Repeals chapter 323D relating to state health planning and development agency. Transfers SHPDA administrator and 1 clerical position to office of planning.
HOUSE OF REPRESENTATIVES
TWENTY-SECOND LEGISLATURE, 2003
STATE OF HAWAII
A BILL FOR AN ACT
relating to the repeal of the state health planning and development agency.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that services provided by the state health planning and development agency are no longer necessary to assist the public. Several reports by the auditor have criticized the agency's performance and questioned its mission. Furthermore, individuals and organizations in both the public and private sectors have demonstrated that current government controls combined with market forces in the health- care industry are adequate to manage or develop health-related services. The public should not be denied access to new services or equipment to maintain the current status quo in economic competition.
The purpose of this Act is to streamline government operations and to allow free enterprise by eliminating the state health planning and development agency. To maintain adequate oversight, two positions will be retained from the state health planning and development agency and transferred to the office of planning.
SECTION 2. Chapter 323D, Hawaii Revised Statutes, is repealed.
SECTION 3. Section 321-225, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:
"(b) The advisory committee shall be composed of [
twenty] nineteen members: [ three] two nonvoting ex-officio members, who shall be the director of transportation[ ,] and the adjutant general[ , and the administrator of the state health planning and development agency], or [ the] their designated representatives [ thereof], and seventeen members representing all counties of the State who shall be appointed by the governor subject to section 26-34 as follows:
(1) Five members who shall be physicians experienced in the conduct and delivery of emergency medical services; provided that at least two shall be engaged in the practice of emergency medicine and be board-eligible or board-certified by the American Board of Emergency Medicine, and provided further that at least one physician shall be engaged in the practice of pediatrics and be board-eligible or board-certified by the American Board of Pediatrics;
(2) Four members who shall be consumers of health care and who shall have no connection with or relationship to the health care system of the State and who shall be representative of all counties;
(3) Four members of allied health professions related to emergency medical services; and
(4) Four members, one from each county, who shall be mobile intensive care technicians or emergency medical technicians engaged in the practice of pre-hospital emergency medical service.
The members of the advisory committee shall serve without compensation, but shall be reimbursed for necessary expenses incurred in the performance of their duties, including travel expenses. The chairperson of the advisory committee shall be elected by the members from among their numbers. A majority of the members of the advisory committee shall constitute a quorum for the conduct of business of the advisory committee. A majority vote of the members present at a meeting at which a quorum is established shall be necessary to validate any action of the committee."
SECTION 4. Section 325-101, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) The records of any person that indicate that a person has a human immunodeficiency virus (HIV) infection, AIDS related complex (ARC), or acquired immune deficiency syndrome (AIDS), which are held or maintained by any state agency, health care provider or facility, physician, laboratory, clinic, blood bank, third party payor, or any other agency, individual, or organization in the State shall be strictly confidential. For the purposes of this part, the term "records" shall be broadly construed to include all communication that identifies any individual who has HIV infection, ARC, or AIDS. This information shall not be released or made public upon subpoena or any other method of discovery. Notwithstanding any other provision to the contrary, release of the records protected under this part shall be permitted under the following circumstances:
(1) Release is made to the department of health in order that it may comply with federal reporting requirements imposed on the State. The department shall ensure that personal identifying information from these records is protected from public disclosure;
(2) Release is made of the records, or of specific medical or epidemiological information contained therein, with the prior written consent of the person or persons to whom the records pertain;
(3) Release is made to medical personnel in a medical emergency only to the extent necessary to protect the health, life, or well-being of the named party;
(4) Release is made from a physician licensed pursuant to chapter 453 or 460 to the department of health to inform the sexual or needle sharing contact of an HIV seropositive patient where:
(A) There is reason for the physician to believe that the contact is or has been at risk of HIV transmission as a result of the index patient having engaged in conduct which is likely to transmit HIV; and
(B) The index patient has first been counseled by the physician of the need for disclosure and the patient is unwilling to inform the contact directly or is unwilling to consent to the disclosure of the index patient's HIV status by the physician or the department of health; provided that the identity of the index patient is not disclosed; and provided further that there is no obligation to identify or locate any contact. Any determination by a physician to disclose or withhold disclosure of an index patient's sexual contacts to the department of health pursuant to this subsection which is made in good faith shall not be subject to penalties under this part or otherwise subject to civil or criminal liability for damages under the laws of the State;
