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House Bill 756 – Patient rights and crisis standards of care

House Bill 756 – Patient rights and crisis standards of care

Niklas Kleinworth
March 15, 2022

Bill Description: House Bill 756 creates a new chapter, chapter 17, under Title 56 of Idaho Code to preserve patient rights and grant mitigation authority to the Idaho Department of Health and Welfare when crisis standards of care are in place.

Rating: -1

Does it create, expand, or enlarge any agency, board, program, function, or activity of government?

HB 756 expands government intervention in the Idaho health care system by creating a new Office of the Patient Ombudsman and regulating the crisis mitigation plans hospitals use when crisis standards of care are in place. 

By establishing the Office of the Patient Ombudsman within the Office of the Governor, HB 756 creates a new regulatory body to oversee patient grievances and hospital conduct during CSC. Current administrative rules provide that the grievance process be handled between the patient and the hospital. This bill would displace patient complaints about the care they receive to a centralized government agency, expanding the state’s jurisdiction in this area.

HB 756 also expands state control through a provision that enables the Idaho Department of Health and Welfare to assess hospitals’ mitigation plans for crisis standards and how they are executed. Presently, administrative rules allow the director of IDHW to authorize the implementation of CSC and require hospitals to provide a daily report on the status of their resources, such as beds and staff. 

This bill goes a step further by giving the department broad authority to make daily assessments about the mitigation of CSC and whether a hospital should qualify for such a designation. Further, this bill would require hospitals to draft resource shortage mitigation plans and subject them to scrutiny by the department before crisis standards are ever activated. 

This is particularly concerning because this legislation makes no attempt to establish objective standards and benchmarks for what constitutes a good mitigation plan. Rather, it assumes that a mitigation plan is acceptable because it complies with administrative rules and has been reviewed by a new government office. It should be up to the hospital itself to decide how it will balance the needs of its patients and its resources, not the government.

Both provisions expand the influence of the state over the health care decisions of Idahoans. This clearly expands the size and scope of government.


Does it violate the spirit or the letter of either the United States Constitution or the Idaho Constitution?

The central premise of HB 756 is to guarantee that patients’ rights are observed, even when crisis standards  are implemented. Among the rights protected are the right to have a living will faithfully executed, the right to give informed consent for treatment, the right to have family and other advocates present, and equal protection under law when it comes to receiving treatment.

Through observing the right to informed consent and a living will, the patients retain their personal autonomy in how they manage their care. Further, patients also retain the right to have family or others the patient designates to advocate for them in a care setting. Both points preserve the principles of individualism and the right of individuals to direct their own health care, even during a crisis.

Furthermore, Section 56-1706 (4) of the bill specifically notes that “categorical exclusions [from treatment] are prohibited.” This is a nondiscrimination provision that further protects the right of a patient to be considered as a candidate for treatment based on his or her medical condition. It bans sweeping rules that would exclude those belonging to a particular class, race, age group, or other immutable characteristic from being considered for certain treatment options, regardless of the crisis standards being declared. This promotes equality of opportunity and ensures that health care decisions are tailored to the personal needs of each patient.

Overall, the provisions in HB 756 actively promote the spirit and the letter of the United States Constitution, as maintained in common law over the centuries.


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