(1) The department has the following powers and duties with respect to the provision of a statewide electronic system, referred to in this section as the "system", that allows qualified individuals to upload and access advance medical directives: (a) To ensure that qualified individuals may access the system for treatment purposes that are allowed under the federal "Health Insurance Portability and Accountability Act of 1996", Pub.L. 104-191, as amended; (b) To contract with one or more health information organization networks for the creation, administration, and maintenance of the system; and (c) To promulgate rules in accordance with article 4 of title 24 to oversee the provisions of this article 54, including but not limited to rules establishing: (I) Criteria for qualified individuals to have access to the system and advance medical directives; (II) Procedures by which a qualified individual may add or remove an advance medical directive to or from the system; (III) Procedures by which a qualified individual may access and download an advance medical directive from the system; and (IV) Procedures and safeguards for ensuring the confidentiality and secure storage of the information contained in an advance medical directive that is added to and maintained in the system. (2) (a) Upon the request of an individual, or authorized surrogate decision-maker, a qualified provider that has an agreement with the health information organization network as required under the federal "Health Insurance Portability and Accountability Act of 1996", Pub.L. 104-191, as amended, may upload the individual's advance health-care directive to the system. The advance health-care directive shall only be uploaded to the system by a qualified provider after the individual or authorized surrogate decision-maker has consulted with the qualified provider in person or through telehealth, as defined in section 10-16-123 (4)(e). A qualified provider that uploads an advance health-care directive to the system is not subject to civil or criminal liability or regulatory sanction for action taken in accordance with this subsection (2). (b) Prior to the upload of an advance health-care directive to the system, the individual, or authorized surrogate decision-maker, shall sign an electronic affidavit in the presence of a qualified provider affirming the advance health-care directive is appropriately executed, current, and accurate. Signing the electronic affidavit revokes any prior advance health-care directives of the same type previously uploaded to the system. (c) The individual, or authorized surrogate decision-maker, is responsible for ensuring that the advance health-care directive uploaded to the system is appropriately executed, current, and accurate. (3) Emergency medical service personnel, an individual health-care provider, a health- care facility, or any other person or entity that complies with an advance health- care directive accessed from the system is not subject to civil or criminal liability or regulatory sanction for action taken in accordance with the advance health-care directive, unless the person or entity has actual knowledge of an advance health-care directive properly executed after the date of the advance health-care directive that is uploaded to the system.
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