(5) Release is made by the department of health of medical or epidemiological information from the records to medical personnel, appropriate county and state agencies, blood banks, plasma centers, organ and tissue banks, schools, preschools, day care centers, or county or district courts to enforce this part and to enforce rules adopted by the department concerning the control and treatment of HIV infection, ARC, and AIDS, or to the sexual or needle sharing contacts of an HIV seropositive index patient for purposes of contact notification as provided in paragraph (4); provided that the identity of the index patient, if known, shall not be disclosed; provided further that release of information under this paragraph shall only be made by confidential communication to a designated individual charged with compliance with this part;
(6) Release of a child's records is made to the department of human services for the purpose of enforcing chapters 350 and 587;
(7) Release of a child's records is made within the department of human services and to child protective services team consultants under contract to the department of human services for the purpose of enforcing and administering chapters 350 and 587 on a need to know basis pursuant to a written protocol to be established and implemented, in consultation with the director of health, by the director of human services;
(8) Release of a child's records is made by employees of the department of human services authorized to do so by the protocol established in paragraph (7) to a natural parent of a child who is the subject of the case when the natural parent is a client in the case, the guardian ad litem of the child, the court, each party to the court proceedings, and also to an adoptive or a prospective adoptive parent, an individual or an agency with whom the child is placed for twenty-four-hour residential care, and medical personnel responsible for the care or treatment of the child. When a release is made to a natural parent of the child, it shall be with appropriate counseling as required by section 325-16. In no event shall proceedings be initiated against a child's natural parents for claims of child abuse under chapter 350 or harm to a child or to affect parental rights under chapter 587 solely on the basis of the HIV seropositivity of a child or the child's natural parents;
(9) Release is made to the patient's health care insurer to obtain reimbursement for services rendered to the patient; provided that release shall not be made if, after being informed that a claim will be made to an insurer, the patient is afforded the opportunity to make the reimbursement directly and actually makes the reimbursement;
(10) Release is made by the patient's health care provider to another health care provider for the purpose of continued care or treatment of the patient;
(11) Release is made pursuant to a court order, after an in camera review of the records, upon a showing of good cause by the party seeking release of the records;
(12) Disclosure by a physician, on a confidential basis, of the identity of a person who is HIV seropositive and who also shows evidence of tuberculosis infection, to a person within the department of health as designated by the director of health for purposes of evaluating the need for or the monitoring of tuberculosis chemotherapy for the person and the person's contacts who are at risk of developing tuberculosis; or
(13) Release is made for the purpose of complying with sections 325-16.5 and 801D-4(b). Nothing in this section shall be construed to prohibit a victim to whom information is released pursuant to section 325-16.5 from requesting the release of information by a physician or HIV counselor to a person with whom the victim shares a privileged relationship recognized by chapter 626; provided that prior to such release, the person to whom the information is to be released shall be required to sign a notice of HIV status disclosure advising them of the confidentiality provisions regarding HIV test results and the penalties for unlawful disclosure to any person other than a designated physician or HIV counselor.
As used in this part, unless the context requires otherwise:
"Medical emergency" means any disease-related situation that threatens life or limb.
"Medical personnel" means any health care provider in the State[
, as provided in section 323D-2,] who deals directly or indirectly with the identified patient or the patient's contacts, and includes hospital emergency room personnel, the staff of the communicable disease division of the department of health, and any other department personnel as designated by the director."
SECTION 5. Section 431:10H-301, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:
"(c) For the purpose of subsection (b) and for the purpose of describing examples of services typically found in this State, coverage shall be one or more of the following services or any combination of services:
(1) Home health care services, as defined in section 431:10H-201;
(2) Adult day care, as defined in section 431:10H-201;
(3) Adult residential care home, as defined in section 321-15.1;
(4) Extended care adult residential care home[
, as defined in section 323D-2];
(5) Nursing home, as defined in section 457B-2;
(6) Skilled nursing facilities and intermediate care facilities, as referenced in section 321-11(10);
(7) Hospices, as referenced in section 321-11;
(8) Assisted living facility[
, as defined in section 323D-2];
(9) Personal care, as defined in section 431:10H-201;
(10) Respite care, as defined in section 333F-1; and
(11) Any other care as provided by rule of the commissioner."
