. 860.]
(1) The legislature finds that:
(a) Idaho families have a constitutionally protected liberty interest in companionship and society with one another;
(b) The access of patients and residents in certain facilities to their family, friends, advocates, clergy, and advisers has been at times severely curtailed;
(c) Involuntary isolation has deleterious effects on a person’s health and well-being, and such effects can be severe and even deadly for persons already in a frail state of health; and
(d) No person should be required to surrender the ability to associate simply because the person needs care.
(2) In enacting this chapter, it is the intent of the legislature to guarantee and protect the right of Idahoans to be visited by essential caregivers of their choosing when staying in a health care or assistance facility. The provisions of this chapter should be broadly construed in the light most favorable to serving this intent.
[(39-9802) 39-9702, added 2022, ch. 134, sec. 1, p. 500; am. and redesig. 2023, ch. 218, sec. 12, p. 615; am. and redesig. 2023, ch. 300, sec. 1, p. 910; am. 2024, ch. 241, sec. 2, p. 861.]
(1) A patient or resident has the right to in-person visitation from an essential caregiver while receiving assistance or health care services at a facility, even if other visitors are being excluded by the facility. However, the essential caregiver must follow safety and other protocols imposed by the facility, and a facility may place reasonable restrictions as to where and when the essential caregiver may visit and the number of essential caregivers who may visit at the same time. For purposes of this subsection, a restriction is reasonable if the restriction:
(a) Is necessary to prevent the disruption of assistance or health care services to the patient or resident; and
(b) Does not interfere with the patient’s or resident’s general right to visitation by essential caregivers.
(2) If a facility is restricting overall visitation for patients and residents, the facility shall, at the time of intake or as soon as practicable:
(a) Notify a patient, resident, or surrogate decision-maker of the right to:
(i) Designate essential caregivers; and
(ii) Remove individuals from the list of essential caregivers;
(b) Explain to a patient, resident, or surrogate decision-maker that an essential caregiver may be any person and is not required to be a formal caregiver;
(c) Provide each patient, resident, or surrogate decision-maker an opportunity to designate essential caregivers;
(d) Provide each person with legal authority to designate essential caregivers the ability to restrict or remove any essential caregivers from any visitation list for the patient; and
(e) Accommodate a patient’s, resident’s, or surrogate decision-maker’s request to have essential caregivers visit within the limits prescribed by this section. If the patient or resident is a minor or incapacitated, visitation requests must be approved by a person with legal authority to make decisions on behalf of the patient or resident, such as a parent, guardian, or conservator.
(3) Patients who are in the custody of a peace officer and all prisoners committed to the custody of the department of correction or confined in a correctional facility as defined in section 18-101A(1), Idaho Code, shall be subject to the visitation terms set by the custodial entity.
[(39-9803) 39-9703, added 2022, ch. 134, sec. 1, p. 500; am. and redesig. 2023, ch. 218, sec. 12, p. 615; am. and redesig. 2023, ch. 300, sec. 1, p. 910; am. 2024, ch. 241, sec. 3, p. 861.]
This chapter shall be known and may be cited as the "Down Syndrome Diagnosis Information Act."
[(39-9901) 39-9701, added 2022, ch. 80, sec. 1, p. 227; am. and redesig. 2023, ch. 218, sec. 13, p. 616.]
For purposes of this chapter:
(1) "Department" means the department of health and welfare.
(2) "Down syndrome" means a chromosomal condition associated with either an extra chromosome 21, in whole or in part, or an effective trisomy for chromosome 21. Trisomy 21 is the medical term for Down syndrome.
(3) "Down syndrome organization" means any state or local nonprofit organization primarily involved in providing advocacy, support, and education to individuals with Down syndrome and their support community.
(4) "Health care practitioner" means a physician or other health care practitioner licensed, accredited, or certified to perform specified health care services consistent with state law. "Health care practitioner" includes a genetic counselor.
(5) "Parent" means any person expecting a child who has received a test result from a prenatal screening or diagnostic test that indicates a high likelihood or the definite presence of Down syndrome, or the parent or legal guardian of a child diagnosed with Down syndrome.
[(39-9902) 39-9702, added 2022, ch. 80, sec. 1, p. 227; am. and redesig. 2023, ch. 218, sec. 13, p. 616.]
A health care practitioner who provides prenatal or postnatal care and who administers or requests administration of a prenatal or postnatal screening or diagnostic test that detects Down syndrome or receives a result from such test that indicates a high likelihood or the definite presence of Down syndrome shall deliver to the parents the information support sheet provided by the department under section 39-9904, Idaho Code.
[(39-9903) 39-9703, added 2022, ch. 80, sec. 1, p. 228; am. and redesig. 2023, ch. 218, sec. 13, p. 616.]
(1) The department shall create an up-to-date, evidence-based support sheet about Down syndrome that has been reviewed by medical experts and the Idaho Down syndrome council. The support sheet shall be provided at the time of diagnosis or when an ultrasound or test detects a high likelihood of Down syndrome. The support sheet shall be readily accessible and include the following:
(a) A clinical course description of Down syndrome, including possible physical, developmental, educational, and psychosocial outcomes;
(b) Options available for treatment and therapy for conditions related to Down syndrome;
(c) Life expectancy for individuals with Down syndrome; and
(d) Contact information for nonprofit Idaho Down syndrome organizations that provide information and support services for caregivers, including first-call programs and information hotlines specific to Down syndrome, resource centers, and other education and support programs for Down syndrome.
(2) The department shall post the information required in this section on its website and shall include an information support sheet, in a print-friendly format, to be delivered by health care practitioners to parents as prescribed in section 39-9903, Idaho Code.
(3) The department shall ensure that the information on the support sheet required in this section is culturally and linguistically appropriate for caregivers.
(4) A Down syndrome organization may request that the department include the organization’s informational material and contact information on the department’s website. The department may add the information to the website upon request.
(5) The department shall meet annually with representatives of the Idaho Down syndrome council to ensure the information in the support sheet that is made available by the department is current.
[(39-9904) 39-9704, added 2022, ch. 80, sec. 1, p. 228; am. and redesig. 2023, ch. 218, sec. 13, p. 616.]
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