SECTION 6. Section 453-3, Hawaii Revised Statutes, is amended to read as follows:
"§453-3 Limited and temporary licenses. The board of medical examiners shall issue a limited and temporary license to an applicant who has not been examined as required by section 453-4, and against whom no disciplinary proceedings are pending in any state or territory, if the applicant is otherwise qualified to be examined, and upon determination that:
(1) There is an absence or a shortage of licensed physicians in a particular locality, and that the applicant has been duly licensed as a physician by written examination under the laws of another state or territory of the United States. A limited and temporary license issued hereunder shall permit the practice of medicine and surgery by the applicant only in the particular locality, and no other, as shall be set forth in the license issued to the applicant. The license shall be valid only for a period of eighteen months from the date of issuance. The board shall establish guidelines to determine a locality with an absence or shortage of physicians. For this purpose, the board may consider a locality to have an absence or shortage of physicians if the absence or shortage results from the temporary loss of a physician. In designating a locality with an absence or shortage of physicians, the board shall not delegate its authority to a private organization;
(2) The applicant is to be employed by an agency or department of the state or county government, and that the applicant has been duly licensed as a physician by written examination under the laws of another state or territory of the United States. A limited and temporary license issued hereunder shall only be valid for the practice of medicine and surgery while the applicant is in the employ of such governmental agency or department and in no case shall be used to provide private patient care for a fee. A license issued under this paragraph may be renewed from year to year;
(3) The applicant would practice medicine and surgery only while under the direction of a physician regularly licensed in the State other than as permitted by this section, and that the applicant intends to take the regular licensing examination conducted by the board within the next eighteen months. A limited and temporary license issued under this paragraph shall be valid for no more than eighteen months from the date of issuance, unless otherwise extended at the discretion of the board of medical examiners; provided that this discretionary extension shall not exceed a period of six months beyond the original expiration date of the limited and temporary license;
(4) The applicant has been appointed as a resident or accepted for specialty training in a health care facility or organized ambulatory health care facility [
as defined in section 323D-2] or a hospital approved by the board, and that the applicant shall be limited in the practice of medicine and surgery to the extent required by the duties of the applicant's position or by the program of training while at the health care facility, organized ambulatory health care facility, or hospital. The license shall be valid during the period in which the applicant remains as a resident in training, and may be renewed from year to year during the period; or
(5) A public emergency exists, and that the applicant has been duly licensed as a physician by written examination under the laws of another state or territory of the United States. A limited and temporary license issued hereunder shall only be valid for the period of such public emergency.
Nothing herein requires the registration or licensing hereunder of nurses, or other similar persons, acting under the direction and control of a licensed physician."
SECTION 7. Section 489-2, Hawaii Revised Statutes, is amended by amending the definition of "place of public accommodation" to read as follows:
""Place of public accommodation" means a business, accommodation, refreshment, entertainment, recreation, or transportation facility of any kind whose goods, services, facilities, privileges, advantages, or accommodations are extended, offered, sold, or otherwise made available to the general public as customers, clients, or visitors. By way of example, but not of limitation, place of public accommodation includes facilities of the following types:
(1) A facility providing services relating to travel or transportation;
(2) An inn, hotel, motel, or other establishment that provides lodging to transient guests;
(3) A restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises of a retail establishment;
(4) A shopping center or any establishment that sells goods or services at retail;
(5) An establishment licensed under chapter 281 doing business under a class 4, 5, 7, 8, 9, 10, 11, or 12 license, as defined in section 281-31;
(6) A motion picture theater, other theater, auditorium, convention center, lecture hall, concert hall, sports arena, stadium, or other place of exhibition or entertainment;
(7) A barber shop, beauty shop, bathhouse, swimming pool, gymnasium, reducing or massage salon, or other establishment conducted to serve the health, appearance, or physical condition of persons;
(8) A park, a campsite, or trailer facility, or other recreation facility;
(9) A comfort station; or a dispensary, clinic, hospital, convalescent home, or other institution for the infirm;
(10) A professional office of a health care provider[
, as defined in section 323D-2,] or other similar service establishment;
(11) A mortuary or undertaking establishment; and
(12) An establishment that is physically located within the premises of an establishment otherwise covered by this definition, or within the premises of which is physically located a covered establishment, and which holds itself out as serving patrons of the covered establishment.
No place of public accommodation defined in this section shall be requested to reconstruct any facility or part thereof to comply with this chapter."
SECTION 8. Section 622-58, Hawaii Revised Statutes, is amended by amending subsection (d) to read as follows:
"(d) Medical records may be destroyed after the seven-year retention period or after minification, in a manner that will preserve the confidentiality of the information in the record; provided that the health care provider retains basic information from each record destroyed. Basic information from the records of a physician or surgeon shall include the patient's name and birthdate, a list of dated diagnoses and intrusive treatments, and a record of all drugs prescribed or given. Basic information from the records of a health care facility[
, as defined in section 323D-2,] shall include the patient's name and birthdate, dates of admission and discharge, names of attending physicians, final diagnosis, major procedures performed, operative reports, pathology reports, and discharge summaries."
SECTION 9. Section 671-1, Hawaii Revised Statutes, is amended to read as follows:
"§671-1 Definitions. As used in this chapter:
(1)] "Health care provider" means a physician or surgeon licensed under chapter 453, a physician and surgeon licensed under chapter 460, a podiatrist licensed under chapter 463E, a health care facility [ as defined in section 323D-2,] and the employees of any of them. Health care provider shall not mean any nursing institution or nursing service conducted by and for those who rely upon treatment by spiritual means through prayer alone, or employees of [ such] the institution or service.
(2)] "Medical tort" means professional negligence, the rendering of professional service without informed consent, or an error or omission in professional practice, by a health care provider, which proximately causes death, injury, or other damage to a patient."
SECTION 10. Section 671-5, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:
"(c) A failure on the part of any self-insured health care provider to report as requested by this section shall be grounds for disciplinary action by the board of medical examiners[
,] or the board of osteopathic examiners[ , or the state health planning agency], as applicable. A violation by an insurer shall be grounds for suspension of its certificate of authority."
SECTION 11. Positions that are transferred to the office of planning. (a) The position of the administrator of the state health planning and development agency and one clerical position in the agency shall be transferred to the office of planning under chapter 225M, Hawaii Revised Statutes.
(b) The one officer and one employee whose functions are transferred by this Act shall be transferred with their functions and shall continue to perform their regular duties upon their transfer, subject to the state personnel laws and this Act.
The one officer and one employee of the State who are transferred having tenure shall not suffer any loss of salary, seniority, prior service credit, vacation, sick leave, or other employee benefit or privilege as a consequence of this Act, and the officer or employee may be transferred or appointed to a civil service position without the necessity of examination; provided that the officer or employee possesses the minimum qualifications for the position to which transferred or appointed; and provided that subsequent changes in status may be made pursuant to applicable civil service and compensation laws.
The one officer and one employee of the State who are transferred who do not have tenure and who may be transferred or appointed to a civil service position as a consequence of this Act shall become a civil service employee without the loss of salary, seniority, prior service credit, vacation, sick leave, or other employee benefits or privileges and without the necessity of examination; provided that the officer or employee possesses the minimum qualifications for the position to which transferred or appointed.
The one officer and one employee who are transferred to the office of planning shall not be separated from public employment, but shall remain in the employment of the State with the same pay and classification.
SECTION 12. Positions that are not transferred to the office of planning. (a) No other officers and employees of the state health planning and development agency, except those specified in section 11, shall be transferred to the office of planning.
(b) All officers and employees who are not transferred and having tenure shall not suffer any loss of salary, seniority, prior service credit, vacation, sick leave, or other employee benefit or privilege as a consequence of this Act. An officer or employee of the State who is not transferred and having tenure, at the request of the officer or employee, may be transferred or appointed to a different civil service position without the necessity of examination; provided that the officer or employee possesses the minimum qualifications for the position to which the officer or employee requests a transfer or appointment; and provided that subsequent changes in status may be made pursuant to applicable civil service and compensation laws.
An officer or employee of the State who is not transferred who does not have tenure and who, at the request of the officer or employee, may be transferred or appointed to a different civil service position as a consequence of this Act, shall become a civil service employee without the loss of salary, seniority, prior service credit, vacation, sick leave, or other employee benefits or privileges and without the necessity of examination; provided that the officer or employee possesses the minimum qualifications for the position to which the officer or employee requests a transfer or appointment.
SECTION 13. It is the intent of this Act not to jeopardize the receipt of any federal aid nor to impair the obligation of the State or any agency thereof to the holders of any bond issued by the State or by any such agency, and to the extent, and only to the extent, necessary to effectuate this intent, the governor may modify the strict provisions of this Act, but shall promptly report any such modification with reasons therefor to the legislature at its next session thereafter for review by the legislature.
SECTION 14. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 15. This Act shall take effect upon its approval.